DECISION ' Admittedly through dismissal order Exh. P-4 dated 27th November, 1979 Muhammad Shafique Khan (An Officer Gr-III serving in Tomlinson Market Branch, U. B. L.) was dismissed from service. The petitioner accordingly on having served a grievance notice Exh. P. 5 dated 29th March, 1980 brought this petition under section 25-A,
1. R.
0. Challenging his dismissal inter alia on the following grounds :-
(a) That since the charge sheet Exh. P. 2 dated 11th July, 1979 was put in the course of post on 24th July, 1979 and delivered to the petitioner on 26th July, 1979 the petitioner is to be deemed to have been served with the charge sheet beyond the statutory period of one month.
(b) That the dismissal order Exh. P. 4 was passed by the Executive Vice-President a person other than the appointing authority.
(c) That actually no enquiry was held and that the so-called enquiry proceedings were based on forged documents.
(d) That no second show-cause notice or the enquiry report of the Enquiry Officer was delivered.
2. In elucidation of aforementioned points it was positively pleaded that actually on 14th June, 1979 the petitioner was kept into illegal confinement at the behest of the respondent No, 2 (Senior Executive Vice-President U. B. L.) in the Habib Bank Limited Main Market Goldberg Branch, Lahore and then in the premises of United Bank Limited, Zonal Chiers Office, 7, Bank Square, Lahore. During this confinement the petitioner was allegedly coerced to write and sign certain statements both in Urdu and English amounting to an admission that he was concerned with the theft of Demand Draft Blocks from Tollinton Market Branch as also (having used certain leaves of the said Blocks and deposited the same in a false account styled as Abid Majeed & Brothers Main Market, Gulberg, Habib Bank Limited. It was contended that these statements were dictated by the Legal Advisor of United Bank Limited. According to averments contained in Para. No, 8 of the petition on 26th July, 1979 a letter (Exh. P. 6) regarding this incident of confinement was addressed to the President United Bank Limited, Head Office Karachi. However, on receipt of charge sheet, by the petitioner claimed to have sent other such letter to the respondents' authorities. Simultaneous with the enquiry proceedings initiated against the petitioner, the respondent had got registered a case under sections 379, 419, 420, 468 and 471, P. P. C. Which was also under investigation of F. I. A.
Perhaps with a view to explain the situation which led to the service of grievance notice after the prescribed period of time, the petitioner had montioned in Para. No, 10 of the petition that the letter of dismissal caused such a mental and physical shock that it incapacitated him for all purposes for a fairly long time.
3. Denying the petitioner's status as a workman the respondent had contended that the service of grievance notice was hopelessly barred by limitation and that even otherwise, the petitioner had voluntarily avoided to join enquiry proceedings and hence ex parte action was taken. The service of charge-sheet as also the conclusion of enquiry proceedings were characterized as valid. It was denied that Muhammad Shafique Khan was ever kept into illegal confinement. It was rather contended that since the petitioner was guilty of grave misconduct he had admitted the allegations against him.
4. Besides documentary evidence produced on either side, Muhammad Shafique Khan got examined two witnesses whereas the respondents having produced the enquiry proceedings Exh.
R-1 had produced two witnesses in rebuttal. With regard to the question as to whether Muhammad Shafique Khan was a workman or not, he when examined as his own witness had stated that in the normal course of business he had to make entries in registers, prepare demand drafts, pay orders, pay slips and security deposit slips. These documents were signed by the 2nd Officer of the Branch.
These duties according to him were of clerical nature. Again he said that he had to make entries in a regular register insertion of which tentamounts to a clerical job. No suggestion challenging these assertions was put in cross-examination into the witness under discussion. Although Ghulam Mustafa Vice-President U. B. L. Zonal Chief Office (D. W. 1) as also Matloob Hussain Jafri Officer Gr. I of that Office (D. W. 2) were examined nothing in this behalf was said by either of them. The learned counsel for the respondents had however, brought in cross-examination of Muhammad Shafique Khan that he was getting benefits under Pay Commission Report exclusively meant for the Officers of the Bank. During arguments the learned counsel for the respondents had made an attempt to make capital out of this last mentioned admission and contended that the petitioner being an Officer cannot fall within the expression "workman". No emphasis is required to state that it is rather the normal course of function than of status or office which determines the question whether an employee is a workman or not. In certain circumstances even an Officer, who does not enjoy powers of appointment, dismissal, control or supervision o A staff can be recognised as a workman. Since there is no rebuttal regarding the petitioner's assertions that he had been preparing demand drafts, pay orders, pay slips, security deposit receipts and had also been making entries in the regular register and that the same was function of clerical nature, it becomes difficult to hold that the petitioner was not a workman.
