ALLIED BANK OF PAKISTAN, KARACHI Versus ABDUL KARIM

DECISION

This appeal calls in question the order of the Labour Court ordering the reinstatement of the petitioner (respondent herein) in an Application under section 25‑A of the I.R.O.

2. The respondent at the material time was working as an Accountant a Grade‑III Officer. On the complaint of some Account‑holders of the Bank he was served with a charge‑sheet on March 4, 1989. It had 2 counts, the first one was in regard to the misappropriation of customers accounts in the sum of Rs.2,52,100 and the other that he was absconding from his duties for more than 10 days.

3. He had replied to the charge‑sheet but that was not found satisfactory and a domestic enquiry was ordered which was to be held by one Muhammad Rafiq Jagirani, a Manager of the Bank. On the report of the Enquiry Officer the respondent came to be dismissed from service on 17‑10‑1989 with immediate effect.

4. The respondent had filed a departmental appeal addressed to the President of the Bank on 4‑12‑1989, and there being a delay in the order, he had filed the petition before the Labour Court.

5. In the petition it was alleged that the petitioner's duties were clerical in nature and he had no hiring and firing powers. It was also alleged that he had been maliciously run down on the basis of an unfair enquiry wherein even his witnesses were not allowed to be examined. Further the statement of witnesses were recorded jointly. It was also averred that the charge‑sheet and the order of dismissal were not by competent authority.

6. The allegations in the petition came to be denied in the Written Statement filed by the Bank. The other contentions were that the Labour Court had no jurisdiction to entertain the matter, as the Bank was run under the authority of the Federal Government with its own Statutory Rules, and that the petitioner was holding a job of supervisory nature.

7. The petitioner was his own witness and Mehmood Ahmed, the Zonal Chief appeared on behalf of the respondent Bank. The Labour Court found all the material issues in favour of the petitioner and allowed his reinstatement in service with full back benefits.

8. Mr. Shabbir Awan learned counsel for the appellant again pressed the contention that the petition was not maintainable as the respondent was a Grade‑III Officer of the Bank and was drawing a pay of Rs.3,900. He maintained that the respondent was having a power of Attorney from the Bank and referred to the case of Ganga R. Madhani v. Standard Bank and others 1985 SCMR 1511 in that context. However it is a trite proposition of law by now that it is not the designation or the emolument which is a decisive factor in determining the status of an employee. The nature of the duties performed by him only will clinch the issue.

9. The respondent had all along maintained that he was maintaining registers and ledgers and had no power to appoint or terminate the services of any workman. Actually he did not have the power even to grant leave to any worker. All this is affirmed by Mehmood Ahmed, the Zonal Manager. He had further stated that "the applicant used to prepare statements and performed many other manual works and released the voucher from all the books." I agree with the finding of the Labour Court that the respondent is 'a workman.

10. Even the accusation in regard to time bar is misconceived, because the respondent had preferred an appeal against the order of his dismissal before the President. The belated order is on the record. The grievance notice was given on the 18th of July, 1990 and the petition was filed very much in time thereafter. It is not the case of the appellant that there are no departmental appeals under the Statutory Rules. The fact of the matter is that an order dismissing the appeal is on the record, which was received after the despatch of the grievance notice. So nothing turns on that either.

11. There is no substance either in the contentions that the petition did not lie because the Bank was being run under the authority of the Federal Government with its own Statutory Rules. All I need to say is that the pronouncements in the case of Muhammad Aqeel v. Sindh Labour Appellate Tribunal PLD 1978 Kar. 649 and Trustees of the Port of Karachi v. Abdul Ghani 1983 SCMR 769 arc conclusive answers for the same.

12. There was another contention raised before the Labour Court that the proper parties had not been impleaded but very properly the point has not been pressed before me.

13. The charge of absconsion from duty hardly deserves any consideration. Even the charge‑sheet does not mention when it began and when it ended, and the evidence of Mehmood Ahmed, the Zonal Chief does not throw any light on the matter either. Actually he has shown his positive ignorance about the episode. So nothing need be said in this context.

