This is an application for the redress of the grievance under section 25-A of the I.R.O., 1969.
Mansab Dar claims to be permanent workman employed in the service of the Karachi Transport Corporation as the Conductor. On 20-6-1985 he was conducting the bus of the corporation of the public passengers and during the surprise check by the checking staff to detect Corporation revenue, he was found that he realised the fare from 20 passengers but did not issue tickets and also did not issue tickets to 10 passengers or even realised the fare.
2. The enquiry was conducted into the charge of misconduct by the corporation officials and he was held guilty of misconduct and was dismissed from service after the personal hearing.
3. This may also be mentioned that the proceedings of personal hearing were not conducted in the physical presence of the applicant but the reason given is that the notice of show cause was received on 17-12-1985 for his appearance before the respondent District Manager on 16-1-1986. He did not appear. The District Manager was patient and waited upto mid-day. When he found that there was no response, he proceeded ex parte and dismissed him from 16-1-1986.
4. The respondent has supported the enquiry and had the contention that the applicant was given the fair chance to put up his case and he was rightly dismissed after examining the evidence of the checking staff. Respondent has also contended that the ticketless passengers in respect of which the charge-sheet is alleged were also confronted to the conductor who also confirmed that no tickets were issued.
REASONS
1. Mr. Ch. Muhammad Ashraf the counsel for the applicant Mansab Dar has raised number of controversial questions. What he has stated in the petition, that the enquiry was not conducted fairly. There was bias in the mind of the Enquiry Officer. The cash was not counted. No statement of ticketless passenger was recorded. The applicant was not made aware of what was being recorded against him. The charge-sheet was time-barred. Above all there was a target system to give the proceeds upto particular ceiling. Therefore, the case of misconduct as contemplated under the provisions of the Standing Orders is out of question.
2. Before the Court examined the evidence that has been recorded in this case and criticism directed by the counsel against the proceedings of the Enquiry Officer that he was partial and gave the conclusion unfavourable to Mansab Dar without following the proper judicial norms of the procedure and under which he was compelled to sign, it was not voluntary acceptance, the counsel has made much emphasize on this legal aspect that if the statement of the passenger is not recorded, the proceedings of the Enquiry Officer are without jurisdiction or if are with jurisdiction the conclusion arrived at there is also of view which should be considered --"0y this Court. The Court has also heard Mr. Soomro and Ch. Muhammad Ashraf fully supporting their versions and the Court has arrived the following conclusion to this aspect of the question.
3. Firstly; this is an admitted position that if T. T. 40 report is accepted as a document which is the first hand document prepared at the time of checking and it cannot be denied that no such signature is of Mansab Dar, the document confirms beyond any doubt that there A was confrontation of the passengers with the conductor in whose presence further proceedings took place. The question of compulsion of signature is a secondary question which also Court discussed at a particular stage. The presence of signature prima facie is admitted.
4. The Court refers to the decision of 1984 PLC 953 in the case of Ghafoor Muhammad v. Punjab Road Transport the concluding para. Of the decision in para. 3, the Court respectfully quotes the observation of his Lordship of the Punjab Labour Appellate Tribunal: "Since the appellant was confronted with the passengers, so the P.Ws. Rightly say that the passengers had informed that no ticket had been issued to them. Appellant, therefore, embezzled the fare recovered by him from 4 ladies without checking the passengers and would have succeeded in misappropriating the money but for the checking."
5. In view of this decision the Court' is also of the view that if the passengers were confronted, the burden of proof that the tickets were issued is on the applicant Mansab Dar to have produced his own defence, if he had any passenger to offer in support of his version. The Court is also of the view that in the moving vehicle which is the public transport and goes according to the timings, there is hardly any time for the recording of statement for passengers to come forward. This is not unusual in the course of the human experience for the Court also to appreciate this aspect for the checking staff remains in the very difficult situation. But at the same time the requirement of justice can also be made if the conductor finds that the particular witness can support him he can obtain his name, description and produce that evidence but with the regard to the fact that the name and description be promptly exported so as to exclude any doubt that no miscarriage should occur of justice if wrong person is produced for the purpose of defence. Besides to meet with this situation the Court is also of this view that the natural aspects are to be examined of the circumstantial nature besides the evidence of Inspectors.
