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Appeal No. HYD‑217 of 1982, heard on 2nd January, 1982.

(a)

West Pakistan

‑‑‑ S. O. 15(4)‑Formal charge‑sheet, service of‑No requirement of law‑Accused to be served notice of acts constituting alleged misconduct within one month of commission of such acts or within one month of such acts coming to notice of employer -Accused informed of alleged acts of misconduct within one month of their coming to notice of employer prior to preliminary enquiry‑Accused making statement in reply to such accusations in preliminary enquiry‑Formal charge‑sheet served subsequently after expiry of one month‑Objection that formal charge‑sheet having been served after expiry of one month proceedings was invalid, in circumstances, repelled because accused bad notice of alleged acts even prior to service of formal charge‑sheet.

(b) Industrial dispute‑--

----Domestic enquiry ‑ Prejudice ‑ Recording a statement of witness at back of accused‑Accused making admission of alleged misconduct and stating that he would not like to cross‑examine any witness‑Findings of enquiry based entirely upon admissions of accused and not on evidence or statement of any witness Recording of statement of witness in his absence in circumstances, held, could not possibly prejudice accused.

Wahid Bux Shaikh for Appellant.

Abdul Fateh Ursani for Respondents.

Date of hearing : 2nd January, 1983.

This appeal is directed against the decision of the learned VIth Labour Court, given on 19th April, 1982 dismissing the grievance petition of the appellant challenging his dismissal from the services of the

respondent bank.

2. The facts of this case, shortly stated, are that in 1978‑79, the appellant was working as Senior Head Cashier at the respondent bank's branch at Kunri. A show‑cause notice, dated 6th November, 1979, was served upon the appellant alleging that he had unlawfully retained the cash deposited with him by the customers of the bank from l to 14 days, the details whereof were given in the show‑c4use notice, and not given credit of the same to the bank's customers on the same day as required by the bank rules ; secondly, that he had tampered with the bank record with a view to manipulating the funds of the bank fraudulently ; thirdly, that the entry appearing in the cashier's receipt book evidencing the receipt ' of Rs. 15,000 tendered by Habib Bank Ltd., Kunri, on 4th April, 1978 was unlawfully scored‑off ; fourthly, that he used to pay the scheduled bank's cheques drawn on the bank from money pooled through fraudulent and illegal 'sources made up by the unaccounted for deposits of respective banks instead of from the accounted for funds of the bank ; fifthly, that he violated the standard banking practice as laid down by the rules by issuing receipts of cash deposits with his single signatures over the counter‑foils ; sixthly, that he joined hands with his Manager and the bank's constituents in operating private loans through the funds manipulated fraudulently, thereby running a parallel bank and thus damaging the bank's interests and reputation at large ; seventhly, that be witnessed the illegal documents of Mr. Pahalajmal on 28th August, 1979 and 3rd September, 1979 and the undertaking of Mr. Qamar Haider Rizvi offering his house already mortgaged with the bank as security for illegal transaction and finally that he concealed the nefarious activities of the Manager, of Kunri Branch of the bank from the higher authorities of the bank.

3. The appellant submitted his explanation, dated 20th November, 1979 to the above show‑cause notice in which he admitted some of the allegations against him but tried to explain them away on the score that these irregularities/illegalities were due to shortage of staff and heavy rush of work. The management did not find the appellant's explanation satisfactory and accordingly appointed Syed Hasnain Zaidi, Grade II Officer in the respondent bank, to hold an enquiry against the appellant. This official came to Kunri to hold the enquiry and he issued notice to the appellant. The appellant, on 21st September, 1980 submitted a typed statement/explanation to the Enquiry Officer which reads as follows :‑

"EXPLANATION WITH REGARD TO ALLEGED FRAUDULENT ACTIVITIES AND UNAUTHORIZED ADVANCES AT NATIONAL BANK OF

PAKISTAN

While having no objection to the enquiry being conducted by Mr. Syed Hasnain Zaidi (Officer Grade I) 1, Syed Akhtar Hussain Jilani, the then Senior Head Cashier, National Bank of Pakistan, Kunri Branch, beg to submit as under :‑

(1) 1 do hereby solemnly declare that the Bank Slips were retained on the order of the Branch Manager and confirm that the cash and the slips were in the joint custody and were never misused.

I further confirm that two or three times I discussed with the Manager, that the procedure is wrong. But the cash was safe in my custody and I was satisfied. However, I did not inform the Controlling Office.

