{{BLUER PAGE}} 10 no1P0084-ing: 18th June, 1996. 18(i; tv..u..,, Isw,,-) mil ril .
5rii 'to ;Ara-iftoir..)riu-1 ;-i):i fU _.:;I:JUDGMENT :ir;i)o;;tzi\ '.:i ,.:stiO wori-A tviI fl. 'By '.'ii.Ilieiii ''''6.48gif 'on 5-9-1995 by lihrei'i)iiiiiab 'llabtitirCcitifilo No,8, Bahawalpur grievance petition field under section.
25-A of 'the' Industrial Relations Ordinance, 1969 by Muhammad Iqbal against the General Manager, Muslim Commercial Bank Limited, Circle Officeoltahim Niig. Pop, }yas dismissed; ati4e has come npnin.4ppeal to this TrihImal. l'h1if;41'Mtiliantatiad Iqbal- Was brought:6 on, its rolls by the Muslim .
Commercial Bank Limited on 7-8-1989 ;and he was dismissed from service ': on 10-11-1994. He challenged this order by taking up a number of pleas, the same. Being that the charge-sheet served on him on 7-9-1994, relating to cerealic 'alleged .iii61klents dated 19-4-1994 and 16-6-1994 was time-barred, i'4. And it was otherwise also defective, having not emanated from the employer or the appointing authority. The allegations levelled against him were baseless, and, in any case, the bank had not been defrauded and deprived of any money. The ordgi'llif dismissal .Wde theouteotti6 of mala fides and mechanization on the part of the bank, managetnept,..4y,ing adopted visibly hostile posture against the employee. ,rt , .,',IvItyln-i Ittl
3. On the contrary, the bank took up a number of preliminary objections, the main being that no grievance notice, as required by law served upon the eiliPidyer, and the Labour Curt no. Jurisdiction in the matter, as no right Otthe petititutit'gnaranteed or Secured under any law, award settlement been infringed. Maintainability of the petition directed, against the General Manager and not against the Bank .As a bOdy corporate was also questioned.
StatuS' 6r thv tiefitioner to-helit.1/4Viiikritan, entitled to'letv( industritdolituttAilmas also disputed. , On facts,:* was maintained that as Cashlit Muhaminadiqbal had been found guilty of gross misconduct, in the domestic enquiry, held- against him, he could offer nn,plausible explanation on deferice;lancl his removal from services WASiIASIified:- bi ,. The learned Labour Court, in the-Style of the Civil Court, proceeded to rfrike certain issues, arising out of the pleading's 'a the parties, and uilareitOOkASCUOitin issue-wise, on the strength of tlieeVidence available on rdS8a,j'aiid'ii) atellight of the legal 'propositionsitilvolVecl; Dismissal order r hiAiiehiiiiiiiisal on 10-1 i'=,14194'(Eidi?P11); the grieVitide' notice (Eidt.R-6). hiWtig 'bah 'liked . On I7.-7`1-104; ti5'4indiVated 'by . The ,i1OStal receipt (Eief?.P-7)1CkaPilticand, and rightly so to be within tinienThe appellant had ally licit! Appointed a Guard and after aboitittiperiod of 1-1/2 yeartikeli Wkitgikonioied as Cashier. He used to receive' tents , against electricity I bilk'IAdired'by die-consumers, and prepare dailY 'statement of accintittain keeping fif 'kaki the nature of 'his duties, he was rightly held to b& a)1 workman, as defined under section 2(i) of the West Pakistan Industrial and Commercial Employment (StandingicArde0)5.9rdinance, 1968.
