Fateh Muhammad, Bus Conductor, Government Transport Service, Multan, has filed an appeal against the order dated 15th April 1974, passed by the learned Junior Labour Court, whereby his petition for re-instatement with back benefits under section 25-A of the I. R.O, 1969, was dismissed.
The appellant was charged on the following seven counts in the domestic enquiry.
1. He changed T. T. 2 P-003300 into 003240 (T. T- 2 is a register in which details of the tickets issued by the Bus Conductor are entered by him during the bus journey).
2. R. P. T. No. 248270 and 248172 entered in T. T. 2P-3240 issued from Aziz Hotel Shehar Sultan for Rs.
4190 were found missing from R. P. T. Book No. 2483. The bas fare from Aziz Hotel to Shehar Sultan being Rs. 2.35 per ticket he entered the fare as Rs. 2.46 per ticket (P. R. T. Is the receipt book in the custody of a bus Conductor showing the issuance of tickets to the passenger).
3. R. P. T. No. 248282 and No. 248283 issued from Aziz Hotel to Shebar Sultan entered in T. T. 2 P- 003240 were found missing from R. P. T. Book No. 2183. For these tickets he charged ten paisas in excess from the actual fare from the passengers ihus charging ticket fare as Rs. 2.45 instead of Rs.
2.35.
4. (a) Tickets No., 248373 and 248365 issued from Sadiquabad to Khan Bela for Rs. 2.45 each and entered in T. T. 2 at Page 3243 were found missing from R. P. T. Book No. 2484. The entries of these tickets were found Suspicious and the amounts/figures found changed. The office opined that the tickets in question appealed Sub Head to have been issued from Sadiquabad to Multan for Rs. 7.15 each and afterwards changed into the ones from Sadiqabad to Khan Bela and fare shown as Rs.
2.45 per ticket, actual fare from Sadiqabad to Khan Bela being Rs. 2.55.
4 (b) On T. T. 2 page No. 3243 he showed the total amount as Rs. 185.95/85.55 and then less. 17 1.15.
The difference of fare mentioned in tickets No. 249365 and 248373 comes to Rs. 9.40 which if added to a total of Rs. 177.15 it amounts to Rs. 186.95 showing thereby Rs. 7.15 was changed into Rs. 2.45.
5. There was cutting and over-writing at to places of T. T. 2 No. 3241.
6. Bills of both the sides were not got entered in T. T. 2 He did not write the Bus-number on the tickets issued by him, nor did he sign them.
Of the above seven charges, charges No. 2 and 3 were held as unproved by the learned lower Court and cross-objections were not filed on behalf of the respondent Government Transport Service, Multan. As regards charge No. 5 the impugned order does not contain any reason at all as to the same having been substantiated against the appellant except for the remarks that the cutting and over-writing at to places in T. T. 2 No. 4341 are quite evident. In the absence of any evidence on record that the cuttings and over-writings in question could be attributed to the appellant, the charge must be held as unproved. As regards charge No. 1, the observations of the learned Presiding Officer, Junior Labour Court are that the appellant did not adduce any evidence to deny the charge while admitting the fact that the entries on T. T .2 were made by him and that as his denial was not supported by any evidence, the charge was proved against him. As regards charge No. 5, the trial Court having remarked that it was not of serious nature held the same as proved against the appellant on the ground that he did not deny the charge. Similarly as regards charge No. 7, it was said that as the appellant did not lead any evidence to deny the charge he should be presumed to have failed in his duty to make the entries. All these three charges obviously cannot be held as proved for the patent reason that each of the charge was to be proved on the basis of clear evidence and could scarcely be based on mere presumption or on the failure of the appellant to specifically deny the charge in evidence or to prove his innocence even in the absence of any evidence against him. So charges Nos. 1, 6 and 7 add themselves to the one which stood unproved against the appellant in the very trial Court. The only charge that survives against appellant is charge No. 4 relating to the removal of tickets Nos. 248365 and 248373 from R.
