P L D 1976 Lahore 783 (PLP)

The Punjab Road Transport Board, through its Secretary, has challenged the lawful authority of the Punjab Labour Court Na. 2 to pass the order dated 10‑1‑1975 whereby a decision of tile Junior Labour Court was set aside in appeal and a direction was given to the Road Transport Board to re‑instate respondent No. 2 refusing him at the same time the benefits of back wages.

2. The respondent No. 2 was an employee of the petitioner who was proceeded against departmentally on three distinct and separate chargss, one dated 6‑9‑1973, the second dated 18‑9‑1973 and the third dated 29‑1‑1974. The charges in every one of these cases were "for committing the offence of fraud and in contravention of P. R. T. B. Rules." The specific charges which were held proved were the following three relatable to three charges separately inquired into :‑ (1) Collected fare paisas 15 from a student and issued no ticket. (2) Collected fare from two passengers paisas 40 each and did not issue tickets. He had also exhausted his tickets. (3) Collected fare from four passengers at paisas 30 from two passengers and paisas 50 from other two passengers and did not issue any tickets. After affording him the personal hearing, the following operative order was passed :‑ " In view of his proved fraud and bad checkered past record of service he is dismissed from service w.e.f. 23‑5‑1974 (A. N.) for practising fraud." This was challenged by the employee under rule 25‑A of the Industrial Relations Ordinance in which proceedings the charges levelled against the respondent were taken by the respondent himself to mean as follows :‑ "On 6‑9‑1973 a false charge‑sheet was served on the petitioner alleging that the petitioner had dishonestly mis‑appropriated 0.50 paisas of the employer and another false charge‑sheet was served on 29‑1‑1974 alleging misappropriation of 1.60 paisas." Apart from alleging mala fide, though not describing it or disclosing its nature, the respondent in his petition to the Junior Labour Court took three specific grounds. The first was that he had not been given an opportunity to cross‑examine the witnesses and the second was that he had at one stage of the proceedings filed a complaint against the inquiry officer that he was himself guilty of misappropriation and therefore not qualified to be the inquiry officer, and thirdly, that the copies of statements of witnesses were not supplied to him. The Junior Labour Court held that the opportunity afforded to the respondent was fair and adequate, that be had not been, in any manner, prejudiced nor had any of his rights been violated. On appeal the Labour Court accepted the contention that no copies of summary of evidence against him and no inquiry report was supplied to respondent No. 2 as borne out by his affidavit. The affidavit was treated as good evidence notwithstanding that the maker thereof had appeared in the witness‑box and not stated a word about it. Secondly, it was stated that the District Manager while passing the order of dismissal on a fraud of about three rupees on three occasions had a biased mind and had made an observation that he was dismissing the respondent for fraud and bad and chequered record of past service. It was concluded by the Labjur Court that "had he been in a free mind state he would not have awarded an extreme punishment of dismissal for a petty fraud of paisas. Other penalties are also provided in Standing Orders No. 15 of the West Pakistan Employment and Commercial Standing Order Ordinance which could be awarded." It was on these grounds that the appeal was allowed and the impugned order came to be passed.

3. The learned counsel for the petitioner has challenged the impugned order on the ground that there was a clear misreading, and on a material point, of the affidavit which was made the basis of the impugned order. Secondly, the bias attributed to the competent authority was non‑existent. Thirdly, where the punishment awarded is one awardable under the law the Labour Court could not sit on judgment with regard to its propriety or extent.

4. The learned counsel for the respondent No. 2 has not only tried to meet the contentions of the learned counsel for the petitioner but has also referred to the other grounds which were not considered by the Labour Court in appeal and which formed the. basis of his case. Additionally, he has taken up two preliminary objections with regard to the competence of this petition. The first concerns larches and the second concerns the competency of the Secretary to file such a petition in the name of the Board.

5. As regards the objection with regard to delay in the filing of the petition, it is stated that the impugned order was passed on t0‑1‑1975, that it was complied with by the department without any demur and that this Constitutional petition came to be filed six months after the impugned order had been passed. It is stated that the respondent No. 2 had, in the meantime, secured a reasonable expectancy of employment which cannot be denied to him on such a belated petition.

6. The delay of six months in instituting proceedings under Article 199 is not per se such as may be sufficient for curtailing a right. Besides,` the petitioner being a corporate body, a decision with regard to filing a petition for challenging a decision of Tribunal exercising exclusive jurisdiction had to be arrived at in accordance with the rule 3 of its indoor management, which require consultation and examination of the case by a number of authorities. In such a situation the delay of six months would not stand in the way of the petitioner. It was also not open to the petitioner to delay the implementation of the Labour Court's decision or to implement it after placing conditions of its own. The decision as long as it remains in the field had to be given effect to. Any expectancy of employment arising thereunder would not be such as to stand in the way of determination of a Constitutional petition under Article 199.

