In all these appeals common point arises for 0eterrnination. I propose to dispose of these appeals by a common order.
2. All the appeals are directed against the orders of the learned Chairman of the Labour Court (Central Zone), Lahore, in applications under section 31 of the Industrial Disputes Ordinance, 1959 (hereinafter called the Ordinance of 1959), or section 38 of the West Pakistan Industrial Disputes Ordinance, 1968 (hereinafter called the repealed Ordinance). .It may be mentioned that section 31 of the Ordinance of 1959, is equivalent to section 38 of the repealed Ordinance. The learned Court accepted the applications and ordered that the respondents be re-instated in service with full back benefits. The applications were allowed mainly on the ground that no second show-cause notice was given and in some cases no report of the Enquiry Officer was supplied to the respondents.
3. Mr. Naseer ul Hasan addressed me on behalf of the appellant. The points that arise for consideration - on his arguments are these:-
(1) that the respondent-workmen were not entitled to second show-cause notice, neither under the Rules framed by the Road Transport Corporation nor tinder the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (hereinafter called tile Standing Orders Ordinance);
(2) that where the second show-cause notice was given tothe respondents and they had been heard, failure on the partof the Management to I give , a copy of the report of theEnquiry Officer, would not amount to the failure of the principles of natural justice; and
(3) that at any rate, the respondents are not entitled to full back benefits from the date of their dismissal to the date of their re-instatement.
I would dispose of these contentions separately.
5. It is true that under the present Rules of the Road 'Transport Corporation and the Standing Orders Ordinance, no second show-cause notice is necessary. It would be sufficient requirement of law if a workman is informed as to what are the charges against him, that he was given an opportunity to be present at the time when the witnesses for the Department were examined against him and be is allowed to cross-examine the witnesses against him and produce his own witnesses and to say whatever he wants to say in the light of the evidence against him. That no second show-cause notice has been provided. either under the Road Transport. Corporation Rules or under the Standing Orders Ordinance, is due to the fact that the party accused is given a right of appeal and, thereafter a right to file a revision. The right of appear and revision contemplates that the party was given full opportunity to be heard by his superior authority in defence.
6. Mirza Nazir Ahmad Naz, for the respondents, contended that though the Road Transport Corporation Rules or the Standing Order Ordinance do not provide for a second show-cause notice, it had been the practice and usage of the Road Transport Corporation to give a second show-cause, notice against the proposed order to dismiss the workman. Mr. Naz submitted that this practice had been recognized by all the Industrial Courts in a number of cases. In this connection, lie referred to the case of Ghafoor Ahmad v. Government Transport Service, Hyderabad (1967 PLC 679), Mohammad Rafique v. Road Transport Corpora--tion, Lahore (1968 PLC 382) and in the same volume to page 427. In the last case, the learned Chairman of the Industrial Court observed as under:-- "From this evidence it can be safely concluded that issuing of such notices was a practice prevalent in the Road Transport Corporation till the Corporation, as stated by Ghafoor Mohammad, P. W. 2, issued office order that the workmen were not entitled to this notice. This was done in September 1960. The Standing Orders Ordinance came into force on the 3rd of February 1960, therefore, this concession of receiving a second show-cause notice before termination of services was available to the workmen of the Road Transport Corporation at the time when the Industrial and Commercial Employment (Standing Orders) Ordinance, 1960, came into force. It was withdrawn later on. There is no reason, why this course should have been adopted."
7. In another case reported in 1967 PLC 317 the learned Chairman observed as under "I have already said that in such cases there has been a practice in the G. T. S -to issue the second show-cause notice. This has not been done and, therefore, there has been violation of the Industrial and Commercial Employment. (Standing Orders) Ordinance, 1960 and the Road Transport Workers Ordinance, 1961, and the Rules made thereunder."
8. Under section 9 of the Standing Orders Ordinance, 1960, usage and award have been protected: Section 9 reads as under:- "Nothing in this Ordinance shall affect any law, custom, usage, award or agreement in force immediately before the promulgation of they Ordinance, in so far as such law, custom, usage, award or agreement ensures conditions of employment more favourable to workmen than those provided in the Standing Orders."
