S B L R 2007 SC

[Supreme Court of (Pakistan)]

Present: Tassaduq Hussain Jillani Ch. Ijaz Ahmed, JJ.

Shaukat & others---Petitioners.

versus

Allied Bank of Pakistan---Respondents.

C.P. No. 2636-L/04, 2638-L/04, 2844-L/04 & 2885-2/2004.

A) words & Phrases Misconduct Misconduct-meaning of-elaborated. [P -]A.

B) West Pakistan Industrial & Commercial Employment (Standing Order) Ordinance, 1968---Standing Order 15(3). Misconduct---failure to observe rules and regulation---held misconduct. [P -]B.

C) Constitution of Pakistan---Article 185(3) Exercise of jurisdiction---interference by Supreme Court---concurrent findings--- unless the finding is found arbitrary, illegal or against the record it cannot be interfered with Naemul Rehman vs. Abdul Aziz (1986 SCMR 1961) Ghulam Rasool Khan vs. Mst Jinda (1979 SCMR 775) Abdul Hammed vs. Ali Ahmed Khan (1979 SCMR 503).[P -]C.

Farooq Zaman Qureshi ASC with Muhammad Rafi Siddiqui, AOR Advocate for the Petitioner.

N.R Advocate for the Respondent.

ORDER

CH. IJAZ AHMED, J; We intend to decided the following petitioner by one consolidated order having similar facts and law arising out of the same impugned judgment:-

i) CP No. 2636 –L/04

ii) CP No. 2638-L04

iii) CP No. 2844-L/04

iv) CO No. 2885-L04

2. Brief facts out of which present petitions arise are that the petitioners were serving with respondent bank as permanent workmen. The respondent bank had initiated disciplinary proceedings against the petitioner on the allegations of embezzlement of huge amount of the account holder of the respondent bank and after regular enquiry they were dismissed from service vide order dated 3.8.1998. Petitioners being aggrieved petitions before the Punjab Lahore Court No.3. The learned Labour Court decided the grievance petitions and dismissed petitions vide consolidated order dated 19.4.2002 Petitioners being filed labour appeal No.69 of 2001. 355 of 2004. 356 of 2003 and 357 of 2003 before the Lahore High Court Lahore The learned High Court dismissed all the four appeal vide impugned consolidated judgment dated 25.6.2004. Hence, these petitions.

3. Shaukat Ali petitioner submits that both the Court below has decided the case against application of mind and without adverting to the rules regulation of the respondent bank.

4. Mukhtar Ahmed petitioner also submitted written submission that impugned action of the respondent was without lawful authority.

5. Mian Muhammad Akram submits that petitioner was involved merely being a member of subordinate staff whereas no proceedings had been imitated against the high court officers of the respondent bank. He further urges that both the court below has decided the case without scrutinizing the document on record.

6. Learned counsel for the petitioner Raza Jaffari that enquiry was not conducted in accordance with the law and regulations of the respondent. He further submits that the court below had erred in law to consider the confession statement of the petitioner. In fact the petitioner had not given any confession except he had accepted that he had signed the document. He further submits that both the court below had decided the case without re-appraisal of evidence on record. The enquiry was conducted by the respondent in violation of the mandatory provision of law. Both the courts below had dismissed the petition of the petitioner merely relying upon the statement of his co-accused which could not be basis to punish the petitioner. He further urges the respondent failed to connect the petitioner with the commission of offence. He summed up his arguments that all the petitioners had not committed misconduct. Petitioners had committed, therefore, petitioner could not be awarded punishment of dismissal for mere negligence as there was no intention of the petitioners to defraud the account holders of respondent bank.

7. We have given our anxious consideration to the contention of counsel for the petitioner Raza Jaffari and remaining petitioners and perused the record. It is better and appropriate to reproduce the meaning of word misconduct to resolve the controversy ariring out of the present petition.

WORD MISCONDUCT “Where there is mismanagement or bad management or negligence of a kind which although not necessarily reckless suggests that something was done or omitted to be done which a man of ordinary prudence would not have done or would not have omitted to do, there is a case of misconduct, Syed Hasham Ali Shah & Sons v. The Federation of Pakistan (PLD 1951 Lah. 425).

