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Appeal No. KAR‑204 of 1982, decided on 9th December, 1982
‑‑S, 25‑A‑‑Grievance notice and petition‑‑Limitation‑‑Rules of Establishment providing remedy of departmental appeal‑‑Petitioner informed that decision would be communicated in due course‑‑Petitioner, in circumstances, held, could wait for a reasonable time for decision on his appeal.
G.M. National Bank of Pakistan v. Muhammad Javed Khan 1981 P L C 542 rel.
‑‑Ss. 25‑A & 38(3)‑ Dismissal for misconduct‑‑Grievance petition against dismissal‑‑Bank cashier charged for misappropriation‑‑Charge not established on basis of evidence on record‑‑Appellate Tribunal taking view that though charge not established accused was negligent in performance of his duty‑‑Impugned dismissal order and order of Labour Court dismissing grievance petition, in circumstances, set aside awarding re‑instatement without back benefits.
M.M. Jeelani for Appellant.
Samiullah Khan for Respondent.
This appeal is directed against the decision of the learned Vth Labour Court, given on 2‑5‑1982, dismissing the grievance petition of the appellant, challenging the dismissal from service in the respondent bank.
2. The facts of this case, shortly stated, are that the appellant, while he was posted as Cashier at the Victoria Road Branch of the respondent bank, was charge‑sheeted on 27‑6‑1979, for misappropriating a sum of Rs.3,000. The charge‑sheet against the appellant was based on the complaint of Messrs Starfynhs Ali Ltd. alleging that on, 26‑6 1979, their Manager, Khurshid Hussain, had deposited a sum of Rs.18,860 by 2 pay in‑slips, one for Rs.15,860 and the other for Rs.3.000 but the Cashier the appellant' had stamped only one receipt for Rs.15,860 whereas the slip for Rs.3,000 was returned unstamped, suggesting that the said amount of Rs.3,000 had been unaccounted for and had perhaps been misappropriated. The appellant in his detailed reply to the charge‑sheet, dated 28‑6‑1979, denied that he had misappropriated Rs.3,000 deposited by Messrs Starfynhs Ali Ltd., and asserted that in fact the manager of the said company had deposited only Rs.15,860 and not Rs.18,860, as claimed by the company. As the explanation of the appellant was not considered satisfactory by the respondent bank, a domestic enquiry was ordered and it is the case of the respondent bank, that this domestic enquiry was held by Ashiq Hussain, an officer of the Personnel Division of the respondent bank. As the Enquiry Officer in his report, gave the finding that the charge of misappropriating a sum of Rs.3,000 had been established against the appellant, the latter was dismissed from service, vide the bank s letter, dated 21‑11‑1979. Before the letter of dismissal was issued, the appellant was served with a final show‑cause notice, dated 4‑9 1979, to which the appellant submitted an explanation, dated 10‑9‑1979, but this explanation was also not found satisfactory by the respondent bank and was accordingly rejected. The appellant preferred an appeal to the President of the respondent bank on 17‑12‑1979, against the order of his dismissal from service. He submitted a reminder in respect of his appeal by his letter, dated 1‑3‑1980. He was informed through the bank's letter dated 13‑3‑1980, that his case was being put up before the Staff Review Committee and that the decision would be communicated to him in due course of time. It appears that the departmental appeal of the appellant has till today not been decided by the bank authorities. The appellant, after waiting for a reasonable time for the decision on his departmental appeal, preferred a grievance petition on 26‑5‑1980, after serving the requisite grievance notice upon the respondent bank, to which no reply was vouchsafed by the respondent bank.
3. The learned Labour Court has dismissed the appellant's grievance petition on 2 grounds, firstly, that the grievance petition was time‑barred as it had not been filed within 3 months of the order of dismissal, dated 21‑11‑1979, or his grievance notice, dated 13‑1‑1980, and secondly that it had been established that the appellant had misappropriated an amount of Rs.3,000 which had been deposited by the manager of business Starfynhs Ali Ltd.
