' MAMOON KAZI, J.---This petition calls in question the decision of the learned Sindh Labour Appellate Tribunal, dated 12-8-1986, dismissing the appeal filed by the petitioner against the respondent.
2. The facts of the case are that, respondent No, 3 had been employed by the petitioner as a watchman in Watch & Ward Department. On 4-7-1982 he was charge-sheeted for misconduct on the allegation that he had aecepted Rs,200 as illegal gratifications from the labourers. It may be pointed out that the said respondent had been booked for Special Squad party on 22-11-1981 alongwith two other watchmen. At about 11-30 a.m., 18 labourers were caught in Shed No, 23 without K.P.T. Pass/Token and on an enquiry it was revealed that labour token had not been issued to Jamadar Muhammad Fazil and the said labourer was allowed entry by respondent No, 3 and others after taking illegal gratification of Rs,200 from the labourers. ,
3. The petitioner then held a preliminary enquiry against the said respondent through one Sub- Inspector Shaikh Sardar who found a prima facie case against the said respondent and others and after holding of a departmental enquiry through Mr. A.Q. Khan, an officer respondent was dismissed from service.
4. The respondent filed his grievance petition before the Court which was allowed by an order dated 12-9-1985 and the reinstated in service of K.P.T., the learned Labour respondent was
5. Aggrieved by the said order, the petitioner filed appeal before the learned Labour Appellate Tribunal which was, however, dismissed vide its order dated 12-8-1986 and hence the present petition.
6. The only grievance of Mr. Hamid Hussain, learned counsel for the petitioner is that the learned Appellate Tribunal has based its order on misreading of evidence. It may be pointed out that the learned Tribunal while dismissing the appeal firstly, held that three enquiries had been held against respondent No, 3 when the report given by the Enquiry Officer in respect of the first two enquiries was in favour of the said respondent. Consequently, according to the learned Tribunal, the action taken against the respondent was mala fide. The Tribunal also found that two of the material witnesses namely Jamadar Noor Muhammad and Jamadar Muhammad Fazil had not been examined by the Enquiry Officer at the .Departmental enquiry and their previous statements given by them at the preliminary enquiry were taken into consideration, which was against the principles of natural justiee.
7. As far as the first ground which weighed with the learned Appellate Tribunal is coneerned, Mr. Hamid Hussain has invited our attention to the report of the Enquiry Offieer Mr. A:Q. Khan, a copy whereof has been filed as Annexure B to the petition which shows that there were only two enquiries held by the petitioner against the sajd respondent; first a preliminary enquiry held by Sub-Inspector Shaikh Sardar and second a regular enquiry held by MrA.Q. Khan. No doubt, the report shows that an enquiry was also going, to be held in the matter by Mr. G.H. Rizvi but, as is evident from the report, Mr. G.H. Rizvi did not complete the enquiry as all the aecused involved in the case were not before him and he found that conducting of two separate enquiries in the same case would not be proper. Therefore, Mr. A.Q. Khan was finally asked to conduct an enquiry against all the accused persons in the case. In view of this factual position, we have no hesitation in agreeing with Mr. Hamid Hussain that the findings given by the learned Tribunal are not based on proper appreciation of evidence.
8. However, the matter does not end here, because the second ground, which appears to have weighed with the learned Tribunal is that two of the material witnesses namely Jamadar Noor Muhammad and Jamadar Muhammad Fazil were not examined by the petitioner at the enquiry before Mr. A.Q. Khan. Mr. Hamid Hussain has argued before us that as the said persons were not available at the time when Mr. A.Q. Khan was holding an enquiry their previous statements which had been subjected to cross-examination by the said respondent were relied upon by the Enquiry Officer. In this regard, Mr. Hamid Hussain has relied upon the enquiry report only, which, no doubt, shows that Jamadar Muhammad Fazil was not available at the relevant time and Jamadar Noor Muhammad's whereabouts were not known to the petitioner. It is, however, pertinent to point out that this grievance that two of the material witnesses had not been examined at the enquiry before Mr. A.Q. Khan was throughout taken by respondent No, 3, firstly, in the departmental appeal and thereafter in the proceedings before the learned Tribunals but it cannot be ascertained whether any evidence was produced by the petitioner before the learned Labour Court to the effect that it was not possible for the petitioner to procure the attendance of the said witnesses before the Enquiry Officer. Needless to say that if the said witnesses could attend the proceedings before the Enquiry Officer then their statements should A have been recorded at the enquiry and their previous statements made at the preliminary enquiry should not have been relied upon. Mr. Hamid Hussain was unable to answer our query in this regard. The copies of the evidence produced by the petitioner before the learned Labour Court have not been filed alongwith the present petition and therefore, Mr. Hamid Hussain was unable to refer to any material in this regard in answer to our query. In absence of such evidence, it is difficult for us to go into the findings of fact arrived at by the learned Tribunal. The learned Tribunal in the order has clearly observed that nothing had been produced by the petitioner to show that the said witnesses were dead or their whereabouts were not known to the petitioner.
9. In the result, we find no force in this petition and the same is dismissed. The parties are, however, left to bear their own costs.