1. ' ZIA PERWAZ, J.--- I intend to decide these appeals by this common judgment as the question of law and fact involved in each appeal is identical.
2. ' These appeals are directed against the impugned judgments of Sindh Labour Court-VII at Sukkur dated 30-6-2005 in Grievance Application No,4 of 2003 and judgment dated 29-6-2005 in Grievance Application No,3 of 2003 allowing applications under section 25-A of I.R.O., 1969.
3. ' Facts necessary for disposal of Labour Appeal No,3 are that the respondent Nazir Ahmed Pathan while serving as Cashier at the Ghotki Branch of Muslim Commercial Bank Limited is alleged to have committed misconduct and misappropriation. An amount of Rs,13,049 on account of telephone bills was received but was not credited in the account of Officer Telephone Revenue. The charge-sheet was issued on 22-7-1997. In reply the respondent Nazir Ahmed took the defence that the amount was kept by him in his drawer from where it was stolen. On finding the reply to be unsatisfactory respondent was directed to participate in enquiry vide appellant's letter dated 31-7- 1997.
4. ' Precisely stating facts of Labour Appeal No,4 of 2005 are that the respondent Abdul Razak Pathan faced departmental proceedings in pursuance of letter containing charges dated April 1, 1997 wherein it was alleged that while discharging his duty as a Cashier at Adda Murid Shakh Branch of MCB Ltd., he pocketed a sum of Rs,80,000. On 2-2-1997 consumer Ali Nawaz who is maintaining PLS Account 10 presented cheque amounting to Rs,1,85,000 for cash but instead of paying full amount, respondent paid him Rs,1,05,000 and ensured him that balance amount of Rs,80,000 has been credited to his account, but he did not issue cash credit slip of Rs,80,000 to the consumer, thus, he embezzled the said amount. On 7-2-1997 said Ali Nawaz issued cheque for Rs,75,000 of his PLS Account 10 which respondent posted in ledger against bogus/flying credit entry of Rs,80,000 in the account whereas no record of such entry of like amount existed in relative day book. In order to remove the evidence and detection of fraud, respondent torn out the half page of PLS Account 10 in connivance of Manager Aijaz Ali Kalwar. It is also alleged that the respondent had also written a fictitious entry of Rs,35,000 on 1-2-1997 in CD Account 501 of Syed Ghulam Ali Shah and such entry was not recorded in relative day book.
5. ' The respondents participated in the enquiry proceedings where evidence was duly recorded after providing an opportunity of cross-examination to the respondents. Charges against the respondents were proved. Dismissal letters were issued to the respondents on 10-1-1997 and 31-7- 1997 respectively. The respondents served grievance notices addressed to the General manager, MCB Sukkur and President MCB followed by applications under section 25-A of I.R.O., 1969.
6. ' After recording of evidence learned Labour Court declined to allow preliminary objections by the appellant and was pleased to order for reinstatement of the respondents. However, learned Court awarded penalty of postponement of promotion to the respondent Nazir Ahmed for a period of three years from the date when his promotion became due.
7. ' Heard learned counsel and perused the record.
8. ' Learned counsel for the appellant contended that the petitions of the respondents under section 25-A of I.R.O., 1969 are not maintainable as the respondents have failed to allege in their Grievance petitions or affidavits-in-evidence that their dismissal was in connection with any industrial dispute. On this proposition of law, learned counsel placed his reliance on the case of Trustees of the Port of Karachi v. Muhammad Saleem 1994 SCMR 2213, Board of Governors Aitchison College Lahore v. Punjab Labour Appellate Tribunal and others 2001 SCMR 1928; that the respondents were allowed full opportunity to defend the charges against them and their replies to various charge- sheets were duly C considered by the Enquiry Officer and employees never asked for further personal hearing. The Honourable Supreme Court in case of United Bank Limited v. Raja Ghulam Hussain 1999 PLC 106 was pleased to lay down principle that the domestic enquiry against employee could not be described as illegal or without jurisdiction in circumstances. Learned counsel further contended that the bank acts as custodian of the public money and the amount whatsoever is deposited, is required to be credited to the account of customers without any delay: No sooner the trust reposed by the customer on the bank is shaken the banks would not be M a position to run its business, therefore, for the reason that at a subsequent stage, the amount was deposited, would not constitute a mitigating circumstance