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Appeal No. MN‑511 of 1984, decided on 9th July, 1985.
‑‑‑Dismissal for misconduct Bus conductor charged for misappropriation ‑‑Ticketless passengers‑‑Fare alleged to have been realised‑‑Statement of ticketless passengers not recorded in presence of accused by checking party‑‑Dismissal order based upon statements of members of checking party, in circumstances, held, rightly set aside by Labour Court‑‑‑ Industrial Relations Ordinance (AX‑111 of 1969), Ss.25‑A 38(3).
‑‑‑S. 25‑A‑‑Re‑instatement‑‑Back benefits‑‑Petitioner whether remained jobless during intervening period‑‑Onus to state same upon petitioner claiming back benefits.
Ch. Safdar Jang for Appellant.
Muhammad Zaman Qureshi for Respondent.
Date of hearing: 1st July, 1985.
The decision, dated 7‑8‑1984 passed by the learned Presiding Officer, Punjab Labour Court No.9, Multan has been challenged whereby the respondent was directed to be re‑instated in service with back benefits.
2. The allegation against the respondent was that Bus No.3429 conducted by him was checked on 18‑3‑1981 and 28 passengers were found without tickets when they were delighting from bus after completing their journey and that the respondent had received the fare from them at Rs.1.25 per head totally Rs.35. Evidence was produced in the enquiry by examining one of the members of the checking party. Neither the driver of the bus who is alleged to be present was cited as a witness nor any of the ticketless passengers was examined. This is true that the passengers not being under the control of the appellant could not be forced to appear but at the time of checking, but whatever they had stated could have been recorded and got signed by them. It has been argued that the passengers are not willing to get their statements recorded. I do not find any force in this argument as well. There is no hindrance in recording the statements of the passengers. If a passenger had refused to put his signatures on the statement he could be directed to pay the fare as is done by the Railways. If the passengers are found to be without tickets the checker has every right to recover fare from them. If this is done the passengers would be willing to get their statements recorded if in reality, they had paid the fare to the conductor. Even in T.T.40 it is not mentioned that the respondent, was confronted with the without ticket passengers. The respondent, therefore, was rightly directed to be re‑instated in service by the learned lower Court.
3. However the respondent was wrongly allowed back benefits by the learned lower Court. The respondent did not state that after dismissal he remained jobless. Needless to say that back benefits are allowed only as a compensation to a worker for remaining jobless and not as a punishment to the employer for illegal order of dismissal. Therefore, the onus was upon the worker who claimed back benefits to state in his statement on oath that after his dismissal he had remained I jobless. Needless to say that the employers have no source to find out if the employees who had been removed from service have got some employment or not whereas the employees have knowledge to the effect whereby they got some employment elsewhere or not. If the employee says on oath that he remained jobless he becomes to be entitled to back benefits. Since in the present case the respondent did not state the same he was wrongly allowed back benefits.
4. As a result of the observations made above, the appeal is partly accepted and modifying the impugned decision of the learned lower Court, back benefits are disallowed to the respondent.
A.E.
Appeal partly accepted.
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