1976 PLP 815 (PLC(CS))

Domestic enquiry

Dismissal for misconduct - Bank cashier accused of misappropriation-No regular charge-sheet under signatures of competent authority served-No Enquiry Officer appointed under regular order of competent authority -Solitary evidence of com plainant (Ban Branch Manager), whose conduct on money involved challenged by accused, appearing on record-Such witness not put to cross-examination by accused Enquiry Officer not indicating, reasons for non-cross-examination of complainant by accused Action taken on basis of such enquiry, held, caused serious prejudice to accused's defence-Dismissal order, in circumstances, set aside and re-instatement with back benefits awarded-Management, held, could initiate fresh enquiry properly-Industrial Relations Ordinance (XXIII of 1969), S. 25-A. A. D. Baluch for Petitioner. Azim Ashrif Sheikh for Respondent, Muhammad Ajmal ex-Cashier/Typist, Muslim Commercial Bank Limited, Chowk Bahadarpur, Rahimyar Khan, filed a petition under section 25-A of I. R. O., 1969, against the management of Muslim Commercial Bank Limited, Rahimyar Khan, through Muhammad Hashim Khan Regional-Chief, and Muhammad Riaz, Branch Manager, respondents, for or direction of re-instatement by setting aside the order of his dismissal dated 18-13-75 passed by the Regional Chief of the aforesaid bank (Photostat Exh. P.1). It is stated in the petition that the petitioner worked in the bank for three years diligently and honestly without giving any chance of complaint and that he was dismissed from service by the Regional Chief of the bank without any lawful basis. The circumstances leading to his dismissal a stated in the petition are these. On 13-9-75, the petitioner went to deposit ii the main branch of Muslim Commercial Bank, Rahimyar Khan, the cast amounting to Rs. 56,500 in his custody, in the company of Bank guard As soon as he reached the main branch, be found that the cash with him was short of Rs. 5,

000. Since there was no tel.-phone in the branch office e the bank, he rang up at Afzal Petrol Pump the nearest place of telephone to the branch office in order to contact the Branch Manager to inform him about the shortage of money. Munshi Abdul Sattar of the said petrol pump received the petitioner's message and informed him after making the querry that Muhammad Riaz, Branch Manager of the Bank, was not present in hi office. The petitioner then himself went back to the branch office when in the meanwhile Mr. Muhammad Riaz had returned. The petitioner looked in t the drawer of his cash counter and found the bundle of 1,000 notes of Rs. amounting to Rs. 5,000 missing from there. The petitioner was quite sure to have left by mistake Rs. 5,000 in the drawer of cash counter and became convinced that the said money was taken away by Mr. Muhammad Riaz by taking advantage of the mistake committed by the petitioner and had disposed of the same during the period he left the office after he was informed by Munshi Abdul Sattar that the cash on the person of the petitioner was found short of Rs. 5,000 at the main branch of the bank. The petitioner's belief was subsequently confirmed through his personal enquiries which revealed that Mr. Muhammad Riaz, Branch Manager, had entrusted the money to Ch. Abdul Stattar, Proprietor Chaudhary Oil Company, who misappropriated the same and refused to return the money to Mr. Muhammad Riaz. The latter in order to escape from the scandal accused the petitioner of the misappropria tion of the said amount and issued memos to him holding him responsible for the return of money and after having an enquiry conducted against him on arbitrary basis got him dismissed from service. He also maintained that the respondent No.1 as Regional Chief of the Bank was not his appointing authority and as such could not validly pass the order of dismissal against him, that the petitioner was not served with a regular charge-sheet nor a proper enquiry was made against him by an enquiry officer appointed by a competent authority. Hence the petition for re-instatement. In the written reply filed on behalf of the respondent it has been sub mitted that the petitioner has been validly dismissed from service after proper enquiry on the charge of misconduct against him which related to the mis appropriation of Rs. 5,000 out of the bank cash in his custody. It was also maintained that the petitioner was charged with different accusations from time to time in the past and was let off on being pardoned by the Management at his request. The petitioner examined himself in support of his petition besides pro ducing Mr. Abdul Hamid, P. W. 2 while Mr. Muhammad Hussain Khan, Assistant Vice-President, Rahimyar Khan Zone, Muslim Commercial Bank Limited, and Mr. Muhammad Idrees Khan, District Manager, of the said Bank, were examined in rebuttal on behalf of the bank-Management. Muhammad Ajmal petitioner stated all the facts already given above in narrating the facts of the petition. In the cross-examination he stated that he had appeared before the enquiry officer. Mr. 1drees Khan, District Manager, who had recorded the statements of his witnesses in addition to the statement of Mr. Muhammad Riaz, Branch Manager, though, he did not record the latter's statement in his presence. He further stated in answer to a question that all the cash of the Bank's branch remains with the cashier, that he had counted up the cash in the amount of Rs. 56,500 while putting it in the drawer of his table and that he did not think it necessary to count it again while putting it into the cash bag when he left for the main branch of the Bank. He further stated that the cash drawer of his table was not equipped with any lock and was left bolted by him and had found it unbolted on his return to the branch office for taking the balance of the cash from there. The petitioner placed on record documents Exhs. P. 1 to P.

