Fazle Rabi Vs HBL & others

.Iudgment Sheet

IN THE PESHAWAR IIIGT{ COURT,

PASIIAWAR"

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JUDGMENT

Writ Petition No.468 0-P nA20.

Date of hearing 25.10.2023.

Fazle Rabi Vs I{BL & others

Petitioner (s) by: Mr. Yasir Salim Advocate.

Respondent(s) by: Mr. Shahid Anwar Bajwa Advocate.

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WIOAR AHMAD J:-.Throu gh instant petition filed under Article 199 of Constitution of Islamic Republic of Pakistan 1973, petitioner Fazle Rabi Ex-Cashir (P.No.399023) has challenged the impugned judgment dated 06.08.2020 passed by worthy Full Bench National Industrial Relations Commission, Islamabad, whereby appeal of respondents No.l to 4 filecl against order dated 13.02.?020 of leamed Single N{ernber NIRC Bench Feshawar, was allowed

2.Brief facts are that petitioner was working as Cashier' in Habib Bank Nawagai Branch Buner, when he was suspended on the ground of shortage of cash of Rs. 13,04,000/- in the bank lockers. He was issued shorv cause notice, which was replied by hirn. Further inquiry was conducted and at conclusion of inquiry, petitioner was found guilty of rnisconduct and subsequently dismissed from service on 01.06.2011. He filed a departrnental appeal against his dismissal order, lvhich was not replied by concemed respondents, therefore, he filed Grievance Fetition before worthy Member NIRC Bench Peshawar, which was allowed and petitioner was reinstated in service with full back benefits on 13.02.2A20. Aggrieved from same, respondents bank filed appeal under Section 58(1) of flre Industrial Relations Act 2012 (hercinafter ref,erred to as IltA 20tZ), which was allowed by worthy Full Bench NIRC, Islamabad vide order dated 06.08 .2020, thereby setting aside order of learned Nlernber NIRC Peshawar. Petitioner feeling aggrieved frorn said

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order, approached this Court by filing Writ Petition No.4680-F/2020, which was allowed by this Court vide judgment dated 16.ll.2A22. Respondent challenged impugned order of this Court before Hon'ble Supreme Court of Pakistan by filing Civil Petition No.4174 of 2022, which was allowed vide order dated 4.5.24n thereby remanding the case to this Court for rehearing the parties and decide the matter in line with principles laid down in case of "Madan Gopal Versus Manan Bepari, (PLD 1969 SC 617\ by way of a detail judgment.

3.Arguments heard and available

record perused.

4" Perusal of record reveals that f'rndings of both the forurns below had been at variance therefore in order to reach at a correct conclusion this Court would have to reassess the material present before the forurn below as well as deparfinental authority. It is also held by Hon'ble Supreme Court of Pakistan in case of 'oKanirn Bahhsh through t-,Rs and others

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Versus Jindwadda Shah anctr others" reported as 2005 SCMR 1518 that while being seized with even a second appeal when tindings of two Courts below are at variance then High Court may re-appreciate evidence on the basis of which the two forums below had reached different conclusions.

5.The incident that had led to dismissal of petitioner relates to a single date of 12.03.2011. It so happened that new Manager namely Daulat Khan was transferred to the Branch of Habib Bank at Nawagai. He while taking charge from outgoing Branch Manager, detected a short fall of Rs. 13,04000/- in the bank branch. Petitioner had been posted as Cashier in said branch on that day. He had brought a cheque at 09.30 pm on said date of 12.03.2011 (as per statement of Daulat Khan Manager) and stated that Rs.13,00,000/- had been paid to the account holder namely Bakhti Zada on 12.03.2011 but at the time of process of reconciliation said cheque had not been in his possession as it had been lying in the clearance

register of former Manager. He also paid a short fall of Rs. 4000/-. This development led to initiation of proceedings against petitioner wherein show-cause notice was issued against him on 05.04.2011 by Head Industrial Relations & Disciplinary Action, I{R. Inquiry was conducted wherein statemeuts of two witnesses were recorded and finally Inquiry Officer found him guilty of misconduct, on the basis of which report, the competent authority ordered dismissal of petitioner from service. The conclusion of inquiry report is also reproduced hereunder for ready reference.