P. T. Book No. 2484 and their entry in the T. T. 2 being found suspicious the appellant was charged with defalcation of Rs. 9.40 by virtue of the opinion of the Audict Branch, in that, the fare of to tickets of Rs. 7.15 each was allegedly changed into Rs.2.45 each. The cash realized of the ticket was deposited by the appellant on 15th April 1973, alongwith the receipt book R. P. T. Entry register T. T. 2 with the Cashier National Bank of Pakistan G. T. S. Branch and he checked them without raising any objection as to any overwriting of the relevant entry or as regards the accuracy of the cash. About 11 months later, it was on the basis of an Audit report dated 28th May 1973, alleging mis- appropriation of Rs. 9.40 and manipulations in R. P. T. That domestic enquiry was started against the appellant. The appellant examined Amir Nawaz Khan, Cashier, National Bank of Pakistan, G. T. S. Branch to clarify his position. He stated to the effect that the appellant got R. P. T. And T. T. 2 checked by him on 15th April 1973, and the entries in both the books tallied and the cash received from him was also found to be correct. He admitted that he had also set at the end of the R. P. T.
The official seal of the Bank verifying the books as having been checked by him in addition to his own signatures. He further admitted that by setting of the aforesaid official seal on the R. P. T. It stood verified once for all that the receipt book R. P. T. Then contained all the counter parts of the tickets and the Receipt book was in fact in all respects and that if there had been any suspicion as regards the removal of the tickets from the R. P. T. The same could not have been verified by him as fully checked and consigned. He how--ever stated that T. T. 2 No. 3243 at its relevant page the cash total Rs. 185.95 was found by him to be wrong and corrected by himself with his own pen as Rs.
177.50 and he prepared the cash summary and received the cash accordingly. In the cross- examination on behalf of the respondent he stated that they generally do not check the pages of T.
T. 1., they only check the amounts entered in the R. P. T. He further revealed that after checking the R.
P. T. And T. T. 2, the same are usually returned to the Conductor concerned for being consigned in the record office.
Kanwar Shamshad Ali, Assistant Traffic Manager, examined on behalf of the petitioner admitted in his cross-examination that the Bank Cashier does scrutinize the R. P. T. And T. T. Z when the cash is deposited by the Conductor of but stated that after the cash is checked the used up ticket books (R. P. T.) are these in the consumed record by the Conductors. In the light of these statements the case of the respondent has been attempted to be made out that it was after the thorough checking of R. P. T. And T. T. 2 the alleged removal of the tickets receipts from R. P. T. And manipulations on T. T. 2 register took place at the instance of the appellant before he deposited the same in the record office stated as consumed record) but no evidence was led to prove the fact that in fact it was the appellant who committed a mischief. The question arises and quite fairly that when an official of the respondent establishment Amir Nawaz Khan admitted the fact that he thoroughly checked the books with the cash handed over to him and the entries tallied with the cash in hand of the Conductor even after the correction made by himself in the same of the T. T. 2 entries, how it was possible and beneficial in any manner to the appellant to make the defalcation by removing the tickets and by making any over-writing. This factor remains absolutely un- explained in the evidence on the record. The fact that after the checking of the books and the cash, the books were handed over to the appellant as a usual routine for being deposited in the consumed record, does not at all advance the case of the respondent. Because in the first instance no such routine is approvable under any system of pecuniary dealings nor it can be assumed that finally consignment of the books could be accepted or effected by the Clerk concerned without any checking in case no checking was made at the final stage the liability for the manipulations could hardly be attributed to the appellant on mere presumption.
Besides it is worthy of note that the appellant was charged under section 7 (2) (g) of Road Transport Workers Ordinance, 1961, read with section 15(3)(g) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1969, according to woieh the appellant was charged with the habitual breach of the law applicable to the establishment whereas no instance of any previous misconduct or breach of any rule was mentioned against him in the charge sheet or in the evidence led against him at the stage of domestic enquiry, as well as at the stage of the proceedings taken in the learned lower Court. Habitual breach of law on the part of the appellant is not at all a matter of presump--tion and requires to be mentioned tin the charge- sheet and clearly proved against the appellant in the evidence produced against him. Merely referring to the Departmental record on behalf of the respondent brought before the appellate Court regarding breach of discipline on the part of the appellant in the past can hardly be regarded a proof of previous misconduct against him. Because presumption would deprive him of the right of his defence and that of cross-examination of the witness who would have been put against him to prove the breach of law against him in the past.
In the circumstances discussed above where the misconduct attributed to the appellant in the domestic enquiry was not satisfactorily proved against him and the charge did not contain any allegation of breach of rule or regulation having been committed by him previously, could not be punished with the dismissal from service for the alleged mis--appropriation of Rs. 9.40 which does not go beyond a petty fraud which itself factually remained unproved on record. The appeal is therefore accepted and the impugned order being set aside, the appellant is directed to be re- instated to his job within a period of fifteen days. 49 will not however be entitled to any back benefits on account of his reinstate--ment being ordered on technical flaws in the domestic enquiry.