J U D G E M E N T
IN THE HIGH COURT OF SINDH, KARACHI
Labour Appeal No.14 of 2003
Date Order with signature of Judge
Appellant Muslim Commercial Bank Limited through Mr. Shahid Anwar Bajwa, advocate.
Respondent Safdar Ali Memon through Mr. Shabbir Awan, advocate.
…..
KHAWAJA NAVEED AHMED, J., This Appeal has been filed by Muslim Commercial Bank Limited ("Appellant") against Safdar Ali Memon ("Respondent"), who was employed as Officer Grade-III in the appellant-bank and was posted at Pakistan Chowk Branch, Karachi. It is alleged that the respondent was indulging into acts of misappropriation of bank's funds lying in margin accounts of letters of credit and also certain instances of giving wrong credit to various account holders were reported against the respondent. The Regional Manager of the appellant-bank by a letter dated 15.7.1999 had called explanation from the respondent. The explanation letter dated 15.7.1999 is reproduced herein below:-
"It has been reported against you by the branch that you have misappropriated Bank's funds lying in Margin A/C, L/C of the branch by giving wrong credit to various accounts.
You are hereby called upon to explain in writing within (3) days of the receipt of this letter as to why disciplinary action should not be taken against you. Your explanation should be submitted to the undersigned.
Should you fail to submit your explanation as required, the Management will be free to proceed ahead in taking action against you in the matter."
2. Subsequently, audit report was received and in the light of audit report dated 06.8.1999, Letter of Charge was issued to the respondent on 03.9.1999. The respondent had replied the Letter of Charge through his letter dated 14.9.1999, which is reproduced as under:-
"This refers to the letter of charge issued to me vide letter no.AHCK/STF/DISP/56 dated 03rd September 99 received by me on 07th September 99. Although, I had submitted my detailed reply to the letter of explanation but the same has not been found satisfactory. It is once again most humbly submitted that the charges leveled from para 1 to para 8 of the above charge sheet, the allegations thereof were neither willful nor deliberate. So much so, no financial loss has been sustained by the Bank.
However, if it is thought that I have subjected myself to a serious irregularity, the same please be forgiven, keeping in view my unblemish record of twenty four years of service with the Bank. Apart from the above I am the lone supporter/bread earner of my family.
Hoping for a sympathetic consideration and assuring you Sir, such irregularity shall never be repeated by me again."
3. A detailed investigation was conducted by Lead Auditor Muhammad Shibli and he had submitted a report dated 06.8.1999. His conclusion is as under:-
"In view of the above, Mr. Safdar Ali Memon, committed the fraud by adopting typical type of modus operandi and also confessed having done so in his written statement."
4. The respondent had written in Urdu language in his own hand-writing admission, which is appearing at page 66 of the Court file. In this confession he has mentioned that he has committed mistake. He has mentioned the name of the parties in whose accounts he charged excess commission and had posted it in the account of some one else. In the end he says that he used to get all the vouchers signed from Incharge Foreign Exchange and Branch Manager. Again there is a written admission in Urdu language in which he had stated that he had committed mistake for which he apologizes. In one of his statements appearing at page 80 of the Court file the respondent had stated that he had clearly informed the Bank Manager that he has taken money from parties, the Manager told him that the matter is still within the Branch, therefore, the respondent had given Rs.173,000/- cash in the hands of Manager in order to make good the loss. After completion of enquiry in pursuance of the charge dated 03.9.1999 the Area Head Commercial Branch of the appellant-Bank had issued letter of dismissal dated 23.12.1999. The dismissal was challenged by the respondent in the Sindh Labour Court No.V, Karachi, through a Grievance Petition under Section 25-A of Industrial Relations Ordinance, 1969 ("Ordinance, 1969") vide Application No.60/2000. The learned Presiding Officer, Labour Court No.V, Karachi, was pleased to allow the Grievance Petition of the respondent under Seciton 25-A of Ordinance, 1969.