"Conclusiott:

In routine cases whenever dash shortage is found, cashiers after detail probing, themselves inlorm the Manager or lheir Incharge and seek help of all the relevant stalf in sorting out the problem. However, in this particular case the incoming manager Mr, Daulat Khan while checking the cash detects the shortage and more astonishing is the sitwtion that the shortage is detected denondnation wise. (Refer ex-P/4 and po/14). It means that tke Defendant Mr" Fazli Rabi had already bogus balanced the cash" The defendant in kis statement claims that the lost cheque as found by the Manager after Issha PraYet

(refer depositiow of tke defendant" Page 8 af the inquiry proceedings). Wktle on the other hsnd he did not cross examine the prosecwtian witnesses I & II to rebwt their stalements when they state that tke Defendant arranged/ browght a eheqae Rs.13,0A,000/- to make the shortage good" The defendant tn kis deposition states that the lost cheque was found by the milnilger wkich was lying in the receipt/ p{tyrnent register whi.ck is anhelievable becuase the receipt payment book is the msin document whick would hsve been ckecked so fituny times by alt concerned to trace out the skortage snd kad tke ckeque in qaestion there, wotdd have been deJinitely fowttd mach earlier and not token slruost eigltl howrs. Tke entry af ckeqae for Rs. 1 300000/- in payment book al an twaproXter (oat af routine) place also indicstes an unwsaal happening.

Keepimg in view lhe above, I anderstand that f,oUowing charges levelled ag*inst tke def,endant vide show cawse matice IYu"AI{K/1{{,48/ 399023 dated 5.4.2011 stand estshlished."

6.So far as basic facts of case are concerned, same were admitted to the effect that at 1.30 pm, the incoming nlanager Daulat Khan had physically verified cash with the avaiiable data of Cashier and found short fall of Rs.1,34,000/- ancl in later part of sanne day, petitioner had produced a cheque where against

he had statedly cleared and cashecl the cheque of Rs.13,00,000/- to one Bakhti Zada (accotnt holder of the bank) and had also deposited shortfall of Rs. 4000i- in cash. 'Io this extent there was no difference in findings at the inquiry or at the forum of NIRC signal Eench or worthy Full Bench of NIRC. The difference was arising in interpreting the facts and conclusions drawr from established facts. The Inquiry Officer had presumed that had the cheque been cleared then sarne would have been lying with the cashier and it shotild have been presented to the incoming Bank Manager on n.A3.z01ll at 1.30 PM. Claim of petitioner that the said cheque could not be presented at 1.30 pm because it had been lying in the receipt/payrnent register in the cabin of the Manager, was. not acoepted as believable. Additionally the worthy Full Bench of the NIR.C had also accepted arguments of, learned counsel for Bank and drawn inference that a second cheque book has been issued to Bakhti Zada despite the fact that his first cheque book had been lying unutilized (as only one leaf

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thereofhas been used) and on the basis thereofit was suspected that petitioner had himself rnaneuvered to issue cheque book to Bakhti Zada, used one of the page and rvrongly shown it cleared that very date while infact all this exercise had been done by petitioner for the pu{pose of clearing short fall of cash fund against him.

7.The worthy Full tsench of MRC, had borrowed farfetched presumption which was not having full support of the available record.

While inferring the adverse presurnption against petitioner, who an employee i.e, cashier, the worthy Full Bench of MRC had not noted that issuance of cheque was not responsibility of the cashier. Issuance of cheque book had not been rnade on 12.03.2011, which was the crucial date of the incident, same had rather been issued on 11.03.2011. Such statement is available on page 9 of CM No.1408-P/2023 filed by learned counsel representing the Bank. It clearly shows that disputed cheque had been issued to tsakhti Zada on 11.03.2011. Wiren asked in question

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No.8 by prosecutor during inquiry the petitioner had replied that issuance of cheque trook was not his duty. He could not be confronted with any manual or instruction by the Prosecutor indicating that issuance of cheque was sole responsibility of cashier.

