1977 PLP 392 (PLC)

(2) A soon as the Deputy Traffic Manager, asked the petitioner for the cause of the early arrival of the bus at Sahiwal, the latter became indignant and insolent before his superior Officer. (3) The Deputy Traffic Manager directed the booking clerk at Sahiwal to arrange the petitioner's bus to leave Sahiwal immediately to avoid road congestion. On hearing this the petitioner became flared up and deliberately rendered his bus out of order and removing the passengers from the bus parked it in the yard which resulted in the inconvenience of the passengers, and it could be considered a foul act of the petitioner. I have given almost the literal translation of the relevant portion of the charge-sheet and the summary of the charges given therein is reproducer) as follows, in reference to the petitioner. (1) You contravened the rules of the Department. (2) At a business place during hours of work you misbehaved with a superior Officer. (3) You disobeyed a lawful order of your Officer. (4) You deliberately rendered your bus out of order and thus put the Department to a loss. The charge-sheet was served on the petitioner under section 7(21(a)(c)(g) and (b) of the load Transport Workers Ordinance, 1961 reproduced under section 15, subsection (G) (H) (a) (c). The relevant clauses of subsection (2) read follows :-

2. The following acts and ommissions shall be treated as misconduct- (a) Wilful insubordination or disobedience, whether alone or in com bination with others, to any lawful and reasonable order of a superior. (c) Wilful damage to or loss of employer's goods or property. (g) Habitual breach of any law applicable to establishment. (h) Riotous or disorderly behaviour during working hours at the establishment or any subservice of discipline. It is clear from the contents of the charge-sheet that an undefined and', unexplained misbehaviour on the part of petitioner can scarcely be covered by the clause (h) given above which relates to misconduct of riotous or disorderly behaviour. The word 'insolence' or 'misbehaviour' occurring in the charge-sheet without any reference to the actual words spoken by the petitioner could not be taken for granted as established this behaviour and punishable misconduct on the part of the petitioner. A misbehaviour alleged against a worker by his superiors of the Management does not have the any legal presumption unless the alleged misbehaviour is clearly defined into precise words and action taken by the worker not to speak of a behaviour as being riotous or disorderly which is only punishable under clause (h) of subsection (2). It is also necessary for the, clause that said riotous or disorderly behaviour which apparently required the association of more than one person was further required to have been committed during working hours at the establishment. An intermediary bus stand on a long. route just a bus stand at Sahiwal could hardly be taken as an establishment; as defined by section 2(f ) of the Industrial Relations Ordinance, 1969, herein after mentioned as the Ordinance read with the definition given in section 2(11) of the Payment of Wages Act, 1936. It is only the disorderly and riotous behaviour of a number of workers or by a worker responsible for a riot or disorderly behaviour during the working hours at the headquarters or sub-headquarters of the establishment which has been made punishable in this clause. There is nothing in the charge-sheet making the petitioner liable for habitual breach of any law applicable to the establishment nor any such allegation was made against the petitioner at any stage of the case including the evidence stage. In such circumstances the clauses (g) and (h) of sub section (3) could not at all be made a subject of the charge against the petitioner. What is to be seen is whether the misconduct covered by clauses (a) and (c) of subsection (3) could be attributed to the petitioner according to the evidence on record. Any wilful insubordination or disobedience must have related to some definite action of the petitioner at the bus stand at Sahiwal. What is alleged against him is that he contravened the departmental stand ing instructions to take bus at a prohibited speed and reached Sahiwal at 10-20 a. m. whereas the scheduled arrival of his bus was at 10-45 a.m. The fact has not been controverted on behalf of the respondent-Management that a Register "A" prescribed under the West Pakistan Road Transport Workers Rules, 1962 is maintained by the Road Transport Management and it is signed at the relevant place by the drivers and the conductors at the starting point of the buses at the headquarters to show the times of departure. But no such register or any relevant extract thereof was placed in evidence on behalf of the Management to show the time as to when the bus of the petitioner started from Multan on 28th February 1971. It was admitted that there is a travelling duty book prescribed under the same rules and that Way Bills are issued to the drivers giving time of the departure of the buses and other particulars. Neither, of such record was produced in evidence to fix up the responsibility of the petitioner