' The two appeals captioned above emanate from the decision, dated 12th December, 1981 passed by the learned Presiding Officer, Punjab Labour Court No, 5, Faisalabad, whereby the respondents were directed to be reinstated in service without back benefits.
2. As the facts and law points involved in the two appeals are the same they are being disposed of together through this single judgment in which Muhammad Attique Warsi will be described as respondent No, 1 and Nazir Ahmad respondent No, 2.
3. Respondent No, 1 was oil delivery clerk and respondent No, 2 was a watchman. Three bowzers of edible oil were received in the appellant industries on 16th August, 1981 and they were to be emptied. Two bowzers were completely emptied but in one five metric tonnes of oil remained behind. According to the appellant it was the duty of the respondents to completely empty the bowzers and to check it and make sure that it did not contain any oil before it was allowed to leave the premises. Both of them were charge-sheeted. It was the duty of respondent No, 1 to check the dip of the bowzer and that of the tank in which the bowzer was decanted and then to enter the quantity of oil received, in the relevant register. The allegation against respondent No, 1 was that he neither checked the dip of the bowzers nor of the tank properly and entered the quantity of the storage tank after the decantation of the bowzer as 11'-8"-3", whereas the actual measurement was 11'-8"-0". The allegation against respondent No, 2 was that being a watchman it was his duty to check the bowzer to satisfy that it contained no oil before allowing it to go out but he without doing so allowed the bowzer to leave the industries with the result that the bowzer was containing five metric tonnes of oil. On the following day when it was detected that the dip reading of the storage tank was actually 11'-8"-0" against the entry of the register which was 11-8"-3", the bowzer which was present was taken back by respondent No, 1 and five metric tonnes of oil that had remained in it was further decanted.
4. The learned lower Court has on two grounds accepted the grievance petitions of the respondents. One point is that it was single act of negligence, whereas the negligence which constitutes misconduct should be habitual and for this Kind of negligence there should be the series of instances. The other point is that the statements of the respondents were recorded before the examination of P. Ws. The learned trial Judge distinguished 1980 PLC 800. This distinction is erroneous. The respondents knew that this negligence could cause immense loss to the employer.
So, in such cases the negligence is not simple but is a criminal negligence. Where there is no likelihood of immense loss negligence does not count much because the employee working negligently knows that no tangible loss is likely to occur. The respondents knew the value of the oil and that sufficient quantity may have remained undecanted in the bowzer by their slightest negligence and actually oil worth Rs, 30,000 remained undecanted. Respondent No, I was more responsible for this negligence and in his case it cannot be said that it was a case of simple instance. He firstly did not properly watch the dip of the tank, secondly he did no properly dipped the bowzers, thirdly he did not properly dip the storage tank after decanting the bowzer. The quantity of oil brought in the bowzer was known because it was recorded in the papers. So, adding the said quantity in the quantity already present in the storage tank the total quantity should have been 11'-8"-3" which he had actually entered in the record, whereas in the tank the quantity was only 11'-8"-0". Since the charge is not of dishonesty, he cannot be said to have acted dishonestly but in reality he was not guilty of nearly negligence only. I agree in toto with the observations made in 1980 PLC 800 that according to the nature of the negligence single act is sufficient to constitute misconduct. The guilt of Nazir Ahmad, watchman, is not serious as that of Attique Warsi. A watchman is not sufficiently educated where an oil delivery clerk he is expected to be an educated and efficient person. Nazir Ahmad appears to have relied upon Attique Warsi. Since Attique Warsi had shown his satisfaction Nazir Ahmad may not have properly checked the bowzer.
5. This is true that before recording the evidence of P. Ws. The statements of the respondents were recorded but I cannot agree with the learned trial Judge that it actually caused any substantial prejudice to the respondents. What the P. Ws. Stated is not very much disputed. This is admitted that about five metric tonnes of oil had remained in the bowzer which was decanted on the following day. None of the respondents denied this fact. Obviously due to intentional or unintentional gross negligence of the respondents the oil remained in the bowzer. So, the respondents could not have improved their case even if their statements had been recorded after the examination of the P. Ws. I, therefore, do not agree that the respondents were prejudiced by this act of the enquiry officer. However, such an act of the enquiry officer cannot be approved. So, the offence stood proved so far as respondent No, 1 is concerned and he was wrongly directed to be re-instated in service.
6. So far as respondent No, 2 Nazir Ahmad is concerned, his case is distinguishable from respondent No,
1. As mentioned above, he could not in the least suspect that respondent No, I would have allowed some quantity of oil left in the bowzer at the cost of his service. According to the statement of Pir Muhammad, there is special mechanism in the N. L. C. Bowzer for extracting the oil. According to him, there is a level and unless the same is removed or is put at right place, oil does not start pouring from the bowzer. As this mechanism is not, common with every bowzer respondent No, 2 may not be familiar with it. Again the driver of the bowzer has implements with him to open the outlets of the bowzers and they usually open the outlets. If the driver had a conspiracy with respondent No, 1, he may not have removed the level with the result that at the time respondent No, 2 checked the bowzer, since oil did not drop down, he may have made out that the bowzer was in reality empty. The C case, therefore, so far as Nazir Ahmad is concerned, is doubtful and he was rightly directed to be reinstated in service without back benefits.
7. As a result of the observations made above, I dismiss the appeal lodged against Nazir Ahmad, respondent No, 2, but accept the appeal made against respondent No, 1 and setting aside the impugned decision of the learned lower Court dismiss his grievance petition.