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Appeals Nos. LHR‑248 and 117 of 1985, decided on 21st January, 1986.

‑‑‑Domestic enquiry‑‑Evidence‑‑Bus conductor's case‑‑ Ticketless passengers‑‑Fare allegedly realised‑‑Statements of ticketless passengers recorded by Checker and employee confronted with them during raid‑ Examination of passengers during enquiry, in circumstances, held, not essential and statement of Checker sufficient to bring home charge.

‑‑‑ Domestic enquiry‑‑Employee applying for permission to engage counsel‑‑No reply given‑‑Employee, held, justified in not joining enquiry.

Muhammad Iqbal Khokhar for Appellant.

Khalid Farooq for Respondents.

Date of hearing: 18th January, 1986.

The two appeals captioned above arise from the decision, dated 20‑1‑1985 recorded by the learned Presiding Officer, Punjab Labour Court No. 1, Lahore directing the re‑instatement of Asghar Ali (hereinafter to be called as the respondent) without back benefits. P.R.T.B. (hereinafter to be described as the appellant) has in its appeal challenged the direction of re‑instatement of the respondent, whereas the latter 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 allegation against the respondent was that he had realised bus fare from 14 passengers who had boarded the bus from Raiwind and were bound for Kot Radha Kishan, but did not issue tickets and thus had misappropriated the amount. Three of the passengers gave statements at the spot record of which is Exh. R‑5: In TT‑40 it is mentioned that the respondent had been confronted with the passengers. The learned lower Court has found that the examination of the passengers during the inquiry was necessary. This observation is wrong. Passengers not being under the control of the P.R.T.B. cannot be compelled to appear before the Inquiry Officer. It has been remarked by the learned lower Court that the statements of the passengers were not proved. This is wrong. Muhammad Latif, checker, clearly stated in answer to the questions put by the Inquiry Officer that at the spot he had recorded the statements of the passengers and that they, had been produced. This was enough. It too has been wrongly observed that in the Court the misconduct was not established. In the Court it is to be shown that during the inquiry the offence had been brought home to the worker concerned. However, the order of re‑instatement is justified for the reason that the very charge‑sheet was given by an incompetent authority. Works Manager is not competent. The District Manager was competent to decide if action should be taken.

3. The other defect is that the respondent applied to the Inquiry Officer and then to the District Manager for permission to engage counsel but no reply was given. In the absence of any reply the respondent was justified in not joining the inquiry. The District Manager instead of imposing penalty should have ordered fresh inquiry after accepting or rejecting the prayer of the respondent for engaging a counsel.

4. So far as back benefits are concerned, they were rightly disallowed as the respondent did not assert before the learned lower Court that he had, since the date of order of dismissal, remained jobless. Back benefits are allowed to compensate the worker for not earning livelihood due to the illegal order of termination. So if he has earned anything, he has to disclose the same so that it could be deducted from the back benefits. The other reason for not allowing back benefits is that there was a technical defect that the charge‑sheet was given by an incompetent authority.

5. As a result, both the appeals fail and are consequently dismissed.

A .E.

Appeals dismissed

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