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Appeal No. KAR‑630 of 1983, decided on 8th September, 1985.
‑‑‑Ss. 25‑A & 38(3)‑‑Dismissal for misconduct‑‑Prosecution evidence shaky and doubtful containing contradictions glaring not coverable by any reasoning‑‑Order of Labour Court accepting grievance petition and awarding re‑instatement, in circumstances, upheld by appellate Tribunal allowing back benefits to respondent workman.
M.A. Khan for Appellants.
M. Ashraf Khan for Despondent.
Date of hearing: 11th August, 1985.
This appeal is directed against the order of IInd Sind Labour Court, Karachi, dated 22‑11‑1983, whereby he allowed the grievance petition of Intizar Hussain with full back benefits.
2. Briefly the facts are that the respondent Intezar Hussain was employed with the appellant, namely, Pakistan Tobacco Company Ltd., Karachi as a supervisor. On 1‑11‑1982, the Watchman Muhammad Akbar made a false report against him alleging the recovery of 36 cigarettes in presence of Watchman Habibullah. This was Report No. 13. Subsequently, another Report No. 14 was submitted alleging the recovery of 36 Cigarettes from the possession of respondent, Intezar Hussain in search by Sargeant H.R. Khan. On the basis of this report, the respondent was charge‑sheeted. The enquiry was held and he was consequently dismissed. In the grievance petition, the respondent Intezar Hussain alleges that in the enquiry inconsistent procedure was adopted and the enquiry was illegal. His statement was not properly and fairly recorded. The enquiry resulted in the dismissal of respondent on 12‑1‑1983. The notice was given and subsequently the grievance petition was filed.
3. The version put forward by the appellants was that he was rightly dimissed for theft of cigarettes and fraud. They denied the report of Muhammad Akbar, Watchman and asserted that the report was initially prepared by Ghulam Hussain which did not contain the facts i.e. the name of H.R. Khan, the Gate Sergeant who had searched the respondent and Haveldar Ghulam Hussain who was asked to add the name of the respondent as well as the name of H.R. Khan, who instead of adding the name, cancelled the same and submitted another report. There was no difference in these two reports. The explanation of the respondent was not satisfactory and hence Muhammad Murtaza was appointed as Enquiry Officer and when the enquiry was completed he was found to be guilty and accordingly he was dismissed.
4. The respondent, Intezar Hussain filed his affidavit and was cross‑examined. On the side of the appellants, an affidavit was filed by Muhammad Murtaza, Assistant Factory Manager (Personnel). He was also cross‑examined. The learned Advocates of the parties were heard. Mr. M.A. Khan for the appellants was heard at length.
5. In the instant case, two reports were drawn. One is called Report No.. 13 and the another is Report No. 14. In order that the two reports may be assessed, I reproduce these reports as under:‑
Resport No. 13.
From Gate House,
To A.C. Deptt..
Please note that one Intezar Hussain Check No. 3053 of A.C. Deptt. is liable for disciplinary action under Factory Standing Orders in that he at 4‑20 p.m. on Monday date‑‑The above worker was going off duty from main gate he was stopped by W/W T. No.3354 Muhammad Akbar and brought down at gate office he was searched by W/W Muhammad Akbar and recovered 36 (thirty‑six) loose cigarettes of P.G. from his possession.
(Sd.)
Signature of person making charge.
Report No. 14.
From Gate House.
To A/C Department Intezar Hussain Check No. 3053 of A/C. Please note that Department is liable for disciplinary action under Factory Standing Orders in that he at 4‑20 p.m. on Monday, date 1‑11‑1982 the above worker was going off duty from main gate he was stopped by W/W 3354 Muhammad Akbar T. No. 3354 and brought down at Gate House and he was searched by Sgt. H.R. Khan . T. No. 3310 and recovered (36) thirty‑six loose cigarettes of P.G. from his possession.
(Sd.)
Signature of person making charge.
(Ghulam Hussain) 3384."
6. On the report No. 14, the respondent Intezar Hussain has protested and on the very outset has written that the cigarettes were recovered from the career of his motor‑cycle.
