' SAIDUZZAMAN SIDDIQUI, J.---The above appeal with the leave of this Court is filed to call in question the judgment of a learned Judge in Chambers of Lahore High Court dated 10-11-1992 whereby Writ Petition No,6560/89 filed by the appellants to challenge the judgment dated 12-9- 1989 of Punjab Labour Appellate Tribunal, Lahore, was dismissed.
' The relevant facts of the appeal are that respondent No,3 while serving as Senior Assistant in Ghulam Muhammad Abad Branch of the appellant bank at Faisalabad was dismissed from service on the ground that he misappropriated certain amounts of pension by making double withdrawal in the name of pension holders. Respondent No,3 was charge-sheeted by the Zonal Head of the bank on 15-7-1987 to which he offered an explanation. As explanation given by respondent No,3 was found unsatisfactory departmental enquiry was conducted. The Enquiry Officer found respondent No,3 guilty of the clarges and accordingly, recommended his dismissal from service.
The report of Enquiry Officer was accepted by the Authority and accordingly, respondent No,3 was dismissed from service with effect from 3-7-1988. Respondent No,3 challenged his dismissal from service under section 25-A of the Industrial Relations Ordinance (I.R.O.), 1969 before Labour Court No,4 at Faisalabad. His petition was accepted and he was ordered to be reinstated in service. The decision given by the Labour Court was upheld in appeal by the Punjab Labour Appellate Tribunal vide judgment dated 12-9-1989 and a writ petition filed by the appellants against the judgment of the Tribunal also failed. Leave was granted in the above case by this Court to consider the following contentions: -- "The petitioner/employer seeks leave to appeal against the judgment of the Lahore High Court dated 10-11-1992 whereby the judgment of the Punjab Labour Appellate Tribunal was left intact on the ground that a finding of fact had been recorded which was not open to scrutiny and second statement of the employee was required to be obtained which had not been obtained.
2. The manner in which the Tribunal recorded a finding of fact with regard to the competence of the officer would necessitate and did require further examination. The Tribunal dealt with this question in the following words:- ' Learned counsel for the appellants has argued that the Executive Member of Board had vide Exh.
R-13 decided to dismiss the respondent and since he was competent, the learned lower Court failed to consider the said document. I have carefully examined the said document. Nothing is made by someone proposing that the respondent be dismissed and according to the learned counsel for the appellants Muhammad Aslam who was the Executive Member of Board approved it by putting his signatures. No designation is given under the signatures of Muhammad Aslam. The words 'Member Executive Board' in abreviation are written at a sufficient distance towards the left side and not under the signatures of Muhammad Aslam, therefore it cannot be said that Muhammad Aslam was the Member Executive Board. The other thing is that Muhammad Aslam only put his signatures but did not accept the proposal of dismissal nor directed that the respondent be dismissed. So, this is wrong to say that the said officer had decided to dismiss the respondent. So far as the charge-sheet is concerned, learned counsel for the appellant has not shown that it too was issued by the competent authority.'
3. Leave to appeal is granted to examine the questions raised."
' The learned counsel for the appellants contended before us that the learned Judge in Chambers fell in error in holding that respondent No,3 was entitled to the copy of the report of Enquiry Officer and that before taking any action or imposing penalty on him under the Rules, he should have been given an opportunity to make a statement in reply to the finding of the Enquiry Officer. It is contended by the learned counsel for the appellants that the aforesaid conclusion of the learned Judge in Chambers is based on misconception of paragraph 258(5) of the Wage Commission Award, which reads as follows:-- "258. The Commission noticed that disciplinary rules in the various banks/financial institutions are not only lacking in uniformity but they also do not provide for any show-cause notice requiring the employees to explain their conduct. This is not quite fair. An employee who is alleged to have committed breach of discipline should be given opportunity to explain his position and submit the relevant record/evidence in defence with regard to the charges against him. It has, therefore, been decided to lay down uniform procedure in respect of disciplinary action and punishment to be followed by all banks and financial institutions.
