' The Muslim Commercial Bank has filed L.A. No,35 of 2004 against the judgment and order of the Presiding Officer Labour Court Malakand at Saidu Sharif, Swat dated 9-10-2004 by which the Court accepted the grievance petition filed by the respondent Shamsul Aulia, Ex. Officer Grade IIIMuslim Commercial Bank (MCB) Bisham, District Shangla and set aside the order of dismissal from service dated 14-9-1998 and reinstated him with full back-benefits. Shamsul Aulia had filed cross- objection No,38 of 2004 questioning the finding of the Labour Court that the inquiry was held in accordance with the law. In the cross- objection however no further relief has been claimed.
2. The action against Shamsul Aulia, (hereinafter referred to as therespondent) arose from a case of misappropriation of a total of Rs:11,82,300 encashed from the Bisham Branch of MCB through 31 cheques from January, 1997 to October, 1998. The main charge was against the Manager of the Bank Attaullah who was directly charged for misappropriation of the amount whereas the respondent being a-cashier of the Bank was alleged to have been aware of the embezzlement and had concealed the fact from the management of :the Bank and that he made payments in violation of the Bank staff .Rules arid ,thus was guilty of misconduct. '
3. Separate inquiries were held against Attaullah and the respondent. Bothof them were found guilty who served grievance notices on the employer and eventually filed separate grievance petitions before the .Labour Court at Swat. The petitions were dismissed on the ground that both the employees, being officers of the Bank, did not fall within the definition of workman. On appeal, the Chairman LabourAppellate Tribunal N.-W.F.P. Remanded the cases to the Labour Court for determining the question of maintainability after recording evidence. The petitions were once again dismissed on 30-1-2001. The two employees again filed appeals and this time the Chairman Labour Appellate Tribunal N.-W.F.P. Held the employees to be workmen and remanded the cases to the Labour Court for deciding the grievance petitions on merits, it seems Attaullah did not press his case further and admittedly he has deposited the entire misappropriated amount. The present respondent pursued his grievance petition and consequently was reinstated by the impugned order,
4. Qazi. Muhammad Anwar, Advocate, appeared for MCB and Mr.. Ijaz Anwar, Advocate, represented the respondent. The learned counsel fore the Bank submitted that though there is no allegation of misappropriation by the respondent, he had facilitated' the misappropriation by his.Failure to obtain on the cheque the signature of the person who presented the cheque before making payment in violation of the Bank's instruction. Further that the respondent being a local was acquainted with the clients, yet made payments without verifying the identity of the person presenting the cheque. The learned counsel referred to the relevant provisions in the Operations Manual of MCB which.Incorporates, inter alia, the procedure that is to be followed by the payments of cheques. The learned counsel further contended that the finding of the Inquiry Officer on the question of fact regarding misconduct by the respondent cannot be interfered with by the Labour Court unless such finding was perverse or illega1 or the inquiry proceedings were defective. In support of this contention the learned counsel relied upon Raja Javed Akhtar v. Executive Vice- President UBL (1998 SCMR 212) and Muhammad t5hamim v. Pakistan Tobacco Company (1975 SCM R 46).
4-A. In response to the above contentions the learned counsel representing the respondent argued that there was no allegation of misappropriation againstthe respondent. That the Manager of the Bank, Attaullah had accepted his sole responsibility for misappropriating the amount in question.That there is no positive evidence that the respondent was aware that the amounts were being fraudulently misappropriated through the cheques. The learned counsel cited the case of Allied Bank of Pakistan v. M. Zaheerul Hassan (1990 PLC 238) for the proposition that mere failure to follow the rules would not per se amount to misconduct. As regards the scope of the jurisdiction of the Labour Court to examine the factual aspect of the case the learned counsel relied upon a judgment of the Hon'ble Supreme Court in the case of Cresent Jute Products Ltd. v.
Muhammad.Yaqub etc. (PLD 1978 SC 207).
5. It is not the bank's case that the respondent has misappropriated the amount or that Attaullah, the Manager, had misappropriated the amount with the connivance of the respondent. In fact separate inquires against the respondent and Attaullah were held. Whereas Attaullah as charged for misappropriation, the allegations against the respondent in the charge-sheet were that having knowledge of the misappropriation he failed to inform the management and that he had violated the bank staff rules. As stated earlier Attaullah had already made good the loss to the bank and had abandoned his legal remedy against the Bank. The only serious allegation against the respondent is that he had violated the Bank's instructions regarding obtaining signature from the presenter of the cheque before making payments. Such requirement is mentioned in clause (v) of para 1.18.03 on page 116 in Chapter 18 of the operations manual of MCB, The provision reads as under:-- "(V) The cheque then will be delivered to the Cashier for payment, who would make the payment after surrender of token and obtaining signature of the presenter. This signature obtained must be tallied with the presenter's signature already obtained at the time of issuance of token."
