1. ' This is a labour appeal under section 37(3) of the Industrial Relations Ordinance, 1969 filed by the appellant against the judgment dated 26-6-2000 passed by the learned Presiding Officer of Sindh Labour Court No, VIII, Larkana by which the order of dismissal of the respondent has been set aside and he has been directed to be reinstated in A service with all back-benefits from the date of his dismissal.
2. ' The facts in brief are that the appellant is a Banking Company which inter alia has a Branch by the name of Anaj Mandi Branch, Larkana. Respondent was employed as Cashier in the said branch. A charge-sheet dated 5-2-1999 was issued to him in respect of certain misconduct. The charge- sheet was replied by the respondent vide his letter dated 3-3-1999. The appellant did not find the reply of the respondent satisfactory and constituted a domestic enquiry and appointed Mr. Mohammad Usman Mallah, AVP/Manager B/0, Dadu as Enquiry Officer. The inquiry was conducted in which the respondent participated. At the conclusion of the inquiry, the Inquiry Officer submitted his report dated 14-4-1999 finding the respondent guilty of the charges. On the basis of inquiry report, the appellant vide letter dated 17-4-1999 dismissed the respondent from his service. Against his dismissal, the respondent filed departmental appeal which was dismissed by the appellant vide letter dated 28-7-1999. The respondent then served a grievance notice dated 5-9-1999 and receiving no reply filed grievance petition under section 25-A of the I.R.O. In the Labour Court No,VIII, at Larkaria with a prayer for reinstatement with full back-benefits. The appellant contested the grievance petition and filed its legal objections and reply statement. The respondent filed his affidavit-in-evidence, on which he was cross-examined by the appellant's counsel. Thereafter the appellant fided affidavit-in-evidence of its three witnesses one of Muhammad Usman Mallah, Enquiry Officer second of Akhtar Hussain Khichi and third of Ghulam Akbar Memon Offieer/Attorney.
3. All the appellants witnesses were cross-examined by, the respondent counsel. After hearing arguments of the Advocate of the parties, the Labour Court passed the judgment, which is impugned in.This appeal. It may be noted that against the impugned judgment, the appeal was filed in the Sindh Labour, Appellant Tribunal who gave decision dated 12-4-2002 which was challenged by the respondent vide C.P. No, D-203 of 2002, in which order dated-3-4-2003 was passed by which the decision of the Tribunal was set aside by consent and the appeal in terms of section 80(2) of I.R.O. 2002 was transferred to the, High Court.
4. ' It is contended by the learned counsel forthe appellant that the case against the respondent was that he, was sent for the collection of cash from Marich Bazar Branch, Sukkur from where the respondent admittedly collected Rs,35 million. He has further contended that while the respondent brought the cash to the Anaj Mandi Branch, Larkana but instead of handing over the cash to the Chief Cashier, he himself took the .Cash to the strongroom and himself started disbursing the amount from it and subsequently announced that 'there was shortage of Rs,2 million from the cash brought by him from Sukkur. He states that the fact of shortage is admitted except that the respondent in the first instance gave explanation that while disbursing the amount of Rs,15 million to Shandadkot Branch he may have paid excess amount or he may have been paid short amount by Marich Bazar Branch, Sukkur. He stated that in his letter dated 3-3-1999 which was in reply to the charge-sheet, respondent has made a categorical statement that staff of Marich Bazar Branch has played fraud with him in not paying the missing amount and in his statement in domestic enquiry he has specifically stated that Chief Cashier of Marich Bazar Branch Sukkur has paid him Rs,20,00,000 short but after dismissal respondent changed his stand and implicated Akhtar Hussain Khichi of taking away of Rs,20,00,000 from strong room while respondent was counting the cash. He states that the respondent after bringing the cash of Rs,35 million from Sukkur did not hand over the same to the Chief Cashier as he was required to do and announced the shortage of Rs,2 million from the cash brought by him from Sukkur while the cash was still in his custody. Thus, the case of embezzlement of Rs, 2 million was made out against the respondent as he also signed fraud and forgery voucher of Rs,2 million dated 8-2-1999 and the learned Labour Court has altogether based its finding on misreading of evidence and on mere presumptions. He has also taken a preliminary objection to the maintainability of the grievance notice that it was not sent to the appointing authority of the respondent and in this respect relied upon the case of Khushhal Khan v. M.C.B. Ltd. 2002 SCM R 943. He has further contended that though the respondent was acquitted of the criminal charge under section 249-A, Cr.P.C. By the Special Court (Offences in Bank), Karachi, but such order of acquittal does not per se apply to the disciplinary proceedings. In support of this submission, he relied upon the cases of MCB Ltd v. Abdul Jabbar 2001 PLC 721. He further contended that in the domestic enquiry, the appellant produced as many as 7 witnesses who were cross-examined by the respondent except one Aftab Ahmed Mahessar to whom the respondent on his own volition did not cross-examine. On the question of the competency of this appeal, he has cited the case of H.M. Shamsi and Company, Karachi v. Wazir Ali Industries, Karachi PLD 1969 SC 65.
