' The appeal captioned above emerges from the decision dated 28-7-1988 recorded by the learned Presiding Officer, Punjab Labour Court No. 4, Faisalabad, whereby the grievance petition of the appellant for his reinstatement in service has been dismissed.
2. The allegations made against the appellant are mentioned in the charge-sheet Exh. P.1. The charges are:- "(a) That you prepared round figure debit advices of substantial amount on account of transfer of Hajiabad's balance to Head Office unnecessarily apparently at the request of Mr. Ashraf, Manager of Hajiabad Branch, which enabled him to conceal the fraud.
(b) That on 13-7-1980 you prepared two advices (one debit for Rs,11,00,000 and one credit for Rs,10,06,503.79) on account of transfer of Hajiabad branch's balance to Head Office unnecessarily whereas there was need of only one debit advice of Rs,93,496.21. This enabled the culprits to respond credit advice the same day (13-7-1980) and held unfavorable (debit) advice for about 7 weeks responded. Thus, you co-operated with the culprits in transferring the effects of defrauded amount to Head Office.
(c) That on 7-2-1980 you received two statements of Main Account from Hajiabad Branch. One was bogus and the other was showing the correct position of Hajiabad Branch (a Main Account ledger).
Opening balances (credit Rs,6,58,063.05 and debit Rs,1,91,936.95) in both the statements were showing, a wide difference of Rs,8,50,000 and a clear indication that Mr. Ashraf had defrauded an amount of Rs,8,50,000. Instead of going deep into the difference or referring the matter to any of the officers of the branch, you just filed both statements.
(d) That an amount of Rs,900 advanced to you by Mr. Muhammad Ashraf was recovered from you by the police.
(e) Heavy cash turnover of Hajiabad Branch routed through Main Account Faisalabad escaped your notice. Mr. Muhammad Ashraf would have never succeeded in defrauding the bank to the tune of Rs,40 lacs had he not your full co-operation and connivance.
(f) You have thus committed grave misconduct by supporting the culprits and ignoring the interest of the bank."
3. So far as charge (a) is concerned, the same is vague as the particulars of the debit advices and the amounts covered by them are not mentioned. In reply to the charge-sheet the appellant, no doubt, admitted preparation of the said advices, but since the charge is not that the appellant had signed the said advices, the reply to the charge given by the appellant appears to be convincing.
He has said that it was a routine and there were verbal instructions that at the time of transfer the amounts be mentioned in round figures and never it was objected and the officer concerned used to sign the said advices. The fact that the charge is not that the appellant signed the said advices, his reply is correct that since the officers concerned used to sign such advices without raising any objection, therefore, the said advices were prepared in round figures. Moreover, it has not been proved how the giving of the advices in round figures facilitated the real culprits in committing the fraud.
4. Charge (b) discloses that there was no need of preparing the credit advices for Rs,10,06,503.79 and that only one debit advice for Rs,93,496.21 was to be prepared. Even if the appellant is proved to have issued both the advices, one of credit and the other of debit, it has not been made clear how it enabled the culprits to respond the credit advices on the same day and withheld unfavorable debit advice for seven weeks. If credit of Rs,10,06,530.79 is subtracted from the debit of Rs,11,00,000 the debit comes to Rs,93,496.21 and any person acquainted with accounts and working of the banks could very easily come to know that the debit was of Rs,93,496.21 and if any person who held unfavorable debit advice for seven weeks responded, could be detected and in the absence of concrete evidence it is difficult to hold that the appellant colluded with the culprits who held up the debit advice for seven weeks responded. Learned counsel for the respondents has not been able to point out any evidence to the effect that by not only mentioning the debit advice for Rs,93,496.21 and by preparing credit as well as debit advices, the appellant collaborated with the culprits in the fraud. With respect to this charge also this is not the allegation that the appellant had signed the advices. In reply the appellant says that the officer concerned had signed the advices and he did not know how the culprits would misuse the said advices. Unless there had been concrete evidence that the appellant had prepared the said advices on the asking of the culprits, it could not be said that in reality the appellant collaborated with them. Mr. Rashid Ahmad, who appeared in the inquiry, has not said that in his presence the Manager or any other culprit had asked the appellant to prepare the advices. In the absence of such an evidence it is difficult to say that the appellant did so in collaboration with any other person. Whatever Rashid Ahmad said in this respect is his own opinion. He does not say that in the main account there were no entries of debit and credit advices. The correct manner while transferring an account is to mention credit and debit both entries in order to give full information to the bank to which the account is being transferred, because in future the transferee bank has to carry on the account.
