1990 PLP 102 (PLC)

3. I have heard Mr. Khalil‑ur‑Rehman, representative for the appellant and Mr. Gul Muhammad Soomro, representative for the respondents and also gone through the record and proceedings of the case.

4. The admitted facts appear to be, that the Checking Party had checked the bus of the appellant on the relevant date and found Rs. 93 in excess in cash. The appellant also admits to have given the tickets to the Checking Party but contends that they were forcibly taken from him. In his cross‑examination the appellant has admitted that he had not issued tickets to the girl students but claimed he had yet to issue the tickets to them and received fare from them as tile bus was fully loaded and before he could do so the Checking Party got into the bus and asked him not to issue the tickets and abstained T.L. 6 from him. He had Labour Court or before this Tribunal. The facts as have come in evidence and also in arguments of the parties admittedly are that these 110 persons were recruited in or about 1974 as Artisans in a Group, which is equivalent to present Group V. All of them possess F.Sc. qualifications and were sent for training abroad for two years. The present appellants admittedly have Diploma in Associate Engineering and were recruited between 1977 to 1979 and were sent for training abroad for nine months. Admittedly the Karachi University treats qualifications of F.Sc. to be at par with Diploma of Associate Engineer. It appears that on representation or appeals of the 110 workmen employed in 1974, for up‑grading their post in view of the fact that the persons possessing equivalent qualifications and lesser training abroad were posted in higher grade, the management finally accepted their demands and, as order would clearly show, they were redesignated as Supervisors with effect from the date of regularization as shown in the list and were given the revised scale of pay admissible to Supervisors from time to time. This Circular only shows, that the posts of the persons in attached list were redesignated as Supervisors and they were regularised from the date mentioned against their names viz. 1976 and 1977. This Circular from its plain reading would show that neither the seniority of the persons in the attached list was fixed nor seniority of the appellants was affected.

7. Mr. Ali Amjad has argued that as a consequence of this order their seniority has been adversely affected because all these 110 persons are regularised as Supervisors prior to date of the appointment of the appellants as Supervisors and therefore would rank senior to them and have been promoted accordingly.

8. Admittedly a settlement was reached between respondents/management and the CBA of the workers on 7‑7‑1982, which is produced as Annexure 'A'. with affidavit‑in‑evidence of appellant Perwaiz, who with consent of the parties, was examined on behalf of all the appellants and was cross‑examined by the respondents. Under clause 38 of this Agreement, it was agreed that the respondent would form a Committee, consisting of equal number of members nominated by the management and the CBA, to formulate the new policy with regard to promotion and the recruitment, which was to be accepted in toto by the management. In pursuance of the Report of this Committee the recommendations of the Committee were accepted by the management and were notified by Circular dated 15‑11‑1983, viz. Annexure 'B' with affidavit‑in‑evidence of Perwaiz Ahmed. Annexure `IV' attached with this Policy Notification Annexure `B' lays down promotion rules. Para 7 of these Rules is material and is reproduced as under:‑‑ "

7. Seniority will count from the date of appointment in the Corporation )r promotion to a particular grade. In the event of transfer from one cadre to the other at the request of the individual, seniority in a particular cadre will count from the date of joining the cadre. In case of those Ahmed Ali U. Qureshi Appellate Tribunal appointed as Trainees Probationers seniority will be reckoned from the date of regularization. Note.‑‑In case of delay in holding DPC on any reason other than non -availability of posts, ante date of seniority without effect on pay and allowances will be allowed to compensate than vis‑a‑vis those promoted on normal dates."

9. Plain reading of this rule would show that the seniority of employees was to be counted from the date of appointment in Corporation or promotion to a particular grade. The employees in attached list, having been regularized in the Supervisory Grade prior to the appointment of the appellants, would in terms of this rule, rank senior to the appellants.

10. It is submitted by Mr. S.M. Yaqoob, learned counsel for the respondents, that this Circular cannot be considered as a settlement as defined in the I.R.O. as it is not signed by the parties and is not between the parties. Mr. Ali Amjad, however, contended, that this could be read in conjunction of clause 38 of the settlement and would form part of and continuity of that settlement. Be that as it may, even if this is considered as a settlement the appellants do not appear to have any grievance with regard to enforcement of this rule as they do not claim violation of this rule. The persons named in the attached list were regularised from the date earlier to the appointment of the appellants and, therefore, they would rank senior to the appellants even for the purposes of promotion under this rule.

