DECISION 'This appeal arose from the order dated 26th June, 2000 passed by the Sindh Labour Court No, VIII Larkana. By the said Order the grievance petition of Iqbal Ahmed Abro who was working as a Cashier in the MCB, Larkana was allowed with his reinstatement in service accompanied by payment of full back benefits. It is against the said order that the MCB has come in this appeal.
2. Briefly stated the respondent's case is that he was employed as driver with the MCB but subsequently he was raised to the position of cashier. He was working at Anaj Mandi Branch of the said Bank when on 8-12-1999 he was deputed to go to Sukkur to bring cash of 30 million from the Bank's March Bazar Branch. He was provided cash van with Police Escort and two Security Guards for the purpose. In Sukkur he was however given 35 millions of rupees at two places after he signed the relevant advices. He returned to Larkana Anaj Mandi Branch at 4-d5 p.m. On the same date. On reaching Larkana he took the cash straight to the Strong Room where he was required to deliver the amount of 15 million for despatch to Shandad Kot Branch and the amount of one million was given to the Chief Cashier (Akhtar Hussain Khichi), for making payments at the counter. At about 5- 15 p.m. The respondent suddenly declared that the cash with him was short by two millions. This declaration was made despite the admitted receipt of Rs,35 millions at Sukkur. Right from the moment he reached the Bank at Larkana he did not go anywhere but continued to remain in the Bank (Strong Room). As a first step to locate the missing cash physical search of the respondent and of its goods was made. Enquiry was also made from Shandad Kot Branch if the money was paid to that Branch in excess. Similar enquiry was also made from State Bank, Sukkur and such other places but there was no trace of the missing amount. The respondent was ultimately handed over to Haidery Police where, it is alleged, he was subjected to severe torture but that too could not help in recovering the missing amount. Three domestic enquiries, one after the other, were held as to how the cash in possession of the respondent became short. First enquiry was held by Mr. Muhammad Usman Mallah, Assistant Vice-President, Dadu and in that enquiry the respondent fully participated. The report of the Enquiry Officer was that beside committing minor lapses the respondent did not hand over the entire cash to Mr. Akhtar Hussain Khichi, Chief Cashier of Anaj Mandi, Larkana but he rather kept it in Strong Room in his possession from where he supplied 15 million rupees to Shandad Kot Branch. Through Mr. Aftab Ahmed Mahesar and handed over one million Rupees to Mr. Akhtar Hussain Khichi, Chief Cashier. He did all this before balancing the entire cash obviously in violation of the procedure of the Bank. He though remained in possession of the cash right from Sukkur where he had received the entire amount he was unable to clarify how the shortage accurred. According to Enquiry Officer the respondent signed Cash Debit Voucher regarding fraud/forgery for the missing cash of two million on the back side in presence of the Manager who verified the same by his signature and this Voucher was passed by Mr. Nazir Ahmed Channa, Manager, Anaj Mandi, Larkana Branch. The Enquiry Officer, expressed his view in his report that respondent was guilty of committing embezzlement/misappropriation of cash of two million and therefore was bound to make good the loss to the Bank.
3. Likewise in other two enquiries conducted by Mr. Moula Bux, Assistant Vice-President and Mr. Anwar Ali the Audit Centre Chief the respondent was also found to be guilty of misconduct. As a result of these enquiries the competent authority was pleased to approve the respondent's dismissal from service by order dated 17-4-1999. He preferred Departmental Appeal against the said order of dismissal but the same was rejected. When the respondent was informed of the rejection of his appeal vide letter dated 28-7-1999 he served a grievance notice on the Bank and filed grievance petition in the Sindh Labour Court VIII, Larkana.
4. As stated above his grievance petition was allowed by the impugned judgment of the learned Labour Court. Dissatisfied with the said judgment the appellant-Bank filed this appeal. Both the parties produced relevant documents and also filed affidavits-in-evidence in support of their respective version of the case and the witnesses concerned were cross-examined. I have gone through the judgment written by learned Labour Court. The learned Judge of Labour Court had taken pains to discuss each allegation made in the Letter of Charge given to the respondent and had come to the conclusion that none of these allegations was proved against the respondent. As a matter of fact these allegations were nothing but minor irregularities of the Bank's C Instructions and Rules for which respondent was not liable as he had acted under the orders of the Superior Officers of the Bank. As a result of findings arrived at in the aforesaid enquiries the respondent was dismissed from service. He was also handed over to police and F.I.R. Was filed in respect of the shortage of missing cash. The police made a detailed investigation in the case and challaned the respondent along with others by producing interim challan. The learned counsel for the respondent has relied upon order dated 30th October, 2001 of Syed Ikram Hussain Jafri, Presiding Officer Special Court (Offences in Banks, Karachi. The order shows that though the respondent was sent up with interim challan but in the report under section 173, Cr.P.C. (final challan) he has not been sent up for trial for want of evidence. The learned Presiding Officer while discussing the case with regard to respondent Iqbal Ahmed Abro has stated in the order:- "As regards Iqbal Ahmed Abro, who has been shown in the list of persons not sent up for trial, the learned PP has taken me through the report under section 173, Cr.P.C. (final challan) and the material/evidence with the prosecution with contention that Investigating Officer while preparing the final challan on the basis of evidence has rightly opined that there was no responsibility and criminal act remained against the accused Iqbal Ahmed Abro when he delivered and handed over the entire cash to the said two accused persons. I hold that there remains/is no evidence with the, prosecution to warrant conviction of the accused Iqbal Ahmed Abro. I, accordingly, for the above reasons and final report under section 173, Cr.P.C. Which is hereby accepted, acquit the accused Iqbal Ahmed Abro under section 249-A, Cr.P.C. Read with section 173, Cr.P.C. Dated 13-7-2001 submitted in this Court on 14-7-2001. Let the case against accused Nazir Hussain Channa and an absconding accused Akhtar Hussain Kitchi be proceeded. The accused (Iqbal Ahmed Abro) is present on bail. His bail bond and surety are discharged."