in favour of the respondents to hold that they are entitled for reinstatement into service; that it is well-settled that as soon as misappropriation of public money is established, the delinquent shall be deemed guilty of embezzlement, therefore, no leniency in this behalf can be shown to him. The misappropriated amount on irregularity big or small and past unblemished record is irrelevant. On his point, learned counsel placed his reliance on Izzat Baig Awan v. Habib Bank Limited 2004 SCMR 98, Shahid Masood Malik v. Habib Bank Ltd. And another 2003(?) T.A. (Service) 180, Janatha Bazar v. Secretary Shanki Noukarana Sangh AIR 2000 SC 3129 and the unreported decision of this Court in C.As. 296 to 299 and 301 of 1992. Learned counsel further-argued that the affidavit-in-evidence filed in Labour Court is also defective, as it nowhere mentions how much is in personal knowledge of the employee and how much based on information or belief stating reasons thereof. In support of his contention, learned counsel placed his reliance on the case of Habib Bakhsh v. Zahur-ul-Hassan PLJ 1986 Karachi 190; that the notices of grievance were served on the General Manager, MCB who is not a legal entity. Likewise, grievance notices addressed to the President of the Bank were also illegal as he is not the appointing authority of respondents. The grievance notices not in accordance with law were thus, not maintainable. The Bank employee should first serve departmental appeal before serving grievance notice. In the instant case no departmental appeals were served nor claimed hence even on this ground grievance petitions in Labour Court were not maintainable. On this point reliance has been placed on Secretary, B&R, Government of West Pakistan and 4 others v. Fazal All Khan PLD 1971 Kar. 625, Nagina Bakery v. Sui Southern Gas Limited and 3 others 2001 PLC (C.S.) 760, Khushal Khan v. Muslim Commercial Bank and others 2002 SCMR 943, A.B.L. Of Pakistan v. Bashir Khan 2006 PLC 39, United Bank Ltd. And others v. Raja Ghulam Hussain and others 1999 PLC 106, 1985 CLC 1525 and Muslim Commercial Bank Ltd. I.I.
9. Chundrigar Road, Karachi v. Sindh Labour Appellate Tribunal Karachi and others 1984 PLC 1149.
10. Learned counsel went on to state further that the decision of the Labour Court is based on a decision of the Honourable Supreme Court reported in U.B.L. v. Iftikhar Hussain and another 2003 PLC (C.S.) 497, however, in, cases of Karamat Hussain v. Water and Power Development Authority 1998 SCMR 779 and Muhammad Riaz v. Sindh Labour Appellate Tribunal Karachi and others 1993 PLC 301 the superior. Courts held that the list of acts or omission mentioned in the Standing Order 15 of Ordinance, 1968 are only enumerative but not extensive. Conduct which is prejudicial to good conduct is a misconduct in law as held by the Supreme Court in Karamat Hussain v. Water and Power Development Authority through Member (Power) WAPDA Lahore and another 1998 SCMR 779 and unreported decision of Honourable Supreme Court in C.P. 2636/L of 2004 titled Shaukat Ali and others v. Allied Bank of Pakistan; that even the period of limitation would reckon for charge-sheet from date of detection of fraud or misappropriation as held by the Honourable Supreme Court in Muhammad Yousaf Khan v. Habib Bank Limited 2004 SCMR 149 and 2004 Tribunal Decision Labour
383. Lastly, learned counsel argued that in view of decision of the Honourable Supreme Court in Civil Appeal No,46 of 2004 titled MCB v. Khushal Khan which is to the effect that if an employee is guilty of misappropriation of the amount his dismissal is to be maintained, the instant appeals may be allowed and impugned judgment and reinstatement of respondents may be set aside.
11. ' Mr. Baloch, learned counsel for the respondents submitted synopsis of written arguments wherein he agitated that the grievance petitions were well within time; that in the evidence led before the Labour Court the charge-sheets were proved to be barred by time, therefore, the belated charge- sheets are also not sustainable under the law; that the respondent Nazir Ahmed had not misappropriated the amount of telephone bills collected by him from the consumers as the same remained lying in his drawer but was stolen by someone else. However, the said amount was paid by the respondent's uncle in the bank so also respondent .Abdul Razak Pathan had also not caused any pecuniary loss to the bank, as such bank suffered no loss and no charge of misconduct has been established against them; that the learned trial Court following dictum laid .Down in case of U.B.L. v. Iftikhar Hussain and another 2003 PLC (C.S.) 497 rightly reinstated the respondents into service. Hence, labour appeals are liable to be dismissed.
