' SHAHID ANWAR BAJWA, J.--- The facts giving rise to this Constitutional Petition are that respondent No,2 was employed as an Assistant/Teller by the petitioner Bank. He entered into employment of petitioner Bank in 1974. On 11-5-2007 a charge sheet was issued to respondent No,2. The substance of charges against him, as stated in the charge sheet, was in the following words:--- "CHARGE SHEET ' It has been reported against you by the manager Compliance and Control (CCD) vide its report dated April 19, 2007, that while performing duties of Teller at Taimuria Branch, Karachi, you have committed the following irregularities of serious nature which tantamount to misconduct:---
(i) On 19-2-2007, you received an amount of Rs,5,300 in collection of Utility (KESC) Bill of Consumer No,AL-623866, which was not accounted for in the same date in the books of the Branch/Scroll Sheet, thus you embezzled/misappropriated the entire Bill amount of Rs,5,300.
(ii) On 19-4-2007, when the Consumer came in the Branch and complained for arrears in his Bill, you refunded the said amount.
(iii) The claim of Citi Bank amounting to Rs,3200 as per following particulars, has neither been accounted for nor settled by you as yet, although pointed out to you at the time of receipt of claims particularly vide Branch letter dated 24-3-2007:--- {{TABLE}} Sr. No, Consumer/ Subscriber No, Amount of Claim Cash Received date Details
1. PTCL No,6640352 Rs,500 14-3-2007 Cash of Rs,1840 received by you but accounted for Rs,1340 as such diff amount of Rs,500 was pocketed by you
2. KESC AL-543648 Rs,1,800 16-3-2007 Cash of Rs,4,200 received by you but accounted for Rs,2400 as such diff amount of Rs,18,00 was pocketed by you.
3. KESC AL-765633 Rs,900 18-9-2006 Cash amounting to Rs,900 received by you, but not accounted for as such Rs,900 was pocketed by you. {{TABLE}}
2. The respondent No,2 did not submit any reply to the charge sheet and therefore an inquiry was ordered. The respondent No,2's contention in the inquiry was that he had not done it deliberately and intentionally but when there came certain complaints which related to dates of his duty he repaid the amount: After report was submitted by the Inquiry Officer, employment of respondent No,2 was terminated vide letter dated 19-7-2007.
3. Being aggrieved by termination respondent No,2 served grievance notice on 17-8-2007 and thereafter filed grievance petition in the 5th Sindh Labour Court at Karachi. The grievance petition was allowed vide order dated 9-7-2009. Respondent No,2 was ordered to be reinstated in service without back benefits with employer being at liberty to award proper, lenient punishment to the applicant according to the circumstances of the case. Since Labour Appellate Tribunal as required by law (section 55 of the Industrial Relations Act, 2008) has not been constituted in the Province of Sindh, this Constitutional Petition has been filed.
4. Learned counsel for the petitioner made the following submission:---
(1) Since Labour Appellate Tribunal has not been constituted, he has no remedy against the impugned order and therefore the Constitutional petition would be maintainable.
(2) That although Labour Court repeatedly came to the conclusion that there have been a number of admissions on part of respondent No,2 regarding his alleged misconduct even then it ordered reinstatement on the ground; in the words of the Labour Court below that "punishment awarded to the applicant before Labour Court appears harsh and he was not liable to be dismissed from service and he was liable to be punished for reprimand or stoppage of his increment etc."
5. That it is sole and absolute discretion of the employer to decide as to what punishment should be awarded to a employee who has been proved guilty in domestic inquiry, Learned counsel in this regard relied on plethora of judgments to which I will refer at appropriate place in this judgment.
6. On the other hand, respondent No,2 who was present in person stated that he wanted to argue his case in person. He argued that he had not done any dishonest act. It had been human mistakes, innocent and without intention to defraud and when pointed out he repaid the amount.
7. I have given my anxious consideration to submissions made by the learned counsel. I have gone through the record as well as case-law cited by the learned counsel.
8. A perusal of the charge sheet indicates that allegation against the employee was that on five different occasions he received amounts but did not account for the same. Learned counsel referred to page 9 of the judgment where it was observed by the learned Court below that inquiry proceedings produced by the respondent proved that applicant in the inquiry had pleaded guilty of the charge against him. This according to the learned counsel was first time in the impugned judgment where admission of respondent No,1 was recorded. In the second time on page 10 of the judgment the learned Court below stated that in response to the question put by the Inquiry Officer respondent No,1 pleaded guilty against the charges as, contained in the charge-sheet. Thereafter the Labour Court stated that the respondent/employee evidence proved that second time the present respondent had admitted his negligence. According to the Labour Court third time was when the employee said that all the amount claimed were repaid. The fourth time being that in cross-examination in the Labour Court, the employee admitted the charges. The learned counsel submitted that it is beyond doubt that appellant had received the amount of the bills and did not account for them.
