MUHAMMAD YOUNIS THAHEEM, J:- Through this single judgment we propose to decide the instant writ petition alongwith connected W.P No.2494 of 2011 under Article 199 of the Constitution of Islamic of Republic of Pakistan 1973, being arising out from the same order and judgment of learned Labour Court as well as learned appellate Court involving same common question of facts and law .
2. Brief facts of the instant petition are that respondent No.3 namely Barkatullah while posted as cashier at MCB Pabbi Branch was issued a letter of charges dated 28.01.2002 with certain serious allegations which was replied by the said Barkatullah/respondent No.3. Since the reply to the charge sheet was not found by the petitioners satisfactory, so an enquiry was ordered to probe the matter. Afterward inquiry was conducted on 29.04.2002 and in the said inquiry report respondent No.3 was found guilty of charges leveled against him and in the result of said inquiry report the competent authority dismissed said respondent No.3 from his service vide dismissal order dated 20.05.2002.
Respondent No.3 assailed the said dismissal order by filing grievance petition before learned Labour Court/respondent No.2. In response to that petitioners submitted their written statement. The learned Labour Court recorded evidence of both the parties and after hearing, the petition of respondent No.3 was dismissed but on humanitarian grounds impugned dismissal order was converted into compulsory retirement. The present petitioners as well as respondent No.3 Barkatullah feeling aggrieved from the order/judgment dated 12.09.2005 of learned Presiding Officer, Labour Court filed Labour Appeal No.28/2005 before this Court which after amendment in the relevant law was transferred to the Chairman Labour Appellate Tribunal NWFP, Peshawar and the learned Tribunal after hearing both the parties decided the appeal No.28/2005 filed by petitioners and dismissed the same alongwith other 03 appeals through single judgment on 24.06.2011. Petitioners still feeling aggrieved from the order dated 12.09.2005 and judgment dated 24.06.2011, passed by respondents No.1 &2 filed instant petitions.
3. The Brief of W.P No.2494 of 2011 are that respondent No.3 namely Abdul Sattar when posted as cashier in MCB Pabbi Branch was issued charge sheet dated 07.02.2002 with certain allegations leveled against him. The said Abdul Sattar/respondent No.3 submitted his reply and denied the charges. Since reply submitted by respondent No.3 was found not satisfactory by the Bank, so order for enquiry was passed. In the result of said enquiry report respondent No.3 was found guilty of charges and the competent authority vide order dated 20.05.2002 dismissed respondent No.3 from his service. Respondent No.3 feeling aggrieved from the dismissal order dated 20.05.2002 filed grievance petition before the learned Labour Court. Petitio ners appeared before the learned Labo ur Court and filed their written statement. Afterward the learned Labour Court recorded the evidence of both the parties and on conclusion of trial learned Labour Court dismissed the grievance petition of respondent No.3 vide order dated 12.09.2005 but converted the dismissal order into compulsory retirement from service on humanitarian grounds.
4. The present petitioners as well as respondent No.3 Abdul Sattar feeling aggrieved from the judgment of learned Presiding Officer, Labour Court, Mardan dated 12.09.2005 filed Labour Appeal bearing No.25/2005 before this Court which afterward due to amendment in relevant law was transferred to the learned Chairman Labour Appellate Tribunal KPK, Peshawar on its establishment. The learned Tribunal after hearing both the parties dismissed the appeals filed by petitioners and respondent No.3 along with 02 other appeals through a single judgment dated 24.06.201 1 and maintained the judgment of learned Labo ur Court. The present petitioners still feeling aggrieved have filed instant petition and had challenged the order dated 12.09.2005 passed by learned Labour Court, Mardan and judgment dated 24.06.201 1, passed by learned Appellate Tribunal.
