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Petitioner: FAUJI FERTILIZER COMPANY LIMITED, RAWALPINDI and another VS Respondent: LIAQUAT ALI
Court Name: Labour Appellate Tribunal Judge(s): Tanzil-ur-Rehman Title: FAUJI FERTILIZER COMPANY LIMITED, RAWALPINDI and another vs LIAQUAT ALI Case No.: Appeal No,KAR-123 of 1998 Date of Judgment:1999-09-30 Reported As: 2000 PLC 398 Result: Appeal allowed
JUDGMENT
JUDGMENT ' This is an appeal under section 37(3) of Industrial Relations Ordinance, 1969, against the decision, dated 24-3-1998, passed by Presiding Officer (Mr. S. Ali Muhammad Rizvi), Sindh Labour Court No,5 at Karachi, in Application No,255 of 1994, under section 25-A of I.R.O., 1969, whereby the learned Labour Court was pleased to reinstate the respondent with back benefits. 2. The respondent, at the relevant time, was t Supervisor (Administration), performing protocol duties. As a part of his duty, he used to arrange for travel formalities of 'expatriate vendors' and also pay for, on behalf of the company, excess baggage charges, if any, for the said expatriate vendors. For this purpose, the respondent used to be paid in advance to meet the said exigencies. This amount used to be paid by the Senior Executive (Administrative) (Captain Matiullah) to the respondent, who was responsible to submit, later on, statement alongwith counterfoils of the excess baggage tickets. The respondent, for the relevant period, submitted statement of account alongwith excess baggage ticket in respect of four individuals (the expatriate vendors valued for Rs,2,17,500 (Rupees Two lacs seventeen thousand and five hundred only). The respondent appears to have submitted the relevant statement on four different dates in respect of the four individuals. The Internal Audit Department of the company sent a letter, dated 17th March, 1993 for necessary verification of the said statements) to Pakistan International Airlines. The Pakistan International Airlines, by their letters, dated 4th May and 25th May, 1998, informed the appellant of the correct details. Such letters form part of the enquiry file. In fact, the whole file has been annexed as R/1 by the appellant alongwith its reply statement. On scrutiny of the two letters, received from the Pakistan International Airlines, it was found that the excess baggage ticket and excess baggage paid, did not co-relate and correspond with the details, as submitted by the respondent. However,
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it was stated by the Pakistan International Airlines that, out of four excess baggage tickets, one was reported to be misplaced and not traceable. According to letter, dated 4th May, 1993 of the Pakistan International Airlines, "the excess baggage ticket, as per record, has been declared lost and as such has not been issued to any passenger". 3. Thereafter, a show-cause notice, dated 27th May, 1993 was issued to the respondent. On receipt of show-cause notice, the respondent asked for copies of the relevant documents, which were duly supplied to him. Thereupon, he submitted his explanation which, having been found unsatisfactory, a domestic enquiry was instituted. A letter of enquiry was, thus, issued to the respondent. The enquiry proceedings commenced on 22nd A July, 1993, the respondent participated in the enquiry with his helper. The enquiry, it appears, was made in details on different dates totaling in all, it took twenty days of hearing. 4. It is, however, pertinent to note that on 25th July, 1993, the respondent, who appeared with his helper (Mr. Shareef), "requested the Enquiry Officer for recording of his confessional statement. He was advised by the enquiry officer to relax and put his mind at rest before making such statement. On his insistence, the statement was recorded in the presence of his helper and after explaining all the pros and cons. But he was still afforded an opportunity to release and re-consider his option of confessional statement till 9-30 hours, on 26th July, 1993. He appeared before the Enquiry Officer on 26th July, 1993 at 9-30 hours and reconfirmed his previous statement (for making confessional statement) and also requested for stoppage of enquiry proceedings in the witness of Mr. Saifullah Abid, Finance Officer R.M. Office, Karachi who also signed it in witness whereof enquiry proceedings are hence closed as far as the accused is concerned as noticed by the Enquiry Officer (page 75). 5. It,- however, seems pertinent to reproduce the entire confessional statement, which reads as under:-- "To. ' The Enquiry Officer, Karachi. ' Sir, ' In response to the show-cause notice served on me by Resident Manager, FFC, Karachi vide No,1- 7/P/S/RWER-3362, dated 27-5-1993. ' I have following submission to make:-- ' Since I am not in a position to prove may (sic) innocence as such I humbly submit that though I have not miss (sic) appropriated the fund but still L admit may (sic) fault on the basis of mercy and large heartedness of the management. This statement is absolutely, voluntarily and without any internal/external pressure. ' I am signing, this statement in full senses on the basis of mercy. (Sd.) (Sd.) 26-7-1993 Yours faithfully. 26/7 Enquiry Officer (Sd.) ' Prosecutor Liaquat Ali, ' Admin Sup. ' P-4301. 25-7-1993." ' The Enquiry Officer, later on, brought it to the notice of the Manager at Karachi, who referred the matter to the Head Office at Rawalpindi. The matter remained under consideration at the Head Office. However, the respondent, after waiting for a decision by the, management for four and half months, by his letter, dated 11-12-1993, retracted from his earlier statement alleging that, "the same was written by me with undue force and my stand of innocence in all regards is still intact as before 25-7-1995". Page 168 of enquiry file (R/2) (Exh.D1). 6. It also deems to reproduce the said letter of withdrawing his earlier confession. It reads as under:-- ' Karachi Dated: 11-12-1993.
