FAHMEEDA QADEER, MEMBER.----The appellant has filed the instant appeal under section 58 of Industrial Relations Act, 2012 against the impugned order dated 27.02.2019 passed by the learned Single Member, NIRC Sukkur Bench in case No.4B(137)/2012-K.
2. The brief facts narrated in this appeal are that the .respondent was Cashier m the Bank since 15.09.1991. He was posted at Daharki Branch, Sukkur as. Cashier at the time of incident took place he was assigned the duty of collection of Utility Bills at Daharki Branch. On 15.08.2002 he collected a Gas Bill of Rs.4i060/- and issued receipt to the depositor. Neither the amount collected was found entered in the collection scroll of the date nor deposited in the Company's collection account, this way he pocketed the said amount of Rs.4,060/-.
Accordingly, disciplinary action was initiated against him by issuing him statement of allegations of charges under the Removal from Service (Special Powers) Ordinance, 2000 [as were then applicable on appellant being a nationalized commercial bank] by framing the charges i.e. misappropriation of Rs.4,060/-, Breach of Trust and Breach of Rules and Regulations of the Bank. The inquiry officer found him guilty of all the above charges, during the course of domestic inquiry and, thereafter, keeping in view charges were proved, which were serious in nature and the documentary evidence brought on record, the competent authority issued him second show- cause, which respondent replied and the same was found unsatisfactory and, thereafter, he was awarded with the punishment of dismissal from the respondent Bank Service w.e.f. 11.12.2002. Being aggrieved by the order of dismissal he submitted appeal dated 18.12.2002 for reinstatement in the service with back benefits but the same was not acceded to by the competent authority and he was informed accordingly. Thereafter he challenged his dismissal before the Federal Service Tribunal by filing Appeal No.58/2004 which was abated in view of the judgment of the apex Court dated 27.06.2006 in Mubeen-us-Salam v. Federation of Pakistan and others reported as PLD 2006 SC 602. However, instead of meeting the directions of 90 days, the abatement order was obtained vide order dated 14.05.2010. The respondent without serving grievance notice filed Application No.58/2010 in the Sindh Labour Court No. V at Karachi, notice of the said was issued and the appellant bank filed preliminary legal objections and written statement. Respondent examined himself by filing his affidavit in evidence while on behalf of the appellant bank, Shehab Asif, holder of the power of attorney of the Bank and senior manager industrial relations and disciplinary, appeared for evidence and, meanwhile evidence was completed and in view of promulgation of IRA, 2012, the case was transferred to NIRC Bench at Karachi and, thereafter, Bench at Sukkur. Final arguments were advanced and, vide order dated 27.02.2019 the Single Member NIRC Sukkur Bench partly allowed the petition and set aside the impugned order / letter of dismissal dated 11.12.2012 and reinstated the respondent into service without back benefits with further direction to the appellant bank to retire the respondent from service on attaining the age of superannuation as per bank policy with full retirement and pension benefits. Hence, this appeal with prayer to call for the record and proceedings of the Bench of the Commission, and after hearing the parties, be pleased to accept the appeal, and set aside the impugned decision, and dismiss the grievance .petition so filed by the respondent.
3. The appeal under consideration is resisted by the respondents with full vehemence.
4. We have heard the arguments of learned counsel for the parties at considerable length.
5. The learned counsel for the appellant after reiterating the contents of appeal under consideration has further argued that the decision of the learned Member NIRC is based on non-reading and or misreading of pleadings on record and is contrary to the well settled principle laid down by the Apex Court and binding on the NIRC. That the learned Member erred in appreciating that after abatement of the Appeal by the Federal Service Tribunal, no grievance notice was served by the respondent before filing of grievance petition, Grievance petition filed before Labour Court was also time barred and no application of delay / condonation was filed by respondent. That the learned Member erred in appreciating that charges were admitted by the respondent in domestic inquiry as well as during cross-examination before the Labour Court and that the finding of the Single Bench of the NIRC which is not based on law. He prayed that to call for the record and proceedings of the Bench of the Commission, and after hearing the parties, be pleased to accept the appeal, and set aside the impugned decision, and dismiss the grievance petition so filed by the respondent.
6. Conversely, the learned counsel for the respondent after controverting the arguments of learned counsel for the appellant has supported the impugned order and prayed for dismissal of the appeal.
7. We have considered the arguments of learned counsel for the parties and perused the record available on file with due care.
8. From perusal of record, it reveals that the respondent was dismissed from service vide letter dated 11.12.2002, due to the allegations of misconduct, which were duly proved during the proper and fair domestic inquiry / disciplinary proceedings. During domestic inquiry / proceedings the respondent himself admitted in his cross-examination that, it is fact that proper domestic inquiry was conducted against him by the bank. It is fact that he had participated in the departmental inquiry, his statement was also recorded. It is fact that there was no pressure on him during the inquiry proceedings and it is fact that he was satisfied from the inquiry conducted by the inquiry officer. Therefore, his dismissal order is proper, legal and justified and there is no any discrimination for dismissing the respondent.
9. Further, the grievance petition of the respondent is hopelessly time barred as he approached before this Commission in the year 2010 after abatement of the appeal by the Federal Service Tribunal. The Honorable Supreme Court while directing the abatement of the proceedings not covered by the judgment has allowed 90 days' time to the affected person to approach the proper forum. The limitation provided under Section 46 is not applicable in view of he pronouncement of the Honorable Supreme Court and the appellant can approach the proper court within 90 days. As such, limitation was not to be counted as from the date the case was returned by the FST but from the date of judgment 27.06.2006 and therefore the grievance petition had to be filed by or before 26.09.2006 and no application of delay/condonation was filed by respondent and limitation also cannot be condoned without application.
10. Moreover, the respondent did not serve grievance notice upon appellant bank before filing of grievance petition. Regarding service of grievance notice, the respondent himself admitted in his cross-examination that it is fact that he had not served grievance notice to the authority who had dismissed him from the service. It also appears that the respondent wrongly addressed his departmental appeal to the President of HBL as such it was also not legal / valid.
11. Additionally, the respondent himself admitted in grievance application in para No.14 that it was only minor mistake of not receiving the surcharge as such, it is clear admission by the respondent himself that he was negligent person and not fit for the Banking Job as each penny counts in the Banking transactions and a Bank employee who deals with money, his integrity has to be above board and he must keep in mind that even an iota of doubt on the integrity could cost his service. The Honorable Apex Court have held that irreparable loss to the Bank is caused, because Bank depend on the goodwill and reputation for its employee who hold office of officer grade-III who cannot be allowed breach of trust, as in the case (2007 SCMR 198).
12. Furthermore, the appellant Bank as a fair and good employer / Master has granted benefits and reward (s) to its employee / servant, which were also given to respondent but no master can afford to retain a servant whose creditability / integrity is doubtful, particularly in the Banking business, where each penny in each transaction is to be fully accounted for / maintained. Whereas in this case, not only the allegations against the respondent were proved but the failures and acts of misconduct were also established against the respondent, as well as, also admitted by him during inquiry proceedings, as a result of which he was rightly and lawfully dismissed from services.
13. For what has been discussed above, we are of the opinion that the learned Single Member has erred in the law and committed irregularity and illegality while passing the impugned order 27.02.2019, which is hereby set aside, in this context the instant appeal is allowed and the grievance petition stands dismissed. No order as to costs. File be consigned to record room after its due completion.