' SARMAD JALAL OSMANY, J.---This appeal impugns the judgment of the learned Sindh High Court dated 4,6.2004, whereby the appeal filed by the respondent-Bank was allowed and the judgment dated 26.6.2000 of the learned Labour Court was set aside, with the result that the order of appellant's dismissal from service of the respondent-Bank .Vas maintained.
2. Briefly stated the facts of the matter are that the appellant was employed as a cashier in the Anaj Mandi Branch of the respondent at Larkana. He was sent for collection of cash from the Marich Bazar Branch, Sukkur from where he obtained Rs, 35 million. However when he came back to Larkana instead of handing over the cash to the Chief Cashier, he himself took the cash to the strong room and started disbursing various amounts. Subsequently; he announced that there was a shortage of Rs, 2 million from the amount of Rs, 35 million entrusted to him. Accordingly the appellant was issued a show-cause notice and after the domestic inquiry he was found guilty of the charges against him resulting in his dismissal. The appellant filed -a departmental appeal against the same order which was not entertained by the respondent. He then served a grievance notice and no reply having been received, he moved the learned Labour Court under section 25-A of the I.R.O. The said Court after a full-fledged inquiry, reinstated the appellant with back-benefits against which the respondent moved the learned Sindh High Court and as noted above, the findings of the learned Labour Court were set aside and the dismissal order was upheld.
3. Mr. Shabbir Ahmed Awan, learned Advocate Supreme Court in support of the appeal has firstly submitted that the F.I.A. Had investigated the case and the appellant was acquitted by the learned Special Court (Offences in Bank), under section 249-A, Cr.P.C. Consequently, as he was acquitted on the same charges by a competent Court of law hence he could not be terminated for which proposition. Learned Advocate Supreme Court has relied upon Attaullah Shaikh v. WAPDA and others (2001 SCM R 269).
4. He has further argued that the competent authority had dismissed the appellant who was the Regional Manager, however the appeal was filed by the Bank which is in contravention of section 37 of the 1.R.O. Since only an aggrieved party could file an appeal. Hence per learned Advocate Supreme Court the appeal being incompetent the findings are fit to be set aside on this ground alone. In support of this submission, he has relied upon Khushal Khan v. Muslim Commercial Bank Ltd. And others (2002 SCM R 943) and Khalid Saeed v. Shamim Rizvan and others (2003 SCM R 1505).
5. Learned Advocate Supreme Court has also submitted that in the dismissal order served upon the appellant dated 17.4.1999, he has not been directed by the bank to reimburse the shortfall of Rs, 2 million, which would denote that he has been found guilty of negligence only for which the punishment under Standing Order 15(1) of the Standing Orders Ordinance, 1968 is at the most a fine.
6. Learned Advocate Supreme Court has fully supported the finding of the learned Labour Court and has directed our attention towards the cross-examination of the Chief Cashier before such Court, wherein he has admitted that various amounts were' overwritten by him in the rough cash book denoting the shortfall of Rs, 2 million. In this regard, he has further submitted that the same amount has been withheld from the dues of the Chief Cashier, who has since retired from service which only goes to show that the respondent has held the Chief Cashier responsible of the shortfall, whereas the appellant has been victimized.
7. Mr. Shahid Anwar Bajwa, learned Advocate Supreme Court appearing for the respondent to the contrary has submitted that insofar as the contention of acquittal in a criminal case is concerned, this has no bearing on the departmental proceedings and both could proceed simultaneously or one after the other as held by, the learned High Court. In support of this proposition he has relied upon Muslim Commercial Bank Limited v. Abdul Jabbar (2001 PLC 721), where this Court has come to the conclusion that each case is to be decided on its own merits and been where the employee may have been acquitted from the criminal charges, he might be found to be negligent or not vigilant otherwise in discharge of his duties on account of which the incident in question could have been prevented or avoided for which he may be proceeded against through disciplinary proceedings.
8. Insofar as the competency of the appeal is concerned, learned Advocate Supreme Court has submitted that the bank is certainly an aggrieved party because it was a party before the learned Labour Court and hence the appeal filed by its duly constituted Attorney to which no exception can be taken. In this regard he has referred to H.M. Sava & Co., Karachi v. Wazir Ali Industries Ltd , Karachi and another (PLD 1969 SC 65).
9. Insofar as the merits of the case are concerned, learned Advocate Supreme Court has submitted that admittedly the appellant received Rs, 35 million in cash from the Sukkur Branch of the respondent-Bank and gave valid receipt for the same. However, instead of handing over the cash to the Head Cashier at his own Branch at Larkana he started disbursing various amounts himself, he gave Rs, 15 million to the Shandadkot branch and Rs, 1 million to his own Branch. Finally, when he handed over the amount to the Head Cashier, Rs, 2 million was found short. In this connection learned Advocate Supreme Court has pointed out that the appellant has taken different ground to justify his non-involvement in the disappearance of Rs, 2 million, as per reply to the show-cause notice and his grievance application before the learned Labour Court as well as his evidence before the said Court. According to learned counsel, the sum total of the entire exercise is that the appellant could not explain the shortfall and although he may not have defalcated the money himself it was due to his negligence that this amount disappeared which is an act of misconduct and punishable under Standing Order 15(3) of the Standing Orders Ordinance, 1968 with dismissal.
