1978 PLP 459 (PLC)

The applicant was appointed as a clerk on 14‑9‑71 in respondent's Sukkur Branch and was subsequently promoted as Store Keeper. In 1974, 100 Boxes of Chloroquine Phosphate Tablets were found missing from the Store. In this connection explanation of the applicant was called by the Branch Manager of respondents Company and three such letters were issued to applicant, the last on 6th December 1974. The applicant admits the loss but takes the defence that the Branch Manager bad duplicate keys of store and therefore the applicant could not be deemed to be in the exclusive charge of the store and therefore cannot be held responsible for the loss. According to him, the Branch Manager intended to victimise him due to his Trade Union activities. The applicant submitted his explanation dated, 23‑12‑

74. The applicant further alleges that on 6‑3‑75 the Branch Manager called him in his office and with the help of an outsider assaulted him. The applicant received injuries and lodged an F. I. R. The applicant was suspended after this incident. On 4‑4‑75 the respondent ordered a domestic inquiry. The applicant objected to the appointment of inquiry officer but his objection was not considered. The inquiry was then held and the applicant was found guilty of the loss and as a result on 2‑6‑75 his services were terminated. The applicant challenges the validity of inquiry proceedings for the various reasons given in para. 9 of the application and seeks re‑instatement.

2. In their written statement the respondents denied the charge of victimising the applicant. They also denied that the Branch Manager had duplicate keys of store and maintained that the applicant was in exclusive charge of store and was responsible for the loss. They also maintained that the inquiry did not suffer from any defect.

3. The following points arise for my determination: (1) Was the applicant elected member of General Council of the Trade Union in 1973? (2) Was the applicant victimised for his Trade Union activities? (3) Does the lose of 100 boxes of Chloroquine Phosphate Tablets come within the definition of "Misconduct"? (4) Does the Domestic Enquiry suffer from any legal Saw? (5) Whether the applicant was not in the exclusive charge of the store? (6) Whether the order of termination is liable to be set aside?

4. Both the parties have led evidence, both oral and documentary, in support of their contentions. The Enquiry proceedings have also been submitted. I have gone through the evidence on record and have heard learned representatives of the parties. I decide the above points as follows: Point No. l:

5. This claim was repeated in para 5 of affidavit of applicant. In his cross‑examination he said that he was member of executive body of the Union. The applicant, however, cannot be taken at his own word. He should have produced certified copy of the minutes of the Trade Union meeting In which he was elected member of General Council and member of executive body, besides examining the President or General Secretary of the Union. In the absence of any evidence on the point, I hold that the applicant has failed to prove that he was elected member of the General Council or executive body of the Union

6. It is worth noting that the applicant had, in his statement before. Enquiry Officer, claimed to be an office‑bearer of the Union but this claim came down to being "an active member of the Union" (See "A" In cross‑examination of applicant). Point No. 2:

7. From what I have stated under point No. 1, it would appear that the applicant was at the most just an ordinary member of the Union and that he was neither an office‑bearer of the Union nor member of its executive body, The applicant has not shown what were his activities as an ordinary member of the Union which had incurred the wrath of the Branch Manager. Ordinarily, the Management does not become inimical towards a worker just because he is member of the Union. Therefore, even theoretically, the allegation has no force. Besides, the evidence on record also shows that this allegation is patently false. In his cross‑examination the applicant says that all the workers employed in Sukkur were members of the Union. This shows that the respondents had no special reason to make the applicant the target of their vengeance. The applicant further stated in his cross -examination that there were four members of executive committee, including himself, and the other three members were not removed from service. This further shows that the action against the applicant was not male fide. The applicant further admitted in his cross‑examination that on the complaint of the Union the services of Branch Managers of Mardan and Jhelum were terminated. This also goes to show that the respondents are not averse to Trade Union activities. The applicant has evidently raised the bogey of victimisation (due to his Union activities) merely to gain sympathy of the Court. It is therefore held that the applicant has not been victimised. Point No. 3:

8. Section 15(3) of Standing Orders Ordinance lists various kinds of misconduct. Items (b) and (c) are relevant for our purposes and they are quoted below Section 15(3) (b).‑Theft, fraud, or dishonesty in connection with the employer's business or property; (c) wilful damage to or loss of employer's goods or property;"

