' GULZAR AHMED, J.--- By this appeal appellant has challenged the order, dated 16-9-2004, passed by the learned Presiding Officer Sindh Labour Court No,VI, Hyderabad, whereby respondents' grievance petition has been allowed and directed his reinstatement in service with full back benefits.
2. By consent of the learned counsel for the parties the appeal has been heard for its final disposal at this stage.
3. Brief facts of the matter are that the respondent was issued charge-sheet dated 22-1-2002 alleging therein that he has misappropriated a sum of Rs,50,000 deposited by account-holder Roopchand and Rs,50,000 deposited by Shambo account-holder in connivance with cashier Ghulam Hussain. The respondent submitted his reply dated 28-1-2002 denying the allegation contained in the charge-sheet. The appellant was not satisfied with the reply and constituted an inquiry. The respondent participated in the inquiry. The Inquiry officer after inquiry submitted his report in which the respondent was found guilty of the offence. Consequently, the appellant through letter dated 4-6-2002 dismissed the respondent from service. The respondent served grievance notice and thereafter filed the grievance petition in the VIth Sindh Labour Court, Hyderabad. The grievance petition was resisted by the appellant who filed its reply statement. The respondent filed his own affidavit in evidence and was cross-examined by the counsel for the appellant. The affidavit in evidence of appellant witness was filed who was cross-examined by the counsel for the respondent. After hearing the arguments of the counsel for the parties impugned order was passed by the learned Labour Court.
4. Mr. Mehmood Abdul Ghani learned counsel for the appellant has assailed the impugned judgment on the following points:--
(1) that charge of misappropriation stands proved against the respondent;
(2) that the respondent was not a workman and thus, could not maintain grievance petition in the Labour Court;
(3) that the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 has no application as there were only five employed persons in the Branch;
(4) that the Labour Court at Hyderabad had no territorial jurisdiction as the respondent was employed and dismissed from the Branch situated in the Nawabshah Zone, which attracted territorial jurisdiction of the Labour Court at Sukkur;
(5) that the matter rdgarding quantum of punishment is the discretion of employer;
(6) that there was no evidence to show that respondent has remained unemployed to entitle him to the back benefits as granted by the Labour Court.
5. He has cited large number of authorities in support of his submissions.
6. On the other hand Mr. Mehmood Hussain Siddiqui learned counsel for the respondent has supported the impugned order passed by the learned Labour Court and has stated that the respondent was a workman and Standing Order Ordinance has application and that the grievance petition was rightly filed in the Labour Court at Hyderabad. He has also relied upon certain judgments in support of his submission.
7. I have considered the submissions of the learned counsel and have gone through the record.
8. The perusal of record shows that the charge against the respondent was that he has misappropriated cash deposited for credit in customers' account in connivance with Cashier Mr. Ghulam Hussain vide a pay-in-slip No,4023135 dated 18-10-2001 for Rs,50,000 and payin-slip No,8283840 dated 13-1-2001 for Rs,50,000. The earlier pay-inslip was in respect of account of Mr. Roopchand while the latter one was in respect of account of Mr. Shambo. The respondent submitted his reply, in which, he denied the allegation against him. In the inquiry, one Nazeer Ahmed Memon, A.V.P., Incharge HRD Regional Office, Nawabshah appeared and recorded his statement from the side of prosecution. In his statement he stated that he has received information from Audit Department that respondent has misappropriated the sum mentioned above and has produced both the pay-in-slips having counter signatures of the respondent so also cash received sheet, which does not contain the signature of the respondent. This witness of prosecution was not cross-examined by the respondent, who thereafter recorded his own statement and produced Mr. Alley Wali Manager and Mr. Roopchand as his witnesses.
9. The respondent in his statement before the Inquiry officer has stated that Cashier Ghulam Hussain has sent to him pay-in-slips for his counter signature and as the Manager was not available on his seat, he has signed them and returned to the Cashier. He has stated that the Cashier had subsequently torn the slips, of which he had no knowledge and when this fact came to light, he himself brought the pay-in-slip from Mr. Roopchand and handed over the same to the Manager. In his cross-examination he has stated that cash was received by Cashier Ghulam Hussain and he has only countersigned the slips. He was asked the question as to why these slips were not entered in the cash received sheets and were not signed by him, he has replied that at that time the slips were entered in the sheets; but they were torn by the Cashier.
