' Facts giving rise to these two applications in nutshell are that the applicant was employed as storeman in the respondent organization and he claimed himself to be governed by the Labour Law including S. O. Ordinance, 1968. In the year 1976 he was suspended on the allegations of some shortage at Shahpur Chakar Depot. On 19th August, 1979 he was charge-sheeted and then an enquiry was conducted against him on 6th July, 1983. Finally he was dismissed from service on 14th February, 1984. The grievance notices were then sent by him on 12th October, 1983 and 1st March 1983. Finally, he first filed Application No, 119/83 against his continuous suspension and for the payment of all back benefits etc. And on dismissal he filed another Application No, 48/84 for his reinstatement with all back benefits.
2. In the reply statement filed on behalf of the respondent it was pleaded that the applicant had deserted duty from 1st August, 1976 but despite repeated directions he did not report for duty.
During the course of preliminary scru tiny of the record it transpired that stock under the charge of the applicant was short to the extent of Rs, 6,660. However Rs, 4,600 was paid up by the applicant on 20th October, 1976 and Rs, 648 were paid on 17th December, 1976. An amount of Rs, 6,119 was however found still due. Accordingly, on account of his desertion from duty from 1st August, 1976 he was suspended by order dated 21st August, 1977 effective from 1st August, 1976. During the course of suspension the applicant did not remain present on duty and so he was not entitled to any amount even as suspension allowance. On 19th August, 1979 he was charge-sheeted which was replied by him on 12th January, 1982. On 28th March, 1981 he also deposited a sum of Rs, 6,309 and then he again disappeared. It has been pleaded that due to the absence of the applicant the enquiry could not be completed till 6th July, 1983. It has been pleaded that the applicant attended the office only on 3, dates viz. 28th August, 1979, 28th March, 1981 and 6th July, 1983. In reply to the charge-sheet he is said to have admitted the shortage which fact was also further established before the Enquiry Officer. In regard to the limitation it has been pleaded that scrutiny process was completed in August, 1979 and so the charge-sheet dated 19th August, 1979 was well within time.
The dismissal order was accordingly legal and proper.
3. Since both the above cases arise out of one action and since legal position in both the cases is one, both these cases were amalgamated at the behest of the parties hereto vide order dated 26th September, 1984.
4. The applicant examined himself alone, while on behalf of the respondent one Mr. Saleem Aziz Siddiqui was tendered in evidence. After the evidence I have heard Mr. M. Bashir Awan, Advocate for the applicant and Mr. Naimatullah Qureshi, Advocate for the respondent. I have also considered the factual and legal position involved in these cases.
5. From the material on record the admitted factual position is that the applicant was suspended by order dated 28th January, 1977 but with retrospective effect from 1st August, 1976. This suspension order also continued in operation till the dismissal of the applicant. The applicant was also not paid any subsistence allowance during the suspension period. Charge-sheet was issued on 19th August, 1979 and the enquiry was held and completed on 6th July, 1983 while the applicant was dismissed by order dated 4th February, 1984. The points which have been urged on behalf of the applicant are that (1) the suspension made with retrospective effect was wholly unwarranted ;
(2) suspension beyond four weeks is contrary to the mandatory provisions of S.
0. 15 ; (3) the charge-sheet was hopelessly time barred because the misconduct of the applicant was detected in the year 1976 or at best in 1977 when applicant was suspended ; (4) that the applicant had made good the entire loss of the respondent and, finally that the Enquiry Officer did not recommend the dismissal of the applicant and so the impugned order of dismissal was not sustainable in law. The submission of Mr. Naimatullah however is that (1) the suspension order was not with retrospective effect but there was a clerical error in it to make it effective from 1976 ; (2) that the applicant himself remained absent throughout and so there was no question of issuing any formal order of discontinuance of suspension order (3) that the charge-sheet was well within time because the actual defaulcated amount was made known to the respondent only after final scrutiny completed in August, 1979 and that the applicant had throughout admitted his guilt as also he remained absent from duty and so the recommendation of the Enquiry Officer was not binding on the management.
