DECISION ' This is an appeal against the order of the learned Presiding Officer, Sindh Labour Court No,VII at Sukkur, dated 17-9-1989, whereby he ordered reinstatement of the respondent with fifty per cent back benefits.
2. I have heard Mr.Muhammad Saddiq Khan, learned Advocate for the appellants and Mr.M.L.
Shahani, learned counsel for the respondent and have also gone through the record and proceedings of the case.
3. The facts of the case are that the respondent was admittedly employed as a Clerk with the appellants Bank. On 18-1-1981, he is alleged to have altered a cheque issued by a party for Rs,2,000 into Rs,12,000 and is alleged to have misappropriated Rs,1Q,000. He was served with charge-sheet dated 19-3-1981 and after domestic enquiry in which the respondent did not participate he was removed from service vide dismissal order, dated 23-11-1981. After serving grievance notice on the appellants, the respondent filed grievance petition before the learned Labour Court which was resisted by the appellants on the ground, that it was time-barred and the charges were duly proved in the domestic enquiry.
4. The dismissal order was passed by the appellants on 23-11-1981. However, the respondent claims that he received the same on 10-3-1982. There is no evidence to show that this order was served upon the respondent earlier to this date. He is alleged to have filed appeal on 10-7-1982 which the appellants deny to have received. He served grievance notice on 26-10-1982 upon the appellants and filed grievance petition on 29-11-1982 which was originally dismissed by the learned Labour Court, but in appeal the case was remanded back to the Labour Court where the respondent produced certain postal receipts and acknowledgement receipts.
5. The respondent has produced a copy of application dated 16-3-1982. This application bears the heading "appeal against dismissal order of Mr. Ghulam Mujtaba Palh, ex-clerk". In this application the respondent had asked the appellants to give him copies of the material documents, the statements of witnesses, report of Enquiry Officer and also to intimate him who was proper authority for filing appeal against dismissal order which was passed ex parte. The respondent has produced in the second round of litigation acknowledgement receipt Ex.A/2 which is dated 21-3- 1982. It is claimed that this application dated 16-3-1982 was sent under registered post under this acknowledgement receipt. Alongwith this acknowledgement receipt ExA/2 the respondent has also produced three postal receipts ExA/1. One receipt is in the name of Senior Vice-President and Area Controller, second receipt is in the name of Senior Vice-Preside not and Circle Executive and third receipt is in the name of Assistant Vice-President. The dates on these receipts are not legible. The application, dated 163-1982 is addressed to the Assistant Vice-President and copies were sent to the Senior Vice-President and Circle Executive and Senior Vice-President and Area Controller. Mr. M.L. Shahani contends, that these registration receipts do not pertain to the application dated 16-3- 1982 but are in respect of the appeal which is Ex.1/ H which is dated 10-7-1982, the receipt of which is denied by the appellants. This appeal is addressed to the Senior Vice-President through Assistant Vice-President, Zonal Head, Larkana and copy is submitted to Senior Vice-President, Personnel Division, U.B.L. This application does not show that copies were sent to Senior Vice- President and Circle Executive and Senior Vice-President and Area Controller Sindh. Under the circumstances the receipt ExA/1 would pertain to the application dated 16-3-1982 and not to appeal dated 10-7-1982.
6. Apart from the word of the respondent there is no other evidence that this appeal Ex.1/R was sent to the address of the appellants or that it was received by them. No registration receipt or postal receipt has been produced in support of this claim of the appellant. Even if it is accepted for the sake of argument, that the respondent did move the appeal dated 10-7-1982, still it was moved after ninety days of the receipt of the order of dismissal by the respondent whereas appeal under Rule 12 has to be moved within ninety days. Appeal which has been filed not in accordance with the Rules and which does not appear to have been entertained or decided by the appellants would not extend the period of limitation under section 25-A of I.R.O., 1969 nor would it give any fresh cause of action to the respondent.
