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Appeal No. LHR‑191 of 1981, decided on 19th April, 1982.

‑‑‑ Dismissal for misconduct‑‑Bus conductor alleged to have not issued ticket despite realisation of fare‑‑Recovery of fare established‑‑Labour Court taking view that tickets were not issued to 3 passengers out of 11 boarded within distance of 4 furlongs and as such this was a case of inefficiency and not of misconduct and thus accenting grievance petition against dismissal leaving employer to impose penalty of with holding of increment‑‑Order of Labour Court challenged in appeal before Labour Appellate Tribunal‑‑Misappropriation, in circumstances, held, stood established because fare had been realised by accused from ticket-less passengers‑‑Appellate Tribunal accepting appeal setting aside impugned order of Labour Court and dismissing grievance petition upholding dismissal order‑‑Industrial Relations Ordinance (XXIII of 1969), Ss.25‑A & 38(3).

‑‑‑S. 25‑A‑‑Grievance petition against dismissal on account of mis -conduct‑‑Labour Court finding that domestic enquiry made properly with full opportunity of cross‑examining prosecution witnesses and production of defence‑‑No enmity on part of Enquiry Officer suggested‑ Examination of Enquiry Officer before Labour Court, in circumstances, hued, not necessary.

Ch. Nazir Hussain for Respondent.

Date of hearing: 17th April, 1980.

This appeal has arisen from the judgment passed by the learned Presiding Officer, Punjab Labour Court No.9, Multan whereby he accepted the grievance petition of the respondent and ordered his reinstatement with back benefits, leaving the appellant to impose penalty of withholding of increment.

2. Bus No.9192 LEG conducted by the respondent was checked on 12th of July, 1975 and 31 passengers were found travelling without tickets from whom fare had been recovered. Tickets were issued by the checking party to the without ticket passengers and T.T‑40 was issued on the spot to which the respondent replied. The respondent was thereafter charge‑sheeted and finally his reply was considered unsatisfactory and enquiry was held which culminated in his dismissal.

3. At the enquiry the checker was examined who introduced statements of two passengers recorded by him and got signed by the respondent. Before the learned lower Court the same checker who had chucked the bus was examined as R.WI‑1 and he supported the prosecutions case there also. The learned trial Judge has found that since the bus was checked hardly at a distance of four furlongs from the place from where 11I passengers had boarded it, the respondent was inefficient in not issuing tickets to all of them with the result that 31 passengers were yet to be issued tickets. The learned trial Judge has not given a clear finding, whether the respondent had or had not recovered the fare. The checker has stated before the Enquiry Officer as well as before the learned lower Court that the respondent had recovered fare from 3 passengers and had not issued tickets to them. The statements of two of the passengers who were without tickets from whom fare had been recovered made the same statement before the checker. The mere fact that the bus had travelled very short distance from the place from where passengers had boarded the bus out of whom h passengers were without tickets is not material. If the respondent had not recovered fare from the said 31 passengers of course it could be said that he had not committed any misappropriation but in the presence of evidence of the passengers and the checkers that fare had been recovered misappropriation stood amply proved. The respondent no doubt did not admit the fact of the recovery of but it is immaterial because as mentioned above the recovery of fare stood established by the evidence of the checker and the passengers. No enmity with the checker has been urged and proved. The passengers no doubt were not examined at the enquiry but in the circumstances of toe case and peculiar nature of the traffic cases this is not possible. The passengers should not be troubled to appear before the Enquiry Officer aid the courts simply for this that they travelled in the bus and the conductor did not issue tickets to them in spite of recovering the fare. The addresses of the passengers are given and the respondent could have summoned them before the Enquiry Officer or learned lower Court if according to him they have made a false statement or that the checker had not recorded their correct statements. The statements of the passengers bear the signature of the respondent. If the statements had been incorrectly recorded by the conductor, the respondent would have refused to put his signatures on them.

4. According to the findings of the learned trial Judge the enquiry was properly made and full opportunity of cross‑examining the prosecu tions witnesses and the production of defence was afforded to the respondent. Second show‑cause notice was also given to him. No doubt the Enquiry Officer was not examined before the learned lower Court but the learned trial Judge has not made it a point and correctly also, because the checker was examined and no enmity with the Enquiry Officer was alleged by the respondent. If the findings of the learned trial Judge or the contention of the respondent had been that enquiry was not properly made it would have been necessary to examine the Enquiry Officer before the learned lower Court. I, therefore, do not find much force in the arguments of the learned counsel for the respondent on the point that the Enquiry Officer was not examined.

5. Mr. Mohammad Iqbal Khokhar, Advocate, Counsel for the appellant has not appeared and has sent application for adjournment. Prayer for adjournment has been refused as the application was not sent well within time and has been given the date fixed for arguments. if the case had been heard at Lahore he would have appeared. It appears that simply to avoid appearance at Multan, prayer for adjournment has been made.

6. As a result of the observations made above, I accept the appeal and set aside the order of the learned trial Judge, dismiss the grievance) petition upholding the order of dismissal.

A. E.

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