This is an appeal against the order of the learned Chairman of the First West Pakistan Industrial Court, Karachi, dated 26th November 1969, whereby the learned Chairman allowed the application under section 38 of the West Pakistan Industrial Disputes Ordinance, 1968 (hereinafter called the repealed Ordinance), and ordered the re-instatement of the respondent with full benefits.
2. The learned Representative for the appellant, contended in the first place, that there was no violation of section 37 of the repealed Ordinance, inasmuch as, the respondent not being an office- bearer of the Union, could be dismissed for misconduct not connected with the pending industrial dispute. Admittedly, the respondent was not dismissed for any misconduct which was connected with the industrial dispute, that was pending before the Court. The question, however, is as to whether there was any misconduct within the meaning of section 7 of the Road Transport Workers Ordinance, 1961 (hereinafter called the Workers Ordinance). The Management cannot be allowed to go behind the finding of the Enquiry Officer appointed by it. The Industrial Courts are reluctant to sit as a Court of Appeal over the findings arrived at in a domestic enquiry against an employee. It is only under exceptional circumstances, when the enquiry has been held against the principles of natural justice, as perverse or is based on no evidence, that this Court sets aside the finding of the Enquiry Officer against an employee. The Management, therefore, cannot be allowed to ignore the finding of the Enquiry Officer when in some way or the other it can be construed against. The concluding portion of the finding of the Enquiry Officer reads as under:-- "He is guilty of issuing tickets in the moving bus for which suitable punishment is recommended."
3. The question as to whether issuing of tickets in a moving bus does amount to misconduct within the meaning of section 7 of the Workers Ordinance. Mr. Mahboob Rizvi, the learned Representative for the appellant, was unable to show that it was a misconduct within the meaning of section 7 of the Workers Ordinance. In 'that view of the matter, section 37 of the repealed Ordinance was clearly violated, inasmuch as, it amounted to alteration of terms and conditions of service of the respondent. The respondent could not be dismissed from service without sufficient cause under section 7 of the Workers Ordinance. When an employee is dismissed for an act, which does not amount to misconduct, it cannot be said that there was any cause for his dismissal from service.
4. In the next place, Mr. Rizvi contended that the Enquiry Officer, who was produced by the Management before the learned Court, should have been asked as to whether the respondent was guilty or not. It was not for the respondent to put any question to the Enquiry Officer in cross- examination. The report of the Enquiry Officer is on the record of the case: It is for the Court and the parties to construe the same in one way or the other. After going through the report, I have come to the conclusion that the Enquiry Officer found the respondent guilty only for issuing tickets in the moving bus.
5. I would hold that there was violation of section 37 of the repealed Ordinance and that the order of the learned Chairman for re-instatement of the respondent must be maintained. The appeal is dismissed.