' Applicant Muhammad Saeed has filed application under section 25-A of the Industrial Relations Ordinance, 1969 for reinstatement in service with full back benefits and continuity of service.
2. Facts of the case as stated by the applicant are that he was working as Conductor. He was served charge-sheet dated 28-4-1987 after stipulated time of one month. The applicant submitted the reply of charge-sheet. The respondent No, 1 did not apply his mind to reply of applicant and treated the reply as unsatisfactory and issued enquiry notice. The Enquiry Officer was prejudiced to the applicant being subordinate of the respondent No,
1. Applicant was then served show-cause notice on 17th August, 1987, for his personal hearing before respondent No, 1, but he could not appear before the respondent No, 1 due to disturbances on August 29, 1987. The applicant was then served another show-cause notice dated 7-9-1987. The applicant appeared before respondent No, 1 who delivered letter dated 13-9-1987 to the applicant which was his dismissal order. The applicant then served grievance notice on respondents Nos. 1 and 2 on 20-9-1987. The respondents did not reply the grievance notice, Applicant then filed the grievance petition challenging the action of the respondents Nos. 1 and 2 is illegal, mala fide, without any legal authority and in violation of the provisions of Standing Orders Ordinance, 1968. Praying for reinstatement with full back benefits and continuity of service.
3. The respondents in reply statement have raised the legal objections that the applicant served grievance notice on the Managing Director and not on the District Manager, K.T.C, North Karachi who is his employer, hence the application is not maintainable. The respondents also stated that the previous record of the applicant was not satisfactory. The applicant committed offence on 2- 4-1987 and he was charge-sheeted on 28-4-1987 within the stipulated period. Reply of the applicant was unsatisfactory and enquiry was ordered to be held copies of the enquiry proceedings were given to the applicant and the enquiry was conducted by the Enquiry Officer impartially and the Enquiry Officer has based his findings on the evidence on the record. The applicant was served show-cause notice, but he did not appear, therefore, ex parte decision was taken and the applicant was dismissed from service. Action of the respondent No, 1 is legal and no violation of the law has been committed.
4. The applicant filed his affidavit-in-evidence and was cross-examined by Mr. Azmatullah Khan representative for the respondents and in cross-examination all the relevant documents relating to enquiry and previous conduct of the applicant were produced.
5. Respondents examined Manzoor Ahmed Samejo, Enquiry Officer and Muhammad Hamid Inspector Reporter and they were cross-examined by Mr. Khalilur Rehman representative for the applicant.
6. Mr. Khalilur Rehman learned representative for the applicant has advanced his arguments and has filed the citation in support of his contentions and Mr. Azmat Ullah Khan learned representative for the respondents has filed his written arguments.
7. I have considered arguments of learned representatives for the parties and have appraised the evidence on the record.
POINTS FOR DETERMINATION ' Point No,
1. Whether the application is not maintainable.
' Point No,
2. Whether the applicant has been dismissed from service illegally and he is entitled to reinstatement in service with full-back benefits and continuity in service:?
FINDINGS AND REASONS.
POINT NO. 1.
' The respondents contention is that the applicant has served grievance notice on the Managing Director whereas employer of the applicant is District Manager, K.T.C. North Karachi and no grievance notice has been served on the District Manager, K.T.C. North Karachi depot, hence the application is not maintainable. Grievance notice is annexure 'F' to the application which shows that the applicant sent the grievance notice to the District Manager, K.T.C. North Karachi Depot and also to the Managing Director, K.T.C. And the applicant has made both of them as respondents. The applicant has, therefore, sent grievance notice to the District Manager, K.T.C. North Karachi Depot by registered Post A.D. And he has, therefore, complied with the requirements of law and the application is maintainable. POINT NO. 2 ' Charge against the applicant was that he realized fare from three passengers from Saddar to Power House, from four passengers from Saddar to Nipa Chowrangi Rs,1.50 and Rs,1.20 respectively total Rs,9.30 and delivered tickets of Rs,0.90 to each of prize coupon and the applicant also realized fare from four passengers from Saddar to Alamgir Road Rs,0.90 each total Rs,3.60 and did not issue tickets to them and the applicant therefore, committed misappropriation of Rs,12.90 which misappropriation was detected by the checking party headed by Muhammad Hanif, Station Superintendent while checking the bus of the applicant at Petrol Pump Tariq Road on 2-4-1987.
