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Appeal No. HYD‑39 of 1982, heard on 21st October, 1982‑

(a) Industrial Relations Ordinance (XXIII of 1969) --

‑‑ S. 25‑A (1)‑Grievance notice‑Limitation‑Rules applicable to establishment providing appeal‑Workmen preferring appeal within time prescribed for such appeal‑Limitation for purpose of grievance notice to employer, in circumstances, held, would run from com munication of decision on appeal ‑Workman would thus not only be aggrieved by original order but also from order in appeal.

Chairman, S. R. T. C. v: B7kshal and 27 others 1980 P L C 735 Muhammad Saleem v. Chairman, K. P. T. 1981 P L C 184 ; Vice‑Chairman, Pakistan Railways v. S. Jaffer Abbas 1981 P L C 347 ; Divisional Superintendent, Pakistan Railway v. Mrs. Nasim Sadiq 1981 P L C 653 and S. R. T. C. v. Raja Muhammad Baksh 1981 P L C 905 rel.

(b)

West Pakistan

‑‑‑ S. O. 15 (4)‑Domestic enquiry‑No particular mode laid down by law ‑Can be held in any manner convenient to Enquiry Officer and parties‑Accused workman to be given fair and reasonable opportu nity of defence ‑‑Principles of natural justice not violated ‑Record ing statements of accused and witnesses in question and answer form =Itself neither violative of law nor of principles of natural justice unless it can be shown that same caused prejudice to accused work man:

United Bank Limited, Sukkur v. . Munir Ahmed 1982 P L C 260 distinguished.

(c) Industrial dispute‑--

‑‑ Domestic enquiry‑.Non‑supply of copy of findings of enquiry‑Does not invalidate consequential punishment order unless such report of findings contains material extraneous to charges or any thing in addition to original allegation or other substantial defect which could have prejudiced accused's case.

Riaz Ahmed Shah v. Punjab Labour Appellate Tribunal 1980 P L C 459 ref.

Dawood Cotton Mills v. Guftar Shah and another P L D 1981 S C 225. rel.

Mamoon Kazi for Appellant.

M. Bashir Awan for Respondent.

Date of hearing: 21st October, 1982.

The respondent, who was posted as cashier at the Var Branch, Thatta, of the National Bank of Pakistan, the appellant herein, was dismissed from service, vide order, dated 24th July, 1980, on the charges of misappro priating two separate amounts, one of Rs. 1,500 and the other of Rs. 200 tendered at the bank for deposit. The dismissal order was preceded by a domestic enquiry in which the misconduct of the respondent is said to have been fully established. The respondent challenged the orders of his dismis sal before the learned VIth Labour Court which has allowed the respondent's grievance petition, set aside the orders of dismissal aid directed his re instatement in service with back benefits.

2. The grounds which weighed with the learned Labour Court in passing the said orders were, firstly, that the domestic enquiry was not conducted in accordance with law and rules of natural justice, secondly, that the two amounts of Rs. 1500 and Rs. 200 appeared to have been given to the respondent as loan by the Senior Head Cashier and he utilized the same in that belief, and thirdly, that the dismissal order in respect of the respondent does not explicitly state the reasons for the dismissal and thus violated the provisions of clause (3) of Standing Order 12.' Aggrieved by this decision, the bank has come up in appeal to this Tribunal.

3. Mr. Mamoon Kazi, the learned counsel .for the appellant bank, assailed the impugned decision of the learned Labour Court on 3 grounds, namely :‑

(1) That the grievance notice is time‑barred;

(2) that the respondent has himself admitted his guilt in the domestic enquiry; and

(3) that the enquiry proceedings were conducted according to the principles of natural justice and in compliance with the provisions of law.

