1994 PLP 198 (PLC)

5. The petitioners were their own witnesses while Shaikh Muhammad Murad, District Manager and Munawar Ali Bhutto, the Enquiry Officer were examined on behalf of the S.R.T.C. in all the petitions separately.

6. The Labour Court found that in view of certain infirmities, as enumerated by him, the orders of dismissal stood vitiated. The learned Presiding Officer, therefore, allowed the petitions and by a common order reinstated them with full back benefits resulting in these appeals.

7. Before adverting to the merits of the case I might as well point out, that looking to the circumstances of the charge against the respondents allegedly with a community of mind, the cases should have been amalgamated, to have a proper prospective of the parts played by the respondents. Anyway let us see what has been said by the four respondents themselves in regard to the broad facts involved in these cases.

8. Manzoor Ahmed even in his petition admits going with Abdul Ghani for removing the defects of Bus No. 554, which had broken down at Hirabad. He mentions therein that they attended to the repairs and at about 10‑00 p.m. leaving the stearing box and other accessories under the care of Abdul Aziz, he alongwith respondents Abdul Ghani and Zainal Shah went for dinner. On return they found the stearing‑box missing. A report was then made to the Assistant Works Manager by the name of Ishtiaq on telephone who reached the site, and after verifying the facts returned with another stearing‑box and some tools. He also mentions that the report of the missing stearing‑box was lodged with the police station. These facts have been reiterated by him in his affidavit‑in‑evidence also.

9. Abdul Ghani also mentions that on the' date in question, he had been deputed with Manzoor Ahmed for removing the defects of Bus No. 554 lying broken down at Hirabad. They had gone there on a‑bus driven by respondent Abdul Aziz. He also repeats the story of going for dinner at about 10‑00, leaving the stearing‑box and other accessories with Abdul Aziz. On their return they had learnt about the loss of the stearing‑box from Abdul Aziz. He also affirms the arrival of Ishtiaq, and spoke in clear terms that in fact there was no defect in the stearing of the bus and it had started working with a little lubrication. The stearing‑box was not replaced at all. The same story more or less was mentioned by him in his affidavit‑in‑evidence.

10. Abdul Aziz in his petition stated that he had taken Manzoor Ahmed and Abdul Ghani on Bus No. 391 which was driven by him. He says that during the repairs it was found that the stearing box which had been taken by them was missing, and then goes to mention Ishtiaq's arrival after the news had been conveyed to the Workshop. The same version has been furnished by him in‑his affidavit‑in‑evidence.

11. There is some variation in the version as emanating from Abdul Aziz and the two cleaners namely Manzoor Ahmed and Abdul Ghani but the fact that a stearing‑box had been taken and was lost while in their custody is not denied.

12. We will now take up the case of Zainal Shah. Zainal Shah in his petition as well as in his grievance petition is reticent about the despatch or the loss of the stearing‑box He has maintained the same stand in the affidavit‑in evidence but paragraph 10 thereof shows that he is not totally unaware of the loss of the stearing‑box. He says that it was never kept on his bus and it was the responsibility of the people who had brought the instruments from the Workshop to take care of the same. In his cross‑examination he admitted that the stearing‑box of the bus had broken down at Hirabad, and it was on a message from him that Manzoor Ahmad and others had been sent from the Workshop to attend to the repair. He also takes up the story of the dinner but he could not say if the stearing‑box was in the bus when they had left for the dinner. He also admits that he was present when some members of the Workshop had turned up after the report.

13. It was the bounden duty of all the four persons to take propel care of the appellant's property/instruments and even Zainal Shah cannot disown his share of responsibility by saying that it was brought not by him but by his other colleagues. After all they were in the town, and could have their dinner at their own houses after leaving the bus at the Workshop. I will desist from examining the matter in minute as I am of the view that the reinstatement order must be upheld, though for altogether different reasons.

14. The learned Presiding Officer allowed the petitions in the main on technical grounds. He found fault with the non‑production of the F.I.R. I am afraid nothing turns on it as the loss of the stearing‑box was not under dispute. For the same reasons, the non‑production of the gate pass will be neither here nor there. Even the non‑production of the preliminary enquiry papers would be absolutely immaterial as Haroon Abbasi, who had carried out the preliminary enquiry, was produced as a witness in the domestic enquiry which by no stretch of imagination, would be called unfair. The respondents appeared therein and there was no allegation worth the name against the Enquiry Officer there or in the Labour Court. They had participated and had their full say. It is not their case either that they had expressed their desire and witnesses in defence were disallowed. There could be simply no defence witnesses in the circumstances referred to above. Again the fact that the statements of the respondents preceded inquiry from Haroon Abbasi could not be found sufficient to vitiate the inquiry. But I am afraid that the facts which the respondents had to meet do not constitute misconduct.

15. Certainly there is no positive evidence of theft, fraud, dishonesty or wilful damage, as the narrators of the incident are the respondents themselves. The only thing which could be considered would be the clause pertaining to habitual negligence or neglect of work.

16. The word "habitual" qualifies the later part of the clause i.e. neglect of work. It was so held in the case of Saifee Development Corporation v. Workers Union 1969 PLC

413. According to the judgment negligence or neglect of work are not used in disjunctive sense. As a result the order of reinstatement will hold the file.

17. According to me the award of back benefits, however, will not be justified in this case. It is clear that the entrustment of the stearing‑box worth Rs.35,000 (thirty‑five thousand) and the instruments was with Abdul Aziz, Manzoor Ahmed and Abdul Ghani. They had taken it by a bus of the SRTC. They were answerable for safety of the goods in their care.

18. The order of reinstatement, otherwise too, is on technical ground and back benefits are not awarded as a matter of course. The order of dismissal was not without jurisdiction, unwarranted or uncalled for. It was actuated partly or wholly on account of the conduct attributable to all the four. See Muhammad Bashir v. Punjab Labour Appellate Tribunal and another 1991 SCMR 2087.

19. Otherwise too Zainal Shah had not mentioned anywhere during the proceedings that he was jobless. According to the ratio laid down in the aforesaid case that will be an additional circumstance of disentitlement.

20. In the result the appeals are partly allowed.

21. Orders accordingly. H.B.T./2252/Lb.S Order accordingly.