This appeal is directed against the decision of the learned Vth Labour Court, given on 24th March, 1982 dismissing the grievance petition of the appellant challenging his dismissal from service.
2. The facts of this case, shortly stated, are that the appellant has-- been working as cashier in the respondent bank since April, 1975. On 5th March, 1980 while the appellant was posted at the Karachi Control (D) Office of the respondent bank, he was served with the charge-sheet, over the signature of the Senior Vice-President of the bank, which reads as follows :- "On the complaint of a party that the amounts deposited by him were not credited to his account, a check was carried out in which it was detected that certain amounts were not deposited in the party's account when in fact the party held receipts of the amount deposited.
To investigate into the matter, a preliminary investigation was carried out and it transpired that during your posting as cashier at Al-Haroon branch, the amount received by you under your single signatures were not credited in their account but il--legally retained by you. You had under your signature received the cash and gave acknowledgment thereof in the counterfoil of the paying-in- slip to the parties duly stamped (cash received). It is therefore, clear that you have misappropriated/embezzled the amount deposited by the parties.
The above amount received by you from the parties have neither been entered in the bank's books nor you have credited the same in the respective accounts of the party namely M/s. Razzaque Steel Ltd., amount Rs. 58,250.
When the above acts of mis-appropriation/embezzlement committed by you were pointed out to you, you confessed in verbal having misappropriated/embezzled the amounts.
You have also undertaken verbally to refund the amount embezzled/ misappropriated by you and have apologized for your above acts of dishonesty.
Under the circumstances, you are hereby called upon to immediately refund the amount misappropriated/embezzled by you. Please also explain within four days why you should not be dismissed from service and/or criminal action should not be initiated against you for your aforesaid conduct.
Since the audit of the above branch is being carried out, we reserve our right to issue supplementary charge-sheet if other acts of misappropriation/embezzlement, irregularities committed by you may come to our knowledge subsequently."
3. The appellant submitted his explanation, dated 8th March, 1980 to the aforesaid charge-sheet, denying the allegations repelled against him and indicating that the cash alleged to have been misappropriated by him in fact had been passed on either to the concerned cashier or to the chief cashier. In his subsequent explanation, dated 11th May, 1980 the appellant took the specific plea that the amount of Rs. 58,250, which he had received on 20th February, 1980 was handed over to the chief cashier, under his instructions, for crediting into the respective accounts of the depositors concerned. In support of his plea, he annexed with his explanation a letter to this effect, addressed to the Vice-President of the respondent bank, which bears the signature of Muhammad Rafiq, the Chief Cashier. The respondent bank, however, was not satisfied with the explana--tion of the appellant and accordingly a domestic enquiry was held against him by Ikhlas Ahmed, Vice- President, Southern Area Central `C'. The enquiry officer, in his report, dated 21st June, 1980 held the charges against the appellant established. On the basis of his report, the appellant was dismissed from service, vide order, dated 20th August, 1980.
4. The appellant challenged the orders of his dismissal from service before the learned Vth Labour Court which has dismissed his grievance petition, holding that the misconduct of the appellant had been duly established in a fair and impartial enquiry.
5. I have heard Mr. Mubassir Qaisrani, the learned counsel for the appellant employee, and Mr. Iqbal Habib, who appeared for the respon--dent bank. Mr. Qaisrani assailed the impugned decision of the learned Labour Court on the following four grounds :-
(1) The amount of Rs. 58.250 received by the appellant was delivered by him to the Chief Cashier and the IInd Officer under their instructions for crediting the same into the respective accounts of the depositors.
(2) The dismissal order of the appellant is based at least partly for amounts not referred to in the charge-sheet served upon the appellant and the appellant was not given an opportunity to defend himself against the allegations in respect of these other amounts.
(3) The dismissal order in respect of the appellant is further invalid as no second show-cause notice was served upon the appellant.
