DECISION ' The respondents Muneer Ahmed, who was employed as a Ledger Clerk in the Daharki Branch of the appellant bank, was dismissed from service, vide letter, dated 31st July, 1980, on the charge of failing to take proper action, in accordance with the rules in respect of a cheque for Rs, 30,000 with the result that the said cheque was unauthorisedly passed.
' The respondent challenged the orders of his dismissal before the learned VsIth Labour Court at Sukkur, which has set aside the orders of his dismissal and directed his reinstatement in service with full back benefits, as prayed by the respondent, on the ground, firstly, that the respondent was not furnished with a copy of the Enquiry Officer's report, though he applied several times for the same and was only given a brief entract of the Enquiry Officer's report, and that secondly, there was no proper examination of the witnesses in the enquiry proceedings as the respondent was not given an opportunity of cross-examination. Dissatisfied with this decision, the appellant bank has come up in appeal to this Tribunal.
2. In order to appreciate the respective contentions made before this Tribunal by this learned counsel of the Parties it would be appropriate to state the salient facts which form the background of this appeal. It appears that Cheque No, 327171, issued by Messrs Kalamai Shankermal, drawn on the Daharki Branch of the appellant Bank, in favour of Mr. Ghanshamdas, for a sum of Rs, 30,000 was presented at the Daharki Branch on 8th July, 1978, the date recorded on the cheque itself. The cheque could not be honoured due to want of sufficient funds in the account of the drawer. The cheque should have been returned unhonoured to the drawer in accordance with the practice of the Bank, but it appears that this was not done on the plea that the cheque had become untraceable. It is the case of the Bank that a stop payment order in respect of the said cheque was issued upon receipt of such a request from the drawer. However, the said cheque somehow was deposited at the Miani Branch, Sukkur, of the appellant Bank, from where it was received for collection by the Daharki Branch on or about 18th December, 1978. The cheque is said to have been un-authorisedly kept at the Daharki Branch upto 28th December, 1978, when it was passed for payment order was still in force. The alleged fraud came to the notice of the bank authorities when the Daharki Branch was Inspected in March, 1979, by Mr. Abdul Qayoom Abbassi, Regional Inspector. On the basis of his report an inquiry was ordered by the bank, to be conducted by the Assistant Vice President, Mr. Basbir Ahmed Siddiqui. The Enquiry Officer found the respondent and Officer, Hafizur Rehman, mainly responsible for the unauthorised passing of the cheque in question but was also of the view that the other staff of the bank, namely, Manager Abdul Satter Dakhan, Officer Ajmal Zaidi and Officer Nafees Ahmed Siddiqui, had also exhibited negligence in the performance of their duties. The Enquiry Officer further found that Officer Lachmandas had acted negligently in that he had not cared to put the stop payment rubber stamp or put in his own hand writing the- stop payment instructions on the ledger folio. As regards the Manager, Miani Branch, the Enquiry Officer was of the view that he had acted in good faith.
3. Mr. Shafi Muhammad, the learned counsel for the respondent employee, supported the impugned decision of the learned Labour Court on the ground that the charge sheet given to the respondent was in contravention of clause (4) of Standing Order 15 and consequently the subsequent proceedings, including the orders of dismissal from service of the respondent, are invalid and contrary to law. I regret that 1 find no force in this contention. Clause (4) of Standing Order 15 provides that if it is proposed to dismiss a workman, the act of misconduct on the basis of which the said action is proposed to be taken against him must be brought to his notice within one month of the commission of such act or within a month of the commission of such act coming to the knowledge of the employer. In the instant case, although the alleged unauthorized passing of the cheque is said to have occurred on 3rd January, 1979, that matter appears to have come to the notice of the bank authorities on 14th March, 1979, when Regional Inspector, Mr. Abdul Qayoom Abbassi, submitted a report to the bank authorities about the fraud while inspecting the Daharki Branch. The respondent was served with a charge-sheet on 26th March, 1979, i,e,, twelve days after the report of Mr. Abdul Qayoom Abbassi. As such, the charge-sheet was served upon the respondent well within one month of the matter being brought to the notice of the bank authorities.
4. It next falls to be considered whether in refusing to supply the respondent with the full report of the Enquiry Officer, the appellant bank has acted either in contravention of any law or in violation of any principle of natural justice. Clause (4) of Standing Order 15 specifically provides that a workman, whom it is proposed to dismiss for having committed an act of misconduct, must be given an opportunity to explain the circumstances alleged against him. The respondent was served with a detailed charge-sheet, which reads as under "Payment of Cheque No, 327171 of C D Account No, 851 for Rs, 30,000 Account Messrs Kokumal Shankermal : ' It has been reported that the above cheque which was received at the branch under IBC on 18th December, 1978 was lodged on 28th December, 1978 and handed over to you for posting in the ledger. You kept the said cheque with yourself and posted it in the ledger on 3rd January, 1979 in spite of the fact that cheque series appeared to have been written at the time of posting of the said cheque and no proper entry of cheque series have been found on the ledger folio which indicates that you had wilfully entered the wrong cheque series and passed the cheque at your own convenience.
