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10. The management witness namely the Checking Inspector had stated that all the ten passengers found in the bus had been issued with tickets, but, out of the said ten tickets namely one for Rs. 1.25 and another for Re. 1.00 had not been entered in the invoice. The Checking Inspector had also admitted that there was no correction or overwriting in the invoice.

11. The workman deposed that even though he had issued tickets to all the ten passengers found in the bus, he could not enter two tickets in the invoice because he was tired, suffering from light chest pain and the light in the bus was dim. But, the workman was not cross-examined by the management with regard to his above explanation. That apart, the driver who was examined on behalf of the workman had deposed that the light in the bus was very dim and that even though he had already reported the same in the log book a week back, the same was not repaired. No suggestion was put forth by the Management disputing the above statement of the driver.

15. Elaborating his contention, the learned senior counsel contends that the impugned order of dismissal of the workman amounts to unfair labour practice as per Section. 2(ra) read with clause 5(g) of Chapter I of V Schedule of the Act relating to unfair labour practice.

16. Mr.K. Chandu the learned senior counsel for the workman invited my attention to the admission of the management witness namely the Checking Inspector that the workman had issued tickets to all the ten passengers boarded in the bus, which includes the two tickets namely Rs.1.25 and Re. 1.00, which were not entered in the invoice and that there was no evidence for shortage of any amount collected for the said tickets. On the other hand, the management never cross examined either the workman who deposed that he could not enter the said two tickets in the invoice as he was tired, suffering from chest painand the light inside the bus was very dim or the driver who was examined to the effect that the light inside the bus was very dim and the same was not repaired inspite of his report in the log book for a week.

18. The learned senior counsel also invited my attention to rule 14 (ab) and (ah) of the Standing Orders, which reads as follows:

"(ab) - Failure to issue tickets.
(ah) - Wilful falsification, defacement or destruction of any records of the industrial establishment whether maintained by himself or by other employees:"

19. Inviting my attention to the deposition of the management witness namely the Checking Inspector that the workman had issued tickets to all the passengers in the bus found at the lime of checking and that there was no correction or overwriting in the invoice, Mr.K. Chandru, learned senior counsel contends that the conduct of the workman cannot be termed as misconduct under rule 14 (ab) and (ah) of the Standing Orders.

26. It is not in dispute that the workman had issued the tickets to all the ten passengers, who were travelling in the bus at the time of checking. Even as per the evidence of the management witness namely the Checking Inspector, though the workman had issued tickets namely Rs.1.25 and Re.1.00 to the passengers, but the same was not entered in the invoice. The Checking Inspector admitted that there was no correction or overwriting in the invoice. Therefore, admittedly, neither rule 14 (ab) of the Standing Orders of the management, namely failure to issue tickets nor rule 14 (ah) of the Standing Orders of the management, namely wilful falsification, defacement or destruction of any records of the industrial establishment whether maintained by himself or by other employees would apply. The amount that was available with the workman, at the time of checking, tallies with the amount collected from the passenger and therefore, there was no evidence on record adduced by the management to show that the workman had committed any act of misappropriation or fraud in connection with the employer's business and, in the absence of any such material evidence, it cannot be said that the workman had committed any act of dishonesty, particularly when he had collected Rs. 1.25 and Re.1.00 and issued the ticket. The mere failure to enter the two tickets in the invoice could not be a concluding factor to hold that the Workman had committed an act of dishonesty in connection with the employer's business, particularly when he had offered an explanation that he could not make entries in the invoice, as he was tired, suffering from chest pain and the light in the bus was very dim, especially when the deposition of the workman corroborates with the deposition of the driver, that the light in the bus was very dim inspite of his complaint in the log book for one week. The evidence of the workman was not disputed by the management, by way of cross-examination. In the absence of such suggestion to disprove the material evidences available on record, the finding of the enquiry officer that the workman had committed an act of dishonesty in connection with the employer's business is nothing but an assumption and presumption, which is not sustainable in law.