' Talib Hussain, appellant, who has been directed to be re-instated in service by the learned Presiding Officer, Punjab Labour Court No, 6, Rawalpindi, vide its decision, dated 2nd March, 1982 has in this appeal claimed back benefits and has challenged the impugned order to this extent.
2. At the outer gate one tin containing black paint and eleven loose cigarettes were recovered from his possession. The enquiry officer found him guilty of theft of the said articles, and he was dismissed on that score. The learned lower Court directed the re-instatement of the appel lant without back benefits applying Chan Pir Shah's case , on the ground that out of the two articles only the cigarettes were proved to have been stolen and that the tin of paint belonged to the appellant.
3. It has been argued by the learned counsel for the appellant that the cigarettes were not stolen, in as much as they were not delivered to the co-worker who was going out of the factory. Naeem Khan, Guard, stated during the enquiry that he asked the appellant to offer himself for search, whereupon he handed over smoking allowance to his companion and while he did so, three cigarettes fell from his pocket and during search eight more were recovered. But the appellant did not suggest to him that he did not want to go out of the factory. In cross-examination the witness said that any body who wanted to go out of the factory, is searched. If the appellant did not want to go out of the factory, he would have said so to Naeem Khan and no search would have taken place. Since the appellant became prepared for search, it is clear that be had the intention to go out. He had reached the point where every worker is searched. He did not suggest to Naeem khan that he had come only to deliver the allowed cigarettes to Altaf Hussain, his co-worker, to be taken to his village. This omission on his part clearly shows that he wanted to go out with his companion.1 The act of taking the eleven loose cigarettes upto the point where search is affected, amounted to committing the theft of cigarettes obtained by him for smoking in the canteen. So I do not find any force in the argument of the learned counsel for the appellant that no theft of eleven cigarettes had taken place.
4. Since the appellant was re-instated only on the ground that he was not guilty of the theft of stealing tin of paint and was guilty of the theft of cigarettes, but the employer punished him for both the offences, he was not entitled to back benefits.
5. As a result of what has been said above, I do not find any force in the appeal and dismiss the same. 1981 PLC 984