1986 PLP 355 (PLC)

(b) That the appellant has been only picked up for fresh inquiry. Therefore, it will be highly unjust if he only is victimised while the others are left outside; (c) That round about 6 years have elapsed and the Bank Authorities have not been able to prove any case embezzlement or misappropriation against the appellant and, therefore, a fresh inquiry, which has been allowed by the learned Judge of the Labour Court, is not permitted in the light of Anwar Hussain v. Muhammad Farooq Textile Mills Ltd., 1979 P L C 509; and (d) That the appellant has suffered much during the past five years and, therefore, the fresh inquiry will be illegal in the light of Rule 26 of the Award of the Second Wages Commission for Banks and Financial Institution issued in the month of June, 1978.

4. As against these points, Mr. Shahad Ahmad Advocate, the learned counsel for the respondents, has replied:‑ (i) That the fresh inquiry is permissible under law especially when it is a case of embezzlement and misappropriation. He had returned some money thus embezzled and deposited it with the Bank Authorities in this respect. He has referred, in support of a fresh enquiry, to:‑‑ (2)??????? 1983 P L C 247 (3)??????? 1983 P L C 1075 (4)??????? 1968 S C M R 355 (357) (ii)??????? That the words of the Rule 26 of the Award referred to by the learned counsel for the respondents are directory and not mandatory. In this connection, he has referred to:‑ N L R 1978 Labour 601‑626, and 1982 P L C 359. (iii) That as the first inquiry held by Mr. Rafaqatullah was illegal so it was rightly set aside by the learned Judge of the Labour Court Muzaffarabad who has allowed a fresh inquiry under law. The learned counsel for the respondents has submitted that the fresh inquiry shall be completed within three months and if the appellant is found innocent after due inquiry, he shall be re‑instated with full pay and other allowances and privileges as permissible under rules. As regards the joining of other persons who were awarded certain minor penalties (as alleged by the appellant) are concerned, they may be joined in the inquiry if it was found necessary. If they were not wanted in the inquiry, they may be produced as witnesses by any party and the appellant will be free to adduce his defence evidence if he so requires and shall also be free to cross‑examine any witness or witnesses which are brought against him during the inquiry. I have considered the arguments of the learned counsel for the parties and have also gone through the record of the case carefully.

5. I am not going to pass any verdict about the facts of the case because the case of embezzlement or misappropriation is not sub judice before me. I have only to see whether the order of the learned District Judge (Labour Court) is legal or not. Of course, the appellant was before the Inquiry Officer for a pretty long time and now unfortunately more than 5 years have elapsed, yet I am not inclined to set aside the judgment of the Labour Court Muzaffarabad. As it is a case of embezzlement or misappropriation so I do not feel persuaded to stop the fresh inquiry. I have considered the case of 1979 P L C 509 but unfortunately, the facts of that case are not given in that judgment. In that case, about 4 years had passed and a fresh inquiry was not allowed. Had it been a case of embezzlement or misappropriation, I would have followed that authority but it appears that it was perhaps a case of misconduct. Therefore, that case is distinguishable.

6. Under these circumstances, I see no force in this appeal which is hereby dismissed. I need not give any verdict as to whether Rule 26 referred to by the counsel for the appellant Mr. Ashfaq Hussain Advocate applies to this case or not. I leave this matter open to be decided in some other case because, I have not been shown any authority for or against this Rule. Moreover, this Rule merely limits the period of suspension to three months and does not create a bar against a fresh inquiry. The matter remained sub judice before the learned Labour Court for a considerable long time and this unfortunate aspect of the case is to be considered by me. The Labour Court should not prolong such cases and decide them within the statutory period fixed by law.

7. Before I part with this case, I would like to observe that the fresh inquiry must be completed within three months from today because Justice delayed is justice denied. Moreover, the period of suspension this time should not be for more than three months. The file of the trial Court shall be sent back immediately. A.E.???????????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.