DECISION This is an appeal against an award dated 30th April 1970, whereby the learned Labour Court on an application under section 31 of the Industrial Disputes Ordinance, 1959 (hereinafter called the repealed Ordinance), came to the conclusion that the enquiry was unfair and not impartial and on that ground set aside the order dismissing the respondent from service and ' ordered his re- instatement with full back benefits. The facts giving rise to the appeal briefly put are these.
2. The respondent, Abdul Ghafoor, who was a Conductor in the service of Government Transport, Sukkur, was found on 22nd December 1965, on his bus being checked twice on the same day, once at about 9-10 a.m. and later on at 12-30 p.m., that he had failed to issue tickets to 13 persons, though he had realized fare from them and on the second occasion when -his bus was checked, it was, found that he had realized fare from 46 persons, but had not issued tickets to them. He was charge-sheeted separately for the two misconducts and Muhammad Murad Shaikh was appointed Enquiry Officer. Though he held the enquiry separately, but submitted one report in respect of both the charges and found the respondent guilty of misconduct that he was charged with. The District Manager agreed with the finding of the Enquiry Officer and dismissed the respondent on 11th May 1966. There after, the respondent filed an appeal to the Traffic Manager, Lahore, through the Assistant Traffic Manager, Khairpur. In spite of a reminder to the Department concerned, he did not get any reply to the appeal that he had filed. The respondent, therefore, was constrained to make an application before the Labour Court on 15th September 1967, under section 31 of the repealed Ordinance.
3. The learned Court, after recording the statement of the witnesses that the parties produced before it, came to the conclusion on a number of grounds that the enquiry was not proper. I may briefly summarise his reasons for the conclusion that he had arrived at:
(1) The Enquiry Officer had recorded the statement of one Bahadur Shah in the absence of the respondent. There was no explanation before the learned Court as to why the Enquiry officer recorded the statement of Bahadur Shah behind the back of the respondent.
(2) The statement of the respondent, after his bus was checked at 12-30 p.m., was recorded on a separate piece of paper. The Department failed to produce that paper.
(3) The rules of the Department require that the statement of the accused person should be taken on T.T.40 Form. When the bus of the respondent was checked at 12-30 p.m., admittedly the Checking Party did not have T. T.40 Form. The absence of the statement of the respondent, at the time when the bus was checked, on T.T.40 Form had prejudiced the respondent.
(4) Mr. Muhammad Murad Shaikh, before the Court stated that the respondent .had not produced any defence witnesses. The Court, after perusing the Enquiry Report, came to the conclusion that the respondent had produced defence witnesses. The Court came to the conclusion from this circumstance' that the Enquiry Officer was not a reliable person.
4. I have heard the learned Representatives of the parties and come to the conclusion that the conclusion of the learned Court is well-founded that the enquiry was not proper and Impartial. The question, however, is as to what order should the Court have passed on the conclusion that it had' arrived at. When the order of dismissal is set aside on the ground that the Domestic Enquiry was bad and a party is ordered to be re-instated it does not deprive the, Department from holding a fresh enquiry. If a fresh enquiry is held and the party concerned is found to be guilty of misconduct, he will not be entitled to any back benefits. On the other hand, if he is held to be no guilty of misconduct, he will be entitled to back benefits from the date that he had been dismissed from service up to the date' that he is re-instated. In other words, the Court should have ordered the respondent to be re-instated and awarded him back benefits, subject to the result of the enquiry to be held by the Department within a reasonable time, if they so desired.
The Court may have allowed them some tune to hold an enquiry if the enquiry was not held within that time, the respondent should have been taken to have been exonerated and would have been entitled to full back benefits.
5. In the present case, Mr. Wasiullah Qureshi, the learned Representative for the respondent, contended that there are a number of difficulties in holding a fresh enquiry. He submitted, yin the first place, that almost 5 years have now elapsed since the incident took place and it will be very difficult for both the parties to get the witnesses to substantiate the claim -of either party. In this connection, it was also submitted that this is not a usual case in which the Department had carried out the instructions, while checking the bus of the respondent. The Department did not take down the statement of the respondent on T.T.40 Form, as required by the rules on both the occasions when the bus of the respondent .was checked. This is true. In the second place, it was also pointed out that to hold an enquiry after 5 years would encourage the parties to fabricate evidence. It has also been pointed out that the first charge-sheet in respect of the, allegation that the respondent had realized fare from 13 persons and not issued tickets to them, does not so mention. I have gone through the first charge-sheet. It does not disclose that the respondent had realized fare from 13 persons and had not issued tickets to them. All that it mentions is that the respondent had refused to produce R.P.T. B. It was submitted, in this connection, that the absence of disclosure in the charge-sheet that the respondent had realized fare from 13 persons would encourage the Department now to fabricate evidence in 'his respect. It rr--y lead the Department to fabricate evidence ii, this respect or not, the fact remains that the charge-sheet does not disclose the main offence. Similarly, there is a material discrepancy in the second charge-sheet. In the charge-sheet, 7 passengers are shown to be travelling from Sadhuja to Moro, while in the report of the Checker; they are shown to be travelling from Naushero Feroze to Moro. The admitted position is that Naushero Feroze is about 7 or 8 miles from Sadhuja. In these circumstances, the question is whether it would be conducive to justice to permit the Depart--ment to hold a fresh enquiry.
Considering the fact that about 5 years have elapsed and also the circumstances that I have already mentioned, I do not think that it will be proper to permit the Department to hold a fresh enquiry against the respondent. The question that now remains to decide is as to 01 whether the respondent is allowed full back benefits, which would have depended upon the result of the enquiry. In. the circumstances of this case, when I am depriving the Department to hold a fresh enquiry, I consider that it will not be fair to burden the Department with full back benefits. The interest of justice would be met if the Department is ordered to pay back benefits from 1st May 1970 to the date the respondent was re-instated in service. The award is dated 30th April 1970, when the Court ordered the re-instatement of the respondent. In the result, the order of the Court is modified to this extent only that the respondent would be entitled to back benefits from 1st May 1970 to the date that he had been re-instated. This order will, however, not affect his right to seniority, which he can claim from the date that he was dismissed from service. The respondent will be entitled to all the monetary benefits from 1st May WO to the date that he has been re-instated.