regarding his arrival at Sahiwal earlier than the scheduled time. The mere statement of booking clerk, Sahiwal (R. W. 2) regarding the early arrival of the petitioner with his bus at Sahiwal, on 28th February 1971 in accordance with the register maintained at the bus stand at Sahiwal could not claim an absolute value as to the correctness of the enteries made therein when admittedly the entries as to the scheduled arrivals were made before hand in the register without consulting the relevant duties way Bills or the travelling duties book in this behalf. It is an admitted fact that these important documents were not at all looked into in the domestic enquiry despite the same being the only relevant document to be regarded as the proof of the alleged dereliction of duty on the part of the petitioner. So the petitioner was clearly prejudiced in his defence in the departmental enquiry while holding him guilty in this connection without consulting the relevant record which could then be readily available to the Management. As to the second part of the alleged insubordination on the part of the petitioner that he did not comply with the order of the Deputy Traffic Manager to take his bus immediately onward from Sahiwal and deliberately rendering his bus unserviceable, there is nothing in the statements of the witnesses examined in the domestic enquiry to be read as evidence against him. According to the statement of the Deputy Traffic Manager who reported against the petitioner he was told by the latter that his bus had gone out of order. He did not at all state anywhere in his statement in the domestic enquiry that the bus was deliberately rendered out of order by the petitioner. The second witness examined in the enquiry by the prosecution is Mr. Iqbal Akhtar incharge Sub-office Sahiwal. He clearly stated that the petitioner on his arrival at-Sahiwal had passed his bus at the bridge outside the bus stand. On being asked by the Deputy Traffic Manager as to why he had done so, the petitioner had replied that his bus had become pushs-tarted (dhikka start) and therefore the bus was stationed by him out of the bus stand. This witness too did not state that the petitioner deliberately did anything with the bus to make it out of order. It is to be noted that the petitioner can hold responsible by the enquiry officer for intentionally rendering the bus servicele3s without any such statement against him on the record before him. This factor further prejudices the petitioner in his defence. But the matter does not rest here. According to the case of the petitioner the bus driven by him on date 28th February 1971 had gone out of order in normal course and the repair charges incurred by him were duly recovered by him from the respondent-Management on the basis of a receipt showing the payment of charges to the mechanic concerned and that despite his written request to the enquiry officer to call for the said receipt from the office concerned to be placed as evidence of the enquiry, no action was taken. The original application dated 12th March 1971 submitted by the petitioner in this behalf to the enquiry Officer is Exh. P-5 and forms part of the enquiry proceedings. But the relevant receipt was not placed in evidence nor there is any evidence to the effect that the said receipt was not genuine or the payment of repair charges was not made by the Management by virtue of that receipt. The upshot of the whole discussion is that the contents of the charge s-sheet and the evidence recorded in the domestic enquiry did not make out any accusation worthy of being termed as wilful insubordination or disobe dience or any wilful damage to or loss of the Management's property nor the petitioner was actually charged for habitual breach of law. Besides the charge of riotous or disorderly behaviour also not having been spelt out against him in the very charge-sheet or in the evidence put against him. What survives against the petitioner according to the evidence in the domestic enquiry is the allegation of undefined misbehaviour or insubordination spoken of him in general. This behaviour of the petitioner was put in more definite words by Mr. Amin-ud-Din Deputy Traffic Manager himself only in his statement before this Court recorded on 26th April 1975. He stated that tae admonished the petitioner to realize his mistake of bringing his bus before time at Sahiwal and the petitioner had told him that "Jokerca kar to". No doubt any such rude talk to his superior Officer is quite undesireable and could be made actionable only for a minor penalty and not for major penalty of dismissal. Since a considerable period of over four years has elapsed since the dismissal of the petitioner, it would not be worth while to direct a fresh enquiry on a charge of a minor penalty which cannot be considered is awarding the back benefits to the petitioner. Under the circumstance discussed above the petition is accepted and the petitioner directed to be re-instated in service within period of 15 days with half of the back benefits to which he would have been entitled but for the order of his dismissal. The file may be consigned. Petition accepted.