1. This is an appeal against an award dated the 7th April 1970, whereby the learned Chairman of the Second West Pakistan Labour Court, Karachi, accepted the respondent's application under section 38 of the West Pakistan Industrial Disputes Ordinance, 1968 hereinafter called the Ordinance: acid ordered his re-instatement with retrospective effect. The facts giving rise to the present appeal briefly put are these.
2. The respondent was employed as a Conductor in G. T. S., Sukkur and while on duty on 23rd December 1968, his bus was checked by Mr. Arz Muhammad Abro, A. T. M., Sukkur about 3 miles from Jacobabad towards Jhat Pat. Mr. Abro found 21 passengers on the bus out of whom 18 passengers were travelling without tickets but that the respondent had not realised fare from any one of them. Mr. Abro wanted to issue tickets to the passengers from the R. P. T. book but the respon--dent did not allow him to do so. Moreover, Mr. Abro stated that he could not issue tickets as the place where the bus stopped he apprehended foul play from outlaws. He, therefore, allowed the respondent to go away. On the report of Mr. Abro an enquiry was instituted by the District Manager and Mr. Mumtaz Sheikh, Station Superintendent G. T. S., Sukkur was appointed as Enquiry Officer. On the report of the Enquiry Officer the District Manager dismissed the appellant from. service.
3. The plea of the respondent was that there were only 11 passengers on the bus when the bus was checked and all of them possessed tickets.
4. Before the Enquiry Officer Mr. Abro appeared to prove the charge against the respondent. On behalf of the respondent, the respondent deposed that his statement is the same which he gave in reply to the charge-sheet and he had nothing further to add. The respondent also examined three witnesses in support of his allegations. These three witnesses stated that there were only 11 passengers when the bus was checked and that they all had tickets. Before the learned Chairman of the Labour Court the Department examined Mr. Abro, who checked the bus and Mr. Mumtaz Sheikh, the Enquiry Officer. The respondent examined himself.
5. The learned Court came to the conclusion on the following grounds that no fair and impartial enquiry was held against the respondent and that the respondent was not given full opportunity to defend himself:
(1) That the Enquiry Officer being lower in post was subordinate in office to that of Mr. Abro, who was Assistant Traffic Manager;
(2) That the Enquiry Officer should have summoned R. P. T. and T. T. 2 on the request of the respondent. If he had examined these documents he would have been enable to find out if there were 11 passengers as alleged by the respon--dent;
(3) That tire charge-sheet mentions that the respondent had realised fare from one passenger while the T. T. 40 and Mr. Abro states that the respondent had not realised fare from any of the 18 passengers. Mr. Abro gave contradictory statement before the Court that the respondent had not issued ticket to any one of the 18 passengers. While Mr. Abro so stated before the Enquiry Officer;
(4) That the defence witnesses supported the respondent that there were only 11 passengers in the bus and they had tickets;
(5) That Mr. Abro had insufficient opportunity to have noted on T. T. 2 that the respondent had not issued tickets to any of the passengers;
(6) That there is no allegation on behalf of the Department that tickets were issued to passengers after the bus was checked; and
(7) That the allegation of the respondent being that he was involved falsely by Mr. Abro, some one of higher status should have been appointed as Enquiry Officer. Mr. Mumtaz being of lower status to Mr. Abro, the enquiry was not fair.
6. Before I deal with the conclusion arrived at by the learned Labour Court it would be necessary, to mention that it is now well settled in Pakistan as well as in India that the Labour Court can not sit in appeal over the findings arrived at by the Domestic Enquiry Officer. The finding of fact arrived at by the Domestic Enquiry Officer could however be challenged and the Court would be justified in examining the evidence and the conclusion arrived at by Enquiry Officer if it was established to the satisfaction of the Court that the Enquiry Officer was prejudiced against the person charge- sheeted. Mere allegation by the petitioner is not sufficient to conclude that the Enquiry Officer was prejudiced against the petitioner. The other fact that Mr. Mumtaz Sheikh was lower in status to the Assistant Traffic Manager is also not sufficient for holding that the Enquiry Officer acted in a manner prejudicial to the interest of the respondent. The respondent must make out a case that the Enquiry Officer was prejudiced against him. Jauhar Ali, the respondent, appeared before the Court. I have gone through the statement of Jauhar Ali. He gave a very detailed statement. He does not state that the Enquiry Officer did not record his statement or that of his witnesses or in any way stopped him from cross-examining the witnesses for the Department. The Enquiry Officer has taken down 12 questions put to Mr. Arz Muhammad Abro in detail and the answers given by Mr. Abro. He did not complain that the Enquiry Officer did not permit him to produce his defence or to put question to Mr. Abro. His only grievance was that the Enquiry Officer did not send for 'T. T.