4. Elaborating his arguments in support of his first contention, Mr. Kazi submitted that the respondent was dismissed vide order, dated 24^th July 1980, but he sent his grievance notice to the appellant bank on 16th May, 1981, almost 10 months after the order of dismissal was served upon him. The learned counsel accordingly argued that the grievance notice served by the appellant was hopelessly time‑barred. It was, however, conceded by Mr. Kazi that the respondent had preferred a departmental appeal. This departmental appeal against his dismissal order was preferred on 21st September, 1980, within the period allowed under the Efficiency & Discipline Rules applicable to the employees of the appellant bank. The bank authorities took over 3 months to decide the departmental appeal and surprisingly enough almost another 3 months to communicate the decision in appeal to the respondent. I regret having to observe that these circum stances will not enhance the reputation of the premier bank of Pakistan. The appeal appears to have been decided on 30th December, 1980 and its communication to the respondent was made on 25th .February, 1981. On 16th. May, 1981, i.e. well within 3 months of the communication of the decision in appeal, the respondent served the requisite grievance notice upon the appellant bank and as he received no reply to his grievance notice. he filed a grievance petition against the appellant bank on 13th June, 1981. It has been the consistent view of this Tribunal that where a departmental appeal is provided by the rules applicable to an establishment and an' aggrieved workman prefers an appeal within the prescribed period, the limitation for the purposes of service of grievance notice under subsection (1) of section 25‑A, I. R. O., will run from the communication of the decision in appeal as the workman would not only be aggrieved by the original order but also the order in appeal, which confirms the same. Reli ance is placed on the decisions of this Tribunal in the cases of Chairman S: R. T. C. v. Bakshal and 27 others (1980 P L C 735), Muhammad Saleem v. Chairman K. P. T. (1981 P L C 184), Vice‑Chairman, Pakistan Railways v. S. Jafer Abbas (1981 P I. C 347), Divisional Superintendent Pakistan Railways v. Mrs. Nasim Sadiq (1981 P L C 653) and S. R. T. C. v. Raja Muhammad Bakhsh (1981 P L C 905).

5. Coming to the second contention of Mr. Kazi, I might first refer to the objection of the learned Labour Court to the manner in which the enquiry proceedings were held. The learned Labour Court has considered that the enquiry proceedings were invalid because the witnesses, Fateh Muhammad, Abdul Jabbar and Farooq Ahmed, were examined by the, enquiry officer in Questions and Answers form, which procedure, according to' ,6 the learned Labour‑Court is not warranted by law. It may be pointed on that clause (4) of Standing Order 15 does not lay down any particular mod or form in which the domestic enquiry is to be held. The enquiry contemplated by the said clause can be held in any manner convenient to the enquiry officer and the parties, so however, that the workman concerned is given a fair and reasonable opportunity of defending himself and the principles of natural justice are not violated. The learned Labour Court, m its im pugned decision, has not indicated which principle of natural justice has been violated. ' Mr. Bashir Awan, the learned counsel for the respondent, was also not able to indicate which principle of natural justice, if any,, had been violated by the enquiry officer. He, however sought to argue that as the enquiry officer had recorded the statement of the respondent in Questions and Answers form and this statement was recorded before the statements of the prosecution witnesses were recorded by the enquiry officer, the respondent was gravely prejudiced in his defence. In support of his contention, the learn ed counsel relied upon the decision of this Tribunal reported as United Bank Limited Sukkur v. Manir Ahmed (1982 P L C 260). The facts of the reported case, how ever, were materially different from the facts of the present case. In that case it was found that the enquiry officer had acted as if he was conducting an investigation and not only he had put certain questions to the workman being proceeded against and other members of the staff suspected of alleged negligence, but he had put searching questions to a number of witnesses, including the defence witnesses, and had used the replies thereto against the workman being proceeded with. In the instant case, although admittedly the enquiry officer recorded the statements of witnesses in Questions and Answers form but it is not known what specific questions were put by him to the witnesses and in what form, as the statements of witnesses are not on record and only the report of the enquiry officer was produced before the learned Labour Court. Moreover, the entire case against the respondent hinges upon his own statement before the enquiry officer, which has been' made the basis of the finding of the enquiry officer.

