DECISION These two appeals are directed against a single order of the learned Sindh Labour Court No, 1, Karachi, dated 10-12-1988, whereby the grievance petition under section 25-A of 1969, filed by one Fareed Khan (hereinafter referred to as `Workman') against his employer K.T.C. (hereinafter referred to as 'Employer') was allowed and the workman was ordered to be reinstated without back benefits. The Employers have filed Appeal No, KAR-03 of 1989, against the order of reinstatement of workman whereas Fareed Khan, workman, has filed Appeal No, KAR-11 of 1989, challenging the order of Labour Court declining him back benefits.
2. I have heard Mr. Gul Mohammad Soomro, representative for the employer and Mr. Yousuf Khan, representative for the workman and have also gone through the record and proceedings of the case.
3. Admittedly the persons from whom the conductor is alleged to have obtained the fare, but did not issue tickets were not examined before the Enquiry Officer or before the learned Labour Court.
Their statements were not recorded even by the Checking Party. It is alleged that the conductor was confronted with these eight persons and thereafter he issued 8 tickets to them which were recovered by the Checking Party and subsequently produced before the learned Labour Court as Ex. A.W. 1/3 to Ex. A.W. 1/10. The conductor, in his grievance petition, has averred that he was not confronted with any of the passengers and that he issued tickets to them under duress at the instance of Checking Party. In his affidavit-in-evidence he has submitted that his application under section 25-A, I.R.C., 1969, be taken part of affidavit. It may be pointed out that in his cross- examination his contention that he was not confronted with passengers or that the tickets had been issued under duress has not been challenged. This Tribunal has consistently been holding in a number of cases, that without examination of ticketless passengers either before the Enquiry Officer or before the Labour Court such charge cannot be said to have been proved.
4. Mr. Gul Mohammad Soomro, representative for the employer, has relied upon the decision of Punjab Labour Appellate Tribunal reported in 1988 PLC 279 wherein the learned Labour Appellate Tribunal set aside the order of reinstatement of conductor where it was proved from T.T. 40 that he was confronted with ticketless passengers. In the case reported in 1988 PLC 579 the same learned Labour Appellate Tribunal had observed that in the absence of statements of ticketless passengers the charge cannot be said to be proved. However, if the conductor when confronted with the ticketless passengers at the time of checking has failed to satisfy that passengers had falsely implicated him the charge was held to have been proved. I have already pointed out that averment of the conductor on oath, that he was not confronted with the ticketless passengers does not stand rebutted or challenged in the cross-examination.
5. In 1980 PLC 838 this Tribunal had held that where none of the ticketless passengers was examined in the domestic enquiry conclusion drawn in enquiry that fare was charged was wrong.
The evidence on record does not show that cash was checked or the number of tickets lying with the conductor at the relevant time was also checked to show that 8 tickets were not issued though the amount in the cash showed that fare had been recovered. In the absence of such additional evidence, I do not find any reason to deviate from consistent view of this Tribunal that in absence of the statements of ticketless travellers either before the Enquiry Officer or the Labour Court and in absence of statements of such passengers by the 'Checking Party in presence of the conductor the charge against conductor for not issuing tickets after realising fare cannot be said to have been proved.
6. Under the circumstances I find no reason to set aside the order of reinstatement passed by the learned Labour Court. I, accordingly, dismiss Appeal No, 03 of 1989, filed by the employer.
7. The provisions of I.R.O., 1969, do not specifically provide for awarding back benefits in the case of reinstatement. Each case has to be judged on its merits. Where evidence on record shows that order of dismissal is mala fide or that employee has remained un-employed during the period in question the Labour Court or Tribunal may award full or part back benefits. However in the instant case, there is no allegation of mala fides nor there is any such proof. The conductor has been reinstated more or less on technical grounds because of non-examination of ticketless travellers.
The contention of Mr. Gul Mohammad Soomro, learned counsel for the employer, that such passengers do not come before the Enquiry Officer, as it will entail waste of their time and would cause trouble to them, has got some force. There is no evidence on record to show that during the intervening period the employee was without any other gainful employment. Under the circumstances I dismiss his Appeal No, KAR-11 of 1989 also.