1991 PLP 619 (PLC(CS))

5. The main contention of Mr. Mirza Muhammad Kazim is that charge -sheet, dated 12-6-1986 was time-barred and order of dismissal violated the provision of Standing Order 15(4) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. It is not disputed that aforesaid Ordinance is applicable to the workmen employed by the respondents. Standing Order 15(4) reads as under:-- "(4) No order of dismissal shall be made unless the workman concerned is informed in writing of the alleged misconduct within one month of the date of such misconduct or of the date on which the alleged misconduct comes to the notice of the employer and is given an opportunity to explain the circumstances alleged against him. The approval of the employer shall be required in every case of dismissal and, the employer shall institute independent inquiries before dealing with charges against a workman".

6. The main question that requires consideration is as to when alleged misconduct of the appellant came to the knowledge of the employer. Admittedly the original S.R. was cancelled by the appellant on 14-4-1985. The originator intimated the General Manager (Stores) about this cancellation on 1-7-1981 vide Exh. A.W. 1/2. While computing the period of limitation the learned Labour Court has relied upon the memo, issued to the respondent on 22-5-1985 which is Exh. A.V. 1/2) and m this letter he has been asked to explain the missing of the Pyrometer. However under the charge-sheet dated 12-6-1986 the appellant is not charged for misplacing the equipment or any act of negligence but he is charged as under:-- "(a) That you with collaboration of the Custodian of Stores (Mr. Shafiq) misappropriated Optical Pyrometer valuing Rs.29,000 (Rupees Twenty nine thousand only) which was purchased for Central Laboratory. (b) That in order to conceal the misappropriation duplicate documents were prepared. You are thus guilty of fabricating false evidence. (c) That you cancelled the originator's copy of S.R. while remaining copies were not cancelled and that too without getting the approval of Manager (S-VI) thereby you are guilty of fraudulently tampering with the documents: It will be seen that with regard to these three allegations he has not been informed under Memo. which is Exh. A.W. 1/2. Thus Exh. A.W. 1/2 would not be considered as intimation under Standing Order 15(4) of the act of misconduct for which the appellant was dismissed.

7. It is contended that employer came to know of misconduct on the basis of preliminary enquiry report which was submitted under forwarding letter Exh. R.V. 1/1, which is fated 17-5-1986. I have gone through this report and find that it does not specifically hold the appellant to be responsible for misappropriation. Rather it shows that since the item was received and was kept in a steel almirah by Store-keeper Shafiq Ahmed Zaidi, it was for him to put the location in the Bin Card to locate it easily as and when required which he did not do. In clause `B' of this report it is stated that availability of item was confirmed by Mr. N.H. Naeem, Stores Supervisor after seeing its card. Since card of the item did not bear its location, it was not possible for Mr. N.H. Naeem to locate this item and he, therefore, subsequently cancelled the originator's copy of the S.R. In his statement before the Enquiry Officer Mr. Shafiq Ahmed Zaidi admitted that he had received the Optical Pyrometer which he had kept in the steel almirah. From this report it cannot be said that it came to the knowledge of the employer for the first time that the appellant had collaborated with Mr. Shafiq Ahmed Zaidi in misappropriating the. Optical Pyrometer. In the regular enquiry against the appellant, Shafiq Ahmed Zaidi stated, that he had brought to the knowledge of management about the theft of the Optical Pyrometer one year before the issuance of charge-shed. This fact that Mr. Shafiq Ahmed Zaidi so stated is admitted by Mr. Abdul Lateef Siddiqui, witness of the respondents in cross -examination. He has also admitted that this statement of Mr. Shafiq Ahmed Zaidi was not challenged 'in cross-examination by Mr. Tayyab who was prosecutor on behalf of the management.

8. Mr. Malik Tayyab, the only witness examined by the management against the appellant has stated that he conducted the stock audit on 9-4-1986. In para. 2(ii) of reply statement the respondent have stated that the special Audit and Verification Team after due checking pointed out gross irregularities, misappropriations,, forgery and as a result of which various employees were charge-sheeted. The report has not been produced. Date of checking as stated by Mr. Malik Tayyab is 9-4-1986.

9. From the evidence on record it is apparent that the employer had come to know of the missing equipment latest by 31-7-1985 when Exh. A.V. 1/2 was addressed to them by the Originator. As a matter of fact that memo was issued on 22-5-1985 to the respondent in which also it is stated that on 22-4-1985 the appellant was asked to explain his position in respect of missing Optical Pyrometer. It is not clear whether the appellant was asked orally or is writing on 22-4-1985. However, no memo in writing of the said date has been produced. Under Exh. A.V. 1/2 the appellant was informed that if he did not explain his position on 22-5-1985 matter would be reported to G.M. for institution of inquiry. Copy of this letter was also endorsed to (sic) stores. The report of the Audit Team has not been produced but the evidence of Malik Tayyab who was in Inspection Team shows inspection took place on 9-4-1986 and that he was not able to fix responsibility on any person or any officer in particular, but has held four Officers responsible, who were working in the Stores Department including the present appellant. The evidence of Malik Tayyab shows that nothing further was discovered exc6pt what was already in the knowledge of the management. It has pointed out the preliminary enquiry report also did not disclose any act of misappropriation by the appellant as such it cannot be disputed that the alleged act of misconduct by the appellant came to the knowledge of the employer much earlier than one month before the appellant was charge-sheeted on 12-6-1986. Even if the date of checking viz. 9-4-1986 is taken to be relevant date still charge -sheet dated 12-6-1986 would be beyond the period of one month as required under Standing Order 15(4).

10. The charge-sheet was therefore obviously time-barred and was not within one month as required under Standing Order 15(4) which has been reproduced above and therefore the appellant could not have been dismissed on such charges.

11. On the merits also the only witness produced by the respondent before the Enquiry Officer was Mr. Malik Tayyab, who candidly stated that he was not able to fix responsibility on any particular Officer, but held responsible all the four Officers, who were working in the Stores Department including the appellant. As pointed out in the preliminary enquiry Mr. Shafiq Ahmed Zaidi had admitted that he had received Pyrometer and he had put it in the steel almirah. The job description of both Shafiq Ahmed Zaidi and the appellant have been produced alongwith the papers of the preliminary enquiry and are at pages 303 and 305 of the R & Ps of the Trial Court. This job description shows that both the appellant and Shafiq Ahmed Zaidi were responsible for physical receipt of stores and proper location and marking on Bin Card, for proper binning, stacking of the stores and proper posting of the auditable documents in Bin Card and for proper location and marking on grounds and Bin Card. Both are shown to be responsible to Mr. Salahuddin Siddiqui, Junior Officer. The appellant is not shown to be responsible to Mr. Shafiq Ahmed Zaidi, therefore it cannot be said that even when equipment was received and stacked by Shafiq Ahmed Zaidi it was duty of the appellant to properly locate it and mark it on the Bin Card. As pointed out as per preliminary enquiry report, the appellant could not locate it because it was not so marked on the Bin Card by Mr. Shafiq Ahmed Zaidi and therefore he cancelled the originator copy of S.R. There is no proof on record that other copies were posted and sent by the respondent to the other Department.

12. In view of the above discussion I allow the appeal and set aside the impugned order of the learned Labour Court and order of the dismissal of the appellant and order him to he reinstated. However, in his affidavit-in-evidence the appellant has riot specifically stated that he was still unemployed. There being no evidence on record about his employment or unemployment during the intervening period, we allow him fifty per cent of back benefits.

13. The order to be implemented within one month. M.Y.H./1568/Lb. S Appeal allowed.