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Appeal No. GWA‑517 of 1976, decided on 20th March, 1984.

‑‑ S. 25‑A‑Scope‑Labour Court can go into facts of case and come to conclusion whether by evidence charge against petitioner workman established or not‑Workman accused of three charges of negligence causing loss to employer‑Two established by evidence-Contention that if Enquiry Officer had found accused guilty of two charges employer may have prescribed some other punishment short of dismissal, in circumstances, rejected and petition against dismissal from service rejected.

‑‑ Domestic enquiry‑Change of Enquiry Officer‑Accused without laying any aspersions against Enquiry Officer demanding change Demand being without any ground, in circumstances, held, not justified and non‑participation of accused in enquiry on plea of his demand for change of Enquiry Officer not justified.

Malik Muhammad Asghar for Appellant.

Farooq Zaman for Respondents.

Dates of hearing : 29th and 30th January, 1984.

The above‑captioned appeal arises from the decision, dated 30th November, 1976 recorded by the learned Presiding Officer, Punjab Labour Court No. 1, Lahore, whereby the grievance petition of the appellant for his reinstatement in service was dismissed.

2. Two charge‑sheets were served upon the appellant. One is Exh. P. W. 1/4, dated 17th June, 1974 and the order is Exh. P. W. 1/A, dated 16th September, 1974. The first pertains to shortage of crates of bottles and the other is with regard to the bogus entries made in the stock register. Separate enquiries were held. The appellant did not participate in the enquiry held by Mr. Zafar Alam. His prayer was that some person from the Head Office should hold the enquiry. The Enquiry Officer was not changed. The appellant, however, participated in the second enquiry. The learned lower Court refrained from expressing its opinion on the findings of the Enquiry Officer holding that the Labour Courts could not go into the facts of the case. My learned predecessor upheld the decision of the learned lower Court. The High Court has held that the Labour Courts can go into the facts of the case and thus has remanded the case to this Tribunal. Normally the case was to be decided again the learned trial. Court on facts as previously no finding was given whether by the evidence the charge had been established or not but since the case has been remanded to this Tribunal, J am bound to decide it on merits.

So far as the first charge‑sheet is concerned, the shortage of crates of bottles was detected when the appellant on his transfer delivered the charge to his successor. The appellant admitted the shortage but denies his liability. His plea is that the crates and bottles were kept in open place for want of room inside, and he had informed the Head Office about it. No doubt he had complained to the Head Office but that did not absolve the appellant from the liability. He did not get the crates and bottles duly stacked nor was taking pains to count their quantity. Due to his neglect of duty the goods were lost. Just at the time the crates of filled bottles were received and unloaded from the vehicles, they could have been easily stacked and counted and entries made in the relevant register. Likewise at the time of issuance and loading of goods on the trucks, the goods could be counted and checked. If they had been side by side pro perly stacked, their counting and checking at any time of the day or at the time of change of duties between the shipper and the Assistant Shipper, could be very easily done and shortage, if any, detected and measures taken to eliminate the danger of theft or misappropriation. It makes no difference if the goods are kept outside in open air or inside the room. If they are properly stacked, no leakage is possible. It stands proved by the evidence of Raja Fazal Ahmad, enquiry witness No. 1 that stacking was not done. He said that the goods were lying scattered in a state of topsyturvy. It became difficult to stack the goods afterwards allowing them to accumulate the considerable quantity. The same labour that unloads the vehicles can be directed to stack the crates instead of placing them in a scattered manner. It is evident that while daily unloading the crates, they were placed in a scattered manner. The appellant, being the shipper, primarily it was his duty to keep the stock in such a manner that its checking and counting was possible. After him it was the responsibility of the Manager. The appellant could refuse to accept the stock unless it was properly stacked. He could refuse to issue receipts of the goods if they were left un-stacked just as goods cannot after being loaded go out of the stores unless the shipper issues gate pass. By not getting the stock properly stacked, the appellant caused willful damage and loss to the respondent. His case is that sometimes the goods were loaded for being issued directly from vehicles that brought them. If it ever happened, he could refuse to issue receipt of goods on the plea that they were not brought in the stores. Stocks of empties and filled bottles are entered at the gates when they are brought to the stores and the shipper, if he takes the trouble of checking and count ing them before receiving them, can tally them with the entries made at the gate. So it was not difficult to know if the quantity was correct, or was short.

4. As mentioned above the appellant did not take part in the first enquiry. In the enquiry with regard to the second charge‑sheet, he deposed in his statement that in April and May, 1974 he was worried due to lack of security facilities in relation to filled and empty bottles, non‑observance of loading and unloading procedure and sale on holidays in his absence which resulted in shortage. He has given shortage also in his statement and said that on the following days he reported the said shortage. But no such report has been pointed out on the file during arguments. He has also not explained the security facilities that according to him were wanting. There were gates fitted to the stores and gate keepers were deputed who did not allow any goods to enter and go out unless gate pass had been shown to them. What more security measures he wanted Either he intentionally kept the stock in total topsyturvy state that no one could detect the shortage that may have been caused by removing the crates and bottles by him, o the un-stacking of goods facilitated the thieves to remove the stock un noticed. Thus the only cause of the shortage was the keeping of the goods in an un-stacked condition.

5. The demand of the appellant that someone from the Head Office should hold the enquiry was not justified. He did not lay any aspersion; against the Enquiry Officer, so there was no ground to change him. The appellant was thus not justified in not participating in the enquiry. He was thus rightly found guilty under charge No. 1.

6. So far as charge No. 2 is concerned, the appellant participated in the enquiry. Charge‑sheet Exh. P. W. 1/A contains two charges. One i, that on 1st May, 1974, 450 crates of empties were sent to Tops, Rawalpind: but he had shown in the register the quantity as 460 crates. The second charge is that on 10th May, 1974 the appellant made an entry of despatch ing to Rawalpindi 11 crates but the factum of despatch was not substantiated by any document and in this way he reduced the number of stock in hand by 21 crates, To prove the charges Mr. Zafar Ahmad, Mr. S. M. H. Rizvi and Mr. Muhammad Rashid, Gate Keeper were examined by the prosecution before the Enquiry Officer. The appellant appeared as his own witness but did not examine any other person in defence.

7. So far as the entry of 1st May, 1974 is concerned, it stands proved that only 450 crates were sent. The gate register entry is very important. Everything while going out of the godown is checked at the gate entered in the gate register. In the gate register the quantity given is 450 crates, meaning thereby that only the said number of crates were sent to Rawalpindi but the appellant in his register called the shipper's register entered the quantity as 460 thus reducing the stock in his hand by 10 crates. The entry in the gate register was proved by Mr. Muhammad Rashid, Gate Keeper. He deposed that he had made entry on 1st May, 1974 of 450 crates as only this quantity of crates was loaded. However, the finding of the Enquiry Officer regarding the despatch of 11 crates K. S. is wrong. Total crates were 375 out of which 364 were K. S. and 11 regular size. Total crates that were sent to Rawalpindi were 375 and not 364. The only mistake is that although in the shipper's register the appellant mentioned the despatch of 11 regular size crates correctly yet in the letter sent to Rawalpindi with the stock, he by mistake mentioned 1 l crates as king size instead of regular size. If 364 crates had reached Rawalpindi of course, it could be said that I1 crates were short.

8. Out of the three allegations two were established, so it cannot be said that if the Enquiry Officer had found the appellant guilty of two allega tions, the employer may have prescribed some other kind of punishment short of dismissal. So the appellant was rightly dismissed.

9. As upshot of the discussion made above, the grievance petition of the appellant is dismissed.

A. E. Petition dismissed.

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