' The applicant was appointed as Godown-keeper and his duties were said to be manual and clerical, inter alia, to check stock of raw cotton and cotton yarns, etc. On the basis of his duties and nature of job, the applicant claims himself to be covered with Labour Laws and more particularly Standing Orders Ordinance 1968. He was said to be agitating for the payment of bonus, increment, medical allowance etc. For the last 4 years, but the same were withheld by the management without any valid reasons. Since he was pursuing his claim aforesaid, the management got annoyed and so a concocted and false charge-sheet dated 13th September, 1983 was served on him. It was replied on 20th September, 1983 and thereafter departmental enquiry was conducted and ultimately he was dismissed from service on 5th December, 1983. He then unsuccessfully preferred departmental appeal on 1st January, 1984 and then served a grievance notice dated 4th March, 1984. Finally, he approached this Court for his reinstatement with full back benefits, mainly on the grounds that the dismissal order dated 5th December, 1983 was based on false allegations and the same also did not constitute any misconduct ; it was based on a perverse and prejudicial enquiry findings and that the enquiry was conducted against all canons of justice.
2. The respondent, in its reply statement, pleaded that the applicant having been appointed on parties account was never a regular employee of the bank. It is also pleaded that the applicant was guilty of gross misconduct and so he was rightly charge-sheeted. It has also been urged that fair and impartial enquiry was conducted in this case and since the charges were proved, he was rightly dismissed. It has also been asserted that the applicant was heard in appeal and the same was decided on merits. The jurisdiction of this Court has also been questioned.
3. The applicant examined himself in support of his case, while Messrs Muzaffar Ali, Enquiry Officer and 9, Kishal Hassan Rizvi, Zonal Head were examined on behalf of the respondent.
4. After evidence, I have heard Mr. Muhammad Bashir Awan, Advocate for the applicant, and Mr. R.
M. Mushtaq, counsel for the respondent. I have also scrutinized the evidence on record in the light of the submissions made at the Bar.
5. Before I dwell upon the merits of this case, I would like to examine the legal objection as to jurisdiction of this Court raised on behalf of the respondent. It has been strenuously argued by Mr. Mushtaq that the applicant was appointed only on parties account for such time as he may be required and his services were to be dispensed with as soon as the parties account was settled.
Learned counsel has placed implicit reliance on appointment letter dated 28th July, 1977, placed on record as Annexure AR. Mr. Mushtaq however, admitted that though the applicant was on parties account but still the bank was competent to take any action against him as per its rules and that it enjoyed hire and fire powers in respect of the applicant as well. His further submission is that since the applicant has committed a gross misconduct, he was rightly proceeded against. Mr. Awan, learned counsel for the applicant, however, submitted that as per the appointment letter itself the applicant was a regular employee and by merely showing the applicant on parties account would not exclude him from the operation of Labour Laws.
6. The appointment letter though shows that applicant as a temporary employee but, according to it, the applicant was also to be regulated by the rules and regulations of the bank and, some of which, are printed on the back of this letter. I have carefully gone through the terms of employment as mentioned on the back of this letter and I find that his services are liable to be terminated only if he commits breach of any rules and regulations of the bank. The age of retirement is also to be fixed by the bank from time to time. Under the heading "C in the vacancy" clause (iii) is kept blank.
