DECISION This is an appeal against the order of Sind Labour Court No. 1, Karachi, who by his order, dated 30- 5-1985, dismissed the grievance petition filed under section 25-A, I. R. O. 1969, by the appellant.
2. The facts are that the appellant was employed as a conductor with the respondent-Corporation.
On 22-8-1982, while he was performing his duty on Bus No. 906 between New Town and Tin Patti, Karachi, a special checking squad headed by Station Superintendent checked his bus and found some irregularities in the issuance of tickets. Therefore, the appellant was served with a charge- sheet on 31-8-1982 and thereafter a domestic enquiry was held. It is alleged by the appellant that he was dismissed from service on 20-6-1983, on the basis of an enquiry which was in violation of principle of natural justice and without any substantive material on record.
3. The stand of the respondent corporation is that on 22-8-1982, the checking squad checked the bus of the appellant which was on its way from Korangi to Lasbella Bus Stop, Karachi, and at New Town Bust Stop, it had detected seven ticketless passengers travelling from Malir City to Lasbella Bus Stop from whom the appellant had already collected fare at the rate of Rupee one each. That the checking squad further found fifteen girls students travelling without tickets from whom the appellant had already realized the fare at the rate of thirty paisas each. The checking squad obtained the unpunched tickets from the appellant in lieu of 22 ticketless passengers and filled up T.T.40 report on the spot. The appellant had refused to give statement on the spot but had signed on T.T.40 report. The appellant was, therefore, dismissed from service after holding a proper domestic enquiry and affording full opportunities in accordance with principle of natural justice.
4. I have heard the learned representative of the parties and have perused the record. The sole point which requires determination is whether the dismissal of the appellant is illegal and invalid.
5. It is pleaded by the appellant that no enquiry was ever held except for the sake of, formality, as he was not afforded an opportunity to cross-examine the only prosecution witness and or to lead his defence. It was further pleaded by the appellant that no enquiry was held under law as his only signatures were obtained on a paper and that after serving the so-called second show-cause notice and without calling of any reply and or giving of personal hearing, he was dismissed from service. It was argued by the appellant that had he received the fare from the passengers without issuing tickets there would have no question of receiving the fare from the passengers by the checking squad as no passenger could ever pay double fare for the same distance of his journey and that the checking party did not check the cash of the appellant before making T.T.40 report.
Further. No independent witness was examined by the respondent in the domestic enquiry excepting the reporter, namely, Mansoor Ahmad. Therefore, the burden was on the respondent to prove the charge against the appellant which they failed to do so. Likewise in the domestic enquiry no passenger was confronted with the appellant conductor and the evidence with regard to the fact that the tickets were not given to the passengers and the fare was realized. Such an evidence is lacking. Thus, the allegation of recovery of fare from the ticketless passengers by the appellant is not proved. Therefore, the conclusion drawn in the domestic enquiry was wrong. Without establishing the factum that the passengers were charged and the tickets were not issued, no case is made out against the appellant conductor. The safest course is that in the domestic enquiry some passengers may have been examined.
6. The conclusion drawn by the Labour Court against the appellant in its impugned order is, therefore, set aside. The appeal is accordingly allowed and the appellant is directed to be re- instated forthwith. However, as nothing has been brought on record by the appellant to prove that during the period of his unemployment, he was not employed gainfully anywhere, therefore, I would not allow him back benefits.