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Appeal No.L1112-146 of 1980iPb., decided on 13th June, 1982.

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

---S.O. 15(4)--Dismissal--Appellant charged with misappropriation- Objection to appointment of second enquiry officer and request for copy of first enquiry proceedings not accepted--Appellant cross-examined prosecution witnesses and was afforded opportunity to produce defence- Refused to furnish reply to second show-cause notice--Was found guilty and dismissed from service--Order challenged on ground that appointment of enquiry officer and issuing of show-cause was not by competent authority--Contentions not substantiated--Order of dismissal upheld by Tribunal as charge of misappropriation was duly proved against appellant.

Mohammad Zaman Qureshi for Appellant.

Malik Muhammad Asghar for Respondent.

Date of hearing: 2nd June, 1982.

This appeal arises from the decision dated 17-2-1982 passed by the learned Presiding Officer, Punjab Labour Court No.1, Lahore, whereby the grievance petition of the appellant for his re-instatement was dismissed.

2. The facts of the case stated briefly are that the appellant was initially appointed as Receiver on 11-11-1975 in the respondent Mills and was Laboratory Incharge at Hafizabad in April, 1976 when he was Issued a charge-sheet on 19-3-1979 on the allegation that a truck loaded with 125 bags of rice was misappropriated by him. Two trucks of rice were taken from the Mills to Hafizabad Railway Station for being trans ported to Karachi. The goods were rejected at the Railway Station and under the instructions of the higher authorities had to be brought back to the Mills. One truck No. LEE-8359 entered the Mills and the goods were unloaded, but the other truck No.SA-1615 carrying 125 bags of rice reached the gate of the Mills but it was not allowed to enter the Mills by Mohammad Aslam, Security Guard and was taken to Kot Ludhay by the appellant and his companion Munir Ahmad. At Kot Ludhay the goods were unloaded in the godown of one Sheikh Aslam, where it was transferred to another gunny bags. Abdur Rehman Jani told Mohammad Munawar, Personal Secretary of the Project Manager Mohammad Afzal that one truck had been taken to Kot Ludhay and was not allowed to enter the Mills, nor was unloaded there. Mohammad, Munawar reported the matter to Mohammad Afzal, Project Manager, and in this way the misappropriation was unveiled. The appellant, thereupon, brought the goods to the Mills. On the asking of the Project Manager, he brought the empty gunny bags belonging to the Mills, in which the goods were contained when they were removed from the Mills for the railway station.

3. In the beginning Riaz Mahmood, Deputy General Manager and Mohammad Ashraf, Project Manager, were appointed as Enquiry Officers and they held an enquiry. After they submitted the report, second show-cause notice was issued to the appellant and he demanded copy of the enquiry proceedings. The General Manager vide his order dated 17-4-1979 ordered re-enquiry and appointed Mr. Gill as the Enquiry Officer. The copy of the proceedings of the previous enquiry was not supplied to the appellant. The appellant objected to the second enquiry and the appointment of Mr. Gill as the Enquiry Officer. He again on 22-4-1979 made application for the supply of the copies of the first enquiry proceedings, which was refused vide letter dated 24-4-1979. On 24-4-1979 enquiry letter in the second enquiry was issued to the appellant informing him that the enquiry would be held oh 28-4-1979. On the said date the appellant appeared and made an application asking Mr. Gill not to proceed with the enquiry as he had challenged the order of making fresh enquiry and his appointment as the Enquiry Officer. The application was forwarded to the higher authorities arid the enquiry was started on the same day in the absence of the appellant, who had left after making the application. However, the time of the enquiry was 10.00 a.m. but Mr. Gill had reached, according to the appellant, at 4.30 p.m. The evidence of all the prosecution witnesses was recorded. On the application of the appellant the General Manager allowed him to cross-examine the prosecution witnesses who had already taken examined and to produce his defence. Accordingly, the appellant was allowed to cross-examine the prosecution witnesses. He was enquired to produce defence and he made his own statement in defence but did hot propose to examine any person as defence witness. After the enquiry report was submitted to the General Manager he issued second show-cause notice. The appellant made application for the supply of the copy of the previous enquiry proceedings, but his request was not proceeded to. He, therefore did not file reply to the second show-ease notice. However, the copies of the fresh enquiry proceedings were delivered to the appellant vide Exh . D-14. Ultimately, the dismiss order was passed against him, which he challenged in his grievance petition.

