JUDGMENT SYED ABDUR RAHMAN, J:- This is a petition under Article-199 of the Constitution of Islamic Republic of Pakistan, 1973.
2. The petitioner was employed as a Machinist in the cigarette factory of the respondent No.3 at Karachi. On 11-11-1981 at about 3.50 p.m., while he was going out of the factory through its Railway Gate, he was searched, whereupon nine loose cigarettes of p.g. And one plate of G.L sheet were recovered from his possession. Thereupon a report was prepared, and statement of the petitioner was obtained in writing concerning the incident. In his statement the petitioner admitted that both the articles were recovered from him. A charge sheet was issued to the petitioner charging him with theft and dishonesty in connection with the employer's business or property. The petitioner replied to the charge sheet where upon an enquiry was held by the Enquiry Officer and the petitioner was held guilty of mis-conduct under Standing Orders 15(3) (b) of the West Pakistan Industrial & Commercial Employment (Standing Orders) Ordinance, 1968. Consequent upon the said finding the Factory Manager dismissed the petitioner from-service with effect from 21-11-1981.
Being dis-satisfied with the dismissal the petitioner filed petition under Section 25-A of the I.R.O., 1969 before the Labour Court which was dismissed. Being aggrieved by the order of the Labour Court, the petitioner filed an appeal before the Labour Appellate Tribunal, which was also dismissed. Hence this petition.
3. The respondents have filed Counter-Affidavits to the petition and have re-iterated that the petitioner had committed theft as alleged in the Charge Sheet and a proper enquiry was held against him in which he was held to be guilty and was, therefore, rightly dismissed by the Factory Manager. It is also admitted that the petitioner had filed appeals before the Labour Court and the Labour Appellate Tribunal, both of which were also dismissed.
4. We have heard Mr. Choudhry Mohammad Ashraf Khan, learned counsel for the petitioner at length. The first contention of the learned counsel is that although in the Charge Sheet there was an allegation that the petitioner had been found in possession of to properties i.e. Nine cigarettes and one plate of G.L sheet, but during the course of the enquiry another item had also been included and thereby the scope of the enquiry has been widened. In this connection he has relied upon P.L.D. 1980 S.C. 307 (Islamabad Club vs. Punjab Labour Court No.2) where in a grievance petition the employee was given notice of only one misconduct yet findings of Enquiry Officer covered other matters also. Findings recorded by the Enquiry Officer on the matters not included in the original charges necessarily influenced Administrator's mind in awarding punishment of dismissal. It was therefore held that "the respondent could not have been given reasonable opportunity of defending himself against charges forming basis of disciplinary action against him."
This ruling on the face of it is distinguishable from the facts of the present case, because the respondent in the reported case was charge sheeted for holding meetings, whereas the Enquiry Officer found him guilty of certain more serious acts of misconduct, namely, inciting the workers to take the Management of the Club in their own hands, using obscene language against the Management and raising slogans to burn the car of one of the Members of the Club and to kill him.
In the present case the charge related to the possession of stolen cigarettes and one plate of G.L sheet and so also report of the Enquiry Officer is confined to the nine stolen cigarettes and a plate of O.I sheet. Even the order of the Factory Manager, dismissing the petitioner, contains the allegation of the nine stolen cigarettes of Gold Leaf and a flat round plate of G.L sheet having been recovered from his possession, it is, therefore, clear that the scope of the enquiry has not been widened by the Enquiry Officer. Mr. Mohammad Ashraf Khan, learned counsel for the petitioner, has also placed reliance on P.L.J. 1978 Kar...........452 (Smith Kline & French (Pakistan) Ltd. Vs. A. Rashid P.I & another) which is also an authority on the point that the Enquiry Officer taking evidence regarding allegations not covered in charge sheet and show cause notice caused prejudice to the workman.
Hence this ruling would also not apply to the facts of the present case.
5. The second ground of attack of the petitioner's counsel was that there was an admission which was alleged to have been made by the petitioner after he was found in possession of the cigarettes and G.L sheet plate. He admits that the said admission was in his hand-writing and was signed by him, and he has taken a plea during the~enquiry that the last line in that statement of admission was forged. The last line reads as under:- (( Urdu TAxts Paragraphs))
He, therefore, states that the Enquiry Officer having believed this statement had acted on a piece of evidence which was forged and therefore, he was entitled to the benefit of the same. It may be pointed out that it is a question of fact as to whether that last line was forged or not and the Enquiry Officer, if he has believed the same, has only given the finding of fact, it is not within the sphere of the jurisdiction of this Court to disturb such finding of facts, when the same was consistently up-held by the Labour Court as well as the Labour Appellate Tribunal.
6. Lastly it was contended by the petitioner's counsel that the reply statement filed by the respondent could not be taken into consideration as the author of the same was not examined as a witness by the Labour Court. In this, connection reliance was placed on P.L.D. 1972 S.C. 25 (Mst.
Khair-ul-Nisa and 6 others vs. Malik Muhammad Ishaque and 2 others) where it was held that written- statement cannot be exhibited in a case without the person, who filed the same being examined in the Court. This decision is also distinguishable from the facts of this case, because the written-statement was sought to be exhibited under Sec.-32 of the earst-while Evidence Act, 1872, as the author of the written-statement had died. Since it was not given on oath, the Supreme Court rightly held that such a statement cannot be exhibited in a case, under Section-32 of the Evidence Act, 1872 without the person, who filed the same being examined in the Court. In this case the Enquiry Officer had also himself appeared and given evidence.
We are, therefore, of the clear view that the petitioner was rightly dismissed by the respondent and that his appeals were legally and properly dismissed by the to lower courts. We, therefore, do not find any justification for interfering in the matter. The petition Is, therefore, dismissed.