This is an appeal under section 16 of the West Pakistan Industrial Disputes Ordinance, 1968 (hereinafter called the Ordinance), against the order of the West Pakistan Industrial Court (Central Zone), Lahore, dated 8th January 1969. The impugned order was passed on an application under section 38 of the Ordinance. The facts necessary for the disposal of the appeal briefly put are these.
2. On 24th February 1967, the Anti-Corruption Stall' of the Road Transport Corporation, Lyallpur, checked the bus on which the appellant was performing the duty as a Cleaner. The Anti- Corruption staff found a number of irregularities, which the Cleaner had committed. These were as under:
(1) The passengers who boarded the but at Chichawatni for Lahore paid an amount of Rs. 8.62, to the appellants, but the later gave them tickets from Okara to Lahore and thereby defrauded the department of an amount of Rs. 3.88,
(2) Four passengers boarded the bus from Montgomery for Lahore and paid Rs. 14.00 to the appellants but the latter issued tickets to them from Okara to Lahore and thereby defrauded the department of an amount of Its. 4.52.
(3) An examination of T. T. 2, of the appellant revealed that certain tickets which were issued from Okara for Lahore were shown to have been issued from Hazrat Karmanwala for Kissan. The petitioner thus Md committed fraud.
(4) The appellant had intentionally misplaced his R. P. T. Book, in order that the Checking Party may not be able to compare the tickets in possession of the passenger with the tickets in the It. P. T.
Book.
3.The appellant was charge-sheeted and Assistant Traffic Manager, Shamshad Ali held the enquiry.
He was found guilty and dismissed from service on 30th May 1967. He made an application under section 38 of the Ordnance, on 6th May 1968.
4. The learned Industrial Court came to the conclusion that the appellant was guilty of misconduct and that the enquiry held against him was fair and in accordance with the principles of natural justice. He also came to the conclusion that the appellant came to the Industrial Court after about six months of the order passed in appeal by the Traffic Manager. In the result he dismissed the application,
5. Mr. Nazir Akhtar, the learned Advocate for the appel--lant, in the first place contended that the duty of the appellant was merely to clean the bus and not to sell tickets and realise fare from the passengers. The appellant, therefore, cannot be said to have committed any misconduct, as he sold the tickets to the passengers only as an agent of the Driver, whose duty was to sell the tickets and realize fare from them. In order to appreciate the contention of the learned Advocate for the appel--lant, it would be useful to reproduce Standing Order 13 (3) (b) of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1960. It runs as under:- "The following acts and omissions shall be treated as misconduct:-
(a) ---------------
(b) theft, fraud, or 'dishonesty in connection with the employer's business or property."'
6. The admitted position is that on District Routes the duty of selling tickets and realising fare is that of the Driver, it was not the duty of the appellant to sell tickets and realize fare. The admitted position further, however, is that the appellant did sell tickets and realize fare from the passengers on 24th February 1967, when the bus on which he w -is the Cleaner was checked. The language of Standing Order 13 (3)(b), reproduced above is quite clear. It does not make out that a workman would be guilty of misconduct only if he commits dishonesty in connection with the performance of his duty. The language is quite general so as to include the Cleaner, who takes upon himself as an agent of the Driver to sell tickets and collect fare if he does commit dishonesty, while so selling tickets and realising fare, he will be guilty of misconduct within the meaning of section 13 (3) (b) of the Standing Orders. The Driver may also be charge-sheeted for some other act, which may be treated as misconduct. I would hold that the appellant would be guilty of misconduct, even if he did something dishonestly in connection with the business of the Road Transport Corporation, though not in performance of his, duties.
The next question is as to whether the appellant did commit misconduct. The learned Industrial Court in an elaborate judgment and for good reasons has held the appellant to be guilty of misconduct. I would take only one instance. The appellant stated before the Industrial Court that he had sold tickets from Okara for Lahore and realized Rs. 26.09. Copy of T. T. 2 is on the record. The relevant entry is marked Exh. `X'. It shows that the ticket was sold from Hazrat Karmanwala to Kissan and that the fare realized was only Rs. 2.09. Mr. Nazir Akhtar, however, submitted that if the original of Exh. `X', was produced, it would have shown the correct entry of Rs. 26.09. There is not much forc, in this contention. In the first place this Exh.`X' in a carbon copy of T. T.
2. In the second place Exh.`X' must have been taken possession of by the Anti-Corrup--tion Staff at the time when the bus was checked. There are 3 copies of T. T.
2. One is supposed to be kept with the person, who issues tickets and the other two are to be submitted to the Cashier at the time of the deposit of fare. If the appellant thought that the original copy would disclose that the fare realized was Rs. 26.09 and not Rs. 2.09 he should have asked the Industrial Court to summon the same. He presumably did not do so as it may have been discovered that the entry in the original had been manipulated. The possibility of manipulation in the original cannot be ruled out as the other two copies were in possession of the appellant and he may have, before submitting these two copies to the Cashier, manipulated the same. The carbon copy could not be manipulated as it was in the possession of the Anti-Corruption Staff.
8. Mr. Nazir Akhtar contended that the appellant even if he committed any misconduct, has been severely punished, having been dismissed from service. In this connection, the learned Advocate relied upon certain extenuating circumstances for awarding lesser punishment. These are as under: -
(1) The appellant deposited the money with the Cashier, which included Rs. 26.09.
(2) That all the passengers had tickets.
(3) That the appellant had no previous bad record.
(4) That the appellant did not commit any act of misconduct in the performance of his own duties.
He was acting as an agent of the Drier, while selling tickets and realizing fare.
9. The question is, even these extenuating circumstances are taken into consideration, whether the Industrial Court can sit in judgment over the extent of punishment awarded by tt;e Department. So long as the Department had power and' authority to award a certain punishment, the Industrial Court cannot, in my opinion, go into the question whether the punish--ment awarded was lenient or severe. All that the Industrial Court can see is as to whether the punishment awarded is within the power of the authority concerned. In my opinion, it cannot be doubted that if a' workman commits misconduct under Standing Order 13 (2), he can be dismissed without notice or any compensation in lieu of notice. I have already held, agreeing with the Industrial Court, that the appellant was guilty of misconduct.
10. The only question that required consideration was as to whether the authority, who passed the order dismissing the appellant, had applied its mind to the provision of Standing Order 13 (6), which lays down that the Manager in award in punishment shall take into account the gravity of the mis- -conduct the previous record, if any, of the workman and any other extenuating or aggravating circumstances that may exist. 1t was not the case of the appellant before the Industrial Court that the authority concerned had not taken into consideration the provisions of section 13 (6) of the Standing Orders. If the appellant had contended non-observance of section 13 (6) of the Standing Orders, the Department would have produced his previous record. Mr. Nasirul Hasan, the learned Representative for the department, had the previous record of the appellant with him. t asked him to show it to me. I find that the appellant within a period extending from 1st December 1964, to 13th December 1966, has been either fined, censured or suspended on no less than 27 occasions. The depart--ment cannot be said to have been, in any way, severe in awarding the punishment. For these reasons, I dismiss the appeal.