' You are hereby called upon to explain as to why you did not take proper precautions while entering the cheque series and posting the cheque of 5 1/2 months old and especially when it was in your personal knowledge that the payment of the cheque was stopped by the drawer. You are called upon to explain as to why the stop payment instructions were not carried forward to the other folios in the ledger by you.
' Your explanation in this regard must reach us within three days from the date of receipt of this letter."
5. A perusal of the charge sheet indicates that the allegations against the respondent were, firstly, that he had unauthorisedly kept the cheque with himself till 3rd January, 1979 when it was passed for payment, secondly, that he had wilfully entered the wrong cheque series and passed the cheque after entering the cheque was passed in spite of the fact that stop payment orders were issued in respect of it.
6. The enquiry proceedings, however, appear to have suffered front a number of serious infirmities.
It appears from the report of the Enquiry Officer to which I have already referred that the entire staff of the Daharki Branch was suspected, including the Manager of the Miani Branch at Sukkur, and enquiries were conducted in respect of all of them. As such, the appropriate course would have been, even if a joint enquiry in respect of so many persons was appropriate in the circumstances, to permit the suspected persons to cross-examine the witnesses in the enquiry. However, the admitted position is that no such opportunity of cross-examination was given either to the respondent or any other person suspected of having hand in the fraud. It may be pointed out that even according to Rule 5 of the Efficiency & Discipline (Banks & Financial! Institution) Rules, 1975, the "authority" is either to inquire into the case itself for obtain an independent report on the case in writing from an Officer or a Commission of Officer specially deputed by the authority to investigate the case. The report of the Enquiry Officer/ Committee is to be laid before the authority who is then to consider the matter and impose penalty as it deems proper in the circumstances.
7. The next flaw in the enquiry proceedings is that the Enquiry Officer acted as if he was conducting investigation and has put searching questions to the respondent as also to the other suspects.
Furthermore, the answers given to such questions have been sought to be used against the respondent and other suspects. For instance the claim of Officer Lachmanda that he had given the stop payment slip to the respondent for posting I the stop payment register has been used against the respondent without the respondent being given an opportunity either to cross-examine Lachmandas on this issue or to explain this allegation against him. It may also be mentioned that no opportunity of leading defence appears to have been given by the Enquiry Officer to the respondent or the other suspects.
8. Finally, as this was a composite enquiry against the respondent and other suspects in which statement of one suspect was used against the other suspect including the respondent, the refusal of the management to furnish the respondent with the entire report of the. Enquiry Office amounted to denying the respondent a proper opportunity of show in cause against either the evidence adduced in the enquiry proceedings of the finding of the Enquiry Officer. In the case of Punjab Road Transport v. Punjab Labour Appellate Tribunal (1) it has been held that where the employer holds an enquiry into alleged misconduct of an employee, he cannot act upon the finding of the Enquiry Officer without giving an opportunity to the employee to explain his position with respect to the said finding and this cannot be done unless he is supplied with a copy of the Enquiry Officer's report. The view taken by the Punjab High Court in that case was approved by their Lordship of the Supreme Court in the case Punjab Road Transport Corporation v. Punjab Labour Appellate Tribunal (2) and it was observed as follows :- "In our opinion, therefore, it was necessary and consistent with the principles of natural justice that not only the respondent should have been furnished with a copy of the enquiry report but also he should have been given an opportunity to show cause why the order of dismissal should not be passed against him. Evidently such an opportunity must take the form of written show-cause notice to the respondent. The mere fact that the respondent had a personal audience with his employer when he asserted he was not guilty cannot replace the aforesaid requirement of law." {{FOOT NOTE}}
(1) PLD 1976 Lab. 209 (2) 1973 SCM R 455 {{FOOT NOTE}}
9. Since the respondent was neither supplied with full copy of the Enquiry Officer's report nor given an opportunity to cross-examine the witnesses testifying against him, he cannot be said to have been given a fair and full opportunity to defend himself. In consequence, the dismissal orders in respect of the respondent cannot be maintained.
10. The upshot of the above discussion is that I would maintain the decision of the learned Labour Court and would dismiss the appeal of the appellant bank. However, it would be open to the bank to initiate proper enquiry, in accordance with the law, against the respondent workman on the original charge-sheet. The award of back benefits would depend upon the result of such enquiry.