As per my previous record I bring to your kind notice that in Khirro Branch when I felt the bank money going in misuse I informed the authorities, I signed the slip which was according to the instructions of the Manager so that the clients may not feel difficulty.

Further I have to confirm that the cash deposit by the Branch were remained uncounted for two to ten days.

(2) It is correct that I have fully co‑operated with the Manager, but on the other hand I bring to your kind notice that the‑ bank cash was always safe under my custody, therefore, there were no tampe ring with the bank record or committing forgery.

As I remember the cash Rs. 15,000 was in the shape of one rupee soiled and cut notes when I felt that I will not be in a position to account for the transaction on 4th April 1978 the cash was counted in late hours and credited on 5th April, 1978 hence, the entry of 4th April, 1978 was correctly scored off.

(3) The position has already been explained that d detained the slips and paid the cheques of Banks from the same uncounted cash deposited by and due to reasons explained in para. above.

(4) As I have explained in my statement that the Manager was mostly out of the branch in connection with the development work I signed the slips singly because no other officer was in the bank to maintain cash scroll to countersign the. deposit slips. This arrangement was of course with the consent of the Manager.

(5) 1n this connection I bring to your kind notice that I have no concerti with such type of transactions. Further as far as I know there was no parallel banking from the funds deposited by banks. Hence, the question of running a parallel bank does not arise. In the case of Pahlajmal and Choudhry Ghulam Muhammad both reached an agreement and the agreements pertaining to loan were written in the bank premises. I only witnessed the agreement as Choudhry Ghulam Muhammad and Pahlajmal are the valued clients of our bank and were well known to me. This agreement has no concern with the bank and with Mr. Qamar Hyder. Now the loan has been adjusted by way of full payment by Pahlajmal.

(6) As I have already explained the position in my statement that the bank cash was in the point custody and bank's interest was safe. I felt no need to inform the Controlling Offices Zonal Office. Hyderabad, Principal Office, and Head Office, Karachi. As regards my previous banking life I can say that when I felt that the bank's interest is being jeopardised, I informed the Controlling Office from Khipro Branch in 1975 and the enquiry was also con ducted by Mr. Malik Abdul Shakoor.

Further I state that I do not want to cross‑examine any person with regards to above.

(Sd.) Syed Akhtar Hussain Jilani

Officer Grade III,

Camp at Kunri Previous Senior Head Cashier, N. B. P.,

‑‑‑‑‑‑‑---- Mirpurkhas Camp at Kunri Branch."

21‑9‑1980.

4. On 22nd September, 1980 the appellant submitted a hand‑written application to the enquiry officer stating that he had no further explanation to offer in addition to the explanation submitted by him on 21st September, 1980. On the basis of the admissions made by the appellant himself in his explanation, dated 20th September, 1980, the enquiry officer submitted his report which is dated 5th October, 1980, to the bank authorities holding the charges against the appellant proved which had been admitted by him in his explanation.

5. The appellant challenged the orders, of his dismissal through a grievance petition filed before the learned Labour Court. In that petition he alleged that no proper enquiry was held against him, that no second show‑cause notice was served upon him and that the action taken against him was in violation of the Standing Orders. It was also asserted by the appellant that he was a workman for the purposes of the Standing Orders. The learned Labour Court his upheld the contention of the appellant that he was a workman for the purposes of the Standing Orders and that his grievance petition was maintainable but has repelled the other contentions of the appellant and was also of the view that the misconduct of the appellant has been duly established in a fair and impartial enquiry. The learned Labour Court specifically took notice of the fact that in his explanation, dated 21st September, 1980 submitted by the appellant to the enquiry officer, the appellant had not only expressed confidence in the enquiry officer but had declined to cross‑examine any witness.

6. Mr. Wahid Bux Shaikh, the learned representative for the appellant, assailed the impugned decision of the learned Labour Court on the two‑fold grounds :‑‑

(1) That the charge‑sheet served upon the appellant was time‑barred and hence the proceedings culminating in the dismissal of the appel lant were invalid ; and

(2) that the enquiry proceedings were vitiated by the fact that the enquiry officer recorded the statements of the witnesses behind the back of the appellant without notice to him.

7. It may be stated. that Mr. Wahid Bux did not attempt to dispute or deny the charges leveled against the appellant possibly on account of the 2 explanations submitted by the appellant where he had himself admitted most of the facts forming the basis of the charges leveled against him on which he was dismissed from service.

