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Petitioner: THE WEST PAKISTAN ROAD TRANSPORT WORKERS' UNION (REOD,) RAWALPINDI THE ROAD TRANSPORT CORPORATION, LAHORE VS Respondent: THE ROAD TRANSPORT CORPORATION, LAHORE AND THE GENERAL SECRETARY, WEST PAKISTAN ROAD TRANSPORT WORKERS' UNION, RAWALPINDI
Court Name: Industrial Appellate Tribunal Judge(s): Inamullah Khan Title:THE WEST PAKISTAN ROAD TRANSPORT WORKERS' UNION (REOD,) RAWALPINDI
THE ROAD TRANSPORT CORPORATION, LAHORE vs THE ROAD TRANSPORT CORPORATION, LAHORE AND THE GENERAL SECRETARY, WEST PAKISTAN ROAD TRANSPORT WORKERS' UNION, RAWALPINDI Case No.: Appeal No. R-I 193 of 1969 Appeals Nos. R-I 188 and 193 of 1969 Date of Judgment:1970-10-02 Reported As: 1970 PLC 241 Result: award made Judgment ORDER There are two Appeals before me. The one is by the General Secretary West Pakistan Transport Workers Union, Rawalpindi and the other is by the Road Transport Corporation, Lahore. I propose to dispose of these two Appeals by common order. They are directed against the same award made by the West Pakistan Industrial Court, (Central Zone), Lahore dated the April 24, 1969. I propose to dispose of the Appeal of the General Secretary Workers Union first. The facts giving rise to these Appeals briefly put are these. 2. West Pakistan Road Transport Workers Union, Rawal--pindi gave a strike notice to the Management on 31st 6f March 1967. After the failure of the Conciliation Proceedings and the issue of the Failure Certificate the General Secretary made an application under section 5(5) of the Industrial Disputes Ordinance, 1959, hereinafter called the Repealed Ordinance on the 24th of August 1967. The demand was confined only to one claim namely re-instatement of certain workmen of the Road Transport Corporation with full benefits. The workmen who were sought to be re-instated were 27 drivers, 46 conductors, 28 traffic cleaners, 5 Booking Clerks and 5 Junior Clerks. The learned Chairman of the Industrial Court rejected the claim of the work--men who did not appeared to support their claim before him. He considered the case of 10 drivers, 14 conductors, 8 traffic cleaners, 2 Junior Clerks and 2 Booking Clerks, accepted the demand in respect of some of .these workmen and. rejected the demand of others. Of those whose demands were rejected J 5
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persons have come in Appeal before me. I propose to dispose of the contention of Mr. Nazeer Ahmad Naz, the learned Representative of the Union in respect of these Appellants separately. 3. Before I take up the cases of these Appellants I would observe that it is not the task of the Industrial Court or that of Tribunal to go into the merits of the allegations made by the employer and the workmen before the domestic Tribunal. The Industrial Court or the Tribunal cannot sit as a Court of Appeal over the findings given by the Enquiry Officer appointed by the Employer. The jurisdiction of the Industrial Court is confined to scrutinize as to whether the finding of the Enquiry officer was fair and impartial and has been arrived at after giving full opportunity to the workmen to be heard and to produce his evidence, if he so desired. This proposition, Mr. Naseer ul Hassan, the learned Representative of the Corporation concedes is now well established by numerous decisions of the Supreme Court of Pakistan. I will now proceed to examine the cases of these Appellants in the light of what has been held by the Supreme Court of Pakistan that the Industrial Court cannot sit as` Court of Appeal over the finding of the Enquiry Officer in a domestic enquiry. 4. The Appellant, Niaz Muhammad, Driver, was found to have committed misconduct by the Enquiry Officer and was dismissed from service. Along with the Appellant, Muhammad Yousuf, Cleaner, was also charge-sheeted, under section 7(2)(b) of the Road Transport Workers Ordinance. The charge against the Appellant was that he had connived over the conduct of the Cleaner, Muhammad Yousaf in realising fare from four passengers and having not issued tickets to them. It has been contended by Mr. Naz, for the Appellant, that theconclusion of the Enquiry Officer as to the misconduct of the Appellant is perverse and therefore it is within the jurisdiction of this Court to examine the finding of the Enquiry Officer. Iii this connection the main point which has been urged is that Niaz Muhammad admittedly had never realised any fare from the 4 passengers. It was the Cleaner who had realised the fare and failed to issue the tickets. The question is, it was contended by Mr. Naz, as to whether the Appellant had connived over the conduct of the cleaner in not issuing the tickets to these 4 passengers. The submission is that it was not the case of the Checker, Muhammad Riaz Hussain Shah, Station Superintendent, who checked the bus, that the Driver was in league with the Cleaner, Muhammad Yousuf: In this connection reliance is placed on T. T. 40. It may be stated that T. T. 40 is a Form maintained by the Road Transport Corporation. In the said Form, when the bus is