DECISION ' This appeal is directed against the order, dated 21-4-1987, passed by the learned Presiding Officer, IVth Sind Labour Court at Karachi, whereby he dismissed the grievance application of the appellant.
2. The facts leading to this appeal in brief are that the appellant was employed as Security Guard by the respondents from 3-6-1981. On 30-10-1984, he was charge-sheeted and was given notice to show cause alleging therein that he had tampered with the duty attendance register of September 1984, and had affixed the signature of Security Assistant by means of forgery on the overtime claim form of August, 1984. The allegation against the appellant was that he had filed false claim for overtime for 5th and 14th August, 1984, and forged the signatures of Security Assistant thereupon and further that he had tampered with the duty attendance register and had shifted his duty from 'A' to 'C' shift for the period from 1-9-1984 to 10-9-1984. The appellant replied to the show-cause notice which was not found satisfactory and, therefore, an Enquiry Officer, namely, Major (Rtd.)
Muhammad Shah was appointed to conduct the enquiry who found the appellant guilty of the charges. Consequently, the appellant was dismissed vide order, dated 31-3-1986, by the General Manager (Security). The appellant gave grievance notice to the respondents which was rejected by the respondents and consequently, he filed grievance application under section 25-A, I.R.O. 1969, which was dismissed by the impugned order.
3. Mr. Anwar Wasti, the learned representative of the appellant has raised two legal objections.
Firstly, he has contended that the proceedings of enquiry were barred by limitation as show-cause notice/charge-sheet was not issued within the time prescribed under Standing Order 15(4); and secondly, that the order of dismissal was not passed by the competent authority. Clause (4) of Standing Order 15, reads as under:-- "(4) No order of dismissal shall be made unless the workman concerned is informed in writing of the alleged misconduct within one month of the date of such misconduct or of the date on which the alleged misconduct comes to the notice of the employer and is given an opportunity to explain the circumstances alleged against him. The approval of the employer shall be required in every case of dismissal and the employer shall institute independent inquiries before dealing with charges against a workman."
4. As pointed above the appellant is alleged to have falsely claimed overtime for 5th and 14th August, 1984 and also forged signatures of Security Assistant on these dates. He is also alleged to have tampered with the duty attendance register for the period from 1-9-1984 to 10-9-1984. These would be the dates on which the alleged acts of misconduct were committed by the appellant.
However, the charge-sheet/show-cause notice is dated 30-10-1984 viz., after one month of these dates. Under clause (4) of Standing Order 15, the order of dismissal could still be passed if the workman is informed in writing of alleged misconduct within one month from the date on which alleged misconduct comes to the notice of the employer. The question when the alleged misconduct had come to the notice of the employer would be specifically in the knowledge of the employer. As such, the burden of proving as to when he came to know of the misconduct is shifted upon the employer.
5. The appellant in his grievance application had taken the stand that the enquiry proceedings were barred under Standing Order 15(4). This averment was denied in the written statement filed by the respondent. However, this denial was vague and it was not specifically pleaded as to when the alleged misconduct came to the knowledge of the employer and no specific date of such knowledge was asserted or mentioned in the written statement. Before the learned Labour Court, the respondent had examined 3 witnesses, namely, Messrs Akhtar Hussain, Akbar Jan and Muhammad Iqbal. The first two witnesses were also examined before the Enquiry Officer. Neither Akhtar Hussain nor Akbar Jan have stated in their evidence as to when the acts of alleged miconduct by the appellant came to the knowledge of the employer. However, Muhammad Iqbal has stated in his affidavit-in-evidence in para. 2 that "in the second week of October, 1984, it came to the notice of the General Manager (Security) being the competent authority, that the applicant had tampered with the duty scheduling/attendance register and his overtime claim forms and had affixed forged signature on the overtime claim forms.
