1976 PLP 236 (PLC)

This order will dispose of an application filed by Sarder Shah s/o Said Ali Shah, Van Porter v. The Divisional Supdt. P. W R. Lahore. The brief facts of the case are that the petitioner submitted his application under section 15(2) of the Payment of Wages Act, 1936 before this Court on 27‑7‑

73. On the pleadings of the parties following issues were framed: ‑ (1) Whether the application is maintainable under the Act. O. P. R.? (2) Whether the applicant is entitled to wages as claimed in the application. O. P. P. (3) Relief. The petitioner submitted that his wages are being unlawfully deducted at Rs. 20 per month for the last 14 months and is likely to continue for many months. He has further stated that he was issued a charge‑sheet Exh. R. W. I/I which is reproduced below: ‑ For neglect of duty and careless working as is evident from the fact while working 509‑UP on 5‑7‑70 ex‑Lahore to Lala Musa 50 crates booked under indent No. 334748 dated 23‑6‑70 Multan to Jhelum were trans‑shipped by you on the load from wagon No. 607002 in non‑water‑tight wagon No. 33179 with defective roof which resulted in damage to the tea for which a claim of Rs. 1672.58 has been paid by the Administration and you are held resp6nsible. The petitioner has stated that an explanation to the above charge‑sheet was furnished in consequence to which a sum of Rs. 800 was imposed as fine by the respondent Exh. R. W. 1/3, in appeal Exh R. W. 1/4 submitted by the petitioner against this fine, resulted in the decrease of fine from Rs. 800 to Rs. 400 Exh. R. W. 1/5. Fine of Rs. 800 was imposed on 14‑3‑

72. The respondent in his reply statement has submitted that the applicant had caused loss of Rs. 1672.52 to the Railway Administrator on account of petitioner's careless working and an action under the rules in force was taken against him. A charge‑sheet was issued his defence was considered and an account of Rs. 800 was debited against him which was recoverable in 40 instalments of Rs. 20 p.m. On appeal, the debit of Rs. 800 was reduced to Rs.

400. The respondent has further submitted that there was nothing illegal in the action taken under the Rules prevalent at the relevant time. The petitioner appearing as his own witness has stated that he is employed as a Van Sorter and his duty is to sort, load and unload from the Goods Trains at Lahore Hqrs. He was on duty on train No. 509 Up which left Lahore at 1‑55 a m. for Lala Musa. When the train reached Kamoke at 6‑05 a.m. it was raining. He opened wagon No. 60704 which was booked from Multan City containing 230 packets of tea for Gujrat, Jhelum, Gujar Khan and Dina. He loaded 57 packets in wagon No. 33719 which was already loaded at Karachi Bunder to Up Collected Road Van. He then booked 123 packets at Muridke and 12 at Kamoke. At Kamoke wagon No. 33719 was made available as empty by him. He again opened wagon No. 60705 containing tea at Kamoke. He trans‑shipped 74 packets for Gujrat in wagon No. 76136 and 57 in 33719 for Jhelum and 116 packets remained in the original wagon. At Kamoke he was relieved off his duty after sealing the wagon. The charge was given by him to the Guard and Watchman on duty. Wagon No. 33719 labelled for Jhelum with 57 packages when reached Jhelum, the S. M. cabled him at Lahore that the tea had been wetted by rain. The owner filed a claim of Rs. 1,

600. He was charge- sheeted on the charge that he used non‑water tight wagon No. 33719 in rainy season. He stated that the wagon was given clearance fit certificate by the Train Examiner. He asserted that no train is allowed to leave Lahore without the clearance certificate. He said that the sum of Rs. 400 has been illegally deducted. In the cross‑examination he confessed that he was issued charge‑sheet, and then punishment of debiting of Rs. 800 was imposed. This debit was reduced to Rs. 400 on an appeal. He said that a sum of Rs. 340 has up to this date been recovered. The remaining amount has not been recovered and the deductions stopped. He said that first recovery was made on appeal. He said that first recovery was made on 8‑4‑72 He stated that he does not remember the pay and mileage allowance at the time of the last recovery. The respondent produced one witness R. W. I. Mr. Mohd. Ashraf, produced the relevant documents, the charge‑sheet in from A as well as the documents debiting the amounts of Rs. 800 and Rs. 400 after consideration of appeal submitted by the petitioner. According to section 7 (2) (e) of the Payment of Wages Act, 1936, deduction for damage to or loss of goods expressly entrusted to the employed person for custody; or for loss of money for which he is required to account, where such damage or loss is directly attributable to his neglect or default can be made. The petitioner was charge‑sheeted for traps‑shipment of tea in wagon No. 33719 which was non‑water‑tight, with defective roof which resulted in the damage of tea. The applicant has categorically stated that the wagon was given clearance fit certificate by the Train ‑Examiner. He also asserted that no train is allowed to leave Lahore without the clearance certificate. Wagon No. 33719 which is said to be non‑water tight according to the statement of the petitioner was loaded at Karachi Bunder. And there is no evidence on record to rebut this. According to page 195 of Pak. Railway Commercial Manual 1963 Rule 16.7 reads: ‑ 16.7 Before commencing to load goods into wagons care must be taken to select vehicles (i) that do not leak .. The clearance fit certificate, according to the petitioner, is given by the Train Examiner. Surely the applicant cannot be held guilty of loading tea in Wagon No. 33719 which turned out to be not‑water‑tight, because this wagon was coming right from Karachi Bunder, and according to the above Rule it was some other person than the petitioner, who should have taken care to load goods into such wagon that did not leak . Section 7 (2)(c) of the Payment of Wages Act is very clear, because deduction is allowed for damage to goods, where such damage is directly attributable to neglect or default if some one is to be blamed it should be that authority which loaded goods in a leaking wagon of Karachi Bunder, and not the petitioner. In a view of this it cannot be held that the damage or loss was directly attribu table to neglect or default of the petitioner. And therefore, the amount deducted is illegal deduction, and a sum of Rs. 340 deducted so far has to be refunded. This is also in consonance with Rule 16.34 page 205 of Commercial Manual 1963 which reads as under: ‑ 16.34. Restriction to be observed during monsoon months.‑(a) During the monsoon months, namely from 1st July to 31st October certain specific types of wagons are restricted, as far as possible for use on the parent line. They may, however, be accepted in inter‑change, provided that they are loaded with goods not damageable by rain. If any such wagon is received at destination with goods not damageable by rain, and afresh load of this class of goods is not available, such a wagon may, after release, be returned empty to, or in the direction of the parent line. The staff are advised of the Knowing Railway numbers and types of wagons which come under various restrictions by notifications in the gazette or otherwise by circulars. The train with wagon No. 33719, according to the statement of the petitioner, reached Jhelum on either 9th or 10th of July 1970 . Nothing has been placed on record by the respondent that any circular or gazetted B notification was issued by the Management indicating the number and type of wagon which come under various restrictions on account of Monsoon months from 1st July to 31st October and thus the respondent has failed to establish that the damage or loss was directly attributable to the neglect or default of the petitioner. In view of the above I order that the petitioner be refunded the, amount already deducted. I further award two times compensation. The Railway is directed to deposit a total amount of Rs. 1020 with this Court forthwith.