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4. Inquiry procedure.---Before it is decided to impose any penalty on an employee for an offence of which he has been reported guilty, he shall be called upon by the competent Authority to render a written explanation of the charges against him and show cause by such date as may be specified in this behalf as to why disciplinary action should not be taken against him. The employee's explanation together with the charges against him shall be submitted to the authority competent to impose the penalty.
5. The authority shall either inquire into the case itself or obtain an independent report on the case in writing from an officer or a Committee of officers specially deputed by the authority to investigate the case. The report together with the employee's statement shall be laid before the authority who shall then consider the matter and impose any penalty as it deems proper in the circumstances. The decision of that authority shall be conveyed in writing to the employee concerned."
' The learned counsel for the appellants further contended that in any case if the learned Judge was of the view that the appellants had failed to follow the enquiry procedure prescribed under paragraph 258(5) of the Wage Commission Award, the case should have been remanded after setting aside the dismissal of respondent No,3 leaving it open for the appellants to proceed against him afresh in accordance with the law. The learned counsel for respondent No,3 on the 'other hand contended that the appellants having passed the dismissal order of respondent No,3 from service in violation of paragraph 258(5) of the Wage Commission Award, the Tribunals below rightly set aside the dismissal order and directed reinstatement of respondent No,3 in service. In reply to the contention of appellants that after declaring the dismissal of respondent No,3 from service as illegal, the appellants should have been allowed to proceed against the respondent No,3 afresh if they so decided, in accordance with the law, the learned counsel for the respondent No,3 contended that it would have served no useful purpose as the criminal prosecution lodged by the appellants against respondent No,3, before the Special Court (Offences in Banks), Lahore, ended in the acquittal of respondent No,3 under section 265-K, Cr.P.C. And appeal against the acquittal of respondent No,3 filed by appellants before the High Court of Lahore was also dismissed. It is further contended by the learned counsel for respondent No,3 that respondent No,3 is undergoing the agony of prosecution for charges which could not be established, since 1987 and therefore it is not in the interest of justice that this process is allowed to continue against him indefinitely. We have heard the learned counsel for the parties at length.
' We have carefully considered paragraph 258(.1) and (5) of the Wage Commission Award which lay down the procedure to be followed by the Banks and financial institutions while initiating disciplinary proceedings against their employees. Under sub-paragraph (4) :hid, it is provided that if an enquiry is to be initiated against an employee on the ?Round that he has committed an offence, the Competent Authority is to serve a charge-sheet on him asking him to submit his explanation to the charges levelled against him by a specified date, to show cause why disciplinary proceedings should net be initiated against him. If the concerned employee furnishes his explanation to the charge-sheet, the explanation alongwith the charge-sheet is to be submitted to the authority who is competent to impose the penalty. Thereafter. Under sub- paragraph (5) ibid, the Competent Authority has to apply his mind to the charges levelled against the employee as well as the explanation offerer by him and if it is not satisfied with the explanation offered by him then an enquiry is to be held either by the Competent Authority itself or through an officer or a Committee of Officers specially appointed by the Competent Authority to investigate into the charges and submit the enquiry report in writing The enquiry =port together with employee's statement is then submitted to the authority which considers the matter and takes decision regarding imposition of penalty or not. It was contended before the High Court on behalf of the appellants that employee's statement referred to in sub-paragraph (5) of paragraph 258 of the Wage Commission Award, did not mean a statement obtained from the concerned employee after a copy of the enquiry report is supplied to him. According to learned counsel for the appellants the explanation offered by the employee concerned in reply to the charge-sheet or his statement recorded during the course of enquiry by the Enquiry Officer. If placed before competent Authority along with the enquiry report. It would amount to substantial compliance of paragraph 258 (5) of Wage Commission Award, The contention was repelled by the learned Judge in Chambers as follows-- - "9. I am unable to agree with Mr hived Altaf, that the 'employee's statement' referred in sub- paragraph (5) relates to the written explanation/reply to show-cause notice as contemplated by subparagraph (4). These terms are distinct and separate and cannot be construed contrary to their meanings and neither any of it could be excluded or embraced as is apparent from the words of the provisions under consideration which are plain and unambiguous. Reading the provisions under consideration together and the language used therein, . It leads to only one conclusion that the 'employee's statement' referred to in sub-paragraph (5) is in addition to the employee's 'written explanation' to the charges referred in sub-paragraph (4). The 'employee's statement' is relatable to the reply in relations to the inquiry report whereas the 'written explanation' relates to the charges levelled against an employee in the charge-sheet. Clearly, unless the employee has been delivered a copy of the report, he is unable to furnish his reply in relation to the inquiry report."
