' INAYAT ELAHL KHAN, J. The facts giving rise to this constitutional petition, filed by the National Bank of Pakistan through its Executive Vice-President, Peshawar, are that Shafiq Ahmad (respondent No, 1) was employed as a Cashier and posted at the Parachinar Branch of National Bank of Pakistan.
During the period of his employment respondent No, 1 is stated to have fraudulently withdrawn from the Bank some amount in connivance with one Abbas Khan, a Sub-Accountant in the Government Treasury at Parachinar.
' After the fraud was detected by petitioner bank, respondent No, 1 was charge-sheeted on 3-9- 1979 to which he submitted his explanation on the same day. An enquiry was, therefore, taken in hand against him wherein he was found guilty of the said misappropriation and, therefore, dismissed from service on 15-7-1980. The order of dismissal from service was challenged by respondent No, 1 before the Labour Court at Peshawar. His petition under section 25-A of the Industrial Relations Ordinance, 1979, was accepted and fresh departmental proceedings were directed to be taken against him vide order dated 25-3-1981. Accordingly fresh enquiry was conducted against him and he was once again found guilty of the charge and, therefore, dismissed from service on 25-6-1981. The order of dismissal from service was again challenged by respondent No, 1 before the Labour Court, Peshawar, and vide order dated 25-10-1981 the Labour Court while accepting his petition directed his reinstatement in service with full back benefits. The petitioner's bank feeling aggrieved went in appeal before the Labour Appellate Tribunal, N.-W. F. P.
Mardan, but the appeal was dismissed on 21-7-1983. Hence the petitioner has invoked the constitutional jurisdiction of this Court.
2. Initially 6 charges were framed against respondent No, 1 but in charge No, 4 as the learned counsel for the petitioner confined his argu el this petition we are concerned only with 2 charges i,e, charge No, 2 and mints to these charges only. Charge No, 2 reads that "on 13-8-1978 hed was temporarily deputed for scrolling of Government bills. On the same day Abbas Khan (Sub- Accountant Treasury Office, Parachinar) entered the bank with a forged bill bearing the name. Of Hussain Ali pensioner amounting to Rs, 990.50. It was his duty to scroll the same whereas he insisted on Mr. Zahir Shah, Clerk of the Branch, to scroll the same with his own handwriting, who was busy to assist the audit team. He was fully informed about the background and nature of the transaction and he tried to escape himself from the scrolling of the forged bill". The other charge i,e, charge No, 4 is in the following terms. "It was also learnt that aforesaid charges were also held proved against respondent No, 1 by the Enquiry Officer.
3. Muhammad Yacoob Sethi, the Enquiry Officer, in his report dated 15-6-1981 regarding charge No, 2 mentioned above came to the conclusion that "it was established beyond doubt that on 13-8- 1978 respondent No, 1 refused to enter the bill for Rs, 990.50 and wanted to get it entered through Zahir Shah Clerk. Thereafter he entered the same in government scroll and got its payment from the paying Cashier which amount was later on returned to the Cashier by Mr. Zahir Shah".
According to the Enquiry Officer this was clear evidence of his collaboration with Zahir Shah Clerk and Abbas Khan, Sub-Accountant Treasury Office, Paracninar, therefore, he was found guilty of the charge. Regarding the other charge mentioned above the Enquiry Officer concluded that "respondent No, 1 accepted a portion of the charge i,e, he was maintaining his S. B. Account with Agricultural Development Bank Limited, therefore, he was found guilty of the charge upto that portion. However, the other portion of the charge that he was living beyond his financial resources was not proved against him". Therefore, respondent No, 1 was found guilty of the charge to the extent mentioned above.
4. Before the Labour Court, Peshawar, respondent No, .1 appeared as his own witness and categorically denied the allegations levelled against him. On behalf of the petitioner's bank one Baz Gul, Officer in charge Disciplinary Cases, Principal Office, N. B. P. Was examined who only produced the photo copies of the enquiry proceedings and the enquiry report. The learned Labour Court after going through the evidence produced before it and the enquiry proceedings conducted by the Enquiry Officer came to the conclusion that both the charges mentioned above were not proved against respondent No,
1. Regarding charge No, 2 it was held that "There is nothing on record to show that petitioner was asked before hand that forged bill was to be presented by Abbas Khan.
