' The appellant, who was employed in the Hotel Intercontinental Karachi, the 1st respondent herein, as an Assistant Steward, was served with a charge-sheet, dated 27th October, 1979, to the effect that he had presented a used cheque (bill) of Demi Tasse Restaurant to a hotel guest, Mr. Danishmand, at the Cafe Suroor and pocketed the proceeds of the cheque, amounting to Rs, 211.67.
The appellant, in his reply, dated 30th October, 1979, to the aforesaid charge-sheet submitted that he did not recollect having served Mr. Danishmand and denied that he had collected or pocketed the sum of Rs, 211.67. As the Management was not satisfied with his reply, a domestic enquiry was held in which the Enquiry Officer, Manager Hamidullah Khan, examined 3 witnesses, namely, Muhammad Umer Khan (Assistant F & B Manager), Taufiq Ali Khan (Head Cashier), and Muhammad Saleem (Cashier). It was established from the evidence of the aforesaid witnesses that the cheque (bill) presented to Mr. Danishmand at the Cafe Suroor was a used cheque, it having been issued earlier in the day in respect of Demi Tasse Restaurant, that over the printed entries in the cheque (bill), there were handwritten items the handwriting whereof' tallied with that of the appellant, and that further the amount of this cheque (bill) was not credited to the Hotel funds or received by the cashier. On the basis of these findings of the Enquiry Officer, a second show-cause notice was given to the appellant and as his reply thereto was not found satisfactory, he was dismissed from service. The appellant, it appears, in the meanwhile, filed a civil suit and obtained an interim injunction from the civil Court. His civil suit, however, was dismissed and the appeal against the dismissal of his civil suit also was infructuous. The appellant thereafter challenged the orders of his dismissal which were published in a local newspaper of 13th March, 1980. The grievance petition of the appellant was resisted by the respondents on the main ground that the misconduct of the appellant had been duly established in a fair and impartial domestic enquiry in which full opportunity was given to the appellant to defend himself. The learned Labour Court has taken the view of that the dismissal of the appellant was fully justified as his misconduct in presenting a used cheque (bill) to a hotel guest and collecting the proceeds thereof had been fully established in a domestic enquiry. The learned Labour Court also repelled the contention of the appellant that the proceedings against him had not been taken nor his dismissal orders were issued by his employer, who according to the appellant was not Hotel Intercontinental but Pakistan Services Ltd., respondent No, 2, who are said to own Hotel Intercontinental, Karachi. Aggrieved by this decision, the appellant has come up in appeal to this Tribunal.
2. I have heard Mr. M. L. Shahani, learned counsel for the appellant, and Mr. Latif Sarwari who appeared for the respondents. Although Mr. Shahani, in his memo. Of appeal, had raised the plea that Hotel Intercontinental was not the employer of the appellant, and hence, was not competent to issue his dismissal orders, he did not argue this point before this Tribunal and the only ground on which he assailed, before this Tribunal, the decision of the learned Labour Court was that there was no evidence either before the Enquiry Officer or the learned Labour Court to the effect that the appellant had presented a used cheque (bill) and pocketed the proceeds thereof.
3. Mr. M. L. Shahani did not attempt to controvert the evidence that Mr. Danishmand had been presented at Cafe Suroor a used cheque (bill) of Demi Tasse Restaurant, that he had paid to the person presenting the said cheque (bill) a sum of Rs, 211.67, and that the said amount was pocketed by the person receiving the amount and was not credited in the funds of Hotel Intercontinental. The learned counsel's contention, however, was that there is no evidence to establish that it was the appellant who had presented the cheque (bill) and pocketed the amount.
