WIQAR AHMAD J:-.Through instant petition filed under Article 199 of Constitution of Islamic Republic of Pakistan 1973, petitioner Fazle Rabi Ex-Cashir (P.No.399023) has challenged the impugned judgment dated 06.08.2020 passed by worthy Full Bench National Industrial Relations Commission, Islamabad, whereby appeal of respondents No.1 to 4 filed against order dated 13.02.2020 of learned Single Member NIRC Bench Peshawar, was allowed.
2. Brief facts are that petitioner was working as Cashier in Habib Bank Nawagai Branch Buner, when he was suspended on the ground of shortage of cash of Rs. 13,04,000/- in the bank lockers. He was issued show cause notice, which was replied by him. Further inquiry was conducted and at conclusion of inquiry, petitioner was found guilty of misconduct and subsequently dismissed from service on 01.06.2011. He filed a departmental appeal against his dismissal order, which was not replied by concerned respondents, therefore, he filed Grievance Petition before worthy Member NIRC Bench Peshawar, which was allowed and petitioner was reinstated in service with full back benefits on 13.02.2020. Aggrieved from same, respondents bank filed appeal under Section 5 8(1) of the Industrial Relations Act 2012 (hereinafter referred to as IRA 2012), which was allowed by worthy Full Bench NIRC, Islamabad vide order dated 06.08.2020, thereby setting aside order of learned Member NIRC Peshawar. Petitioner feeling aggrieved from said order, approached this Court by filing Writ Petition No.4680-P/2020, which was allowed by this Court vide judgment dated 16.11.2022.
Respondent challenged impugned order of this Court before Hon'ble Supreme Court of Pakistan by filing Civil Petition No.4174 of 2022, which was allowed vide order dated 4.5.2023 thereby remanding the case to this Court for rehearing the parties and decide the matter in line with principles laid down in case of "Madan Gopal Versus Maran Bepari" (PLD 1969 SC 617) by way of a detail judgment.
3. Arguments heard and available record perused.
4. Perusal of record reveals that findings of both the forums below had been at variance therefore in order to reach at a correct conclusion this Court would have to reassess the material present before the forum below as well as departmental authority. It is also held by Hon'ble Supreme Court of Pakistan in case of "Karim Bakhsh through LRs and others Versus Jindwadda Shah and others" reported as 2005 SCMR 1518 that while being seized with even a second appeal when findings of two Courts below are at variance then High Court may re-appreciate evidence on the basis of which the two forums below had reached different conclusions.
5. The incident that had led to dismissal of petitioner relates to a single date of 12.03.2011. It so happened that new Manager namely Daulat Khan was transferred to the Branch of Habib Bank at Nawagai. He while taking charge from outgoing Branch Manager, detected a short fall of Rs.
13,04000/- in the bank branch. Petitioner had been posted as Cashier in said branch on that day.
He had brought a cheque at 09.30 pm on said date of 12.03.2011 (as per statement of Daulat Khan Manager) and stated that Rs.13,00,000/- had been paid to the account holder namely Bakhti Zada on 12.03.2011 but at the time of process of reconciliation said cheque had not been in his possession as it had been lying in the clearance register of former Manager. He also paid a short fall of Rs.
4000/-. This development led to initiation of proceedings against petitioner wherein show-cause notice was issued against him on 05.04.2011 by Head Industrial Relations & Disciplinary Action, HR.
Inquiry was conducted wherein statements of two witnesses were recorded and finally Inquiry Officer found him guilty of misconduct, on the basis of which report, the competent authority ordered dismissal of petitioner from service. The conclusion of inquiry report is also reproduced hereunder for ready reference.
"Conclusion: In routine cases whenever dash shortage is found, cashiers after detail probing, themselves inform the Manager or their Incharge and seek help of all the relevant staff in sorting out the problem. However, in this particular case the incoming manager Mr. Daulat Khan while checking the cash detects the shortage and more astonishing is the situation that the shortage is detected denomination wise. (Refer ex-p/4 and po/14). It means that the Defendant Mr. Fazli Rabi had already bogus balanced the cash. The defendant in his statement claims that the lost cheque as found by the Manager after Issha prayer (refer deposition of the defendant. Page 8 of the inquiry proceedings). While on the other hand lie did not cross examine the prosecution witnesses I & II to rebut their statements when they state that the Defendant arranged/ brought a cheque Rs.13,00,000/- to make the shortage good.