(4) The enquiry proceedings, upon the basis of which the appellant was dismissed from service, are invalid in that the enquiry started with the cross-examination of the appellant and no opportunity was given to the appellant, to cross-examine one of the witnesses who was examined in the domestic enquiry.
6. I will deal with each of the above contentions seriatem
7. In support of his contention that the appellant had not misappropriated the amount of Rs. 58,250 but had delivered the same to his immediate superiors under their instructions, Mr. Qaisrani relied upon 2 pieces of evidence. The first is an application. Dated 5th March, 1980 addressed by the appell4nt to the Senior Vice-President of the respondent bank. The said application bears the signature of the Head Cashier, Muhammad Rafiq, who has endorsed thereon that he corroborates and supports the contentions of the application. The applica--tion reads as follows :-
8. The second piece of evidence relied upon by Mr. Qaisrani is the statement. Made in the F. I. R., which was lodged with the police by the Manager, United Bank, on 11th March, 1980. In the F. I. R., it is asserted that during the course of departmental enquiry, the other accused, namely Muhammad Yaseen and Muhammad Rafiq, have verbally admitted having received the above amount (Rs.
58,250.00) from Noor Muhammad for crediting the same to the respective account which was not done by them and that the counterfoil of such pay-in-slip was countersigned by Noor Muhammad allegedly on the instructions of the other accused. Further, support to the above admission made in the F. I. R. Is given by the enquiry officer. Ikhlas Ahmed, who has admitted that prior to the enquiry held by him, there was an enquiry held by Mr. M. A. Arbab and this enquiry was made even before lodging the F. I. R. The record of this enquiry was not produced presumably because it did not suit the bank.
9. The above pieces of evidence would thus seem to indicate that on the one hand, the amount of Rs. 58,250 was received by the appellant, in his capacity as cashier. And for which amount he had signed the pay-in-slip of the depositors, Messrs Razzaque Steel Ltd., but on the other hand he had not entered this amount to the credit of the depositor in the banks books and had evidently. Passed it on to the Head Cashier, Muhammad Rafiq, and the I1nd Officer, Muhammad Yaseen. It was strongly contended by Mr. Iqbal Habib, the learned representative for the respondent bank, that it was the duty of the appellant as the receiving cashier to make the necessary entries in respect of this amount in .The registers of the bank and that his failure to do so constitutes dishonesty on his part and complicity for embezzlement with Muhammad Rafiq and Muhammad Yaseen. Mr. Iqbal Habib particularly relied upon the instructions issued by the bank in this behalf. He, however, was unable to refer me to any specific instructions issued by the bank requiring the receiving cashier to make the requisite entries in the registers of the bank. What he particularly relied upon were the instructions at page 482 of the Permanent Procedure Instructions Circulars, IInd Edition, 1979, requiring that all signatures of the receiving cashiers on the counterfoils of the pay-in-slips must be countersigned by the authorized officer of the branch. Mr. 1qba1 Habib submitted that in the instant case the counterfoils of the pay-in-slip given to the depositor, Messrs Razzaque Steel Ltd., was signed only by the appellant and not by an authorized officer of the bank. The failure of the appellant to obtain the signature of the authorized officer on the counterfoil of the pay-in-slip may constitute a violation of the instructions of the bank, falling under Item (a) of sub---clause (ii) of clause (1) of Standing Order 15, but it would not, in my humble view, amount -to fraud or dishonesty in connection with the employer business. I have already referred to the different pieces of evidence which indicate that the appellant had promptly under the instructions of his superiors, handed over the entire amount of Rs. 58,250 to the Head Cashier and the find Officer for crediting the same into the account of the depositor. The procedure adopted by the appellant may not have been strictly in accordance with the instructions issued by the bank but that would not indicate that the appellant committed fraud or dishonesty in respect of this amount. As already pointed out even in the F. I. R. It is indicated that this amount was delivered to the Head Cashier and the IInd Officer for crediting into the account of the depositor. I am, therefore, inclined to the view that despite the irregular procedure adopted by the appellant, there is no tangible evidence on record to indicate that he is guilty of fraud or dishonesty in connection with his employers' business.
