1. AWARD MUSHTAQ HUSSAIN MUNIR (CHAIRMAN).-Ex-Driver Jamil Ahmad of Government Transport Service, Multan, has filed this application under ,section 38 of theWest Pakistan Industrial Disputes Ordinance, 1968. He joined service on 18-2-1957 and was dismissed by the District Manager on 6-6- 1968.
2. Two separate charge-sheets were served on the petitioner: I would, therefore, deal with each of them separately: Inspector Iqbal Hussain and Muhammad Ashraf checked the bus of the petitioner bearing No. 3034 on 18-4-1966 at 2-25 p.m. near baulat Gate and found the following defects, as a result whereof, he was given charge-sheet Exh. P. 6-
(1) that he had to start duty from Chowk Shahidan at 7-10 hours for Piran Ghaib but did not do so,
(2) that without obtaining the permission, he diverted the route and instead of adopting proper route viz ; Fatima Jinnah Hospital and Daulat Gate went straight on Lahore Road via District Courts,
(3) that he was not in possession of complaint book, and registration book, and
(4) when the passengers demanded the complaint book, he did not produce it.
3. In his explanation Exh.P. 7, the petitioner has met these charges. His case briefly is, that. when he arrives at the place o f duty on the morning of occurrence, he found that a tyre of ,his vehicle was punctured. As he was not well, with the help of drivers Bahadur Khan, Haq Nawaz, a yard coolie and Raja Mohd. Sadiq, he set the vehicle right. His vehicle was permitted to leave the gate shortly before 8 a.m. There after he obtained diesel and mobile oils and wafer, which took ten minutes and it was at 8 a.m. or shortly thereafter, that he left on the route. Raja Mohd. Sadiq Assistant Yard Master, who was riot feeling well, but was on duty, was contracted by him. The latter permitted him to start his day's duty from Piran Ghaib in order to save the administration from loss. The petitioner has further explained, that he could not collect the complaint book and the registration book from the office, as he was already late and did not want to waste more time. It is significant that in his explanation he mentioned the names of the persons, who had helped him in changing his tyre and requested, that they may be examined in his defence. He further said that the workshop register may be seen, as that would show when he left it for performing duty.
4. Enquiry into the aforementioned allegations was held by Mr. Murid Sultan Tasneem, R. W.
2. He examined Muhammad Ashraf Inspector and thereafter the petitioner. He asked the petitioner, whether the latter would like him to summon Raja Ghulam Sadiq as witness. He replied in the affirmative. Thus Mr. Tasneem recorded his statement. Raja Ghulam Sadiq supported the version of the petitioner before the enquiry officer. His statement is Exh. R.
5. He deposed, that a tyre of the vehicle was punctured and it took sometime before it was replaced, on account of which, the vehicle left the workshop late by about an hour. By then, it had almost missed the first trip. He, therefore, directed the petitioner that he should try to cover the time and start the trip from the place, where he would then have been, according to schedule. Raja Ghulam Sadiq, however, mentioned that he had directed the driver to fellow the route. In spite of the aforementioned statement made by Raja Ghulam Sadiq, the Enquiry Officer in his report Exh. R. 6 found the petitioner guilty of diverting his route and not possessing the complaint book. In his opinion, it amounted to misconduct. I do not agree with his conclusion. The petitioner has given a very plausible reason, as to why he was not in possession of the complaint book. If he had spent sometime more in collecting it from the office, that time too would have lost and would have resulted in loss to the Administration. So far as the question of diverting the route is concerned, people who know Multan, would readily agree with rte, that by adopting the route, adopted by the petitioner, he must have arrived at Piran Ghaib earlier than he would have, if he had adopted the schedule route. At any rate, even if thisconsidered to be a lapes on the part of the petitioner, no act of dishonesty is involved therein. It at best amounts, to indiscretion on his part.
5. The enquiry held by Mr. Tasneem does not appear to be fair. He admitted :- "My record does not show, that I gave opportunity to the petitioner to produce defence. I had gone through the explanation of the petitioner. I have no recollection, that in his explanation, the petitioner made a demand that gate workshop register should be checked and Raja Mohd. Sadiq Mohd. Akhtar conductor, Haq Nawaz driver, Bahadur Khan driver, Mohd. Amia conductor and a coolie, who had helped him in changing the tyre, should be examined. I do not remember, as to what were the circumstances, under which, I did not summon the register nor called these witnesses, except recording statement of Raja Muhammad Sadiq. I admit that I should have examined these persons, when they were mentioned in the explanation of the petitioner."
