DECISION ' This appeal has arisen from the facts and circumstances which may be summarized as follows.
The respondent Waheed Murad was originally appointed as messenger in the Mulsim Commercial Bank (MC) and was subsequently promoted as Cashier with effect from 12-12-1995. His duties were substantially manual and clerical in nature and therefore, he was a workman within the meaning of Standing Orders Ordinance, 1968 and 1969. While he was posted as Cashier in Qambar Ali Khan Branch of the MCB he was charge-sheeted on 11-12-1996 to the effect that two account holders Ghulam Siddique Buriro and Ali Asghar Tunyo made a complaint that the respondent had obtained cheques from them and got them encashed by way of overdraft (sic) money in their accounts and the money drawn as per overdraft was not paid to them but instead he misappropriated the same.. The allegation of habitual absence from duty was also levelled against him in the charge- sheet but it was subsequently not pressed. The respondent made a complete denial of the allegations made in the charge-sheet whereupon domestic enquiry was held.
2. As regards the Enquiry respondent's allegations are that he was not allowed to inspect the Bank record nor was he permitted to call the record in evidence nor was he allowed to cross-examine the Management's witnesses. The Enquiry Officer recorded statement of his own choice without putting any question to him and recording his answers. His signature was obtained on the statement under threat of dismissal. His further allegation was that the charge-sheet was time- barred and the Regional Manager was not competent to issue charge-sheet nor he was competent to appoint Enquiry Officer. No documentary evidence was brought on record in the enquiry and even the complainants Ghulam Siddique and Ali Asghar were not examined in enquiry proceedings. Thus there was absolutely no evidence to prove the allegations against the respondent. He was not even allowed to lead evidence in defence. His further grievance is that no second show-cause notice was given to him. The order of his dismissal passed on the basis of the enquiry referred to above on 15-1-1997 was therefore nullity in law.
3. The respondent served grievance notice on the Management on 8-4-1997 but no reply was given of the said notice. Thereafter the respondent was constrained to file grievance petition which was allowed by the learned Labour Court (Muhammad Ejaz Hussain, Judge) setting aside his dismissal from service and reinstating him, with only 50% of back benefits.
4. Dissatisfied with the Labour Court's order the Management has come in this appeal. In their written statement the Management has taken a legal plea that respondent was not a workman and the petitioner is not a factory nor does it manufacture goods. The Management has refuted the respondent's allegations that he was not allowed to inspect the Bank's record or call it in evidence. It was also decided that he was not allowed to cross-examine the Management's witness. It is also denied that the respondent's signature was obtained under any threat of dismissal. It is also denied that charge-sheet was time-barred. It is denied that no documentary evidence was brought on record. The complainant's application was duly supported by cheques obtained from complainants. In short the Management has controverted the factual allegations made by the respondent.
5. The respondent Waheed Murad has filed his affidavit-in-evidence in support of his case and on the other hand affidavit-in-evidence of Nazeer Hussain Officer of the Bank has been filed in support of the Bank's case.
6. I have perused the written material available in the case file in the light of findings arrived at by the Lower Court. It is not denied by the appellant's Establishment that Standing Orders Ordinance, 1968 was not applicable to them nor is it denied that respondent was a workman. In reply to question in cross-examination the respondent stated that it was incorrect that in MCB Qambar Branch workmen never exceeded 18. However, by way of amendment in the written statement the appellant's Establishment pleaded that only 10 workers were employed in the Branch whereas their own witness Nazeer Hussain admitted in cross-examination that there were about 15 employees in Qambar Branch. He further admitted that when godown keepers were appointed by the Bank the total number of workers rose to about 30 or 31 in 1996. Thus in view of the appellant's own admission both the Ordinances viz. Standing Orders Ordinance, 1968 and I.R.O., 1969 were applicable. The appellant's witness Nazeer Hussain has explained the details of the work performed by the respondent vide para.3 of the affidavit. Obviously the work performed by him was clerical in nature which also involved some manual labour. Thus the Lower Court has correctly reached the conclusion that respondent was a workman under the Ordinance, 1968 as well as under I.R.O., 1969.
7. However, the main point for decision is whether the respondent's dismissal was illegal.
Admittedly it was the result of domestic enquiry held against him. It started in the wake of application by two account holders namely Ghulam Siddique and Ali Asghar. The first objection against the enquiry raised by the respondent was that the charge-sheet was time-barred. It was admittedly issued on 11-12-1996 though it is silent as to the date of a commission of misconduct.
However, the cheques which were alleged to have been encashed by the respondent are mentioned in the charge-sheet. Mr. Nazeer Hussain Channa the witness of the Management has admitted in his statement that the amount of cheque of Mr. Ali Asghar was misappropriated on 26- 6-1996 and that of the cheque of Ghulam Siddique was misappropriated on 13-6-1996. He was admittedly the Manager of the Qambar Branch of the Bank at the relevant time and these misappropriations came to his notice on the dates mentioned by him. The charge-sheet in which these misappropriations are mentioned was however, issued on 11-12-1996 which was clearly time- barred.
8. Apart from above the enquiry suffers from another defect inasmuch as, that no evidence on facts had been recorded. The witnesses of Management were produced before Enquiry Officer just to produce the relevant record and nothing else. They were not even subjected to cross- examination. Even the important witness like Enquiry Officer was not produced in evidence and therefore, he too escaped the scrutiny of his evidence by way of cross-examination. Even Ghulam Siddique and Ali Asghar on whose complaint the enquiry was started were not examined as witnesses. Their evidence appeared to be necessary particularly to prove that respondent had obtained cheques from them fraudulently or further that their signatures were forged by him and the amount taken out by way of overdraft was embezzled by the respondent. In the statement recorded by Enquiry Officer the respondent has clearly stated that the cheques which were given to him by Messrs Ghulam Siddique and Ali Asghar were paid by him. When he came to know that there was no money in their account he passed the cheques in overdraft and posted the same in Books and afterwards the amount of overdraft was deposited. Such statement on his part surely does not speak of the obtaining of cheques by fraud or his forgery of signatures for purpose of embezzlement. This is supported even by the statement of Nazeer Hussain . Channa who admitted in cross-examination that on his enquiry from aforesaid account holders he was told that respondent had obtained the cheques from them on the pretext of operating their accounts in order to meet the shortage found therein. Thus there was no fraudulent obtaining of cheques by the respondent but the cheques were obtained with their consent for purpose of operating their accounts to meet the shortage.
9. As regards the charge-sheet being time-barred reference may be made to Peshawar case reported as 1997 PLC 34 wherein it was held that charge-sheet having been issued beyond statutory period of one month was time-barred and no action could be taken against the petitioner thereunder.
' In view of the above discussion, I am inclined to agree with the Lower Court that the dismissal of the respondent based on enquiry referred to above cannot be supported. Consequently the findings of the Lower Court are upheld and the appeal is dismissed.