1993 PLP 622 (PLC)

The learned Presiding Officer, Labour Court, Peshawar accepted the grievance petition filed by the petitioner‑respondent under section 25‑A of the Industrial Relations Ordinance, through his judgment dated 17‑7‑1991 and consequently ordered his reinstatement with back benefits and wages. The appellants feel aggrieved of this judgment and have, therefore, lodged the appeal to call in question the correctness of the impugned decision.

2. The relevant facts as contained in the petition under section 25‑A of the I.R.O and other documents on record which led to the filing of the appeal are that the petitioner was serving as driver in the establishment of the appellants; that he alongwith the conductor of the bus was served with show cause notice on 2‑11‑1982 under section 3 of the N.‑W.F.P. Road Transport Board (Removal of Undesirable Employees) Ordinance, 1965, having been found by the Customs Staff smuggling contraband articles concealed in the seats of the bus from Peshawar to Lahore while performing duty in the bus on 16‑10‑1982; that his reply to the show‑cause notice was not found satisfactory and accordingly an Enquiry Officer was appointed to probe into the allegations against him; that the Enquiry Officer found him guilty and consequently the General Manager by order dated 20‑11‑1982 terminated his services under the said provisions of law. This order of termination was challenged on the following grounds in the grievance petition:‑‑ (a) Charge of smuggling against the petitioner was false and it was neither established by the department nor by the Customs Authorities. (b) That the enquiry conducted against the petitioner was summary in nature as no opportunity was provided to the petitioner to defend himself. (c) That the charge against the petitioner was not covered by section 3 of the Road Transport Board (Removal of Undesirable Employees) Ordinance, 1965, rather at the most it could have been levelled and enquired into under the relevant labour laws.

3. It was alleged that the grievance notice served on the respondent was not responded which compelled the petitioner to move the Labour Court. In the written statement of the respondent the proceedings taken, enquiry conducted and order passed were termed as perfectly correct and legal.

4. It is to be noted that earlier by order dated 25‑9‑1983 the grievance petition was accepted by the learned Presiding Officer, Labour Court solely on the ground that the proceedings against the appellant under the Road Transport Board (Removal of Undesirable Employees) Ordinance, 1965, were illegal and without lawful authority. The appeal against this order in this Tribunal was also dismissed. These decisions were challenged in the writ petition before the High Court wherein it was held that the petitioner could be proceeded against under section 3 of the Road Transport Board (Removal of Undesirable Employees) Ordinance, 1965. Consequently the case was remanded to the Labour Court for decision afresh which has after the remand passed the order under appeal.

5. During the first trial of the case the petitioner appeared as his own witness and also examined Abdul Jabbar to support him while the Enquiry Officer was examined by the Department in support of their case. However after the remand both the learned counsel gave statement that they rely on their pre‑remand evidence in the case.

6. During the hearing of the appeal it was pointed out from the appellant side that the respondent having reached superannuation age stands retired from service, therefore, from that date onward he could neither continue in service nor would be entitled to pay. This position was conceded by the learned counsel for the respondent. 7 The learned counsel for the appellants referred to show‑cause notice Exh. PW.I /4 issued to the petitioner and appearing at page 32 of the Labour Court file and the reply of the petitioner to this notice Exh. PX‑1 at page 39 and pointed out that the latter contains admission of guilt. However, its perusal reveals that it does not contain any such admission rather there is express denial of the commission of the offence and ignorance of the contraband articles in the bus. The learned Advocate then pointed out the conflict in the stance of the petitioner regarding the ownership of the banned articles in the grievance notice and in the reply to show‑cause notice as in the former Afghan Refugees have been shown as owners while in the latter there is no mention of Afghan Refugees. In this context the appellant's counsel also referred to various other documents on record with the sole purpose to point out the conflicting stance of the respondent in respect of ownership of the smuggled goods. I need not dilate elaborately on this aspect for the reason, firstly, that the appellants were required to prove the guilt of the respondent independently notwithstanding these contradictions as it is a cardinal principle of law that guilt is to be substantiated by the prosecution and, secondly, there is no admission of guilt in any of the documents and the mere conflict in describing the ownership would not advance the case of the appellants. There can be no denying the fact that neither before the Enquiry Officer nor in lower Court any direct evidence of the Customs Officer who seized the banned goods has been examined. The report of the Enquiry Officer reveals that he has relied on proceedings of the Custom Authorities but he has not recorded the statement of any such officer. It is also to be noted that the Customs Authorities failed to produce the alleged seized goods before the learned Customs Judge during the trial under the Customs Act against the respondent and, therefore, on that count respondent was acquitted of the charge. In absence of any confidence‑inspiring evidence the conclusion of the learned Presiding Officer, Labour Court that the respondent could not be held responsible for the alleged misconduct is unexceptionable and I find no legal or factual flaw in the finding given by the learned Labour Court. This appeal is, therefore, dismissed being without merit. C.M. also stands disposed of. There will be no order as to costs. H.B.T./154/Lb. N Appeal dismissed.