1992 PLP 1085 (PLC(CS))

This is an appeal against the order, dated 20-1-1990, passed by the learned Presiding Officer, Sindh Labour Court No.II at Karachi, whereby the grievance petition riled by the appellant was dismissed.

2. The brief facts of the case are that the appellant was employed as Administrative Assistant with the respondents when he was charge-sheeted on 14-12-1987 for misappropriation of a total amount of Rs.2,35,490 realised by him by the sale of Lunch Coupons from March, 1984 to 26-11-1987, out of which he had deposited an amount of Rs.73,500 on 19-I1-1987. After domestic enquiry, the appellant was removed from the service by order, dated 9-3-1988. After serving the grievance notice upon the respondents, the appellant filed grievance petition before the learned Labour Court which was resisted by respondent on the ground that the appellant was not a workman and that the charge had been proved against him in a domestic enquiry, therefore, the appellant was rightly dismissed from service.

3. I have heard Mr. Munib A. Khan, the learned Advocate for the appellant and Mr. Mukhtar Ahmad, the learned Advocate for the respondents and have also gone through the record and proceedings of the case.

4. The issue whether the appellant was a workman or not was decided by the learned Labour Court in favour of the appellant and no cross appeal or objection has been filed against the above finding.

5. The only question that requires consideration is whether the charges stood proved against the appellant. It will be pertinent to reproduce the relevant portion from the charge-sheet, which reads as under:- "After investigations, the Internal Auditors on 26 Nov. 1987 have reported that since the inception of the Management Staff Mess in March 1984 you are responsible for the custody and sale of Lunch Coupons for the Mess and were required to deposit the sale proceedings of coupons with the Accounts Department every month. Such last deposit it was made by you on 24 December, 1984. The total amount not accounted by you since that date was Rs.235,490 out of which you deposited Rs.73,500 on 19th November, 1987."

6. It would be obvious that the charge-sheet is a little vague. The charge- sheet shows that he had made the last deposit on 24-12-1984. Whereas, it is alleged that the misappropriation of the amount was from March 1984 to 26-11-1987. It does not specify monthwise or yearwise as to how many coupons the appellant was issued and he had sold out and how much amount he had deposited each year or month and how much amount remained with him for which he had committed the act of fraud or dishonesty.

7. Admittedly, one Mr. Rahat Ali, an employee of the respondents, who was one Grade superior to the appellant, was also responsible for the sale of Lunch Coupons. He, however, remained on leave from 11-3-1984 to 31-5-1984 during which period, the appellant was solely responsible for the sale of the Lunch Coupons. However, the appellant was charged with the misconduct with regard to amount of sale of Lunch Coupons from March 1984 to November 1987, during which period, Mr. Rahat Ali was also associated with him except for the period, he was on leave. There is no evidence to show as to how many Lunch Coupons were issued to Mr. Rahat Ali and how many Lunch Coupons were issued to the appellant or that Mr. Rahat Ali had paid the sale amount of the Lunch Coupons issued to him. The charge-sheet had been based on the report of Mr. Zafarullah, Audit Manager who was examined before the enquiry officer. When questioned by the appellant as to how did he arrive the amount due from the appellant, to which he replied that the basis used by him in calculating the total amount due was the bills and their break up sheets submitted by the Cateror. He admitted that the bill did not highlight that the Lunch Coupons were issued by the appellant. He had further admitted that he had duplicate key of the drawer of the appellant where the Lunch Coupons were kept and that he used to hand over the key some time to Asif Zafar in the absence of the appellant for the sale of the Lunch Coupons.

8. Mr. Salimuddin, enquiry officer was examined in the Labour Court and he had admitted that there used to be signatures on the Lunch Coupons of the person who used to sell the Coupons. He also admitted that it had transpired in the enquiry that some time Rabat Ali and Asif Zafar also used to sell the Lunch Coupons. He had admitted that the appellant had asked to call for the sold coupons signed by him for which he had tried but were not available. He had further stated that the Coupons bear the signatures of the issuing person and it could be detected as to who had issued them and who had signed the same; and that he had not called for and verified those Mess Coupons as to who had issued and signed those coupons, though the appellant was stressing upon for the production of proof as to who had issued such coupons.