5. It is an admitted position that on the service of charge sheet Exh. P. 2 the petitioner had made a reply in the nature of a letter Exh. P. 6 and that he took a decision not to participate in the enquiry proceedings. Even otherwise, it is a n undisputed fact that the Enquiry Officer had concluded the enquiry proceedings ex parte. Although originally it was mentioned in the petition that the enquiry was representing bogus proceedings, yet near her anything in this behalf was positively brought in neither examination of Muhammad Shafique Khan, nor any question was suggested to the D. W s. Produced in rebuttal. The learned counsel for the petitioner had, however, brought in cross- examination of D. W. 1 Ghulam Mustafa (Enquiry Officer) that the original drafts and documents (copies of which were at pages Nos. 11 to 55 and at Nos. 56 and 57 of Exh. R. 1) were not produced during the course of enquiry. The witness had stated that since these documents were with the F. I.
A. It was for these reasons that photostat copies were produced by Mr. M. A. Kaul (Prosecuting Officer). Here it is noteworthy that nothing was brought in cross-examination of either of the D. Ws.
That any one of them was nursing grudge against the petitioner or had any motive to have him falsely implicated. The enquiry proceeding Exh. R-1 indicate that there are two documents at pages Nos q. 56, 57 and 61, which date back to 14th June, 1979. These photostat copies contain admission regarding the theft of demand draft b locks and then regarding the use of some of the leaves (from which the demands were got made) in the names of different customers. As remarked above, the execution of these documents is an admitted fact though it was contended that, the same were procured under threats and duress. In enquiry proceedings Masroor Hussain Jafri (examined in Court as D. W. 2) was supported by Mr. Wan (2nd Officer U. B. L.) and Bashir Ahmad in asserting that the petitioner had executed and also signed the originals of the aforementioned documents dated 14th June, 1979. The witness examined during domestic enquiry had also deposed that the petitioner had issued a Chit to his father in pursuance of which certain rubber stamps, advices and unused leaves of demand draft blocks were recovered. Now suggestion was put to Masroor Hussain D. W. To which the witness had replied that it was wrong to suggest that he and his associates had obtained the original of the photostat copy under coercion. The suggestion bears reference to the photo stat copy dated 14th June, 1979 appearing at page No, 61 of Exh. R-l. A bare reading of the statement of Masroor Hussain Jafri D. W. 2 would clearly indicate that this suggestion was meant to prove that actually the confessional statement dated 14th June, 1979 was obtained under coercion. Nothing was, however, suggested or brought on record about the nature of coercion or the manner in which the petitioner was made to execute the original document under discussion. The nature of suggestion itself implies that the original of photostat copy did not exist and that the photostat copy was not having anything contrary to what the original contained.
Since admittedly the F. I. A. Was conducting investigation in criminal proceedings and had taken away the original document, the petitioner with a view to prove anything fishy in the matter, could have summoned or got examined any police official to that effect. Since the provisions of Evidence Act are not strictly applicable and as at the time of exhibit marks no objection regarding admissibility was taken, it does not behave the petitioner now to say that the originals having not been produced the photo stat copies cannot be relied upon or looked into. Be as it may, as per suggestion contained in cross-examination of Masroor Hussain D. W. 2 the main relevant document is the confessional statement dated 14th June, 1979. For reasons already stated, it cannot be denied that the original of this document was executed. Similarly coercion does not seem to have been established. Here I would refer to cross-examination of Muhammad Shafique Khan containing admission to the effect that he never reported to police or any other higher authority regarding the incident of 14th June, 1979. He was rather clear in admitting that he did not report the matter to any authority whatsoever. In the petition the petitioner had, however, claimed to have sent the relevant information to the President, U. B. L, Head Office, Karachi through a letter dated 26th July, 1979. The said letter is figuring in record as Exh. P.
6. At least as mentioned in the petition itself, the petitioner had received the charge sheet Exh. P. 2 on 26th July, 1979 and it was rather on the same day that he sent the relevant intimation through Exh. P. 6 to the President, U. B. L. Head Office, Karachi.
6. Now as asserted by the petitioner the incident of illegal confinement during which he was coerced to execute the document dated 14th June, 1979 took place at least one month and eleven days earlier to the charge sheet as also the intimation sent to the Head Office Karachi. No prudent can believe that a person, who is made to sign a statement involving him in a criminal offence of embezzlement would complacently remain silent for about a period of one month and eleven days. Besides this fact, the enquiry proceedings are clear that the stolen demand draft blocks alongwith certain other material were detected and recovered in the presence of as many as three to four officials working in the Bank as the petitioner's colleagues. Non participation in the enquiry proceedings considered alongwith the confessional statement leads to a positive conclusion that the respondents had fairly established the commission of misconduct on the part of Muhammad Shafique Khan.
