This is an appeal under section 16 of the West Pakistan Industrial Disputes Ordinance, 1968 (hereinafter called the Ordinance), against the order of the learned Chairman, Second West Pakistan Industrial Court, Karachi dated 15th June 1968. The impugned order was passed on an application under section 31 of the Industrial Disputes Ordinance, 1959, for a direction to re-instate the applicant from the date of his dismissal, namely, from 9th August 1967, with full pay and benefits. The facts giving rise to the application briefly put are these.
2. The appellant was employed as a Conductor in the Government Transport Service at Sukkur, He was also a member of the Government Transport Service Labour Union, a registered body under the Trade Unions Act, 1926. On 7th May 1967, while the appellant was on duty as Conductor, his bus was checked by Mr. Muhammad Afzal Zaidi, Checker, and the histrict Manager. The Checker found 38 ticket less passengers, It was found that the appellant had realised fare from 3 of tfie passengers only. He was charge-sheeted by the District Manager on 10th May 1967. After the conclusion of the enquiry by Mr. Muhammad Murad, the Enquiry Officer, found the appellant guilty of misconduct within the meaning of section 7 (2) of the Road Transport Workers Ordinance, 1961.
The District Manager agreed with the findings of the Enquiry Officer and dismissed the appellant from service on 8th August 1967.
3. The appellant made an application under section 31 of the Industrial Disputes Ordinance, 1959, to the learned Chairman, Second West Pakistan Industrial Court, Karachi, on 31st August 1967. The application was dismissed, as already stated, on 15th June 1968. The present appeal was filed on 9th October 1968. It was fixed for disposal on 28th October 1968, after notice to the parties at Hyderabad.
4. The main contention of Mr. Wasihullah Qureshi, the Representative for the appellant, is that the finding of the Enquiry Officer is perverse, inasmuch as no case of misconduct is made out on the statement of Mr. Muhammad Afsar Zaidi, the Checker, within the meaning of section 7 (2), of the Road Transport Workers Ordinance, 1961. In order to appreciate the contention on behalf of the appellant, it would be useful to reproduce the relevant portion of the charge sheet-dated 10th May 1967. It runs as under :- "Charge-sheet.
You have committed the offence mentioned below while on duty on 7-5-67, Bus No. 1010, on-
(a) Dishonesty and fraud, This act of your amounts to misconduct under section 7(2) the Road Transport Workers Ordinance, 1961."
5. Under section 7(2) of the Road Transport Workers Ordinance, 1961, fraud or dishonesty in connection with the employer's business amounts to misconduct. If the same is proved, a worker can be dismissed on that ground.
6. The short question is as to whether any case of misconduct is made out on the statement of Mr. Muhammad Afsar Zaidi. Mr. Afsar Zaidi stated before the Enquiry Officer on 26th July 1967, as under :-
7. Ghulam Mustafa, the appellant on 27th July 1967, admitted before the Enquiry Officer the checking of the bus near Humayun. He stated that Mr. Zaidi issued tickets to 38 persons. He further stated that he had realised fare from 3 persons and while he was going to issue them tickets, the Checking Party stopped him from doing so. He further stated that people were getting in. It would appear from his statement that the bus was standing, while he was realising fare and was about to issue tickets.
8. Mr. Zaidi; was put the following question before the Enquiry Officer :- "Whether the bus was standing when you came for checking or it was moving."
9. Mr. Zaidi replied that the bus was standing anti the travellers were getting into the bus. The admitted position, therefore, appears to be this that the bus was standing and people were getting into it anti the Conductor bad realised fare from persons, who were: probably going to one place and was about to issue tickets to them when the Checking Party boarded and stopped him from issuing tickets and itself issued tickets to the res; of the persona, who were getting into the bus.
10. It is true that the Industrial Court or the Tribunal cannot sit in judgment as an Appellate Court over the finding of the Enquiry Officer. The finding of the Enquiry Officer, however would be vitiated if it is perverse, biased or against the principle of natural justice. In the present case, the finding of the Enquiry Officer appears to be perverse. On the statement of Mr. Zaidi; itl cannot be said that a case of fraud or dishonesty against the property of the employer has been made out. The mere fact that the Conductor had realised fare from 3 persons and was about to issue them tickets would not amount to any fraud or dishonesty on his party. The Bus was standing and people were getting into it. It would take some time before the Conductor issued tickets to them.
11. The learned Chairman of the Industrial Court, while dealing with the statement of the Enquiry Officer, in `he impugned order observed :- "He further solid that in cross-examination the Checker has said in answer to Question No. 10, that they came for checking when the bus was standing and the passengers were getting into it. He further said that in answer to Question No. 12, the Checkersecond time the three passengers said that they hadHe also said that the Checker has and that applicant had realised fare from the 3 passengers and that his hands.
