This is an appeal under section .16 of the West Pakistan Industrial Disputes Ordinance, 1968 (hereinafter called the Ordinance), against an order of the learned Chairman of the 1st West Pakistan Industrial Court. Karachi, on an application under section 30 of the Industrial Disputes Ordinance, 1959. (herein--after called the repealed Ordinance). The impugned order was passed on 10th February 1969, whereby the learned Chairman of the Industrial Court granted permission to dismiss the appellant. The facts necessary for the disposal of this appeal are these.
2. The appellant was a Conductor. He was charge-sheeted for having rubbed out T. T. 2 Form, so as to change the larger amounts of fare into smaller amounts. There were in all four charges on this score against him, Mr. Ilyas was appointed as Enquiry Officer in respect of one of the charges. He found that the appellant was guilty of neglect of work. Mr. Sirajul Haq Qureshi, was appointed the Enquiry Officer in respect of the other three charges. He found that the appellant was guilty of the charges levelled against him.
3, Mr. Majeed, the learned Representative for the appellant, ' contended in the first place that the appellant could not be dismissed from service on the finding given by Mr. llyas. All that Mr. Ilyas said was that the appellant was guilty of neglect of work. The finding reads as under:- "In my opinion the Conductor is guilty of neglect of work, as the overwriting of Tickets Nos. 326813 to 326831; is not apparent. As regards Tickets Nos. 326855 to 326871, the intention of the Conductor was malicious, but he has not completed the commission of the offence."
4. The admitted position in law is that for mere neglect of, work, unless it was habitual, the appellant could not be dismissed from service. There is no finding that the appellant was habitualin neglect of his work. I would hold that no permission to dismiss the appellant could be granted on the finding arrived ad by Mr. Ilyas.
5. So far as the other three charges are concerned, the appellant denied to have committed any fraud, so as to change the larger amounts of fare realized by him into smaller ones. The Department had produced Mr. Zariful Hasan, who is Incharge of the Audit Department. He stated that while checking T. T. 2 No. 43864, it mss discoveredthat the Conductor had rubbed out certain numbers and re-written the same. He had changed those tickets from Landhi to Pipri. The fact is that those tickets were from some other place to different destinations. On the ether hand, the appellant stated before the Enquiry Officer that he had not altered the place in T. T.
2. In support of this, he showed the triplicate to the Enquiry Officer and stated that had he changed the places it would have been clear in the carbon copy, which he showed to the Enquiry Officer. The appellant seems to have suggested to the Enquiry Officer that had he rubbed out the place from which the tickets were issued in T. T. 2, it would have been apparent in the carbon copy, which he was showing to him. The carbon copy is not on the record of the case. It seems that the Enquiry Officer was apparently satisfied with what the appellant stated and did not take the triplicate copy of the T. T. 2 and put it on his record. In these circumstances, the conclusion of the t Enquiry Officer that the appellant bad rubbed out T. T. 2, see to be perverse.
6. The Department had produced Mr. Zariful Hassan only in respect of T. T. 2 No. 43864. So-far as the other two charges were concerned, no person from the Department was produced. I would hold that in the absence of any evidence from the Depart--ment, the finding of the Enquiry Officer in respect of the other two charges was bad in laws The Enquiry Officer could not base his finding on his own conjecture or surmise.
7. I would, for the reasons given above, hold that the finding of the Enquiry Officer in respect of the charge relating to T. T. 2, No. 43864, were perverse, inasmuch as the appellant had disproved the charge by producing the triplicate of T. T. 2, which apparently did not show that there were any marks of rubbing. The finding of the Enquiry Officer on the other two charges Unsupported by any evidence on behalf of the Department, was also perverse. In these circumstances, I would set aside the permission granted by the learned Chairman of the Industrial Court by his order dated 10th February 1969. I would order that the appellant be re-instated. So far as the question of back benefit is concerned, is the circumstances of the present case, I would order that the absence of the appellant be treated as leave without pay. Mr. Majeed, the learned Representative for the appellant, concedes that in the circumstances of the present case, the appellant would not be entitled to any back benefit.