10. The admitted position that appears from the above record is that when the Cashier receives the cash from the customer, he signs the payin-slip and also enters the cash received amount in the cash received sheet and both pay-in-slip and the cash received sheet are forwarded for counter signature either to the Manager or in his absence to the respondent. While the respondent has countersigned the two pay-in-slips, there is no mention in the evidence of the respondent before the Inquiry Officer that he has also signed the cash received sheets in respect of the two pay-in- slips. His only version is that the amount of the slips were entered in the cash received sheets, but they were subsequently torn. He does not say that he has signed the cash received sheets. The result of this evidence on record is that the respondent did omit to sign the cash received sheets of the two pay-in-slips mentioned in the charge-sheet. Whether this fact in itself will lead to a conclusion that the respondent was in league with Cashier Ghulam Hussain to cause misappropriation of the two sums, in my view, such could not be the case for the simple reason that the amount in respect of account of Mr. Roopchand was subsequently deposited by the Cashier Ghulam Hussain as stated in the respondent's reply dated 28-1-2002 to the charge-sheet, which has not been controverted by the appellant. The amount in respect of account of B Mr. Shambo was also deposited but it is nowhere alleged that the respondent has made this deposit.
The second reason for this view is that the respondent himself has collected the pay-in-slip from account-holder Roopchand and produced it before the Manager of the branch. Had the respondent misappropriated the amount, he would have not collected the pay-in-slip from account-holder Roopchand and produced before the Manager. This, however, does not end the matter as the non-signing of the cash received sheets by the respondent itself reflects upon his working inasmuch as, it has aided the Cashier Ghulam Hussain in misappropriating the amount deposited by the two account-holders and, therefore, cannot altogether be considered blameless.
Thus, there is an element of misconduct on his part. It is admitted position that Cashier Ghulam Hussain has been removed from service for misappropriation of funds.
11. As regards the arguments of the learned counsel for the respondent that the respondent was a workman, it may be noted that the respondent in para.5 of his affidavit has specifically stated that he was doing clerical work of posting in ledger, preparation of Demand, Drafts, Pay Orders, maintaining cheque book register, specimen signature cards, issuance of cheque books, verification of balance of account-holders and preparation of returns etc. This specific description of respondent's working was not challenged in cross-examination. In the case of Chief Engineer, Irrigation v. Mazhar Hussain PLD 2004 SC 682, it is laid down as a rule that if the statement of a witness, which was material to the controversy of the case is not challenged in cross-examination then unchallenged statement will be given full credit and will stand accepted, unless disputed by reliable, cogent and clear evidence. In the present case the only evidence that has been produced by the appellant to claim that respondent was not a workman is that he was paid salary of Rs,21,662 and that he was having authority of signing. The law in this regard is very clear, which has been repeatedly laid down by the apex Court is that the determination of the question as to whether the person is a workman or not, is to be considered on the basis of the work which he actually performs and not on the basis of salary or emoluments, which D being paid to him. His authority of signing also does not show that the respondent was doing work of supervisory or managerial nature. I, therefore, find that the respondent was a workman.
12. As regards the next arguments of the learned counsel for the appellant that Standing Order Ordinance was not applicable for the reason that the respondent who was working in a branch, which employed only five persons. This aspect of the matter stands already decided by a Division Bench of this Court in the case of Nazir Ahmed and others v. Muslim Commercial Bank and others 2004 PLC 1, which was also followed by a Single Judge of this Court in unreported order, dated 7-11- 2003 in R.A. No,52 of 2003 under section 48(3) of I.R.O.
2002. This objection of the appellant's counsel in the light of above law is overruled.
13. As regards the submission of learned counsel for the appellant that the Labour Court at Hyderabad had no territorial jurisdiction, the perusal of letter of dismissal shows that it was issued by the appellant's Circle office at Hyderabad. Though the respondent may have been employed at the appellant's Oderolal Branch, which is in Nawabshah, which will attract territorial jurisdiction of Labour Court at Sukkur, but the very fact that the dismissal letter originated from Circle Office, Hyderabad of the appellant will give cause of action to the respondent in Hyderabad also and the Labour Court at Hyderabad will have territorial jurisdiction to entertain the grievance petition of the respondent.
14. In view of the above discussion, as the conduct of the respondent has not been found to be altogether overboard and keeping in view that the appellant is a banking company dealing with public money where a small omission leads to clossal loss to the Bank and cause serious embarrassm ent, it will not be in the fitness of thing to impose the respondent on the appellant by reinstating him in employment. I, therefore, do not agree with the impugned order where the respondent has been directed to be reinstated in the employment of the appellant. The impugned order of the learned Labour Court is, therefore, set aside. In my view, in place of dismissal of the respondents the imposition of penalty of compulsory retirement will meet the ends of justice, as the respondent will be able to receive all his retirement and pensionary benefits from the appellant.
15. This appeal with the above modification in the penalty imposed upon the respondent is disposed of.