4. Mr. M.M. Jeelani, the learned counsel for the appellant employee, has assailed both the findings of the learned Labour Court. In respect of the findings that the grievance petition of the appellant was time barred, the learned counsel submitted that admittedly the appellant was dismissed from service vide letter, dated 21‑11‑1979, which was actually delivered on the appellant on 27‑11‑1979, but as the Service Rules of the bank provide for a departmental appeal, the appellant, within the period prescribed for the filing of such an appeal, had preferred an appeal to the President of the bank and it had been acknowledged by the bank, vide its letter, dated 13‑3‑1980 that the appeal had been received and it was being put up before the Staff Review Committee, whose decision would be communicated to him in due course. It was contended by Mr. M. Jeelani that the appellant was not only entitled, under the Rules of the bank to prefer a departmental appeal and such appeal was actually filed by him within one month of the issuance of the letter of his dismissal from service, but that further he was entitled to wait for a reasonable time for the decision on his appeal, before serving a grievance notice upon the employer and preferring a grievance petition to the Labour Court. In support of his contention, the learned counsel relied upon the decision of this Tribunal in the case of National Bank of Pakistan v. Idrees Ahmad Raja, decided on 18‑5‑1982. In that case also, one of the issues, which arose for consideration by this Tribunal was whether the employee was entitled, in case he had preferred a departmental appeal under the Rules to the authorities, to wait for a reasonable time for a decision on his appeal before serving a grievance notice on the employer, it was held that he was entitled to do so. Reliance was placed on the said view upon the decision of the Supreme Court in the case of Senior Vice‑President G.M. National Bank of Pakistan v. Muhammad Javed Khan 1981 P L C 542. The Supreme Court while rejecting the contention made on behalf of the bank that either the grievance notice or the grievance petition was belated, observed as follows: ‑
"Learned counsel argued that a decision of the head office was communicated to the Zonal Office in Lahore vide letter, dated 16/18‑12‑1974, whereby such employees as the respondent herein were held as not eligible for the above mentioned claim. The aforesaid letter duly answered representation, which on the subject had been made by the employee on 9‑4‑1974. At that stage the employee sent a 'grievance notice', dated 18‑7‑1975 under section 25‑A of the Ordinance. He was informed on 1‑8‑1975 that the matter was under consideration and will be attended to in due course. The aforesaid letter, dated 1‑8‑1975 reads as follows: ‑
'With reference to his application, dated 18‑7‑1975, Mr. Javid Khan, Junior Clerk, T.S.P./Z.S., Lahore is advised that his case is under our consideration and we shall advise him as soon as the decision is taken.'
On 25‑8‑1975 the employee filed a petition in the Labour Court. It was argued that it was filed after lapse of a period of 1 year and 8 months from the original refusal, dated 18‑12‑1974 and was, therefore, time‑barred when examined in the light of subsection (4) of section 25‑A of the Ordinance. The contention has no merit. The cause of approaching the Labour Court arose, on 1‑8‑1975 and the employee could file an application within a period of two months therefrom as stated in subsection (4) of section 25‑A. In this case his application filed on 25‑8‑1975 was thus well within time. When confronted with this situation learned counsel submitted that what he really meant was that the 'grievance notice' sent on 18‑7‑1975 was itself time‑barred inasmuch as it should have been sent within 2 months from 18‑12‑1974 was turned down. This plea also has no substance inasmuch as 'grievance notice' has to be sent within three months of the day on which cause of such grievance arises. In the instant case the letter, dated 18‑12‑1974 (some time also described as 10‑12‑1974), it appears was a sort of general advice from the Head Office to the Zonal Office (and not any direct communication addressed to the employee). It is only when he learnt that his claim was not being accepted just on a general plea, that he sent the requisite grievance notice which has not been shown to be time‑barred. Here it may be stated that in reply to the final 'grievance notice' sent by the employee he was never informed that it was being rejected as it was out of date. Rather he was told that the matter was (still) under consideration. In the circumstances the pleas regarding any defect in the relevant 'grievance notice' on the ground of limitation cannot be accepted. The High Court held that it was a recurring cause and from that point of view notice was not time‑barred. We need not decide that aspect of the matter and leave it open for consideration in some appropriate case and for the purpose of the present order it will be sufficient to hold that on the facts and in the circumstances abovementioned the grievance notice was not time barred with reference to the date mentioned above in detail."
