1. This is an appeal against an Order of the learned First West Pakistan Labour Court, Karachi. The impugned order was passed on 21st February 1970, on an application under section. 38 of the West Pakistan Industrial Disputes Ordinance, 1968, (hereinafter called the Repealed Ordinance) whereby the learned Court ordered the re-instatement of the respondent. The facts giving rise to this appeal briefly put-are these.
2. The respondent, Ali Nawaz was employed as a Conductor in the G. T. S., Hyderabad. His bus was checked on 18th of August 1969, on Hyderabad -Sujjawai route. The checking party found six passengers travelling without tickets of whom the respondent had realised fare from five of them.
3. His explanation was taken on T. T. 40 Form. Before the Enquiry Officer, Mr. Bashir Ahmad, on behalf of the G. T. S., Mr. Iqbal Hussain, Traffic Assistant, who was one of the checking party appeared as a witness. The respondent examined himself and two others. The Enquiry Officer held the applicant guilty of dishonesty. The District Manager heard the respondent and ordered that he should be dismissed from service.
4. The respondent made an application under section 38 of the repealed Ordinance on 10th November 1969, whereby he challenged the proceeding of the domestic enquiry and contended that the conditions of his service have been altered during the pendency of an Industrial Dispute. In reply the appellant stated that the domestic enquiry was fair and impartial and- that the respondent was not concerned with any Industrial Dispute. That at any rate, it was contended on behalf of the appellant, that he was not dismissed for any act of misconduct connected with the Industrial Dispute and, therefore, there was no violation of section 37 of the repealed Ordinance.
5. The learned Court came to the following conclusion after recording the statement of Mr. Iqbal Hussain and Mr. Bashir Ahmad for the appellant and that of the respondent:- "The entire circumstances of the case against the applicant appears to us as entirely suspicious.
6. The enquiry proceedings against him were perverse. On the other hand his case on the charges levelled against him and his statement and conduct were consistent from the very outset and were supported by the two independent witnesses whom there was no reason to disbelieve. The order of his dismissal was therefore without foundation."
7. The learned Court came to the above conclusion on the following grounds: -
(1) That though the respondent gave his reply to the charge-- sheet in T. T. 40 form but the charge against him was not stated therein at the time;
(2) That the bus was checked at Chorwah not at Bhatoro as alleged by the checking party
(3) That the two defence witnesses namely Muhammad Khan and Ghulam Muhammad are truthful witnesses
(4) That the checking party issued two tickets from Shah Karim for 1st Class but the tickets did not bear the endorsement that they were for 1st Class; and
(5) That the Enquiry Officer was biased.
8. Their Lordships of the Supreme Court of Pakistan have observed in a number of cases that it was not the province of the Tribunal to go into the merits of the allegations but that its jurisdiction was only to see if there was fair enquiry and the respondent was given an opportunity to explain the charges. In this connection a reference may be made to the cases of Brooke Bond (Pakistan) Ltd. v.
9. Brooke Bond Union, Dalmia Cement Factory and Sui Gas Transmission Co. Ltd. The Supreme Court of India also in a. number of cases has made similar observations. It is now well settled law that what the Labour Court has to see if the enquiry held by the Management was fair and proper. It can also see whether the order of dismissal was an act of victimisation or an unfair Labour practice or was mala fide. If any of these grounds are established, the Labour Court would be justified in ignoring the domestic enquiry and to examine the matter itself and whether there was any justification for the order of dismissal. I no such ground is established the Labour Court cannot review the evidence and to come to its own conclusion on the various facts and circumstances that the findings of the domestic enquiry were erroneous. It can further interfere with the findings of the domestic enquiry if those findings are based on no evidence of perverse. It will not be within the competence of the Labour Court to enquire whether a particular witness has been rightly believed or not, or whether a particular finding was supported by sufficient evidence. The process of reasoning in arriving at a conclusion on a question of fact may on investigation of examination appear unappealing. On these or similar ground an authority having power to hear an appeal on facts alone can interfere. These grounds do not make the decision perverse. A decision can be condemned as perverse if it is impelled by arbitrariness or prejudice or if it is such that to a judicial mind it appears that no reasonable person could reach that conclusion. Perversity in a recorded finding is a matter of objective determi--nation, which can be examined by this Tribunal on appeal.
