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Secretary made an application under section 5(5) of the Industrial Disputes Ordinance, 1959, hereinafter called the Repealed Ordinance on the 24th of August 1967.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 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 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."
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 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 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.
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 will amount to misconduct. The Weal of Alam Sher is dismissed.
24. Appellant, Dilshad Ahmad, Conductor, was, charge --sheeted for having received fare from 6 passengers, but did not issue tickets to them. The learned chairman came to the conclusion that the Domestic Enquiry was fair and impartial and dismissed the demand in respect of the appellant Mr. Naz, the learned Representative for the appellant, contended that statements of the witnesses, who had supported the appellant were not produced before the Industrial Court. His submission is that this had prejudiced the case of the appellant before the Industrial Court. There is not: much force in this contention. The Industrial Court is not concerned with what the witnesses stated before the Domestic Tribunal. It is not a Court of appeal over the Domestic Tribunal. The appeal of Dilshad Ahmad is dismissed.
25. Appellant, Iftikhar Ahmad was appointed as a con--ductor on 3 months probation. . His services were terminated within the period of his probation. Mr. Naz contended that the services of the appellant could not be terminated without notice. The case of Iftikhar Ahmad is different from the case of appellant, Muhammad Mazhar. Muhammad Mazhar' services were terminated on the ground of unsatisfactory Work. The case of Iftikhar Ahmad is a case of simple termination of service within the probationary period. The order terminating his services is as under:--- "Services of Conductor Iftikhar Ahmad, T. L. 163 are hereby terminated w.e.f. 19-10-1965 within probation period under terms of his service agreement."
This is a case, as would appear from the above, of simple termination of service without any reflection on his conduct. The appeal of Iftikhar Ahmed is dismissed.
26. Appellant, Muhammad Akram was employed as con--ductor. He was charge-sheeted for misconduct. The learned Industrial Court came to the conclusion that the enquiry was fair and impartial and that the appellant was given an opportunity to be heard in person and produce his evidence. Mr. Naz contended that the entire record was not produced before the Industrial Court.
The submission is that the appellant in the absence of the entire record before the Industrial Court was prejudiced. There is not much force in this contention. The Chairman of the Industrial Court was not concerned with the record of the case so long he was satisfied that the domestic enquiry was fair, impartial and in accordance with the principle of natural justice. The Appeal of Muhammad Akram is dismissed.
27. Appellant, Muhammad Jee, Conductor, was charge sheeted fur not issuing tickets to certain passengers with the intention to realise fare from them when these passengers got down at their destination. He was found guilty by the domestic Tribunal. The learned Chairman of the Industrial Court came to the conclusion that the charge of misconduct fully established against the appellant and that he was rightly dismissed. On this conclusion ho dismissed the demand of the Union in respect of the appellant. The main contention of Mr. Naz, the, learned Representative for the appellant is that the enquiry was not fair. In this connection Mr. Naz contended that Mr. Khaliq - Dad, Assistant Traffic Manager, who held the enquiry, belonged to the Anti-Corruption staff of the Corporation. The Checker, Moghal Baz, Traffic Assistant, who checked the bus, also belong to Anti- Corruption Department and that the bus was checked under the supervision of Mr. Abdul Majeed Mufti who was also Assistant Traffic Manager. The suggestion of Mr. Naz is that Enquiry Officer being of the same Department was not expected to give an impartial finding. The question is as to whether there is any thing on the record of the case to show that Mr. Khaliq Dad acted in any prejudicial manner to the appellant. In this connection Mr. Naz referred to the explanation that the appellant gave to the District Manager. In the explanation he requested the District Manager to peruse Complaint Book in which the statements of some of the passengers were recorded and then pass any order. Mr. Naz submitted that the complaint Book was not produced before the Enquiry Officer. Mr. Naseerul Hasan, on the other hand, contended that the explanation was given to the District Manager who may or may not have perused the Complaint Book. It is open to the District Manager, after perusing the explanation, to appoint an Enquiry Officer. It is submitted that the Enquiry Officer is not bound to comply with the request made in the explanation to the District Manager. Mr. Naseerul -Iasan submits that if the appellant so desired that the enquiry Officer should perused the Complaint Book, he should have requested the Enquiry Officer to summon the Complaint Book. I have gone through the statement of the appellant before the Enquiry Officer. He has stated in the end that he does not want to produce any evidence. If the appellant wanted that the Enquiry Officer should examine the Complaint Book he should have requested the Enquiry Officer to summon the same. In the absence of any such request it cannot be said that the Enquiry Officer acted in any way that was prejudicial to the appellant.