6. The question that arises is as to how far this oral evidence of Muhammad Iqbal can prove that the show-cause notice was within one month of the date when the alleged misconduct came to the knowledge of the employer? Admittedly, he is not an employer. According to Mr. S.M. Yaqoob, the learned representative for the respondents that under Delegation of Powers, the General Manager (Security) was the employer. The General Manager (Security) has not been examined before the Court. Muhammad Iqbal has not given any data on the basis of which he made the statement that the alleged acts of misconduct of the appellant came to the notice of the General Manager in the second week of October, 1984. I have already pointed out that this fact was not specifically pleaded or asserted by the respondents in their written statement.
7. Akbar Jan is the complainant in this case. He stated before Enquiry Officer that on 2-9-1984, he had fixed the duty of the appellant in 'A' shift but on the next day, he found that the Duty Schedule had been crossed with red pencil and the new schedule had been made. He states to have immediately submitted such report on the same day to the I.O.And the XEN. Thus, the report of this alleged misconduct by the appellant was made in writing by Akbar Jan on 3-9-1984. Under the circumstances, this report must have been in writing which had reached the General Manager. This correspondence could have been produced by the respondents before the learned Labour Court to show that it had reached the General Manager in the second week of October, 1984. Similarly the witness has stated that the appellant had done overtime only on 14-8-1984, and that he had not signed overtime claim form of the appellant. He has stated that he had reported to I.O. About this.
He has not given the date as to when he had made report to the I.O. Naturelly this report of misconduct must have been submitted in writing to the General Manager but even this writing has not been produced to prove that the General Manager acquired the knowledge of misconduct only in the second week of October. Witness Akhtar Hussain was examined by the Enquiry Officer who put him a question as to why show-cause notice with regard to overtime in August was given to the appellant on 30-10-1984, when it had to be given within 30 days. Witness had answered that this answer can only be given by the General Manager (Security). He had admitted that Akbar Jan had given him a report on 2nd or 3rd of September with regard to tempering the duty attendance register. Even this witness was conscious that it could only be the General Manager who could explain as to the delay in giving show-cause notice.
8. The show-cause notice has obviously been given much after one month after the dates of the alleged acts of misconduct committed by the appellant. The question as to when the alleged acts of misconduct came to the knowledge of the employer would be in the knowledge of the employer.
As has been pointed the burden to prove such knowledge is shifted upon the employer. It is for him to prove that the misconduct had come to his knowledge within one month of the date when the show-cause notice was issued. I have already pointed that the report of misconduct was in writing which would be a usual practice in a big organisation like the respondents. Mr. S.M. Yaqoob, the learned representative for the respondents contended that in such a big organisation, it must have taken some time for the alleged acts of misconduct to come to the knowledge of the General Manager. I am inclined to agree with him that it must have taken some time to come to the knowledge of the General Manager. As pointed above the duty was upon the General Manager to prove that the show-cause notice was issued within one month of the date when he acquired such knowledge. This B proof could have been adduced either by examining the General Manager or by producing a documentary evidence viz., the correspondence and the reports with regard to the alleged acts of misconduct which were put up before him. If a party is in a position to adduce the proof but fails to so adduce, the presumption would naturally be drawn against that party. It is submitted by Mr. S.M. Yaqoob, the learned representative that the evidence of Muhammad Iqbal with regard to the time when the misconduct came to the knowledge of the General Manager has gone unchallenged. As already pointed, he has not given any data or basis of his statement or knowledge. If his knowledge is derived from the statement of General Manager made to him, it would be hearsay evidence and thus, inadmissible unless General Manager is examined. If his statement is based on certain office correspondence or documents, he should have produced the same in support of C his evidence. As he is not an employer, his evidence in this respect has little value. For the aforesaid reasons, in my opinion, the order of dismissal is barred by the provisions of Standing Order 15(4).
9. I need not to discuss the other grounds and pleas raised by the appellant as Standing Order 15(4) clearly prohibits the issuance of dismissal order when the workman has not been informed in writing of the alleged acts of misconduct within one month from the date of misconduct or from the date when such misconduct came to the knowledge of the employer. As such, the impugned order passed by the learned Presiding Officer of the Labour Court is set aside. The appeal of the appellant is allowed. The dismissal order is held to be illegal null and void and is set aside. The appellant is ordered to be reinstated in service and he is awarded full back benefits. The respondent is ordered to implement this decision within 15 days.