9. The applicant is alleged to be in exclusive charge of the store.) If so, he is accountable for any shortages therein. If a shortage occurs, it is for the applicant to explain it and if the explanation is not satisfactory, the natural presumption will be that he committed theft or fraud and ‑4 dishonestly misappropriated the missing property or was negligent. In the alternative, it will amount to causing wilful loss to the company by his negligence. In short, the 1088 of 100 boxes of Chloroquine Phosphate Tablets amount to misconduct unless the applicant can properly explain the loss. This is because the applicant was Store Keeper and allegedly in exclusive charge and control of the store. Point No. 4:

10. The contention of the applicant is that the Domestic Enquiry is perverse and of no legal effect. In para 9 of application under section 25‑A, he lists a number of grounds, which I proceed to discuss.

11. The first contention is that the charge‑sheet was not proper and it was not issued by a competent authority. The first letter issued to applicant is Exh. P‑1 dated 30‑10‑74 (Exh 2. in inquiry file). In this letter the respondent had asked the applicant to make good the loss of 100 Boxes of Chloroquine Phosphate Tablets. The loss was estimated at Re. 4,

203. The second letter is Exh. P‑2 (Exh 3 in inquiry file) It is dated 4‑11‑1914. In this letter the applicant was reminded that it had become a routine to find shortages in store whenever the stocks were checked and he was asked to improve his working. He was also again asked to pay Re. 4,200 towards the shortage of 100 Boxes of Chloroquine Phosphate Tablets. The third letter served on the applicant which is in the nature of a show cause notice, is Exh. 3‑A and is dated 8‑12‑

74. Tae letter lists six allegations and the applicant was asked to show cause why disciplinary action should not betaken against him. Item No. 3 refers to the previous two letters Exh. P‑1 and Exh. P‑

2. Learned representative of the applicant argued that this first show‑cause notice Exh, 3‑A does not refer to the loss of 100 Boxes of Chloroqaine Phosphate Tablets and therefore this loss could not be wade the basis oaf inquiry and dismissal of the applicant, I do not agree with this view. It is true this loss has not been specifically referred in this first show‑cause notice but it has been referred nevertheless as Item No. 3 in respect of this loss. Show‑cause notice Exh. 3‑A must be read In conjunction with Exh. P‑1 and Exh. P‑2, rot in isolation by itself.

12. The second objection with respect to first show‑cause notice Exh. 3‑A is that it was not issued by a competent authority, as stated in pare 9(a) of application under section 25‑A. This objection was not raised during the arguments or in the written arguments and must be deemed to have been waived the Branch Manager is head of respondent's branch at Sukkur and in my view he was competent to serve the applicant with show cause notice.

13. The third objection is that the Enquiry Officer was prejudiced against the applicant. In his cross‑examination the applicant stated that he did not know in which city the Enquiry Office Mr. Bhatti was employed In these days. The applicant further stated that Mr. Bhatti had visited Sukkur for the first time for the inquiry. This shows that the applicant and Mr. Bhatti were unknown to each other till Mr. Bhatti was made Enquiry Officer. Under such circumstances the question of Mr. Bhatti being prejudiced against the applicant does not arise. The applicant has failed to show how Mr. Bhatti was prejudiced against him. If there had been any truth in the‑allegation, the applicant would have asked the respondents to appoint another Enquiry, Officer but the applicant did not do this. The applicant however did send a letter to Enquiry Officer direct stating, not that he had no faith In the Enquiry Officer due to his being prejudiced against him, but that no "i he faith in the Enquiry firstly because no Representative of the Union was associated with the inquiry, and secondly because of the tact that Mr. Mohd. Yousaf continued to be the Branch Manager at Sukkur. The applicant went so far as to say that no justice could be expected from the Enquiry Officer or from Enquiry Committee till the Branch Manager was shifted from Sukkur. (See letter dated 9-4-75 Exh. P‑6 or Exh 1 of Inquiry file. This further shows that the applicant had nothing personal against the Enquiry Officer at the start of the Inquiry. The Enquiry Officer replied Exh. P‑6 the same day vide Exh P‑7 in which the applicant was allowed to have the assistance of one of his office colleagues. The applicant thereupon appointed Mr. Mohd. Sarwar a him representative and apparently had no further cause of complaint. I am of the view that the allegation has no force.

