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Application No. 32 of 1985, decided on 14th April, 1986.

(a) West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)---

‑‑S.O 15(4)‑‑Dismissal for misconduct‑‑‑Domestic enquiry‑‑Personal hearing by employer i.e. authority competent to dismiss‑‑ Proceeding not complete without personal hearing‑‑Employee of Karachi Transport Corporation‑‑Powers of dismissal vesting in District Manager‑‑district Manager in Office at particular time competent to give personal tearing and contention that only that District Manager who issued charge‑sheet though transferred could give personal hearing, was repelled.

‑‑S. 25‑A‑‑Quantum of punishment‑‑Bus conductor's case‑‑Charge that fare realised from 3 passengers and tickets not issued to 16 passengers‑ Charge proved‑‑‑Labour Court taking notice of fact that target achievement of revenue adopted by practice‑‑Employer giving specified target‑‑Such fact, held, relevant for quantum of punishment‑‑Penalty of withholding one increment, in circumstances, held, will meet ends of justice instead of dismissal from service.

Ch. Rashid Ahmed and M. Latif Saghar for Applicant.

Gul Muhammad Soomro, Representative for Respondent.

This application is filed by Muhammad Matloob son of Muhammad Hussain against District Manager, Karachi Transport Corporation, Karachi, under section 25‑A, Industrial Relations Ordinance, 1969 praying for setting aside the order of dismissal passed by the District Manager and to direct reinstatement with full back benefits. Applicant claims to be permanent workman as conductor. He was dismissed from service an 12th January, 1985 by the Karachi Transport Corporation.

2. The order of dismissal was challenged before this Court in Application No. 32 of 1985. The Court made certain observations and applicant again was dismissed from the job.

3. Applicant has the grievance that he was not given personal hearing in compliance of the directions from the Court in the order, dated 16‑9‑1985.

4. Applicant was not given the duty during period from 16‑9‑1985 to 28‑10‑1985 and was not physically reinstated.

5. The respondent has filed written statement that applicant has no cause of action to re‑open the case as the case has already been decided on merits.

6. However, the respondent has contended that the respondent in compliance with the order of this Court gave the personal hearing and the applicant could not satisfy the respondent, of his innocence and was dismissed.

7. This matter came before this Court that Muhammad Matloob had challenged the dismissal on the allegations of misconduct. The allegation was that checking party made surprise raid and found 16 passengers had no tickets. Conductor had realised the fare from 3 passengers but had not issued tickets to 16 passengers.

8. This matter was contested by both the parties in this Labour Court. The Court after hearing both the sides was of the view that charge of misconduct has been proved against the applicant who was the conductor of the Karachi Transport Corporation Bus. But observed that enquiry was not complete in respect of personal hearing. The flaw in the enquiry was that it was the contention of the respondent officials that Muhammad Matloob did not appear in spite of the service of show‑cause for personal hearing and, therefore, the decision was given by the District Manager The Court supported the contention of the officials of respondent, regarding service of show‑cause notice. But the Court was of the view that in order to reach the just decision by the District Manager the wisdom required that applicant against, whom there was charge of misconduct leading to dismissal, he should be physically present for the purpose of personal audience. If he could satisfy the appointing authority, it was the option of the authority to take any view what it finds proper in the circumstances. .

9. It is, thereafter, the matter has come again and the objection taken by the respondent officials 'that once the case is decided on merits no application lies against the order of the District Manager.

10. In the same order of this Court, the Court has also pointed out the types of punishment provided, observing that if there is misconduct of fraud or attempt to commit fraud or dishonesty or there is no lost, of Government money, it was the option of the appointing authority to consider the quantum of punishment what it finds necessary and fit in the circumstances.

11. The question now arises whether the application under section 25‑A lies against this order which has again dismissed the applicant after personal hearing. It has not come on the record of this Court that appeal is filed against the order of this Court, but as the present position stands if the personal hearing was directed by the Labour Court where the Labour Court has the powers under subsection (4) of section 25‑A to pass order what is just and proper in the circumstances as the extraordinary jurisdiction. The Labour Court was of the view at the time of passing the order that though misconduct was proved, but the enquiry as understood within the meaning of section 15 could only be complete when all the stages of the enquiry were completed to become the final order. If the applicant has not gone in appeal against this order, he can go against the final order of this Court.

12. Now presently the question is of personal hearing to see whether the personal hearing was given by the District Manager, whether the directions of the Labour Court were given sanctity in the true spirit of the provisions of Standing Order as to what the Court meant by the direction or it was simply the formality to go through by the officials of the respondent Transport Corporation who is simply looking to the observations of this Court regarding misconduct, passed the order without applying its mind.

13. Mr. Ali Ahmed Siddiqui has been examined as .a District Manager on behalf of the Karachi Transport Corporation and stated that he gave the personal hearing to Muhammad Matloob and found that Mr. Matloob could not satisfy the District Manager on the alleged misconduct, he passed the order of dismissal.

14. The counsel for the applicant seems to have proceeded on these arguments that Mr. Ali Ahmed Siddiqui had no personal knowledge of the case. He was not officer to have issued charge‑sheet. The previous case which was filed against the respondent relating to Mehran Depot the proceedings, therefore, were not in accordance with law.

15. Mr. Siddiqui has explained in his evidence which Mr. Soomro respondent's counsel has argued that the order which was passed was passed by the District Manager who is not only the appointing authority but also had the powers of dismissal and termination. If according to Soomro Mr. Ali Ahmed Siddiqui was working in the Malir Depot and same Matloob was posted in his depot he was competent to accord dismissal after giving personal hearing through the correspondence which was placed before him.

16. The Court has examined the evidence of Ali Ahmed Siddiqui and found that he has referred to the record of the employee when he was posted in Malir Depot.

17. The contention of applicant's counsel that Ali Ahmed Siddiqui was not competent authority to appoint him and competent to dismiss him.

18. The Court is of the view that the contention is based on misconception of law. Every District Manager is appointing authority. If District Manager is transferred and another person transferred in his place, he stands in the same position of an employer within the definition of an employer to exercise the similar functions. All that is required that he has to refer to the correspondence and pass order what is just and proper. There is no provision in law that the same Manager if has given the charge‑sheet should also give the personal hearing, if transferred. Charge‑sheet is simply the allegation. The misconduct if it is proved, personal hearing given by any District Manager, in the Court's view fulfil all the requirements of enquiry challengeable before the Labour Court. There is no force in the contention of the applicant that the same District Manager who has been transferred should give the personal hearing.

19. Regarding punishment whether punishment of dismissal is severe in this case. This fact has come to the notice of the Labour Court that target achievement regarding the collection of revenue was the practice by the K.T.C. which is assumed customary practice. The Court is not convince that any such circular was issued by the K. T. C. to give rise to the such practice which neither has the force of law nor is legal. But if the K.T.C. officials had adopted this course which Court had noticed in number of K. T. C. cases, it has relevancy on the factum of the punishment. If the employee did not account for the sale of tickets but gave proceeds of target which the K. T. C. officials demanded from him, the punishment or dismissal on that account is not warranted. But as the Court has not recognized this practice of target in the absence of the written circular, but this fact brought to the notice of the Court in cases of K. T. C., this will meet the requirement of justice that his increment be withheld for one year with warning that in future he must get the written order from the officials, otherwise it is illegal act if it is found that he did not issue tickets but followed the practice of target limit which may be even in excess.

Application is allowed partly to that extent.

A. E. Application partly allowed.

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