1. AWARD SHAFFI MUHAMMAD R. AKHUND (CHAIRMAN).-In this application under section 38 of the West Pakistan Industrial Disputos Ordinance, 1968, the applicant seeks re-instatement in service with full pay and back benefits.
2. The applicant was a conductor in the Government Roads Transport Service at Hyderabad. On 25th March 1963, while he was on dirty can Bus No. 2317 on Karachi- Hyderabad road his bus was checked by the checking party and it was found that there were 16 passengers travelling in the bus without tickets. A report was made and the applicant was charge-sheeted and an enquiry was instituted against him, as the result of which, his services were. Terminated for misconduct, by the District Manager by his order dated 20th June 1968.
3. 'The applicant's case is that the report against him was wrong and groundless and so also the charge-sheet. He had given a satisfactory reply but an incomplete enquiry was held against him and he was not given any opportunity to defend himself. There--after, he was dismissed from service illegally and wrongfully. According to him, he was the member of Government Transport Service Labour Union and was concerned in certain Industrial Disputes pending in the Court.
4. Consequently, his dismissal during the pendency of the disputes was in violation of section 37 of the W.P.I.D.O., 1968.
5. The respondents, in their reply statement, stated that the report against the applicant was correct and that a fair and impartial enquiry was held against him in which he was afforded full opportunity to defend himself. As a result of the enquiry, the charge of misconduct against the applicant was proved and accordingly his services were terminated. The respondents father state that they have no knowledge of the membership of the applicant of the Trade Union and they have denied that the applicant was a party concerned or connected with any industrial dispute pending adjudication before the Court. Besides, his services were not terminated for any at of misconduct connected with any pending dispute. Consequently, according to the respon--dents the order of the termination of services of the applicant was legal, valid and proper.
6. During the proceedings, the applicant examined himself. The respondents examined Arz Muhammad Abro, D.T.M., who held the enquiry against him. The applicant, in his deposition, states that there were in all 68 passengers in his bus when they left Thatta for Hyderabad. At Thatta Naka, another G.T.S. Bus which was also going to Hyderabad went but of order and he picked up 34 passengers of that bus as well, raising the number of passengers to 94. Out of these 34 passengers, he had issued tickets to the 18 passengers and, while he was issuing tickers to the remaining 16, his bus was checked by the checking party. According to him, his bus was checked at Thatta Naka and not at Chapha-chand village at a distance of 6 miles from Thatta as alleged by the respondents.
7. Front the applicant's statement, however, it appears that in the enquiry held against him all legal formalities were observed by the respondents. He admits that he was given a charge-sheet Exh. R.
8. W. 1/1 and that he had made the reply Exh. P. W. 1/2. In his examination-in-chef ha repeats that an incomplete enquiry was held against him and that he was not given any opportunity to defend himself. But, in the cross-examination, he admits that the Enquiry Officer had recorded statements of M. J. Abro, T.A., and Wali Muhammad T.A., in his presence and that he had cross-examined both the witnesses. His own statement was also recorded by the Enquiry Officer and it was signed by him. He further admits that he had told the Enquiry Officer that he did not want to produce any witness in defence. He was confronted with the enquiry papers consisting of 3 sheets Exh. R-2 and ha admitted that each sheet was signed by him. The order of the termination of his services Exh. P.
9. W. 1/3 show that he was heard in person before the District Manager proceeded to pass the impugned order against him.
10. Thus, there can be no doubt that thorough enquiry has been hold against the applicant in which all formalities required by law were observed. The applicant, according to his own admission was given full opportunity to cross-examine the witnesses and to defend himself. Consequently, the applicant's assertion that the enquiry was incomplete and that he was not given opportunity to defend himself is no true. The applicant has next contended that he was the member of the Trade Union and was concerned in certain Industrial Disputes pending in the Court. But, he has produce no evidence whatsoever, ether oral or documentary, is support of his contention. Therefore, this allegation of the applicant is equally untenable. The respondents contended that the applicant had moved a similar application under section 38 of the W.P.I.D.O., 1968, previously also but it was dismissed as withdrawn. The true copy of the order on that application produced by the applicant, however, shows that the application had been withdrawn but permission was granted to him to refile the same.
11. Lastly, there remains the question whether the punishment meted out to the applicant was appropriate under the circum--stances of the case. Section 7(2) of the Road Transport Workers Ordinance, 1961 enumerates the acts and omissions constituting misconduct for which the employee's services are liable to be terminated. No, it is not clear either from the reply statements of the respondent or from the order of the termination of the services of the applicant as to under which provision of section 7(2), the applicant was found guilty of alleged misconduct. The impugned order, however, shows that the applicant had been punished 9 times before but had not improved himself. It was only in their arguments, that the respondents took up the plea that the applicant wan punished for habitual negligence as provided in sec4ion 7(2)(1). They also produced during the arguments, attested copies of the orders of previous punishment awarded to the applicant. But, no such question was put to the applicant when he was examined, nor was this evidence brought on record through the respondent's witness who was the Enquiry Officer.
12. Consequently, these orders of previous punishments of the applicant cannot be taken into consideration. But, even the enquiry papers show that the applicant was neither charged with habitual neglect of work nor was evidence to this effect brought during the proceedings in the enquiry. Therefore, the respondents cannot now plead that the applicant was found guilty of habitual negligence of work. He was clearly charged with the only incident that took place on 25th March 1968.
13. The learned representative for the applicant has referred to several authorities to the effect that one solitary at of negligence cannot be termed as habitual negligence and the dismissal on account of one at alone was not proper. 1n the case reported in 1963 PLC 1021, the services of one Ajab Khan had been terminated because he was found sleeping while on duty. It was held by the learned Industrial Court, West Pakistan, that under the provision of Law, it was habitual negligence or neglect of Work which was to be treated as misconduct. Ajab Khan was neither charged nor found guilty of habitual negligence or neglect of work. One instance of sleeping while on duty, even, if It is treated as negligence or neglect of work, cannot bring the case of Ajab Khan within the mischief of section 13(3)(1) of the Standing Orders. Similarly, in the case reported in 1970 PLC 198, it was held by the learned Industrial Appellate Tribunal, West Pakistan, that the admitted position in Law was that for mere neglect of work, unless it was habitual, the applicant could not be dismissed from service. The case reported in 1969 PLC 547 is exactly similar to the present case. In that case also, the bus of the Conductor was checked and it was found that he had not realized fare from any of the passengers, and consequently, he was charge-sheeted and dismissed by the District Manager. It was held by the learned Industrial Appellate Tribunal, West Pakistan, that in the absence of any charge or proof that the respondent was guilty of habitual neglect of work, it cannot be held that he had committed any at of misconduct. It may be observed here that, in the present case, the Enquiry Officer in his report has stated that Mr. M. S. Abro who had checked the bus of the applicant, had found him busy in issuing tickets when he boarded the bus.
14. Therefore, in view of the authorities cited above. It is clear that one solitary at of negligence of the applicant for which he was charged and found guilty would not fall within the definition of misconduct as defined in section 7(2)(1). Consequently, I find that the order of termination of service of the applicant on that account was not proper and it is set aside. The applicant shall be re-instated in service forthwith. As regards the pay and back benefits of the applicant during the intervening period. I find the case has taken more than 3 years to be disposed of this long delay can neither be attributed to the applicant nor to the respondents. It has occurred on account of frequent changes of the Chairman of the Court. Consequently I find it would not be proper to burden the respondent with the pay etc. Of the applicant for this long period for which they are no responsible. Therefore, the intervening period shall be treated as Leave Without Pay of the applicant with continuity in service from the date when his services were terminated.