DECISION ' This is an appeal against the order dated 3-9-1990, passed by the learned Presiding Officer, Sindh Labour Court No,IV at Karachi; whereby the grievance application of the appellant was dismissed.
2. I have heard Mr. Khalilur Rehman, learned Representative for the appellant and Mr. Gul Muhammad Soomro, the learned Representative for the Respondents and have also gone through the record and proceedings of the case.
3. The brief facts of the case are that the appellant was admittedly working as Conductor with the respondents. On 9-7-1987 he was on duty on Bus No,830-532 on the route of Gulshan Hadeed. It was checked by Messrs Masroor Hassan, Inspector, alongwith Mr.Qazi Ahsanul Haq and Abdul Jalil.
They found 25 passengers in the bus from whom the appellant had recovered the fare of Rs,1.75 each, but, had not issued the tickets. The appellant is alleged to have refused to deliver 25 unpunched tickets and also refused to sign or reply to T.T.40 on which report was made immediately. The appellant also refused to hand over T.L.VI to the Checking Party. He was charge- sheeted on 28-7-1987 for the aforesaid acts of misconduct and was found guilty in the domestic enquiry. The services of. The appellant were terminated by order, dated 15-10-1989. The appellant, after serving grievance notice upon the respondents filed his grievance application before the learned Labour Court, which was resisted by the respondents on the ground that the appellant was dismissed in pursuance of a legal enquiry in which he was found guilty.
4. It will he seen that the appellant is charged with 2 acts of misconduct viz. That he defrauded the respondents by charging fare of Rs,43.75 from 25 passengers without issuing tickets; and secondly, for disobeying the orders of his superiors by not handing over the T.L.VI to them. The contention of the appellant is that his bus was never checked by the checking party.
5. I have gone through the enquiry papers and find that the appellant had participated in the enquiry and he had cross-examined the witnesses and had signed each and every page of the enquiry proceedings. He had also produced one defence witness, namely, Daud Khan who had stated that the bus on which the appellant was Conductor was checked by him while it was standing at Quaidabad at 5-30 p.m., and that he had checked the tickets and did not find any person without tickets. He was put certain questions in cross-examination by the enquiry officer in which he had admitted that he had no concern with the bus but they check only those passengers who get down from the bus and none of them was ticketless. The respondent management had examined all the 3 Members of the Checking Party, namely Abdul Jaleel, Masroor Hassan and Qazi Ahsan who had been cross-examined at length and they had fully implicated the appellant. The management had also examined one of the members of the checking party, namely Masroor Ahsan in the Court. He states to have secured one ticket of Rs,3.00 from the passenger in the bus; bearing No,AA-859016 which was attached with the T.T.40 viz., ExbtA-1 and bears the aforesaid number. This ticket is relevant to decide the question whether the Checking Party had checked the bus as alleged by them or they did not check the bus as alleged by the appellant. T.L.VI subsequently appears to have been handed over by the appellant to the management, but, he is alleged to have refused to hand over the same to the Checking Party at the time of checking. It has been produced as Annexure 'A' and it shows that the tickets bearing Nos,859012 to 859024 had been sold by the appellant. The fact that one of these tickets was secured by the Checking Party from the passenger in the bus belies the contention of the appellant that his bus was not checked; but supports the contention of the Checking Party that they had checked the bus.
6. It is admitted that neither passengers who were not issued the tickets were examined before the enquiry officer nor before the learned Labour Court. Mr. Gul Muhammad contends, that examination of these passengers was not necessary as T.T.40 showed that they had been confronted with the appellant. In this context, he has relied upon certain decisions of this Tribunal and that of the learned Punjab Labour Appellate Tribunal. However, those cases are distinguishable as in those cases T.T.40 was signed by the conductor and his statement therein raised the presumption that the conductor was confronted with those ticketless passengers. Mr. Gul Muhammad has also relied upon the un-reported Decision of the Sindh High Court in Constitution Petition No,D-124/1989 (Sakhawat Ali v. Chairman, Sindh Labour Appellate Tribunal) decided on 16- 4-1990. The learned Division Bench has observed that "when confrontation had been admitted, then, it was not necessary to examine those passengers in the enquiry proceedings, and this could be done only when right from the very beginning there is absolute denial of such confrontation". In the instant case, there is denial of confrontation from the very beginning, therefore, non- examination of those passengers would be fatal to the case of respondents with regard to the charge of defalcation viz., recovery of the fare of Rs,43.75 without issuing tickets to 25 passengers.
This charge, I would, therefore, hold not to have been proved.