7. As regards the second preliminary objection, it has been urged that section II of the Motor Vehicles Ordinance, 1965, establishes a Road Transport Board having perpetual succession and a common seal which can sue and be sued in that no me. In the rules framed thereunder the Chairman has beer. authorised to institute, defend or withdraw any proceedings and compound any offences. The Chairman, and not the Secretary could move this petition and he having not done so the petition is not competent.

8. This technical objection of the respondent overlooks two important facts. Firstly, the respondent himself while suing the Board before the Junior Labour Court and the Labour Court did not sue it through the Chairman but instead sued it through a named District Manager. On his own reasoning such could not be the course. Secondly, and this is more important, the scheme of Industrial Relations Ordinance introduces a new concept in the matter of the party to proceedings. The proceeding initiated by a workman are necessarily to be directed against the employee and the employer has been defined "in relation to any other establishment the' proprietor of such establishment and every director, manager, secretary, agent or officer or person concerned with the management of the affairs thereof' Article 199 of the Constitution entitles any person aggrieved by an order of a statutory functionary to seek the reliefs provided therein. The Secretary falling within the definition of employer, would clearly, concurrently with the Board be an aggrieved person for the purposes of avoiding the re‑instatement order. Hence a petition moved by the Secretary. though in the name of the Board would not be incompetent.

9. Coming now to the merits of the case, the Labour Court's decision proceeds on the assumption that no summary of evidence and no inquiry report was supplied to respondent No. 2 and he so stated it in the affidavit submitted by him. In his petition to the Junior Labour Court, as already stated, the specific objection was not with regard to inquiry report but that copies of statements of witnesses were not supplied and he was not allowed an opportunity to cross‑examine the witnesses. There was therefore, no allegation that a copy of the inquiry report was not supplied. The Labour Court in construing this affidavit to cover the inquiry report as well misread it. Similarly, the claim was not that summary of evidence was riot supplied but that copies of the statements of witnesses were not supplied. There is no requirement of law, certainly not of the Standing Orders Ordinance, that al copy of the statement of witnesses is to be supplied and that if there is a j failure to do so then the secured right of the workman is violated or their fairness of the inquiry is impaired.

10. If the District Manager had, while holding the respondent No. 2, guilty on the charges levelled against him, observed that in view of his past bad record he was holding him guilty, it could legitimately be said that the Manager took an extraneous consideration, a consideration of which the respondent employee had no notice for determining his guilt or otherwise. But the finding on the charges having been arrived at irrespective of his past bad record and so this findings of guilty is immune from challenge on that score. In determining the exact punishment to be inflicted the factors invariably taken into consideration in the case of an employee are the length of his service, the quality of service rendered by him and the gravity of the default or dereliction of duty. Even if it is not said so in the order, these are the considerations which prevail and should prevail with an employer in determining the extent of punishment to be awarded. Therefore, if the employer referred to the past bad record with a view to determine the exact punishment to be awarded, it was within his competence and no legal defect on that score can be said to exist. In awarding a punishment permitted by law the employer is exercising a discretion which is not open to review by any outside authority. It is only when he does not observe the law o exceeds its limits that the intervention of an outside authority or Tribunal is called for. In the exercise of its discretion which is its own it may take into consideration any circumstance relevant to the employment for the purposes of determining the extent an.! the degree of the punishment to be awarded. He does not thereby render himself liable to scrutiny and interference.

11. The learned counsel for respondent No. 2 has tried to defend the order of the Labour Court on the legal plane by saying that as there was violation of a rule alleged against the respondent, and violation of rule has been described as an act or omission under the Standing Order bat not a misconduct which may entail dismissal, the punishment of dismissal could not on the charges levelled be imposed. In support he has referred to a decision of a case in which he appeared as a counsel namely. W‑ P. No. 1247/75. It was in the back ground of this submission that I have reproduced earlier the specific charges and the specific finding. The charge was of fraud and the respondent himself took it to be a charge of dishonesty and misappropriation. What was realise as fare and not credited to the employer's account would be a, dishonesty with respect to employer's property. This act of embezzlement, fraud, or dishonesty may also at the, same time involve violation of rule and. every criminal act is quite often' violative of some rule of the establishment express or implied. It does not follow, however. that simply because a rule is involved, notwithstanding; the graver charge the lesser is to prevail. If the charge of fraud in respect of employer's money was established, as it has been held to be, their punishment of dismissal. could follow, notwithstanding that the violations of rules could not be so penalized. All that can be said in such a situation would be that additionally for the violation of rules he could be separately punished and there is no such punishment for it. Such omission would also not render the proceedings in any manner, defective for the specific finding is not of the violation of rules but the commission of fraud. 12. 1 find that on none of tile grounds the decision given by the Labour Court can be defended and it is found to be without jurisdiction, in defiance of the evidence and based on misreading of it. Hence it is declared to he without lawful authority arid of no legal effect. The petition is allowed accordingly but no order is made as to costs. s. Q. Petition allowed.