1976 PLP 109 (PLC)

This appeal arises out of the order dated 18th September 1973 passed by the learned Junior Labour Court, Multan, dismissing the application of Muhammad Salim appellant for his re-instatement as Bus Conductor, Govern ment Transport Service, Multan as having been dismissed from service on 26th March 1973. He was served with charge sheet on 18th January 1973 as a result of the checking conducted on his bus on 10th January 1973 by the checking Staff consisting of Mr. Ghulam Akbar and Muhammad Yaqub, Traffic Supervisors and Nusrat Abbas, Special Checking Staff Supervisor He was allegedly found to have misappropriated Rs. 0 90 received by him as fare of two tickets of paisa 40 each and one student ticket of paisa

10. In other words he was charged with theft and fraud in connection with em ployers business under Order 15(3) (b) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 read with section 7(2) (b) of the Road Transport Workers Ordinance, 1971. In addition to this he was also charged with habitual breach of law of the establishment under Order 15(3) (g) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, read with section 7(2) (g) of the Road Transport Workers Ordinance, 1961. The learned Lower Court rejected the application filed by the appellant on the ground that no defect was found in the domestic enquiry made against him and the appellant failed to make out a case in his favour. The following contentions, inter ails, were raised on behalf of the; appellant before me (1) the domestic enquiry was not conducted on fair basis, in that neither the enquiry officer, was properly appointed, nor the evidence was properly recorded besides denying the appellant to produce his evidence in defence. (2) the appellant was neither charged with the habitual breach of law applicable to the establishment nor any such evidence was produced against him to form the basis of his conviction under section 7(2) (g) of the Road Transport Workers Ordinance, 1961. (3) Mr. Mukhtar Hussain Shah, Enquiry officer, was neither appointed as such under a regular order of the competent authority nor he could be appointed without prejudice to the appellant on account of his being inimical to him as having appeared as a prosecution witness in a previous enquiry which resulted in a clean acquittal of the appellant in appeal before a competent authority in that case. I have heard the parties on their respective contentions and have perused the record of the learned Lower Court as well as the relevant office record of the establishment bearing upon the domestic enquiry in the present case and some of the previous enquiries taken up against the appellant in the past. In the light of the assessment thus made by me the contentions put forward by the appellant cannot be regarded as without force. According to the letter, dated 27th February 1973, Ex-P A Mr. Naeemul Haq, Assistant Traffic Manager, Government Transport Service, Multan was appointed Enquiry Officer, and all concerned were intimated accordingly by the District Manager, Government Transport Service, Multan, the date for enquiry being fixed as 9th March 1973. Subsequently it so happened that the enquiry was conducted by Mr. Mukhtar Hussain,. S. G. T. S. on 8th March 1973 and 17th March 1973 holding him guilty of the charge, vide his enquiry report dated 22nd March 1973 without any regular appointment order traceable on the record much less the note of reasons necessitating tire change in the person of the enquiry officer. The fact could also not be con troverted that the statements of the witnesses recorded by the enquiry officer, were not even attested or signed by him, no defence evidence was recorded nor the statement of the appellant regarding his desire to produce his defence was taken down. It further bears out from the record that the appellant was not expressly charged with habitual breach of law by quoting any instance in this behalf nor any evidence was led to substantiate this part of the charge. A reference to the file of the domestic enquiry revealed that Mukhtar Hussain, Enquiry Officer, appeared against the appellant in a previous enquiry of misconduct as a prosecution witness and the appellant being held guilty in that enquiry at the first stage was exonerated the charge with favourable comments as to his innocence by the appellate authority of his establishment All these facts could be denied on behalf of the respondent and can hardly n be regarded as not having reflected on the result of the enquiry to be fair and equitable. It is pertinent to note that the charge against the appellant having been that of petty theft and fraud regarding 90 paisa, previous instances of misconduct of fraud on his part formed an essential part of the last enquiry. But no such instance was either mentioned in the charge-sheet or an iota of constant evidence was brought forth on this point. One more aspect of the case which cannot be lost sight of is the plausible defence put up by the appellant in his reply to the charge-sheet. He stated therein that the two passengers found to be ticketless in the bus having claimed to be students without showing him the identity cards had insisted to issue concessional tickets which could not be done by him and that the third passenger accompanied the other two passengers who possessed an identity card of a student and having paid one rupee for all the three tickets for the concessional tickets when in the meanwhile the checking staff entered the bus and pro - ceeded against the appellant without enquiring anything in this behalf from the passengers concerned. In this background and the circumstances where it is found that the charge was of a petty fraud with no express allegation of previous misconduct the appointment of Enquiry Officer was not regular, the enquiry proceedings were not above board and the appellant was not given clear opportunity of putting up his defence nor the defence given by him in his whiten reply to the charge-sheet was referred to or discussed by the Enquiry Officer, in his report the appellant could not be said to have been fairly tried and rightly convicted and dismissed in the domestic enquiry. Consequently the impugned order is set aside, the appeal is accepted and the appellant directed to be re-instated in his job within a period of 15 days. The appellant could not be held to be entitled to any back wages by reason of having his past record of service not altogether clear and above board.