' This appeal is directed against the decision, dated 12th December, 1979 passed by the learned Presiding Officer, Punjab Labour Court No, 6, Rawalpindi whereby the grievance petition of the appellant for his reinstatement in service was dismissed.
2. The facts are that the appellant who was a Grade II officer and was working under Mr. Abdul Wahid, Manager, had the knowledge that on 11 th July, 1977 Mr. Abdul Wahid, Manager had allowed a sum of Rs, 46,994 as T. O. D. To Mian Muhammad Shafi, Contractor, from Account No, 374 and that the said Manager had paid Rs, 1,71,900 to the said Mian Muhammad Shafi, Contractor from the said account, and kept the cheques in the cash of the bank giving out the said cheques as cash since 18th March, 1977. But the appellant did not inform the higher authorities about the said unauthorised payments and showing of the said cheques as cash. Failure on the part of the appellant to inform the higher authorities was considered as a conspiracy with Abdul Waheed, Manager. It was also alleged against the appellant that he had initialled the cheques and vouchers the amount of which was paid by the Manager to Muhammad Shafi, Contractor. The appellant was issued charge-sheet (Exh. P. I). He submitted reply to the charge-sheet (Exh. P. 2). Considering the reply as unsatisfactory, a joint enquiry was held against the appellant and Mian Abdul Wahid, Manager, which culminated in their dismissal. The appellant after the service of grievance notice brought a grievance petition under section 25-A of the Industrial Relations Ordinance, 1969,
3. The learned trial Judge has observed that the charges against the appellant stood proved inasmuch as he admitted, his guilt in answer to the charge-sheet during the enquiry and in his statement before the Labour Court. But this is not correct. A perusal of the reply to the charge- sheet shows that the appellant admitted the knowledge of the payment of the amount mentioned above by Abdul Wahid, Manager to Mian Muhammad Shafi, Contractor but did not admit that he had signed or initialled the cheques or the vouchers. He also did not admit that he had kept the cheques in cash or that he was party to the fabrication of the false vouchers for the amount of Rs, 1,71.900. He admitted his knowledge and said that the Manager, who was his officer, had assured him that Muhammad Shafi was a sound party. I have gone through the enquiry proceedings and the statement of the appellant. There also the appellant did not admit the signature or initials on the disputed cheques and vouchers and even went to the extent of saying that much afterwards it had come to his knowledge that cash had been paid and the cheques and vouchers had been kept in the cash giving them out by the Manager as cash. On the question of Mr. Abdul Wahid, Manager, the cashier Muhammad Shafi, said that before This incident Muhammad Bashir had been signing many cheques and had placed them in the cash. With regard to the disputed cheques and vouchers he did not say that the appellant had signed the cheques and he had placed them in cash giving them out as a cash. We are concerned only with the cheques and vouchers in dispute and not the cheques and vouchers for the priod prior to or after the incident.
Mr. Abdul Wahid, Manager however implicated the appellant. Since he was a principal offender and since the embezzlement had been discovered on the information given by the appellant, therefore, solitary statement of Mr. Abdul Wahid, Manager was not sufficient to prove that the appellant had signed or initialled the cheques or vouchers or that he was party to the fraud. Abdul Wahid had admitted his guilt and knew the consequences. Since the fraud was detected on the information of the appellant he, therefore, by way of taking revenge from the appellant implicated him. Many officials must have worked with the appellant and they must be familiar with his handwriting and signatures, therefore, evidence could be produced during the enquiry to prove that the cheques for the amount of Rs, 46,994 and of Rs, 1,71,900 were bearing his signatures or initials. Mr. Abdul Wahid had enquired from the appellant in cross- examination about his signature and initials on the cheques but the reply of the appellant was in flat refusal. During the enquiry it was not proved that the appellant had signed or initialled any of the disputed cheques and that he had participated with Abdul Wahid in the misappropriation of the amount. Only this thing comes out that he had the knowledge. In his statement the appellant did not admit that he had signed and initialled the cheques in dispute or that he had hand in the embezzlement. He did not admit that after the payment of cash by Abdul Wahid, Manager to Muhammad Shafi, Contractor he placed the cheques in the cash instead of posting them in the ledger and other books. Since it was the appellant who had given the information to the higher authorities and on his information the Bank was saved from the loss, it cannot be said that the appellant committed misconduct. Failure to give information of fraud is not covered by sub-para. (2) of para. 258, of the First Wage Commission Award, 1975. Even if it be said that the appellant had the knowledge of the fraud from the very beginning, since Abdul Wahid, Manager had assured the appellant that Muhammad Shafi, Contractor being a sound party, the amount would be recovered, therefore, the appellant did not inform the higher authorities very soon. But when he apprehended that the amount may be misappropriated since one month had been passed, he gave information to the higher authorities.
It is thus clear that there was no criminal intention on the part of the appellant in withholding the information of fraud committed by Abdul Wahid, Manager. It canot be said, as mentioned above that from the very beginning the appellant had knowledge that the cash had been paid and the cheques were being given out as cash by placing them with the cash. The cashier could have come to know at that very time about this irregularity and misappropriation because cash cannot be paid without his knowledge. As soon as the cash is paid, the cheques are posted in the ledger and other registers by the cashier. According to the appellant as soon as he came to know of the fact that the cheques had not been posted in the books after the encashment and that they had been placed with the cash of the bank giving them out as cash, he informed the higher authorities.
If some delay had occurred it did not amount to misconduct on the part of the appellant. If it had been proved by some cogent evidence that the cheques were signed or initialled or cancelled by the appellant and that cash had been paid with his knowledge, of course failure on his part to give the information to the higher authorities forthwith may have amounted to misconduct. Only a doubt is created that the appellant may have come to know from the very beginning about the irregularity and misappropriation done by the Manager but only on doubt one cannot be doomed.
Unless the charge had been brought home to him in the enquiry, his services could not be terminated. As in the instant case there is no evidence to implicate the appellant, no misconduct stands proved against him and he was wrongly dismissed.
4. As a result of the observations made above, I accept the appeal, set aside the impugned order of the. Labour Conrt as well as the order of, dismissal and direct the reinstatement of the appellant in service. Since the appellant gave information of the fraud to the higher authorities a bit late, he is not entitled, to back benefits.