The appeal captioned above has been preferred against the decision dated 9-8-1981 passed by the learned Presiding Officer, Punjab Labour Court No. 5, Faisalabad, whereby the grievance petition of the appellant for his re-instatement in service was dismissed.
2. The allegations against the appellant for which he was dismissed were that he had removed golden ornaments of Munshi Khan which the latter had pledged with the respondent bank as security for the loan taken by him. Safdar Ali, Cashier, gave evidence against the appellant before the enquiry officer. He stated that the signatures of Munshi Khan were already present on the register and on the assurance and asking of the appellant he attested the signatures and delivered the ornaments to him. The enquiry officer who had held preliminary enquiry was also examined and he said that after the enquiry had been concluded the appellant on his asking told Munshi Khan that he had misappropriated his gold, that no clerk or cashier had any hand in it but he would not give any writing in that respect.
3. Enquiry was not properly made. Muffshi Khan, the owner of the disputed ornaments, was not examined either in the enquiry or before the learned lower Court. The appellant deposed before the learned lower Court that the ornaments had been taken away by Munshi Khan from Safdar Ali.
Cashier. The examination of Munshi Khan was, therefore, necessary to say that he never received the ornaments. It was necessary to prove the signatures appearing on the ledger. Safdar Ali was examined against the appellant and the latter was examined against the former. This is not the proper mode of enquiry. Since both of them were under enquiry, they tried to implicate the other.
When other evidence was available, it should have been produced. The other defect is that from the enquiry file (if this is complete file) it does not appear if the opportunity was given to the appellant to produce defence evidence. It was not enquired from him whether he wanted to examine any person in defence. The file does not show that any adjournment was given to him to produce defence evidence. The statements of the witnesses are undated. It, therefore, does not appear if they were recorded before or after the state--ment of the appellant was recorded.
4. It has been argued by the learned counsel for the respondent that since the appellant admitted before the enquiry officer that as Manager his service was four years, he is not a workman. This is true that the appellant said that his service as Manager was four years, but he did not say that he was Manager during the period of enquiry. The designation at the time of dismissal is relevant. The appellant before the learned lower court stated that he was not a Manage at the time his dismissal He was IInd Officer but there is no evidence that he was working in supervisory capacity. He did say that his wages were Rs. 1,150 but break-up was not enquired, so it does not appeal if his pay including those allowances which form part of pay exceeded Rs. 800. For the application of clause
(b) of section 2 (xxviii) of the Industrial Relations Ordinance, 1969, presence of two conditions i. e.
Pay should be more than Rs, 800 and main duties in supervisory capacity, are necessary. So the appellant was a workman.
5. As upshot of the observations made above, I accept the appeal and direct the re-instatement of the appellant in service. As the appellant has succeeded on technical grounds, he is not entitled to back benefits.