This appeal is directed against the decision delivered on 8th July, 1978, by the VIIth Labour Court, sitting at Sukkur, dismissing the application made by the appellant under section 25-A of the Industrial Relations Ordinance, to challenge the order .Of his dismissal from the service of the National Bank of Pakistan, the first respondent.
2. The appellant, who claims to prefer the Ahmadi faith, was work--ing as a Junior Clerk in the Zonal Office of the National Bank of Pakistan at Sukkur. By office order, dated. 2nd July, 1975, he was transferred and posted in the same capacity at Ubaoro with immediate effect. However, he reported for duty at Ubaoro on 7th August 1975, but remained on leave for 15th and 16th August, 1975, and again from 20th to 23rd August, 1975. On 25th August, 1975, the appellant sent a telegram to the Manager of the Ubaoro Branch requesting for extension of leave and stating that a letter was following. However, neither the promised letter was sent to the Manager Ubaoro nor .Was he intimated by the appellant the period for which the appellant wanted his leave to be extended, but the appellant submitted a Doctor's certificate of his illness for the period from 7th July 1975 to 6th August, 1975, and on the basis thereof leave for this period was allowed to him. As the appellant again continuously absented himself from his duties at Ubaoro from 24th August, 1975 onwards, in spite of repeated directions to him to resume his duties at Ubaoro, he was served with a charge- sheet, dated 10th December, 1975. A domestic enquiry was, thereafter held against him by Mr. G. A.
Soomro, Senior Manager (Development) bet--ween 26th March, 1976 and 7th April, 1976, and on the basis of the report of the Enquiry Officer, the appellant was dismissed from service, .Vide order dated 5th October, 1976, passed by Mr. Hadi Bux Memon, the then Zonal Head at Sukkur, who is the sixth respondent. The appellant does not appear to have, filed any departmental appeal although one is provided under the Service Rules applicable to him, but served a grievance notice which is dated 20th October 1976, upon the respondents. To this notice the Zonal Manager replied .That the dismissal from service of the appellant was on account of proved misconduct and that the dismissal order had been approved by the competent authority after through examination of the case.
3. The appellant accordingly, on 23rd December, 1976, submitted an application under section 25-A of the Industrial Relations Ordinance to the Seventh Labour Court, at Sukkur, challenging the order of his dismissal. The learned Labour Court, after recording evidence led by the parties and taking into consideration the record of the domestic enquiry, rejected the contentions of the appellant that the enquiry against him was not just or fair or in accordance with the rules applicable to the appellant or that he had been victimized because he was an Ahmadi and an active Union worker by reason of the fact that he had incurred the wrath of the Zonal Head as he had made serious complaints against him to the Head Office and the President of the Bank. It accordingly dismiss-- ed the application of the appellant, who has now approached this Tri--bunal in appeal.
4. I have heard Mr. Hassan Hamidi, the learned counsel for the appellant, and Mr. Samiullah Khan, the representative of the respondents and have also gone carefully through the record of the case including that of the domestic enquiry. The charge against the appellant was that he remained unauthortsedly absent from his duties from 24th August, 1975 onwards in spite of repeated directions requiring hunt to resume and report for duties and that his prolonged absence without leave and in defiance of orders amounted to misconduct. The enquiry officer has held that this charge was fully established against the appellant and that his wilful absence without any proper application or proper sanction amounted to misconduct. Mr. Hamidi has assailed the findings of the Enquiry Officer and the impugned order on the following grounds :-
(i) That the impugned order is based on a typographical error occur--ring in the application under section 25-A of the Industrial Rela--tions Ordinance, that the appellant remained absent due to his sickness from 19th August 1975 upto 1st September, 1976, when it was consistently the case of the appellant that he had remained absent only from 19th August, 1975 up to 1st September, 1975, on account of sickness, and for this period he had submitted a Medical Certificate.
(ii) That the absence of the appellant from 19th August, 1975, on wards was not wilful but for good and proper reasons beyond the control of the appellant and consequently does not amount to misconduct.
(iii) That the order of dismissal is bad as it was issued by the Vice---President of the Bank while the appellant was appointed by a higher authority, namely the Deputy Managing Director.
(iv) That the enquiry was neither fair nor proper as the enquiry officer was a subordinate of Mr. Kazi; the Vice-President of the Bank, against whom the appellant hail made serious complaints of misuse of Bank's funds, and moreover there were complaints of defalcations of the Bank's funds against the enquiry officer himself.
(v) That the domestic enquiry was further vitiated by reason of there being unauthorised interpolations made in the statements of witnesses.
