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Appeals Nos. LHR-239 and 219 of 1985, decided on 19th October, 1985.

(a) West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)-

---S.O. 15(3)--Misconduct--Provisions not exhaustive--Other kinds of acts can be misconduct--Bus Driver responsible for accident acting with rash and negligent driving--Guilty of misconduct--Bus Conductor charged of misconduct in running over and resulting in death of a cyclist--Neither any charge of rash and negligent act nor any evidence that he was solely responsible for accident--Mere fact that accident took place resulting in loss of life of cyclist, in circumstances, held, not sufficient to establish misconduct warranting penalty of dismissal from service.

---Ss. 25-A & 38(3)--Reinstatement--Back benefits--Bus Driver dismissed from service for alleged accident resulting in death of a passerby No evidence that he was solely responsible for accident and was guilty of rash and negligent act--Labour Court awarding reinstatement but refusing back benefits despite statement that he remained jobless during intervening period--Mere fact that Driver being a technical hand, held, raises no presumption that he must have got some employment Labour Court, in circumstances, held, wrongly disallowed back benefits and same allowed by Appellate Tribunal.

Shafiq-ul-Islam for Appellant.

Khurshid Ahmad Mian for Respondent.

Date of hearing: 12th October, 1985.

The two appeals captioned above arise from the decision, dated 14-3-1985 recorded by the learned Presiding Officer, Punjab Labour Court No. 2., Lahore directing the re-instatement of Mehr Khan (hereinafter to be called as "the respondent") without back benefits. The P.U.T.C. (hereinafter to be described as the appellant) has challenged the direction of re-instatement, whereas the respondent has, in his appeal, claimed back benefits. Since both the appeals arise from the same decision, they are being disposed of together through this single judgment.

2. The bus driven by the respondent had run-over a cyclist resulting in the latter's death. A criminal case was got registered and the respondent was tried departmentally also. He was discharged from the criminal case but was dismissed as a result of the domestic inquiry held against him.

3. The learned lower Court has wrongly held that the allegation made against the respondent did not constitute misconduct. This is true that according to Standing Order 15(3) (i), habitual negligence is misconduct but if the driver is responsible for the accident, he acts with rash and negligent act. The provisions of Standing Order 15 (3) not being exhaustive, other kind of acts can be misconduct. But in the present case the charge is not that the respondent acted with any rash and negligent act. Apart from it, no eye-witness was examined to prove that the respondent was solely responsible for the accident. If passengers were not willing to give evidence, at least the Conductor could be examined but he too was not produced in the inquiry as a witness. So, even the allegation of negligence was not established. The mere fact that the accident took place resulting in the loss of the life of the cyclist is not sufficient. It was to be proved that the respondent was responsible for the accident. So the 'respondent has been rightly directed to be re-instated in service.

4. So far as back benefits are concerned, they have been wrongly disallowed to the respondent. He stated before the learned lower Court that since the date of dismissal he was jobless. The mere fact that the respondent was a technical hand does not raise presumption that he must have got some employment. Since the statement of the respondent was not rebutted by the appellant, the former was wrongly disallowed back benefits. Since he remained jobless, he was ready and available to serve the appellant, but was prevented by the illegal order of his dismissal from service.

5. As a result, the appeal of the appellant is rejected, but accepting the appeal of the respondent, the latter is allowed full back benefits.

A.E.

Order accordingly.

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