DECISION ' This is an appeal against the order of the learned Presiding Officer, Sindh Labour Court No, 1 at Karachi, dated 16-12-1989, whereby the grievance petition of the appellant was dismissed.
2. I have heard Mr. M.L. Shahani, learned Advocate for the appellant and Mr. Izhar Alam Farooqui, learned counsel for the respondents and have also gone through the record and proceedings of the case.
3. Admittedly the appellant was working as Grade III Officer in the respondent-Bank when he was charge-sheeted on 12-2-1982 for certain acts of misconduct allegedly committed by him.
Domestic enquiry was held through Mr. Shaikh Ghulam Hussain, who found him guilty of the charges and consequently he was dismissed by order, dated 5-7-1985. Mr. Shahani has raised preliminary objection that the appellant was proceeded against under the Bank Staff Service Rules as is evident from the 'Letter of Charge', dated 12-2-1982, which rules are based on the recommendation of the Wage Commission Award'. He contends that Wage Commission Award or the Bank Rules framed thereunder are not 'Statutory Rules' and would not exclude the application of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (hereinafter referred to as the `Ordinance). In his support he relied upon the decision of the learned Division Bench of Sindh High Court in the case of National Bank of Pakistan v. Sindh Labour Appellate Tribunal and others 1990 PLC 197, wherein their Lordships have held that the aforesaid rules were not statutory rules and that disciplinary action initiated against the employee by the Bank under those rules was illegal. It is further submitted by Mr. M.L. Shahani, learned counsel for the appellant, that action was initiated against the appellant mainly on the complaints filed by Amanullah, Rajab All and Haji Muhammad Hanif. However, none of these complainants was examined by the management before the Enquiry Officer. However, two of them namely Amanullah and Rajab Ali were examined before the learned Labour Court as 'Court witnesses' on the application of the respondents which was allowed by the learned Labour Court: It appears that both the management as well as the learned Labour Court were of the opinion that examination of these witnesses was necessary to prove the alleged guilt of the appellant.
4.. The question that requires consideration is whether the witnesses whose evidence was necessary for proving the guilt of the appellant had to be examined before the Enquiry Officer and if this deficiency is committed by the Enquiry Officer it would be filled by the learned Labour Court in exercise of the powers vested in Labour Court under subsection (5) of section 25-A of I.R.O., 1969.
The question before the learned Labour Court was whether the decision of the Enquiry Officer regarding guilt of the appellant and the order of dismissal passed on such enquiry report was substantiated by the evidence on record with the Enquiry Officer when he submitted his report.
Subsection (5) empowers the learned Labour Court to go into all the facts of the case but does not empower him to fill in deficiencies or the weaknesses of the prosecution by examining the additional witnesses, who ought to have been examined _by the Enquiry Officer. If the examination of these Officers was necessary before the Enquiry Officer then the-weakness in the prosecution case for non-examination of such witnesses cannot be filled by the learned Labour Court by examining them in the Court. By non-examining them before the Enquiry Officer the appellant was deprived of his right under Standing Order 15(4) to explain the circumstances against him before the Enquiry Officer by cross-examining these witnesses before the Enquiry Officer. Before he learned Labour Court at least one witness Amanullah had admitted in the cross-examination that his complaint Exh. RW-1/7 was not in his handwriting, ut it was written by some Officer of the Bank in presence of Mr. Zaheer Hussain, who was dictating the complaint to that person. Mr. Zaheer Hussain is an Officer and witness of the respondent.
5. On analysing the charges it will be revealed that appellant is alleged to have deposited the money deposited with him by Rajab Ali, Amanullah and n Haji Muhammad Hanif Khan after lapse of some time and not immediately. He is also alleged to have given overdraft of Rs,1,018 to one Said Akbar and one Prize Bond of Rs,5 was found short which he made good.