5. I will deal with each of the above objections and points seriatem. Now as regards the first contention of the learned counsel, it may be pointed out that for the typrographical error complained of by the learned counsel, the appellant himself is to blame for it appears to his own application and the learned Labour Court seems to have simply accepted this position as correct.
This error, however, in no way has influenced or affected the decision and the findings reached by the learned Labour Court, as the evidence in the case has established that the appellant had remained absent without leave at least upto 10/ 11- 12-1975, when the charge sheet against him was issued, and not from 19th August, 1975 upto 1st September, 1975, as claimed by him, and that further no medical certifi--cate for any part of this period was produced or submitted by the appel--lant. Neither in his statement to the enquiry officer nor even in his appli--cation under section 25-A of the Industrial Relations Ordinance has the appellant claimed that he had sent a medical certificate for this period. No doubt the appellant had submitted a medical certificate but that was for the period from 7th July, 1975 to 6th August, 1975, after issuance of his posting orders to Ubaoro and before he had reported for duty at that station, as is made clear in the charge-sheet Issued against the appellant and it was by reason of this medical certificate that the said period was excluded from the period of the appellant's unauthorised absence. It appears from the statement made at the domestic enquiry by Mr. Gous Bux Shaikh, Manager Establishment, National Bank of Pakistan, that shortly after reporting for duty at Ubaoro on 7th August 1975, the appellant took leave for 15th and 16th August, 1975, from the Branch Manager Ubaoro, and took further leave from the Branch Manager Ubaoro, for four days from 20th up to 23rd August, 1975. It further appears from the letter written by the Branch Manager, Ubaoro, to the Zonal Office at Sukkur that telegram, dated 25th August, 1975, was received, by him from the appellant, which read "please extend leave letter follows", but as the promised letter was never received from the appellant no extension of leave was granted to him. It will thus be seen that on the, one hand it is wholly incorrect that the appellant remained absent only from 19th August, 1975 upto 1st September 1975 and on the other hand that he had submitted -a medical certificate in respect of that period. As' a matter of fact the appellant did not even care to send the promised letter requesting for exten--sion of the four days, leave granted to him by the Ubaoro Manager. The Manager establishment has further stated before the' enquiry officer that the appellant 'is absent without leave till today.'. The statement of the witness was recorded by the enquiry officer on 26th March, .1976. Thus according to the witness the appellant had remained absent without leave from 24th August, 1975 at least up to 26th March, 1976. As a matter of fact the appellant did not dispute his absence from his duties for -this period.
In his letter, dated 2nd September, 1975 to the Zonal Office, he stated that he was unable to proceed to Ubaoro unless he was given protection. In his subsequent letters he reiterated his position that he could not join his duties at Ubaoro unless the Management provides pro--tection for his life and respect and further requested that he be transfer--red to Sukkur so that he could pursue his suit for seniority. The conten--tion of the learned counsel of the appellant that the learned Labour Court had been misled and reached a wrong conclusion by reason of a typographical error in the application of the appellant thus appears to me to be wholly without any force.
6. In support of his next contention that the absence from duty of the appellant from l9th August, 1975, onwards was not wilful but for good and sufficient reasons beyond the appellant's control, the learned counsel submitted that the appellant was an Ahmadi and moreover an active worker of the Union, that the atmosphere at Ubaoro was severely hostile to persons professing the Ahmadi faith, that even the Bank staff at Ubaoro, including the Manager, was hostile to the appellant because of his faith, that the appellant was anxious to resume his duties at Ubaoro but could not do so unless he was given protection but such protection was denied to him despite his repeated applications. These submissions are founded on the evidence given by the appellant before the Labour Court, the statements of the appellant and his witnesses in the domestic enquiry and the letters written by him to the Bank in this behalf. In his statement at the domestic enquiry the appellant averted that while he was perform--ing his duties at Ubaoro, the customers and staff of Ubaoro Branch tor--tured and humiliated him and that the Branch Manager had introduced one person in the Branch and informed the appellant that he was an Excise Inspector who wants to involve him (appellant) in so many forged (false) cases because of his faith. These allegations were repeated by the appel--lant in his statement before the Labour Court. It will be seen that except in relation to the Excise Inspector, the appellant has not stated in what manner he was tortured or humiliated. There is also no other allegation against the Ubaoro Manager except that he had introduced in the Branch (apparently allowed admission in the Branch) the Excise Inspector who wanted to involve the appellant in false cases. It is hardly likely that the Branch Manager would have informed the appellant that the Excise Inspector wanted to involve him in false cases if he was in collusion with the Excise Inspector. Furthermore, the fact that the Branch Manager readily granted leave to the appellant on two occasions within a short span of 5 days strongly militated against the contention that the Ubaoro Manager was hostile to or prejudiced against the appellant.
