1. ' Applicant Farooq Samoo was employed as Cashier in the respondent bank. He was said to have committed misconduct and so he was dismissed from service on 11-11-1981. This dismissal order was then questioned before this Court vide Petition No. 152 of 1982 under section 25-A of I.R.O., 1969.
2. This petition was said to have been allowed by this Court on a technical point and the applicant was directed to be reinstated in service vide order dated 21-3-1983. However, a fresh enquiry was permitted to be held within a period of 2 months from the date of the aforesaid order and the payment of back benefits was made dependant on the result of the fresh enquiry.
3. ' It appears that after the order of this Court referred to above, the Management considered to hold enquiry afresh and for this purpose one Mr. Syed Anwar Ali, Assistant Vice-President of Zonal Office, Hyderabad, was appointed as Enquiry Officer vide letter, dated 14-4-1983. The enquiry was accordingly fixed on 24-4-1983 at 2 p.m. At Palejani Branch. The proceedings against him were questioned by the applicant vide his letter, dated 21-4-1983 but without any reply from the respondent. In any case, the enquiry was started on 24-4-1983 and thereafter the proceedings were adjourned to 5-5-1983, 8-5-1983 and then from day to day till 11-5-1983. After the evidence of the prosecution witnesses, it is alleged in the petition, the proceedings were concluded without affording any fair chance of defence to the ' applicant. Applications against the conduct of the Enquiry Officer were said to have been moved but with no result. However, the applicant was dismissed on 16-5-1983 and so he preferred the departmental appeal on 30-5-1983. Having received no reply to this appeal, the applicant served a grievance notice on 7th llth July, 1983 and then instituted the present application on 15-8-1983 for his reinstatement with full back benefits.
4. ' This application was resisted on behalf of the respondent and, in its reply statement, the allegations advanced in the petition were emphatically denied. It has been stated that during the course of fresh enquiry the conduct and attitude of the applicant had been highly objectionable.
5. The applicant made unlawful attempts to delay the finalization of the enquiry proceedings in order to consume the period of 2 months given by this Court for holding fresh, enquiry and in this way to frustrate the purpose of judicial orders. It has also been contended that full and fair opportunity was afforded to the applicant to defend himself but due to his recalcitrant attitude the Enquiry Officer felt much difficulty in holding and the conclusion of the enquiry. The charges levelled against him were said to have been established and so he was rightly dismissed particularly when the applicant had himself admitted the charge in his own application Annexure 11/1 to the reply statement. It has also been pleaded that the applicant was working as a Branch Manager and so he was not covered by the provisions of S.O. Ordinance. Accordingly, he cannot maintain the present application.
6. ' In support of its case the applicant examined himself while S. Anwar Ali, the Enquiry Officer, and one Mr. Abdul Aziz Memon, were tendered in evidence on behalf of the respondent. Photostat copies of enquiry proceedings have also been placed on record.
7. ' I have heard Mr. Wasiullah Qureshi, Advocate for the applicant and Mr. M. Bashir Awan, counsel for the respondent. I have also minutely examined the entire record of this case with reference to the arguments advanced before me. The legal position involved in this case has also been appreciated.
8. ' The first point which has been urged before me on behalf of the applicant is that the charge- sheet on the basis of which the dismissal order has been passed is hopelessly time barred and so the entire super-structures would fall to the ground. Learned counsel submits that though the charge-sheet was said to have been issued on 17-1-1981 but in fact it was served on the applicant on 1-2-1981. It relates to the misconduct of the applicant said to have been committed in the years 1979 and 1980, lastly on 25-11-1980 whereas the charge-sheet was served on the applicant on 1-2- 1981. Accordingly, this charge-sheet having been issued to the applicant after the lapse of one month of the commission of the misconduct would certainly be barred by limitation and so the whole action of the respondent would be declared as void. Mr. Bashir, learned counsel for the respondent, on the other hand, submits that according to the relevant law the charge-sheet is to be issued within one month of coming to know of the misconduct and since this misconduct of the applicant was made known to the respondent after veil It Station and inspection of the Iplevant,s4vord as completed, the charge-sheet cannot be said to have become time-barred.
9. ' In order to appreciate the legal position I would like to refer to 15(4) and according to it the misconduct is to be informed in writing to the concerned worker "within one month of the date of such misconduct or of the date on which the alleged misconduct comes to the notice of the employer". The notice of the employer about the misconduct is thus an important ingredient for computation of time. The misconduct in the instant case is in relation to the misappropriation or embezzlement of certain amount and in the matter of accounts misappropriation etc., would come to the notice of the employer only when the accounts are examined. Accordingly, in the present case, some person orally informed the concerned authorities about the guilt of the applicant and so it was wholly impossible for the authorities to straightaway charge-sheet the applicant without first ascertaining the actual facts and this ascertainment was inevitable because in the case of levelling charges the management was also supposed to prove the same. 'Accordingly, on receiving some oral and vague information, the competent authority deputed responsible Officers to have a thorough probe into the accounts maintained by the applicant and such probe took some time. However, as soon as the detailed verification of the accounts was completed and the actual misconduct became known to the management, the charge-sheet was issued with all facts and figures etc. In view of this, it cannot be pleaded now that the charge-sheet was time barred for the simple reason that the misappropriation was made some time in the month of October or November, 1980. It is repeated here that the time for charge-sheet is to be reckoned or computed from the date of the knowledge of the misconduct and since this misconduct was actually made known to the management with its proof in the end of December 1980 or some time in the month of January 1981 as per the reports of Messrs Ashiq Hussain and Farooq-e-Azam, the charge-sheet was well within time. The objection of the applicant on this point is accordingly misconcieved and so is repelled.
