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Appeal No. LHR‑370 of 1979, decided on 5th June. 1982.

‑‑S. O. 15 (4)‑Dismissal from service ‑Worker charged with mis appropriation by wrongly pre‑auditing accounts---Allegation of ulterior motive and collaboration with cg‑accused‑Also alleged to be on leave during relevant period‑Worker admitted to have done pre‑auditing‑Management's plea that order of leave might have been signed due to rush of work, not accepted‑Charge‑sheet being self contradictory, charges not established‑‑Worker reinstated in service but back benefits denied.

Muhammad Iqbal Khokhar for Appellant.

Muhammad Zaman Qureshi for Respondent.

Date of hearing: 22^nd May, ‑1982.

This appeal arises from the decision, dated 9th May, 1979 passed by the learned Presiding Officer, Punjab Labour Court No. 1, Lahore, whereby the grievance petition of the respondent was accepted and he was directed to be re‑instated in service with back benefits.

2. The respondent was a statement checker and his duty' was to pre-audit the TT‑2 of conductor and to receive daily cash from the con ductors. On 14th January, 1978 record of Khizar Hayat, conductor, was checked by the auditors and it was found that certain irregularities and, misappropriations had been made from 21st November, 1977 to 23rd November, 1977 and from.27th November, 1977 to 29th November, 1977. Since the pre-audit had been made by the respondent, he was also charge- sheeted and on enquiry held against him which culminated in his d1Smi3Sal. One of the charges was that the respondent had remained absent without leave from 7th November. 1977 to 5th December, 1977. The period during which the respondent is alleged to have wrongly pre-audited the accounts of Khizar Hayat, conductor, is covered by his leave period. If he was on leave bow he could check the accounts of Khizar Hayat. No doubt, he admitted the checking but since according to the case of the appellant, he was absent from duty in these days, the admission of the respondent may be erroneous. Learned counsel for the appellant has argued that the dates may have been afterwards tempered with, therefore, the admission made by the respondent about the checking should have been acted upon by the learned lower Court. I do not find any force in this argument when from the stand taken by the appellant it appears that the respondent was on leave and was not functioning during the period Khizar Hayat had deposit ed the income, the plea that the respondent had in collaboration with Khizar Hayat accepted lesser income and thus shared the embezzled amount with him, stands disapproved. It was not proved by evidence that some mistake was committed in giving the days of the period during which the respondent had ‑remained on leave, It was also not proved, nor it was also not proved, nor it was the case of the appellant before the lower court that interpolations bad been made in the days of the leave period of the respondent. On account of the charge‑sheet being self‑contradictory, all the charges flopped up. The District Manager said that the order or leave Exh. P‑1 might have been signed by him due to rush of work. This is not enough. The presumption is that consciously Exh, ‑ P‑1 was signed,) unless the contrary had been proved. Merely saying that Exh. P‑1 might have been signed due to rush of work is not sufficient. About charge -sheet Exh. P. 10 the District Manager did--not say anything. Both the charges could not be correct, but only either of the, two could have been proved.

3. Learned counsel for the respondent has argued that if according to the appellant, the. respondent was not entitled to back benefits, such an objection should have been taken in the written statement as an alternative plea. Back benefits are allowed where the case has not been proved. If there are technical defects, benefit of which has been given to the employee concerned, he is not entitled to back benefits. In the present case since taking of leave during the period from 21st November, 1977 to 29th November, 1977 is admitted and the respondent was held to have remained absent without leave, the learned lower Court when it was of the view that both the charges being contradictory had not been established, should not have granted back benefits to the respondent. If the respondent had come forward with a plea that he had remained absent but not during the period from 21st November, 1977 to 29th November, 1977, the charges about the misconduct on account of receiving less amount from Khizar Hayat. con ductor, may have been proved and the absence also would have been action able. Even if it be said that the act of the respondent in accepting lesser amounts from Khizar Hayat due to mistake and without tallying the TT‑2 with R.P.Ts. he was guilty of not working according to the rules and thus would have been liable to some other punishment short of dismissal. Whatever the case may be, it cannot be said that he committed no mistake. For this reason also, he was not entitled to back benefits. I accordingly, partly accept the appeal and modify the impugned decision of the learned lower Court by disallowing back benefits to the respondent.

M. I.

Appeal partly accepted.

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