PLJ 2010
Present: Shahid Anwar Bajwa, J.
UNITED BANK LIMITED through Power of
Attorney--Petitioner
versus
Constitutional Petition No. S. 492 of
2009, decided on 21.10.2009.
Industrial Relations Act, 2008 (IV of
2008)--
----S. 55--Constitution of
1980 PLC 981, 2005 SCMR 753, SBLR 2008 SC
79, 2007 SCMR 1143, SBLR 2007 Sindh 1109, 2009 PLC 254, 2008 SBLR 83, SBLR 2004
Sindh 1565 & 2003 PLC (CS) 1247, ref.
Mr. Mehmood Abdul Ghani, Advocate for
Petitioner.
Respondent No. 2 in person.
Date of hearing: 21.10.2009.
Judgment
The facts giving rise to this
constitution petition are that Respondent No. 2 was employed as an
Assistant/Teller by the petitioner bank. He entered into employment of
petitioner bank in 1974. On 11.5.2007 a charge sheet was issued to Respondent
No. 2. The substance of charges against him, as stated in the charge sheet, was
in the following words:--
"CHARGE SHEET
It has been reported against you by the
manager Compliance and Control (CCD) vide its report dated April 19,2007, that
while performing duties of Teller at Taimuria Branch, Karachi, you have
committed the following irregularities of serious nature which tantamount to
misconduct:--
(i) On
19.02.2007, you received an amount of Rs. 5,300/- in collection of Utility
(KESC) Bill of Consumer # AL-623866, which was not accounted for in the same
date in the Books of the Branch/Scroll Sheet, thus you embezzled/
misappropriated the entire Bill amount of Rs. 5,300/-.
(ii) On
19.04.2007, when the Consumer came in the Branch and complained for Arrears in
his Bill, you refunded the said amount.
(iii) The
claim of Citi Bank amounting to Rs. 3200/- as per following particulars, has
neither been accounted for nor settled by you as yet, although pointed out to
you at the time of receipt of claims particularly vide Branch letter dated
24.03.2007:
S. No. Consumer/ Amount Cash Details
Subscriber of Claim Received
No. Date
1 PTCL
Rs.
500/- 14.3.2007 Cash of Rs.
1840/
No. 6640352 received
by you but
accounted
for Rs. 1340/-
as
such diff. amount of
Rs.
500/- was pocketed
by
you
2 KESC Rs.
1,800/- 16.3.2007 Cash of
Rs.4,200/- received by
AL-543648 you
but accounted for Rs.
2400/-
as such diff. amount of
Rs.
1800/-was pocketed by
you.
3 KESC
Rs.900/- 18.9.2006 Cash amounting
to Rs.900/-
AL-765633 received
by you, but not
accounted
for as such Rs.
900/-
was pocketed by you.
2.
The Respondent No. 2 did not submit any reply to the charge sheet and
therefore an inquiry was ordered. The Respondent No. 2 contention in the
inquiry was that he had not done it deliberately and intentionally but when
there came certain complaints which related to dates of his duty he repaid the
amount. After report was submitted by the Inquiry Officer, employment of
Respondent No. 2 employment was terminated vide letter dated 19.7.2007.
3.
Being aggrieved by termination Respondent No. 2 served grievance notice
on 17.8.2007 and thereafter filed grievance petition in the 5th
4.
Learned counsel for the petitioner made the following submission:--
1. Since
Labour Appellate Tribunal has not been constituted, he has no remedy against
the impugned order and therefore the constitution petition would be
maintainable.
2. That
although Labour Court repeatedly came to the conclusion that there have been a
number of admissions on part of Respondent No. 2 regarding his alleged
misconduct even then its ordered reinstatement on the ground, in the words of
the Labour Court below that "punishment awarded to the applicant before
Labour Court appears harsh and he was not liable to be dismissed from service
and he was liable to be punished for reprimand or stoppage of his increment
etc."
5.
That it is sole and absolute discretion of the employer to decide as to
what punishment should be awarded to a employee who has been proved guilty in
domestic inquiry. Learned counsel in this regard relied on plethora of
judgments to which I will refer at appropriate place in this judgement.
6.
On the other hand, Respondent No. 2 who was present in person stated
that he wanted to argue his case in person. He argued that he had not done any
dishonest act. It had been human mistakes, innocent and without intention to
defraud and when pointed out he repaid the amount.
7.
I have given my anxious consideration to submissions made by the learned
counsel. I have gone through the record as well as case law cited by the
learned counsel.
8.