I The worthy Full Bench did not

notice again, that a cheqr-le cannot be cleared unless so authorized not only by cashier but by a second officer and Manager during the inquiry of the Bank. It had come in evidence during inquiry that this was a small bank comprising of two members i.e cashier and Manager therefore, clearing a cheque was not cnly supposed to have been made by Cashier but also by former bank manager. Nothing is available on record that the cheque presented by petitioner and encashed to Bakhti Zada Account Hokler had not been authorized or clearecl by bank Manager. Here again adverse presumption was not having support of the record rather record was suggesting something to contrary. In this respect a specific question No.3 had also been asked by

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the prosecution in the inquiry report ftorn petitioner whioh is also reproduced hereunder f,or ready reference

"8.3 lYhether tke ssid cheqwe wss posted and cancelled by tke brunck manager?

A. Yes.

It indicates itself that prosecutor had suggested that the cheque has been posteci and cancelled by Bank Manager. It was not a case of bank that Manager was involved with cashier in his alleged rnaneuvering. Had it been so then proceedings should have also been initiated against former Manager, who was serving before arrival of new bank Manager Daulat Khan. When furttrer asked by the Prosecutor, the petitioner had also replied that he had informed the inooming Manager namely Daulat Khan that the cheque tn question had been lost. No statement of Bakhti Zad,a (account holder) has been recorded durirrg course of irrquiry nor Bakhti Zada has filed any complaint disowning receip of substantial surn of [ds. 13,00,000/- on the given date i.e, 12.3.2011. Had he not

received the amount on the given date, he would have been the first person to lodge complaint to bank authorities but he has never lodged arry complaint nor had he disowned his signature on the cheque or receipt of the amount. There was no direct evidence before inquiry officer whereupon it could have been concluded that Bakhti Zada had not received said amount or had not got his cheque encashed on 12.03.2011 All the conclusions drawn were based on presumptions and assumptions on the basis whereof an employee having 20 years service had been dismissed. The dismissal was also depriving hirn from his terminal benefits and relieving the bank of its liability in this regard.

The new Manager i.e, Daulat Khan has stated in his statement that it was his first day in the Bank. The reconciliation was being made on a date when the bank was also open for banking business and public dealing. It rvas not out of irnagination that any encahsed cheque might have got displaced. A cheque ls nonnerly circulated in the Bank bef'ore encashrnent and

there was every possibility that sarne might have remained on the desk of Manager. This fact is amply clearly from the fact that same had been posted and cancelled by Branch Manager. The presumptions drawn by inquiry officer was further added by worthy Full Bench of MRC, which had drawn a series of further presumption and thereby allowed the appeal setting aside judgment of single Member Bench of NIR.C restoring the petitioner. Although certain observations of the Single Mernber in respect of non affording opportr.lnity of cross examination, were not comect according to record, but this does not mean that a decision doing substantial justice shouXd have been reversed by Full Bench When the rnatter of cheque was resolved then the bank staff found short fall of Rs. 4000/-but that also when cashier lvas also busy 1n entertaining clearing of cheques and doing routine business of the hanlc. Such short fall is very natural and may be result of human error and same could not be construed adversely to petitioner. The penalty announced to petitioner

was also disproportionate to quantum of negligence on the part of petitioner and his misconduct has totally been based on assumption and was rrot believable 9" Worthy Full Bench has also inter alia held that grievance petition of petitioner had been time barred. When confronted learned counsel for petitioner stated that tre had filed appeal before the Bank and was waiting for its result but when the appeal was not entertained by the Bank and finally he came to know that appeal was not going to be decided then he served grievance notice on respondent bank on 11.11.2011 and filed Grievance Fetitiorr on L.Al.2At2. Order of dismissal of petitioner had been passed on 01.06.2011 and he had filed appeal on 13.05.2011 before bank. The respondent Bank neitlier returned the appeal nor rejected it on any technical ground which means that bank had entertained the appeal but had not made any decision thereon. When remedy was provided to petitioner, he was justified ln availing it and expecting that the bank would