checked, the checker has to mention the breach of the Corpora--tion's Rules committed by its employees. The Form also requires the employee to give his explanation in respect of the alleged breach of the Rules committed by him. T. T. 40 is Exh. R-12. A perusal of T. T. 40 would disclose that there is no allegation against the- Appellant that he had connived at the R', conduct of the Cleaner, Muhammad Yousuf or was in league with U' him in not issuing the tickets, to the 4 passengers. The T. T. 40Form would disclose that Muhammad Yousuf was alleged to have realised fare from 4 persons and had not issued tickets to them. The statement of Niaz Muhammad, Exb. R-13 which was recorded, by Mt. Riaz Hussain Shah at the time when he checked the bus B would disclose that he had taken step to satisfy himself that the A cleaner had issued tickets to the passengers. He stated that it T teas only after the bus was checked he came to know that the cleaner had committed dishonesty. 'I he statement would further disclose that some of the passengers had told the checker that the driver was quite innocent. The admitted position being that the cleaner had realised the fare from the 4 passengers the question would be as to whether the Appellant was guilty under section 7(2)(b) of the Road Transport Workers Ordinance, 1961. A person would be guilty under section 2(b) for misconduct if he is guilty of theft, fraud or dishonesty in connection with the employer's business or property. The question is as to whether the conclusion of the Enquiry Officer is based on any evidence as to the dishonesty of the driver. I have gone through the report of the Enquiry Officer. There is no mention of any evidence on which the conclusion as to dish6nesty of the Appellant is based.' It is true the charge as to connivance of the Appellant cannot be proved in the circumstances of the present case by an) evidence accept
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circumstantial evidence. In the present case no circumstantial evidence has been brought to my notice which could connect the Appellant with the conduct of the cleaner. Mr. Naseerul Hasan, the learned Representative for the Corpora--tion, however, submitted that the Court may take into consideration the subsequent conduct of the Appellant inasmuch as he stated before the Enquiry Officer that the persons to Whom tickets were not issued were Army Personnel and who had refused to pay their fare. It is true the appellant had changed his statement from what he has stated at the earliest when his bus was checked. The prosecution, however, cannot succeed by the weakness of the defence. It has to stand what its case was at the earliest. I seems to me that the checker was satisfied at the time when he checked the bus that the appellant was not in league with the cleaner and that is why he did not mention these facts in the T. T. 40. If the checker had any suspicion against the driver he was not stopped from charging the driver for being in league with the cleaner. I have come to the conclusion that the conclusion of the Enquiry Officer as to the misconduct of the Appellant is perverse and is not based on any evidence: I would allow his, Appeal. The Appellant to be re-instated. He will be entitled to receive full emolument from the date that he was dismissed from service till the date he is re-instated. 5. Appellant, Amir Afzal was appointed in place of one Aurangzeb, who had proceeded on Military Active Duty. The Appellant was to be relieved on. return, of Aurangzeb from Active Service. The Department terminated services on the return of Anrangzeb. It was contended by Mr. Nazeer Ahmad Naz the learned Reprehensive of the Appellant, that Aurangzeb had not returned when the service of Amir Afzal was dispensed with. In this connection Mr. Nazeer Ahmad Naz relied on the statement of Mohammad Ashraf, Clerk, R. W. 5. He drew my attention to his cross-examination. He stated in the cross-examination that he had not brought the Office Order by which Aurangzeb was directed to resume duty. The contention of Mr. Naz was that presumption should be drawn against the Department from the non-production of Office Order that Aurangzeb had not resume duty when the service of the Appellant were terminated. Mr. Naseerul Hasan, on the other hand, contended that no such presumption should be drawn. The witness was never called upon to produce the Office Order in question. If the Appellant wanted Muhammad Ashraf to produce the Office Order he should have requested the Court to direct Muhammad Ashraf to produce the said Order. It was only if he failed to produce the Office Order that an inference adverse to the Department could be drawn. Mr. Naseerul Hasan further submitted that there is no cross-- examination in respect of the statement of Muhammad Ashraf that the services of Amir Afzal were terminated only after the return of Aurangzeb. In these circumstances, it is submitted, that there is no reason to up-set the finding of the learned Chairman of the Industrial Court. It was also contended that the Appellant being only a "badli" was not entitled to a notice under Standing Order 12(2) of 1968. It is not necessary to go into this question as I am of the view that the service of the Appellant was terminated only after the return of Aurangzeb. The Appeal of Amir Afzal is dismissed. 