' These 2 appeals, one by the General Secretary of the Agricultural Machinery Workshop Workers'
Union, Tando Jam, and the second by the General Secretary of the Peoples Mazdoor Union, Agricultural Machinery, Narejo Workshop, are both directed against an award given by the learned 1st Sind Labour Court, on 7-6-1978, rejecting the claim made by the 2 Unions and the Peoples Agricultural Machinery Workers' Union, Larkana, whose appeal was summarily disposed of by this Tribunal, vide order, dated 20-2-1980, for the enforcement of an agreement, entered into on 15-7- 1977, regarding the fixation of wages of the workers in the Agricultural Engineering Workshops in accordance with the Schedule of Wages Rates, 1974. As both the appeals involve the same issues, they have been heard together and are being decided by this common order.
2. The facts which have given rise to these 2 appeals briefly stated, are that the Agricultural Machinery Workshop Workers' Union, Tando Jam, served a charter of demands, dated 21-2-1977, through its General Secretary, on the officers of the Agricultural Engineering Department, raising the demand that the payment of wages/salaries to workers be given in accordance with the Schedule of Wages Rates, Volume III, Part I. No copy of the said charter of demands, however, is on the record of the 2 cases out of which the present 2 appeals have arisen. However, there is a letter, dated 15-3-1977, from the Agricultural Engineer, Hyderabad Division, to the Director, Agricultural Engineering, referring to this charter of demands and informing him that a meeting to discuss the demand had been fixed by him. It appears that pursuant to the discussion between the workers and the officers of the Agricultural Engineering Department, a meeting was held on 15-7-1977, which was attended by the Director, Agricultural Engineering, the Agricultural Engineers at Tando Jam, Sukkur, Khairpur and Thatta and by the office-bearers of the Workers' Unions. At this meeting, the following 2 decisions were taken :-
(a) The Agricultural Engineering Department agreed to putting into effect the orders of the Sind Government for adoption of the Schedule of Wages Rates in respect of the workmen in the Agricultural Engineering Department ; and
(b) The Agricultural Engineers were required to work out wages of various categories of workers according to the Schedule of Wages Rates, 1974.
4. The Agricultural Engineers worked out the wages of each category of workmen employed in the Agricultural Engineering Department on the basis of the daily rates of wages as given in the Schedule of Wages Rates, 1974, which were multiplied by 30/31 to arrive at their monthly wages, and it is common ground that for a period of 4 months from 1-8-1974 to 30-11-1974, the employees of the Agricultural Engineering Department were paid wages as so worked out. Apparently on an objection raised by the Finance Department, payment in accordance with these rates was stopped and the workmen were paid wages in accordance with the National Pay {{9 PAGES MISS 48,49,50,51,52,53,54,56,57,58,59,}} of his contention was that it was an indisputable position that at the tickets were found punched for the Upper journey when in fact that bus was performing Down journey; and lastly, that incorrect entries had been made in the Waybill and it was not properly closed. Now, as regards the last 2 allegations, it may be mentioned that no finding has been given by the Enquiry Officer in respect thereof. This suggests that the Enquiry Officer did not find the respondent guilty of these 2 charges.
This view gains support from the fact that the Waybill was not even produced before the Enquiry Officer, and consequently, it is not possible to say whether it contained incorrect entries or it had not been properly closed. As regards wrong punching of tickets, this may have been due to a bona fide mistake on the part of the respondent-Conductor. It is not the case of the appellant- Corporation that tickets once punched can be used again. Possibly, in a hurry or oversight, the Conductor punched the tickets for the Up journey when in fact the bus was on the Down journey.
From this mere fact, no dishonesty on the part of the respondent can be inferred.
5. As regards the allegations of carrying excess luggage and misappropriating the fare thereof, the only evidence led on behalf of the appellant-Corporation in the domestic enquiry as well as before the Labour Court was of Inspector Mohammad Tahir, who was in the Checking Party that had checked the bus of the respondent. It is an admitted position that the Checking Party was headed by Zafarullah but he was not examined either in the domestic enquiry or before the Labour Court for reasons which are not apparent on the record. The evidence of Inspector Tahir in respect of this allegation is not very convincing. In the first place, if the respondent had misappropriated the fare received by him for excess luggage of the passengers, excess cash should have been found with him. However, there is no allegation that any excess cash was found with the respondent.
Furthermore, none of the passengers whose excess luggage the respondent is said to have been carrying and from whom he is alleged to have realized the fare for the same, were examined. Most important, the then Timekeeper, Liaquat Ali, was examined in the domestic enquiry and he asserted that no excess luggage was carried by the respondent. I am, therefore, in agreement with the view taken by the learned Labour Court that the carrying of excess luggage by the respondent Conductor has not been established and hence the question of misappropriation by him of the fare for the same does not arise.
