DECISION ' This appeal by the management is directed against a decision of the learned IIIrd Labour Court given on 31st January, 1981 allowing the grievance petition of the respondent workman and directing the management to reinstate him in service but denying him any back benefits.
2. The facts which form the background of this appeal and which are not disputed are that on 11th June, 1980, at about 3.00 p. m., respondent Rehman Nizar was searched by the security guard at the main gate of Messrs Souvenir Tobacco Co. Ltd., the appellants herein, while he was leaving the factory premises after performing his day's duty. In the search six cigarettes manufactured by the appellant-Company were recovered from the front shirt pocket of the respondent. The security guard, Muqaddar Khan, who had searched the respondent and recovered the cigarettes from the respondent, prepared a written report of the recovery, obtained thumb-impression of the respondent on the report and produced the report and the respondent before the Security Officer, Sher Ali Khan. On the basis of Muqaddar Khan's report, the respondent was charge-sheeted on 14th June, 1980. A domestic enquiry followed in which, besides security guard, Muqaddar Khan, Security Officer Sher Ali Khan and another security guard, Muhibullah, were examined. The statement of the respondent workman, Rehman Nizar, was also recorded by the Enquiry Officer, Mr. Ihsan Siddiqui.
No defence witnesses were cited in the enquiry proceedings by the respondent. On the basis of the Enquiry Officer's report, who found the charge of theft of six cigarettes manufactured by the company established against the respondent, the respondent was dismissed from service vide order dated 7th September, 1980. It might be stated at this stage that it is a rule in the appellant- Company that no workman is allowed to bring into the factory premises or to take out therefrom cigarettes manufactured by the appellant-Company. This rule has been laid down to avoid theft of cigarettes from premises of the appellant-Company.
3. The respondent challenged the orders of his dismissal before the learned IIIrd Labour Court which has taken the view that the plea of the respondent was that on the day when the cigarettes are said to have been recovered from the respondent it was very hot and, therefore, he had hung up his shirt on a nearby side wall and somebody in his absence had put cigarettes in his shirt pocket, which statement of the respondent had gone unchallenged and consequently there was no reason to doubt its veracity. The learned Labour Court has also observed that the cost of cigarettes allegedly recovered from the possession of the respondent was between twenty to twenty-five paisas and it was hard to believe that the respondent would have jeopardised his long service of 18 years for such paltry amount. On these grounds the learned Labour Court has held that the charge of theft was not satisfactorily established against the respondent though it has taken the view that to some extent the respondent was negligent.
4. Since it is an admitted position that the respondent was searched at the main gate of the appellant-Company's factory, that in the search six cigarettes manufactured by the appellant- Company were recovered from the front pocket of his shirt, that bringing in and the taking out from the factory of the appellant-Company of cigarettes manufactured by the appellant-Company is prohibited, that respondent was duly charge-sheeted for theft of cigarettes recovered from his possession and that he was dismissed from service on the finding of the Enquiry Officer that the said charge had been duly established against him in a domestic enquiry in which he bad fully participated and where full opportunity was given to defend himself, the sole point which falls to be determined in the instant case is whether there is any substance in the plea of the respondent that some person may have put the cigarettes in his shirt pocket without his knowledge while the shirt was hanging on the side wall of the premises where he was working. In the first place it may be pointed out that the respondent did not examine any witness either in the domestic enquiry or before the Labour Court in support of his statement that on the day in question he had put off his shirt and hung it on the side wall. There is thus only the bare statement of the respondent in this behalf. Furthermore, the respondent has made contradictory statement as to where he had hung up his shirt. In his reply, dated 21st June, 1980, to the charge-sheet the respondent has stated that he had hung up his shirt on the machine which he was operating. However, in his statement before the Enquiry Officer, he altered this stand and stated that he had hung up his shirt on a nail in the packing department. He further altered his stand on this point in his affidavit before the learned Labour Court and stated that he had hung up his shirt on a nearby side wall. The reason for variations in his statement as to where he had hung up his shirt possibly was a realization that if his shirt was hung up or spread on the machine, the machine could not be operated. In any case the contradictory statements made by the respondent as to the place where he had hung up his shirt cast a heavy doubt on his version in this behalf. There is a further important circumstance to indicate that the story of the shirt being hung up and somebody else having put the cigarettes in the pocket of the shirt is without substance. As already pointed out security guard, Muqaddar Khan, after apprehending the respondent with the cigarettes had prepared a written report on which he had obtained the thumb-impression of the respondent. If there had been any truth in the plea put forward by the respondent he would have immediately put forward the same to security guard, Muqaddar Khan, but neither any mention of this plea finds place in the report of Muqaddar Khan nor was any question put to Muqaddar Khan in his cross-examination by the respondent before the Enquiry Officer suggesting that such an explanation had been given by the respondent at the earliest opportunity. On the contrary, according to the statement before the Enquiry Officer of Security Officer, Sher Ali Khan, before whom the respondent was produced by the security guard, Muqaddar Khan, when he enquired from the respondent about the recovery of the cigarettes from his shirt pocket, he replied as follows : {{URDU TEXT}} ' The above reply of the respondent completely negatives the plea subsequently put forward by the respondent that somebody else may have put cigarettes in his shirt's pocket while his shirt was hanging either on the machine or a nail on the side wall. It may be pointed out that Security Officer, Sher Ali Khan is not shown to have any reason for giving false evidence against the respondent and hence there is no valid ground for rejecting or doubting his testimony.
5. It has also been contended on behalf of the respondent that the act of the respondent does not amount to misconduct falling under 'Standing Order 15. This contention is entirely without substance. The taking-out of cigarettes manufactured by the company from the premises of the factory without due authority not only constitutes wilful disobedience of the lawful order of the company since admittedly the taking out of cigarettes by workmen from the factory premises was prohibited but amounts to theft. As such the act established against theft respondent comes within the mischief of sub-clauses (a) and (b) of clause (3) of Standing Order 15.
6. The learned Labour Court has also emphasized the fact that the value of cigarettes was twenty to twenty-five paisas. However, the gravity of offences of this nature does not depend upon the value of the property as pointed out by this Tribunal in the case of Muhammad Siddique v. Premier Tobacco Industries, Kotri (1). In that case only five cigarettes were said to have been stolen by the workman and it was contended that for property of such small value it was quite unreasonable to award the severe penalty of dismissal. Repelling this contention it was observed by this Tribunal.
"The value of stolen property may be small but since that offence was great it was for the respondent establishment to determine the quantum of punishment."
' The latter part of the observation finds support from the recent decision of their Lordships of the Supreme Court in the case of Pakistan Tobacco Company v. Channa Khan (2), wherein it has been observed as follows : "Further, it is for the employer to assess as to what punishment should be awarded for misconduct under the provisions of the Statute; and if the employer chooses to award dismissal, the First Junior Labour Court cannot sit in judgment over it and substitute it with a lenient punishment."
7. The upshot of the above discussion is that in my view it has been fully established that the respondent was apprehended red-handed at the main gate of the factory of the appellant- Company with six cigarettes and that the plea of the respondent that somebody had put these cigarettes in his shirt pocket without his knowledge while his shirt was hanging on a wall is without substance. I would, accordingly, set aside the impugned decision of the learned Labour Court and allow this appeal. {{FOOT NOTE}}
(1) 1981 PLC 670 (2) 1980 PLC 981 {{FOOT NOTE}}