6. Appellant, Bashir Ahmad was a driver and was charge-- sheeted on the allegation that he drove bus No. 3672 without water in the radiator and thus caused damage to the engine to the extent of Rs. 12,000. The Appellant contended that he had been victimized because on the day of the incident he was not given the bus which he used to drive and a defective bus was given to him. Sheikh Abdus Samad, Deputy Traffic Manager was appointed as Enquiry Officer. He recorded the evidence of the Corporation and the statement of the Appellant. In order to appreciate the contentions of Mr. Naz and that of Mr. Naseerul Hassan the learned Representatives of the parties, it would be useful to reproduce the relevant portion of the charge-sheet. It runs as under:- "You driver Bashir Ahmad are charge-sheeted for the following offences. -- I, Ibne Hassan, District Manager, Government Transport Service, Rawalpindi, therefore, charge you for misconduct under section 7(2) (r), (g) and (i) of the Road Transport Workers Ordinance, 1961."
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It is necessary to reproduce section 7(2), (c), (g) and (i) of the Road Transport Workers Ordinance, 1961 in order to find out if tire Appellant is guilty under any of these provision. It runs as under:- 7 (1) (2) Nothing in subsection (l) shall apply to the case of a worker whose services are terminated on account of his having been guilty of misconduct. For the purpose of this subsection the following acts and omissions shall be treated as misconduct, namely:- (a) (b) (c) wilful demage to or loss of employer's goods or prop", (e) (g) habitual breach of any law applicable to the establish--ment, (1) habitual negligence or neglect of work. 7. It is important to reproduce the conclusion of the Enquiry Officer. The Enquiry Officer after considering the evidence relating to the damage caused to the engine came- to the following conclusion:-- "I therefore consider that the damage has been caused due to the negligence of the driver otherwise the damage to the engine to this extent could be avoided to therefore recommend that driver may be dismissed from service and his dues forfeited as a compensation towards the damage." 8. The question, in the first place, is as to whether the Appellant was guilty under section 1(2)(c) for wilful damage to or loss to the employer's property. The Appellant was never charged for having caused wilful damage or 1039 to employer's goods of property. The findings of the Enquiry Officer is also silent on this aspect of the case. The conclusion of the Enquiry Officer that the Appellant did cause damage to the property of the Corporation, cannot be construed to mean that the Appellant caused the damage wilfully. There was no such charge nor is there any such finding of the Enquiry Officer. Where the Legislature has used a word it must be given its due meaning. Wilful implies a knowledge or intention on the part of -the Appellant. The damage may have been caused to the property of the employee due to carelessness or negligence but it cannot be said to mean that it was wilful. I would hold, in the circumstances of the present case, that the Appellant was not guilty to have wilfully caused damage to the property of the Corporation. 9. There is no evidence that cite appellant was guilty of any habitual breach of any law applicable to the establishment. In the absence of any evidence or allegation the Appellant cannot be said to be guilty of habitual breach of any law applicable to the establishment. 10. Lastly, the charge-sheet which I have already reproduced ' does not allege that the Appellant was guilty of habitual negligence or neglect of work. He was charge-sheeted for having caused damage to bus No. 3672. The finding of the Enquiry Officer is also to that effect and not for habitual negligence or neglect of work. In these circumstances the appellant cannot be said to be guilty of misconduct under section 7(2), (c)(g) and (i). 11. I would allow the appeal of the appellant, Bashir Ahmad but in the circumstances of the case which 1 will presently mention would not order that he should be paid the emolument for the period that he was out of job. He would be re-instated but would not be entitled to any back benefits. The appellant, as I have already observed, was found by the Enquiry Officer to be guilty of negligence which resulted in the loss of the Corporation. I would, therefore, not allow him any benefits for the period that he was out of employment. 12. I would take up the Appeals of Saleem Shah, Driver and Mahmood Akhtar. Traffic Cleaner together. They were charge-sheeted on the ground that while on duty Traffic Cleaner with the connivance of the driver realised fare at the rate of Rs. 8.00 per passenger from two passengers for