9. The banks operate in a system which is a rigid and documented one. Under banking system at the close of each day if cash is found in excess the employee has to state. Similarly if cash is found short the employee has to state at the close of the day to the employer. In the present case, there is no statement of the present respondent that when he totalled the stroll he found cash short. In fact in the case of first charge amount of Rs,5,300 was received by the respondent and he did not account for it at all. The bill on which the amount received was produced in the Court below and clearly bore stamp of 9-2-2007, initial of the petitioner and amount of Rs,5,300. If the petitioner had forgotten to mention this amount in the scroll he should have stated at the end of the day that he had cash in excess of Rs,5,300. There is no such statement by the petitioner. Therefore there is no longer a question of his being guilty of the charge. I do not think any fault can be found with the order of the employer or with the order of the Labour Court on that score.
10. However the matter went further and learned Labour Court stated that the punishment is harsh keeping in view gravity of the offence. Learned Labour Court was of the opinion that at most the applicant before it was liable to be punished with reprimand or stoppage of increment. Learned counsel for the petitioner in support of his contention that it is sole and absolute discretion of the employer to decide as to what punishment should be awarded, referred to the following case- law:---
(1) Pakistan Tobacco Co. Ltd. v. Channa Khan and others 1980 PLC 981. The workman was employed as Naik in Watch and Ward Department of his employer. On 19th May, 1974, at 1-50 p.m. He was searched by the Security Staff and was found to possess 3 packets of Gold Leaf cigarettes. After due process he was dismissed from service. The First Junior Labour' Court while holding that it was established beyond doubt "that he was caught red-handed and there was no error in the proceedings which led to his dismissal", directed the appellant to substitute punishment of termination of service in lieu of dismissal and further to impose the penalty of fine equivalent to ten times the value of the property stolen. Appeal went to the First Sindh Labour Court, it did not succeed. Writ petition also failed. The matter was taken to the Supreme Court. The Supreme Court held as under:--- "The First Junior Labour Court has found no flaw in the proceedings which led to the order of dismissal but mitigating circumstances to disturb the order of the dismissal and thereby substitute it with a termination of service. The termination of service is not a punishment prescribed for misconduct under Standing Order No,15(2) consequent upon such finding having been arrived at in accordance with the procedure prescribed by Standing Order No,15(4). However, under Standing Order No,12(6) the services of an employee can be terminated simpliciter for misconduct. There is a marked difference between the two provisions accordingly, if the termination of service was not a punishment for misconduct it could not be substituted for dismissal which is so prescribed merely on the ground that subsection (5) of section 25-A of the Industrial Relations Ordinance empowered it to pass "such orders as may be just and proper in the circumstances of the case." This expression refers to an order passed in accordance with law as the words "just" and "proper" reflect this meaning. This being so that First Junior Labour Court could not substitute a punishment which is not prescribed under the garb of the exercise of that power. Further, it is for the employer to assess as to what punishment should be awarded for misconduct under the provisions of the Statute; and if the employer chooses to award dismissal, the First Junior Labour Court cannot sit in judgment over it and substitute it with a lenient punishment."
(2) Nazir Ahmed Pathan and another v. The Muslim Commercial Bank Ltd. And others 2008 SCMR
899. The workmen in this case being a Bank employees were found to have committed misappropriation/embezzlement of customers money. After due disciplinary process they were dismissed from service. They approached Sindh Labour Court which allowed their grievance petitions. Appeal were filed in this Court which were accepted. Thereafter workmen invoked jurisdiction of the Supreme Court.
Supreme Court after noting that even Labour Court did not disagree with findings of the Inquiry Officer qua guilt on the charges, it held the punishment of dismissal to be harsh and disproportionate to guilt of the petitioner. In this background, observed that, "once the charge of misappropriation/ embezzlement levelled against the worker is proved the question of quantum of punishment rests with the employer and neither the Labour Court not the appellate Court has any discretion in the matter unless the sentence awarded is found to be either one which is not provided or warranted by law or which it appears to be excessive or harsh or totally disproportionate to the guilt which no prudent man would have awarded in the circumstances of a particular case."