6. It was also sought to be argued by Mr. Bashir Awan that the dis missal orders in respect of the respondent are invalid in that though he had specifically requested the management to furnish him a copy of the report of the enquiry officer, the management had declined to do so on the ground that the said report is the exclusive document for the bank and hence a copy of it could not be provided to him. In support of his contention that non -supply of the copy of the enquiry officers' report, when demanded, invali dates the order of dismissal based thereon, the learned counsel relied upon the decision of the Lahore High Court in the case of Riaz Ahmed Shah v. Punjab Labour Appellate Tribunal (1980 P L C 459). In that case it was held by a learned Single Judge of the Punjab High Court that the copies of the findings should be supplied with the show‑cause notice. However, this view was expressly dissented from by the Supreme Court in the case of Dawood Cotton Mills v. Guftar Shah and another (P L D 1981 S C 225). 1n that case their Lordships of the Supreme Court, while repelling the contention that the giving of a second show cause or the supply of the report of the enquiry officer is a requirement of rules of natural justice observed as follows :‑

"In the provision under consideration the requirement is only in regard to the information to be given of the alleged misconduct and of giving an opportunity to explain the circumstances alleged against him. All that this conveys is : firstly, an opportunity to deny his guilt and establish his innocence which the workman can only do, provided he is told what the charges levelled against him are and the allegations on which such charges are based ; and secondly, an opportunity to defend himself by cross‑examining the witnesses and by examining himself or any other witness in support of his defence. As the rules of natural justice are not embodied rules, therefore, compliance is only needed to the extent to which such rules are incorporated in the statutes. Thus, the second requirement of the provision does not travel beyond what is secondly stated This conclusion gains strength from the following observation in the case of Suresh Koshy George v. University of Kerala and others at page 204 of the report :‑

There seems tote an erroneous impression in certain quarters evidently influenced by the provisions in Article 311 of the Constitution parti cularly as they stood before a the amendment of that Article that every disciplinary proceeding must consist of two inquiries, one before issuing the show‑cause notice to be followed by another inquiry there after. Such is not the requirement of the principles of natural justice Law may or may not prescribe such a course. Even if a show‑cause notice is provided by law, from that it does not follow that a copy of the report on the basis of which the show‑cause notice is issued should be made available to the ‑person proceeded against or that another inquiry should be held thereafter.'

In the same volume of the Report at page 513, this principle was approved by the majority opinion in the case of Management, Shah dara (Delhi). Saharanpur Light Railway Co. Ltd. v. S. S. Railway Workers' Union ; and as it is a labour case, I would venture to repro duce the relevant observation of the majority opinion :‑

As regards the modification requiring a second show‑cause notice, neither the ordinary law of the land nor the industrial law requires an employer to give such a notice. In none of the decisions given by Courts or the Tribunals such a second show‑cause notice in case of removal has ever been demanded or considered necessary. The only class of cases where such a notice has been held to be necessary are those arising under Article 311. Even that has now been removed by the recent amendment of that Article. To import such a requirement from Article 311 in industrial matter does not appear to be either necessary or proper and would be equating industrial employees with civil servants. In our view, there is no justification on any principle for such equation. Besides, .such a requirement would unnecessarily prolong disciplinary enquiries which in the interest of industrial peace should be disposed of in as short a time as possible,

The Principle laid down in the case of Suresh Koshy Geprage v. University of Kerala and others was later reaffirmed by the same Court in the case of Shadi Lal Gupta v. State of Punjab. Accordingly, neither the giving of the second show-cause notice nor the supplying of the report of the enquiry officer is a requirement of the rules of natural justice. There can however, be instances where, the report of the enquiry officer may contain material extraneous to the charges or anything in addition to what is found in the original allegations against the workman or other substantial defect which could have pre judiced his case; but for that redress is provided under section 25‑A of the Industrial Relations Ordinance. This would, by no means, provide a ground for enlarging the scope of the provision so as to include both these requirement."

7. In view of the authoritative pronouncement of the Supreme Court, the contention of Mr. Bashir Awan complaining of the non‑supply of copied of the enquiry officer's report has no force. Of course, if the enquiry officers report had contained any material extraneous to the charges against the respondent or anything in addition to what was found in the original allegation against the respondent or other substantial defect which could have prejudiced the respondent's case, the position would have been different, as pointed out by their Lordships of the Supreme Court. However, none of these circumstances is present in the present case.

8. It was also contended by Mr. Bashir Awan that the dismissal order is violative of the provisions of clause (3) of Standing Order 12 in that it does not specifically contain or indicate the reasons for passing the order. The dismissal order reads as follows :‑‑

Unauthorised (Transactions) Late Payment And Misappropriation N. B. P. Var Branch.