5. The learned advocate for the appellant-Bank Mr. Shahid Anwar Bajwa, has argued that the respondent was not a workman. He has further taken the stand that the case of the respondent does not fall under West Pakistan Industrial & Commercial Employment (Standing Orders) Ordinance, 1968 ("Ordinance, 1968") as well as under Ordinance, 1969. Learned counsel has relied upon the case of ZUBAIR AHMAD v. SIND LABOUR APPELLATE TRIBUNAL (PLD 1985 Karachi 760), wherein the Full Bench of this Court relying upon the judgment of the Full Bench of the Hon'ble Supreme Court had held as under:-
"29. This a judgment by a Full Bench of the Supreme Court and being latest in point of time, must be followed, being binding on us under Article 189 of the Constitution. In this case it seems that it has been held that only the workman performing manual or clerical work whether the same is 'skilled' or 'unskilled' could be considered to be the 'workman' within the meaning of the word 'workman' as defined under section 2(i) of the Ordinance. In view of this decision it is now not necessary to consider the other High Court cases noticed by us and we answer the question referred to us accordingly."
6. Learned counsel for the appellant-Bank has vehemently argued that the respondent was not doing any manual or clerical work and his dismissal was not in consequence of any industrial dispute. He says that the dismissal was signed by Disciplinary Action Committee. The Grievance Notice was not addressed to the competent authority. Every branch is a separate establishment and in Pakistan Chowk Branch, Karachi, the number of employees were only 17, which is less than 20 as required by Ordinance, 1968. He has further stated that payment of Rs.173,000/- by the respondent to the Branch Manager proves his guilt and involvement in misappropriation of the bank account. Learned counsel for the appellant has strenuously argued that for a bank employee misappropriation is a very serious offence. It is not material whether the misappropriation is of a small amount or a large amount or finally the employee has made good the loss and has saved the bank form any losses. The conduct is to be weighed and bank cannot take risk of keeping such an employee in its employment, who can indulge into acts of misappropriation in the accounts of accounts holders, who are the customers of the bank. He has criticized the judgment passed by the Labour Court and has stated that the same is not maintainable and is liable to be set aside. He has relied upon the case of LIAQUAT ALI v. SINDH LABOUR APPELLATE TRIBUNAL (1993 PLC 109). In this reported case the Division Bench of this Court has held that employee was admittedly appointed as a chowkidar but later on he was promoted as Jamadar and being Head of Watch & Ward Department he used to recommend leave applications of other chowkidars, posting of chowkidars at different places in the Mill area and used to sign as Security Incharge. The Court has held that nature of duties of employee being supervisory he was not a workman. The Grievance Petition filed by employee against the dismissal was declared as not maintainable. In another case reported as HOTEL INTER-CONTINENTAL v. BASHIR A. MALIK (PLD 1986 SC 103) the Hon'ble Supreme Court has held as under:-
"The Ordinance defines the term "employer" in section 2(c) as under:-
'Employer' means the owner of an industrial or commercial establishment to which this Ordinance for the time being applies, and include—
(i) in a factory, any person named under clause (c) of subsection (1) of section 9 of the Factories Act, 1934 (XXV of 1934) as manager of the factory;
(ii) in any industrial establishment under the control of any department of the Federal or any Provincial Government the authority appointed by such Government in this behalf, or where no such authority is so appointed, the head of the department;
(iii) in any other industrial or commercial establishment, any person responsible to the owner for the supervision and control of such establishment;
Having regard to the aforesaid definition of the terms "employer" and "workman", it appears clear that those employees, who are not workmen within the meaning of the Ordinance, may be sub-divided further into the following two classes;--
(i) those who are officers, that is to say, who have got directional and controlling power; and
(ii) those who may not possess any such power yet not be workmen because the nature of duties required to be performed by them does not involve manual or clerical labour.
A careful analysis of the relevant provisions of the Ordinance shows, therefore, that employees not doing manual or clerical work would not fall within definition of "workman". The question whether an employee is a supervisor or is exercising directional or controlling power poses merely a negative test of a workman which cannot be conclusive; this is ultimately a question of fact, at best one of mixed fact and law. If every employee of an industry was to be a workman except those mentioned in the definition of "employer" then the law would have simply stated so and the qualifications regarding the nature of work mentioned in the definition of "workman", namely, "skilled or unskilled, manual or clerical labour" need not have been mentioned in the definition. Specification of the nature of work done by a person to qualify as a workman was intended to lay down that an employee would become a workman only if he is employed to do work of one of these types, while there may be employees who are ot doing any such work, would be out of the scope of the "workman" without having to resort to the exceptions."
