DECISION ' This appeal is directed against the decision of the learned Vth Labour Court, given on 2nd March 1983, dismissing the grievance petition of the appellant employee challenging his dismissal from service.
2. The facts of this case, shortly stated, are that the appellant was initially appointed in the respondent-Bank as a typist on 1st February, 1971. He was subsequently promoted to the Officer Grade in 1976. A show-cause notice, dated 28/29th October, 1979, was issued to the appellant for alleged dishonesty in respect of medical bills preferred by him. The said show-cause notice reads as follows "It has been reported to us by our Medical Section that you submitted medical bills totallying Rs, 138 on 22nd October, 1979. During normal scrutiny of the bills it has been found that you submitted the following with tampered figures with an intention to receive more amount as against the amount actually paid to the Chemist for purchase of medicines :-
(i) In Bill No, 2104, dated 13th October, 1979, 6 Vibramycine Capsules actually purchased at the cost of Rs, 21 has been altered and shown in the bill as Rs, 24.
(ii) In Bill No, 2005, dated 2nd October, 1979, 20 Fafale Capsules purchased at the normal price of Rs, 12 has been shown with altered figure as Rs, 42.
(iii) In Bill No, 2103, dated 21th October, 1979, 20 Penbritin Caps., actually purchased for Rs, 25 has been shown with altered figures of Rs, 35.
Since by way of submitting the altered bills you tried to deceive the bank with an intention to receive more than amount which you have actually paid to the Chemist, you are hereby called upon to show cause as to why disciplinary action should not be taken against you on account of the following charges :-
(1) Dishonesty.
(2) Breach of Trust.
(3) Breach of Rules and Regulation of the bank. Your reply should reach the undersigned within three days of receipt of this letter."
' The appellant submitted an explanation, dated 30th October, 1979, in receipt of the above show- cause notice, but as it was not found satisfactory a domestic enquiry was ordered against the appellant vide the Bank's enquiry notice, dated 8th November, 1979. The domestic enquiry was entrusted to Mr. Qamaruddin Abbasi, an Officer of the respondent bank. In the domestic enquiry, Ali Khalid Baig (Officer Incharge, Medical Cell), Shahid Ahmed Khawaja (another official of the Medical Cell) and the appellant were examined. On the basis of the .Evidence produced before the Enquiry Officer, the Enquiry Officer submitted a report giving the finding that the charge of dishonesty and altering the medical bills had been established against the appellant. He was, accordingly, issued a second show-cause notice, dated 11th December, 1979. In his reply to the second show-cause notice, dated 13th December, 1979, the appellant requested that his case may be sympathetically dealt with on humanitarian grounds and he may be pardoned. Before this explanation the respondent had submitted another application to the Investigation Officer of the Habib Bank wherein he admitted his fault in preferring three medical bills with altered claims. The material part of the admission reads as follows :- "This is to confirm that except the following medical bills. I have not committed any other fraud or forgery during my Bank Service-
(i) In Bill No, 2104, dated 13th October, 1979, 6 Vibramycine Capsules actually purchased at the cost of Rs, 21 has been altered and shown in the Bill as Rs, 24.
(ii) In Bill No, 2005, dated 2nd October, 1979, 20 Fafale Capsules purchased at its normal price of Rs, 12 has been shown with altered figures as Rs, 42.
(iii) In Bill No, 2103, dated 21st October, 1979, 20 Penbritin Capsules actually purchased for Rs, 25 has been shown with altered figures of Rs, 35.
' The appellant also submitted a letter, dated 16th December, 1979, to Mr. M. A. Bukhari, Senior Executive Vice-President and Member of the Board of the respondent-Bank, wherein he sought his help to save his job, and requested to be forgiven for his unintentional oversight/error and reiterated that he had already assured the Medical Department in writing that such a thing will not happen in future.
