' The above-captioned two appeals arise from the decision, dated 3rd July, 1980 passed by the learned Presiding Officer, Punjab Labour Court No, 1, Lahore, whereby the grievance petition of Kb.
Majid Waseem was accepted and he was ordered to be reinstated in service without back benefits.
The Bank has challenged the order of reinstatement of Kh. Majid Wasim, whereas the latter has preferred appeal against the direction that he is not entitled to back benefits. Since then the appeals arise from the same impugned decision they are being decided together through this single judgment, in which the Bank will be described as the appellant while Kh. Majid Waseem as the respondent.
2. The respondent was Class-III Officer in the appellant bank. The allegations against him were that he had cancelled the cheques in excess of his powers. The prosecution case is that according to rules, he could cancel the cheques upto the value of Rs, 25,000 that he cancelled stale cheque without referring the matter to the company and that he passed pre-receipted cheques which were not meant for cash payment. It is evident that according to the allegations, the respondent had acted in total disregard of the instructions contained in Manual of Deposits. The factum of the cancellation of the cheques is admitted by the respondent but his plea is that he did not commit any dishonesty and that the signatures appearing on the bogus cheques were similar to the specimen signatures available with the bank. Regarding cancellation of cheques against the rules; he said that this was the practice in the bank. The learned trial Judge wrongly says that the Staning Orders Ordinance, 1968 applies to the case and that the Wage Commission Award is not applicable. Nationalized banks are working under the authority of the Government, rather by the Government, in as much as according to section 5 of the Banks Nationalization Act, no person except the Government can establish and run the bank. The Wage Commission Award is made under the Industrial Relations Ordinance, 1969 and is duly published in the official Gazette and thus enjoys the character of statutory rules, the result being that both the conditions given in proviso to section 1(4) of the Standing Orders Ordinance, 1968 stand fulfilled and thus the said Ordinance is not applicable to the nationalised banks. Such banks are governed by the Wage Commission Award and since according to the said Award, the acts committed by the respondent amounted to misconduct, it cannot be said that the act of negligence is not a misconduct. The learned trial Judge has held that the respondent committed misconduct for the reason that he had committed habitual negligence, in as much as 23 cheques were cancelled by the respondent against the rules. Since a single instance of negligence amounts to misconduct, according to Wage Commission Award, no question of habitual negligence arises. Since during the period of one month only not less than Rs, 9,73,950 were drawn and all the cheques covering that amount had been dealt with and cancelled by the respondent, it cannot be said that he simply acted negligently. After the encashment of two or three cheques of huge amounts be must have become alert even if it be said that he had no mala fide intention. This is strong that he passed 23 cheques against the rules without realizing that the cheques may be bogus.
' The client no doubt was a valuable one, but it does not mean that such client cannot claim due care and caution in his dealings, rather special care should be exercised in the case of such a client, particularly when cheques of huge amounts were being received. The finding is that the signatures were bogus. In the lower Court it was not proved that the cheques were genuine, nor the lower Court has held so, meaning that admittedly the cheques were bogus. Comparison of signatures is the foremost important duty of the bank employees who have to cancel a cheque.
The respondent must have come to know while making comparison of the specimen signatures with the signatures appearing on the bogus cheques, that they were forged. I, therefore, cannot agree with the learned trial Judge that the respondent was guilty of negligence only. One of the cheques was stale cheque for Rs, 12,800. Such cheques are not for cash payment, but in spite of it the same was also cancelled by the respondent. Pie-receipted cheques were also passed by him.
Such cheques are not for cash payment, Can it be said that all these cheques were based upon simply negligence ? I, therefore, cannot agree with the learned trial Judge that the respondent was guilty of negligence only.
3. The learned trial Judge says that issuance of second shaw-couse notice and delivery of the copy of enquiry report are necessary. Enquiry procedure is given in sub-paras. (4) and (5) of paragraph 258 of the First Wage Commission Award. According to sub-para (4), written explanantion of the charges is to be taken from the accused employee and he is required to show cause why disciplinary action should not be taken against him. Thereafter, the employee's explanation together with the charges are to be submitted to the authority competent to impose the penalty.
Requirement of sub-para. (5) is that the authority has power to either enquire into the matter itself, or obtain an independent report from an officer or a committee of officers specially deputed by the authority to investigate the case. This part of sub-para. (5) deals with the enquiry. The paragraph further goes on that the report together with the employee's statement shall be laid before the authority who shall then consider the matter and impose any penalty as it deems proper in the circumstances. The words 'employee's statement are significant and need interpretation. They are to be read vis-a-vis the words 'render a written explanation of charges and show cause' appearing in sub-para. (4). This is apparent that double explanation is to be taken from the accused employee, firstly under sub-para (4) and secondly under sub-para. (5). Written explanation mentioned in sub-para. (4) is that explanation which is obtained from the accused employee before deciding whether enquiry be held or not. If the authority comes to the conclusion that the case needs taking of action, then enquiry is ordered. The words 'employee's statement' appearing in sub-para. (5) obviously connote the second explanation of the accused employee which is taken from him after the enquiry report is prepared. The significance lies in this that the requirement is that the report is to be submitted alongwith the employee's statement. It is thus clear that the employe's statement referred to in sub-para (5) is that explanation which is taken from the accused employee after the report is made. Now a question arises whether the copy of the enquiry officer's report should be furnished to the employee concerned whose statement/explanation is to be obtained and sent to the authority alongwith the enquiry report.
When the explanation of the employee concerned is obtained under sub- para. (4), he is given the statement of charges without which he is not in a position to give written explanation. The same principle applies in respect of sub-para. (5). Unless copy of the enquiry report is furnished to the employee concerned, he is not in a position to make any statement or give any explanation which is to be submitted to the authority along-with the enquiry report. Needless to say that the employee concerned cannot foresee what the enquiry report would be. The report of the enquiry officer would show to him what evidence had been believed and what material was used against him in order to return the verdict of guilt. He, therefore, must know the material brought against him before he is required to give a statement referred to in sub-para. (5). I am supported in my view by the observations made in PLJ 1981 SC 545. No doubt this authority is based upon North-Western Province Government Servants Efficiency and Discipline Rules, 1973 but those rules are to great extent similar to sub-paras (4) and (5) of paragraph 258 of the Wage Commission Award. It has been observed that obtaining of second explanation after giving copy of the enquiry report is necessary. In Islamabad Club's case 1982 SCMR 126 their Lordships refrained from expressing any opinion whether the service of second show-cause notice was or was not necessary as without deciding that point, their Lordships found themselves in agreement with the decision of the High Court, but in spite of it, it was expressed in that authority that if the authorities of Islamabad Club were still anxious to pursue the matter, it would clearly be opened to them to resume the proceedings by furnishing the copy of the enquiry report to the respondent and giving him a reasonable opportunity of show-cause against the proposed order of dismissal on the grounds found against him by the Enquiry Officer. Although the rule was not enunciated in the said authority but it can be gathered that the intention was that if action was proposed to be taken, second show-cause notice should be given furnishing the copy of the enquiry report. I, therefore, agree with the learned trial Judge on the point. Since in the present case no second show-cause notice was given, nor copy of the enquiry report was delivered, the order of dismissal is not sustainable and was rightly struck down by the learned trial Judge. I also find myself in agreement with the finding of the learned trial Judge that since the respondent had been reinstated on account of a technical defect, he was not entitled to back benefits.
4. As a result of the observations made above, I do not find any force in the two appeals and dismiss them.