DECISION ' This is an appeal against the order, dated 16-12-1989, passed by the learned Presiding Officer, Sindh Labour Court No,III at Karachi, whereby the grievance petition of the respondent was allowed and he was ordered to be reinstated in service with all back benefits.
2. I have heard Mr. Gul Muhammad Soomro, the learned Representative for the appellants and Mr. Ch. Latif Saghar, the learned Advocate for the respondent and have also gone through the record and proceedings of the case.
3. The respondent was admittedly employed as a Conductory by the appellants. He was on duty as a Conductor on Bus No, 834-845 on 11-8-1987, when his bus was checked by a Checking Squad consisting of Inspector Races Hussain and Inspector Ali Akbar; headed by Assistant Traffic Manager, Mr. Mansabdar. They found 31 passengers travelling in the Bus from whom the respondent had collected the fare, but had not issued the tickets. They recovered the unissued tickets valued at Rs, 46.50 and also found that he had not closed the Way-bill, T.L.VI. The respondent was confronted with the passengers who were not issued tickets and T.T.40 was issued to whom which he had duly replied and signed. He was issued a charge-sheet, dated 30-8-1987, and after domestic enquiry, he was ordered to be removed from service with effect from 13-9-1988.
After serving grievance notice, the respondent filed the grievance application which was decided as above. The learned Labour Court allowed the grievance application mainly on the ground that none of the ticketless passengers was examined either before the enquiry officer or before the learned Labour Court and that the excess amount allegedly recovered from the possession of the respondent was only 30 paisas and not Rs, 46.50 which he is alleged to have charged from the passengers without issuing the tickets.
4. Mr. Gul Muhammad Soomro, the learned Representative has contended that it is impossible to produce evidence of such ticketless passengers before the Enquiry Officer or before the learned Labour Court, as they would not like to waste their time and incur more expenses in attending the Court and the enquiry proceedings to give evidence only for having been charged Rs, 1.50, hut, were not issued the ticket. He stated that under such circumstances, when the Conductor was confronted with such passengers at spot, it would amount to an admission of the guilt. He has relied upon certain decisions in his support. In the case of Punjab Road Transport Corporation v.
Ghulam Shabbir, reported in 1988 PLC 279, the learned Labour Appellate Tribunal, Punjab set aside the decision of the learned Labour Court, who had allowed the grievance petition of the Bus Conductor on the ground that the ticketless passengers were not examined during the domestic enquiry nor their statements were recorded during checking holding that the learned Labour Court, while awarding reinstatement, did not consider reply of accused to T.T.40, wherein the accused Conductor had stated, that the passengers were making false statement that he had realized the fare, as such reply would mean that ticketless passengers had in presence of the accused stated that they had paid fare and thus accused stood confronted with them.. In the case of Jafar Ali v.
District Manager, Government Transport Service, Sialkot, reported in 1985 PLC 994, the learned Punjab Labour Appellate Tribunal had held that when at the time of checking, Conductor was duly confronted with without ticket passengers, which fact was not denied by such Conductor in reply to charges, examination of without ticket passengers during inquiry would not be necessary. In Constitution Petition No,D-124/1989 (Bakht Ali v. Chairman, Sindh Labour Appellate Tribunal, Karachi) learned Division Bench of Sindh High Court had held that where there was admission of confrontation of ticketless passengers contained in T.T40, then, it was not necessary to examine those passengers in the enquiry proceedings, which could be, done only when right from the very beginning there was absolute denial of such confrontation. The petition of the Conductor was dismissed by the Hon'ble Sindh High Court.
5. In the instant case, the T.T.40 was produced as Exh.4 which shows that 31 passengers were travelling in the bus from whom fare at the rate of Rs,1.50 each was recovered, but, were not issued ticket and that the respondent Conductor was confronted with these passengers, who told him that he had recovered the fare at the rate of Rs,1.50 from each of them. In the reply in T.T.40 the respondent had stated therein that there had been some dispute amongst the ladies in the bus, therefore, they were not taking the tickets.
6. However, in reply to the charge-sheet, grievance notice and grievance petition, the respondent had been urging that he was not confronted with the alleged ticketless passengers. He also alleged that the enquiry was held in prejudicial manner. Admittedly Assistant Traffic Manager, Mansabdar was examined in the absence of the respondent, though the respondent had produced Medical Certificate for his absence on that date of hearing. However, Mansabdar was not thereafter tendered for cross-examination by the respondent in the enquiry proceedings. Mr. Abdul Razzaq, Enquiry Officer had filed his affidavit-in-evidence before the learned Labour Court, but, he was not tendered for cross-examination and he was given up by the appellants. Thus, presumption would be raised against the appellants, that if he had been examined viz. Tendered for cross- examination by the respondent, he would not have supported the case of the appellants or he would have supported the contention of the respondent that he had acted in prejudicial manner.
7. Furthermore, I find that though the respondent is alleged to have received Rs,46.50 without issuing tickets, but, the excess amount recovered from his possession was only 30 paisas. This discrepancy has not been explained by any of the appellants' witnesses nor is their explanation as to why this amount allegedly charged by the respondent could not be recovered from his possession. All these facts render the enquiry proceedings and the enquiry report open to serious doubts. The dismissal order passed by the appellants on the basis of such enquiry or such enquiry report is not tenable and has rightly been set aside by the learned Labour Court. I find no merit in this appeal C which is accordingly dismissed.