DECISION ' This is an appeal against the order, dated 27-9-1989, passed by the learned Presiding Officer, Sindh Labour Court No,IV at Karachi, whereby the grievance petition of the appellant was dismissed.
2. The brief facts of the case are that the appellant was admittedly employed as Junior Ledger Keeper with the respondent when on 30-8-1983, he was charge-sheeted for certain acts of misconduct and after domestic enquiry, he was dismissed, vide order, dated 31-10-1983. He filed a grievance petition which was decided by the learned Presiding Officer, Sindh Labour Court No,I at Karachi on 29-4-1986 whereby the appellant was ordered to be reinstated, but, the respondents were given an option to hold fresh enquiry. After fresh enquiry, the appellant was again dismissed from service, vide order, dated 7-10-1987. After serving grievance notice, the appellant again filed grievance petition before the learned Labour Court which was dismissed by the impugned order.
3. I have heard Mr. S.P. Lodhi, learned representative for the appellant and Mr.Gul Muhammad Soomro, learned representative for the respondent and have also gone through the record and proceedings of the case.
4. The charge-sheet, dated 30-8-1983 contains several charges against the appellant. Firstly, he is alleged to have obtained the salary of Workshop staff without audit of bills. Secondly, he is alleged to have left the office on 27-8-1983 at 1-00 p.m., without permission and did not return back. Thirdly, he had sent the bills without getting them signed by the relevant authority. Fourthly, that on the audit of bills, it was found that he had made 3 workers wrongfully entitled to attendance allowance of Rs,40 each and that he had allowed some extra payments to 2 workmen and that he had deducted Rs,50 instead of Rs,100 towards loan taken by worker, Mr. Azharuddin Hashmi.
5. With regard to the first three charges, even, if the charges are held to be proved, the misconduct that the appellant would have committed would fall only under Standing Order 15(1)(ii)(a) and (d) viz., disregard of Rules and inefficient working. The punishment for such acts of misconduct is only fine and not dismissal from service. With regard to other charges, in which he had made certain workers entitled to attendance allowance or made extra payments to certain workers or deducted less amount from the payment of a worker towards his loan, it is alleged that these acts were committed by the appellant due to carelessness and negligence and also indicated fraud and dishonesty. It is admitted that no financial loss was caused to the respondent as the mistakes had been detected by the Audit and were rectified. With regard to allegation of negligence and carelessness, again the misconduct would fall under Standing Order 15(1)(ii) for which he could not be punished with dismissal. With regard to the allegations that these acts of misconduct were committed by him in order to commit fraud and dishonesty, there appears to be no evidence to prove fraud or dishonesty on the part of the appellant. Words 'dishonest' and 'fraudulent' are not defined in Industrial Relations Ordinance, but, they are defined in sections 24 and 25 of Pakistan Penal Code; as under:- 'Section 24 - 'Dishonestly' - Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing 'dishonestly'.
' Section 25 - 'Fraudulently' - A person is said to do a thing fraudulently if he does that thing with intent to defraud but not otherwise."
6. There is no evidence to show that the appellant had committed these acts with intention to cause any loss and damage to the respondent or any gain to the workers. There is no evidence on record to show that by these acts of misconduct, the appellant had attempted to make any wrongful gain, or intended to defraud the respondent.
7. Admittedly the appellant was working as Junior Ledger Keeper but, from him was taken the work of Accounts Clerk, which is a work of a person in higher Grade viz., Grade-VII, whereas the appellant was in Grade-V. Naturally when a junior person is made to do work of a senior post, he is likely to commit mistakes and in absence of any proof of any motive, fraud and dishonesty could not be attributed to him. Such mistakes by themselves would not constitute a dishonest or fraudulent conduct on the part of the employee, unless it is proved that thereby he intended to cause loss to the respondent or wanted to make any gain for himself. At the most, these mistakes can be considered as acts of negligence and inefficiency which are not the acts of misconduct for which the appellant could have been dismissed.
8. Even, if the acts of misconduct as stated in the charge-sheet are held to have been proved in the domestic enquiry, still they did not constitute a misconduct as described in Standing Order 15(3) for which he could have been dismissed. In fact, the management is also guilty of contributory negligence in not putting a proper person in the proper post of such responsible work as accounting. They should not have taken this work from junior person, for which he was made no extra payment.
9. In view of the above discussion, in my opinion, the order of dismissal was not warranted under Law and at the most the appellant could have been imposed fine as provided under Standing Order 15(1). The impugned order of learned Labour Court as well as order of dismissal of the appellant is set aside and the appellant is ordered to be reinstated in service within one month of this order. However, under the circumstances of the case and in absence of any evidence on record that the appellant was not gainfully employed during this period, I do not award him any back benefits.