As regards the letters written in this behalf by the appellant to the authorities, there are five such letters all of which contain more or less the same vague alle--gations of humiliation and torture at Ubaoro and made demand for protection. However, in some of the letters, there is also reference to the complaints of defalcation of funds made by the appellant against Mr. Razi, senior Vice, President at Sukkur, his grievance that his salary had been unauthorisedly withheld and a demand that he be posted at Sukkur. The first of these letters is dated 2nd September 1975. It is addressed to the Zonal Head. It is pertinent to note that the appellant has given his address in this letter as c/o Mr. Hassan Hameedi, Advocate. This suggests that as early as on 2nd September, 1975, he had retained an Advocate and was preparing for litigation with the Management of the Bank. In this letter, the appellant has alleged that the Branch Manager had informed him that as he was an Ahmadi the people of Ubaoro do not like him. The letter further states that he has come to know that the Excise Inspector Ubaoro was trying, to involve him in some criminal cases because of his faith. The contents of this letter may be compared with the statements of the appellant at the domestic enquiry and the Labour Court. It will be observed that there is no allegation or suggestion in this letter that the Excise Inspector had been inducted in the Branch by the Branch Manager or that the latter was in collusion with the Excise Inspector. To this letter, the Zonal Office replied to the appellant by its letter, dated 10th September, 1975 wherein it was stated that the allegations made by the appellant are false and unjustified and based on no grounds and that if he reasonably has fears for his life he could seek protection from the Police and District Administration who are responsible for security of every citizen. He was finally advised to resume his duties at Ubaoro failing which disciplinary action would be taken against him. It was the grievance of the appellant that no enquiry was held into his complaint and genuine demand for protection. This grievance is without' foundation, as from the evidence of the Manager, Establishment it appears that the letter of the appellant was sent to the Ubaoro Manager, who, by his letter, dated 10th September, 1975, strongly denied the allegations of the appellant. It further appears from the statement at the domestic enquiry of the Manager Establishment that, telephonic enquiries had been made from the Ubaoro's Manager.
7. The second letter from the appellant to the Zonal Office in this behalf is dated 22nd September 1975. It contains similar allegations as those contained in the earlier letter of 2nd September. 1975 and further makes the assertion that Heavens would not fall if he were transferred to Sukkur or Karachi. This letter was replied on 10th October, 1975 by the Zonal Head, who pointed out that the said letter does not contain anything new and once again advised the appellant to forthwith resume his duties at Ubaoro failing which disciplinary action would be taken against him.
8. The next letter from the appellant on this point is dated 24th October 1975 and is addressed to the President of the Bank. This letter is similar to the letter of 22nd September 1975 and makes the demand that he be transferred to Sukkur, otherwise it would not be possible for him to prosecute his suit for seniority.
9. The next letter of the appellant is dated 13th December, 1975 and is addressed to the Minorities Affairs Division, Government of Pakistan. It repeats the allegation that by reason of his being an Ahmadi he is being victimized by the National Bank and that in spite of his demands he is not being provided protection to his life and respect.
10. The last letter on record on this point from the appellant is the letter dated 13th December, 1975, addressed to the President of the Bank claiming that the Management of the Bank is using all arrows of intimidation and victimization so that he not be in a position to get justice and to disclose the loopholes of victimization, misappropriation, misuse of power and monetary losses acts which were being caused to the insti--tution by the Management of Sukkur Zone. It will be pertinent to mention here that some time before his transfer to Ubaoro, the appellant on 22nd May, 1975, had written a letter addressed to the President of the Bank, complaining of serious financial irregularities and misuse of Bank funds by Mr. Saeed Ahmad Kazi, the Senior Vice-President of the Bank' at Sukkur. The appellant's case is that all his troubles, including his trans--fer to Ubaoro, were in consequence of this letter.
11. The appellant had also examined in his defence in the domestic enquiry Mr. Shah Nawaz Lakho, Mr. Mukhtar Hussain and Mr. S. Hamid, the Senior Vice-President the Vice-President and the General Secretary respectively of the National Bank of Pakistan Employees Front Sukkur who have stated that they had been informed by the appellant that he was being victimized by the Branch Manager Ubaoro, outsiders and customers because he belonged to the Ahmadi faith and also because he was taking active part in Union activities. It may be pointed out that in his letters to the Zonal Head no allegation had been made by the appellant that he was being victimized due to his Union activities. This allegation thus appears to be an afterthought. Moreover, none of these witnesses had any personal knowledge of any victimization or harrassment being practised upon the appellant but have merely stated what according to them was told to them by the appellant. Their evidence thus only amounts to this much that the appellant had complained to them of victimization at Ubaoro on account of his being an Ahmadi and by reason of his Union activities.
