' The appeal captioned above emerges from the decision dated 4-5-1988 recorded by the learned Presiding Officer, Punjab Labour Court No, 6, Rawalpindi, whereby accepting the grievance petition of the respondent he has been directed to be reinstated in service with back benefits.
2. There were two allegations made against the respondent in the charge-sheet, copy of which is Exh. P-2. Charge No, 1 was that in November, 1979 Zulqarnain was employed at Gilgit and was absent from 21-10-1979 to the date of the charge-sheet but the respondent drew his pay. The second charge was that although Mr. Zulqarnain was employed at Gilgit, yet the respondent marked him present at Rawalpindi from 17-11-1979 to 14-1-1980. After the service of the charge- sheet, getting reply to the charge-sheet and holding an inquiry, the respondent was dismissed from service vide order dated 12-11-1980, copy of which is Exh. P-4. The respondent served the grievance notice on 26-9-1983 and within two and a half months of the service of the same brought the grievance petition. The respondent is alleged to have brought the departmental appeal, copy of which is Exh. P-6 and the same is alleged to have been rejected vide order Exh. P-7 dated 30-6-1983. On behalf of the appellant objections were raised in the written statement that no grievance notice was served and that neither there was any provision of appeal nor actually any departmental appeal was preferred by the respondent nor it was ever decided. Regarding Exh.
P-6 and Exh. P-7 and grievance notice it was contended that they were never received and were forged documents. Booklet marked and produced by the respondent but since the witnesses examined by the appellant did not own the same, they could not be exhibited in evidence. This is also the case of the appellant that the appeal made to the General Manager was incompetent; that even according to the rules marked 'A' alleged to be of the appellant, the departmental appeal lay to the Chairman. On this ground it has been argued by the learned counsel for the appellant that the grievance arose to the respondent on 12-11-1980 when he was, vide order copy of which is Exh. P-4, dismissed from service and thus the grievance notice and the grievance petition are time-barred.
3. So far as rules marked 'A' are concerned, since they are not statutory rules and no notification was issued in respect of them, the respondent was not in a position to produce any other documentary evidence to prove that the said rules actually belong to the appellant. In his statement he said that they were the rules of the appellant. Learned counsel for the appellant was inquired during arguments that if rules marked 'A' are not the rules of the appellant then what are their rules but he replied that there were no rules of the appellant. This is not believable. It would be idle to think that the appellant came into existence and is running without any rules. If some other rules had been produced by the appellant, there would have been force in the contention that Rules marked 'A' were not the rules applicable to the employees of the appellant. This is idle to say that the booklet marked 'A' consisting of 51 pages and containing 116 rules and appendices Ito IV were got forged by the respondent. In the absence of any other rules, the learned lower Court was justified in holding that the rules marked 'A' belong to the appellant.
4. According to item 22 of Appendix I appearing at page 39 of the booklet marked 'A', the appeal against the decision of Manager lies to the General Manager. The impugned order was passed by the Deputy Manager. The Deputy Manager assists the Manager, therefore, if the Deputy Manager passes an order, the appeal would lie to the same authority who is competent to hear appeals from the orders and decisions passed by the Manager. Thus the appeal was rightly made to the General Manager. Exh. P-6 is the copy of the appeal and it bears the seal of the appellant. The seal reads, "PTDC Motels North Limited, Rawalpindi". The seal bears the signatures of someone. P.W. 2 Nisar Ahmad, Manager deposed that no appeal, copy of which is Exh. P.6, was ever submitted to him either by the respondent or by anybody else. Exh. P-6 shows that the appeal was addressed to the Deputy Managing Director/General Manager and not to the Manager. It was sent through Deputy Manager and not the Manager. None of the said persons was examined to say that they did not receive any appeal, copy of which is Exh. P-6. Since this was not the case of the respondent that the appeal was addressed to Nisar Ahmad, Manager, the statement of the said witness to the effect that he did not receive any appeal is not sufficient to controvert the statement of the respondent supported by copy of the appeal Exh. P-6 and copy of the order of rejection Exh. P-7. So far as Exh. P-7 is concerned, since the appeal was rejected in 1983. RW-2 could not come to know of it as admittedly he was not at that time working as Manager. He while under cross-examination had volunteered that in 1983 he was not in P.T.D.C. So his statement is not sufficient to falsify Exh. P-
7. RW-2 has also stated that Mr. Ehsan Qadir had no authority to write Exh. P-7. Exh. P.7 in reality is not the copy of the order rejecting the appeal but it is an information to the respondent that his appeal had been dismissed. Since RW-2 was not in P.T.D.C. In 1983 when intimation Exh. P-7 about the rejection of departmental appeal was sent to the respondent, his evidence that Mr. Ehsan Qadir had no authority to write this letter has no evidentiary value. This is not denied that Mr. Ehsan Qadir was the employee of the appellant. Apart from it, since the documents mentioned above were allowed to be admitted in evidence without any objection, thereafter no objection could be raised about their admissibility and mode of proof. If timely objection had been taken, the respondent may have examined the authors of Exh. P-7 and the persons who had received the copy of the appeal Exh. P-6. The dispatch register in which the original of appeal Exh. P-6 may have been entered was not produced to show that receipt of no document was entered in the said register.