28. It was also contended by Mr. Naz that the appellant had submitted before the District Manager that some person who was not concerned with the Anti-Corruption Department should be appointed as Enquiry Officer. Apparently the District Manager did not find any substance in the request and he did not appoint any other person as Enquiry Officer in place of Khaliq Dad. I have observed that the mere fact that some one from the same Department or subordinate to the checker was appointed as Enquiry Officer would not be sufficient for the conclusion that the Enquiry was not fair. There must some thing more than bare allegation to support the conclusion. In the present case, Khaliq Dad was of the same rank as of Mr. Abdul Majeed Mufti. It cannot, therefore, be said that he was under the influence of Mr. Abdul Majeed Mufti. I agree with the conclusion of the Industrial Court that the enquiry was fair, impartial and in accordance with the principle of natural justice and dismiss the appeal. .
29. The appellant, Sibtain Hussain, Conductor was charge sheeted for having realised fare from 4 ladies passengers without issuing tickets to them. There were 3 other passengers also who paid fare to the conductor and he issued them unpunched tickets. He was also charge-sheeted for being rude to the Checking Party. Mr. Naz contended that there is no evidence to show that the appellant had realised the fare. This Court cannot sit as a Court of appeal over the finding of the domestic Tribunal. The learned Industrial Court rightly held that the enquiry was fair and impartial. I do not see any reason to interfere with the conclusion arrived at by the learned Industrial Court.
The Appeal of Sibtain Hussain is dismissed.
30. I, now, proposed to dispose of the Appeal of the Corporation (Appeal No. RI-193 of 1969).
31. An objection was taken by Mr. Naz that the appeal u incompetent. He contended that the Secretary of the Road Transport Corporation had no authority to empower Mr. Najam Hussain Malik to file the appeal. In this connection he relys upon Rule 6 of the Road Transport Corporation Rule, 1963. Rule 6 laid down that the Chairman and the Members may issue, defend or withdraw any proceeding. Mr. Naz, however, conceded that Mr. Naseerul Hasan had the power to file the appeal.
He further submitted in this connection that Mr. Naseerul Hasan appeared before the Tribunal on the 10th of July 1969 and therefore the appeal should be deemed to have been filed on 20-7-1969. I have considered this contention and find that there is not much force. The Memorandum of appeal admittedly is signed by Mr. Naseerul Hasan, Assistant Director Labour Welfare for Road Transport Corporation, Lahore and is dated the 6th of June 1969, as would appear from the verification. The appeal, no doubt, was physically presented by Mr. Najam Hussain Malik on 7th of June 1969 to the Registrar of the Tribunal. Mere presentation of the appear by Mr. Najam Hussain Malik would not be a ground for holding that the appeal was not properly filed. Mr. Naseerul Hasan may have sent the Memorandum of appeal through post. If the appear was received by the Office of the Tribunal within time, the appeal could not be said to have not been validly presented. Even if the appeal was beyond time the presentation of the appeal could not be held to be invalid on the ground that it was received through post. An application for condonation of delay to the Tribunal could be made and it was open to the Tribunal to condone his-- delay. I would in the circumstances of the case hold that the appeal was validly presented.
32. It was contended by Mr. Naseerul Hasan that the --domestic enquiry in respect of Muhammad Faris, Driver was fair and impartial. The learned Industrial Court came to the conclusion that the Enquiry was not fair as the Department did' not examine the witnesses mentioned by the complainant in spite of the fact that Muhammad Faris insisted that they should be produced before the Enquiry Officer. Mr. Naseerul Hasan sub--mitted that it is not necessary for the prosecution to examine all its witnesses. If the Enquiry Officer, after examining one of the witnesses mentioned by the complainant, was satisfied that the charge against Muhammad Faris was made out his finding could not be set aside on the ground that he did not examine all the witnesses. It is true that it is not incumbent on the prosecution to examine all its witnesses. It would be sufficient compliance of s criminal a. ministration of justice if the prosecution was to make available the other witnesses for cross-examination by the defence. In this case the prosecution cannot be said to have examined any of the witnesses mentioned in the complaint. According to Mr. Naseerul Hasan, Abdul Rehman who is mentioned by the appellant to be present at the time when the incident took place had b. en examined by the prosecution. The statement of AbdulRehman, Exh. R- 72, would disclose that it is a statement addressed to the District Manager. The.Enquiry Officer, Mr. Arif Sarwar stated before the Industrial Court that he had examined Abdul Rehman. It appears that Mr. Arif Sarwar when confronted with \Exh. R-72 had to admit that he did not record the statement of Abdul Rehman. At any rate even if the Enquiry Officer, took the Written Statement of Abdul Rehman lie should have asked Muhammad Faris after reading out the statement of Abdul Rehman to cross-examine him, if he so liked. There is nothing on the record to show that Mr. Arif Sarwar asked Muhammad Faris to cross-examine Abdul Rehman. Mr. Sarwar did not state before the Industrial Court that though he did not record that he had asked Muhammad Faris to cross- examine Abdul Rehman, but in fact he did so. In these circumstances the statement of Abdul Rehman has to be ignored. The ground on which the Abdul learned Industrial Court held that the Enquiry was not fair, cannot be up set.
