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Application No. 179 of 1984, decided on 21st October, 1985.

‑‑‑ Dismissal for misconduct‑‑Defence not disclosed by accused in earliest opportunity‑‑Has no force‑‑Bus Conductor charged for misappropriation because of non‑issuance of tickets to passengers‑‑Explanation that ticket-less passengers were friends and had not yet decided as to who would purchase tickets and meanwhile checking party raided‑‑Such explanation neither indicated in TT‑40 prepared on spot, nor contention that TT‑40 form was made under compulsion mentioned in reply to charge‑sheet‑‑Labour Court, in circumstances, not relying on such explanation.

(b) West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)‑‑

‑‑‑S.0.15 (4)‑‑Domestic enquiry‑‑Assistance of co‑worker to accused‑ Mandatory only if desired by accused‑‑No application made to Enquiry Officer for assistance of co‑ worker‑‑Objection as regards assistance by co‑worker at subsequent stage to attack findings of enquiry, held, not maintainable.

‑‑‑ Dismissal for misconduct‑‑Misappropriation‑‑Element of mens‑rea i.e. guilty mind regarding breach of trust is difficult to be presumed in absence of evidence to that effect‑‑Bus Conductor's case‑‑Ticketless passengers‑‑Explanation that tickets could not be issued before raid by checking party-‑No evidence of financial loss to establishment but mere mention that there was an attempt of fraud on part of accused‑‑No evidence that accused had used amount for personal use and had guilty mind‑‑Case in circumstances, held, that of attempted dishonesty not calling for punishment of dismissal‑‑Punishment converted to that of withholding of one increment with warning.

M. Ibrahim Khan for Applicant.

This is application, filed by Muhammad Khan against the Managing Director and the District Manager, Karachi Transport Corporation, for re‑instatement against the wrongful dismissal.

2. Applicant is a conductor employed in the Corporation. When he was on duty on the public vehicle, K.T.C. staff checked the bus and found that Muhammad Khan did not issue tickets to 18 passengers.

3. Muhammad Khan was proceeded for misconduct under the provisions of Standing Orders of misappropriation of the Government revenue and held guilty.

4. Muhammad Khan has come to the Labour Court and challenged the finding of the Enquiry Officer that enquiry was not fair. There was no evidence in support to base the finding. There was no evidence of the fraud of Rs.31.50. There was no assistance of the co‑worker during the proceedings of the enquiry.

5. Muhammad Khan has also the grievance that K.T.C. officials have fixed target of each trip from each and every conductor and if the target is not achieved it is recovered from the conductor or he incurrs displeasure of the management.

< [if supportLists]>6. Respondent K.T.C. has filed written statement. Their first contention is that notice of grievance is not given to the corporation under section 25‑A before coming to the Labour Court.

7. Second contention is that applicant conductor committed an act of dishonesty by misappropriation of Rs.31.50 and did not issue tickets A to 18 passengers. 8. Third contention is that enquiry was fairly conducted. He was held guilty of the charge of misconduct. He was given the notice of second show cause and was dismissed from service.

(1) Muhammad Khan has been accused of misconduct that on the relevant day he was conductor of Karachi Transport Corporation Passenger Bus and the checking squad made the surprise raid and found him guilty of misconduct that he did not issue tickets to 18 passengers.

(2) The case of the management was that he was travelling from Quaidabad to Steel Mills during that fare stage when the checking squad checked the vehicle it was found that the bus conductor did not issue tickets to 18 passengers.

(3) The Enquiry Officer considered the evidence of Ahmed Khan Inspector and Mr. Ali Akbar Inspector. Muhammad Khan did not produce any defence in the enquiry. The Enquiry Officer after discussing the evidence came to the conclusion that Muhammad Khan was guilty of misconduct and his explanation to the charge‑sheet. that he was issuing tickets but by that time the checking party arrived and found that passengers had no tickets, was not accepted.

(4) Muhammad Khan also has cross‑examined the witnesses Ali Akbar and Ahmed Khan in the enquiry proceedings at considerable length.

