1991 PLP 364 (PLC)

Gul Muhammad Soomro, Representative for Appellant. Khalilur Rehman, Representative for Respondent. Date of hearing:11th March, 1990. This is an appeal against the order dated 5-1-1989, passed by the learned Presiding Officer, First Sindh Labour Court at Karachi, whereby the grievance petition of the respondent was allowed and he was ordered to be reinstated in service with full back benefits.

2. I have heard Mr. Gul Muhammad Soomro, representative for the appellants and Mr. Khalilur Rehman, representative for the respondent, and have also gone through the record and proceedings of the case.

3. The brief facts of the case are, that the respondent was admittedly working as Conductor with the appellants. It is alleged that on 2-4-1987, when he was Conductor on Bus No. 839-933, the checking party consisting of Inspectors Muhammad Hameed and Ahmed Khan, checked the bus and found 11 passengers from whom the respondent has charged the fare, were not holding the regular tickets but were holding token of prize coupons. They recovered 11 un-punched tickets from the respondent, who was also confronted with 11 passengers. On 28-4-1988, the respondent was charge-sheeted for misappropriation of the amount of Rs. 12.50 the fare which he allegedly charged from the said 11 passengers. After domestic enquiry, the respondent was dismissed from service vide order dated 13-9-1987. Aggrieved by this order the respondent served grievance notice upon the appellant and failing to get any relief, filed the grievance petition.

4. The main ground on which the learned Labour Court allowed the grievance petition of the respondent was that the ticket less travelers were not examined by the appellants either before the Enquiry Officer or before the Labour Court. Mr. Gul Muhammad Soomro, has relied upon T.T. 40 which is Exbt-4, which shows that respondent was confronted with the said ticketless passengers. This Exbt-4 admittedly bears the signature of the respondent but it does not bear his statement of having accepted the contents of T.T.

40. The respondent in his cross-examination had denied the factum of confrontation of the passengers and has alleged that his signatures were taken any force on T.T.

40. Mr. Gul Muhammad Soomro, has relied upon 1980 P L C

279. In that case, the Bus Conductor had admitted in reply to T.T 40 stating, that passengers had made false statements and that he had not realised fare. It was held by the Labour Appellate Tribunal, Punjab that "such reply would mean that ticket less passengers had in presence of accused stated that, they had paid fare and thus accused stood confronted with them." It was further held that "the Labour Court while awarding reinstatement did not consider reply of accused to T.T. 40 and thus fell in error that there was no evidence of recovery of fare by accused from ticketless passengers." In case of Sakhawat Ali Shah versus Karachi Transport? Corporation and 2 others, 1990 P.L.C. 102, this Tribunal had held that "fact of realising fare without issuing tickets was not only admitted by workman himself, but evidence on record showed that he was confronted with ticketless passengers at the spot and unpunched tickets were also received from him by checking party while excess amount was also recovered from his cash bag, therefore the dismissal order of 'such enquiry report would not call for interference in the circumstances." Instant case is obviously distinguishable as the respondent does not admit the confrontation either in the reply to T.T. 40 report or before the Enquiry Officer or before the Labour Court. Admittedly the cash bag of the respondent was not checked to show that Rs.12.50 were recovered from the cash bag as excess amount. Under the circumstances, mere statement in T.T. 40 that the respondent was confronted with ticketless passengers would not be sufficient evidence.

5. There are consistent decisions both by this Tribunal as well as the learned Labour Appellate Tribunal, Punjab that non-examination of the ticketless passengers would raise presumption against the employer, in cases where tire Conductor is charged with having realised fare from the passengers, without issuing tickets. In absence of evidence of such passengers the order of dismissal on such charge has been set aside. Reference may be made to 1980 P L C 1089, 1986 P L C 838, 1984 P L C 1212, 1984 P L C 1193, 1985 P L C 240, 1990 P L C 145and1990PLC157.

6. In view of the above factual and legal position in my opinion that the learned Labour Court has rightly held that charge has not been proved against the respondent and, therefore, no interference by this Tribunal is warranted. The appeal is accordingly dismissed. ?M.Y.H./1680/Lb.S ???????????????????????????????????????????????????????????????? Appeal dismissed.