1976 PLP 714 (PLC(CS))

5. NPs 23: 23 mixed. 72 -do- - with can

6. Urea IM 2 bags - -

7. All varieties. - 03 small bags (Sweeping)

8. Raya seed. 7.30 - -

9. Seed gunny bags 112 bags - - -

10. Wooden trestles 9 - -- VALUE OF SHORTAGE COMES AS UNDER

1. D. A. P. Rs. 225.00 (against 3 bags )

2. Urea Imp. 75.00 (against 1 bag)

3. NP: 23: 23 4,950.00 (against 90 bag)

4. Urea IM 150.00 (against 2 bags)

5. Raya Seed. 690.00 (against 7 ma unds and 30 seers). VALUE OF SHORTAGE COMES AS UNDER

6. E. Gunny. 1,120.00 (against 112 bags

7. Wooden trestles. 200.00 (against 8 wood- en trestles), Total. Rs.7,410.00 It was further found by the enquiry officer that 90 bags of DAP, 2 bags of Urea Imp, and 11 bags of A/S in small bags were shifted by Mr. Muhammad Ghafoor and Sardar Ahmed, Supervisors, to bulk depot from a godown which was being maintained privately by the petitioner. Towards the conclusion of the report, it was observed by the enquiry officer as follows :- "This all transpires that Mr. Abdul Hafeez was using this godown for mixing and for other malpractices. He says that he was keeping loanees stocks there. He has as well not delivered stocks to many loanees as this office has received so many complaints against him, but total undelivered stock could not be assessed. However, this is a case of great irresponsibility that goods were not being delivered to loanees (confessed by Mr. Abdul Hafeez:-Refer cross-examination). From my enquiry it is established that he was wilfully absent from the sale point and that he has been responsible for discrepancies." The petitioner in his statement brought to light another important fact regarding the findings of the enquiry officer. He stated as follows:- "On 20-9-75., I received the order of termination in regard to my services from Regional Manager of the Corporation. On 20th September, 1975 .I received three letters from the respondent-Management, one related to my termination of services, the second to the effect that I have been found liable for the payment of Rs. 1,819 as the accounts of other deficient amount had been adjusted and the error of the account found in the previous calculation. The third letter related to the information that I bad been reported absent from the office to which I was attached during my suspension. The letter of termination was received on 20-9-75 in which I was terminated retrospectively with effect from 31-8-75. I have not been paid any subsistence allowance during the period of my suspension except for one month. I also was not paid any salary. I was kept suspended for about 6 months under one single order." It can easily be noted that in the first instance, there was no charge of misappropriation against the petitioner of any kind in the charge-sheet Ex h. P-2 nor any revised charge-sheet was issued to the petitioner at any stage. The findings of the enquiry officer regarding the misappropriation of the fertilizer's stock belonging to the Corporation were not based on any charge against the petitioner and these were recorded on the basis or personal enquiry made by the Enquiry Officer. It is also worthy of note that only two witnesses namely, Ghulam Mustafa and Abdul Ghafoor, were recorded by the enquiry officer to prove the charges of absence as well as misappropriation against the petitioner. Ghulam Mustafa is the successor in office of the petitioner who took over the charge from him whereas the Particulars of the other witness were not revealed in the evidence of record It was practically difficult to have both the charges substantiated through the bare statements of these witnesses unless the personal bias of the enquiry officer was brought to bear upon the merits of the enquiry. Besides,) the fact cannot be lost sight of that in face of the petitioners's statement to the effect that even after the conclusion of the enquiry the petitioner was intimated that he was ultimately found liable for the payment of Rs. 1,849 instead of 7,410 as the accounts of the other deficient amount have been adjusted due to the error of account found in the previous calculations, he was neither cross-examined on this point nor this fact was rebutted any where in the statement of Mr. Malik Sultan, District Manager, R. W.

1. This leads to the inference that the respondent-Corporation was not at all definite about the actual charge against the petitioner from the beginning to the end as regards the misappropriation of tae Corporation's stock of fertilizers. This allegation was clearly based on rough calculation and altogether vague scrutiny of the record of the store and that too in the course of the enquiry proceedings without any reference to the relevant record on some comprehensive basis. The matter does not rest here. It is to be noted that even the charge of absence from duty without leave was not quite clear and definite in the charge-sheet Exh. P-2. It was simply stated therein that the petitioner was absent from his place of duty on 19-3-75 and it was found that he had been ' absent since 3/4 days prior to 19-3-75 but in the enquiry he was found to have been absent from duty from 15-3-75 to 24-3-75 on the basis of the evidence recorded by the enquiry officer. Even if the last mentioned period of 10 days be taken into account as having been proved to be the period of absence without leave against the petitioner, the dereliction on the part of the petitioner does not amount to misconduct calling for the penalty of dismissal from service. Because according to Standing Order 15(3) (e) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. It is only the habitual absence without leave or absence without leave for more than ten days which has been said to the misconduct warranting the penalty dismissal from service. Any absence of 10 days or less than 10 days would fall in the list of acts and omissions provided in Standing Order 15(1) calling for any of the minor penalties given in the Standing Order 15(2) of the said Ordinance. In the result it can be safely concluded that in the event of the petitioner having been held guilty for any of the acts and omissions given in Standing Order 15(1) he could only be punished for inefficiency in the discharge of his duties and not for the fulfledged misconduct of absence without leave unless the period of such absence exceeded ten days. The petitioner was not properly charged and was subjected to an irregular enquiry. This has also been pointed out and not been controverted on behalf of the respondent-Management that the petitioner was not at all supplied with the copies of the enquiry proceedings nor with the copies of the enquiry report alongwith the second show-cause notice. This will certainly add to the invalidity of the enquiry proceedings for which the benefits could naturally go to the petitioner. No doubt, it is to be taken into mini that the petitioner left the place of his duty without any application for leave and proceeded to Bahawalpur where he seems to have wilfully avoided to contact the regional office for the sanction of his leave. According to him he contacted a non- practising doctor of the town who worked as the Assistant Professor of the local medical college to procure medical certificate from him which subsequently was attached by him to his application for leave which has not been properly brought on record or got requisitioned by the petitioner. It would therefore be concluded that the petitioner did leave the place of his duty without shoving any sense of responsibility for which he was duly charge-sheeted and was made to face the enquiry. The learned counsel for the petitioner has conceded that the petitioner could be suspended from service in regard to the alleged negligence committed by him and enquiry could be started against him. I am of the view that the only charge proved against the petitioner in view of his own admission is that he absented from the place of his duty from 15-3-75 to 24-3-75 without any proper sanction of leave for which he could be punished with any minor penalty which could not be fixed by the respondent management and cannot now be awarded at this stage by this Court. Consequently the petitioner is directed to be re-instated in service within a period 15 days without any back benefits. The period of absence of the petitioner from 15-3-75 to 24-3-75 has already been held as period of leave without pay by the respondent-Management. The petitioner, however, will be entitled to get the subsistance allowance during the period of his suspension with effect from 25-3-75 to 20-9-75 at the rate fixed by the competent authority suspending the petitioner. The file may be consigned.