5. ' On the other hand Mr. Abdul Hameed Khan, learned counsel appearing for the respondent has contended that the appeal is incompetently filed and has relied upon the case of Khalid Saeed v.
6. Shamim Rizwan (2003 SCM R 1505). He has further contended that grievance notice was validly given by the respondent and there is no illegality in it. In support, he has relied upon the case of Mazhar All v. Federation of Pakistan (1992 PLC 415). He further contended that the cash of Rs,35 million brought by the respondent from Sukkur was handed over by him to the Bank, which is supported by documents and so far the question of disbursing the amount by the respondent is concerned, he stated that he disbursed the amount of Rs,15 million on feeding voucher received from Shahadkot Branch and the amount of Rs:2 million which he was has kept aside for Lalu Ranwak Branch was taken away by Akhtar Hussain Khichi. He stated that no embezzlement was committed by the respondent who was, also acquitted from such charge by the Special Court (Offences in Bank), Karachi. With regard to signing of fraud and forgery voucher of Rs,20,00,000 dated 8-2-1999, the learned counsel stated that the respondent in his evidence in Labour Court has said that he signed this voucher considering it to be TA/DA voucher. He has further stated that written statement of the witnesses was filed by the appellant before the Inquiry Officer and the Inquiry Officer did not supply copies of such written statement to the respondent, but only read over these statements to the respondent which was against the rules of enquiry. In support of his submission, he has relied upon the cases of Muhammad Zaman v. Muhammad Farooq Textiles Mills Ltd. 1987 PLC 581, Nazir Ahmed and another v. Muslim Commercial Bank Ltd. And others 2004 PLC 1, National Bank of Pakistan v. Punjab Labour Appellate Tribunal 1992 PLC 415 and Punjab Road Transport Corporation v. Punjab Labour Appellate Tribunal, Lahore 1973 SCM R 455. He has stated that there is no illegality in the impugned judgment and the appeal may be dismissed.
7. ' I have considered the arguments of the learned counsel and have gone through the record.
8. ' So far the legal objection about the maintainability of the appeal taken by the learned counsel for the respondent, the same may be disposed of by observing that the appeal has been filed by attorney of the Bank. The photostat copy of power of attorney has been filed which shows that the attorney was competent to commence all actions suit or legal proceedings for the Bank. The appeal is therefore found to be maintainable. So far objection of the learned counsel for the appellant that the grievance notice was not in accordance with section 25-A of the Industrial Relation Ordinance 1969 and reliance on Khushhal Khan case (supra>, it may be noted that the respondent has given grievance notice dated 5-9-1999 which he has addressed not only to the President of the appellant-Bank but also to Muhammad Rafique Dosani Regional Manager, Khalil Ahmed Baloch General Manager Sukkur and Ghulam Rasool Khan, HRD, Head Office Karachi. No illegality in the grievance notice is therefore found and even otherwise the cited judgment has no application to the case.
9. ' Now it is admitted position that respondent was sent to Manch Bazar Branch, Sukkur for collection of cash and from there he collected cash amount of Rs,35.00 million for bringing it to the Anaj Mandi Brach, Larkana. While collecting cash from Sukkur, the respondent signed debt vouchers and also cash movement register for the amount of Rs,35.00 million this fact is admitted. The respondent brought the cash to the Anaj Mandi Branch, Larkana and instead of handing over it to the Chief Cashier, the respondent took the cash himself to the strong room of the Anaj Mandi, Branch, Larkana. From there the respondent himself disbursed from the said cash an amount of Rs,15.00 million to Aftab Mahesar for remitting it to the Shandadkot Branch of the Bank and also paid an amount of Rs,1.00 million to the Chief Cashier this fact is also admitted. Subsequently while the cash was still in the hands of the respondent, he announced that there was shortage of Rs,2.00 million in the cash brought by him from Sukkur. The respondent then speculated that he may have paid excess amount for remitting to the Shandadkot Branch or he may have received short payment from Sukkur. However, the respondent on 8-2-1999 signed a fraud and forgery voucher of Rs,2.00 million in respect of cash brought by. Him from Sukkur. The signing of voucher is not disputed except that the respondent in his cross-examination before the Labour Court stated that he has signed such voucher considering it to be T.A/D.A. Voucher. In his reply dated 3-3-1999 to the charge-sheet, the respondent has alleged as follows:-- "The true fact is that the Marich Bazar Branch Staff has played fraud and concealed the missing amount and that was why they did not allow me to count it properly and themselves put it in bags and tied the same and got it put in the Van".
