' This appeal arises from the decision, dated 27th February, 1979 passed by the learned Presiding Officer, Punjab Labour Court No, 5, Faisalabad, whereby the grievance petition of the respondent was accepted and he was directed to be reinstated in service with consequential benefits.
2. The respondent was a Cashier in the Bhakkar branch of the appellant Bank. On 15th October, 1976 he reported the shortage of one thousand rupees in his accounts. The Manager asked him to deposit the amount, but he showed his inability on account of poverty. The amount on his request was debited to the bank on the assurance that he would deposit the same after raising money. He was charge-sheeted and his reply was found unsatisfactory, therefore, an enquiry was held against him as a result of which he was dismissed. During the enquiry only one witness namely Raja Muhammad Younis was examined, whose evidence is that the respondent reported to him about the shortage of Rs, 1,000 ; that uptil evening checking was made, but no clue could be found, whereupon, the amount was debited to the bank's account on the assurance of the respondent that he would, after raising the money from somewhere else pay the amount. The respondent in his statement admitted the statement of Raja Muhammad Younis, but pleaded that he went to many persons who had withdrawn the amount on 15th October, 1976 but none of them said that they had received any amount in excess. However, one Khalil Ahmad told him that on the said date in his presence he had paid Rs, 1,000 to a person employed in the same bank and he requested him to come to the bank on the following day and show that person to him, whereupon he came and after looking at the employees of the bank pointed out Riaz Husssain stating that to him he had paid Rs, 1,000 but Riaz Hussain denied. The respondent examined Khalil Ahmad in defence whose statement is the same as mentioned above.
3. It has been argued by the learned counsel for the respondent that the Enquiry Officer did not find the respondent guilty of charge No, 2 which is in respect of misappropriation of amount and that he found him guilty of charge No, 1 which pertains to shortage of money. He has further argued that shortage cannot be characterised as misconduct. So far as charge No, 2 is concerned, it was to the effect that respondent had without any cheque paid the amount of Rs, 1,000 to Riaz Hussain dishonestly. This charge, according to the Enquiry Officer, was not proved. However, the Enquiry Officer found that on 18th October, 1976 the respondent had intentionally and fraudulently obtained a payment of Rs, 1,000 from Riaz Hussain on the pretext that a cheque in the like amount duly passed for payment by the Manager would be sent to him soon. Obviously, the fact, which according to the Enquiry Officer was proved, was not incorporated in the charge-sheet, therefore, the respondent could not be convicted and dismissed on this ground. So far as the charge of shortage of Rs, 1,000 is concerned, the learned lower Court has rightly observed that it did not amount to misconduct. Charge No, 1 is not to the effect that the shortage of Rs, 1,000 was fraudulently shown and that actually this amount had been misappropriated by the respondent.
Therefore, the finding of the Enquiry Officer to the effect that charge No, 1 was proved did not show that the respondent was guilty of any misconduct. Simply shortage does not amount to misconduct. A shortage with mala fide intention may amount to mis-conduct. The possibility cannot be excluded that the respondent may have through inadvertence paid Rs, 1,000 in excess to some customer who had received payments on 15th October, 1976. The conduct of the respondent in reporting the shortage on that very day to the Manager further shows that there was no mala fide intention on his part. In reality the charge-sheet was not properly framed. The charge should have been that the respondent misappropriated Rs, 1,000, explaining the shortage mala fide by stating that Riaz Hussain had received Rs, 1,000 from him. If this had been the charge-sheet since the Enquiry Officer did not believe the evidence of the defence witness, the charge of misconduct could have been proved. In these circumstances, the respondent was rightly reinstated in service.
However, he is not entitled to back benefits, because due to the mistake in the charge-sheet he has escaped the responsibility.
4. As a result of the observations made above, I partly accept the appeal and modify the impugned decision of the learned lower Court, disallowing back benefits go the respondent.