1. MD. NURUL ISLAM KHAN (CHAIRMAN).-This is an application under section 25(l) (b) of the East Pakistan Employment of Labour (Standing Orders) Act, 1965, hereinafter referred to as the Act.
2. The case of the parties are as follows: The first party is a loader under the second party at a monthly pay of Rs. 128.00 at the time of the order complained against. On 15th June 1970 be is said to have been implicated in a theft in which he was said to have concealed or abetted conceal--ment of some 13 bottles of Fanta in a truck in which 2 other persons were involved who were said to have been his accomplice. The two other persons have been dismissed after a full-fledged enquiry. This worker also was dismissed after an enquiry But he preferred a grievance petition which was not replied to and he has now come to the Court for redress of his grievance. He wants re-instatement to his former post.
3. The second party made appearance and denied all the allegations made by the first Party.
4. Points for determination:
(1) Whether the first party was illegally dismissed from service?
(2) What relief, if any, the first party is entitled to?
5. FINDINGS AND DECISION Points 1 and 2.-In the present case only some factual sorting out of the papers as produced by the parties was made. The second party produced all the proceedings papers for scrutiny. It was found that some prosecution witnesses were examined and the accused was also examined. The two accused were later dismissed and they are said to be badli and casual Workers and as such for reasons known to them they have not come to the Court, This worker said that he was engaged in the Company for about 3 years and he feels aggrieved by the order of dismissal passed by the second party.
6. It appears on a scrutiny of the papers that prosecution witnesses differed each other as about the number of bottles said to have been broken at the time of loading and as about the role of the present applicant in concealing the said cages in haphazard manner in the said truck. The other two co---accused stated that they refused, but the first party loaded the bottles in the truck. The present applicant, on the other hand, stated that one of these co-accused went with him and reported about the broken bottles and asked for the replacement of the said bottles from the store.
7. He accordingly believed them and brought 14 bottles in a crater placing the same in trolly. The other two co-accused loaded them. While the witnesses at one time said that there were 14 bottles, P. W. I said that there were 13 bottles. One witness Makbul who helped Mr. Rouf in the checking, stated that it was not possible for the present applicant to conceal the bottles from the ground. It is also not the case of the second party that he got on the truck and concealed them. On the other hand, it is admitted that be was not to go in the truck to reap any benefit or selling or consuming the stolen articles. It therefore seems that the statement of the other 2 persons is credit-Worthy, Loading of Fanta bottles in the truck is a normal part of the work in such a concern as the second party and in a normal process and the other loaders could have reported about the broken bottles and asked for replacement. This might be a case of this sort. As those persons who were going on the truck could have reaped the benefits, they should have taken interest in the concealment, stealing rather than the first party who was to stay in the factory. His part in the matter only could be bringing the bottles. From my above analysis, he might very well have brought the bottles on the report of one of his co-accused believing in good faith that these bottles were the replacement of broken ones as such things happen in such loading and unloading bottles in which beverages are contained. So by the simple fact that he brought these bottles in a crater is not sufficient to impute any motive to him that he was also abeting the theft. The fact that the 2 other accused who also made the same fate regarding their services did not come to the Court would further show that those persons had mens rea in the, matter. Therefore, in such a case, the present applicant should get benefit of doubt. The matter was very petty. 13 bottles are the subject-matter of the alleged theft and the booty among the 3 could have fetched each of them rupees two or so. So the position is that this Worker who was working in the store and was not going out on the truck, might not have made any collusion with his other co-worker who disowned him as their partner in such a nefarious business. From facts and circumstances we are inclined to believe his version rather than the version of his two co-workers. In view of this we find, on a proper scrutiny that a wrong conclusion has been arrived at due to non-observation and mal-observa--tion of contents in a misjudged situation. Therefore, consi--dering that this was a case of failure of justice for lack of proper scrutiny of things and lack of perspective to understand the material details and considering tat there are discrepancies on material points in the evidence of prosecution witnesses, we find that the order of dismissal passed on the first party has been extremely severe considering his past record of service. He is entitled to benefit of doubt or clean acquittal provided he was allowed to cross-examine the witnesses in a proper shape. It appears to us that the cross- examination portion of the deposition has been recorded by way of concluding remarks by the enquiry officer. This has also occasioned a departure from the normal practice and has led us to a hypothetical situa--tion as about the actual cross-examination.
8. In view of the above, I am inclined to find that the first party should have been found not guilty. He is therefore, entitled to relief. But as the second party is not inclined to take him back since a suspicion has cropped in their mind regarding the theft matter which is an offence involving moral turpitude, I would not like to thrust the first party on the second party Management.
9. In the result, the application is allowed on contest and the second party is directed to pay termination benefits to the first party within 30 days from the date of passing this order. The amount of termination benefits shall be calculated and deposited by the second party in Court to the credit of the first party within the said period of 30 days.
2. I have considered the written opinion of the members while giving this decision