3. Before any action could be taken against the appellant on the basis of the above show-cause notice and enquiry proceedings another show-cause notice, dated 5th January, 1980, was served upon the appellant requiring him to explain why he should not be dismissed from service on the ground that he had submitted a false and bogus Intermediate Certificate. It may be pointed out that according to the respondent-Bank one of the requirements for promotion to officers grade was that the applicant or the candidate must possess the prescribed qualifications and in according ance with that requirement the appellant had submitted a photostat copy of a certificate indicating that he had passed the Intermediate Examination from the Board of Intermediate and Secondary Education, Karachi. As the bank suspected that the certificate was not genuine an enquiry was made from the Board in respect thereof. The Board or Intermediate and Secondary Education, in reply, confirmed that the certificate in question had not been issued by it and the Roll No, 9516 of the candidate shown in the certificate as having passed the Intermediate Examination of the Karachi Board was actually of one Maqboolur Rehman Abbasi, who passed the said examination in Second Division and not of the appellant. The appellant, in his reply to the show-cause notice, dated 7th January, 1980, denied the allegations levelled against him and claimed that there was conspircay against him which was being hached up by Mr, Anwar saeed Officer of the Personnel Division. The explanation of the appellant was not considered satisfactory and accordingly, a domestic enquiry into the said charge was ordered by the respondent-Bank.
This enquiry was also entrusted to Mr. Qamaruddin Abbasi and was fixed for hearing on 14th January, 1980. As the appellant failed to turn up for the enquiry it was held ex parte and the Enquiry Officer submitted a report to the effect that the charge against the appellant has been established.
On the other hand is the case of the appellant that he was unable to attend the domestic enquiry on 14th January, 1980 as he had fallen ill and had been advised rest by the Medical Officer of the respondent-Bank. Such an explanation was also submitted by the appellant when he was served with the second show-cause notice, dated 23rd January, 1980, in respect of the said charge. The management decided to hold a fresh enquiry against the appellant and to give him an opportunity of defending himself, and according, Mr. Barolia was appointed as the Enquiry Officer.
He conducted detailed enquiry into the matter from 24th February, 1980 to 23rd March, 1980. In this enquiry three witnesses were examined on behalf of the respondent-Bank, namely Shabbir Ahmed Jawalwalla, Inamul Haq and S. Ahmed Ghazali, while on behalf of the appellant he examined himself and did not lead any other defence. The Enquiry Officer, in his report, dated 28th April, 1980.
Gave a finding that the charge of submitting a false educational certificate has been established against the appellant. Accordingly, a second show-cause notice, dated 3rd May, 1980, was issued to the appellant alongwith which a copy of the Enquiry Officer's report was appended. According to the appellant he submitted his explanation to the second show-cause notice but the same was not found satisfactory and the dismissal order, dated 20th May, 1980, was issued on the basis of both the enquiry reports, one in respect of the tampering medical bills and the second in respect of the submission of bogus Intermediate Certificate.
4. The appellant challenged the orders of his dismissal before the learned Vth Labour Court through a grievance petition under section 25-A, I. R.
0. In his grievance petition he challenged only the action taken against him on the basis of the second charge relating to the submission by him of a false Intermediate Certificate and did not challenge the findings of the Enquiry Officer relating to the submission of false medical bills or the action taken against him thereon. The respondent-Bank resisted the grievence petition of the appellant on the grounds that the bank was being run under the authority of the Government and hence the grievance petition of the appellant was not maintainable, that the appellant was an officer of the bank and not a workman and hence he was not entitled to file the grievance petition against the termination of his services and that further the charges on the basis of which he had been dismissed from service bad been duly established against him in a fair and impartial enquiry.
The learned Labour Court has dismissed the appellant's grievance petition on the twin grounds that be is not a workman and hence is not entitled to file or prefer a grievance petition against his dismissal from service and that further both the charges had been duly established against him.
