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Application No. 164 of 1984, decided on 5th February, 1985.

‑‑‑Dismissal for misconduct‑‑Karachi Transport Corporation employee‑ Delegation of Powers providing dismissal authority in District Manager‑ Secretary acting as District Manager in addition to his own duties, held, was not competent to pass dismissal order of Bus Conductor

1968, P L C 382 ref.

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

‑‑‑S.O. 15(4)‑‑West Pakistan Employees' Social Security Ordinance (X of 1965)‑‑Dismissal for misconduct during treatment under Social Security Scheme‑‑Notice for dismissal not barred but dismissal order during such period was invalid.

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

‑‑‑S.O.15(4)‑‑Dismissal for misconduct‑‑Accused to be informed of particular alleged misconduct‑‑Failure to mention particular charge and under what clause of S.O. 15 accused charged for‑‑Defect‑‑But not so serious to vitiate proceedings‑‑Charge has to be seen from facts.

‑‑‑ Domestic enquiry‑‑Bus conductor alleged to have realised fare without issuance of tickets‑‑Ticketless passengers confronted with accused during raid‑‑Non‑production of such passengers in enquiry proceedings, in circumstances, held, would not render enquiry as defective and evidence of Reporter could be relied.

This is application by Allah Bux, under section 25‑A of the I.R.O., 1969, against the Secretary, Karachi Transport, and District Manager, Karachi Transport Corporation, for re‑instatement and back benefits.

2. Applicant claims to be worker and employed as a conductor, in the K.T.C. Mehran Depot. According to the applicant, his bus No. 047 was checked by the checking staff, and the report was made against him, which, he has challenged as illegal, claiming innocence. The ground he has taken, in his petition, is that, checking party did not take statement of any passenger, and his dismissal, while under medical treatment, was also illegal for want of personal hearing. He has also contended, that, District Manager was his employer, and the Secretary had no powers to dismiss him.

3. Respondent Karachi Transport Corporation has contended, that, the applicant has not served that notice of grievance on the Secretary, Karachi Transport Corporation. Applicant's bus was checked on 1‑12‑1983, by the checking party, at Asif Market, and 37 passengers were found, travelling without tickets, from whom the applicant had already realised the fare. When the passengers were confronted with the conductor the passengers also confirmed, that, they have paid the fare, but they were not issued the tickets. Thereafter, the checking party obtained 37 unpunched tickets and made the report.

4. Regarding sickness, it is contended that, the applicant was served with the show‑cause notice, for further defence, and the personal hearing. He himself undertook, on the show cause notice, of 18‑7‑1984, that, he will appear before the District Manager, on 22‑7‑1984. On 19‑7‑1984, he came in the office and informed the office establishment, that, he will appear before the respondents on 23‑7‑1984. But, when he was called, he went away. Thereafter, the ex parte decision was taken. Respondent has also contended, that, the Secretary of the Corporation, was deputed to look after the duties of the District Manager, in addition to his own duties, and he dismissed the applicant from service.

REASONS:

5. In this case, Mr. Allah Bux, conductor of Karachi Transport Corporation, has challenged his dismissal order, on various grounds, namely, the enquiry was not conducted according to law. Secretary was not competent to dismiss him, when he was not the District Manager in official capacity, to terminate or appoint. Thirdly, if he was under treatment on the social security card, the dismissal was illegal. Finally, the conductor has shown mala fide, on the part of the dismissing authority, that, show cause was issued on 27‑3‑1984, but, he was dismissed from service on 23‑8‑1984, after 5 months.

6. Respondent has produced the delegation of powers, Mr. Siraj has contended on behalf of the petitioner, that, even if the K.T.C. has produced the delegation of powers, through Mr. Abdul Hameed, who claims to be respondent, without disclosing, in what capacity he is appearing, by stating in his Affidavit, the delegation of powers is not signed by the authority, whether this document is admissible. Respondent has examined Mr. Abdul Hameed, who has given the facts of the case, and Mr. Jahangir Abdullah, who is Secretary of the K.T.C., who has signed the termination order, in the position as District Manager. In this connection, they have also produced the office order, signed by the Managing Director, to show, that, Mr. Jahangir was officiating as acting District Manager, Mehran Depot, at the time, of passing the dismissal order, and was performing the duties of the District Manager, in addition to his own duties. This letter has also been commented, that, unless the powers are specified, of appointment or termination, to the acting District Manager, the dismissal cannot be sustained. But, Mr. Siraj has even disputed the competency of the Secretary, to pass such orders of dismissal, despite the fact, that, the Managing Director had full powers.

7. In the delegation of powers, which has been referred, I find, that, clause, (11) refers to the heading: "making of temporary or semi permanent appointments or promotions". In this context, Managing Director has been given powers of appointment in grades 17 and 18, with the approval of the Board of Director. Clause (b) says, that, if there is any approval of change of cadre of employee, the Managing Director has full powers. Then clause (c) refers, of officiating/internal arrangement of promotion. It has been shown, that, the Managing Director has full powers. Then there is heading "dismissal from service of the corporation, which ordinarily disqualifies from future appointment". Managing Director has been given full powers, upto the grade 18.

