1984 PLP 506 (PLC)

Date of hearing : 17th January, 1984. The appeal captioned above is directed against the decision, dated 29th March, 1983 passed by the learned Presiding Officer, Punjab Labour Court No. 7, Gujranwala, whereby the respondent was directed to be re‑instated in service with back benefits.

2. The respondent was a Cashier. He was dismissed on the charges that he was found in possession of that key of the safe also on 7th Septem ber, 1981 which was meant for the Manager, that he in connivance with Mr. Liaqat Ali Cheema, Manager and Mr. Atif Javed, Assistant, forged drafts detailed in statements of charges and misappropriated the amounts of the said drafts alongwith the two officers mentioned above. The learned lower Court has set aside the dismissal order and directed the re‑instatement of the respondent on the grounds that the Zonal Chief, Sialkot was not competent to dismiss the respondent and that the charges were not proved.

3. An application for additional evidence has been given by the learned counsel for the appellant for permission to produce additional evidence on the point that the Zonal Chief, Sialkot was competent to dis miss the respondent. It has been argued that since the authority of the Zonal Chief, Sialkot was not challenged either in the grievance notice or in the grievance petition or in the evidence, so no evidence on the point was led by the appellant in the learned lower Court. In such circumstances additional evidence can be allowed but first of all the appellate Court has to decide that the additional evidence sought to be produced is relevant and is required‑by the appellate Court for the just decision of the appeal. This is possible if in the petition for additional evidence the evidence sought to be produced is disclosed. There is no mention in the application what evi dence is sought to be produced. However, with the petition a photo‑copy of a letter purported to have been sent by the Head Office, Karachi to the Circle Office, Lahore is attached, so it appears that this document is sought to be produced in the evidence at this stage. The document is not required by this Court for the decision of the appeal, as it is not relevant and does not serve the purpose for which it is sought to be produced. The dismissal order Exh. P. 9 was passed by the Vice‑President, Zonal Office, Sialkot and it was to be shown that he had been authorised by the Head Office to dismiss 'the respondent but the photostat copy of the letter attached to the application for additional evidence is not addressed to the Vice‑President, Sialkot and s addressed to the Circle Office, Lahore. The other thing is that this letter directs that the copy of the dismissal order be sent to the Head Office to be served upon the respondent. This is very strange that the dismissal order was to be passed by the Circle Office and was to be communicated by the Head Office, Karachi. Normally an order of dismissal is passed by competent authority (in the present case Head Office, Karachi) and is com municated to the person to be dismissed either by the Head Office or by some other officer. So the document is wholly misconceived. As it does not serve the purpose, it is not required for the decision of the appeal and this cannot be allowed to be produced in additional evidence. Since ad mittedly the Vice‑President, Zonal Office, Sialkot was not competent to dismiss the respondent, unless he had been proved to have been authorised by the competent authority, the learned lower Court rightly held that the dismissal of the respondent was illegal.

4. The charges have not been established. Possession of the key of the safe meant for the Manager does not amount to misconduct. The Manager had himself delivered the key to the respondent so that if the latter on leave, the business of the branch may not suffer. This act of the Manager was reasonable and if the respondent had refused to take delivery of the key, he may have been guilty of misconduct conversely.

5. So far as commission of forgery of drafts is concerned, there is not an iota of evidence. The solitary witness Mr. Nisar Ahmad did not say that either he had seen the respondent forging the drafts or that the entries of the drafts were in his (respondent's) handwriting. Only by this kind of evidence forgery of the drafts by the respondent could be established. So far as payment of Rs. 9,000 by the respondent is concerned, there is no evidence that it was that money which was obtained by fraud. The amount of the drafts was received by the other person and there is no evidence that the respondent had taken his share out of it. He explained that Liaqat Ali had delivered him currency notes for change and that money had been retained. In the absence of cogent evidence; it cannot be said that the money back paid by him was his share out of the money obtained by Liaqat Ali by fraud. The other officer who too was dismissed exonerated the respondent by saying that he alone was responsible for the fraud and he committed forgery and that none else was with him. The respondent was, therefore, wrongly dismissed and the learned lower Court rightly set aside the dismissal order.

6. The other point argued by the learned counsel for the appellant is that the grievance petition was premature as it was brought on the 15th day of the delivery of the grievance notice. Factually this is not so. The grievance notice was served on 13th December, 1981 and the grievance petition is dated 28th December, 1981. Fifteen days expired on 27th December, 1981 so the petition was beyond 15 days and was not premature. Apart from it the learned lower Court was on winter vacation upto 1st January, 1982 and the Reader had given the date as 9th January, 1982. The petition came before the learned Presiding Officer on the said date, so no question of the petition being premature could arise.

7. The other point argued is that as according to section. 30‑D of the Industrial Relations Ordinance, 1969, the decision of the Wage Commission is an Award of the N.I.R C., such an award could not be made the basis of a petition under section 25‑A and the Labour Court had no jurisdiction. Section 38‑D rather makes the provisions of the Industrial Relations Ordi nance, 1969 applicable to such an Award. So the Labour Court was com petent to adjudicate upon the matter. N.I.R.C., according to sections 22‑A and 22‑B, has jurisdiction in the matters involving the question of unfair labour practices only. Section 38‑D gives only criminal powers to the N.I.R.C. So on the basis of no provision of law it can be held that the Labour Courts have no jurisdiction.

8. As a result, the appeal having no force is dismissed. A. E. Appeal dismissed.