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Appeal No. GA.1 0 of 1982, decided on 30th May, 1983.

‑‑‑‑ Domestic enquiry‑Duties of Enquiry Officer‑‑Akin to a Judge of a Court‑Expected to go by the evidence‑Findings not to be based on presumption‑Bank employees charged for mis-appropriation Facing joint enquiry ‑Statements of all accused recorded in question-answer form‑No witness necessary to prove allegations produced No opportunity to cross‑examination each other afforded‑No opportunity of defence evidence given‑‑Order of Labour Court setting aside consequential penalty of dismissal from service and awarding re‑instatement with back benefits, in circumstances, upheld by Appellate Tribunal‑Industrial Relations Ordinance (XXIII of 1969), Ss. 25‑A & 38 (3).

Mian Khurshid Ahmad and Mian Muhammad Yasin for Appellants.

M. A. Hamid Awan for Respondent.

Date of hearing:17th May, 1983.

This appeal challenges the decision; dated 28th February, 1982 passed by the learned Presiding Officer, Punjab Labour Court No. 3, Lahore at Ferozewala, whereby the respondent was directed to be re‑instated in service with back benefits.

2. The allegations for which the respondent was charge‑sheeted and after holding an enquiry was ultimately dismissed from service were of misappropriation of money. He was a Cashier.

3. Enquiry was not properly made by proving the charges and giving opportunity of cross‑examination and for producing defence evidence, to the respondent. Joint enquiry was made and only the statements of all the employees who had been charge‑sheeted were recorded, but no opportunity of cross‑examination was afforded to any of them. The state ments were recorded by the enquiry officer in question‑answer form, with the result that the respondent and other persons under enquiry had no opportunity to fully disclose their modus operandi.

4. Let us discuss every charge to see if opportunity was given and charges were duly established or not. The finding of the enquiry officer on charge No.1 is that Mr. Ayaz Mahmood had delivered the cash of Rs. 3,995.53 with Cheque No. 503400 and pay‑in‑slip to the respondent. The respondent did not admit the receipt of the amount and the cheque, and said that payment was received by Aish Muhammad Rana, who duly signed twice on the back of the cheque. No one says that the cheque bears the signatures of the respondent. The Enquiry Officer too, in his report does not say that the respondent signed on the back of the cheque, nor any expert was examined, nor anyone said that respondent signed in his person. No opportunity of cross‑examination on Ayaz Mahmood and Aish Muhammad Rana was afforded to the respondent.

5. So far as charge No. 2 is concerned, the Enquiry Officer is not definite about the collusion of the respondent with Manzoor Ahmad, conductor, in the embezzlement of Rs. 400, inasmuch as he says that perhaps he was in collusion with the said conductor. The respondent contended that Rs. 400 were received short and he had reported to the G. T. S. authorities about the shortage. The Enquiry officer has also admitted this fact in his report but he makes the respondent responsible on the ground that the respondent should have accepted the documents after full cash had been delivered to him and that later on the respondent deposited the shortage of Rs. 400. Since the respondent had not admitted the receipt of Rs. 400, Manzoor Ahmad, Conductor, should have been examined during the enquiry to state that he had paid the full cash to the respondent.

6. The third charge is that he made temporary misappropriation of funds by detaining credit vouchers for Rs. 8,236.77 and Rs. 8,293.09 dated 26th January, 1977. The respondent denied the receipt of any such vouchers and said that they did not bear his signatures, so he was not responsible. The Enquiry Officer instead of proving the delivery of vouchers to the respondent, presumed that delivery and remarked that the respon dent taking advantage of faulty procedure did not countersign as Head Cashier and detained the vouchers. The duties of enquiry officer are akin to a Judge of a Court and he is expected to go by the evidence. Thee delivery of vouchers to the respondent was to be proved and in the absence of proof it could not be said that he had searched them and did not counter sign and detain them. The person who had delivered the vouchers should have been examined. Even the name of that official of G. T. S. is not disclosed in the charge‑sheet and the enquiry report. The charge, therefore, was not established.

7. So far charges Nos. 4 to 6 are concerned, the finding of the Enquiry officer is not that the respondent had actually embezzled the amounts mentioned therein. He says that the discrepancies occurred as bank cashier did not exercise due care and caution, he also says that since specimen signatures are appended to the identity cards of the G. T. S. staff and comparison could be made. The finding is that conduct of the respondent was not satisfactory. Since the finding is that there were only discrepancies and not misappropriation, it cannot be said that any misconduct was committed.

8. The seventh charge is that the respondent did not credit Rs. 1,700/53 to P. R. T. B. account and S. T. D. I although the receipt of the amount was acknowledged by him. The respondent did not deny the receipt of the amount but contended that he had delivered the transfer voucher and the cheque to the then Head Cashier and Cashier and they misappropriated the amount and that after one year coming to know that the amount had been misappropriated, suffered the loss by depositing the said amount. He thus did not admit the defalcation, so the Head Cashier and Cashier should have been examined to say that they did not receive any voucher or cheque and the signatures of the respondent should have been proved on the back of the cheque. The Enquiry Officer is wrong in concluding that since the respondent had afterwards deposited the amount on the asking of the Manager, he had misappropriated it. No presumption can he drawn from depositing the amount. The charge, if dented, is to be proved either, by voluntary confession or by cogent evidence.

9. So far as charge No. 8 is concerned, the Enquiry Officer has not found that respondent guilty of it. He says in his report that the discrepancies have been reconciled to the satisfaction of the G. T. S. authorities.

10. As has been remarked above, the enquiry was not properly made, inasmuch as the necessary witnesses who could have proved the charges were not examined and the ones who appeared were examined in set questions and answers without giving opportunity to the respondent to cross‑examine them. No opportunity of the production of defence was given. The respondent nowhere stated that he did not want to lead any defence evidence.

11. No other point has been argued before me. As upshot of the observations made above, 1 do not find any force in the appeal and thus dismiss it.

A. B.

Appeal dismissed.

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