deal him benevolently. Conduct of the Bank in not entertaining the appeal despite the fact that it had terrninated the employee, was not an appropriate exercise of authority at the bank's end. In such circumstances, no premium could be paid to the bank, When it had become clear to petitioner that bank was not going to decide his appeal he sent a grievance notice and also filed grievance petition thereafter, which had rightly been dealt by original forum i.e, Single Member Bench of NIRC to be within time. Reliance may be placed on judgment of l{on'ble Lahore High Court ln the case of 'oMuharnmad Ajrnal Versus Chairman Funjab Laboru Appellate T'ribunal Punjab, Lahore and 5 others" reported as 20L8 PLC l89 Lahore"

10.Hon'ble Supreme Court of Pakistan while giving its juclgment in ease of "Madan Gopal Versus Maran Bepari reported as PLI) 1969 SC 617, had inter alia laid down that if findings of f'act reached by first appellate Cour-t was at variance with that of trial Court, the former would ordinarily prevaii although it

would not possess the same value or sanctity as a concurrent finding. It was however laid down that such a finding of lower appellate Court would only be immune frorn interference in second appeal when it was found substantiated on the record and supported logically. While hearing case in hand, this Court found that the judgment and reasoning of appellate forum was not having support of evidence on record and reasoning was also illogical.

11.This Court also considered whether in instant Constitutional jurisrliction finding of facts reached by forum of appeal could be revisited by this Court in exereise of its Constitutional jurisdiction. It was found in light of judgment of Hon'ble Supreme Court of Pakistan that where decision of a departrnental authority is of such a nature, which could not be found justifiable on the basis of rnaterial present before authority and where there is no proper findings, upon which an inferior Tribunal reaches a decision then the Fligh Court nnay reverse such an order of Triburral. Reliance m

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this respect may be placed on the judgrnent of Hon'ble Supreme Court of Pakistan rendered in case of "Safeer Travels (Pvt) Ltd Versus Muhamrnad Khnlid Shafi through tregal heirs" reported as PL,f) ?007 SC 504, where on the basis of survey of existing case law Hon'ble Supreme Court of Fahistan has held that Higlr Court in its constitutional jurisdiction was justified for reversing judgment of learned appellate forum for the reason that decision of lower appellate forum was not supported by rnaterial on record. Relevant observations of said judgment are reproduced hereunder for ready reference:-

"25. Tke perwsal af tke jadgment of tke appellate Coart indicates thst on one handn as noted abave, it arrived at a conclusion that no fraad or misrepresentatton kss been raised and tlae appeal against the impwgned order d.ated 29-4-2005 was dismissed, but ott the other kand at the end while aecepting the appeal botk the orders dsted 29-4-2005 $nd l-11- 2A04 vvere set s.sicle. Tke iudgmemt af tke appellate Court is not clesr and ambiguous urre und also kas proceeded 0n wruflg prernises. The orders pussed by tke Rent Controller are in consonfrfice xtitk tke law and

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tketr setling aside was not proper and legal.

26.Thts Cowrt, an severul occasians, hus held tkat fire Wiglt Court tn its constitational jurisdiction csn interfere with the jadgwent snd order of tke appellate Cowrt if tke view tsken by tke appellate Court was not only contrary to the estublished principles of law, but also contrary to evidence on record or had fiowted the provistons of statates or failed to fallow the law relating thereto as held in tfue case af I-*l Din Masih v. Mst. Sskina lun snd anotker 1985 SCMR 1972.