The defendant in his deposition states that the lost cheque was found by the manager which was lying in the receipt/ payment register which is unbelievable because the receipt payment book is the main document which would have been checked so many times by all concerned to trace out the shortage and had the cheque in question there, would have been definitely found much earlier and not taken almost eight hours.
The entry of cheque for Rs.1300000/- in payment book at an improper (out of routine) place also indicates an unusual happening.
Keeping in view the above, I understand that following charges levelled against the defendant vide show cause notice No.AHK/MAB/ 399023 dated 5.4.2011 stand established."
6. So far as basic facts of case are concerned, same were admitted to the effect that at 1.30 pm, the incoming manager Daulat Khan had physically verified cash with the available data of Cashier and found short fall of Rs.1,34,000/- and in later part of same day, petitioner had produced a cheque where against he had statedly cleared and cashed the cheque of Rs.13,00,000/- to one Bakhti Zada (account holder of the bank) and had also deposited shortfall of Rs. 4000/- in cash. To this extent there was no difference in findings at the inquiry or at the forum of NIRC signal Bench or worthy Full Bench of NIRC. The difference was arising in interpreting the facts and conclusions drawn from established facts. The Inquiry Officer had presumed that had the cheque been cleared then same would have been lying with the cashier and it should have been presented to the incoming Bank Manager on 12.03.2011 at 1.30 PM. Claim of petitioner that the said cheque could not be presented at 1.30 pm because it had been lying in the receipt/payment register in the cabin of the Manager, was not accepted as believable. Additionally the worthy Full Bench of the NIRC had also accepted arguments of learned counsel for Bank and drawn inference that a second cheque book has been issued to Bakhti Zada despite the fact that his first cheque book had been lying unutilized (as only one leaf thereof has been used) and on the basis thereof it was suspected that petitioner had himself maneuvered to issue cheque book to Bakhti Zada, used one of the page and wrongly shown it cleared that very date while infact all this exercise had been done by petitioner for the purpose of clearing short fall of cash fund against him.
7. The worthy Full Bench of NIRC, had borrowed farfetched presumption which was not having full support of the available record. While inferring the adverse presumption against petitioner, who an employee i.e, cashier, the worthy Full Bench of NIRC had not noted that issuance of cheque was not responsibility of the cashier. Issuance of cheque book had not been made on 12.03.2011, which was the crucial date of the incident, same had rather been issued on 11.03.2011. Such statement is available on page 9 of CM No.1408-P/2023 filed by learned counsel representing the Bank. It clearly shows that disputed cheque had been issued to Bakhti Zada on 11.03.2011. When asked in question No.8 by prosecutor during inquiry the petitioner had replied that issuance of cheque book was not his duty. He could not be confronted with any manual or instruction by the Prosecutor indicating that issuance of cheque was sole responsibility of cashier.
8. The worthy Full Bench did not notice again, that a cheque cannot be cleared unless so authorized not only by cashier but by a second officer and Manager during the inquiry of the Bank.
It had come in evidence during inquiry that this was a small bank comprising of two members i.e cashier and Manager therefore, clearing a cheque was not only supposed to have been made by Cashier but also by former bank manager. Nothing is available on record that the cheque presented by petitioner and encashed to Bakhti Zada Account Holder had not been authorized or cleared by bank Manager. Here again adverse presumption was not having support of the record rather record was suggesting something to contrary. In this respect a specific question No.3 had also been asked by the prosecution in the inquiry report from petitioner which is also reproduced hereunder for ready reference.
"Q.3 Whether the said cheque was posted and cancelled by the branch manager?
