' This judgment will dispose of W. P. No, 466/S of 1982 filed by the Habib Bank Limited and W. P. No, 510 of 1982 filed by Ijaz Ahmad against the judgment of the Punjab Labour Appellate Tribunal, Lahore, dated 17th July, 1982.
2. In this judgment the Habib Bank Limited shall be referred to as "the petitioner" and Ijaz Ahmad Butt as "the respondent."
3. The brief facts of the case are that Ijaz Ahmad Butt, respondent, was a clerk working in the Habib Bank Limited, Kharian, when certain serious charges of embezzlement, misappropriations, etc., were discovered against him. Accordingly, he was charge-sheeted in respect of eight counts and an inquiry was held against him on 14th July, in respect thereof. The inquiry officer, by his findings, dated 23rd July, 1975, held charges Nos, 1, 2, 3, 4 and 7 as proved against the respondent.
Accordingly, the respondent was dismissed from service on 11th October, 1975. The respondent thereupon filed an application under section 25-A of the Industrial Relations Ordinance, 1969, before the Punjab Labour Court No, 6, Rawalpindi. The Presiding Officer of the said Labour Court found that the inquiry was properly conducted, that charges 1, 2, 3 and 4 stood correctly proved, though there was no legal basis for finding the respondent guilty of Charge No, 7, that the objections of the respondent were baseless and that he stood properly dismissed. He, therefore, dismissed the said petition, on 19th March, 1980. The respondent then preferred an appeal before the Punjab Labour Appellate Tribunal, Lahore, which found that Charges Nos, 3 and 4 did not stand properly made out, but that Charges Nos, 1 and 2 stood duly substantiated by the evidence on the record. However, since only two charges out of eight stood proved against the respondent, applying the principle of Chan Pir Shah's case that a possibility arose that the dismissing authority1 would not have dismissed the respondent, accepted the appeal and set aside the impugned decision of the Punjab Labour Court and directed the reinstatement of the respondent in service.
Since the respondent had succeeded only on a technical ground, the Appellate Tribunal did not allow back benefits to the respondent. Being aggrieved by the said decision, Habib Bank Limited has challenged the said decision in W. P. 466/S of 1982 on the ground that Chan Pir Shah's case is distinguishable and not applicable to the present case. Whereas Ijaz Ahmad Butt, respondent, has challenged the same through W. P. No, 510 of 1982 in respect of back benefits not being granted to him. Both these petitions are now before me for disposal.
4. I have heard the arguments of the learned counsel for the petitioner/bank and the respondent /employee and have perused the documents annexed with their petitions. The finding of the inquiry officer with regard to Charges Nos, 1, 2, 3 and 4. Which are relevant for the purposes of this case, may be reproduced below with advantage :- "Charge No, 1.-Haji Muhammad Aslam, P. W. 1, has stated on oath that he received a parcel from Mr. Butt and paid him a sum of Rs, 436 apart from Rs, 1.50 as Bank Commission on 9th May, 1970. A few days after, he received a reminder from concerned firm that they had not received payment of the parcel so far. Mr. Sabir Hussain Shah, the representative, had produced a letter Exh. P-10 of Habib Bank Limited, Markaz Branch, Lahore, dated 24th October, 1970 in which it is written that in spite of previous letter, the bill of Parcel No, 45, amounting to Rs, 436 is still awaiting realization. A realization voucher Exh. P-9 was produced by the representative which shows that the amount was paid on the same date. This voucher is prepared by Mr. Ijaz Butt. On delivery entry, no supervisory signatures were obtained while all other entries alongwith dates carried supervisory initial of an officer, this is the only entry which is left unsupervised and without initial of an officer. I have seen the parcel register, a certified true extract regarding this entry from the register was produced before me by the representative which is Exh. P-15. After lapse of six months the amount in question was paid to Habib Bank Markaz Branch, Lahore, from where the parcel was received but Exh. P-9 shows that the amount was paid on the same i,e, 9th May, 1970. The representative had produced D.D. Issue register in which it is written that the amount in question was paid on 3rd November, 1970.
Mr. Ijaz Butt did not cross-examine P. W. 1 which further fortify the charge. These facts clearly show that Mr. Ijaz Butt had misappropriated the amount in question so I hold him guilty of this charge.
