1990 PLP 438 (PLC)

Muhammad Rafiq v. Road Transport Corporation, Lahore 1968 P L C 382 rel. Narain Das for Appellants, Haq Nawaz Baloch for Respondent. Date of hearing: 7th November, 1988. This appeal is directed against an order, dated 13‑10‑1985 passed by the learned Presiding Officer, Sind Labour Court No. IV at Karachi, whereby the grievance petition under section 25‑A, I.R.O. 1969, was allowed by the learned Labour Court who had ordered reinstatement of the respondent.

2. The facts of the case leading to this appeal arc that the respondent was working as a workman in the position of Conductor with the appellants. He was charge‑sheeted during the course of the employment that he had realised fare from 11 passengers in the public vehicle of the corporation, but, did not issue the tickets. After domestic enquiry, the Enquiry Officer found him guilty and subsequently he was dismissed from service. He filed grievance application under section 25‑A, I.R.O. 1969, before the learned Labour Court alleging therein that he was not given proper opportunity to defend himself and also was not given personal hearing. The application was resisted by the appellants alleging therein that he had been dismissed in accordance with law after due enquiry and after giving him full opportunity to defend himself.

3. The learned Labour Court came to the conclusion that the enquiry held by the Enquiry Officer was not proper and further that the officer who issued the dismissal order was not competent to issue the same.

4. The learned Presiding Officer of the Labour Court has mainly relied upon the admissions of the Enquiry Officer. Mr. S.M. Tahir Rizvi, in his cross -examination before the learned Labour Court. In the cross‑examination, the Enquiry Officer had admitted that he had examined only one witness viz., Reporter, while, he did not examine any other witness but had tendered them for cross‑examination to the respondent who refused to cross‑examine them. He had further admitted that he had not examined any person from whom the respondent allegedly had recovered the fare but did not issue the tickets. He also admitted that he did not examine the driver of the bus.

5. A witness can be cross‑examined only after his being examined‑in‑chief. The purpose of cross‑examination is to check the veracity of the statement of the witness to find out if he has stated true facts or not. If a witness is tendered for cross‑examination without being first examined‑in‑chief, there is no purpose of such cross‑examination. The learned Presiding Officer of the Labour Court had rightly held that by tendering a witness for cross‑examination without his being examined‑in‑chief, it cannot be considered to have afforded proper opportunity to the respondent to defend himself. While coming to the conclusion about the guilt of the respondent, the Enquiry Officer also appears to have taken into consideration the evidence in cross‑examination of such witnesses who were cross‑examined by the respondent without being examined‑in‑chief first and the fact that the respondent did not cross‑examine some of the witnesses whose examination‑in‑chief was not recorded. In fact such witnesses whose examination- in‑chief was not recorded would be deemed not to have been examined for the purpose of enquiry.

6. Mr. Haq Nawaz Baloch, the learned counsel appearing for the respondent has relied upon 1986 P L C page 838, where this Tribunal, in a similar appeal filed by the Karachi Transport Corporation held that "where none of ticketless passengers was examined in domestic enquiry, conclusion drawn in enquiry that fare was realised was wrong". In 1968 P L C at page 701, a learned Judge of Allahabad High Court has observed that "when an order of dismissal of a workman is challenged in industrial adjudication, the Tribunal has to see whether the domestic enquiry held by the employer was fair and proper". In the instant case, it is evident that only one witness namely Reporter was examined by the Enquiry Officer while no other witness/member of the Raiding party, driver or the passengers who arc alleged to have not been issued the tickets were examined. Under the circumstances such an enquiry cannot be considered to be fair or evidence on record to be sufficient to draw the conclusion that the respondent had charged fare from such passengers but did not issue the tickets. It is not alleged that he had misappropriated and amount. Thus, there was no sense or purpose for the respondent not to issue the tickets. It is submitted by the learned counsel for the respondent that as the tickets of proper denomination were not available, the respondent had issued the tickets of lower denomination to cover the amount of the fare. The learned Labour Court has pointed that in the evidence before the Court, the appellant has not even produced the TL‑6 Registrar to explain difference between the value of the alleged sale of tickets or actual sale of the tickets and the amount recovered from the respondent. It may be pointed out that the value of the tickets sold was Rs.285 whereas the amount recovered was Rs.320. All these facts clearly show that there was no proper and fair enquiry conducted against the respondent and even the Enquiry Officer had not taken any effort to find out the real position about the sale of the tickets. The conclusion arrived at by the Enquiry Officer, on the basis of such an enquiry is not sustainable.

7. The learned Presiding Officer has further held that Mr. Abdul Hameed who accorded approval of the dismissal was not so empowered. The dismissal order which is at page 21 of the record shows that it was issued by the District Manager. Mr. Abdul Hameed has admitted in the cross‑examination that "when he dismissed the respondent he was officiating District Manager and his substantive post was Traffic Manager. He has further stated that still he was Traffic Manager. He could not produce any order showing his appointment as District Manager. It was stated and admitted by Mr. Gul Muhammad Soomro, learned representative of the appellant that Mr. Abdul Hameed was occupying a post of District Manager on a leave vacancy as the District Manager had gone on leave for 2/3 days. It was also submitted by Mr. Narain Das, the learned Advocate for the appellant that the point of jurisdiction of the dismissing authority was not raised in the pleadings of the respondent either in grievance notice or in grievance application and, therefore, the learned Presiding Officer could not have discussed this point. 1t was pointed to him that in the memo. Of appeal also it was not pleaded that the learned Labour Court could not have raised this point in the order, It is not asserted even in the memo. of appeal that Mr. Abdul Hameed who passed the order of dismissal was appointed as District Manager and had powers to issue such order. No such notification has been produced by the appellant even before this Tribunal to show that Mr. Abdul Hameed was appointed as District Manager during that period and exercised all powers of the District Manager. Such notification or document would be in the power and possession of the appellant and its non‑production would raise presumption against them. The worker is an illiterate person and it is the duty of the Labour Court to examine his grievance from all aspects to see that the proper justice is done to him and he gets a fair deal, When the learned Labour Court had reached the conclusion in the order that the authority who issued the dismissal order was not so authorised, it was incumbent upon the appellant to show that Mr. Abdul Hameed did exercise the powers legally and he was empowered to issue the dismissal order. 7‑A. A reference is made to the case of Muhammad Rafiq v. Road Transport Corporation, Lahore, 1968 P L C at page 382, wherein Industrial Court of West Pakistan has held that "a power of dismissal was exercisable by District Manager of Road Transport Corporation and this power cannot be exercised by Additional District Manager".

8. For the above reasons, I find no merit in this appeal which is accordingly dismissed. A.E./1334/Lb. S Appeal dismissed.