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' Col. M. Salim Beg. ' Enquiry Officer for ' Fauji Fertilizer Company Limited, Karachi. ' Sir, ' In pursuance of letter, dated 25-7-1993 by me :on the instigation, advises, force and intimidation by local management and the persons who are covering directly and indirectly to Capt. Matiullah, I may clarify that I am innocent and have no link, whatsoever, in respect of the allegations levelled against me in the show-cause notice. Please cancel my letter, dated 25-7-1993. And 26-7-1993, as the same was written by me with undue force and my stand of innocence in all regards is still intact as before 25-7-1993. ' Thanking You. ' Yours faithfully (Sd) (Liaquat Ali) P.No,4301." ' On receipt of the said letter, the enquiry proceedings were re-started from the State, it was stopped on 26th Judy, 1993. 7. The appellant examined Captain Matiullah, Senior Executive (Administrative) (R.W.1). M. Iqbal Driver, who used to perform duty with the respondent, taking the respondent to the Airport (P.W.2). P.W.3 Syed Ahmed Shah, officiating Assistant Manager (Revenue). P.W.4. Z.A. Khan, Resident Manager, Karachi Branch, P.W.5 Fakhar-e-Alam, Administrative Assistant, P.W.6 Tauqir Afzal, Head of the Finance Department at Karachi, P.W.7 Saifullah Abid. All the witnesses were cross-examined, at length, by the respondent except P.W.6 who was not put a single question in spite of the opportunity, afforded to him. After the close of the appellant's evidence, the respondent was asked to examine himself and produce his witnesses. He, however, chose to file a statement (already prepared by him) in writing (page 53 of R/20). He was cross-examined by the appellant's representative in the enquiry. The respondent, however, produced no witness. The enquiry concluded. The Enquiry Officer, then submitted his detailed report with findings of enquiry (pages 111 to 131). The conclusions marked 'E' and 'F' at the end of the report (page 131) are reproduced as under:-- "(E) Although there are anomalies in flight number and sectors of PIA Revenue Record, but it in no way repudiates the amounts which were charged and, misappropriated from FFC Account. The fact of EBT for Rs,600 in respect of Maj.-Gen. (Retd.) Qazi Abid Hussain, the then Additional M.D. Of F.F.C., having been fraudulently utilized against VSM for an amount of Rs,18,000 is a proven fact of the mala fide intention of the accused since VIP handling of MD/AMD was invariably personally performed by the then Administrative Assistant Protocol Mr. Liaquat. Ali. (F) In light of the above findings the enquiry, therefore, finds Mr. Liaquat Ali guilty of the charge of misappropriation/fraud of Rs,1,94,000 (Rupees One hundred ninety-four thousand only)." 8. The Enquiry Officer had discussed the entire evidence and drawn conclusion therefrom, which seems to be correct, based on evidence, both oral as well as documentary. It was, inter alia, observed by the Enquiry Officer that the PIA Finance Department provided four excess baggage tickets in original and those were physically examined and signed by the accused Mr. Liaquat Ali, detailed as under:-- "(a) EBT 214 4516 344127 was reported stolen/misplaced and a sum of Rs,45,000 have been claimed by the accused. (b) EBT 211 4516 255381 was issued by PIA in name of one Mr. Muhammad `Yasin for Rs,250 only whereas the accused has claimed Rs,72,000 against this EBT. The PIA representative, however, pointed out that originally EBT 214 4525 292886 was issued in favour of Mr. Boschini for sector Karachi-Rome-Milan for Rs,9,700 in respect of passenger ticket 214 4401 528560 for 33 Kgs. Weight only. The accused neither produced this ticket nor claimed Rs,9,700 from the company.