9. The Road Transport Corporation did not challenge the award given by the Industrial Courts that it was a practice and usage of the Road Transport Corporation to give a second, show-cause notice. I would, in these circumstances, hold that al second show-cause notice formed part of the conditions of employment of workmen of the Road Transport Corporation.
10. 'The next question for consideration is as to what is the effect where second show-cause notice had been given, but the worker was not furnished with a copy of the Enquiry Officer's Report. Mr. Naseerul Hasan, the learned Representative for the appellant, contended in the first place, that failure to give a copy of the Enquiry Officer's Report to the workmen does not amount to any breach of conditions of service. In the second place, the learned Representative contended that failure to give a copy of the Enquiry Officer's Report to the worker is a mere irregularity and, therefore, unless prejudice was caused to the worker, it could give no cause of action to the workmen.
11. The Standing Orders Ordinance or the Rules framed by the Road Transport Corporation do not impose any duty on the Road Transport Corporation to give a copy of the Enquiry Officer's Report to the workmen. The duty to furnish a workman with a copy of the Enquiry Officer's Report would depend upon the principles of natural justice. What these principles of natural justice are it is not possible to lay down with any exactness, for they had been variously defined in various cases. In this connection, it would be useful to make reference to the case The University of Dacca and another v. Zakir Ahmad (PLD 1965 SC 90). In that case reference was made to the observation of Tuker, L. J. It runs as under "the requirements of natural justice must depend on the circumstances of the case, the nature of the enquiry, the rules under which the Tribunal is acting, the subject-matter that is being dealt with, and so forth."
12. In the present case, as I have already held, it was incumbent on the Road Transport Corporation to give a second show-cause notice against the proposed punishment. The principle of natural justice would require that the worker must l know the contents of the Enquiry Officer's Report against, himself to enable him to defend himself properly. The workmen had appeared before the Enquiry Officer and pleaded innocence. They had cross-examined the prosecution witnesses in the light of their defence. In the absence of the Enquiry Officer's Report the workmen cannot know as to why their defence has not been accepted. It may be that had they known the contents of the Enquiry Report, they/may have been able to satisfy the Superior Officer in response to the second show-cause notice. Moreover, without Enquiry Officer's Report the right of appeal and right of revision would be a mere farce. How can any body defend himself before the Appellate or Revisional Authority without knowing as to what had been found against him. It was observed in the case of University of Dacca by Hamoodur Rahman, J., as he then was, as under:- "that in all proceedings by whomsoever held, whether judicial or administrative, the principles of natural justice have to be observed if the proceedings might result in consequences affecting `the person or property or other right of the parties concerned.' This rule applies even though there may, be no positive words in the statute or legal document whereby the power is vested to take such proceedings, for in such cases to this requirement is to be implied into it as the minimum requirement of fairness."
13, I would hold, in the circumstances I have already mentioned, that it was the duty of the authority concerned to supply a copy of the Enquiry Officer's Report to enable the workman to meet the second show-cause notice and. to prosecute the appeal and the revision, as the case may be.
14. The point that now requires consideration is as to whether the Labour Court in all cases on re- instatement of workmen should order that they should be entitled to all back benefits from the date of their dismissal to the date of reinstate--ment. It would depend upon the circumstances and facts of each case as to whether a workman is entitled to full back benefits or not. So far as section 38 of the repealed Ordinance is concerned, which is equivalent to section 31 of the Ordinance of 1959, it does not lay down any guide-line. All that it states is that the complaint should be adjudicated as if it were an industrial dispute in respect of which an application had been made under subsection (8) of section 6 of the repealed Ordinance. In other words, the complaint should be dealt with as if it was an industrial dispute. The power of the Court, while disposing of an industrial dispute, is not defined. It is a very wide one. The Court, however, is expected to act as a Judicial Court, equitably, fairly and in keeping with the principles of natural justice. The Court on violation of section 37 of the repealed Ordinance is not bound to order re-instatement of as workman. It can also, instead of ordering the re-instatement in Suitable circumstances, award compensation only. In this connection, reference may be made to the observation of Rahman, J., in Glaxo Laboratories (Pakistan) Limited's case (1962 PLC 362). His Lordship observed as under:-- "It would, however, depend upon the circumstances of each case whether the relief of re- instatement or compensation for wrongful discharge from service would be the appropriate to remedy. No hard and fast rule can be laid down in this connection."
