1970 PLP 347 (PLC)

(iii) That the' Order cannot be said to be lawful and reasonable one within the meaning of the section 7(2)(d) of the Road Transport Workers Ordinance, 1961.

4. Mr. Mehboob Rizvi very strenuously contended that the Despatcher Mushtaq Hussain was superior of the driver within the meaning of the section 7(2)(a) of the Road Transport Workers Ordinance. It would be useful to reproduce section 7(2)(a) of the Road Transport Ordinance. It runs as under:‑ "(a) Wilful insubordination or disobedience whether alone or in combination with others, to any lawful and reasonable order of a superior."

5. The question is as to whether Mushtaq Hussain can be said to be a superior of the driver, Zarin Khan, within the meaning of the section 7(2)(a) of the Ordinance. Superior is not Ins defined in the Ordinance. Ordinarily superior would mean some one who stands higher in respect of some other person. It may at once be mentioned that Zarin Khan did not challenge before the Enquiry Officer or in his application under section 38 of repealed Ordinance that Mushtaq Hussain was not his superior. A perusal of the statement before the learned Chairman would disclose that Zarin Khan was carrying out the orders of the Despatcher, Mushtaq. He stated as under:‑ "Mushtaq Despatcher asked me to put diesel oil 20 gallons in the bus for Karachi. When I returned after getting the bus filled with diesel oil, the Despatcher detained me as the other bus meant for Karachi arrived by that time. The Despatcher sent me back and asked me to come at 5. a. m.

6. In this connection the learned Chairman of the Industrial Court observed as under :‑ "There would be no difficulty in concluding that he f was not a superior officer of the petitioner. It was Mohammad Ishaq, Yard Master who could assign duties to the Drivers. Mohammad Ishaq never himself assigned the disputed duty to the petitioner. He says that Mushtaq Hussain, Despatcher was assigning the duties to the Drivers' under his general (obviously oral) instruction." ,

7. The mere fact that Mohammad Ishaq was primarily responsible to assign the duties, to drivers, does not mean that Mushtaq was not "a superior" within the meaning of section 7(2)(a) of the Workers Ordinance. Mushtaq issued order which Zarin Khan unhesitatingly accepted. Moreover B Zarin Khan never challenged the authority of Mushtaq to issue orders. I would hold in these circumstances that Mushtaq was superior within the meaning of 7(2)(a) of the Workers Ordinance.

8. It is also true that no adverse inference could be drawn from the fact that the despatch register was not produced. In the face of the admitted position that the appellant had signed the register, Zarin put only one question to Mushtaq in his cross examination before the Enquiry Officer. The question and answer are these

9. The question as to whether Zarin Khan was willing to go on duty, is one fact. The mere fact that the driver had signed the Despatch Register in token of his willingness to go on duty could not be conclusive proof that he was in fact willing to go on duty. As I have already said that it is a question of fact as to whether the driver was willing to go on duty or not. Mushtaq Hussain stated that the driver signed the register but stated that be would not go and went away. At is a question of believing Zarin Khan and Mushtaq. The question could not be resolved by the production of the Register.

10. There is a great force in the observation of the learned Chairman of the Court that the order to go to Khaddun No. III, could pot be said to be lawful and ‑reasonable order. The admitted position is that the driver had gone on duty on 1st June 1968 at 6 a. m and had remained on duty up to 3 p. m. The bus on which he was called upon to .go to Khaddun in service Ill, was to leave Hyderabad at 3‑30 p. m In this connection reference may be made to section 4 of the, Road Transport Workers Ordinance. It reads as under:‑

4. Hours of work and rest.‑(1.) No worker shall be employed on a vehicle. (a) ........................... (b) for more than nine hours in a day ; and (c) ...........................

11. Reading the above provision of law I have come to the conclusion that a worker cannot be required to perform duty for more than 9 hours in a day.

12. Mr. Mehboob Rizvi, however, contended that Zarin Khan, driver; had not performed any duty on 1st June 1968. He had only remained in the office and therefore, he could be called upon to proceed on duty. There is no force in this contention. The driver was available for 9 hours to perform his duty. He cannot be blamed if he was not asked to take out a Bus during the 9 hours that he was on duty. In this connection I may make a reference to the charge‑sheet.. It runs as under:‑‑.

13. It would appear from the charge‑sheet that I the driver had taken a stand that his hour of duty was over. It appears that the driver was willing to go to Khaddun 11, as a matter of grace. The Department should have known the limit kid down for working hour. The driver was bound to obey only lawful and reasonable order. The order requiring the duty after his duty hour was over on the face of it was unreason able. The disobedience of such an order cannot amount to misconduct. The appeal is dismissed.