11. Mr. Ali Amjad, however, contended that under the note to this rule reproduced above, the ante dated seniority can be given only to those persons who are covered by this note. It may be pointed out that the persons in the attached list were not given any ante dated seniority but their regularization in the Supervisor's was granted from the date mentioned in the impugned Circular dated 13‑12‑1983. Under Section 25‑A of I.R.O. a workman can only bring those rights for enforcement before the Labour Court, which are guaranteed by law, settlement or award. Under no law, settlement or award the appellants can have right to obstruct the re‑structuring of trade grades by the respondents or from up grading the posts of some workmen. As would appear from the order dated 13‑12‑1983, this up‑gradation was done as a result of settlement arrived at between respondents and the C.B.A. Even in the petitions the appellants do not pray that the persons in the attached list be reverted back to Grade V but they only pray that the appellants be held senior to them. As already pointed out under above Rule 7 the seniority is to be counted from the date of appointment or promotion to a particular grade. Those persons have not been promoted but simply their appointment was redesignated as Supervisor retrospectively which does not affect adversely any right of the appellants.

12. Mr. S.M. Yaqoob has relied upon a decision of this Tribunal in the case of Pakistan Railways v. Mohammed Umer 1980 P L C 653 wherein this Tribunal, admitted that the un-punched tickets secured from him by the Checking Party were valued Rs. 101.10 and he had produced these tickets on two pages Ex. A.W. 1/3 and Ex. A.W. 1/4. With regard to excess amount he explained, that one passenger had given him `Hundred Rupees Note' to whom he had returned some amount in cash, but Rs. 95 had to be returned to him for which he had made note on the ticket of the passenger but the passenger left the bus without recovering the balance amount and for which that passenger inserted notice in the newspaper `Daily Aghaz', dated 12‑11‑1986 and got the amount from the appellant against the receipt dated 15‑3‑1987.

5. The respondents had examined one Syed Tahir Ali, Enquiry Officer, in support of their case. He has reiterated the facts as alleged by the respondent in the Written Statement. In the cross‑examination only material admission that the appellant had been able to bring on the record ‑is that the photostat copy of the ticket was produced before them by Mr. Ahmed Mehmood Ali. According to him Mr. Mehmood stated to have produced the original ticket alongwith application to Headquarters. He was asked to produced the original ticket by the Labour Court, but on the next date of hearing, he informed the Labour Court that ticket was not available on the record and that on verification it was found, that no ticket was deposited. He also admitted that he did not verify from office to confirm the statement of Ahmed Mehmood Ali before giving Enquiry Report.

6. This Tribunal had been consistently holding that in cases, where the conductor is charged with having received fare from certain passengers without issuing the tickets the charge cannot be said to have been proved unless some of those passengers are examined either before the Enquiry Officer or before the learned Labour Court. In most of those cases the only evidence against the accused conductor was the evidence of the Checking Party. It is submitted by Mr. Gul Mohammad Soomro, that instant case is distinguishable as there are certain admissions of the appellant himself which prove the charge and that the passengers were confronted with the appellant at the time of the checking.

7. As pointed out above the appellant has admitted in the cross examination, that to these 12 girl students he had not issued the tickets. However he claims that because the bus was fully loaded he had not yet recovered the fare from them or issued the tickets. 1n this connection T.T. 40 form, which is a document prepared immediately at the spot, is very relevant. It is a sort of charge‑sheet which is immediately served upon the conductor and he also replies to those charges. This T.T. 40 form has been produced as Ex. A.W. 1/2. It has been produced 'by the appellant himself. This shows, that the appellant was confronted with those passengers from whom he realised the fare but had not issued the tickets. 1n his reply on T.T. 40, which is admittedly in his own hand writing he has stated, that certain passengers had remained without tickets, but he had not recovered the fare from them and they were falsely implicating him. In the formal charge‑sheet, which has been produced as Ex. A.W. 1/5, it is clearly stated that those girl students to whom he had not issued the tickets were confronted to the appellant and thereafter un-punched tickets were obtained from the appellant. In reply to the charge‑sheet he had not denied the confrontation of those ticketless girl students, but stated that due to rush those girl students could not be issued the tickets from him but the Checking Party themselves recovered the fare from those girl students and obtained the tickets from him thereafter. In the earlier proceedings, which papers also have been produced by the appellant before the learned Labour Court. Inspector Rana Asaf Ahmed had stated that he confronted the appellant with the ticketless girl students and ladies and got unpunched tickets from him. His statement with regard to confrontation of ticketless passengers is not challenged in the cross‑examination. Similarly Mohammad Hanif who was also on the Checking Party had made similar allegation in his statement before the Enquiry Officer and his statement with regard to confrontation has not been challenged in his cross‑examination. In his own statement the appellant had admitted that the Checking Party obtained tickets from him of all the lady passengers sitting in the bus, which he claimed to be illegal but does not state, that he was not confronted with these ladies and girl passengers. In the statement immediately after the incident viz. T.T. 40, he had stated that these girl students were wrongly implicating him, thereby admitting, that he was confronted at least with these girl students. The contention of the appellant, that he had not realised fare from girl students is also belied by the fact that T.L. 6 was obtained from him by the Checking Party at the spot and number of passengers in bus tallied with number of passengers shown in T.L.