15. It is clear that where a workman has been wrongfully dismissed from service, he. is not as a matter of right entitled to re-instatement. ' He may under certain circumstances be granted only compensation. The next question is as to whether in the circumstances relating to most of the appeals before me, the respondents were entitled to back benefits. In most of the appeals before me, the respondents were held to have been wrongfully dismissed from service on the ground that they were not given second show-cause notice against the proposed punishment and in some cases they were also not given a copy of the Enquiry Officer's Report. The respondents who have been re-instated because of the failure on the part of the Department to comply with certain provisions of the Rule, as a principle of natural justice, the Department can after complying with the defect either retain the workmen or dismiss them or pass such other order in respect of punishment, as the circumstances of the case may require. In this connection, reference may be made to the Steel Corporation of Pakistan Limited's case (1968 SCMR 355). Cornelius, C. J. observed as under:- "If the Industrial Court finds fault with tire enquiry or the procedure thereof, its duty would be while refusing permission to dismiss, to indicate where the fault or error lay, which vitiated the enquiry.
In these cases, the holding of the domestic enquiry exparte, was apparently unjustified, and in refusing permission to dismiss, the Industrial Court should have directed that the enquiry be held afresh after due opportunity to appear and defend had been given to the respondents."
16. Rahman, J., in Glaxo Laboratories (Pakistan) Limited's case also observed as under:- "If a direction is given for re-instatement of such a workman on account of want of due enquiry preceding his dismissal, it does not destroy the right of the Company after re-instatement, to proceed against him, in accordance with the mode permitted by law."
17. In the light of these observations of the Supreme Court, it can be safely concluded that in eases where the respondents have been re-instated on the ground of want of proper enquiry, the Department can remove those defects in the enquiry and can proceed to consider the case of the workmen from the stage that the defect took place: If the Department, finds a workman guilty even after removing the defect, it would be very unfair to burden the Department to pay all the wages and the benefits that may have accrued to the workman from the date that he was dismissed from service. The rights of a workman are by no means improved by misconduct of which he may be guilty and for which he may be liable to be dismissed by the Department after due enquiry. A workman who was guilty of fraud or misappropriation cannot be allowed wages from the date that he was dismissed from service to the date of his re-instatement only because the enquiry was defective because of want of second show-cause notice or because no copy of the Report of the Enquiry Officer was given to the workman. If the workman is able to satisfy the relevant authority that he was not guilty, after the defect in the enquiry has been removed, he would be entitled to back wages and other benefits from the date that he was dismissed from service till the date of his re-instatement. In the appeals before me it is not disputed that the Road Transport Corporation will have to pay several lacs of rupees by way of back benefits to the respondents if the order is maintained in respect of payment of back benefits to the respondents. If the back benefits are paid on mere re-instatement and the respondents are found to be guilty after the defects in ,the enquiry are removed, the Road Transport Corporation cannot recover the money from the respondents.