10. ' It has next been contended, and with all force, that the applicant was not served with the second show-cause notice after the enquiry proceedings nor he was provided with the report of the Enquiry Officer and so he was deprived of the right of defence. Mr. Wasiullah has placed reliance on 1984 PLC 961 and 1506. Admittedly neither the report of the Enquiry Officer was provided to the applicant nor he was served with the second show-cause notice but, I feel that the applicant cannot be said to have been prejudiced by non-service of second B show-cause notice. This legal proposition has been examined in quite detail by their Lordships of the Supreme Court in the case of Dawood Cotton Mills Limited reported in PLD 1981 SC 225. In this authoritative judgment it has been held as under:- "Accordingly, neither the giving of second show-cause notice nor the supplying of the report of the Enquiry Officer is a requirement of the rules of natural justice. There can, however, be instances where the report of the Enquiry Officer may contain material extraneous to the charges or anything in addition to be found in the original allegations against the workman or other substantial defect which could have prejudiced his case; but for that redress is provided under section 25-A of the Industrial Relations Ordinance. This would, be no means, provide a ground for enlarging the scope of provision so as to include both these requirements...In the result I would hold that from the provision, as is worded, neither the requirement of the second show-cause notice nor of supplying the copy of the report can be spelled out."
11. Applying this dictum there is now no difficulty to repel the contention of M . Wasiullah and in holding that neither service of second show-cause notice was necessary in this case nor the report of the Enquiry Officer was to be provided and the respondent did commit no illegality. It has next been submitted on behalf of the applicant that Mr. Farooq-e-Azam, who is said to have conducted the investigation prior to charge-sheet, was not examined by the Enquiry Officer though it was repeatedly requested by the applicant and so his non-examination was fatal to the management.
12. This submission of Mr. Wasiullah is also of any substance. The report of Investigating Officer has been placed on record. Verification was also made by Mr. Ashiq Hussain and besides his report, this Ashiq Hussain was examined by the Enquiry Officer in presence of the applicant. Accordingly, the applicant cannot show any grievance for the non-examination of the other Investigating Officer particularly when it is for the management to adduce any evidence in support of its case. The applicant never required Mr. Farooq-e-Azam ; to be examined as his defence witness and so no illegality can burg against the Enquiry Officer.
13. ' The next submission of Mr. Wasiullah is that the applicant was neither permitted to cross-examine the witnesses of the respondent and so he was seriously prejudiced in his defence. After going through the enquiry proceedings I feel that this objection is quite misconcieved and rather falicious. The examination-in-chief of Ashiq Hussain was completed on 5-5-1983 and first the applicant was provided 3 days to make him prepared for the cross-examination of this witness and then he had the cross-examination of Ashiq Hussain on 8th/9th, 10th as also 11th May, 1983.
14. Since, as per the Enquiry Officer, the applicant was making irrelevant questions to the witness, and was attempting to waste the time in order to defeat the time limit fixed by this Court, he did not permit such irrelevant cross-examination or to adopt dilatory tactics. I have also examined the cross-examination and I also subscribe to the view of the Enquiry Officer that the whole cross- examination as directed by the applicant, was wholly irrelevant and it clearly gives a definite impression that the applicant was making attempts to pass on the time as prescribed by this Court. He had put not only irrelevant questions but such questions were repeatedly put to this witness and on some occasion he started putting questions as to indicate the arguments with the witness. In this situation there was no option to the Enquiry Officer but to close the cross- examination, and if he felt aggrieved by this action of the Enquiry Officer, one can come to his rescue. In fact the Enquiry Officer showed sufficient tolerance and afforded all sorts of facilities to the applicant but still the applicant could not be satisfied and so this Court cannot help him. The applicant was also afforded sufficient opportunity to give his evidence and to lead defence but the applicant did not avail this facility and perhaps it was because he had nothing to defend and wanted to take benefits from such technical defects and which are never permissible in any domestic enquiries.
15. ' Though nothing has been pleased in respect of merits of this case on behalf of the applicant but even on merits I find that the applicant has no case. During the course of enquiry the gross misconduct of misappropriation and embezzlement has been established and since the applicant had nothing to wriggle out of this charge, he has attempted to make hide and seek.
16. ' In conclusion, I do not find any substance in this petition and so it is dismissed.