1987 PLP 109 (PLC)

‑‑Ss. 25‑A & 38(3)‑‑Dismissal from service‑‑Employee, a Bus Conductor dismissed from service as a result of domestic inquiry for having realised fare from passenger without issuing tickets‑‑Record showing that in domestic inquiry only reporter was examined and his evidence too was hearsay and no passenger or other independent witness was examined by management to prove charge against respondent and conclusion drawn in domestic inquiry was wrong‑‑Without establishing factum that passengers were charged and tickets were not issued, no case was made out against respondent‑‑Order of Labour Court re‑instating respondent was upheld without back benefits. Azmatullah Khan for Appellants. Date of hearing: 13th February, 1986. This is an appeal against the order of Sind Labour Court No.l, Karachi, who by his order, dated 18‑8‑1985, has re‑instated the respondent with full back benefits.

2. That the facts are that the respondent was employed as Conductor since 10 years. On 29‑3‑1982, while he was on duty some lady passengers boarded the bus at Sindhi Hotel Stop and while the respondent was inquiring from ‑the ladies passengers about their destination, Inspector Raes Hussain checked the bus at Gulshanabad and learnt that the lady passengers were not prepared to pay the fare. The Inspector Raes Hussain paid the fare himself to the respondent and he also asked the respondent to issue 16 tickets of 50 paisas each. It is the case of the respondent: that he had not realised the fare from 16 lady passengers as they had refused to pay the same on the plea that they had boarded the wrong bus and in fact they had to go to Juna Market and ultimately they boarded the bus of Route No.

60. It is alleged that no evidence was recorded before the respondent by Inspector Raes Hussain and neither the lady passengers were confronted to him nor they were examined on the spot to prove that they had paid the fare to the respondent. Subsequently, an enquiry was held which according to the respondent was not proper and fair and the enquiry report itself is also not based on evidence. The respondent pleaded that the charge sheet was issued to him on 31‑3‑1982, whereas the enquiry was held after one year and two months. Thus, he was dismissed from service after 16 months of the issuance of the charge‑sheet and during this period, he remained jobless.

3. The case of the appellants is that Inspector Raes Hussain checked the bus on 29‑3‑1982 and found 16 lady passengers travelling without tickets from New Karachi No.5 and Sindhi Hotel to Muslimabad. The respondent had already realized the fare from them. Therefore, the Inspector took 16 tickets of 50 paisas each from the respondent and filed up T.T.40 report on the spot. It is further alleged that the lady passengers had also informed the Inspector in the presence of the respondent that they had paid the fare amount to the Conductor but he did not issue the tickets. It is stated that the domestic enquiry was just and proper and the dismissal of the respondent is legal and valid.

4. I have heard Mr. Azmatullah Khan, the learned representative of the appellants and have gone through the record. The only point is whether the dismissal of the respondent was proper and valid. The record shows that there is absolutely no decide the case of the respondent. The respondent in his cross‑examination admitted that 16 lady passengers had boarded the bus from Bus‑stop No.5., New Karachi, but he denied the suggestion that he had charged fare from them or that he had not issued tickets to them. In cross‑examination, the respondent also denied having stated before the Enquiry Officer that he did not want to cross‑examine the reporter or that he did not want to make any statement and that his explanation may be treated as his statement. The respondent also denied the suggestion that he had received money from 16 lady passengers with the intention to misappropriate the same. On the other hand, the appellants' witness in his cross‑examination also admitted that on the spot the cash available with the respondent was not checked by the checking party while the respondent deposited the amount including the un‑punched tickets with the cashier. No independent witness was examined by the appellants in the domestic enquiry as only the reporter was examined and his evidence is hearsay. Therefore, the burden was on the appellants to prove the charge against the respondent, which they failed to do so. Likewise, in the domestic enquiry, no passengers was confronted With the respondent Conductor and the evidence with regard to the fact that the tickets were not given to the passengers and the fare was realized. Such an evidence is lacking. Thus, the allegation of recovery of fare from the ticketless passengers by the respondent is not proved. Therefore, the conclusion drawn in the domestic enquiry was wrong. Without establishing the factum the passengers were charged and the tickets were not issued, no case is made out against the respondent Conductor. The safest course is that in the domestic enquiry some passengers may be examined.

5. The conclusion drawn by the Labour Court is correct and I seed not interfere with the impugned order. I, therefore, uphold the order of the learned labour Court and hereby dismiss the appeal in limine. However, I would not allow the back benefits to the respondent. N.Y.H Appeal dismissed.