1. This petition has been lodged by the petitioner for his re-instatement in service as Assistant Storekeeper with full back benefits on the grounds: -
(1) that the petitioner was employed by the respondent as Assistant Storekeeper on 12-10-70 in Stores alongwith other Storekeepers.
(2) the petitioner was transferred to another project of the then W. P. I. D. C., namely H. F. F. Project, Taxila, and the petitioner handed over charge of his stores in fully satisfaction;
(3) at the the of transfer and handing over charge no charge-sheet or show-cause notice was given to the petitioner regarding the alleged shortage in the stores;
(4) the petitioner moved the Punjab Labour Court for fixation of his pay, the matter was decided in his favour, and the petitioner was again transferred back to the respondent project;
(5) the petitioner when joined the respondent's project became an active member of a Trade Union and was a candidate for Vice-President ship, The respondent took it ill and issued charge- sheet based on false allegations after lapse of about one year. Certain other members of the Union were also served with charge-sheets. This action of the respondent was mala fide;
(6) the alleged shortage in stores did not constitute misconduct on the part of the petitioner because the petitioner was not Incharge of the store and was in fact sharing the collective responsibilities with so many other persons dealing with the stores.
2. The respondent was directed by me to file written reply to the petition which was filed on 8-1L- 1974. In view of the preliminary objections raised by the respondent, the petitioner wag ordered to submit his replication. He complied with the order on 24-10-1974, as the respondent had raised a preliminary objection as to the jurisdiction of NIRC to entertain such like petitions, which objection had been raised in many other cases under Essential Services Act, 1952, pending before me, hence all the cases were fixed for arguments and vide my detailed order dated 30-12-1974, the preliminary objection was disposed of and it was held by me that the matter was well within the fiction of the learned Chairman, NIRC and the Member of NIRC duly authorised by the learned Chairman in this behalf. The case as thereafter fixed for consideration regarding its merits. On 8-1- 1975 the parties and their learned counsel were heard at length regarding the merits the case. The file of the case was also gone through by me carefully. The perusal of the file shows that the contention of the respondent as against the contention of the petitioner is that certain shortages were discovered in stores at the the of the handing over charge when the petitioner was conferred, but no charge-sheet or show-cause notice was served on him at the the of transfer as he was not legally under the administrative control of the respondent. The respondent has however, contended that the enquiry into shortages was instituted prior to the petitioner---s transfer, but was held abeyance until he was transferred back to respondent's project. The respondent has contended that petitioner was in sole charge of the stores and the shortage in stores constituted serious misconduct about which due enquiry was conducted in which the petitioner fully participated. That the petitioner as given second show-cause notice alongwith a copy of the enquiry report to why he should not be dismissed. The petitioner's reply being not satisfactory, he was dismissed from service on 29-8-1973. The perusal of the file shows that a Board of Enquiry was duly constituted and re-const toted. Second show-cause notice dated 25-8-1973 shows that shortages found at the the of banding over charge were entered in the handing over charge which was duly signed by the petitioner. I have carefully gone through the enquiry proceedings conducted after the first show-cause notice in order to arrive at a correct conclusion as to whether the dismissal of the petitioner was due to a just cause or not, and find that from the very start the contention of the petitioner has been that he was not the sole Incharge of the Stores. In Ibis connection the statement of the petitioner recorded by the Board of Enquiry (rage I of the copy of the proceedings of the Board of Enquiry on the file) is worth perusal. In this statement, the petitioner clearly stated that he was employed on 12-10-1970 and was assigned duty in the stores of Aux.
2. Shop and that when he went there he found one Hashim Ali Senior Clerk already working there in the stores of Aux. Shop. He found about 40/50 items lying on the floor and that no stock ledger bad been maintained till then. That during his tenure of office there four other persons as storemen were sent to work as such, who were quite ignorant of the work of stores. The petitioner has further contended in the said statement that there used to be much rush in the morning when tools were issued to the persons concerned and in the evening when the tools were returned by them and that as the other persons working with him as storemen were not well conversant with the work, many a the it happened that tools were not entered at the the of issue nor any entry was made at the the of return of tools. Sometimes it also happened that while the tools were with the Craftsman, but the Register showed that this had been returned. That the petitioner caught so many such incidents and brought this to the notice of the Incharge Shops. That due to inefficiency of the other persons working in the stores, the petitioner had to work overtime, but subsequently Mr. Amanullah Khan debarred the petitioner from working overtime by a written order after which other irresponsible storeman, Senior Clerk worked in the stores, hence the alleged surpluses and shortages in the stores occurred due their inefficiency. The petitioner further contended in the said statement the Register at the main gate maintained for issue of keys bore him out it in spite of his written application to the authorities, the keys were issued to others. The petitioner has however stated before the Board of Enquiry that when he forbade the security staff from giving keys of the stores to anyone else except Himself, the matter was reported by the Incharge Aux. Shop to the General Manager in writing who summoned him and ordered that the other persons working in the stores be allowed by him to get the keys as well. The statement of Amanullah Khan, Officer Incharge, Aux. Shop recorded by the Board of Enquiry on 23-8-1973 corroborates the contention of the petitioner, the following portion of his statement is worth notice: The documents marked CI, DI and El by me also corroborate the contention of the petitioner. Vide document marled as CI the petitioner was forbidden from overtime vide document marked DI, the petitioner wrote that no one should be given the keys of the stores, vide document marked El dated 23-8-1974, the petitioner complained about one Shehzada Khan working in the Stores on the ground that he was issuing articles, which was objectionable and that Shehzada Khan had very close connections with some workers of tux. Shop and that such a man could not be trusted in store dealing and that in future he could not be allowed to work in the Aux. Shops stores. I have gone through the report of the Enquiry Board dated 25-8-73 and find that the Enquiry Board has not even touched upon the contentions of the petitioner made before it and duly recorded by it, not to speak of giving any finding about it. In view of the above discussion, I have come to the irresistible conclusion that the dismissal of the petitioner is not at all justified in the circumstances of the case and the finding of the Enquiry Board to the effect that the petitioner was the sole Incharge of the Aux. Shop stores and was responsible for deficiency of 96 items mentioned in the handing over report is incorrect and not warranted by facts. The learned counsel for the petitioner has drawn my attention to an authority reported in 1969 PLC 645, wherein their Lordships Mr. Justice A. S. Chaudhary and Mr. Justice Habibur Rehman, Judges of the Dacca High Court, have laid down a principle under section 106 of the Evidence Act (Act No. I of 1872) to the effect that "Section 106-Rule embodied in section 1C6 applicable to fact known to a person to exclusions of others Stores allegedly being handled by number of persons, person working in stores, accused of dishonesty or negligence in circumstance, held, cannot be said to have exclusive possession of stores unless proved by party asserting allegations."
3. In view of this authority in this case, I do not find sufficient facts to warrant the conclusion that the petitioner was positively, categorically, and A definitely in exclusive possession of the stores, and hence his dismissal cannot be said to be due to just cause.
4. In view of the above discussion. I direct that Fazal Ahmed Ex-Assistant Storekeeper, Badge No. 2037 of H. M. C., Taxila be re-instated as such. He should be paid all his back benefits due till the date of his re-instatement, his dismissal being not due to just cause.