6. The Court has gone through number of cases of K.T.C. And T.T.-40 document is being produced in every case. The conductors are well-aware that this document is issued by the K.T.C. And there are certain columns to be filled in not only by the Inspectors but also by the concerned conductor who has been given the time to explain of any grievance at that time of checking the vehicle if he signs. Today the conductors are well aware. They are not people from the illiterate class. They sign the petition in English language. So much can be said by the Court in the context of the factual reality of judicial perception what transpires in the course of human experience looking to the documents which often are coming before the Court for taking the view in the matter of appreciation. This Court has taken the consistent view in number of cases that T.T.-40 report is the most important document, if conductor does not explain, much of the burden of the management is relieved and the burden lies on the conductor to explain in this particular case. The Court has found that Mansab Dar has signed T.T.-40 report and gave no explanation.
7. However the Court again has examined the evidence of the fact recorded in this Court also to appreciate the evidence and the conclusion arrived at by the Enquiry Officer regarding proper appreciation as the corroborated evidence to T.T.-40 report.
8. In that context firstly the Court finds that the conductor in his cross-examination before the Labour Court has practically given the impression that no proceedings were conducted properly. In this context, therefore, the Court wants to give certain extracts of his versions: "The bus was not checked by the checking squad at village Natha Khan. No checking was done in my presence and therefore, I cannot give reply whether tickets were not issued to 30 persons. It is not correct that fare was realised from 20 passengers and not realised from 10 persons. I signed the T.T.-40 under compulsion. The checking squad came at terminal, it was Eid day, I had no pencil, therefore, I could not make entry. I support the contents of my reply to charge-sheet. I had appeared before the Enquiry Officer on 22-9-1985. I was asked to sign. I signed it. I also cross- examined the prosecution witness. I was only asked to sign. I cannot say whether the enquiry was conducted or not. On 1-10-1985, I examined defence witness Muhammad Shareef. I do not know whether my statement was recorded. I had signed the enquiry proceedings. I did not make any complaint in writing against Enquiry Officer."
9. With this background of the evidence it follows that the applicant Mansab Dar has given very guarded reply. On one hand he says that he cross-examined the witness and on the other hand he says to show that he was being compelled to sign. The Court has taken a look into the evidence of the Inspectors and taken the general view of the evidence and the proceedings.
10. The fact of the compulsion is the question of fact. Indeed the conductor has said on oath that it was a compulsion Court is to examine his state of mind, his attitude in conducting the proceedings, his signatures throughout enquiry proceedings, his reply to the charge-sheet, his reasonableness of version, his straightforward conduct to come out with truth. Much can be said about his evidence before the Court by referring to the version which he has given at the second stage of the reply to the charge-sheet. This is not to be ignored that Mansab Dar has participated actively in the proceedings, cross-examined the witnesses and also as the Court has observed that he is not the class of illiterate people to be so unaware of his compulsion. Compulsion, it appears to the Court is a question of superlative adjective, for example if a man is forced to sign which he does under protest or he finds that the proceedings were not thoroughly recorded, certainly he will take other step to have made the move for either making application to the management for the replacement of the Enquiry Officer or to report to the Labour Directorate or to the leadership of union to take his case. None of the fact was taken to support his version as to make reflection on the Enquiry Officer in questionable proceedings which at least the Court has found that the version of the applicant conductor in the circumstances as these, finds no justification by putting signature in English language. It has put the Court to further reality that what he has now taken as a defence is well-calculated defence to provide cover for the exoneration of the liability.
11. However, the Court also further refers the evidence of defence witness Muhammad Shareef and his statement. Although he has denied that the statement was not recorded but he has also not been definite as the trend of his answer in the cross-examination. At the same time he has acknowledged the signatures. He stated that these were under compulsion. Of course the Court may have agreed with the conductor on this question that why the signatures in the enquiry proceedings are of two types. One is in English and another is in Urdu language. His statement in the Court contains 2 parts, one that he was under compulsion and secondly he cross-examined prosecution and defence witnesses. Both the statements do not synchronize with each other His reply and statement before the Enquiry Officer has shown remarkable deviation saying that is was Eid day. There was a group of passengers. They had no intension to take tickets. Suddenly they entered into quarrel with the conductor. In the evidence he has also said that it was lid day he had no pencil to make entry in the way book. His entire defence if read has found no substance when it is not supported" by his earlier explanation in time of T.T.-40 report. The Court will also further show that his defence version of compulsion is nothing but calculated thought, signing in English language showing unawareness or force of pressure by- the management officials at least provides no similarity of logical detection but straightaway denial not established l 3'o j7 the circumstantial evidence. The evidence of mala fide of the; Inspector of the checking squad, is silent in the T.T.-40 report in point of time no explanation in T.T.-40 report which is spot report meant for the purpose to show that checking squad if had exceeded jurisdiction or taken no witnesses or made confrontation, there is nothing of nature mentioned for the Court to have an idea of his state of mind. In the Labour Court's view T.T.-40 document is of highly important nature. If the workers of K.T.C. Has known by this time that this official document is supplied to the checking staff to protect the conductor against the arbitrary decision for. This is also the, additional evidence to be seen except with the fact whether the statement of the passenger was confronted. The statement of the passengers may be oral statement before the Inspector in the moving vehicle. The audience can only be done to it if there is explanation in the T. T. -40 report
12. The Court has examined the evidence of the Enquiry Officer and finds no reasons. To disagree on the basis of evidence which was thoroughly examined.
