1978 PLP 276 (PLC)

‑‑ S. 25‑A‑Re‑instatement‑Driver and cleaner of Government Transport Service jointly charge‑sheeted for alleged misappropriation of amount realised from sale of tickets‑Charges having allegedly proved Cleaner awarded punishment of dismissal from service and Driver awarded punishment of stoppage of one increment‑Besides discri minatory treatment meted out to Cleaner‑‑‑Enquiry proceedings also found to be defective‑Order of Junior Labour Court refusing re‑instatement of Cleaner set aside. Abdul Sattar for Appellant. Hamiduddin. Asstt. Traffic Manager for Respondent. DECISION An appeal has been filed by Muhammad Rafiq Ex‑Traffic Cleaner, against the order of the learned Junior Labour Court, Multan, dated 17th January 1975 dismissing his application for re‑instatement in service of Government Transport Service, Multan, hereinafter mentioned as respondent‑Management. It is alleged against the appellant that he issued tickets to the passengers of Bus No. 6166 on 5th April, 1972 and was found to have misappropriated a sum of Rs. 34.75 out of the cash realised from the sale of the tickets. This misappropriation was attributed to his conduct while performing his duties as Cleaner. The appellant was charge‑sheeted against the said allegation alongwith the Driver Muhammad Amin who drove the said bus at the time of the checking. A regular enquiry against the appellant and the driver resulted in the dismissal of the appellant and stoppage of one increment of the driver,‑vide order dated 17th May, 1972 passed by the District Manager, Government Transport Service, Multan. It has been urged on behalf of the appellant that no statement was recorded of any passenger of the bus during the enquiry proceedings in support of the allegation against the appellant and the latter merely acted under the instructions of the driver who was primarily responsible for issuing the tickets to the passengers and that the appellant was not at all duty bound to issue tickets in the capacity of a cleaner who is ordinarily supposed to be an illiterate person. It is further contended that the statements of the witnesses recorded in the enquiry were without oath and they were not cross‑examined by the appellant. No doubt the enquiry proceedings were taken against the appellant in usual manner and the evidence was recorded, though without the formality of oath. It is, however, to be noted that the appellant can scarcely be said as not having been prejudiced in his defence inasmuch as he cannot be supposed to perform the duties as conductor when no such duty was officially entrusted to him. It is an admitted fact that the appellant carried out the instructions of the driver who was under statutory obligation to issue the tickets to the passengers and to give the account of the cash regarding the sale of the tickets as a principal official responsible in that behalf. This is not the case of the Management that the money was misappropriated principally by the driver who shared the misappropriated amount with the cleaner On the contrary the Management proceeded against the cleaner as the actual offender and despite the driver having been jointly charge‑sheeted, the latter was let of with a minor punishment of stoppage of one increment. There was hardly any room for the discriminatory treatment to be met out to the appellant when both the officials were jointly charge‑sheeted and the driver was the actual person accountable for the sale of the tickets. In the A circumstances of the case there can hardly be two opinions of the proposition that in the departmental enquiry the appellant could be awarded the sum penalty which imposed on the driver or a penalty even lesser to that. In such situation this Court has no alternative but to give the benefit of doubt to the appellant, regard being had of the other defects of the enquiry proceedings, in that, the statements were recorded without oath, the witness were not cross‑examined by the appellant and no statement of any passenger of the bus was recorded in the enquiry. In the result the impugned order being set aside, the appeal is accepted, however, the appellant will not be entitled to any back benefits of his service in regard to the period of his non‑employment in view of his exoneration of the charge on technical grounds.