This appeal arises from the decision dated 14-2-1979 passed by the learned Presiding Officer, Punjab Labour Court No. 1, Lahore, whereby the grievance petition of the respondent was accepted and he was directed to be re-instated in service with back benefits.
2. The respondent was a Junior Clerk. It was reported against him that two disciplinary cases were entrusted to him on 6-7-1978 for being onward transmission to the operation branch. Is was found on 16-7-1978 that he had not passed on the cases and that the same were lost. The respondent was charge-sheeted, in reply to which he took a stand that he had delivered the cases to Mohsin Hashmi, whose duty it was to pass on the cases and that one of the cases had actually reached the operation branch. The enquiry notice was issued to the respondent, but he did not join the enquiry. First date of enquiry was 4-9-1978 which was adjourned to 13-9-1978 on his request. The enquiry was further adjourned on his request to 24-9-1978 but he did not join the enquiry, with the result that it was made ex parte.
3. The learned trial Judge held that no misconduct was proved against the respondent, inasmuch as Mohsin Hashmi was not examined at the enquiry. The learned counsel for the appellant has argued that since a plea was taken by the respondent that he had delivered the cases to Mohsin Hashmi, it was his duty to examine the said witness in support of his assertion. On the other hand, the learned counsel for the respondent has argued that since the enquiry was made ex parse, the management should have examined Mohsin Hashmi. It has been further argued that the respondent had made an application to the District Manager for appointing Muhammad Ishaq as his representative, because the Enquiry Officer had refused to allow him to produce Muhammad Ishaq as represent--ative for the reason that he belonged to another depot, According to the respondent, application made to the District Manager in that behalf was not decided. In the said application it was alms requested that the enquiry be held again and he be allowed to be represented by Muhammad Ishaq. The enquiry proceedings do not support the contention of the respondent that the Enquiry Officer had objected to the appointment of Muhammad Ishaq as representative. There is no such thing in the order dated 24-9-1978, nor there is any written application on the enquiry file. . The said application was made to" the District Manager after the enquiry had been completed, therefore, rightly no action was taken on it. No doubt the respondent took up the plea that he had delivered the files to one Mohsin Hashmi but he did not produce any receipt of the said person or any other documentary evidence in that behalf. Since under receipts the files had been delivered to the respondent and they were duly entered in the register, the respondent could not have delivered the files to some other person without receipt. The respondent had not to take any other action upon those cases but had to further transmit them to the operation branch. Since he had only to further deliver the files, instead of delivering them to Mohsin Hashmi, he could have delivered the files directly to the operation branch. There was no purpose in delivering the files to Mohsin Hashmi. This plea therefore, appears to have been taken in defence falaciously. The respondent knew that Mohsin Hashmi would not support him in this matter, therefore, he thought it fit not to join the enquiry. If Mohsin Hashmi had supported the case of the respondent, the responsibility would have shifted upon him to produce the files or to disclose their where--abouts after he had received them from the respondent. If the respondent had produced any document or receipt in the hands of Mohsin Hashmi, only then the onus would have been shifted upon the prosecution to examine the said witness in the ex parse enquiry. Needless to say that if the respondent had not kept himself away from the enquiry, in all circumstances it would have been his duty to examine Mohsin Hashmi in support o his contentions. One of the files pertained to the misconduct alleged to have been committed by a bus driver and the other was in respect of the misconduct alleged to have been committed by a conductor. Both the files, therefore, were very important and valuable for the appellant as well as the persons against whom they had been prepared. On account of loss of those files, no enquiry could be held against the said driver and the conductor. The case was, therefore, duly proved against the respondent and the learned trial Judge erred in holding that no misconduct had been established.
4. As a result of the observations made above, I accept the appeal and setting aside the impugned decision of the learned lower court, restore the order of dismissal and dismiss the grievance petition of the respondent.