7. Learned counsel for the appellant-Bank has relied upon the case of N.B. OF PAKISTAN v. PB. LABOUR COUORT NO.5 (1993 PLC 595). In this authority at paragraph 15 Mr. Justice Ajmal Mian (as his lordship then was) had held as under:-
"15. The question, whether a person is a workman within the purview of clause (xxviii) of section 2 of the I.R.O., can be determined not on the basis of the designation of his post, but on the basis of the duties which he was performing. In the present case, we have already held that the burden of proof that respondent No.3 was a workman, was on him, which he failed to discharge."
8. Learned counsel for the appellant-Bank has also relied upon the case of MUHAMMAD YOUSAF KHAN v. HABIB BANK LIMITED (2004 PLC (C.S.) 166). This is a Hon'ble Supreme Court's judgment where bank employee was involved with misappropriation and embezzlement. The objection taken was that the bank had taken delayed action and as such it has been held as under:-
"……It is quite amazing that the said charge-sheet was challenged before the Labour Court which accepted the grievance petition on 26.9.1995 and subsequently the petitioner approached the High Court by way of writ petition assailing the orders of Punjab Labour Appellate Tribunal dated 17.6.1997 whereby the Habib Bank Limited (respondent) was allowed to proceed against the petitioner which, however, was dismissed on 1.6.1998. the petitioner had succeeded in playing hide and seek with the Bank for more than four years by exploiting different legal provisions of law and approaching various forums for the redressal of his so-called grievances at a premature stage. The proper course would have been to contest the charge-sheet by leading some worthy of credence evidence showing that the allegations of misappropriation and embezzlement were false and concocted. We are not persuaded to agree with the learned Advocate Supreme Court on behalf of petitioner that the charge-sheet was belated having no value in view of the provisions as contained in Standing Order 15(4) of the West Pakistan Industrial and Commercial Employment (Standing Orders), Ordinance, 1968 for the reason that limitation of thirty days as prescribed in the said Order shall be reckoned from the date of knowledge. Even otherwise if some embezzlement or misappropriation is detected during the course of proceedings or at some subsequent stage the Standing Order 15(4) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 does not constitute a bar that no charge-sheet could be served merely on the score of delay. It, however, could not be proved that it was a belated charge-sheet and served after thirty days from the date of knowledge. The basic question would be as to when the factum of embezzlement came to the knowledge of the Bank and whether the elay was intentional with mala fides or otherwise? In our opinion there is neither inordinate delay nor the provisions in the Standing Order 15(4) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 could be invoked in view of the prevalent circumstances of the case. It is worth mentioning that petitioner himself had given undertaking on 4.7.1994, 10.7.1994 and 27.8.1994 to replay the alleged embezzled amount and charge-sheet was issued on 24.10.1994 which could not be labeled as belated charge-sheet. The provisions as contained in the Standing Order 15(4) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 could not be interpreted in such a manner that delinquent should be scot-free after thirty days in any case as such interpretation would neither be logical nor reasonable. As mentioned herein above the time shall reckon from the date of knowledge and the date of detention of embezzlement and fraud. The minor delay, if any can be ignored in view of the serious nature of the allegations. In fact the petitioner did his best to prolong and protract the disciplinary proceedings for the reasons best known to him.
6. The principle of consistency as pressed into service by learned Advocate Supreme Court on behalf of petitioner cannot be made applicable as there is a considerable difference between the case of Manzoor Ahmad, Cashier because no undertaking was given by him as has been done by the petitioner. It may not be out of place to mention here that the petitioner was not penalized on the statement o Manzoor Ahmad, Cashier alone but in view of his admission dated 4.7.1994, 10.7.1994 and 27.8.1994 with the assurance that misappropriated/embezzled amount would be paid. The argument of learned Advocate Supreme Court that the petitioner was never confronted with above mentioned admissions seems to be fallacious and devoid of merit as the admissions dated 4.7.1994, 10.7.1994 and 27.8.1994 were got exhibited before the Labour Court and same were in the knowledge of petitioner. It is worth noting that the genuineness or authenticity of the said admissions were never questioned before the Service Tribunal.
7. On the basis of sheer technicalities the petitioner cannot be absolved from serious charges of misappropriation and embezzlement of heavy amount and encashment of 26 C.P.Rs. twice. In our considered view the charges for misappropriation and embezzlement have been proved to the hilt against the petitioner who made a futile attempt to become millionaire with a short span of time which is not more than a few years when he remained in service by employing deceitful means and committing fraud which makes him disentitled to remain in Bank's service.