33. In the next place. Mr. Naseerul Hasan submitted that the Tribunal should allow the Department to hold fresh enquiry after giving Muhammad Faris an opportunity to cross-examine the witnesses mentioned by the complainant in his complaint. I have given my careful consideration to the request of Mr. Naseerul Hasan. In the circumstances of the present case, which I will presently mention I am not inclined to accept the request. Muhammad Faris was charged for rude behaviour towards the Assistant Works Manager on the 15th of June 1966. The charge of rude conduct against the Works Manager was no doubt a serious one. While considering the seriousness of the charge I cannot ignore the fact that the incident took place three years ago. Moreover the admitted position is that the Assistant Works Manager, Mr. Muhammad Sadiq, against whom Muhammad Faris used abusive language is no longer in the service of the Corporation. Moreover Muhammad Faris cannot be held to by responsible for the conduct of the Enquiry Officer in not examin--ing the witnesses mentioned by the complainant. In these circum--stances, I am not inclined to give an opportunity to the Depart--ment to hold fresh enquiry against Muhammad Fairs.
34. Lastly, it was contended by Mr. Naseerul Hasan that the Corporation should not called upon to pay full remunera--tion to Muhammad Faris as the Union took about 9 months to raise the dispute, It is submitted, on the other hand, by Mr. Naz that the Union did not the rush to the Court without waiting for the disposal of the Appeal of Muhammad Faris. He submits that the Appeal of Muhammad Faris is still pending. In my view the explanation for delay in raising the dispute by the Union is quite reasonable. The delay, in these circumstances, is no ground to reduce the emoluments that would be payable to Muhammad Fans in accordance with the award of the Industrial Court. The Appeal of the Corporation against Muhammad Faris .is dismissed.
35. Mr. Naseerul Hasan contends that the conclusion of the learned Industrial Court that the enquiry against driver, Fazal Karim was not fair and proper is based on insignificant grounds.
He submits that the word "undersigned" mentioned in the state--ment of the complainant is not sufficient to arrive at the conclusion that the complainant Ghulam Tabrez did not give statement before the Enquiry Officer. He also contends that the cross-examination of Head Checker Ghulam Tabrez by Driver Ahmed Din is due to some confusion on the part of the Enquiry Officer, The cross-- examination was by Fazal Karim and not by Ahmad Din. I would have given weight to the contention of Mr. Naseerul Ham that the word "undersigned" appearing in the statement of Ghulam Tabrez was due to faulty knowledge of English on the part of the Enquiry Officer and that the mis- statement of the fact that Driver Ahmad Din cross-examined was also due to some confusion on the part of the Enquiry Officer, but there is one very significant fact which has been pointed out by Mr. Nazeer Ahmad Naz today which concludes the issue in favour of the conclusion arrived at by the Industrial Court. Admittedly the usual practice is that the Enquiry Officer after recording the statement of a witness takes the signature of the witness and also signs it himself. In this case the statement of Ghulam Tabrez does not bear the signature of the Enquiry Officer. There is no explanation on the record,of this case as to why the Enquiry Officer did not sign the statement of Ghulam Tabrez. In the absence of the signature of the Enquiry Officer on the statement of Ghulam Tabrez, I am inclined to believe that the statement of Ghulam Tabrez was not recorded by the Enquiry Officer. It appears that Ghulam Tabrez had written down his statement and had asks the Driver Fazal Karim to sign the same. In these circumstances I would up hold the conclusion of the Chairman of the Industrial Court that the trial was not fair and proper. The appeal in respect of Fazal Karim is dismissed.
