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Appeal No. HYD‑243 of 1984, heard on 17th December, 1984.

‑‑‑ Charge‑sheet‑‑Service of‑‑Sent through registered A.D. post‑‑Deemed to have been served on date mentioned on A.D. receipt.

1982 Y L C 676 rel.

‑‑‑Misconduct‑‑Bank employee advancing threats of kidnapping to Manager Mis-behaviour amounting to gross misconduct entailing dismissal from service.

‑‑Second 'show‑cause notice‑‑Not necessary in case of proceedings under S.O.15(4) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968‑‑Mandatory only in case proceedings under Wage Commission Award‑‑West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968) S.0.15(4) ‑‑Wage Commission Award (First), para. 253(5).

1984 P L C 1506 ref.

Ghulam Rasool Qureshi for Appellant.

Wasiullah Qureshi for Respondent.

Date of hearing: 17th December, 1984.

By short order, dated 17‑12‑1984, this Tribunal has allowed the appeal of the Muslim Commercial Bank Ltd. for the reasons to be followed. The reasons are as under: ---‑

1. The respondent, one Mohammad Ishaque Kundan was dismissed from service on 18‑4‑1982, after holding a domestic enquiry. This dismissal was challenged in the Labour Court No.VI at Hyderabad, who vide his order, dated 24‑7‑1983, set aside the dismissal order and re‑instated the respondent with the following observations: ---‑

If the management chooses to pass fresh order against the applicant within month, it has also to pass orders about the back benefits, either allowing the same in full or disallowing the same or partially allowing the same."

2. The Management, however, passed a fresh order in accordance with the evidence brought in the enquiry and once again on 15‑5‑1983 dismissed the respondent. The respondent, therefore, filed a second grievance application under section 25‑A, I.R.O., 1969, in the Sind Labour Court No. VI at Hyderabad and the Labour Court once again re‑instated the respondent with full back benefits vide its order, dated 11‑10‑1984. This is an appeal against the said order.

3. The respondent, Mohammad Ishaque Kundan was in the service of the appellants, namely, Muslim Commercial Bank Ltd., at Gari‑Khata, Branch, Hyderabad.

4. On 22‑11‑1981 at about 10.00 a.m., the respondent left his duty in Gari‑Khata Branch without permission and went to New Cloth Market Branch where he incited and compelled the Cashiers not to accept unsorted cash and to return the cash brought in the Branch for deposit by Messrs Yaseen Glass Bangle Industries. He became rude and disorderly and aggressive and attempted to assault Qamar Abbas Rizvi, the Manager of that Branch and that he had abused and shouted at the Manager. The allegation was that he displayed disorderly behaviour in the New Cloth Market Branch of the appellant‑Bank. He was, therefore, suspended on 25‑11‑1981 and a charge‑sheet was issued against him on 24‑11‑1981.

5. The said charge‑sheet, dated 24‑11‑1981 was offered to the respondent who refused to receive it and the same was sent to the respondent by registered post alongwith a letter. The respondent was said to have failed to submit a reply and an enquiry was held on 16‑12‑1981. In the meantime an application was given by the respondent to defend himself. According to the management, in the interest of justice and in order to give a chance to the respondent the enquiry was re‑arranged and the copy of the charge‑sheet was personally handed over to him. The enquiry was fair and the respondent had shown confidence as per his letter, Exh.R/5. The respondent further did not reply the final show‑cause notice and, therefore, he was dismissed. He filed a departmental appeal and hence it contended by the management that the grievance application was premature and not maintainable.

6. I have heard the arguments of the learned counsel Mr. Ghulam Rasool Qureshi for the appellants and the learned Advocate for the respondent, Mr. Wasiullah Qureshi.

7. It is necessary to go through the enquiry conducted by the enquiry officer and give the synopsis of the evidence so that we arrive at a better conclusion. The charge‑sheet at page 23 of the Lower Court record carries the following five charges: ---‑

"It is alleged against you that: --‑

(1) On 22nd November, 1981 instead of attending duty at your place of posting, you unauthorisedly visited our New Cloth Market Hyderabad branch during working hours at about 10.00 a.m. and asked the cashiers of the branch to refuse to accept the unsorted currency notes, which were being tendered by the customers of the branch for the deposit in their accounts at that time.

(2) The cash tendered for the deposit to the account of Messrs Yasin Glass Bangle Industries by their representative Mr. Iftikhar Ahmad was accordingly refused for deposit in their account on the ground that the currency notes were unsorted. On the insistance of the customer to the cashiers to accept the currency notes according to the usual practice, you incited and compelled the branch cashiers to return the cash altogether to the representative of Messrs Yasin Glass Bangle Industries.

