The two appeals captioned above arise from the decision dated 22r September, 1980 passed by the learned Presiding Officer, Punjab Labor Court No. 1, Lahore, whereby the grievance petition of Ghazanfar Iqbal was accepted and he was directed to be re-instated in service without back benefits. The Bank has preferred appeal against the re-instatement Ghazanfar Iqbal, whereas Ghazanfar Iqbal has in his appeal claimed back benefits. As the two appeals arise from the same decision, they a being disposed of together through this single judgment, in which Allied Bank of Pakistan will be described as the appellant while Ghazanfar Iqbal as the respondent.
2. The respondent was class-111 officer and was working as an Accountant at the time an embezzlement took place. There were as many as four charges against him, out of which, according to the Enquiry Officer, charges Nos. 1 to 4, 7, 9 and 11 were proved and charges Nos. 5, 6 and 8 were not proved. The charges are reproduced in the impugned decision and need not be detailed in this judgment. Only one witness Mr. Sultan Pervez was examined during the enquiry. The respondent gave his own statement and did not propose to examine any witness in defence. In reply to the charge-sheet, the respondent contended that the procedure reproduced in charge No. 1 was never made known, nor the contents of letter No. SAK/2053, dated 2nd March, 1978 of the Area Chief was ever. Conveyed to him. The, instruction mentioned in charge No. 1 is that the cheques for the amounts of Rs. 10,000 and above should be signed and passed jointly by the Accountant and the Manager. In charge No. 1 reference is not made to any particular cheque which may not have been signed deliberately by the respondent. There is no evidence to the effect that any particular cheque exceeding the amount of Rs. 10,000 had been placed before the respondent and he refused to sign it. Rather a bank officer can refuse to put his signatures, if he is not satisfied about the genuineness of the signatures appearing on a cheque. If he is of the view that the signatures appear--ing on the cheque do not tally with the specimen signatures or that the signa--tures are doubtful, he can refuse to put his signatures. There is no evidence that letter No. SAK(2053, dated 2nd March, 1978 was ever got noted down by the respondent. The learned lower Court has, therefore, rightly held that charge No. 1 is not established.
3. Reply to the second charge given by the respondent is that no duties mentioned in charge No. 1 were assigned to the Accountant. In proof of charge No. 2 no duty roster or oral evidence was produced to show that it was the duty of the Accountant' to issue cheque books and loose cheques to the consumers and that he was responsible for their safe custody. It is also mentioned in charge No. 2 that the Manager had been issuing the cheque books. Since the Manager, who was the incharge of the branch was himself issuing the cheque books, the respondent being an Accountant had no occasion to do this work. It was the Manager who had been practising fraud and making the embezzlement of money by issuing bogus cheques. The respondent could not be made responsible for it in the absence of cogent evidence of participation in .The misappropria-- tion. There is no evidence that the respondent knew that the Manager was making any embezzlement by improperly issuing the cheque books. Charge No. 2 was, therefore, rightly held by the learned lower Court as not established. The respondent replied charge No. 3 denying the factum of issuing cheque book containing cheques from No. 16426 to 16450 to Muhammad Sodagar. He contended that the cheque book was issued by the Manager. Kh. Sultan Pervez no doubt stated that the cheque book referred to above was issued by the respondent, but he has not made any reference to any document or register, nor any such document was produced during the enquiry or before the learned lower Court to show that the entries were in the handwriting of the respondent with regard to the issuance of the above-mentioned cheque book. Mr. Sultan Pervez did not state that the said cheque book was issued by the respondent. Is his presence.
Muhammad Sodagar to whom the cheque book was issued also was not examined. So charge No. 3 also as rightly held by the learned lower Court as not proved.
4. Answer to charge No. 4 given by the respondent is that the charge is not clear to him. The charge reads as under :- "Record of requisition slips on which the cheque books were issued was not maintained properly with the result that the requisition slips are not available in the branch."
The charge appears to be wrongly worded. The word `not' appears to have been wrongly written.
Record of requisition slips on which cheque books were issued are to be maintained properly. There is no necessity to maintain the record of the requisition slips on which cheque books were not issued. Since the charge was wrong and was not understandable to the respondent, it was wrongly held by the Enquiry Officer to have been proved. Learned lower Court has rightly held that the charge was not established.
5. The reply to charge No. 7 is that he had brought to the notice of the Manager several times that the statements of accounts were not being prepared by the staff. But be did not produce any evidence in support of his this contention. If he orally informed the Manager, it was not sufficient. He should have made a report in writing. He was, therefore, guilty of not performing his duties. But at the same time it cannot be said that the Manager who was the incharge of the branch did not know that the statements were not being prepared. The statements are always sent through the Manager. Even if the respondent did not report to him, yet the Manager was not absolved of the responsibility. However, the charge stood proved in view of the position taken by the respondent in reply to this charge. On account of the admission of the responsibility to report to the Manager, there remained no necessity for the prosecution to prove the charge. I, therefore, , hold that this charge had been established.
6. The reply to charge No. 9 given by the respondent is that the amount of cheque No. 9483859 was credited in the account of Pir Bakhsh and the credit voucher was signed by the Manager. He said that the alteration in the name was also authenticated by the Manager in the clearance register and the voucher had also been signed by him. Since he had denied the charge, the voucher and other record should have been produced to show that everything was done by the respondent. The solitary witness examined in the enquiry did not say that the respondent had prepared and signed the cheque and credited the cheque in the account of Pir Bakhsh instead of Ghulam Farid. The charge was rightly held as -not proved.