A. Yes.
It indicates itself that prosecutor had suggested that the cheque has been posted and cancelled by Bank Manager. It was not a case of bank that Manager was involved with cashier in his alleged maneuvering. Had it been so then proceedings should have also been initiated against former Manager, who was serving before arrival of new bank Manager Daulat Khan. When further asked by the Prosecutor, the petitioner had also replied that he had informed the incoming Manager namely Daulat Khan that the cheque in question had been lost. No statement of Bakhti Zada (account holder) has been recorded during course of inquiry nor Bakhti Zada has filed any complaint disowning receipt of substantial sum of Rs. 13,00,000/- on the given date i.e, 12.3.2011. Had he not received the amount on the given date, he would have been the first person to lodge complaint to bank authorities but he has never lodged any complaint nor had he disowned his signature on the cheque or receipt of the amount. There was no direct evidence before inquiry officer whereupon it could have been concluded that Bakhti Zada had not received said amount or had not got his cheque encashed on 12.03.2011. All the conclusions drawn were based on presumptions and assumptions on the basis whereof an employee having 20 years service had been dismissed. The dismissal was also depriving him from his terminal benefits and relieving the bank of its liability in this regard. The new Manager i.e, Daulat Khan has stated in his statement that it was his first day in the Bank. The reconciliation was being made on a date when the bank was also open for banking business and public dealing. It was not out of imagination that any encahsed cheque might have got displaced. A cheque is normerly circulated in the Bank before encashment and there was every possibility that same might have remained on the desk of Manager. This fact is amply clearly from the fact that same had been posted and cancelled by Branch Manager. The presumptions drawn by inquiry officer was further added by worthy Full Bench of NIRC, which had drawn a series of further presumption and thereby allowed the appeal setting aside judgment of single Member Bench of NIRC restoring the petitioner. Although certain observations of the Single Member in respect of non affording opportunity of cross examination, were not correct according to record, but this does not mean that a decision doing substantial justice should have been reversed by Full Bench. When the matter of cheque was resolved then the bank staff found short fall of Rs. 4000/- but that also when cashier was also busy in entertaining clearing of cheques and doing routine business of the bank. Such short fall is very natural and may be result of human error and same could not be construed adversely to petitioner. The penalty announced to petitioner was also disproportionate to quantum of negligence on the part of petitioner and his misconduct has totally been based on assumption and was not believable.
9. Worthy Full Bench has also inter alia held that grievance petition of petitioner had been time barred. When confronted learned counsel for petitioner stated that he had filed appeal before the Bank and was waiting for its result but when the appeal was not entertained by the Bank and finally he came to know that appeal was not going to be decided then he served grievance notice on respondent bank on 11.11.2011 and filed Grievance Petition on 1.01.2012. Order of dismissal of petitioner had been passed on 01.06.2011 and he had filed appeal on 13.06.2011 before bank. The respondent Bank neither returned the appeal nor rejected it on any technical ground which means that bank had entertained the appeal but had not made any decision thereon. When remedy was provided to petitioner, he was justified in availing it and expecting that the bank would deal him benevolently. Conduct of the Bank in not entertaining the appeal despite the fact that it had terminated the employee, was not an appropriate exercise of authority at the bank's end. In such circumstances, no premium could be paid to the bank. When it had become clear to petitioner that bank was not going to decide his appeal he sent a grievance notice and also filed grievance petition thereafter, which had rightly been dealt by original forum i.e, Single Member Bench of NIRC to be within time. Reliance may be placed on judgment of Hon'ble Lahore High Court in the case of "Muhammad Ajmal Versus Chairman Punjab Laboru Appellate Tribunal Punjab, Lahore and 5 others" reported as 2018 PLC 189 Lahore.
10. Hon'ble Supreme Court of Pakistan while giving its judgment in case of "Madan Gopal Versus Maran Bepari reported as PLD 1969 SC 617, had inter alia laid down that if findings of fact reached by first appellate Court was at variance with that of trial Court, the former would ordinarily prevail although it would not possess the same value or sanctity as a concurrent finding. It was however laid down that such a finding of lower appellate Court would only be immune from interference in second appeal when it was found substantiated on the record and supported logically. While hearing case in hand, this Court found that the judgment and reasoning of appellate forum was not having support of evidence on record and reasoning was also illogical.