The official or officer who signed the receipt appearing on Exh. P-6 also was not examined by the appellant to rebut the evidence that the departmental appeal was lodged, copy of which is Exh. P- 6.
5. So far as the grievance notice is concerned, its copy is Exh. P-8. It bears the signatures of Mrs. H.
Dar and the date given under the signatures is 26-9-1983. Mrs. H. Dar who had received the grievance notice was examined by the respondent as P.W. 2 and she supported the plea of the respondent. She, however, admitted that the notice was entered by her in the register on 26-10- 1983. She categorically repelled back the suggestion that the notice copy of which is Exh. P-8, was received by her on 20-10-1983. She further deposed that she had received it on 26-9-1983. If the employee of the appellant failed to enter the notice in the register soon after receiving it, the respondent was not responsible for it. Since P.W. 2 who is the employee of the appellant stated that she had received the notice on 26-9-1983, it cannot be held that it was received by her on 20-10- 1983 or thereafter. So the factum that the grievance notice was actually served by the respondent and that the same is within time, stands duly proved.
6. So far as merits of the case are concerned, the Inquiry Officer found that the charge that the respondent had drawn the pay of Mr. Zulqarnain for the month of November, 1979 was not proved.
He found the respondent guilty of the second charge but unfortunately there is no evidence in support of the said charge on the inquiry file. Mr. Zafarullah (P.W.) stated before the Inquiry Officer that the attendance register was being maintained by the respondent and Arif-urRehman and that Mr. Zulqarnain had been shown present on duty. It is not proved that in the attendance register Mr. Zulqarnain was marked present and if so by whom? Even if it be said that the said witness meant to say that Mr. Zulqarnain was marked pre-sent in the attendance register, since the said register was being maintained by two persons namely the respondent and Arif-urRehman, the question remains as to who had marked Mr. Zulqarnain as present in the register. He also did not give the period when Mr. Zulqarnain was marked present. The evidence which could prove the charge could be that the respondent was seen marking Zulqarnain as present in the attendance register during the time he was posted at Gilgit or that the attendance was marked by putting initials and that the initials were of the respondent. If the attendance register had been maintained only by the respondent, there could have been some scope to presume that he may have marked Zulqarnain as present but since the register was being maintained by two persons, it is doubtful who actually marked him present. Learned counsel for the appellant has not been able to point out any other evidence in which something may have been said on the point. So the Inquiry Officer wrongly returned the verdict that the charge of marking Zulqarnain as present in the register at Rawalpindi during the month of November, 1979 had been established. It has been further argued by the learned counsel for the appellant that the respondent had in his reply to the charge-sheet admitted that Mr. Zulqarnain had been marked present and pleaded that this was done since he had been transferred to Rawalpindi. I have gone through the said reply. No doubt, it is contained therein that the presence of Mr. Zulqarnain was recorded at Rawalpindi but the respondent did not say that it was he who had recorded his presence. As discussed above, the case of the appellant is that the attendance register was being maintained at Rawalpindi by two persons i,e, the respondent and Arif-ur-Rehman. If only the respondent had been maintaining the attendance register, of course his admission that Zulqarnain was marked present at Rawalpindi would have been sufficient to show that this was an admission of the guilt on his part. Unless he had admitted in clear terms that it was he who had marked Mr. Zulqarnain as present in the attendance register at Rawalpindi, it is not safe to say that it was an admission of the charge.
7. So far as back benefits are concerned, the respondent in his statement admitted that he had driven taxi for six months during the period he remained out of service. He did not say that he was employed as driver, nor there is any evidence that he knows driving. Only an expert driver can drive taxi. It, therefore, f E appears that the respondent was the owner of the taxi. Six months period was more than sufficient to earn by running a taxi more than what the respondent would have earned if he had not been removed from service. So he has been wrongly allowed back benefits.
8. As a result of the observations made above the appeal is partly accepted and modifying the impugned decision of the learned lower Court, back benefits I are disallowed to the respondent.