1. Sardar Khan, Ex-Conductor, G.T.S., has filed the present petition against the General Manager, G.T.S., Peshawar under section 25-A of the Industrial Relations Ordinance, 1969 for his re-instatement.
2. The petitioner who was a permanent employee of the G.T.S:, as a Conductor was charge-sheeted for carrying 8 ticketless passengers and for attempting to embezzle the G.T.S. Revenue. The petitioner replied wherein he rebutted the charge levelled against him and an enquiry was held against the petitioner. In which the petitioner was held guilty and consequently he was dismissed from service vide the impugned order passed on 15th April, 1977. The petitioner's appeal was rejected on 14th May, 1977.And similarly his revision petition to the Chairman, Road Transport Board was also rejected on 18th July, 1977. The petitioner alleged that no case of misconduct was proved against him during the-. Enquiry, that he committed no offence as he was in the process of issuing tickets to the passengers when the bus was checked by the C S.I., that the Enquiry Officer was prejudiced against the petitioner and did. Not appreciate the defence of the petitioner, that the petitioner was not allowed to produce defence nor he allowed the petitioner to cross-examine the witnesses, . That the petitioner could not be dismissed retrospectively that the misconduct if proved amount--ed to negligence and not embezzlement of G.T.S.; revenue, therefore, the dismissal order was unwarranted.
3. Exh. PWI/2 is the dismissal order wherein it has been stated that the petitioner stands dismissed with effect from 17th February, 1977 for embezzling the Road Transport Board revenue by realising fare in advance from the passengers and carrying them without tickets and thus he was guilty of misconduct as contemplated under section 15, clause (3) (b) of the West Pakistan Standing Orders Ordinance, 1968.
4. Exh. PW1/3 is the copy of appeal preferred by the petitioner against the impugned order. Exh. PW 1 /4 is the rejection of this appeal. Exh. PW1/5 is the copy of order whereby, the. Appeal of the petitioner was dismissed by the Government of North-West Frontier Province, Industries Department.
5. The written statement was filed on 19th November, 1977 wherein the following pleas have been raised :- That the petition is, not within time, that the petitioner has not served the respondent with the requisite notice and the allegations levelled on the factual side have been repeated in the written statement.
6. Evidence of the parties has been recorded. Arguments heard and record perused, Exh. Dx.. Is the copy of the charge-sheet wherein the charges framed against the petitioner are - (1)that the petitioner allowed ticketless passengers to travel by the bus ;
(2) that the petitioner received the fare from the passengers in advance and intended to misappropriate the money so received.
7. (3)that the petitioner intended to put the Government Transport Service to a loss of Rs. 2.40 ; (4)that the petitioner was guilty of dishonesty.
8. The main defence of the petitioner all along has been that he never intended to misappropriate the Government Transport Services revenue, that he was in the process of issuing tickets to the passengers who had boarded the bus at Titara, whereas the rest of the passengers had already been issued tickets and that the petitioner never received any fare from the passengers in advance who were found without tickets. Mr. Moazum Shah, C.S.I., has been examined in the enquiry. He has built up a .Case against the petitioner that six of the 8 passengers were neither issued tickets nor they had paid any fare to the conductor, whereas the remaining two ticketless passengers had, paid the fare but they were not issued any tickets. The petitioner's claim is that he was about to issue tickets to these two passengers from whom he had received fare -and was-in- the process of issuing tickets to the others when the bus was checked by, Moazum Shah, C.S.I.
9. Strongly says that this witness has not been- cross-examined by the petitioner who has been stated to have participated in the enquiry yet he did not cross-examine this witness. The petitioner has not denied to have received the fare from the two ticketless passengers but has stated that he was about to issue tickets to the ticketless passengers when the bus was checked by the Checking Inspector. This stand has been taken up by the petitioner in his statement recorded in the court. It is evident from the Enquiry file that no independent witness has been examined by the Enquiry Officer excepting the Checking Inspector whose testimony stands rebutted by the statement of the petitioner and circumstances of the case. There is no proof that the petitioner had embezzled or intended to embezzle the G.T.S. Revenue. It would not be out of place to sake judicial notice of the fact that the conductor received fare before issue of tickets and if all buses are checked at such specified moments then similar cases would developed against all the conductors. There is no evidence produced by. Respondent to the effect that the petitioner had embezzled any amount or that he was guilty of having misconducted mentioned in the charge-sheet. It is the statement of the .Checking Inspector alone against the petitioner on the basis of which the enquiry report has been based, the dismissal order mentions only embezzlement which has not been proved.