1991 PLP 748 (PLC(CS))

6. In the case of Amin Jan v. Messrs N.V. De Meyor Zelzate 1980 PLC 294 this Tribunal had held that no specific procedure for domestic enquiry was prescribed but it must held in such manner as to afford accused fair and reasonable opportunity of defence.

7. In the case of Dawood Cotton Mills Ltd. v. Guftar Shah and another PLD 1981 Supreme Court 225, their Lordships have held that requirement under Standing Order 15(4) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1986 was to give information of alleged misconduct to the accused and opportunity to explain circumstances alleged against him defend himself by cross-examination and examining himself or any other witness in defence. It was further held by their Lordships that second show-cause notice after completion of enquiry and supply of Enquiry Officers' report was neither requirement of law nor requirement of rules of natural justice.

8. Thus by not giving full report of Gen. (sic) Azhar Ali Sayed, which contained extraneous matters, the respondent had not failed to comply with requirement of rules of natural justice, when they supplied relevant extract of the report of Enquiry to the appellant.

9. The insistence of the appellant for production of report and his consequence refusal to further cross-examine the witness after already having cross-examined at length and then his refusal to examine himself or any other witness could not vitiate the proceedings of enquiry. Reference may be made to the decision of this Tribunal in the case of Muhammad Ibrahim v Messrs. Adamji Cotton Mills Ltd., Karachi 1975 P L C 221 wherein it was held where the accused made request for Enquiry Offcer's report which was not possible of being complied with and on his refusal to participate in enquiry, the ex parte ~E proceedings, in the circumstances, did not render enquiry unfair and partial.

10. In the of case of Jupitor Textile Mills Ltd. v. Hayat 1983 PLC 94 this Tribunal had held that where Enquiry Officer made effort to induce accused to participate in enquiry proceedings but accused refused to cross-examine witness, deposing against him and boycotted proceedings, no blames, in circumstances, could be attached either to the Enquiry Officer or proceedings held ex parte.

11. It is contended by Mr. Shamsuddin Khalid Ahmed that admittedly when shortage were detected in the month of March then the appellant was not posted at the relevant store and therefore he could not be held to be guilty. Charge-sheet clearly shows that he has been held responsible for the shortages, detected after he took charge on 8-4-1986. The appellant contends that there was no practice nor it was possible to physically verify the material in store while taking over charge. This contention of the appellant does not appeal to reason. A Special Team was in the process of verifying the stock and the shortages had been detected in the Store in March 1986 and according to Mr. Muhammad Sharif Awan, who was examined before the Enquiry Officer, the appellant used to be present in the Store even though not posted. Under the circumstances the appellant could not have taken over charge without physically verifying the goods lying in the Store. This view gets support from two documents on the record of the lower Court. `Custody Certificate' was produced by the appellant alongwith his application as Annexure A-2 which is signed by S.M. Usmani from whom the appellant took over charge on 8-4-1986. He has also produced Annexure A-1, which is the handing and taking over of charge, which is also dated 8-4-1986 and signed by handing over Storekeeper S.M. Usmani and taking over Storekeeper, the present appellant. It shows that furniture, fittings, record office equipments and ferrous and non-ferrous alloys (Stores) was jointly verified both by handing over Storekeeper and taking over Storekeeper and the appellant who took over the Store held himself personally responsible for its safe custody etc. In view of these documents and circumstances the contention of the appellant that he did not verify Stores does not have much force. Even if he did not verify Stores he own blames himself for the lack of precaution.

12. It is contended by Mr. Shamsuddin Khalid Ahmed that the charge-sheet is time-barred. Under Standing Order 15(4) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 the act of misconduct has to be brought to the notice of the workman within one month of the commission of the act of misconduct or when the act comes to the knowledge of the employer. As already pointed out the verification with regard to the shortages in the Store was being carried on by the Special Audit Team and it was only after the reports were submitted by Audit that the-- management came to know of the shortages and other acts of misconduct committed by the appellant. ExA/4 would show that three Audit Inspection Reports were submitted, which extracts were supplied to the appellant. These Audit Inspection Reports are dated 6-5-1986, 22-5-1986 and 23-5-1986 respectively. The charge-sheet is dated 5-6-1986 therefore this charge-sheet cannot be considered as time-barred.

