' The above captioned appeal calls in question the correctness of the decision, dated 27th February, 1982 passed by the learned Presiding Officer, Punjab Labour Court No, 6, Rawalpindi, whereby the grievance petition of the appellant for his re-instatement in service was dismissed.
2. The allegation against the appellant was that he had received Rs, 300 as illegal gratification from one Hameed Afridi for obtaining for him a boarding card. The tainted money was recovered from him. However, there is no evidence that he had received the tainted money from Hameed Afridi as illegal gratification, inasmuch as the complainant who is alleged to have paid the amount was not examined and no other witness testified to this effect. The case of the appellant was that the tainted money was recovered from him but one Mr. Gill had delivered the money saying that he would soon receive the money back. More recovery of the tainted money is no proof of the fact that it was received by the appellant as illegal gratification. Even if it be presumed although there is no ground for it that Hameed Afridi had delivered the money to the appellant, this is not known what had been said by Mr. Afridi to the appellant while passing on the money to him. If the money was delivered by M. Afridi, to some\one else and the latter delivered the money to the appellant this is not known what talk had taken place between the two at the time of the delivery of money.
Reliance was placed by the learned lower Court on confessional statement Exh. R-1 but it was 'quite unsafe to do so. Exh. R-1 is a retracted admission and according to the appellant it was taken from him under threat of harm. Mr. M. Sabir (P. W.-1) was present at the time the complainant Hameed Afridi delivered the tained money but he did not accompany the complainant to the appellant to the counter and he did not say so. He rather said that the complainant came back and said that the accused had accepted the money. So in the absence of the complainant's the evidence of P.
W. 1 before the enquiry officer was merely hearsay. No statement of the complainant was recorded at the time he said that he had delivered the tainted money to the appellant. If his statement had been recorded and proved in the enquiry. Then there could be some scope to say that evidence of the delivery of the money was present on the record. The learned trial Judge has not properly gone through the enquiry proceedings and the documents. He says that Exh. P-1 statement of the appellant was recorded by the Enquiry Officer. This is wrong. It was recorded by Mr. Noor-ul-Ghani on the day on which the tainted money was recovered i. e. 18th June, 1979, whereas the enquiry had been held on 3r&September, 1979 and the Enquiry Officer was Mr. Altaf Zia. The appellant did not admit the receipt of the tainted money from Hamid Afridi, complainant, in his statement recorded by the Enquiry Officer. The learned lower Court wrongly says that as there was sufficient evidence, therefore, recording of the complainant's statement was not necessary. As a matter of fact the complainant was the only witness of the delivery of the tainted money to the appellant as illegal gratification. So the receipt of illegal gratification was not proved against the appellant and he was thus wrongly dismissed.
3. As upshot of the observations made above, I accept the appeal and setting aside the order of dismissal and the impugned decision of the learned lower Court, direct the re-instatement of the appellant in service. However, as the appellant has not shown that he was not gainfully employed any where else after his dismissal, he is not entitled to back benefits. In this respect reliance may be placed upon PLD 1970 SC 415 and PLD 1973 SC 589.