2007 PLP 55 (PLC)

CH. IJAZ AHMED, J.

We intend to decide the following petitions by one consolidated order having similar facts and law arising out of the same impugned judgment: (i) C.P. No.2636-L of 2004, (ii) C.P. No.2638-L of 2004, (iii) C.P. No.2844-L of 2004 and (iv) C.P. No.2885-L of 2004.

2. Brief facts out of which present petitions arise are that the petitioners were serving with the respondent-Bank as permanent workmen. The respondent-Bank had initiated disciplinary proceedings against the petitioners on the allegations of embezzlement of huge amount of the account-holders of the respondent-Bank and after regular enquiry they were dismissed from service vide order, dated 3-8-1998. Petitioners being aggrieved filed grievance petitions before the Punjab Labour Court No.3. The learned Labour Court decided the grievance petitions and dismissed petitions vide consolidated order, dated 10-4-2002. Petitioners being aggrieved filed Labour Appeals Nos.69 of 2004, 355 of 2004, 356 of 2003 and 357 of 2003 before the Lahore High Court, Lahore. The learned High Court dismissed all the four appeals vide impugned consolidated judgment dated 25-6-2004. Hence, these petitions.

3. Shaukat Ali petitioner submits that both the Courts below had decided the case against him without application of mind and without adverting to the rules and regulations of the respondent-Bank.

4. Mukhtar Ahmad petitioner also submitted written submission that impugned action of the respondent was without lawful authority.

5. Mian Muhammad Akram petitioner submits that petitioner was involved merely being a member of subordinate staff whereas no proceedings had been initiated against the high officers of the respondent-Bank. He further urges that both the Courts below had decided the, case without scrutinizing the document on record.

6. Learned counsel for the petitioner Raza Ali Jaffari submits that enquiry was not conducted in accordance with the law and regulations of the respondent-Bank. He further submits that the Courts below had erred in law to consider the confessional statement of the petitioner. In fact the petitioner had not given any confession except he had accepted that he had signed the document. He further submits that both the Courts below had decided the case without reappraisal of evidence on record. The enquiry was conducted by the respondent in violation of the mandatory provisions of law. Both the Courts below had dismissed the petition of the petitioner merely relying upon the statement of his co-accused which could not be basis to punish the petitioner. He further urges that respondent failed to connect the petitioner with the commission of offence. He summed up his arguments that all the petitioners had not committed misconduct. Petitioners had committed negligence, therefore, petitioners could not be awarded punishment of dismissal for mere negligence as there was no intention of the petitioners to defraud the account-holders of respondent-Bank.

7. We have given our anxious consideration to the contention of counsel for the petitioner Raza Ali Jaffari and remaining petitioners and perused the record. It is better and appropriate to reproduce the meaning of words misconduct to resolve the controversy arising out of the present petition:-- Word misconduct "Where there is mismanagement or bad management or negligence of a kind which although not necessarily reckless suggests that something was done or omitted to be done which a man of ordinary prudence would not have done or would not have omitted to do, there is a case of misconduct. Syed Hasham Ali Shah & Sons v. The Federation of Pakistan PLD 1951 Lah. 425." "Standing regulations prescribed by Railway authorities are intended to serve as timely warning that the servants ought to follow the instructions given in these regulations in order to avoid risk. The Railways servants are expected to know them and follow them meticulously. If the servants of the Railway company act without regard to these regulations or in total disregard on violation of them and the loss occurs, it is difficult to call it mere negligence. Conduct, such as this would amount to misconduct as there is a higher decree of culpability involved in such conduct than mere negligence. T. Muthaya Pillayan v. Commissioner of Madras Hindu Religious and Charitable Endowments, Madras AIR 1955 Madh. B. 70 (D.B.)." "Misconduct in section 72 of the Railways Act is something more than mere negligence. It is the intentional doing of something which the doer knows to be wrong or which he does recklessly not caring what the result may be Dominion of India as owner. Dominion of India as owner of E.I. Railway and E.P. Rly. v. Ado Shaw Aaklu Shaw and another AIR 1957 Pat. 219". "A transgression of some established and definite rules of action. Where no discretion is left, except what necessity may demand; it is violation of definite law; a forbidden act. It differs from carelessness. M.V. Ittycheria v. State of Kerala AIR 1958 Ker. 374." "If a servant conducts himself in a way inconsistent with the faithful discharge of his duty in the service, it is misconduct which justifies immediate dismissal. That misconduct, according to my view, need not be misconduct in the carrying on of the service or the business. It is sufficient if it is conduct which is prejudicial or is likely to be prejudicial to the interests or to the reputation of the master, and the master will be justified, not only if he discovers it at the time, but also if he discovers it afterwards, in dismissing that servant." Opal laboratories Ltd. v. Workers' Union 1972 PLC 83."

8. It is better and appropriate to reproduce the operative part of the impugned judgment passed by the learned High Court to resolve the controversy between the parties:- "According to learned counsel for the respondent-Bank due to misconduct of appellants, bank suffered loss of Rs.1,90,00,000 in the account of WAPDA and Rs.3,91,17,000 in the accounts of other people. However, learned counsel for the appellants submits that bank suffered loss of Rs.1,90,00,000 only and out of this amount Sikandar Mehmood, (Manager) had paid Rs.90,00,

000. So it is clear that bank had suffered heavy loss. Admittedly due to this incident/fraud a very good account-holder (WAPDA) was constrained to close its account. It was irreparable loss for the respondent-Bank because business of bank depends upon its good-will/reputation. It is well-settled that on the basis of sheer technicalities appellants cannot be exonerated from serious charges of misappropriation and fraud. It makes them disentitled to remain in service of bank. It is clear from the material available on record that appellants and Sikandar Mehmood, Manager misappropriated huge amount. The charges levelled against the appellants have been proved. So in the circumstances of the case I find that learned trial Court has rightly dismissed the grievance petitions brought by appellants. The impugned judgment is just and proper, therefore, there is no justification to set aside the same. For what has been discussed above, I am of the considered opinion that these appeals have no force and the same are accordingly dismissed. No order as to costs."

9. It is pertinent to mention here that learned High Court after reappraisal of evidence on record had given finding of fact that enquiry was conducted by the respondent-Bank in accordance with law, rules and regulations, therefore, impugned judgment is valid in the eyes of law as the law laid down by this Court in Board of Secondary Education, Sargodha v. Abdul Rehman 1988 SCMR 1711.

10. Mere reading of the aforesaid operative part of the impugned judgment of the learned High Court and definition of word misconduct, it is crystal clear that petitioner had committed misconduct as the petitioners failed to observe the rules and regulations of the respondent. The learned counsel for the petitioners as well as the petitioners have not been able to refer to anything in evidence which could persuade us to hold that afore referred finding is arbitrary, illegal or against the record. That being so, the concurrent judgments of the Courts below are unexceptionable as law laid down by this Court in the following judgments: (i) Naeem-ur-Rehman v. Abdul Aziz 1986 SCMR 1961; (ii) Ghulam Rasool Khan v. Mst. Jindan 1986 SCMR 775 and (iii) Abdul Hameed v. Ali Ahmad Khan 1979 SCMR 503.

11. Even otherwise no question of law of public importance has been raised either to warrant interference. It is also settled principle of law that this Court seldom interferes in the concurrent findings of the Courts below while exercising powers under Article 185(3) of the Constitution of Islamic Republic of Pakistan.

12. In view of what has been discussed above, the petitions having no merits are dismissed. S.A.K./S-35/SC Leave refused.