13. Mr. Shamsuddin Khalid Ahmed has further raised objection that the enquiry was ordered without considering the reply to the charge-sheet by the appellant. In this connection he has relied upon a decision of learned Punjab Labour Appellate Tribunal reported as Punjab Urban Transport Corporation v. Muhammad Naeem Khan 1984 PLC 1028, wherein it was observed that the domestic enquiry can be held only after considering reply to the charge-sheet as unsatisfactory. The enquiry report in para. 4 shows that the reply furnished by the appellant was considered by the management but was found unsatisfactory therefore the Board of Enquiry was appointed to hold domestic enquiry. There is no provision under the rules that in the letter of appointment of Enquiry Officer the management should specifically mention that they had found the reply un?satisfactory It may be pointed out that one of the signatories of enquiry report Muhammad Haroon Khan was examined before the learned Labour Court but he was not confronted or contradicted with the above observations 1n the enquiry report with regard to the consideration of the reply to the charge-sheet.

14. The next objection of Mr. Shamsuddin Khalid Ahmed is that the appellant was not allowed to bring a `co-worker'. Mr. Muhammad Haroon has stated that at the commencement of enquiry the appellant was advised to appoint a `co-worker' in the enquiry in writing but he did not appoint any one. He denied the suggestion in the cross-examination that the applicant was verbally asked to bring `co-worker" for assistance. However, under Standing Order 15(4) of the aforesaid Ordinance the duty is cast upon the employer only to allow the workman to nominate a `co-worker' if he so desired. There is nothing on record to show that the appellant desired before the Enquiry Board for permission to bring `co-worker' which was disallowed.

15. It was also submitted that the enquiry report is admittedly based on the evidence of one witness Muhammad Sharif Awan and he did not produce any documents in support of his averments. I find that several documents have been produced by this witness in support of his contention which have been taken into consideration by the Enquiry Board in the enquiry report. It is a 'privilege of the management to examine whatever witness as they want to examine which they feel sufficient to prove their case. It is objected that other persons who were alleged not to have received the goods issued to them had not been examined. Enquiry Committee appears to be satisfied from evidence of Mr. Muhammad Sharif that charge has been proved and burden shifted on the appellant to examine those witnesses that short stock was actually issued to those persons.

16. It is also submitted that Enquiry Board has given finding on the matters which were not subject-matter of charge. As an example the learned counsel stated in the enquiry report, the Board of Enquiry had held that there was also considerable shortage in ferrous and non-ferrous alloys. It is submitted that this was not subject-matter of charge. The very first charge shows that expensive items under non-ferrous and ferrous alloys including aluminium ingots and chemicals were found short. Therefore, it cannot be said that the Enquiry Board had given finding on the matters which were not subject-matter of the charge.

17. Mr. Shamsuddin Khalid Ahmed has relied upon the case of Islamabad Club v. Punjab Labour Court P L D 1980 SC

307. In that case the Enquiry Officer had given finding on certain matters not included in the original charge and copy of the enquiry report was not given to the accused worker and therefore their Lordships held that without the copy of the enquiry report the accused worker was not in a position -to rebut the finding recorded against him on such matters and therefore set aside the punishment. I have already pointed out that in the instant case there is no finding on extraneous matters. In such case, as held by their Lordships in the aforesaid case of Dawood Cotton, that supply of copy of enquiry report was neither requirement of law nor requirement of natural justice.

18. Reliance is also placed by the appellant on the decision of Punjab Labour Appellate Tribunal in the case of Syed Akhter Ali Shah v. Allied Bank of Pakistan reported in 1985 P L C 825, wherein the enquiry was held to be not proper then replies to the questions put by the accused were not obtained and no statement of accused was recorded to the effect whether he wanted to examine any witness' in defence. I have already pointed out that the appellant examined the witness at the documents, which could not be supplied to him, were not supplied to him and that his own application, which is at page 40 of enquiry report shows that he did not want to examine any witness and Enquiry Board and Management could take any proceedings they liked.

19. Reliance is also placed on the decision of this Tribunal in the case of Habib Bank Limited v. Khair Muhammad 1987 P L C 493 wherein this Tribunal set aside the order of dismissal where no direct evidence was available to charges of misappropriation and fraud, and no documentary evidence was produced. This case is obviously distinguishable as in the instant case the Member of the Inspection Team who detected shortages has been examined, who produced relevant documents in support of his case.

20. The contention of Mr. S.M. Yaqoob that the grievance notice was time?barred also has got no force. The order of dismissal is dated 31-8-1987 which was served upon the appellant on 9-9-1987. The grievance notice is dated 11-11-1987 viz. within three months of the cause of action and therefore it cannot be considered as time-barred.

21. I have carefully considered the evidence required by the Enquiry Board, by the learned Labour Court and also the arguments advanced by both the parties. The Board of Enquiry as well as the learned Labour Court have given cogent reasons, after careful consideration of evidence, for arriving at the finding that the appellant was guilty of the alleged charges. I find no reason to disagree with them. Hence this appeal is dismissed. M.Y.H./1759/Lb.S ????????????????????????????????????????????????????????????????? Appeal dismissed.