1982 PLP 404 (PLC)

‑‑ Domestic enquiry ‑Statement of accused and witnesses recorded in question and answer form‑Procedure not warranted by any law

Statement of accused not containing unqualified confession of allegation‑Enquiry objected to as not fair and with full defence opportunity ‑ Enquiry Officer not produced before Labour Court to rebut such plea‑Dismissal order not indi cating specific reason ‑Dismissal order, in circumstances, not warranted by facts or law hence set aside with back benefits‑ West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S. O. 12 (3I and Industrial Relations Ordinance (XXIII of 1969), S. 25‑A. 1980 P L C 24 rel. M. Bashir Awan for Applicant. Afzal Ahmed for Respondents. Applicant Farooq Ahmed has moved this grievance‑application for re‑instatement in service of respondent No. 1 and for back benefits with continuity of service.

2. Parties were agreed in their pleadings that the applicant was employee of the respondent No. I as Cashier in Var Branch till he was dismissed under order Copy A/7, dated 24th July, 1980. Prior to ‑ that the applicant was issued notice Copy A/4 dated 13th Decem ber, 1979 about imposition of penalty. In said notice which was in nature of the charge‑sheet it was alleged that the applicant had mis appropriated Rs. 1,500 tendered for deposit on 29th September, 1979 by Mohammad Dawood in his gold loan account and had also mis appropriated Rs. 200 tendered for deposit on Ist November, 1979 by Ameer Bux in his account. Applicant was also alleged to have failed to maintain the trust reposed in him as Cashier by respondent No. I and to have jeopardized interest and reputation of respondent No. 1 bank. Applicant submitted reply Copy A/6 to the charge‑sheet. Respondent No. 1 appointed Mr. Rizvi, Assistant Vice‑President as Enquiry Officer to conduct enquiry against the applicant. Under letter Copy A/5, the applicant was directed to appear before Mr. Rizvi for facing the inquiry on certain date. The enquiry was con ducted on 4th June, 1980 when statement Copy A/ I of the applicant was recorded. Enquiry Officer also examined Fateh Muhammad Bhutto. Abdul Jabbar Qureshi, Farooq Ahmed of Var. Branch, and then submitted his report Copy R/2. Ultimately the applicant was dis missed under order Copy A/7. Applicant submitted appeal Copy A/10 which was rejected under letter Copy A/11. Applicant then sent grievance notice Copy A/12 dated 16th May, 1981. All these facts were admitted.

3. Applicant challenged the dismissal order to be void ab‑initio, illegal and not sustainable on the grounds that it was issued on findings of the enquiry which was illegal, that the Enquiry Officer failed to appreciate that the documentary evidence did not support the allegation, that the second show‑cause notice was not issued that the copies of the enquiry proceedings/findings were not supplied despite demand, that the applicant was neither entrusted with Cash nor he was duty bound to receive the same, that the applicant was not offered opportunity of personal hearing and that the dismissal order did not mention the explicit reasons for the dismissal.

4. In their reply statement respondents Nos. 1 and 2 challenged the grievance application to be not maintainable. On merits it was stated that the cash in question was actually received by the Senior Head Cashier from whom the same was received by the applicant who utilised the same considering it to be debit loan from the Senior Head Cashier. It was added that the allegations against the applicant were proved and he failed to show cause within seven days from issue of the charge‑sheet and hence the Enquiry Officer was appointed. The applicant was alleged to have admitted before the Enquiry Officer that he had misappropriated Rs. 1,500 and Rs. 200 but subsequently he made good the amount misappropriated on 10th November, 1979 when payment slips were found in his table drawer. It was added that services of the applicant were terminated after he was given personal hearing and after compliance of the procedure laid down by law. It was admitted that the enquiry proceedings were not supplied to the applicant. The impugned order was defended to be legal and so also the enquiry report which said to be based on genuine grounds.

5. Parties adduced evidence and their counsels were heard.

6. Mr. Afzal Ahmed counsel for the respondent cited 1980 P L C 964 where Sind Labour Appellate Tribunal held that employees of National Bank of Pakistan were governed by its own Rules framed under Statute and they were not within the ambit of Standing Orders, Ordinance and that termination of services of such employee on account of misconduct did not give right to move grievance applica tion under section 25/A of I. R. O. In the cited case learned Tribu nal did not take into consideration the effect .of Banks (Nationalization) Act, 1974 or Discipline Rules framed by the Banks Wage Commission. Said case was decided on 8th January, 1980. On 3rd June, 1980 learned Tribunal observed in case of Syed Muzafar Hussain Rizvi v. Habib Bank Limited that the Discipline Rules framed by the Wage Commission for Banks can only be construed as an Award of the N. I. R. C. or a decision of the Wage Commission and cannot be construed as statutory rules for the purpose of the Standing Orders Ordinance. On 16th July, 1980, learned Tribunal in another case reported as 1980 P L C 1118 ; held that the employees of the National Bank of Pakistan would be governed by the Standing Orders to the extent that the said orders are not in conflict with the provisions of the Discipline Rules framed by the Wage Commission for Banks. It was further held in 1980 P L C 1118 that there was no bar contained in the Discipline Rules framed by the Wage Commission for Banks, upon, a Bank employee to approach a Labour Court under the S. O., 12 (3) against the termination of his services or dismissal provided he falls within the definition of "Workman" as contained to the Standing Orders. It would thus appear that learned Sind Labour Appellate Tribunal changed its view to the subsequent decisions from its view expressed in 1980 P L C