6. Letter of suspension issued on 28th January, 1977 is placed on record as Annexure All in appiication No, 119/83. According to this letter the applicant was suspended with effect from 1st August, 1976 (F. N.) and suspension was due to the applicant's negligence as also for not depositing Rs, 6,119 being the shortage occurred at sale point Shahpur Chakar. In view of unambiguous language used in this letter, it cannot be contended on behalf of the respondent that date as 1st August, 1976 was merely a clerical error. Mr. Naimatullah submits that in fact the applicant remained away from the duty right from 1st August, 1976 and so this date of 1st August, 1976 was mentioned in this letter. However, according to him, this would not be questionable. I am afraid, this submission is devoid of any substance because there has never been any charge of absence of the applicant till his dismissal. As stated above, this suspension was made because of the negligence of the applicant and because of non-deposit of the shortage amount. In this view of the matter this suspension with retrospective effect would wholly be illegal and cannot be approved.
'7. Even if it is assumed that this suspension was not with retrospective effect, still it is an undisputed fact that the applicant was never put back on duty nor his suspension was recalled. In other words, the suspension continued till his dismissal. Mr. Naimatullah has fairly conceded at the bar that the S.
0. Ordinance is fully applicable to the respondent establishment and, if it is so I would have no difficulty in holding that the suspension beyond 4 weeks would be in contravention of S.
0. 15.
8. I would now advert to the charge-sheet itself. It was issued on 19th August, 1979 and had been placed as Annexure A/2 in application No, 119/83. According to this charge-sheet the shortage to the extent of Rs, 11,340 was detected in May, 1976 during the course of checking of sale point Shahpur Chakar by D. A. S. O. Shahpur, Sanghar. There is no other material on record to show that any scrutiny was made and only after completing the detailed scrutiny the misconduct of the applicant was divulged. No doubt in para. 7 of the written statement filed in application No, 48/84 as also paragraph 5 of the affidavit in evidence of the witness of respondent it has been asserted that the charge-sheet could not be issued without first fully ascertaining the actual position and which scrutiny was completed in August, 1979. However this oral statement uncorroborated by any document or any other evidence alone would not be acceptable particularly when in the charge- sheet itself the whole shortage was said to have been detected in May, 1976. The enquiry was also held on the basis of this charge-sheet and the impugned dismissal was also passed on the same charge-sheet. In view of this documentary evidence it cannot be urged on behalf of the respondent that in fact the scrutiny was made and completed in August, 1979 and so the charge- sheet was within time. Accordingly the charge-sheet in question is hopelessly time barred and whatever proceeding were initiated on it are void ab initio.
9. The enquiry conducted against the applicant is also not in accordance with law inasmuch as no prosecution witness was examined by the Enquiry Officer but only the statement of the applicant was recorded and he was cross-examined by the Enquiry Officer himself posing himself to be a prosecutor instead of an independent or impartial Enquiry Officer. Such type of enquiry proceedings are hardly tenable in law.
10. The applicant had deposited Rs, 4,600 on 20th October, 1976 Rs, 468 on 17th December, 1976 and Rs, 6,309 on 28th March, 1981 against Rs, 11,340. He has thus paid Rs, 217 more than the shortage was found on his account. This amount, as conceded by Mr. Naimatullah as well is to be refunded to the applicant.
11. From the record it is evident that the applicant remained absent from duty from some time in 1976 and that he also admitted the shortage in his account and that is why the applicant voluntarily deposited the amount as referred to above. In this way, it cannot be argued that the applicant bad committed some misconduct but it is not free from doubt whether it was deliberate act of the applicant or it was by some omission or lapses on his part. It is also borne on record that the responsible Officers of the respondent avoided to pursue this matter and kept it hanging for nearly 8 years without any tangible and lawful explanation. The plea of the applicant however is that there had been some sort of theft in his absence and he wanted to lodge report with the Police but he was persuaded by his superior not to do so otherwise they themselves apprehended for their involvement if some detailed checkings were made. There is nothing on record to support this contention of the applicant but nevertheless the conduct of the concerned and responsible Officers of the respondent gives an indication that the delay in this case was also not legally dealt with perhaps to save their own skins. In fact, the concerned Officers in this case were equally guilty of ignoring such a serious case of defaulcation. In any case, it is not the concern of this Court to pass any orders against others but at least it has to be recorded that the applicant was not proceeded against in a legal manner otherwise his guilt might have been established and he would have been punished.
12. In view of the above, I would set aside the impugned orders and would direct the reinstatement of the applicant. However, since the absence of the applicant from 1976 onwards has been established and since impliedly the applicant has held himself responsible for the shortage, I would not order for the back benefits. He would however be entitled to his salary from the date he reports for duty.