1998 PLP 278 (PLC)

Muhammad Zaman Qureshi for the Employee. Date of hearing: 23rd October, 1996. By the present judgment, I propose to dispose of two appeals, captioned above, as the facts and legal questions involved are practically the same.

2. Mahmood Ahmad Qadri was appointed as Messenger in the year 1979 and promoted in 1986 as Assistant by the Habib Bank Limited; and he was removed from service on 26-2-1991. He alleged that the management of the Habib Bank Limited had become revengeful against him, owing to his trade union activities, and especially as in 1984 he had been elected as General Secretary of the Union of the employees, certified as C.B.A. What went against him in particular was that he had lodged complaints, Exhs. P-1 to 6, against the Circle Executive, Sialkot, as also Zonal Chiefs, Narowal, about certain irregularities committed by them. He was served with charge- sheets and an Enquiry Officer was appointed for holding a probe. On his application, the Enquiry Officer was replaced by a new one, but he too was partial. He had to have recourse tot he National Industrial Relations Commission, and he obtained a stay order, where after the Habib Bank Limited did not take further action against him. According to Qadri, a conciliation meeting' was held and he was assured that final action would not be taken against him, whereupon the petition before the N.I.R.C. was got dismissed in default. Mr. Qadri maintains that actually he had been compelled not to pursue the proceedings before the N.I.R.C. He has, however, neither explained, nor established on record, how did the 'Authorities' force him to withdraw the proceedings pending before, the N.I.R.C., and in what manner was the assurance, if any, given to him, that in the event of his non-pursuit of the proceedings before the N.I.R.C., final action would not be taken. He even unsuccessfully applied to the N.I.R.C. for revival of his cause. It is not denied that he was also allowed to coopta co-worker with him, in the course of the enquiry; but Mehmood Ahmad Qadri alleges that no worker had actually been spared by the 'Authorities' to assist him in the enquiry proceedings. This again is a vague allegation; and, on the face of it, it appears that Mr. Qadri is telling lies. According to Mahmood Ahmad Qadri, the charge-sheets against him had not been signed by and the enquiry had not been held by the competent Officers. Mr. Qadri alleges having made complaints against the Circle Executive, Sh. Muhammad Aslam, and the Enquiry Officers were below his rank. Merely by saying that Sh. Muhammad Aslam had become personal against him and the enquiry was required to be conducted by officers above the rank of Sh. Muhammad Aslam, the onus will obviously not shift on to the management. Mahmood Ahmad was just an Assistant, and the Enquiry Officers, one after the other, were the Managers, who were certainly senior in rank. It seems that the complainant in the enquiries against Mr. Qadri was Mr. Ashfaq Ahmad Butt, and the two charge-sheets were Exhs. P-7 and P-9, Qadri did furnish replies to the notices, or the charge-sheets, but opted to stay away and did not afterwards join the enquiry proceedings. He was even required to come and attend, but he preferred to remain absent; and thus the management was justified to proceed against him ex parte. His plea is that he had been transferred to Shakargarh, in order only to cope with a departmental formality, so that he could draw his pay as an appointee at Shakargarh; otherwise he was ordered to continue to serve at Sialkot. This claim against has nothing in proof; and the fact remains that he had never joined duty at Shakargarh. He says that he had no criminal intention to remain absent from duty at Shakargarh. This stand-point is, however, false, on the face, of it, as the mere fact that he remained absent from duty at Shakargarh, for a long time, would establish the obstinacy, mischief-mongering and insubordination, on his part. He says that he remained absent from duty on medical grounds. This certainly was not a sound plea. He was absent from duty since 19-3-1988, without leave and without even informing his superiors about the incidence.

