' This appeal arises from the decision dated 26th July, 1978 passed by the learned Presiding Officer, Punjab Labour Court No, 3, Lahore at Ferozewala, whereby the grievance petition of the appellant was dismissed.
2. The charge-sheet is not on the file but from the record it can be gathered that the allegation against the appellant was that he had made advances against the bank rules. The appellant was charge-sheeted on 23rd April, 1976. The grounds on which the appellant challenged the order of his dismissal are that he was not allowed to cross-examine the witnesses and to produce defence at the enquiry, that the Enquiry Officer acted with undue haste and mala fide intention by not confining himself to give his opinion on the allegations but suggested the punishment of dismissal also and institution of a criminal case. On behalf of the respondent it was contended that the appellant was not covered by the definition of workman, that the allegations were correct and had been proved and that the enquiry was properly and impartially conducted, and that the appellant was afforded proper opportunity to cross-examine the prosecution witnesses and to lead evidence in defence. The learned trial Judge found that the appellant was covered by the definition of workman. The points raised by the appellant, however, were decided against him.
3. In the enquiry the statement of solitary witness namely Fazal Karim was recorded add, thereafter, the statement of the appellant was recorded. Fazal Karim deposed about various advances made by the appellant during the tenure of the said witness. First person is Muhammad Nafees and the witness stated that the appellant had allowed without his permission over draft in favour of the said Muhammad Nafees from time to time totalling Rs, 1,93,487.97 till 23rd February, 1976, when last cheque No, 963698 for Rs, 45,080 was paid. He stated that the advance was clear and no documents had been taken from the borrower. The appellant was asked to cross-examine the witness on the close of every item but what the appellant said was not enquired from the witness.
The writing goes like this :- "I now ask Mr. Akhtar Ali Shah if he has any cross-examination. His cross-examination is that the advance was secured against joint registration of bus No, LEJ-2950. The documents were obtained from Mr. Nafees and also balance confirmation."
' If this is the answer of the witness to the cross-question then it shows that no illegality was committed by the appellant in advancing money to Muhammad Nafees, in as much as the advance was secured under the pledge of a bus and documents were obtained at the time of making the advance. But if this is a question and the answer was not recorded, then it cannot be said that the appellant was afforded proper opportunity to cross-examine the witness. Next man to whom advances were made, according to the witness, is Muhammad Irshad son of Ghulam Rasool. The witness said that the appellant accommodated the above mentioned borrower in excess of the limit without authority, because on 15th July, 1975 the over draft was Rs, 7,082.49. In respect of this item the appellant did not cross-examine the witness. The next borrower is Ehsan Ullah. The witness stated that unauthorised over-draft was allowed by the appellant which was to the tune of Rs, 2,258.70 as on 31st March, 1976. The appellant did not cross-examine in respect of this item. This is further written in respect of this item that the account had been adjusted on 8th May, 1976, meaning that share was no balance against the account-holder. The next man is Ch. Ghulam Ali. The witness stated that agricultural loan of Rs, 2,000 was allowed on 17th February, 1975, whereas the limit was valid upto 31st May, 1975. He further stated that guarantee of two persons as outlined in the limit was not taken by the appellant before allowing the advance. It is not mentioned that any amount was outstanding against the account holder. If there was no balance, the bank did not suffer any loss, even though guarantee was not taken. The appellant did not cross-examine the witness on this point. The other account-holder is Muhammad Nafees to whom loan of Rs, 2,500 was allowed by the appellant, according to the witness, on 22nd December, 1975 without authority. The appellant, cross-examination is as under :- "I allow Mr. Akhtar Ali Shah to cross-examine Mr. Fazal Karim and he says that according to circular of H.
0. The advance was given against agricultural pass hook for purchase of bullock."
' To Mst. Rasool Bibi advance of Rs, 5,122.31 was made as agricultural advance for purchasing bullock and according to the witness, the advance was unauthorised. The cross-examination goes as under :- "Mr. Akhtar Ali Shah was asked for cross-examination and he says that the advance was allowed under office circular on 10th January, 1976."