11. This Court also considered whether in instant Constitutional jurisdiction finding of facts reached by forum of appeal could be revisited by this Court in exercise of its Constitutional jurisdiction. It was found in light of judgment of Hon'ble Supreme Court of Pakistan that where decision of a departmental authority is of such a nature, which could not be found justifiable on the basis of material present before authority and where there is no proper findings, upon which an inferior Tribunal reaches a decision then the High Court may reverse such an order of Tribunal. Reliance in this respect may be placed on the judgment of Hon'ble Supreme Court of Pakistan rendered in case of "Safeer Travels (Pvt) Ltd Versus Muhammad Khalid Shafi through legal heirs" reported as PLD 2007 SC 504, where on the basis of survey of existing case law Hon'ble Supreme Court of Pakistan has held that High Court in its constitutional jurisdiction was justified for reversing judgment of learned appellate forum for the reason that decision of lower appellate forum was not supported by material on record. Relevant observations of said judgment are reproduced hereunder for ready reference:- "25. The perusal of the judgment of the appellate Court indicates that on one hand, as noted above, it arrived at a conclusion that no fraud or misrepresentation has been raised and the appeal against the impugned order dated 29-4-2005 was dismissed, but on the other hand at the end while accepting the appeal both the orders dated 29-4-2005 and 1-11-2004 were set aside. The judgment of the appellate Court is not clear and ambiguous one and also has proceeded on wrong premises. The orders passed by the Rent Controller are in consonance with the law and their selling aside was not proper and legal.
26. This Court, on several occasions, has held that the High Court in its constitutional jurisdiction can interfere with the judgment and order of the appellate Court if the view taken by the appellate Court was not only contrary to the established principles of law, but also contrary to evidence on record or had flouted the provisions of statutes or failed to follow the law relating thereto as held in the case of Lal Din Masih v. Mst. Sakina Jan and another 1985 SCMR 1972.
27. The High Court in its Constitutional jurisdiction will not only to see that the inferior tribunals keep within their jurisdiction but also to see that they observed law, as held in the case of Rahim Shah v. The Chief Election Commissioner of Pakistan and another PLD 1973 SC 24.
28. In the case of Messrs A.C.E. Enterprises through Khalid Pervez v. Additional District Judge, Lahore and others 1987 SCMR 1174, this Court while dismissing the petition filed against the judgment of the High Court whereby in its constitutional jurisdiction it has set aside the order of the appellate forum, it was observed that where the forums below fail to act in accordance with the enunciation of law made by the superior Courts, such an error can be corrected in the exercise of writ jurisdiction. Reliance was placed on the case of Muhammad Sharif v.
Muhammad Afzal Sohail PLD 1981 SC 246.
29. In the case of Muhammad Hayat v. Sh. Bashir Ahmed and others 1988 SCMR 193, this Court, in a rent case, the plea raised that findings of the appellate Court were final and could not be interfered within writ jurisdiction, repelled and it was held that the appellate Court having misread evidence on record, his findings which were based on misreading of evidence, stood vitiated and such order, held, was not immune from interference in writ jurisdiction.
30. In the case of Abdul Hamid v. Ghulam Rand and others 1988 SCMR 401, when the findings of the District Judge in a rent appeal were found conjectural, based on misreading of record and on evidence taken out of context, by the High Court, were set aside by the High Court in constitutional jurisdiction and it was held by this Court that the High Court was justified in circumstances in interfering with the appellate order.
31. In the case of Muhammad Lehrasab Khan v. Mst. Ageel-unNisa and 5 others 2001 SCMR 338, it was observed that where the District Court, which is the appellate Court, and it reversed the. finding of the trial Court on the grounds not supported by material on record, the High Court can interfere with such finding by issuing writ of certiorari to correct the wrong committed by the appellate authority and the High Court can justifiably exercise its Constitutional Jurisdiction as the same is supervisory as well as in aid to subserve the cause of justice and to correct a wrong wherever the Court finds to have been committed being contrary to evidence and the law on the subject.
32. For what has been discussed above, and while maintaining the judgment of the High Court vide which the judgment/order of the Additional District Judge was set aside and that of the Rent Controller was restored, the appeal is dismissed with no order as to costs"
12. This Court delved deep into record for the reasons that both the special forums had taken different stances on material which was existing before both the forums. While looking into material it was also found that judgment of appellate Forum was not arising from correct appraisal of material present before it. A clear case of misconduct on the part of petitioner could not be found decipherable from record present before departmental authority.
13. In light of what has been discussed above, instant writ petition is allowed, impugned order dated 06.08.2020 of Hon'ble Full Bench NIRC, Islamabad is set aside and that of order dated 13.02.2020 of learned Member NIRC Bench at Peshawar is restored.