36. It is contended by Mr. Naseerul Hasan that the learned Court had disregarded the accepted principle that the Industrial Court cannot sit as an appellate Court over the decision of the domestic Tribunal. Submission is that the Enquiry Report against Ali Hyder should have been accepted. The Enquiry Officer had held that Ali Hyder was guilty of the charges framed against him.
The charge against Ali Hyder was of negligence, fast driving and dereliction of duty thereby causing damage to the Corporation to the extent of Rs. 1,500.
37. There is much force in the contention of Mr. Naseerul Hasan that the Industrial Court or the Tribunal has no jurisdiction to sit as a Court of Appeal against the conclusion and finding arrived at by the domestic Tribunal. The question however, is as to whether Industrial Court has sat as an appellate Court against the finding arrived at by the domestic Tribunal. The conclusion arrived at by the learned Industrial Court does not support the contention of Mr. Naseerul Hasan. The conclusion reads as under "It is more or less a case of no evidence against the driver.
I, therefore, set aside his dismissal and direct his re-instatement with full benefits."
While the Industrial Court has no jurisdiction to sit as a Court of Appeal against the conclusion arrived at by the domestic Tribunal it has every jurisdiction to go into the question as to whether the Enquiry Report was fair impartial and in accordance with the principle of natural justice. The conclusion arrived at without evidence cannot be said to be in accordance with the principle of natural justice. The learned industrial Court has given good reasons for the conclusion that the enquiry report as to the charges against the driver is not based on any evidence. I would. therefore, dismiss the appeal against the re-instatement of the driver.
38. Mr. Naseerul Hasan contends that the learned Chairman of the Industrial Court had disregarded to the principle that he could not sit as a Court of Appeal over the conclusion arrived at by the domestic Tribunal. There is a distinction between appraisal of the evidence considered by the domestic Tribunal and the conclusion that it is a case of no evidence. In this case the learned Court came to the conclusion that the finding of the domestic Tribunal that Muhammad Azeem was guilty of defraud--ing the Corporation is not based on any evidence. I agree with the learned Court that the finding of the domestic Tribunal is not based on .any evidence. The Appeal against Muhammad Azeem is dismissed.
39. Saleb Muhammad, Traffic Cleaner was re-instated mainly on the ground that a joint statement of two persons was not al statement in the eye of law. The proposition laid down by the learned Chairman of the Industrial Court cannot be doubted. The question is as to whether the Department would have a right to institute fresh enquiry against the respondent, Saleh Muhammad. In the circumstances of the present case as the Enquiry Report has been set aside on a technical ground, I am of the view that the Department, if it so desire, can hold fresh; enquiry against Saleh Muhammad Traffic Cleaner. The question, however, is as to whether he should be paid full emolument up to the date when he is re-instated. Mr. Naz contends that if this Court permits the Department to hold fresh enquiry, Saleh Muhammad must be paid his emoluments. I do not see any good reason to disallow emoluments from the date that he was dismissed form service to the date that he is re-instated. It would, however, be open, as I have already observed, to- the Corpora--tion to hold fresh enquiry, if it so desires. With this observation the appeal against Saleh Muhammad is dismissed.
40. The learned Industrial Court ordered re-instatement of Maqbool Hussain with full benefits on the ground that the enquiry was not fair. Mr. Naseerul Hasan contended, in the first place, that the Enquiry Officer had given ample opportunity to Maqbool Hussain to produce his witnesses. In the present case the ques--tion of giving opportunity to Maqbool Hussain to produce the three officials posted in Chakwal and his witnesses did not arise. It would appear from the noting of the Enquiry Officer that Maqbool Hussain had requested him to call, the three officials posted in Chakwal which he had granted. It is obvious from the noting of the Enquiry Officer himself that Maqbool Hussain was not in a position to bring his witnesses, he, therefore, asked for the help of the Enquiry Officer to summon these persons. It cannot, therefore, be said in the absence of the statement of three officials posted in Chakwal that the enquiry was fair.
41. Mr. Naseerul Hassan relied on Tata Oil Mills Co., Ltd. v. Workmen of Tata Oil Mills (1). It was observed in this case by the Judges of the Supreme Court of India that it was not the duty of the Enquiry Officer to summon the witnesses for the defence. The defence should have produced the witnesses itself. The proposition enunciated in this decision cannot be doubted. The question in this case is quite different. In the present case the request was made on behalf of the defence to summon certain witnesses. The Enquiry Officer granted the request. In these circumstances if the Enquiry Officer did not make any attempt to summon these witnesses it cannot be said that the enquiry was fair. The appeal against Maqbool Hussain is dismissed.
