1991 PLP 640 (PLC(CS))

N.A. Talpur for Respondent. Date of hearing: 22nd November, 1989. This is an appeal against the order of Sindh Labour Court No.V1 at Hyderabad, dated 31-1-1986, whereby the grievance petition of the appellant was dismissed.

2. The facts of the case appear to be that the appellant was employed as a Clerk with the respondents. On the 2nd April, 1985 he is alleged to have made a bogus entry in the Gross Weight Register with regard to Token No.16, Indent No.15165, in the name of grower Hassan Akhtar, whereas no vehicle with such Token No.16 or Indent No.15165 has appeared at the Weigh Bridge. The entry was with regard to receipt of about 21,000 K.G. of sugarcane. After some time on the same date, a vehicle loaded with sugarcane bearing Token No.16 and Indent No.15165 in the name of Muhammad Hussain was received and such entry was made by Mehar Khan, who finding earlier entry, made a report to the concerned officer. On enquiry, it was found that the first entry was bogus and the indent papers of that entry' were not available on the record. The appellant was charge -sheeted on 3-4-1985, and after domestic enquiry, he was found guilty of the above act of misconduct. lie was dismissed from service, vide order, dated 30-6-1985. After service of grievance notice, the appellant filed the grievance petition in the Labour Court.

3. I have heard Mr. S. Fasahat Hussain Rizvi, learned counsel for the appellant and Mr. N.A. Talpur, learned Advocate for the respondents and also gone through the record and proceedings of the case.

4. Admittedly the entry with regard to grower Hassan Akhtar was made by the appellant. The evidence on record and before the Enquiry Officer shows, that the indent papers in respect of that entry were not produced and no vehicle carrying the sugarcane of Hassan Akhtar had come on the Weigh Bridge. On the same day, vehicle carrying sugarcane on the said Token No.16 and Indent No.15165 arrived and that indent papers of that vehicle were available on the record. These facts of the case, are not even denied by the appellant and are proved from the evidence of witnesses before the Enquiry Officer, who, has held the appellant to be guilty of attempting to commit fraud by making bogus entry and had further opined that some other persons were also involved in the commission of the fraud and showed suspicion about Muzaffar Iqbal and recommended action against him.

5. The main objection raised by the appellant before the learned Labour Court was that the enquiry proceedings were recorded in English and not in the language in which the witnesses gave evidence. These objections have been properly dealt with and rejected by the learned Labour Court. Admittedly the appellant is a Matriculate. There is no law which prohibits the enquiry officer from recording the evidence in English specially when he has read over and translated the same to the witnesses in presence of the appellant and put such a note under the evidence of each witness. The appellant, even before the Enquiry Officer, had admitted that he had made entry with regard to the alleged deliver of sugarcane of Hassan Akhtar.

6. The only point urged before this Tribunal by Mr. S. Fasahat Hussain Rizvi is that the person, who had verified the written statement, had not been examined before the learned Labour Court, therefore, it is presumed that no statement had been filed and the case of the appellant stood un-challenged. The written statement in such a case cannot be considered as evidence, unless the facts stated in the written statement are proved through some other witness, but, non-examination of the person, who verified the statement would not unsuit the respondents or deprive them of the right to produce evidence in rebuttal of the case of the appellant. In the instant case, I find that Cane Production Manager, Mr. Malik Muhammad Nawaz has been examined by the respondents, who has adopted the written statement as part of his affidavit and furthermore in para 4, he has stated that he had received telephone from Mughees Ahmed, who informed him about entry in the register in respect of Token No.16, Indent No.15165 but there was no such entry in in-gate register. He has also stated to have personally checked and signed the registers. He has further stated that trolly for which the appellant had made entry did not report till the end of crushing season. The evidence on record as well-as the admission of the appellant himself proves beyond doubt, that he had made false entry in the Gross Weight Register.

7. It is submitted by Mr. S. Fasahat Hussain Rizvi that in the charge-sheet the appellant is alleged to have committed acts of misconduct which are punishable under Standing Order 15(3)(b)(h) and (i), but, he has been punished for only one misconduct which is under Clause (b). The substance of the misconduct as shown in the charge-sheet only shows, that he had made a false entry. To decide whether this act of his fell within Clause (b), (h) or (i), was within the discretion of the Enquiry Officer and the punishing authority. Only, because it has been held, that this misconduct committed by the appellant fell in Clause (b) would not raise any doubt to entitle the appellant to any benefit. Clause (b) of Standing Order 15(3) is reproduced as under:-- "15. (3) the following acts and omissions shall be treated as misconduct:- (a) .................................................. (b) theft, fraud, or dishonesty in connection with the employer's business or property;"

8. The false entry with regard to sugarcane alleged to have been received from one Hassan Akhtar was fraudulent act and also a dishonest act and the mere fact that the payment was not made or not claimed because the fraud was detected in time would not take the action of the appellant out of the mischief of Clause (b). The punishment for this misconduct is provided under Standing Order 15(2) and it is the discretion of the employer to impose any of the penalties provided therein. The employer in this case has chosen to impose penalty of dismissal which cannot be interfered with by the learned Labour Court or by this Tribunal.

9. For the aforesaid reasons, I would dismiss this appeal. M.Y.H./1609/Lb.S Appeal dismissed.