1. AWARD The present application was presented by Mr. Wasihullah on 17-8-1967.
2. On 9-10-1967, Mr. Mehboob Rizvi instead of filing the Reply Statement filed an application under section 10(1)(a) of the I. D. 0., 1959.
3. On 13-1-1967, Mr. Rizvi withdrew the application under section 10(1)(a) of the I. D. O., 1959.
4. After the publication of the Award under section 10(1)(a), Mr, Rizvi filed Reply Statement on 23-5- 1968, Mr. Amanullah Quresbi did not want to file any Rejoinder.
5. On 5.8-1968, Mr. Amanullah examined the applicant and closed his side.
6. On 26-9-1968, the respondent examined Mohd. Ilyas, the Enquiry officer and closed his side.
7. Arguments were filed by both the parties on 23-10-1968.
8. I will first discuss the evidence.
9. The applicant, in his deposition said that be was a Conductor in the G. T. S., that on 24-5-1966, be was on duty at Hyderabad --T. B. Sanatorium Road and that when his bus left Kotri, it had 11 passengers, all with tickets and that T. L. 6 was closed.
10. He continued that at the Mazar of B16a Salahuddin Bus Stop, 11 passengers took seat in his bus.
11. He explained that 9 passengers which formed I group were issued tickets by him and 2 who formed another group were not yet given tickets and that he had not realized fare from them. He further said that at the local routes they can close T. L. 6 up to the fare stage.
12. He also sail that from Kotri, the fare of Telegraph Work--shop is the same whether the, passenger boards at Kotri or on the way.
13. He further said that the D. T. M. and Saqib checked his bus at a- distance of furlong from the Mazar of Baba 6alahuddin at the Railway crossing. He added that he had given his statement on T. T. 40.
14. He continued that he was given the charge-sheet Exh. A. W. I/1. It mentions that he did not issue tickets to 11 passengers travelling from Kotri to Telegraph Office and that on seeing the checking- party, he hurriedly punched and banded over to a passenger. Ticket Nos. 509, 585, 588, 589, 590 to 593, 587 8t 586 and that he had not closed the Waybill and that he had not punched the tickets correctly but tore them out. It also mentioned that he failed to issue 1 E. L. T. to one passenger who was travelling from Kotri to Telegraph office. He was, therefore, charged for misconduct defined under section 7, subsections 2(b) and (f) of the Road Transport Workers Ordinance, 1961.
15. He continued that he replied to it vide Exh. A. W. 1/2.
16. He added that Mr. Ilyas had conducted the enquiry and that during the enquiry he examined him first and then be examined Mr. Saqib. He said that he examined the D. T. M. In his office in his presence. He added that he had produced his defence and that he had- not cross-examined the D. T. M. because the D. T. M. told him that the case needed no cross-examination. I cannot believe it.
17. He further said that he was not given any personal hearing or any Second Show-Cause Notice He added that he was dismissed vide Exh. A. W 1/3 and Exh. A. W. 1/4.
18. He further said he was interested in I. D. No. 63/64 and 81/65. .
19. In his cross-examination, he said that his bus was checked at the Railway crossing and that out of the 11 passengers who boarded the bus at the Mazar, he had issued tickets to 9 of there and had not closed them in the T. L.
6. He further said that checking-party had issued one ticket of excess luggage Exh. R-2. He denied the allegation that he hurriedly issued the 9 tickets Exh. R-3.
20. They show that they have been hurriedly issued because they have not been properly punched.
21. He further said that he, however, had not closed the T. L.
6. He admitted that he had given his statement on T. T. 40 and signed it and admitted that the tickets were given in confusion. He added that in T. L. 6, 2nd page, he had closed when there were 11 passengers in the bus and the checking- party h d closed showing 29 passengers and that they are underlined with red pencil. He said that T. L. 6 is signed by the Checking Party.
22. He admitted that Mr. Saqib was examined in his presence and that he had cross-examined him on 14-6-1966. He further said that the D. T. M. was examined on the same day and that' he had written there that he had not to cross-examine him vide Exh. R-4 and Exh. R-5. He further said that on that date, he gave a statement that he will produce his defence the next day vide Exh. R-6 and that on 15-6-1966, he produced one defence witness Anwar Ali vide Exh. R-7 and that then he was examined vide Exh. R-8. He added that at the end he had said that his case was quite complete, that he had not to add anything and that the proceedings of the case be completed.