6. From what has been said above, I am of the' opinion, that the allegations contained in charge- sheet Exh. P. 6 were not of such a nature, on the basis of which, action should have been taken against the petitioner. These allegations by no means called dismissal from service.
7. The next case against the petitioner contained in charge-sheet Exh. P. 4 is in two parts. The first allegation is, that when his Bus No. MN-3034 was checked by Muhammad Ayub Khan, Station Superintendent of the Multan Omni Bus at Chowk Shahidan on 27-4-1966, it was noticed, that it was running seven minutes ahead of the schedule time.. The bus was due at Chowk Shahidan at 21-05 hours, whereas it should have arrived there at 20-58 hours.
8. The second allegation is, that the bus of the petitioner was due to touch the Railway Station at 22- 40 hours, but did not reach there and the driver without touching the Railway Station, took it to the "Adds" and was found sitting in the office, and when questioned by the Station Superintendent, as to why he had not completed the trip, was rude to him.
9. Enquiry into the aforementioned allegations was made by Mr. Saadullah Mumtaz, the then Station Superintendent, now A.T.M. R. W.
3. His report is Exh. R.
9. His findings are, that the fact, that the petitioner arrived at Chowk Shabidan seven---minutes earlier, meant that he was over-speeding his vehicle. With regard to the second allegation, he has come to the conclusion, that if the contention of the petitioner, that these were Muharram days and processions were taken out by people, was known to the petitioner, be should have obtained prior permission from the District Manager for temporary diversion of the route. He did not accept the version of the Station Superintendent, that the petitioner was rude to him. However, in the end, the enquiry officer observed that the conduct of the petitioner proved that he was guilty of "neglect of work" and recommended that "he-should be awarded exemplary punishment in order to teach him a lesson and discourage such irregular practice for the future".
10. The petitioner in his lengthy and elaborate statement has fully explained the charges levelled against him. He deposed, that in his explanation, he had pointed out, that in the evening, very few people travel from Piran Ghaib to the city and thus sometime is saved in their bussing and debussing. He further--more made a very significant statement, which he had mentioned in his explanation at the earlier stage. He deposed that :- "There can be variation in watches and variation of seven minutes is not such a thing, which requires explanation."
11. In the Court, he made another significant statement which has not been rebutted. , He deposed:- "The bus, which I was driving had not clock."
12. This assertion has not been denied. He also said :- "The time was determined by the Station Superintendent, who checked my bus by his own watch, His time may or may not have been correct."
13. The last-mentioned assertion cannot be lightly brushed aside. One cannot say categorically, that the watch, which the Station Superintendent was wearing, was giving correct standard time, There could easily have been a variation of five or seven minutes in it. Therefore, this was not such a charge, which the petitioner should have be. -n called upon to explain.
14. In his explanation submitted to the charge-sheet, which is Exh. P. 5, the petitioner mentioned that the night of the occurrence was the night, when "Mehdi procession" was taken out by the people of Multan. These were admittedly the days of Muharram. He further pointed out, that when his bus arrived at Daulat Gate, it was stopped by the Police as "Mehdi Procession" was in progress there. He thereupon diverted his bus and took it to Delhi Gate viz. Mumtazabad. His s-atement in Court further elaborates his contention. He deposed "This was the last trip. I started from Piran Ghaib according to time. When I reached near Daulat Gate, I was stopped by the Police, as there was a huge procession on account of Muharram. From Daulat Gate, I had to proceed t-3 Hussain Agabi, therefrom to Lohari Gate, Clock Tower, Civil Hospital, Nawan Shebar, G. T. S. General Stand, Multan Cantt. Railway Station and Chowk Shahidan.
15. As I was not permitted by the Police to proceed further, I requested the passengers to alight, as they had to proceed to Hussain Agahi, Bohar Gate and City. I took my bus towards Mumtazabad, on a road going towards that side from Octroi Post No. 14. It is known as the Vihari Road. From Mumtazabad, 1 went to the Depot. Although according to s,;hedule, I had to stop at the Railway Station at 22-40, I did not do so, as I had no passenger. I arrived at Dera Adda (G. T. S. Bus Stand) at 23-15 hours."