8. This delegation of powers shows, that, punishments, major punishments, removals, dismissals, charge‑sheets, have been specified, that, in what cases, the particular officer exercises his powers. Managing Director has been given full powers, except in the case of permanent or temporary appointments, or promotions with the approval. Similarly, Managing Director has been given the powers of dismissing any person, from the service of the corporation, despite the fact, that, he may not be immediate boss of the establishment, working under him, but, as higher authority. Similarly, District Managers have been given full powers, in respect of all below grade 10, under his control.

9. So, with this power, which has been shown, as delegation‑ of the administrative powers, that, in what extent of powers, the authority will use, these rules have been shown by the respondent, arguing the case from this point of view, that District Manager was competent to pass dismissal order and, therefore, there was no bar for Mr. Jahangir, Secretary, who was officiating as District Manager, to pass the dismissal order. Mr. Siraj Ahmed has also referred the decision of 1968 P L C 382, which is the case of Muhammad Rafiq v. Road Transport Corporation. In this case, it was held, that, if the powers are exerciseable by the District Manager, it cannot be exercised by the Additional District Manager. The question now is, whether the Additional District Manager, or the acting District Manager, has any difference. The respondent may contend, that, Acting District Manager is in fact the District Manager, by virtue of powers, vested on him. The Additional District Manager, though is the official functionary, but, works in addition to the functions of the District Manager, who has no power of appointment or dismissal, because the person who is the District Manager, is the only appointing authority and dismissal authority; by virtue of his position, laid down in the delegation of powers. It is true, that, in the delegation of powers, there is no mention of acting District Manager. But, the powers of delegation, if gives the authority to the Managing Director, to make officiating, internal arrangements of promotions, as per clause (c), he has full powers, to make officiating appointments, and, then there is also the change of cadre, for example, from Secretary to District Manager. Managing Director has also possessed full powers.

In this particular case, the question is, whether the Managing Director was competent to do so, and the official order, has specified the powers, that, District Manager, in addition to his duties, will perform these particular functions, or simply the functions, which, otherwise the District Manager has to perform, besides, his appointment and termination or dismissal powers. The delegation of powers, the 'copy of which has been produced, also is a guidance, that, for every head, for example, punishments, casual leaves, the rule‑making power has separately defined the powers. So, the effect of this office order, is the main point, in issue, that, even if the Managing Director has the power of making officiating appointments, or making changes of cadre, whether he had to specify the powers of dismissal or appointments, to the Secretary, or, whether there was authorisation, expressly, to issue dismissal order, for this particular case. The Court is oaf the view, that the Managing Director though may have the power to make officiating appointments, but, there is no express authorisation in the office order, that, in addition to duty, the acting District Manager will also exercise the powers of appointment and dismissal, which is extraordinary power.

10. The objection of Mr. Siraj Ahmed, regarding admissibility of the delegation of powers, is not accepted. If the delegation of powers is relied on, in an Affidavit, it shows, that, delegation of powers, are the authentic powers, otherwise, respondent Abdul Hameed involves the risk of perjury.

11. The second point is, whether the show cause was given at the time, when Mr. Allah Bux was in hospital. Mr. Siraj Ahmed has referred to Social Security Ordinance, rule 72. It provides, that, no employer shall dismiss, discharge or reduce, or otherwise, punish an employee, during the period, in which the employee is in receipt of sickness benefit. Clause (2) also provides, notice of dismissal, or reduction, or discharge, given, shall be valid or operative. In other words, there is no bar to issue notice, but, there is bar that, if particular person is under treatment, the dismissal order may not be issued, till recovery. In other words, the personal hearing has been made as condition, pre‑requisite. Mr. Siraj Ahmed has referred to three slips, Exh. R/1, R/2 and R/3, to show, that, on 25‑8‑1984, 5‑8‑1984 and 20‑3‑1984, Mr. Allah Bux was in treatment, under social security.

12 In Affidavit, Mr. Abdul Hameed has stated, that, the applicant appeared before the respondent, but, he could not convince them, that for further defence, and, therefore, he was dismissed. It appears, that, the social security cards were not examined by the authority, at that time, where the jurisdiction of the authority was controlled by the provisions of Social Security Ordinance. Mr. Allah Bux in para. 10 of his affidavit, has made statement on oath, that, information of sickness was given to them, but the respondent had not taken any notice. They have explained this position further, in the cross‑examination of Mr. Abdul Hameed, where they have stated, that, District Manager gave notice‑for personal hearing. Accused did not appear. Ex parte decision was taken. There was no application or telegram or any intimation, that, he was in hospital. This also contradicts the version that, he appeared and was given the personal hearing, by Mr. Abdul Hameed. In cross‑examination, he has stated, that, he did not appear and ex parte decision was taken.

13. Finally, there is question, which is more important, is of the factual aspect, whether he was guilty of the charge of misappropriation, or even to say, temporary misappropriation.

