' Applicant Muhammad Ishaque Kundan has challenged his dismissal from service and has moved for re-instatement in service of the respondent Muslim Commercial Bank Ltd. And for back benefits.
2. Admittedly the applicant was in service of the respondent, till his dismissal ordered under letter R/13-A, dated 18th April, 1982 and published in 2 issues of "Pasban" copies A/3 and A/4. Prior to that on 22nd November, 1981 while the applicant was posted as Cashier in Gari Khata Branch, Hyderabad, letter of charge copy A/2 was issued for him. As per the letter of charge (charge- sheet) copy A/2, on 22nd November, 1981 at 10 a. m. The applicant, instead of performing his duty in Gari Khata Branch, unauthorisedly went to New Cloth Market Branch where he incited and compelled the Cashiers not to accept unsorted cash and to return the cash brought in the branch for deposit by Messrs Glass Bangle Industries. He was also alleged to have become rude and aggressive and to have attempted to hurt Qamar Abbas Rizvi, Manager and to have abused and shouted at him. Applicant was also alleged to have displayed disorderly behavior during working hours in New Cloth Market Branch and to have disobeyed lawful orders of his superior. Under letter copy R/6, dated 25th November, 1981 the applicant was suspended. Respondent issued letter of enquiry copy R/3 calling upon the applicant to appear before Muhammad Qasim who was appointed as Enquiry Officer for facing the enquiry on 20th December, 1981. Under letter copy R/4 the applicant informed the Enquiry Officer that he was not communicated the charge-sheet dated 24th November, 1981 and that he be supplied with a charge-sheet before the enquiry. In response respondent sent to the applicant a duplicate copy A/2 of the charge-sheet under letter copy A/1, dated 7th February, 1982. Muhammad Qasim conducted the enquiry against the applicant on 8th March, 1982. He recorded statements of witnesses : Qamar. Abbas Rizvi, Muhammad Aslam, Fazalur Rehman, Atta Muhammad and representative of the respondent namely Muhammad Akhtar.
Statement of the applicant was also recorded. On 9th March, 1982 the defence evidence was recorded, as per the enquiry proceedings copy R/15, Enquiry Officer submitted his report copy R/14.
Out of the 5 charges 3 were proved and 2 were not proved. Applicant was issued final show-cause notice copy R/7, dated 8th April, 1982 to show cause within 3 days as to why he should not be dismissed from service. Final show-cause notice was also published in daily "Pasban", dated 14th April, 1982 copy R/9. Ultimately the applicant was dismissed from service.
3. In his grievance application the applicant alleged that he was victimised due to his trade union activities as on 24th April, 1982 he was elected as Office Secretary of Muslim Commercial Bank union and prior to that he was elected as General Secretary of said Union in February, 1981. He alleged that the charge-sheet received by him under letter copy A/1 contained false, fabricated and vague charges. He challenged the charge-sheet to be time-barred, violative of S.
0. 15 (4), mala fide, illegal, void and against the principles of natural justice. Applicant alleged that the Zonal Chief had personal enmity with him and with office-bearers of the union. That the Zonal Chief unlawfully and mala fidely managed enquiry through Ghulam Faried Abbassi, under instructions of the Circle Executive. Applicant alleged that he was suspended from 26th November, 1981, without being informed of the allegations against him. It was stated that the allegations made in the charge-sheet were not established in the enquiry but the Enquiry Officer being subordinate of the Zonal Chief submitted fake, malicious and partial report under influence of the Zonal Chief.
The report was alleged to be perverse, contrary to facts and against natural justice. Applicant added that he was served with final show-cause notice, on 19th April, 1982 although orders about his dismissal had already been issued on 18th April, 1982. He alleged that he was not provided opportunity of defence. It was contended that the order of dismissal was not communicated to the applicant. Applicant submitted departmental appeal copy A/5 but the same was not decided in spite of reminder copy A/6. He claimed to have sent to the respondent the grievance notice copy A/8 by registered post. Applicant challenged action of the respondent to be without lawful authority, mala fide, illegal, void, ineffective and against the principles of natural justice.