14. Abdul Hamid, P. W. 2 did not state any thing material to support the case of the petitioner. Mr. Muhammad Hashim Khan, Assistant Vice-President, of the Bank stated that domestic enquiry against the petitioner was direct

000. A special note was given in his statement that the aforesaid written complaint could not be traced out from the record of the Management except for carbon copy of the memo. Exh. P. 2 sent to the petitioner by Mr. Muhammad Riaz, Branch Manager, a copy of which was endorsed to the Regional Manager Mr. Muhammad Idrees, R. W. 2 stated that he had made the enquiry against the conduct of the petitioner regarding the loss of cash and had recorded (lie statement of Mr. Muhammad Riaz Branch Manager and the petitioner. Ex's. P. 13 is the enquiry report sub mitted to the Regional Chief. He stated that he had given the opportunity of cross-examination of Mr. Muhammad Riaz to the petitioner. In the cross-examination he stated that he only recur led the statement of Mr. Muhammad Riaz, Branch Manager, in support of the charge-sheet and he did not think it proper to record the statement of Guard who accompanied Mr. Muhammad Ajmal, Cashier, to the main branch of the bank for the deposit of the cash. He admitted the facts that the petitioner did not cross -examine Mr. Muhammad Riaz arid he did not give any note in his state ment to the effect that the petitioner was given an opportunity to cross- examine Mr. Muhammad Riaz which he did not avail. In this background of the evidence of the parties some material defects have been found in the conduct of enquiry against the petitioner which can 'fairly be regarded as fatal to the ultimate action of dismissal taken against the petitioner. In the first instance it is pertinent to note that no compre hensive regular charge-sheet was issued to the petitioner. Exh. P. 2 is put forward as the charge-sheet which in fact is only a memo. sent by the Branch Manager, on 13-9-75 to the petitioner calling upon him to make up the deficiency of the bank cash and to submit an explanation as to why the cash amounting to Rs. 5,000 became short out of the total cash in his custody on that date. The petitioner was also instructed to deposit the cash in full i. e. Rs. 56,500 in the main branch of the bank. This memo. was not at all in the nature of a charge-sheet nor it was signed or countersigned by the competent authority of the bank, to issue the charge-sheet who according to the admission of the respondents was the Regional Chief of the bank. It is further worthy of note that me petitioner was vide (Exh. P. 7) suspended from service not earlier than 30-9-75 i.e. about 17 days after the shortage in the bank cash was discovered. It is also to be noted that the notice of enquiry was directed on 31-10-75 (Exh. P. 11) again by the Branch Manage: and not by the Regional Chief who was the competent officer to do so. Final show-cause notice Exh. P. 12 alongwith the necessary documents was also sent to the petitioner by the Branch Manager who was admittedly not his appointing authority, the petitioner admittedly did not cross-examine the sol witness examined in the enquiry against hi n nor any note was given in the statement that opportunity of cross-examination on the witness was given to the petitioner. The enquiry report (Exh. P. 13) is also an in comprehensive statement of the enquiry proceedings not based on logical conclusion properly deduced from the relevant facts appreciated by the enquiry officer., 1 is, however, the letter of dismissal (Exh. P. 1) which appears to have bee issued by the competent authority i. e. the Regional Chief which could not validly be passed in the absence of a proper enquiry against the petitioner Not until a proper charge-sheet was given to the petitioner under the signatures of the competent officer and proper enquiry was made any ultimate action for the penalty of dismissal could not be taken against the petitioner without causing serious prejudice to his defence. Under the circumstances, the enquiry made against the petitioner which was, more less, based on solitary statement of the Branch Manager, who was held o by the petitioner as the remover of the cash in question from his ca counter could not be relied upon for any verdict in favour of the ban Management on a fair basis. The defects pointed out in the domestic enquiry reduce it to a mere farcical proceeding not capable of being adopted for a serious punishment of petitioner's dismissal, No doubt the defects in enquiry may have occurred due to the ignorance of the bank officer about the due procedure but once it is noted that mode of enquiry has actually caused) prejudice to the inherent defence of the petitioner then it must be discarded, for the ends of justice to prevail. In the result, the impugned order of dismissal dated 18-11-75 is set aside and the petitioner directed to be reins tated in service with all back benefits. The bank-Management, through res pondents, is however free, if so advised, to make a fresh enquiry against the petitioner according to the allegations against him which should proceed on proper lines and be conducted fairly and comprehensively for any just conclusion. This direction is warranted by tie preculiar circumstances of the case as the bank-Management should have a fair chance to make an enquiry against the petitioner for the serious charge of misappropriation of the bank cash levelled against him. It is requested on behalf of the res pondent that the petitioner should be directed to report for duty by to morrow in the branch office of the Bank so that necessary, steps should be taken in pursuance of this judgment. The petitioner has however, requested for three days' time for returning to his duty after making his domestic arrangements in his behalf. He may therefore report himself for assuming his duties within four days. The file may be consigned.