8. After having gone through the entire record and judgment impugned we are of the view that all mandatory formalities as envisaged under the relevant Rules were adhered to and no injustice whatsoever has been done with the petitioner. The conclusion arrived at by learned Federal Service Tribunal is unexceptionable and being well-based hardly warrants any interference. The concurrent findings of facts recorded by the Bank as well as by the learned Service Tribunal cannot be reversed without sufficient justification which is lacking in this case. The petition being meritless is dismissed and leave refused."
9. Learned counsel for the appellant-Bank has also relied upon the case of MANAGER, PLANNING, FORMATION AND CONTROL NOVARTIS, (PAKISTAN) LTD., v. MUHAMMAD ARIF (2005 PLC 351). This is again a case of embezzlement by the employee and the point raised by the counsel for the employee is that the action was taken late and not within the stipulated period mentioned in the law. While dealing with this point the Court has observed as under:-
"6. I have gone through the trial Court records with the assistance of the learned counsel for the parties. The reliance has been placed by the respondent as also by the learned Labour Court on the following Standing Order 15(4):--
"No order of dismissal shall be made unless the workman concerned is informed in writing of the alleged misconduct within one month of the date of such misconduct or of the date on which the alleged misconduct comes to the notice of the employer and is given an opportunity to explain the circumstances alleged against him. The approval of the employer shall be required in every case of dismissal and, the employer shall institute independent inquiries before dealing with charges against a workman."
7. Now upon a plain reading said provisions of law state in mandatory terms that the workman is to be informed within one month from the date of such misconduct or of the date on which the alleged misconduct comes to the notice of the employer.
8. Now there is no denial that the employer company is headquartered at Karachi. The case of the Company as contained in written-statement and then in the statement of Mushir Ahmad Jaffari-RW1 is that report dated 20.7.1996 (Exh.P12) was received from Bahawalpur office at Karachi on 22.7.1996 wherein the embezzlements were recorded. Pursuant thereto a preliminary inquiry was ordered by the Company and a report was filed on 9.10.1996 thereafter it was decided to proceed against the accused officers including the respondent. According to this report, the embezzlements were committed between 18.2.1996 to 22.5.1996.
9. Now the contention of the learned counsel for respondent is that the period of one month shall commence from 22.7.1996 as it shall be deemed that the employer had the knowledge of misconduct on the said date.
10. The charge-sheet (Exh. P1) was issued on 5.11.1996. Now what has to be seen is as to whether without reference to all other circumstances of the case it can be held that notwithstanding the fact that the evidence on the record goes to prove the guilt of a person appointed as an Accounts Assistant dealing with the finances of the employer, the said provision can be invoked to avoid penalty. To my mind the answer has to be in negative. I draw support from the following observation in the case of "Muhammad Yousaf Khan v. Habib Bank Limited and others" (2004 SCMR 149):--
"The provisions as contained in the Standing Order 15(4) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 could not be interpreted in such a manner that delinquent should be scot-free after thirty days in any case as such interpretation would neither be logical nor reasonable. As mentioned hereinabove the time shall reckon from the date of knowledge and the date of detection of embezzlement and fraud. The minor delay, if any, can be ignored in view of the serious nature of the allegations. In fact the petitioner did his best to prolong and protract the disciplinary proceedings for the reasons best known to him."
There is nothing on the record to attribute any mala fide to the appellant-Company in the matter of deeming it proper to satisfy itself as to the correctness of the facts reported to the headquarters on 20.7.1996. There is also no denial that preliminary inquiry was conducted after joining the respondent. I, therefore, do hold that the charge-sheet (Exh. P1) cannot be said to be barred by time within the meaning of Standing Order 15(4).
10. Learned counsel for the respondent has stated that the Appeal filed by the appellant-Bank is not maintainable under law and is liable to be dismissed. He has argued that according to Explanation Letter dated 15.7.1999, appearing at page 24 of the Court file, it is mentioned that all the misconducts was allegedly committed in one and the same branch. The Explanation Letter has been signed by the Regional Manager. Learned advocate has questioned whether the Regional Manager falls under the category of employer or had he approval of employer while he was issuing the Explanation Letter? Learned counsel says that the Explanation Letter as well as subsequent Charge Sheet are silent on this point. He has further stated that time provided under Section 15(4) of Ordinance, 1968 is only thirty days while in the present case the Charge Sheet appearing at page 27 of the Court File was issued on 03.9.1999 which is beyond thirty days period and as such under law it is time barred and cannot be considered. Section 15(4) of Ordinance, 1968 is reproduced herein below:-
"15.(4) No order of dismissal shall be made unless the workman concerned is informed in writing of the alleged misconduct and is given an opportunity to explain the circumstances alleged against him. The approval of the employer is required in any case of dismissal and, when institute independent inquiries before dealing with charges against a workman."
