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Appeal No. HYD‑100 of 1979, heard on 30th March, 1980.

‑‑ S. 25‑A(1)‑Grievance notice to employer‑Notice handed over personally to authorised agent of Management‑Neither returned to workman nor workman informed that it was improper for want of his signatures‑‑Plea of its being improper raised for first time in appeal before Appellate Tribunal under S. 37‑Grievance notice, held, not essentially required under law to be signed by aggrieved workman --Failure of workman to sign grievance notice‑At best mere irregu larity and does not invalidate or vitiate notice.

Azmatullah Khan for Appellant.

Abdul Majeed for Respondent.

Date of hearing : 30th March, 1980.

This appeal is directed against a decision of the learned VIth Labour Court, given on 31‑1‑1979, directing the re‑instatement in service of the respondent‑workman with full back benefits.

2. The respondent, who was employed as a Conductor in the appellant-- Corporation, was charge‑sheeted for allegedly carrying excess luggage for which he had received payment of Rs. 45 from passengers but had mis appropriated this amount; carrying 3 ticketless passengers from whom he had realized the fare but pocketed the same; wrongly punching tickets for the Upper journey when the journey for Down side was being performed and finally, making incorrect entries in the Waybill and not closing the same. The respondent was found guilty of the first two charges in the domestic enquiry held by Mahmood Haroon, Station Superintendent of the appellant‑Corporation, and accordingly he was dismissed from service, vide order, dated 3‑4‑1978. The respondent challenged his dismissal before the learned VIth Labour Court which allowed his grievance petition and directed his re‑instatement in service with full back benefits, as already stated. The appellant‑Corporation has accordingly come up in appeal to this Tribunal against the said decision of the learned Labour Court.

3. I have heard Mr. Azmatullah Khan, who appeared for the appellant- Corporation, while Mr. Abdul Majeed appeared for the respondent. The first ground on which Mr. Azmatullah assailed the impugned decision of the learned Labour Court was that no proper grievance notice was given by the respondent to the appellant‑Corporation as required by subsection (1) of section 25 :A, I. R. O., and that moreover the notice was sent beyond the prescribed period of 3 months. Mr. Azmatullah submitted that the grievance notice is defective in that it has not been signed by the respondent‑workman. He further argued that since the respondent‑workman was dismissed from service with effect from 3‑4‑1978, the last date by which he was required to serve the grievance notice was 2nd July, 1978. but admittedly the grievance notice was served on the appellant‑Corporation on 3‑7‑1978, i.e., one day beyond the period of limitation. I find that neither of these' pleas have been raised by the appellant‑Corporation either in its reply statement before the learned Labour Court or in the evidence given on its behalf before the Labour Court. Furthermore, according to the grievance petition, the notice was personally handed over to an authorized agent of the appellant Corporation. Neither this notice was returned to the respondent nor he was informed that the notice given by him was not proper as it was not signed. It may also be pointed out that whereas subsection (1) of sec tion 25‑A, I. R. O., requires that the grievance notice should be in writing, it does not specifically require that it should be signed by the aggrieved workman. In fact, the law permits giving of such notice through the C. B. A., or the Shop Steward. As such, the failure on the part of the respondent to sign the grievance notice is at best a mere irregularity which does not invalidate or vitiate the notice.

4. As regards the plea that the grievance notice is belated, it may be pointed out though admittedly the orders of dismissal of the respondent were issued on 3‑4‑1978, there is no evidence on record to show when they were served upon him. It is quite possible that the said orders may have been served upon him on or two days later. Since no plea was raised by the appellant‑Corporation before the Labour Court that the grievance notice was belated no opportunity was given to the respondent‑workman to show either that the notice was served within time or that the orders of dismissal were served upon him not on the date that they were issued but some time later. I am, therefore, of the view that the appellant‑Corporation has failed to establish that the grievance notice was not received by it in time.