7. A grievance notice being a prerequisite for application under section 25-A, I. R.
0. The same was sent on 29th March, 1980. Admittedly the petitioner was dismissed on 27th November, 1979. The present petition is against the aforementioned dismissal order. Thus the mathemetical calculation leads to the conclusion that the notice served was delayed by one month and two days. The learned counsel for the respondents argues that the service of grievance notice being beyond the prescribed period of three months of the accrual of cause of action, the petition merits outright dismissal. According to him the petition being originally barred by time, the petitioner must have made an application under section 5 of the Limitation Act for the condonation of delay. No doubt, no application under section 5 of the Limitation Act was made, yet the petitioner when examined as P. W. I had asserted that the delay was the result of shock which he received on account of his dismissal as also on account of the fact that he had become sick. He remained under the treatment of Doctor Col. Muhammad Shafi, at Rawalpindi. Dr. Mahammad Shafi examined as P. W. 2 having proved medical certificate Exh. P. 8 had stated that for the first time the petitioner had contracted him for treatment in the early part of December, 1979. The certificate Exh.
P. 8 reads that the petitioner took about a period of four months for his recovery. The exact nature of affliction according to the doctor as mentioned in the Certificate Exh. P. 8 was as under :- "This is to certify that Mr. Muhammad Shafique Khan first consulted me in early December, 1979 and was examined in detail. He has been under my constant care since then. His Poly Symptomatology was due to an Anxiety Depression Syndrome of a moderately severe, possibly due to environmental factors."
8. The Medical Certificate further reads that the petitioner was treated with Psycho-Therapy and Medicines. He was also advised to avoid for sometimes at least the environment in which he developed the symptoms. The doctor while standing in the witness-box did never say that during the course of treatment, the petitioner had become incapacitated to perform his routine duty or to follow the normal persuits of life. He was made to admit in cross-examination that the petitioner was his outdoor patient. Similar suggestion when put to Muhammad Shafique Khan P. W. 1 he not only admitted that he was treated as an outdoor patient but also that he was never admitted in any Hospital. In these circumstances it cannot be fairly concluded that actually the petitioner was suffering from the disease of a kind which may be considered to have incapacitated him for persuing the normal functions of life. The doctor was never made to say that the petitioner could not have intelligently undertaken the normal routine work or that he was lacking in ordinary understandings. Thus, obviously the petitioner could have approached a counselor contacted his relative to draft the grievance notice. There is neither any allegation, nor evidence to the effect that the petitioner could not have signed any document. In these circumstances, there is no justification for the condonation of delay caused in service of grievance notice. I may, however, as a passing remark state that non-submission of an application under section 5 of the Limitation Act may not be of much substance. Since the evidence produced on record is insufficient for condonation of delay, I hold that the present application presented under section 25-A, I. R.
0. Is barred by time.
9. There is yet another aspect of the case which calls for discussion. Admittedly vide letter Exh. P. 1 the petitioner's appointment was made by the Senior Vice-President of U. B. L. Head Office, Karachi, whereas the dismissal orders Exh. P. 4 was passed by the Executive Vice-President, Zonal Office, 7- Bank Square, Lahore. The learned counsel for the petitioner contends that the executive Vice- President being incompetent to dismiss the petitioner, the order of dismissal would be void abinitio and hence no question of limitation would arise, whereas I agree that the respondents have failed to substantiate that the Executive Vice-President was an authority competent to pass an order of dismissal. I find no reason to accept the proposition that in view of the special provision of a special enactment, a preliminary step required to be taken within c particular time would become unnecessary. The notice contemplated under section 25-A, I. R. O. Is meant to serve intimation to an employer regarding the grievance of an employee. The main purpose is that if the employer feels it may make amends to avoid litigation or may redress the grievance. The petitioner is positively claiming that the dismissal order furnished him a cause of grievance and it was for this reason that he had issued a letter to the Head Office, Karachi and also issued a formal grievance notice. Grievance of whatever nature can find way in a Labour Court only after due compliance of the mandator provisions of section 25-A, I. R.
0. Thus, for a void order, the jurisdiction of a Labour Court can be invoked only when a notice under section 25-A is served to an employer.
10. No authority has been shown whereby it might appear that a person who voluntarily boycots domestic enquiry can ask for the service of second show-cause notice or the provision of enquiry report. Even nothing appears in Standing Order 15(4) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 to favour the petitioner's contention on this score. The point of late service of charge-sheet loses value, because as remarked above, the delayed service of grievance notice upon an employer destroys the remedy.
11. For the foregoing reasons, the application is dismissed with costs.