' This is an appeal under section 37(3), of the Industrial Relations Ordinance, 1969, against the order, dated 14-11-1997, in Application No,6 of 1995, under section 25-A, of the I.R.O., 1969, passed by the Sindh Labour Court No,III, at Karachi, dismissing the grievance application.
2. The facts, giving rise to the above appeal, briefly stated; are that the appellant was a permanent workman in the respondent Company, as Mailing Assistant/Store Keeper in the Marketing and Sales Division. On 3-10-1994, a report, further to his verbal report of 2nd October, 1994, was made by one Syed Hamid to Amer Morshed and three others, Officers of the respondent-Company, stating, inter alia, that on Sunday, 2nd October, 1994, he was informed by Security Supervisor, Muhammad Iqbal, of SGS at KCR Gate that an attempt to take out an extra carton by Rasheed of Marketing Stores on Saturday, 1st October, 1994, had been failed. Thereupon a show-cause notice, dated 5- 10-1994 was issued, by S. Aamir Ali, Plant/Factory Manager. To the appellant, wherein, inter alia it was stated that on Saturday, October, 1st of 1994, the appellant, with the help and support of Muhammad Rasheed of Rasheed Traders (Contractor for Loading, Unloading and Despatches of Goods), attempted to take out 29 cartons of field force sample material from the factory premises against the gate pass of 28 cartons. The above attempt of taking out one extra carton was averted by the Security Staff on duty at the KCR gate. The extra carton contained material in the form of physicians' samples, approximately valued at about Rs,4,000 (Rupees four thousand only). The appellant was, then, called upon to explain in writing within three days of the receipt of the said show-cause as to why disciplinary action should not be taken against him for committing misconduct as defined under Standing Order 15(3)(b), i,e, theft, fraud, or dishonesty with the employer's property and/or wilful loss of the Company's property. Pending enquiry in the matter, he was ordered to work in the Sales Office Area instead of the Marketing/Mailing Store. The appellant submitted his explanation on 10-10-1994 to the respondent-Company. The said explanation, having been found unsatisfactory, the company appointed Mr. A.W. Pirwani, Employee Relations Manager, as Enquiry Officer in the matter, by letter, dated October 13 of 1994 informing the appellant that the enquiry will be held on October 17 of 1994 at 10-00 a.Rn. In KCR Building, in which, he will be provided with full opportunity to defend himself. He was also permitted to bring one of his co-worker for his assistance in the enquiry.
3. The statements of witnesses, produced by both the parties were recorded by the Enquiry Officer and full opportunity was given to both parties for cross-examining the witnesses. The proceedings of enquiry appear at pages 65 to 287 of the R&P. The Enquiry Officer submitted his report, the enquiry proceedings and complete report of enquiry officer, his findings with conclusion to the management in or about November, 1994, wherein it was finally observed that: "In view of the above I hold that the charge of misconduct of theft, fraud or dishonesty, as alleged in the show-sause notice, dated October, 5, 1994 has been sufficiently proved against Rehamtullah Khan."
4. Thereupon, the respondent-Company served a dismissal order, dated November 29 of 1994, on the appellant wherein it was observed that: "Mr. A.W. Pirwani, the Enquiry Officer in the matter has submitted his report in which he has been found guilty of the misconduct as alleged in the show-cause notice referred above. We examined the findings of the Enquiry Officer and are in full agreement with it."
5. Being aggrieved with the order of dismissal, conveyed to him under letter, dated November 29 of 1994, the appellant served a grievance notice, dated 12-12-1994 under section 25-A, of the I.R.O., 1969 on the Company and, thereafter, filed an application under section 25-A, I.R.O., 1969 in the Sindh Labour Court No,3 at Karachi, wherein the appellant got examined himself/cross-examined.
Whereas the respondent examined the Enquiry Officer and the Factory Manager, as their witnesses, who were cross-examined by the appellant.
6. It is pertinent to note that the appellant filed affidavits-in-evidence of his two witnesses, namely, Muhammad Rashid and Ghulam Nabi, but both of them, having failed to appear for cross- examination and thus the appellant withdrew their affidavits-in-evidence. So there remained solitary word of the appellant himself. The learned Presiding Officer of Sindh Labour Court No,3 was, however, pleased to dismiss the said application, against which, the above appeal has been filed.
7. I have heard the learned counsel for the parties and perused the record and proceedings before the Enquiry Officer as well as evidence, recorded by the learned Presiding Officer.
8. It seems that in the morning of 1st October, 1994, the appellant was specifically asked by the Stores Incharge, Syed Javed, whose evidence was recorded by the Enquiry Officer (at pages 89- -91), to prepare 28 cartons to be supplied to fourteen Field Officers. Contrary to the specific direction, the appellant prepared 29 cartons. There is no explanation whatsoever, from the side of the appellant as to how he got prepared 29 cartons when there was specific direction to prepare only 28 cartons. It seems further that he took out, with the help of his two assistants all the 29 cartons outside the Store and then the Store was locked by him. At first, he took with him eight cartons under a gate pass in a rickshaw and directed his assistant Rasheed to take those cartons outside the factory premises under a gate pass of 20 cartons as he had already informed the officer concerned to issue gate pass for twenty cartons to be taken out by his assistant. When at a later point of time, at about 1-30 the remaining cartons were loaded in a Taxi by his assistant Rasheed, as the appellant had already left, it came out to be 21 instead of 20 while checked by the Security Guard, Abdul Lateef, when the Taxi had already come out of the factory. The relevant statement of Latif shows that:{{URDU TEXT}} ' It has also come in the evidence that: {{URDU TEXT}}
9. The statement of the appellant (page 171 of R&P, who, taking a plea of mistake stated that: {{URDU TEXT}} ' appears to be misleading inasmuch as the said extra carton was taken out from inside the Store and the Store was locked, as the appellant was about to leave the factory.
10. I am, therefore, clear in my mind that there was a dishonest attempt on the part of the appellant, perhaps in collaboration with Rasheed, to take out 21 cartons instead of 20.
11. Reading the evidence, recorded in the domestic enquiry and the evidence, recorded by the learned Presiding Officer of Sindh Labour Court No,3, leaves no room for any doubt that it was a case of misconduct, not of carelessness, as submitted by Mr. Jeelani before me. It is a case of misconduct, as provided under Standing Order 15(3)(b) of the Standing Orders Ordinance, 1968 and no exception can be taken as to the findings of the Enquiry Officer and the Presiding Officer of the Labour Court,
12. In result, the appeal has no substance and is dismissed accordingly.
' Announced in open Court, this the 3rd day of May, 1999.