5. It was contended by Mr. Ali Ashraf, the learned counsel for the appellant, that though the appellant had been promoted as an officer of the bank in 1976, he continued to perform clerical and routine duties and hence he is to be considered as a workman for the purposes of the Standing Orders and was, therefore, entitled to file and maintain a grievence petition under the provisions of clause (3) of Standing Order 12 read with section 25-A,
1. R.
0. However, neither in his grievance petition nor in his evidence before the learned Labour Court did the appellant claim that he was employed or was required to perform any manual or clerical work.
Since the appellant was admittedly promoted to Officer Grade as far back as in 1976, if it was his case that notwithstanding his promotion he was performing or was required to perform duties involving manual or. Clerical work he should have made such a claim in his grievance petition or should at least have given details of such work in his evidence before the learned Labour Court.
Since he has failed to do so, the plea of the learned counsel that the appellant was required to perform duties involving manual or clerical work cannot be entertained. The learned counsel has also tried to rely upon an affidavit filed before this Tribunal by the appellant in which he claims that he was performing clerical duties but this evidence cannot be taken into consideration at this stage since no such plea was raised before the learned Labour Court. The affidavit is not supported by any documentary evidence indicating that the appellant was required to do any manual or clerical work. Since the appellant admittedly belongs to the Officers Grade if he wanted to show that he was employed to do manual or clerical work the burden to establish the same was on him which burden he was failed to discharge. I am, therefore, in agreement with the view taken by the learned Labour Court that the appellant is not a workman and is not entitled to prefer a grievance petition under section (3) of Standing Order 12 read with section 25-A, I. R.
0., against his dismissal from service.
6. It was next sought to be argued by Mr. Ali Ashraf, Advocate, that the respondent-Bank had decided not to take action against the appellant in respect of the charges of submitting and preparing false medical bills. In support of his contention the learned counsel relied upon two pieces of evidence. The first is the photostat copy of the application of the appellant, dated 16th December, 1979, addressed to Mr. M. A. Bukhari, Senior Executive Vice-President of the Habib Bank.
On this application there is an endorsement addressed to I. A. Jafri to the effect to please see if chance cannot be given to the applicant. It was argued by Mr. Ali Ashraf that this endorsement 'indicated that the respondent-Bank had decided not to take further proceedings against the appellant in respect of the charges relating to the medical bills. The other circumstance upon which the learned counsel relied upon in support of his contention was the fact that in their reply statement the respondents had not referred to the charge relating to the medical bills. I have already referred to the fact that in his grievance petition the appellant had not challenged the enquiry held against him in respect of medical bills or the action taken against him in consequence of that enquiry. It was, therefore, not necessary for the respondent-Bank to refer to the said enquiry or the action taken against the appellant based on that enquiry. As regards action taken on the letter, dated 16th December, 1979, and the endorsement thereof by Mr. Bukhari, the very fact that a second show-cause notice, dated 11th December, 1979, relating to the charge of preferring false medical bills had been issued to the appellant with which a report of the Enquiry Officer was appended and further the dismissal order, dated 20th May, 1980, specifically referred to the said show-cause notice clearly indicate that the respondent-Bank had not dropped the charge of preferring false bills against the appellant but on the contrary had taken action against him jointly on that charge as well as the charge of submitting a false Intermediate Certificate.