6. The above provision does require the cashier to obtain the signature of the presenter of the cheque before making payment for the purpose of tallying the signature of the presenter obtained when the cheque was first presented for the issuance of token for payment. The respondent in his statement before the Inquiry Officer stated that he did not obtain the signature of the presenter of the cheque at the time of making payment as already there were two signatures affixed on the cheque. According to the judgment in the case of Allied Bank of Pakistan v. Muhammad Zaheerul Hassan, ibid, violation of a rule would not by itself amount to misconduct, however it is to be seen as to whether the violation of the above instruction by the respondent facilitated misappropriation of the amount by Attaullah.
7. The Inquiry Officer found the respondent responsible for facilitating the misappropriation on the ground that he was a local, and, besides him, there were only two other officers serving in the Branch.That, therefore, it was not possible that the respondent should not have been aware of the encashment of as many as 31 cheques fraudulently. The learned counsel for the Bank also referred to the cross-examination of the respondent before the Inquiry Officer where he was specifically asked that he had arranged a meeting between one of the account holders Jamroz Khan, from whose account some of the said cheques had been encashed, with the auditors who were probing into the misappropriation. The learned counsel had, therefore, contended that the said account holder was personally known to the respondent. In response to the saidquestion the respondent stated that he did not remember whether he had made payments to the said person or to some one else. He however, categorically responded to another question that he had not made payments to the Manager Attaullah on any of the cheques. He further clarified that since there were already two signatures on the cheques, he did not deem it necessary to obtain a 3rd signature. The 31 cheques in question had been drawn for different amounts on 7 PLS accounts. The respondent was neither asked in cross-examination before the InquiryOfficer:nor, while testifying before the Labour Court as to whether hehad known any of the account-holders personally. There was even no suggestion made to that effect. None of the account-holders was produced either before the Inquiry Officer or before the Labour Court in order to testify that the respondents were personally acquainted with them. The Bank has also not clarified as to whether the presenter of the cheques were the account holders themselves or bearer cheques issued apparently for payment to somebody else. The Inquiry Officer gave the following reasons for holding that the respondent was aware of the misappropriation but had concealed the same:-- "In a small village Branch of 3 persons it is not possible to keep such a heavy misappropriation in camera. Besides this, Shamsul Aulia (accused) is a local person and most of the clients might be known to him by face."
8. The Inquiry Officer drew his conclusion from the above observations. Clearly the same is based on surmises and conjectures and not on any evidence. It has not been proved as a fact that any of the customers was known to the respondent and that the payments were made to the customer.
9. In the case of Muhammad Shamim decided on 12-9-1974 the Hon'ble Supreme Court had held that a question of fact determined by an Inquiry Officer as to whether or not an employee had committed the offence charged with cannot be gone into by the Labour Court which is only concerned with the question as to whether the action was in accordance with the law. In that case the Inquiry Officer had found that the employee had committed theft and thus the Hon'ble Supreme Court held that it was not open to the Labour Court to re-determine this question. The judgment was delivered in the case by the Hon'ble Mr. Justice Wahid-ud-Din. However in the latter judgment, Cresent Jute Products Ltd, ibid, decided on 28-6-1978, authored by the Hon'ble Mr. Justice Karam Ilahi Chauhan, and the Hon'ble Mr. Justice Wahid-udDin, also graced the Bench, it was held as follows:-- "The 'words 'shall go into all the facts of the case'. Clearly signify that the Junior Labour Court has full and complete powers to enter even into questions of fact and to arrive at itsown conclusions regardless of there being no illegality of procedure in the domestic proceedings. By use of these words the intention of the Legislature appears to provide a double check, one in the form of a domestic enquiry to be held by an employer and the other in the form of a judicial determination by the Junior Labour Court itself."
10. The earlier judgmentof the Hon'ble Supreme Court may have turned on its own facts. However since the Cresent Jute Products Ltd. Case is later in time and lays down a clear enunciation of the law on the extent of which the Labour Court can determine question of fact the principle laid down therein is to be followed. Even on the touchstone of Muhammad Shamim's case the finding of the Inquiry Officer cannot be sustained, which as stated above is based not on evidence but on presumptions.
11. Although the Bank has been able to establish that the respondent had not followed the instructions regarding obtaining of the signature of the presenter, but has failed to show as to how such failure had facilitated the misappropriation by the Manager Attaullah. Thus the impugned judgment and order of the Labour Court is upheld. The appeal is dismissed and so also the cross- objection as having become infructuous.