A perusal of the charge sheet indicates that allegation against the
employee was that on five different occasions he received amounts but did not
account for the same. Learned counsel referred to page 9 of the judgment where
it was observed by the learned Court below that inquiry proceedings produced by
the respondent proved that applicant in the inquiry had pleaded guilty of the
charge against him. This according to the learned counsel was first time in the
impugned judgment where admission of Respondent No. 1 was recorded. In the
second time on page 10 of the judgment the learned Court below stated that in
response to the question put by the Inquiry Officer Respondent No. 1 pleaded
guilty against the charges as contained in the charges sheet. Thereafter the
9. The banks operate in a system which is
a rigid and documented one. Under banking system at the close of each day if
cash is found in excess the employee has to state. Similarly if cash is found
short the employee has to state at the close of the day to the employer. In the
present case, there is no statement of the present respondent that when he
totaled the scroll he found cash Short. In fact in the case of first charge
amount of Rs. 5300/- was received by the respondent and he did not account for
it at all. The bill on which the amount received was produced in the Court
below and clearly bore stamp of 9.2.2007, initial of the petitioner and amount
of Rs. 5,300/-. If the petitioner had forgotten to mention this amount in the
scroll he should have stated at the end of the day that he had cash in excess
of Rs. 5300/- There is no such statement by the petitioner. Therefore there is
no longer a question of his being guilty of the charge. I do not think any
fault can be found with the order of the employer or with the order of the
10.
However the matter went further and learned
1. Pakistan
Tobacco Co. Ltd. v. Channa Khan & Others, 1980 PLC 981. The workman was
employed as Naik in Watch and
"The
First Junior Labour Court has found no flaw in the proceedings which led to the
order of dismissal but mitigating circumstances to disturb the order of the
dismissal and thereby substitute it with a termination of service. The
termination of service is not a punishment prescribed for misconduct under
Standing Order No. 15(2) consequent upon such finding having been arrived at in
accordance with the procedure prescribed by Standing Order No. 15(4). However,
under Standing Order No. 12(6) the services of an employee can be terminated
simpliciter for misconduct. There is a marked difference between the two
provisions accordingly, if the termination of service was not a punishment for
misconduct it could not be substituted for dismissal which is so prescribed
merely on the ground that subsection (5) of Section 25-A of the Industrial
Relations Ordinance empowered it to pass "such orders as may be just and
proper in the circumstances of the case." This expression refers to an
order passed in accordance with law as the words "just" and
"proper" reflect this meaning. This being so that First Junior Labour
Court could not substitute a punishment which is not prescribed under the garb
of the exercise of that power. Further, it is for the employer to assess as to
what punishment should be awarded for misconduct under the provisions of the
Statute; and if the employer chooses to award dismissal, the First Junior
Labour Court cannot sit in judgment over it and substitute it with a lenient
punishment."
2. Nazir
Ahmed Pathan & another v. The Muslim Commercial Bank Ltd. & Others,
SBLR 2008 SC 79. The workman in this case being a bank employees were found to
have committed misappropriation/embezzlement of customers money. After due
disciplinary process they were dismissed from service. They approached
3. Water
and Power Development Authority through Chairman, WAPDA House, Lahore & 2
Others v. Khawaja Abdul Waheed, 2005 SCMR 753. Facts in this case were that the
employee was charge sheeted with allegations of gross irregularities in
purchase and disposal of stores in the region and was consequently after due
disciplinary process dismissed. Federal Service Tribunal set aside the order of
removal and directed the employer to reinstate him with consequential benefits.
Leave to appeal was granted by the Supreme Court to consider whether Federal
Service Tribunal after upholding findings of the Departmental Authorities in
disciplinary proceedings about guilt of the respondent, was vested with power
to interfere with and modify the nature of punishment/penalty and to reduce the
same from removal of service to reduction in rank for two years. The Supreme
Court laid down law in the following words:--
"12. Charge of corruption/misappropriation was
proved against the respondent. Under such circumstances, the appropriate forum
for Departmental Authority, whose opinion shall be given due weight, unless
otherwise is shown. The Departmental authority knows better than anybody else
to decide such issue. After the charge of misappropriation/corruption is
established, the normal punishment shall be removal/dismissal from service.
Lenient view in such matters would destroy the fiber of discipline of service,
besides encouraging others to resort such illegal activities as to enrich
themselves by illegal means with impunity at the cost of welfare of the society
for whose benefit they are employed. We are of the view that the respondent was
not entitled to any leniency."
4. Ghulam
Mustafa Channa v. Muslim Commercial Bank Ltd. & Others, SBLR 2007 Sindh
1109.
5. Allied
Bank Limited through Attorney and others v. Syed Nasir Abbas Naqvi &
others, 2007 SCMR 1143. In this case the employee who was found to have cheated
in bank diploma examination was debarred from appearing in examination
conducted by the
"We
may agree with the learned counsel that ordinarily the High Court is not
supposed to interfere in the administrative functions and disciplinary matter
of public organizations in its constitutional jurisdiction unless it is found
that an order passed by an authority in its discretion was capricious arbitrary
or was passed in utter disregard of law. This is also not disputed that in
disciplinary matter, the departmental authorities have exclusive domain to
determine the quantum of punishment in the light of nature of charge and Court
may not substitute its decision in such matters but this is settled law that
the High Court in exercise of writ jurisdiction may look into the question of
legality of an order passed by an authority and consequently, we deem it proper
to examine the proposition in the light of the provisions of Section 25-A of
I.R.O., 1969."
11.