These admissions do not materially affect the main charges in the charge-sheet. I find nothing irregular and improper in the enquiry and dismiss the application."
12. The learned Chairman should have considered the effect of these admissions by the most important witness in relation to the charge against the appellant.
13. It appears to me that the Enquiry Officer was very much influenced by the presence of the District Manager of the Government Transport Service, Sukkur, at the time of the checking by Mr. Zaidi. The Enquiry Officer, while dealing with the explanation of appellant, observed as under :- "More over, this case has been conducted by the Checker in the presence of the District Manager, who can know the gravity of the case: very well."
14. The District Manager has not appeared as a witness. I, am, therefore of the view, as already observed, that the finding of the Enquiry Officer is against the evidence of the Department itself.
15. Mr. Nasrol Hasan, the Labour Officer, on behalf of respondent No. 1, submitted, in the first place, that the applica--tion under section 31 of the Industrial Disputes Ordinance, 1959, was not maintainable, inasmuch as the employer cannot be said to have contravened the provision of section 30 of the Industrial Disputes Ordinance,1959. The submission was that under section 30 of the said Ordinance the a workman, who was not-an officer of a Trade Union, on the ground of misconduct not connected with thu industrial dispute pending before the Industrial Court. It was submitted that the appellant was dismissed for fraud and dishonesty which was not connected with the industrial cannot be said that the employer had contravened the provision of section 30 of the Industrial Disputes Ordinance, 1959, in dismissing the appellant. It is true that under section 30 of the Industrial Disputes Ordinance, 19591, the employer could dismiss an employee during the pendency of an industrial dispute before the Industrial Court on the ground of misconduct not connected with the industrial disputes. The whole question is as to whether the appellant was dismissed on ground of misconduct, as defines under section 7 (2) of the Road Transport Workers Ordinance, 1961. I have already held that the finding of the Enquiry Officer as to the misconduct vas perverse. In that view of the matter, it cannot be said that the appellant was dismissed for misconduct.' If the appellant has been' dismissed not for misconduct provision of section 30, of the Industrial Disputes Ordinance 1959 would be contravened.
16. Mr. Nasirul Hassan, in the next place, contended that a workman could be dismissed on any ground connected with the industrial dispute pending before the Industrial Court without contravening the provision of section 30, of the Industrial Disputes Ordinance, 1959. There is not much force in this submission. If the workman is dismissed on a ground other than misconduct not connected with the Industrial dispute pending before the Industrial Court, the provision of section 30 of the Industrial Disputes Ordinance, 1959, would be contravened. The relevant portion of section 30, of the said. Ordinance, which needs consideration reads as under :- "(1) No employer shall, during the pendency of conciliation proceedings or prcceedings before a Court in respect of an industrial dispute or during the period between the conclusion of the conciliation proceedings and commencement of the proceedings before the Court; alter, to the prejudice of the workmen concerned in such dispute; the conditions of service applicable to them immediately before the commencement of conciliation proceedings, nor shall he-
(a) save with the permission of the Conciliation Officer, during the pendency of conciliation proceedings and the period thereafter preceding the commencement of the proceedings before the Court, and
(b) save with the permission of the Court, during the pendency of the proceedings before the Court, discharge, dismiss or otherwise punish any such workmen except for misconduct not connected with such dispute."
17. The language of section 30 of Industrial Disputes Ordinance, 1959 reproduced above, gives liberty to the employer to dismiss a workman only on the ground of misconduct and not on any other ground. Misconduct is defined, as I have already observed, in section 7 (2) of the Road Transport Workers Ordinance. 1961. If once it is found that the workman has not committed any misconduct and still he is dismissed. I am of the view that section 30, of the Industrial Disputes Ordinance, 1959,1 would be contravened, so as to attract the provision of section 31 of the said Ordinance.
18. Lastly, it was submitted that the Checker, Mr. Afsar Zaidi, had turned, hostile. There is nothing on the record to substantiate this submission. The statement of Mr. Zaidi is in conformity with the charge-sheet. The fare has to be realised before tickets are issued. In the present case no doubt fare from three persons was realised, but the fare money was still in the hand of the Conductor, which would support the appellant's statement that he was about to issue tickets when the Checking Party boarded the bus and stopped him from issuing tickets. The Road Transport Rules do not require that passengers should not be allow ed to board the Bus unless they have paid the fare. The Bus had not left the stop and passengers were still getting into, the .Bus. In these circumstances, some passenger being without ticket would not amount to misconduct.
19. For the reasons given above, I set aside the order of the learned Chairman dated 15th June 1968, and order re-instatement of the appellant from the date that he was dismissed from service. The appellant would be entitled to his pay from the date that he was dismissed after deducting such amount, which be may have received during the suspension period.