DECISION This is an appeal filed by Messrs Habib Bank Limited, Karachi, against an impugned order, dated 31- 10-1983, passed by the Sind Labour Court No.1, Karachi, who had allowed the grievance petition of the respondent Khair Muhammad Baloch, under section 25-A, I.R.O., 1969.
2. Brief facts of the case are that the respondent was a permanent employee of the appellant- Bank and was posted as a clerk in its various branches from time to time. In the month of August, 1980, the respondent was promoted as an Office Assistant and was posted at Rangiwara Branch of the appellant-Bank. In the Rangiwara Branch, the respondent was working as an Office Assistant under his two officers, namely, Khawar Nimroze and Abdul Hameed Khokhar and these officers were alleged to have misappropriated a sum of Rs. 3,01,000 in collusion with one customer of the appellant-Bank, namely, Imam Bakhsh who had operated his account No. 2780 in the said branch.
A criminal complaint was lodged by the appellant-Bank against these two officers including the respondent, but, the respondent was released on bail by the Special Judge (Central) Krachi. That in the meantime, the appellant-Bank had issued a show-cause notice to the respondent which was replied by him. However, an enquiry was held against the respondent and ultimately he was dismissed from service on 14-10-1981. The respondent submitted his grievance notice on 10-12-1981, but, as it was rejected by the appellant-Bank, therefore, he preferred a departmental appeal which was also rejected. Thereafter, the respondent submitted his grievance petition under section 25-A, I.R.O., 1969 before the learned Labour Court
3. The appellant-Bank resisted the petition before the learned Labour Court by submitting that, firstly, as the respondent was not a 'workman', therefore, he could not maintain his grievance petition; and secondly, that as the charge of misappropriation against the respondent was fully established in an independent enquiry, therefore, he was rightly dismissed from service.
4. The respondent filed his affidavit-in-evidence and had examined his two witnesses, namely, Lal Muhammad and Abdul Majeed and all these were cross-examined by the appellant-Bank. On behalf of the appellant-Bank, the affidavits-in-evidence of two witnesses, namely, Abdul Hassan Khan and Shahid Hussain were filed and they were duly cross-examined by the respondent.
Thereafter, the learned Labour Court had passed the impugned order, hence, this appeal.
5. I have heard Mr. Ibrahim Peshori, the learned Advocate for the appellant-Bank and Mr. Abdul Rehman's Memon, the learned counsel on behalf of the respondent and have carefully perused the record and proceedings of the case. Mr. Ibrahim Peshori, the learned Advocate for the appellant- Bank has raised only two contentions in his arguments, firstly, that the grievance petition of the respondent was time-barred; and secondly, that all the three charges were proved against the respondent in the domestic enquiry, but, the learned Labour Court, except the charge of fraud, did not give its findings upon the other two charges. I see no force in both these contentions of the learned Advocate for the appellant-Bank.
6. As regards the point of limitation of the grievance petition, it is contended on behalf of Mr. Abdul Rehman's Memon, the learned counsel for the respondent that during the entire proceedings before the learned Labour Court, this objection was never raised by the appellant-Bank and the evidence of the respondent, on this issue, was unrebutted, therefore, according to law, at this appellant's stage, the respondent cannot be taken to a surprise. Mr. Memon, the learned counsel for the respondent has pointed out that, however, there is an admission by the appellant-Bank in its memo. Of the present appeal that the respondent had submitted a departmental appeal against the order of his dismissal, as required by law for the bank employees, therefore it is incorrect to say that the grievance petition is barred by time. It was the duty of the appellant-Bank to give decision within stipulated time. There is no evidence on record on this issue. I, therefore, reject this contention of the appellant-Bank and hold the grievance petition of the respondent workman well within time.
7. On merits, it was the case of the appellant-Bank before the earned Labour Court that the respondent was issued a show-cause notice, dated 28-12-1980. The relevant extract from the show-cause notice against the respondent is as under: - "Since you were working as Assistant and was responsible for Clearing and T.D. Of the Branch, you intentionally and wilfully lodged the above cheques in T.D. And did not send the s, alongwith the other cheques of T.D. And destroyed the same.
By the above conspiracy you misappropriated a sum of 1 3,01,000 which constitutes serious misconduct. You are, hereby called upon to show cause within three days of receipt of t letter as to why disciplinary action should not be taken again you for the following acts of misconduct.
(1)Misappropriation fraud and dishonesty in connection with ban: business.
(2)Wilful negligence in the performance of duties.
(3)Wilful damage and loss to bank's business.