8. It was contended by Mr. Wahid Bux that although the bank authorities were aware of the alleged acts of misconduct of the appellant at least on 10th September, 1979, when the statement of the appellant was recorded in the preliminary enquiry, the charge‑sheet was actually served upon the appellant on 14th November, 1979, almost two months later, in violation of the provisions of clause (4) of Standing Order 15. I regret that I find no substance in the contention of the learned representative. Assuming that the Standing Orders are applicable to the case of the appellant, who was a Senior Head Cashier and had a cashier working under him, it is not a requirement of law that a formal charge sheet should be served upon an employee against whom disciplinary proceedings are to be taken with view to dismiss him from service. All that clause (4) of Standing Order 15 requires is that such a workman must be served with a notice of the acts constituting the misconduct alleged against him and that such notice should be served upon him within one month of either the commission of the acts constituting‑ the misconduct or of such acts coming to the notice of the employer. No doubt, the acts constituting the misconduct of the appellant were committed in the years 1978‑79, but even according to Mr. Wahid Bux, the bank authorities came to know of these acts in September, 1979 when the statement of the appellant is said to have been recorded in the preliminary enquiry. The very fact that the statement of the appellant was recorded in the preliminary enquiry on 10th September, 1979, as admitted by him in his explanation, dated 20th November, 1979 to the charge‑sheet and reiterated in his review position, dated 10th January, 1981 to the President of the respondent bank, indicates that the allegations on the basis of which the appellant has been dismissed from service were brought to his nonce before he submitted his explanation in respect of them on 10th September, 1979. The requirements of clause (4) of Standing Order "A5 have thus been fully complied with.

9. The second contention of Mr. Wahid Bux Shaikh that the enquiry officer had recorded the statements of witnesses behind the back of the appellant and without notice to him ‑is equally without substance. No doubt, the enquiry officer, in his evidence before the learned Labour Court, has stated that he had recorded the statement of Choudhry Ghulam Muhammad but he has explained that the said Choudhry Ghulam Muhammad had trade complaint jointly against the staff of the Kunri Branch and had not made any complaint against the appellant. Further. more, no question was put to the enquiry officer suggesting that he had recorded the statement of the said Choudhry Ghulam Muhammad or any other witness behind the back of the appellant and without notice to him as claimed by the appellant. In fact, in his explanation, dated 21st September, 1979 the appellant has submitted that he did not wish to cross‑examine any witness with respect to the allegations made against him., Moreover, the report of the enquiry officer is based upon the admissions of the appellant himself, as contained in the appellant's own explanation, dated 21st September, 1980 and makes no reference to the statement of Choudhry Ghulam Muhammad or any other witness. A such, even if Choudhry Ghulam Muhammad was examined by the enquiry e officer behind the back of the appellant, though there is no evidence to support his plea, no possible prejudice can be said to have been caused to the appellant. It may further be pointed out that though the appellant has made various allegations, including allegations against the enquiry officer, no reliance whatsoever can be placed on his word as he appears to have deliberately made false and misleading statements. I have already referred to the appellant's explanation, dated 21st September, 1980, wherein he has stated that he had no objection to the enquiry being conducted by Syed Hasnain Zaidi but in his evidence before the learned Labour Court, he boldly asserted that no enquiry was conducted against him, that he had submitted an objection to Mr. Zaidi against his holding the enquiry against him and despite this Mr. Zaidi conducted the enquiry. It will be seen that the appellant has made contradictory statements at every stage. In the first place, far from there being any objection on record to the holding of the enquiry by Mr. Zaidi, the appellant himself in his explanation, dated 21st September, 1980 has stated that he had no objection to Mr. Zaidi holding the enquiry. Moreover, though the appellant first stated before the learned Labour Court that Mr. Zaidi did not hold any enquiry against him, he later turned a summersault and stated that Mr. Zaidi held the enquiry against him despite his objections.

10. So far as the merits of the case are concerned, they have been adequately dealt with by the learned Labour Court in its impugned decision. As pointed out earlier, the appellant himself in his two explana tions had admitted most of the acts alleged against him. These acts are in complete violation of the banking practice and rules. The trust and confidence of the public‑ in the banks would be shattered if Senior Head Cashiers, who are considered responsible banking officers, deal with the funds of the banks and the deposits made by the customers in an unauthorized manner. I am satisfied that the misconduct of the appellant was duly established both in the domestic enquiry as well as before the learned Labour Court.

11. The upshot of the above discussion is that I would dismiss the appeal and would uphold the decision of the learned Labour Court.

Appeal dismissed.

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