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(c) EBT 214 4515 836619 for Rs,82,500 was actually issued by PIA for Rs,220 only for sector Karachi Lahore for domestic ticket No, 214 1222 663961 in respect of one Mr. Mir Ajab. Khan. The PIA representative revealed the fact of the EBT No,214 4525292895 for sector Karachi-Paris-Frankfurt in the name of one Mr. Montagna Donato for 10 Kgs. Weight amounting to Rs,3,300. This amount has also not been claimed by the accused from the company. (d) EBT No,214 4513 807717 for 60 Kgs. Weight valuing Rs,18,000 was actually issued by PIA in favour of Maj.-Gen. (Retd.) Qazi Abid Hussain, the then Additional Managing Director of FFC, for a sum of Rs,600 only. The PIA representative confirmed that no EBT had been issued in favour of Mr. Montagna Donato as claimed by the accused." ' After narrating the above four EBT (Excess Baggage Tickets) it was observed by the Enquiry Officer that: "The accused had a thorough examination of the above tickets, i,e, flight coupons as well as revenue coupons. The encashment of a ticket in respect of Maj.-Gen. (Retd.) Qazi Abid Hussain by fraudulent means for a. Sum of Rs,18,000 is an ample proof of the misappropriation carried by the accused since he was the only Protocol Administrative Assistant who handled the departure of the Additional Managing Director from Karachi to Islamabad. ' An effort was made by the accused to side-track the Revenue Records of PIA with PIA anomalies/discrepancies for which he was cautioned to remain within the paramaters of questioning; only the Revenue Records. The facial expressions of that accused at that very stage after having seen the originals were tentamounting to fate accompli and did not further question the PIA representative." (Pages 117--119 of REP). ' I had the occasion of reading with Mr. Masood Khan, learned counsel for the appellant, the entire enquiry report, the findings, given by the Enquiry Officer, being the crux of the whole enquiry, are apt to be reproduced as under:-- "(a) The enquiry started again on 16th December, 1998 produced witnesses including the prosecutor himself. (b) P.W.3 proved the fact of misappropriation by showing the original revenue flight coupons and revenue coupons. These were seen physically by the accused and initialled in verification. (c) P.W.4 confirmed the prosecution story of spending the money by the accused and also his so admission alongwith photo copies of four EBTs. The accused admitted of having paid cash to outgoing vendors himself in the presence of P.W.1. When Internal Audit Report was initially received by Resident Manager, P.Ws.1, 4, 5 and 7 have all confirmed that cash payments were always made by accused Liaquat Ali. The confession of the accused even after having given him 24 hours to think over it on 25th July, 1993 and its subsequent withdrawal on 12th December of 1993, leads to believe the mental state of the accused which only a guilty conscious can dictate. His effort to disprove that he was spending the money for VSMs was a failure as brought out by a reliable and non-controversial P.W.1 Brig. Z.A. Khan (Retd.). The case against the accused was very thoroughly processed and it was on the basis of his foresightedness that a letter initiated with great pains was withdrawn and PIA vigilance/Finance put on the right path by Brig. Z.A. Khan (Retd.) to find out the names of passengers in whose favour those bogus EBTs were prepared. This issue when confronted by the then Resident Manager to the accused put him on guard and he (accused) changed his story to no comments. (d) Based on the strength of prosecution witnesses, for all sorts of expenditure by Mr. Liaquat Ali, can safely be inferred that Mr. Liaqat Ali was custodian of the total amounts withdrawn ' otherwise how could he spend the money at the check-out, time, at the airport terminal and meet the requirement of EBTs. It is also established that Capt. (Retd.) Matiullah, SE (Administrative), did visit the airport to miss see off the vendors. Due to efficient handling of VIP/VSMS by Mr. Liaquat Ali,
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Resident Manager initiated a letter to FFC Head Office for promoting Mr. Liaquat Ali either to the rank of an officer or Supervisor, which eventually led to his promotion as Supervisor Protocol. It is also an established fact that all officers of FFC, Karachi had too much faith and reliance in Mr. Liaquat Ali and blindly entrusted him with huge sums of company money. (e) Although there are anomalies and sectors of PIA Revenue Record, but it in no way repudiates the amounts which were charged and misappropriated from the FFC account. The fact of EBT for Rs,600 in respect of Maj.-Gen. (Retd.) Qazi Abid Hussain, the then Additional M.D. Of FFC, having been fraudulently utilized against VSM for an amount of Rs,18,000 is a proven fact of the mala fide, intention of the accused since VIP handling of MD/AMD was invariably personally performed by the then Administrative Assistant Protocol Mr. Liaquat Ali. (f) In light of the above findings the enquiry, therefore, finds Mr. Liaquat Ali guilty of the charge of misappropriation/fraud of Rs,1,94,000 (Rupees one hundred ninety-four thousand only)." 