5. It next falls to be considered whether the charge of misconduct was established against the appellant. Now the most imsportant witness in the case to establish the charge that 2 separate amounts, one of Rs.15,860 and the other of Rs.3,000 totalling Rs.18,860, were deposited with the appellant by Messrs Starfynhs Ali Ltd. was their Manager, Khurshid Hussain, who is said to have deposited the said amounts with the appellant. However, the said witness was not examined before the learned Labour Court. An attempt was made to examine him before this Tribunal but the attempt was unsuccessful as it was reported that he had left the services of Messrs Starfynhs Ali Ltd., and neither the respondent bank nor the said company were aware of his present whereabouts. There is no evidence to establish that the witness was examined even before the Enquiry Officer as the enquiry proceedings have not been brought on record and are stated to be not available. The non‑examination of this witness has dealt a serious blow to the case of the respondent bank as in the absence of the evidence of this witness there is no direct testimony to contradict the assertion of the appellant that only an amount of Rs.15,860 was deposited with him by Messrs Starfynhs Ali Ltd. , for which he had signed the deposit slip of the company.
6. The second serious draw back in this case is that the complaint of Messrs Starfynhs All Ltd. on the basis of which the proceedings have been initiated against appellant has not been brought on record and is not available, although reference to this complaint has been made in the charge‑sheet, dated 27‑6‑1979, served upon the appellant. The non‑production of the said complaint has caused a serious lacuna in the case against the appellant. Moreover. the said complaint was withdrawn by Starfynhs Ali Ltd., by its letter, dated 23‑9‑1979, which reads as follows: ‑
"The Manager,
Muslim Commercial Bank Ltd.,
Abdullah Haroon Road Branch, Karachi.
Subject: ‑ Our complaint, dated 26th June, 1979 regarding short credit of Rs.3,000 in our Account 607.
Dear Sir,
This is to draw your attention to our complaint of the 26th of June, 1979 stating that our Manager, Mr. Khurshid Hussain had deposited a sum of Rs.18,860 (Rupees Eighteen thousand eight hundred sixty) whereas the total credit to our Account was given by Rs.15,860 (Rupees fifteen thousand eight hundred sixty only) by your Bank, thus an amount of Rs.3,000 was shortly credited by you. Therefore, due to some unfortunate misunderstanding an amount of Rs.3,000 (Rupees three thousand only)‑ was made on issue of circumstances.
Now, this is to inform you that having made a thorough internal investigation, I have come to the conclusion that due to some error on the part of our Manager Mr. Khurshid Hussain, the said amount of Rs.3,000 (Rupees three thousand only) was mislaid and not deposited alongwith a sum of Rs.15, 860 (Rupees fifteen thousand eight hundred sixty only) and not Rs.18,860 (Rupees eighteen thousand eight hundred sixty only).
Therefore, in all sincerity, I would like to withdraw my complaint, dated 26‑6‑1979 and absolve your bank of the responsibility of the said amount of Rs.3,000 (Rupees three thousand only).
Our relations with you have always been very cordial in the past and I sincerely hope that it will remain so in future also. Thanking you.
Yours faithfully,
(Sd.)
Ashfaq Malik,
Managing Director."
7. Muhammad Yousuf, who was working with Starfynhs Ali Ltd., for 5 years and who was examined as a Court witness in the learned Labour Court, has stated that the signature on the aforesaid letter of Ashfaq Malik, the Managing Director of the company, with whose signatures he is quite familiar. The withdrawal of the complaint by Starfynhs Ali Ltd., has also been admitted by the bank's witness, Ashiq Hussain, who has stated that he had received this letter. No doubt, the company wrote a third letter, dated 15‑10‑1979, to the bank, re‑asserting the charges of misappropriation of their amount of Rs.3,000 and denying the issuance of the letter, dated 23‑9‑1979, but this letter of the 15‑10‑1979, and the reassertion of the charges against the appellant cannot be taken seriously in view of the contradictory stands taken by the company from time to time.
