This appeal is directed against a decision of the learned VIIth Labour Court , Sukkur, given on 7th April, 1982, allowing the grievance petition of the respondent workman,, challenging his dismissal from the service of the appellant-Company and directing that he be re- instated in service with back benefits.
2. The facts, which from the background of this appeal, shortly stated, are that a theft of an Air- conditioner belonging to the appellant-- Company took place on the night between 20th and 21st of September, 1981. It appears that a report of the theft was immediately lodged by the appellant Company with Mirpur Mathelo Police. It is alleged that the stolen air-conditioner was recovered by the police from the possession of the respondent on 3rd October, 1981. On the this recovery, a show-cause notice dated 29th October, 1981 was served upon the respondent. The latter submitted his explanation to the said show-cause notice on 2nd November, 1981, denying the allegation that the stolen air-- conditioner was recovered from his possession. According to his explana--tion. The air-conditioner was to recovered from his house but from a hotel. As this explanation was not found satisfactory by the appellant-- company, a domestic enquiry was held against the respondent workman in which a copy of the report of the recovery of the air-conditioner by the police was produced. Mainly on the basis of that report, the enquiry committee held the respondent guilty of the finding of the collusion in the theft of the air-conditioner and its unlawful retention enquiry committee was accepted by the management and after a second show cause notice was served upon the respondent. Reply of which was not considered satisfactory by the management, the respondent was dismissed from service, vide its order, dated 26th December, 1981
2. It may be pointed out that the main plea of the respondent workman all along has been that since a criminal case has been instituted against him in respect of the stolen air-conditioner and proceedings on that basis are before the competent criminal court, his guilt or innocence should not be prejudged by hasty departmental enquiry, the result whereof might prejudice his defence in the criminal case. I am not impressed with this plea because a criminal court would base its findings on the (e.i)--dence led before it and not on material which may come up in the domes-- tic enquiry. Nor is the criminal court likely to . Be influenced by the findings in the domestic enquiry which is entirely for a different purpose. It may also perhaps be unreasonable to-except an employer to await the result of the criminal trial, which may take considerable time, looking to the pressure of work. In the criminal courts, before initiating depart--mental proceedings against an offending workman.
3. The other plea, however, which the respondent put forward in his explanation to the first show cause, deserved consideration at the hands of the enquiry committee, I. Have already pointed out that according to his explanation to the first show-cause notice the stolen air-conditioner was nether recovered from his possession nor from his house but was recover--ed from a hotel, which did not belong to him. In view of this explana--tion of the respondent workman it was all the more necessary for the enquiry committee to examine witnesses, including the police officer who made the recovery of the air-conditioner, if he was easily available, before submitting its findings on the guilt or innocence of the respondent to the management. With great fairness, Mr. Shahani, the learned counsel for the appellant Company, conceded that- the main evidence which was led in the domestic enquiry against the respondent on the recovery of the stolen air-conditioner was the report of the police officer who was not examined. This evidence, in my. View, is totally insufficient, in the circumstances of the case, for establishing the guilt of the respondent, even in a domestic enquiry. The law requires that before an employer can dismiss a work--man on the charge of misconduct he must institute independent enquiries against him. Furthermore, in such enquiry, there should be tangible evidence in support of the charges against the workman. The appellant Company failed to adduce tangible and reliable evidence establishing the guilt of the respondent workman even before the learned Labour Court . All that it was relied upon before the learned Labour Court was the report of the enquiry committee which report, as already pointed out, is not based on sufficient material to establish the grave charge levelled against the respondent.
4. For the reason discussed by me above, I would agree with the view taken by the learned Labour Court that the order, dated 26th December, 1981 dismissing the respondent from service cannot be sustained, in the circum--stances of the case, and that the respondent has rightly been ordered by the learned Labour Court to be re-instated in service. However, as there is no material before the court indicating that the charge against the .Respondent is unfounded, and further the failure of the enquiry committee to record proper evidence on the point of recovery of the stolen air-condi-- tioner would appear to be due to its worst of experience, I would give an option to the appellant Company to hold a fresh enquiry against the respondent, in which the management would be free to lead, tangible (e.i)--dence on the point whether the stolen air-conditioner was recovered from the possession of the respondent. And if so, under what circum--stances. The award 'of back benefits to the respondent would depend upon the result of such an enquiry. I would further order that if no fresh enquiry is held against the respondent within three months from the date of this order, it will be assumed that the appellant Company has waived its right to held a fresh enquiry, and in such case, the respondent would be entitled to full back benefits.