42. Muhammad Yactoob was charge-sheeted on two grounds, in the first place, he was charge- sheeted for having been rude to the checker, Mr. Sanaullah inasmuch as when asked to produce R.
P. T. and voucher he said that he was not a thief and that his bus was checked on several occasions by the District Manager and that he has confidence on him. After stating this he stopped the bus and produced the vouchers and other documents. From the absence of production of T. T.
40, 1 would conclude that the cleaner has not committed any other offence. The learned Industrial Court came to the conclusion on this charge that it was a case of no evidence inasmuch as the statement of Mr. Sanaullah was not recorded by the Enquiry Officer. It was recorded by his clerk.
The Enquiry Officer also admitted that it was not recorded on his dictation. I have gone through the statement of Sanaullah. I do not think that any case of wilful insubordination or disobedience within the meaning of section 7(2)(a) of Road Transport Workers Ordinance is made out. On the statement of Sanaullah, Muhammad Yaqoob cannot be said to have disobeyed his order inasmuch as Muhammad Yaqoob produced the necessary documents immediately after saying that he was not a thief. I would up hold the conclusion of the learned Industrial Court that the charge against Muhammad Yaqoob was not proved.
43. The other charge against Muhammad Yaqoob was that he had misbehaved with one Abdul Waheed. The charge was based on the alleged application of Abdul Waheed. Abdul Waheed was not produced by the Department. It does not appear that any attempt was made by the Department to produce Abdul Waheed. One does not know whether the complaint was made) by Abdul Waheed or some one else. Under these circumstances,the conclusion of the Industrial Court cannot be assailed. I would dismiss the appeal of the Department against Muhammad Yaqoob.
44. The demand in respect of Gomes is for his re-instatement and back benefits. He was appointed on 13th of August 1964 temporarily as Junior Clerk for a period of 3 months from August 13, 1964 to the 12th of November 1964. The order of appointment further state that his suitability will be judged during ibis period. He was posted in the Accounts Branch for duty. The Assistant Accounts Officer was directed to submit his report every month about the progress of the work of Gomes. His services were extended on 5th of December 1964 for a further period of three months w.e.f. 13th of November 1964 to the 12th of February 1963. Then again his services were extended on the 3rd June 1965 for a period of three months w. e. f. 13th of May 1965 to the 12th of August 1965. On 18th of August 1965 his services were further extended w. e. f. 13th of August 1965 to the 12th of November 1965. Then again his services were extended for a period of three months w. e. f. 13th of November 1965 to the 12th of February 1966. On 7th of February 1966 his services were extended for three months with effect from the 13th of February 1966 to the 12th of May 1966. The order dated 12th May 1966 is some what different from the other orders already mentioned inasmuch as it is not an order merely stating that the services of Mr. Gomes shall continue w. e. f. 13th of May 1966 to the 12th of August 1966. The order also mentions that during the period of three months extension w. e. f. 13-5- 1966 to 12.8-1966 his suitability for further extension in the service will be judged. (Exh. R-52). On 10th of August 1966 the District Manager passed the following order: "The services of Mr. G. F. Gomes, Junior Clerk (Accounts) are terminated with effect from 10-8-66 (A.N.) within the pro--bation period due to his highly unsatisfactory work and conduct."
45. The learned Chairman of the Industrial Court came to the conclusion, in the first place, that Mr. Gomes had become permanent after the expiry of the period of probation of 3 months and therefore his services could not be terminated on the ground of unsatisfactory work without show- cause notice. In the second place, the learned Industrial Court held that even if Mr. Gomes was on probation his services could not be terminated on the ground of unsatisfactory work without giving him a show-- cause notice.
46. Mr. Naseerul Hasan, the learned Representative for the Department concedes that Mr. Gomes was entitled to show---cause notice and therefore the order terminating his services can be challenged. He, however, contends that the comes continued to be a probationer or a temporary hand and the conclusion of the learned Industrial Court that he had become permanent is not tenable.
