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Appeal No. LHR‑634 of 1978, decided on 24th March, 1982.

‑‑-S. O. 15‑Dismissal from service on charge of shortage in store Charge not established beyond doubt Reinstated in service but arrears of, salary disallowed.

Syed Noor Ahmad for Appellant.

Nemo for Respondent.

Date of hearing : 7th March, 1982.

This appeal arises from the decision dated 20th May, 1978 passed by the learned Presiding Officer, Punjab Labour Court No.1, Lahore, where by he accepted the grievance petition of the respondent and directed his reinstatement in service with back benefits.

2. The charge against the respondent was that on 20th August, 1977 while he was petrol pump attendant a shortage of 25 litres of brake oil was detected. The shortage was confirmed by the Assistant Traffic Manager and the Depot Superintendent after checking. The cost of the brake oil found short was assessed at Rs. 495. The respondent, thereupon, was charge‑sheeted. Finding his reply to the charge‑sheet as unsatisfactory, an enquiry was held against the respondent which culminated in his dismissal.

3. The learned lower Court has reinstated the respondent for the reason that the allegation being of only a shortage and not of misappro priation did not amount to misconduct. The plea taken by the respondent was that he had sold fifteen litres of brake oil without getting chits which were to be taken afterwards and further that the measurement was not taken properly. 1 cannot subscribe to the opinion of the learned Presiding Officer of the lower Court that shortage does not amount to misconduct, if it is amply proved but, however, the plea of the respondent is convinc ing that the measurement was not taken properly. No meter was used, nor there was any regular numbered and marked dip. A piece of wood was taken and it was immured in the container and from thereby it was observed that 25 litres were less. Moreover, no evidence was produced to the effect that when the respondent had taken charge of the petrol pump the quantity of brake oil was in reality 83 litres. Unless proper measurement had been taken, at the time the respondent had taken charge, the measurement taken at the time he had delivered the charge could not show definitely that the respondent was responsible for the shortage, if at all there was any shortage. The possibility cannot be excluded that the person from whom the respondent took charge or even prior to that the brake oil may have been removed from the container. The respon dent, therefore, was rightly reinstated. But since at the time the respon dent took charge, the quantity was entered as 83 litres and he did not insist on proper measurement, and did not object to the measurement being taken with a piece of wood, in these circumstances, he was not entitled to back benefits.

4. I, accordingly, partly accept the appeal and modify the impugned decision of the learned lower Court disallowing back benefits to the respon dent. However, the increment falling due to him during the period he remained out of duty would be added to his pay fixed on his reinstate ment, but he will not be entitled to arrears.

M. I.

Appeal partly accepted.

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