DECISION This is an appeal against an award of the learned Presiding Officer of Sind Labour Court No. II, Karachi, dated June 18, 1973, whereby the learned Labour Court dismissed the application filed by the appellant under section 25-A of the Industrial Relations Ordinance, 1969 (hereinafter called the Ordinance), for re-instatement and other back benefits. The facts giving rise to the present appeal briefly put are these.
2. The appellant was appointed as a Typist-Clerk in the respondent concern with effect from 6th August 1968. On lst March 1970, he was promoted to the post of Office Assistant. On 18th October 1971, he was charge-sheeted for gross misconduct, inasmuch as, he had misappropriated certain amount of money. It was alleged that the modus operandi of the appellant was to mark the workers, who were on leave, as present and realize their pay himself. He was suspended for 4 days, each time and ultimately after enquiry dismissed on 17th November 1971. Thereafter, because of the directive of the Governor, he was taken back in service. He, however, was again charge-sheeted in respect of the same charge on 14th April 1972.
The appellant gave his explanation on 17th April 1972 and after the enquiry, in which he participated on one day, but refused to participate in the further proceedings, boycotted the same. On completion of the enquiry, he was dismissed from service on 25th April 1972. He filed the present application giving rise to the appeal, on 19th June 1972.
3. The learned Labour Court for good reasons came to the conclusion that the respondent was justified in holding an enquiry against the appellant, as the appellant was re-instated on condition that fresh enquiry will be held against him.
The learned Labour Court also rightly came to the conclusion that the appellant was not entitled to claim any payment and other payments, as it was a belated claim.
4. The only point that requires consideration in this appeal is as to whether there was any evidence to support the conclusion that it was the duty of the appellant in his capacity as Office Assistant to mark presence or absence of the workers. It is stated by the appellant in his application under Paragraph 6, as under :-- "That I furnished a reply dated the 19th October 1971 maintaining that the allegations were foreign to the duties of applicant, he being not concerned with marking presence or absence of the worker/workers present or on leave.''
5. The charge-sheet dated 18th October 1971, reads as under : "While checking the record, certain irregularities and misappropriations have been observed i.e. certain workers who were on long leave are marked present and their wages/salaries are drawn.
You are therefore charged for the gross misconduct of misappropriation "
6. The charge-sheet dated 14th April 1972, giving rise to his dismissal is also in substance as above. In Paragraph 11, of his affidavit, the appellant specifically stated that : "the duty of marking presence or absence was/is of the time clerk and the preparation of salary was done by a separate staff engaged for the purpose.
In my capacity as an Office Assistant, I had no part to play in the marking of attendance or preparation of salaries/wages of workers."
7. It is noteworthy that no question was put in cross- examination of the appellant to suggest that he had any role in the marking of the Attendance Register of the workers or preparation of their Slaray Slips It was easy for the respondent to have produced the registers relating to Attendance of the workers and preparation of their Salary Slips.
The respondent is said to have many hundred of workers in its factory. It is not the case of the respondent that they did not maintain any register for attendance or for payment of wages.
8. On behalf of the respondent, one Mr. Afzal Hussain Rizvi, Personnel Manager, was produced. In his 13 paragraphs affidavit, he has not stated a word about the duties of the appellant as Office Assistant. It was for the respondent, who had all the documentary evidence with them to establish as to whether it was the duty of the appellant to mark Attendance Register of the workers and prepare their Salary Slips. In the absence of any such evidence, I would ho!d that the Domestic Enquiry cannot be accepted. I would order the appellant to be re-instated.
9. The next question is as to whether the appellant is entitled to any back benefits. Under subsection (4) of section 25-A of the Ordinance, as it stood in June 1972, the Labour Court was required to give' its award within 20 days from the date of the matter being brought before it. If the matter kept on lingering before the Labour Court, the respondent should not be penalized for the same. I would, however, award one month's pay to the appellant. The award of the learned Labour Court is set aside. The appellant would be re-instated forthwith and will be paid a month's salary within two weeks.