In this case Supreme Court held that penalty of stoppage of increment is
inadequate, it did not disturb reinstatement of the respondent in service,
modified penalty of stoppage of two increments to withholding his promotion for
a period of seven years with effect from date of order of dismissal. Although
Channa Khan's case was noticed in the leave granting order, it was not adverted
to when appeal was decided.
5. Iqbal
Ahmed v. Muslim Commercial Bank Ltd., 2009 PLC 254. In this case a cashier of a
Bank was sent from Larkana to Sukkur to bring cash. He brought the cash and
after taking cash to Strong Room reported that Rs. 2 million was found missing.
After due disciplinary process he was dismissed from service. He approached the
6. Ghulam
Mustafa Channa v. Muslim Commercial Bank Ltd. & Others, 2008 S.B.L.R. 83.
In this case act of embezzlement and misappropriation stood proved after which
he was dismissed from service.
7. Janatha
Bazar (South Kanara Central Co-operative Wholesale Stores Ltd.), Etc,. A.I.R.
2000 S.C. 3129. Four of the employees were charge with misappropriation of
goods whose value was about Rs. 24,239.97. After inquiry all the four employees
were dismissed. The
"Once
act of misappropriation is proved, may be for a small or large amount, there is
no question of showing uncalled for sympathy and reinstating the employees to
service. Law on this point is well settled. (Re: Municipal Committee,
Bahadurgarh v. Krishnan Behari, (1996) 2SCC 714): (1996 AIR SCW 1309: AIR 1996
SC 1239: 1996 Lab IC 1056). In U.P. State Road Transport Corporation v. Basudeo
Chaudhry, (1997) 11 SCC 370 this Court set aside the judgment passed by the
High Court in a case where a conductor serving with the U.P State Road
Transport Corporation was removed from service on the ground that alleged
misconduct of the conductor was attempt to cause loss of Rs. 65/- to the
Corporation by issuing tickets to 23 passengers for a sum of Rs. 2.35 but
recovering @ Rs. 5.35 per head and also by making entry in the waybill as
having received the amount of Rs. 2.35. The Court held that it was not possible
to say that Corporation removing the conductor from service has imposed a
punishment which is disproportionate to his misconduct."
12.
Learned counsel also referred to Mukarram Shah v. Sindh Labour Appellate
Tribunal & Others, S.B.L.R. 2004 Sindh 1565, Muslim Commercial Bank Limited
through Assistant Vice President and Attorney v. Abdul Razzak Pathn, 2007 TD
(Labour) 460, Akhtar Ali Mangi v. United Bank Limited, N.L.R. 2008 Labour 14,
Shaukat & Others v. Allied Bank of
13.
I do not think it will add to weight of the judgments although volume of
judgment would certainly swell thereby.
14.
A reading of the above judgments makes it clear that except in Syed
Nasir Abbas Naqvi's case in every other case the Supreme Court and the High
Court have up-held the right of the employer to impose penalty and limitation as
pave of Labour Court to interfere with quantum of punishment decided by the
employer. In Syed Nasir Abbas Naqvi's case misconduct on the part of employee
was that he cheated in a examination and debarred from appearing in diploma
examination. A consequence of result of Banking Diploma Examination would have
been that employee would have been entitled to promotion. It was in that
background of situation that Supreme Court upheld conversion of dismissal into
withholding of promotion for seven years. In every other case where there was a
misappropriation Supreme Court has up-held the act of the employer in
dismissing the employee from service. The case from Indian Supreme Court,
indicates that this has been done when the amount misappropriated was about Rs.
65/- and in case of Pakistan Tobacco Co. Ltd. v. Channa Khan & Others,
where quantity of stolen property was only 3 packets of cigarettes which even
today do not cost Rs. 200/-. The principles deducible appear to be that if
there is a financial mis-appropriation or embezzlement, howsoever small the
amount may be and howsoever short period of embezzlement may be the employee
does not deserve any leniency. Rectitude and best possible standard of honesty
and propriety must be instilled in all segments of society because if small
misappropriation are allowed to
unnoticed and unpunished or are allowed to be handled with kid gloves
entire moral fabric of the society will be on a slipper slope, down hill to
what it would be difficult to imagine. And in case of banks as has been rightly
observed in Abdul Razzak Pathn's case that money in the bank is public money
and even if there is temporary misappropriation, the charge is proved once
misappropriation is established and employee cannot be allowed to go grinning by
saying that he returned the embezzled amount. The Hon'ble Supreme Court of
"The mere fact that the amount
allegedly drawn in fraudulent manner, was returned and no loss was caused to
the bank, would not remove the charge of misconduct against the (employee) who
being custodian of public and private money was not supposed to act in breach
of trust. The employees of financial institutions and banks are required to be
extremely fair in the dealings and their conduct should be aboveboard so that
people may not loose confidence in the financial institutions. The dishonest
use of private property for personal gain even temporarily, without an
intention to cause loss to a party or the bank would not only be and act of
misconduct but also constitutes a criminal offence."
15.
Since no Labour Appellate Tribunal has been constituted in the
16.
Result of the above discussion is that this writ petition is allowed in
limine. Impugned order dated 9.7.2009 passed by the
(R.A.) Petition
allowed.