14. The next contention that the allegation does not come within the mischief of misconduct has already been dealt with under point No. 3.

15. The fifth contention is that the applicant was not allowed to cross- examine the prosecution witness properly. He did not name which prosecution witness. He also did not mean that he was not allowed to cross‑examine all the prosecution witnesses since the word "witness" has been used in singular number. The contention is thus quite vague. The Enquiry proceedings show that the prosecution had examined the following witnesses. (1) Prosecution witness 1 Mohammad Khalid (P. 25). (2) Prosecution witness 2 Tausif Ahmad (P. 29).

16. These are the only two prosecution witnesses and both of them have been thoroughly cross‑examined by the applicant. The contention of the applicant is against the facts on record.

17. During the arguments it was asserted by learned Representative of applicant that the Enquiry Officer did not allow the applicant to cross -examine the Branch Manager Mohammad Yousuf Mohammad Yousuf was not originally examined as a witness by the Enquiry Officer. Mohammad Yousuf only tendered the relevant documents before him. I however find that the Enquiry proceedings were not taken in a proper way and the Enquiry Officer allowed them to draft at the whim of the participants. Cross- examination of applicant commences at page

4. The very first question put to the witness consists of seven lines. It is more in the nature of a statement Itself rather than a question. The reply of the applicant (commencing from the last line of page 4) is totally irrelevant to the question put. This tendency is continued throughout the cross‑examination of the applicant. The very next question put to the applicant consists of 12 lines. In fact this is no question at all as nothing is asked from the applicant but instead the questioner has made a lengthy statement of facts. He was not supposed to do so as his (Questioner's) statement was n 3t being recorded. The question recorded on page 8 consists of 29 lines. It is indeed a lengthy statement of facts and it is no question at all as nothing is asked from the applicant.

18. The cross‑examination of the applicant was continuing when at page 8 a new paragraph commences with the words "Mohammed Yousuf. " and then follows a lengthy statement of Mohammad Yousaf (Branch Manager of respondents). This statement runs into six pages and ends at page

13. I fail to see the relevancy of this statement during the cross -examination of the applicant. At page 14, reply of applicant commences which suggest that the six page. Statement of Mr. Mohammad Yousuf, which commences at page 8 and ends at page 13, was intended to be nothing more than a question. This is indeed preposterous. Similarly, another question of Mr. Yousuf commences at page 17 and ends at the bottom of page

20. This shows that the Enquiry Officer did not know how to record evidence.

19. The next a allegation of the applicant that the Enquiry Officer did not correctly record the statement end avoided to write answers of several pertinent questions is without any basis, Firstly it is not clear whose statement was not correctly recorded. Secondly, no question was pointed out whose answer was not recorded by Enquiry Officer. (It is not alleged by applicant that even question was not recorded by Enquiry Officer). Thirdly, the applicant and his representative Mohammad Sarwar were signing each question, answer and order/observation of the Enquiry Officer, in fact each page of Enquiry proceedings. The applicant should have brought his grievance to the notice of the Enquiry Officer immediately. The applicant was quite fond of sending copies of his complaints to Deputy Director Labour and to General Secretary and President of the Union as is clear from Exh. Fake 6, and he would surely have complained to them if there had been any substance in the allegation.

20. In short, I am of the view that the Domestic Enquiry does not suffer from any o! the defects mentioned in para. 9 of application under section 25‑A, although it was not conducted in a proper manner and was allowed to daft like a rudderless ship.

21. I however find that charge‑sheet dated 6‑12‑74 (Exh. 3‑A) contains five different allegations but the Enquiry seems to have been conducted only in respect of the shortage of 100 boxes of Chloroquine Phosphate Tablets. The letter under which the Enquiry Officer was appointed and Enquiry held bas not been produced which could clarify the terms of reference of the Enquiry. Point No. 5:

22. As Storekeeper, the applicant was expected to be in exclusive control and charge of the store. He however states that the manager had duplicate keys of the store and therefore he (the applicant) was not in the exclusive charge of the store.