' Charge No, 2.-Mr. Taj Muham P. W. 2 has stated on oath that he was given to encash a Dem Draft amounting to Rs, 3,001.37 from National Bank, kharian Cantt. Branch by Mr. Ijaz Butt, when he went to National Bank, Mr. Butt came after him and ' told him that party is making noise, he had also given three other cheques to P.W. 2 drawn on the said bank for encashment. Mr. Abdullah Jan P.W.
3 also confirmed it while stating that Mr. Taj bad told him that he had handed over D.D. Amount to Mr. Ijaz Butt. This came into light after a few days when the party (Baz Muhammad Khan Khattak) came to the branch and enquired about it. Mr. Butt had confessed this in writing, the representative produced his confessional statement which is Exh. P-1. A sum of Rs, 850 was paid by Mr. Aliaud Din Akhtar, guarantor of Mr. Butt, who is also his real maternal uncle. A letter Exh. P-2 was produced by the representative in which it is written by the guarantor that he will pay the balance amount within six months. The representative also produced a certified extract of local collection register, I also compared it with the register and Exh. It as P-16, entries of this register regarding collection of cheques and D.D. In question were prepared by Mr. Ijaz Butt who had also put his initials on it. This is far enough to establish guilt of Mr. Butt. Mr. Butt had produced a photostat of decision in Appeal No, 75, dated 31st May, 1975 which is Exh. D-2 which was accepted on technical ground due to non- holding of enquiry. The learned Court has directed to hold enquiry. Leaving aside the Exh. P-1, Mr. Ijaz Butt's guarantor had admitted it and thereof paid Rs, 850 and also promised to pay the balance vide Exh. P-2. In light of this evidence, I am of the opinion that Mr. Ijaz is guilty of this charge.
' Charges Nos, 3 and 4.-The representative has stated that Mr. Ijaz Butt was bills clerk. He had prepared two purchase vouchers of Cheques No, 597175 and 139562 on 1st August, 1970. Amounting to Rs, 1,000 and Rs, 950 respectively. The representative produced Exh. P-5 and P-6, photostats of the said vouchers which were prepared by Mr. Butt. The representative had also produced photostats of said Cheques Exh. P-3 and Exh. P-4, Mr. Butt had not put crossing as well as I. B. P.
Stamps on these cheques while being bills clerk, it was his duty to do so. These cheques were encashed from Habib Bank Limited, R. D. Branch Jhelum and Habib Bank Limited, Rawalpindi Cantt.
Branch on 4th August, 1970 with fictitious discharge of one Salim Butt and Javaid Butt as recipient of cash amount of these cheques, if any of these stamps had been affixed when these cheques were purchased, these cheques could not have been encashed. Apart from this, the entries on Exh.
P-5 and P-6 were made by Mr. Ijaz Butt in his own hand. No other person had better access to the said cheques than Mr. Butt himself. In view of this it can safely be presumed that either Mr. Butt himself or through somebody else, got the cheques encashed. So, I hold him guilty of the charge."
I am not personally satisfied with the appraisal of the evidence mad by the Appellate Tribunal regarding charges Nos, 3 and 4 but, even assuming that I were to accept the same, it cannot be denied that bot the lower Labour Courts have held-charger Nos, 1 and 2 proved against the respondent. These charges are of a serious nature and show embezzlement on the part of the respondent, which amounts to misconduct within the meaning of Standing Order 15(3)(b) of the Wes Pakistan Industrial and Commercial Employment (Standing Orders)
' Ordinance, VI of 1968, for which a punishment of dismissal can be imposed on the employee. In Chan Pir Shah's case an employee was charge-sheeted in respect of three charges alleged to amount to misconduct, regarding which he was found guilty and dismissed, but the High Court found that two of them did not amount to misconduct and that though the third could perhaps amount to misconduct, but as the original order of dismissal was based on the assumption that all the three charges stood proved, the order stood vitiated. In arriving at this conclusion, the High Court relied upon Sher Muhammad's case and Rehmat Elahi's case where it was observed that if extraneous considerations have been taken into account whilst passing an order, the entire order was liable to be quashed : With respect, I must submit that Chan Pir Shah's case proceeds on distinguishable facts. In that case, the employer was not a bank, but a chemical company, and the employee was not holding a position of trust, as in the present case. In Chan Pir Shah's case, the employee who was President of the Labour Union was charge-sheeted for (1) stopping work and roaming about the office instigating the workers, (ii) for exciting the workers to go slow, in order to earn overtime, and (iii) for reading a newspaper during working hours and though warned, for repeating the same, and showing insolence to and threatening the employer's representative, when pulled up the second time. The first two charges were held not to be