1989 PLP 79 (PLC)

Mohammad Saleem Khan for Appellant. Ch. M. Khalid Farooq for Respondent. Date of hearing: 11th July, 1987. The appeal captioned above arises from the decision dated 14‑5‑198 i recorded by the learned Presiding Officer, Punjab Labour Court No. 1, Lahore, whereby the grievance petition of the respondent for his reinstatement in service was accepted and he was directed to be reinstated in service with back benefits.

2. The facts are that on the allegation of stealing a cut‑out, which is alleged to have been recovered from his possession at the outer gate, the respondent was charge‑sheeted and after holding an inquiry was dismissed from service. On the following day of the alleged incident of theft an FIR was lodged with the police on 22‑8‑1979. On 29‑8‑1979 the respondent was charge‑sheeted. The FIR and the charge‑sheet are contradictory with regard to the recovery of the alleged stolen property. In the FIR it is not mentioned that the cut‑out was recovered from the possession of the respondent; rather it is said that when the respondent was tried to be searched, he went away saying, and that it was suspected that the respondent had committed the theft of cut‑out. In the report on the basis of which the respondent was charge‑sheeted it is mentioned that while effecting personal search of the respondent the cut‑out wrapped in a piece of cloth was recovered from his possession. Besides the abovementioned contradiction there are material discrepancies in the evidence of the witnesses produced at the inquiry. Bashir Ahmad, security guard, deposed that the cut‑out was recovered by Mr. Bashir, head guard; whereas the latter stated that the security guard had effected search and recovered the stolen article. According to the head security guard and the security guard recovery was effected at the gate but the third witness deposed that the respondent was taken to the security office and that the head security guard had afterwards told him that the cut‑out wrapped in a piece of cloth had been recovered from the possession of the respondent. Since the discrepancies relate to the very recovery of the stolen property, they are very material and are damaging for the case of the appellant. The learned lower Court thus was justified in taking notice of the said discrepancies. There is material discrepancy about the report on the basis of which the respondent was charge‑sheeted. Bashir Ahmad, security guard deposed that the head security guard may have made the report of the recovery, whereas the report Ex. R‑10 is by the security guard. So even this is doubtful that actually any report of the theft was lodged which was made the basis of the charge‑sheet. The inquiry is also defective, inasmuch as the respondent had applied for copy of the report and other record vide application, copy of which is Ex. P‑4/R‑2, but no copy was supplied and the application for delivery of copy was treated as a reply to the charge‑sheet. The respondent instead of replying to the charge‑sheet had demanded copies of the documents. Since there was no reply to the charge‑sheet, this was another fatal defect in the presence of which the respondent could not be dismissed from service. Needless to say that after reply to the charge‑sheet as submitted, the employer has to consider the same and decide whether it is a case which requires action. In view of the defects pointed out above, the order of dismissal recorded against the respondent is not sustainable and was rightly set aside by the learned lower Court.

3. So far as back benefits are concerned, the respondent had before the learned lower Court deposed on oath that right from the date of dismissal he was jobless. This statement was not rebutted by the appellant by producing evidence to the effect that the respondent had got some employment elsewhere during the period he remained under dismissal order. So, back benefits have also been rightly allowed to him.

4. As a result, the appeal fails and is dismissed. A.E./391/Lb.??????????????????????????????????????????????????????????????????????????????????????? Appeal dismissed