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Appeals Nos. RI‑55 and 51 of 1981/Pb., decided on 24th January, 1983.

‑‑ Domestic enquiry‑Prosecution witness ‑ Making no statement but certain questions put to him‑No opportunity of cross‑examina tion of such witness afforded to accused ‑ Answers of witness. in circumstances, held, could not be used against accused.

‑‑ Ss. 25‑A & 37 ‑ Re‑instatement ‑ Back benefits ‑ Workman charged for taking forcible possession of residential quarter with out allotment order and refusing to vacate in spite of order‑Charges of forciable possession and refusal to vacate despite order not proved‑Re‑instatement without back benefits awarded by Labour Court‑Workman in appeal agitating for back benefits‑Receipt of house rent while in possession of residential quarter proved‑Order denying benefits, in circumstances, upheld by Appellate Tribunal.

Asghar Mahmood for the Appellant.

M. K. Khan for Respondent.

Date of hearing : 17th January, 1983.

The above captioned two appeals arise from the decision dated 21st January, 1981 passed by the learned Presiding Officer, Punjab Labour Court No. 6, Rawalpindi, whereby the grievance petition of Muhammad Afzal was accepted and he was directed to be reinstated in service with out back benefits. Heavy Mechanical Complex has in its appeal challen ged the reinstatement of Muhammad Afzal, whereas Muhammad Afzal in his appeal has challenged the impugned decision to the extent it dis allowed back benefits to him. Since both the appeals arise from the same decision, they are being disposed of together through this single judgment, in which Heavy Mechanical Complex will be described as the appellant while Muhammad Afzal as the respondent.

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2. The respondent was a Fabricator. The allegation against him was that he took forciable possession of quarter 3/15‑A‑6 H. M. C. Colony, Taxila without any allotment and refused to vacate it in spite of order Exh. P. 2. He was charge‑sheeted and after service of 2nd show cause notice was dismissed. The letter of dismissal is Exh. P. 5. The stand taken by the respondent was that he was residing with the previous allottee of the said quarter and after the said allottee vacated, he did not vacate the quarter. He had admittedly applied for the allotment of the quarter, vide application Exh. P. 8, but his request was not accepted and it was allotted to another person. The Enquiry Officer held that the allegation that the respondent had taken possession by breaking open the lock was unsound. He also said that "it seems that the house was locked in the absense of Mr. Afzal and he broke it open on return". He, how ever, held that it had been established that the respondent did not vacate the quarter in compliance with the order. No written order of some com petent authority to vacate the quarter was placed on the enquiry record or on the record of the lower Court. The Security Officer is alleged to have verbally asked the respondent to vacate the quarter. The Security Officer was neither examined in the enquiry nor before the learned lower Court. Only one witness Abdul Karim, Store Keeper was examined in the enquiry, who did not state that the respondent was ordered orally or in writing to vacate the quarter. He gave evidence regarding the breaking of lock by the respondent. Muhammad Afzal son of Nawab did not make any statement but certain questions were put to him. No opportunity of cross‑examination was given, as there is no note to that effect, therefore, A his answers could not be used against the respondent. He too did not state that the respondent was asked to vacate the quarter. Since the Enquiry Officer held that the story of occupying the house by breaking open the lock was unsound and that it appeared that the house was locked in the absence of the respondent and he broke it open on return, it is clear that he did not accept the story that the house was empty and it was locked by the estate authority. It means that the respondent was residing in the quarter, that in his absence it was locked and that he on return broke open the lock. He thus broke open the lock to maintain his posses sion and not that in order to get possession he broke the lock. The Enquiry Officer wrongly held that the respondent refused to vacate the quarter. As observed above, none of the witnesses stated that the respon dent was ordered to vacate the quarter, nor any such order was produced either during the enquiry or before the lower Court. No misconduct, therefore, was proved and the respondent rightly directed to be reinstated.

3. The respondent has brought cross appeal to claim back benefits, he admitted that while in possession of the quarter, he had been receivi8 house rent. After the previous allottee had vacated the quarter, the respondent came in exclusive possession of it, so he should have either vacated the quarter, or should not have recovered house rent. He was thus rightly refused back benefits.

4. As a result of the observations made above, I do not find any force in the appeals and dismiss them.

A. E. Appeal dismissed.

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