It was next submitted by Mr. Azmatullah that the misconduct of the respondent has not been fully established in a fair and impartial domestic enquiry held by the Station Superintendent of the appellant‑Cor poration, who was examined before the Labour Court. As already pointed out, the accusations in the charge‑sheet against the respondent‑workman were, firstly, that he was found carrying excess luggage of the value of Rs. 45 which amount he had realized from the passengers but had mis appropriated the same; secondly, that there were 3 ticketless passengers from whom he had realized the fare but had misappropriated the same; thirdly, tickets were found punched for the Upper journey when in fact that bus was performing Down journey; and lastly, that incorrect entries had been made in the Waybill and it was not properly closed. Now, as regards the last 2 allegations, it may be mentioned that no finding has been given by the Enquiry officer in respect thereof. This suggests that the Enquiry Officer did not find the respondent guilty of these 2 charges. This view gains support from the fact that the Waybill was not even produced before the Enquiry Officer, and consequently, it is not possible to say whether it contained incorrect entries or it had not been properly closed. As regards wrong punching of tickets, this may have been due to a bona fide mistake on the part of the respondent‑Conductor. It is not the case of the appellant Corporation that tickets once punched can be used again. Possibly, in a hurry or oversight, the Conductor punched the tickets for the Up journey when in fact the bus was on the Down journey. From this mere fact no dishonesty on the part of the respondent can be inferred.

6. As regards the allegations of carrying excess luggage and misappropriating the fare thereof, the only evidence led on behalf of the appellant Corporation in the domestic enquiry as well as before the Labour Court was of Inspector Mohammad Tahir, who was in the Checking Party that had checked the bus of the respondent. It is an admitted position that the Checking Party was headed by Zafarullah but he was not examined either in the domestic enquiry or before the Labour Court for reasons which are not apparent on the record. The evidence of Inspector Tahir in respect of this allegation is not very convincing. In the first place, if the respondent had misappropriated the fare received by him for excess luggage of the passengers, excess cash should have been found with him. However, there is no allegation that any excess cash was found with the respondent. Furthermore, none of the passengers whose excess luggage the respondent is said to have been carrying and from whom he is alleged to have realized the fare for the same, were examined. Most important, the then Timekeeper, Liaquat Ali, was examined in the domestic enquiry and he asserted that no excess luggage was carried by the respondent. I am, therefore, in agreement with the view taken by the learned Labour Court that the carrying of excess luggage by the respondent Conductor has not been established and hence the question of misappropriation by him of the fare for the same does not arise.

7. As regards the last allegation against the respondent, namely, that he carried 3 ticketless passengers from whom he had realized the fare but misappropriated the same, there is only the bare word of Inspector Tahir, since his superior, Zafarullah was not examined, as already stated, either in the domestic enquiry or before the Labour Court. Furthermore, even Inspector Tahir has admitted that when any ticketless passenger is found travelling in a bus, unpunched tickets are secured from the Conductor. However, in the instant case, admittedly no such tickets were secured from the respondent. It may also be mentioned that if the respondent had mis appropriated the fare which he is alleged to have received from the 3 ticketless passengers, he should have been found with the excess cash, but there is no allegation that any excess cash was found with him. On the other hand, there is evidence of one Baboo, who was examined by the respondent in the domestic enquiry. According to him, he was travelling in the bus at the time when the bus was checked, that all the passengers had been given tickets and the Checking Party had collected some tickets from the passengers. The evidence thus does not establish the charge that the respondent carried 3 ticketless passengers and misappropriated tine fare collected by him from them.

8. For the reasons stated by me above, I would uphold the findings of the learned Labour Court and would dismiss the appeal. Mr. Azmatullah submitted that even if this Tribunal takes the view that the order re‑instating the respondent Conductor in service merits no interference, at least back benefit should not be awarded to him since he must have been gainfully employed elsewhere during the period for which the back benefits have been warded to him. Mr. Azmatullah was unable to refer me to any evidence from which it could be inferred that the respondent was gainfully employed during any part of the period that he was wrongly kept out of employment by the appellant‑Corporation that the respondent had been grainfully employed during this period, it should have led evidence in support of its contention. Since, there is no evidence to suggest that the respondent was gainfully employed elsewhere during the intervening period, there is no justification for refusing him back benefits for any part of that period.

Appeal dismissed.

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