Although the bank had filed certain crosalobjections (on 18-12-1995), the same {{BLUER PAGE}} have not been pressed, in all seriousness, by the learned' CotingelK the arse of a arguments before this forum; and I do not find faultliiitifthe'edrieetness of the findings recOrded by the Court below' nil der Issues and-2. . ,
5. 'AS regards 'the char' a s let being :iiirteibiired,tiiictilekaci b3; the petitioner before the Labour Court, the objection i7efituriettictieWn spurned Ohe being withOur three. The bank waslitiPegid tti' employee toltisk only when t14 gal" thiSconduct on hituf14kca3iie nOtiee. WAPDA had 'corrununiateidAe irregularity in iltie vide lettefligidt.:R4/6 irr Mid lof 'July, 1994, lettettavitig5litielPiitiheid4 16-7-1994 :#0AilitiAng been received in the bank on 19-7-194. -'Ai letter explanation*u(the bank was .Addressed to the employee pro/406'6n 24-74994:34Ithough foring charge-sheet was served afterwards oil 7-9-1994. Ti liaPyilitiO, been ObSeiVed by the learned lower Court that the chargeLsheer'stribuiTheriso is not the requirement, and it is enough if soozii after becomingia'062of the 'alleged act of misconduct on the part oViii employee, the batik liad eals fedi* his explanation, and on obtainingliiigliii4 had conducted' klpreliinittiWiticiiiity, in the light of *hich issuance Sliow,cause notice or a'"ell'ar' ge-sheet was considered to beriecessary, as it Whi a question of defalcation of certain amount, and it had to be preliminailly probed into. The employer was:.,expected to have proceeded ,against, the employee, or initiated action ag#41bitu,,o0y: on becoming,,ware,:pt alleged embezzlement indulge* iptiltmithe latter. The sanli9f0c ,411510414 knowledge of the bank on 19-71994, and the ernplayeie Ny,,a5,*editoAxRigio his position on 24-7- 1994, and the 'letter of. Charge' 300.Prg)flivv41 ultimately issued on 7-9-1994. Technicality apart, irsquld.i3AdioAnannerbe treated as a time-barred chargrAget; and I would, e1,140F.AWIn4432 ggAR learned lower Court in that beli0f, 'op! banifinutuM
6. The main issue is No,4, Labour Conrei'"findiiiitei eeti 'VVitiCh has gone against the employee. Objections of the appeliii e pectin the so-called defects inherent in the enqUiryhave, however, rikbtfy been rejected by the Court below, and actually, while making (on 27-3-1995) statement as P.W.2, Muhammadlithal had conceded that a regular chart e7 sheet had been served on hirt,llifthoUgh the same contained Inuit allegations 'He had not soliCiteefdellWbfa helper,' as probably he didita stand nigeokit. AtisigrieecOr'}is'sfitilibei'itowever, did not atm die al fabi ity onllieiPart of ffieuitiAttateiiiient:In enquiry" r*itheik:!IsItiliiiimitid'ikitaiii. Had :4;* i:statement 'On Oat.134i the 6 f ' haaifkili:cliad'enabled'teeroi-eZamine him,' Motiiu0,atigtigi Jailed kfkkhan inadel14_,Plaire statement and alsilidodiilice the Ehquiry OffkersdikthiditaiP.MdeifdecOmprised of 2 Oki not examined l appearing in Court his testimony'' oW crit, 'iiiiijeCiltaiihis-Aimination. The ostensible 14 ,ticm; tH-11 inuarrig bine '.',ii , I. )15 {{BLURE PAGE}} ' however, would not, in any way, render the enquiry proceedings defective. The bank had examined as many as three witnesses in the count. All of whom had made their statements on oath and they had also been subjected to cross-examination by the grievance petitioner, before the Labour Court.
7. Document Exh. R-1/2 or R-1/5 is a copy of the scroll dated 19-4-1994, indicating that an amount of Rs,1,156 had been received against Serial No,l. The total of the amount received on the said date is shown to be Rs,1,475, although it would have been Rs,2,475, had the amount mentioned at Serial No,1 been Rs,1,156 and not Rs,156 only. The entries were made by the Cashier and the Manager countersigned the statement. All the witnesses of the bank have admitted that in the total there is some overwriting; but it is maintained that the counter-signatures are affixed just in routine, or by way of 'attestation', and not in the manner of verification of correctness of the entries and the total.
This part of the testimony is, however, ridiculous, on the face of it. It is conceded that explanations of the officers of the bank in that regard had been called, although they had been let off, on being administered warning. It is depo.Zed that it cannot be said with certainty as to who was responsible for the overwriting in question. Who knows then, someone in the staff might have done it, with a view to falsely implicate the cashier.