5. Arguments heard and record perused.
6. From the perusal of letter of charge dated 28.01.2002 placed on record as Ex PW1/1, it reveals that respondent No.3 Barkatullah allegedly paid cash of Rs.5,18,000/- to one Rizwanullah Branch Manager on 15.01.2002 without receiving cash, entered a voucher of Rs.50,000/- in receipt sheet dated 15.01.2002. Further Rs.4,22,000/- deposited by the branch's customer Mr. Zulfiqar Ali (CD account No.350) through "pay in slip" No.3494194 in late hours on 15.01.2002 was handed over by respondent No.3 to said Rizwanullah, Branch Manager in earlier hours on 15.01.2002 alongwith "pay in slip". The detail of charges has been given in para No.4,5,6 & 7 of letter of charge against respondent No.3 Barkatullah and Abdul Sattar who is also respondent No.3 in W.P No.2494. Mainly the charges against the respondents Barkatullah & Abdul Sattar are that they collaborated with Rizwanullah the then branch manager and defrauded the bank and embezzled Millions of amount through illegal transactions; Barkatullah received two charge sheets on 28.01.2002 & 13.03.2002 while Abdul Sattar received three charge sheets dated 07.02.2002, 08.02.2002 and 13.03.2002 and concealed the aforesaid illegal transactions done by Rizwanullah, from the higher management of the Bank.
7. Respondent No.3 Barkatullah appeared as PW-1 and produced letter of charge sheet Ex PW1/1 and reply to it as Ex PW1/2. He also received supplementary letter of charge Ex PW1/3 which was also replied vide reply Ex PW1/4.
He stated that he participated in the enquiry proceedings and shown his confidence 1 over the enquiry officer. He produced order for dismissal of his service as Ex PW1/5 and grievance notice Ex PW1/6. He stated that he performed his duties according to procedure correctly, however, some time being subordinate to Branch Manager obeyed his instructions having no knowledge of his malafide intentions. Infact said Bank Manager Rizwanullah received Rs.5,00,000/- from him which he had received at cash counter and said amount was not deposited by the said Manager in the Bank account. There was no complaint against him and is innocent.
8. During cross examination PW-1 Barkatullah admitted that he participated in the enquiry proceedings and annexure of same proceedings are consists of 38 pages marked as Ex PW1/x, he deposed that during enquiry proceedings he stated about indulging of Bank Manager in the malpractices and was damaging the interest of Bank but he kept quite being subordinate to him and due to the said reason he did not inform the highups of the Bank to take action against the said Manager.
9. The Bank/petitioners produced Khair Ullah Khan VP, MCB, who conducted inquiry regarding charges on Barkatullah and Abdul Sattar . His statement recorded in both grievance petitions No.T-23/2004 and T-24/2004 as RW-1. He stated that he was appointed as enquiry officer for conducting enquiry about allegations on Barkatullah and Abdul Sattar, Bank employees working at Pabbi Branch MCB, Mardan upon the orders issued from the office of General Manager MCB, Peshawar. According to his statement he after conducting enquiry found Barkatullah and Abdul Sattar cashier as guilty of charges communicated to them in letters of charges. He endorsed his original enquiry report placed on record on both petitions as Ex RW1/1. During cross examination he was put a question to which he replied as below:- "It is correct that in my enquiry proceedings/findings no where I had proved that the petitioner pocketed the alleged amount self stated that it was not alleged by the management in the charge sheet that petitioner has misappropriated and pocketed the said amount."
10. Similarly respondent No.3 of connected W.P No.2494 of 2011 namely Abdul Sattar recorded his statement as PW-1. He stated that he received letter of charges on 07.02.2002 as Ex PW1/1 and supplementary charges dated 08.02.2002 as Ex PW1/2. He stated that he submitted detail replies to the charges and clarified his position and denied the allegations vide his replies Ex PW1/3 and Ex PW1/4 while he received third letter of charges on 13.03.2002 which is placed on record as Ex PW1/5 and reply thereto is Ex PW1/6. He stated that after illegal and improper enquiry he was declared guilty and was dismissed from service vide dismissal order Ex PW1/7. Then he feeling aggrieved from the order of dismissal from service served grievance notice to the concerned Bank Management, copy of same is Ex PW1/8. He stated that allegations upon him regarding collaboration with the then Manager Rizwanullah were totally incorrect. He has no knowledge about acts and intentions of Rizwanullah regarding fraud.
