1984 PLP 1143 (PLC(CS))

‑‑ S. O. 15 (3) & (4)‑Dismissal for misconduct‑Multiple charges Effect ‑ Bus conductor charged for (1) non‑issuance of tickets though fare received from some passengers and (2) non‑issuance of tickets and fare also not received in respect of some other passengers ‑ Charge No. (2) not amounting to misconduct while charge No. (1) amounting to misconduct ‑ Found guilty of both charges in domestic enquiry‑Punishing authority, in circumstances, held, prejudiced while assessing quantum of punishment‑Labour Court, in circumstances, held, not justified in grievance petition Appellate Tribunal setting aside impugned dismissal order awarding re‑instatement without back benefits‑Industrial Relations Ordinance (XXIII of 1969), Ss. 25‑A & 38 (3). 1980 P L C 104 and 1980 P L C 133 rel. Khalid Farooq for Appellant. Date of hearing : 19th January, 1982. This appeal arises from the decision, dated 22nd November, 1980 passed by the learned Presiding Officer, Punjab Labour Court No. 1, Lahore, whereby the grievance petition of the appellant was dismissed.

2. The appellant was a Conductor. His bus was checked on 1st December, 1977. Out of 18 without ticket passengers, six were such from whom the appellant had recovered fare, but had not issued tickets to them. Form T. T. 40 was given to him at the spot and he made reply to it denying the allegations. He was charge‑sheeted and an enquiry held against him which culminated in his dismissal. In the charge‑sheet there were two allegations one was that from six passengers fare bad been recovered but tickets had not been issued and the remaining 12 were such that neither fare had been recovered nor tickets had been issued to them.

3. Learned counsel for the appellant has argued that the charge that the appellant had not issued tickets to 12 passengers from whom he had not recovered fare, does not amount to misconduct and since he was found guilty of both the charges, the dismissing authority was prejudiced while assessing the quantum and kind of punishment. He relies upon 1980 P L C 104 and 1980 P L C

133. Since fare had not been recovered by the appellant from the 12 without tickets passengers, it cannot be said that he had made embezzlement or caused loss to the establishment. There is no evidence that he had intentionally failed to issue tickets to those passengers. When there is a rush, some newly‑entered passengers usually go without tickets. The appellant would have issued tickets to them but before he could do so, the checking party got into the bus. The fact that he had recovered fare from six passengers and had not issued tickets to them, of course amounts to misconduct on account of embezzlement but since he was found guilty of the second charge also, which did not amount to misconduct, the punishing authority was pre judiced while assessing ‑the quantum of punishment. The case of the appellant is supported by the two authorities cited by the learned counsel. The lower Court, in these circumstances, was not justified in dismissing the grievance petition. I, accordingly, accept the appeal and setting aside the impugned decision of the lower Court and the order of dismissal, direct the re‑instatement of the appellant in service. Since the appellant has succeed ed on a technical defect, he shall not be entitled to back benefits. A.E. Appeal accepted.