GHULAM MUSTAFA CHANNA vs MUSLIM COMMERCIAL BANK LTD. and others

ORDER

' SAIYED SAEED ASHHAD, J.--- These two petitions for leave to appeal have been filed to assail the judgment of Sindh High Court, dated 22-3-2007 in Labour Appeals Nos.14 and 15 of 2006. Labour Appeal No,14 of 2006 was filed by respondent No,1 to challenge the order of reinstatement of the petitioner passed by Sindh Labour Court No,VII, Sukkur. Labour Appeal No,15 of 2006 was filed by the petitioner against the order of the Labour Court refusing to grant back-benefits. Both the appeals were disposed of by the aforesaid judgment whereby appeal filed by respondent No,1 was allowed and order of dismissal of the petitioner was restored; whereas labour appeal filed by the petitioner was dismissed. Petitioner feeling aggrieved and dissatisfied with the impugned judgment of the High Court assailed the same by way of above two petitions for leave to appeal.

2. Mr. Mahmood A. Ghani, learned Advocate Supreme Courtappearing on behalf of respondent No,1 raised a preliminary objection relating to the maintainability of the aforesaid petitions on the ground that in view of the provision of Article 185(2)(e) of the Constitution of Islamic Republic of Pakistan (hereinafter referred to as the "Constitution") the petitioner was required to file direct appeals in accordance with the provisions of Order XII, Rule 2 of the Pakistan Supreme Court Rules, 1980 (hereinafter referred to as the "Rules") which ought to have been filed within a period of thirty days from the date of impugned judgment, decree or a final order of the High Court whereas the petitioner filed the above petitions for leave to appeal on 21-5-2007 which was beyond the period of thirty days as required under Order XII, Yule 2 of the Rules. He further submitted that High Court had modified the order of the Sindh Labour Court No,VII, Sukkur and that the petitioner at the time of his dismissal on 1998 was drawing salary of Rs,13,000 per month and the back-benefit claimed by him would amount to more than Rs,50,000 provided in Article 185(2)(e) of the Constitution.

3. Mr. Suleman Habibullah, learned Advocate-on-Record appearing on behalf of the petitioner vehemently rebutted the above arguments and submitted that Article 185(2)(e) of the Constitution was not applicable in this case as no pecuniary value or consideration was involved in the matter inasmuch as before the Labour Court the question requiring determination was whether the workman/worker was rightly and legally terminated or hot irrespective of the salary or emoluments payable to him.

3-A. On merits learned counsel for the petitioner vehemently assailed the judgment of the High Court and submitted that the judgment suffers from grave and serious illegality, misreading of evidence as well as non-reading of material documents on record. Elaborating his arguments he submitted that first such illegality was that the High Court completely ignored the fact that Enquiry Officer was not examined before the Labour Court thus, depriving the petitioner from the opportunity of cross-examining him for bringing on record serious and grave illegalities committed by him during the course of enquiry. This contention does not appear to be formidable in view of the fact that the enquiry report was produced in evidence and the petitioner admitted his signatures on every page thereof and that he was provided full and fair opportunity of defending himself.

4. It was then contended by Mr. Suleman Habibullah that the Labour Court had set aside the order of dismissal of the petitioner after taking into consideration all the material evidence and assigning cogent and plausible reasons therefor. He further submitted that the High Court reversed the findings of the Labour Court without assigning any justifiable reason for not agreeing with the findings of the Labour Court and in the circumstances the findings of the High Court in restoring the order of dismissal of the petitioner passed by respondent No,1 would appear to be arbitrary and fanciful not supported by any material on record. This contention also appears to be devoid of force. The High Court had discussed this issue in detail and it will be appropriate to reproduce the relevant portions from its judgment dealing with the above issue, which are as under:-- "(i) The business of Banking is based entirely upon trust and confidence and financial transaction call for much high degree of care in performance of duties by the employees of Bank. The Honourable Supreme Court in case of Izzat Baig Awan (supra) has been pleased to observe that the institution of bank is one of trust reposed by the public-at-large and they, in the peculiar nature of the duties of their employees, cannot afford the breach of trust by retaining in service people who are involved in criminal cases and whose absence therefrom, was not only obvious but unavoidable on the part of the official concerned.

(ii) Once a fact of misappropriation is proved against an employee the misconduct alleged against him stands irrespective of the quantum of amount. It is not necessary that only misappropriation of a large amount would attract the prescribed penalty of dismissal while lesser may not attract such penalty. The view taken by the Honourable Supreme Court of India in case of Divisional Collector, K.S.R.T.C. v. A.T. Mane AIR 2004 SC 4761 may be referred wherein it has been held that when a person is found guilty of misappropriating Corporation's fund there is nothing wrong in the Corporation losing confidence or faith in such a person and awarding a punishment of dismissal.

(iii) In view of above discussion learned Labour Court while acting contrary to the evidence available on record based on entries made in the relevant registers and ledgers not denied by the appellant, granted relief to appellant 'on the premise that the bank had not suffered any pecuniary loss and the amount was deposited later on. It is to be observed that the bank acts as custodian of the public money and the amount whatsoever is deposited is required to be credited in the accounts of customer without any delay and no sooner the trust reposed by the customer on the bank is shaken the banks would not be in a position to run its business, therefore, merely for the reason that at a subsequent stage the amount was deposited, would not constitute a mitigating circumstances in favour of the appellant to hold that he , is entitled for reinstatement into service."

5. From a bare perusal of the portions reproduced above, it is absolutely clear that the High Court had taken into consideration all the material available before it and came to a just and correct conclusion that the question of misappropriation or embezzlement by the petitioner stood proved from the evidence on record and the act of the petitioner in depositing the misappropriated or embezzled amount in the accounts from which he had misappropriated the same would not be considered a mitigating circumstance to allow reinstatement of the petitioner in service of the Bank. The business of bank is based on mutual trust between bank and the customers and further that the bank acts as a custodian of the public money, any slightest doubt or suspicion with regard to its activities and transaction and dishonesty of its employees would shake the confidence of the customers resulting in ruination of the business of the Bank. No exception can be taken to the above weighty observations made by the High Court while refusing reinstatement of the petitioner and ordering his dismissal. A natural corollary to the above would be that the petition for leave to appeal filed against the refusal to grant ' back-benefits automatically become infructuous.

6. As both the petitions are found to have no substance on merit therefore, it is not considered necessary to go into the question whether they have been properly presented or the petitioner was required to file direct appeals.

7. For the foregoing facts, reasons and discussion both the petitions are dismissed and leave to appeal is refused.