10. Keeping the principle laid down by their Lordships of Supreme Court of Pakistan, I would now proceed to find out if the domestic enquiry was fair and impartial and the finding arrived at was not the result of malice or any bias on the part of the Enquiry Officer and lastly that the respondent was not victimised as a result of unfair labour practice. All or any of these grounds have to be established. In this case the Manage--ment produced before the learned Court Mr. Iqbal Hussain, who checked the bus of the respondent. There is no suggestion in the cross-examination of Mr. Iqbal Hussain that he had any motive to falsely implicate the respondent. The appellant also produced Bashir Ali, who was the Enquiry Officer. Only one question was put to the witness in cross- examination as to whether the respondent had examined two witnesses in his defence or not, to which he replied in affirmative. It was not the case of the respondent before the learned Court that Iqbal bad any motive to victimise or falsely implicate the respondent. The respondent also did not suggest as against Bashir Ali that he had any bias against him or that he did not conduct the enquiry in a fair and impartial way. I have given my very anxious consideration to the conclusion arrived at by the learned Court. It was not possible to arrive at this conclusion unless one was to sit as a Court of Appeal over the findings of the domestic enquiry. I would briefly state my reasons for different conclusion. The learned Court, for instance, came to the conclusion that the T.T.40 Form was blank when the checking party asked the respondent to write his reply. This conclusion was based on the circumstance that the T.T.40 Form bears a cross on its upper portion. The T. T. 40 Form, for the sake of convenience can be divided into three portions. The first portion which was crossed by the respondent mention the particulars of the checking party, the number of passengers in the bus, the name of the Driver, the name of the conductor, the place, the date when the bus was checked and the time when it was checked. The second portion required the checking party to state the charge against the person charge-sheeted. In the third portion the accused was required to give his statement. It is only the first portion which is crossed by the respondent. If the object of the respondent in crossing T. T. 40 Form was to establish that the checking party had not stated therein the charge against him the respondent would have crossed the second portion also.
11. He did not cross the carne as it was already filled. In the second place if the object of the respondent was to show by a cross mark that the checking party had not given the particulars of the charge he should have mentioned that fact in his reply. I have come to the conclusion for these reasons that no adverse inference can be drawn against the checking party by the fact that the respondent had put a cross in the first portion of the T. T. 40 Form.
12. It cannot be concluded that Mr. Iqbal did not issue two upper class tickets from Shah Karim from the fact that he failed to endorse on the tickets that they were for upper class. The fact remains that tickets were issued from Shah Karim.
13. No adverse inference can be drawn against the Enquiry Officer from the fact that in the last line of his enquiry report he mentioned that the conductor was an office-bearer of the Labour Union. It may be that the Enquiry Officer had a wrong impression about the respondent that he was an office-bearer of the Labour Union. The Enquiry Officer was produced by the department before the Court. He should have been asked in the cross-examination as to why he mentioned that the Conductor is an office-bearer of the Labour Union. If I may say so the Enquiry Officer wanted to draw the attention of the District Manager to the fact that the respondent can be dismissed from service only after the permission of the Court was taken. Be as it may in the absence of any suggestion that, the Enquiry Officer was prejudiced or biased no such inference can legitimately be drawn against the Enquiry Officer.
14. It was within the province of the Enquiry Officer to believe checking party as against the defence witnesses.
15. I have come to conclusion that the domestic enquiry was fair and impartial and that the respondent was not prosecuted on account of any malice and the finding of the Enquiry Officer cannot be said to perverse or biased.
16. I would hold in these circumstances that there was no violation of section 37 of the repealed Ordinance so as to entitle the, respondent for any relief under section 28 of the repealed Ordinance. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.