1990 PLP 145 (PLC)

Khalil‑ur‑Rehman, Representative for Appellant. Gul Muhammad Soomro; Representative for Respondents. Date of hearing: 16th August, 1989. This is an appeal against the order of learned Sindh Labour Court No. I, Karachi, dated 6‑12‑1988, whereby the grievance application filed by the appellant was dismissed.

2. The facts of the case, in brief, are that, the appellant was a conductor employed by the respondents. On 11‑6‑1986, when he was on duty on bus No. 866‑888, Checking Party, of the respondents checked the bus and found 8 passengers travelling without tickets. The appellant is alleged to have recovered Rs. 4 from one of the passengers without issuing ticket, while no fare was recovered from 7 passengers from whom fare was recovered by the Checking Party which was given to the appellant and 8 unpunched tickets were secured from him. T.T 40 was issued by the Checking Party which was signed by the appellant without submitting any explanation to the allegation in T.T.

40. The appellant was charge‑sheeted and after domestic enquiry he was dismissed from service vide order, dated 12‑8‑1987. Being aggrieved by this order he filed the grievance petition in the learned Labour Court which was dismissed by the impugned order.

3. I have heard Mr. Khalil‑ur‑Rehman, representative for the appellant and Mr. Gul Mohammad Soomro, representative for the respondents and have also gone through the record and proceedings of the case.

4. On going through the report of the Enquiry Officer which has been produced in the cross‑examination of the appellant as Ex. A.W. 1/17 it appears that the Enquiry Officer has neither understood the charge against the appellant nor he has applied his mind fully to the facts of case while recording his opinion. As would be clear from the facts narrated as above and from the charge‑sheet which has been produced as Ex. A.W. 1/10 the appellant is alleged to have charged fare from only one passenger amounting to Rs.4 while he did not charge fare from other ticketless passengers. He, therefore, will be deemed to have committed defalcation or fraud with respect to Rs: 4 only. However the very first para of Enquiry Report shows that in the opinion of the Enquiry Officer the appellant had realised fare of Rs.4 from each of 8 passengers and committed fraud of Rs. 32 for which he was charge‑sheeted. He has held that the charge stood proved against the appellant.

5. There can be no doubt that the Enquiry Officer appears to have mis read the charge‑sheet against the appellant which clearly shows that he had realised fare from one passenger whereas the Enquiry Officer held the charges against him were proved to the effect that he had realised fare of Rs.4 each from 8 passengers without issuing tickets. It clearly shows that the Enquiry Officer had not applied his mind properly to the facts of the case. Furthermore, I find that three officers were amongst Checking Party out of whom only one; Inspector Raqqab Gul was examined and cross‑examined whereas the remaining two were not examined but instead appellant was examined who stated that he died not want to cross‑examine the other two witnesses. From the report of Enquiry Officer it appears that from this refusal of the appellant in his examination to cross- examine remaining two witnesses the Enquiry. Officer presumed that those two witnesses would also support the one witness examined, and therefore did not consider it necessary to examine them. It is not incumbent for the prosecution to examine all the witnesses before the Enquiry. Officer, but when the evidence of one witness examined was challenged in the cross‑examination by the accused person who did not admit his guilt, the rule of prudence and fair trial required that at least one more witness be examined to corroborate the evidence of the sole witness examined by prosecution.

6. The Enquiry Officer appears to have conducted the enquiry in slip shod manner. and does not appear to have appreciated the facts of the case and did not apply his mind judicially while giving his report. The order of dismissal based on such report cannot be sustained.

7. No doubt the appellant also does not appear to come out with true add full facts and has been making contradictory, statements but that alone would not render him liable for punishment unless in the enquiry charges were proved against him in accordance with the principles of fair enquiry.

8. In view of the above discussion I set aside the impugned order of learned Labour Court and impugned order of dismissal of the appellant and order his reinstatement within one month but under the circumstances that order of dismissal has been set aside on technical ground back benefits are not awarded to him. H.B.T./1491/Lb. S Appeal allowed.