27.Tke High Coart in its Constitational jwrisdtction will rtoi only to see that tke inferior tribwnsls keep wiihin their jurisdicttan but also to see that they absen'ed law,, as held in the case af Rshim Shah v. The Chief Election Commissioner of Fakistan and snotlter PLD 1973 SC

28.In the case af Messrs A"C.E" Enterprises throwgh Khulid Fervez v" Additionul District,Iadgen Lshare and others 1987 SCMR 1174, this Court wkile disnaisstng the petttion filed against the jwdgwent af tke High Court whereby in its constitational jurtsdtction it hss set sside the order af the appellate forum, it was observed th$t wkere tke forwms below fatl to sct itt accordance wilh tke enwnctation of, lsw msde by the swperior Coarts, snch un erf,or c&n he corrected in tke exercise of writ jwrisdictian. Reltsnce was placed ofi tke c*se af

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Mukqmffiud Sharif v, Makammad Afzal Sohail PLD 1981 SC ?46.

29" In tke csse of Muharnrnad Hayat v. Sk. tssshtr Akrned and otlrers 1988 SCMR 193, tkis Coart, in s rent case, the plea raised that tindings of tke appellate Coafi were final ond cawld not be interferecl witktn writ jartsdictiott, repelled and tt wss held thst the appellate Cawrt having rnisresd evidence 0n record, his lindtngs wkick were bwsed on misreadtng af evidence, stood vitiated and swch arder, he{d, firas not iwrnane from iruterfevence in writ jwrtsdiction.

3A. nn tke case of Altdwl f{amid v. Gkwlwvn Rasul and otkers 1988 SCMR 401, rvken the findtngs af the District Judge in a rent appeal were found canjectwral, lt&sed 0n misreading af recard and 0n evidence taken aut of conturt, by tke Wtgh Court, were set aside by the Miglt Court iw constitationul jarisdiction awd it was held by this Coart tkat the Nigh Cowrt wfls justified tn circwnnstawces in treterfering with the appellate order"

31.Xn the c&se af X{ukanunad Lefurssah Kkun v. Mst. .Aqeel-an- Nisa and 5 otkers 2001 SCMR 338, it was observed tfuqt where tfu.e District Coart, whick is the appellate Cowrt, and it reversed tke" findiwg of tke trtal Cowrt on the graunds not supparted by matertal on rceord, tke Iligh Cowrt can interf,ere witk such Jinding by isswtng writ af certioruri to carvect the wrong cawrnitted hY tfue appellate awthority and tke lliglt Court can justiliably exercise its

Constitatiand farisdictton os tke sawe is swpervtsory as well as in aid to sabserve tke cawse af .jwstice ond to correct a w)rarug wkerevey the Coart finds to huve lteen commttted beimg contrary ta ertidence and tlae law on tke swbject.

32.For wkat has been dtscassed above, and while maiwtaiwing the judgment af the l{igh Court vide whiek the jwdgrnent/order of tfue Additionsl District Jrudge wes set astde arcd tkat of, tke llent Controller was restared, the appeal is dismissed with no arder as to costs".

12.This Court delved deep into record for the reasons that both tire special forums had taken different stances on material which was existing before both the forums. While looking into material it was also found that judgment of appellate Forum was not arising fronn correct appraisal of material present before it. A clear case of misconduct on the part of petitioner could not be found decipherable from record present before departmental auttrority.

13" In light of what has been discussed above, instant writ petition is all,cwed, impugned order dated 06.08.2020 of Hon'ble Full Bench MR.C, Islamabad is set aside and that of order

dated 13.02.2020 of leamed Member NIRC Bench at Feshawar is restored.

CNTEF JUSTTCE

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Date ofheo ng & announcemerrt of.iudgnont... .....................2 S. I 0.2023, Date of yeparation and signing ofi udgrrrent .,.. 10.11.2a23 "LQoradB "(DB) l!@'bL Mr tudie Mridlmttlltuahi t6 Eat & t&. fude VloAt6a4