1990 PLP 455 (PLC)

Date of hearing: 13th May, 1989. DECISION This is an appeal against the order of the learned Presiding Officer, Sindh Labour Court No. VI at Hyderabad, dated 11‑2‑1988, whereby he allowed the grievance petition of the respondent and ordered his reinstatement with the consequential benefits.

2. The brief facts leading to this appeal are that the respondent was the Driver working with the appellants who was driving bus No.969‑534 on 13‑8‑1987. He is alleged to have caused accident of that bus on the said date due to rash and negligent driving. The bus turned turtle causing death of one person and injuries to 27 persons and also caused damage of more than Rs.16,000 to the bus. The respondent was charge‑sheeted and after domestic enquiry, he was dismissed from service, vide order, dated 25‑10‑1987. After serving grievance notice, he filed the grievance petition in the Labour Court which was resisted by the appellants on the grounds that respondent was found guilty in the domestic enquiry for rash and negligent driving thereby causing damage to the bus, death of a person and injuries to the other passengers.

3. I have heard Mr. Raes Mushtaq, learned Advocate for the applicants and Mr. Wahid Buy, learned Representative for the respondent and have also gone through the record and proceedings.

4. It is not disputed that the respondent was driving the bus and the accident did take place in which bus turned turtle causing death of one person and injuries to 27 persons and damage to the bus. However, there is some difference to the extent of damage to the bus. According to the appellants the damage is of more than Rs.16,

000. Whereas, according to the respondent the damage is about Rs.6,

000. What struck me in the first instance was that if this accident took, place due to rash and negligent driving, it was a criminal offence punishable under section 304‑A, P.P.C., therefore, the first question put to Mr. Raes Mushtaq was whether any report was lodged with the police that one person had died and as many as 27 persons were injured. Mr. Raes Mushtaq, however, replied in negative and was unable to give any reason as to why no report was lodged with the police. In my opinion, if the respondent was guilty of rash and negligent driving, he was criminally liable and any person who knowingly failed to report the offence to the police would also be guilty of shielding the offender. However, such an accident would also not have remained secret from the Law enforcing agencies and for the reasons best known to them no action appears to have been taken by them. I need not comment further on this aspect of the matter.

5. The mere causing of accident or damage to the property of the employer would not be a misconduct punishable under Standing Order 15 unless it is committed rashly, negligently or wilfully. None of the witnesses examined by the appellants either before the Enquiry Officer or before the learned Labour Court were witnesses to the accident and have thrown no light on immediate cause or reason of the accident. None of the passengers including injured passengers was examined before the Enquiry Officer or before the learned Labour Court. Even the Conductor of the bus has not been examined. It leaves us only with the version as put by the respondent himself, whose presence at the spot as a driver of the bus is undisputed. Mr. Iqbal Hussain who is witness of the appellants and who had issued the dismissal order of the respondent had admitted in the cross-?examination that the accident took place at single carriage road. According to the respondent a bus was coming from the opposite side which did not give him passage, therefore, he turned the bus to katcha side and, therefore, the bus went moving and due to defects in brakes and other parts, it fell down and its springs broke down, therefore, it turned turtle for the reasons beyond his control. Admittedly Mr. Zafarullah, District Manager immediately went to the scene of offence and removed the injured persons to the hospital. The respondent produced a copy of the report Exh. A‑4 purporting to be of Mr. Zafarullah in which Mr. Zafarullah is said to have made enquiries from villagers who also supported the version of the respondent that the bus from the opposite direction did not give him passage. Mr. Zafarullah in his report also reported about defects in the parts of the bus and made reference to previous defect reports. Mr. Zafarullah has been examined by the respondent. He admitted to have gone at the spot but denied to have, made enquiries from the villagers or from other persons or to have submitted his report. Both his denials do not appeal to reason. It does not appeal to reason that a senior officer would have not made enquiry as to the cause of accident on reaching at the spot immediately after the accident or would not have made a report. Though the document Exh. A‑4 which purports to bear his signatures was already on record, he did not specifically deny his signatures on it. The learned trial Judge has compared the signatures of Mr. Zafarullah on this document as well as admitted signatures on the reply statement and has come to the conclusion that both arc of the same person.

7. Muhammad Hashim who was also driver and who also drove the same bus earlier was examined by the respondent and stated to have made complaints about the defects in the bus. Mr. Zafarullah has also admitted that certain complaints about defects in Bus No. 5.34 were made which were entered in the Defects Report Book from 16‑fi‑1987 to 10‑8‑1987. He did not specifically state that these defects were removed but he had only made a general statement that the bus is brought on road after its defects, if any, are first removed. However, he has again stated that defects reported by driver Hashim were not major defects which could cause the accident. The learned trial Court hits inspected the defects Report Book and found the reports were with regard to the defects in the brakes, clutch plate and the springs. These defects cannot be considered as such which cannot cause accident, if not removed. As pointed above there is no evidence to show that these defects had been removed.

8. I have already pointed that there is absolutely no evidence produced by the appellants to show that the respondent was driving the bus rashly or negligently though they could have produced such an evidence by examining the passengers or even the Conductor who was their employee. Wherever a party is in a position to produce evidence and fails to produce evidence, presumption has to be drawn against such a party. The mere fact that the accident had taken place or that being scared the respondent ran away his part would not ipso facto prove that he was driving the bus rashly or negligently under the circumstances of the case.

9. The dismissal order is admittedly signed by Mr. Iqbal Hussain who first claimed to be District Manager but subsequently admitted in his cross-?examination that his statement was false. He admitted that he never remained District Manager but had remained Deputy Traffic Manager and for some time he had remained Incharge District Manager in addition to his duties as Deputy Traffic Manager. Mr. Wahid Bux the learned Representative had relied upon 1980 P L C 920, wherein Punjab Labour. Appellate Tribunal had observed that where a dismissal order was passed on behalf of employer, onus would be upon such employer to show that authorities signing dismissal order were competent to pass and sign such order.

10. Apart from the fact whether the order was passed by a competent authority or not, I have already held that the charge of rash and negligent driving has not been properly proved either before the Enquiry Officer or before the learned Labour Court. As such, I find no reason to interfere with the decision of the learned Labour Court. The appeal is accordingly dismissed. A.E./1453/Lb. S ????????? Appeal dismissed.