DECISION This is roan appeal against an award dated 18th. June 1974, whereby the learned Court accepted the application of the respondent under section 38 of the West Pakistan Industrial Disputes Ordinance, 1968 (hereinafter. called the repealed, Ordinance). The facts giving rise to the appeal briefly put are these.
2. The, bus of the respondent-Conductor, Nisar Ahmad, was checked on 19th February 1969, at about. 6 p.m. It was found that 15 passengers were without tickets at the time of checking. The respondent was charge-sheeted for miscon--duct under section 7 of the Road Transport Workers Ordi--nance, 1961. The Enquiry Officer found that the respondent was guilty of misconduct. The report was accepted by the ' 13lstrro Manager and he dismissed the respondent.
3. The learned Labour Court on two-fold grounds came to the conclusion that there was a violation of section 37 the repealed Ordinance. He came to the conclusion, in the first place, that the charge- sheet being only for neglect of duty, the respondent could not be dismissed for misconduct. In the second place, on the merit of the case also he, came to A the conclusion that the finding of the Enquiry Officer, on the evidence adduced before him, was perverse. On these two grounds, the learned Court held that there was a violation of section 37 of the repealed Ordinance and ordered the re instatement of the respondent with retrospective effect. Mr. Azmat--ullah Khan, who appeared for the appellant, concerned in the first place that the charge-sheet in fact was for misconduct and not only for neglect of duty. I have gone through the charge-sheet, Exh. R-2. A perusal of the same would disclose that the charge-sheet, in fact, seas for misconduct and not for neglect of duty. Mr. Amanullah Qureshi, the learned Representative for the respondent concedes that tie charge-sheet was for misconduct.
4. In the second place, Mr. Azmatullah Khan submitted that, there was no violation of section 37 of the repealed Ordinance, inasmuch as, there was no violation of the principle of natural justice. The -respondent was given fill opportunity by the Enquiry Officer to defend himself. There is not much force in this contention. Whether there was any violation of section 37 of the repealed Ordinance or not, it would depend on the question as to whether the respondent had committed any misconduct or not. The learned Court, for good reasons, which I would presently mention, came to the conclusion that the finding of the Enquiry Officer was perverse. The admitted position is that the respondent had not issued tickets to 15 persons, who were in the bus, but at the same time had not realized any fare from them. Mr. Abdul Shakoor, who appeared for the Department before the Enquiry Officer, admitted that when the bus was checked the conductor was issuing tickets to the passengers. Not only this, Mr. Abdul Shakoor also admit--ted that the passengers also stated that the Conductor was issuing tickets to them at the time when the bus was checked. The Conductor stated that he had not stopped the bus for the purpose of issuing tickets to the passengers is the interest of the Department. There is no doubt that he was ill advised in not carrying out the order of the Department, i e. to stop the bus and issue tickets. This omission; on the part of the Conductor, would, however, amount to neglect in duty. It cannot amount to misconduct. On the charge of neglect of duty, the Conductor could not be dismissed under the Road Transport Workers Ordinance, 1961, from service.
5. The question that remains for consideration is as to whether the respondent would be entitled to back benefits or not, in the circumstances of the present case. On the facts found, the respondent cannot be said to be not guilty in performance of his duties. He should have known that the Department is very strict in compliance of the rule regarding issue of tickets. The instructions required that the Conductor should not start the bus unless he has issued tickets to the boarding passengers. If he had carried out the departmental instructions, he would have never been charge-sheeted. In these circumstances, I would modify the order of the learned Court to this extent that though the respondent is re-instated, he will be not entitled to any back benefits.