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Appeal No. LHR‑247 of 1977, decided on 1st February, 1984.

‑‑Ss. 25‑A & 38 (3) ‑ Re‑instatement‑Back benefits‑Labour Court dismissing grievance petition holding that it could not go into facts of case‑Appellate Tribunal upholding order of Labour Court High Court on writ petition setting aside decision with observations that Labour Court could go into facts and remanding case to Appellate Tribunal‑Appellate Tribunal reaching conclusion that findings of guilty by Enquiry Officer against petitioner not justified Appellate Tribunal, in circumstances, not deeming proper to allow back benefits while awarding re‑instatement.

Malik Muhammad Asghar for Appellant.

Ch. Ismat Ullah for Respondent.

Date of hearing: 29th January, 1984.

In this appeal the decision, dated 10th June, 1977 passed by the learned Presiding Officer, Punjab Labour Court No. 1, Lahore has been challenged. The learned trial Judge held that the enquiry was properly held and the appellant was afforded proper opportunity to cross‑examine the witnesses and to produce defence. The contentions that the evidence of some of the witnesses was not recorded in the presence of the appellant and that some witnesses were examined in the absence of the enquiry officer, were overruled. The learned lower Court held that it was beyond the scope of section 25‑A to go into the facts of the case. The decision was upheld by my learned predecessor. Mr. Justice Muhammad Jamil Asghar, but in writ petition the High Court set aside the decisions and observing that Labour Courts could go into the facts of the case, has remanded the case to this tribunal. Normally, first of all the trial Court had to give finding on the merits of the case but since the case has not been sent back to the trial Court and has been remanded to this tribunal, I have to record my judgment.

2. The facts are that the Government stopped the sale of fertilizer with effect from 16th April, 1974. On receipt of the order, the companions of the appellant though that the price of fertilizer was being shortly in creased. They sold the fertilizer from the Ugoki, Sambrial and Bhopalwala depots in the name of fictitious persons on the existing rates with a view to sell it when the prices were to be increased. The allegation against the appellant was that he was party to the said sales therefore, he was dismiss ed alongwith the principal offenders.

3. All the witnesses of the sale of the fertilizer said that the appellant had no talk with them about the sale. The appellant was only a clerk and not an officer. He was not competent to sell the goods when the authorised persons were present and made the transaction of sale. Mere presence at the time of sale would not show that the appellant had‑sold the fertilizer. There is no evidence that he had read the letter whereby the sale had been stopped. He being not an officer, the letter of the Government would not be addressed to him. So in the absence of the evidence of the knowledge of the stopping of the sale, it cannot be said that he knew that prohibited articles were being sold. So even if it be said that on account of being present at the time of sale, he had come to know of the sale, he would not be guilty unless he knew that the sale had been prohibited. Even if it be assumed that the fact of the prohibition of sale was in his knowledge; his mere presence was not sufficient when he did not take part in the sale. There is, however, evidence that the appellant had asked Malik Abdul Aziz (P. W. 6) to give him money for wheat‑seed and whereupon to latter (the witness) went to Khuda Yar on 16th April, 1975 and paid him Rs. 49,627 which were counted by the appellant but out of the said amount Rs. 16,627 were shown as price of fertilizer. He also said that on the same day he again went to Khuda Yar and enquired from him why Rs. 33,000 paid by him for wheat‑seed had been deposited as price of fertilizer. According to him, on 25th April, 1974 the appellant had asked him to lift fertilizer otherwise it would be forfeited. But this evidence did not prove that the appellant was a party to the sale. The sale became complete as soon as the property in goods stood transferred and the price was deposited in favour of the Government. The evidence of Abdul Aziz shows that the fertilizer was being sold to him for Rs. 33,000. There is no evidence that the stock of fertilizer which Abdul Aziz was asked to lift was the same that were sold on 16th April, 1974 after the order of stopping the sale had been received. The goods may be those that may have been sold prior to the receipt of the order of the prohibition of the sale. Abdul Aziz has not said that they were the same goods and there is no other evidence that Rs. 33,000 were deposited as the price of the same fertilizer that was sold in the name of a fictitious person on 16th April, 1974. So the enquiry officer was not justified in holding that the appellant was party to the sale.

4. As a result, the appeal of the appellant is accepted and he is directed to be re‑instated in service. Since due to the incorrect finding of the learned lower Court that the Labour Court had no jurisdiction to touch the facts of the case, the matter has prolonged very much, I do not deem proper to allow back benefits to the appellant.

A. E.

Appeal accepted.

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