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Appeal No. R.Y. Khan‑451 of 1985, decided on 21st September, 1985.

‑‑‑ Dismissal for misconduct‑‑Every exculpatory evidence to be excluded before convicting accused‑‑Accused alleged to have entered excess trolley of sugarcane in Pass Book of a Grower supplying sugarcane to Mills‑ Enquiry officer reporting no shortage of sugarcanes‑Mere entry in Pass Book not sufficient to show any bad intention to defraud and cause loss to Mills and price of sugarcane was to be paid to grower but no indication that grower claimed payment‑‑Enquiry proceedings not produced before Labour Court‑‑Dismissal order, in circumstances, held, rightly set aside by Labour Court‑‑Held: (i) Before convicting an accused every exculpatory evidence is to be excluded which was not done in present case, (ii) absence of inquiry proceedings raises a presumption that proceedings were not satisfactory and so were withheld from Courts‑‑Industrial Relations Ordinance (XXIII of 1969), Ss.25‑A & 380).

Saleem Baig for Appellant.

Date of hearing: 16th September, 1985.

The decision, dated 24‑7‑1985 recorded by the learned Presiding Officer, Punjab Labour Court No. 8, Bahawalpur has been challenged, whereby the respondent was directed to be reinstated in service with back benefits.

2. The allegation against the respondent was that although no sugarcane was supplied by Ghulam Nabi, grower, yet in his pass‑book entry of one trolly of sugarcane was made by the respondent and that the date of permit was 2‑2‑1984 but without getting was shown on 6‑2‑1984 without getting the period extended. The learned lower Court has set aside the order of dismissal on the ground that the inquiry officer reported that no shortage of sugarcane was found. It has been argued by the learned counsel for the appellant that since the security office detected the fraud and payment was not made to the grower, therefore, there was no shortage. This may be true but mere entry of receipt of sugarcane in pass‑book would not show that it was made with the intention to defraud and cause loss to the Mills. Sometimes by mistake wrong entries are made. The inquiry proceedings are not on the learned lower Court's file except the inquiry report, so this is unknown what evidence was produced in support of the charge and whether by the said evidence the charge was established. This is not known if the grower was examined and if so, what actually he deposed. Likewise, this is not known if the grower had claimed payment of the price of the trolly entered in his pass‑book. Needless to say that price of sugarcane was to be paid to the grower and not the respondent. So if the respondent had bad intention the grower would have come forward to claim the payment of the price of the sugarcane. Before convicting an accused every exculpatory circumstance is to be excluded which was not done in the present case. Apart from it, since the inquiry proceedings are not on the file, it cannot be said if the respondent was afforded opportunity to cross‑examine the prosecution witnesses A and to produce evidence in defence. The absence of the inquiry proceedings raises a presumption that they were not satisfactory so were withheld from the Courts. So the order of dismissal was not sustainable and was rightly set aside although the reasons given by the learned lower Court are different.

3. As a result, the appeal fails and is dismissed in limine.

1. E.

Appeal dismissed.

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