'In view of above clear-cut decision of the Presiding Officer of Special Court (Offences in Banks) the respondent is absolved from all the liabilities with regard to missing cash, criminal as well as civil.
The above judgment though not wholly tallies with the judgment of learned Labour Court yet in result as the respondent has been acquitted in the aforesaid criminal case so also he has been exonerated of the charges contained in the Letter of Charge dated 25-2-1999 given to the respondent. In concluding para. Of the Labour Court's judgment the learned Presiding Officer of the Labour Court has expressed his view that in view of the discussion made in the judgment the respondent was wrongly dismissed from service and therefore the order of dismissal was liable to be set aside and the respondent was entitled to reinstatement in service with all back benefits from the date of his impugned dismissal. However he will face the consequences of criminal case pending for investigation before F.I.A. And this judgment should not cause effect on it. This judgment was delivered on 26-6-2000 whereas the respondent has been acquitted in criminal case vide judgment dated 30th October, 2001 and as such the apprehension expressed in the judgment of Labour Court about facing the consequences of criminal case whose investigation was then pending would not arise as the criminal case too was decided after the judgment of the Labour Court in favour of the respondent Iqbal Ahmed Abro.
5. Despite his acquittal in the criminal case as stated above the respondent was held liable for shortage and disappearance of cash of two million in three domestic enquiries referred to above. It is to be decided if this dismissal can be maintained though he was not only acquitted in criminal case but also exonerated of civil charges. In this connection learned counsel for the respondent has relied upon the Supreme Court Authority reported as 2001 PLC 721 wherein he relied upon two judgments reported as the Vice-President (Admit.) National Bank of Pakistan and others v.
Basharat Ali and others (1996 SCMR 201) and Attaullah Shaikh v WAPDA and others (2001 SCMR 269) to argue that in a case where an employee was acquitted in a criminal case, no useful purpose would be served to proceed against him departmentally. Each case is to be decided on its own merits. In the present case, the respondent might have been acquitted from the criminal charges of actually sharing the mens rea i,e, criminal act of defalcation and sharing the money subject-matter of the criminal case but being Cashier, he might be found to be negligent or not vigilant in discharge of his duties on account of which the happening of the said incident could be prevented or avoided for which he may be proceeded against through disciplinary proceedings, therefore the observation made by the learned Labour Court that the petitioner may proceed if sufficient material is available against the respondent departmentally does not suffer from any illegality. In another case of Supreme Court reported as 2001 SCMR 789 = 2001 PLC (C.S.) 725 it was held that acquittal in criminal, case would be no ground for setting aside the dismissal from service.
6. The aforesaid authorities of Supreme Court obviously have no effect of barring taking departmental action against the Bank employees even G though they were acquitted in criminal charge.
7. However the learned counsel for the respondent referred to one more case of Supreme Court reported as 2001 SCMR 269 = 2001 PLC (C.S.) 316 wherein the view taken was that where criminal charges are not established before the competent Court of Law and accused civil servant is acquitted on those specific charges, the departmental proceedings exactly on the same charges would be wholly irrelevant and unjustified. In view of this authority learned counsel submitted that since the respondent was exonerated from criminal charge in respect of same subject-matter i,e, shortage of two million Rupees it would be wholly unjustified to punish him of the same charge only because he was found guilty in domestic enquiries. No doubt the respondent was entitled to complete acquittal in the present case in view of the clear-cut findings of the Supreme Court as reproduced above. Thus the above authority of Supreme Court entitles the respondent to be set free even from liability of the amount declared to be short. But as pointed out above there are two other authorities of the same Court which clearly show that in criminal case, there could not be a ground for setting aside of dismissal from service. Similar view was taken also in another case reported as 2001 PLC 743. The shortage of the amount involved in the case had taken place when the money was in possession of the respondent. He was to explain the shortage even though the offence of misappropriation or' embezzlement alleged against him was not proved. He could not escape the liability of furnishing explanation as to how the amount became short particularly when it was not proved that it became short when he became entirely hopeless. That is to say that either the money was snatched from him with threat of violence or he was deprived of the amount by deceitful means. May be through his negligence he had misplaced the amount or lost it altogether.
Even then it is to be accounted for because such negligence shows nothing but absolute inefficiency on, his part. If such replies are ignored are left unpunished then I am afraid the money of the Bank, will not be considered in the safe hands. Such negligent or careless employees need not be inducted in Bank's jobs. I am therefore of the considered view that if no other punishment is inflicted on such employees the least that could be done for safeguarding the Bank's money would be to relieve them of the sensitive Bank job.
' As a result of above discussion I feel that respondent is not fit to be retained. In the service of Bank.
His dismissal from service as already ordered may be converted into simple termination of his services from Bank's job.