4. It is further submitted by Mr. M.L. Shahan that because the Bank - Staff Rules were not statutory rules, therefore Standing Orders Ordinance would be applicable and that under Standing Order 15(4) the charge had to be communicated to the accused person within one month. He submitted that the acts of commission and 'omission, allegedly committed by the appellant were much earlier than one month before the services of charge-sheet upon him, but by non-examination of the complainants before the Enquiry Officer the appellant was deprived of the chance to show that the respondent had the knowledge of the alleged act since more than one month prior to service of charge-sheet.
5. The respondents had raised the issue that the appellant was not a `workman'. This was taken up as a 'preliminary issue' and was decided against the appellant by the learned Labour Court, but in Appeal No KAR-207 of 1985, this Tribunal by the decision dated 17-4-1986 had held the appellant to be a workman, therefore this issue was already settled and had rightly not been re-agitated.
6. The learned Labour Court has also held that the grievance petition was not maintainable because the appellant had not filed 'Departmental Appeal' before moving the learned Labour Court. I do not find that there is any provision under section 25-A of I.R.O., 1969, putting such a pre- condition. The only condition put by section 25-A is that before filing petition, the aggrieved person had to bring his grievance to the notice of the employer. This he could do even by way of 'Appeal' or by way of 'Grievance notice'. The management was at liberty to treat this grievance notice as appeal and decide the matter and the workmen is also at liberty even to treat 'Appeal' as `Grievance notice' and file grievance petition without giving any other grievance notice. The learned Labour Court has relied upon the decision of Division Bench of Sindh High Court in the case of the Muslim Commercial Bank Ltd. v. Sindh Labour Appellate Tribunal and another 1984 PLC 1149.
In that case question directly at issue was whether grievance notice sent after three months was defective on the ground of limitation. The learned Division Bench came to the opinion that under the Departmental Rules a Bank employee could file appeal which he did prefer but he was not informed that appeal was rejected, therefore, the grievance notice was given after three months, and therefore their Lordships did not accept the plea of defect in grievance notice on the ground of limitation. In that case decision of this Tribunal in the case of Muhammad Ozair Qureshi v.
Chairman, National Construction Co. Ltd., Karachi, was cited, and while distinguishing the facts of the reported case from the facts of the cited case, their Lordships made a passing remark that case was distinguishable as there was no provision for departmental appeal as in the cited case, as a Bank employee had to prefer a departmental appeal before invoking provisions of section 25- A of the Ordinance.. Therefore that case is quite distinguishable from the instant case as there is no question of limitation in the instant case. The question whether the grievance petition could be filed without preferring appeal was'not directly at issue in the reported cases.
9. To sum up, the above discussion leads to the conclusion that the enquiry proceedings initiated against appellant under the 'Bank Staff Rules' were illegal as held by their Lordships of the Sindh High Court in the case of National Bank of Pakistan and that the non-examination of the complainants before the Enquiry Officer deprived the appellant of his chance to explain the circumstances against him by cross-examining the complainants. In the absence of the examination of the complainants, there was no sufficient evidence before the Enquiry Officer to have come to the conclusion that the charges were proved against the appellant. The mere fact that he had deposited the amounts in question would not raise presumption that amount was actually embezzled by the accused employee. Reference may be made to the decision of the learned Labour Appellate Tribunal Punjab in the case of the Punjab Provincial Cooperative Bank Ltd. v. Attaur Rehman 1988 PLC 525.
10. In view of the above circumstances, I am inclined to set aside the impugned order passed by the learned Labour Court and also order of the respondents dismissing the appellant.
11. However, the question to be considered is whether the appellant is entitled to any back benefits.
No doubt the appellant has claimed back benefits in the grievance petition as well as affidavit-in- evidence, but he has nowhere stated, that during the intervening period he had remained unemployed. Furthermore, the charges against the appellant are quite of serious nature, especially in view of the fact that he was Bank employee, but he is being reinstated on technical ground.
Under the circumstances, I order the reinstatement of the appellant without any back benefits.
12. I, therefore, allow the appeal and order the appellant be reinstated in service within one month.