Again it is mentioned that on 13-8-1978 he was temporarily deputed for scrolling of pension bills. On the one hand it is said that he assisted Abbas Khan in the fraudulent encashment of 60 bills during the period from December, 1977 to August, 1978. On the other hand it is stated that he tried to save himself. It does not appeal to me. If he was in league with Abbas Khan he should have informed later and Abbas Khan would not have presented the bill. Again Abbas Kban would not have insisted on the encashment of the bills. Petitioner was temporarily working on that very day. He doubted some foul on the part of Abbas Khan and asked Zahir Shah to scroll the bill, for, he was working temporarily and wanted to avoid complication. When he was asked by the Manager he scrolled the bill. About payment of this bill the evidence before the Enquiry Officer is contradictory".
Regarding the other charge i,e, charge No, 4 the Labour Court concluded that "The Enquiry Officer opined that 1st part of the charge concerning the maintenance of account in the A.D.B.P. Is proved only. The learned counsel for the respondent during the course of arguments contended that he could not maintain account in any other bank except the National Bank. No such circular was placed on record and during the arguments no such rule was cited". Taking this view of the matter the petition of respondent No, 1 under section 25-A of the Industrial Relations Ordinance, 1969 was accepted on 25-10-1981 and his reinstatement in service was ordered with full back benefits.
5. The petitioner-bank feeling aggrieved went in appeal before the Labour Appellate Tribunal, N.-W.
F. P. Mardan, but the appeal was dismissed on 21-7-1983. It was held that "there is nothing in the evidence on record to connect Shafiq Ahmad, with the forgeries or the encashment of the forged bills. Learned counsel for the appellants could not cite a single witness or statement implicating Shafiq Ahmad. The only evidence against him was that he had scrolled a forged bill. This proves nothing against him as he had to scroll bills which were received in the Bank passed by the District Accounts Officer".
6. The learned counsel for the petitioner has raised two-fold contention in support of the writ petition. Firstly, that the Labour Court could not go behind the enquiry proceedings inasmuch as it had no authority to sit in appeal over the findings recorded by the domestic tribunal against respondent No,
1. Secondly, that the W. P. Industrial and Commercial (Standing Orders) Ordinance, 1968, was not applicable to the employees of the National Bank of Pakistan as the bank is carried on under the authority of the Federal Government and it has got its own statutory rules of service etc., governing its own employees. Reliance is placed on Rules 37 and 38 of the Rules governing the service of employees of the National Bank of Pakistan made by the Central Board under bye-law 18
(1) (iii) of the National Bank of Pakistan bye-laws with the prior approval of the Central Government, to contend that under rule 37 no employee could open or maintain an account with any other bank or banker of any description without the previous permission of the Managing Director of the National Bank of Pakistan and an employee found guilty of infringing any such provision rendered himself liable to disciplinary action including dismissal from service. Regarding the 1st contention it may be mentioned that section 25-A (5) of the Industrial Relations Ordinance, 1969 provides that in adjudicating and determining a grievance under subsection (4); the Labour Court shall go into all the facts of the case and pass such orders as may be just and proper in the circumstances of the case. It is clear that the Labour Courts had the necessary jurisdiction to satisfy itself as to whether the impugned order of dismissal from service was justified in law as there was nothing in law to prevent him from examining the legality and propriety of the enquiry proceedings and to find out whether there was sufficient evidence to warrant the order of dismissal passed by the departmental authority. To support his contention the learned counsel for the petitioner relied on United Distributors Ltd. v. Zahid Hussain (1) wherein it was held that a Labour Court could not sit as a Court of appeal on the decision of domestic enquiry particularly when no plausible reason has been shown in the impugned orders justifying interference with the order passed by the Enquiry Officer. Reference is also made to the case of Grindlays Bank Ltd. v. Abdul Razaq Khan (2) wherein leave to appeal was granted by the Honourable Supreme Court to examine the question whether the Labour Court had no authority to sit in appeal over the findings recorded by a domestic tribunal. On the other hand the learned counsel for respondent No, 1 relied on Crescent Jute Products Ltd. v. Mohammad Yaqoob (3) wherein after an exhaustive discussion of the provisions of section 25-A (5) of the Industrial Relations Ordinance (XXIII of 1969) it was held that .- "In subsection (5) of section 25-A of the Industrial Relations Ordinance XXIII of 1969, it is laid down that "in adjudicating and