13. Regarding confirmation of dismissal the District Manager has said that he was given the notice of show cause, but he absented from 38-6-1985. Notice was issued on 7-7-1985 for the resumption of duty and to explain the reasons for remaining absent without leave. The notice was sent on the address. It was undelivered. He did not appear. Lie referred to the envelopes R/1 and also referred another envelope R/2. This is an admitted position that physical audience was not there for the purpose of personal hearing. The applicant has sho0Yn that he was on leave from 22-12-1985 to 7- 8-1986. Leave was granted by D.A. He worked for 2 days and again went to Punjab. He joined on 18 January, 1986 and the grievance notice was sent on 27-1-1986. The Court has examined this aspect that in the first place no order has been shown that his leave was sanctioned. The evidence confirms beyond doubt that notice was addressed to the employee if it returned undelivered nothing has been shown that it was a wrong address. If the attempt was made by the department, it shows that the Corporation took all the efforts to serve him which they could do. No endorsement has been shown by the postman. It cannot be attributed to the management except the defective service. His designation is supported by the notice of 7-7-1985. At the same time medical certificate has been shown that he was indoor patient from 12-7-1985 to 26-7-1985. The management has shown further letter that his medical certificate is not acceptable. It was also returned undelivered. With whatever back 1ground if notice for personal hearing was received on 7- 12-1985 for appearance on 16-1-1986 the applicant was on duty. He was not on leave. He was given personal hearing and the requirements of enquiry were rightly observed regarding charge-sheet. It has found no defect in the charge within one month of the incident. He was duly served but if unserved by the postman of which management had no control, there cannot be any presumption that it was time-barred.
14. Finally the question is of punishment whether punishment should be appropriate of dismissal.
The District Manager has said beyond any doubt that he was checked on the spot by the checking squad. The amount which was said to have been subject-matter of fraud was not used by him by that time but recovered. The element of misappropriation is that either he should have personally converted money for his use by causing loss to the Government and made gain to himself. This isth not the position that he was not checked on the spot. He can only be attributed with the charge of dishonesty or attempt to fraud. The offence was subject to be completed only when he had used money for his personal gain by conversion. The Court has also previously taken the view that such loss must be strictly established. The presumption would have been drawn also that he used money for his own purpose after the vehicle had termination of his journey to show that what loss occurred to the Government. The presumption, therefore, at that time to be drawn can also be taken by logical deduction where he can also say that had the checking squad not arrived; he might have issued ticket and not converted money for his gain.
15. Finally the question is of the achievement of the target as often this allegation made is by the K.
T. C. Employees in this Court so for the Court recollects, although each case has got its own facts. In the present case employee has not produced any circular of the department to show that such was the customary practice or any such practice has the force of law. No such question has also been raised at the earlier stage in the evidence of District Manager. But if the contention of the conductor is accepted, the Court' is of the view that this is illegal and cannot be recognized by the Court unless it is supported by written circular. It will be otherwise allowing the conductor to sell the tickets more than what the amount due to the Government as a revenue. At least in this case no such evidence is forthcoming through District Manager appearing before the Court.
16. In view of the reasons stated the Court finds that the dismissal will be harsh step in the directions and in the circumstances. There are also acts and omissions of the misconduct in the Standing Orders such as the disregards of the rules, the punishment can be reasonable to the circumstances in each case.
17. Reference is also made to the decision of the Punjab Labour Appellate Tribunal of 1984 PLC 825.
In this decision his Lordship held that if the accused have been confronted with the statement of such passengers during checking, recording of their statement during enquiry in circumstances held not essential.
18. As no previous record is presented of his punishment, his increment for one year be withheld and the entry be made in his I service book that no such complaint be heard in future.
Application is allowed in the terms above.