' It does not appear whether this is a question or answer of the witness., To Muhammad Nasrullah advance of Rs, 1,950 was made on 10th January, 1976 and according to the witness, no guarantee of two persons was taken. The advance was for fertilizer and the guarantee was essential. Cross- examination goes like this :- "Mr. Akhtar Ali Shah was asked to cross-examine. He says that it is according to circular. Nothing mentioned about guarantee in the circular and verification of Patwari was sufficient to take loan."
' Again it does not appear whether this is a question of the appellant or answer of the witness. The other man to whom advance was made was Muhammad Nawaz. The witness stated that the advance was made for fertilizer on 15th January, 1976 without obtaining guarantee. Cross- examination goes like this :- "Mr. Akhtar Ali Shah was asked for cross-examination and he says this is similar to Muhammad Nasrullah's advance."
' About Faqir ,Ali the witness stated that the appellant made advance for fertilizer on 20th January, 1976 without obtaining guarantee of two persons. The advance was of Rs, 856.45. When the appellant was asked to cross-examine the witness, he said that it was similar to Muhammad Nawaz, but the answer from the witness was not taken. About Boota the witness stated that he was allowed advance of Rs, 3,000 on 27th January, 1976 for purchasing bullock and the appellant had no authority to give loan for the purpose. When the appellant was asked to cross-examine the witness, the appellant said that the advance was authorised vide H.
0. Circular. Again this was the statement of the appellant, but no answer from the witness was obtained on the point. About Muhammad Sharif the witness stated that the appellant had allowed advance for bullock without authority and out of the advance of Rs, 5,000 the appellant had taken Rs, 2,000 from Muhammad Sharif. He also stated that no documents were obtained from the borrower. The appellant was asked to cross-examine the witness but what is written is not understandable. However, it appears that the appellant said that he had taken loan of Rs, 2,000 from Muhammad Sharif and returned Rs, 500. Again this was the statement of the appellant but the witness was not asked to give reply. The next borrower is Fateh Muhammad to whom advance of Rs, 5,112.75 was made on 27th January, 1976 for the purchase of bullock which, according to the witness, was without authority. The witness further stated that the documents were incomplete and the appellant had taken Rs, 1,000 from Fateh Muhammad. When the appellant was asked to cross- examine, he said that it has not a fact that he had taken Rs, 1,000 on grant of loan but he had taken as a loan from Fateh Muhammad, 'but the answer from the witness was not obtained. The witness further stated that fictitious advances were made as under :-
1. Muhammad AkramR s. 24,341.55
2. Muhammad BootaRs. 10,103.45
3. Muhammad Din Rs. 17,219.10
4. Muhammad SalimRs. 15,679.65 ' The appellant did not cross-examine the witness on this point. The witness further stated that the following agricultural loans in ficticious names were made by the appellant :--
1. Wali Muhammad Rs.1,950
2. Muhammad Arif Rs.1,950
3. Muhammad Ali Rs.1,950
4. Muhammad AshrafRs.1,950
5. Mand Rs.1,950
6. Khushi MuhammadRs.1,950
7. Imam Din Rs.1,950
8. Nasir Ahmad Rs.1,950
9. Shabbir Ahmad Rs.1,950
10. Muhammad AslamRs.1,950 ' The appellant was asked to cross-examine on this point but he declined. The witness further stated that the appellant had been doing private business while holding charge as Manager, but the appellant did not cross-examine him on the point. The witness further stated that the appellant during his tenure as Manager issued pass books in the name of Ghulam Ali showing credit of Rs, 40,000 in the account of Ghulam Ali as fixed deposit and actually the cash was not received.
