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Appeals No.LHR‑32 and 43 of 1985, decided on 19th October, 1985.

‑‑‑Domestic enquiry‑‑Hearsay evidence‑‑Bus Conductor charged for embezzlement‑‑Alleged to have recovered fare but tickets not issued‑ Statement of ticketless passengers not recorded‑‑Statement of Checker not present at time of realisation of fare merely hearsay evidence‑‑Not sufficient to prove embezzlement.

‑‑‑Ss. 25‑A & 38(3)‑‑Re‑instatement‑‑Back benefits‑‑Misconduct forming basis of dismissal from service not established‑‑Petitioner stating that he remained jobless during intervening period and such statement un rebutted‑‑Order of Labour Court disallowing back benefits while awarding re‑instatement, in circumstances, held, wrong and petitioner entitled to back benefits.

Shafiq‑ul‑Islam for Petitioner.

Khalid Farooq for Respondent.

Date of hearing: 12th October, 1985.

The two appeals captioned above arise from the decision dated 17‑12‑1984 recorded by the learned Presiding Officer, Punjab Labour Court No.2, Lahore, whereby Khalid Javed (hereinafter to be called as "the respondent") was directed to be reinstated in service without back benefits. The P.U.T.C. (hereinafter to be described as "the appellant") has challenged the direction of reinstatement, whereas the respondent has, in his appeal, claimed back benefits. Both the appeals having arisen from the same decision, are being disposed of together through this single judgment.

2. The bus conducted by the respondent was checked near Milk Plant on 7‑9‑1980. Two lady passengers were found without ticket from whom the respondent is alleged to have recovered the fare. There were five other without ticket passengers from whom no fare had been recovered by the respondent. Only hearsay evidence was produced in the inquiry by examining the Checker only. The Checker not being present at the time the respondent is alleged to have realised the fare from the without ticket passengers, was not an eye‑witness, so his evidence was not sufficient to prove the embezzlement. So far as the five passengers are concerned, since fare had not been recovered by the respondent, no misappropriation of fare had taken place. The statement made by the two without ticket lady passengers was not recorded at the time of checking, nor the respondent was confronted with them. In these circumstances, it was necessary to examine the said passengers during the inquiry to give opportunity to the respondent to cross‑examine them. It is argued that the passengers are not willing to get their statements recorded at the time of checking. This is not believable. If the passengers state that they have paid the fare, they cannot have objection to the recording of their statement. If at all they refuse, fare can be recovered from them and if this is done, they would become ready to get their statements recorded in order to be saved from paying double fare. The execution of TT‑40 too was not proved. The respondent denied his signatures on it, so during inquiry it should have been proved that he had in reality signed his reply mentioned on TT‑40. Even no record of inquiry proceedings was produced before the learned lower Court. In the absence of the said record, it cannot be said if proper opportunity was afforded to the respondent to cross‑examine the witnesses and to produce his defence evidence. So, the respondent was rightly directed to be reinstated in service.

3. The learned lower Court wrongly disallowed back benefits to the respondent. The latter had said that since the time of his dismissal from service, he was jobless. This statement was not rebutted by the appellant by proving that he had got some employment. So the respondent is entitled to back benefits also.

4. As a result, the appeal of the appellant is dismissed and accepting the appeal of the respondent, the latter is allowed full back benefits.

A. E. Order accordingly

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