These are 3 appeals by the District Manager, S. R. T. C., Mirpur--khas, against 3 separate orders of the learned VIth Sind Labour Court at Hyderabad, whereby it ordered the reinstatment of the respondents in the 3 appeals with back benefits. The 3 appeals have been heard together as they involved some common points and they are being -disposed of by a common order.
2. The Respondent in Appeal No. 391/78 is Muhammad Irshad Conductor. On 4th February 1977, his Bus No. KCB-1607, was checked by a Checking Party at Hatiari and it was found that there were 14 passengers in the Bus who were travelling without tickets. As it appeared that Conductor Irshad had received fare from them, but instead of issuing tickets to them, bad pocketed the amount, he was charge-sheeted and in consequence of a domestic enquiry, his services were terminated by order dated 12th April, 1977. He thereupon sub--mitted an application for re-instatment and the grant of back benefits `to the Labour Court under section 25-A of the Industrial Relations Ordinance, 1969, after serving grievance notice upon the appellant. The learned Lower Court took the view that the explanation of the respon--dent to the effect that the passengers in question had got up on the roof of the Bus without his knowledge could be true and had not been Controverted. He further held that though a second show-cause notice had been served upon this Respondent, he had not been given a fair person 1 hearing in respect of this second show-cause notice nor a fair opportunity to make an affective reply to it. On these grounds, the learned Labour Court allowed the application of the respondent and ordered his re-instatement with back benefits.
3. Respondent Muhammad Bashir in Appeal No. 392/78 is also a Conductor. He was charge- sheeted for having unauthorisedly driven Bus No. 1264 on 17th June 1976, at Khipro Bus Stand and in the process he lost control over the Bus and dashed against an electric pole damaging the Bus. In the domestic enquiry, he was found guilty of misconduct and consequently, his services were terminated by an order dated 31st July, 1976. He preferred an appeal to the competent autho--rity against his dismissal from service but as it was rejected, he filed an application under section 25-A of the Industrial Relations Ordinance, 1969, for his re-instatement on 30th June, 1977. The learned Labour Court preferred as against the statement of Yard Master Abdul Hameed, the statements of Conductor Bashir and his witness, Jalal, that the accident occurred because the Driver of the Bus attempted to remove a stone from the rear wheel of the Bus while the engine of the Bus was running and in consequence thereof the Bus started rolling backward, whereupon the Respondent Bashir at once jumped into the Bus but was unable to prevent the Bus from striking the electric pole. The learned Lower Court also was of the view that no opportunity of personal hearing after service of a second show-cause notice was given to this respondent. On these 2 grounds, he accepted the application of the respondent and ordered his re-instatment with back benefits.
4. Rab Dino Conductor is the respondent in Appeal No. 393/78. His Bus, bearing No. 1602, was checked on 18th May 1977, by Inspector Ghulam Tahir and others at Jhuddo and it is alleged that there were 6 passengers without tickets travelling in that Bus, out of whom the respondent Rab Dino had realized fare from 5 passengers without issuing tickets to them, while the sixth passenger, who was a Policeman, had refused to pay fare, but ultimately the Checking Party compelled him to pay the fare. This respondent was also charge-sheeted for the above act of misconduct and after a domestic enquiry, which was held on 22nd August 1977, his services were terminated with effect from 4th July, 1977. As he felt aggrieved by this order, he served a grievance notice upon the appellant and thereafter, on 24th October 1977, he filed an application under section 25-A of the Industrial Relations Ordinance, 1969, before the Labour Court. The Labour Court allowed the a2pli-- cation on 2 grounds namely, that it had not been established that there were any ticketless travellers in the Bus of the respondent apart from the Policeman who had refused to pay the fare, and secondly, that the respondent had been given no fair and proper opportunity of personal hearing after service of second show-cause notice. Against this decision, the appellant has come up in appeal.
5. I have heard Mr. Azmatullah Khan, who appeared for the appellant in all the 3 appeals, and Mr. Abdul Majeed, who represented the 3 respondents.
6. I would first take up the issue whether the 3 respondents had been given a fair hearing before the competent authority after service of a second show-cause notice. Now as regards Appeal No. 391/78, a perusal of the record of the domestic enquiry shows that the second show-cause notice is dated 8th April 1977, it was served upon respon--dent Irshad on 9th April 1977, and he was given personal hearing before the competent authority on 12th April, 1977. He was thus given 3 clear days between the service of the second show-cause notice and the personal hearing before the competent authority. He has himself noted on the show-cause notice that he was given a personal hearing and has appended the date of 12th April 1977, under his signature. There is nothing in the note which is recorded on the second show-cause notice to indicate that he was not given fair personal hearing by the competent authority. His contention, therefore, that he was not given a fair personal hearing is clearly incorrect and is an afterthought.
7. As regards respondent Muhammad Bashir in Appeal No. 392/78, he was served with a second show-cause notice on 10th July 1976, and on 13th July 1976, he was given a personal hearing by the District Manager. However, he refused to record a note on the second show--cause notice in respect of this personal hearing. I have no reason to disbelieve the endorsement on the Notice that respondent Bashir had refused to sign the Note that he had been given a personal hearing by the District Manager, specially in view of the fact that even at the time of the service of the second show-cause notice, this respondent first affixed his signature thereon and thereafter tried to cross it out. In this case also I take the view that a fair opportunity of personal hearing before the District Manager was given to him after the service of a second show--sause notice.
