' The facts leading to this application under section 6 of the Pakistan Essential Services (Maintenance) Act, 1952, by Muhammad Haider, against Pakistan Steel Mills Corporation are that on 23rd October, 1979, a show cause memo. Was served on the applicant wherein it was alleged that a .Good quantity of serviceable A. A. C. Sheets have been passed out as salvage material as recorded on two gate passes Nos. AS-261/79 and AS-368/79 on 13th September, 1979, and 24th September, 1979. It was alleged that these gate passes were signed by the applicant Muhammad Haider as Incharge of Issues alongwith two Junior Officers (Stores) namely Muhammad Ali and Mukeem Shah. These Stores were taken away by the salvage contractors Messrs A. Razzak & Sons.
Applicant Muhammad Haider, Assistant Store Keeper submitted his reply to the show cause memo on 27th October, 1979, denying the allegations. He submitted that he had prepared two gate passes in respect of salvage A. C. C. Sheets and the material was loaded by the labourers of the contractor. He also submitted that duty officer and the concerned stores officer signed on the gate passes after checking the material loaded on trucks. He also raised a query that if serviceable A. C.
C. Sheets were loaded how the materials were allowed to pass out when the gate passes were issued for unserviceable A. C. C. Sheets. His explanation was not found satisfactory and a formal charge sheet dated 11th November, 1979, was issued to the applicant Muhammad Haider. The main charge was that he failed to exercise care which was expected from the Stores Incharge on this transaction. The applicant gave a reply to the charge sheet on 15th November, 1979. He stated in his reply that he could not possibly issue serviceable A. C. C. Sheets when the loaded sheets were counter checked by two officers namely Muhammad Ali and Mukeem Shah, Junior Officer (Stores) who endorsed their signatures on the gate passes. He also drew the attention of the Management that his section incharge wrote a letter dated 17th May, 1979, mentioning the fact that 34 trucks bearing sheets in question have been despatched by the supplier but have not so far been received in the stores. He therefore submitted that these trucks have gone to wrong places. He also pointed out that a large number of sheets have been issued to various Departments of the steel mills through local contractors. He also stated in the reply to the charge-sheet that it was not his responsibility to declare or not to declare the material serviceable or unserviceable and that he only complied with the instructions of his superiors to deliver the material which was kept at a separate place.
2. A joint enquiry was conducted against the following persons:
(1) Muhammad Ali, Junior Officer Stores.
(2) Mukeem Shah, Junior Officer Stores.
(3) Muhammad Haider, Assistant Store Keeper.
(4) Muhammaad Hanif, Gate Keeper.
(5) S. Azhar Hussain, Gate Keeper.
' The Enquiry Officer found Muhammad Haider (applicant), Mukeem Shah, Junior Officer Stores, S. Azhar Hussain and Muhammad Hanif, Gate Keepers guilty of the charges levelled against them but absolved Muhammad Ali, Junior Officer Stores of the charge. A second show-cause notice served on the applicant on 20th December, 1979. In his reply to the show cause notice dated 24th December, 1979, he denied the allegations and submitted that as he was not charged for misconduct as defined in Standing Order 15 (3)(b) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, which relates to theft, fraud or dishonesty in connection with the employers business or property, his services cannot be dismissed on the said charge, on the ground that no opportunity was given to him to enable him to make proper defence in respect of the said misconduct. He also submitted that store No. 1/5 is an open yard accessible to all the employees and it is not possible to pin-point that a particular person is incharge of the material for all the 24 hours. He also submitted that according to the procedure laid down for the disposal of the salvage material it is the Deputy Manager ,Stores who makes complaints regarding salvage material to the ' Insurance Department through the proper channel prescribed for the purpose. The Manager Insurance and Deputy Manager (Stores) both check the material together and keep the salvage material aside for disposal. Manager Insurance then claims the salvage losses and the Surveyors of National Insurance Corporation inspects the material and submits the survey Report. On sanctioning of the claims by the National Insurance Corporation, the auction is made and the auction purchaser is authorised to take the delivery of salvage goods stocked at a separate place.
The Store Keeper is only responsible to deliver this particular lot and it is none of his business to question the authority of so many aforesaid responsible officers and agencies nor any such authority is delegated or vested in him. He therefore has been involved in the case in order to give coverage of the acts of the responsible culprits who are of course big shots. He submitted that gate pass is issued under the following seal of responsible person "checked and found correct". He therefore submitted that the material which was passed out under the said gate passes was checked and found correct and as such if any serviceable A. C. C. Sheets are found in the market it might have been done with the collaboration- of some responsible officers. He alleged that the enquiry report is vague and does not fix the responsibility of the loss of serviceable A. C C sheets on him. In this connection he relied upon the certificate of "Transfer of Custody" which was issued to him when he handed over the charge of stores after his suspension. He submitted that above certificate clearly discloses the alleged salvage A. C. C. We're not found in stock and no sound material was missing. He therefore contended that entire proceedings are connected, fake, mala fide and unfounded.
3. His reply to the second show-cause notice was not found satisfactory and his services were terminated on 8th January, 1980. In the termination order it was stated that the enquiry committee found him guilty of the charges of misconduct as defined under Standing Order 15 (3)(b) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, and as the competent authority has passed order to terminate the services he stands terminated.
4. In their reply statement, the respondent denied the allegations stating that the charge against the applicant was established in the enquiry conducted by the enquiry committee. The plea of the applicant that according to the certificate of transfer of custody, there was no shortage of the stock of A. C .C sheets has also been denied.
5. The applicant in support of his contention has examined himself. He filed an affidavit and the learned counsel for the respondents was allowed to cross-examine him. The respondents did not produce any oral evidence. They however produced photostat copy of the enquiry report.