4. The learned counsel for the appellant has argued that the dis missal order is illegal, inasmuch as the charge-sheet was issued, the Enquiry Officer was appointed and second show-cause notice was issued not by the General Manager, who was the appointing authority but the Personnel Manager. The learned trial Judge has held that the Personnel Manager had only conveyed the orders of the General Manager. In reality the General Manager had issued the orders of fresh enquiry and it was he who had appointed Mr. Gill as the Enquiry Officer for the fresh enquiry. Letter Exh.D-2 is clear on the point. Second show cause notice was also issued under his direction. I, therefore hold that the learned trial Judge has rightly observed that the charge--sheet was issued by the authorised person and that the fresh enquiry wets ordered by the competent authority.

5. The other point raised by the learned counsel is that the fresh enquiry could not be ordered. I cannot agree with him. If any flaw is found in the enquiry or it is found that proper opportunity was not afforded to the workman concerned, or far some other reason fresh enquiry can be ordered there can be no illegality in such an order. The proceedings of the first enquiry are also on the record and its perusal reveals that it was not properly made. The statement of only one witness was recorded, who had no direct knowledge of the mis appropriation and his statement could not connect the appellant with the guilt. Confession of the appellant was obtained and it appears that on that confession, the enquiry report was based. The General Manager was vigilant enough to foresee that the appellant may retract from the confession in future and as the necessary witnesses who had the direct knowledge of the misappropriation had not been examined, the General Manager ordered the fresh enquiry. So there is no illegality in it.

6. There is no force in the argument of the learned counsel that the copies of the enquiry proceedings of the first enquiry and of the documents should have been supplied to the appellant. Since the first enquiry was not acted upon, it was unnecessary to supply their copies. No doubt, the copies of the documents were not supplied but so far as the misappropriation itself is concerned, the documents are not very much valid. The documents relate to the taking of rice from the mills to the railway station and from there back to the Mills where one truck was unloaded and the other instead of being unloaded in the Mills was taken to Kot Ludhay. The fact that the rice was taken from the Mills to the railway station and that there goods were rejected by the purchaser is not disputed. Likewise, the fact that the trucks were taken back to the Mills where one truck was unloaded is also not disputed. The dispute is that the other truck was not unloaded at the Mills and was taken to Kot Ludhay by the appellant and his companions. In respect of this thing there is no document. However, the truck which was not emptied at the Mills it was entered in the gate record to have been unloaded and that the said record was relevant to the case, but when this thing is admitted that in the record it was mentioned that the truck was loaded, the documents were not very much important. The case of the prosecution was that the truck was shown to have been unloaded in the papers, whereas actually it was not unloaded there. The fact that it was not unloaded, at the Mills, was proved by oral evidence and, therefore, non-supply of the copies of the documents to the appellant is not such a defect, which either may have prejudiced the appellant or that if the copies had been supplied, the case of the prosecution had stood disproved. Mohammad Aslam in his statement stated that truck No.1516 was not unloaded at the Mills, although his signatures were received. The appellant had an opportunity to cross examine the witness and had actually cross-examined him, therefore, there appears to be no flaw in the enquiry. The evidence of Mohammad Arif, truck driver of truck No.1516 is very important, because he had disclosed, that on the asking of the appellant and his companion, he had taken the truck from outside the gate of the Mills to Kot Ludhay, where it was unloaded in the factory of Sheikh Aslam. The evidence of Abdur Rehman Jani is also important, because Mohammad Arif refused to take the truck to Kot Ludhay upon which the appellant asked him to consult Abdur Rehman Jani, who is the owner of the goods transport company and the owner of the truck on which the goods were loaded, Mohammad Arif and the appellant both, according to the statement of Mohammad Arif and Abdur Rahman Jani went to the latter on a motor cycle and thereafter the appellant had a talk with Abdur Rehman Jani, he asked Mohammad Arif that always the appellant used to take the goods of the Mills, therefore, on his asking the goods may be taken to anywhere he liked. Abdur Rehman Jani also supported this fact. He was also allowed to be cross-examined and the appellant cross-examined him extensively. The argument of the learned counsel for the appellant that even on facts the case is not proved, therefore, is not correct.

7. As a result of the observations made above, I am satisfied in my mind that proper opportunity of defending himself was afforded to the appellant and that the charge was duly proved, against him. He A was, therefore, rightly dismissed. There is no force in the appeal, which is dismissed.

M. I.

Appeal dismissed.

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