1986 PLP 828 (PLC)

‑‑Ss. 25‑A & 38(3)‑‑Re‑instatement‑‑Back benefits‑‑Bus Conductor dismissed from service on charge of fraud for realisation of fare without issuance of tickets‑‑Realisation of fare not proved in enquiry‑‑Labour Court awarding re‑instatement with back benefits‑‑Plea that back benefits would unnecessarily burden employer was accepted by Appellate Tribunal in circumstances. Gul Muhammad Soomro for Appellant. Date of hearing: 19th January, 1986. Fateh Ali Khan, the Conductor filed an application under section 25‑A, I.R.O., 1969, for re‑instatement with back benefits. The facts which give rise to the present appeal are that on 21‑7‑1983, a report was made against the respondent who was employed as a Conductor with the Corporation, that he had not issued tickets to 18 passengers travelling in Bus No.839‑

991. Therefore, he was charge‑sheeted and this was followed by domestic enquiry in which the respondent was subsequently, dismissed. The respondent pleaded that he is innocent.

2. That the stand taken by the Corporation in the reply statement is that on 21‑7‑1983, while on duty the Conductor did not issue tickets to 18 passengers. He was charge‑sheeted. No satisfactory reply was given by him. The Corporation also stated that non‑issuance of ticket to passengers was a fraud which was proved during the domestic enquiry, therefore, his dismissal was valid.

3. The learned Labour Court framed an issue whether the impugned dismissal was illegal or invalid.

4. The allegation against the Conductor was that 18 passengers were found to be travelling without tickets from Madina Colony and Sindhi Hotel to Gulshan More and Muslimabad and the Conductor had realized fare from them at the rate of paisas 0‑50 from each of the passengers. A checking party consisting of the Muhammad Aslam, Zahiruddin and Muhammad Akhtar Mehdi raided the bus and 18 un‑punched tickets were obtained from the Conductor:, Thereafter, the checking party filled up the T. T. 40 report and a copy of which was also supplied to the Conductor. The Conductor denied the allegations. A domestic enquiry was ‑conducted and during the enquiry, only the statement of Inspector Ali Akbar was recorded, although Ali Akbar was neither a member of the checking party nor he was an eye‑witness to the alleged payment of fare by the ticketless passengers. Therefore, " his statement before the domestic enquiry regarding factum of recovery of fare was merely hearsay. On the other hand, the Conductor haul adopted his statement before the Enquiry Officer which he gave at the time of filling up T.T. 40 report by the checking party, and his statement was not challenged by the Corporation in the cross‑examination. Likewise, the corporation's witness, namely, Muhammad Sadiq had admitted in cross‑examination from the record that it could not be ascertained whether the checking party had checked the cash of the Conductor at the relevant time or the statements of ticketless passengers were recorded at the time of preparation of T.T. 40 report or before the domestic enquiry.

5. In these circumstances, no reliance can be placed on the statement of Inspector Ali Akbar which is merely hearsay. In an identical case, reported in the case of Punjab Road Transport Board v. Mahmoodul Hassan 1985 P L C 813, it was held by the learned Punjab Labour Appellate Tribunal that in order to prove the charge it is essential that at least the statements of the passengers concerned should be recorded at the time of checking and the statements made by the passengers in the presence of the Conductor may be produced before the enquiry officer, if the passengers for their convenience cannot be produced in the enquiry in person. Overall the enquiry was not believed to be valid by the Labour Court. I find no reason to interefere with the impugned order of the learned Labour Court. However, I would maintain the re‑instatement of the respondent Conductor but would not allow the back benefits.

6. The learned representative of the appellant Corporation has conceded to the order of re‑instatement but he prayed that the back benefits may not be given as it would unnecessarily burdened the Corporation. I accept this plea of the appellant Corporation.

7. In view of the above discussion, the appeal is dismissed in limine. A.E.???????????????????????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.