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Appeal No.LHR-215 of 1985, decided on 23rd December, 1985

(a) Industrial dispute--

---Misconduct--Misappropriation--Mere shortage in stock would not amount to misappropriation--Possibility cannot be excluded that shortage may be due to mistake committed at time of receipt or issue of goods--It does not befit employer to tease subordinates by proceeding against them on flimsy grounds and at most value of short stock should be recovered.

---Ss.25-A & 38 (3)--Discretion of Labour Court--Grievance petition against dismissal for misconduct for alleged misappropriation due to shortage in stock in custody of accused--Possibility that shortage may have occurred due to mistake while receipt or issue of goods not excluded--Mere shortage of stock thus not amounting to alleged misconduct of misappropriation but involving element of negligence- Labour Court finding that domestic enquiry leading to dismissal orders was defective and setting it aside but permitting employer to hold fresh enquiry--Allegation itself being not amounting to misconduct- Labour Appellate Tribunal, in circumstances, interfering with discretion exercised by Labour Court and order modified setting it aside to extent of permission for fresh enquiry--Workman however refused back benefits for reasons of element of negligence.

Malik Muhammad Asghar for Appellant.

Lt.-Col. Ch. Ismatullah for Respondent.

Date of hearing: 22nd December, 1985.

The decision dated 18-3-1985 passed by the learned Presiding Officer, Punjab Labour Court No.3, Lahore at Ferozewala has been challenged, to the extent it allowed fresh inquiry to the respondent and directed that the question of back benefits would depend upon the result of the fresh inquiry.

2. The allegation was that on the transfer of the appellant while delivering charge stocks were checked and 9 bags of fertilizers were found short valuing Rs.602. The learned lower Court has directed the re-instatement of the appellant on the ground that the inquiry was not properly made inasmuch, as neither the appellant was afforded opportunity to cross examine the witness nor was allowed to produce defence evidence. No cogent reason has been given for permitting fresh inquiry. I do not think that the allegation amounts to misconduct. Mere shortage does not amount to misappropriation. The possibility cannot be excluded that shortage may be due to mistake committed at the time of receiving or issuing goods. At the time charge was taken from the appellant there were 51534 bags of fertilizers in the stocks. Two bags of urea Imp. and 7 bags of D.A.P. were found short and 8 bags of N.P. were in excess, meaning thereby that only one bag was missing. Since 8 bags were in excess, it shows that due to mistake either 7 bags were wrongly entered in the register in excess or they were issued by mistake in excess. Value too has been wrongly assessed as Rs.602. No doubt the value of the missing bags is Rs.602 but the value of the bags in surplus has not been subtracted out of Rs.602. After subtracting the value of Rs.372, value of the missing stocks comes down to Rs.230 only. If it had been a case of misappropriation, then fertilizers of thousand of rupees would have been found short. It does nut befit the employer to tease the subordinates by proceeding against them on flimsy grounds. At the most the value of the missing stocks should have been g recovered. In the peculiar circumstances of the case, I am inclined to interfere with the discretion exercised by the learned lower Court in permitting fresh inquiry.

3. However, since the appellant cannot be absolved from the element of negligence, so he is not entitled to back benefits.

4. As a result, the appeal is accepted and maintaining the direction of re-instatement, disallowing back benefits and setting aside the permission of fresh inquiry, the impugned decision is modified to this extent.

A.E.

Orders accordingly.

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