7. In respect of the charge of submitting a false Intermediate Certificate, Mr. All Ashraf submitted that there was no tangible evidence to establish that a false certificate was in fact submitted by the appellant. It was argued by the learned counsel that the promotion of the appellant to the officers grade was not based on his educational qualifications but on account of his experience and efficiency and that the bogus Intermediate Certificate was somehow introduced into the file of the appellant by certain officers of the respondent-Bank who were hostile to the appellant. Now it is an admitted position that the appellant is not even a Matriculate. In his cross-examination before the second enquiry conducted by Mr. Barolia the appellant admitted that he had studied upto Junior Cambridge. He had appeared in the Junior Cambridge Examination but had failed. It appears that at the time of getting employment in the respondent-Bank in 1971, the appellant had claimed in his application that he was a Matriculate. In the enquiry conducted by Mr. Barolia the appellant was asked how he stated in his application for employment that he was a Matriculate in Second Division when he had not passed the Matriculation Examination but the appellant declined to make a reply to the question on the ground it was not relevant to the charge against him. He, however, admitted that he had not passed the Matriculation Examination. There is overwhelming evidence to show that the appellant was claiming that he was Intermediate and had submitted a false Intermediate Certificate. One of the requirements of promotion to the officers grade according to the policy letter of the respondent-Bank is that the candidate must possess the prescribed qualifications. For this purpose the appellant among other, documents had produced a photostat copy of his Intermediate Certificate as testified by witnesses Shabbir Ahmed and Inamul Haq in the equity proceedings. It is difficult to believe that officers of the respondent-Bank would go to the length of fabricating a false educational qualification certificate and inserting the same in the file of the appellant. On the other hand, it appears from the office memorandum, dated 7th January, 1977, that the appellant had furnished the required document for his promotion. This memo. Bears the signature of the appellant as admitted by him in his cross-examination before the learned Labour Court. As the educational certificate was one of the required document it is clear that the appellant must have furnished such a document before the said letter, of 7th January, 1977 was issued. There are other documents supporting this inference. It has been admitted by the appellant in his evidence before the learned Labour Court that he had sat for the test which was held for his promotion to the grade of officers. His test paper has been produced in which the appellant has shown his qualification as Intermediate. The test paper also bears the signature of the appellant. No doubt in the evidence before the learned Labour Court the appellant-denied that this test paper was given by him or it bears his signature but an examination of the signature on the test paper with the admitted signatures of the appellant clearly indicates that the signature on the test paper is of the appellant. Moreover, it is quite unlikely that any one in the respondent-Bank would replace the test paper submitted by the appellant with a forged test paper and further forge the signature of the appellant thereon.
Another document which the appellant had submitted to the respondent-Bank at the time of his promotion was his declaration containing his biodata. In the declaration also the appellant has been shown as having passed the Intermediate Examination. The declaration bears a signature which I have compared with the admitted signatures of the appellant and I am satisfied that the signature on the declaration tallies with the admitted signatures of the appellant. No doubt the appellant has denied this signature but I cannot take his denial seriously. There is yet another document in which the appellant has shown that he has not only passed Matric but also the Intermediate Examination. This document relates to the particulars of the candidates for promotion and is dated 10th July, 1976. This document also bears a signature which I have compared with the admitted signatures of the appellant and I find that they tally.
8. Mr. Ali Ashraf, the learned counsel for the appellant, sought to argue that the documents in question had been referred to the handwriting expert but without waiting for the report of the handwriting expert the learned Labour Court had decided the matter. It may be pointed out that the application for reference of the documents to the handwriting expert was made by the respondent as early as on 21st May, 1981. However, the handwriting expert delayed the submission of his report for one reason or the other and went on asking for more and more particulars.
Ultimately, the patience of the respondent-Bank appears to have been exhausted and on 17th January, 1983 it submitted an application that it does not press the application for examination of the disputed documents by the handwriting expert, on which the learned Labour Court passed the following order :-
' The opinion was not received from the Expert but he again asked for fresh signatures in the same ink (black). The respondent has given statement that the respondent does not press the authentication of handwriting expert, hence same is dismissed. Sd/- P.
0. 18th January, 1983."
' In view of the extraordinary delay caused by the handwringing expert in submitting his report, the respondent-Bank was justified in giving up the handwriting expert and the learned Labour Court rightly allowed this request.
9. The upshot of the above discussion is that in my opinion not only the appellant was not entitled to file a grievance petition as he is not a workman for the purposes of the Standing Orders but that further both the charges against him have been fully established. I would, therefore, concur with the view taken by the learned Labour Court and would dismiss the appeal in limine.