Last station of posting of Mussadaq Hussain, employed as Assistant by the Habib Bank Limited, was Fort Abbas, District Bahawalnagar; and he was dismissed from service on 15-2-1981. This resulted in litigation, which has a chequered history, that may briefly be narrated below.
2. Mussadaq Hussain was, on 17-6-1980, charge-sheeted, on a number of counts, treated to be instances of gross-misconduct on his, part. He submitted a reply to the charge-sheet, giving a lie to the allegations. The reply was considered as unsatisfactory, and a domestic inquiry followed, pursuant to which a second show-cause notice was served on him in November, 1980. He was ultimately removed from service of the bank on 15-2-1981. He preferred a departmental appeal on 25-2-1981. The same was dismissed on 31-8-1981. Grievance notice was served on 19-10-1981 and the grievance petition under section 25-A, Industrial Relations Ordinance, 1969 was filed before Punjab Labour Court No. 8, Bahawalpur, on 1-12-1981.
3. The grievance petition was dismissed on 22-12-1982, by Mr. Masood Ahmad Ansari, Presiding Officer of the aforesaid Court. Mussadaq Hussain filed an appeal under section 37, I.R.O. On 22-1- 1983. Mr. Justice (Retd.) Sardar Muhammad Abdul Ghafoor Khan Lodhi, the then Chairman of this Tribunal, on 22-10-1983, accepted the appeal and set aside the order of the official's dismissal from service, but without back benefits. The Bank filed a writ petition, challenging the verdict delivered by this Tribunal; and a Division Bench of the Lahore High Court allowed the writ petition. The employee went in appeal before the august Supreme Court of Pakistan. The same was accepted and the judgment of the Division Bench was set aside. The Bank's contention that terms and conditions of service of employees of nationalised banks and other financial institutions were governed by the Wage Commission Award, which could only be enforced by the Commission, did not find favour with the Supreme Court, as it was held that award of the Wage Commission was also enforceable under section 25-A, Industrial Relations Ordinance, 1969. The case was remanded for decision of the issues, arising out of the other contentions of the Bank, namely, no grievance notice had emanated from the ex-employee, and even if it be assumed that the application he had addressed to the bank could be treated as a grievance notice, the same was the-barred, and the grievance petition, following such notice, was legally incompetent.
4. Mr. Justice Malik Lehrasap Khan, by a judgment announced on 29-3-1988, upheld the decision dated 22-10-1983, rendered by this Tribunal, ordering reinstatement of the official. It was held that the grievance notice was in order, and it was also not the-barred, having been issued on 19-10-1981, following dismissal of the departmental appeal, vide order dated 31-8-1981. The Inquiry Officer had found the official guilty of seven charges. But after elaborate examination of the records and appraisal of the evidence led by the parties before the Inquiry Officer, as also before the Labour Court, the Tribunal had concluded that only to out of seven charges stood established. The honourable Judge of the High Court further observed that the aforementioned finding of fact, which was not the result of any misreading of evidence, recorded by a Tribunal of competent jurisdiction, could not and should not be interfered with by the High Court, in exercise of its writ jurisdiction. It was also remarked that if the competent authority were to come to the conclusion that out of seven charges only to were proved, the authority might have passed a punishment short of dismissal; and thus the approach of this Tribunal to the issue, as also the conclusion arrived at, were endorsed.
5. The Habib Bank went in appeal further to the Supreme Court of Pakistan, and honourable Judges, Mr. Justice Abdul Shakooru Salam and Mr. Justice Rustam S. Sidhwa separately recorded their reasons, but generally concurred in the opinion that the High Court's finding was liable to interference. The appeal of the bank was allowed and the case was remitted to this Tribunal for determining as to what punishment would meet the ends of justice, on the charges proved against the official. The observations made are illuminating. The honourable Senior Judge has enumerated the seven charges, and the replies thereto, submitted by the accused official, and differed with the viewpoint of this Tribunal that since only to charges amounting to misconduct had, in its assessm ent, been proved, the order of dismissal of the appellant was not sustainable and further that the punishment could not be altered or amended, in the manner, an appellate authority, over and above the Inquiry Officer, in the same set-up, was empowered to do. This Tribunal m its judgment dated 22-10-1983 had observed that if the inquiry Officer had found the official to be guilty of only to and not all the charges, possibility of imposition of a lesser penalty could not be excluded altogether, and the Tribunal, as such, was left with no alternative but to set aside the order of dismissal in entirety
6. The Supreme Court was of the view that this Tribunal had fallen in error in construing the judgment quoted before it, being Chan Pir Shah v. Congothene Chemical Industries Limited and others (1981 PLC 984), inasmuch as, in the course of the said judgment, an earlier decision of the High Court announced in the case Sardar Sher Muhammad v. Rao Bashir Ali Khan and another (PLD 1962 Lahore 172) had been quoted and distinction had been drawn between the appellate jurisdiction and Constitutional jurisdiction of the Court. It was proclaimed by the Supreme Court that the Appellate Tribunal was not bound to either sustain the Inquiry Officer's order in totality or to set it aside completely, and it was well within its powers either to ratify the order or to vary or amend it, in accordance with the facts established, whatever was deemed fit. It was also remarked that the submission made by the learned counsel for the accused official to the effect that he had suffered enough for the charges proved against him was a matter for the Tribunal to address.
