The Punjab Road Transport Board is aggrieved by an order of the Punjab Labour Court dated 10- 4.1975 affirming on appeal an order of the Junior Labour Court setting aside the dismissal of the respondent No. 1 and directing his re-instatement with full back benefits.
2. The respondent Fazal Elahi was a bus Conductor. There were two separate inquiries against him.
In one pertaining to 16-3-73 the charge was that from four lady passengers he had realized 0 40 as fare but bad failed to issue them tickets, though at the time of checking they were getting down from the bus. From four others be had neither realized the fare nor issued the tickets in an attempt to realize it just before they got down so as to misappropriate it. On another occasion on 22-7-73 he was found to be carrying ten passengers without tickets and was having Rs. 2.11 as his personal cash that is Rs. 1.11 in excess of permissible limit. Inquiries were separately held into the charges and be was found guilty on the first charge-sheet, not guilty with respect to ten lady passengers but guilty on the charge of possessing personal cash in excess. He was dismissed from service on 1-10-
74. He took his grievance to the Junior Labour Court alleging that he was being victimized for his union activities, that the inquiry officer was biased against him, that he was not allowed fair opportunity to defend himself and that the dismissal order was wrongful.
3. The Junior Labour Court recorded the following reasons for upsetting the findings of the domestic enquiry: "Both inquiry reports marked Exh. B. 2 and Exh. B. F/1 are on the file and I have gone through these very carefully. These reports are defective for many cogent reasons. Briefly, none of the passengers appeared as a witness before the inquiry officer. It is again interesting to note that statements of the passengers travelling without tickets were not recorded at the time of raids by the checking party."
On appeal the Labour Court found that none of the specific allegations of the employee put forward in defence was sustainable, but proceeded to determine the appeal with the following observations :- "The real point to be determined in this case is whether there is violation of principle of natural justice or whether on the material the finding of the management is baseless or perverse."
As regards the charges which were held proved in the domestic enquiry applying this principle of review the Labour Court held as follows "There is no doubt that he had Rs. 2.11 with him but there is no evidence on record that this amount was obtained by selling the tickets. Without such an evidence the inquiry officer was not competent to give any finding that the amount belonged to the employer. My view is that the finding of the inquiry officer that the amount of Rs. 1.11 should be presumed to be of the employer is baseless because no evidence was produced before him that it belonged to the employer. Without such an evidence no finding can be given against the employee. As the finding of the enquiry officer is perverse, therefore, the employee could not be dismissed on the basis of this report."
Similarly with respect to the second charge, it was held that "the mere fact that the four lady passengers were found without tickets is not sufficient to hold that the employee was guilty. It was stated by the employee that the bus was under stage. The word "under stage" appears to denote that the Conductor must be given allowance of certain distance in order to issue tickets to certain passengers. It is not shown as to what distance was travelled by the lady passengers who were without tickets. My conclusion is that the finding of the Inquiry Officer is not based on any material and so the Labour Court must interfere". And so the Labour Courts did interfere.
4. The first objection of the learned counsel fur the petitioner is that there is material misreading of evidence. The Labour Court omitted to take note of the fact that one of the charges relatable to checking held on 16-3-73 was that four lady-passengers were in the act of getting down from the bus, had no tickets and in respect of these passengers it was alleged that the fare had been realized and the ticket not issued. On this charge the sdefence that the vehicle was under stage was not taken and could not be taken. This fact is borne out from the record. Besides, it has also been pointed out that the Labour Court took into consideration another charge relatable to checking of passengers on 22-6- 73 and found it not proved. It was a charge which was held by the inquiry officer also to be not proved and the employer had not taken it into account in punishing the employee. Therefore, the learned counsel is correct in saying that the Labour Court assumed a defence in respect of charge relating to events of 16-3-73 which was not taken and could not be taken in the circumstances of the case, and also took into consideration charge on which the employee had not been dealt with.
5. The learned counsel for the petitioner next urged that the finding of fact recorded in domestic inquiry is immune from interference, and if at all its reasonableness and viability was to be a judged by the Labour Courts, they should have evaluated it not against abstract principles of criminal or civil law but in the context and with the knowledge of the rules and regulations within the framework of which the employee was rsequired to work and the extent of responsibility shared by him. So far as the first part of the argument is concerned reliance has been placed on Muhammad Shamim v. Pak Tobacco Ltd. (1) (1) PLJ 1975 SC 24 where the contention was that the Labour Court should have examined the question of fact involved in the case viz. whether the workman had committed theft or not. The Supreme Court held "the Labour Court is only concerned with the question whether the action taken against the petitioner was in accordance with law. The question whether the petitioner committed the theft was a question of fact and could only be enquired into by the Inquiry Office. To illustrate his point the learned counsel pointed out that an excess of Rs. 1.11 in cash was found on the person of the employee yet the Labour Court adopted the abstract principle of criminal law that not only the excess or unaccounted for money should be found but there must be clear and positive evidence that it was illegally or dishonestly obtained In applying this the Labour Court failed to take note of the rules applicable to the establishment which on such excess being found made the employee responsible for breach of rule and additionally placed the onus on him to show and prove that he had honestly acquired it, as is the law with respect tos public servants in certain situations in offences under Anti-Corruption Laws.
