The two appeals captioned above arise from the decision, dated 4-12-1984 recorded by the learned Presiding Officer, Punjab Labour Court No.2, Lahore, whereby Pervez Akhtar (hereinafter to be called as "the respondent") has been directed to be re-instated in service without back benefits.
The P.U.T.C. (hereinafter to be described as "the appellant") has challenged the direction of re- instatement of the respondent, whereas the respondent has in his appeal claimed back benefits.
As the two appeals arise from the same impugned decision, they are being disposed of together through this single judgment.
2. The bus conducted by the respondent was checked on 5-8-1981. One without ticket lady passenger is alleged to be delighting from the bus at the time of checking who had paid the fare to the respondent. When cash was checked Rs.30.15 were found in excess. The presence of excessive cash is admitted by the respondent but his plea was that for purchasing medicines he had brought his private cash. It has been argued that the presumption is that the cash was the bus fare recovered by the respondent and embezzled by him by not issuing tickets to the passengers including the lady passenger who was checked while coming down from the bus. The presence of excessive cash does not raise any, presumption that it was the embezzled amount. If, however, by independent evidence the embezzlement is proved, the presence of excessive cash may corroborate the evidence of embezzlement but this kind of evidence alone is not sufficient. The recovery of fare from the without ticket lady was not proved. No statement of the said lady was recorded at the time of checking. If in reality she had stated that she had paid the bus fare, there was no hindrance in taking down what she had stated. It is generally argued that the passengers are not willing to get their statements recorded. This argument is without force. If a passenger is not willing to get his statement recorded, bus fare can be recovered from him as he has been found Ticketless. If this is done, in order to save from paying double fare, he would become prepared to sign his statement. I have observed time and again that since the checker is not present at the time fare is alleged to have been recovered by the conductor, the evidence of the checker is hearsay and thus has no value. TT-40 does not show that the respondent was confronted with the without ticket lady passenger.
3. The respondent was guilty of violating the rules by keeping in his possession cash in excess of the amount allowed by the rules, but such an -offence not amounting to misconduct, does not call for the imposition of the punishment of dismissal. So the learned lower Court rightly directed the reinstatement of the respondent in service,
4. The respondent was wrongly disallowed back benefits. He had stated before the learned lower Court that since the time of his dismissal from service, he was jobless. Since he was jobless, he was available to serve the appellant but was prevented by the illegal order of dismissal, so he is entitled to back benefits.
5. As a result, the appeal of the appellant is dismissed, but accepting the appeal of the respondent, the latter is allowed full back benefits.