11. Learned counsel for the respondent has further argued that this is a mandatory provision of law, which must be followed. On the point of time barred Charge Sheet he has relied upon the case of ABDUL RASHID v. CHAIRMAN, LABOUR APPELLATE TRIBUNAL (1997 PLC 34). He has argued that violation of Bank's Rules does not constitute misconduct. He has relied upon the case of N.B.P. v. PUNJAB LABOUR APPELLATE TRIBUNAL (1989 SCMR 861). Learned counsel has stated that the respondent has denied having deposited an amount of Rs.173,000/. He has further stated that the enquiry is improper and on the basis of improper enquiry the employee cannot be punished. On the quantum of punishment, learned advocate has relied upon the case of ALLIED BANK LIMITED v. NASIR ABBAS NAQVI (2007 PLC 660) and the case of MUSLIM COMMERCIAL BANK v. SHAMSUL AULIA (2007 SCMR 1617). Learned counsel has further argued that due to the alleged misconduct of the employee the bank has not sustained any loss. He says that no amount is payable by the bank to the parties. He has further stated that the respondent has 24 years unblemish service record. He has relied upon the following case law in support of his arguments:-
(i) unreported judgment in Appeal No.128/2002 of this Court (Muslim Commercial Bank Limited v. Ghulam Muhammad Memon);
(ii) WARNER LAMBERT (PAKISTAN) LTD., KARACHI v. SIND LABOUR COURT NO.III, KARACHI 1979 PLC 370;
(iii) MUSLIM COMMERCIAL BANK LIMITED v. GHULAM MUHAMMAD MEMON (SBLR (LA) 2007 Sindh 1720);
(iv) ALLIED BANK OF PAKISTAN LTD., v. MUHAMMAD HUMAYUN KHAN (1983 PLC 498);
12. Learned counsel for the respondent has further stated that copy of enquiry report was not supplied to the respondent. He has relied upon the case of MUJEEBUR REHMAN QAZI v. ALLIED BANK OF PAKISTAN (2006 PLC 24). He has drawn attention of this Court towards Section 2(c)(iii) of Ordinance, 1968 and has argued that entire bank is a one establishment. He has relied upon the cases of KHUSHAL KHAN v. MUSLIM COMMERCIAL BANK LTD. (2002 SCMR 943) and ABDUL RAZZAQ v. IHSAN SONS LTD. (1992 PLC (Labour) 424).
13. While replying the arguments of the learned counsel for the respondent, learned counsel for the appellant-Bank has drawn my attention towards the following case law:-
a) LAL KHAN v. PUNJAB LABOUR APPELLATE TRIBUNAL (1995 PLC 675);
b) DAWOOD COTTON MILLS LTD., v. GUFTAR SHAH, (PLD 1981 SC 225);
c) SARFRAZ v. G.M. (LEAD), PAK. TOBACCO CO. LTD., (1988 SCMR 1352);
d) N.B. OF PAKISTAN v. PB. LABOUR COURT NO.5 (1993 PLC 595);
e) KHUSHAL KHAN v. MUSLIM COMMERCIAL BANK LTD. (2002 SCMR 943);
f) ALLIED BANK OF PAKISTAN LTD., v. MUHAMMAD BASHIR KHAN (2006 PLC 39);
g) ALLIED BANK OF PAKISTAN LTD., v. M. IQBAL SIPRA (2007 PLC 398); and
h) ALLIED BANK LIMITED v. NASIR ABBAS NAQVI (2007 PLC 660).
14. Learned advocate for the appellant-Bank has argued that once misconduct is proved it is for the employer to decide the punishment. He has relied upon K.S.R.T.C. v. B.S. HULLIKATTI (AIR 2001 SC 930), KHAMISO KHAN v. THE SECRETARY (SBLR 2007 Sindh 800) and MUJEEBUR REHMAN QAZI v. ALLIED BANK OF PAKISTAN (SBLR 2006 Sindh 181).
