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Appeal No. GA‑548 of 1984, decided on 1st October, 1985.

‑‑‑Ss. 36 & 37‑‑Civil Procedure Code (V of 1908), 0. XXII, r. 10‑‑Civil Procedure Code, 1908 not applicable to Labour Cases but guidance can be taken by principles‑‑Procedure in case of assignment before final order‑‑Appeal by Government Transport Service pending before appellate Tribunal and all rights and liabilities of Government Transport Service transferred to Punjab Road Transport Corporation‑‑Government Transport Service, in circumstances, held, can continue to pursue case/appeal for benefit of assignee viz. Pun‑jab ab Road Transport Corporation till it comes forward‑to be substituted.

‑‑‑Misconduct‑‑Accused alleged to have instigated, Bus Conductor not to give duty more than 8 hours‑‑Plea that duty hours being 8 accused did not commit any misconduct by asking Conductor not to give duty more than duty hours‑‑Bus Conductor, held, cannot on expiry of o hours leave Bus without reaching terminus and may claim over‑time‑ Allegation, in circumstances, held, amounted to misconduct.

‑‑‑ Domestic enquiry‑‑Ex parte proceedings‑‑Order of adjourning enquiry to next date not bearing signatures of accused‑-Inference drawn that accused not intimated about next date‑‑Ex parte proceedings on next date, in circumstances, held, not justified.

Asmat Kamal for Respondent.

Date of hearing: 28th September, 1985.

The decision, dated 29‑8‑1989 recorded by the learned Presiding Officer, Punjab Labour Court No. 7, Gujranwala has been challenged, whereby the respondent was directed to be re‑instated in service with back benefits.

2. The allegation for which the respondent was dismissed from service was that he had instigated Samiullah, Conductor, not to give duty for more than 8 hours.

3. An objection has been raised by the learned counsel for the respondent without giving any miscellaneous application that Motor Vehicles Ordinance has been dissolved by Notification No, TR‑11/10 203/84, dated 9‑5‑1985 and all rights and liabilities of the transport were transferred to the Provincial Government and on 12‑5‑1985 the Provincial Government transferred all rights and liabilities to P.R.T.C., therefore, there being no appellant, the appeal cannot proceed. The factual position in this respect has not been denied by the appellant's learned counsel. Change of the description of the appellant is only formal. No doubt, C.P.C. is not applicable to the Labour cases but guidance can be taken by the principles. According to Order XXII, rule 10, wherein the pendency of suit or appeal, an assignment of any right is made, the existing appellant or plaintiff, as the case may be, can continue the case for the benefit of the assignee till the latter comes forward to be substituted. So the G.T.S. can pursue the appeal. If the P.R.T.C. had not been inclined to pursue the appeal, it would have come forward with a prayer to withdraw the same. So the appeal can proceed and be decided on merits.

4. It has been argued by the learned counsel for the respondent that duty hours being 8, the respondent did not commit any misconduct by asking Samiullah, conductor, not to give duty for more than eight hours. The argument may hold good in some other case but a bus Conductor cannot on the expiry of 8 hours leave the bus in the way if the bus has not reached its terminus. A Conductor may claim overtime but cannot leave the bus before it reaches its destination. So then allegation does amount to misconduct.

5. However, the inquiry proceedings were not made properly. Note of the Inquiry Officer on the close of the examination‑in‑chief of P.Ws 3 and 4 to the effect that the respondent refused to cross‑examine the witnesses and was proceeded ex parte, was not recorded at the time of recording the evidence but appears to have been recorded afterwards. If they had been recorded after the completion of examination‑in‑chief, they would have appeared on the close in examination‑in‑chief and not in between the space. It is thus clear that the respondent was not allowed to cross examine the witnesses P.Ws. 3 and 4 and a wrong note was added afterwards to the effect that he had refused to cross examine the said witnesses and had left. The plea that the respondent had left the proceedings, too appears to be incorrect as there are material discrepancies and difference in the statement of the representative of the appellant and the Inquiry Officer. R.W.I said that on 5th after the evidence of two witnesses was recorded, the respondent left the proceedings, that he was awaited till 4‑00 p.m. but he did not turn up and that the Inquiry Officer recorded the statements of the remaining two witnesses on the following day i.e. 6th in the absence of the respondent but the Inquiry Officer R.W. 4 deposed on the contrary that on 6th evidence of one witness was recorded in the presence of the respondent and he cross‑examined him but when the statement of other witness was started, he left the inquiry and did not come back in spite of having been awaited, therefore, the evidence of the witnesses was completed in his absence. These discrepancies coupled with the note given afterwards that the respondent had left amply show that the statements of two witnesses were recorded in the absence of the respondent without any just cause and thus the said evidence could not be used against him. The order of adjourning the inquiry from 5th to 6th does not appear to be bearing the signatures of the respondent, so it is clear that he was not intimated about the date of 6th. There was, therefore, no justification to proceed ex parte against him. The respondent, therefore, was rightly directed to be re‑instated in service. The respondent was rightly allowed back benefits also, inasmuch as he had asserted in his statement that right from 21‑11‑1983 the date of his dismissal he had remained jobless.

6. As a result the appeal having no substance is dismissed.

A. E.

Appeal dismissed.

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