DECISION Muhammad Shafi was employed as Watchman in the Government Transport Service, Lyallpur. He was dismissed from service on 24-7-1975 on the charge of "dishonesty in connection with employer's property". He has challenged the order of his dismissal in this application which is filed under section 25-A of the Industrial Relations Ordinance, 1969. He prays for re-instatement with back benefits.
2. The facts may be briefly stated here. On 18-5-1975 at 10-20 p. m. Azmat Khan, Assistant Yardmaster while in the company of Abdul Aziz, Foreman and Sardar Muhammad Mechanic found that the petitioner was carrying some wrapping papers with him. Azmat Khan enquired as to what the petitioner was carrying. Sardar Muhammad Mechanic got hold of wrapping papers. Suddenly, the petitioner snatched away the papers and went towards the gate. Azmat Khan and three others followed him. They enquired from Wadi Hussain, the Guard Commander but he showed his ignorance. Again the petitioner was asked about the paper. He answered that he had put wrapping papers back at the place from where he had got them but some of them he had kept at the gate.
He handed over the papers to them. Then all of them went to the Accounts Branch and found that wrapping papers were kept in Almirah. The total number of papers was 33. All of them were taken into possession. Azmat Khan made a report to the District Manager about this occurrence.
3. The District Manager duly considered the report. He suspended the petitioner, charge-sheeted him and ordered to hold an inquiry.
4. The Inquiry Officer, recorded the statements of two witnesses. The first witness was Azmat Khan, Assistant Yardmaster. He said that he saw the petitioner carrying some Khaki papers. He enquired as to what he was carrying. Sardar Mechanic took the papers from the petitioner but the papers were snatched away by the petitioner. He further said that he with three others went towards gate and enquired from Wadi Hussain but he showed ignorance about the petitioner. He further said that they contacted the petitioner again and he showed a few papers and about the remaining papers he said that he had kept them in the Almirah of Accounts Office. They went to the Accounts Office and recovered the papers. The second witness was Abdul Aziz, Foreman. He said that the petitioner was carrying 60 or 70 file covers. Azmat wanted to gee them, the papers were taken by Sardar but the petitioner received them back and went towards the gate. He said that they went towards the gate and found that the papers were kept at the gate and they were recovered. He said that the petitioner told them that the papers were taken by him from the Almirah of the Accounts Office.
5. It was the entire evidence produced before the Enquiry Officer. The petitioner was present when the evidence of these witnesses was recorded but he put no question in the cross-examination to any of these witnesses.
6. The petitioner himself appeared in defence. He said that on 18-5-1975, Wadi Hussain, Head Watchman ordered him to check the locks of the accounts branch, he went to that office and found that six file covers were lying on the dump, he picked them up in order to give them to his children to use them as wrapping paper on their books. He said that he met Azmat Khan and others and on their inquiry he showed them the papers. He returned them, so he brought the papers to the gate and kept them there. He said that they came again to the gate and they examined the accounts office, inspected the Almirah and from there they recovered more papers.
He showed his desire to examine Wadi Hussain in defence. Mr. Wadi Hussain was examined after two days. His statement was recorded in the absence of the petitioner. Wadi admitted that he had asked the petitioner to go and check the office of the accounts branch. He said that after fifteen minutes Azmat Khan and others came and alleged that the wrapping papers had been stolen by the petitioner. He said that on inquiry the petitioner went with them and showed them the papers lying in the Almirah.
7. On the above evidence the Inquiry Officer found that the petitioner was guilty of stealing the wrapping papers. A show-cause notice was served on the petitioner. He denied the charges and finally the District Manager finding him guilty of theft dismissed him from service.
8. The first point raised during the course of arguments was that the finding of the Enquiry Officer was perverse. It was stated that there were numerous discrepencies but the Enquiry Officer paid no heed to them. The report of Mr. Azmat Khan was that actually there were many wrapping papers stolen by the petitioner but when he was caught and they wanted to know about the paper, the petitioner at once took them away. His version is that the petitioner firstly went to the accounts branch and kept the bulk of papers at the same place from where he had stolen and brought only a few papers to the gate. This version appears untrue.
In case the petitioner was caught and had run away with the stolen property then it was not possible that he should keep the bulk of them in the Almirah and still carry a few papers with him and should again produce them before Azmat Khan at the gate. It appears to me that the petitioner picked a few papers and brought them at the gate. He thought that the papers were uselessly lying in the Accounts Branch so that he took them away to be used as wraping paper by his children. At the gate he produced the pipers before Azmat Khan and others but they insisted that he had stolen them and so they went again in the accounts branch where they found some other papers lying in the Almirah. The total number of papers was 33 sheets as mentioned by Azmat Khan in his report. However, the petitioner had with him a few papers, say four or five at the gate and the remaining papers were at the Almirah. The Inquiry Officer had paid no attention to the fact whether the petitioner actually intended to commit any theft or it was his innocent action. In fact, the Inquiry Officer did not actually see the stolen property because it was not produced before him. The papers being carried by the petitioner may be of the value of few annas and it is possible that they might have been thrown in the dump of waste paper by some clerk. His version was that he had picked up those papers from the dump of waste paper. He might be of the view that they were useless and they were thrown out. The Inquiry Officer did not apply his mind to these aspects of the case, his finding is, therefore, perverse.
7. The inquiry is vitiated on another point. The petitioner wanted to examine Wadi Hussain as his defence witness. This witness was examined but it was done in the absence of the petitioner. No proceedings can be taken in such a case in absence of the accused. Wadi Hussain might have a made a favourable statement. His evidence could not be used in this case a favourable statement but the Inquiry Officer has mainly relied on his statement.
8. It was further argued on behalf of the petitioner that neither he was allowed to nominate any representative to assist him in the inquiry nor he was allowed to cross-examine the witnesses. The record shows that he had no person to assist him nor he put any question to any of the witnesses.
Prudence require that the Inquiry Officer must inform the accused that he could nominate any other worker to assist him in the inquiry and in that case proper cross-examination could be done on the witnesses.
9. The defects in the inquiry are that the real points of dispute were ignored by the Inquiry Officer, that no worker to assist the petitioner was provided to him, that it does not appear that proper chance of cross---examination was given to the petitioner and that the petitioner was not allowed to produce any evidence in defence. In view of those defects I hold that the dismissal order is illegal.
10. The result is that the petition is accepted and the respondent is directed to re-instate the petitioner with back benefits.