The learned counsel took me through the evidence of the 3 witnesses examined in the domestic enquiry and submitted that none of them have alleged that it was the appellant who had either served Mr. Danishmand and presented the cheque (bill) to him, or received the amount of the cheque (bill) and pocketed the same. No doubt, the burden of evidence of the above witnesses is that the cheque (bill) presented to Mr. Danishmand was issued through the machine and was of Demi Tasse Restaurant, that there were handwritten items thereon quite different from the items printed by the machine, that the amount of these handwritten items totalled to Rs, 211.67 and that the said amount had never been received by or credited to Hotel Intercontinental. However, there were 2 important documents produced before the Enquiry Officer. The first was the complaint of Mr. Danishmand, dated 22nd October, 1979, made to the Hotel Intercontinental, Karachi, to the effect that he had been presented a forged and wrong cheque (bill) by one Shabbir, who had waited upon them and served them and that the said person had been paid by him a sum of Rs, 211.67, which was the amount shown in the used cheque (bill). It appears from the evidence of the witnesses that apart from the appellant, whose name is Shabbir, no other person of his name was employed at the relevant time in Cafe Suroor. The second document of importance which was produced before the Enquiry Officer was a used cheque (bill) of Demi Tasse Restaurant on which there are handwritten items over the printed items. The handwriting on this cheque (bill) was compared by the Enquiry Officer with the admitted handwriting of the appellant and he was of the view that the 2 handwritings tallied. I have also compared the handwriting on the used cheque
(bill) with the admitted handwriting of the appellant and am convinced that the two handwritings are of the same person. However, as the most important witness in the case was Mr. Danishmand and as he had not been examined by the Enquiry Officer, in order to completely satisfy myself as to the correctness of the allegations against the appellant, Mr. Danishmand was summoned and examined by this Tribunal. He has fully supported the charges against the appellant and stated that it was the appellant who had served him and his friends, had presented him the used cheque and had received the amount of Rs, 211.67, the proceeds of the cheque. Mr. Shahani sought to assail the evidence of Mr. Danishmand on the ground that whereas, according to Mr. Danishmand, they had dinner at the Cafe Suroor and the dinner was taken by them sometime after 8.00 p.m., not only the findings of the Enquiry Officer were to the effect that the used cheque (bill) was presented during lunch time at Cafe Suroor, but that further there is evidence on record to show that on the day of the incident, the appellant was not on duty at the Cafe Suroor in the night or in the evening.
Mr. Shahani's contentions are accordingly two fold, firstly, that the evidence of Mr. Danishmand as to the time of his visit to Cafe Suroor is wholly inconsistent with the other evidence in the case, and secondly, that he has mistaken as to the identity of the person who bad served them. The second contention of Mr. Shahani is founde on the admission of Mr. Danishmand in his evidence before this Tribunal that the appellant's appearance now is very much different from his appearance at the time when he had served them. The witness, however, is positive that it was the appellant who had served them. I may be pointed out that Mr. Danishmand did not see the appellant only on the occasion when he had served them at Cafe Suroor. According to Mr. Danishrnand, sometime after he had made his complain to the Hotel Intercontinental, the appellant alongwith some officers of the Workers' Union of Hotel Inter-Continental had seen him and tried to persuade him to withdraw his complaint. He had further testified that at that time the appellant admitted his guilt to him and asked him for forgiveness. So far as the time at which the meals were taken by Mr. Danishmand and his friends at Cafe Suroor, although Mr. Danishmand has spoken of having dinner at Cafe Suroor, this does not mean that he had taken night meal at Cafe Suroor. In the Webster's IIIrd New International Dictionary "Dinner" has been defined as the "principle meal of the day eaten about mid-day or in the evening, also a formal feaster banquet in honour of some person or event".
Dinner thus could be eaten either at mid-day or at night. No doubt, Mr Danishmand has stated that they had taken meals at Cafe Suroor after 8-00 p.m., but looking to the items which they had, much consisted of orange juice, burger, coffee, soup, ice cream, fruit salad and fried onion, it is more likely that they had lunch or an afternoon meal. As Mr. Danishmand was giving evidence before this Tribunal about 2 years after the incident, it appears that he has forgotten the time at which he had taken the meals at Cafe Suroor. The discrepancy in time thus between the evidence of Mr. Danishmand and the other evidence on record is of no significance and does not destroy the case against the appellant.
4. For the reasons discussed by me above, I would concur in the view taken by the learned Labour Court that the misconduct of the appellant has been fully established, particularly in view of the very damaging evidence given by Mr. Danishmand before this Tribunal, and would dismiss the appeal.