1991 PLP 251 (PLC)

Ch. M. Abdul Latif Saghar for Appellant. Gul Muhammad Soomro, Representative for Respondents. Date of hearing: 2nd May, 1990. This is an appeal against the order of learned Presiding Officer, Sindh Labour Court No. V at Karachi, dated 17-8-1989, whereby the grievance petition of the appellant was dismissed.

2. I have heard Ch. M. Latif Saghar, learned counsel for the appellant and Mr. Gul Muhammad Soomro, learned representative for the respondents and have also gone through the record and proceedings of the case.

3. The admitted facts of the case appear to be that the appellant was a Driver working with the respondents when he was on duty as Driver on Bus No.868-842 on 9-6-1987 which was plying, between Korangi and Saddar. After last trip at the Korangi Terminal the appellant was taking the bus back alongwith the Conductor to the Depot but on the way he took some passengers to Saddar from whom the conductor charged fare amounting to Rs.35. The bus was, however, raided at Korangi Road by `Checking Squad' who detected this fraud by the appellant and conductor. The appellant has also alleged to have used some harsh words with the Checking Squad. He was charge-sheeted and after domestic enquiry the appellant was dismissed from service. Aster serving grievance notice upon the respondents the appellant filed grievance application before the learned Labour Court.

4. Ch. M. Latif Saghar, learned counsel for the appellant, has raised the legal objection that the appellant was charge-sheeted under section 5 of the Sindh Essential Services (Maintenance) Act, 1958 and therefore he could not have been dismissed for misconduct under the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (hereinafter referred to as the `Ordinance'). It is not disputed that the provisions of Ordinance are applicable to the employees of the respondents. The relevant provision of the Ordinance, which is Standing Order 15(4) does not require any formal charge-sheet or mention of the provision of law in the notice under which misconduct was committed but only requires that act of misconduct should be brought. to the notice of the workman concerned within the time specified therein. The alleged acts of misconduct were brought to the notice of the appellant and, therefore, in tile charge-sheet the mere fact that section of the Essential Services (Maintenance) Act, 1958 was mentioned in the `printed form' would not exclude the application, of the provisions of the Ordinance. This question was considered by this Tribunal in the case of Muhammad Ashraf Khan v. District Manager, Karachi Transport Corporation in Appeal No. KAR-359 of 1989, decided on 18-3-1990 and it was held therein that mere mention of section 5 of the Pakistan Essential Services (Maintenance) Act, in the charge-sheet, would not invalidate the charge-sheet which clearly mentioned the act of misconduct which was brought to the notice of the appellant. 1, therefore, see no substance in this objection.

5. The second objection raised by Ch. M. Abdul Latif Saghar is that the person who has signed the written statement has not been examined therefore it would be deemed that no reply statement was filed and the case of the appellant would stand un-rebutted. It is not disputed that written statement was filed therefore it cannot be said that no written statement was filed. However; because the person who signed the written statement was not examined the averments in the reply statement cannot be considered as evidence, unless they are proved through some other evidence. In the instant case the respondent had examined before the learned Labour Court one Mr. Shaikh Farid who was Member of the `Checking Squad' and who reported misconduct to the higher authorities. He has given the first person evidence of the alleged act of misconduct by the appellant which will discuss later. The respondents have also examined Syed Bakhat Ali Shah, who was `Enquiry Officer'. In view of this evidence it cannot be said that the case of the appellant stood un-rebutted.

6. The last objection of Ch. M.Latif Saghar, which he vehemently pressed, is that the fraud or misappropriation, if any, was committed by the conductor and the appellant as Driver, at the most, would be guilty of the violation of instructions as instead of taking the bus to the Depot, he took the `waiting passengers' to Saddar and therefore he should not have been awarded punishment provided for misconduct mentioned in clause (3) of Standing Order 15, but such misconduct was described in and the punishment for this kind of misconduct was provided for under Clause (1) of Standing Order 15, which would be fine only.

7. To appreciate the respective contentions of the parties on this issue it would be proper to see the substance of the charge which was brought to the notice of the respondents through the charge-sheet. Under the charge-sheet he was informed that instead of taking the bus to the Depot he took a `trip' to `Saddar' and due to his this act the Conductor got the opportunity of committing fraud and misappropriation to the extent of Rs.35 and Department lost about Rs.300 and that when he was asked to explain he misbehaved and told the checking party to do whatever they wanted to do as he was not afraid of any report and refused to sign TT-40 form. From this charge it will be seen that he is alleged to have committed two acts of misconduct (1) aiding and abetting the conductor in the commission of fraud or misappropriation by taking `unauthorised trip' to `Saddar' and (2) committing act of misbehaviour with the superior staff of Checking Squad.

8. It was stated by Mr. Gul Muhammad Soomro, learned representative for the respondents, that the conductor was also charge-sheeted and dismissed from service. The appellant in the cross-examination has admitted, that he took the bus to Saddar instead of taking it to Korangi Depot and that the Checking Squad had checked the bus on the Korangi Road and issued the Report Exh.- 3-A. It may be pointed out that the Exh. 3-A is `Report Form' TT-40. It contains the substance of the charge signed by the Reporter. It also contains the `column' with regard to the `explanation of the accused' and his signature. It may be pointed out that this column is `blank' and there is no signature of the appellant which indicates that on the spot he was not able to explain the charges contained in TT-40. Contents of this TT-40 are reproduced in the charge-sheet which is dated 14-6-1987. The appellant also admitted that he participated in the enquiry each page of enquiry bears his signature. He does not allege any misconduct or bias against the Enquiry Officer. Shaikh Farid, who was one of the Members of the Checking Squad and who made the report against the appellant has been examined. He reiterated the allegation against the respondent and stated that when the appellant was asked to explain he misbehaved and said to go and do whatever they wanted to do and that he was not afraid of any report. He also stated that the appellant was asked to give statement on TT-40 but he refused to do so. The aforementioned part of evidence of R.W. Shaikh Farid was not challenged in the cross-examination but it was suggested to him that angry crowd had forcibly asked the Driver to go to Saddar, which suggestion he has denied. Ch. M.Latif Saghar has admitted that this plea vas neither taken by the appellant in his grievance notice nor in the grievance application nor even in his affidavit-in -evidence. As such this belated plea which is not proved by any evidence cannot be accepted.

9. Ch. M.Latif Saghar has relied upon 1984 P L C 1977 and 1984 P L C 1268 but facts of those cases are distinguishable from the instant case and therefore I need not discuss them.

10. Keeping in view the admitted facts as well as the evidence of witness Shaikh Farid, which on main facts has remained unchallenged, the misconduct as mentioned in Standing Order 15(3)(b) and (h) stands proved. The admitted act of the appellant in taking `unscheduled trip' to Saddar helped the conductor to dishonestly receive the amount of fare from the passengers for which no tickets were issued. It would not only amount to abetting and aiding theft; fraud or dishonesty in connection with the employer's business and property but also subsequent act of misbehaviour coupled with aforementioned act would amount to act of disorderly misbehaviour and an act subversive of discipline. As such I find no substance in this appeal which is dismissed. M.Y.H./1715/Lb. S Appeal dismissed.