5. So far as charge (c) is concerned, it is alleged that two statements from the main account of Hajiabad branch were received by the appellant, out of which was bogus. The one which is not alleged to be bogus, was showing opening balance (credit of Rs,6,58,063.05 and debit of Rs,1,91,936.95). It is alleged that both the statements were showing a wide difference of Rs,8,50,000 which was a clear indication that Mr. Ashraf had defrauded the said amount. Rs,8,50,000 are the sum total of credit of Rs,6,58,063.05 and debit of Rs,1,91,936.95. A debit is always subtracted from the credit but in the charge both the figures have been added and thus Rs,8,50,000 are given the sum total of the two and not the difference. The allegation against the appellant in this respect is that instead of going deep into the difference or referring the matter to any of the officers of the branch he just filed both the statements. There is no allegation or evidence that the appellant had realised that there was some foul play. He could be expected to report the matter to the officers if he had realized that there was some fraud and not otherwise. So even if it is said that whatever is contained in charge (c) was established by evidence, the appellant cannot be said to have committed any misconduct by filing both the statements and not reporting the matter to higher authorities. It is very strange that the person who had sent two statements, out of which one was bogus and the other was correct, was not put to task and the appellant, who merely in routine received the statements, was issued charge-sheet. The stand taken by the appellant in answer to this charge is that he had informed the officer incharge about the difference, whereupon he had summoned the other statement with which the accounts were reconciled, therefore, both the statements were filed. Since in the very charge-sheet it is said that there were two statements one was correct and the other was wrong, it supports the reply given by the appellant to the charge that the correct statement had come when it was demanded by the officer incharge and since the accounts had tallied with the fresh statement, therefore, both the statements were filed. The respondents did not examine the officer concerned to say that the appellant had not reported to him the difference. The fact that since the wrong statement and the correct statement both were filed shows that in reality the correct statement was summoned afterwards, and since the difference was reconciled, both were filed. The charge has been framed to give an impression that both the statements were received together, but even if it is so. The office which had sent both the statements one correctly and one wrongly was at fault. The correct position appears to be that wrong statement was received and since it was not reconcilable, therefore, new statement was invited which was found correct. Since the mistake was corrected, both were filed. Only an officer could summon another statement finding the previous one was incorrect and the appellant being only an assistant had no jurisdiction to do so. This is another reason which supports the reply to the charge-sheet given by the appellant.
6. So far as charge (d) is concerned, learned counsel for the respondents has not pointed out any evidence by which it may have been proved that Rs,900 were recovered from the appellant by the police. Even if it be said that this amount was recovered, it does not mean that this amount was advanced to the appellant by Mr. Ashraf. Even if it be said that it was the advance money, it does not mean that the appellant had any collaboration with Muhammad Ashraf or was joining hands with him in the commission of the fraud. Whatever Rashid Ahmad has said to the effect that Muhammad Ashraf succeeded in committing the fraud due to the short-comings and collaboration of the appellant is only his opinion and not evidence. He did not say that he had heard any talk going on between the appellant and Muhammad Ashraf from which he concluded that both of them had joined hands. So far as Nisar Yar Khan witness is concerned, he gave evidence against Muhammad Ashraf and did not say even a single word against the appellant. He did not say that Muhammad Ashraf got prepared round figure advices from the appellant or that he ever heard Muhammad Ashraf askig the appellant to issue the same. Muhammad Saleem (P.W.2) who was examined during the inquiry after giving evidence against Muhammad Ashraf, deposed that the appellant had properly checked both the statements out of which one was bogus but failed to give due consideration, with the result that the fraud could not be detected. He gave opinion that he believed that the appellant committed gross-misconduct in discharge of his duties and was guilty of contributory negligence. This witness too has not said that both the advices, one of which was correct and the other was wrong, were received together. I would again say that both the statements about the same account out of which one was correct and the other wrong, could not be received simultaneously. As mentioned above, this is believable that first of all wrong advice was received and upon inquiry correct one was received and since the matter had been reconciled, it was not considered necessary to further probe into the matter. The appellant thus was not guilty of such a negligence which could amount to misconduct.