6. This also indicates that he had recovered the fare from all the passengers and then entered the number of passengers in this T.L.6. 8. 1t is argued by Mr. Gul Mohammad Soomro, the learned representative for the respondents, that it is not possible to get the attendance of passengers specially lady passengers to appear before the Enquiry Officer or the Labour Court, when amount involved viz fare paid by each of them was only a few rupees. If they appeared before the Enquiry Officer or Labour Court they would have to spend much more on such appearance and furthermore waste their time which no passenger would be prepared to do. It is submitted, that evidence on the record shows that the appellant was confronted with those passengers at the spot and he gave unpunched tickets to the Checking Party. Furthermore the entry of the: correct number of passengers in the bus in T.L. 6 would also indicate that the: appellant had realised the fare. Keeping in view all these facts alongwith the admission of the appellant that he had not issued tickets to girl students would clearly show, in spite of his denial to have not charged the fare from them, there can be no doubt that the appellant had charged fare at least from these students but did not issue tickets to them.

9. It is further submitted that the fact that the excess amount was admittedly secured from the `cash bag' of the appellant would also indicate, that he had habit of obtaining fare from passengers without issuing them tickets. It is submitted that his subsequent explanation that this amount was of the payment' to be made to one Ahmed Mehmood Ali is an afterthought and manipulation Pakistan Labour Cases. because in T.T. 40 he does not so state, but stated that he had obtained this excess amount of Rs. 93 from `Reezgari Wala' but forgot to obtain receipt from him. According to the appellant he had to pay back Rs. 95 to Ahmed Mehmood Ali as balance of Rs. 100 that he had given whereas excess amount recovered was only Rs.

93. Thus these two amounts also do not tally. Mr. Ahmed Mahmood Ali came into picture on 12‑11‑1986, when he put a letter in the Daily `Aghaz' dated 12‑11‑1986 viz. after 14 days of the alleged incident. The learned Labour Court had disbelieved this contention that Rs. 95 were payable to this Ahmed Mahmood Ali, who was not produced before the learned Labour Court. Mr. Gul Mohammad Soomro, however, contends that even if benefit of doubt is given with regard to Rs. 93, though the excess amount recovered from him does not tally with the amount which was allegedly payable to Mr. Ahmed Mahmood Ali, still the charge that he had charged fare without issuing tickets to the passengers stood proved. In his cross‑examination the appellant has made conflicting statements with regard to T.T.

40. Firstly he stated that T.T. 40 was not filled up there but his signatures were obtained at two places by the Checking Party but subsequently he had admitted that T.T. 40 form was in his own handwriting. The statement in T.T. 40 is, therefore, very material and cannot be disbelieved merely on the supposition that Checking Party forced him to write T.T. 40 statement. I also find, that no such question had been suggested to the witnesses of Checking Party before the Enquiry Officer.

10. Mr. Gul Mohammad Soomro in support of his contention had relied upon 1989 PLC 279 wherein the learned Labour Appellate Tribunal Punjab had observed that `accused conductor in reply to T: T. 40 stating that passengers had made false statement and that he had not realised fare such reply would mean that ticketless passengers had in presence of accused stated that they had paid fare and thus accused stood confronted with them'. The order of Labour Court reinstating the conductor was set aside holding that `Labour Court did not consider reply of accused in T.T. 40 and thus fell in error that there was no evidence of recovery of fare by accused from ticketless passengers'.