(3) Water and Power Development Authority through Chairman, WAPDA House, Lahore and 2 others v. Khawaja Abdul Waheed 2005 SCMR 753. Facts in this case were that the employee was charge sheeted with allegations of gross irregularities in purchase and disposal of stores in the region and was consequently after due disciplinary process dismissed. Federal Service Tribunal set aside the order of removal and directed the employer to reinstate him with consequential benefits. Leave to appeal was granted by the Supreme Court to consider whether Federal Service Tribunal after upholding findings of the Departmental Authorities in disciplinary proceedings about guilt of the respondent, was vested with power to interfere with and modify the nature of punishment/penalty and to reduce the same from removal of service to reduction in rank for two years. The Supreme Court laid down law in the following words:--- "(12) Charge of corruption/misappropriation was proved against the respondent. Under such circumstances, the appropriate forum for Departmental Authority, whose opinion shall be given due weight, unless otherwise is shown. The Departmental authority knows better than anybody else to decide such issue. After the charge of misappropriation/corruption is established, the normal punishment shall be removal/dismissal from service. Lenient view in such matters would destroy the fiber of discipline of service, besides encouraging others to resort such illegal activities as to enrich themselves by illegal means with impunity at the cost of welfare of the society for whose benefit they are employed. We are of the view that the respondent was not entitled to any leniency."
(4) Ghulam Mustafa Channa v. Muslim Commercial Bank Ltd. And others 2007 PLC 493.
(5) Allied Bank Limited through Attorney and others v. Syed Nasir Abbas Naqvi and others 2007 SCMR 1143. In this case, the employee who was found to have cheated in Bank diploma examination was debarred from appearing in examination conducted by the Institute of Bankers.
After due disciplinary process he was dismissed from service. He filed grievance petition before Labour Court which ordered reinstatement in service. Employer's appeal was accepted by the Labour Appellate Tribunal and dismissal was upheld. The employee filed writ petition in Lahore High Court, Rawalpindi Bench and the High Court allowed the petition and substituted punishment of dismissal with withholding of increments. Aggrieved by this order employer approached the Supreme Court. The Supreme Court first held that the act of the employee constituted misconduct and thereafter laid down the law as under:--- "We may agree with the learned counsel that ordinarily the High Court is not supposed to interfere in the administrative functions and disciplinary matter of public organizations in its constitutional jurisdiction unless it is found that an order passed by an authority in its discretion was capricious, arbitrary or was passed in utter disregard of law. This is also not disputed that in disciplinary matter, the departmental authorities have exclusive domain to determine the quantum of punishment in the light of nature of charge and Court may not substitute its decision in such matters but this is settled law that the High Couri in exercise of writ jurisdiction may look into the question of legality of an order passed by an authority and consequently, We deem it proper to examine the proposition in the light of the provisions of section 25-A of I.R.O., 1969."
11. In this case Supreme Court held that penalty of stoppage of increment is inadequate, it did not disturb reinstatement of the respondent in service, modified penalty of stoppage of two increments to withholding his promotion for a period of seven years with effect from date of order of dismissal.
Although Channa Khan's case was noticed in the leave granting order, it was not adverted to when appeal was decided.
(5) Iqbal Ahmad v. Muslim Commercial Bank Ltd. 2009 PLC 254. In this case a cashier of a Bank was sent from Larkana to Sukkur to bring cash. He brought the cash and after taking cash to strong room reported .That Rs,2 million was found missing. After due disciplinary process he was dismissed from service. He approached the Labour Court and the Labour Court ordered reinstatement in service. Bank filed appeal in the High Court. Appeal succeeded. The employee went to the Supreme Court and Civil appeal was dismissed by the Supreme Court observing that he would certainly held accountable for the act of gross negligence amounting to misconduct due to which Bank suffered a loss of Rs,2 million.
(6) Ghulam Mustafa Channa v. Muslim Commercial Bank Ltd. And others 2008 SCMR 909. In this case act of embezzlement and misappropriation stood proved after which he was dismissed from service. Labour Court ordered reinstatement, High Court set aside the findings of the Labour Court and Supreme Court concurred with High Court.