8. The third serious draw back in the case is that though it is the case of the respondent bank that a domestic enquiry was held against the appellant, the domestic enquiry proceedings have not been produced. The explanation given by the Enquiry Officer, Ashiq Hussain, in his evidence before the learned Labour Court, for the non‑production of enquiry proceedings is that at the request of the appellant, he had given the original proceedings to his peon to take the same to the photostat copying machine operation for preparing copies, but when the peon went on the following day to collect the original and the photostat copies, he was informed that the appellant had collected both the copies. It has further been claimed by witness, Ashiq Hussain, that he made efforts to recover domestic proceedings from the appellant but his efforts were not successful. Now, in the first place, neither the peon who was asked to get photostat copies prepared was examined nor the proprietor or the operator of the photostat copying machine was examined to substantiate the aforesaid allegations. Moreover, witness Ashiq Hussain has made completely contradictory statements in his cross‑examination. He has admitted that he had submitted the original enquiry proceedings alongwith his enquiry report to his Senior Vice President. If all the papers were submitted to the Senior Vice‑President, it is not understood how the said proceedings were returned to him as he had already completed the enquiry proceedings and submitted his report. Another contradictory statement made by the witness is that the appellant had taken away the enquiry proceedings from his possession though in his written affidavit, in paragraph 7 thereof, he has asserted that the enquiry proceedings were taken away by the appellant from the operator of the photostat copying machine. There is one more a circumstance, which casts further doubts upon the story given out by Ashiq Hussain and his veracity in this behalf. ordinarily, the report of the Enquiry Officer forms part and parcel of the enquiry proceedings. As such, if the enquiry proceedings had been sent to the photostat copying machine for making copies, the report of the Enquiry Officer should also have accompanied the said papers and it also should have become unavailable. However, the report of the Enquiry Officer has been produced, though it has not been explained how it was saved or become available.
9. Mr. Samiullah Khan, the learned counsel for the respondent bank, however, relied upon the writings of the appellant on the pay‑in‑slip and its counterfoil in support of the bank's contention that the appellant has misappropriated Its. 3,000 deposited by Messrs Starfynhs Ali Ltd. The counterfoil was not produced before the leaned Labour Court but the same had been produced before this Tribunal by Sheikh Ghulam Hussain, the Controller of Branches of the respondent bank. The deposit slip shows both in words and figures that an amount of Rs.15,860 had been deposited. However, on the top left hand corner of the deposit slip, there is a figure of 18,860, which has been scored out and replaced by the figure 15,860. Furthermore, on the back of the deposit slip, the number and denominations of the notes deposited, have been noted. It appears that originally the noting showed 143 notes of Rs.100, 91 notes of Rs.50 and one note of Rupee 10 making a total of Rs.18,860, but the figure of 143 notes of Rs.100 had been corrected to read 113 notes of Rs.100 amounting to Rs.11,300 and the total of the amount deposited had been corrected from Rs.18,860 to Rs.15,860. These corrections by themselves do not lead to the inference that the appellant has misappropriated a sum of Rs.3,000 particularly, in view of the circumstances indicated above and the explanation submitted by the appellant, dated 28‑6‑1979 in response to the charge‑sheet, dated 27‑6‑1979. In his explanation, the appellant has stated as under: ‑
"At about 10‑15 a.m. Mr. Khurshid Hussain of Messrs Starfynhs Ali Limited came on the counter to deposit cash. He handed over the book of pay‑in‑slip alongwith a bundle of notes duly tied up with rubber band which contained two different bundles (one of Rs.100 and the other of Rs.50) in rubber band a 10 rupees note. While giving the pay‑in‑slip and the bundle of notes to me, Mr. Khurshid Hussain requested me to release him immediately because he had something to do somewhere. As it was the time of great rush on the cash counter I was trying to handle the work sharply. Therefore, I took and opened the bundle, where I found a written denomination of notes on each bundle, which were as follows: ‑
