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Appeal No. LHR‑371 of 1979, decided on 22nd May, .1982.

West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)‑---

‑‑ S. O. 15 (1) (ii) (a) & 15 (3) (c)‑Misconduct‑‑Intentional and not negligent acts causing damage or loss to property of employer amounts to misconduct‑Auditor alleged to have connived with conductor in misappropriation of amount‑No direct evidence of connivance‑Failure to conduct audit according to rules, in circum stances, held, did not amount to misconduct and case covered by S. O. 15(1) (ii) (a) with liability of lesser penalty short of dismissal‑Order of Labour Court setting aside penalty of dismissal from service and awarding re‑instatement in circumstances, upheld by Appellate Tribunal‑Claim for back benefits however rejected Industrial Relations Ordinance (XXIII of 1969), Ss. 26‑A & 38 (3).

Muhammad Iqbal Khokhar for Appellant.

Nemo for Respondent.

Date of hearing : 22nd May, 1982.

This appeal arises from the decision, dated 7th 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 allegation against the respondent was that between 16th November, 1977 and 13th January, 1978 the previous record of Khizar Hayat, conductor, was checked and it was found that be had not been preparing TT‑2. properly. The statement TT‑2 when compared with R. P. T. book, it was found that he had deposi ted Rs. 3,475 less than the actual fare recovered by him. Since the respondent had been pre-auditing and receiving the daily income from Khizar Hayat during the above‑mentioned period, he was also charge sheeted and an enquiry was held against him, which had culminated in his dismissal. The case of the prosecution was that the respondent bad in collusion with Khizar Hayat embezzled the amount, but there was pro duced no direct evidence on the point. Since the pre‑audit had been done by the respondent, therefore, it was supposed that he was in league with Khizar Hayat in the misappropriation of money. In the absence of evidence that the respondent was actually in league with Khizer Hayat and had shared the misappropriated money with him, only this much could be said that he did not pre‑audit the accounts of Khizer Hayat according to the rules, which resulted in the loss to the appellant. Needless to say that intentional and not negligent acts causing damage to the property of the employer amounted to misconduct. In the absence of such an evidence only this much could be said that the respondent had not followed the rules and thus his act did not amount to misconduct but was covered by Standing Order 15 (1) (ii) (a) of the Standing Orders Ordinance, 1968 and he was liable to lesser penalty short of dismissal. In these circumstances the learned lower Court was justified in ordering his re‑instatement in service, but since the respondent did not follow the rules, he cannot be said to have committed no offence and thus 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. Y. M.

Appeal partly accepted.

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