As decided by the competent authority after due examination of the captioned cases Mr. Farooq A. Memon, Cashier, N. B. P., Var Branch has been dismissed froth the Bank's service with immediate effect.

(Sd.) Hasibul Haq Siddiqi,

Assistant Vice‑President (Administration)"

A bare perusal of the said order makes it clear that the respondent was being dismissed on the charge of indulging in unauthorised transaction, late payment and misappropriation at the bank's branch at Var, and that further the dismissal order was passed by the competent authority after due exami nation of the case of the respondent. It may be pointed out that in the origi nal show‑cause notice, dated 13th December, 1979, it was specifically brought to the notice of the respondent that he was alleged to have misappropriated separate amounts, one of Rs. 1500 which was tendered for deposit by Mr. Muhammad Dawood on 29th September, 1979, and the other of Rs. 200 which was tendered for deposit by Amir Bux on 27th September, 1979. This show‑cause notice was followed by a departmental enquiry in which witnesses were examined and also the statement of the respondent was recorded.

9. It was next urged by Mr. Bashir Awan that the enquiry officer had recorded the statement of the respondent before recording the statements of the witnesses and that further the statement of the respondent was recorded in Questions and Answers form. I have already taken the view that the/ recording of the statements of witnesses including the employee who is being, proceeded with in Questions and Answers form is neither violative of the provisions of clause (4) of Standing Order 15 nor of the principle of natural justice unless it can be shown that the procedure' adopted has caused pre‑judiced to the workman being acceded, against. In the instant case there is nothing to indicate that any prejudice was caused to the respondent on account of the recording of the statements by the enquiry officer in Questions and Answers form. Reverting to the contention that the statement of the respondent was recorded by the enquiry officer before recording statements of the witnesses for prosecution, I regret that there is no evidence on record in support of this contention. A perusal of the enquiry officer's report seems to suggest that the statement of the respondent was recorded after the statements of the witnesses were recorded.

10. It only remains to be considered whether the misconduct of the respondent has been established. In this behalf I can do not better, than refer to the statement of the respondent recorded by the enquiry officer. The said statement reads as follows :‑

"Questions put on Mr. Farooq Ahmed, Cashier, by the Enquiry Officer and reply of Mr. Farooq Ahmed, Cashier.

Read over and accepted to have been correctly recorded.

11. An examination of the entire statement of the respondent leaves no room for doubt that the respondent had misappropriated the 2 amounts of Rs. 1,500 and Rs. 200 respectively which had been deposited by 2 different persons in the bank. No doubt, it is the case of the respondent that the said amounts were given to him as loan by Senior Head Cashier, Abdul Jabbar but apart from the fact that neither Abdul Jabbar nor any other evidence was led by the respondent in support of his contention that the amounts were given to him as loan, the respondent, who was a cashier of the bank could not have failed to realize that the amounts which were deposited in the bank by the bank's customers could not be given by any bank officer as a loan nor could they be utilized for personal purposes. The misconduct of the respondent thus is established on his own admitted statement. Of course, in his evidence before the learned Labour Court, the respondent sought to contend that he was forced to make this statement, but again there is no evidence in support of this belated plea. In fact, in his memo. of appeal to the President of the appellant bank, the respondent has taken a somewhat different plea. While admitting that he made the incriminating statement before the enquiry officer, he explained that this was on account of the fact that he was very upset and puzzled and repeated the story of which was suggested to him by the Senior Head Cashier. It was only at the time of service of the statutory grievance notices that the respondent changed this stand and alleged that it was an Area Manager who had asked him to make the statement. As the respondent did not care to examine either the Senior Head Cashier or the Area. Manager or any other evidence in support of his different versions of story: no reliance can be placed thereon.

12. For the reasons discussed by me above, I am of the considered view that the guilt of the respondent was duly established in a fair and im partial enquiry and that in the circumstances of the case no fault can be found with the dismissal orders passed in respect of him.. I Would accordingly set aside the impugned order of the learned Labour Court and would allow the appeal.

Appeal allowed.

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