It stipulates "Godownkeeper/Chowkidar on party account A/C, Messrs. A perusal of this appointment letter and more particularly sub-clause (ii) referred to above, clearly shows that the applicant was never appointed on parties account and that is why this sub-clause (iii) was kept blank. If he had been on the account of any party, the name of such party should have been mentioned. There is no substance in the plea of Mr. Mushtaq that after his appointment, the applicant was subject to shiftings from one parties godowns to the other and so he is to be deemed only on parties account. Admittedly the applicant was first posted at S. I. T. E, Kotri Branch of the Bank and thereafter he was shifted to Ghulam Hussain Hidayatullah Textile Mills. Thereafter he was shifted to the Island Textile Mills. It has not been shown on which parties account the applicant was actually appointed and his first posting at bank premises itself indicates that in fact he was appointed like all other employees of the bank and then he was transferred from one place to the other. He remained in employment from 1977 till his dismissal in 1983 and thus he put in about 6 years service. Had he been on parties account only, the appointment letter should have been specific on this point and his services should have been terminated as soon as he ceased to be an employee on a particular parties account. If, according to Mr. Mushtaq, the first party's account was settled with the bank, instead of shifting him to another parties godown, the applicant should have been terminated as the duration of his job was over. However, since he was continued in the employment and was shifted from one place to the other without laying down specific terms of his employment, he cannot be deemed to be a temporary employee and on this plea he cannot be permitted to be treated only at the sweet will of the management. In fact by the duration and nature of the job as also the fact that the applicant was being regulated by the rules and regulations of the bank which were also applicable to all other employees, the applicant would be deemed to be a permanent workman amenable to the Labour Laws. Accordingly, this application is quite competent and can be adjudicated upon by this Court.
7. Reverting to the merits of this case, I would mention here that the applicant was charge-sheeted on five allegations. The first allegation is in regard to the purchase of a Motor Cycle from Messrs Island Textile Mills Limited as illegal gratifications to favour the mill ; the second charge relates to his taking meals without payment at the Mess of the Mill ; the third accusation is that he was not preparing stock returns daily ; while fourth charge is that he used to prepare false report of stocks in order to pressurize the party to yield to his illegal demands and, finally, he was shown to have prepared a false report of stock for the period from 16th July, 1983 to 18th July, 1983 mentioning 300 bales less in the stock report. Charge relating to taking lunch is not said to have been entablished and so only four charges are found proved. I would accordingly examine whether, as per the evidence and material on record any of these charges stood proved and whether such charges amounted to misconduct to warrant major penalty.
8. It has been urged on behalf of the respondent that the applicant had purchased a Motor Cycle of Rs, 5,000 and, out of this settled amount, only Rs, 2,000 were paid by him. Purchase of the vehicle, in my humble view does not amount any misconduct more particularly when the bank has not been able to show me any rule which prohibited its employees the purchase of any vehicle or to obtain permission for purchase in advance. Even otherwise this charge has not at all been established. As pointed out above, as per the charge the vehicle was agreed to be purchased in the sum of Rs, 5,009 and the applicant paid only Rs, 2,000. The agreed amount was to be paid in instalments. When this transaction took place and upto what time this amount was to be cleared, has not been disclosed any where either in the letter of mill sent to the bank or in the evidence of any witness. The Enquiry Officer also never bothered to find out the same. In any case, as per the evidence of Ahmed Hussain, examined by the Enquiry Officer the applicant was said to have paid Rs, 2,500 and in this way there is a clear contradiction between the charge and the evidence of Ahmed Hussain. It has been the plea of the applicant that he had paid in full and had obtained a "no objection" from the mill whereby this vehicle was transferred in his name. No document whatsoever was produced on behalf of the bank or the mill to show that the agreed transaction was for Rs, 5,000 payable in instalments and that he had paid 4 instalments. No person of the mill was also examined by the bank but the Enquiry Officer only relied upon a letter dated 25th August, 1983 purported to have been sent by the mill to the bank. As per this letter the applicant had paid only two instalments of Rs, 1,000 each whereas as per Ahmed Hussain, the applicant paid 3 instalments of Rs, 500 each and one instalment of Rs, 1,000. This all shows that the charge was on either mere presumptions and surmises or it was a fabricated one otherwise there would have been a positive evidence about nature of such transactions. Admittedly the vehicle was transferred in the name of the applicant on the basis of clearance certificate issued by the mill and so to prove otherwise, the onus was on the bank which it miserably failed to discharge. Accordingly on merits even this charge is not established and further that, as pointed out above, the purchase of the vehicle did not constitute any misconduct.