(7) Janatha Bazar South Kanara Central Co-operative Wholesale Stores Ltd., and others AIR 2000 SC 3129. Four of the employees were charged with misappropriation of goods whose value was about Rs,24,239.97. After inquiry all the four employees were dismissed. The Labour Court considered the evidence produced by the management that employees admitted that goods were sent to their countries for sale by means of supply slip and they had not accounted for the shortage of goods. Labour Court held that charges of misappropriation were proved. However, it ordered reinstatement with 25% of back wages. It further ordered for continuity of their service and penalty of stoppage of 5 increments with cumulative effect was imposed on them. Writ petition was dismissed by a Single Judge of Karnataka High Court. Matter was taken to the Supreme Court of India. The Supreme Court allowed the appeal and its observations in relevant part from the order of the Supreme Court are in the following words:--- "Once act of misappropriation is proved, may be for a small or large amount, there is no question of showing uncalled for sympathy and reinstating the employees to service. Law on this point is well settled Re: Municipal Committee, Bahadurgarh v. Krishnan Behari (1996) 2 SCC 714: 1996 AIR SCW 1309: AIR 1996 SC 1239: 1996 Lab. IC 1056. In U.P. State Road Transport Corporation v. Basudeo Chaudhry, (1997)11 SCC 370 this Court set aside the judgment passed by the High Court in a case where a conductor serving with the U.P. State Road Transport Corporation was removed from service on the ground that alleged misconduct of the conductor was attempt to cause loss of Rs,65 to the Corporation by issuing tickets to 23 passengers for a sum of Rs,2.35 but recovering @ Rs,5.35 per head and also by making entry in the waybill as having received the amount of Rs,2.35.
The Court held that it was not possible to say that Corporation removing the conductor from service has imposed a punishment which is disproportionate to his misconduct."
12. Learned counsel also referred to Mukarram Shah v. Sindh Labour Appellate Tribunal and others 2005 PLC 14, Muslim Commercial Bank Limited through Assistant Vice President and Attorney v.
Abdul Razzak Pathan, 2007 PLC 353. Akhtar Ali Mangi v. United Bank Limited 2008 PLC 94, Shaukat and others v. Allied Bank of Pakistan 2007 PLC 555=2007 SCMR 198.
13. I do not think it will add to weight of the judgments although volume of judgment would certainly swell thereby.
14. A reading of the above judgments makes it clear that except in Syed Nasir Abbas Naqvi's case in every other case the Supreme Court and the High Court have upheld the right of the employer to impose penalty and limitation as pave of Labour Court to interfere with quantum of punishment decided by the employer. In Syed Nasir Abbas Naqvi's case misconduct on the part of employee was that he cheated in a examination and debarred from appearing in diploma examination. A consequence of result of Banking Diploma Examination would have been that employee would have been entitled to promotion. It was in that background of situation that Supreme Court upheld conversion of dismissal into with holding of promotion for seven years. In every other case where there was a misappropriation Supreme Court has upheld the act of the employer in dismissing the employee from service. The case from Indian Supreme Court, indicates that this has been done when the amount misappropriated was about Rs,65 and in case of Pakistan Tobacco Co. Ltd. v.
Channa Khan and others, where quantity of stolen property was only 3 packets of cigarettes which even today do not cost Rs,200. The principles deducible appear to be that if there is a financial 'misappropriation or embezzlement, howsoever small the amount may be and howsoever short period of embezzlement may be the employee does not deserve any leniency. Rectitude and best possible standard of honesty and propriety must be instilled in all segments of society because if small misappropriation are allowed to go unnoticed and unpunished or are allowed to be handled with kid gloves entire moral fabric of the society will be on a slippery slope, downhill to what it would be difficult to imagine.. And in case of banks as has been rightly observed in Abdul Razzak Pathan's case that money in the Bank is public money and even if there is temporary misappropriation, the charge is proved once misappropriation is established and employee cannot be allowed to go grinning by saying that he returned the embezzled amount. The Honourable Supreme Court of Pakistan in Sultan Hussain v. National Bank of Pakistan and 2 others 2003 PLC (C.S.) 1247, has held that return of embezzled amount does not wipe away the act of embezzlement. The stigma stop and stain remain conspicuous. The IC relevant observation is in the following words:- "The mere fact that the amount allegedly drawn in fraudulent manner, was returned and no loss was caused to the Bank, would not remove the charge of misconduct against the (employee) who being custodian of public and private money was not supposed to act in breach of trust. The employees of financial institutions and banks are required to be extremely fair in the dealings and their conduct should be aboveboard so that people may not lose confidence in the financial institutions. The dishonest use of private property for personal gain even temporarily, without an intention to cause loss to a party or the Bank would not only be an act of misconduct but also constitutes a criminal offence."
15. Since no Labour Appellate Tribunal has been constituted in the Province of Sindh, petitioner has no remedy whatsoever available to him against the impugned order passed by the Labour Court.
Therefore petitioner has a right to invoke constitutional jurisdiction of this Court.
16. Result of the above discussion is that this writ petition is allowed in limine. Impugned order dated 9-7-2009 passed by the Sindh Labour Court No,V, is set aside. In the peculiar circumstances, the parties are left to bear their own costs.