904. In the instant case the applicant as a Cashier was a workman under the Standing Orders Ordinance. In 1980 P L C 118 the Assistant Cashier of National's Bank of Pakistan was held to be a workman. I therefore hold that this application is maintainable.

7. Mr. Awan argued that no second show‑cause notice was issued before the dismissal. In 1976 P L C 444 it was held that second show‑cause notice was necessary after conclusion of domestic enquiry and before imposition of penalty. In 1975 P L C 818 it was held that where second show‑cause notice was not issued and Enquiry Officer's Report was not supplied, re‑instatement by Courts was proper. The Supreme Court of Pakistan observed in 1973 S C M R 455 that a workman should be furnished with copy of enquiry report and should also be given an opportunity to show cause against the order of dismissal. Mr. Afzal Ahmed however cited P L D 1981 S C 225 where the Supreme Court of Pakistan observed that neither the giving of the second show‑cause notice nor the sup plying of the report of the Enquiry Officer was a requirement of the e rules of natural justice. In view of this authority, which appears to be latest view of Supreme Court of Pakistan, I repel the contention of Mr. Awan.

8. There is however substance in contention of M. Awan that the domestic enquiry was not conducted in accordance with law and rules of natural justice. Copy R/1 of statement of the applicant shows that it was recorded in question and answer form. The maximum that the applicant had confessed in statement R/t was that the Senior Head Cashier gave him Rs. 1,500 on 29th September. 1979 deposited by Mohammad Dawood and Rs. 200 on 31st October 1979, deposited by Amir Bux. In same statement applicant categorically denied having misappropriated said amounts for over one month. He' explained that he considered the amount given to him as loan. In this way even if the statement Copy R/1 is considered to have been voluntarily made, it does not contain unqualified confession by the) applicant. This alone was not sufficient for taking penal action against the applicant. Respondent did not examine in this Court the enquiry Officer Mr. Awan cited, 1980 P L C 24 where the Enquiry Officer was not examined to rebut the allegations that the worker was not offered sufficient opportunity to defend himself. In the circumstances the order of re‑instatement was maintained by the Tribunal. Respondent examined Shabbir Ahmed, who said in cross -examination that the enquiry was not held in his presence. This was also stated by Ghulam Nabi another witness of the respondent. These witnesses in para. 8 of their affidavits said that after proper investigation a charge‑sheet was issued in the name of the applicant when it was proved that he had misappropriated Rs. 1,51,0 and Rs.

200. This shows that the respondents had already arrived at the conclusion that the applicant was guilty of the charges before issue of the charge‑sheet A/4.

9. Report copy R/2 shows that Fateh Mohammad, Abdul Jabbar and Farooq Ahmed was examined by the Enquiry Officer in Questions and Answers form. Their statements were not produced in this Court. In my view, recording of statements in questions and answers is not warranted by any provision of law.

10. In para. 6 of the reply statement respondents themselves stated that the applicant utilised the amount received from the Senior Head Cashier considering it to be debit loan from him, if this was so, it did not show criminal intention of the applicant. It shows absence of dishonesty,

11. It was imperative on the part of the respondents to examine in this Court the Senior Head Cashier who was said to have passed on the cash in question to the applicant. The applicant appears to have been charge‑sheeted simply because credit slips of Rs. 1,500 and of Rs. 200 duly signed by Abdul Jabbar Qureshi, Senior Head Cashier were secured from drawer of his table. This is clear from the memo. Copy A/3. Even recovery of such credit slips did not prove the charges against the applicant There is force in contention of Mr. Awan that the dismissal order Copy A/7 is illegal as it does not specify reasons of dis missal. S. O. 12 (3) says that no workman shall be dismissed from service except by an order in writing which shall be explicitly state the reason for the action taken. No such reason is given in the Order A/7.

12. In view of the above discussion I hold that the order of dismissal was not warranted by facts acid law. The same is set aside and the applicant is ordered to be re‑instated in service of the respon dent No. 1 with back benefits.