Through this writ petition, the petitioner prays that the judgment of the Punjab Labour Appellate Tribunal, Lahore, dated 2.11.2009 may be set aside and the judgment dated 17.12.2008 passed by the Labour Court, Lahore, may be restored.
2. Brief facts giving rise to this writ petition are that Muhammad Rafi Khan petitioner had joined the service as Cashier in Habib Bank Limited and subsequently, he was promoted as Officer Grade-III on 1.1.1994 at Pattoki Branch at Habib Bank. One Muhammad Sibtain son of Bashir Ahmad submitted an application on 27.10.2006 to the Regional Manager, Habib Bank Limited, Sahiwal, to the effect that he intended to obtain a car financing facility from the Habib Bank Limited Pattoki Branch on monthly installments. The monthly installments of Rs. 18,000/- each were handed over by him on 15.7.2006, 15.9.2006 and Rs. 1,27,000/- on 15.8.2006 to Muhammad Rafi Khan, petitioner. According to the said Muhammad Sibtain, the petitioner gave him a fake receipt of Rs. 1,27,000/- whereas in fact neither the amount of Rs. 1,27,000/- was deposited in his account nor the receipts of the remaining amounts received by him were given to him by the petitioner. The said Muhammad Sibtain also appended with the application a copy of the receipt of Rs. 1,27,000/- issued by the petitioner with round stamp of the bank. The Regional Officer of the Bank forwarded the said application to the Manager of the Pattoki Branch who called explanation of the petitioner. In response to the said letter, the petitioner submitted his reply dated 30.10.2006 stating that the said Muhammad Sibtain came to the bank on 15.8.2006 and expressed his desire to book a vehicle and asked for the details of the car finance facility. According to the petitioner he prepared the detail in this regard and received the amount of Rs. 1,27,000/-. On 16.8.2006, the said. Muhammad Sibtain made a telephonic call to him and asked him not to deposit the said amount in the bank as he wanted to procure the vehicle on his own. The petitioner further explained that the said Muhammad Sibtain had changed his mind many a time. Thereafter, the petitioner asked the said Muhammad Sibtain to take back the amount. The petitioner further explained that when the said Muhammad Sibtain received the said amount, he took oath in the presence of some persons that the original receipt had been lost and that a photo-stat of the receipt was available with him and afterwards the said Muhammad Sibtain started blackmailing the petitioner and submitted the said application to the bank. He further explained thattthe Manager and some other respectables of the Town convened a Punchayat in the matter wherein the said Muhammad Sibtain admitted his fault and gave in writing on 30.10.2006 that the misunderstanding has been cleared and the original receipt was returned to the Manager and the said Muhammad Sibtain requested that his application dated 27.10.2006 be returned to him. Thereafter, the petitioner was suspended and investigation was conducted and then show cause notice dated 24.1.2007 was served upon the petitioner. In response to the said show cause notice, the petitioner had submitted his written reply repeating his earlier version. As the same was not found satisfactory, the petitioner was proceeded against for violation of the Rules and Regulations of the bank and for breach of trust. Thereafter, a regular inquiry was conducted and inquiry report dated 15.7.2007 proved the petitioner guilty and as a result thereof, vide order dated 27.6.2007, the petitioner was awarded punishment of compulsory retirement from service. Against the said order, the petitioner filed departmental appeal on 25.7.2007 but the same was never responded. Thereafter, the petitioner filed a grievance petition before the Punjab Labour Court, Lahore, (Respondent No. 2) and the said grievance was .accepted by the Punjab Labour Court, Lahore, vide judgment dated 17.12.2008 and the order dated 27.6.2007 was set aside and the petitioner was ordered to be reinstated in service with all back benefits from the date of the compulsory retirement i.e. 27.6.2007. Being aggrieved with the said order dated 17.12.2008, the respondent bank filed an appeal before the Punjab Labour Appellate Tribunal, Lahore, (Respondent No. 1) and the same was accepted by the Punjab Labour Appellate Tribunal, Lahore, (Respondent No. 1) vide judgment, dated 2.11.2009 and the order dated 17.12.2008 passed by the Punjab Labour Court was set aside. Against the said judgment dated 2.11.2009, the petitioner has filed this writ petition.