Ticketless passengers are said to have been confronted to the applicant on the spot and TT-40 report was prepared which was signed by the applicant without giving any statement. Unpunched tickets were also recovered from the applicant, applicant was charge-sheeted to which the applicant submitted his reply which was found unsatisfactory and enquiry was ordered against the applicant by the District Manager, K.T.C. North Karachi Depot. Enquiry was conducted by Manzoor Ahmed Samejo who in enquiry examined Inspector Muhammad Hamid and Inspector Ahmed Khan and also recorded statement of applicant and submitted his findings to the District Manager, K.T.C.
North Karachi Depot who issued show-cause notice to the applicant for personal hearing. The applicant did not appear before the Disrict Manager, K.T.C. North Depot who issued second show- cause notice to the applicant who did not appear before District Manager, K.T.C. North Karachi Depot who dismissed the applicant from service by letter dated 13-9-1987.
' Mr. Khalilur Rehman learned representative for the applicant has contended that in enquiry no ticketless passenger has been examined by the Enquiry Officer. The cash bag of the applicant was also not checked on the spot by the checking party to show that the applicant had realized fare from passengers. The Enquiry Officer has not recorded statements of the prosecution witnesses on oath. The enquiry proceedings are therefore, invalid and the applicant is entitled to reinstatement in service. In support of his contentions he has cited the following authorities:--
(1) Karachi Transport Corporation v. Abdul Hamid reported in 1986 PLC 838.
"---S.O. 15(4)--Conclusion against bus conductor in domestic inquiry without establishing factum that passengers were charged and tickets were not issued--Its reversal by Labour Court by accepting application under section 25-A, I.R.O.--Upheld as being unexceptionable--Held: No case was made out against conductor--Tribunal observing that safest course in domestic enquiry would have been to examine some passengers.'
(2) Government Transport Service, Sialkot v. Ejaz Ahmed, reported in 1984 PLC 1212.
"---Dismissal for misconduct--Bus conductor' case--Ticketless passengers--Fare allegedly realized--Recovery of fare can be proved only by statement of passengers--Statement of such passengers not recorded by checking party--Statement of checker on such point based upon hearsay--Not reliable--Statement of accused that Police official travelling in bus refused to purchase tickets-Held: Reliable--Order of Labour Court awarding reinstatement of Bus conductor in circumstances, upheld by Appellate Tribunal--Industrial Relations Ordinance (XXIII of 1969), Ss.
25-A and 38(3)."
' 'Wyeth Laboratories Ltd. v. Rafiuddin reported in 1980 PLC 74. ---Domestic enquiry--Evidence--Witness must be administered oath and thereafter evidence recorded in presence of accused--Written statement already given to Management--Neither recorded on oath nor in presence of accused--Inadmissible--Enquiry based upon such statement--Invalid-Oaths Act (X of 1873).
The perusal of the enquiry proceedings show that the statements of the Inspector Muhammad Hamid and Inspector Ahmed Khan were not recorded on oath. Ticketless passengers have also not been examined by the Enquiry Officer and they were also not produced for evidence in the Court.
Evidence of Muhammad Hamid, Inspector in this Court in respect of realization of fare from the passengers by the applicant is on the basis of what was said by the ticketless passengers and the conductor has not realized the fare from the ticketless passengers in his presence and is, therefore, hearsay and is inadmissible. Cash bag of the applicant was not checked to show that the applicant had an excess amount in his bag than that the tickets issued by him. Dismissal of the applicant based on such enquiry and findings of the Enquiry Officer, is, therefore, invalid and illegal and I, therefore, set aside his dismissal order and by allowing the application direct that the applicant be reinstated in service. It is not the version of the applicant in his application or in his affidavit-in-evidence that he is unemployed since his dismissal, hence he is not entitled for back benefits.
' Order announced in open Court this 5th day of January, 1989, given under my hand and seal of the Court.