' This appeal is directed against the decision, dated 10th August, 1982 passed by the learned Presiding Officer, Punjab Labour Court No, 4, Faisalabad, directing the re-instatement of the respondent in service with back benefits.
2. The respondent is a Security Inspector. A theft took place on the night between 8/9th February, 1981 and about 46 drums of bitumen were stolen. The respondent took up duty in morning of 9th February, 1981. The theft was reported to police on llth February, 1981 and in the F. I. R. The respondent too was implicated. The case, however, was discharged. The respondent was issued charge-sheet Exh. P. 2, dated 22nd July, 1981 on the allegation that although the factum of theft had come to his knowledge on 9th February, 1981 yet he did not report it to the Manager and that he had remained absent without leave from 11th February, 1981 to 20th July, 1981. The respondent joined the enquiry, which culminated in his dismissal, holding that both the charges had been established.
3. It has been argued that the respondent being a Security Inspector was not a workman. The respondent deposed before the learned lower Court that he used to make entries of incoming goods in the register maintained by him. He further explained that about one hundred trucks used to enter and go out of the premises and he used to measure the quantity of the material loaded on them without the assistance of any worker. This evidence was not rebutted on behalf of the appellant. The solitary witness R. W. 1 did not say that the respondent did not make any entry of goods in any register and did not measure the quantity of articles brought in the trucks. He said that 5 guards were under the respondent who used to work under his instructions. This may be true but the clerical work of entering the goods in the register and the manual work of measuring the goods brought in the trucks, brought the respondent within the definition of workman as defined in section 2(i) of the Standing Orders Ordinance, 1968. Since R.W. 1 did not say anything against the deposition of the respondent about the, clerical and manual duties, it means that whatever the respondent has said is correct. Of course if a Security Inspector has no clerical and manual duties, he may be out of the pale of workman. Clerical and manual work done by him cannot be ignored merely because he was an Inspector over five guards. Cases are always decide on evidence. The learned lower Court was justified in believing the unrebutted statement of the respondent A about the clerical and manual duties performed by him. Learned counsel for the appellant has cited number of authorities such as 1983 PLC 652, 1981 P C 635, 1982 PLC 603, 1982 PLC 228 and 1982 PLC 938 but they are distinguishable as there was no evidence of performing clerical and manual duties. Each case is to be decided according to its facts and evidence. The respondent was thus rightly declared as workman.
4. So far as the charge of not giving information of theft is concerned, this is wrong as well as time- barred. Copy of F. I. R. Was got registered on 11th February, 1981 in which the respondent was implicated, but the charge-sheet is dated 22nd July, 1981. The charge is wrong for the very F. I. R.
Shows that the respondent had informed the authorities about the missing of the drums in the morning of 9th February, 1981. The respondent had taken duty in the morning of 9th February, 1981 and came to know of the theft and informed the authorities, so no misconduct was committed.
However, so far as absence from 11th February, 1981 to 20th July, 1981 is concerned, the respondent failed to show that he was arrested and that after being released had reported for duty. He did not produce any duty report or application. So the charge of absence without leave for more than ten days was established.
5. However, as out of the two charges one was not proved, the punishing authority was prejudiced against the respondent thinking that both the charges had been established. If the Inquiry Officer had found the respondent guilty of charge No, 2, only then the possibility cannot be excluded that some lesser penalty may have been prescribed by the employer so punishment of dismissal cannot be upheld and was rightly set aside although on different grounds. However, since only on a technical ground the respondent could be re-instated, he has been wrongly allowed back benefits.
6. As a result of what has been observed above, the appeal is partly accepted and modifying the impugned decision of the learned lower Court, back benefits are disallowed to the respondent.