14. Now adverting to the merit of the case the first thing which attracts the attention is the delay in the drawing of the charge‑sheet. Standing Order 15(4) says that "no order of dismissal shall be made unless the workman concerned is informed in writing of the alleged misconduct within one month of the date of such misconduct, or of the date on which the alleged misconduct comes to the notice of the employer and is given opportunity to explain the circumstances as alleged against him‑‑‑‑‑‑‑‑‑‑"

15. The misappropriation spread over a number of years and can be left alone. We have therefore to ascertain as to when the said misconduct came to the notice of the employer, and there is no gainsaying the fact that it was very much to the knowledge of the employers in the month of November, 1988. R/5 the contents whereof have been reproduced in the order of the Labour Court shows that enquiries had been going on, and the respondent had according to the letter, admitted his guilt. There are other documents also namely R/40 and R/45. Even the Written Reply does not squarely meet the challenge of delay beyond a bland assertion that the charge‑sheet drawn was within time. No particulars had been supplied then, or later in the evidence of the Zonal Chief. The charge‑sheet was given as late as 4‑3‑1989. There is ample law on the subject sufficient to dispose of the appeal.

16. Even the enquiry conducted by Muhammad Rafiq Jagirani was almost farcical in nature. Neither the account‑holders were examined, nor original documents produced and even the statements of the witnesses arc lumped together. The so‑called report is limited to 7/8 lines in long hand and all that it has to say is that the charges against Abdul Karim Soomro by the Zonal Office were totally proved against him. There are serious accusations against him including the charge that .he had also not allowed him witnesses to be examined. There being personal accusations against the Enquiry Officer, he was a necessary witness. He was however not put into the witness‑box. (See 1983 PLC 468 and 1108). That is also a great solecism (See 1983 PLC 468 and 1108).

17. Annexures R/1 to R/3/11 show that the statements of complainant Muhammad Shoaib, and Irshad Ahmed, which had been recorded earlier had been incorporated verbatim later by the Enquiry Officer. That is also true in regard to R/3/3 to R/3/6 . All this shows that they were not examined at all, because they could not repeat their statements parrot‑like with the so much of time gap in between.

18. The enquiry under the circumstances does not inspire any confidence and otherwise too it cannot be said that it is fair and impartial.

19. The admissions of guilt have been totally denied by respondent and Mehmood Ahmed, the Zonal Chief has made confuse worse confounded by saying that the explanation of the respondent in reply to the charge‑sheet was in Sindhi. What on the record with all its admission and expressions of regrets is in English. I have therefore no hesitation in affirming the finding of the Labour Court that no misconduct had been established against the respondent.

20. However, I am of the view that the respondent in the circumstances of the case should not have been granted the back benefits. In spite of all the callous indifference and thoughtlessness of the Bank authorities in the prosecution of the case what remains on the record presents a lurid picture of the respondent's doings. What the respondent himself had to say under cross -examination cannot be explained away. It is not denied that Deep Chand, Muhammad Jamil, Ghulam Qadir, Saleh Muhammad arid Pir Bux the accounts‑holders of the Bank had made complaints against him. Though he had denied the allegations of misappropriation yet had to admit that he had issued a cheque to Muhammad Jamil which was towards the payment of loan taken from him. Further denying that Ghulam Qadir's deposit had been credited in his name, he added that a sum of Rs.6,000 had been wrongly posted by the clerk in different accounts which had been later on properly credited. He denied the suggestion of paying a cheque of Rs.13,000 to another account‑holder by the name of Saleh Muhammad, but admitted that the Manager had done so after collecting this account from different persons who owed money to him. He had also admitted that when any account‑holder credited money in his Bank Account then such a credit slip is issued under the signature of the 'Manager and the Accountant. He was confronted with Annexures B‑15, B‑25, B‑26, B‑27 and B‑32 which contained only his signatures. He tried to save the situation by saying that if the Manager happened to be on leave then the signature of the Accountant was deemed to be sufficient. But he had to eat back his words and admit that in the absence of the Manager credit slip had to be signed by the Accountant as well as by the Cashier. A number of slips were shown which did not bear even the signature of the Cashier and he had to say that he could not give any reason for the absence of signatures of the Cashier on the slips, "except that I had received the amounts covered by these slips on my own risk". Manifestly he is not free of all taint. Therefore in view of the pronouncement in Muhammad Bashir v. Punjab Labour Appellate Tribunal 1991 SCMR 2087 there is hardly any occasion to award his back benefits also. It is enough that he is still there.

21. As a result the appeal is allowed only to the extent that the respondent will not be entitled to the back benefits as awarded to him by the Labour Court.

H.B.T./2138/Lb.S Order accordingly.