18. I would now proceed to consider the appeals in which the respondents have been ordered to be re-instated on the grounds any of defect in the enquiry. These are Appeals Nos. LHR-6/70, 53/70, 82/70, 83/70, 92/70 to 97/70, 99/70, to 105/70. In view of the authorities of the Supreme Court, already cited, the Department would be entitled to remove the defects in the enquiry and proceed against the respondents from the stage that the defect in enquiry occurred. If the respondents or any one of them are found to be guilty after holding the enquiry in accordance with law from the stage that the defect occurred, they will not be entitled to back benefits. On the other hand, if the respondents or any one of them are found to be not guilty, they would be entitled to all the back benefits from the date that they were dismissed up to the date of their re-instatement. In this connection, it would be important to observe that while the Road Transport Corporation should not be made to pay several lacs of rupees to the respondents, who are found ultimately to have committed misconduct, the respondents should be compensated for wrongful dismissal without complying with the essentials of fair enquiry. If the respondents had not come to the Court, the order against them would not have been set aside. The respondents must be paid costs of prosecuting their applications before the Labour Courts and the appeal before this Court. They have been represented by Mi. Nazir Ahmad Naz before both the Courts. I would award a sum of Rs.
150,00 in each appeal to be paid to the respondent or to his Representative, within 10 days from the order of this Court.
19. There now remain Cross-Appeals Nos. LHR-125 of 1970 and LHR-136 of 1970. The learned Court set aside the order of the District Manager, Lahore Omnibus Service, whereby Riaz-ur---Rehman, Time Keeper, was dismissed from service on the ground that he had accepted a bribe of Rs. 5.00 from a Conductor and was caught red-handed. The learned Court ordered that a copy of the Enquiry Officer's Report be supplied to Riaz-ur-Rahman and Riaz-ur-Rehman to submit his reply. He was also allowed to inspect the file, specially the statements recorded against him. Riaz-ur-Rehman was directed to send his reply to show-cause notice of the District Manager. The District Manager was directed to pass a detailed and appropriate order on the merit of the case against Riaz-ur Rehman. The District Manager was cautioned that his order should not be a mere reproduction of the Departmental Enquiry Officer's Report, but should contain an adequate statement of the facts of the case, the evidence on the record, the respective contentions of both parties and the reasons on which the final decision is based.
20. On behalf of Riaz-ur-Rehman, it was very strenuously contended by Mr. Naz that the learned Court has failed to give any decision as to whether the West Pakistan Road Transport Board Service Rules, 1959 (hereinafter called the Rules of 1959), were applicable to Riaz-ur Rehman. I think the learned Court rightly refrained from giving any decision on the issue as to whether the Rules of 1959, applied to Riaz-ur-Rehman or not. Mere allegation in the application under section 38 of the repealed Ordinance would not take the place of evidence. Riaz-ur-Rehman did not state specifically that the Rules of 1959 applied to hire. All that he stated in this connection is reproduced as under:- , "I was given 1/3rd of my pay plus allowance as Suspension Allowance, whereas ordinary workmen, who are not governed by the Service Rules are given 1/4th of their emoluments as suspension allowance."
21. To this statement, a counter-question was put Riaz-ur---Rehman in cross-examination. He replied as under:-- "I was suspended for a period of seven days. I am not aware, whether a person governed by the Service Rules is suspended for an indefinite period and a workman cannot be suspended for more than seven days."
22. On the other hand, a perusal of the Rules of 1959, would show that the said Rules do not apply to persons to whom the Standing Orders Ordinance is applicable. Riaz-ur-Rehman did not state that he was not a workman. . If he is a workman, Standing Orders Ordinance would be applicable to him. It is only the Road Transport Board which has a right to apply these Rules to any person or class of persons. The only evidence that has been produced in support of the allegation that the Rules of 1959 applied to workers is a letter of the Traffic Manager, addressed to the District Manager; Government Transport Service, Rawalpindi, dated 30th January 1965. Under; this letter the District Manager was informed that the employees who were given benefit of doubt were governed by Rule 25.1 of the Rules of 1959. It is difficult to hold on the basis of this solitary evidence, which I accepted in the interest of justice, that the Rules of 1959 are applicable to even those workers to whom the Standing Orders Ordinance is applicable. It was not produced before the learned Labour Court. The letter relied upon cannot be construed so as to hold that it has reference to those workers also to whom Standing Orders Ordinance applied. On the evidence before me and specially as Riaz-ur-Rehman himself did not specifically state that the Rules of 1959 were applicable to him, I, am unable to hold that the said Rules applied to Riaz-ur-Rehman.
