ZAHOOR AHMED Versus TRUSTEES OF THE PORT OF KARACHI, KARACHI PORT TRUST

DECISION

The circumstances in which, this appeal has arisen in brief are as follows:‑ ‑

The appellant was an employee in the Office of the Assistant Traffic Manager (West) of the Karachi Port Trust. On the 22nd of April 1975 at about 4.00 p.m. while leaving for home, he was checked up, which is usual for persons going out of the Port Trust area, four mercury bulbs were recovered from his person. He was taken to some Officer still present within the Office, and was called for his an explanation. Later on there was an order for domestic enquiry.

On receiving the report of the Enquiry Officer that the charge stood substantiated, he was dismissed from service on 27‑4‑1976.

2. An appeal had followed before the Chairman of K.P.T. under section. 26 of the K.P.T. Act which was dismissed on 29‑7‑1977. The appellant thereupon had sent a grievance notice on 1‑11‑1977 and finding no satisfaction filed a grievance petition before the Labour Court.

3. It was alleged therein that the bulbs had been purchased by him on behalf of his uncle and he had the cash memos for the same. These had been shown to a Custom Officer on duty before re‑entering the Port Area. However only 2 bulbs were returned to him and 2 bulbs were stated to have been impounded, on the allegation that the same had been stolen from the Auction Shed of the Trust area. It was further urged that the enquiry had been conducted against all the principles of natural justice.

4. The contentions were denied in the Written Reply. A plea was also taken that the petition did not lie as the Labour Court had no jurisdiction in the matter, as the Port Trust had its own statutory Rules. It was further urged that the Petitioner was not a workman, and that otherwise too the petition stood barred by time.

5. The Labour Court found that the petition was barred by time and the order of dismissal was also not open to any exception. The petition was therefore dismissed.

6. This led to an appeal before the Tribunal which came to be dismissed on the short ground that the petition did not lie, as it was not "in consequence of an Industrial Dispute".

7. These orders were challenged in a Writ Petition before the High Court, wherein it was found that in view of the judgment of the Supreme Court in the case of Trustees of the Port Trust of Karachi v. Abdul Ghani, an employee of the K.P.T. could seek his remedy from the Labour Court. The case was therefore remanded to this Tribunal for decision on merit.

8. Before proceeding any further, it might be mentioned that the entire record of this case remains untraceable, and in spite of the best efforts during the last 2 years or so, only the judgments of the Labour Court, this Tribunal and the High Court in the Writ Petition were made available alongwith the statement of Hafiz Salahuddin, Muhammad Ajaib and Suhail Ahmed, who were the witnesses produced by the petitioner before the Labour Court. His own statement is not there as the statement, or the statements of the witnesses of the respondent. Similarly other documents on the record namely the postal receipt, the vouchers, the statements of the witnesses before the domestic enquiry report are also not there. The respondents rendered no assistance at all in the re‑construction of the record. The matter could not be deferred any longer and so we have to rely on the papers before us.

9. The learned Presiding Officer in coming to the conclusion that there was a delay in the filing of the Petition had presumed that the order of the Chairman of the KPT dated 29‑7‑1976 was despatched to the respondent on the same day and should have been received by him within 5 days of the despatch, that is 2‑8‑1976. Three months were computed from that point. Similarly it had been presumed that the copy of the grievance notice dated 1‑11‑1976 should have been received by the respondent on 4‑11‑1976. I am afraid he failed to consider the vagaries of the postal service. In the absence of a definitive proof of the dates in question I am of the opinion that the bar of limitation does not come in the way of the appellant.

10. As far the merits, the case of the appellant is that one evening, he was sitting with his uncle Haji Shahabuddin when the latter mentioned that he wanted to purchase 4 mercury bulbs. He (the appellant) had undertaken to do same for him. Having received the money, in pursuance of the promise, the day following during the one hour mid‑day break, he had proceeded to the Bunder Road, and purchased 2 bulbs from one shop and from another shop situate opposite the K.M.C. Building and had the requisite Cash Memos. This appears from the evidence of Salahuddin son of Shahabuddin, who appeared as a witness instead of his father, as the latter was ill.

11. There appears to be no apparent reason as to why the appellant offered to do the shopping as against his cousin or uncle and more so why they agreed to the suggestion. It is also strange as to why he did not choose to defer it for the evening or for a holiday when he had all the time at his disposal after all there was some distance involved in between the Port area and the K.M.C. and if all the purchases had to be made within that limited period it would have entailed some travelling expenses also.

12. The record shows that the charge against the appellant was only in regard to the theft of 2 bulbs. Salahuddin does not say, nor it appears to be the case of the appellant that the other 2 bulbs had been passed on to Shahabuddin. Certainly those were not impounded as the remaining two were. Salahuddin does not say that the same were brought to them.

13. On the appellant's own showing the parties are related to each other, and this part of the explanation is far from plausible. What is more, there was a shed inside the Port area, where cartons of bulbs were lying stored in the open. Ajaib Khan states that when the appellant had returned during the break the bulbs were in his hands. The version of Suhail Ahmed who is from the Custom Department that he had allowed the appellant to take the bulbs in the Port as the same need not have been deposited at the entrance, and that too verbally is totally untrustworthy. The story as unfolded seems to be tenuous in the extreme.

14. It is alleged that the Enquiry Officer had not allowed the appellant to cross‑examine the witnesses. That is certainly a blemish, but to my mind no miscarriage of justice is discernible.

15. The Inquiry Officer had also the statements of the persons, who had searched and recovered the bulbs from the appellant. These were also produced before an officer soon thereafter. There would have been the explanation, and later statement of the appellant himself. With all this material before him, it cannot be said, that the conclusion reached by the Inquiry Officer was unjustified. Even the papers, which are before us are unmistakably incriminating.

16. I will therefore uphold the impugned order and dismiss the appeal.

H.B.T./2120/Lb.S Appeal dismissed.