(1) PLD 1976 Kar. 376 (2) 1981 SCMR 441
(3) PLD 1978 SC 207 determining a grievance under subsection (4), the tLabour Court) shall go into all the facts of the case and pass such orders as may be just and proper in the circumstances of the case". From the language of the statute hereinbefore reproduced it is clear that the Labour Court has the jurisdiction to go behind a dismissal order and to see for itself as to whether on the facts and in the circumstances of the concerned case it was justified or not, both on merits as well as law. The words "shall go into all the facts of the case" are a clear guide with regard to the wide scope of the enquiry which a Junior Labour Court undertakes under section 25-A". These words indeed have been used with a purpose and have to be given full effect so as to achieve the result desired. These words show that when a case is brought before a Junior Labour Court, the scope of enquiry is wider than for example the scope of a Tribunal examining only the legality of an order impugned before it The reason is also not far to seek, because as pointed out earlier it was intended to provide a forum to check against arbitrary, capricious and camouflaged dismissals."
Keeping in view the rule laid down in the cited case it is evident that the Labour Court was competent to examine the fairness and propriety of the ,B domestic enquiry conducted by the Enquiry Officer against respondent No,
1. Therefore, there is no force in the contention raised by the learned counsel for the petitioner. In regard to the next contention it has been rightly urged by the learned counsel that in the presence of the National Bank of Pakistan (Staff) Service Rules the provisions of the W.P. Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 were not applicable to the employees of the bank as they were governed by the rules mentioned above. However, there is no force in the contention that since respondent No, 1, in violation of rule 37 of the Staff Service Rules, maintained an account in another bank without the previous permission of the Managing Director, he rendered himself liable to disciplinary action C under rule 38 and, therefore, the order of dismissal from service was rightly passed against him. It may be mentioned that respondent No, 1 was not charge-sheeted simply because he had opened or maintained an account in another bank. Rather the substance of the charge against him was that he maintained his personal saving bank account in the Agricultural Development Bank of Pakistan to hide his illegal earnings from the fraudulent withdrawal of the pension bills and it was also learnt that h always lived beyond his financial resources. From the enquiry report is evident that the charge as a whole was not proved against respondent No, 1 inasmuch as there was no evidence to prove that the account in the other bank was maintained by respondent No, 1 to hide his illegal earnings from the fraudulent withdrawal of the pension bills or that he lived beyond his financial resources. In the circumstances it would not be justified to split the charge and hold that since a part of the charge has been proved, respondent No, 1 was liable to dismissal from service as admittedly there was no evidence to prove that the said account was opened by respondent No, 1 to hide his illegal earnings from the fraudulent withdrawal of the D pension bills or that he lived beyond his financial resources. If the petitioner bank intended to proceed against respondent No, 1 simply for the reason that he had opened personal account in some other bank in violation of rule 37 ibid there was no reason to allege that the personal account was opened in the other bank by respondent No, 1 to hide his illegal earnings from the pension bills, etc. ' In the circumstances the charge as framed against respondent No, 1 does not stand proved and the order of his dismissal was not justified on this score.
6. In this view of the matter no fault can be found with the orders impugned in the writ petition and the orders cannot be said to have been passed without lawful authority.
' The writ petition having no merit is, therefore, dismissed. However, in the circumstances of the case the parties are left to bear their own costs.