1981 PLP 630 (PLC(CS))

2. I have beard Mr. Muhammad Naseem for the appellant and Mr. S. P. Lodhi for the respondents. Mr. Muhammad Naseem assailed the impugned decision of the learned Labour Court on the following grounds: ‑ (i) The establishment of the appellant‑Company is covered by the provisions of section 1(3), I. R. O., and hence the provisions of the said Ordinance cannot be availed of nor are applicable to the employees of the appellant company, including the respondents ; (ii) even if it be assumed for argument's sake that the provisions of the I. R. O. are applicable to the respondents it has not been established that the respondents are workmen for the purposes .of the Standing Orders, and hence, their grievance petitions are not maintainable under the provisions of Standing Order 12 (3) ; (iii) the Labour Court was not entitled to go into the evidence before the Enquiry Officer and had to confine its decision to the issue whether the domestic enquiries in respect of the respondents were fairly and properly held, (iv) Even, if it be held that the orders of dismissal from services of the respondents are defective, the learned Labour Court should have given an option to the appellant company to hold another enquiry and made the award of the back benefits to the respon dents dependent upon the results of such enquiries.

3. In support of his first contention, Mr. Muhammad Nasim relied upon the decisions in the cases of ;‑ (i) Gammon (Pakistan) Ltd., Rawalpindi v. Muzafar Khan 1974 PLC10; (ii) Canteen Stores Department, Karachi v. Sind Labour Court No. V P L D 1977 Kar. 314 and (iii) United Builders and Associate v. presiding Officer, Punjab Labour

4. I, however, find it unnecessary to go into the, question whether the appellant company is performing services or it is in installation connec ted with or incidental to the Armed Forces of Pakistan, and, therefore, A the application of the provisions of the I. R. O. to it is excluded, for the grievance petitions by the 3 respondents are not under the I. R. O., as having been removed from service, they do not fall within the definition of workers for the purposes of the I. R. O., but their grievance petitions fall to be considered under clause (3) of Standing Order 12, as held by this Tribunal in the case of Johnson & Johnson v. Zubair Ahmad (1980 P L C 622).

5. This brings me to a consideration of the second contention raised by Mr. Muhammad Naseem that it has not been established that the respondents are workman for the purposes 4f the Standing Orders. It may, however, be pointed out that in their grievance petitions, the respon dents had clearly asserted that they are workers employed in the appel lant‑Company. The said Company has nowhere disputed that fact that the respondents are workmen for the purposes of the Standing Orders, Not having raised this issue before the learned Labour Court, the appellant‑Company cannot be allowed to agitate this issue of fact at this stage. I, therefore, find no merit in this contention of the learned counsel.

6. I also find no force in the next contention of Mr. Muhammad Naseem that the Labour Court was not entitled to go into the evidence before the Enquiry Officer. This issue stands concluded by the decision of their Lordships of the Supreme Court in the case of Crescent Jute Products Ltd. v. Muhammad Yaqub (P L D 1978 S C 297). In that case, it has been held by their Lordships of the Supreme Court that the words "shall go into all the facts of the case", appearing in subsection (5) of section 25‑A, I. R. O., clearly signify that the Labour Court has full and complete powers to enter even into questions of facts and to arrive at its own conclusion regardless of there being no illegality of procedure in the domestic proceedings. Their Lordships went on to observe that by the use of the above words, the legislative intent appears to have been to provide a double check, one in the form of a domestic enquiry to be held by the employer, and the other in the form of a judicial determination by a Labour Court.

7. It only remains to be considered whether there was adequate material before the Enquiry Officer or the Labour Court in support of the charges against the respondents, and whether in the domestic proceedings the respondents were given a fair and reasonable opportunity of defend ing themselves. All the 3 respondents were charged with remaining absent from their duties, without permission, on various dates. Now as regards respondent Rais Ahmed, it appears that though a charge‑sheet was issued in respect of him, no enquiry as envisaged by clause (4) of Standing Order 15 was at all held. At least no statements of witnesses recorded in the domestic enquiry or the report of the Enquiry Officer were produced before the learned Labour Court. In fact it has been conceded in para. 6 of the preliminary objections filed by the appellant‑Company before the learned Labour Court that no enquiry was held. The justification for not holding the enquiry was that respondent Rais Ahmad failed to present .himself for defence and hence it was assumed that he was not interested in the service. I regret having to point out that this was no jurisdiction for not complying with the mandatory provisions of clause (4) of Standing Order 15, which require that the employer must institute independent enquiries before dismissing a workman on .the charge of misconduct. The dismissal orders in respect of respondent Rais Ahmad, therefore, cannot be sustained.

8. As regards respondents. Dilshad Khan and Yaqub Ali, no doubt separate domestic enquiries were held in which they appeared to have participated, but an examination of the record of those enquiries leads me to the conclusion that neither of these respondents were given a fair opportunity of defending themselves. The enquiries were unfortunately h Id by a person who was presumably not well acquainted with the procedure of the 'domestic enquiries, in the labour cases. He, there fore, began domestic enquiries by first examining the 2 workmen concerned and cross‑examining them at length. In fact he appears to have acted as an Investigating Officer and went to the extent of describing himself in the proceedings as such. After so examining the 2 respondents, he enquired from them whether they had any evidence to lead in defence. As no material had come on record before the Enquiry Officer up to that stage in support of the charges against the two respondents, it was not only premature to ask such a question or give such an opportunity to the 2 respondents, but the respondent obviously could not lead any defence without knowing what evidence was going to be led against them. The Enquiry Officer, after examining the witnesses testifying against the 2 respondents closed the enquiry and submitted his enquiry report without giving an opportunity to the 2 respondents to lead evidence in defences. I am clear in my mind that this procedure, which have been unwittingly adopted, by the Enquiry Officer has resulted in grave prejudice to the respondents and had deprived them .of a fair and proper opportunity of defence. The domestic enquiries in respect of respondents Dilshad Khan and Yaqub also stand vitiated and the dismissal orders which are based on such enquiries also cannot be sustained.

9. Since the dismissal orders are being set aside on the technical ground of no enquiry being hold in the case of respondent Rias Ahmad and want of proper enquiries to the cases of other 2 respondents, the appellant‑Company has to be allowed an option to hold a proper enquiry against the respondents in accordance with law. I am fortified in my' view by the most recent decision of their Lordships of the Supreme Court in the case of Islamabad Club v. Punjab Labour Court (P L D 1980 S C 307).

10. For the reasons discussed by me above, while dismissing the 3 appeals of the appellant‑Company, I would allow an option to the appellant‑Company to hold proper domestic enquiry against the 3 respon dents. The award of back benefits would also be dependent upon the results of such enquiries. However, if no enquiries are held against the respondents within a period of 3 months from the date of this Order, the respondents would be entitled to full back benefits as directed by the learned Labour Court: At the time of admission of appeal, the appellant- Company had deposited a Hank Receipt, the same should be returned to it. Appeals dismissed.