7. His Lordship Mr. Justice Rustam S. Sidhwa expressed himself separately, in sharing the view of the Senior Judge, his Lordship, Mr. Justice Abdul Shakoorul Salam. .Rule laid down in Sher Muhammad`s case, it was observed, related to different parameters, within which an Appellate Court could at, as opposed to the High Court exercising its Constitutional jurisdiction. Rule enunciated in Rehmat Elahi v. Government of West Pakistan (PLD 1965 Lahore 112) pertained to a detention matter, where an order could be struck down if the grounds, or some of those, on which it was founded, were later found to be invalid or non-existent, but the rule regarding detention matters could not be applied to labour cases. It was pronounced that the view that if seven charges of misconduct and/or lesser infraction were proved, for which initially the employer had dismissed the employee, and later majority of the charges were found to be not sustainable or supportable, the order of dismissal was to be struck down as a whole, could not be accepted .
8. My learned predecessor had, in his judgment announced on 22-10-1983, recorded reasons, upholding only to charges Nos.4 and 6 but not the others. The official had allegedly received Rs.50 in one case and R&. 30 in another, in excess, from the customers. He, however,. Maintained that he had actually received Rs.2,617 and Rs.12,320 and not Rs.2,667 and Rs.12,350, respectively. The persons concerned were not examined and the bank employees, who deposed against the official before the Inquiry Officer, were probably not the eye-witnesses. Had they seen excessive amounts being passed and lesser, amounts being entered in the record, and the same really tantamount to embezzlement of money, as also interpolation or forgery, the official was expected to have been taken to task or 'caught red-handed' there and then. When the official was transferred to another branch, the record came in custody of his successor, and was accessible to others, who might have been instrument in the alleged interpolations. Charges at Serial Nos. l and 2 thus were not established.
9. Charge at Serial No.3, my learned predecessor has rightly concluded, also did not constitute misconduct. . The official had himself reported to the Manager the shortage in money, tendered by a client, Haji Shams Din, and thus could not be treated as an at of misappropriation. The device adopted by the Manager for verifying the bona fides of the official did not make any sense and my learned predecessor has rightly remarked that sealing of some cash in an envelope and asking the official to balance the cash without opening the envelope was purposeless. He was probably trying to test the knowledge of arithmetic of the official or the level of his efficiency in counting cash. Haji Shams Din also, however, did not appear as a witness. My predecessor is of the opinion that the instruction about not opening the envelope, containing some cash, not being a reasonable order, the at of the official in opening the envelope, in order to check the whole cash, did not amount to misconduct.
10. Charge No.5 is just a reference to a previous incident, which was a closed chapter, as the official had been pardoned on his assurance that such conduct (mis-behavour with superiors) would not be repeated in future. As regards charge at Serial No.7, which is to the effect that the official had stolen cash receipts and stamps from the Branch and the same were recovered from him, my learned predecessor has formed the opinion that this charge is also baseless., As stated in the charge at Serial No.6, the official had visited the Zonal Office, Vehari, on 1-6-1980, and had refused to go to Fort Abbas, the place of his posting. The Manager had stated before the Inquiry Officer that the official had delivered to him the keys, saying that he did not want to work under him. In his reply to the charge-sheet, the official had said that the Manager had openly told him that the Vice- President had instructed him (the Manager) to involve him (the official) in some case, so that he could be handed over to the police and his services could be brought to an end. On different occasions, the Manager had misappropriated certain amounts and had put the blame on him. As the Manager, in a gentlemanly manner, was not receiving the keys from him, the official had gone to the Zonal Office at Vehari and made over the keys, as also seals and stamps, to Mr. Saleemi, intimating him additionally about the incident of 25-5-1980. Mr. Saleemi passed on those articles to the Manager, Fort Abbas Branch. Mr. Saleemi had also checked the cash in the Bank Branch at Fort Abbas and found the same to be intact. The at of taking away seals, stamps, etc., in the circumstances, was not attended by any criminal intentions, and it could not be called a theft.
11. In the opinion of my learned predecessor, charges at Serial Nos. 4 and 6 stood established, as the official had not attended the office for a few days. He should have joined his duty at the Fort Abbas Branch and then made a request for his transfer elsewhere. He could also apply for leave.