Similarly another pass book in the name of Barkat Bibi was issued showing credit of Rs, 17,000 as fixed deposit, whereas the cash had not been received in the bank. When the appellant was asked to cross-examine the witness be said that he issued such pass books without receiving money and he had not to make any cross-examination. The witness said that while the appellant was Manager, Ghang Branch, he was in business with Muhammad Nafees son of Ghulam Ali and the appellant misappropriated bank money, misapplied bank's funds and falsified bank accounts to give undue benefits to Muhammad Nafees. The appellant was asked to cross-examine and he said that after doing business with him for one month, he withdrew and took away his share from him out of joint business. The witness further stated that he did not report the advances in weekly reports to the Head Office. The appellant did not cross-examine, the witness on the point. Mr. Fazal Karim, the witness, went on to say that the appellant did not hand over charge of the branch to him in a proper way. The appellant cross-examined the witness on the point asking that he did not deliver the charge to which the witness answered 'yes'. The other question was "were the books balanced ?". The answer was in the affirmative. The other question was "were the documents of advances given to you ?". The answer is 'yes'. Some of the same were not complete". The next question was "was S. F. F. Items counted ?". The answer was "yes". Lastly the witness said that the charge report was not prepared and balance confronts were incomplete. No opportunity was given to the appellant to cross-examine the witness on this item. The enquiry was adjourned to 8th December, 1976 for the statement of the appellant. On the said date the appellant did not appear and the Enquiry Officer instead of making the proceedings ex parte, adjourned the proceedings to the next day and requested the Zonal Office, Sheikhupura to instruct the appellant to appear in the enquiry proceedings. On 9th December, 1976 the appellant appeared and his statement was recorded in defence, which is as under :- "In regard to advance in the name of Muhammad Nafees Mr. Akhtar Ali says that the advance was allowed against bus No, LEJ-2950 duly registered in the joint name. Documents and confirmation were also obtained. An agreement for instalments of Rs, 500 was also executed. Mr. Akhtar Ali was asked by me to produce the above said documents in his defence which according to him are with the Zonal Chief, Sheikhupura.
' In regard to the advance of Muhammad Arshad this was sanctioned limit upto 31st December, 1975 and renewal was not sent because I was trying for adjustment.
' In regard to the advance of Inshallah Bakery they had promised to give fixed deposit of Rs, 60,000 and, therefore, I allowed them T.O.D. And this advance has been adjusted.
' Ch. Ghulam Ali. This was sanctioned limit and they deposited interest in the account two or three times but the advance has not been adjusted.
' Mr. Nafees. I allowed the advance according to Head Office circular and there was no restriction in giving advance for bullocks. He has been asked by me to produce the said circular which he is unable to show. Similarly the advances of Rasool Bibi, Boota, Muhammad Sharif, Fateh Muhammad have been given. All the advances were against Agriculture Pass Books.
1. Muhammad Nasrullab.
2. Muhammad Nawaz.
3. Faqir Ali.
' The above three advances were allowed by me under Head Office circular and these advances relate to fertilizer advances.
1. Mr. Muhammad Boota.2. Mr. Mehr Din.
4. Mr. Muhammad Saleem.4. Mr. Muhammad Saleem.
The above noted four advances accounts were opened by Muhammad Nafees in his hand and he has operated these accounts and the advances were adjusted by him.
1. Wali Muhammad.2. Muhammad Arif.
3. Muhammad Ali.
4. Mr. Mand.
5. Khushi Muhammad.6. Imam Din.
7. Naseer Ahmad.
8. Shabbir Ahmad.
9. Muhammad Aslam.10. Muhammad Ashraf.
' The above-noted ten accounts of advances are agricultural loans for fertilizer and all the applications for advances were brought to me by Muhammad Nafees, son of Ghulam Ali and he got the pay orders in these names from Mr. Akhtar Ali and these cash orders were paid in cash to Mohammad Nafees by me. All the above-noted ten advances are adjusted by cash deposit by Muhammad Nafees.
