1984 PLP 1017 (PLC(CS))

‑‑ Ss. 25‑A & 38 (3)‑Grievance petition against dismissal from service for misconduct‑Accused not afforded opportunity to examine witnesses in defence‑Impugned dismissal order, in circumstances, held, not sustainable due to technical defect Accused, however, held, not entitled to back benefits‑Order of Labour Court awarding re‑instatement with back benefits modified disallowing back benefits. Muhammad Yaqoob Khan for Appellants. M. A. Hamid Awan for Respondent. Date of hearing : 20th January, 1982. This appeal arises from the decision, dated 18th October, 1979 passed by the Labour Court No. 6, Rawalpindi Camp at Jhelum, whereby the grievance petition of the respondent was accepted and was directed to be re‑instated with back benefits.

2. The respondent was employed as Garden Supervisor in I. C.

1. Pakistan Manufactures Ltd., Khewra, District Jhelum. He was charge sheeted on 27th February, 1973 for theft, fraud and dishonesty in connec tion with the employer's business and causing willful damage and loss to the company by destroying and concealing the record. The allegations against him were that (a) the milk production for the month of May, 1977 recorded in daily milk production register was 1,327 seers and its cost was Rs. 2,521.30 but in the cash register maintained by Mr. Abdur Rahman be gave the figures of milk production as 1,307 seers and deposited Rs. 2,483.37 thus causing a loss of Rs. 37.95 (b) the milk production for the month of June, 1977 as recorded in the daily milk production register by the respon dent was 1,596.25 seers and its cost was Rs. 3,092.68 whereas in the cash Register maintained by Mr. Abdul Rahman, the respondent gave the milk production figure as 1,506 seers and ,deposited Rs. 2,862.85 thus causing a loss of Rs. 170.03 (c) that the milk production for the month of September, 1977 recorded by the respondent in the daily milk production register was 1977 seers and its cost was Rs. 3,022.88 whereas in the cash register maintained by Mr. Abdul Rahman he gave the figure of milk as 1975 seers and deposited Rs. 4,542.53 thus causing a loss of Rs. 4.57. The other allegations against the respondent was that he failed to return the cash register etc., to the Assistant Industrial Relations Manager, nor turned up, nor gave their whereabouts.

3. The respondent filed reply to the charge‑sheet which was not considered satisfactory and an enquiry was held against him in which he participated. He was found guilty and was dismissed from service.

4. The relevant registers were not available on the record as they could not be produced m evidence or in the enquiry proceedings. However, Mr. Muhammad Khan; who had checked the registers, had found discrepancies in the entries of the daily milk production register and the cash register was examined at the enquiry. He stated that he had given report of his checking which was on the enquiry file. Muhammad Khan was shown another document Exb. P. 2 which was not on the file. Since the reports made by the said witness were not on the enquiry file they could not be scrutinized. There is a defect in the enquiry, which is that the respondent has not been given opportunity to examine witnesses in defence, therefore, it cannot be said that he was afforded proper opportunity to produce his defence. On this technical defect alone the dismissal order was not sustainable. The grievance petition was, therefore, rightly accepted and respondent directed to be reinstated although on different grounds. However, as on account of technical defect the respondent has succeeded, he is not entitled to back benefits. I, therefore, partly accept the appeal and modify the impugned order of the Labour Court by disallowing back benefits to the respondent. A. E. Appeal partly accepted.