15. I have heard both the learned counsel at length and have perused the entire record, case law placed before me as well as the impugned judgment passed by learned Sindh Labour Court No.V, Karachi. The learned trial Court on pleadings had framed the following issues:-
1. Whether the application under section 25-A of the IRO, 1969 is maintainable?
2. Whether the provisions of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 are applicable to Pakistan Chowk Establishment of the respondent-Bank?
3. Whether the applicant was performing manual and clerical duties and was neither working in supervisory nor managerial capacity and as such is a workman?
4. Whether the applicant has been dismissed from service illegally without adopting proper procedure and holding proper and legal inquiry?
4-A Whether the charge sheet is time barred? If so, to what effect?
5. What should the decree be?
16. The learned trial Court had decided Issues Nos.1,2 and 3 in affirmative. Regarding Issue No.4 the trial Court had held that the dismissal of the respondent cannot be termed as legal dismissal. Regarding charge sheet the Court had held that the charge sheet was time-barred. Consequently, the trial Court had allowed the petition and order of dismissal of the respondent was set aside and he was directed to be reinstated in service with immediate effect.
17. I have gone through the evidence recorded by the trial Court. The respondent in his cross-examination had admitted that at the time of dismissal he was drawing Rs.22,000/- per month salary. He had admitted that he had replied the explanation on 21.7.1999 and had also replied the charge sheet. He had admitted his signatures on both the documents. However, he had denied having deposited Rs.173,000/-. He had admitted entries made by him on pages 61,62 and 67 of the enquiry proceedings. He had admitted his signatures on pages 62,67,70 and 71 of the enquiry proceedings. He had admitted entries made at pages 72,73 and 74 of the enquiry proceedings. He had also admitted that the vouchers were signed by him. He had admitted his signatures on pages 79,80,88,90,91 and 92 of the enquiry proceedings.
18. I have gone through the affidavits-in-evidence of Assistant Vice President of the appellant namely Sajid Zafar Mansoori, who had conducted the enquiry, affidavits of Muhammad son of Yousuf Dal, who was posted as Accountant in Pakistan Chowk Branch, establishment of the appellant, Johhson Gulzar son of Gulzar, Chief Cashier in the Frere Road Branch, establishment of the appellant and Muzaffar H. Qarni son of M. Iftikhar H. Qarni, AVP in Jodia Bazar Branch, establishment of the appellant. He had stated in cross-examination that amount mentioned in Annexure "D" was brought by the respondent at the cash counter and the Accountant Muhammad, as witness, had signed it. He had stated that in writing there is nothing regarding annexure "D". He had voluntarily stated that the vouchers were prepared and the respondent had deposited the amount.
19. As far as case law is concerned, there are number of authorities, which support the contentions raised by both the counsel. I have mentioned the authorities in the preceding paragraphs in the arguments of both the learned counsel. For following the precedents the rule is that every authority is to be seen in the light of the facts of the case and it is not necessary that the precedent in one case is applicable in another case in its totality. The facts of this case are that a temporary embezzlement has been alleged against an employee, which he has allegedly admitted before the officers of his Bank and had allegedly deposited the entire amount so embezzled in order to save himself from the criminal consequences of the case as well as his officers from the charges of negligence on their part. Since he is a bank employee and entire business of the bank runs on the trust, which the customers depose on a particular bank due to the reputation and honesty of the staff of the bank, therefore, in my humble opinion it will not be proper to reinstate an officer in the service of bank against whom the charges of embezzlement have been proved in internal enquiry of the bank. Bank management, who, in the internal enquiry, has found its employee guilty of the charges made against him, should not be compelled to take back the same employee in service and run the risk of some bigger embezzlement. I do understand that there are certain technical points in law which favours the present employee but it is again a settled principle of law that cases should be decided on merits and not on technicalities. Keeping in view the peculiar circumstances of this case, the case law produced at bar and the submissions made by learned counsel for the parties, I set aside the impugned order of the learned Sindh Labour Court No.V, Karachi. However, since the respondent has served the bank for twenty four years I, therefore, order that instead of dismissal or termination from service, respondent Safdar Ali Memon shall be retired from service with all back benefits. Salary of the respondent Safdar Ali Memon, deposited with the Nazir of this Court, should be given to him forthwith. The respondent Safdar Ali Memon is entitled to all retirement benefits.
With the above observations, Labour Appeal No.14 of 2003 is allowed.
Karachi,
February 25, 2008 Judge