' This appeal arises from the decision dated 23rd May, 1981, passed by the learned Presiding Officer, Punjab Labour Court No,
5. Faisalabad, whereby the grievance petition of the appellant for his re- instatement was dismissed.
2. The appellant was a Store Cooly. On the allegation that three rolls of wicks were recovered from his possession while going out of the factory gate, he was charge-sheeted for committing theft. His reply to the charge-sheet was considered as unsatisfactory and an enquiry was held against him, which culminated in his dismissal. The plea taken by the appellant was that he was taking away the wicks to another branch of the Mills situated outside the gate in order to try the empty tins which were to be weighed. The only defect in the enquiry is that the statement of the appellant in his defence was not recorded. He did not say on the conclusion of the enquiry that he did not want to give any statement. The learned counsel appeared for the respondent has said that since in the beginning the appellant was enquired that he wanted to make any statement and he refused to do so, it was not necessary to record his statement. In the beginning what was enquired from the appellant was whether he had given reply to the charge-sheet and he said that besides his statement in writing already given he did not want to make any other statement. Obviously, the appellant said so because he did not want to add to his reply to the charge-sheet but it did not mean that he did not want to make any statement after the close of the prosecution evidence and the defence evidence. It was not enquired from him nor he himself on his own accord stated that he did not want to make any statement. Recording of statement, the statement of person under enquiry after close of the prosecution evidence is necessary in order to put to him the material which has been brought against him in the evidence and he is to be given opportunity, to explain the same. Since such an opportunity was not given he was prejudiced and the punishment awarded to him stands vitiated.
3. As a result of the observations made above I accept the appeal and setting aside thee punishment of dismissal and the impugned order of the learned lower Court direct the re- instatement of the appellant. However, as the appellant has succeeded on a technical ground, he is not entitled to back benefits.