DECISION The instant appeal is directed against the order of Sind Labour Court No. IV at Karachi, datedx 9-1- 1985.
2. The facts are that Taj Bareen was the order of Bus No. 830-519. The said bus was lying in the workshop, as it was out of order. On 27-12-1983, the Incharge of the bus, namely, one Zaheeruddin ordered that the bus may be taken for test on Thatta Road. Although Taj Bareen had told the Incharge that the bus was out of order, yet, he took the bus for test and Zaheeruddin ordered Taj Bareen to drive the bus. The bus, on the same day was driven along the National High Way. Near Bachcha Jail, bubbling was there in the steering and Zaheeruddin ordered that the bus may be driven by Mitho Khan. The bus was successfully driven upto Thatta and was also driven back upto Gharo when an accident took place against another vehicle in which two persons, sitting in the bus were dead and the two persons sitting in the other vehicle were also dead. Police challaned the driver, Taj Bareen, under section 304-A. However, a domestic enquiry was held in which Taj Bareen was held guilty and he was dismissed. He filed a grievance petition which ended in the re- instatement of Taj Bareen on the ground that let the case with Police be tried by the Court and on the decision of the Court, he may be charge-sheeted. The charge-sheet was held to be premature and, therefore, the Labour Court decided to reinstate Taj Bareen.
3. I have heard the learned representative for the appellant and I have seen the record.
4. The first point which is urged and contended vehemently is that the negligence of the driver for taking the bus upto Thatta and back was itself an act of negligence because the bus was showing defects by bubbling in the ste4pring. No sooner the bus showed some defects in going, Taj Bareen should not have driven the bus. According to evidence, Taj Bareen indicated the defect in the bus to the Incharge, Zaheeruddin who ordered Mitho Khan to drive the bus and Taj Bareen was ordered to sit down. There were four other persons sitting in the bus, namely, Malik Ghulam Abbas, Baboo Khan, Mitho Khan and Abdul Hassan. It may be noted that Zaheeruddin, the Incharge died on spot of the accident. It is clear from the cross-examination of Taj Bareen himself. Nowhere in the domestic enquiry, it was made clear that Zaheeruddin had died in the accident but it has come in the evidence at the level of cross-examination of Taj Bareen that for the first time it was divulged that Zaheeruddin died in the accident, namely, collusion with the other vehicle. This makes the evidence of Taj Bareen doubtful. Taj Bareen did not divulge in any of the paragraphs of his affidavit that Zaheeruddin, the Incharge died in the accident but, when he was asked in the cross- examination, he was compelled to admit that Zaheeruddin had died on spot. I believe that it was Taj Bareen who was driving all along the bus and not Mitho Khan. There was no need for Mitho Khan to drive the bus as Taj Bareen was attached to drive this bus for test. The testing took place upto Thatta and then returning from Thatta upto Gharo What was the immediate reasons for accident, it is alleged that tyre of the bus suddenly- bursted. In other words, there was hardly any defect in the bus itself but the accident took place on account of bursting of the tyre. The defence witnesses who were alongwith Taj Bareen, have stated that Mitho Khan was driving the bus because Zaheeruddin, the Incharge was no longer alive to falsify them.
5. The first part of the negligence is that the bus was not to be taken for trial and test if the bus was showing defect. It is said that at Bachcha Jail, the bus was showing defect and, therefore, Mitho Khan was made to drive the bus. This version appears to be not correct that Mitho Khan was made to drive the bus and the bus was not showing any defect upto Thatta and back upto Gharo, but the accident took place on account of bursting of tyre. The entire responsibility is thrown on Zaheeruddin who unfortunately is not alive and had died in the accident. Four friends of Taj Bareen have deposed in favour because Zaheeruddin is dead and he would not falsify them. A The testing of a vehicle should not have been upto the range of Thatta which is 60 miles away from Karachi, but the testing should have been made at the local roads. It appears that some people have gone for picnic in the bus. Whether or not the driver was negligent at the time when the accident took place is the finding to be given by the Trial Court on the evidence adduced in the Trial Court but so far the circumstances as they are, Taj Bareen was definitely negligent by taking the bus and driving it upto Thatta. He cannot throw the burden on Zaheeruddin because he was Incharge of the bus.
6. The learned Labour Court have observed that till the negligence is proved by the Trial Court against Taj Bareen it will be too premature to hold him guilty of negligence. I am afraid that this finding is B incorrect. In the Trial Court, he may be let of. The Trial Court may find contributory negligence or anything but the fact that Taj Bareen took the bus which was defective bus itself, constitute carelessness. I would not agree with the Labour Court's findings and hold Taj Bareen to be guilty of taking the defective bus upto Thatta and back upto Gharo. Accordingly, I set aside the impugned order and allow this appeal of the appellant Corporation.