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Appeals Nos. LHR‑839 and 847 of 1980/Pb., decided on 11th December,

West Pakistan

---‑ S. O. 15 (4)‑Dismissal for misconduct‑Charge of embezzlement --Charge‑sheet served about two years after alleged transaction‑No proof that charge came to knowledge of employer within one month of service of charge‑sheet‑Inquiry held without proper notice to accused‑Non‑participation of .accused in enquiry not for his own fault Cannot be treated as mere technical defect‑Re‑instatement with back benefits, in circumstances, awarded‑‑Industrial Relations Ordinance (XXIII of 1969), Ss. 25‑A & 37.

Afian Muhammad Yasin for Appellant.

Muhammad 7aman for Respondent.

Date of hearing : 29th November, 1982.

This appeal arises from the decision dated 22nd November, 1980 passed by the learned Presiding Officer, Labour Court No. 1, Lahore, where by the grievance petition of the respondent was accepted and the respondent was directed to be re‑instated without back benefits. The respondent has also brought cross‑appeal in which he has claimed back befits. As both the appeals arise from the same order they are being disposed ('together through this single judgment in which the Punjab Vegetable Ghee and General Mills Ltd., would be described as appellant and Ch. Muhammad Akram, as respondent,

2. There were three charges against the respondent. The first one pertains to the embezzlement of Rs. 2,160 on 2nd October, 1976. The amount was charged on a bogus bill of Majeed Chemical Stores as price of 5 bottles of vitamins A & D whereas the said articles were never supplied to the appellant. The second charge was the temporary embezzlement on account of purchases made by the appellant from Messrs S. . T. Chaudhry vide bill No. 127 dated 27th June, 1976 whereas the payment was made by him to the supplier on 30th October, 1977. The 3rd charge was that the respondent misappropriated Rs. 415 temporarily having received the amount from the company on 15th July, 1977 on account of costs of spare parts purchase from Messrs Chenab Bearing Centre but did not make the payment till January, 1978.

3. The learned lower Court found that charge No. 1 was within time but remaining two charges were time‑barred and that no. 2nd show‑cause notice was served and thus directed the re‑instatement of the respondent on the alleged abovementioned technical defects.. The grounds given by the learned lower Court for holding charges 2 and 3 as time‑barred are not correct. He relied upon P‑1 so far as the 2nd charge is concerned but this document ‑is an inquiry notice alleged to have been issued to the respondent after the charge‑sheet was given. This document therefore, does not show that tire employer got information of the embezzlement covered by ‑charge No. 2 within one month of the delivery of charge‑sheet. For holding charge No. 3 as time‑barred the learned lower Court relied upon P‑3 which too is not relevant to the point. This document is an application of‑ the respon dent for adjournment of the inquiry and thus does not show, that the employer got information of temporary misappropriation within one month of the delivery of the charge‑sheet. On the face of charges 2 and 3 are time barred and the appellant should have brought some cogent evidence to show that within one month of the delivery of the charge‑sheet the employer got information of misappropriation. The respondent has challenged in his cross appeal the findings of the learned lower Court to the effect that charge No. 1, was within time. Even charge No. 1 is not within time. The embezzlement referred to charge No. 1 occurred on 2nd October, 1970 but the charge-sheet D‑1 was delivered on 30th March, 1978. The learned lower Court has made reference to D‑4 for treating charge No. 1 as within tinge. D‑4 is an application dated 12th April, 1978 of the respondent of adjournment of the inquiry. It is manifest that application for adjourn ment made . after the charge‑sheet was delivered could not' be in any manner show that the employer got information about the misappropriation mentioned in charge No. 1 within one month from the delivery of the charge‑sheet. Only D. W. I stated that the employer got knowledge of the misconduct in March, 1978. He did not disclose how it came to the knowledge of the employer. This oral evidence was not sufficient to prove that misappropriation mentioned in charge‑sheet came into the knowledge of the employer within one month from the delivery of charge‑sheet, No document was produced in support of this fact.

4. The final notice of inquiry was not served upon the respondent. It is alleged to have been received by the brother of the respondent and the contention is that he refused to put his signatures. The brother of the respondent was not summoned as witness nor the document was put to the respondent. If the brother of the respondent had received the notice there appears to be no reason why he should have refased to put his signature in token of receiving it. The inquiry was therefore, not justified in making inquiry. Since‑ the respondent could not participate in. the inquiry not for his own fault it cannot be said that it was only a technical defect. The respondent, therefore, was entitled to back benefit also.

5. As upshot of the discussion made above I dismiss the appeal of Messers Punjab Vegetable Ghee and General Mills and accepting the cross- appeal of the respondent, modify the decision of the lower Court, allow back benefits to the respondent.

Appeal accepted.

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