“Standing regulations prescribed by railway are intended to serve as a timely warning that the servants ought to risk. The railway servants are expected to know them and follow them meticulously. If the servants of the railway company act without regard to these regulations or in total disregard on violation of them and the loss occurs, it is difficult to call it mere negligence. Conduct, such as this would amount to misconduct as there is a higher decree of culpability involved in such conduct than mere negligence, T. Muthaya Pillayan v. Commissioner Madras Hindu Religious and Charitable Endowments, madras (AIR 1955 Madh. B. &) (DB).

“Misconduct in Sec. 72 of the Railways Act is something more than mere negligence. It is the intentional doing of something which the door knows to be wrong or which he does recklessly not caring what the result may be Dominion of India as owner. Dominion of India as owner of E.I. Rly. & E.P RlY. V. Ado Shaw Aklu shaw and another (AIR 1957 Pat. 219).

“A transgression of some established and definite rules of action. Where no discretion is left, except necessity may demand; it is violation of definite law; a forbidden act. It differs from carelessness. M.V. Ittycheria v. Stat of Kerala (AIR 1958 Kar. 374).

“If a servant conducts himself in a way inconsistent with the faithful disparate of his duty in the service, it is misconduct which justices immediate dismissal. That misconduct, according to may view, need not be misconduct in the carrying on of the service or the business. It is sufficient if it is conduct which is prejudicial or is likely to be prejudicial to the interests or to the reputation of the master, aznd the master will be justified, not only if he discovers it at the time, but also if he discovers it afterwards, in dismissing that servant” Opal Laboratories Ltd. Vs Workers” Union 1972 PLD 83.

8. It is better and appropriate to reproduce the operative part of the impugned judgment passed by the learned High Court to resoles the controversy between the parties:-

“According to learned counsel for the respondent bank due to miscondnet of appellant of appellant, bank suffered loss of Rs. 1,90,00,000/- in the account of Wapda and Rs. 3,91,17,000/- in the accounts of other people. However learned counsel for the appellant submits that bank suffered loss of Rs. 1,90,000/- only and out of this amount Sikandar Mehmood, (Manager) had paid Rs. 90,00,000/- So it is clear that bank suffered heavy loss.

Admittedly due to this incident/fraud a very good account holder (Wapda) was constrained to close its account. It was irreparable loss for the respondent bank because of bank depends upon its good will/reputation. It is well settled that on the basis of sheer technicalities appellant cannot be exonerated from serious charges of mis-appropriation and fraud. It makes them disentitled to remain in service of bank. It is clear from the material available on record that appellant and Sikander Mehmood, Manager mis-appropriated huge amount. The charges levelled against the appellant have been proved. So in the circumstances of the case 1 find that learned trial Court has rightly dismissed the grievance petitions brought by appellant. The impugned judgment is just and proper, therefore, there is no justification to set aside the same.

For what has been discussed above. I am of the considered opinion that these appeal have no force and the same accordingly dismissed. No order as to costs”.

9. it is pertinent to mention here that learned High Court after re-appraisal of evidence on record had given finding of fact that enquiry was conducted by the respondent bank oin according bank in accordance with law, rules and regulations, therefore impugned judgment is valid in the eyes is law as the law laid down by this court in Board of Secondary Education, Sargodha v. Abdul Rehman (1988 SCMR 1711).

10. Mere reading of the aforesaid operative part of the impugned judgment of the learned High Court and defimition or word misconduct. It is crystal clear that petitioner had committed misconduct as the petitioner failed to observed the rules and regulations of the respondent. The learned counsel for the petitioner as well as the petitioner have not have able to refer to anything in evidence which could pursued us to hold that afore referred finding is arbitrary, illegal or against the record. That being so, the concurrent judgment of the court below are unexceptionable as law laid down by this Court in the following judgment:-

I. Naeem-ur-Rehman v Abdul Aziz (1986 SCMR 1961).

II. Ghulam Rasool Khan v./ Mst. Jindan (1986 SCMR 775).

III. Abdul Hameed v. Ali Ahmed Khan (1979 SCMR 503)

11. Exen otherwise no question of law of public importance has been raised either to warrant interference. It is also settled principle of law that this court seldom, interference in the concurrent findings of the court below while exercising power under Article 185 (3) of the Constitution of Islamic Republic of Pakistan.

12. In view of what has been discussed above petitions having no merits are dismisse.