47. Mr. Naseerul Hasan submitted in the first place that a perusal of the various orders appointing Gomes would show that he was always appointed for a period of three months only and not on probation. In this connection my attention was drawn specifically to the last order appointing him for a period of three months, according to the order Mr. Gornes was appointed for a period of three months from 13th of May 1966 to the 12th August 1966, during which period his suitability for further retention in the service was to be judged. The learned Representa--tive submits that according to this order he was appointed on probation for a period of three months and his services were terminated before the expiry of the period of three months on the ground of unsatisfactory work.
Mr. Gomes, it is urged, cannot claim the status of a permanent servant though he may be entitled to a show-ruse notice. I have given my very careful considera--tion to the submission made by Mr. Naseerul Hasan. I have come to conclusion that on a perusal of the first letter (Exh. R-46) dated the 25th of August.1964, whereby Mr. Gomes was appointed as a Junior Clerk for a period of three months from the 13th of August 1964 to the 12th of November 1964, no distinction exists between Exh.
R-46 and Exh. R-52. Exh. R-46 reads as under:- Mr. G. F. Gomes son of T. F. Crera resident of House No. 686, Mammoo Jee Road, Lai Kurti, Rawalpindi, is hereby temporarily appointed as junior clerk for three months from 13-8-64 (F. N.) to 12-11-64 (A.
N.) during which his suitability will be judged".
Exh. R-52, on which reliance has been made runs as under :-- Mr. G. F. Gomes, Junior Clerk (Audit) is hereby allowed to continue to serve for further three months w. e. f. 13-5-66 (F. N.) to 12-8-66 (A. N.) during which his suitability for further retention in the service will be judged."
The Department construes Exh. R-52 to be a letter appointing Mr. G. F. Gomes, on probation that this is so would be clear from Exh. P-44, which reads as under:--- "The services of Mr. G. F. Gomes, Junior Clerk (Accounts) are terminated with effect from 10-8-1966, within the probation period due to his highly unsatisfactory work and conduct."
The conclusion which I draw from Exh. R-46 and Exh. R-52 is that Mr. Gomes was originally' appointed on probation for a period of three months.
48. The question now is as to whether Gomes having served for a period of three months from 13th of August 1964, to the 12th of November 1964 had become a permanent junior clerk or "not. Mr. Naseerul Hassan submitted that Mr. Gomes was always appointed temporarily for a period of three months. His suggestion is that Mr. Gomes was not appointed in any permanent vacancy and therefore he did not attain the status of a permanent servant. In this connection a reference will have-to be made-to Standing Order I to the schedule of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1960. Standing Order I deals with classification of workmen. For the purposes of consideration of the contention of Mr. Naseerul Hasan it-would be useful to reproduce the definition of permanent, probationer and temporary workmen given in Order 1. They read as under:-- "Permanent"
"A "permanent" workman is a workman who has been engaged on permanent basis and includes any person who has satisfactorily completed a probationary period of three months in the same or another occupation in the industrial or commercial establishment, including breaks due to I sickness, accident, leave, lock-out, strike (not being an illegal strike) or involuntary closure of establishment."
"Probationer"
"A "probationer" is a workman who is provisionally employed to fill a permanent vacancy in a-post and has not completed three months service therein. If a permanent employee is employed as a probationer in a new post he may, at any time during the probationary period of three months be reverted to his old permanent post."
Temporary "A "temporary workman is a workmanwho has been engaged for work which is of an essentially temporary nature likely to be finished within a limited period.",
49. The question whether a certain workman has been employed on temporary basis or permanent basis would depend primarily on the facts of each case. So far as the present case is concerned there is noting on the record to show, except the orders-- of appointments of Gomes, which I have already mentioned, that Gomes was appointed for work which was essentially of temporary nature and which was likely to finish within a limited period. The very fact that Gomes continued to serve the Department for a period of two years would lead to the conclusion that the post to which he was appointed was not of a temporary nature. Moreover Exh. P-4a, the letter terminating the services of Gomes would disclose that he- was a probationer. The definition of probationer presupposes that he was appointed, though provisionally, to fill in a permanent vacancy. I would hold considering the circumstances of the present case that Gomes was appointed orginally as a probationer to fill in a permanent vacancy.