23. Riaz-ur-Rehman would be entitled to a second show--cause notice and also a copy of the Enquiry Officer's Report. If he wants to inspect any document in the Enquiry Officer's filer he should be afforded opportunity by the Road Transport Corporation to do so. I may, while disposing of the appeal of Riaz-ur-Rehman, observe that the direction of the learned Court directing the respondent to act in a particular way while disposing of the reply of Riaz-ur-Rehman is uncalled for. The respondent is expected to consider the reply of Riaz-it-Rehman in a way that would disclose that he had applied his mind to the reply submitted by Riaz-ur-Rehman. The respondent cannot be directed to act as a Court of Law.
24. The learned Court while setting aside the order of dismissal of Riaz-ur-Rehman omitted to mention that he should be re-instated. In this case the learned Court has rightly not said anything about the back benefits of Riaz-ur-Rehman.This will depend on the result of the order passed by the respondent. If Riaz-ur-Rehman is re-instated, he would be entitled to all back benefits. On the other hand, if he is dismissed from service, he will not be entitled to any back benefit. Riaz-ur- Rehman, however, will get Rs. 150.00 as costs within 10 days of the order of this Court.
25. In Appeal No. LHR-105 of 1970, the learned Court observed as under:- "There is no doubt in my mind that the Enquiry Officer based his adverse findings regarding the complainant upon conjectures only, not upon any evidence, and instead of discussing the facts of the case in detail and recording his own opinion as to how a charge of negligence and dishonesty had been established against the complainant S. M. Riaz, the Enquiry Officer condemned the complainant without any definite reason apparent from the relevant record."
26. I have gone through the Enquiry Officer's Report. I do not agree with the conclusion of the learned Court that the decision bf the Enquiry Officer is based on no evidence, but on conjecture.
Circumstantial evidence is also a piece of evidence and sometimes a very strong one. It appears from the report that 19 passengers were ticket less. The fare due from these persons was Rs. 3.12. It is a question of inference depending upon the circumstances of each case as to what was the intention of the Conductor for not realizing fare from 19 persons. The conclusion that his intention was to realize fare when they got down at the destination cannot be said to be baseless. In this connection, however, reference may be made to Sui Gas Transmission Company's case (1960 PLC 80) It was observed by the Supreme Court of Pakistan in that case that "the Court was not Competent to go into the merit of the allegations if charges were held proved by an officer of the Company. The Court's jurisdiction extended to see that the enquiry was fair and the employee was given opportunity to explain the charges against him, I uphold the conclusion of the learned Court that the respondent should have been given a second show-cause notice. I would further add that if the respondent had not been given a, copy of the Enquiry Officer's Report, he may be given within a reasonable time. The question of full back benefits" will depend upon the result of the finding of the District Manager.
27.In Appeal No. LHR-137 of 1970, all that I propose to observe is that the learned Court rightly did not allow any back benefits on the re-instatement of the respondent. The question of back benefits will depend on the finding of the relevant authority after complying with the defects pointed out by the learned Court.
28.To sum up my finding, the respondents who have been ordered full back benefits will not be entitled to receive the same; this will depend upon the result of the ultimate finding of the relevant authorities, who have a right to- dismiss or hear the appeal and revision. All the respondents will be entitled to receive Rs. 150.00 from the Road Transport Corporation as costs of the proceedings before the Labour Court and the Tribunal within 10 days of the order of this Court. All the respondents will be re-instated. The defect in the enquiry pointed out by the, learned Court as to the second shoe-cause notice and the failure try give a copy of the Enquiry Officer's Report must be complied with expeditiously. In case, the defect in the enquiry is not made good within three weeks of this order, the respondents or any one of them in whose case the defect is not made good within the period mentioned above, would be taken to have been exonerated by the Departmental and they will be entitled to full back benefits.