1988 PLP 906 (PLC)

AJMAL MIAN, J.‑‑This petition is directed against the order, dated 16‑8‑1987 passed by the learned Surd Labour Appellate Tribunal, setting aside the order of the Labour Court dated 5‑12‑1984 passed in Application No. 66 of 1983, whereby the petitioners' application under section 25‑A of the Industrial Relations Ordinance, 1969, hereinafter referred to as the I.R.O. was allowed.

2. The brief facts leading to the filing of the above petition are that that the present two petitioners were working in Respondent No. 1's factory at the Furnace as Furnace Operators. On 26‑7‑1982, one Abdul Qayyum lodged a complaint with the Manager of Respondent No.l alleging therein, that he was working as Head Furnace Operator, Blowing Section, Card No. 5303 and that during the night between 21‑7‑1982 and 22‑7‑1982 he was sitting at home after the Eid moon had been sighted when one worker infrared him that there was no furnace operator on duty at the factory and the blowing furnace was in bad condition. Thereupon, he immediately left for the factory to remove the defect and when at about 11‑30 p.m. he reached near the factory, he saw two furnace operators of the factory, i.e. the two petitioners who worked in "C" shift. They were holding sticks in their hands and they stopped and threatened him that if any one would go to operate the furnace, he would not be allowed to return home alive. It was also averred that since the complainant was not only Head Furnace Operator but also President of the C.B.A. Union, he ignored the threats and continued to move towards the factory to enter therein: On this the above two petitioners attacked him and while beating him they threw him down and took out from his pocket Rs.800 which he had allegedly kept for Eid shopping. It was further averred that afterwards some workers of the company got him released from the petitioners and then he entered into the factory. The petitioners stood out side the factory so that no one should attend to his duty as Furnace Operator and they did not allow any other Furnace Operator to attend their duty. On the basis of the above allegations the petitioners were served with a charge‑sheet, dated 27‑7‑1982 separately and in pursuance thereof domestic enquiry was held. The Enquiry Officer submitted his report with the finding that the charge against the petitioners stood proved. In consequence thereof the petitioners were dismissed by order, dated 31‑10‑1982. The petitioners after serving the notices under section 25‑A of the I.R.O. filed two separate applications (Applications Nos. 66 of 1983 and 67 of 1983) under the above section in the 1Vth Sind Labour Court. The Labour Court after recording the evidence and hearing the parties by separate decisions: both dated 5‑12‑1984 allowed the above applications, set aside the orders of dismissal and ordered Respondent No. 1 to reinstate the petitioners with back benefits. The Respondent No. 1 being aggrieved by the above orders filed appeals Nos. 323 of 1984 and 324 of 1984 in the Sind Labour Appellate Tribunal which were disposed of by common impugned judgment, dated 16‑8‑1987. The petitioners being aggrieved by the above judgment have filed the present petition. It may be observed that after the decision of the Labour Court, petitioner No. 2 had submitted his resignation, dated 15‑12‑1984 from the service of Respondent No. 1 which was accepted by them through their letter, dated 19‑1‑1985, without prejudice to their appeal which was at that time pending before the Labour Appellate Tribunal. However, Respondent No. 1 had refused to make payment to the petitioner No. 2 for all the back benefits, which were granted by the Labour Court. It may also be stated that it is the case of the petitioner No. 1 that after the above appellate order, dated 16‑8‑1987, he was disallowed and refused by the Respondent No. 1 to enter upon the factory premises or to continue in its employment with effect from 18‑8‑1987.

3. In support of the above petition, Mr. Iqbal Haider learned counsel for the petitioners has urged as follows:‑‑ (i) That since the alleged incident had taken place out side the factory premises, misconduct was not committed in terms of clause (h) of subsection (3) of Standing Order 15 of the West Pakistan (Standing Orders) Ordinance, 1968. (ii) That the finding of the learned Labour Court that the charge of misconduct was not proved against the petitioners was in consonance with the evidence on record, and, therefore, the learned Sind Labour Appellate Tribunal should not have reversed the above order and should not have dismissed the petitioners' applications. On the other hand Mr. Hassan Inamullah, learned counsel for Respondent No. 1 has submitted that there is no finding of any of the two Courts on the question that the incident had taken place away from the factory and not at the factory and that the finding of the learned Sind Labour Appellate Tribunal on merits is in accordance with law.

4. Adverting to the first submission of Mr. Iqbal Haider learned counsel for the petitioners, it may be observed that he has in furtherance of his above submission, referred to the case of Akhtar Alam v. Sind Labour Appellate Tribunal, etc. reported in 1985 P L C 570 in which inter alia it was held that in order to attract clause (h) what is required is that riotous or disorderly behaviour should be committed during working hours at establishment which may not be working hours of the workman concerned. It will suffice to observe that neither, the learned Labour Court nor the learned Sind Labour Appellate Tribunal has' recorded any finding of fact as the location of the incident and, therefore, in our view we cannot record a finding of fact in exercise of Constitutional jurisdiction‑ A However, since we are remanding the case to the learned Sind Labour Appellate Tribunal, it will be open to the petitioners to urge the above point before it.

5. As regards the above second submission, we may observe that the learned Sind Labour Appellate Tribunal has not touched upon the reasons on which the learned Labour Court had allowed the petitioners' applications. It has not even dilated upon the evidence on record. It has reproduced the arguments B and the conclusion contained in para. 6 of the impugned order comprises of few lines. In our view, if the learned Sind Labour Appellate Tribunal was to disagree with the finding of the learned Labour Court, it should have discussed the material on record for arriving at a conclusion contrary to the Labour Court.

6. We are, therefore, of the view that the impugned order cannot be sustained as the learned Sind Labour Appellate Tribunal has not acted in accordance with law. It was submitted by Mr. Iqbal Haider that since we are going to set aside the order of the learned Sind Labour Appellate Tribunal, we should order reinstatement of petitioner No. 1 as he was disallowed from attending the work with effect from 18‑8‑1987. We have given our serious consideration to this request. It is an admitted position that when the petition was filed on 16‑9‑1987, the petitioner was not allowed to work in respondent No. 1's factory for about a month. In our view, the proper and just order would be that respondent No. 1 be directed either to reinstate the petitioner No.l or to deposit his salary with the learned Sind Labour Appellate Tribunal. The petitioner No. 1 shall be entitled to apply for the withdrawal of the above amount which request will be disposed of by the learned Sind Labour Appellate Tribunal in accordance with law.

7. The upshot of the above discussion is that the impugned order is‑declared as being without lawful authority and of no legal effect but the case i remanded to the learned Sind Labour Appellate Tribunal with the direction t decide the appeal within a period of three months after the receipt of copy of this judgment in the light of the observations contained hereinabove. The stay application also stands disposed of. There will be no order as to costs. M.H./M‑494/K Case remanded