On the bundle of 100 rupees notes, total number of notes was written as 143 within a circle and the total number of notes on the bundle of Rs.50 was written as 91 within a circle. To accede to the request of Mr Khurshid Hussain and in 'good faith' I copied the above denominations on the book of the pay‑in‑slip and totalled it to Rs.18,680 and likewise, I entered the same total on the face of the pay‑in‑slip but erroneously the above total of Rs.18,860 was written as 18,860 on the face of the pay‑in‑slip. Then, I stamped the pay‑in‑slip. While entering the amount on the 'Cash Received Voucher Sheet' from the pay‑in‑slip I found that the party had filled in the pay‑in‑slip with the amount of Rs.15,860. At this discrimination I checked the casting of denomination written by me on the back of the pay‑in‑slip and it was found correct. Then I started counting the bundle of notes and found that the bundle of 100 rupees note was 113 actually in number instead of 143. And the bundle of 50 rupees notes contained 91 therein. Therefore, denomination on the back of the pay‑in‑slip was accordingly corrected by me. I corrected the figure that was written by me earlier at the pay‑in‑slip but unfortunately forgot to correct that figure at the counter‑foil of the party, which was also overlooked by the signing officer. Mr. Khurshid Hussain was standing before me throughout the time the formalities were being completed by me. I returned the pay in‑slip book to him who checked the same on the counter as usual and went away."
10. It may be pointed out that the procedure in the bank as explained by Court witness, Ghulam Hussain is that when any money is deposited by a person with the Cashier, the latter enters the amount in the deposit slip and the counter‑foil as well as notes the amount on the Cash Receipt Voucher Sheet, whereafter the said sheet as well as the deposit receipt book are sent through a peon to an officer of the bank who verifies the amounts and signs both on the deposit slip as well as on the entry in the Cash Receipt Voucher Sheet, and then hands over the papers to the peon who returns the deposit slip book to the person depositing the amount. It appears that in the instant case, this procedure was adopted. The Cash Receipt Voucher Sheet in question would, therefore, have been an important piece of evidence in determining what amount had in fact been deposited by Khurshid Hussain and whether the statement of the appellant or the complainant said to have been made by Khurshid Hussain is correct, but the bank did not care to produce the said sheet before this Tribunal nor examined the officer who has signed the cash receipt voucher sheet.
11. The only other piece of evidence to which Mr. Sami Ullah Khan could refer in support of the case of the bank was that on the counter foil of the deposit slip, which was returned to Manager Khurshid Hussain the appellant had written in his own hand the figure of Rs.18,860. Now, in the first place, the said counter‑foil has not been produced. Moreover, the appellant, in his explanation referred to above, has stated the circumstances in which this figure was written and was not scored out. The explanation is plausible and gains support from the fact that the deposit slip itself shows an amount of Rs.15,860 both in words and figures, and further even the complaint made by Messrs Starfynhs Ali Ltd. was withdrawn.
12. For the reasons discussed by me above, I am of opinion that the charge of misappropriation against the appellant has not been established and hence he would be entitled to re‑instatement in service. I accordingly, direct the respondent bank to re‑instate the appellant with immediate effect.
13. The appellant, who is a Cashier in the bank, however, appears to have been negligent in the performance of his duties. He himself has admitted in his explanation referred to above, that he wrote the amount of Rs.18,860 on the face of the deposit slip and also the numbers and denominations of the notes deposited on the back of the deposit slip without counting the same. Moreover, he admittedly wrote a wrong amount i.e. Rs.11,680 on the face of the counter‑foil of the deposit slip which was neither the actual amount said to have been deposited by Khurshid Hussain nor the amount stated on the bundles of notes deposited by Khurshid Hussain with him. This amount was neither corrected nor scored out by the appellant before delivering the deposit slip to Khurshid Hussain. Perhaps, if he had corrected the said amount or scored it out, he would have saved the bank perhaps himself from e lot of embarrassment. In the circumstances, I am of the view that the appellant is not entitled to any back benefits.
14. In the result, the appeal is allowed subject to the modification stated above.
A.E.
Appeal allowed.
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