3. It is contended by learned counsel for the petitioner that the money received by the petitioner from a prospective client of the bank namely, Muhammad Sibtain, was not received as a trustee of the bank and thereafter the same was returned to Muhammad Sibtain and by returning the said amount, the petitioner has not committed any breach of trust and has not violated the Rules & Regulations of the bank. It is further contended that Muhammad Sibtain (complainant) had sworn affidavit that he had made complaint due to misunderstanding and that he had no grievance against the petitioner or against the respondent bank and that he had withdrawn his complaint and had supported the version of the petitioner as was taken in his defence but the said affidavit had been ignored while punishing the petitioner as compulsory retirement from-service. It is further contended that there is no evidence to prove that the petitioner violated any rule and regulation of the bank and committed breach of trust. It is further contended that the learned Appellate Tribunal Lahore proceeded with material irregularity and while passing the impugned judgment has not taken into consideration that the allegation against the petitioner was that he committed pis-appropriation and embezzlement of Rs. 1,27,239/- by issuing bogus receipt and he issued a fake receipt, violated the procedure, rules and regulations of the bank and committed breach of trust but when the inquiry was conducted, the said allegation was not proved as no witnesses were produced and the said alleged receipt was filed but the said receipt had no connection with any transaction in the bank. It is further contended that in the inquiry proceedings, Muhammad Tariq Javed appeared as the solitary witness and claimed that he was authorized by Head Office vide letter dated 20.2.2007 Ex.P/01 as being nominated Prosecutor whereas Ex. P2 is the inquiry notice issued by Respondent No. 5 to the petitioner whereby Talib Hussain was appointed as inquiry officer, thus, both these documents prove that Muhammad Tariq Javed was not appointed as Prosecutor and as such, his appearance as the sole witness in the inquiry was illegal but Respondent No. 1 Punjab Labour Appellate Tribunal failed to take into consideration this aspect of the matter therefore, the inquiry proceedings as well as order of Respondent No. 1 are illegal, without jurisdiction and deserve to be quashed. It is further contended that after the withdrawal of the complaint, the inquiry officer could not proceed against the petitioner as the facts proved that the respondent bank was neither defrauded nor suffered any monetary loss, therefore, no proceedings could be held for the alleged offence of breach of trust or violation of any rules and regulations. It is further contended that Respondent No. 1, while passing the impugned judgment, has committed illegality and irregularity as retirement from service is a major penalty, which under the facts and circumstances of the case, does not commensurate with the allegations, therefore, the impugned judgment deserves to be set aside. It is further contended that in the absence of the complainant 'or any other evidence/witness, no conviction on the basis of the unproved document, which was not tendered by any competent witness in the inquiry, could be taken into consideration for passing any order against the petitioner, as such, the impugned judgment is not based on judicial consideration and proper appreciation of evidence on record, therefore, the same be set aside. In support of his contention, learned counsel for the petitioner has relied upon Allah Yar Vs. General Manager, Railways Headquarters, Lahore and (2001 SCMR 256), Fayyaz Hussain vs. Director Excise and Taxation, Lahore (2008 PLC (C.S.) 267), Muslim Commercial Bank Ltd. Vs. Waheed Murad (2002 PLC 307), The State of Uttar Pradesh vs. Muhammad Nooh (AIR 1958 SC 86), Muhammad Ali Bukhari us. Federation of Pakistan (2008 SCMR 214), Muslim Commercial Bank Vs. - Shams Alulia (2007 SCMR 1617) and Muslim Commercial Bank Vs. Ghulam Muhammad Memon (2008 PLC 40).