23. From the very inception of his service the applicant has been working as Storekeeper although he was officially promoted as store keeper in March 1973, The question of duplicate keys should have been settled by him when he took charge of the store. Branch Manager was not supposed to have duplicate keys of the store. If the duplicate keys were not handed over to the applicant when be took charge of the store he should have reported the matter to the Head Office and by way of precaution should have replaced the old locks with nee ones. The applicant raised the defence of duplicate keys for the first time in his explanation dated, 23‑12.74 (Exh. 3‑B) to the charge‑sheet Exh. 3‑A. This defence is devoid of any force.

24. Previously Mr. Nazir Hussain was Branch Manager and Mr. Mohammad Yousuf, now Branch Manager, was cashier. On 10‑10‑73, Mr. Nazir Hussain went on leave and handed over charge to Mr. Yousaf. The charge‑report is Exh 4‑C (Exh. 11 in Enquiry file). It clearly states that the full charge of the store is with Mr. Farooq Hayat. It also lists the duplicate keys which were in possession of the Manager and which were handed over to Mr. Yousuf. These duplicate keys were of office, of main door of old office (which was used as godown) and of telephone. Duplicate keys of store/Godown are not mentioned in it and it shows that Branch Manager had never been in possession of such duplicate keys. Exh. 10 (in Enquiry proceeding) is another charge‑report whereby Manager Nazir Hussain while proceeding on leave handed over charge (temporarily) to Mr. Yousuf (the then Cashier and the present Branch Manager) on 18‑11‑

71. This charge report also bears the signatures of the applicant who therefore cannot deny its authenticity. Para. 7 of this charge report is quoted below: "Para. 7.‑There are two locks on the main gate of the store at the time of closing office. Keys in duplicate of one of the locks are with the store‑keeper Mr. Farooq Hayat and the remaining two keys of the other locks are with Mr. Muhammad Yousuf. Store cannot be opened until both the persons get together."

25. The above‑quoted para shows that the store/godown was in exclusive charge of the applicant although the main gate of the store had two locks, and the keys of one of the locks were with Manager and the keys of the other locks were with storekeeper. Thus the Main Gate of the store could not be opened without the presence of both, the Store keeper and the Manager. This was the admitted position on 18‑11‑

71. If the Manager thereafter obtained the duplicate keys of the Store itself, it was for the applicant to prove this fact. The applicant has not succeeded fin doing so. I therefore hold that the applicant was in exclusive char of the store. For the same reason point No. 3 mt:.3t also beg decided against the applicant. Point No. 6 t

26. The Enquiry was conducted only in respect of the shortage 100 Boxes of Chloroquine Phosphate Tablets and in respect of no other allegation aril the inquiry Officer has also given his verdict in respect of this allegation only. I agree with the finding that the applicant cannot escape from the responsibility of the said shortage. The dishonesty of the applicant bas however not been proved conclusively and under the circumstances the respondents should not have inflicted the extreme penalty of termination of service. In my view the applicant should have born made to bear the loss sustained by the respondents and warned for future. I therefore act aside the order of termination and re‑instate the applicant on his making good the loss of shortage of 100 boxes of Chloroquine Phosphate Tablets. Since there is at least negligence of the applicant, he is not allowed any bas benefits. The order of re‑instatement shall b9 effective from the date of which the applicant makes good the loss, which he must do within two months. 27. 1 have gone through all the authorities cited by the parties, 1971 P L C 241 and 1968 P L C 132 show that if the conclusions of the Enquiry are not based on any evidence and are illogical and perverse, the applicant can be re‑instated. I have hold that the conclusions of the Inquiry are not perverse, even though the inquiry was not properly conducted. The alleged shortage is admitted and it was for the applicant to explain his position. In 1.976 P L C 77‑ it is hold that if an Enquiry Officer is also an eye‑witness or he ignores defence evidence totally, then his finding is perverse but in the present case the Enquiry Officer has not ignored the defence evidence. 1976 P L C 852 is not applicable because it is not correct that in the present case the Enquiry Officer found the applicant guilty of charges not included in charge‑sheet. This point has been elaborately discussed under para. No. II above. Second show‑cause notice was dally givens to applicant who even submitted its reply and as such 1976 P L C 531 which says that second show‑cause notice is essential is not relevant. For the same reason! 1975 P L C 178 is also not relevant as second show, cause notice alongwith enquiry report was admittedly served on the applicant. Order accordingly.