(4)Breach of Law and Rules and regulations of the bank."
I would effect take up the main allegation against the respondent that he, alongwith Mr. Khawar Neemroze, Officer of Rangiwara Bran and Mr. Abdul Hamid Khokhar, Officer of Bhimpura Branch, w responsible for alleged fraud. In support of this allegation, t appellant-Bank has placed its reliance only on the oral words of M Abul Hassan Khan, who had been the Manager of Rangiwara Bran where the said fraud alleged to have taken place. This witness w produced by the appellant-Bank, not only before the Enquiry Office but also before the learned Labour Court . The most important and relevant cross-examination of this witness before the learned Labour Court is as under: - "I was transferred and joined Rangiwara Branch about 1 ye before this incident. Applicant Khair Muhammad Baluch was post at Rangiwara Branch afterwards. He had joined Ragiwara Bran after about 6 months of my posting to that branch. He was posted at Rangiwara Branch as Assistant. His duties were the preparation and sending transfer delivery cheque and clearing cheques to various branches of the bank through clearing house of our bank. Register is maintained in the branch for entering all the dealings done by the applicant in regard to is above mentioned duties. Mr. Mumtaz Nabi Khawaja was second offices Mr. Khawar Neemroze was officer incharge of C.D/M.T Department. There were 9/10 other staff members whose name I do not remember. Mr. Salim and others. I did not personal] know any person who used to visit the applicant during office hours. I did not know any person by name Imam Bux who use to visit the applicant during office hours. xx xx xx xx xx xx xx xx xx xx xx xx It is correct that signatures of Mr. Khawar Neemroze appear o T.D./Clearing register which prima facie show that the 2 cheques were delivered by the applicant to Mr. Khawar Neemroze. Himself says that thereafter it was the duty of the applicant and Mr Khawar Neemroze to deliver the cheques through messenger to the clearing house but these cheques were not received at the clearing house. Usually the manager does not check all the registers daily. At that time, Mr. Khawar Neemroze was the officer incharge and was his duty to check all the register daily. The cheques which are dishonoured are received back from the clearing house on the next day. No report in respect of those 2 cheques was received from the clearing house that they had been dishonoured.
That they were cleared. On 3-12-1980 Mr. Neemroze was not present at his table and there was rush of clients, hence I went to his table and started working myself to clear of the rush. There I found that cheque of Rs. 2,74,000 was lying hidden in the papers and there had been no reversal and case. I got the proper entry made therein and Mr. Neemroze written and the entry no about was he apologize and I asked him not to repeat the same thing, but I got suspicious and through secret enquiry that the same thing had happened with the previous 2 cheques. Thus the present fraud came to the light. The entries in the record were type-written hence I cannot say if they were made by the applicant or by Mr. Khawar Neemroze or some other persons. At that time Mr. Iqbal was the Ledger Keeper who used to make entries in the register."
Further cross-examination of this witness is also as under: - "It is correct that the posting entries in the ledgers regarding these two cheques were made by Mr. Iqbal. It is correct that the amount mentioned in the two cheques was not received by the applicant and my earlier statement might have been mistyped. There is no documentary evidence against the applicant excepting that he had confessed before me that he had misappropriated the amount. He had made such confession in presence of other officers namely Mr. Mumtaz Ali Khawaja, Mr. Salim, Cashier and other members of the branch. Out of them Mr. Mumtaz Ali Khawaja was produced as a witness in the domestic enquiry. Till the time of domestic enquiry, witness Shahid Hussain did not know that the applicant had made confession before me. Mr. Mumtaz Ali Khawaja is an officer in the Rangiwara branch. The applicant had made confession before me and the other persons only once. Himself says that even otherwise the applicant used to visit the branch frequently and used to assure us that he would make full cooperation in realising the amount. It is incorrect that the responsibility of the applicant to send the two cheques to clearing house came to an end and at the time when he delivered the two cheques to Khawar Neemroze, but such responsibility rested on Khawar Neemroze and the applicant. In case the two cheques were not returned to the applicant by Khawar Neemroze for sending to the clearing house, then it was the duty of the applicant to make report to the higher authority. It is correct that the applicant was direct subordinate of Khawar Neemroze. The applicant never produced any cheque for taking cash out of these two accounts. It is incorrect that we have levelled false charge against the applicant of the connivance, with Khawar Neemroze and Abdul Hafeez Khokhar for misappropriation of the amount. It is incorrect that the applicant never made any confession before me or the other persons. It is incorrect that the applicant is involved in this case as he was subordinate of Khawar Neemroze.