14. In the first place, whenever the charge‑sheet is given under the provisions of Standing Order 15, the appointing authority, or whoever is the authority competent to issue the charge‑sheet, must mention, under what clause, he is accused of but, there is no mention. Of course, this defect does not vitiate the proceedings, because the charge is to be seen, from the facts. Secondly, on the facts, it is contended, that, the applicant's bus was checked and 37 passengers were found, travelling without tickets, from whom the applicant had realised the fare. When the passengers were confronted to the applicant, they said, that, they had paid the fare, but they were not issued the tickets. What explanation he has given in TT‑40 report, which is prepared by the reporter, in the column of TT‑40 report, that, the proceedings of checking party, are arbitrary and he is innocent.

15. In the statement, recorded, before the enquiry officer, his statement was recorded, where, he has stated, that, when he was going from Malir Halt, small children of school were travelling in the bus; it was very difficult to control them. Some passengers came from Model Colony and asked for tickets of 75 paisas, he asked them, to pay 15 paisas more, besides, he had no 75 paisas tickets, at that time. He informed the inspector, frankly, that, he has not issued tickets to the children, but, the inspector did not take any notice.

16. With this statement, he closed his side, in the enquiry, without leading further defence. In the earlier explanation, he has stated, that, he was all the time asking the passengers, in the bus, to take the tickets, but, none came forward. From both these statements, it appears, that, no such explanation is given in TT‑40 report, that, school children were travelling; it was difficult for him to control them, or there is no tickets of 75 paisas. TT‑40 report is the document, which gives the opportunity to the accused, on the spot, to explain his position, so that, it may be verified, whether, what the conductor has said, is true. TT‑40 report further has shown, that, reporter has given the description, of what it happened, and, this report also reveals that, the passengers were also confronted to the conductor, but, the accused has not made any comment of this nature, in TT‑40 report whether the passengers were there, or were not there, or they were not confronted, he has signed the report, and given the explanations on various occasions.

17. Mr. Siraj Ahmed has contended, that, the statement of passengers, were not recorded, and, therefore, their evidence has no evidentiary value, and, therefore, the charge is not sustainable.

18. The Court has examined this factual aspect, in light of the explanations, given by the conductor, and, in light of the case‑law, whether the passengers, travelling in the bus, come forward to given evidence, or, their non‑appearance as witnesses, in the Court, renders the proceedings of enquiry, as defective.

19. Regarding explanation of the accused, the Court is of the view, that, the explanation of the accused was not plausible. His two different statements, i.e., reply to the charge‑sheet, and the statement, recorded before the enquiry officer, are contradictory, in point of fact. Th4 very fact, that, passengers have not been examined, in the first place TT‑40 report, prepared by the reporter, has shown the presence ‑o: the passengers, who were confronted. Therefore, it cannot be said that, the passengers were not there, or the accused has denied their presence. If the passengers would not have been confronted, the accused, would have given the explanation in the TT‑40 report, but, that is not in the report, except to plead simply innocence. In this connection, I may also refer to one decision of Punjab Appellate Tribunal, where also, the contention was, that, passengers were not examined and, therefore, the evidence should not be believed. His Lordship held, that, non‑recording of statements of the passengers, by the checker, is not fatal to the case of the respondent.

20. Reference is made to RI/‑29/83 Abid Husain v. Punjab Urban Transport Corporation.

21. This Court is also of the view, that, the presence of passengers in evidence, is not necessary, because, in the buses, passengers do not come forward to extend co‑operation, to the law enforcing agency, because, they feel, that, by coming to the Courts, they will be having no time. The question is of the quality of evidence of the reporter, whether the reporter's evidence should be believed If the circumstances show that, TT‑40 report has shown the column, intended for the purpose, that, if there was any defence for the accused, it should be disclosed, at the earliest opportunity, which has not been explained. Obviously, therefore, the evidence of the reporter, who is officer of the higher rank, above the conductor, should be accepted, unless there is evidence, to the effect, that, he has been hostile to him, due to previous background of enmity or other reason.

22. Sue, the Court is of the view, that, the charge of mis appropriation, or to say, that. loss to the Government revenue, was fully established, against the accused, of misconduct, that, he purposely did not issue tickets, and he had no idea, that, checking party will arrive and detect him, in this fraud.

23. Finally, the question is of the re‑instatement, or the dismissal, whether it be maintained There are two legal aspects, which the Court has discussed, namely, the incompetency of the acting District Manager, and the defective personal hearing, due to treatment of the accused, in hospital, at the relevant time. In that case, if the Labour Court has powers, under section 25‑A(4) of the I.R.O., to pass any order, which is just and proper in the circumstances, the proper course is, that, from the stage of personal hearing, the accused should be heard, and proper orders will be passed by the District Manager, who has the power of dismissal. Meanwhile, he is re‑instated. The orders by the District Manager, be passed within FIFTEEN DAYS from the date of this Decision, for the conductor, to know the result of his enquiry.

24. Application allowed, to that extent.

A. E.

Orders accordingly.

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