This is an appeal against the order of the learned Chairman of the First West Pakistan Industrial Court, Karachi, dated 18 November 1969, whereby he granted permission to the respondent to dismiss the appellant from service on the ground of misconduct. The facts giving rise to the appeal, briefly put are these.
2. The bus of which the appellant was a Conductor, was checked on 17th December 1967, by Abdul Hadi and two others at, Qazi Wah near Ghotki. The Checking Party found that 26 passengers were travelling without tickets and that the appellant had realized fare from them. The enquiry started on 31st January 1968, and it concluded on 27th August 1968, when the Enquiry Officer submitted his report to the District Manager. The Enquiry Officer found the appellant guilty of misbehaviour and also of the charge that 26 persons were travelling without tickets. It is noteworthy that the Enquiry Officer did not state anything as to whether the appellant had realized fare from these ticketless passengers or not.
3. The learned Chairman of the Court came to the con--clusion that the enquiry was fair and impartial and that the appellant was guilty of misbehaviour and also of having realised fare from 26 passengers, who were travelling without tickets. Having come to that conclusion, he granted permission to dismiss-the appellant from service.
4. Mr. Majeed, the learned Representative for the appellant contended, in the first place, that T. T. 40, did not men0tion that the appellant had realized fare from 26 ticketless passengers. It, however, appears, after going through T. T. 40, that the fact that the appellant had realized fare from 26 persons is mentioned therein.th
5. It was very strenuously contended by Mr. Majeed, the learned Representative for the appellant, that there is a long delay when the enquiry started and the conclusion of the enquiry. The learned Representative submits that this long delay was due to the fact that after the appellant had submitted his explanation, the then District -Manager was satisfied with the explanation. It as only when that District Manager was transferred and another District Manager took over from him that the enquiry again started. It was submitted that this 'Court may draw an inference of malice as there was a delay of about 8 months between the start of the enquiry and the conclusion thereof.
There is not much force in this submission. If the appellant, wanted to make out a case of malice from the fact of a long delay, he should have taken this point before the learned Court. I have gone through his reply to the application under section 37 (2) of the West Pakistan Industrial Disputes Ordinance, 1968 (hereinafter called the repealed Ordinance), asking for permission to dismiss the appellant. There .is no reference to the long delay. All that is mentioned is that the enquiry - was a mock enquiry. At any rate, the Enquiry Officer was produced 'by the respondent before the learned Court. It was open to the appellant to have put a few questions to find out from the Enquiry, Officer as to the circumstances which led to the long delay in the conclusion of the enquiry.
6. It was contended by Mr. Majeed, the learned Represen--tative for the appellant, that Mr. Abdul Hadi, who was Station Superintendent and who headed the Checking Party and appeared as a witness before the Enquiry Officer, did not state that the appellant had realized fare from 26 passengers. Mr. Hadi stated before the Enquiry Officer about the misbehaviour of the appellant and also that 26 passengers were travelling without tickets. It is true that the only witness, who was produced by the respondent before the Enquiry Offiicer is Abdul Hadi. He kept silent as to whether the appellant had realized fare from 26 ticket less passengers or not. The charge-- sheet and the T.
T. 40, do mention the fact that the appellant had realized fare from 26 passengers. The question, however, is as to whether any offence under section 7 of the Road Transport Workers Ordinance, 1961 (hereinafter called the Workers Ordinance), is made out or not on the evidence of Mr. Abdul Hadi. I would hold that an offence under section 7 of the Workers Ordinance, is made out. Under section 7 (2)(h) of the Workers Ordinance an act subversive of discipline is misconduct. Failure to issue tickets to 26 persons may, in certain circumstances, amount to dishonesty in connection with the employer's business. If it was a case of failure to issue tickets only to one or two persons, the inference of A dishonesty may be difficult to draw. In the present case, they were, according to the prosecution case, as many as 26 persons travelling without tickets. The number of persons travelling without tickets is so large that it cannot be attributed to mere negligence in duty without any- ulterior motive, such as to realize the fare from these 26 passengers at the destination. At any rate, even misbehaviour is sufficient to make out a case of misconduct, so as to entitle the Management to dismiss the appellant from service.
7. Mr Abdul Hadi was produced before the learned Court. He stated before it that the appellant had realized fare from 26 passengers and had not issued tickets to there. His cross--examination reads as under :- "I filled up the T. T. 40 at the spot and it has been signed by Mr. Ghulam Hussain and Mr. Mumtaz Ahmed. I had given evidence before the Enquiry Officer."
8. There is not a word in the cross-examination of Mr. Abdul Hadi to suggest that the appellant had challenged the fact of having realized fare from 26 passengers. The application under section 37
(2) of the repealed Ordinance, also The conclusion that the appellant had realized fare from 26 passengers conclusion of the learned Court, therefore, that a prima facie case of misconduct had been made out, cannot be challenged.
9. Mr. Majeed, the learned Representative for the appellant, contended that one Mumtaz Ahmad, who formed the Checking Ply, was directed by the District Manager to appear before the Enquiry Officer. He did not appear before the Enquiry Officer. The suggestion is that if Mumtaz Ahmad had appeared before the Enquiry Officer, he would have not supported the case of the prosecution. I am afraid no such inference can be drawn from the fact that Mumtaz Ahmad was not produced before the Enquiry Officer. Mr. Abdul Hadi and the Enquiry Officer appeared before the learned Chairman of the Industrial Court. No attempt has been made by the appellant in the cross- examination of these two witnesses to find out as to why Mumtaz Ahmad did not appear before the Enquiry Officer.
10. Lastly, it was submitted that the enquiry wag not fair. As to whether the enquiry was fair or otherwise is a question of fact. There is nothing in the enquiry proceedings to suggest 'that the Enquiry Officer, Mr. Muhammad Murad, was not fair to the appellant. He allowed the appellant to cross-examine the prosecution witnesses and also to produce his own witnesses. It would appear from the Enquiry Report that he was very fair. He confined his finding to the deposition of Mr. Abdul Hadi and did not go beyond that in holding that the appellant had also realized fare from 26 passengers. Moreover, there is not a word in the short cross-examination of Mr. Muhammad Murad, the Enquiry Officer, to suggest that he was in any way biased against the appellant or acted under the influence of the District Manager in finding the appellant guilty of the charge oil misconduct.
11. For the reasons already given, I would uphold the order of the learned Chairman of the Industrial Court and dismiss the appeal.