1989 PLP 252 (PLC)

‑‑‑ Law non cogit ad impossibilia (law does not compel a man to do that which he cannot possibly perform). Azmatullah Khan for Appellants. Latif Saghar for Respondent. Date of hearing: 3rd February, 1988. DECISION This is an appeal filed by the appellant Corporation against an impugned order, dated 30‑9‑1986, passed by the Sind Labour Court No. 1, Karachi, who had allowed the grievance petitions under section 215‑A, I.R.O. 1969, of all the respondents directing their reinstatement in service with full back benefits.

2. Briefly stated the facts of the case of each respondent are that, respondent Abdul Qayyum claimed to be a permanent workman appellant Corporation working as Inspector and oil 20‑1‑1986 he alongwith an other Inspector, was on duty in his area ranging from Saddar to Drigh Road and though, he had checked about 80 buses plying on the said route, yet, he was issued a charge‑sheet regarding dishonesty/embezzlement to the tune of Rs. 9 for the reason that a conductor had not issued tickets though he had realized the fare from the passengers who was alleged to have been checked by the Special Squad and at that time the concerned Inspector of the area, namely, Abdul Qayyum was missing from his duties. As the reply to this charge‑sheet was found unsatisfactory, therefore, a domestic enquiry was alleged to have been conducted against him which was neither fair and proper nor in accordance with law resulting in his dismissal from service only on account of internal politics and victimization. The case of the respondent Mulazam Hussain was that he had a service of 18 years to his credit and was working as Inspector at the relevant time and his duty area was from crossing (Korangi) to P.A.F. Korangi Creek and Crossing to Landhi‑89 inclusive of several Branch lines of various routes and on 8‑2‑1986, he was issued false and baseless charge‑sheets of embezzlement, although on the same date, he had himself detected cases of fraud against the concerned conductors but, no action was taken against the conductors. He claimed that, however, he submitted his reply to the alleged charge‑sheet but, a perverse and biased domestic enquiry was conducted against him resulting in his dismissal from service. Respondent, Abdul Az11 Khan Qadri had claimed 18 years spotless service but, on 8‑2‑1986 he was issued a false and manufactured charge‑sheet containing charge of misappropriation and though he had submitted a satisfactory reply, but, an illegal and pre‑judged enquiry was conducted against him resulting to his dismissal from service. Respondent, Ishtiaq Ahmad Khan claimed 18 years of spotless service to his credit and that at the relevant time he was working as Inspector in his area ranging from Saddar to Drigh Road and that on 20‑1‑1986 he had honestly and satisfactorily checked all buses playing on that route, but, he was issued a fictitious, baseless and concocted charge‑sheet of embezzlement in collusion with the concerned conductors. However, a pre planned domestic enquiry was conducted and he was dismissed from service. All the respondents claimed to have submitted their respective grievance notices upon the appellant Corporation followed by their grievance petitions under section 25‑A, I.R.O. 1969.

3. The appellant Corporation resisted all these grievance petitions of the respondents on the ground that if the respondents had not acted as accomplice in the fraudulent activities of the concerned Bus Conductors, they would not have dared to commit such frauds and that the proper proceedings against them pending and that in the present cases they have been found guilty of misconduct in properly held domestic enquiries in each case, hence the respondents could not maintain grievance petitions which were liable to be dismissed.

4. Both the parties filed their respective affidavits‑in‑evidence and they were duly cross‑examined. After hearing the parties, the learned Labour Court has passed a common impugned order consolidating all cases c e respondent; hence, the present appeal against all the respondents.

5. I have heard Mr. Azmatullah Khan, the learned Law Officer of the appellant Corporation and Mr. Latif Saghar the learned Advocate for the respondents and have also carefully perused the record and proceedings of the cases. The learned Labour Court has discussed and decided the sole point of Law to the present appeal against all the respondents, whether the impugned dismissal orders of the respondents were sustainable in Law or not. At the very outset, I would observe here that after considering the nature of duties of the respondent Inspectors and the evidence of one Bukhari, the sole witness of the appellant Corporation the learned Labour Court was quite correct and reasonable in forming its opinion that the respondents were being compelled to do which they could not possibly do as a matter of duty. There is a well known legal Maxim A "Law non cogit ad impossiblil" is (The law does not compel a man to do that which he cannot possibly perform). Further, this Maxim may be read with advantage from the Broom's Legal Maxim, 162 (Reprint in Pakistan 19691. From the perusal of the record, I find that there is no iota of evidence to substantiate the charge of misconduct against all the respondent Inspectors. The burden to prove the charge against all the respondents was exclusively upon the prosecution to which the appellant Corporation has miserably failed to do so. It is an admitted position that one Abdul Rasheed Khan who had been shown as a Member of the Special Squad who had detected the frauds against the respondents, used to sit in the Headquarters and was not a member of the said squad at the relevant time On the other hand, this Abdul Rasheed Khan in his deposition has clearly admitted that no report of fraud was made against the Inspectors, namely, Abdul Qayyum and Abdul Aziz Khan Oadri, and that it was not possible for an Inspector to check more than one bus at one time and that the action against the respondents was taken only by the Director Operations of the appellant Corporation. All the prosecution witnesses had also conceded that the action taken against Abdul Qayyum and Abdul Aziz Khan Qadri was illegal. As regards the respondents namely, Mulazam Hussain and Ishtiaq Ahmad Khan it was confessed by the prosecution witness, Abdul Rasheed that he was not present at the time of checking by the special squad. None of the other prosecution witness had deposed against the respondents, Mulazam Hussain and Ishtiaq Ahmad Khan and it was an admitted position that at the time of the alleged checking by the Special Squad, these two respondents were not present at the spot. It was however, argued by Mr. Latif Saghar, the learned Advocate for the respondent Inspectors that the domestic enquiry was mere cloak and device, just to take revenge from the respondents and to get rid of them and that an accused is presumed to be innocent till such time he is found guilty but, in the present case, there is nothing on record to prove that any of the respondent Inspectors was guilty of any alleged misconduct and that 'n fact, only on the behest of the Director Operations they were deliberately made victims for an offence which had been committed by someone else. Mr. Saghar, the learned Advocate for tile respondent Inspectors has further submitted that all the actual culprits who were Bus Conductors at the relevant time were not proceeded with for their alleged fraud and they are still in service, but, with an ulterior motive, the5c poor and innocent Inspectors were picked up and chosen to he thrown out from their employments so that some room be made vacant for the own persons of the Director Operation of the Appellant Corporation. I see much force in this argument of Mr. Latif Saghar, the learned Advocate for the respondent Inspectors. While, on the other hand, Mr. Azmatullah Khan the learned representative for the appellant Corporation has no legs to stand in support of any of his contentions and or to substantiate his case against the respondent Inspectors. In view of these facts, circumstances and legal aspects of all the four cases of the present appeal I would hold that there is nothing wrong with the l impugned order and it was rightly passed by the learned Labour Court, therefore, I I would also maintain the same.

6. For the same reasons discussed by me above, I see no reason to interfere with the impugned order and would maintain the same. All the four respondent Inspectors are directed to be reinstated in their respective service with full back benefits. The present appeal is accordingly dismissed. The amount of back benefits deposited by the appellant Corporation for each respondent Inspector he immediately paid to him, after due verification. A.E./1258/Lb.S Appeal dismissed.