7. The reply of the respondent-to charge No. 10 is that he had asked the staff on various occasions to prepare the balance confirmation slips of all the credits who had adopted C/D/S/B Accounts but due to scanty staff, the said slips were not prepared. He also said that the then Manager did not press the staff for the preparation of confirmation slips. The Respon--dent in his reply to charge No. 10 admitted his responsibility and function to ask the staff to prepare the balance confirmation slips. He did not produce any written order issued by him to the staff or written report made by him to the Manager: If the Manager did not press the staff to prepare the confirmation slips, it does not mean that the respondent was absolved of the responsibility. He was, therefore, guilty of carelessness and inefficiency. The charge, therefore, stands proved and the learned lower Court is wrong in saying that it was not established.
8. Reply to charge No. 1 I is that cheque No. 721031, dated 13th July, 1978 for Rs. 40,000 was passed by him as thumb-impression on the cheque was authenticated by the Manager himself and payment was made by the cashier at the counter. The respondent did not deny that the fraud was committed in respect of the said cheque. The cheque was for a huge amount of Rs. 40,000. The bank suffered loss of the said amount as not the account holder Mst. Hassan Bano withdrew the amount but some other unauthorised persons took away the money. It was the responsibility of the respondent also to compare and verify the thumb-impression appear--ing on the cheque. Two bank officers have to put their signatures after making comparison and verification of the signatures or the thumb. Impressions and both are responsible if some unauthorised person takes away the money and the thumb-impression or the signatures are found to be forged. If the respondent had not put his signatures on the cheque, it would not have been cashed. When the thumb-impressions appearing on the cheque did not tally with the specimen thumb-impressions, the respon--dent was not justified in countersigning the cheque. The learned lower Court has wrongly held that this charge was not established. By the admission of the respondent the charge stood proved and it was not necessary to produce evidence.
9. The learned lower Court has wrongly held that Standing Orders Ordinance, 1968 applies and not the Wage Commission Award. The reason given by the learned trial Judge is that the post of the Accountant is not mentioned in the list of workers supplied by the bank to the Wage Commission.
Neither the bank nor the Wage Commission has authority to decide who are workmen and who are not. They have no power to define the term 'workman'. Definition of `workman' is given in section 2 (xxviii) of the Industrial Relations Ordinance, 1969 and in the presence of this definition, no other person can say who is workman and who is not. The fact that the bank did not include the post of Accountant in the list is, therefore, no ground to say that an Accountant does not come within the definition of workman or that for this reason Wage Commission Award is not applicable. The Wage Commission had no power to call for the list of workers from the banks. There is no provision in sections 38-A to 38-1 of the Industrial Relations Ordinance, 1969 that the Wage Commission may call for the list of workers from banks or to decide who ire 'workmen' and who are not. So act of the Wage Commission of calling the list of work--men from the banks is not warranted by law and is of no legal consequence. Since nationalised banks are being worked by the Government and the Wage Commission Award whose decisions were duly notified in the. Official Gazette, has the character of statutory rules. Both the conditions given in proviso II to section 1 (4) (c) of the Standing Orders Ordinance, 1968 stand fulfilled and the said Ordinance is not applicable to nationalised banks. It is, therefore, immaterial that the charges levelled against the respondent do not constitute misconduct under Standing Order 15 (3) of the Standing Orders Ordinance.
10. It has been argued by the learned counsel for the appellant that at the time the respondent brought the grievance petition, he was not covered by the definition of workman, inasmuch as no dispute connected with his dismissal existed. 1 do not find any force in this argument of the learned counsel. No doubt in the definition of workman given in section 2 (xxviii) of the Industrial Relations Ordinance, 1969 the words is employed' have been used but they do not necessarily mean that only those persons are workmen who are in service at the time of bringing the petition. The persons who have remained in the service of the employer are workmen, even though at the time of bringing the petition, they may not be in service. Not only in the definition of workman given in the Industrial Relations Ordinance, 1969 but in other enactments also, present tense is used such as in section 2 (l) of the Standing Orders Ordinance, 1968 and in the definition of civil servant given in section 2 of the Civil Servants Act, 1973. If the definition is interpreted to mean that only those persons are work--men who are in service at the time of bringing the grievance petition, very alarming results would follow, because dismissed and terminated persons will have no remedy to challenge the order of the removal of their services in any forum whatsoever. It does not appear to be the intention of the Legislature that dismissed or otherwise terminated persons should have no remedy in any Court of law. The provision means that only that person is workman whose dismissal, termination or removal is concerned with the industrial dispute, but it does not mean that the persons who are in service are not workmen.
11. Since only some of the charges stand proved and not all and as the respondent was dismissed under all the charges, the dismissal order was not sustainable. If the Enquiry Officer had found only those charges as proved which, according to the discussion made above, stand established, the possibility cannot be excluded, that the dismissing authority may have prescribed some other punishment short of dismissal. The learned lower Court, therefore, rightly directed the reinstatement of the respondent, although on different grounds. Since only on technical ground the respondent stands reinstated, which is that not all but some of the charges have been proved, the respondent is not entitled to back benefits.
12. As upshot of the observations made above, I do not find any force in the appeal and dismiss it.