1. This is an appeal against an order of the learned Chairman of the Second West Pakistan Labour Court, Karachi, dated the 2nd of February 1970 whereby the learned Court dismissed the application of the appellant under section 38 of the West Pakistan Industrial Disputes Ordinance, 1968 on the ground that there was no violation of section 37 of the Ordinance. The facts giving rise to the present appeal briefly put are these.
2. The appellant was employed as a Conductor in Government Transport Service, Hyderabad. His bus was checked on 14 August 1968, which was running from Gari Khatta to Market Hyderabad by one Mr. Abdul Waheed, Traffic Assistant, G. T. S., Hyderabad. He found that there, were in all 24 passengers out of whom 17 passengers including 3 children were without tickets and that the appellant had realised fare from 14 adult passengers and had not issued tickets to them. Three passengers who were ticketless were children. The appellant was asked to give his statement in T.
3. T. 40 form. He stated that he had not issued tickets to 14 passengers as they were refusing to pay for the 3 children and in the meantime, the bus reached its destination where Mr. Abdul Waheed Khan checked the bus. The distance between the place where the 17 passengers boarded the bus and the place of destination was admittedly about 3 furlongs.
4. Mr. Wasiullah Qureshi, the learned Representative for the appellant has raised a new point that he had not urged before the learned Court. His contention in short is that the appellant could not be dismissed from service as on the finding of the Enquiry Officer no case of misconduct was made out within the meaning of section 7 of the Road Transport Workers Ordi--nance. 1961. Under section 7 of the Road Transport Workers Ordinance, 1961, the services of a worker cannot be terminatedth without sufficient cause. The services, however, could be terminated if he was found to be guilty of misconduct. Sub-- section (2) of section 7 of the Road Transport Workers Ordi--nance defines as to what is misconduct. The appellant was charge-sheeted under section 7(2) (b) and (i) of the Transport Workers Ordinance, 1961. They run as under:-- -- For the purpose of this subsection the following acts and omissions shall be treated as misconduct:--
(a) --- --- --- --- ---
(b) theft, fraud or dishonesty in connection with the employer's business or property.
(c) --- --- --- --- ---
(d) --- --- --- --- ---
(e) --- --- --- --- ---
(g) --- --- --- --- ---
(h) --- --- --- --- ---
(i) habitual negligence or neglect of work The Enquiry Officer Mr. Arz Mohammad Abro after holding the enquiry submitted his report to the District Manager on 2nd of August 1968. The report is on the 'record of the learned Court. I have gorse through it. It is a short report of six paragraphs. The reasoning and the conclusion of the Enquiry Officer is contained in the sixth paragraph which is not very clear and runs as under:- "The prosecution in his deposition has clear said the facts stated by the conductor as such the charge of dishonesty can be proved against him. I therefore hold him guilty of charge of neglect of work please."
5. The first sentence of what is reproduced above is not at all clear. , All that is clear is that the Enquiry Officer found the appellant guilty of neglect of work. Mr. Mehboob Rizvi, the learned Representative for the respondent relied on the concluding portion of the report reproduced above and submitted that the Enquiry Officer found the appellant guilty of both the charges namely misconduct as Well as habitual neglect of work. There is no force in this submission. The reasoning and the conclusion of the Enquiry Officer contained in the first sentence of the sixth paragraph is, on the face of it, perverse. The Conductor cannot be held to be guilty of dishonesty on the ground that "the prosecution in his deposition has clear said the facts stated by the Conductor". The 'sentence 'is meaningless. The Enquiry Officer, perhaps, meant to say that the prosecution admitted the statement of the conductor and therefore he cannot be held to be guilty of dishonesty. This conclusion is supported by the statement of Mr. Abdul Wahid Khan, who was the only witness on behalf of the prosecution. He admitted what the appellant had stated in T. T. 40 Form. Be as it may, the only conclusion that is clear is that the Enquiry Officer found the appellant to be guilty of neglect of work. Mere neglect of work unless it is habitual cannot amount to misconduct. In these circumstances, I would hold that there was violation of the provision of section 37 of the Ordinance inasmuch as the respondent dismissed the appellant from service without sufficient cause. This would amount to alteration of the conditions of service of the appellant.
6. I would order that the appellant be re-instated in service. The only question is as to whether the appellant is entitled to all the back benefits. In this connection I may mention that admittedly the ground on which the appeal is being allowed was taken for the first time before me. It was not taken in the application under section 38 of the West Pakistan Industrial Disputes Ordinance, 1968, which was filed on 29th November 1968. I have gone through the application. In the application the charge-sheet was challenged to have been based on the false report of the checker. The enquiry was said to be not fair and impartial and the second show-cause notice was challenged on the ground that it was not accompanied by the copies of the enquiry proceeding: If the appellant had urged the point before the learned Court, which has not been taken before me, the result of the application may have been different. In these circumstances I would order that the appellant be paid only 8 months' salary as compensation on his re-instatement.