' Sardar Bibi. This advance was allowed for fertilizer and this agricultural account and has been adjusted. Syed Akhtar Ali Shah stated in regard to the charges levelled against him of doing private business that he got an amount of Rs, 1,000 from his relatives, and handed over this money to Mr. Muhammad Nafees, son of Ghulam All and after a month I took back from Mr. Nafees without any profit and returned,to my relatives. There are two accounts of Mr. Ghulam Ali. One saving and the other current. On one date Ch. Ghulam Ali withdrew Rs, 60,000 from current account by issuing cheques and these cheques were presented to the bank by Mr. Muhammad Nafees and he got the cash against these cheques after signing on the back of the cheques. Out of this amount Mr. Nafees on some days deposited Rs, 20,000 in his overdraft account. After about one week he brought some cash and told me that he wanted to deposit Rs, 60,000 in the account of Ghulam Ali.
I prepared the saving slip in the name of Ghulam Ali and signed it while Nafees was counting cash.
I turned back the pay-in-slip for entering detail of cash and the counterfoil was separated from the pay-in- slip. ' He lifted the counterfoil and kept in his pocket. Thereafter abruptly he told me that the cash brought by him was found short, therefore, he took away the entire cash with a promise to come back immediately after checking the short cash from his house and he never came back to deposit cash, hence the counterfoil of pay-in-slip duly signed by me remained with him. I demanded the counterfoil from him and he told me that I will return it next morning. I met him next morning and demanded the counterfoil and he told me that he had destroyed the same. I believed him and kept quiet. In the meantime I was transferred from Ghang to Sheikhupura and I requested Mr. Nafees to adjust his overdraft account. He called me at his residence and forced me to sign two vouchers and two pass books for Rs, 40,000 and Rs, 17,000 in the names of Ghulam Ali and Barkat Bibi respectively. I was afraid from their pressure and signed two vouchers of Rs, 40,000 and Rs, 17,000 in the names of Ghulam Ali and Barkat Bibi and also prepared pass books of Rs, 40,000 and Rs, 17,000 in back dates. Then they showed me the counterfoil of Rs, 60,000 in the name of Ghulam All which was still in their possession. Then they brought me to Sheikhupura next day and prepared an agreement that I have taken loan of Rs, 65,000 from Ghulam Ali and that according to this agreement I will be bound to pay Rs, 5,000 every month. This agreement is dated 4th March, 1976 and I had made no payment to them, nor they have demanded.
' I never made advances or helped Mr. Nafees intentionally and was not in business with them.
' I reported the advances in weekly returns after August, 1975 and not before that, I have asked him to produce documentary evidence which he has not shown today. Regarding handing over charge of the branch I have to say that except the preparation of charge report I handed over complete charge."
' The Enquriy Officer then cross-examined the appellant extensively playing the role of prosecutor.
The cross-examination goes as under asked Mr. Akhtar All Shah as to whether bus No, LEJ-2950 was got registered in the name simultaneously at the time of advance given to Mr. Nafees ?
' Mr. Akhtar Ali's reply that bus was got registered in 1976 whereas advance was initiated in 1975.
' Shall I conclude that the advance was initiated without any socurity ? Mr. Akhtar Ali's reply is that it was clean.
' I asked Mr. Akhtar All Shah as to the purpose of paying two Cheques No, 963698 and No, 963697 for Rs, 45,080 and Rs, 52,015 on 23rd February, 1976 and 21st February. 1976 when the account of Mr. Muhammad Nafees was already overdrawn.
' Mr. Akhtar Ali replied that the advance allowed by him in different names for the benefit of Mr. Muhammad Nafees was adjusted by payment of these two cheques.
' Four accounts in the names of Muhammad Boota, Mehr Din, Muhammad Akram and Muhammad Saleem were operated and opened by Muhammad Nafees according to your statement of defence. Shall I conclude that you wilfully allowed the opening of these bogus accounts ?
' Mr. Akhtar All Shah replied that Nafees had been allowed unduly and to conceal this I allowed the above-noted four bogus advances.