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the journey from Pizzo to Rawalpindi and issued tickets to them. After issuing tickets, the cleaner, with dishonest motive altered the point of destination from Rawalpindi to Tajzai and. the fare of Rs. 8.00 each to Rs. 00.81 each. The fraud was detected by the Assistant Cashier and the amount was realised from the driver. The learned Industrial Court after considering the plea of the appellant came to the conclusion that the enquiry against the Appellants was fair and they have been given full opportunity to cross---examine the witnesses produced against them and that they were also given full opportunity to produce their defence. The learned Chairman dismissed the demand of the Union in respect of these two appellants. I heard Mr. Nazeer Ahmad Naz for the appellant and hive come to the conclusion that the domestic enquiry being fair and impartial cannot be set aside against the driver on the ground that he had not realised the money. In the present case the charge against the driver was that it was because of his connivance that the fraud was committed. It wag contended by Mr. Naz that the case of the cleaner was that the forgery was committed by the cashier as he hid refused to' gratify the wishes of tae cashier by giving him a packet of cigarettes. I cannot go into these questions of fact, the domestic enquiry being fair and impartial. The appeal of these two persons is dismissed. 13. Appellant, Altaf Hussain was Traffic Cleaner. Mr. S. A. Samad checked the bus of the appellant. Mr. Samad asked the appellant to produce R. P. T. Book. He said it was lying in the bus. It was not found in the bus. In the meantime it was noticed that the Traffic Cleaner disappeared from the scene. He again appeared. He was holding two tickets for Rs. 0.31 and Rs. 0:75 respectively: The checker found that two of the passengers were travelling without tickets though they had paid Rs. 0.31 and Rs. 0.75. The appellant was charge-sheeted for misconduct, which of he denied. 14. Mr. Naz, in the first place, contended that the Enquiry was not fair inasmuch as Mr. Arif Sarwar, Assistant Traffic Manager was under Mr. Samad, Deputy Traffic Manager, who had checked the bus of the appellant. In this connection Mr. Naz drew my attention to the objection of the appellant to the D. M. that Mr. Arif Sarwar being under Mr. Samad should not be appointed as Enquiry Officer. It is true Mr. Sarwar is under the Deputy Traffic Manager and that the appellant had also taken objection to the appointment of Mr. Arif Sarwar as Enquiry Officer. The suggestion of Mr. Naz is that Mr. Arif Sarwar being a sub-- ordinate of Mr. Samad, who checked the bus of the appellant, could not give an independent finding. On the other hand, Mr. Naseerul Hasan, the learned Representative for the Corporation submitted that the mere fact that Mr. Sarwar was subordinate of Mr. Samad is no justification for the suggestion that Mr. Arif Sarwar could not hold an independent enquiry. In this connection Mr. Naseerul Hasan submitted that the District Manager, who is incharge of the District, also makes surprise checks of buses to find out as to whether the checking staff is discharging its duties properly or not. It is submitted that in case the District Manager found some one guilty of misconduct within the meaning of section 7(2) of the Road Transport Workers Ordinance, 1961, he had to appoint some one as Enquiry Officer who will be sub ordinate to him. The mere fact that some one subordinate to the District Manager was appointed as an Enquiry Officer is no ground for the conclusion that the subordinate will not act independently. There must be something more than the mere fact that one is subordinate to the Checking Officer to substantiate the allegation that the Enquiry was not fair. In the present case Altaf Hussain, when he appeared before the Enquiry Officer did not protest that he had any grievance against him. The conduct of the Enquiry Officer in conducting the Enquiry also does not lend support to the contention that he acted in any prejudicial way. I agree with the conclusion of the Industrial Court that the enquiry was fair and impartial and in accordance with the Principle of Natural Justice. The Appeal of Altaf Hussain is dismissed. 15. There is no force in the Appeal of Muhammad Illyas, Cleaner. He was charge-sheeted for having realised fare from two ladies and to have not issued tickets to them. It was contended by Mr. Naz that the bus had a capacity of only 46 passengers but it had 61 passengers at the time when the