During cross examination though respondent No.3 was put to severe cross examination but nothing came favourable except he reiterated his version, however he admitted that in supplementary charge sheet Ex PW1/5, he was charged for keeping an amount of Rs.1,00,000/- in his personal custody instead of crediting the same to Sundry Creditors Account which amount was found in excess on 28.08.2001.
11. The labour Court while examining the evidence on record dismissed the petitions, however, on humanitarian ground and keeping in view the long spotless past service converted the dismissal of each of petitioner into compulsory retirement from service. Both the parties remaining dissatisfied filed their respective appeals before this Court as below:-
1. Muslim Commercial Limited Vs. Abdul Sattar (LA.No.25 of 2005).
2. Muslim Commercial Limited Vs Barkatullah (L.A.No.28 of 2005)
3. Barkatullah Vs. Muslim Commercial Limited (L.A.No.29 of 2005).
4. Abdul Sattar Vs Muslim Commercial Limited (L.A.No.31 of 2005).
12. These appeal afterward due to amendment in law were transferred to the learned Labour Appellate Tribunal KPK, Peshawar and were decided vide judgment dated 24.06.201 1 and were dismissed.
13. This Court after hearing learned counsel for the parties and perusal of evidence on record is of the view that main charge of mis-appreciation and embezzlement of Bank funds was imposed on the then Manager of the Bank namely Rizwanullah and present respondents No.3 of each petition were charge sheeted for their negligent conduct while performing their duties by keeping their eyes shut and kept mum about illegal activities of said Rizwanullah Manager as they failed to inform higher Bank Management about illegal activities of said Manager , so learned Labour Court while appreciating evidence though dismissed the grievance petitions of both the respondents No.3 but converted the order of dismissal from service into comp ulsory retirement. Similarly the learned Tribunal while seized of the appeals held as under:- However, the punishment of dismissal from service surely does not commensurate with the gross negligence they committed, being excessive, harsh and against the "Principles of Proportionality", thus, the punishment of dismissal from service awarded to the appellants by the Bank, being excessive, harsh and against the "Principles of proportionality" was though on wrong reasons, correctly modified to Compulsory retirement.
14. This Court in view of above discussed position, holds that the learned Labour Court as well as learned Tribunal reached to the correct decision as the role attributed to both respondents No.3 Barkatullah and Abdul Sattar was of negligence about not informing higher Bank Management about the illegal activities of Bank Manager Rizwanullah, so their dismissal from service decided by the Bank Authorities was harsh and was correctly converted into compulsory retirement by the learned two Courts below. The learned counsel for petitioners failed to point out any illegality or misreading and non-reading of evidence particularly in the light of admission made by Inquiry Officer RW-1, who deposed that "it is correct that according to his inquiry it had not been proved that petitioner pocketed the alleged amount." So, punishment awarded by the Bank was harsh in nature and was against the doctrine of proportionality which is recognized principle of justice so was correctly modified by the learned trial Court and maintained by the learned Appellate Tribunal. In this respect reliance is placed on judgment of Hon'ble Supreme Court of Pakistan in cases titled as "Auditor-General of Pakistan & others Vs Muhammad All & others" cited as 2006 SCMR 60, "Secretary, Government of Punjab & others Vs Khalid Hussain Hamadni & 02 others" 2013 SCMR 817, "Naveed Shah Vs City Police Officer, Faisalabad & 02 others", 2017 PLC (C.S) 214 and from Indian jurisdiction in case "Chairman-cum-Managing Director, Coal India Ltd. & Anr. Vs Mukul Kumar Choudhuri & Ors" cited as AIR 2010 Supreme Court 75.
15. Thus in view of above discussion, both petitions being bereft of merits are dismissed.