The facts giving rise to the present appeal are that the appellant who was a Clerk in the respondent Bank made an application Exh. R-1 for House Advance of the amount of Rs. 40,000 on 8th August. 1976. Attaching to it a deed of agreement to sell (Exh. R-5) executed in his favour. One Mr. Humayun Aziz was deputed to investigate into the genuineness of his application, who submitted a report (Exh. R-6) to the effect that the agreement was in respect of a plot and not a house, nor any house existed at the place mentioned in his application and the agree--ment Exh.
R-5. The explanation of the appellant was called and he submitted his reply. Since the application of the appellant was found to be incorrect, the Bank authorities became alert and they decided to investigate into the claim of one Inam Khan, Chowkidar, who had also applied for House Advance.
His papers were entrusted to the appellant for being despatched to the Head Office. Inam Khan was asked by Mr. Iqbal Qureshi to produce another set of the documents already produced by him and entrusted to the appellant for onward transmission to the Head Office, Karachi. When the papers of Inam Khan were demanded from the appellant, he said that he had returned the same to Inam Khan. Two charges were framed against the appellant. One charge was in respect of his application for House Advance, although he had entered into an agreement to purchase a plot and the second charge was in respect of returning the papers to Inam Khan in derogation of the instructions given to him for despatching them to the Head Office, Karachi. Learned counsel for the appellant has argued that so far as the first charge is concerned, the act of giving application for House Advance, whereas the agreement to sell was in respect of a plot, did not amount to any fraud, inasmuch as :ill then neither the advance was sanctioned, nor, the appellant had received the amount. He says that the act done by the appellant amounted to only making of misstatement in his application and that this not being a misconduct, he could riot be dismissed. This argument does not appear to be without force. Since neither the advance had been sanctioned, nor the appellant had received any amount of House Advance, it could not be said that the Bank on the deceptive application and assertion of the appellant did any act which would not have been done if misrepresentation had not been made. To complete the offence of fraud, it is necessary that the person to be deceived must have done some overt act on the misrepresentation which it would not have done if the misrepresentation had not been made. If the amount bad been sanctioned and even if it had not been received, there could be scope to say that the Bank had actually been deceived and if misrepresen--tation had not been made by the appellant stating that he was purchasing a house, the Advance would not have been sanctioned. At the same time it cannot be said that the misstatement made by the appellant was no offence. What 1 mean to say is that the offence of fraud and deception had not yet become complete before it was detected. So other penalty than dismissal or removal from service, could have been imposed after observing the procedure given in paragraph 258 of the Wage Commission Award.
2. So far as the second charge is concerned, the plea taken by the appellant is that he understood that the papers were to be given back to Inam Khan for the preparation and production of another set of the documents. Mr. Iqbal Qureshi in the enquiry admitted that he had asked Inam Khan for the production of another set of the documents, which were with the appellant. There is no evidence as to with whom were the original documents. Admittedly, the documents of loam Khan, which were with the appellant for onward transmission to the Head Office, Karachi, were the photostat copies, and were not originals. If the origi--nals were not with Inam Khan, he was not in a position to produce an--other set of the documents, unless the originals or the photostat copies which were with the appellant had been returned to him, This is true that the appellant had been instructed to despatch the documents to the Head Office, Karachi, but there is no evidence that he was expressly pre--vented from delivering the documents to Inam Khan. If there had been express instructions to that effect, of course it could be said that he acted in derogation of the instructions of his superior. There is no evidence to this effect also that the appellant knew that the documents of Inam Khan which were to be sent to the Head Office, Karachi, were either bogus or in them misstatement had been made as the appellant had made in respect of his own House Advance. If there had been evidence to the effect that the appellant knew that those documents were suffering from any such defect, there could be scope to say that he had with mala fide intention and' to save Inam Khan from an action, returned the documents to destroy the evidence standing against him.
3. The other defect is that the enquiry officer was not examined before the lower Court in support of the enquiry proceedings, with the result that the enquiry proceedings were accepted in evidence without an opportunity being afforded to the appellant to cross-examine their author i.e. The Enquiry Officer. The case of the appellant is that he was not afforded opportunity to cross-examine certain prosecution witnesses. If the Enquiry Officer had come in the witness box, the appellant would, have opportunity to cross-examine him on this point and the answers given by the Enquiry Officer would have been considered by the Court to come to a conclusion whether the objection raised by the appellant in this respect was well-founded or was wrong.
4. For the reasons given above, there was no justification for the lower Court to dismiss the grievance petition of the appellant. I, accord--ingly, accept the appeal and setting aside the impugned decision of the lower Court and the order of dismissal, direct the reinstatement of the appellant. Since admittedly, he made misstatement in respect of his House Advance, he is not entitled to back benefits.