9. I would now advert to the second charge relating to the preparation of the stock reports. Three witnesses have been examined before the Enquiry Officer ; they are one Muhammad ldrees Memon, Manager, Ahmed Hassan who held preliminary investigations, and (3) Faheemuddin Faheemi said to be directly Incharge of the applicant. In their respective statements they all said that the applicant prepared stock reports with a gap of 2 to 3 days. They were accordingly asked by the applicant if the preparation of reports daily was over notified in writing and if the applicant was not preparing the same he was ever asked to do so in writing. To this vital question all the witnesses gave evasive replies and said that it was only a general practice and was nothing in writing. They also admitted that despite the non-compliance of the directions by the applicant in this behalf he was neither warned in writing nor any report was made to Higher Authorities. The applicant had been in the employment of Bank since 1977 and if he had been violating the directions, he must have been taken to task and if no notice was taken It any time and the applicant continued to prepare reports with a gap of 2 to 3 days it cannot be considered as a misconduct what to talk of a misconduct which warrants major action to the extent of dismissal.
10. The fourth charge is relating to preparation of false reports. The falsity of the report is pleaded on the basis of the statement of the Manager as also the excise record. In the examination-in-chief of all the 3 witnesses nothing has been said about false reports. However, in their respective cross- examination they only pleaded that the reports prepared by the applicant did not tally with the excise register. They had no other material or evidence to show that any of the reports were against the factual position of stock in the cotton. In fact, all the 3 witnesses tried to shift their burden on each other and none came out with the truth. The perusal of the record and enquiry proceedings also makes it vividly clear that this charge was a concocted one without any material whatsoever. This charge also thus could not be proved.
11. The most important accusation is that the applicant has shown 300 bales less in the stock report and it was to pressurize the mill management. The Bank Manager Muhammad Idrees admitted that the reports were being prepared by the applicant from the actual stocks and that he also used to verify "from the physical checking of the stock".
' In reply to another question, the Manager stated that he referred the Excise Register because he had noticed difference in this stock. This Manager also stated that the difference of 300 bales was estimated by him as per the complaint of Mill Manager and which complaint was only oral. This Manager also admitted that he did not take any action against the applicant even on this account but confined himself to administer warning verbally. The statement of Ahmed Hussain was based only on the statement of Idrees and Mill management and both these statements were also oral. In reply to one question he stated that the stock position of the bank must tally with the Excise Register. It means that if the party manipulates false entry in the Excise Register to avoid excise duty, still the factual position of the cotton should be brought at par with the excise register, This shows that the whole accusation of the bank against the applicant is whimsical as also against all norms of justice. It may also be contended that if an employee does not join hands with any law- breaker, he is not supposed to remain on the rolls of the bank and this is an irony of fate. After going through the entire enquiry proceedings as also the evidence brought on record in this Court it is quite evident that the applicant was charge-sheeted only because he was not prepared to act according to the illegal dictates of the Mill mangement and was also not to support the Bank Manager in his unlawful collusion with the Mill management.
12. As per the plea of the applicant he was being deprived of his lawful benefits and amenities and so he was repeatedly agitating. He had also made specific written complaint to the Zonal Head of the bank on 28th August, 1983 against the unlawful conduct of the Mill management and the Manager of the Bank and so the Bank Management got annoyed and then he was charge- sheeted. This accusation of the applicant has nowhere been denied or contradicted even during the course of cross-examination of the applicant. Accordingly, it is established that since the applicant had made serious complainst on 28th August, 1983 and since he was claiming his legal benefits, this false case was concocted against him and he was punished without any legal material whatsoever. Accordingly, the impugned order cannot be sustained in law and so it is hereby set aside. The applicant is accordingly ordered to be reinstated with all back benefits within one week hereof. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.