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Appeal No. JG‑396 of 1984, decided on 18th March, 1985.
‑‑‑ Misconduct‑‑Fraud‑‑Bank employee claiming T.A./D.A. fraudulently‑‑Bills submitted but not yet passed‑‑View that act committed amounted to attempt to fraud repelled‑‑Held: Bills signed and submitted to proper authority hence so far as accused was concerned misconduct stood committed and in case amount of bills was received accused would have been guilty of misappropriation as well as defrauding the Bank.
‑‑‑--Dismissal for misconduct‑‑Application of mind independently by competent authority‑‑Essential‑‑Bank employee dismissed for mis conduct‑‑Order passed by Zonal Chief not competent to do so‑‑Zonal Office instead of sending complete file and enquiry report to Head Office for orders by Executive Vice‑President (competent authority) sending letter and expressing opinion that charge stood established‑‑Same opinion held up by Head Office‑‑Neither record of enquiry perused nor independent opinion formed by Head Office‑‑Dismissal order, in circumstances, held, not sustainable.
‑‑‑Ss. 25‑A & 38(8)‑‑Wage Commission Award‑‑Right guaranteed by such Award‑‑Enforceable by application under S. 25‑A.
‑‑‑S. 25‑A‑‑Reinstatement‑‑Back benefits‑‑Impugned dismissal order passed without due consideration by competent authority‑‑Technical defect‑‑Back benefits disallowed.
Irshad Ali Mian for Appellant.
Respondent in person.
Date of hearing: 16th March, 1985.
The decision dated 25‑6‑1984, passed by the Learned Presiding Officer, Punjab Labour Court No.5, Faisalabad has been challenged whereby the respondent was directed to be reinstated in service without back benefits. The respondent has filed cross‑objections to claim back benefits.
2. The allegation for which the respondent was dismissed was that he had been sent on relieving duty as cashier to branch Pir Abdul Rehman and the respondent stayed there but claimed T.A./D.A. fraudulently. The learned Lower Court set aside the dismissal order for the reasons that the bills were not passed, therefore, the act committed by the respondent was only an attempt to defraud the bank. If the respondent had received the amounts of the bill he would have been guilty of misappropriation as well as defrauding the bank. Since the bills were signed and produced by him to the proper authority and they had been forwarded, so for as the respondent's act is concerned misconduct was committed if the allegations stood proved. One witness Muhammad Hanif was examined in the enquiry who deposed that the respondent had taken a house at rent of Rs.100 at Pir Abdul Rehman from Mr. Ghazanfar Ali Shah and that he used to leave the station on week end to his home Haveli Bahadur Shah. The respondent produced an affidavit of Ghazanfar Ali Shah and the learned Lower Court relied upon it. Since the appellant had no opportunity to cross‑examine the said person his statement could not be used. If the respondent had not produced the affidavit of Ghazanfar Ali Shah it could be said that it was the duty of the appellant to examine the said person. Since Ghazafar Ali Shah was supporting the respondent it was not a wise step for the appellant to cite the same person as a witness. The respondent should have examined Ghazanfar Ali Shah before the enquiry officer if he wanted to take the benefit of the evidence of the said person. Since Muhammad Hanif supported the prosecution case and stood firm in cross‑examination the charge was duly established. The other reasons given by the learned Lover Court are also not cogent. It is observed the handwritten proceedings of the enquiry should not have been destroyed. There is no evidence that the handwritten proceedings were signed by the Enquiry Officer, the witnesses and the respondent. Since they were rough proceedings their retention was not necessary. The Enquiry Officer, the witnesses and the respondent signed the typed proceedings so the said record formed part of the proceedings of the enquiry.
3. The order of termination was passed by the Zonal Chief who admittedly was not competent. The arguments of the learned counsel for the appellant have no force that the Zonal Chief only conveyed the orders. Letter Exh.R.3 sent by the Executive Vice‑President Personnel Division Head Office Karachi does not disclose that the file had been sent there and the Head Office after perusing it came to the conclusion that the charge had been established. Reference is made to a letter sent by the Zonal Office which shows that the Zonal Office had expressed its opinion that the charges had been established and that opinion was merely upheld by the Head Office. Since the competent authority did E not peruse the record of the enquiry and did not form independent opinion it cannot be said that the respondent was punished by the competent authority. The impugned order of dismissal, therefore, was not sustainable and on this ground was rightly set aside.
4. Certain other objections have also been raised in the memo of appeal on behalf of the appellant, which are being discussed below.
5. It has been argued that the terms and conditions of the employees of the bank are governed by the Wage Commission Award but the same Award not being actionable under section 25‑A, the Labour Court had no jurisdiction to decide the matter. According to section 38(d) decisions of the Wage Commissions re the Award of the Commission and all the provisions of I. R. O. are applicable to it. Section 25‑A being one of the provisions of the I.R.O, it applies and on the basis of any right guaranteed by the Wage Commission Award an application under section 25‑A is maintainable.
6. The other point argued is that the Court had no jurisdiction since the dismissal of the respondent had no connection with any industrial dispute. The provision of section 2 (xxviii), to the effect that those persons are also covered by the definition of workman on account of whose dismissal an industrial dispute had been brought or who have been dismissed on account of an industrial dispute, include those persons who otherwise are not covered by the definition. The respondent being a cashier was not employed in any supervisory capacity nor had administrative or managerial powers, therefore, was covered by the definition of workman and it was not necessary that his dismissal should have any connection with any industrial dispute.
7. The finding of the learned lower Court is not correct that the copy of the enquiry proceedings of the report should have been supplied to the respondent. It is not necessary to supply the copies of the proceedings unless they are demanded. Since the respondent gave reply to the second show‑cause notice it means that the copies of the enquiry report had been supplied to him. Needless to say that without copy of the report he was not in a position to give the reply.
8. Back benefits were rightly disallowed to the respondent because as has been discussed above, he succeeded only on a technical point which is that the appellant failed to establish that the competent authority had considered the case for dismissing the respondent.
9. As a result of the observations made above, the appeal of the appellant as well .as cross‑objections of the respondent are dismissed.
A. E.
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