MUHAMMAD BASHIR KHAN JEHANGIRI, J.---This appeal by special leave of this Court is from an order of a learned Single Judge of the Lahore High Court accepting the Constitutional Petition filed by respondents Nos.1 and 2.
2. The appellant was employed as Assistant under respondent No,1 (Habib Bank Limited, Gardee Square Branch). On 24-8-1981, he was charged for having received on 9-7-1981 payment of electricity bill dated 25-8-1981 amounting to Rs,833.78 when it was not his duty to do so and further that he did not deposit this amount with the Cashier of the Bank whose duty it was to have received the bill and deposited it on 8-8-1981 along with surcharge of Rs,80.85 and had thus been guilty of fraud, misappropriation of bank money and dishonesty. His reply to the charge-sheet was found unsatisfactory. An inquiry was initiated against the appellant on aforementioned charges and, in consequence, after a show-cause notice the appellant was dismissed from service on 31-3-1983 by Mr. Irshad A. Khan, Vice-President and Zonal Chief under the direction of the 'competent Authority'.
3. The appellant approached the Punjab Labor Court No,2, Lahore (respondent No,3 herein) under section 25-A of the Industrial Relations Ordinance (No,XXIII of 1969) (hereinafter called as the Ordinance) for the annulment of the order of his dismissal and "reinstatement with full back benefits" on the ground that the Assistant Vice-President and Vice-President were incompetent to issue the charge-sheet and pass the order of dismissal respectively. It was also complained that neither Muhammad Akbar consumer at whose behest the inquiry proceedings were purportedly initiated nor the Cashier who had received the amount of electricity bill had been examined and, therefore, charge against him remained unproved. Respondents Nos.1 and 2 resisted the petition both on legal and factual plane. The appellant was found by respondent No,3 to be 'workmanand, therefore, his grievance notice under section 25-A of the Ordinance was held to be maintainable. Respondent No,3 further held that the appellant had not been charge-sheeted by a competent Authority as envisaged by para. 258(4) of Wage Commission Award; that the impugned order of dismissal is also not proved to have been passed by the Circle Executive who was the competent Authority. On merits, according to respondent No,3, the appellant's "guilt does not stand proved", in that, Muhammad Akbar consumer at whose behest the proceedings were initiated did not of his own hand make the complaint vide his communication Exh.P.6. Mr. Nasir A. Jaffri, Assistant Vice-President/Manager who represented respondents Nos.1 and 2 "was not eye-witness of the alleged misconduct" but he had come to know "through investigation and the investigation proceedings have not been placed before the Enquiry Officer" i,e, Mr. Muhammad Zafarullah Tameem. The failure on the part of respondents Nos.1 and 2 to examine the Cashier in whose absence the appellant was directed by the Branch Manager to collect the electricity bill was taken to be pointer to his innocent. It was, therefore, concluded that "from the inquiry file, at the most, it is proved that the petitioner received the electricity bill which by itself does not constitute misconduct". Further that it had been misconduct if he had misappropriated that amount and, therefore, the misconduct was not proved from the evidence before the Enquiry Officer and the petitioner could not be dismissed. In consequence, the relief sought for was granted to the appellant.
4. Respondents Nos.1 and 2 preferred an appeal before the Punjab Appellate Tribunal, Lahore (respondent No,4 herein). The Appellate Tribunal upheld the findings of respondent No,3 on crucial question of competency of the officer who had issued the charge-sheet and passed the impugned order of dismissal and at Para. 4 observed as under:-- "The findings of the learned lower Court that the charge-sheet was issued by an incompetent Authority stands established. Charge-sheet was issued by the Assistant Vice-President and Zonal Chief was competent. The Zonal Chief, no doubt, has authorized the Assistant Vice-President but he being himself a delegatee from the Board of Directors could not further delegate the powers.
However, the dismissal order is not defective. The Circle Executive himself considered the case and decided that the respondent should be dismissed and asked the Zonal Chief to issue the dismissal order. Since the charge-sheet was given and Inquiry Officer was appointed by an incompetent Authority, the proceedings and the dismissal order were vitiated. The respondent was, therefore, rightly directed to be reinstated in service."
The appellant was, however, not held entitled to back benefits. Respondents Nos. 1 and 2 approached the High Court by way of a Constitutional petition.