6. Mr. Ali Amjad, the learned counsel for the applicant contended that no evidence before the Enquiry Officer was produced to establish that serviceable A. C. C sheets was actually passed out through the gate passes No AS 361/79 and A. 368/79. He submitted that in the absence of any evidence in this regard the charges against the applicant Muhammad Haider has not been proved. Giving the facts of the case, the learned counsel submitted that certain A. C. C sheets were damaged by rains. A claim with the National Insurance Corporation was put in The Surveyors of the said Corporation inspected the damaged sheets and the salvage material was kept at a separate, place. Tenders were invited for the purchase of the salvage material and were sold out to Messrs Razzak & Sons. He therefore contended that the salvage material belonged to the contractors and not to the Pakistan Steel Mills Corporation. He also submitted that the salvaged material was not the responsibility of the applicant as it had become the property of the National Insurance Corporation and after sale the ownership of Messrs Razzak & Sons.
7. I have gone through the enquiry report and find that there is no evidence whatsoever to prove that the serviceable A. C. C. Sheets were passed out on these gate passes. The main charge against the applicant Muhammad Haider is that he loaded the serviceable A. C. C. Sheets on the trucks but issued gate passes in respect of salvage material. In the absence of any proof in this regard the conclusion drawn by the enquiry committee that A Muhammad Haider was found guilty of the offence is not based on any evidence produced before it. The next important document which exonerates the applicant from the charge is the certificate of 'Transfer of Custody' dated 8th December, 1979. This document was prepared when the applicant Muhammad Haider was suspended and charge was taken from him. This certificate is reproduced below: "We the undersigned certify that all the materials held under the following Groups Codes have been checked and the stocks completely agree with the Stock 'Cards/Bin Cards Balances. The custody of the above said stocks, have been properly handed over and taken over by us, which are in good condition, as on 8th 'December, 1979.
Groups No, 91.
A. C. C. Sheets of Railway Sleepers Custody Handed over by Custody Taken over by Signature (Sd.)
Signature (Sd.)
Name Muhanimad Haider Name Sajid All P. No, 091029 P. No, 040126 Designation A. S. K. - Desigation Store Keeper Dated 8-12-1979 Dated 8-12-1979"
8. A perusal of this document clearly shows that serviceable A. C. C. Sheets which were in the possession of the applicant Muhammad Haider were not found short and he gave complete account of the serviceable A. C. C. Sheets. Had some serviceable A. C. C. Sheets been passed out on two gate passes, the same should have been found missing from the stock which was kept under the charge of the applicant in the Stores. No explanation, has been offered by the respondent as regards this contention of the applicant. The respondent has taken the plea that the applicant should have produced this document before the Enquiry Officer. The reply of the applicant was that this document came into his possession after the enquiry proceedings had been completed. This assertion of the applicant is true as the enquiry committee had finalised their report on 15th November, 1979, while the certificate of 'Transfer of Custody' was issued on 8th December, 1979.
9. As mentioned earlier there was no evidence before the enquiry committee to show that salvage material had been passed out under the two gate passes signed by the applicant. On the other hand there was the evidence of Muqeem Shah, Azhar Hussain, Muhammad Hanif (co-accused) and Muhammad Yaqoob (independent witness) that the trucks which were loaded under the two said gate passes contained salvage material. The evidential value of the witnesses who were themselves accused before enquiry cannot be totally ignored particularly in the absence of any other evidence to prove the prosecution case. There is also the documentary evidence of Muhammad Ali and Muqeem Shah Junior Stores Officers and of Muhammad Hanif and Azhar Hussain that they had checked the two gate passes and found them correct. The end result of this discussion is that the report of the enquiry committee is perverse and is based on sheer assumption. This finding is further supported by the following observation of the enquiry committee contained in paras. 28 and 29 of the report which is reproduced below: "After going through the statements of all the accused/employees and the witnesses produced by them, we fall to understand as to what was going on with these employees in respect of execution of their duties, as everybody had tried to pass on his responsibility upon others and surprisingly most of them were not aware of the nature of their duties.
' Accordingly on examining the statements of accused employees, and after going through the contents of the cross-examination of the Management representatives, the statements of the accused and their witness and all the relevant papers of the enquiry committee on the record we are of the opinion that the following accused employees are guilty of the charges levelled against them in the letters issued to them on 30th October, 1979, and 27th October, 1979, respectively."
10. It would be thus seen that the enquiry committee has failed to give a finding that sound A. C. C.
Sheets were allowed to pass under the two gate passes dated 13th September, 1979, and 24th September, 1979, as alleged by the respondents.
11. Even otherwise the dismissal is liable to be set aside on the ground that the services of the applicant have been dismissed for misconduct as defined under section 15 (3)(6) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. The said misconduct relates to theft, fraud, dishonesty in connection with the employers business or property while the charges against the applicant mentioned in the show-cause notice dated 23rd October, 1979, was for not exercising the care which was responsibility of the Store Incharge on this transaction. Not to exercise due care is something quite different from theft, fraud or c dishonesty.
The applicant was not asked to explain the charges of theft, fraud or dishonesty and as such his dismissal for misconduct as defined under section 15 (3)(b) of the Standing Orders Ordinance is bad in law.
12. As discussed above, there is no evidence to prove- even the charge of theft or misconduct.
Consequently, I set aside the termination order dated 8th January, 1980, passed by the respondents against the applicant and direct the respondents to reinstate him in service with effect from the date of termination with the benefit of continuity of service. The applicant shall however be treated on leave without pay during the period after his dismissal.