DECISION ' This appeal is directed against the order, dated 9-1-1985, passed by the learned Presiding Officer, Sind Labour Court No, IV at Karachi, whereby he allowed the grievance petition of the respondent.
2. The facts of the case in brief are that on 27-12-1983, the respondent, who was employed as Driver with the appellants was directed to take out Bus No, 830519 from the Depot for test by Mr. Zahiruddin, A.W.M. Incharge. The bus was driven to Thatta and then back to Karachi. On the drive back near Gharo, an accident took place against another vehicle in which 2 persons sitting into bus including Mr. Zahiruddin and 2 persons sitting in the other vehicle died. The respondent was charge-sheeted and after domestic enquiry, he was found guilty and consequently he was dismissed from service. After serving grievance notice, the respondent filed grievance petition which was allowed by the learned Labour Court. An appeal bearing No, KAR-70/85 was filed against the impugned order which was decided by this Tribunal on 5-2-1986 setting aside the order of the learned Labour Court. This decision was challenged by the respondent in the High Court at Karachi in Constitutional Petition No, D-198 of 1986. Their Lordships set aside the decision of this Tribunal on the ground that notice has not been properly served upon the respondent, who, therefore, did not get an opportunity to be heard and the appeal was remanded hack for re- hearing.
3. I have heard Mr. Narain Das, the learned Advocate for the appellants and Mr. Latif Saghar, the learned counsel on behalf of the respondent and also gone through the record and proceedings of the case.
4. The admitted facts appear to be that the bus was taken out for test purpose from the Depot under the orders of Mr. Zahiruddin. Admittedly the bus was given in the charge of the respondent as a driver of the bus. Admittedly, the bus was driven to Thatta and while on return, an accident took place in which Mr. Zahiruddin and 3 others had died. Admittedly at the time of accident the bus was driven by one Mithoo who was also charge-sheeted and removed from service, but, subsequently was reinstated by the learned Labour Court and an appeal bearing No, KAR-78/85 filed by the appellants against the reinstatement of said Mithoo was dismissed by this Tribunal, vide decision, dated 25-8-1986.
5 . The respondent was charge-sheeted for negligence and carelessness due to which accident took place in which some persons had died and others were injured and the appellants suffered financial loss. The learned counsel for the respondent Mr. Latif Saghar submitted that this would constitute an act, under Standing Order 15(1)(ii)(d) for which respondent could not be removed from service. Standing Order 15(1) provides that a workman may be reprimanded or fined in the manner prescribed under the Payment of Wages Act, 1936 up to the paisa in the rupee of the wages payable to him in a month for any of the following acts or omissions. These acts and omissions are described in sub-clauses (i) and (ii). The acts and omissions which can be treated as misconduct are described in Standing Order 15(3) and the punishments for such misconduct are provided under Standing Order 15(2). Sub-clause (c) of clause (3) of Standing Order 15 describes willful damage to or loss of employers' goods or property. However, the charge-sheet does not show any willful loss or damage, but, shows only loss and damage due to negligence and carelessness. Sub-clause (i) of the said clause describes habitual negligence or neglect of work a misconduct, but, again, the respondent was not charge-sheeted for habitual negligence or neglect of work. Sub-clause (a) makes willful insubordination or disobedience to any lawful and reasonable order of a superior to be a misconduct but again, there is no such charge. The charge against the respondent appears to fall under Standing Order 15(1)(ii)(d) which makes an act which is inefficient, dilatory, careless or wasteful working to be punishable under clause (1) of Standing Order 15 for which as pointed above only punishment provided is fine. The punishment of dismissal is provided under clause (2)(iv) of Standing Order 15 which can be awarded only in the case when the workman is found guilty of acts of misconduct as described in clause (3) of the said Order. As pointed above the charges of which the respondent was informed do not constitute act of misconduct as described under clause (3) of Standing Order 15 hut, would at the most be, if proved, an act as described in clause (1)(ii)(d) of the said Standing Order.
6. The main contention of the learned counsel for the appellants is that as the bus was taken out for test only it could not go beyond certain point, which fact has been admitted by the respondent in reply to the show-cause notice, therefore, the act of the respondent in taking the bus beyond that point to Thatta would be an act of disobedience of the lawful orders and consequently it would be a misconduct as described under sub-clause (a) of clause (3) of the said Standing Order. As pointed above the charge-sheet does not show that the respondent was charged for the said misconduct. Under clause (4) of Standing Order 15 no order of dismissal can be passed unless workman concerned is informed, in writing, of the alleged misconduct.
7. Admittedly Mr. Zaheeruddin was the in charge, who handed over the bus to the respondent for the purpose of test driving. Admittedly Mr. Zahecruddin was travelling in the same bus and had died in the same accident. It is alleged by the respondent that it was Mr. Zaheeruddin who ordered the respondent to take the bus to Thatta beyond the point where it could be taken out for test and on the refusal of the respondent, he ordered him to hand over the bus to Mithoo Khan. Before the Enquiry Officer, the respondent had produced 3 witnesses who were travelling in the bus and who supported him. As against this, there is no evidence to show that Mr. Zaheeruddin had ordered the respondent not to drive the bus beyond the point of test. Mr. Zahecruddin was a Senior Officer and was travelling in the same bus therefore, it would be reasonable to presume that the bus was driven to Thatta and back with the consent of Mr. Zaheeruddin. It will also be improbable to presume that the respondent would have handed over driving to Mithoo Khan without the consent of Mr. Zahecruddin. Mithoo Khan was admittedly driving the bus at the time of accident. The contention of the respondent thus gets support even from the circumstances of the case whereas there is no evidence on record against him to show that he disobeyed any order of Mr. Zaheeruddin. Mere disobedience of rules is again an act which is described in Standing Order 15(1)(ii)(a) which act is punishable with fine only.
8. I am unable to agree with the learned Presiding Officer of the Labour Court that no findings of negligence could be given till the decision of the Court in the criminal case. It appears that only Mithoo Khan has been prosecuted for negligent driving and causing accident which case is said to be still pending against him. There is nothing on record to show that the respondent is also facing such prosecution. Be that as it may, the mere fact that a criminal case was pending with regard to the accident against the respondent would not bar the findings of negligence in a domestic enquiry or punishment for such negligence, if proved. Reference may be made to 1980 PLC 777 where a learned Single Judge of Sind High Court at Karachi has observed "I am unable to read into relevant Standing Order any such limitation on the powers of the employer to obtain a conviction order as a prerequisite before taking any action for his dismissal if the misconduct alleged was also an offence under the P.P.C." It was further observed that these are two distinct proceedings with different resultant consequences with liberty to the employer to proceed against the employee concerned for both or either action." However, in view of the above discussion, I am of the opinion that the respondent was neither charged for a misconduct for which an order of dismissal could be passed nor was any misconduct proved against him. For the above reasons the appeal is dismissed.