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Appeal No. KAR‑605 of 1982, heard on 15th January, 1985.

‑‑Misconduct ‑ Domestic enquiry ‑‑ Criminal trial‑Effect of acquittal in criminal trial‑Bus Driver driving bus with defective brakes instead of refusing to drive same in such condition and causing damage due to serious accident resulting also in death of a car driver‑Dismissed from service on basis of domestic enquiry Plea that accused acquitted by criminal Court hence should not have been‑ dismissed‑Driving bus, with defective brakes on busy road, held, itself act of gross negligence ‑and rashness‑Acquittal by criminal Court due to lack of proof for conviction, held, cannot be taken into consideration‑‑Order of Labour Court dismissing grievance petition maintained by Appellate Tribunal‑Industrial Relations Ordinance (XXIII of 1969), Ss. 25‑A & 38 (3).

Latif Saghar for Appellant.

Ghulam Hussain for Respondents.

Date of hearing: 15th January, 1985.

This appeal is directed against the impugned order passed by the Sind Labour Court No. III at Karachi on 18th November, 1982.

2. The appellant Muhammad Sarwar was a driver serving with the Karachi Transport Corporation and was driving Bus No. 2928 and on 28th November, 1981, be dropped the students at the Karachi University and was plying the empty bus back to the Depot when he met with an accident. He collided with two cars, one of which was badly damaged and caught fire. Its occupant, Dr. Azizur Rehman was burnt to death. The bus was badly damaged and caused a loss of Rs. 50,000 to the Karachi Transport Corporation. The appellant driver ran away from the spot and did not report for duty till 9th December, 1981. He was charge‑sheeted on 3rd December, 1981 for causing damage to the property of the Corporation and for continuous absent from duty. The appellant explained that at that time he was asked to take the bus back to the Depot he had reported to the Time‑keeper that its brakes were not serviceable.. However, he was asked to take the vehicle to the Model Depot without carrying passengers. He, therefore, drove the bus with its conductor, Muhammad Sadiq. He said that two cars came racing from the opposite direction and collided with the bus which could not be controlled due to defective brakes and steering wheel went free He further explained that he was suffered from bronchitis and, the refute he could not attend the duties for a long time. Departmental enquiry ended into his dismissal from service. A grievance notice was given to the respondent‑corporation.

3. I have heard the learned counsel for the appellant, Mr. Latif Sagbar and Mr. Ghulam Hussain, representative for the respondent management. Mr. Latif Sagbar attacked the domestic enquiry and has argued that the enquiry was lopsided and improper. The criminal case against the appellant ended in an acquittal and, therefore, he should be given a chance.

4. As regards the arguments that the appellant was not allowed assistance of coworker, it is on the record that he never asked for such an assistance. It is incorrect that he wanted assistance of a co-worker. A chance to cross‑examine the witnesses was given to the appellate but he did not cross‑examine the witnesses. As a matter of fact he himself wrote in his own handwriting that he did not want to cross‑examine the witnesses. However, he cross-examined one witness Muhammad Hassan and the cross‑examination was recorded. He produced one witness in defence and this was in his own handwriting The learned counsel raised a point that because the brakes of the bus were defective, he met with an accident and such a complaint was made to the Time keepers. This contention is irrelevant and if the brakes were not working, he should not have driven the bus. It was busy road, therefore, the appellant should have refused to drive the defective vehicle and this is itself gross negligence and a rashness. It was argued that Assistant Traffic Manager forced the driver to take out the bus. This plea was not taken in the grievance petition. However, it was not taken in his explanation Exh. A/2. This is a total lie on the part of the driver. The fact that he was acquitted by the Magistrate cannot be taken into consideration. There was no proof to convict the accused. So far the enquiry against the appellant is concerned, it was held properly and a fair chance was given to the‑appellant. It was found totally risky to engage the appellant as a bus driver as he was found negligent.

5. In the result, I find that this appeal has no force and it is accord ingly dismissed.

A. E.

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