--- From the above evidence of the appellant bank's witness, it is crystal clear that there is no direct evidence against the respondent that, I either he was at all responsible for the alleged misappropriation of the q amount, in question, or he was, in any manner, involved in such a fraud excepting the fact that being simply a Junior Clerk, he was a subordinate of one Khawar Neemroze, who was his immediate Officer Incharge and was fully responsible for all the affairs of his branch/department, as there are a number of admissions /confessions by this witness, himself, in this behalf. The appellant-Bank has miserably failed to produce any cogent and documentary evidence to prove that the respondent had committed any fraud or had misappropriated the amount in question, in collusion with other persons. The appellant-Bank did not care to examine before the learned Labour Court any one of the persons, in whose presence, the respondent had allegedly confesses his guilt of fraud or misappropriation of amount before its main witness, namely, Mr. Abul Hassan Khan, or the Enquiry Officer to corroborate the statement of this witness that such a person was produced in the enquiry proceedings. Only one witness, namely, Shahid Hussain was produced before the learned Labour Court by the appellant-Bank in support of its allegations against the respondent. Again, in the absence of any cogent or documentary proof, though claim, is nothing but, merely 'Hearsay' and on the other hand, mainly containing some very important confessions and admissions. The relevant cross- examination of this witness before the learned Labour Court is also reproduced below: - ---I did not know the applicant previously. I came to know him from the time when his case came up in the Head Office. The Head Office had conducted domestic enquiry against him. I never appeared as witness against the applicant in the domestic enquiry. Neither I was appointed as E.O.
Against o the applicant. I did not participate in the E. P. ; I have no personal knowledge about the E.P; but my knowledge is based on the records. At the time the E.P. Was being conducted against the applicant, I was attorney of the respondent. It was not necessary for me to observe the E.P.
Unless directed by the respondent. Whatever is stated in my affidavit is based on record, and I have no personal knowledge. It is on record that criminal case was filed against the applicant on the basis of the information supplied by the respondent to the F.I.A. I do not know the number of the accused in that case. I do not know if the said case was challaned in the Court or not. Mr. Qamrauddin Abbasi was the E.O. Against the applicant. There was no other E.O. Mr. Abdul Hassan Khan, Mr. Mumtaz Nabi Khawaja had appeared as witnesses of the respondent against the applicant in the E.P. It is correct that I have filed the additional affidavit in evidence after the cross- examination of Mr. Abdul Hassan Khan. It is incorrect that I have filed false affidavit at the instance of the respondent, himself says that I have filed affidavit on the basis of the record. It is incorrect that the document filed alongwith my additional affidavit have been fabricated and are false.--- Except these oral words, there is nothing else on record against the respondent to prove that he was guilty of any one of the charges, as had been mentioned in the show-cause notice, dated 28- 12-1980. This type of evidence is not maintainable in Law. On the other hand, from the evidence of the respondent and his cross-examination by the appellant-Bank, before the learned Labour Court it is clearly proved` that his defence on all the charges against him, is unchallenged anal unrebutted that the domestic enquiry against him was neither proper nor lawful and that he was innocent and not guilty of any misconduct and that his dismissal from service was quite incorrect and illegal. Mr. Ibrahim Peshori, the learned Advocate for the appellant-Bank has contended that the finding of the Enquiry Officer cannot be re-assessed by the Labour Court and in this respect, he had relied upon the authorities, cited in 1975 SCMR 46; 1978 PLC 449; 1982 PLC 293; 1978 PLC 77 and 1978 PLC 90. I would disagree with this contention of Mr. Ibrahim Peshori, the learned Advocate for the appellant-Bank as all these authorities are distinguishable. While, on the other hand, Mr. Abdul Rehman's Memon, the learned counsel on behalf of the respondent has referred to me an authority of this Tribunal reported in 1980 PLC 1089, wherein it was held that the Labour Court can go behind the findings in domestic enquiry and can also record further evidence in order to determine that the report of the enquiry officer was based on facts and on tangible evidence. Here, in the present case, there is no cogent or documentary evidence to prove the charges against the respondent, either before the enquiry office or before the learned Labour Court, therefore, in view of this factual and admitted position, the dismissal order of the respondent, basing on such an enquiry report, cannot be maintained and the learned Labour Court has rightly rejected all the charges against the respondent and had allowed his grievance petition.
8. For the reasons stated by me above, I would maintain the impugned order, dated 31-10-1983 and would dismiss maintain appeal. The respondent is directed to be reinstated in service with full back benefits forthwith. The amount of back benefits deposited in this Tribunal be paid to the respondent.