In this regard, learned Advocate Supreme Court has also pointed out that the appellant himself has signed a debt voucher denoting fraud and forgery vis-a-vis the shortfall of Rs, 2 million, stating therein that the said amount was found short-while transporting the money from Sukkur to Larkana, which clearly establishes his negligence throughout.
10. We have heard both learned Advocates Supreme Court and examined the record.
11. Insofar as Mr. Shabbir Ahmed Awan's submission that where an employee had been acquitted from the criminal case instituted against him then on the same charges he could not be dismissed in departmental proceedings, we are of the opinion that these two proceedings are independent in nature. The facts of the present' cases would disclose that the charges against the appellant in departmental proceedings were that due to his gross negligence the amount of Rs, 2 million had disappeared and hence he had misappropriated the same. He could certainly be held accountable for this act of gross negligence amounting to misconduct due to which the respondent had suffered a loss of Rs, 2 million. Reference can be made to the case of Muslim Commercial Bank v. Abdul Jabbar (supra), wherein precisely the same factual position as in the present case the plea of double jeopardy was turned down by this Court. Insofar as the case of Ataullah Shaikh v. WAPDA and others (supra) is concerned the facts therein were different and hence distinguishable from the present case. In that case this Court came to the conclusion that where the charges both in the criminal and the departmental proceedings are the same. Then once the employee was acquitted in the former, the latter were not sustainable. As observed above the charges against the appellant in the departmental case are of gross negligence amounting to misconduct as result of which the respondent suffered a loss to the tune of Rs, 2 million Suffice it to say that each case is to be decided on its own facts and in the present matter although the appellant may have been acquitted on the criminal charges filed against him vis-a-vis the defalcation of the amount in question, however in our opinion he could still be proceeded in departmental proceedings on account of misconduct/negligence on his part which resulted in said defalcation and which precisely are the charges against him.
12. Insofar as the other legal objections taken by the learned Advocate Supreme Court viz. Maintainability of the appeal, we are again of the opinion that per section 37 of the I.R.O., the appeal has to be filed by any person who is aggrieved from the decision of the learned Labour Court.. Most certainly the respondent is an aggrieved party as it was a party before the learned Labour Court as well as High Court. Hence in our opinion the appeal filed by the Bank before the learned High Court is maintainable. In this regard, reference can be made to the case of H.M. Saya v. Wazir Ali Industries (supra).
13. Insofar as the merits of the merits of the case is concerned, it would be seen that the precise charge against the appellant is that he had received an amount of Rs, 35 million but could not account for Rs, 2 million for which he could not offer any cogent or satisfactory explanation and hence had embezzled the same.
14. As observed in the impugned judgment of the learned Sindh High Court, the appellant has shifted this position as to the disappearance of the amount of Rs, 2 million i.e, that he might have given excess amount to the Shahadkot Branch or received short payment from the Marich 'Bazar Branch per his reply to the show-cause notice. In the departmental appeal he has implicated the Chief Cashier, Akhtar Hussain Khichi on the basis of rough cash book and thereafter in his grievance petition alleging that the said Akhtar Hussain Khichi might have taken away the money from the strong room in which it was kept to the Raunmauk Branch. Secondly no reasonable explanation has been given by the appellant for signing the fraud and forgery voucher of Rs, 2 million and his stand that he considered it to be a T.A./D.A. Voucher is wholly untenable. In the result, we are of the opinion that no satisfactory explanation has been given by the appellant for the disappearance of some of the money which had been enturusted to him which certainly is a grave act of negligence/misconduct. Consequently, we cannot find any mis-appreciation of evidence by the learned High Court in coming to the conclusion that indeed the appellant was responsible for the disappearance of the money in question.
15. Insofar as the punishment handed down to the appellant is concerned, it would be seen that per Standing Order 15(3)(i) of the Standing Orders Ordinance, 1968 misconduct has been defined inter alia, as habitual negligence or neglect of work. Admittedly the charge against the appellant is not of habitual negligence but gross negligence/defalcation of the respondents' monies to the tune of Rs, 2 million. It is settled law that the examples of misconduct given in Standing Order 15(3) are not exhaustive and there can be many others as in the present case which is gross negligence. Hence we are satisfied that the punishment meted out to the appellant is proper.
16. The upshot of the above discussion is that this appeal is dismissed. The judgment of the learned Sindh High Court is upheld.