16. There is no plausible evidence to rebut this part of the testimony of the petitioner nor the circumstances. As these NNcr e the days of Muharram, the contention of the petitioner, that in view of the "Mehdi procession," he was stopped by the police, cannot be said to be incorrect. When he was not allowed to proceed further, he was forced to change the route and he could not have obtained the permission of the District Manager to do so. I hope the administration did not expect, that he would leave his- vehicle there loaded with the passengers and proceed on foot to the office to obtain permission to change the route. He followed the most sensible policy, by requesting the passengers to debus and proceeded to his destination viz. Mumtazabad because that was the only route, which was possibly open to him to take his bus to the General Stand. This being the last trip, he had no stop there. Therefore, the charge of the neglect of work on his part is totally misconceived.
17. It appears to me that the Administration did not intend to take any action for these lapses on the part of the petitioner. Mr. Saadullah Mumtaz recorded evidence against the petitioner on 4-7-66 and submitted his report to the District Manager on 11-7-1966. The report is Exh. R.
9. Mr. Murid Sultan Tasneem held enquiry on 26-7-66. The date, when he made his report Exh. R. 6 is not known.
18. However it must have been made by him within a few days of the closure of the enquiry. For about two years thereafter, the administration kept quiet. The District Manager dismissed the petitioner on the 6th of June 1963 Why the action was not taken earlier, has been left unexplained I can only infer therefrom, that probably there was no intention after the closure of the enquiry to punish the petitioner.
19. The petitioner is admittedly an office-bearer of a Trade Union. He was an office-bearer at the time of his dismissal. Therefore, the District Manager was wholly incompetent to dismiss him. He could have done so after obtaining permission of the Industrial Court. The petitioner's contention is that since the year 1961, he is continuously an office-bearer of the Trade Union. The employees of G. T. S., Multan, were members of Road Transport Employees' Union (Regd.), Lahore, Multan Branch. The petitioner was an office-bearer of that Union. Subsequently the employees at Multan formed a separate Union under the name and style of Road Transport Corporation Employees' Union, Multan.
20. It was registered. The petitioner disassociated himself from the former Union and joined the new Union and was elected its office-bearer on 20-7-67. Malik Lal Din, a driver, was the President of the new Union. However, he was removed from office for the commission of certain irregularities and after his removal, the petitioner was elected President in his place on 28-5-6S. Copies of the proceedings were sent amongst others to the District Manager of Government Transport Service, Multan. That the Administration knew that the petitioner was an office-bearer, finds confirmation from the following observations made by Mr. Saadullah Mumtaz in his report in the last pare:- "It may, however, be pointed out that the accused driver is an office-bearer of Road Transport Employees' Union (Regd.) Multan and there is pendency of a number of disputes for determination and adjudication by Industrial Court of West Pakistan, Lahore. In case the condition of his service is tc be changed due to punishment he deserves, then prior permission of the Industrial Court may please be obtained under section 30 of the industrial Disputes Ordinance."
21. Why these observations were ignored by the District Manager we do not know. We have also the statement of Muhammad Ashraf, General Secretary of the Union, P. W. 2, who hay stated, and he was not cross-examined, that at the time o his dismissal, the petitioner was the President of their Union. He deposed, that new office-bearers were elected on 28-5-68 when one Lal Din was elected as the President. Later on, he was dismissed and was removed both from the presidents and the membership of the Union. Mirza Jamil Ahmad petitioner was then elected, the President in his place. Information with regard to it was sent to the District Manager, G. T. S. Multan, vide letter No. 380/RTC/NU, dated 28-5-68. Muhammac Ashraf deposed further :- "I delivered it personally in the office of the Distric Minager and was received by despatcher Noor Mohd. o 29-5-1968. This is mentioned in my peon book, which I have brought today."
22. I have already pointed out above that this witness was no cross-examined.
23. Rana Muhammad Khan, Office Superintendent, R. W. appeared on behalf of the respondent. He made .this significar admission in cross-examination :- "It is a fact that Lal Din has filed a suit in the Court of Senior Civil Judge, Multan, against the present petitioner asking for a declaration that he the President of the Union and not the petitioner.
24. There is thus no manner of doubt in my mind, that the District Manager knew, that the petitioner was an office-bearer when he took the impugned action. In these circumstances, t should have obtained prior permission of the Industrial Court.
25. For the foregoing reasons, the application is allowed, the dismissal of the petitioner is set aside and the respondent directed to re-instate him within one month with full benefits.