' We are inclined to agree with the above interpretation of paragraph 258(4)(5) of Wage Commission Award by the learned Single Judge. Expressions "written explanation" and "employee's statement" have been used in sub-paragraphs (4) and (5) of paragraph 258 of the Wage Commission Award respectively, in relation to two different stages of enquiry against an accused employee. The expression "written explanation" is used with reference to initial stage of enquiry when an accusation in the shape of charges is levelled against the employee and he is asked to offer his defence. At this preliminary stage of enquiry it is not yet decided by the Competent Authority whether to proceed further against the accused employee or not. The expression "employee's statement", has been used in sub-paragraph (5) ibid. This is the stage of enquiry where the Competent Authority after considering the charge-sheet and the explanation of accused employee has further enquired into the charges against the employee either personally or through an officer or Committee of Officers appointed for this purpose, and has before it the findings about the guilt or otherwise of the accused employee in the shape of an enquiry report.
The employee's statement which is submitted to Competent Authority at this stage along with the enquiry report could not be that explanation which was submitted by the employee in reply to the charges and which was already considered by the Competent Authority while deciding to hold investigation into the charges against him. The enquiry report is undoubtedly a document which has come into existence after submission of written explanation by the accused employee in reply to the charge-sheet and this enquiry report has almost a decisive effect on the final decision of Competent Authority in the case of the accused employee. Therefore, against the enquiry report the accused employee must be given an opportunity to defend himself, otherwise it would amount to condemning him unheard. We are, therefore, of the view that the "employee's statement" referred to in sub-paragraph (5) of paragraph 258 ibid must necessarily refer to' his statement given in reply to the enquiry report. The object of allowing the accused employee to offer his statement at this stage appears to be to afford him an opportunity to answer and meet any adverse findings by the Enquiry Officer in his report. The learned counsel for the appellants also contended that the statement recorded by the Enquiry Officer during the course of enquiry against him, if placed before the Competent Authority along with the enquiry report, would amount to substantial compliance of sub-paragraph (5) ibid. We are unable to accept the above contention of the learned counsel for the appellants. The enquiry report is the outcome of the material produced before the Enquiry Officer which includes the statement of the accused employee as well. Therefore, the statement of the accused employee made before the Enquiry Officer during the course of the enquiry which has already been considered and incorporated in the enquiry report could not be considered as the "employee's statement" under sub-paragraph (5) ibid, which is to he forwarded along with the enquiry report to the Competent Authority for a final decision of the case. In the present case, it is an admitted position that no copy of enquiry report was supplied to respondent No,3, and therefore, he could not submit his statement in reply thereto as contemplated under sub-paragraph (5) ibid. Therefore, the order of the Competent Authority passed in the absence of "employee's statement" was not a legal order. The learned Judge in Chambers, therefore, rightly held the dismissal of respondent No,3 from service as illegal. However, as the dismissal of respondent No,3 from service was found illegal on account of noncompliance of the procedure prescribed under sub-paragraph (5) of paragraph 258 of the Wage Commission Award, proper course would have been to leave it open to the appellants to proceed against respondent No,3 if so desired, in accordance with the rules. We were, therefore, inclined to partly accept this appeal leaving it open for the appellants to proceed in accordance with the law against respondent No,3 if they so desired but we have been informed that in the criminal case initiated against respondent No,3 by the appellants, respondent No,3 has been acquitted by the Special Court (Offences in Banks), Lahore, by judgment dated 17-5-1995 and the appeal against the said Order filed by the appellants before the High Court has also failed. Keeping in view the above circumstances, no useful purpose will be served to keep the matter open for appellants to proceed against respondent No,3, if so desired afresh in accordance with law. The appeal is, accordingly, dismissed but in the circumstances of the case, there will be no order as to costs.