12. ' The grievance petitions and affidavits-in-evidence do not reveal that the respondents have been dismissed in connection with any dispute nor they have claimed that their dismissal related to any industrial E dispute attracting provisions of section 25-A of I.R.O., 1969. Under the circumstances the petitions under I.R.O. Were not maintainable. In case of Board of Governors Aitchison College and Trustees of Port Karachi (supra), it has been held by the Honourable Supreme Court that an employee has to satisfy that he is worker or workman either under the provisions of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance; 1968 or Industrial. Relations Ordinance, 1969 and his grievance relates to industrial dispute.
13. ' The ground raised by Mr. Mahmood Abdul .Ghani learned counsel for the appellant as to the question .Of each branch of bank being a separate establishment for the purpose of attracting provisions of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 has been examined by the apex Court in Appeal No,206 of 1998 National. Bank of Pakistan v.
14. Punjab Labour Court and others. The business of Banking is based entirely upon trust and confidence and financial transaction call for much high degree of care in performance of duties, by the employees of Bank. The Honourable Supreme Court in case of Izzat Baig Awan (supra) has been pleased to observe that the institution of bank is one of trust reposed by the public at large and they, in the peculiar nature of the duties of their employees, cannot afford the breach of trust by retaining in service people who are involved in criminal cases and whose absence therefrom, was not only obvious but unavoidable on the part of the official concerned.
15. ' Once a fact of misappropriation is proved against an employee the misconduct alleged against him stands irrespective 'of the quantum of amount. It is not necessary that only misappropriation of a large amount would attract the prescribed penalty of dismissal while lesser may, not attract such penalty. The view taken by the Honourable Supreme Court of India in case of Divisional Collector, KSRTC v. A.T. Mane AIR 2004 SC 4761 may be referred wherein it has been held that when a person is found guilty of misappropriating corporation's fund there is nothing wrong in the corporation losing confidence or faith in such a person and awarding a punishment of dismissal.
16. ' Perusal of record reflects that notices of grievance were served on the General Manager. In case of A.B.L. Of Pakistan (supra) it has been held that grievance notice not in accordance with law as such grievance petition was not maintainable. In case of Muslim Cofnmercial Bank, I.I. Chandrigar Road (supra) it has been held that each bank employee to prefer departmental appeal before invoking section 25-A of Act.
17. ' The main thrust of Mr. Baloch, learned counsel for the respondents is that the Labour Court has rightly reinstated the respondents into service while following the dictum laid down in case of UBL v.
18. Iftikhar Hussain (supra). In that case the allegation against an employee was that of violation the Staff Services Rules whereas in the instant case the charge of misappropriation and misconduct stands established against the respondents who misappropriated the amount and G used for personal gain even temporarily which constitutes criminal offence, thus, the authority is quite distinguishable from the facts and circumstances of the instant cases.
19. ' The learned Labour Court granted relief to respondents on the premise that the bank had not suffered any pecuniary loss and the amount was deposited later on. It is to be observed that the bank acts as custodian of the public money and the amount whatsoever is deposited is required to be credited in the accounts of customers without any delay and no sooner the trust reposed by the customer on the bank is shaken the bank would not be in a position to run its business, therefore, merely for the reason that at a subsequent stage the amount was deposited, would not constitute a mitigating circumstance in favour of the respondent to hold that he is entitled for reinstatement into service. It is settled that as soon as misappropriation of public money is established, the delinquent shall be deemed guilty of embezzlement, therefore, no leniency in this behalf can be shown to him. In the instant cases as well respondents have been found misappropriating public money from the bank may be temporarily but as far as charge is concerned it stands established without doubt. There is no such misconduct as temporary misappropriation. The charge is proved once misappropriation is established. The employers have the right to proceed according to law and award penalty as prescribed by law. Although the Labour Court has jurisdiction to examine the cases as well as enquiry proceedings both on merits as well as to legality of the same but such examination would not amount to substitute the findings' of Enquiry Officer on his own findings without any tangible material as has been held in case of Mukarram Shah v. Sindh Labour Appellate Tribunal and others 2005 PLC 14.
20. ' For the foregoing reasons, no ground for interfering with the findings of Enquiry Officer followed by letters of termination therefore, made out. Thus, both the appeals are allowed as a result whereof the judgments of Sindh Labour Court VII, Sukkur dated 29th June, 2005 and 30th June, 2005 are set aside and the parties are left to bear their own costs.