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Appeal No. LHR-234 of 1982, decided on 26th September, 1983.

-- Misconduct - Misappropriation - Deposit of amount after ward-A proof of misappropriation-Bus conductor depositing less amount as compared to that entered in way-bill-Subsequent deposit of deficient amount, held, would not absolve him of charge of mis appropriation.

-- S. 25-A-Scope-Labour Court not an appellate authority-Can- not fix quantum of punishment or reduce or convert one kind of punishment into another kind-Grievance petition against dismissal from service on charge of mis-appropriation-Charge established Order of Labour Court substituting punishment of censure, in circumstances, held, without jurisdiction.

Nemo for Appellant.

Asmat Kamal for Respondent.

Date of hearing : 24th September, 1983.

The appeal captioned above is directed against the decision, dated 1st April, 1982 passed by the learned Presiding Officer, Punjab Labour Court No. 7, Gujranwaia, whereby the respondent was directed to be re-instated in service with back benefits converting the punishment of dismissal into censure. The allegation against the respondent was of misappropriation of Rs. 13.25 for the amount of way-bill.

2. The learned lower Court has not said that no misconduct was committed. It says that the punishment is not in consideration with the offence and is excessive. No cross-objections have been filed to the effect that the learned lower Court wrongly found the respondent guilty of misconduct. It has been argued by the respondent that during the pendency of the application for registration of his union, he was dismissed but he has not established this fact. Order of dismissal was passed, on 21st July, 1981 and according to the respondent, application for registra tion of the union was sent to the Registrar, on 20th July, 1981. There is no evidence as to when the application was received by the Registrar and as to when he took cognizance of the matter. So. section 8-A of the Industrial Relations Ordinance. 1969 is not attracted- --

3: It has been argued by the respondent that if some amount from the way-bill is deposited less, notice is issued and on deposit of the deficient amount, the matter ends. May it be so but it does not mean that retention of money does not amount to misappropriation. Deposit, of amount afterwards is in reality the proof of misappropriation. A known amount to deliver to the conductor by the booking clerk to be deposited along with the fare which the conductor charges from the passengers who board the bus after the bus departs from the depot. A way-bill is also delivered in which the amount delivered to the conductor is written. So, the conductor very well knows what amount had been entrusted to him. If he deposits some lesser amount, it is obvious that he knowingly mis appropriated it.

4. It is the function of the employer to fix the quantum of punish ment and the Labour Courts not being appellate authority have no powers to reduce or convert one kind of punishment into another kind. The learned lower Court, therefore, had no jurisdiction to substitute the punishment of censure for dismissal.

5. As a result of what has been said above, I accept the appeal and setting aside the impugned decision of the learned lower Court, restore the dismissal order.

A. E. Appeal accepted.

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