ABDUL HAFEEZ CHEEMA (CHAIRMAN).--- This appeal is directed against the order dated 12-2-2007 passed by the learned Presiding Officer, Punjab Labour Court No,5, Sargodha whereby the grievance petition of the respondent was allowed with back-benefits.
2. The facts of the case briefly are that, the respondent joined the service of the appellant bank on 25-1-1973 and rendered services upto 13-8-2004 when he was an Officer Grade III performing the duties of Key Punch Operator (KPO). In pursuance of an audit report he was accused of embezzlement of the money of the account holders, parallel banking and committing grave irregularities vide charge-sheet dated 23-12-2003. He refuted the charges and the bank appointed an enquiry officer who after conducting the enquiry held him guilty. Consequently he was dismissed from service vide order dated 12-8-2004.
3. The respondent challenged his dismissal by means of a grievance petition which was duly contested by the bank and the learned Labour Court after hearing arguments accepted the same and ordered his reinstatement with back-benefits.
4. It is submitted by the learned counsel for the bank that an impartial enquiry was conducted against the respondent by a senior officer of the bank who afforded him full chance of presenting his view point and cross examining the prosecution witness. The appellant examined Sarfraz Ahmed a bank officer as the prosecution witness. Whereas the respondent examined one Sher Zaman an account holder, his brother Fida Hussain and two sons of Sher Zaman. After thoroughly evaluating the evidence produced by the parties the Inquiry Officer held the respondent guilty and there was no defect or infirmity in his findings but the learned Labour Court has altogether ignored the finds of the Inquiry Officer and reinstated him on flimsy grounds with back-benefits.
5. Conversely it was canvassed by the learned counsel for the respondent that no loss has occurred to the bank. One of the account holders had himself volunteered to appear along with his two sons and brother and supported the version of the respondent. Even otherwise Sher Zaman account holder had filed an application before the bank authorities that he had no complaint against the respondent who was innocent in the matter.
6. Arguments have been heard and record has been perused.
7. The record shows that in the enquiry conducted by Mr. Mushtaq Ahmed Malik, AVP/Manager, MCB Jauharabad he first examined the bank official who placed all the relevant record before the Enquiry Officer and then explained each and every charge with all possible clarity to the respondent. It appears that the enquiry proceedings were initiated, conducted and concluded, fairly and after affording full chance of hearing to the parties. He appears to have placed both the versions in juxta position coupled with documentary evidence. A perusal of the enquiry proceedings reveals that the Enquiry Officer has harbourd no grudge, bias, or ire against the respondent. Every page of the proceedings had duly been signed by the Enquiry Officer, the respondent and the prosecutor. In this state of affairs it does not lie in the mouth of the respondent to say that he was not provided adequate opportunity of putting up his defence.
8. During the enquiry he was asked by the enquiry officer/ prosecutor of the bank as to how would he explain that he was making "flying entries" of different cheques but he failed to. Give any plausible explanation. At times he had taken the plea that the computer of the bank was not functional hence such mistakes occurred but when he was confronted with the flying entries which he made for his personal gain when the bank computer was admittedly functional he failed to give satisfactory explanation and relied upon the stock plea that this was done due to rush of work.
When enquired from the bank official by this court as to what these flying entries would denote in the banking practice it was explained that these are entries which are made by a bank official without supplying voucher, authority or document in support of that entry. According to the British Banking Practice as per Pitman's dictionary of Banking, Third Edition at page No,319 this type of practice has been described as under:--- "teeming and lading.--- A fraudulent method of converting the money paid to a bank or creditor to a dishonest employee. Basically, money received from a customer/debtor will be misappropriated by an employee, but before a statement is sent out to that person, funds, misappropriated from another customer, are placed on the first customer's account. As this is a progressive activity, the danger multiplies. The accounts of customers and the handling of cash or cheques, should be maintained by different persons."
9. Now it would be appropriate to reproduce the findings of the Enquiry Officer in respect of 3 flying entries made by the respondent in his enquiry report. Findings of the inquiry officer on the charges Nos.1, 2 and 3 are as under:--- CHARGE NO:-1 ' In fact, Accused withdrew Rs,40,000 from PLS A/c No,12704-2 of Mr. Sher Zamman through a fake/false cheque' No-09117292 on 30-3-2002. He himself entered this cheque in Token Register and mentioned Token No, on it in spite of the fact that it was not his duty. On 20-5-2002, Mr. Sher Zamman presented Cheque No, 09117294 amounting to Rs,1,86,000 for payment. Accused was very well aware about the short fall of Rs,40,000 in the Balance of PLS A/c No,12704-2 as he had himself unauthorizedly withdrawn the said amount. He immediately misused the computer and posted the pay in-slip No,0969868 for Rs,85,000 of Mr. Muhammad Aslam Khan A/c No,14763-2 in Pls A/c No,12704-2 of Mr. Sher Zamman. In this way he made up the short fall of Rs,40,000 of PLS A/c No,12704-2 and posted the cheques of Rs,1,86,000 in A/c No,12704-2 and got it passed by the passing officer. This unauthorized/illegal practice was repeated once again by the accused on 3- 6-2002 when Mr. Aslam Khan A/c holder of A/c No,14763-2 presented a cheque No,45511342 for Rs,6,87,000 of his account. As the accused had already deposited Rs,85,000 in A/c No,12704-2 of Mr. Sher Zamman on 20-5-2002 and he was fully aware of a short fall of Rs,40,000 in A/c of Mr. Sher Zamman. Now Accused withdrew Rs,40,000 through. Cheque No,48399424 from his own A/c No,7587-4 and deposited it in A/c of Mr. Sher Zamman and then debited the A/c of Mr. Sher Zamman with Rs,85,000 through a transfer voucher and credited this amount in A/c of Mr. Aslam Khan. In this way he was succeeded to pass the cheque of Mr. Aslam Khan amounting to Rs,6,87,000 . This unauthorized/ illegal and unlawful practice was kept continued by the Accused.