11. Mr. Khalil‑ ur‑Rehman, representative for the appellant, has raised objection, that charge sheet was isssued by Islam Ahmed Khan District Manager while reply was considered by Mr. Essani, District Manager, who ordered the enquiry. The delegation of power or authorization is always in name of Officer by designation and not in his personal name. Admittedly in the meantime Islam Ahmed Khan had been transferred and Mr. Essani had taken over. As such it cannot be considered as an illegality, which could vitiate the proceedings.

12. Mr. Khalil‑ur‑Rehman had relied upon 1978 PLC 201 to show that a person who appeared as witness against the accused person cannot be appointed as Enquiry Officer and that where employer had already decided to hold enquiry before receiving reply to the charge sheet such charge would be held to be defective and no further enquiry could be made on the same charges. In the reported case in the charge sheet the appellant was directed to appear before the Enquiry Officer, therefore it was held that the employer had already made up his mind to hold the enquiry. In the instant case there is no such direction in the charge sheet. The only contention of Mr. Khalil‑ur‑Rehman is that notice of enquiry contains a cyclostyled insertion informing the appellant that his reply to charge sheet was found unsatisfactory and therefore he was to appear before the Enquiry Officer on the date and time mentioned therein. Admittedly this notice was issued after the reply to charge sheet was received and it will be presumed that the reply must have been considered by the employer before issuance of this notice. This presumption is, of course, rebutable but no such question was suggested in the cross‑examination of respondent's witnesses. The mere fact that after consideration of the reply, the employer sends notice on the cyclostyle form would not raise any presumption that the reply of the appellant was not considered or the employer had already made up his mind so as to render the enquiry illegal. Similarly, no doubt, the Enquiry Officer has been examined by the employer in the Labour Court but it was after the completion of the enquiry and after he had submitted the report only to facilitate and give opportunity to the appellant to prove any illegality or irregularity committed by the Enquiry Officer in the enquiry proceedings by cross‑examining him. Such an Enquiry Officer cannot be said to have been disqualified from acting an Enquiry Officer in the case.

13. In 1970 PLC 321 this Tribunal had held that where the explanation of the accused was supported in cross itself but was discarded by the Enquiry Officer without any reason the finding of such enquiry under the circumstances was perverse. In the instant case the Enquiry Officer has considered explanation of C the appellant and has rejected it for reasons recorded in his report.

14. The next objection of Mr. Khalil‑ur‑Rehman is that the evidence of witnesses was recorded by the Enquiry Officer without administering oath to them and the verdict of Enquiry Officer was illegal. Reliance has been placed on 1980 PLC 74, a case decided by Punjab Labour Appellate Tribunal. Similar view was taken by same learned Tribunal in the case reported in 1980 PLC 74.

15. The question whether the Departmental Enquiry wherein statement was not recorded on oath was vitiated was considered by their Lordships of the Supreme Court in the case of Abdul Latif Niazi v. Government of West Pakistan PLD 1967 S C 62 wherein their Lordships held that such evidence was valid and was saved by section 13 of Oaths Act, 1873. This view was followed by the learned D Labour Appellate Tribunal Punjab in the case of Khyber Vegetable Ghee Mills Ltd. v. Mahboob Gillani 1978 PLC 316, wherein it was held that statement of witness not recorded on oath was valid and does not invalidate enquiry proceedings.

16. In view of the above this objection of the learned counsel for the appellant loses its force.

17. The above discussion clearly shows, that evidence before the learned Enquiry Officer consisted of positive evidence of two prosecution witnesses namely Mohammad Hanif Khan and Rana Basheer Ahmed that on checking, they found that there were ticketless passangers in the bus from whom the appellant had charged fare but did not issue tickets. Their evidence further shows, that the appellant was confronted with those ticketless travellers and thereafter he gave unpunched tickets. The factum of confrontation gets support from the statement of appellant in T.T. 40, his failure to challenge this allegation is cross examination of prosecution witnesses and from his failure to deny confrontation either in the grievance notice, grievance petition or his statement before the Enquiry Officer. The report of Enquiry Officer based on such evidence after consideration of the pleas raised by the appellant has got much force and order based on such Enquiry Report does not call for interference, unless strong case is made out for such interference. I have already discussed the objections and pleas raised by the respondent and I am of the opinion that no case is made out for such interference. The charge against him stands proved from the evidence as well as from the circumstances of the case. I, therefore, dismiss his appeal H.B.T./1492/Lb. S Appeal dismissed.