1. A petition was filed under Standing Order 18 of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, hereinafter mentioned as the Standing Orders Ordinance, by Muhammad Ashraf Ex-Driver No. 90 against District Manager Government Transport Service, Multan, hereinafter mentioned as respondent No. 1 and Chairman, Road Transport Corporation, Lahore, hereinafter mentioned as respon--dent No. 2 It was stated in the petition that the petitioner had nine years service to his credit in Government Transport Service, Multan, and was dismissed by the respondent No. 1 on 13th September 1971 in contravention of the rules made under the Road Transport Corporation as well as the procedure laid down in the Standing Orders Ordinance, that no permission was obtained for' his dismissal from the then Chairman, Industrial Court when a dispute of the Union of which the petitioner was a member was already pending in the Industrial Court and that grievance notice served by the petitioner on 30th September 1971 on the respondent No. 1 was turned down vide his letter No. 1775/PP, dated 12th October 1971 received by the petitioner on 23rd October 1971. That the petitioner preferred an appeal to the respondent No. 2 on 24th September 1971 but the petitioner was not given any reply on that appeal.
2. It was further maintained that the charge of insubordination made against the petitioner was incorrect and was not made a subject of proper enquiry nor the petitioner was given a fair opportunity to adduce defence, that the petitioner was dismissed because of his bona fide Trade Union activi--ties and that the action taken by the respondent No. 1 against the petitioner An that score amounted to unfair labour practice. In the circumstances it was prayed that the dismissal of the petitioner dated 13th September 1971 be set aside and his re-instatement alongwith back benefit permissible under the law be directed in his favour.
3. In the written reply filed on behalf of the respondents preliminary objections were made to the effect that no grievance notice was given to the Management by the petitioner, that the latter was neither a member of any Trade Union nor the respondent No. I was the employer of the petitioner and the petition therefore was bad for misjoinder of parties. On merits it was stated that the order of dismissal was announced to the petitioner in consequence of personal bearing on 13th September 1971 that all legal formalities were properly observed during the enquiry proceedings and that the Court's permission for the dismissal of the petitioner was not necessary as he was not an office---bearer of a registered Trade Union nor was he concerned with a dispute if any, then fending in the Court. It was therefore requested that the petition should be dismissed.
4. A petition was filed before the then Chairman, Punjab Labour Court, Central Zone, Lahore, on 17th November 1971 and it remained pending in that Court till June 1974, when it was transferred to the file of this Court which was then established at Multan. It may be pointed cut here that during the pendency of the petition the petitioner was called for active service in the War of 1971 and the case was adjourned sine die till it was restored on 21st January 1974 on the return of the petitioner from on active service. Before the case was transferred to this Court only the statement of the peti-- tioner had been recorded as P. W. 1 on 27th April 1974 by the Labour Court at Lahore. Thereafter the petitioner examined Muhammad Latif Junior Clerk, office of the Registrar Trade Unions Multan, (P.
5. W. 2) Mr. Akhtar Hussain, Clerk G. T. S. Multan (P. W. 3) and Khadim Hussain (P. W. 4) beside submitting his documents Exh. P-1 to Exh. P-6 in this Court. The respondents examined M. S. Tasnim, District Manager, Omni, Bus Service. Lahore (R.W. 1), Iqbal Akhtar, Booking Clerk, G, T. S., Sahiwal (R.V.
6. 2), Mian Amin-ud-Din,Senior Traffic Officer, Punjab Road Transport, Lahore, (R. W. 3) and Abdul Hameed, Clerk Operation Branch, G. T. S., Multan (R. W. 4) besides submitting in evidence certain documents Exhibited as R. 1 to 17.
7. The petitioner failed to prove that he was the office-bearer of a Trade Union at the time of his dismissal i.e. on or before 13th September 1971 and for that reason the Management was not bound to obtain the permission of the then Industrial Court for his dismissal under the relevant provisions of industrial Relations Ordinance, 1969, and the Standing Orders Ordinance. The clerk of the office of the Registrar of Trade Unions, Multan (P. W. 2) stated in front of the relevant departmental file that the petitioner was listed in the office-bearers of the Road Transport Corporation Employees' Union in connection with the annual return submitted in the office of the Registrar of Trade Unions, Multan for the year ending 1969. But he was not found to be an office-bearer of the Union later on as no list of office-bearers was attached with the annual return for the period ending 1970 submitted on behalf of the Union. He admitted in the cross-examination that the proceedings of aforesaid Union dated 3rd March 1971, were received in'' their office which do not show the name of petitioner in the list of office--bearers. The clerk, G. T. S. Multan (P. W. 3) stated that as General Secretary of the aforesaid Union he had submitted the annual return in the office of the Registrar for the year ending 31st December 1970 wherein his name as well as the name of the petitioner were mentioned as office-bearers in the attached list (Copy Exh. P-6). The last mentioned copy of the list of the office-bearers is not a certified copy obtained from the office concerned and could not be verified.