9. Therefore, the Enquiry Officer found the respondent guilty of the charge of misappropriation/fraud of Rs,1,94,000 (Rupees one hundred ninety-four thousands only). 10. The enquiry report was, then submitted to the management and it was decided by the management to terminate. The services of the respondent by letter, dated May 5, 1994 (page 51 of R&P). The matter did not end up there. The respondent gave a grievance notice on 7-5-1994 under section 25-A of I.R.O., 1969 to the appellant and then filed a grievance application in the learned Labour Court No,5 at Karachi on 15-6-1994. The appellant filed its reply statement, submitting therewith the two enquiry files as R/1 and R/2. Thereafter, the respondent filed his affidavit-in- evidence, but produced no witness. The appellant examined Tauqir Afzal, Finance Executive. The respondent and the appellant's representative were both cross-examined and after hearing the arguments of the learned counsel for the parties, the learned Labour Court allowed the said grievance application, as already observed hereinabove, reinstating the respondent with back benefits. 10-A, The learned Presiding Officer framed the following points for determination:- (1) Whether the show-cause notice, dated 27-5-1993 is time-barred and in violation of Standing Order 15(4) of the Standing Orders Ordinance, 1968 ? (2) Whether the applicant has committed offence punishable under Standing Order 15(3)(b) of the Standing Orders Ordinance, 1968 and the enquiry was rightly decided against the applicant? (3) Whether the applicant is entitled to reinstatement with full back benefits? (4) What should the order be? 11. As regards point No,1, it was held that the show-cause notice was not time-barred. 12. The main point, as urged by Mr. Masood Khan, learned counsel for the appellant, which has arisen in this case is whether the charge has been proved against the respondent or not. 13. Learned counsel for the appellant submitted that the impugned decision suffers from misstatement of facts, misreading and non-reading of evidence e.g. It is stated in the decision that the management has denied the fact that the respondent was a workman, whereas the appellant clearly stated in para.2 of the reply statement (page 61 of R&P) that the respondent was a workman, as defined in the Labour Laws. It appears that, perhaps, the words "not denied" as stated in the reply statement of the appellant, was misread as "denied" by the learned Presiding Officer. 14. Referring to para. As referred to by the learned Presiding Officer in his decision at page 8, the learned counsel submitted that there is no discrepancy in the excess baggage ticket numbers. The difference in the flight number or the destination is immaterial. As regards para.F of the report, referred to by the learned Presiding Officer, learned counsel submitted that the learned Presiding Officer was influenced wrongly by the difference in figures, as given in the show-cause notice i,e, Rs,2,17,500 and the figures arrived at after enquiry to be the sum of Rs,1,94,000, is immaterial, which, in fact, is Rs,1,93,400. Reliance is placed by the learned counsel at page 105 of R/1 titled as "PIA
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version" which is, in fact, a comparative statement of the appellant company as well as PIA (see page 105), which is not disputed by Mr. Gohar Iqbal, when questioned. 15. According to the learned counsel for the appellant, the reason of the difference of the amount, as per charge-sheet (Rs,2,17,500) and the amount, as worked out later on, on receipt of the two letters from PIA read with evidence of P.W.3 (Rs,1,93,400) is that an amount of Rs,24,300 has been paid to PIA by way of excess baggage charges in respect of the four gentlemen, who travelled on account of the company, for which no adjustment was submitted by the respondent. I have perused the impugned decision and found that the learned Presiding Officer has vainly tried to raise an anomaly in respect of the amount of Rs,24,100 in his decision (page 8) which stands explained by the learned counsel for appellant to my satisfaction in the light of the evidence, referred to by him mainly the PIA's evidence. The learned Presiding Officer has, again vainly tried to show an anomaly in respect of the case of Mr. Montegna Devota. The learned counsel for the appellant, explaining the above, referred to the letter, dated 4th May, 1993 of PIA, wherein it has been explained that the excess baggage ticket, under reference, was reported lost by the Traffic Office to whom it was issued by the PIA. Therefore, as per record, it has been declared lost and has not been issued to any passenger. It appears that the learned Presiding Officer's observation suffers from an infirmity in his judgment by non-reading of evidence viz. The two letters of the PIA. The learned Presiding Officer has again misread the evidence as to the difference of amount of Rs,23,500 for which detailed statement has been given in Annexure J at page 105, which is a comparative statement and has already been referred to above. The anomaly, as observed by the learned Presiding Officer, stands fully explained in the