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bus was checked. The suggestion is that in rush the tickets were not issued. I cannot agree to the suggestion. In the first place, if the appellant, Muhammad Illyas realised the fare he should have at once issued) the tickets to the two ladies. In the second place finding of the Enquiry Officer being fair and impartial this Court could not got into the merits of the case. 16. Muhammad Mazhar, appellant, was employed on the 25th of February 1966, on three months probation and hiss services were terminated within the probationary period on the 20th of May 1966, on the ground of unsatisfactory work. It is contended that he was entitled to show-cause notice to enable him to explain his conduct. On the other hand, Mr. Naseerul Hasan, the learned Representative for the Department relied on Standing Order 12(L) of 1960 and contended that the appellant being on probation his services could be terminated even without notice. The relevant provision of Standing Order 12(2) reads as under: - "No temporary workman whether monthly-rated, weekly-- rated or piece-rated and no probationer or badli shall be entitled to any notice or pay thereof if his services are terminated, but the services of a temporary workman shall not be terminated as a punishment unless he has been given an opportunity of explaining the charges of misconduct alleged against him in the manner prescribed in para. 13." 17. The short question is as to whether the services of a workman who is employed as a probationer can be terminated on the ground of unsatisfactory work without giving him an opportunity to explain his conduct. Mr. Naz referred to PLD 1967 Lah. 491 It was observed in that case that: - "A probationer is as much in service or as much holds a a civil post as any other employee. The only difference is that his appointment has not yet got a sure footing from the very beginning. But that is a different matter altogether. If what takes place is simple termination of his service, then he is not eligible for a show-cause notice but if it is a dismissal or removal, as for example for misconduct or for unsatisfactory work, then he is eligible for a show-cause notice." 18. The reason behind the principle laid down in the case of Riaz Ali Khan is obvious. If the services of a probationer are terminated without giving the reason, it does not cause any reflection on his conduct. On the other hand, if his services are terminated on the ground of unsatisfactory work it will be a hindrance in the way of his future employment. Mr. Nashull Hasan contended that a distinction must be made between termination of service and dismissal or removal from service. The distinction, no doubt is there, but mere use of- the word in case of a probationer that his services are terminated on the ground of unsatisfactory work will make no difference. It is the reflection cast on the character of a workman that attracts the principle of natural justice that no man should be condemned `N without being afforded an opportunity to be heard. I would, for these reasons, allow the appeal of Muhammad Mazhar. The question, however, is as to the emoluments that be would be entitled to receive. Admittedly Muhammad Mazhar was a probationer or a period of three months, I do not consider ii proper in the interest of justice to burden the Department to pay his emoluments for the period that he had been out of employment. I would order that Muhammad Mazhar should be re- instated, If the Department so desires, it can give show-cause notice for his unsatisfactory work and after holding an enquiry pus such order as it deems proper. 19. Appellant, Alam Sher, Conductor, was charge-sheeted for allowing 5 passengers to travel without tickets with dishonest motive to collect their fare at the destination and pocket the same. 20. It is contended that there is no evidence to establish that the appellant would have realized fare when the passengers reached their destination. On the other hand, Mr. Nabirul Hasan submits that this is a question of fact and in the present case, the Enquiry Officer from the conduct of the Appellant came to the conclusion that he was guilty of misconduct. This Court it is urged could not go into this question. The Industrial Court found that the enquiry was fair and impartial. I agree with that conclusion and see no reason to disturb the finding of the Enquiry Officer.
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21. Mr. Naz also contended that it would appear from the charge-sheet that the total of the amount to be realized is wrongly given. In my opinion, too much stress cannot be given to that fact as the amount of fair for the destination is given in the charge sheet. If properly totalled the mistake in the charge -- sheet is apparent. 22. It was also submitted by Mr. Naz that the Enquiry Report should not have been taken into consideration, as it was not established that Mr. Gul Muhammad, who was the Enquiry Officer, was dead. The Enquiry Report was produced by Mr. .A. Samad that the whereabouts of Mr. Gul Muhammad were not known. In the circumstances, the learned Court was quite right in taking the report on his file. 23. Lastly, it was contended that merely failing to issue of ticket would not amount to misconduct. It may be negligence of duty. It is true, mere failure to issue tickets would not amount to misconduct, but where the charge is that the tickets were not issued, as the appellant wanted to realize the fare from the passengers when they gut down at the destination, so that be may defraud the Company of its fare, it…
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