23. As regards the allegation in the charge-sheet, they stand to be proved.
24. I will, however, concentrate on the fact whether the domestic enquiry was fair or not.
25. The grievance of the applicant was that the enquiry officer examined him first and then the prosecution side. It has been negatived in his cross-examination. I will see if the enquiry is fair.
26. The Enquiry Officer, Mr. Mohd. Ilyas in his deposition said that he was appointed Enquiry Officer vide Exh. A. W. i/1. He said that in the domestic enquiry S. M. Saqib and Maqboo Illahi were examined on 14-6-1966 .vide Exh. R-4 in the presence of the applicant. He further said that in Exh. R-6, the applicant said that he will produce his witnesses on 15-6-1966. He continued that he brought his defence on 15-6-1956 and also gave his statement on that day and at the end said that the case was complete and the decision be given vide Exh. R-8.
27. He said that he then submitted his enquiry report Exh. R. W. 1/2.
28. I have gone through the enquiry report and it appears to be a proper one. He said that the applicant was accordingly dismissed.
29. In his cross-examination, he said that Mr. Saqib has said that had they not checked the bus on the spot, the Conductor would have realized the fare when the passengers got down and put the Department to loss. He further said that he did not know, if the Conductor was charge-sheeted ever for any act of negligence.
30. He denied the insinuation that he added a word that the case frorn his side is complete after the applicant had signed his statement. He admitted that nowadays they give, Second Show- Cause Notice.
31. In his notes of arguments, Mr. Wasihullah has said that ;Industrial Court is not to interfere in the domestic enquiry until --(1) when there is a want of good faith,
(2) when there is a victimization or unfair labour practice,
(3) when Management has been guilty of a basic error or violation of principle of natural justice, and
(4) when on the Materials, the finding is completely baseless and perverse.
32. In this connection, he argued that Exh. A. W. 1/1 shows that he had not issued the ticket to I1 passengers travelling from Kotri to Telegraph Office. Mr. Wasihullah has argued that it is clear from the charge-sheet that he had not realized, fare from any passenger.
33. Now the very fact that he issued the tickets hurriedly and did not punch them properly show that he would have pocketed the money after realizing the fare at the destination. Besides, one has not to go into the facts of the allegation in the enquiry. The applicant has not alleged that he has been victimized for unfair labour practice or there is a want of good faith on the part of the Management or the material on record do not justify the findings of the Enquiry Officer.
34. To me, it appears that, there is no lacuna in the domestic enquiry.
35. Mr. Wasihullah has argued that the Enquiry Officer has not found the applicant guilty of fraud. I have read the enquiry report which reads as under :- "The reply of the Conductor is unsatisfactory. The checking- party had closed 29 passengers in waybills whereas the closing of Conductor shows eleven passengers only.
36. The Conductor had not issued tickets to many passengers but when he saw the checking-party, he tried to is3ue them tickets in hurry but the tickets were torn instead of being correctly punched. He also failed to close the tickets. The Waybill and torn tickets clearly prove the contention of the checking-party. The witness does not state of issuing tickets by the Conductor to one passenger in hurry. He has also failed to produce his ticket. He is tutored and hence not reliable. It is clear that the bus was checked at Railway Gate near Telegraph Workshop. On checking 11 passengers were found travelling without tickets. Fare was not realized by the Conductor. One maund luggage was also found with a passenger. On seeing the checking-party, he hurriedly punched and handed over Ticket Nos. 609585 to 593 to a passenger. In hurry, the tickets are torn and the Conductor `' failed to close the tickets. The Conductor is guilty of neglect of work for not issuing tickets to 11 passengers having not realized tare from them. Tickets were also found out of close. He way be punished as the District Manager deems fit."
37. No doubt, the Enquiry Officer says that the Conductor is 1 guilty of the neglect of work in not issuing the tickets to 11 passengers but the fact of having not realized fare from them and issuing tickets hurriedly, improperly punched and handing over them to one passenger and not changing fare for 1 maund luggage from one passenger clearly show the offence punishable under section 7, subsection (2)(b) and (i) of the Road. Transport Workers Ordinance, 1961.
38. I have already held in so many cases that Second Show. Cause Notice or personal hearing is not necessary as heldKarachi Bench, in R. A. 96/67 and 95/67 decided on 19-10-1967 and Writ Petition No. 448/67 decided by the Division Beach only 12-10-1967.