7. The report No. 13, as reproduced above shows clearly that Muhammad Akbar searched the person of Intezar Hussain and recovered 36 cigarettes. The impression is that the search was made by Muhammad Akbar only. In the Report No. 14 it is stated that the search was made by Sergeant H.R. Khan and the cigarettes were 36 in number and were loose and were recovered from Intezar Hussain. These two reports are significant and major glaring defect in the reports is whether Muhammad Akbar secured the said cigarettes earlier or Sergeant H.R. Khan searched and secured the same cigarettes.. This contradiction goes deep and one has to find out the truth. The enquiry was held and the statement of Sergeant H.R. Khan was recorded. The statement of Sergeant. H.R. Khan shows that Darban Muhammad Akbar brought Intezar Hussain in the Gate Office on 1‑11‑1982 at 4‑30 p.m. and told him that he had doubt on Intezar Hussain. Muhammad Akbar requested him to take search of Intezar Hussain. Accordingly he took search of Intezar Hussain and recovered bundle of cigarettes from the backside pocket of Intezar. He saw that those were P.G. cigarettes. He gave bundle to Havaldar Ghulam Hussain to count. He counted the cigarettes and they were 26 in number. The statement of Sergeant H.R. Khan as recorded in the domestic enquiry is conflicting with the statement of Muhammad Akbar and the number of cigarettes is shown to be 26 and not 36. This is the second discrepancy. However. Havaldar Ghulam Hussain himself says that there were 36 cigarettes.
8. From the very outset respondent, Intezar Hussain has disputed the recovery of cigarettes from his person. He has mentioned in the Report No. 14 that the cigarettes were secured from the carrier of his motor‑cycle. He has, therefore, believed that there was some conspiracy of planting cigarettes on him and the witness, Ali Akbar having taken the lift on the motor‑cycle of Intezar Hussain led the respondent Intezar Hussain to believe that possibly he planted the cigarettes on the carrier of his motor‑cycle. He has made it clear in his reply statement after the charge‑sheet that there was some quarrel between Muhammad Akbar the Darban and Ali Akbar was close relative of Muhammad Akbar. He has, therefore, protested at the very beginning when the incident took place.
9. It can safely be maintained that there were two reports drawn against Intezar Hussain and the Report No. 13 and Report No.14 carry the contradiction as under:‑
(i) The search was made by Muhammad Akbar according to Report No. 13.
(ii) According to Report No.14 the search was made by Sergeant H.R. Khan.
(iii) The number of cigarettes secured were according to Muhammad Akbar to be 36 and according to H.R. Khan in his statement were 26.
10. These contradictions indicate that the recovery of cigarettes as a whole was a doubtful affair. The respondent Intezar Hussain himself is confused and he imagined that these cigarettes were possibly secured from the career of his motor‑cycle and these were either planted by Muhammad Akbar or Ali Akbar. The conduct of Ali Akbar who requested Intezar Hussain to give him a lift upto Dalda Factory, S.I.T.E. Karachi, and then after this event going back to attend his overtime duties. This created some very genuine doubt in the mind of Intezar Hussain that Ali Akbar was also involved in planting the cigarettes. From the contradictions in the Reports Nos. 13 and 14, it is clear that these cigarettes were not secured from the person of Intezar Hussain and their number is also doubtful in view of statement of Sergeant H.R. Khan who says that the number of cigarettes were 26. The entire event as put forward in 'the enquiry Abakes it very clear that these cigarettes were not secured from the person of Intezar Hussain. I need not go into the defence witnesses who had deposed that some Phadda was hatched against Intezar Hussain. Because the defence witnesses have not seen the securing of cigarettes. There is 'no use to depend on them. The contradictions in the version of the prosecution story are sufficient to hold that cigarettes were not secured from the respondent, Intezar Hussain. The question is from where the cigarettes came. To this, Intezar Hussain himself has alleged enemity and has shown that the cigarettes were planted either by Ali Akbar or Muhammad Akbar and that with Muhammad Akbar, he had a quarrel. Considering the two versions, I am inclined to believe that the entire version of the prosecution is not dependable and more likely that these cigarettes were planted either by Muhammad Akbar or handed over the bundle to Sergeant H.R. Khan for counting who found 10 cigarettes short of 36 in number. So far the search of Intezar Hussain is concerned, it is doubtful and no cigarettes were found from his personal search.
11. The learned Labour Court has itself doubted and has shown in its order that the prosecution evidence was shaky and doubtful. I have no reasons to disbelieve the findings of the learned Labour Court.
12. Mr. M.A. Khan, the learned representative for the appellants has argued at length to substantiate the prosecution evidence but he has failed according to me. The contradictions are so prominent and glaring that no amount of reasoning could cover these contradictions.
13. I am inclined to maintain the order of the learned Labour Court and accordingly dismiss this appeal. The back benefits are also allowed to be paid to the respondent, Intezar Hussain.
A.E. Appeal dismissed.
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