9. From the above evidence, it would be clear that during the period, in question, three persons used to sell the Lunch Coupons and there is absolutely no evidence to show that how many Lunch Coupons were sold by the appellant himself and what is the amount of the coupons sold by the appellant which had not been deposited. No doubt appellant admits to have deposited the amount of Rs.73,500 on 19-11-1987, but, the reports of the Internal Audit which is Exh. 4/A shows that an amount of Rs. 53,585 was on account of cash suspense drawn by the appellant. It may be pointed that he had not been charge-sheeted for the dishonesty with regard to this amount. It is not clear whether the amount deposited by him on 19-11-1987 also included this amount of Rs.53,

585. Thereafter, it would leave an amount of about Rs. 20,000 towards the amount of sale of Lunch Coupons. Even if the appellant on his own admission is held to have deposited the amount of Rs.20,000 after the audit report. Still it cannot be said nor there is evidence to show that this amount pertained to the period for which he was charge-sheeted. This would also not prove the charge of dishonesty and fraud for an amount of Rs.2,35,490.

10. Admittedly, neither Mr. Rabat Ali nor Asif Zafar have been proceeded against for the alleged misappropriation. There is no evidence to show that the amount collected by them by the sale of Coupons was deposited by them. Obviously, the amount of Rs.2,35,490 shown in the charge-sheet also includes the amount of sale of Lunch Coupons by the above named 2 persons. Obviously such a charge-sheet is vague and an enquiry based on the charge- sheet which also charges the appellant for the misconduct of other officers, cannot be considered as legal. The enquiry officer appears to have accepted Mr. Rabat Ali's explanation that in emergency i.e. Muhammad Fahim's absence, coupons were sold and such cash attached with the coupon books used to be placed in Muhammad Fahim's drawer which used to be checked by him. However, the letter, Annexure `B' which creates the Management Staff Mess clearly shows that the Coupons would be available with both Mr. Rahat Ali and Mr. Fahim Ansari. As the Lunch Coupons were available with Mr. Rabat Ali, there was no reason for him to open the Drawer of the appellant and sell his Coupons nor was there a reason to give key of his Drawer to Asif Zafar to open the Drawer of the appellant and to sell the Coupons.

11. Considering all the above factual position, in my opinion, the vagueness of the charge which apparently includes the amount of defalcation that may have been committed by Rabat Ali and Asif Zafar and. non production of the sold coupons had deprived the appellant a chance to defend the charge properly. The evidence produced before the enquiry officer was also insufficient to. prove this charge. There is no evidence as to how many Lunch Coupons were handed over to the appellant, nor those Coupons were produced either before the enquiry officer or before the Labour Court to show that the appellant had signed those Coupons, but, failed to deposit the amount. Mr. Mukhtar Ahmad, the learned Advocate for the respondents had tried to explain the non-production of the sold coupons by explaining that the same were destroyed by the office. It does not appeal to reason that the Coupons could have been destroyed when the amount had not been deposited with the concerned Department. If at all there had been any defalcation, so many persons appear to have been involved and it would not be possible to pin point the exact amount of the alleged misappropriation which the appellant might have committed.

12. According to the charge-sheet the appellant had to deposit the sale amount every month. Therefore, the cause of action arose to the respondents every month when the sale amount was not deposited. According to Standing Order 15(4) of the West Pakistan Industrial and Commercial Employment (Standing Orders) 'Ordinance, 1903, the misconduct had to be brought to the notice of the workman within one month of the act of misconduct or when the act came to the knowledge of the employer. The appellant has been charge -sheeted for the act of misconduct extending for a period of nearly 4 years. It is not possible to believe that the Caterors would have remained silent and would not bring it to the notice of the employer for such a long time 3 years, when the amount was not deposited by the appellant. It is also not possible to believe that under the circumstances they would have destroyed the coupons. It is also not possible to believe that such a big Company like I.C.I. would not have audit of its accounts for 3 years. The appellant, could at the most have been charged for misappropriation, if any, for the period of one month prior to the issuance of the charge-sheet. This charge-sheet for the alleged misconduct for nearly 4 years, in my opinion, is not legal and would have definitely influenced the enquiry officer in his report as well as the employer while passing the impugned order of dismissal.

13. For the aforesaid reasons, I allow the appeal, set aside the impugned order of the learned Labour Court and direct the reinstatement of the appellant. As the appellant has been ordered to be reinstated on technical grounds and there is no evidence that during the intervening period, he had remained unemployed, I would award him 25% (twenty five per cent) back benefits only. The order to be complied with within one month. It may also be pointed that the observations made in this Decision would not prejudice the case of any party in the Civil Suit fled by the respondents for the recovery of the amount from the appellant. M.Y.H./1743/Lb:S Appeal allowed