' ABDUL HAFEEZ CHEEMA (CHAIRMAN).- The captioned appeals are directed against the judgment dated 21-5-2009 passed by the learned Presiding Officer, Punjab Labour Court No9 Multan whereby the grievance petition filed by Khalid Hussain, respondent was accepted and the dismissal, order dated 1-10-2005 was set aside and he was ordered to be reinstated in service without back benefits. The bank has challenged the judgment in its totality whereas the respondent has files a cross appeal claiming that he be granted back benefits. Since both the appeals arise out of the same order and are between the same parties, I propose to dispose of the same by this consolidated judgment.
2. The facts forming the background of this case are that in a surprise check by the Bank Audit Team, the respondent Khalid Hussain was accused of pilfering an amount of Rs,90,000/- from the bank coffers. Realizing the very dangerous consequences of his act he however readily deposited the amount in the bank. He was charge sheeted on the above facts vide Exh.P-2 which he refuted through Exh.P-3 and denied the accusation and also the assertion that he had readily deposited the said amount. According to him it was done by the Manager of the branch and others. The Bank appointed Hafiz Muhammad Aslam, a Senior Officer to hold enquiry into the matter. He thoroughly conducted the enquiry, examined the case and came to the conclusion that it was Khalid Hussain, Cashier who had embezzled the amount.
3. The learned Labour Court recorded evidence of the parties and after hearing arguments Pound it a case of discrimination and held that as other co-accused namely the Manager and the Accountant had been imposed penalty of withholding of one increment similar treatment should have been meted out to the respondent (Khalid Hussain) and setting aside his dismissal, ordered his reinstatement.
4. Arguments have been heard and record has been perused.
5. Hafiz Muhammad Aslam, the Inquiry Officer appears to have conducted the enquiry in a fair and proper manner. He examined the appellant, one Salahuddin Farooqi, Bank Prosecutor, Mr. Zahid Iqbal, the Manager and Mr. Khalid Javed, Acc.Ountant and the documentary evidence produced by the bank. He appears to have allowed the respondent to freely cross-examine the witnesses and produce his defence but he declined to produce any defence witness. After- examining the entire material before him and watching the demeanor of the witnesses and that of the accused, the Enquiry Officer returned the following findings:--- "Findings.
' Upon carefully examination of the statements of bank's representative and the accused, cross questioning and documentary/Personal evidences produced by the bank's representative, the undersigned holds that:---
(1) The defalcation of cash of Rs,90,000 as detected by the audit team was made by the accused casher.
(2) The accused confessed the offence of shortage/defalcation of cash in writing before the audit team on 26-10-2004.
(3) During enquiry proceedings, the accused admitted the shortage of Rs,90,000 as the cash is directly handled by the cashier therefore responsibility of shortage lies on the accused cashier.
(4) To recoup the shortage, the accused cashier signed the debit cash suspense voucher on 26- 10-2004 which fact he admitted in the enquiry proceedings.
(5) The accused cashier arranged the defalcated amount of Rs,90,000 from his father from Multan and deposited with the bank on 26-10-2004 to reverse the debit cash suspense entry. This fact was also admitted by the accused in the enquiry proceedings.
(6) In reply' to charge sheet, the accused denied to deposit the defalcated amount with the Bank whereas in enquiry proceedings, he admitted the fact of deposit of defalcated amount with the bank to make the shortage good by arranging through his father.
CONCLUSION ' Relying upon the statements of Bank's representative and accused, cross questioning and replies thereof from both sides and evidences produced to the undersigned, the following charges are proved against the accused Mr. Khalid Hussain Ex-Cashier of B/O Muzaffargarh.
(3) Wilful fraud and dishonesty in connection with the employer's business.
(4) Habitual breach of the law applicable to the establishment. Thanks.
Your faithfully, (HAFIZ MUHAMMAD ASLAM) Enquiry Officer Area Operation Head (OG-I), Allied Bank Ltd, Multan Cantt."
6. After depositing the amount Mr. Khalid Hussain took up the 'stand in his reply to the charge-sheet that he never deposited the amount of Rs,90,000 and rather it was deposited by the Manager and others but when one examines the payment in the bank it is made by Khalid Hussain himself under his signatures. This fact in itself gives a lie to his version. The fact that when he was clearly accused of the embezzlement by the Bank Prosecutor that he had admitted this pilfering in presence of Sh.
Manzoor, the Member of the Audit Team. The enquiry officer allowed the respondent to cross- examine Mr. Salahuddin Farooqi but he could not put him any question and declined to challenge his statement and at the conclusion of the proceedings appended his signatures as a token of correctness of the enquiry proceedings. This equally lends support to the prosecution case that he had voluntarily admitted his guilt and when there is admission coupled with the deposit of the embezzled amount it needs no further proof. It was alleged in para No,17 of the written statement of the bank that Iron Box in the Strong Room had China lock which had three keys and could have been opened by any one of the keys and the respondent could easily open the lock without requiring the key of all other concerned i,e, the Manager and the A Accountant. There was no rebuttal of this assertion on the part of the respondent Khalid Hussain by filing any replication/rejoinder to this statement. Admittedly every page of the enquiry proceedings was signed by the respondent which shows that he accepts the correctness of the same. In this situation, the onus shifts upon Khalid Hussain to show that the enquiry proceedings were conducted in violation of the judicial norms which he has not been able to prove. It, therefore, does not lie in his mouth to assert that he was not allowed to properly defend himself. He was clearly asked by the enquiry officer whether he would like to produce his defence, his answer was clearly in negative. This shows and shows very clearly that he had admitted the guilt and he had no defence to put up. The Hon'ble Supreme Court in almost an identical case ruled:--- "In the light of the conclusion of the inquiry officer that petitioner committed fraud of Rs,7,50,000 at First Women Bank, Abbottabad, and also embezzled Rs,947 of utility bills the return of the amount in question to the account holder would be the direct evidence against the petitioner in proof of the charge. The mere fact that the amount allegedly drawn in a fraudulent manner, was returned and no loss was caused to the bank, would not remove the charge of misconduct against the petitioner 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." (2003 PLC (C.S.) 1247)
7. In this view of the matter it appears that the judgment passed by the learned Labour Court is not a speaking judgment and obviously is devoid of reasons and is repugnant to the provisions of section 24-A of the General Clauses Act. It has a taint of arbitrariness. There is a marked and visible difference between the fault of the Manager and that of the Accountant as compared to the Cashier. Khalid Hussain has clearly admitted his guilt twice and not merely verbally but had made up the loss to the bank by depositing the defalcated amount. The guilt of the Manager and that of the Accountant only was that they could not keep a proper vigil on the accused/cashier. So, therefore, one cannot hold every one evenly guilty. The impugned judgment of the Labour Court therefore does not appear to meet the norms of justice and is hereby set aside and the penalty awarded to Khalid Hussain by the bank is hereby upheld.
8. In this view of the matter the appeal filed by the bank is allowed and the appeal of Khalid Hussain claiming back-benefits is dismissed. Similarly, the contempt petition filed by Khalid Hussain has obviously become meaningless and is hereby dismissed, leaving the parties to bear their own costs.