1988 PLP 525 (PLC)

(b) Industrial dispute‑‑ ‑‑‑ Domestic enquiry‑‑Confessional statement, held, cannot be used against employee unless proved to have been executed by him voluntarily‑‑Confessional statement not admitted by employee in his statement recorded during enquiry not its execution by such employee proved by any other independent evidence‑‑Such statement, held would not gain evidentiary value merely by putting exhibit mark on same. Muhammad Ilyas Khan for Appellant. Syed Fazal Hussain Shah for Respondent. Date of hearing: 1st March, 1986. The decision dated 26‑2‑1985 recorded by the learned Presiding Officer, Punjab Labour Court No.5, Faisalabad has been challenged, whereby the grievance petition of the respondent was accepted and he was directed to be reinstated in service without back benefits.

2. The allegations against the respondent were that on 8‑4‑1975 the prices of ghee were enhanced from Rs.125.55 to Rs.150.78 per tin of 35 lbs each and from Rs.19.50 to Rs.23.30 per tin of 5 lbs. each and the distributor was allowed to retain the excess sale proceeds, but the respondent made bogus entries in the sale register/stock register regarding sale of ghee stocks in the manner, that (a) out of 2717 tins of ghee of 35 lbs each, 2455 tins of ghee were shown to have been sold for Rs.3,47,632.55 at different rates, whereas their actual price was at the rate of Rs.150.78 per tin amounting to Rs.3,70,164.90 and thus a loss of Rs.22,532.35 was caused to the appellant Bank; (b) that 262 tins of ghee of 35 lbs each had been shown by him sold as per stock and sale registers but the sale proceeds amounting to Rs.39,504.36 were not brought in the books of the Bank; (c) that 4032 tins of 5 lbs each were in hand with the Bank at the time of enhancement of the rate as per sale/stock register maintained by him and the sale price at the rate of Rs.23.50 came to Rs.93,945.60 but the Bank was credited with Rs.84,363.60 only and thus a loss of Rs.9,582.75 was caused to the appellant Bank. The other charges were that, (1) the vouchers relating to the above mentioned transactions had been mostly prepared by the respondent, whereas the store‑keeper at that time was Mr. Muhammad Saleem; (2) that the sale proceeds were shown to have been received through Mr. Saleem but he (Mr. Saleem) had denied and alleged that the relative vouchers were bearing his forged signatures; (3) that another voucher for Rs.63,000 dated 22‑4‑1975 had been prepared by the respondent on account of cost of 3000 tins received through Mr. Muhammad Iqbal Khan but the latter denied and alleged that the vouchers were bearing his forged signatures; (4) that pages 17 and 18 of the stock register maintained by the respondent had been torn away by him to conceal the embezzlement made in that account; (5) that after the enhancement of rates of ghee on 7‑4‑1985 the respondent prepared another bogus cash memo book from serial No.003001 to 003099 just to conceal the actual sale; and that (6) on actual cash memo book the respondent used the rubber and tried to change the numbers of ghee tins and their prices. The respondent denied the charges, whereupon an inquiry was held which culminated in the dismissal of the respondent from service.

3. The inquiry proceedings reveal that the statement of .the prosecutor only was recorded but he even did not say that any bogus entry was made by the respondent or that he had sold ghee at higher rate and deposited the price according to the old rates. He stated only this much that in those days the business of ghee was in the hands of the respondent in the year 1974‑

75. After recording the statement of Sh. Abdul Aziz, Prosecutor, the Inquiry Officer, recorded the statement of the respondent and without recording any other evidence prepared his report. It is apparent that Sh. Abdul Aziz did not say that actually the respondent had sold any stock. He too did not state that any bogus entries were made or any amount was mis appropriated by the respondent. The case could be proved by proving the entries of the record to be in the handwriting of the respondent. Evidence should also have been produced to the effect that it was the respondent and none‑else who had sold the stocks and that too at enhanced rates and that he deposited the amounts in the Bank according to the old rates. The allegations about the preparation of false vouchers was also not established as Sh. Abdul Aziz did not say that the said vouchers were in the handwriting of the respondent. There is no evidence that there are any bogus entries in the record and that the same were made by the respondent. In the charge‑sheet it is‑mentioned that Mr. Muhammad Saleem disowned his signatures on the vouchers, but he too was not examined in the inquiry. Likewise, in the charge‑sheet it is mentioned that Muhammad Iqbal Khan denied his signatures on the vouchers but he too was not examined at the inquiry. Even if the above mentioned two persons had been examined, they would have only denied their signatures on the vouchers but this could not have been sufficient to implicate the respondent. The evidence should have been, if this is a fact, that the respondent had forged the signatures of Muhammad Saleem and Muhammad Iqbal Khan. It is also alleged in the charge‑sheet that certain pages of the stock register had been torn away but there is no evidence that it was the respondent who had removed those pages. Even this evidence is not on the record that the registers were being maintained by the respondent and that no other person had access to the said record. It is alleged against the respondent that after the enhancement of the rates of ghee he had prepared another bogus cash memo book but there is no evidence that in reality any bogus cash memos were prepared and that this was done by the respondent, The last allegation is that upon the cash memos the respondent applied rubber and tried to change the numbers of ghee tins and their price but there is no evidence that the respondent ;was actually seen doing so. The respondent produced T.A. Bill to show that he had gone to Rawalpindi on 7‑4‑1975 and had come back in the evening of 9‑4‑1975 and thus was not present on 8‑4‑1975 when the information about the enhancement of the prices of ghee had been received, but the said documentary evidence was not rebutted. No doubt, the respondent deposited some amount but it would not per se show that it was he who had made the embezzlement. To be save from being disgraced and being handed over to the A police or being tried under any Martial Law Regulation, he may have deposited the amount. No presumption can be drawn that he had embezzled the amount. Exs.R‑7/A and R‑8 are said to be the confessional statements of the respondent. The said confessional statements were not got admitted by the respondent in his statement recorded during the inquiry, nor their execution by the respondent was proved by any other independant evidence. Merely by putting exhibit marks on those statements they did not gain evidentiary value. They could not have been used unless it had been proved that they had been executed by the respondent voluntarily. Certain docurnents such as Exs. R‑3 to R‑7 were produced before the learned lower Court and the respondent admitted his signatures thereon. These are chits on which the quantity of tins of ghee is given but prices are not given. It, therefore, cannot be said that the respondent actually charged prices at the enhanced rate. These chits were issued allowing the delivery of ghee. Moreover, a case is to be proved before dismissing a person under charge and not afterwards. The chits referred to above were not produced and proved in the inquiry and after the respondent was dismissed from service and he challenged the order of dismissal before the learned lower Court, these chits were put to him in cross‑examination. He stated that the management had received his signatures on those chits. He denied that he had been selling ghee at the new rates and prepared vouchers according to the old rates. The charges were not thus brought home to the respondent beyond any shadow of doubt. The respondent, therefore, was rightly directed to be reinstated in service. A. E. /105/Lb.P??????????????????????????????????????????????????????????????????????? Appeal dismissed