50. The next question is as to whether Gomes become a permanent workman after the expiry of a period of three months. The Corporation cannot be allowed to take a re-course to the language used in the order terminating the services of Gomes so as to deprive him of his status. The department must make u its mind as to whether it want to appoint a person on probation for a period of three months and thereafter make him permanen if his work is found satisfactory. The Corporation cannot be F allowed to keep a workman in suspense from year to year. It must make up its mind whether it wishes to retain a workman after the expiry of a period of three months or to do away with him. There is nothing on the record except the last letter of 10th August 1966 whereby the services of Mr. Gomes were terminated to show that Gomes had not satisfactorily completed his period of three months. The very fact that he was retained in service after three months service would lend support to the conclusion that his work was satisfactory. It does not speak well of the department if it continues a person in service if his work was found to be unsatisfactory. In these circumstances, I would hold that Gomes was a permanent workman. The appeal against Mr. Gomes is dismissed.
51. Abdus Sattar was a Booking Clerk. He was dismissed from service on the 26th of July 1966. He filed an appeal which was rejected. He thereafter filed a revision which was allowed to this extent that he was ordered to be re-employed. He was re-employed on 31st of January 1967. The contentions of the Union on behalf of Abdus Sattar was that he was re-employed only to deprive him of his back emoluments. The Learned Chairman of the Industrial Court came to the following conclu--sion: "All I can make out from this evidence, which has not been rebutted is that in all probability, no case was made out against Abdus Sattar and that is why, he was taken back in service, though as a fresh recruit. This is wholly justified. I, therefore, direct that his re-employment with effect from 31- 1-1967 shall be considered to be his re-instatement and the so called re-employment shall not bring about a break in his service. He shall be paid full wages from the time of his removal up to the time of his re-employment.
52. Mr. Naseerul Hassan, the Learned Representative for the Department contended that the relief granted by the learned Industrial Court is n t covered by the demand. On an analysis, the relief granted to Abdus Sattar comes to this :-
(1) That the re-employment of Abdus Sattar should be converted into his re-instatment.
(2) That on the declaration of Abdus Sattar, to have been re-instated, he should be paid full wages from the time of his removal from service to the date of his re-employment.
In this connection, it is necessary to make a reference to the demand notice dated the 31st of March 1967. It reads as under:
53. A perusal of the above demand notice clearly shows that it referred to only those persons who had been discharged from service. Mr. Naz, the learned Representative for Abdus Sattar stated that it was not in the knowledge of the Union that Abdus Sattar had been re-employed. All that the Union was aware of was that Abdus Sattar had been dismissed by the Corporation. It is the fault of Abdus Sattar it is submitted for which the Union I-f cannot be blamed. The Industrial Court has no jurisdiction to grant a 'relief which is not covered by the demand notice. In this x connection, Mr. Naz also submitted that this point was not taken before the industrial Court. It may be so. This is a pure question of the interpretation of the demand notice. It does not require any further evident.Mr. Naseerul Hassan asked this Court to interpret the demand notice. I would hold that the relief granted by the Industrial Court is not covered by the demand. The appeal of the Department in respect of Abdus Sattar is allowed and the order of the Industrial Court is set aside.
54. I propose to dispose of the Appeal of the Department against Haq Nawaz, Ahmad Din and Bashir Ahmad together as the same point arise for consideration. Admittedly these three persons were out of employment on the 31st of March 1967, when the demand notice was made by the Union. The Department later on in the case of Haq Nawaz ordered that he should be taken on its strength w. e. f. 22 of April 1967. The contention of Mr. Naseerul Hasan in respect of Hab Nawaz is that Industrial Court should not have ordered that he should be paid salary for the period that he was out of service and re-instated. The submission is that it was in the jurisdiction of the Chairman of the Road Transport Corporation not to grant the wages prior to 22nd of April 1967 from which date he was re-instated. It is true the Chairman has such jurisdiction but hel cannot exercise his jurisdiction arbitrarily. He must give some reasonable ground for not awarding back benefits if a workman is to be re-instated. In this case the learned Chairman has not, given any ground whatsoever why he should not be given wages prior to the 22nd of April 1967. The Appeal against Haq Nawaz is dismissed. Similar is the case of Ahmad Din and Bashir Ahmad) The learned Chairman has not given any reason as to why they should not be given back wages. In the absence of any ground to deprive Ahmad Din and Bashir Ahmad of their wages prior to the date of their re-instatement, I would maintain the order passed by the industrial Court. So far as the case of Noor Muhammad is concerned his case is similar to that of Abdus Sattar. He wax re-instated on 1st of December 1966, much before the demand notice dated 31st of March 1967. His case is not covered by the notice. The Appeal of the Department is allowed. Noor Muhammad would not be entitled to any remuneration prior to the date that he was re-instated.