(5) In para. 7 of the petition Muhammad Khan has repeated the same defence which I quote: He states "that the passengers were loaded at wireless gate stop, Malir Colony, Karachi and in the meanwhile the squad raided the bus "He again refers this statement that:

"There were 18 passengers who were all friends and it was not decided by them that who would purchase the tickets."

(6) From this defence it appears that Muhammad Khan has only this defence that he was issuing the tickets but because of the passengers indecision, the tickets were not issued, by the time the checking party arrived and found him dishonest in the dealings.

(7) The Court has gone throgh record and finding and has referred Annexure 'C' in particular which is the explanation to the charge‑sheet. There is no indication in Annexure 'C' to show that he has raised the similar defence in the reply to the charge‑sheet that because it was the indecision of the passengers and, therefore, he failed to issue tickets.

(8) Secondly if he has any defence to raise, he has produced no evidence by leading defence evidence to convince the Enquiry Officer about this aspect.

(9) Thirdly he has not shown such defence, taking in the notice of grievance.

(10) Fourthly if the respondent defence was true that he had the first opportunity to explain in TT‑40 report which is prepared on spot, which is the printed form supplied to the checking squad where there is also column for the conductor to explain regarding his defence. This defence is also silent in TT‑40 report.

(11) So taking all these aspects of the defence, the Enquiry Officer, who is the judge of the fact and against whom, there is no complaint of partiality or partisan attitude with the management, the Court fully agrees with the finding and has no reason to interfere.

(12) Applicant has also raised another aspect which is raised nowhere before the Enquiry Officer except through cross‑examination to show that TT‑40 report was obtained by compulsion and he had not signed it. In other words he has given the impression that this was the forged signature. The Court has examined the specimen of his signatures in the Court and referred to his signatures on the documents and characteristics of the letters and found no variation but similarity in the sequence of the words, letters. However, it can be said that if there is slight variation in the word (D) on TT‑40 report it is natural that this signature is obtained during the movement of the vehicle. There is nothing in the evidence also to show through defence evidence that this signature was obtained by fraud or his reply to the charge is B disclosed at the earliest opportunity. His objection, therefore, has no force.

(13) Third submission he has made that assistance of the co‑worker was not provided. Indeed it is mandatory that assistance of co‑worker be given to the worker if he desires. But it also depends if the applicant desires the assistance. The word 'desire', is used in Standing Order 15 which is the procedure laid down in subsection (4). There is no application on the record of the Enquiry Officer to show that C Muhammad Khan before the proceedings were conducted made application to the Enquiry Officer to, provide him worker of his choice to defend the proceedings. The objection, therefore, raised now at this stage is not maintainable.

(14) Fourth submission of the respondent is that the notice of grievance was not served on the respondent, there is no defect in the grievance notice. It is supported by the registered postal receipt. The objection has no force.

(15) Regarding question of dismissal, this Court has also considered this legal aspect, whether the dismissal is justified in the circumstances as to the appropriate punishment. Standing Order 15 no doubt has provided that dishonesty is also one of the misconduct, like fraud which is the serious misconduct.

(16) But in the peculiar facts of the case, the Court has examined the charge. The only allegation is that he did not issue tickets and the defence as led was that he was issuing the tickets but due to indecision of the passengers, he could not issue tickets, by the time the checking squad arrived. The Enquiry Officer also in his evidence in the Court has stated that the department has not suffered financially but it was an attempt of fraud on the part of conductor. It appears that the loss of the revenue has not occurred nor there is evidence to this effect that the amount was converted to the personal use of the conductor as to make out the case of misappropriation. The element of mens rea i.e. guilty mind regarding the breach of trust is difficult to be presumed unless there was evidence to that effect that he had used the amount for his own personal use and, therefore, he had a guilty mind. Non‑issuance of tickets, if the explanation was not found plausible, the Court will hold that this was a case to attempt dishonesty to call for a lesser punishment and, therefore, the Court finds the punishment appropriate of the withholding of increment for one year with further advise that no such complaint be heard in future. ,

Application is allowed to that extent.

A. E. Order accordingly.

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