' This is an appeal against the decision dated 25-7.1977 of Punjab Labour Court, No, I, Lahore.
2. Before going into the facts of this case it would be feasible to explain some relevant circumstances.
3 The Establishment of the appellants is manufacturer of vegetable ghee. It requires cotton seeds oil for production of ghee. In order to procure oil its employees are designated as Oil Fetchers, who are sent to different parts of the Province. They collect information from where the oil is available.
The information is sent to the Lahore Office and bank drafts are sent to the staff in the field. On the strength of the Bank drafts they procure oil from different factories and fill the same in oil tankers.
Before leaving the places of their purchase, they fill in form A. R.-3, on which the excise duty is paid.
The form A. R-3 shows the quantity of oil purchased by them and the oil brought at the destination.
It is checked at the destination with the entries in the form A. R.-3 and the shortage or excess is determined.
4. In the instant case the respondent was entrusted with the duty of oil fetching. He got prior permission in the form A. R -3 to fill the oil in three tankers and bring it to the factory of the appellants. In his own view there was a shortage of 6 maunds and 2 seers of oil. He gave this information at the mills gate. This happened in March, 1976. He had brought 255 maunds of oil from Riaz Cotton Company, Shujabad, Multan in three tankers. On 22-3-1976 he was charge-sheeted that the oil brought by him was short by 8 maunds. He explained that he was given in writing by Riaz Cotton Company that the shortage would be made up in the next transaction. Since the appellant company had refused to pay Riaz Cotton Company Rs, 900 as handling charges, they had refused to make up the deficiency in the oil. The respondent also attached a note of the said company to the same effect. His explanation was found unsatisfactory and so an enquiry was instituted. Mr. Ashfaq-ur-Rehman was appointed as Inquiry Officer. He found the respondent guilty and after second show-cause notice the respondent was dismissed from service on 27-8-1976 on the charge of theft, fraud and dishonesty in connection with the employer's property or business.
5. The respondent challenged the order of his dismissal by way of a petition under section 25-A of Industrial Relations Ordinance, 1969 before the Labour Court on 13-11-1976. In view of subsection (6) of section 25-A of Industrial Relations Ordinance, 1969 the petition had to be filed within two months of 27-8-1976 and the last date of filing the petition was 27-10-1976, but the petition was filed on 13-11-1976. There was delay of 17 days. Alongwith the petition the respondent had also filed an application for condonation of delay, alleging that he had remained sick. Iii support of that application he attached a medical certificate to the effect that he was suffering from acute dysentery and that he was advised to take rest from 25-104976 to 13-11-1976.
4. The learned Labour Court, in the above circumstances, condoned the delay and entertained the petition and, vide decision dated 25-7-1977, accepted it and directed the appellants to re-instate the respondent with back benefits.
5. Aggrieved by the above decision, Khyber Vegetable Ghee Mills, appellants, have preferred this appeal.
6. The learned counsel for the appellants contended that the delay in filing the petition under section 25-A should not have been condoned. From the perusal of the record I find that the doctor on 25-10-1976 had certified that the respondent was suffering from abdominal colic and acute 'B' dysentery and, therefore, he advised complete rest from 25-10-1976 to 13-11-1976. There is no evidence in rebuttal that the respondent was not suffering from illness. Under these circumstances, the contention of the learned counsel has no force.
7. The respondent contended that the statements of the witnesses before the Inquiry Officer were not recorded on oath and as such the inquiry was invalid. In this connection he referred to sections 4 and 5 of the Oaths Act, 1873. Section 4 of the said Act reads as under :- "4. Authority to administer oaths and affirmations.-The following Courts and persons are authorized to administer by themselves or by an officer empowered by them in this behalf, oaths and affirmations in discharge of the duties or in exercise of the powers imposed or conferred upon them respectively by law :-
(a) all Courts and persons having by law or consent of parties authority to receive evidence ;
(b) the Commanding Officer of any military, naval or air force Station or ship occupied by troops in the service of Her Majesty : ' Provided-
(1) that the oath or affirmation be administered within limits of the station, and
(2) that the oath or affirmation be such as Justice of the Peace is competent to administer in Pakistan."
' Section 5 of the same Act reads as under : "5. Oath or affirmations to be made by witnesses, Interpreters, Jurors.- Oaths or affirmations shall be made by the following persons-
(a) all witnesses, that is to say, all persona who may lawfully be examined, or give, or be required to give, evidence by or before any Court or person having by law or consent of parties authority to examine such persons or to receive evidence ;
(b) interpreters of questions put to, and evidence given by, witnesses ; and
(c) Jurors."
' According to the respondent, section 5 of the Act would cover the case of the Inquiry Officer regarding evidence in an enquiry, because he is by consent of parties authorised to examine witnesses. The contention, that even in a domestic enquiry the evidence of the witnesses not recorded on oath invalidates the enquiry proceedings, has no force in view of section 13 of the Oaths Act, which reads as under :- "13. Proceedings and evidence not invalidated by omission of oath or irregularity.-No omission to take any oath or make any affirmation, no substitution of any one for any other of them, and no irregularity whatever in the form in which any one of them is administered, shall invalidate any proceeding or render inadmissible any evidence whatever, in or in respect of which such omission, substitution or irregularity took place, or shall affect the obligation of a witness to state the truth."
' In the case, Abdul Lail Niazi v. Government of West Pakistan it was held that evidence not recorded on oath in a departmental enquiry was valid and saved by section 13 of the Oaths Act.
8. Now coming to the merits of the case I find that there was no evidence on the record that the respondent had misappropriated or pilfered the oil, which he had brought. The fact that there was a shortage in the oil, was the fault of Riaz Cotton Company and not of the respondent, who at the first instance, when he had brought the oil, he bad made a report to that effect at the gate of the mills. Further, the respondent had also produced a note of the seller company that there was a shortage. Under these circumstances, no misconduct was established against the respondent.
9. I, accordingly, find no merit in this appeal, which is hereby dismissed. PLD 1967 SC 62