8. In Appeal No. 393/78, the second show-cause notice is dated 2nd June 1977. It was served on the Respondent Rab Dino on 4th July. 1977 and it appears that a personal hearing was also given to him on that date. In his case at least it would have been proper to have given him more time to study the enquiry papers and the report of the Enquiry Officer before the right of personal hearing was given to him. This is all the more so when it is borne in mind that the second show-cause notice is dated 2nd June, 1977, which was served upon this respondent on 4 July, 1977, i. e. More than a month later. It is not known why after waiting for over a month to serve the second show- cause notice upon the respondent, the authorities were so keen to rush through the proceedings to punish him.
9. As regards the merits of the case in the 3 Appeals, I -find that in Appeal No. 393/78, even in the initial report, which was prepared by Inspector Ghulam Tahir, respondent Rab Dino had taken the plea that there was only one passenger who was without ticket, because he had refused to pay fare either for himself or for his luggage, and that he was forced to issue 5 more tickets though there were no other ticketless passengers. This report indicates that at the very outset this respon-- dent had taken the plea that the allegation against him that he had collected the fare from 5 passengers and pocketed the same was unfound--ed. This plea receives support from the fact that admittedly none of the passengers from whom this respondent is said to have taken the fare without issuing the tickets was examined by Inspector Ghulam Tahir nor any one else was examined on this point. Furthermore, if this respondent had accepted fare from these 5 passengers without issuing tickets to them, he should have had excess cash with himself, but strangely enough his cash was not checked. Respondent Rab Dino's ver--sion about a passenger with luggage refusing to pay the fare on the ground that the was a policeman finds support from the statement of Policeman Mohammad Alam, Belt No. 335, who was examined by the respondent in his defence in the domestic enquiry. This Policeman has admitted that he was not prepared to pay the fare for himself or for his luggage as he was travelling upon transfer but subsequently the Checking Party had recovered the fare from him. The Policeman would not have made this statement, which is damaging to his own interest, unless it was correct. I, therefore, agree with the view taken by the learned Labour Court that as regards the Policeman passenger, he had refused to pay the fare and that Conductor Rab Dino could not be penalized therefore. As regards the allegation of there being other 5 passengers from whom Conductor Rab Dino had recovered the fare but had not issued the tickets to them, there is no tangible evidence in support thereof. The Labour Court under subsection
(5) of section 25-A of the Industrial Relations Ordinance, 1969, is competent and in fact is required to go into the merits of the case and the facts. If any authorities are required in support of this view, reference may be made to the decisions reported in PLD 1978 SC 207 and PLD 1979 Kar. 212.
10. Coming next to Appeal No. 392/78, a perusal of the record of the domestic enquiry shows that Respondent Bashir, who was a Conductor and was not authorized to drive the Bus, was found by the Yard Master, Abdul Hameed, driving the Bus, and when he attempted to negotiate a turn near Hanif Hotel, he lost control over the vehicle with the result that the vehicle dashed against the electric pole damaging the Bus. Respon--dent Muhammad Bashir in his own statement had admitted that he was driving the Bus and that the Bus had dashed against the electric pole. His explanation that the Driver of the vehicle was attempting to remove a stone under the rear wheel of the vehicle while the engine was running and in the process the vehicle started rolling backwards whereupon he jumped into the driver's seat and attempted to drive the Bus forward but as he could not drive properly, the Bus struck an electric pole cannot be accept in view of the clear evidence of Yard Master Abdul Hameed. If there had been any truth in the version of Respondent Mohammad Bashir, he should have examined the Driver of the vehicle, which he failed to do. In anyth case, if the vehicle was slipping downwards by reason of the fact that the driver had removed a stone from its rear wheel while its engine was running, all that it was necessary for respondent Bashir to do was to apply the breaks. In driving the vehicle and in fact coming on the road, as admitted by him, in his statement in the domestic enquiry, the Conductor had clearly committed misconduct as he was not authoriz--ed to drive the Bus. I, therefore, find myself unable to sustain the decision of the learned Labour Court in respect of this respondent.
11. There remains the case of Respondent Mohammad Irshad in Appeal No. 391/78. The allegation against him was to the effect that there were 14 passengers in his Bus from whom he had received the fare but had not issued tickets to them. It is true that the cash of this respondent was not checked nor was any witness examined to show that he had actually received the fare from any of the said 14 passengers. However, the fact that such a large number of passengers, who had boarded the Bus at Bhitshah, were found without tickets at Matiari, which is at a consider--able distance from Bhitshah, suggests the inference that the respondent must have received the fare from them, since it was his specific duty to receive fare from every passenger boarding the Bus and to issue tickets to them. I also find that this Respondent at different times has given different and contradictory explanations for his failure to issue the tickets to the 14 passengers. 1n the initial report prepared by Inspector Zafarullah, who headed the Checking Party, be has stated that because of rush on account of Mela and the facts that the 14 passengers were sit--ting on the roof of the Bus, that it was night time and the back light of the Bus was not functioning, he was not aware of the fact that they were sitting on the roof of the Bus and hence he could not take fare from them or issue tickets to them. In his reply to the charge-sheet, how--ever, he took up some what different plea and stated that some students and passengers had entered his Bus but refused to pay fare and consequent--ly he pushed them out of the Bus but when the Bus started moving, they went to the rear and climbed on the stairs of the Bus and went to the roof of the Bus.
In his affidavit before the learned Labour Court, he again took an altogether different position and contended that there was no ticketless passenger in his Bus and a completely false report has been made against him. This shows that respondent Irshad has been taking up different pleas at different times obviously because his explanations did not even satisfy him and were not true. The evidence of Inspector Zafarullah thus should not have been lightly discarded by the learned Labour Court only on conjectures and artificial grounds.
12. For the reasons stated by me above, I would dismiss with costs Appeal No. 393/78 against respondent Rab Dino and would allow Appeal Nos. 391/78 and 392/78 against respondents Mohammad Irshad and Mohammad Bashir.