7. It is submitted by Mr. M.L. Shahani that the delay was caused because the copies were not supplied by the appellant to the respondent and enquiry was admittedly held ex parte. In support he has relied upon the case of Associated Electrical Industries (Pakistan) Ltd. v. Employees Union PLD 1973 Karachi 167, wherein learned Single Judge of the Karachi High Court had held that the `workman was entitled (in addition to copies of documents mentioned in paras. 4, 5 and 6 of Standing Order 13 of Ordinance III of 1960) to copies of evidence of all witnesses examined in domestic enquiry'. However, this Ordinance of 1960 has now been replaced by the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. There is no such requirement mentioned in Standing Order 15 of the said Ordinance.
8. Mr. Muhammad Saddiq Khan has relied upon the case of Dawood Cotton Mills Ltd. v. Guftar Shah and others PLD 1981 SC 225 wherein their Lordships have observed, that neither second show cause after completion of enquiry nor supply of report of Enquiry Officer was requirement of the law or rules of natural justice. Their Lordships have made this observation while considering section 25-A of I.R.O., 1969 read with Standing Order 15(4) of the West Pakistan fndustrial and Commercial Employment (Standing Orders) Ordinance, 1968.
9. The position that emerges is, that either no appeal was filed by the respondent or even if the appeal was filed it was filed after the expiry of the period of appeal as provided under the Rules.
Therefore, the grievance notice given by the respondent to the appellants on 26-10-1982 would be much beyond the period of three months as provided under section 25-A of I.R.O., 1969, from B the date of cause of action arose to the respondent. In spite of this prolonged litigation the respondent at no stage had moved an application for condonation of delay under section 65-B of I.R.O., 1969 read with section 5 of the Limitation Act. The grievance petition was, therefore, liable to be dismissed on the ground that it was filed beyond the period of limitation prescribed under section 25-A of I I.R.O.
10. On merits it is not disputed, that the cheque was for Rs,2,000 but it was converted into Rs,12,000.
The respondent in his cross-examination has admitted, that all the entries in respect of the cheque were made in the ledger by him. He was also shown the original cheque which is admitted by him in the cross-examination. He has also admitted that figures Rs,12,000 were written on the cheque.
He further admitted that he had brought to the knowledge of the Manager that there was mistake of the amount shown in the figures and letters in the cheque. Being aware of this discrepancy he still entered amount of this 12,000 in the ledgers which would be indicative of his guilt. He should not have encashed the cheque.
11. It is submitted that the charge-sheet was served beyond the period of limitation prescribed under Standing Order 15(4). It may be pointed out that Staff Rules of 1980 framed by the appellants on the Recommendation of Wage Commission Award are not Statutory Rules as held by this Tribunal as well as by High Court of Sindh in the case reported in 1990 PLC 197, and therefore, Standing Orders Ordinance would be applicable to the case of the respondent. Under Standing Order 15(4) the misconduct has to be brought to the notice of the workman within one month of the commission of alleged act of misconduct or within one month from the date it came to the notice of the employer. The misconduct was committed on 18-1-1981 whereas the charge-sheet is dated 19-3-1981. Mr Nizamuddin, who was examined by the appellants before the learned Labour Court, has also signed the written statement. He has produced certain documents alongwith Written Statement, which have been duly exhibited by the learned Labour Court. Ex.2-C is letter of the Manager addressed to the Assistant Vice-President, U.B.L., Zonal Office, Larkana informing him about this misconduct, wherein it is mentioned that on 21-2-1981 the party concerned had informed him about this misconduct. This application of the party concerned, Abdul Sattar is Ex.2-A on the basis of which the Manager made the report Ex.2-C. Thus, misconduct came to the knowledge of the employer either on 21-2-1981 when the party concerned complained to the Manager or on 24- 2-1981, when the Manager intimated the A.V.P. In either case charge dated 19-3-1981 would be within one month of the date, when misconduct came to the knowledge of the employer and would, therefore, not be time-barred.
12. The learned Presiding Officer does not appear to have properly considered or appreciated evidence on record and, therefore, this findings are not sustainable.
13. For the aforesaid reasons I allow this appeal, set aside the impugned order and restore the order of dismissal of the respondent passed by the appellants.