1. Mr. Muhammad Riaz Khattak, Ex-Cashier United Bank Ltd., Zonal Office, Kohat has filed the present petition against the United Bank Ltd., through its Assistant Vice-President under section 25-A of the Industrial Relations Ordinance, 1969 wherein the petitioner has prayed that the impugned order of his dismissal dated 19th July, 1978 may be set aside and the petitioner may be re-instated with full back wages and benefits, etc. .
2. The petitioner has averred the following facts in the petition.
3. The petitioner was permanent employee of the United bank Ltd., Zonal Office, Kohat at the time of his dismissal. The petitioner was charge-sheeted on 15th April, 1978 for having handed over the cash to his Bank Manager, without authority and in violation of the Bank rules at different places and thus connived in the commission of the fraud allegedly committed by the Bank Manager. The petitioner in his reply explained his position and stated that he had obeyed the orders of the Manager according to the instructions of the bank authority as a subordinate of the Bank Manager.
4. An enquiry was held against the petitioner in which the petitioner participated which resulted in second show-cause notice served upon the petitioner. The petitioner's detail reply was not accepted and the petitioner was dismissed from service on 19th July, 1978. The petitioners grievance notice was rejected. The petitioner has averred that the alleged embezzlement/mis-- appropriation has been made by the Branch Manager in which- the petitioner did not participate.
5. The petitioner only obeyed the order of his Branch Manager in good faith. The petitioner has not committed any misconduct warranting the. Major penalty of dismissal from service. The petitioner's connivance in the commission of the offence has not been proved and that the petitioner has been condemned for the act of his Manager.
6. Charge-sheet Exh. PW1/1 indicates that the petitioner's roll has been confined to connivance in the commission of the fraud by the Manager by wilful violation of rules and practice by handing over cash to the Manager and that the petitioner has been charge-sheeted for misconduct. Ex. PW1/2 is the reply to the charge-sheet wherein the charge has be en refuted and it has been stated that in pursuance of the instruction he had co-operated with the Manager and in this co-operation and obedience to the superior officers he had .Given certain amount to the Branch Manager. This fact has been admitted by the Branch Manager in his reply, dated 29th September, 1977. Exh. PWI/3 is the enquiry report in which the Enquiry Officer has found the petitioner guilty of the charges mentioned in the charge-sheet and while arrived at this conclusion the Enquiry Officer has held him to have unauthorisedly handing over the huge amount from the bank cash which was in his custody to the Branch Manager without fully ensuring that the cash amount so handed over was properly counted for by Cash vouchers. Exh PW1/4 is the second show cause notice in which the proposed penalty was dismissed from service. Exh. PW1/5 is the reply to this show-cause notice in which the stand taken order passed on .The basis of the charges and the enquiry report. Exh. PWI/7 is the appeal /grievance notice in which the same plea has been reiterated that the petitioner did not have any intention to embezzle the bank amount which he had handed over to the Branch Manager in good faith while obeying the orders of his superiors.
7. The written statement was filed on 23rd November, 1978 in which the claim made by the petitioner in the petition and in the reply to the show-cause notice and in the ground of appeal have been reputed and it has been asserted that the petitioner was primarily responsible for the safety of the cash in his custody and that it he had performed his duty faithfully and honestly the fraud could not have been committed. It has also been averred in the written statement that the conduct of the petitioner by handing over the cash without due authority to the Branch Manager leads to the inescapable conclusion that he had colluded with the Manager in commission of the fraud. The evidence of the parties has been recorded, record perused and arguments heard.
8. From the enquiry from the evidence on record and from the arguments of the learned counsel for the parties it is abundantly clean and proved beyond any shadow of doubt that the petitioner had handed over the cash to the Branch Manager without any competent authority in violation of the rules of the respondent establishment which has resulted in the embezzlement of the said amount.
9. It is also clear that the petitioner could not hand over this cash without any authority under the rules of the re3pondent establishment to the Branch Manager without ensuring that he was doing so on the strength of some receipt documents or on the basis of some vouchers duly counted for. It is also proved that there is no doubt about it that the petitioner has though given this cash- to the Branch Manager but he had no connivance or collusion with the Branch Manager in embezzling the said amount' Thus the allegations levelled in the charge-sheet against the petitioner are proved to the extant 'that he has handed over the cash to the Branch Manager without any authority in violation of the respondent establishment rules. As regards debit cash vouchers produced by the petitioner in support of his case it is sufficient to observe that the debit cash vouchers produced do not bear the stamp, these are not on the prescribed form, do not bear receipt of the cash amount by the Manager, do not show repayment of these amounts by the Manager nor these show release of the debit cash vouches, the next day or the next. Hence these cannot be relied upon in def4mnce of the charge of misconduct against the petitioner. After having arrived at to this conclusion the only thing left to be determined is as to whether the act of the petitioner falls within the purview of misconduct and if it does as to whether he would be liable to the major punishment of dismissal.
10. While considering the quantum of punishment it has also to be seen as to whether the nature of the duties and his capacity and status in bank as a subordinate officer to the Manager for he could refuse verbal order of the Manager for handing over cash amount. There is no doubt that the petitioner has acted without any legal authority while -handing over cash amount in utter violation of the bank rules on this subject and that this act as such does fall within the misconduct as defined in the service rules applicable to the petitioner. The learned counsel for the respondent has argued that by producing voucher Exh. D. X., EXh. DX/1 , Exh. DX/2, Exh. DX/3, the petitioner has tried to build up the case in his defence against the charge leveled against him in the charge-sheet which defence he had not taken in his reply to the charge-sheet, etc. Therefore the peti--tioner appears to be guilty of involvement in the embezzlement/misappro--priation of the amount. I would not agree with this contention of the learned counsel for the respondent to the extent of involvement of the peti--tioner in the misappropriation/embezzlement. A drowning man catches at straw to safe, himself and it is quite according to the nature of human beings to avail of any probable explanation which can be of assistance to him to exonerate him ; the charge levelled against the petitioner is that he has handed over the cash to the Branch Manager without legal authority and against the rules but status and subordinate position of the petitioner in the establishment when taken into consideration would lean me toward awarding lesser punishment.
11. Hence while setting aside the impugned order of his dismissal, I hold him still guilty of misconduct and award him the penalty of termination of his service as the petitioner is a young man and has been victim of circumstances beyond his capacity to cope with in a reasonable manner.