10. ' After the receipt of the above letter of the respondent domestic enquiry was conducted in which from the sides of the appellant besides management representative six more witnesses were produced and among them, the respondent cross-examined all except Aftab Ahmed Mahesar. The last name witness was not cross-examined by the respondent at his own choice. Among the witnesses produced by the appellant in enquiry was also Akhtar Hussain Khichi. The respondent thereafter recorded his own statement in enquiry and he was cross-examined by the Management representative. During the whole proceedings of the enquiry, the respondent did not utter a word that the amount of Rs,2.00 million was taken away by Akhtar Hussain Khichi nor any such question was put by him to Akhtar Hussain Khichi who was cross-examined by him in the enquiry. The Inquiry Officer in his report found the respondent guilty of the misconduct on which the respondent was dismissed from Bank service vide letter dated 17-4-1999. Against his dismissal, respondent filed departmental appeal in which he gave up the plea that fraud has been committed against him by the staff of Marich Branch, Sukkur but instead referring to the rough cash book maintained by the Chief Cashier dated 6-2-1999 showing non-payment of Rs,2.00 million stated that the said Chief Cashier namely Akhtar Hussain Khichi has misappropriated the amount of Rs,2.00 million of feeding cash. He also referred to the cash book closed on 8-2-1999 by the Chief Cashier showing closing balance of the day of Rs,36.400 million while in the rough cash book it is mentioned as Rs,38.400 million and thus stated that Chief Cashier, Akhtar Hussain Khichi has embezzled the amount of Rs,2.00 million. In his grievance notice dated 5-9-1999 he came up with new plea which is as follows: "That during the F.I.A. Proceedings, I requested them to obtain the right cash book of Chief Cashier for 8-2-1999 and they were pleased to obtain it with great difficulty along with other documents, and provided me photocopies thereof. On receipt of these documents I came to know that Rs,20,00,000 (in 1000 rupee notes) kept aside for Lalu Ranwak Branch were also taken away by Chief Cashier along with Rs,10,00,000 obtained by him for payment in Branch while I was thinking that this amount for Lalu Ranwak Branch was there while I counted the remaining cash."
11. ' The respondent then filed grievance petition which was contested by the appellants. The respondent in his evidence before the Labour Court maintained what he has stated in the grievance notice. Incidentally the appellant has also produced Akhtar Hussain Khichi in evidence before the Labour Court. He stated in his affidavit in evidence that he was paid by the respondent Rs,1.00 million only and that the respondent has signed a voucher of fraud and forgery of Rs,2.00 million. In his cross-examirration he was not suggested that he took away from the strong room the amount of Rs,2.00 million. Respondent counsel cross-examined this witness on matters pertaining to the maintenance of rough cash book by him and the dealings conducted by him on the counter on that day. No suggestion was made to this witness that the entries in the rough cash book or his dealing on the counter had anything to do with the cash brought by the respondent from Sukkur. In the face of the above evidence on the record, where it is admitted fact that the respondent has not delivered the cash to the Chief Cashier on bringing it from Sukkur and instead the respondent himself having taken the cash to the strong room and made disbursements from it one of Rs,15.00 million for Shandadkot Brach (sic) and the other of Rs,1.00 million to the Chief Cashier and thereafter having announced shortage of Rs,2.00 million, and then having signed vocuher of fraud and forgery of Rs,2.00 million and thereafter taking four different stand to explain the shortage of Rs,2.00 million i,e, of excess payment to Shahadadkot Branch or having received short payment of Rs,2.00 million from Marich Bazar Branch, Sukkur and therefore categorically implicating the staff of Marich Bazar Branch Sukkur and then in his appeal against dismissal implicating Akhtar Hussain Khichi on the basis of rough cash book of 6-2-1999 and 8-2-1999 and thereafter in his grievance notice alleging that the said Akhtar Hussain might have taken away from the strong room Rs,2.00 milion which he has kept for feeding to Lalu Ranwak Branch apparently shows that the respondent has altogether been. Inconsistent in his explanation and changing grounds at his convenience from time to time rendering his versions open to serious doubts. The fact that the respondent has made no suggestion to the said Akhtar Hussain Khichi in his cross-examination that he has taken away from the strong room the amount of Rs,2.00 million further strengthen the doubts about the correctness