' This is an appeal from the decision of the Punjab Labour Court No, 6, Rawalpindi dated 23rd of June, 1992, whereby the grievance petition filed by the appellant was dismissed.
2. The appellant was employed by the respondent as a Supervisor on 4th of December, 1977.
Subsequently, he was promoted as Assistant Foreman and then as Deputy Foreman. On 20th of August, 1989 the respondent served him with a show-cause notice (Exh. P-2) containing the following allegations:-- "It has been detected that double payments have been received by M/s. Khyber Shippers Custom Clearing and Forwarding Agents, Islamabad on the basis of cash payment made by you in connection with clearance of certain consignments from the Islamabad Airport on different occasions. A few such instances which have come to light by now are as under:--
(i) A sum of Rs,26 deposited with NBP on 2nd June, 1989 vide Cash Receipt No, 55998 dated 11-6- 1989 was paid to M/s. Khyber Shippers through their Bill No, 152 dated 13-6-1989, on the basis of Customers copy of CAA Cargo Throughout Charge receipt verified for adjustment against advance by you on 15-6-1989.
' Another sum of Rs,6,026 has been paid to this agent vide their Bill No,262 dated 18-6-1989 vide (CAA Airport copy) of Cargo Throughout Charge Receipt No, 55998 (date illegible) verified for adjustment against advance by you on 19-6-1989.
' It is therefore apparent that the amount of Rs,26 in the Customers copy of Receipt No, 55998 has been changed to read as for Rs,6,026 in the CAA Airport copy, thereby overcharging and defrauding the company of Rs,6,026.
(ii) Again a sum of Rs,159 deposited with NBP vide Cargo Throughout Charge Receipt No, 43696 dated 11-10-1988 CAA Airport copy was paid by you to M/s. Khyber Shippers on 13-10-1988 vide their Bill No,1939 dated 11-10-1988 duly verified for adjustment against advance.
' Another sum of Rs, 159 was seen to have been paid to M/s. Rizvi Agencies (Regd.) 542-B, Martin Road, Westridge No, 1, Rawalpindi Cantt. Vide their Bill No, 249 dated 27-10-198 vide Cargo Throughout Charge Receipt (Customers copy) No, 43696, dated 11-10-1988 verified for adjustment against advance by you on 30-10-1988.
' It is, therefore, apparent that the amount of Rs,159 has been overcharged from the Company on your verification.
(iii) A sum of Rs,29 deposited with NBP vide Receipt No, 45286 dated 24-4-1988 was paid to M/s. Khyber Shippers vide their Bill No, 1861 dated 24-4-1988 verified for adjustment against advance by you on 25-4-1988.
' Rs,1,290 as observed have been paid to M/s. Khyber Shippers vide their Bill No, 1928 dated 15-8- 1988 verified by you on 25-8-1988 on the basis of Cargo Throughout Charge Receipt No, 45286 with tampered figure of Rs,29 to read Rs,1,290 and date of 24-4-1988 to be read as 14-8-1988.
(iv) Similarly an amount of Rs,68 has been verified by you twice as payment to M/s. Khyber Shippers. Once against Customers copy of Receipt No, 50669 and a second time against CAA Airport copy of the same receipt dated 16-1-1989 vide two Bills No, 105 dated 16-1-1989 and No, 109 dated 1-2-1989.
(2) The abovementioned acts on your part constitute fraud and dishonesty with the Company's Finances."
3. The appellant, in his reply (Exh. P-3), controverted the allegations. His plea was that he was innocent as the bills/receipts were so tactfully tampered with by the clearing agents that neither he nor the Finance Division could detect the same. A Board of Inquiry comprising General Manager (QA&P) and Manager (Admn.) was constituted to hold an inquiry against him and one M.A. Hafeez, Manager (Stores) under whom he was performing his duties at the relevant time. The inquiry proceedings are Exh.P-10. In the inquiry, the management examined only one witness namely, Mr. Saeed Ahmad, Manager (Finance). The Board also recorded the statements of the appellant and MA. Hafeez. Both these persons cross-examined Mr. Saeed Ahmad. However, the statement of M.A.
Hafeez was recorded in the absence of the appellant who was allowed no opportunity to cross- examine him. On the conclusion of the inquiry, the Board of Inquiry submitted its report (Exh.P-4) with the following findings:- "(vi) In the opinion of the Board the charges levelled against both the accused have been established.
(vii) ----------------------------------
(viii) The bill section failed to exercise due care while passing bills. Necessary action be take against them.
' Mr. Saeed Ahmad, Manager (Finance) avoided to bring the factual position by hiding the facts before the management and the Inquiry, Board. He may be advised to exercise due care in future."
4. On the basis of this report, a second show-cause notice (Exh.P-5) was served on the appellant on 17th of April, 1990. The appellant submitted his reply (Exh. P.6) to the second show-cause notice reiterating his denial. On 14th of July, 1990 the respondent, vide order (Exh.R-20), dismissed the appellant from service with immediate effect. On 20th of September, 1990 the appellant served the respondent with a grievance notice (Exh.P-7) and on 24th of September, 1990 he filed a grievance petition assailing the validity of the dismissal order and praying for his reinstatement in service with back benefits. He alleged that the inquiry proceedings and the order of dismissal offended against the principles of natural justice and law.