4. In the reply statement it was stated that the charge-sheet, dated 24th November, 1981 was offered to be delivered to the applicant who refused to receive it and hence the same was sent to the applicant by registered post alongwith letter copy R/2. Applicant was said to have failed to submit reply and he was offered letter of enquiry, dated 16th December, 1981 copy R/3 but he refused to receive it. Hence there was ex parte enquiry and in the meantime the applicant moved application R/4 for producing the defence. That in the interest of justice and in order to give chance to the applicant to lead his defence the enquiry was re-arranged and the applicant was given copy of the charge-sheet. The enquiry was defended to be lawful, fair and impartial. Applicant was said to have shown confidence in the enquiry as per his letter copy R/5. It was added that the applicant sent no reply to the final show-cause notice, hence the management was justified in dismissing the applicant. That the dismissal order was duly communicated to the applicant.
Grievance notice was challenged to be pre-mature as departmental appeal of the applicant was not yet decided. Respondent challenged maintainability of the application and jurisdiction of this Court
5. Parties adduced evidence and their counsel were heard.
6. Mr. Wasiullah argued that the charge-sheet copy A/2 relating to the incident, dated 22nd November, 1981 was supplied to the applicant, on 9th February, 1982 under letter copy A/1 and hence it was time-barred. It is correct that respondent did not bring on record any evidence to show that the applicant refused to receive the letter of charge except that Nooruddin said in para. 4 of his affidavit that the letter of charge R/I and the suspension letter R/6 were offered to the applicant who refused to receive the same. In cross Nooruddin stated that charge-sheet was received in the branch on 24th November, 1981 and the suspension letter was received in the branch on 25th November, 1981. These documents contain endorsements that the applicant refused to receive delivery of the same, although Nooruddin admitted that such endorsements were not signed by him. In para. 6 of his grievance application the applicant stated that he was suspended from 26th November, 1981. He did not allege that his suspension was not communicated to him in writing. The letter of suspension copy R/6 mention the fact that a charge- sheet, dated 24th November, 1981 was issued against the applicant. In these circumstances the applicant should have called for copy of the charge-sheet. Photo copy R/2 shows that the letter of charge was sent to the applicant by registered post at his residential address. It was not alleged if the address mentioned in the letter copy R/2 was incorrect. Mr. Bashir cited 1982 PLC 676, where it was held that when the charge-sheet was sent through registered post in cover properly stamped and addressed, the workman was deemed to have been served with the charge-sheet under S.
0. 15 (4) even if the A/D receipt was not signed by the workman. Accordingly I hold that the applicant shall be deemed to have been served with the charge-sheets copies A/2 and R/1 on 5th December, 1981 viz. The date mentioned in A. D. Receipt copy R/2. I, therefore, hold that the charge- sheet was not time-barred.
7. Mr. Wasiullah argued that the documents discussed in the enquiry report R/14 were not produced in Court and the enquiry report was without reasons. He has not quoted any provision of law under which all the documents produced in the domestic enquiry should be produced in Court.
Respondent produced copy R/15 of the enquiry proceedings in this Court. It is to be seen if the evidence collected in the enquiry was sufficient to constitute the charge of misconduct. If so the fact of the enquiry report being without reasons is of no consequence.
8. Mr. Wasiullah argud that witness Akhtar should not have been allowed to cross-examine the applicant and defence witness Ashrafullah. Akhtar was Representative of the management although he was also examined as a witness in the enquiry. No principal of natural justice is shown to have been violated if Akhtar as nominee of the management, cross-examined the defence witness and the applicant.
9. I am however impressed by the argument of Mr. Wasiullah that the order of dismissal copies R/10 and R/13-A is affidavit it shows that the charges into which enquiry was held had been proved although as per the report copy R/14 two out of 5 charges were not proved. Mr. Bashir, in reply cited 1983 PLC 108 where one of the charges established, call for minor penalty but the same was treated by the Enquiry Officer to be amounting to misconduct and it was held that dismissal order based on such enquiry report was not exceptionable. In my view the authority which passed the dismissal order did not apply its mind either to the enquiry proceedings copy R/15 or to the enquiry report R/14. Hence the dismissal order is not sustainable in law.
10. I, therefore, set aside the dismissal order and order re-instatement of the applicant in service of respondent Bank. Respondent bank is at liberty to take fresh action on the basis of the enquiry proceedings R/15 and the enquiry report copy R/I4 and to pass a fresh order in accordance with the evidence brought in the enquiry and in accordance with law. Such action can he taken within one month from today. After expiry of one month no action is to be taken against the applicant on the basis of charge-sheets copies A/2 and R/1 and he would be entitled in that case to full back benefits. If the management doses to pass fresh order against the applicant within one month, it has also to pass orders about the back benefits, either allowing the same in full or disallowing the same. Or partially allowing the same.