(3) On asking the cashiers by the Branch Manager Mr. S. Qamar Abbas Rizvi to accept the cash you became rude and aggressive and rushed to the manager's cabin and attempted to hurt him. You also started shouting, abusing and threatened to kidnap him in case further instructions were given by him to the cashiers.

(4) Your un-authorised visit to New Cloth Market, Hyderabad branch during normal working hours and subsequent show of rowdyism and disorderly behaviour in the branch brought a bad name to the branch in particular and the institution in general as the same was witnessed by other customers too.

(5) Due to your above willful disorderly behaviour during the working hours at our New Cloth Market Hyderabad branch, the branch in particular and the institution in general was deprived of the deposits resulting in loss of business to the institution from which you earn your bread and butter.

The above‑mentioned acts of disorderly behaviour during working hours, willful insubordination /disobedience of lawful order of your superior and willful loss to your employer's business amount to gross misconduct and would warrant severe disciplinary action against you under the Efficiency and Discipline (Banks a Financial Institutions) Rules, 1975, as amended by the Second Wage Commission Award.

You are, therefore, hereby called upon to show cause in writing within three days of the receipt of this letter as to why severe disciplinary action under the Efficiency and Discipline (Banks and Financial Institutions) Rules, 1975 as amended by the Second Wage Commission Award, should not be taken against you. Your explanation should be addressed to the undersigned.

In case you fail to submit your explanation within the specified time, the management will be free to proceed ahead in taking action against you in the matter without any further reference to you.

Sd/‑

Vice‑President."

8. In the written reply of the respondent to the charge‑sheet at page 27(A/7), the respondent has denied the incident and the charges levelled against him and he said that the charges are fabricated because he was an office‑bearer of the Collective Bargaining Agent Union and the management is mixed up with the rival group. He also said in the explanation that the charge‑sheet as delivered to him was time‑barred.

9. The enquiry was held by the enquiry officer and prosecution witnesses, namely, Mohammad Akhtar Pathan, Qamar Abbas Rizvi, Mohammad Aslam, Fazlur Rehman and Ata Muhammad were examined and for the defence, the respondent Mohammad Ishaque Kundan and Ashrafullah were examined.

10. On 9‑3‑1982, the respondent Mohammad Ishaque Kundan showed confidence on this enquiry, held by the enquiry officer.

11. Mohammad Akhtar Pathan, prosecution witness No.1 has stated as under: --‑

"On 22‑11‑1981, Qamar Abbas Rizvi made a report to the tonal Office, Hyderabad, that Mohammad Ishaque Kundan at 10.00 a.m. visited his branch at New Cloth Market, and prevented the cashier from accepting unsorted cash and hence the unsorted cash of Messrs Yasin Glass Bangle Industries was returned. Mohammad Ishaque Kundan then entered into the office of the Manager, Qamar Abbas Rizvi and abused and shouted at him. He also shouted that he would abduct the manager."

12. The evidence of Qamar Abbas Rizvi is as under: --‑

"On 22‑11‑1981 at 10.00 a.m. during working hours two members of the union, namely, Abid and Ishaque Kundan entered his branch and prevented the cashier not to accept the unsorted currency notes with the result that the currency notes brought for deposit by Messrs Yasin Glass Bangle Industries were returned. I advised the cashier to accept the cash on which the two members of the union entered the cabin and threatened him that they would not tolerate this state of affairs. Ishaque Kundan threatened that I will be abducted. This matter was reported to the Zonal Office in writing."

13. The evidence of Mohammad Aslam, Assistant, New Cloth Market Branch is to the effect that Ishaque Kundan came at the New Cloth Market Branch and entered the office of the Manager and threatened that he would be abducted. He uttered words which were not decent.

14. One Fazlur Rehman Soomro states that non‑co‑operative movement was going on when Ishaque Kundan in a routine came there and he wished us well and then went away.

15. Ata Mohammed, the last prosecution witness states that he was sitting at his table when Ishaque Kundan and Abid came at Cash Counter and then went in the cabin of the Manager. They both threatened the Manager.

18. Apart from the respondent, witness who was examined in defence is Aahraful Islam who has stated that Kundan was in the office at his (sari‑Khata Branch from 9.00 a. m. to mid‑day.