3. As per charge-sheet, Exh. P.7, it was alleged that Mahmood Ahmad Qadri had received medical expenses, over and above his entitlement, which amount he got in league with one Dr. Muhammad Hussain of General Hospital, Sialkot Cantt. He showed the expenses of treatment of his father Ghulam Rasul as Rs.7,800; and as per stand-point of the management it was a forged medical bill. A report was obtained from the actual doctor and the same is available at pages 363/369 of the file of the lower Court. He had received this amount for his father, Ch. Ghulam Rasul, as operation expenses. Dr. Capt. Khawar Rafique, however, certified (per pages 369-371) of the file of the lower Court) that he had never worked in the said hospital, nor had he given any other treatment to the patient, and actually there were no arrangements available for operation of serious patients in the General Hospital, Sialkot Cantt. Receipt for Rs.7,800 issued on account of treatment charges did not appear to be in order, according to the Chief Executive Officer, Sialkot Cantt. (at page 371). However, as a special case, the Assistant Vice-President of the Bank had allowed Mr. Qadri to get Rs.8,300 as excess payment, over and above the prescribed annual monetary limit, for the year 1987 (page 377); but the record would establish that Mr. Qadri could go to any extent in deriving monetary benefits, including medical expenses.

4. There was also an allegation (charge-sheet Exh. P. 9) that he had committed forgery and altered the amount in the receipt dated 20-12-1987, from Rs.500 to Rs.1,500, by adding digit ' 1' before the figure

500. He was staying in a hotel at Karachi in connection with his Federation meeting and the total management was got in touch with. The Bank Management, as is revealed from the charge-sheet Exh. P.9, was informed by the hotel management that through fraud, forgery and misrepresentation, Mr. Qadri had gained a wrongful advantage of a few hundred rupees, having received Rs.1,500 in place of Rs.1,050, actually spent, and in that regard he had no plausible explanation to offer. The abovesaid incidence in the opinion of the Bank Management, amounted to gross- misconduct on the part of Mr. Mahmood Ahmad Qadri.

5. Mahmood Ahmad Qadri had never cared to explain his position by joining the enquiry proceedings and remained absent throughout, on the pretext of personal illness, or sickness of his children, or for other reasons, and the Bank Management was wholly justified in proceeding against him ex parte. The Enquiry Officers, belonging to the Bank, according to Mr. Qadri, were not expected to be impartial or fair. There was, however, no way out for the bank people, but to hold an enquiry against Mr. Qadri through officers of the Bank, who had no personal enmity against him. It was open to him to co-opt with the proceedings of the enquiry and repudiate the allegations of corruption, misappropriation of money etc., as also long absence from duty. Since he had no excuse to put forth, he preferred not to join the enquiry proceedings. How can he say that the allegation of his absence from duty, or the other one, had not been enquired into properly. This is a familiar pattern of a trade unionist, which he followed, and did not care a fig for his superiors and did not give any importance, whatever, to the charge-sheets served on him and to the enquiries held against him. He was even warned by the Enquiry Officer but he did not appear before him on a single day. In the enquiries, the allegations levelled against him were found to be sound or well-based; and he did not even furnish replies to the second show-cause notices, Exhs. P-15 and 16, which he was served with, on conclusion of the enquiries.

6. He now says that he had remained unemployed throughout this period, but he has adduced no evidence in that regard, in support of his stand-point. He is not to be heard, when he says that his prolonged absence from duty was not actionable under the provisions of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1969 He had probably got into his mind that as he had been appointed General Secretary of the trade union, he was to be governed by no service rules and no norms, and he, therefore, cared little for the office discipline and did not display any sense of duty. The findings of the learned lower Court, recorded at the end of the impugned order, that the enquiries had not been conducted in a proper way, cannot possibly be endorsed. Enquiries against him were not vengeance-oriented, as he became General Secretary of the Workers Union in the year 1984 and was charge-sheeted in the year 1988. He was ousted from service in February, 1991, and in no undue or indecent haste The learned lower Court, it appears, has chosen to be indulgent towards the employee, although at the same time the bank management has been permitted to conduct the enquiries afresh and award of back benefits has been held to be dependent upon the result of fresh enquiries, to be conducted in future. I am of the opinion that no such enquiry was needed; and the previous enquiries were perfectly in order. The allegations against the official were established, and he was correctly found to have remained absent from duty, without any lawful excuse. He could not be said to have earned an entitlement to receive his emoluments for the period, he did not perform any duty with the bank.

7. Resultantly I would set aside the impugned order, rendered by the Labour Court on 25-2-1993, and would accept Habib Bank's appeal. The one preferred by Mahmood Ahmad Qadri, laying counter-claim to back benefits, fails and is hereby dismissed. There shall be no order as to costs. H.B.T./880/Lb.P Order accordingly.