1989 PLP 458 (PLC)

4. Applicant Ghulam Haider filed his affidavit‑in‑evidence and he was cross‑examined by Mr.Azmatullah Khan representative for the respondents, all the relevant documents relating to enquiry and the enquiry report and dismissal order were produced through applicant in his cross‑examination. Respondents examined GA.Shah Bukhari, District Manager who has dismissed the applicant from service and he was cross‑examined by Mr.Khalilur Rchman learned representative for the applicant.

5. Mr.Khalilur Rehman, learned representative for the applicant and Mr.Azmatullah Khan, learned representative for the respondents have riled their written arguments and I have considered the written arguments riled by them and I have gone through evidence on records. POINT NO.1.‑‑Whether the dismissal order dated 23‑8‑1987 is illegal and the applicant is entitled for the relief prayed by him? FINDINGS AND REASONS: Bus of the applicant was checked by the Reporter Ibrar Hussain, Inspector Qazi Ehsan, Inspector S.S.Phul Pir Shah on 1‑4‑1986 at 7th day Hospital and as alleged by the respondents the checking party found 3 passengers travelling without tickets from Hydari to Tower from whom the applicant had already recovered the fare C' Rs.4 each and had not issued tickets to them and further eight passengers were travelling without tickets from Sakhi Hasan to Eidhgah from whom the applicant had not realized fare with intention to recover the same at their destination and had the bus not been checked by the checking party the applicant would have defrauded the Government revenue to the tune of Rs.44. The checking party confronted all the tickctless passengers to the applicant and obtained 11 unpunched tickets from him. The checking party filled up TT‑40 and gave copy of the same to the applicant and also obtained statement of applicant on TT‑40 report on the spot. Applicant was charge‑sheeted to which the applicant submitted his reply which was found unsatisfactory by the respondent No.l who ordered for enquiry which was conducted by Manzoor Ahmed Semijo, Enquiry Officer who recorded statements of lbrar Hussain Inspector, Reporter and Inspector Qazi Ehsanul Haq. They were cross‑examined by the applicant and the statement of the applicant was also recorded. In cross‑examination Mr.GA.Shah Bukhari, District Manager has admitted that none of the ticketless passengers had signed on the TT‑40 report and no ticketless passenger was examined in domestic enquiry and the applicant was also not cross examined on his statement. He has also admitted that the statements of the witnesses recorded show that the same were also not recorded on oath by the enquiry officer. Further, he has admitted that the enquiry notice is cyclostyle proforma and the blanks are filled by hand but he has denied the suggestion that the reply to charge‑sheet was not considered. He has admitted that in enquiry notice it is not mentioned as to how the reply is unsatisfactory. Further, he has admitted that on TT‑40 report Col. Ghulistan has ordered "the individual be booked off and proceeded against". The District Manager has written words "YES". Mr. Khalilur Rehman, learned representative for the applicant has assailed evidence that on direction of Director Operation, Col. Ghulistan, District Manager has proceeded against the applicant, irrespective what are the charges and whether the charges are based on truth and this position is not appreciated in the eye of law and in such state of affairs it was held by the Honourable 4th Sind Labour Court in case reported in 1988 P L C

855. Mr. Khalilur Rehman, learned representative for the applicant in his arguments has contended that it is incumbent upon the employer to scrutinize the reply to charge‑sheet and then decide as to whether the enquiry has to be held or not. In the present case the respondent has already decided that the enquiry would be held irrespective of the fact as to what the reply of the charge‑sheet would be and in support of his contention he has cited 1978 P L C

201. Next it has been contended by Mr.Khalilur Rehman, learned representative for the applicant that it was the duty of the respondent to consider the explanation and after applying his mind a decision should have been given if the case was fit for enquiry or not. This procedure was not adopted in the present case, and in support of this contention he has cited 1977 P L C

101. Mr.Khalilur Rchman, learned representative for the applicant has cited 1986 P L C 838 and in his written arguments has mentioned the following observations of the Honourable Court:‑ "After going through the record 1 find that the checking party checked the bus while yet the conductor was going to issue tickets to the passengers. In the domestic, enquiry no passenger was confronted with the Conductor with regard to the fact that the tickets were not given to the passengers and money was charged. Such an, evidence is lacking. The conclusion drawn in the domestic enquiry was therefore, wrong without establishing the factum that passengers were charged and the tickets were not issued, no case is made out against the conductor. The safest course is that in the domestic enquiry some passengers may be examined." Mr.Khalilur Rehman, learned representative for the applicant has contended in his written arguments that the statements of prosecution witnesses have not been recorded on oath and the law is very clear on this point and the observations of the Honourable Labour Appellate Tribunal N.‑W.F.P., reported in 1987 P L C 877 have been quoted in the written arguments. "(1) A court or a person with authority under law to examine a person as a witness held no question but to examine a witness on oath or solemn affirmation." "(2) Examination of witnesses on oath Evidence (recorded without, held, could not balance in weight with evidence on oath." Mr.Khalilur Rehman, learned representative for the applicant has also cited in his written arguments following case of Honourable Punjab Labour Appellate Tribunal:‑ "Witness must be administered oath and thereafter evidence recorded in presence of accused‑‑Written statement already given to management‑ Neither recorded on oath nor in presence of accused‑‑Inadmissible‑‑ Enquiry based upon such statement‑‑Invalid." Having considered the written arguments of the learned representatives for the parties and authorities cited by Mr.Khalilur Rehman, learned representative for the applicant in his written arguments, I am of view that order of dismissal of the applicant will not sustain as the statement of prosecution witnesses have not been recorded by the Enquiry Officer on oath and statements of ticketless passengers were neither recorded on TT‑40 nor in the domestic enquiry. Cash bag of the applicant was also not checked to show if it contained excess amount. For the foregoing reasons 1 set aside the dismissal order dated 23‑8‑1987 and direct the respondents to reinstate the applicant in service, however no back benefits are allowed as the applicant neither in application nor in affidavit‑in‑evidence has stated that he is jobless since the date of dismissal. M.Y.H./1392/Lb.S Dismissal set aside.