8. On 16-6-1994 there was a detected deficit of Rs,3 only. It is deposed by Mr, Javed Ayaz Khan, Manager of Muslim Commercial Bank Limited, Liaqutpur Branch, District Rahim Yar Khan, as RW-3 that it could well be a clerical mistake. Manifestly, I am of the opinion, it could not be in the nature of misappropriation, as only a fool would endeavour to "steal" just three rupees. It is also testified by RW-3 that earlier there had never been received any complaint against the cashier. It is also conceded that Muhammad Iqbal, as Cashier had made a deposit of Rs,1,000, on receiving it, as he said from one Muhammad Ashraf, and thus the bank did not suffer monetarily, as the deficiency detected was made up, without delay. Muhammad Ashraf had even given a writing in that behalf on 4-10-1994, which is available at page 89 of the file of the lower Court. He states that he had parted with Rs,156 only for payment of the electricity dues of Jamia Masjid Noori, Mahajar Colony, Liaqutpur. Afterwards, when he saw the receipt, it was found to carry an amount of Rs,1,156, which amount was later, on 19-7-1994, collected from him by Muhammad Iqbal, Cashier, Muslim Commercial Bank Limited, Liaquatpur. It thus appears that, actually, while calculating the total, an error had crept in, as the total was shown to be Rs,1,475, instead of Rs,2,475; else, the amount at Serial No,1 was initially entered as Rs,156 and the digit 1' was added afterwards, to make it Rs,1,156.
Muhammad Iqbal, while appearing as an accused in the enquiry, had stated that the person carrying the electricity bill had paid to him, in actual practice, Rs,156 only. The bill was in the amount of Rs,1,156, and he entered the said amount in the scroll, but in the same evening he came to know that there had occurred a deficit of Rs,1,000, as the "total" was checked by the Manager, Ch. Shahzad, who signed the scroll assuring that the entries were in order and the total was correct.
The cash was closed, and the scroll was despatched and the deficit in the process could not be detected. When, however, the WAPDA office sent a letter, it was revealed that the amount received, against the electricity bill of the mosque, was Rs,1,000 less than the actual amount. He therefore contacted the management of the mosque, who acknowledged the lapse or the blunder, on their part, and they readily paid to him the amount in question, which he deposited in the bank, on the same day. He had no dishonest intentions and no fraudulent designs. He did not at all intend to misappropriate an amount of Rs,1,000:
9. It seems that it had occurred owing to inadvertence, and it was an act of innocent error, which the cashier committed without any mens rea on his part. He could not possibly appropriate to himself any money, the entire transaction being a matter of record. I would broadly agree with the learned lower Court that employees of all the financial institutions or commercial establishments have to be very meticulous, careful and honest, in their dealings, and if they are found to be guilty, for even a minor lapse, lenient view should not be taken and no excuses should be accepted. It is however, to be borne in mind that in the course of working, mistakes and errors do occur, and what has to be seen is if there is an element of dishonesty or guilty intention involved. To err is human; and if a person commits a mistake inadvertently, he has not to be dealt with rigidly and punished disproportionately, as there is always room for improvement in efficiency and for correction of errors. Benefit of doubt, in situations involving genuine confusion, has to be given and scope for forgiveness must not entirely be excluded. This is a case, in which, I am of the firm view that, the official had not really been guilty of alleged lapse on his part, consciously and purposely. The so- called error which appeared to be in the nature of a gross-irregularity or manifest defalcation of money, was, it seems, in consequence of some inadvertence or unintentional omission and not palpable negligence or guilty mind, on the part of the employee, who was a cashier, at the relevant time. I would not agree with the learned Labour Court that he could not be absolved of the wrongful act attributed to him.
10. I would set aside the order of dismissal, upheld by the learned lower Court, and would allow the appeal, although with no order as to costs. The poor fellow has been jobless ever since his removal from service, i,e, from 10-11-1994. He will be reinstated in service, and will also be paid half of the service benefits, for the period in question.