light of the evidence, led particularly by the PIA. As regards observation of the learned Presiding Officer that no cash hook or receipt of the respondent, on the basis of which, it was alleged that the respondent had received cash of Rs,2,17,500, has been produced. Explaining the non-production of the cash book/receipt of the respondent, the learned counsel referred to the statement, made by P.W.1 Matiullah, the Senior Executive (Administration), who deposed that. "This amount was paid to me by cheque (crossed) by Finance Section, Karachi, accordingly, I handed over this cheque alongwith by personal cheque to Mr. Liaquat Ali_who was then performing the duties of Administrative Assistant (Protocol). I may mention here further that this practice of drawing the cash and handing over was prevalent in the company much before my joining the company. During 1992 I was also performing the duties of Senior Executive Clearing and Forwarding and I had to attend to the hectic schedule of clearance, specially during the TA. In .View of this Mr. Liaquat Ali, Administrative Assistant (Protocol) had handled the VSMs from Hotel till their final booking to the aircraft, as such all the excess baggage charges including the genuine and bona fide needs of the VSMs were looked after by Mr. Liaquat Ali, Administrative Assistant (Protocol). He had the requisite cash to deal with such expenditures. The excess baggage ticket in question were, thus, obtained by him and later submitted for adjustment of cash to me. As per company procedure details of other expenditure were put up for adjustment to me and eventually to Finance Section. I hereby produce the photo copies of three excess baggage tickets numbers: (a) 214-4516-255381 - Exh.P9. (b) 214-4514-836649 - Exh.P10. (c) 214-4516-344127 - Exh.P11. ' Now I submit adjustment vouchers known as payment order for adjustment made out in the handwriting of Mr. Liaquat Ali, Administrative Assistant (Protocol) and some details of expenditure handwritten by Mr. Liaquat Ali which makes it evident that the said expenditure was done by him (Exh.P12)...I may mention here that in the month of December, 1992 when Mr. Donato was to be booked for his outward journey was exclusively handled by Mr. Liaquat Ali, Administrative Assistant Protocol and I had not gone to the airport since Mr. Donato had earlier visited .The plant during T.AI have already produced the documents and certain details thereof prepared by Mr. Liaquat Ali in
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his own hand alongwith the tickets which were submitted by him.." Learned counsel for the appellant also referred to questions Nos,22 and 27 and their answer, which reads asunder:-- " (Q . 22) It is a company policy to give cash to staff which is entrusted with such a job and asked for settlement of account? (A. 22) The cash is given for various types of jobs to management employees who in turn give that money to the staff employee to accomplish the assigned task and later on its settlement. (Q.27)The briefing and payment of excess baggage is done in restricted area where only the ticket holder and Airport Security Pass-holders are allowed without Airport Entry Pass how could I handle these VSMs? (A.27)It is true that no one can enter the restricted area except the confirmed ticket-holders and those in possession of Airport Security Pass. I remember you had requested for taking up a case regarding the issuing of Airport Security Pass. This difficulty as told by you to me was tackled/overcome by a procedure which you told me was being done and adopted that the VSM used to go inside with his belonging and luggage and used to get the items weighed in case some excess baggage was to be paid, the VSM used to come out and contact you giving details of the amount to be paid as excess baggage. The amount which you used to carry was paid by you to the VSM who used to pay the same and obtain the EBT and hand it over to you. Further, you also told me that at times you used to get dummy ticket to get inside the restricted area to overcome this difficulty so that you are personally present to make the payments. I now recollect, you having told me that by entering you were on your way back i,e, while coming out of the airport restricted area, you were about to be caught by the security staff. On one occasion by doing so you were caught and you had to submit your National Identity Card." ' Learned counsel for the appellant also referred to the statement of P.W.1, appearing at page 31, which is reproduced as under:-- "...However, the peculiar inbuilt protocol duties like paying cash for excess baggage. Hotel checkout was always done by Mr. Liaquat Ali " ' He also referred to the statement of Matiullah wherein it was deposed by him, on oath, during the cross-examination that he had full confidence in the respondent and used to never obtain receipt of the cheque. Handed over to him personally, who used to get it encashed through some employee of the Company. Learned counsel for the appellant also referred the statement of Tauqir Afzal (P.W.6), which is reproduced as under:-- " The finance hands over the cheque…
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