He always fulfilled the short fall of an account by crediting a fake entry of any other account in it.
He could not, reply properly during the cross-examination with bank's representative and repeatedly gave lame excuses of defective computer, yet no proper plea was given by the accused in his defence for tampering and making illegal transaction of amounts in one account to other, that too, without any authority, so Charge No,1 is proved.
CHARGE NO.2 ' On 24-2-2003, Accused once again got encashed a Cheque No,370134 of Rs,50,000 of Mst. Iqbal Bibi A/c No,15251-5 in spite of the fact that balance of this A/c was only Rs,1255/60. He once again misused his computer and debited a flying entry of Rs,50,000 in A/c No,15075-8 of Mr. Aslam Khan and credited this amount in A/c of Mst. Iqbal Bibi and was succeeded to pass her cheque. Same illegal practice was kept continued by the accused. He also completely failed to reply any question of P.W. Thus charge No,2 is also proved.
CHARGE NO.3 ' This charge is also proved as there was no plausible plea given by the accused. He deliberately affixed the stamp of "Posted" on his own cheque of Rs,13,000 on 18-2-2002 after process of entering the cheque in Token Register by himself and got it passed by authorized officer. He did not post this cheque on the same day in his Account and posted it on 25-22002 after 7(seven) days. During the cross-examination, accused also admitted that he had got the payment of his above said cheque on 18-2-2002 to meet with an urgent requirement. Here he once again referred same lame excuse of defective computer."
10. While appearing in the court as P.W.1 the respondent reiterated his version in the grievance petition that he has rendered 32 years service to the bank honestly and faithfully. As for Sher Zaman's account he had 'produced an application given by him (Exh.R-3) that exonerated him of any blemish. He however complained that the enquiry officer had not read out to him his statement before procuring his signatures. Hence it should not be taken as reliable. In the given circumstances when he had appended his signatures on every page of the enquiry proceedings without protest, no credence can be lent to his assertion. As for Sher Zaman's application exonerating the respondent that appears irrelevant because the fake entries in relevant accounts prove the charge.
11. The bank examined Mr. Mushtaq Ahmed, AVP, enquiry officer as RW-1. He stated that he read over the charges to the respondent and then explained to him every charge very clearly. He willingly participated in the enquiry and had raised no objection against the enquiry proceedings or even against him. He allowed the respondent to freely cross-examine the witnesses and explained his view point. He was also allowed to produce his defence. He held the enquiry freely without any bias or any ill will. He explained that Sher Zaman was afflicted with paralysis and could not speak a word. However, his brother Fida Hussain made a statement on his behalf and Sher Zaman's sons also appeared as witnesses in support of the respondent's stand point. The witness conceded in an answer to a question that the bank had indeed suffered no financial loss on account of the activities of the respondent. He however denied that he ever was dismissed from the bank in any fraud case. However, 20 years back on an application leveling unsubstantiated allegations against him he was terminated from service but he was reinstated by the court.
12. The learned Labour Court appears to have remained only in the confines of technicalities. It has not taken the trouble of realizing visualizing that there was ample evidence before the enquiry officer as well as in the court that the respondent was in the habit of misappropriating the amounts of the clients of the bank by applying this fraudulent method of making "flying entries" and misappropriating the moneys of the account holders temporarily. Even if the communication of such a charge is delayed for a few days that would be immaterial because in fraud and embezzlement cases the Hon'ble Supreme Court has held that minor delays should be ignored.
(2004 SCM R 149). Even otherwise there is no substance in the allegation that the officer who passed the dismissal order was not competent in accordance with the rules of the bank.
13. The prosecution has proved their case and has taken into consideration all aspects of the, matter. The claim of the respondent that he earned no blemish or never was charged of misconduct throughout his 32 years of service prior to this incident has not been refuted by the bank. Although the bank had suffered in reputation on account of this technical jugglery of the respondent nevertheless it is equally a fact that no financial loss had occurred to the bank and this was clearly admitted by the enquiry officer while appearing as RW-1. In these circumstances I would hesitate to confirm the imposition of extreme penalty of dismissal and would award him penalty of compulsory retirement. This I believe would meet the ends of justice.
14. In this view of the matter the appeal is partly accepted and the order of the learned Labour Court is modified. The penalty of dismissal is converted into compulsory retirement. There shall be no order as to costs.