The appeal captioned above is directed against the decision dated 14-3-1989 recorded by the learned Presiding Officer, Punjab Labour Court No, 7, Gujranwala, whereby the grievance petition of the respondent has been accepted and he has been directed to be reinstated in service with all hack benefits.
2. On 26-8-1980 when the respondent was working in Sarai Alamgir Branch, CD Department, the Vice-President, who is appellant No, 2, charge-sheeted him for issuing bogus cash receipt in respect of account No, PVC-1330 Kohar Branch. The allegation made in the charge-sheet, copy of which is Exh. P-1, is that the appellant had issued two receipts on 5-11-1978 for Rs,30,000 each and another receipt for Rs,25,000 dated 31-1-1979, but in the books credit was not shown in the name of the account-holder namely Muhammad Faiz Malik. After an inquiry was held, the appellant was dismissed from service. The respondent aggrieved of the dismissal order brought grievance petition which was opposed by the appellants. It was contended in the written statement that the respondent being Class-III Officer was not covered by the definition of workman and thus could not come to the Labour Court.
3. It has been argued by the learned counsel for the appellants that according to the evidence on the record, the respondent does not stand proved to be covered by the definition of workman. The respondent appeared as his own witness and deposed that he used to make entries in the registers, prepared statements, and transfer books, vouchers and make entries in the pay registers.
He also said that sometime he used to himself make entries in the cash books and in the account forms and in this manner he used to make entries daily in four or five registers. He further stated that he could not take any disciplinary proceedings against any employee and that leave applications were to be accepted by the Zonal Office. He also said that he could not call explanation of any employee, nor he had any power to inflict fine. Lastly he stated that he had the same duties in the CD Department. RW-1 Muhammad Iqbal Sindhu deposed that the respondent was performing the duties of Manager at the time he had made defalcation and was full incharge of the Branch, discharging all duties of distribution of work, granting leave, making recommendations for annual increments and to enter into agreements on behalf of the bank with the depositors for a fixed period. He produced photostat copy (Exh. R-18) of the power of attorney and deposed that it was issued in favour of the respondent. The evidence given by RW-1 fell to the ground when in cross-examination he deposed that he never inspected the branch where the respondent was employed and that while sitting in his own branch he used to deal with the staff.
He also stated that he never visited Kohar Branch and did not know what work the respondent was doing in the said Branch. He also deposed that there was no entry about the delivery of Exh. R-18 to the respondent. R.W. 2 rather supported the case of the respondent. No doubt he stated that the respondent was the incharge of Kohar Branch but added that the branch consisted of one gunman, a Naib-Qasid, a Cashier, the respondent and he (the witness). He further deposed that he and the respondent used to send leave applications to the Manager and the Development Manager was responsible for the working of the branch. But he deposed that the respondent could issue memo. for any defalcation done by an employee in the branch and he used to recommend annual increments. In cross-examination he admitted that he and the respondent both used to maintain ledgers and cash books. Since, as deposed by RW-2, the said witness and the respondent both used to do clerical work by maintaining ledgers and cash books, the respondent admittedly was doing the clerical work. Since there was no other clerk and the branch consisted of two officers, one gunman, one cashier and one Naib-Qasid obviously the clerical work and the work of correspondence was being done by the respondent and RW-2. No recommendation for annual increment alleged to have been made by the respondent and no memo alleged to have been issued by him was brought on the record. These documents could be in the possession of the appellants, therefore, could be very easily produced, if they existed. Even if they were not with the appellants, they should have been summoned from the custodian of the same. Since there is no evidence that Exh. R-18 was delivered to the respondent, the mere fact that it was executed in his favour is not sufficient. Since it does not bear his signatures, possibility cannot be excluded that in order to exclude him from the pale of workman, this document may have been prepared afterwards. No agreement alleged to have been made by the respondent with any person too was not brought on the record. Needless to say that where documentary evidence is available but is not produced, the presumption is that if it had been produced, it would have disproved the case of the person in whose custody they were. Since there is no proof of exercising any supervisory power by the respondent, the mere fact that leave applications were sent by the respondent to the higher authorities is not sufficient to exclude him from the definition of workman. The learned lower Court has thus rightly held that the respondent is a workman.
4. The learned lower Court has rightly held that the charge-sheet was issued and the dismissal order was passed by incompetent authorities. The respondent was a Grade-III Officer. According to serial No, 14 of Appendix-I appearing at page 64 of Habib Bank Limited Staff Service Rules, 1981, heads of Circle Offices are competent to issue charge-sheet and appoint inquiry officer in respect of the officers upto Grade-II. But in the present case the charge-sheet was issued by the Zonal Office, Gujrat. Likewise, the dismissal order was issued by an incompetent authority. It was issued by the Senior Executive Vice-President, whereas according to serial No, 12 of the Rules mentioned above, only the President was competent in respect of the officers upto Grade-I.
5. So far as the proof for proving the charge is concerned. Malik Faiz, who was the complainant, was very material witness but he was neither examined during the inquiry nor before the learned lower Court. It was not necessary to produce him before the learned lower Court but his evidence to prove the charge during the inquiry was indispensable. The learned lower Court, therefore, was justified in directing the reinstatement of the respondent in service.
6. So far as back benefits are concerned, the respondent did not urge in his statement that he remained jobless during the period of his dismissal. His statement was recorded on 23-2-1984 when there was no decision in the field that it was necessary for the worker to assert that he remained jobless during the period of dismissal. Thereafter, he made an application for additional evidence on this point but it remained undecided. The affidavit of the respondent is on the record which does not stand controverted by any counter-affidavit. But at the same time the respondent was not entitled to full back benefits as the case had remained pending for so many years. The petition was instituted in 1982 and was decided finally by the learned lower Court on 14-3-1989.
7. As a result of the observations made above, the appeal is partly accepted and modifying the impugned decision of the learned lower Court, back benefits are reduced to fifty per cent.