5. It was argued before the High Court that respondent No,3 had 'wrongly concluded that Area Chief was not competent to issue charge-sheet, in that, the Area Chief and the Zonal Chief were both competent under the law to charge-sheet the appellant; that in any case the Area Chief had acted under the direction of the Zonal Chief. On the contrary, it was argued on behalf of the appellant before the High Court that "respondents Nos.1 and 2 had raised factual controversy" which could be made the subject of Constitutional petition" and in this context reliance was placed on Muhammad Hussain Munir v. Sikandar and others (PLD 1974 SC 139) and Messrs.A.E.G. Pakistan (Pvt.) Limited v.
Sindh Labor Appellate Tribunal, Karachi etc. (1989 PLC 525). It was further argued on behalf of the appellant before the High Court that Zonal Chief being himself a delegate could not further delegate his powers and in support whereof reliance was placed on Habib Bank Ltd. v. Punjab Labour Appellate Tribunal and others (1991 PLC (Labour) 2).
6. The learned Judge in Chamber of the High Court reached the conclusion that "it was the Zonal Chief, who passed the orders to charge-sheet and suspend the appellant under para.258 of the Wage Award No,1 and set aside the findings of respondents Nos.3 and 4 that the charge-sheet had not been issued by the competent Authority. In this context, the provision of the "Staff Rules" and evidence on record, were invoked. On merits, it was observed that "the Courts below failed to appreciate that after admitting the receipt of the amount, it was the appellant to explain its adjustment" and further that it is not possible to conceive of financial institution like Habib Bank proceedings in such a careless fashion" and again that respondents Nos.3 and 4 "failed to notice that why the Assistant Vice President involved him? Neither there is any suggestion of mala fide nor there is anything on record" and lastly that "the bare production of original electricity bills C-II and C-III is sufficient to prove the guilt of the appellant". Resultantly the petition was accepted by the High Court, orders of respondents Nos.3 and 4 'respectively dated 25-4-1984 and 12-3-1985 were set aside and the grievance petition filed by the appellant was dismissed with costs throughout.
7. Leave to appeal was granted to consider the following questions:--
(a) Whether the learned- High Court was justified to interfere with the concurrent findings of fact recorded by the Tribunals of exclusive jurisdiction after proper appraisal of all relevant material on the record and particularly when the findings were not shown to suffer from misreading of any material evidence?
(b) Whether the learned Single Judge while exercising Constitutional jurisdiction could re-appraise the evidence and record his own findings which could only be done in appellate jurisdiction?
(c) If the learned Judge was of the view that some material evidence has not been considered by the Courts below which had the vitiate effect on the findings recorded by them, the only proper course was to remand the case to the Court below for recording fresh findings after considering the material earlier omitted.
8. Mr. Maqbool Elahi Malik, learned counsel appearing on behalf of the petitioner, argued that it could be hardly controverted that it was within the jurisdiction of the learned Labor Court and the learned Labor Appellate Court to have appraised the evidence in order to decide the factual controversy, firstly, as to whether the charges of fraud, misappropriation and dishonesty were proved against the petitioner and, secondly, as to whether the punishment awarded to him was harsh, lenient or proper.
Mr. Maqbool Elahi Malik, therefore, submitted that the learned Judge in the Chamber of the High Court plainly fell into an error in setting aside the order of the learned Labor Court in general and that of the learned Labor Appellate Court in particular merely because it was "not possible for the learned Judge to conceive of financial institution like Habib Bank proceedings in such a careless fashion".
9. The argument in our opinion is unexceptionable. It is now well-settled that the matter before the learned Judge fell to be dealt with under Article 199 of the Constitution. That being so, the learned Judge could have annulled the impugned orders of the labor Tribunals if he had reached the conclusion that the orders were "without lawful authority and of no legal effect" which refer to jurisdictional defects as distinguished from mere erroneous decisions whether on fact and in some exceptional cases even of law. It is also well-settled that where a Court or Tribunal has jurisdiction and it determines that question, it cannot be said that it acted illegally or with material irregularity merely because it came to an erroneous decision on a question of fact or even of law. In this contest, the decisions of this Court in the cases are: (i) Badrul Hague Khan v. The Election Tribunal, Dacca (PLD 1963 SC 704), (ii) Muhammad Hussain Munir v. Sikandar (PLD 1974 SC 139), (iii) Begum Wazir Ahmad Industrial Home v. Niaz Begum (PLD 1976 SC 214);,(iv) Mst. Ismat Khanum Toor v. Rao Riaz Ali Khan and 2 others (1978 SCM R 335), (v) Jalal Shah and others v. The Custodian and others (PLD 1981 SC 262) and (vi) Maqbool Ahmad and others v. Settlement and Rehabilitation Commissioner, Sargodha and others (PLD 1983 SC 337).
