The decision, dated 15-5-1985, recorded by the learned Court No.9, Multan, has been challenged whereby the grievance petition of the appellate for his reinstatement in service was dismissed.
2. According to the charge-sheet, dated 12-8-1975, Exh.R-4, the allegation against the appellant was that when his bus was checked, 5 without ticket passengers were alighting from the bus from whom the appellant had realised the fare at the rate of 75 paisas totalling Rs.3.75, that when the checker demanded RPT from the appellant, he misbehaved with him and delivered the RPT after issuing 5 tickets and tearing them off, that he instigated the passengers travelling in the bus against the checker, that he refused to allow the cash being checked saying that tickets had been issued by him and not by the checker, that 4 passengers gave statements against him which he refused to sign. Certain allegations, contained in the charge-sheet do not amount to misconduct such as incompletion of TT-2, refusal to sign the statement of the passengers.
3. It is doubtful if the allegations, made against the appellant were proved. No doubt, on the record there are statements of two passengers but admittedly they were not out of those five passengers who were alleged to be travelling without tickets. No reason has been given for not recording the statements of the passengers who are alleged to be without tickets. If other two passengers bad become prepared to give statements, no reason has been given as to why the passengers who were found to be without tickets did not give their statements. The tickets of the passengers, whose statements were recorded have also not been attached in proof of the fact that they were not fictitious persons but were actually travelling in the bus. Since the statements of the passengers who are alleged to be travelling without tickets and from whom the appellant is alleged to have realised the fare were not recorded, the possibility cannot be excluded that from no such passenger the appellant had realised the fare. Needless to say that the question A of embezzlement arises where fare has been realised but tickets have not been issued. In cases where neither the fare has been realised nor tickets have been issued no question of embezzlement of fare arises as the tickets might have not been issued due to rush or due to inefficiency of the conductor. Inefficiency being not a misconduct, it cannot be said that such conductor is guilty of any misconduct.
4. Since the allegation of embezzlement does not stand proved, it is not believable that the appellant had misbehaved at the time of checking. Likewise, this is also doubtful that the appellant had refused to get his cash checked. The other thing which weakens the case of the respondent is that although the date of checking is 12-8- 1979 yet the dismissal order was passed in 1984 and there is no explanation about this delay. It has been said by the learned counsel for the respondent that the appellant had been dismissed in some other case and was reinstated by the labour Court in 1981 therefore, the order of dismissal was not passed soon after the enquiry. The learned counsel firstly, has not pointed out any material on the record to the effect that the appellant was dismissed in some other case and was reinstated in 1981 and secondly, even if it is so, there is no explanation why soon after the appellant was reinstated in 1981, he was not dismissed in the present case. Still there is an inordinate delay of three years, which cannot be ignored for having not been explained. The case had become doubtful on account of this delay. The possibility cannot be excluded that in the opinion of the employer, the charges levelled against the appellant had not been established therefore, he was not inclined to punish him or that the appellant was let off in the case and afterwards was convicted on the same charges. A person who has been proved guilty cannot be retained in service therefore, if in reality the charges had been established in the opinion of the employer the appellant would have been dismissed soon after the conclusion of the enquiry or soon after he had been reinstated under the orders of the Court in some other case in 1981. The order of dismissal is, therefore, not maintainable. The learned lower Court did not advert to the facts mentioned above and thus fell in error while dismissing the grievance petition of the appellant.
5. At the same time, the appellant is not entitled (to back =benefits on account of the fact that he has been given the benefit of doubt and for the reason that the dismissal order was passed. After inordinate delay. The other reason is that he did not assert hat he remained jobless after the dismissal order was passed.
6. As a result of the observations, made above, the appeal is accepted and setting aside the impugned decision of the learned lower Court and the order of dismissal, the appellant is directed to be re-instated in service without back benefits.
A.E.