of his version. Further, the respondent in his cross-examination before the Labour Court has stated that he has signed fraud and forgery voucher of Rs,2.00 milion on 8-2-1999 considering it to be T.A./D.A. Voucher is a false statement as the respondent in his statement in domestic enquiry has admitted having signed cash shortage voucher. The respondent in his evidence before the Inquiry Officer has admitted that he was promoted as Cashier on 1-1-1995 and since then he has done the job of bringing cash to the Anaj Mandi Branch, Larkana many times. All these factors inescapably leads to the conclusion that the respondent did misappropriate the amount of Rs,2.00 million from the cash of Rs,35.00 million brought by him from Marich Bazar Branch Sukkur on 8-2-1999 as he admittedly did riot give to the Bank the amount of Rs,2.00 million nor did he gave any satisfactory reason for not doing so. The amount of Rs,2.00 million in the hands of the respondent cannot be accepted to have vanished without reason which could not be other than the respondent who has kept the said money with himself.
12. ' The learned Labour Court in its judgment has believed the version of the respondent that Akhtar Hussain Khichi has taken away from the respondent amount of Rs,2.00 million kept by him for feeding to Lalu Ranwak Branch and thus decided the matter in favor of respondent. It may be stated that the Labour Court has failed to examine the evidence on record that respondent has been shifting grounds and that the said Akhtar Hussain Khichi appeared before the Labour Court for his evidence but no suggestion was made to him that he has taken away the amount of Rs,2.00 million from the respondent. Further respondent has made false statement in his cross- examination that he has singed fraud and forgery voucher considering it to be T.A./D.A voucher. All the material evidence on the record seems to have been overlooked or misread by, the Labour Court. The finding thus recorded by the Labour Court in this regard is therefore not supported by any evidence on the record.
13. ' In the case of Muslim Commercial Bank Limited v. Abdul Jabbar, the. Hon'ble Supreme Court of Pakistan at page 727 has made the following observation:-- "The Labour Court has observed that the competent authority may proceed against the respondent afresh if grounds are available by initiating fresh disciplinary proceedings against which exception has been taken by the learned counsel for the respondent. He relied upon two judgments reported as The Vice-President (Admn.), National Bank of Pakistan and others v.
14. Basharat Ali and others 1996 SCM R 201 and Attaullah Sheikh v. WAPDA and others 2001 SCM R 269 to argue that in a case where an employee was acquitted in a criminal case, no useful purpose would be served to proceed against him departmentally. Each case is to be decided on its own merits. In the present case, respondent might have been acquitted from the criminal charges of actually sharing the mens rea i,e, criminal act of defalcation and sharing the money subject-matter of the criminal case but being Cashier, he might be found to be negligent or not vigilant otherwise in discharge of his duties on account of which the happening of the said incident could be prevented or avoided .For which he may be proceeded against through disciplinary proceedings, therefore, the observations made by the Labour Court that the petitioner may proceed if sufficient material is available against the respondent departmentally does not suffer from any illegality."
15. ' Thus there was no impediment in taking of disciplinary action by the appellant against the respondent even Chough the respondent may have been acquitted from the criminal charge under section 249-A, Cr.P.C. The objection of the learned counsel for the respondent that the respondent was not given copies of the statement of witnesses produced during the enquiry or that he was not supplied copy of enquiry record is devoid of any substance. In the first place the record of enquiry so also the evidence of Inquiry Officer before the Labour Court shows that the statement of witnesses who appeared from the appellant side were duly read over to the respondent and therefore he cross-examined the witness and that he did not ask for supplying of copies of statement nor he raised any objection in this regard. Respondent has admitted in his evidence that he has signed each page of the enquiry proceedings. It is established law that record of enquiry is not supplied by the employer to the accused employee as there is no provision in law obliging the employer to do so.
16. ' In view of the above discussion, the appeal is allowed and the judgment dated 26-6-2000 of the learned Labour Court is set aside and the grievance petition of the respondent is dismissed and order dismissing the respondent from service is maintained.