' This is a petition under section 25-A, I.R.O., 1969 in which it has been prayed that the petitioner Muhammad Iftikhar Hussain be reinstated with all back benefits. The facts as stated in the petition are that the petitioner was appointed as an Assistant Cashier with the respondent on 29-5-1979 and then redesigned as a Clerk on 16-2-1982. He was then promoted as an Assistant on 16-4-1982 and thereafter became a Junior Officer on 18-6-1984. It has further been stated that the petitioner was performing duties mainly of clerical nature and has no administrative powers. In para. 3 of the petition it is stated that the petitioner was placed under suspension for an indefinite period vide circular No.134 dated 23-9-1984. Exh.PI on record. Later on Exh.P2 he was charge-sheeted on 21-12- 1984. The allegation against him was that he along with the Branch Manager had withdrawn a sum of Rs,53,000 by forging signatures of an Account Holder. It was also alleged that on various dates the petitioner along with others had forged various other signatures and had withdrawn large amounts of money. The petitioner submitted his reply but the respondent ordered an inquiry as a result of which the petitioner was dismissed from service. It- has been prayed that the petition for reinstatement be accepted for the reason that there was no incriminating evidence against the petitioner and that he had been charge-sheeted without sufficient material.
2. The respondent put in a written statement. A preliminary objection was taken that the petitioner is not a workman therefore the petition cannot proceed. On merits it was submitted that the petitioner is involved in embezzling huge amounts of money and, therefore, he was rightly placed under suspension and, later on he was dismissed from service. It was also stated that a proper inquiry has been held.
3. The petitioner made evidence in support of his case. He examined himself as P.W.
1. He relied on documentary evidence. He stated the amount involved in fraud has been recovered and that no departmental inquiry was held against the petitioner. He further stated that no witness was examined in his presence when the inquiry was being conducted and therefore the question of any cross-examination did not arise. In cross-examination he has admitted that Malik Muhammad Riaz was the Inquiry Officer in this case. He stated that he could not join inquiry proceedings because the District Manager and the Chief Manager had in fact beaten him. This witness was subjected to lengthy cross-examination but he denies the suggestion put to him particularly regarding embezzlement. After the petitioner had closed his evidence, the respondent was given many opportunities to lead evidence but he did not do so. It was stated that the Inquiry Officer is outside Pakistan and he cannot be produced as a witness because he is undergoing medical treatment. Keeping this fact in view I have adjourned the case a number of times so as to enable the respondent to produce his evidence. Finally the evidence of the respondent was closed and both sides put in written arguments. I have carefully gone through record and have heard the arguments. Counsel for the petitioner submitted that the nature of duties of the petitioner has to be seen in order to determine whether he is a workman or not. He read out the evidence of P.W. 1 before me and stated that the main duties of the petitioner were to prepare Day Books, a General Ledger, Summary and monthly statements. The petitioner had no power to employ any person or to grant leave or to take any disciplinary action against any person. The basic pay of the petitioner was Rs,560. In cross-examination this point has not been touched upon by the counsel for the respondent nor has he led any evidence on this point Counsel for the petitioner submitted that in order to prove that the employee was not a workman onus lies on the management, but in this matter no oral or documentary evidence has been produced by the respondent. Learned counsel relied on 1978 PLC 233. This was the case of a person employed in the Habib Bank Ltd. It was held in this case that the respondent was a workman because at the relevant time he was posted as incharge Bills Department in the Bank and from the nature of duties the conclusion was that he could approach the Labour Court through a petition under section 25-A IRO because he fell within the definition of workman. This case helps the submission made by the learned counsel for the petitioner. Learned counsel has also relied on 1983 PLC 1107 and also on 1979 SCMR 24. I have carefully attended to and studied these judgments in the light of evidence on the record of which there is no contradiction. I am of the view that the petitioner is a workman because of the nature of his duties. The preliminary objection is therefore, decided in favour of the petitioner.
4. Counsel for the petitioner has further argued that neither the inquiry was conducted nor was copy of it supplied to the petitioner. To this point also there is no reply. Learned counsel has relied on some case-law to support his point but think the law on this matter is so well established that it does not need the support of any authority. The fact of the matter is that the Inquiry Officer was not produced in evidence nor was inquiry report supplied to the petitioner at any stage. That being the position the respondent has not rebutted the case of the petitioner in any way.
5. I have heard arguments of both sides and have carefully attended to the record. In my opinion dismissal order of the petitioner was not justified in the circumstances of the case. The respondent has not produced any evidence and therefore I think the petition deserves to be accepted.
Question arises whether back benefits are to be given to the petitioner. The petitioner has stated that he is' unemployed since being removed from service. There is no evidence to contrary on this point, therefore, I think the statement of the petitioner on this point C stands unrequited. The result is that I accept this petition with all consequential back benefits. The parties are left to bear their own costs.