17. The evidence of prosecution witness in the enquiry revolves round one fact, namely, Ishaque Kundan leaving his Branch on 22‑11‑1981 at 10.00 a.m., and reaching the New Cloth Market Branch and interfered with the work of the cashier and then entered into the office of the Manager and uttering abusing language and advancing deadly threat of abducting Qamar Abbas Rizvi. The evidence of Qamar Abbas Rizvi is very important and there is no reason to disbelieve it. He is supported in this respect by Mohammad Aelem, Ate Mohammad and Fazlur Rehman Soomro. Indeed some of the witnesses have favoured the respondent in so far stating that he did not leave his Branch at Gari‑Khata and the witness who stated that Os came to New Cloth Market and only offered good wishes. The overwhelming evidence against the respondent is that he left his Branch office at Gari‑Khata and interfered with the work of the cashiers at New Cloth Market Branch and then showed disorderly behaviour in abusing Qamar Abbas Rizvi with a deadly threat that he would be abducted. The charge is proved against Mohammad Ishaque Kundan, the respondent and the nature of threat as advanced by the respondent carried with itself a dangerous behaviour of respondent, namely, that he would get abducted the Branch Manager. In Hyderabad the abductions of the shopkeepers and other important persons was in those days quite frequent and if a responsible person of a Bank could advance these threats it is a clear mis-behaviour amounting to misconduct to say the least. Unfortunately the incident is divided into 5 charges but it is only one incident which in different parts carry all the 8 charges even though the respondent be absolved from certain charges he cannot be absolved from the main charge that he went at 10.00 a.m., to the New Cloth Market Branch and showed disorderly behaviour to Qamar Abbas Rizvi, the Branch Manager and gave nerve wreaking threat of abduction. This threat is sufficient to bring the Branch Manager under nervous strain. Clear out misconduct appears to be committed by the respondent. As for his defence is concerned that he did not leave the office of his Branch and he did not commit any acts as alleged in the charge‑sheet does appear to be false. The story covered in the allegations cannot be concocted and a particular date and particular time is given and in support even by those witnesses who are apparently in favour of the respondent. Qamar Abbas Rizvi cannot concoct the story as divulged in the charge‑sheet. In the second dismissal order the charges, namely, 3 and 4 said to be proved which appears to carry a typographical mistake as the charge No.1 is a basic charge which is proved on all score. Unnecessarily the main story is broken into 5 charges by the story as narrated by Qamar Abbas Rizvi carries all the charges and respondent is undoubtedly guilty of misconduct.

18. The learned counsel of the respondent has raised certain legal objections. The first legal objection is that the charge‑sheet was time -barred. The time‑bar issue was answered by both the learned Presiding Officers, namely, the order, dated 27‑4‑1983 by Mr. Mukhtar Ahmad Junejo and also by Mr. Naseer Hussain Jaffery in his impugned order. One Nooruddin in paragraph 4 of his affidavit has stated that the charge‑sheet and the suspension letter were offered to the respondent who refused to receive the same the charge‑sheet was received in the Branch on 24‑11‑1981 and the suspension letter was received in the Branch on 25‑11‑1981. These documents contained the endorsements that the respondent refused to receive delivery of the same. The letter of suspension mentioned the fact that a charge‑sheet, dated 24‑11‑1981 was issued against the respondent. In these circumstances, the respondent should have called the copies of the charge‑sheet. The charge‑sheet was sent to the respondent by registered post, A/D at his residential address. It was not alleged if the address mentioned in the letter was incorrect. It was held in an authority cited in 1982 PLC 676 that when the charge‑sheet was sent through registered post in a cover properly stamped and addressed the workman was deemed to have been served with the charge‑sheet under Order 15(4) of the Standing Orders Ordinance, 1968, even if the A/D receipt was not signed by the workman concerned. Accordingly, I feel that the respondent shall be deemed to have been served with the charge sheet on 5‑12‑1981, namely, the date mentioned in the A/D receipt. I; therefore, hold that the charge‑sheet was not time‑barred.

19. Mr. Wasiullah Qureshi referred to the second show‑cause notice and cited an Authority reported in 1984 P L C 1506. In this citation the Disciplinary Rules of Banks as enunciated in the Ist Wage Commission Award were discussed. The second show‑cause notice under para. 253 (5) was held mandatory but the second show‑cause notice under Standing Order 15(4) was not necessary. This citation does not help the respondent. In the citation an enquiry was held under 1st Wage Commission Award and not under Standing Order 15(4) of the Standing Orders Ordinance, 1968.

20. The learned Labour Court has come to the conclusion that the charges Nos.2 and 5 are proved then the charges Nos.1, 3 and 4 should be deemed to have not been proved or at-least they are doubtful. This type of reasoning is fallacious. The main incident took place on, 22‑11‑1981 for which there is overwhelming evidence as reproduced above. Clearly in the evidence the respondent cannot be absolved from disorderly behaviour and advancing threats which were deadly and dangerous. There is no doubt that the respondent is guilty of gross misconduct.

21. I, therefore, set aside the impugned order of the learned Labour Court and allow this appeal.

A. E.

Appeal allowed.

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