He had misbehaved with his officer, seizing him from collar and giving a fist blow on his head, in presence of the staff members, on 25-5-1980. In this behalf, the reply of the official is worth consideration. According to him, he had protested at the manner, in which he was being dealt with by the Manager, who got annoyed and turned him out. After 2/3 hours he was summoned and asked to undertake counting of cash, which was earlier found to be deficit by Rs.139. The Manager called him 'Mama' and as the word was in the nature of abusive language of the worst order (in Punjabi), and no gentleman could tolerate it, he (the official) took serious exception to it and retaliated by paying his officer in the same coin. In the circumstances, in which the alleged incident occurred, the same, in my view, did not amount to a misbehaviour, worthy of serious notice, as also cognizance; and this fool of a man has suffered for it immeasurably, as he lost his job, and was made to face litigation, which has stretched over as many as sixteen long years. He had to go through the. Ordeal of this long-drawn and tedious litigation, right up to the Supreme Court. The Labour Court, the Appellate Tribunal, the High Court and the Supreme Court, all forums, have dealt with the matter twice. It was not all an easy exercise. He has relentlessly fought for vindication of his honour, as also for his rehabilitation in service. My learned predecessor seems to have himself given not much of weight to even the established charges, as in ultimate analysis he had treated the official to be deserving reinstatement in service, through the logic adopted, with reference to a reported' case, in that regard, had not found favour with the apex Court.
12. Before coming to my own conclusions, I may also refer to the technical objections raised by the respondents, namely, the Authorities of the Habib Bank. The objections have satisfactorily been answered and found to be without much of force in paras. Nos. 6 to 8 of this Tribunal's judgment dated 22-10-1983. The same have indeed not been pressed, in right earnest, by the respondents before me.
13. The honourable Judge of the Supreme Court, Mr. Justice Rustam S. Sidhwa, like the Senior Judge, Mr. Justice Abdul Shakoorul Salam, has referred to the provisions of section 25-A(4) as also section 38(3) of the Industrial Relations Ordinance, 1969, in emphasising that the Labour Court is required to go into all the facts of the case and pass such orders, as may be just and proper, in the circumstances of the case; and the Appellate Tribunal shall also exercise all the powers conferred by the Ordinance on the Labour Court, and may confirm, set aside, vary or modify the decisions rendered by the Labour Court, under section 25-A. While the employer is permitted to impose the necessary punishment, attracted to a charge found proved, it is the duty of the Labour Court, as also the Appellate Tribunal, to see whether .The punishment awarded by the employer is sustainable. If the misconduct is indeed made out, the dismissal order may be maintained, and even lesser punishment may be imposed, if the circumstances of the case so warrant. If misconduct is really not made out, the Court/Tribunal may not necessarily sustain the dismissal, and may impose what it considers to be a fair punishment unless the case does not call for anything more than a warning.
14 I would not entirely agree with the contention raised by the learned counsel for the appellant official that the Supreme Court could straightaway give a verdict against the official and the object in remanding the case for re--decision was to afford to the official the necessary relief. Similarly,, it will also not be correct to contend, as has been done by the learned counsel for the respondents, that the observations made by the Supreme Court furnish a clear indication to the effect that this Tribunal should propose and impose adequate penalty for the official, who did not deserve exemption or absolvement from the whole mass of charges. According to the learned counsel, banks are very sensitive institutions, as they deal with cash day and night, and employees of banks must be very humble and docile, as also very obedient and disciplined. Learned counsel for the appellant has an answer to furnish to the so-called established insinuations of indiscipline and rowdyism allegedly indulged in by the official. It has been explained that in presence of his colleagues and members of the public, Mussadaq Hussain had very badly been treated. He was insulted, sent out of office for a few hours, recalled and again abused outrageously, by being addressed as 'Mama'. He was a young ex-Army man and he might also have become somewhat insolent, resorting to having even a fling at the officer; but he was not disobeying him or calling to question the authority of the officer, who had by his own eratic behaviour invited his subordinate's retaliation and infuriation. Years have passed, when this minor incident had occurred. The official has, as already said, suffered tremendously and incalculably. He ought to be dealt with by the Bank Management in a magnanimous manner, so that he and his children are not deprived of their livelihood for ever. I have myself been advising the appellant to stop wearing bitter and ferocious looks on his face. Probably by temperament, or just by looks, he is unpleasant and volatile. Let us hope, he sheds this kind of conduct, for it has not paid him, rather he has paid a very heavy cost for it.
15. I would absolve the appellant of all the charges, not just in executive style, but in keeping with the mandate of my judicial conscience, considering the entire evidentiary material on record, the whole circumstances of the case, and the torture some history of the litigation. The appeal is accepted, with of course no order as to costs, and the impugned order delivered on 22-12-1982 by the Labour Court, upholding the order dated 15-2-1981 of the Bank Management, stands set aside.
As the official has suffered a lot and has also spent extensively on the litigation, and maintains that he has also been out of job, and no evidence h been led by the respondents to the contrary, I would also hold the appellant entitled to half of the back benefits, for the entire period, he has been out of employment of the bank.