7. Disobedience to the lawful orders of the superiors, is a misconduct under Standing Order 15(3)(a) for which one of the punishments as provided under Standing Order 15(2) is dismissal. I have already held that the recovery of one ticket from passengers by checking party, which is proved to have been sold in the bus from the T.L.VI, proved that the checking party had boarded the bus as alleged by them and had checked the passengers. All the 3 members of the checking party had stated before the enquiry officer that on demand, the appellant had refused to hand over T.L.VI for the purpose of checking. One of them, Masroor Ahmed has been examined before the learned Labour Court, who has also stated that they asked the appellant to hand over T.L.VI, but, he refused to do so. T.L.VI which has been produced as Annexure 'A' is conductor's statement showing the denomination of tickets sold by the conductor on that particular trip. The checking of this statement was necessary by the checking party to find out as to what tickets had been sold and what had remained unsold. It is not disputed that Assistant Traffic Manager Abdul Jaleel and Inspector the members of the checking party were the superior officers of the appellant and, therefore, their order to the appellant to hand over T.L.VI cannot be considered as not a reasonable order. The refusal of the appellant to hand over T.L.VI would amount to wilful insubordination and disobedience of a lawful and reasonable order of the superiors, which is a misconduct as defined under Standing Order 15(3); and one of the punishments as provided under Standing Order 15(2) for such misconduct is `dismissal' from service.
8. Mr. Khalilur Rehman, the learned Representative for the appellant has relied upon the decision of the learned Labour Appellate Tribunal, Punjab, reported in 1978 PLC 442; wherein it is held that domestic enquiry was not be held so as to cast onus on worker to prove his innocence and such enquiry was held to be improper where accused had not been given opportunity to cross examine the witnesses and where the enquiry was not held in accordance with the principles of natural justice. This case is distinguishable as the appellant in the present case has been given full opportunity to defend his case and there is nothing on record to show that any principle of natural justice had been violated. The Enquiry Officer Aslam Pervez had been examined before the learned Labour Court. There is nothing on record to show that he in any way showed any partiality. The mere fact that he had put a few questions to the defence witness to elicit the truth, would not invalidate the enquiry. He did not put any question in cross-examination to the appellant. Mr. Khalilur Rehman has argued that the enquiry officer did not consider in his report the contradictions in the evidence of the witnesses as to the place where the appellant was standing in the bus. This is a minor contradiction and the failure of the enquiry officer to consider such contradiction would not cause any prejudice to the case of the appellant. Mr. Khalilur Rehnian has further argued that on 14-7-1989 the District Manager had made a note on the T.T.40 that the individual be booked off and proceeded against on priority which would amount that the management had already decided to proceed with the enquiry even before they received the reply to the charge-sheet, therefore, such enquiry is defective. He has relied upon PLC 1978 at page
209. It may be pointed that the charge-sheet is dated 29-7-1987. By this note dated 14-7-1987, the District Manager appears to have ordered issuance of the charge-sheet and not for holding enquiry. Mr. Khalilur Rehman has also relied upon a decision of Presiding Officer, Sindh Labour Court No,VI, reported in 1988 PLC 85 wherein the learned Labour Court has held that the charge-sheet issued under directions was of no legal consequence. On plain reading of Standing Order 15(4), it would be seen that the approval of the employer is required in every case of dismissal and institution of enquiry. Therefore, if the employer has directed for issuance of the charge-sheet or institution of proceedings it did not vitiate the enquiry. It is further contended by Mr. Khalilur Rehman that show-cause notice issued, which has been produced as Annexure 'D' is a stereo- typed cyclostyle paper therefore, it shows that the management did not apply its mind before issuance of the show-cause notice. In fact, such show-cause notice after enquiry is not contemplated under Standing Order 15(4). The only notice required thereunder is that the act of misconduct be brought to the notice of the accused workman. By this show-cause notice, Annexure 'D', the appellant was given another opportunity to show cause as to why be should not be removed from service as the charge stood proved against him. This was another opportunity given by the respondents to the appellant to show cause and in no way prejudiced the appellant or showed any bias on the part of the management. Nothing has been suggested to P.W. Masroor Ahmad to show as to why the checking party should have falsely implicated the appellant. Their evidence with regard to checking is supported by production of a ticket attached to Annexure `A/1' which belies the contention of the appellant, that his bus was never checked by the checking party.
9. Mr. Khalilur Rehman has also invoked the provision of the principles of natural justice and has relied upon 1987 SCM R 1189. I do not find that any principle of natural justice has been violated in the instant case. The appellant was served with the charge-sheet. He was given all opportunity to cross examine the witnesses and to examine his defence witness before the enquiry officer. He was also given a second show cause notice after enquiry, which in fact was not necessary. There is absolutely no violation of principles of natural justice, in the instant case.
10. In view of the above discussion, in my opinion, the charge of insubordination and disobedience of lawful and reasonable order of the superiors by not handing over T.L.VI to the Checking Party stood proved against the appellant and he has been rightly punished for this misconduct. I, therefore, find no merit in this appeal which is accordingly dismissed.