8. He admitted in the cross-examination that there was dispute between the rival groups of their Unions which was taken to the Civil Court and was disposed of by it and that no copy of the final order of the Court was obtained. In this background of the evidence the petitioner could neither be proved to have been an office-bearer of any Trade Union nor concerned with any Industrial dispute pending in the Industrial Court at the time of his dismissal. In the result no permission of the Industrial Court was necessary to order the dismissal of the petitioner.
9. In order to assess liability of the petitioner for the punishment awarded to the petitioner it is essential to take into consideration the contents of the charge-sheet (Exh. P-1) served on him.
10. According to the charge-sheet he was called upon to explain his position against the following main allegations against him:-
(1) The petitioner, as driver of Bus No. 2233 arrived at Sahiwal on 28th February 1971 thirty minutes, before the schedule time of the arrival of the Bus No. 2233, Aminuddin, Deputy Traffic Manager, reached there by a separate conveyance at 10-20 a.m. and finding the petitioner with his bus already present there found hits to have broken the Traffic discipline by opening up the bus to achieve earlier arrival at Sahiwal by 25/30 minutes, the scheduled time of arrival being 10-45 a.m.
(2) A soon as the Deputy Traffic Manager, asked the petitioner for the cause of the early arrival of the bus at Sahiwal, the latter became indignant and insolent before his superior Officer.
(3) The Deputy Traffic Manager directed the booking clerk at Sahiwal to arrange the petitioner's bus to leave Sahiwal immediately to avoid road congestion. On hearing this the petitioner became flared up and deliberately rendered his bus out of order and removing the passengers from the bus parked it in the yard which resulted in the inconvenience of the passengers, and it could be considered a foul act of the petitioner.
11. I have given almost the literal translation of the relevant portion of the charge-sheet and the summary of the charges given therein is reproducer) as follows, in reference to the petitioner.
(1) You contravened the rules of the Department.
(2) At a business place during hours of work you misbehaved with a superior Officer.
(3) You disobeyed a lawful order of your Officer.
(4) You deliberately rendered your bus out of order and thus put the Department to a loss.
12. The charge-sheet was served on the petitioner under section 7(21(a)(c)(g) and (b) of the load Transport Workers Ordinance, 1961 reproduced under section 15, subsection (G) (H) (a) (c).
13. The relevant clauses of subsection (2) read follows :-
2. The following acts and ommissions shall be treated as misconduct-
(a) Wilful insubordination or disobedience, whether alone or in com--bination with others, to any lawful and reasonable order of a superior.
(c) Wilful damage to or loss of employer's goods or property.
(g) Habitual breach of any law applicable to establishment.
(h) Riotous or disorderly behaviour during working hours at the establishment or any subservice of discipline.
14. It is clear from the contents of the charge-sheet that an undefined and', unexplained misbehaviour on the part of petitioner can scarcely be covered by the clause (h) given above which relates to misconduct of riotous or disorderly behaviour. The word 'insolence' or 'misbehaviour' occurring in the charge-sheet without any reference to the actual words spoken by the petitioner could not be taken for granted as established this behaviour and punishable misconduct on the part of the petitioner. A misbehaviour alleged against a worker by his superiors of the Management does not have the any legal presumption unless the alleged misbehaviour is clearly defined into precise words and action taken by the worker not to speak of a behaviour as being riotous or disorderly which is only punishable under clause (h) of subsection (2). It is also necessary for the, clause that said riotous or disorderly behaviour which apparently required the association of more than one person was further required to have been committed during working hours at the establishment.
15. An intermediary bus stand on a long. route just a bus stand at Sahiwal could hardly be taken as an establishment; as defined by section 2(f ) of the Industrial Relations Ordinance, 1969, herein--after mentioned as the Ordinance read with the definition given in section 2(11) of the Payment of Wages Act, 1936. It is only the disorderly and riotous behaviour of a number of workers or by a worker responsible for a riot or disorderly behaviour during the working hours at the headquarters or sub- headquarters of the establishment which has been made punishable in this clause.
16. There is nothing in the charge-sheet making the petitioner liable for habitual breach of any law applicable to the establishment nor any such allegation was made against the petitioner at any stage of the case including the evidence stage. In such circumstances the clauses (g) and (h) of sub--section (3) could not at all be made a subject of the charge against the petitioner.