12. I have carefully considered the evidence in regard to the alleged victimization and harrassment of the appellant at Ubaoro and am of opinion that there is no tangible evidence in support of these serious allegations. I have already referred the letter of 10th September, 1975, from the Branch Manager, Ubaoro, stoutly denying the appellant's allegations. I have also referred to the fact that no details or particulars of the victimization or harrassment have been given by the appellant in his letters or his statements, except that he has alleged that the Excise Inspector wanted to involve him in false case due to his faith. Since the report of the Ubaoro Branch Manager did not support the allegation of the appellant, the Bank Management could do little in the matter beyond advising the appellant that he could seek protection from the Police and the DistrictAdministration if he felt that his life or honour were threatened. The Management obviously could not be expected to take action against their customers or the Excise Inspector particularly in view of the negative report of the Branch Manager. An examination of the letters and the evidence led on this point indicates to me that the appel--lant for some reason of his own was anxious to remain at Sukkur and. Has evidently magnified some trivial incident at Ubaoro into a campaign to harrass and humiliate him.
The anxiety of the appellant to remain at Sukkur is evident from the fact that when the orders for his transfer to Ubaoro were issued, he did not proceed to Ubaoro, but joined his duties there on 6th August 1975 though he was relieved at Sukkur on 4th July, 1975. Even after joining at Ubaoro, he remained there barely for a week and he proceeded on leave for 15th and 16th August, 197'5, and again from 20th to 23rd August, 1975, whereafter he did not return to Ubaoro. It will thus be seen that he remained at Ubaoro only from 7th August, 1975 to 14th August, 1975. From his letters to the Zonal Head and the President of the Bank also it is clear that he wanted his transfer to Sukkur where he was pursuing his suit regarding seniority. The various com--plaints of harrassment at Ubaoro appear to be a clever device by the appellant to compel the Management of the Bank to re- transfer him to Sukkur. The fact that as early as at least 2nd September 1975, he had engaged an Advocate, whose address he has given in his letter of 2nd September, 1975, strongly supports this inference.
13. In the case of Mohammad Shamim v. Pakistan Tobbaco Co. (1975 SCMR 46) which deals with the legal requirements of an enquiry under Standing Order 15 (4) of the West Pakistan Standing Orders Ordinance and the material question in regard to such enquiry which is within the ambit of the Labour Court. In that case, a workman who was removed from service on the ground that he had committed theft challenged his dismissal by way of an application under section 25-A of Industrial Relations Ordinance. It was held by the Supreme Court :----- "(i) that the workman could not complain of copy of enquiry report not being furnished to him, if he was given written show-cause notice and was also furnished with the result of the enquiry report, and had not asked for a copy of the enquiry report; and
(ii) that the Labour Court is only concerned with the question whether the action taken against the petitioner was in accordance with law. The question whether the petitioner committed the theft was a question of fact and could only be enquired into by the Inquiry Officer."
14. Mr. Hassan Hamidi was unable to show me how the order of dismissal of the appellant was illegal because it was signed by the Zonal Head (Senior Vice-President) at Sukkur, Mr. Hadi Bux Menton. It is an admitted position that the appellant was appointed on 1st June, 1964 by the Deputy Managing Director of the Bank and that the Senior Vice-President is subordinate in rank to the Deputy Managing Director. However Mr. Hamidi has been unable to show me any law or rule appli- -cable to the employees of the National Bank of Pakistan, that their orders of termination can only be issued by the appointing authority or an authority higher in rank to the appointing authority. All that paragraph (4) of Standing Order 15 requires is that the approval of the employer be obtained in every case of dismissal of a workman. In the instant case, though the dismissal order has been signed by the Senior Vice-President of the Zone, the approval of the competent authority was obtained as appears from the letter of the Zonal Head to the appellant, dated 10th November, 1976.
The fact that approval of the competent authority was obtained is further established by the fact that the Second Show Cause Notice was issued by the Head Office at Karachi and has been signed by the Vice-President (Adorn.). I am, therefore, satisfied that the dismissal of the appellant was with the approval of the `employer' and the competent authority.
