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Appeal No. MN‑109 of 1983, decided on 13th August, 1984.

‑‑‑Misconduct‑‑Misappropriation‑‑Delayed deposit of amount‑‑Does not amount to temporary misappropriation if delay explained satisfactorily‑ Bus conductor depositing income of particular day by delay of eight days‑‑Explanation that delay was due to referendum of union of which accused was an office‑bearer‑‑Labour Court, in circumstances, held, justified in accepting explanation‑‑Such explanation not given during domestic enquiry‑‑Accused, in circumstances, held, not entitled to back benefits‑‑Order of Labour Court awarding re‑instatement with back benefits modified by Appellate Tribunal disallowing back benefits‑ Industrial Relations Ordinance (XXIII of 1969), Ss. 25‑A & 38(3).

Ch. Altaf Hussain for Appellant.

Asmat Kamal for Respondent.

Date of hearing: 25th July, 1984.

The decision, dated 30‑6‑1983 recorded by the learned Presiding Officer, Punjab Labour Court No. 9, Multan has been challenged in this appeal, whereby the respondent was directed to be, re‑instated in service with back benefits

2. The allegation against the respondent was that he deposited the income of 13‑11‑1979 amounting to Rs. 2,974.40 by eight days delay on 21‑11‑1979. He was charge‑sheeted on 21‑11‑1979. It has been argued by the learned counsel for the respondent that as stated by the respondent before the learned lower Court, there was great tension between the C.B.A. and the union in the referendum, therefore, the amount was deposited late. But no such plea was taken during the enquiry. A question was put to the prosecution witness that usually break down takes place. This question shows that the plea of late deposit was due to some break down of the bus conducted by him but there is no evidence that actually it had so happened. However, the learned lower Court was justified in accepting the plea that due to referendum the respondent, who was an office‑holder of his union, could not deposit the amount of income of 13‑11‑1979 in time. The statement of the respondent in this respect was not controverted. Even late deposit of money does not amount to temporary misappropriation. If the delay had been satisfactorily explained, the late deposit would not be a misconduct. So, the respondent has been rightly directed to be re‑instated in service. But in the circumstances of the case the respondent is not entitled to back benefits. Since during the enquiry the respondent did not take up the plea that due to referendum, he could not deposit the amount in time, the appellant was justified in its impression that there was no satisfactory explanation of the late deposit of income of 13‑11‑1979. If the respondent had taken up the plea during the enquiry that he took up before the learned lower Court, the appellant may not have dismissed him. So, he is not entitled to back benefits.

3. As a result, the appeal is partly accepted and maintaining the direction of re‑instatement, the direction of payment back benefits is set aside.

A. E.

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