1978 PLP 474 (PLC(CS))

Petitioner in person Shafique Ahmad Malik for Respondent. This is a petition under section Q5‑A of the Industrial Relations Ordinance, 1969 by a works' against his employer for re‑instatement with back benefits.

2. The facts are undisputed. The petitioner, Muhammad Rafique, was recruited u a conductor on 28‑1973. He was sent to the Training School, Lyallpur. He had to receive training as conducts for one month. He received training for 5 days only and due to shortage of staff he was pot on duty on 4‑2‑75.

3. On 24‑2‑75 he was plying his bus from Gojra to Lahore. At Dijkot his bus was checked. It was found that he had left one Ticket No. 849844 as blank whereas its duplicate had been issued to a passenger. The petitioner had received an amount of Re. 6.80 from the passenger and had issued the said ticket from Gojra to Lahore. The checker assumed that the petitioner had the intention to misappropriate a part of the amount of Rs. 6.80 because at the terminus he would fill the blank ticket for a short journey. At this assumption TT‑40 was issued to the petitioner and his explanation was obtained. He said that he was a raw hand and by mistake he could not write on the first ticket and that he had no intention of misappropriating the amount. The explanation was found unsatisfactory. He was charge-sheeted. An enquiry was instituted. The evidence before the Inquiry Officer was that of the checker. A finding was given to the effect that the petitioner was guilty of dishonesty. Accordingly the petitioner was dismissed after a final show‑cause notice. Aggrieved by the order of dismissal the petitioner has come to this Court challenging the order.

4. Mr. Nadir Ahmad Naz, the learned Labour Representative, appearing on behalf of the petitioner raised one point only that the facts alleged against the petitioner do not make out a one of dishonesty against the petitioner. I agree with him. The duty of the petitioner was to fill in two tickets by using a carbon. The upper ticket was to be kept in the R. P.1t book whereas the lower ticket was to be given to the passenger. At the time of checking the explanation of the petitioner was that by mistake he could not fill in the upper Part whereas he rightly filled in the lower part and issued the ticket. During the enquiry his explanation was that he had not been given any carbon paper by the respondent that during the journey the carbon paper was lost and so he had prepared ticket without a carbon. Whatever the eau may be, the question is whether the act of dishonesty had become complete at the time of checking. The answer a in clear negative. The petitioner had not reached the terminus. He had to deposit the amount with the respondent. In case he had deposited the whole amount and while doing so he had misappropriated some amount, then alone a finding could be given that he was guilty of dishonesty. In the present case theta were two possibilities. One possibility was that the petitioner would have filled in the amount of Rs. 6.80 in the blank ticket and would have deposited the same into the account of the employer. In that case he would not be guilty of dishonesty. The second possibility was that he might have prepared a ticket of lesser amount and might have misappropriated some amount. As both the positions are equally possible, therefore, the position favourable to the petitioner should have been followed. Without any manner of doubt it was not a fit case to hold the petitioner guilty of dishonesty.

5. As the offence had not been completed, at the maximum, it can be said that the petitioner had the intention to commit dishonesty. Standing Order 15 does not include an intention to commit theft, fraud or dishonest into the definition of misconduct. Unless the commission of theft, fraud dishonesty or of Standing Order

15. No order of dismissal could be passed o the facts alleged against the petitioner.

6. For the above reasons the petition is accepted and the respondent is directed to re‑instate the petitioner with back benefits. ???? ???????????????????????????????????????????????????????????????????????????????????????????????????????????Petition accepted.