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Appeal No. LHR‑780 of 1981/Pb., decided on 30th March, 1983.

Industrial dispute‑--

---‑Domestic enquiry‑Enquiry Officer to be appointed by employer‑Punjab Road Transport Corporation worker case‑District Manager simply writing "yes" on proposal made by a clerk for appointment of Enquiry Officer without mentioning name of such officer Name of Enquiry Officer nominated by clerk ‑ Enquiry Officer not '1.A. being nominated by District Manager enquiry held by such officer, held, defective‑Re‑instatement awarded by Labour Court, in circum stances, upheld by Appellate Tribunal ‑ Re‑instatement being for technical defect accused workman, held, not entitled to back benefits ‑ Back benefits on re‑instatement ‑ Industrial Relations Ordinance (XXIII of 1969), Ss. 25‑A .& 37.

Asghar Mahmood for Appellant.

Khalid Farooq for Respondent.

Date of hearing : 27th March, 1983.

This appeal calls in question the decision dated 25‑11‑1981 passed by the learned Presiding Officer, Punjab Labour Court No. 1. Lahore, whereby the respondent was directed to be re‑instated in service with back benefits.

2. During checking of the bus conducted by the respondent, three girl students were found without tickets, although the respondent is alleged to have realised the fare of paisas fifty per head from them. According to the appellant, the respondent did not give reply to the charge‑sheet, whereas the case of the respondent is that reply was deliv ered to a clerk and receipt was taken from him. The respondent, however, could not give the name of the said clerk.

3. It has been argued by the learned counsel for the respondent that the District Manager did not apply his mind while ordering enquiry, inasmuch as he wrote yes' to the suggestion made by a clerk. If a charge‑sheet is duly replied, the said reply is to be considered by applying the mind to decide whether the reply is satisfactory or not and whether the enquiry be held. The respondent failed to prove that reply to the charge‑sheet was submitted, because he could not disclose the name of the clerk who, according to him, had received the reply. If the name of the said employee had been disclosed, the appellant would have been in a position to enquire from the said clerk about the receipt of the reply and would have examined him as witness. Even if it be said that at the time of delivering the reply, the respondent did not care to enquire the name of the said clerk, he could after that find out as to whom he had dlivered the reply and what was the name and particulars of that emp loyee: This is, therefore, not believable that in reality reply to the charge sheet was given. Since no reply was given, no question of application of mind by the District Manager arises. The enquiry, therefore,, was rightly ordered.

4. It has also been argued that the Enquiry Officer was not appointed by the employer. The objection is weighty. The District Manager wrote yes' only. The suggestion which was approved by the District Manager by writing the word yes' too did not suggest the name of any officer to be appointed as the Enquiry Officer. The suggestion was if an Enquiry Officer be appointed, and the District Manager said yes'. It is thus clear that the District Manager did not nominate and appoint any officer to hold enquiry, but rather the clerk may have nominated the officer who held the enquiry. According to the rules, the employer has to appoint Enquiry Officer by nomination.

5. So far as recovery of fare is concerned, this fact was admitted by the respondent. In answer to the report on form TT‑40, the respon dent said that when after recovering fare, he was issuing tickets, the checker took the RPT book from him. It was thus clear that fare from all the three ladies had been realised. The word tickets' was used by the respondent in his reply to form TT‑40 and not ticket' in singular number meaning that fare of all the three ladies had been recovered from one lady, the plea is that tickets were being issued when the book was taken. This part of the reply is not correct. The said lady passengers had boarded the bus not shortly before the checking party came.

6. Since the Enquiry Officer was not appointed by the District Manager by nominating him, the appointment of the Enquiry Officer and the enquiry were defective. In these circumstances the order of re‑instatement passed by the learned lower Court cannot be disturbed. However, since this was a technical defect, the respondent was not entitled to back benefits.

7. As a result of what has been said above, I partly accept the appeal and modify the impugned decision of the learned lower Court by disallowing back benefits to the respondent.

Appeal partly accepted.

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