15. The next contention of the learned counsel for the appellant, that the Enquiry Officer was biased against the appellant and that the domestic enquiry was, neither fair nor impartial, is equally devoid of substance. This contention is founded on two assumptions. The first is that since the Enquiry Officer was a subordinate of Mr. Saeed Ahmad Kazi, the Senior Vice-President at Sukkur, against, whom the appellant had made complaints of gross misuse of the funds of the Bank, therefore, the Enquiry Officer cannot be said to be an independent or impartial person, and his proceedings and report were bound to be influenced by his superior and to be unfavourable to the appellant. The second assumption is that because there are corrections and handwritten portions at two places in the evidence of witness, Mr. Aftab Shaikh, the sage should be considered as unauthorised interpolations and a further cir--cumstance indicating the bias of the Enquiry Officer.
As regards the first limb of the argument, it is true that the appellant .Has produced a hand-- written letter, bearing the date 27th May, 1975, which he asserts is a copy of the letter written by him to the President of the Bank. This letter undoubtedly charges Mr. Saeed Ahmad Kazi with serious financial irregularities and misuse of funds of the Bank. However, there is no evidence to indicate that the contents of this letter, which has been marked confidential, ever came to the notice of Mr. Saeed Ahmad Kazi. Even if they did come to the notice of Mr. Kazi, it does not necessarily follow that he would on that account be bent on victimizing the appellant or getting him dismissed from service. On the contrary, there is evidence to show that Mr. Kazi wrote two letters to the Head Office, strongly re--commending the appellant for promotion. Furthermore, if Mr. Kazi had been a vindictive person and wanted to victimize the appellant, he would not have merely transferred him to Ubaoro, since transfer to an equal post cannot be considered a punishment but is a normal exigency of service, but would have taken a severe action against him, which admittedly he did not take. In any case, the mere fact that the Enquiry Officer was a subordinate of Mr. Kazi does not lead to the C inference that the Enquiry Officer must have been biased against the appellant and made adverse report against him on account of the Enquiry Officer being influenced by Mr. Kazi. Mr. Kazi was the' Head of the whole Sukkur Zone and since the appellant was working in that Zone, the Enquiry Officer had to be appointed from that Zone. The Enquiry Officer Mr. G. A. Soomro, was the Senior Manager (Development) in the Sukkur Zone and thus a responsible Officer. I have gone through the record of the domestic enquiry and I find that he has conducted the proceedings fairly and honestly. The fact that he allowed the appellant to put as many as 64 questions to the sole prosecution witness, Mr. Aftab Shaikh, though quite a few of these questions were repetitive and irrelevant, and subsequently even allowed the appellant to put further questions to Mr. Aftab Shaikh, indicates his keenness to give full and proper opportunity to the appellant to defend himself.
16. As regards the allegation of interpolations in the statement of Mr. Aftab Shaikh before the Enquiry Officer, I find that though there are-corrections at two places in the statement but these corrections have been made by the witness in his own hand, after his statement was typed and the same was read over to him and he was asked whether it was correct. These corrections are comparatively of a minor nature and do not in any manner alter the tenor of the evidence of the witness. It may be noted that the appellant has himself signed at the foot of these corrections indicating that they were made in his presence. I may point out here that similar corrections in the hand of the appellant appear in the appellant's statement supporting the inference that after the state--ment of a witness was recorded, he was asked to read the same and make necessary corrections therein. Nothing therefore, turns on these corrections.
17. A plea has also been raised in the memorandum of appeal that the appellant should have been given a right of personal hearing before an authority higher than the Senior Vice-President, but this was not done in contravention of the Service Rules and the recommenda--tions of the Wage Commission's report applicable to the appellant. It may be appointed out that the Vice-President
(Admn) at the Head office while issuing the second show-cause notice had asked the appellant whether he wanted to be heard by any authority at Sukkur, but the appellant declined that offer and demanded to be given a personal hearing before an authority superior to the Senior Vice- President. It would appear that by that time Mr. Kazi was no longer the Senior Vice---President at Sukkur and the post was being laid by Mr. Hadi Bux Memon, who had ultimately issued the orders of, the appellant's dis--missal. It was thus quite unreasonable for the appellant to demand a personal hearing by an officer superior to the Vice-President and the Bank was within its rights to refuse his request. There is no provision in the Rules or the Wage Commission's report giving right of personal hearing at the time of second show-cause notice before an authority higher than the one which had issued the charge-sheet. The right of personal hearing by the higher authority under the National Bank of Pakistan (Staff) Service Rules, 1973 (rule 42) is given only in the case of an appeal or application for review, but since the appellant did not file a departmental appeal or application for review flit directly approached the Labour Court, he had no right of personal luring before an authority higher than the Senior Vice-President and rule 42 is not attracted to his case.
18. The upshot of the above discussion is that I find no merit in this appeal, which is accordingly dismissed with costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.