DECISION This is an appeal against an award dated 1 May 1970, whereby the learned Labour Court dismissed the application of the appellant under section 38 of the West Pakistan Industrial Disputes Ordinance, 1968 (hereinafter called the repealed Ordinance), on the ground that there was no violation of section 37 of the repealed Ordinance. The facts giving rise to the appeal briefly put are these.
2. The bus of the appellant was checked on 12th February 1969. He was charge-sheeted on 15th February 1969, and submitted his reply thereto on 22nd February 1969. Mr. Arz Mohammad Abro was appointed Enquiry Officer. After recording the evidence of Mr. Mohammad Siddiq, the Checker, and that of Mr. Jan Mohammad, on behalf of the appellant and the statement of the appellant himself, the Enquiry Officer held the appellant to be guilty of misconduct for which he was charge- sheeted.
3. Mohammad Siddiq, Traffic Assistant, had checked the bus of the appellant at Pannu Aqil. He found that 8 persons were travelling from Sanghi to Pannu Aqil and were without tickets and that the appellant had realized fare from them.
4. Before the learned Labour Court, Mohammad Siddiq and the Enquiry Officer appeared for the Department while the appellant examined himself in defence.
5. In the first place, Mr. A. Majeed, the learned Represen--tative for the appellant contended that Mohammad Siddiq did not take down the statement of the appellant on T. T. 40 Form. The factual position is that a statement, which purports to be that of the appellant, Saeed Khan, was taken down on T. T. 40 Form. According to Mohammad Siddiq, the appellant refused to put his signature thereon, but Mohammad Siddiq took the signature of the Driver thereunder. It is not believable as tost why Mohammad Siddiq would not like to observe the normal rule of practice by ignoring to take the statement of the accused on T. T. 40 Form. At any rate, even if Mohammad Siddiq failed to take the statement of the appellant on T. T. 40 Form, the only reasonable presumption that can be drawn is that the statement that he made in reply to the charge-sheet would have been the statement of the appellant on T. T. 40 Form also. I will proceed to examine the case of the appellant in the light of the statement, which he mad.- in reply to the charge-- Sheet.
6. In T. T. 40 Form the statement of the appellant purports to be that he will give his reply when be is charge---sheeted. In reply to the charge-sheet, the appellant stated that 8 persons, who were found to be without tickets by Muhammad Siddiq, had boarded his bus under the impression that it was going from Pannu Aqil to Sukkur. It was only when the appellant asked them to pay the fare that the passengers realised that they had boarded the wrong bus and in the meantime the Checking Party came. On the face of it, the statement of the appellant is unbelievable. The bus must have been facing towards Ubaro side and not towards Sukkur side. All the eight persons could not make the mistake of boarding a bus, which is facing towards Ubaro side and not towards Sukkur side. If it was a case of solitary passenger, one may have believed the story of the appellant.
Moreover, the appellant also stated that while at the Booking Office at Pannu Aqil some passengers were enquiring as to whether his bus was going towards Sukkur side, he had enlightened them that it was going towards Ubaro side. In the face of this warning, it is hardly believable that as many as 8 persons for Sanghi will board the bus in broad daylight at 11-15 a.m. At any rate, it was for the Court to find out as to whether the domestic enquiry was fair and impartial. The Court came to the conclu--sion that the enquiry was fair and did not suffer from any violation of the principle of natural justice. This conclusion can be safely arrived at after perusing the statement of the Enquiry Officer, Mr. Abro. Only one question had been put to the Enquiry Officer in cross-examination, as to whether Muhammad Bachal, Booking Clerk, was summoned by the prosecution or by the appellant. In answer to that question, the Enquiry Officer stated that neither summoned Muhammad Bachal. No question has been put to the Enquiry Officer to show that he was, in any way, partial to the Department. It was open to the Enquiry Officer to accept the statement of Muhammad Siddiq in preference to that of the Conductor and his defence witness, Jan Muhammad.
7. It was next contended by Mr. Majeed that Jan Muhammad, who appeared as defence witness for the appellant, had had not been cross-examined and, therefore, his statement should be taken as gospel truth. There is not much force in this submission. I have gone through the statement of Jan Muhammad. There is nothing to show in his statement as to how he and other 7 persons in broad daylight took the bus, which was facing towards Ubaro side. to be for Sukkur. Moreover, it was open to the Enquiry Officer to accept the statement of Muhammad Siddiq in preference to that of, the appellant and Jan Muhammad. It was open to the appellant to produce Jan Muhammad before the learned Labour Court. If he had been produced before the learned Curt, the Court may have put certain questions to Jan Muhammad. to test the veracity of his statement.
8. It was also contended before me that the District Manager did not hear the appellant. The appellant was summoned to appear before him on 8th April 1969. He failed to appear before him on that date. It is submitted now before me that the appellant was admitted in hospital on 5th April 1969 and was discharged on 7th May 1969. A certificate from the Doctor supports this submission.
The fact remains that the District Manager could not know, in the absence of any information conveyed to him, that the appellant was lying ill in f the hospital. He had done his duty by asking the appellant to appear before him on 8th April 1969, when he did not appear before him. At any rate, the appellant had every opportunity before the learned Labour Court to take all the pleas that he may have taken before the District Manager in support of his innocence. The appellant examined himself before the learned Court and repeated the same story, which he had given in reply to the w charge-sheet. As I have already observed, the defence plea on the face of it is unbelievable.
9. Lastly, it was submitted that it was the duty of Muhammad Siddiq to have checked the cash with the appellant when he checked the bus on 13th February 1969. This was, admittedly, not done. If Muhammad Siddiq had performed his duty by checking the cash on the person of the appellant, this would have been additional evidence in support of the fact that the appellant had realized fare from 8 of the ticket less passengers and had pocketed it himself. The omission on the part of Muhammad Siddiq to check the cash on the person of the appellant would, however not lead one to the conclusion that Muhammad Siddiq should riot be believed. I have gone through the statement of Muhammad Siddiq before the Court. No question has been put to him in cross- examination on the point that the appellant had realized fare from 8 of the passengers. Moreover, there is nothing in the cross. Examination. of Muhammad Siddiq by the appellant to suggest that Muhammad Siddiq had any enmity or any motive to falsely implicate the appellant for such a serious charge, which may result in his dismissal from service. No other point was taken before me by the learned Representative for the appellant, I do not any reason to take, a different view from what has, bas been taken by the learned. Labour Court. The appeal is Go accordingly dismissed.