' The appeal captioned above is directed against the decision dated 6th August, 1983 passed by the learned Presiding Officer, Punjab Labour Court No, 2, Lahore, directing the re-instatement of the respondent in service with back benefits.
2. The respondent was Officer Grade-II. He was issued two charge-sheets dated 16th September, 1981 Exh. P. 1 and dated 29th November, 1981 Exh. P.
2. The charge-sheets are reproduced below :- "The allegations against you are that your being the Key Holder had not been doing the physical checking of the cash during your posting at Chandni Chowk Branch of our Bank more particularly on 30th July, 1981 and due to your connivance and criminal neglect a sum of Rs, 40 lacs was found short on 4th August, 1981.
(2) That you did not check the cash and another sum of Rs, 1,800 was found short on 4th August, 1981 by the Audit Party which establishes you did not check the cash on 30th July, 1981.
(3) That you have been applying test numbers on the remittances sent through T. Ts. From the date of your posting till 4th August 1981 more particularly during the period from 1st October, 1981 to 31st October, 1981 knowing fully well that the amounts in respect of these T. Ts. Have not been credited to the relevant Account.
(4) That you have not been checking the cash book and other record such as vouchers etc. In accordance with the instructions on the subject simply to facilitate your co-accused to commit fraud."
Exh. P.
2.
"That during your incumbency as Second Officer at Chandni Chowk Branch, Lahore Messrs. Rana Abdul Hafeez, Nisar Hussain and Muhammad Iqbal Cashiers with your connivance, had been misappropriating customers funds for their personal gains by accounting. For the moneys deposited by the parties for credit to their accounts or effecting outward T. Ts. On dates subsequent to the actual dates of deposits by the parties. In this connection we give below details of some of such vouchers which came to your notice during the course of business but you, with guilty intentions and ulterior motives, did not take notice that the amount of these vouchers had been received earlier than the dates on which these amounts were being accounted for by making alterations in actual dates of deposits :-
(2) That on 23rd February, 1981 you allowed drawings of Rs, 50,000 from CD Account No, 1743 of Mr. Muhammad Idrees without authority of the account holder causing a loss of Rs, 50,000 to the Bank.
(3) That the following cheques were passed by you for payment without obtaining payee's discharge in token of having receiving -the amount :-
(4) That amount of T.T. For Rs, 50,000 received from Salah Muhammad Street Branch, Karachi on 12th February, 1981 favouring Sh. Noor Muhammad was misappropriated by you for credit to C D Account No, 1590 of Mr. Amir Sohail.
(5) That with the connivance of Mr. Muhammad Tufail, Manager the following S. T. Ds. Had been issued by you without obtaining Account Opening Forms and S. S. Cards of the depositors and interest accrued thereon had been paid on Debit Cash Vouchers contrary to Bank's practice to issue Pay Slips which is highly irregular : -
(6) That on 23rd May, 1981 an amount of Rs, 1,500 was withdrawn and embezzled by you jointly with Mr. Saeed Ahmad, Manager and Mr. Iftikhar Shafi Mir, Officer Grade-II, Area Office, Shahalam, Lahore by debit to branch Expenditure Account on the pretext of having paid premia to Messrs The Asia Insurance Company Ltd., in respect of Insurance Policy of cash-in-safe for Rs, 8,000 million reported to have been obtained for the period from 2.00 p. m. On 21st May, 1981 to 9-00 a. m. On 23rd May, 1981."
3. So far as charge-sheet Exh. P. 1 is concerned, only charge No, 3, according to the enquiry officer, was proved. But he says that it was merely a deviation of procedure and not a case of connivance, nor the charge was of connivance. According to the enquiry officer, this charge does not amount to misconduct. The opinion of the enquiry officer regarding the charges contained in charge-sheet Exh. P. 1 is that charges Nos, 2 and 3 were merely omissions. So far as the remaining charges are concerned, the enquiry officer exonerated the respondent. In the end he has held that no charge of misconduct was established against the respondent. In spite of it the employer dismissed the respondent. If the punishing authority did not agree with the enquiry officer, another enquiry officer should have been appointed. He could not against the report of the enquiry officer dismiss the respondent. So the dismissal order was rightly set aside by the learned trial Judge.
4. It has been argued by the learned counsel for the appellant that the respondent being officer Grade-II was not a workman. (Duty) Rosters of different periods were produced in evidence by the appellant and those are Exhs. D-31, D-32 and D-33. Same duties are given in all the three documents. They are, operation of test key and supervision of C D and S B ledgers, credit and debit vouchers and to sign the instruments DD/TT and MT jointly with the officer incharge remittance department. No other duties are given. Operation of test key is not a supervisory job. Supervision of ledgers and other books is not those supervisory duties as contemplated by exception (b) to section 2(xxviii) of the Industrial Relations Ordinance, 1969. Supervisory duties which exclude an employee from the pale of workman mean supervision of the subordinate. It is not mentioned that the respondent's duty was to supervise the work of CD/SB ledger keepers. Supervision of ledger and vouchers would not keep the respondent busy throughout the working hours. It cannot be presumed that the respondent was made to sit idle the whole day. The statement of the respondent, therefore, appears to be correct that his duty was to do clerical work. He has given his duties in his statement which are clerical. In the above-mentioned documents, a post of assistant is also mentioned but against it no duties are given and instead it is written "expired on 5th February, 1981". Since there was no clerk so the clerical duties were being taken from the respondent. No power-of-attorney has been produced. Exh. R. 4 has been produced but it is not of the respondent but of some other person and appears to have been produced as a specimen. No reason has been given why the power-of-attorney executed in favour of the respondent was not produced. Either none may have been executed or no managerial or supervisory powers may have been given to the respondent, so it was though available not produced. No other evidence as regards the duties of the respondent was produced by the appellant. R. W. 1 did not say anything. R.
W. 2 said that he had never seen the respondent working and did not know the facts. He also said that he had never seen the power-of-attorney executed in favour of the respondent. The statement of the respondent, therefore, stands unrebutted. He was, therefore, rightly declared by the learned lower Court as a workman.
5. The respondent has preferred cross-objections also. The plea is that the appeal is not competent as it was not brought by the Head Office, Karachi, which is the appointing and dismissing authority. This is true that the Head Office, Karachi is not the appellant, but the authority who is the appellant was also sued by the respondent, so can be said to be an aggrieved party from the decision of the learned lower Court. Needless to say that an appeal can be preferred by an aggrieved party. So the appeal is not incompetent, and the objection is overruled.
6. As a result, the appeal and the cross- objections are dismissed.