2. The failure on the part of the enquiry officer not to send for the T. T. 2 is quite understandable.
7. Admittedly T. T. 2 is in triplicate. One copy of the same remains with the Conductor. If the Conductor wanted to produce ft be would have pro--duced the copy of T. T. 2 himself. The case of the respondent was that some of the passengers had made remark: against Mr. Abro on T. T.
2. The respondent must have carefully preserved the copy of the T. T. 2, on which these remarks were given. Failure on the part of the Enquiry Officer to summon T. T. 2 from office, which would have take quite long to search for it, cannot be said to have prejudiced the respondent when the respondent himself had a copy of the same which he could easily produce. There is also not a single word in the statement of the Conductor in his examination-in chief before the Court that the Enquiry Officer had any malice on enmity against him. It was in the discretion of the Enquiry it Officer not to have sent for T. T. 2 from the office when the respondent was expected to have a copy of the same, which he could have easily produced before the Enquiry Officer: Moreover, the respondent did not allege anything against the Checker Mr. Abro, that he had any previous enmity against the Conductor so as to involde him falsely in the case. All that Mr. Jauhar Ali stated before the Court was that "some of the passengers in the bus however took exception to the harsh language used by Mr. Arz Muhammad Abro, and that the passengers entered the remarks against Mr. Abro on T. T.
8. 2 Form". This statement by the Conductor does not establish that Mr. Abro will falsely implicane the respondent. It is also noteworthy that before the Enquiry Officer the respondent did not out a single question to Mr. Abro that he had used harsh language to any of the passengers of the bus or was rude to him. He did not even make any suggestions to Mr. Abro in the cross-examination that he had any malice or was prejudiced against him because of his conduct on the day when his bus was checked. In these circumstances when the respondent has failed to prove any prejudice against the Enquiry Officer or against the Checker the learned Court was not justified in examining the finding arrived at by the Domestic Enquiry Officer as a Court of Appeal. However, I do not think that there is much substance in the conclusion arrived at by the learned Court for setting aside the finding of the Enquiry Officer.
9. I have already observed that mere fact that the Enquiry Officer was lower in post of the Checker is no ground for holding that the enquiry officer was prejudiced against the respondent. Similarly I have also observed that the mere fact that the Enquiry Officer did not send for T. T. 2 from the office is not sufficient ground to hold that the Enquiry Officer did not act fairly. As to whether there were 11 passengers in the bus or more is a section of fact. It was open W -the Enquiry Officer to believe the statement of the Checker. R. P. T. book of T. T. 2 could not conclusively prove that there were 11 passengers at the time when the bus was checked. The admitted position is that the R. P. T. and T. T.
10. 2 were returned to the respondent by Mr. Abro. It was very easy for the Conductor to have issued only 11 tickets to the passengers out of 18 ticketless passengers to establish his deference. There is no doubt that there is discrepancy in the charge-sheet on the one hand and the state--ment made by Mr. Abro and T. T.
40. Mr. Abro stated that the respondent had not realised fare from any one of the 18 passengers. It seems that in the charge-sheet through some misreading of the T. T. 40 the discrepancy had occurred that the respondent had realised fare from one person. The fact however remains that Mr. Abro supported the T. T. 40 and to the Enquiry Officer did not find him guilty because the respon--dent had received fare from one passenger. The respondent was found to be guilty for having realised fare from one of them. It was for the Enquiry Officer to believe the appellant's witnesses or that of Mr. Abro. The failure on the part of Mr. Abro that he did not make a record on T. T. 2 that the respondent had not issued tickets is not sufficient to prove that lie was prejudiced against the respondent.
11. It was not for the prosecution to allege or to prove as to whether any tickets were issued after Mr. Abro checked the bus so long as Mr. Abro was believed by the Enquiry Officer that 18 passengers were without tickets. I have already observed that there is no basis for the conclusion that Mr. Arz Muhammad Abro was annoyed against the respondent so as to falsely implicate him in a serious charge.
12. I have come to the conclusion that the facts made out by the respondent in the case do not entitle the. Court to examine the conclusion arrived at by the Domestic Enquiry Officer a Court of Appeal. I would hold that there is no violation of section 37 of the Industrial Disputes Ordinance, 1968 so to give any relief to the, respondent under section 38 of the Ordinance.
13. The appeal is, therefore, allowed and the Award dated the 7th of April 1970, by the learned Labour Court ordering re-instatement of the respondent is set aside. The application of the respondent under section 38 of the Ordinance is dismis--sed.