1. ' This application under section 25-A of the I.R.O. Has been filed by the petitioner for his re- instatement with back benefits.
2. ' Briefly, the facts of the case are that the applicant was communicated charges on 19-1-1982 for misappropriation of Bank's Fund by the Manager of his Branch. ' He replied to it on 21-1-1982. On 23- 1-1982 the applicant was charge-sheeted by the Manager. One Akhtar Hussain an Officer of Grade- I was appointed an Enquiry Officer to hold enquiry against the applicant. It is said, by the applicant, that the enquiry was held but it was not a fair one and not impartial. Finally, on the recommendation of the enquiry officer the applicant was dismissed from service on 10-5-1982. It is claimed by the petitioner that he preferred appeal on 12-5-1982 and subsequently on 12-6-1982 and finally on 10-11-1982 but no reply was received. In the meantime the applicant went to the M.L.
3. Authorities who advised him to seek his remedy by the respective Court, if he liked. This he received by letter dated 22-3-1982. When no reply was given to the petitioner he served the respondent with a grievance notice on 6-3-1983 which was replied on 3-4-1983. The petitioner had approached the Banking Council for redress of his grievance on 3-3-1983 but this too failed and was rejected on 23- 3-1983. However, he was also informed by this letter that his earlier appeals had also been rejected by the Review Committee on 23-1-1983. Hence the present application wherein the petitioner had prayed that his dismissal order be set aside as he has been dismissed illegally and with mala fide intention as a measure of victimization at the hands of Enquiry Officer.
4. ' The respondent filed their reply statement alleging therein that the petition is incompetent as being time-barred by ten months. According to them the petitioner was dismissed on 10-5-1982 and has given grievance notice on 6-3-1983 and thereafter this grievance petition. As to the averments of the application the respondent re-iterate that the petitioner had misappropriated a huge amount of funds hence he was proceeded against in a most fair manner. The enquiry against him was held by an independent person who was not biased against the applicant at all. It is also asserted by the respondents that the petitioner was in Grade-II hence he was not a workman, consequently he cannot seek protection of section 25-A of the I.R.O., 1969. It has been prayed by the respondent that the petition be dismissed.
5. ' The parties led their evidence by way of affidavits. The petitioner filed his own affidavit (Exh. 3) and has been cross-examined by Mr. Samiullah Khan the learned representatives of the respondents.
6. The respondent in order to establish its case has filed the affidavit of the Enquiry Officer, Akhtar Hussain (Exh. 4).He has been cross-examined by Mr. Ch.Rashid Ahmed the learned Advocate for the petitioner at a great length.
7. ' I have heard the learned representatives of the parties and perused the evidence on the record and also the documents filed.
8. ' The main legal objection taken by the respondent is that the matter is miserably time-barred. It is pointed out by Mr. Samiullah Khan that the petitioner was dismissed from service on 10-5-1982 but he has given a grievance notice to the management on 6-6-1983 and then filed the present petition. If the petitioner had been wasting his time in not seeking a proper remedy it is no fault of the management. The matter therefore suffers from lathes and does not merit any consideration.
9. ' On a careful consideration of the entire matter it seems that the petitioner in para. 10 of his petition has specifically said that after his dismissal on 10-5-1982 he filed appeal on 12-5-1982, then on 12-6-1982 and then on 10-11-1982 but no reply was given. Admittedly, the copies of the memos.
10. Of appeals have not been annexed with the application but the letter dated 23-1-1983 admits that the petitioner had filed appeals before the Review Committee which according to this letter were dismissed on 23-1-1983. Even if this date is taken into consideration then too the grievance notice is within the time. The contention of the learned representative of the respondent that the petition is belated by ten months has no force. It seem that the appellant had filed appeals and was waiting for their decision. Admittedly, the rules governing the respondents provide for such appeal/revision which, obviously, have been decided on 23-1-1983 according to the respondents. Consequently, it will appear that the applicant has in fact two causes of actions, firstly on 10-5-1982 when he was dismissed from service and then again on 23-1-1983 when according to the respondents his petitions were dismissed by the Review Committee. The petitioner can avail of the time consumed in this process and his grievance notice is within time and so also the present petition.
11. ' The other objection by the respondent is directed to the issue whether the petitioner is a workman.
12. It has been admitted by the witness Akhtar Hussain (Enquiry Officer) that the petitioner was not in a commanding position in the bank as that admittedly, was, of a Manager. It has also come in evidence that the petitioner could not even transfer any of the staff members. Admittedly the accounting work and maintaining account books etc. Was made also by the petitioner. This clearly shows that the petitioner was not concerned with the managerial or supervisory work. He was therefore a workman for all purposes. Although, it is pointed out that the petitioner was an Officer of Grade II hence he is not a workman. I do not agree with the learned counsel. A close observation would show that the gradation has been made only to give monetary benefits to the employees in the present conditions. The nature of work however remains the same as it was when the petitioner was drawing the least pay in the same cadre which has been upgraded. The nature of work done by the petitioner very well brings him under the definition of a workman. He could therefore seek remedy by way of the present application.
13. ' It has been contended by the learned representative of the petitioner that the Enquiry Officer and petitioner had previously worked together in the same branch where the Enquiry Officer had been the Manager. It has come in evidence that there had been complaint by the petitioner against him and he was transferred from this branch. On the basis of these complaints there existed grudge and a sense of revenge in the mind of the Enquiry Officer. He further contends that in spite of the protests the Enquiry Officer was not changed and the enquiry was not an independent one.
14. Nothing contrary to this fact has been suggested to the petitioner during the cross-examination.
15. No suggestion has been made to the petitioner that the enquiry was proper and legal. No suggestion, as already mentioned, was made to the petitioner that the Enquiry Officer was not biased against him and that he was an independent person. No suggestion to the applicant that he had misappropriated the funds. Not even the case of the respondents has been put to the applicant. The applicant in his application has alleged that he was cross-examined by the Enquiry Officer during the enquiry proceedings. It has also been alleged by the applicant that he was not asked if he wanted to give any defence. No such suggestion contrary to this effect has been made to the applicant. The photostat copy of enquiry proceedings has been filed by the applicant and it clearly shows that he was cross-examined by the Enquiry Officer. This is unknown to the legal system. The accused is neither examined on oath nor he is ever cross-examined. When the enquiry proceedings had been challenged it was the duty of the respondent to produce the enquiry proceedings in original but this has not been done. This, therefore, casts a shadow on the entire enquiry proceedings and creates a doubt. No other officer from the respondent establishment has been examined even to fill in this lacuna left out during the evidence of the respondent. I therefore feel that the enquiry was not held in a proper manner and by an independent officer. The dismissal order therefore is defective and is accordingly set aside.
16. ' The applicant is re-instated, however, the respondent is at liberty to hold a fresh enquiry within two months of the receipt of this order, which shall be produced by the applicant when he reports on duty. The enquiry shall be held by some other independent officer other than who had held the impugned enquiry.