properly established and as regards the third, it was found "that it may perhaps amount to misconduct". Since no fiduciary relationship was involved, the question whether the employee could suffer so major a penalty as dismissal for reading a newspaper, prompted the Court to assume that had he been so found guilty initially of only one count, perhaps the employer would not have dismissed him from service and that, therefore, the dismissal order stood vitiated on that account. In the present case, the facts and circumstances are totally dissimilar. The respondent was an employee of a bank. It was a pa of his duty to receive money, demand drafts and cheques on behalf of his employer and to account for the same. He occupied a position of trust. It is of vital importance to all financial institutions that this trust in not violated. Both the Labour Courts found the respondent to be guilty of Charges Nos, 1 and 2. These charges relate to embezzlement of cash received and demand drafts encashe and theft of cheques discounted by the bank, but surreptitiously encashed by the respondent on behalf of the bank, all of which money he had to deposit or credit in the accounts of the bank. Each one of the charges to "misconduct" and is sufficient to sustain the finding of2 3 dismissal. In Punjab Road Transport Board's case , where three charges of petty frauds in respect of the employer's money were established, it was held that penalty of dismissal could follow and that the observation of the Appellate Tribunal that bad the employer been "in a free state of mind, he would not have awarded an extreme punishment of dismissal for a petty fraud of paisas", was without jurisdiction and in defiance of the evidence. In this case, W. P. No, 1247 of 1974 (wrongly referred to as W. P. No, 1247 of 1975) was cited, Writ petition W. P. 1247 of 1974 is Chan Fir Shah's case.
The suggestion that for petty frauds, it ' could be assumed that the employer would not have imposed a major penalty, was not accepted.
The Court specifically held that the discretion of the employer to award the punishment, unless the employer violated the law or exceeded the legal limits, could not be reviewed by any outside authority. The decision, therefore, of the Appellate Tribunal in the present case is against the law and without jurisdiction. In awarding major punishment, the gravity of any charge proved, whether it be only one, is sufficient. This discretion cannot be reviewed by an outside authority. Only if the law is violated or legal limits are exceeded, that any interference from an outside authority may be called for. But even assuming there is a case where an employee has been awarded a major punishment on a number of charges held proved against him in an enquiry and some of the said charges are held not established by a Labour Court and those that stand established, though relating to offences for which a major penalty can be imposed, lead to the irresist-able inference that the employer would not impose such a penalty, or relate to offences for which only minor penalties can be imposed, the only proper course for the Labour Court would be to remand the case to the employer for imposing a fresh penalty in the light of the charges that stand proved. It is not open to the Labour Court to impose its own punishment or will in such cases.
5. The upshot of the above discussion is that the order of the Appellate Tribunal is illegal and without lawful authority and is hereby set aside. I would have left the matter here, but certain equities in favour of the respondent compel me to take a different course. The respondent, who was reinstated by the Appellate Tribunal, has now working with the petitioner bank since sixteen months and has acquired certain expectations. During this period, he may have re-established his credit in the estimation of the bank and they may like to take a different or lenient view of the matter. Therefore, as a very special case, I would remand the case to the petitioner bank for considering the matter of punishment afresh, on the basis that two charges (Charges Nos, 1 and 2) stand proved against the respondent and not five. If the petitioner bank still desire to award punishment, they shall issue notice to the respondent proposing the penalty to be awarded to him in respect of the two charges proved and shall call upon him to show cause why the same should not be awarded and, after considering his reply and hearing the respondent in person, if he wants to be so heard, impose the penalty it considers fit and proper in the circumstances. Any punishment, if awarded, shall be binding on the respondent. Writ Petition (W. P. No, 466 of 1982) filed by the Habib Bank Limited, petitioner, therefore, stands accepted, in terms of the directions given above, whereas Writ Petition (W. P. No, 510 of 1982) filed by Ijaz Ahmad Butt, respondent, stands dismissed. The parties are left to bear their own costs. 1981 PLC 984 PLD 1962 Lab. 172 PLD 1965 Lab. 122 1976 PLC 392 revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.