17. What is to be seen is whether the misconduct covered by clauses (a) and (c) of subsection (3) could be attributed to the petitioner according to the evidence on record. Any wilful insubordination or disobedience must have related to some definite action of the petitioner at the bus stand at Sahiwal. What is alleged against him is that he contravened the departmental stand- -ing instructions to take bus at a prohibited speed and reached Sahiwal at 10-20 a. m. whereas the scheduled arrival of his bus was at 10-45 a.m. The fact has not been controverted on behalf of the respondent-Management that a Register "A" prescribed under the West Pakistan Road Transport Workers Rules, 1962 is maintained by the Road Transport Management and it is signed at the relevant place by the drivers and the conductors at the starting point of the buses at the headquarters to show the times of departure. But no such register or any relevant extract thereof was placed in evidence on behalf of the Management to show the time as to when the bus of the petitioner started from Multan on 28th February 1971. It was admitted that there is a travelling duty book prescribed under the same rules and that Way Bills are issued to the drivers giving time of the departure of the buses and other particulars. Neither, of such record was produced in evidence to fix up the responsibility of the petitioner regarding his arrival at Sahiwal earlier than the scheduled time. The mere statement of booking clerk, Sahiwal (R. W. 2) regarding the early arrival of the petitioner with his bus at Sahiwal, on 28th February 1971 in accordance with the register maintained at the bus stand at Sahiwal could not claim an absolute value as to the correctness of the enteries made therein when admittedly the entries as to the scheduled arrivals were made before hand in the register without consulting the relevant duties way Bills or the travelling duties book in this behalf. It is an admitted fact that these important documents were not at all looked into in the domestic enquiry despite the same being the only relevant document to be regarded as the proof of the alleged dereliction of duty on the part of the petitioner. So the petitioner was clearly prejudiced in his defence in the departmental enquiry while holding him guilty in this connection without consulting the relevant record which could then be readily available to the Management.
18. As to the second part of the alleged insubordination on the part of the petitioner that he did not comply with the order of the Deputy Traffic Manager to take his bus immediately onward from Sahiwal and deliberately rendering his bus unserviceable, there is nothing in the statements of the witnesses examined in the domestic enquiry to be read as evidence against him. According to the statement of the Deputy Traffic Manager who reported against the petitioner he was told by the latter that his bus had gone out of order. He did not at all state anywhere in his statement in the domestic enquiry that the bus was deliberately rendered out of order by the petitioner. The second witness examined in the enquiry by the prosecution is Mr. Iqbal Akhtar incharge Sub-office Sahiwal.
19. He clearly stated that the petitioner on his arrival at-Sahiwal had passed his bus at the bridge outside the bus stand. On being asked by the Deputy Traffic Manager as to why he had done so, the petitioner had replied that his bus had become pushs-tarted (dhikka start) and therefore the bus was stationed by him out of the bus stand. This witness too did not state that the petitioner deliberately did anything with the bus to make it out of order. It is to be noted that the petitioner can hold responsible by the enquiry officer for intentionally rendering the bus servicele3s without any such statement against him on the record before him. This factor further prejudices the petitioner in his defence. But the matter does not rest here. According to the case of the petitioner the bus driven by him on date 28th February 1971 had gone out of order in normal course and the repair charges incurred by him were duly recovered by him from the respondent-Management on the basis of a receipt showing the payment of charges to the mechanic concerned and that despite his written request to the enquiry officer to call for the said receipt from the office concerned to be placed as evidence of the enquiry, no action was taken. The original application dated 12th March 1971 submitted by the petitioner in this behalf to the enquiry Officer is Exh. P-5 and forms part of the enquiry proceedings. But the relevant receipt was not placed in evidence nor there is any evidence to the effect that the said receipt was not genuine or the payment of repair charges was not made by the Management by virtue of that receipt.
20. The upshot of the whole discussion is that the contents of the charge--s-sheet and the evidence recorded in the domestic enquiry did not make out any accusation worthy of being termed as wilful insubordination or disobe--dience or any wilful damage to or loss of the Management's property nor the petitioner was actually charged for habitual breach of law. Besides the charge of riotous or disorderly behaviour also not having been spelt out against him in the very charge-sheet or in the evidence put against him. What survives against the petitioner according to the evidence in the domestic enquiry is the allegation of undefined misbehaviour or insubordination spoken of him in general. This behaviour of the petitioner was put in more definite words by Mr. Amin-ud-Din Deputy Traffic Manager himself only in his statement before this Court recorded on 26 April 1975.
21. He stated that tae admonished the petitioner to realize his mistake of bringing his bus before time at Sahiwal and the petitioner had told him that "Jokerca kar to". No doubt any such rude talk to his superior Officer is quite undesireable and could be made actionable only for a minor penalty and not for major penalty of dismissal. Since a considerable period of over four years has elapsed since the dismissal of the petitioner, it would not be worth while to direct a fresh enquiry on a charge of a minor penalty which cannot be considered is awarding the back benefits to the petitioner. Under the circumstance discussed above the petition is accepted and the petitioner directed to be re- instated in service within period of 15 days with half of the back benefits to which he would have been entitled but for the order of his dismissal. The file may be consigned.