6. I would not go to the extent of holding that findings of fact recorded in a domestic inquiry enjoy absolute immunity in proceedings before the Labour Courts. The Supreme Court by holding that the Labour Court is only concerned with the question whether the action taken against a workman is "in accordance with law" has indicated the scope of such a review. It has been succinctly dealt with in Regima v. Deputy Industrial Injuries Commissioner (2) in the following words :- (2) 1965 W L R 89 "These technical rules of evidence, however, form no part of the rules of natural justice. The requirement that a person exercising quail---judicial functions must base his decision on evidence means no more than it must be based upon material which tends logically to show the existence or non-existence of facts relevant to the issue to be determined, or to show the likelihood or unlikelihood of the occurrence of some future event the occurrence of which would be relevant. It means that he must not spin a coin or consult ans astrologer, but he may take into account any material which, as a matter of reason, has some probative value in the sense mentioned above. If it is capable of having any probative value, the weight to be attached to it is a matter for the person to whom Parliament has entrusted the responsibility of deciding the issue."
7. The first finding of fact recorded in domestic inquiry was that the employee was found in possession of Rs. 1 11 in excess of the permissible amount which he could carry while on duty. . This finding was based on admission of the employee himself. The Inquiry Officer inferred that this amount was carried by the employee in breach of rules and must be assumed to have been dishonestly obtained in circumstances amounting to misappropriation of employer's money. The Labour Court set aside this inference and in doing so paid no heed to the framework of law within which the employee was supposed to work. At the relevant time when this event of misconduct is alleged the instructions of the Traffic Manager, Road Transport Corporation dated 2-12-1965, were in the field where under bus conductors were to have Re. 1 on their person and not more and the instsructions also contained the warning "if the above staff is found carrying money of their own in excess of .the amount authorised above, they will not only be liable for disciplinary action, but the excess so found, should be confiscated and deposited in the day's earning. The learned counsel for the respondent has produced another instruction of a subsequent date namely 28th of May 1975 whereby the permissible limit for the Conductor was raised to Rs.
2. These instructions being of subsequent date will not apply to the situation. All the same, the gravity with which the employer has been looking vothe situation will be apparent even from the following warning contained in it :- "If during the course of checking by the checking staff including the Magisterial staff and other checkings, the private cash held by them is found in excess of prescribed limit, the excess amount will be considered as Board's revenue earned through illegal means. Such excess amount would be forfeited in favour of the Board and the incumbent would be liable to be prosecuted."
In tshe face of these instructions there was no defence available to the employee, that it was his personal property nor was it the liability of the employer to further satisfy the Inquiry Officer, or the Labour Court for that matter, that it had been illegally earned. If the rules of the Establish--ment or of conduct are violated the person violating the rules is under duty to explain it and not the person who has brought to notice the violation. In the case it hand the violation itself was not in dispute, only the consequences of it.
8. The other ground adopted by the Labour Court is equally alien t the whole procedure adopted by the employer in managing its affairs and in regulating inquiry into misconduct. Immediately oil detection of an irregularity of this nature a T. 40 Form is prepared at the spot in the presence of the defaulter. The allegations are drawn up in writing with details of the circumstances. When the passengers are getting down from the bus the bus is not under stage, and if the Court attempts to look for evidence on this point, it would not find it for it would be unnecessary.
9. Tshe factual part of a domestic inquiry by the employer is open to scrutiny by the Labour Courts only to the limited extent indicated anti if they at all undertake such a re-appraisal they should be well advised to inform themselves of the rules, instructions and the working methods of the Establishment in order to understand the full implications and the " background in which such findings of fact have been recorded. To apply the abstract principles or standards of criminal prosecution or of a civil litigation to such proceedings in the absence of such knowledge would 'be doing violence to the whole infra-structure of the labour laws.
10. Hence the petition is allowed and the impugned orders of the Junior Labour Court and that of the Labour Court are declared to be without lawful authority and of no legal effect. There will be no order as to costs. s