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Appeal No. GA‑132 of 1984, decided on 11^th July, 1984.

‑‑‑Ss.25‑A & 36‑‑Practice and procedure‑‑Grievance petition against dismissal for misconduct‑‑Workman taking plea that he was not allowed opportunity of cross‑examining witnesses and to produce defence‑ Enquiry Officer, in circumstances, held, should have been put in witness‑box before Labour Court.

‑‑‑ Domestic. enquiry‑‑Non‑allowing opportunity of cross‑examination of witnesses to accused‑‑Sufficient to vacate ultimate dismissal order based upon such enquiry.

Malik Muhammad Asghar for Appellant.

Irshad Ali Mian for Respondent.

Date of hearing: 4th July, 1984.

The decision, dated 22‑3‑1984 passed by the learned Presiding Officer, Punjab Labour Court No. 7, Gujranwala has been challenged in this appeal, whereby the grievance petition of the appellant for his re‑instatement in service was dismissed.

2. The allegation against the appellant was that he was entrusted 50 diaries to be delivered in the A.V.P. City Branch but, he mis appropriated the same. During enquiry oral evidence of entrustment of the diaries was produced but it is not disclosed to whom the diaries were to be delivered by the appellant. Admittedly, no receipt from the appellant was taken. The Diaries were in large number, so if they had been delivered to the appellant, a receipt must have been taken from him. This is not the case of the prosecution that the diaries were entered in any register and signatures of the appellant were received. This is in evidence that some diaries had been brought by the appellant from upper storey. If he had been in need of the diaries he could have very easily removed the same from the stores instead of mis appropriating the alleged entrusted diaries. It appears that the diaries were somehow or other lost and the loss was attributed to the appellant wrongly. Mr. Masood Ahmad was responsible as he was the custodian of the diaries. The possibility cannot be excluded that he in order to save his own skin implicated the appellant. In the absence of any receipt he could not be believed to have entrusted the diaries to the appellant. Two other witnesses supported the statement of Masood Ahmad but they being his fellow employees were interested in saving his service at the cost of the service of the appellant who being a menial did not command much regard in comparison with the said Masood. The Enquiry Officer and the learned lower Court failed to notice this fact. The enquiry proceedings show that either the appellant did not cross‑examine the witnesses or he was not allowed to do so. His contention is that he was not afforded opportunity of cross‑examination. The Enquiry Officer therefore, should have been put in the witness‑box to state that he had allowed opportunity to the appellant to cross‑examine the witnesses and to produce defence. The statement of the appellant in this respect, I therefore, stands unrebutted. Even if it be believed that the diaries had been entrusted to the appellant, the defect of not allowing the appellant opportunity of cross‑examination and producing defence, is sufficient to vacate the order of dismissal.

3. As a result, the appeal is accepted and setting aside the dismissal order and impugned decision of the learned lower Court, the appellant is directed to be re‑instated in service. As on account of want of written receipt of the diaries the entrustment has been disbelieved and as on the ground of technical defect of not examining the Enquiry Officer, the appellant has been directed to be re‑instated, he is not entitled to back benefits.

A. E.

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