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Appeal No.G.T-319 of 1980/Pb., decided on 17^th July, 1982.

West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)--

---S.O.15--Dismissal from service for misappropriation--Appellant accused of eight charges--Found guilty by enquiry officer on five charges- Dismissed from service--Trial Court holding that only four charges were proved--Tribunal finding only two charges established holding that appellant's case was prejudiced while awarding punishment- Appellant re-instated in service without back benefits.

Chan Pir Shah's case 1981 P L C 981 rel.

Iftikhar Ahmad Dar for Appellant.

Mian Abdur Rashid for Respondents.

Date of hearing: 12th July, 1982.

This appeal arises from the decision dated 19-3-1980 passed by the learned Presiding Officer, Punjab Labour Court No.6, Rawalpindi, whereby the grievance petition of the appellant for his re-instatement was dismissed.

2. There were eight charges against the appellant. The Enquiry Officer found him guilty under charges Nos.1 to 5 and the dismissing authority, thereupon, dismissed him. The learned trial Judge, however, held that charges Nos.1 to 4 only had been proved. Charge No.1 was that a parcel worth Rs.436 in the name of Janjua Tailors was received by the appellant and he delivered the same to the addressee, but misappropriated the amount of Rs.436 after recovering it from the addressee. In support of this charge Sabir Hussain and Muhammad Aslam Janjua were examined. Sabir Hussain proved that the parcel had been received by the appellant who prepared its voucher Exh. P-9 and took it away for delivery to Janjua Tailors. Muhammad Aslam Janjua deposed that the after paying Rs.436 to the, appellants he had received the parcel form him. The parcel was entered in the relevant register by the appellant as stated by Sabir Hussain. The learned counsel for the appellant has argued that it was not the duty of the appellant to receive the parcel and delivered and that the practice was that a slip was issued to the addressee and he had to collect parcel on payment This may be the practice, but by evidence of Sabir Hussain it stands proved that the appellant had received the parcel. By the evidence of Muhammad Aslam Janjua it stands proved that the appellant had delivered it to him and had received Rs.436. since this amount was not proved to have been deposited in the bank. Obviously the appellant had misappropriated it.

3. The other charge was that Taj Muhammad had taken away a cheque for Rs.3,001 for being enchased. He had some other vouchers also. The appellant went to the bank behind Taj Muhammad, Peon, and asked him to deliver the amount of the cheque already recovered by him because the customers were raising hue and cry and after getting he other vouchers encashed, he may wine afterwards and thus received Rs.3,001 from him. Taj Muhammad appeared as witness before the Enquiry Officer and supported the case of the prosecution. Sabir Hussain was also examined. Learned' counsel for the appellant, says that the amount ay have been embezzled by Taj Muhammad therefore, his evidence was not sufficient to prove the ,charge against the appellant I do not find any force in this argument. Taj Muhammad was not proceeded against for the embezzlement of Rs.3,001, therefore it cannot be said that in order to save himself, he falsely implicated the appellant. Some other witness could have been examined if any one had been present at the time the appellant received the money from Taj Muhammad peon the statement of Taj Muhammad was, therefore, sufficient to prove the charge.

4. charge No,3 was that a cheque was caused to be cashed by the appellant on 4-8-1970 at Jehlum. Charge No.4 is that a cheque was caused to be cashed by the appellant on 4-8-1970 at Rawalpindi. There is no evidence actually who received the money at Jhelum and Rawalpindi, nor there is any evidence that the persons who received the cash was sent by the appellant. It was not physically possible for the appellant to have received the payment of 660 cheque At Jhelum and the "other at Rawalpindi on the same date. According, the statement of the appellant, he was on duty on 4-8-1970 and performed his duties at Kharian. This statement does not stand controverted by any evidence. When he was on duty on 4-8-1970 at Kharian, he could not have received the amount of the two cheques, one at Jhelum and the other at Pindi these two charges, therefore, were wrongly held to have been established against the appellant.

5. Charge No.7 was of absence for more than ten days and the appellant was found guilty by the Enquiry Officer, but the learned trial Judge says that since the appellant had been suspended and it was not directed that he would remain, present during the period of suspension, the absence did not amount to misconduct. According to the Enquiry Officer the remaining, charges had not been established.

5. The learned counsel for the appellant has argued that very short time was given to the appellant to participate in the enquiry. The enquiry notice was served on 12th and the enquiry was to be held on 14th, 13th, is alleged to be holiday. The learned counsel, has further argued that the appellant could not contact' the enquiry, officer on a 12^th therefore, on l4th delivered an application to him for demanding the documents which were the basis of the case against him, but' the enquiry officer did not deliver he same The learned, counsel says that on account of non-supply of the copies to the appellant, the appellant was not in a position to defend himself properly in the enquiry. The enquiry notice was served "upon the appellant on 12th in the forenoon, therefore; there was, sample opportunity for him to prepare the-case, and to attend the enquiry on 14^th. No doubt the appellant trade Application Exh. P-8 to the Enquiry Officer for the supply of the documents, but the Enquiry- Officer explained in his statement recorded by the lower court that by that time he had not received the documents and he had, informed the appellant about; it and had assured him that he could inspect the documents after they were brought at the time of the start of the enquiry. The Enquiry Officer further deposed that after the documents were brought by the presentation they were shown to the appellant. Since the documents were made access-able to the appellant during the enquiry, the contention that the appellant could no property defend himself, cannot be accepted.

7. However; since only two charges out of eight were proved against the appellant and the remaining, six were not established Chan pir Shah,s case 1981 PLC 981 applies to this case. At the time the dismissing authority considered the Case for decision to take action and to prescribe 'the punishment five charge a out of eight according to the enquiry report; mere standing established, whereas actually only two charges-had, been established. The possibility, therefore cannot be excluded that if, the Enquiry Officer had found the appellant guilty of-only two charges, the punishing authority who was under the wrong impression that five charges had been established, may have taken a lintent view and prescribed a punishment short of dismissal Most of the remaining: charges which stood unproved were on the point of misappropriation of money, therefore, the dismissing authority considering that five such charges had been established, was prejudiced against the appellant while prescribing the punishment.

8. The order of dismissal 'therefore for the foregoing reasons is not sustainable. I accordingly accept the appeal and setting aside the impugned decision of the learned lower court and the dismissal order directed the re-instatement of the appellant in service. However since the appellant has succeeded only on technical grounds, he is not entitled to back benefits.

M. I.

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