1995 PLP 245 (PLC)

The petitioner/respondent was employed as cashier in the appellant bank but was dismissed from service by order dated 2‑5‑1990 on the ground of misconduct. It was alleged against him that "you knowingly committed fraud upon the Bank and received the payment of SNDRs twice by fraudulent misrepresentation "The petitioner‑respondent was, however, neither charge sheeted nor any domestic enquiry was conducted against him. It was, therefore, complained in the grievance petition that this amounted to firstly, violation of Standing Order 15 of the Standing Orders Ordinance and, secondly, it offends against the principles of natural justice. On the other hand the stand taken up by the respondent‑appellants in the written statement was that "the facts and circumstances of his wrongful act were so manifest that any further enquiry in to the matter would have been a purposeless formality. The procedure adopted by the bank against the petitioner was perfectly in accordance with the provisions of Wage Commission Award applicable to the petitioner". This position was further explained in the written statement that according to Rule 6 of para 258 of the Wage Commission Award the petitioner‑respondent could be dealt with without any charge‑sheet if the misconduct alleged against him was patent on record. The learned counsel representing the appellants argued that the Wage Commission Award was applicable to the case of the respondent and the learned Labour Court has erred in dealing with the case under the provisions of the Standing Orders Ordinance. He clarified that Efficiency and Discipline (Banks and Financial Institutions) Rules, 1975 is part of Wage Commission Award and, therefore, should have been applied by the Labour Court. He referred to para. 6 which lays down that:‑ "The provision of rules 4 and 5 shall not apply to the following cases:‑ (a) Where the facts on the basis of which action is to be taken have been established in a Court of Law. . (b) where the employee has absconded or where it is for any other reason impracticable to communicate with him. (c) where the employee is caught in the course of the commission of the wrongful act and the circumstances pertaining to the wrongful act are so manifest that compliance with the procedure in rules 4 and 5 would be purposeless formality." Rules 4 and 5 as referred above postulates opportunity to the employee of written explanation against the charges and domestic enquiry into the charges and thus Rule 6 is an exception to Rules 4 and 5 as in case given in Rule 6 the provisions of Rules 4 and 5 can be excluded. He contended that on the strength of the above provisions of law no enquiry was required and therefore, no enquiry was conducted. He referred extensively to section 38(a) etc. of the Ordinance to show the powers and functions of the Wage Commission Award. He relied on 1980 PLC 53 and 1993 SCMR 105 in support of his contention. The learned counsel pleading for the respondent opposed these submissions as he maintained that the decision rendered by the Labour Court was perfectly correct. He also referred to case‑law in support of his viewpoint. I considered the submissions of either side in the light of the relevant law and the precedent cases. The cases cited from the appellants side would not advance their case as the applicability of the provisions of the Standing Orders Ordinance to the case of the present nature has not been excluded therein. Moreover, it could not be refuted that the rules quoted by the learned Advocate are not statutory rules and would naturally have no preference over, the provisions of industrial and Commercial Employment (Standing Orders) Ordinance, 1986. Besides, even if for arguments sake it is held that the rules under the Wage Commission Award would be applicable even then the case of the petitioner‑respondent was not covered by any of the cases of Rule 6 as the allegations against him were neither established in any Court of Law nor there was any allegation of the abscondance of the respondent nor he was caught red‑handed in the commission of the wrongful act nor the circumstances are so manifest and patent on record so as to exclude the conduct of enquiry. The allegations against the respondent were‑that he had received double payment on account of certain deposits which the respondent had denied, therefore, the Bank was obliged to have proved by reference to documentary evidence the embezzlement committed by him and this could not be done without holding enquiry into the allegations. The conclusion of the Labour Court, is therefore, unexceptionable and this appeal is dismissed as without merit. C.M. also stands disposed of. There will be no order as to costs. H.B.T./187/Lb. N Appeal dismissed.