DECISION ' These two appeals call in question the order of the Labour Court No,III, Karachi, whereby the petition filed under section 25-A, I.R.O., 1969, was allowed and the petitioner was ordered to be reinstated but without back benefits. Appeal No, KAR-506 of 1993 has been filed by the petitioner for the refusal of back benefits and Appeal No, KAR-511 of 1993 is on behalf of the respondent namely M/s. Berger Paints (Pakistan) Limited (hereinafter called the 'respondents') against the order of reinstatement. These arose in the following circumstances: ' The petitioner was working as a fitter with the respondent since 1987. On 30-6-1991 he was served with a show-cause notice which reads as under: "It has been reported that on 25th June, 1991, at 19-00 hours you, alongwith some outsiders, approached the Factory's gate at 19-00 hours, in a Pick-up Registration No, KAB-6623, and indicated to Mr. Rashid Ahmed, who was Security Officer on duty, to load the vehicle with costly items, consisting of some bags of pigments and containers of premium paints. You also directed Mr. Rashid Ahmed, Security Officer, to allow the pick-up to leave the Factory gate after having been loaded.
' On enquiry, it has come to the knowledge of the Management that your above act, was without any permission or authority of the Management and you had planned to steal the abovesaid items from the Factory.
' Your abovesaid act is an act of serious misconduct under the provisions of law. You are hereby charged for stealing the Company's items.
' Since the above act is of serious nature, you are hereby required to show cause as to why appropriate action should not be taken against you according to law.
' Your reply to the above should be submitted to the undersigned within 24 hours of receipt of this letter, failing which it will be presumed that you have nothing to say in your defence and the company shall proceed according to law. Yours faithfully, for BERGER PAINTS PAKISTAN LIMITED.
(SD.)
M.S. IQBAL SECRETARY."
2. The petitioner had replied to the same but that did not satisfy the respondent and he was informed that enquiry had been ordered to be held against him on the 2nd of July. Tariq Ahmed was appointed as the Enquiry Officer.
3. On the said date the Enquiry Officer had examined Muhammad Ghufran, Muhammad Saeed, Muhammad Saleem, Shah Salam Khan, Rashid, Siddique and one Casteline. The matter was adjourned to the 7th of July for the recording of the statement of the petitioner. The petitioner did not turn up on that date, as he alleges to have been arrested by the police the same day in the respondent's office. The matter was however adjourned for the 14th, but there being no trace of the petitioner the proceedings were ordered to be concluded. The Enquiry Officer found that misconduct had been made out against him and he came to be dismissed by an order dated the 4th of August, 1991.
4. Once the preliminaries had been settled, the petitioner filed the petition before the Labour Court.
The allegations contained therein came to be denied by the respondents.
5. The petitioner was his own witness and Tariq Ahmed Khan the Enquiry Officer and Laiq A. Khan appeared on behalf of the respondents.
6. The Labour Court found that there was no opportunity given to the petitioner for entering his defence and prejudice was manifest. Otherwise too, the only evidence against him was from a self-condemned man namely Rashid Ahmad the outgoing Security Officer and therefore it could not be said that misconduct had been affirmatively established.
7. I agree with the contention of Ch. Ashraf Khan, learned counsel for the respondent that the record does not establish that the opportunity was consciously and knowingly denied to the petitioner for proper defence. We have only his word that he was nabbed by the police on the 2nd of July. There is also nothing to show as to when he was released on bail after the alleged arrest. At any rate on his own showing he had been released from custody on the 7th of July, the date fixed for the recording of his statement and defence evidence if any. Admittedly no other witness was examined on behalf of the prosecution on that date or thereafter and the matter was adjourned to the 14th of July. There is evidence on record that due notice Acknowledgment Due through Courrier Service was sent and that the endorsement thereon is that the same was refused. That is what has been deposed to by Laiq Ahmed and the postal receipt and the envelop are there. Otherwise the petitioner knew well that enquiry was on, and he had to face the same. Since he was no more in custody and was released on the 7th, it was his bounden duty to find out as to what was happening in his affair. Looking to the circumstances no element of prejudice can otherwise be said to be involved.
8. So nothing will turn on that, and that takes me to the merits of the case, that is what the witnesses namely Muhammad Ghufran and others had to say during the enquiry proceeding itself.
There is not a word against the petitioner from any of the witnesses in the case except from Rashid Ahmed the Security Officer who was on duty up to 9-00 p.m. On his own showing the goods were being removed from the factory with his active collusion. It was he, who had allowed the truck to come in and the goods detailed in the show-cause notice came to be loaded. According to him he had fallen out with the petitioner because the goods actually being removed were in excess of what he had agreed about. What is more, he had done his best to coax Siddiq the incoming Security Officer to allow the goods to be removed for which he had offered bribe also. It is something different that the said Security Officer did not agree to this foul deed and alarm was raised. The petitioner was nowhere at the site, or seen by the other person. So we are left only with the solitary word as furnished by Rashid Ahmed who was the Security Officer on duty when the truck was loaded. There is not an iota of any other evidence in support of the words let fall by him and it cannot therefore be said with certitude, moral or judicial that the petitioner had played any role in this sordid misadventure. At the most there is some suspicion against him, but suspicion cannot be a substitute for proof. Under the circumstances the conclusion reached by the learned Presiding Officer in regard to the guilt of the petitioner is not open to any exception.
9. Admittedly the petitioner had nowhere stated during the proceedings, verbally or in writing that he was jobless after he had been dismissed from service. Looking to the judgment of Muhammad Bashir and others v. Chairman, Punjab Labour Appellate Tribunal and others 1991 SCM R 2087, back benefit was properly disallowed.
10. Mr. Riaz Hussain Baloch learned counsel for the petitioner referred me to certain observations as to be found in the said judgment in Civil Appeal No,566 of 1989 (Syed Arif Hussain Naqvi v. The Personnel and Administrative Manager etc.) but the observations in Civil Appeal No, 498 of 1989 make it very clear that in a case of this nature the petitioner would not be entitled to any back benefits.
' In view of aforesaid observations both the appeals filed by the petitioner and the respondents are dismissed.
' Orders accordingly.