Dishonesty and fraud clearly contemplate mensrea on the part of the person concerned.
Furthermore, misconduct as contemplated by Standing Order 15, which may be punishable with dismissal, necessarily involves an element of mensrea, as held by this Tribunal in the case of Messrs Khawaja Autocars Ltd. v. Syed Abdul Rehman's (1982 PLC 128).
10. Although the charge-sheet, dated 5th March, 1980 served upon the appellant clearly referred to the embezzlement by the appellant of the sum of Rs. 58,250 deposited by Messrs Razzaque Steel Ltd., the enquiry officer not only permitted evidence to be led in the domestic enquiry in respect of 2 further items, one of Rs. 16,126,10 and the other of Rs. 1,700, which amounts also the appellant is stated to have embezzled, but referred to the same, in his report to the management. It is clear that the management, in dismissing the appellant from service, was influenced by these 2 further amounts totalling Rs. 17,826.10 in respect of which no opportunity was given to the appellant to defend himself, the dismissal order indicates that the appellant had embezzled a total amount of Rs. 76,076.10, composed or 2 separate items, the first being the original amount of Rs. 58,250 referred to in the charge-sheet, and the second the amount of Rs. 17,826.10 in respect of which the appel--lant was not given an opportunity of defending himself. The dismissal order is thus in violation of the basic principle of natural justice enshrined in the Maxim : audialterampartem
11. Coming to the next contention of Mr. Qaisarani, namely that no second show-cause notice was issued or given to the appellant, it is true that their Lordships of the Supreme Court of Pakistan in the case reported as Dawood Cotton Mills v. Guftar Shah and others (PLD 1981 SC 225), have held that giving of second show-cause notice after completion of the departmental enquiry is not a requirement of the rules of natural justice, but in the instant case, where the enquiry officer has relied upon evidence and allegations in respect of which the appellant was given no notice nor an opportunity to defend himself, the failure on the part of the respondent bank to serve a second show-cause notice upon the appellant or give him an opportunity to defend himself against the allegation of misap--propriation of the amounts totalling Rs. 17,826.10, has invalidated the proceedings taken against the appellant. In the case reported as Abdul Haque v. Fauji Sugar Mills, Tando Muhammad Khan (1980 PLC 695), it was held that though the giving of second show- cause, notice was not a statutory require--ment, service of such notice may be necessary in the special circumstances of a particular case. The test laid down for requiring the service of such a notice was that non-service thereof would result in prejudice to the accused, as in the instant case.
12. The enquiry proceedings would appear to be further invalidated in that the enquiry proceedings were started with the cross-examination of the appellant and thereafter the 2 witnesses for the management. Namely, M. C. Mumford and Muhammad Naeem Sheikh were examined. Of these.
Muhammad Naeem Sheikh was not cross-examined pnd it appears that no opportunity was given to the appellant to cross-examine him. The failure on the part of the Enquiry Officer to afford and opportunity to the appellant to cross-examine Muhammad Naeem Sheikh is all the more serious as he gave evidence in respect of the 2 amounts of Rs. 16,126.10 and 1,700, which were not mentioned in the charge-sheet.
13. The upshot of the above discussion is that the orders of dismissal in respect of the appellant cannot be sustained. I would accordingly set aside the same and would direct his re-instatement in service. However, I am not inclined to award any back benefits to the appellant as he seems to have acted in violation of the established banking principles and the written instructions of the bank in that he signed the counterfoil of pay--ing slip without getting the same countersigned by- an authorized officer of the bank and further he handed over the amount of Rs. 58,250 to the Head Cashier and the Second Officer without getting a proper receipt from them. The appeal is allowed accordingly.