' I asked Mr. Akhtar Ali Shah that according to his statement the agricultural loan in the names of I.
Wali Muhammad.
2. Muhammad Arif.
3. Muhammad Ali.
4. Mr. Mand.
5. Khushi Mohammad.
6. Imam Din.
7. Naseer Ahmad.
8. Shabbir Ahmad.
9. Muhammad Aslam.
10. Muhammad Ashraf were allowed by him, can you tell me as to whether these persons come to the bank alongwith Mr. Nafees ?
' His reply is that the above ten persons did not accompany Mr. Nafees to the bank.
' Whether all the applications of advances were brought by Mr. Nafees? His reply is yes.
' Whether all the pay orders for loan were given to Mr. Nafees, his reply is yes.
' Then I asked him why he allowed these bogus advances. His reply is that Mr. Nafees wanted these funds to make adjustment of Rs, 2,000 in his loan with co-operative bank and he promised that his limit of Rs, 24,000 will be sanctioned with co-operative bank and he would pay him.
' According to your statement of defence Mr. Nafees came to your bank to deposit Rs, 60,000 and you prepared saving bank account pay-inslip can you tell me why you did not follow the proper procedure of issuing such slips and why you signed it without the stamp affixation on the counterfoil as cash'ried'.
' Reply of Akhtar Ali Shah is that he came after 1 p.m. And the cashier was not present in the bank and I had to prepare the slip myself.
' Then I asked him why the reply was given to him without taking cash from him. Mr. Akhtar Ali Shah says that I did not hand over but he took and kept in pocket.
' Then I asked Mr. Akhtar Ali Shah that.The receipt of Rs, 60,000 had been taken away by Mr. Nafees, why did you allow him to take away cash also. Mr. Akhtar Ali says that he abruptly ran away. He told me the other day that he had destroyed the receipt and I believed him because of my friendship and I did not even report this mistrap to m y officers.
' Shall I conclude that you failed to discharge your duty properly and acted negligently. His reply is that I had faith in him that the receipts destroyed.
' According to your statement you were called by Mr. Nafees at his home and according to you he forced you to sign two receipts of Rs, 40,000 and Rs, 17,000 had you already taken necessary vouchers and pass books alongwith you at the time of going to Mr. Nafees. His reply is no. I signed the voucher and pass book next day.
' It is concluded that you got sufficient time between his pressure and signing the pass book and voucher why did you not inform police or bank authorities of this incident. His reply is that I was puzzled and Mr. Nafees had promised that on these receipts and Pass Books entry he would not take any action against him and also we agreed the above promise by an agreement done at Sheikhupura.
' Why you have done so much of undue favour to Mr. Nafees. Shall I conclude that you were in business with him. Mr. Akhtar Ali replies that I was not in business and he promised to give some share in profit and return the bank loan in instalments."
4. This is apparent from the enquiry proceedings that they were not made properly. The questions of the appellant were recorded but those were not put to the witness, nor reply taken from him. The result being that no opportunity of cross-examination we afforded to the appellant. The statement of the appellant was not recorded to the effect whether he wanted to examine any person in defence. Upou such an enquiry the appellant could not be dismissed. There is no allegation against the appellant that he made any misappropriation. The allegation that the appellant received some money from the persons to whom advances were made against the rules would not amount to misappropriation of bank money. The appellant stated that he had taken loan from those persons.
Taking of loan cannot be characterized as illegal gratification. The main allegation is that the appellant acted against the bank rules. But since the enquiry was not properly made and the appellant was not afforded opportunity to cross-examine the solitary witness examined against him and to produce his defence, the case could not be said to have been proved against him and he was wrongly dismissed.
5. As a result of the observation made above, I accept the appeal and setting saide the impugned decision of the learned lower Court and the order of dismissal, direct the reinstatement of the appellant in service. As on account of a defective enquiry the appellant has been reinstated, he is not entitled to back benefits.