1978 PLP 43 (PLC)

S. 25‑A‑Misconduct‑Dismissal‑Misconduct involving punish ment of dismissal proved in domestic enquiry‑Discretion to award lesser penalty solely lies with Management‑Labour Courts cannot sit in appeal over such orders of Management‑Order of Junior Labour Court directing re‑instatement of workman by recommending lesser penalty set aside. Appellant in person Nemo for Respondent The above‑cited cross appeals have been filed by Muhammad Ashiq, Conductor, hereinafter mentioned the appellant workman, and the Govern ment Transport Service, Multan, hereinafter mentioned the respondent Management against the order dated 9th April 1974 passed by the learned Junior Labour Court directing the re‑instatement of the appellant workman by recommending a lesser penalty of stoppage of increment or promotion in place of his dismissal from service which according to him was too harsh a punishment in the circumstances of the case. The appellant workman has appealed for directing his unqualified re‑instatement while the respondent Management has sought for unconditional dismissal of appellant‑workman. I have gone through the record of the learned lower Court as well as that of the domestic enquiry proceedings and could not find any defect in the latter proceedings. The charge against the appellant workman was that on 23rd May 1972 as Conductor of Bus No. 4289 he was found by the checking party carrying five passengers and two maunds of luggage without tickets besides having an excess cash of Rs. 979 in his pocket. The said fraud being detected against him, he was suspended and a charge‑sheet was issued to him. An enquiry Officer was appointed and after regular proceedings taken against him, he was dismissed from service. The appellant workman moved the Junior Labour Court for redress against his illegally wrongful dismissal. His application was dismissed as having no force‑vide order dated 1st March 1973. He went in appeal, which was accepted by the then Punjab Labour Court, Central Zone, Lahore and the case remanded to the learned lower Court for fresh decision on the ground that the impugned order was not based on any evidence. The. learned trial Court in pursuance of the remand order recorded the parties evidence and passed the order now impugned by both the parties. The facts are un-controvertible on behalf of the appellant workman that his bus was checked by Muhammad Hussain, Station Superintendent, Government Transport Service, Multan, on 23rd May 1972 and Form TT. 40 containing aforesaid allegations of fraud was issued to him. Mr. M. S. Taslim Traffic Manager, Government Transport Service, Multan, was appointed an Enquiry Officer for the case and enquiry proceeding, on the basis of a regular charge‑sheet with show‑cause notice were started against the appellant work man. The statements of witnesses were recorded by the Enquiry Officer and final report submitted to the District Manager, Government Transport Service, Multan, second show‑cause notice was then issued and the appellant workman being given a personal hearing by the District Manager was dismissed,‑vide his orders, dated 9th February 1973. In this background of the facts a Labour Court is not supposed to interfere against the finding of the Management against the workman. It was clearly observed in the impugned order by the learned Presiding Officer that the domestic enquiry was conducted in accordance with law and petitioner before him was afforded full opportunity to defend himself and that the action of the Management was therefore proper. Despite this finding on record any consideration regarding length of the service of the workman and the nature of the fraud committed by him could not be considered as valid grounds to modify the order of the dismissal into that of a lesser penalty. This is recognized principle of practice in the Labour Courts that if a mis conduct involving punishment of dismissal is proved in the domestic enquiry then the discretion solely lies with the Management to award a lesser penalty if it is so advised in the relevant circumstances of the case. No such discre tion is vested in the Labour Courts by way of sitting in appeal over such orders of the Management. For these reasons the impugned order cannot be sustained and is set aside. The appeal preferred on behalf of the respondent Management is accepted as a result of which the impugned order of dismissal passed in the domestic enquiry against the appellant workman would be deemed to have beer upheld. The appeal of the appellant workman is dismissed.