DECISION ' Allah Ditta, the petitioner was employed as conductor in the Government Transport Service, Lyalipur. He was dismissed from service on 22-11-1976 for misconduct. He filed this petition under section 25-A of the Industrial Relations Ordinance, 1969 for re-instatement with back benefits.
2. On 15.2-76, the petitioner was on duty at Bus No, 9627. At 12-00 noon the bus was booked for Sahiwal. One Muhammad Ismail commenced his journey from Lyallpur. He had purchased cloth worth Rs, 3,500 from Lyallpur. It was made into a bundle. It was placed by him on the roof of the bus. At Tandlianwala Muhammad Ismail alighted from the bus. Unfortunately, he busied himself at some shop for purchasing cigarette etc. And the bus pushed on towards Sahiwal, He could not continue his journey. His bundle of cloth was taken away by some unknown passenger. The same bus reached hack to Lyallpur at 9-00 p.m. Muhammad Ismail first went to Sahiwal, came to know that the bus had gone back to Lyallpur, so he also reached Lyallpur in the same evening. He contacted Allah Ditta, the petitioner. No clue of the stolen bundle of cloth was found out.
Muhammad Ismail made a report to the District Manager, Government Transport Service, Lyallpar.
About the loss of luggage. Rana Bashir Ahmed was deputed to make an inquiry. On 10-3-1976 who gave his finding to the effect that the petitioner was responsible for the loss of luggage according to the instructions of the Board. On this report a charge-sheet was framed against the petitioner on 19-3-1976. The charges against him were that he caused loss to the passenger and that he was guilty of neglect of duty. In his explanation the petitioner pleaded not guilty. An inquiry was instituted against him. The Inquiry Officer recorded the statement of Muhammad Ismail, the passenger who had lost the luggage. The finding of the Inquiry Officer was that the petitioner was guilty of both the charges. After the second show-cause notice the petitioner was dismissed.
3. The order of dismissal was challenged on two grounds, firstly, that the charge-sheet was barred by time and secondly, that the finding of the Inquiry Officer was perverse.
4. The procedure for holding domestic inquiry is given in clause 4 of Standing Order No,
15. Under this provision it is mandatory for the employer to give a written notice of the alleged misconduct to the worker within one month of the date of such misconduct or of the date of which the alleged misconduct comes to the notice of the employer. In the present case, the occurrence took place on 15-2-76 and on the same date it was brought to the notice of the District Manager that a passenger had lost his luggage. The last date to serve the charge-sheet to the petitioner was 15- 3.76. In the present case the charge-sheet was framed on 19-3-76 and must have been served on the petitioner at a later date. As the charge-sheet was served on him after one month of the alleged misconduct, therefore, the entire proceedings based on this charge sheet are vitiated penalty can be imposed on the petitioner on account of this defect.
5. On merits the facts are undisputed. The passenger commenced the journey at Lyallpur with a bundle of cloth. Is a proved fact that the same passenger alighted at Tandlianwala while his luggage remained at the roof of the bus. The petitioner says that the bus was overloaded and there were 60 passengers in it at that time. He further said that he called on the passenger to come into the bus. Whatever the case may be there is nothing on record to prove that the petitioner had any knowledge that a passenger had been dropped at Tandlianwala and that the same passenger had any luggage at the roof. There is no evidence on these points. The only evidence recorded by the Inquiry Officer is the statement of Muhammad Ismail. He was not in a position to say that the petitioner had miss appropriated the luggage or that he was aware of the fact that the luggage belonged to any passenger who was dropped at Tandlianwala. The record of the octroi post of Sahiwal shows that one Muhammad Khan had paid octroi fee for the same bundle of cloth and there is a strong presumption that the luggage bad been stolen by that passenger. In any case it is not proved that the petitioner was guilty of neglect of duty. It is a hard fact that he had no hand in the theft of the luggage. If it can be stretched and the stretching will be too long that the petitioner was guilty of neglect of duty, a single instance of neglect does not amount to misconduct. It is habitual neglect of duty which is misconduct under clause 3(1) of the Standing Order No,
15. The facts do not prove any misconduct against the petitioner. The finding of the Inquiry Officer is, therefore, perverse. On the above grounds the order of dismissal Is illegal.
6. The respondent raised a legal objection to the effect that no grievance notice was given in this can The case is governed under subsection (6) o section 25-A of the Industrial Relations Ordinance, 1969, therefore, grievance notice was necessary.
7. For the above reasons the petition is accepted and the respondent is directed to re-instate the petitioner with back benefit.