4. On the other hand, learned counsel for the respondents, while supporting the impugned judgment and the comments submitted on behalf of the respondents, has stated that according to the petitioner, the amount of Rs. 1,27,000/- was returned to Muhammad Sibtain (complainant) on 16.8.2006 and the complaint was filed on 28.10.2006 and if the said amount was returned, then why the complainant had filed the complaint, therefore, allegations levelled against the petitioner are correct. It is further contended that the petitioner was served with a show cause notice dated 24.1.2007 for his acts of misconduct as he received an amount of Rs. 1,27,239/- from one Muhammad Sibtain (complainant) without any authority and also issued a receipt under his signatures and affixed branch's stamp on it and the amount received by the petitioner was also not accounted for in the bank record and the petitioner also prepared computerized forms and delivered the same to the complainant to falsely show regarding grant of loan facility, as such, the petitioner had committed fraud and mis-appropriation when the petitioner falsely denied the charges and in view of the same, the respondent initiated inquiry against the petitioner for violation of rules, regulations and for breach of trust. It is further contended that in the inquiry proceedings, Tariq Javed appeared as Prosecutor and submitted documents in proof of the allegations against the petitioner and the contention of learned counsel for the petitioner that the Prosecutor submitted in evidence documents which were neither executed by him nor was any witness produced to prove the said document is misconceived and against law as the Prosecutor was duly appointed by the competent authority of the bank. It is further stated that the allegations against the petitioner were duly proved in the inquiry proceedings through unimpeachable evidence. It is further stated that the act of misconduct by the petitioner was. duly proved in the inquiry and the withdrawal of the -complaint by the complainant has no bearing on the misconduct and breach of trust committed by the petitioner. It is further stated that the petitioner has committed grave mis- conduct as he not only illegally received cash from the complainant but also issued a receipt thereof under his signature and affixed the branch's stamp on it and the amount received by the petitioner was never accounted for in the books of the bank and the petitioner also prepared bogus computerized loan application forms and delivered the same to the complainant, as such, the petitioner rightly deserved punishment of dismissal from the bank's service, however, the bank authorities treated him leniently and he was only compulsorily retired from the service of the bank.
It is further contended that in view of the above facts and circumstances, Respondent No. 1 Punjab Labour Appellate Tribunal, Lahore, has rightly accepted the appeal of the respondent bank and set aside the judgment of Respondent No. 2 Punjab Labour court, Lahore. In support of his contention, learned counsel for the respondents has placed reliance upon Government, of Punjab- through Secretary, Labour and Manpower, Civil Secretariat and others Vs. Shahid Mehmood Butt (2006 SCMR 443), Nazir Ahmad Pathan and another Vs. Muslim Commercial Bank Ltd. and others (2008 SCMR 899) and United Bank Limited through Power of Attorney Vs. Sindh Labour Court No. 5, Karachi and another (2010 PLC 114).
5. I have heard learned counsel for the parties and have also perused the impugned judgment as well as other material available on the file.
6. The allegation against the petitioner is that he had received amount of Rs. 1,27,000/- from one Muhammad Sibtain, the prospective client of the bank, towards car loan and he had issued receipt with his signatures but the amount was not accounted for in the bank record and had not been deposited in the account of the said customer. According to the petitioner, on 15.8.2006, the complainant Muhammad Sibtain had come to him in the bank branch and had expressed his desire to avail the facility of car loan and he had prepared details of the car finance facility and had signed the same but had denied the affixation of the stamp of the bank on the said details. He further stated that the amount of Rs. 1,27,000/- was handed over to him at his residence by the complainant and the same was to be deposited in the bank account of the complainant on the next day and the next day on 16.8.2006 at about 9.00 a.m. the complainant had telephonically informed him that he did not want to avail the facility of car loan, as such, they said amount was returned to the complainant but the complainant did not hand over the original receipt to the petitioner, stating that the same had been lost. Thereafter with mala fide intention to black mail the petitioner, the complainant made false complaint 'dated 27.10.2006. However, the matter was settled between the complainant and the petitioner on the intervention of the respectables of the locality. On 30.10.2006, the complainant filed an application to the Manager Habib Bank Pattoki, stating that the complaint was made by him due to mis-understanding and the petitioner