6. As regards the last allegation against the respondent, namely, that he carried 3 ticketless passengers from whom he had realized the fare but misappropriated the same, there is only the bare word of Inspector Tahir, since his superior, Zafarullah was not examined, as already stated, either in the domestic enquiry or before the Labour Court. Furthermore, even Inspector Tahir has admitted that when any ticketless passenger is found travelling in a bus, unpunched tickets are secured from the Conductor. However, in the instant case, admittedly no such tickets were secured from the respondent. It may also be mentioned that if the respondent had misappropriated the fare which he is alleged to have received from the 3 ticketless passengers, he should have been found with the excess cash, but there is no allegation that any excess cash was found with him. On the other hand, there is evidence of one Baboo, who was examined by the respondent in the domestic enquiry. According to him. He was travelling in the bus at the time when the bus was checked, that all the passengers had been given tickets and the Checking Party had collected some tickets from the passengers. The evidence thus does not establish the charge that the respondent carried 3 ticketless passengers and misappropriated the fare collected by him from them.
6. For the reasons stated by me above, I would uphold the findings of the learned Labour Court and would dismiss the appeal. Mr. Azmatullah submitted that even if this Tribunal takes the view that the order re-instating representative relied upon the following observations made by my learned predecessor in Appeals Nos. HYD-428/77 etc., decided on 23-10-1978 :- "I have heard the learned counsel as well as I have considered the explanation of the learned Presiding Officer and I am inclined to accept the contention as raised on behalf of the appellants that the Orders were never written while the Presiding Officer was holding the charge but the same were written and signed long after his transfer. The statement made by the learned Presiding Officer seems not to be correct. There is no order on the file of any of the cases. I recall that when I was last holding the charge of this Court, there were many complaints received from many quarters that the learned Presiding Officer had taken away more than 150 cases and the parties were approaching the Labour Court for the supply of the copies of the Orders, if at all passed in those cases but they were told that the cases were not available and had been taken away by the previous Presiding Officer on his transfer. There was also some correspondence in which, I too had directed the previous Presiding Officer to return those cases. The list, which was sent by the successor Presiding Officer, also had confirmed this fact. Not only this, but, this is further supported by the facts that the copies of the Orders were supplied somewhere in September 1977, although the Orders were purported to have been written and signed in February and March 1976.
' Therefore, what has been stated above, it is clear enough that serious illegality had been committed as the law requires that the Order not only should be pronounced but it must be written and signed when it is pronounced. On account of serious non compliance with the law, the impugned orders are not sustainable."
4. I have also seen the correspondence which had taken place on the above point between the Office of the Tribunal and the successor of the learned Presiding Officer, who purported to have decided these cases, from which it appears that hundreds of cases were taken away by the learned Presiding Officer at the time of his transfer in March 1976, and these cases were subsequently sent back by him, at intervals and in instalments.
5. In addition to the circumstances relied upon by Mr. A. Majeed in support of his above contention, there are other circumstances which tend to support him. The first is that the impugned decision does not bear the seal of the Court. This obviously would not have been possible if the learned Presiding Officer had continued to remain in office at the time when the decision is said to have been written and announced. This is a strong circumstance indicating that the judgment was recorded when he had ceased to hold the Office of Presiding Officer. The second circumstance is that no notice of the announcement of the judgment was given to the parties. This was all the more necessary since the judgment was being announced more than 18 months after the hearing of the arguments and during the intervening period no party had been in attendance. One more circumstance which also seems to have a bearing upon this issue is {{MISSED PAGE}}
6. Mr. Farooqui, the learned counsel for the respondent on the other hand, subinitted that judicial record has a sanctity behind it and unless there are strong circumstances to the contrary this Tribunal should be slow to accept the contention that the decision in the instant case was not recorded and announced on the day when it purpoits to have been given i,e, on 2-3-1976. The contention of Mr. Farooqui undoubtedly has great force and ordinarily I would not have entertained an argument challenging the correctness or regularity of a judicial action or even the date when a particular decision was given but in the instant case, as already pointed out, there are strong circumstances indicating that there was departure from the normal and established practice of the Court. In view of these unfortunate circumstances, and also bearing in mind the past conduct of the learned Presiding Officer, in respect of which my learned predecessor has recorded very strong observations, which have been earlier reproduced in this order, I am of the view that the presumption as to the regularity or the sanctity and correctness of the judicial record has, unfortunately, been gravely eroded.
7. Mr. Farooqui next submitted that unless this particular case finds mention in the lists of cases which were subsequently received by the successor of the Presiding Officer, the presumption should be that the case was decided on the date upon which it purports to have been decided.
Although it is not clear from the lists submitted by the successor of the learned Presiding Officer of the cases which he had subsequently received from his predecessor whether this particular case was among those cases, since there is one case, at Item No, 99 of the second list, entitled A. D. C.
Union v. A. D. C., which seems to correspond to the present case, it is quite likely that the instant case was one of those cases which had been subsequently received from the Presiding Officer who had decided it.
8. For the reasons stated by me above, I am inclined to the view that the decision in the instant case was not given by the learned Presiding Officer on the date on which it purports to have been given but at the time when he had become functus officio and as such this is a case of coram non judice. I would accordingly set aside the impugned decision of the learned Presiding Officer and remand the case to the learned Labour Court for decision after giving opportunity to both parties of submitting oral arguments. Since the case is being remanded, I am not touching upon the various other legal factors and issues raised in the case. However, I would like to add that since, in my opinion, the impugned decision was coram non judice and further it is not known when it was actually given, no question of limitation arises so far as the appeal before this Tribunal is concerned.