10. From the perusal of Rule 6 of the Habib Bank Limited (Staff) Service Rules, 1981 (hereinafter called as the Rules), it transpires that the appellant fell within Category-II Employees. Competent Authority of disciplinary actions with reference to Rule 3(d) means an authority specified in Column (4) of Appendix to the Rules. Entry No,12 of the Appendix reads as under :-- Serial No,Rule No,Nature of powers Competent Authority Extent of powers
1. 2. 3. 4. 5.
12. 37 Dismissal and other punishment(a) President Full power upto Office Grade-I
(b) Senior Executive Vice- President Administration Head Office(i) Full powers up to Category II (ii) Punishment (a) to (d) mentioned in Rule 37 in respect of Officers Grades- III , II and I. (c) Heads of Circle Offices. (i) Full powers up to Category-II (ii) Punishments (a) and (b) mentioned in Rule 37 in respect of Officers Grades-III and II. (d) Heads of Zones (i) Full powers up to Category-III.
14. 39 Appointment of Enquiry Officer or Enquiry Committee and issue of charge-sheet etc.(a) President Up to senior Grade I (SVP) (b) Senior Executive Vice- President Administration Head Office.Up to Officers Grade I. (c) Heads of Circle Office Up to Office Grade-II. (d) Heads of Zones. Up to Category- II It would thus be noticed that under Item No,14 (ibid) for appointment of Enquiry Officer or Enquiry Committee and issue of charge-sheet etc. To Category-II Officers as laid down in Column 3, therefore, Heads of Circle Offices and Heads of Zones were both competent to appoint Enquiry Officer and issue of charge-sheet etc. Likewise under Item 12 for dismissal and other punishments of Category-II Officer, as the appellant is, Head of Circle offices were competent. The two labor Tribunals below seems to have incorrectly applied the Rules and by placing reliance on Efficiency and Discipline (Banks and Financial Institutions) Rules, 1975 erroneously held that the charge-sheet was, issued by an incompetent Authority. The Rules of 1981 ibid had perhaps escaped the notice of the two Tribunals. The learned Judge in Chamber in the High Court had, therefore, the legal justification to have declared the impugned orders to this extent to be without lawful authority.
11. In view of the law laid down in the chain of authorities cited by us in Para. 9 ante the learned Judge could not have upset the aforesaid findings of fact recorded by the two Tribunals particularly those of Appellate Tribunals which on reappraisal of evidence in its true perspective had correctly reached the conclusion on factual plane in Para. 3 of its judgment which is as follow:-- "The plea of the respondent was that the Cashier whose duty it was to receive the amount and to deposit it was not present and on the asking of the Manager, he received the amount. The Manager was examined by the prosecution in the inquiry and he denied that the Cashier was not present or that he had authorized the respondent to receive the amount. So, the fact that without authority the respondent received the electricity bill and its amount stood established. However, the fact that the amount of surcharge was deposited by the respondent on 8-8-1981 does not stand proved as the bank employee who had received the said amount on 8-8-1981 was not examined."
The competent authorities of respondents-Bank and the learned Judge in Chamber had not perhaps misconceived the concept of awarding proper punishment, namely, too harsh touching the rigors of cruelty nor too lenient to turn the disciplinary matter into sheer mockery. Viewed in this perspective, we, are of the view that the learned labor Appellate Tribunal, while directing the reinstatement of the appellant, had properly held him disentitled to back benefits. Terminus qua for disentitling the appellant to back benefits would obviously be date of order i,e, 12-3-1985.
12. Upon the peculiar fact of this case, we are satisfied that the impugned judgment of the High Court cannot be sustained. Accordingly2 this appeal is allowed, the judgment of the High Court is set aside and the 'Operative part of the impugned order of the learned Punjab labor Appellate Tribunal dated 12-3-1985 is restored. The parties are, however, left to bear their own costs.