1982 PLP 1055 (PLC)

Date of Institution; 9th April, 1979. Amir Faraz, a permanent employee of the respondent establishment has filed the present petition under section 25‑A of the I. R. O., 1969 against Messrs Premier Tobacco Industries, Jehangira Road, District Peshawar through its Factory Manager. It has been alleged in the petition that the petitioner has been victi mised for his trade union activities and has been involved in a fabricated theft case. An enquiry was conducted against him in which the peti tioner objected to the Enquiry Officer and requested for replacement but it was turned down. The petitioner was dismissed from service and his notice grievance was rejected by the respondent establishment. Exh. PWI/I is the appointment order wherein the terms and conditions of the petitioners services have been spelled out. Exh. PW I/2 is the confirmation letter of the petitioner in service. Exh. PW2/1, Exh. PX‑I and Exh. PX‑2 are the charge‑sheets served on the accomplices of the petitioner in the alleged offence of theft in which charge‑sheet Exh. PWI/3 was served on the petitioner. In this charge‑sheet it has been stated that on 24th October, 1978, at 12.30 a. m. at the end of the shift when the petitioner was coming out of the main gate he was searched by Hazrat Jamal Watchman and from the Petitioner six packets of K‑2 Cigarettes were recovered. These were tied wish the Rubber Rings with an anckle in the Shalwar with an intention to smuggle these out. The petitioner allegedly grappled with the Watchman with the help of his accomplices Hukam Khan, Badshah, Bakht Said and Ehsanullah and snatched the packets from the Watchman and thus vi dated the provisions of Standing Orders Ordinance, 1968. Exh. PX‑3 is the reply submitted by Badshah in which it has been stated that Watchman had abused Amir Faraz petitioner from whom he demanded money back which he had advanced as a loan to him. Exh. PX‑2 is the reply of Bakht Said in which the same version has been repeated which has been reproduced in Exh. PX the reply of Ehsanullah Khan to the charge‑sheet and in Exh. PX‑5 the reply of Hukam. Khan. Exh. PW1/4 is the reply submitted by the petitioner. In this reply it has been alleged that the Watchman Hazrat Jamal had obtained Rs.50 as loan from him and had promised to pay it back within three months. On repeated requests the Watchman failed to do so and on the night of occurrence when he demanded the money from Hazrat Jamal he abused him i‑i presence of the above‑mentioned persons. Exh. PWI/5 is the office order vide which Mr. Javed Naseer was appoint ed as Enquiry Officer. Javed Naseer was also appointed as Enquiry officer with respect to the same occurrence in respect of charges against Bakht Said etc. The helper Aslam Khan has submitted an application Exh. PW1/6 wherein he has requested that as the above four persons Hukam Khan etc, were involved in the same case, therefore a combined enquiry may be conducted on 14th December, 1978. Exh. PWl/7 is the report. Exh. PWI/8 is the impugned order whereby the petitioner was dis missed from service. Exh. PW1/9 is the grievance notice which was rejected by the respondent vide Exh. P W 1 /10. The written statement was filed. Evidence of the parties has been recorded, argument heard and record perused. The main allegation against the petitioner is that on the night of occurrence he was trying to steal away six packets of K‑2 cigarettes. Exh. DX is the Enquiry proceedings. In the Enquiry proceedings statement of Hazrat Jamal was recorded in which it has been specifically mentioned that six packets of cigarettes were recovered from the peti tioner but his four accomplices snatched these from the Chowkidar by force. This fact proves that the recovery has not been proved of the stolen property. In his cross‑examination he has admitted that with the exception of the four persons mentioned above there was no one else who had watched the occurrence. As against this evidence the statement of the petitioner was recorded. Strangely enough Hazrat Jamal Watch man who was witness against the petitioner was allowed by the Enquiry Officer to cross‑examine the petitioner. In support of statement of the, petitioner Bakht Said appeared who was also allowed to be subjected to cross‑examination by the Enquiry Officer by Hazrat Jamal witness Mere this fact that a witness in the Enquiry proceedings was allowed to' cross‑examine the petitioner and other witnesses vitiate the Enquiry proceedings. The petitioner has supported his petition and has corroborated the fact mentioned there in his statement in the Court. Javed Naseer the Enquiry Officer has stated in the Court that the stolen property was not produced before him. Appraisal of the evidence indicates that the alleged theft has not been proved by the respondent establishment as no recovery was made from the petitioner of the stolen property and that with the exception of the state ment of the Watchman there is no corroborative evidence and as against this the petitioner's case is amply supported by his consistent stand in the written statement, reply to the charge‑sheet, statement before the Enquiry Officer and by his defence witnesses. The Enquiry is vitiated by the irregularity on the part of the Enquiry Officer who allowed a witness in the enquiry to cross‑examine the witnesses appearing in the enquiry proceedings. Hence in view of the above observation I conclude that the case of theft not been proved against the petitioner and hence the impugned order is bad in law and liable to be set aside. I consequently set aside the impugned order, or instate the petitioner with full back wages and benefits from the date of his dismissal. The order of this Court shall be complied with in one month. Appeal accepted.