7. Charge (e) too does not amount to misconduct. If anything escaped the notice of the appellant, it does not mean that he committed any misconduct. To err is human and if something is intentionally done or omitted to be done, it may amount to misconduct. So, the very allegation made in the charge does not amount to misconduct.
8. Charge (1) is not based upon any separate allegation but appears to be the summing up of all the charges and a shape of separate charge has been given to it.
9. It has been argued by the learned counsel for the appellant that the charge-sheet was issued by incompetent authority. Learned counsel for the respondents has tried to meet this argument by arguing that Exs.R-10 and R-11 are power of attorneys in favour of the officer who issued the charge-sheet. The fact of the matter is that the power of attorney was cancelled and date of cancellation is not given. It is, therefore, doubtful if at the time the charge-sheet was issued whether the power given to the authority who had issued the charge-sheet existed or had been cancelled before that. The charge-sheet was issued by the Vice-President, Zonal Office, Faisalabad. According to item 14 of Appendix appearing at page 60, the heads of the zones are competent to charge-sheet the employees up to category-II. There is no evidence whether the Vice-President is the Zonal Head. So, it was not proved that the charge-sheet was issued by the competent authority. Same may be said about the appointment of the inquiry officer. Heads of the Zones are competent to appoint the inquiry officer for persons up to category-H, but the respondents did not prove in spite of the objection of the appellant that the officer who gave the charge-sheet and appointed inquiry officer was competent.
10. It has been argued that the dismissal order too was passed by an incompetent officer.
According to item 12 appearing at page 59 of the Schedule of Muslim Commercial Bank Rules, Heads of Circle Offices are competent to issue dismissal order upto the employees of category-II.
The dismissal order, copy of which is Ex.R-9, is by the Vice-President. Learned counsel for the respondents has argued that the Vice-President was authority vide Ex.R-8 by the Circle Executive.
Learned counsel has made reference to Ex.R-7 and has argued that it was issued by the Senior Vice-President and it is clear that he decided to dismiss the appellant. As mentioned above, the Head of the Circle Office is competent and not the Senior Vice-President. Learned counsel for the respondents has made reference to Ex.R-8 also, which is from the Circle Executive, but this telegram does not say that the Circle Executive decided to dismiss the appellant. Above the subject of the telex it is written, "We append below the text of a telex message received from Head Office, Karachi for your immediate compliance and confirmation". It is thus clear that the Circle Executive forwarded the telex message and the telex does not show as to who decided to dismiss the appellant. Thus, the order of dismissal also was passed by an officer having no jurisdiction. The learned lower Court did not go deeply into the matter and, therefore, fell in error in holding that the charge-sheet was issued, inquiry officer was appointed and the dismissal order was passed by competent authorities. On merits also the conclusion of the learned -lower Court is wrong since it did not peruse the evidence, which fact is apparent from this that in the impugned judgment the evidence is not discussed.
11. It was proposed to both the parties that since the learned lower Court has not properly decided the case after going through the evidence and the rules of the Bank, the case be remanded so that a right of appeal to the ultimate unsuccessful party may not be lost, but both of them insisted that since the evidence is on the record, the case be decided finally. It is apparent from the discussions made above that the learned lower Court has wrongly dismissed the grievance petition. Therefore, the appellant is entitled to be reinstated in service.
12. So far as back benefits are concerned, the appellant did not say in his statement that he remained jobless.
13. As a result, the appeal is accepted and setting aside the impugned decision of the learned lower Court and the order of dismissal of the appellant, the appellant is directed to be reinstated in service without back benefits.