5. The respondent, in his reply, contended that the inquiry proceedings and the dismissal order did not suffer from any illegality as the appellant was found guilty of forgery and embezzlement. An objection was also raised that the appellant was not a workman.
6. The appellant, in support of his grievance petition, examined himself as P.W. 1 and Sarfraz Ahmad Khan, another employee of the respondent, as P.W.
2. The respondent, in rebuttal, also produced two witnesses; one Mr. Imtiaz Saeed (R.W. 1) who was Chairman of the Board of Inquiry and the other Mr. Babu Khan (R.W. 2) who was Assistant Manager Labour. After appraising this evidence, the learned Labour Court held that the appellant was a workman. On merits, it was held that the appellant was responsible for making the payments in dispute, although whether he acted out of negligence or with criminal intent could not be determined with any degree of accuracy. It was also observed that the inquiry had been held properly. In view of these findings, the grievance petition of the appellant was dismissed. Hence this appeal.
7. I have heard learned counsel for the parties and perused the record. The respondent has filed cross-objections impugning the finding of the learned Labour Court that the appellant was a workman. Learned counsel for the respondent has pressed into service this contention arguing that in view of the post held by the appellant, he was not a workman. The appellant, in his cross- examination while giving job description of a Deputy Foreman, admitted that he was of supervisor grade, some workers performed their duties under his subordination and he was not a member of any workers' union. He also admitted that his monthly pay was Rs,2,400. These facts apparently excluded the appellant from the category of a workman. However, he explained in his examination- in-chief , that although he was holding the post of Deputy Foreman, yet he was not performing duties as such and the duties assigned to him were of clerical nature. According to him, his duties were as under:- {{URDU TEXT}}
8. Sarfraz Ahmad Khan (P.W.2) corroborated him. Mr. Babu Khan (R.W. 2) deposed that the appellant was performing duties of supervisory nature also but he could not produce any document in his support.
9. It is an established principle of law that mere nomenclature of a post held by an employee does not furnish sole criterion for the determination of his status; it is rather the actual duties performed by him which count. It is evident from the statement of the appellant that he was not performing the duties of his post but was doing the clerical work assigned to him by the management. This statement is inspiring and I do not find any valid reason to disbelieve him. I, therefore, affirm the finding of the learned Labour Court that the appellant was a workman.
10. Learned counsel for the appellant, in his arguments, has raised two objections to the show- cause notice (Exh. P.2) served on the appellant; firstly, that it was barred by time as it related to transactions which had taken place more than thirty days back and secondly, that it was not signed by the authority, competent to impose penalty on the appellant. These two objections were not raised before the Labour Court and cannot be allowed to be agitated for the first time in appeal. Otherwise also, these objections do not carry any force. There is no evidence on record that the payments in dispute came to the notice of the respondent more than one month prior to the issuance of the show-cause notice. A show-cause notice can, under Standing Order 15(4) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, be served on a workman within one month of the date of misconduct or of the date on which the misconduct comes to the notice of the employer. As regards the other objection, the provisions of Standing Order 15(4), referred to above, do not contemplate that a charge-sheet must be signed by the employer himself. In this connection, I may refer to Messrs Karachi Pipe Mills Limited, Karachi v. Mirza Jan Beg (1981 PLC 849) decided by the Sindh Labour Appellate Tribunal which supports my view.
11. As regards merits, I am afraid, I do not subscribe to the finding recorded by the learned Labour Court. I have gone through the inquiry proceedings (Exh. P. 10) carefully. As mentioned above, the sole witness examined by the management was Mr. Saeed Ahmad, Manager (Finance). On a perusal of his statement, it transpires that he did not blame the appellant for any forgery in the bills. He rather exculpated the appellant from the charge of making double or excess payments to the clearing agents. In this connection, I may refer to the following question to and answer by Mr. Saeed Ahmad appearing at page 10 of the inquiry proceedings:- {{URDU TEXT}}
12. It may be true that double or excess payments were made to the clearing agents but there is no evidence on record to prove any collaboration or connivance on the part of the appellant or even his negligence in this behalf. His negligence could have been substantiated by adducing evidence to the effect that he failed to perform any duty or part thereof as a result of which the payments in dispute were made. No such evidence was produced. There were other officials also who dealt with payments to the clearing agents. The appellant was not doing this job solely and exclusively. The Board of Inquiry appears to have proceeded to record finding against the appellant on the assumption that he was guilty. This approach violated the fundamental principle that everyone is to be presumed as innocent unless and until his guilt is proved. In these circumstances, I hold that the evidence produced before the Board of Inquiry was inadequate to establish that the appellant was guilty of any misconduct in making the payments in dispute to the clearing agents.
13. For the foregoing reasons, I accept this appeal, set aside the impugned decision and accepting the grievance petition of the appellant, direct the respondent to reinstate him in service within a fortnight.
14. So far as back benefits are concerned, the appellant did not allege in his grievance notice (Exh.
P. 7) or in his grievance petition that he was jobless since his dismissal from service. He said so in his statement but since this testimony was beyond the averments made in the grievance notice and the grievance petition, it is liable to be discarded as an afterthought. Therefore, the back benefits are declined to the appellant.