has removed mis-understanding and there is no grievance against the petitioner and the respondent bank and requested for the withdrawal of his application. On 22.11.2006, the complainant had sworn affidavit, supporting the version of the petitioner and further stated that he had received the amount of Rs. 1,27,000/- which was paid by him to the petitioner. The complainant Muhammad Sibtain had also not appeared in the inquiry proceedings. Sohail Majeed Branch Manager of Habib Bank Ltd. while appearing in the inquiry proceedings as RW3, had stated in his statement that the complaint made by the complainant Muhammad Sibtain was received from Regional Office and he had summoned the complainant, who had made a written application that he had made the complaint due to mis-understanding and hewanted to withdraw his complaint. It appears that the said Manager (RW3) had also supported the version of the petitioner that the complaint made by Muhammad Sibtain had been withdrawn. The petitioner also denied the issuance of Form-E meant for Car Leasing Facility to the complainant and the complainant had neither mentioned the said document in his affidavit dated 22.11.2006 nor his application dated 30.10.2006 for the withdrawal of the application filed against the petitioner. Perusal of Ex.P10 produced from the Prosecution side in the inquiry proceedings appears to be a detail of an amount provided by the petitioner to the complainant who visited the bank branch on 15.8.2006 and the petitioner also admits the issuance of the said receipt with his signatures to the complainant but denies the affixation of the stamp of the bank on the said document and in the findings of the Inquiry Officer, there is no mention of the stamp being affixed by the petitioner on Ex.P10. Although account of the complainant Muhammad Sibtain was opened in Pattoki Branch, as is mentioned in the answer of the Prosecutor to the cross- examination of the petitioner, perusal of Ex.P10 also does not show any account number. All this shows that the same was simply a detail of amounts required for Car Finance Facility, as such, the petitioner has not violated the Rules & Regulations of the Bank as he has not issued the receipt of Rs. 1,27,239/- with official stamp of the bank to the complainant Muhammad Sibtain. Therefore, there is no question of committing any breach of trust and the same is apparent in the absence of any claim from the complainant Muhammad Sibtain against the petitioner. In view of the affidavit of the complaint and the application made by the complainant to the effect that he had made the complaint against the petitioner due to mis-understanding, there was nothing left to prove the allegation of mis-appropriation or embezzlement. Moreover, neither any loss had been caused to the bank on this account nor the petitioner had gained any profit therefrom.
7. In the inquiry proceedings, Muhammad Tariq Javed Officer Grade-I, RHQ Sahiwal, appeared as the solitary witness and claimed that he was authorized by Head Office vide letter dated 20.2.2007 Ex.P/01 as being nominated Prosecutor whereas the said document shows that Talib Hussain Officer/Member IDI Unit, RHQ, Multan, was appointed as Inquiry Officer to conduct the inquiry. Thus, the statement of the Prosecutor dated 13.3.2007 falsifies the said document Ex.P1. In view of the same, it is not established from the record that Muhammad Tariq Javed Officer Grade-1, RHQ Sahiwal, was appointed only as Prosecutor, therefore, he could not appear as a witness in the inquiry.
8. From the facts and circumstances of the case, it appears that the inquiry against the petitioner was not conducted in accordance with law and the charge of receiving amount was not proved as the complainant Muhammad Sibtain had not appeared in the inquiry proceedings and besides this, the complainant Muhammad Sibtain had withdrawn the application against the petitioner.
Since the allegation against the petitioner is not proved, therefore, there is no question of any violation of Rules & Regulations of the bank and of committing any breach of trust and the imposing of penalty of compulsory retirement upon the petitioner will be considered as illegal.
9. In view of the above perspective and while relying upon Allah Yar Vs. General Manager, Railways Headquarters, Lahore and another (2001 SCMR 256), Fayyaz Huysain Vs. Director Excise and Taxation,. Lahore (2008 PLC (C.S.) 267), Muslim Commercial Bank Ltd. Vs. Waheed Murad (2002 PLC 307), The State of Uttar Pradesh vs. Muhammad Nooh (AIR 1958 SC 86), Muhammad Ali Bukhari Vs. Federation of Pakistan (2008 SCMR 214), Muslim Commercial Bank Vs. Shams Alulia (2007 SCMR 1617) and Muslim Commercial Bank Vs. Ghulam Muhammad Memon (2008 PLC 40), I am of the considered view that Respondent No. 1 (Punjab Labour Appellate Tribunal, Lahore) has illegally passed the impugned judgment dated 2.11.2009 by accepting the appeal of the respondent bank.
Resultantly, this writ petition is accepted and the impugned judgment dated 2.11.2009 passed by Respondent No. 1 (Punjab Labour Appellate Tribunal, Lahore) is set aside while the judgment dated 17.12.2008 passed by Respondent No. 2 (Punjab Labour Court, Lahore) is restored.