1982 PLP 148 (PLC)

AJMAL. MIAN, J.

‑This petition is directed against the order dated 29th May, 1980 passed by the learned Sind Labour Appellate Tribunal i.e. respondent No. 1 in Appeal No KAR‑550/79 reversing the judgment of the learned 4th Labour Court dated 7th November, 1979 and ordering reinstate ment of respondent No. 3 in the petitioner's company with full back benefits.

2. The brief facts leading to the filing of the above petition are that respondent No. 3 was working as a packer in the petitioner's factory. On 7th July, 1977 about the time of closing of the factory, the Security Officer Mr. Qasim Ali Khan stopped respondent No. 3 for search at the gate of the factory while respondent No. 3 was leaving the factory after performing his duties. It is the case of the petitioner company that when respondent No. 3 was stopped and was asked to allow search of his person in the guard room, be became furious, abused the security officer and attempted to assault him. It seems that respondent No. 3 was given a charge‑sheet on 13thJuly, 1977 for act subversive to discipline under Standing Order l5 (3)(h) of the W. P. Standing Order Ordinance. There upon, respondent No. 3 submitted his explanation, dated 26thJuly, 1977. It further seems that on the receipt of respondent No. 3's above explana tion on or about 3rdAugust, 1977, he was informed that there would be a departmental inquiry against him. Mr. M. S. Siddiqui, an officer in the petitioner company was appointed as an inquiry officer. The inquiry proceedings continued during the period commencing from 3rd August, 1977 to 8th September, 1977. In support of the charge, the petitioner examined 7 witnesses whereas respondent No. 3 examined 11 witnesses in defence Rifat lqbal the petitioner's one of the witnesses was recalled by the inquiry officer at the request of respondent No. 3, whereas another witness Mir Baz was recalled at the request of petitioner company. After conclusion of the inquiry, the inquiry officer submitted his report dated 14thSeptember, 1977 holding that the charge of misconduct against respondent No. 3 stood proved. After that respondent No. 3 was served with a second show‑cause notice dated 21stSeptember, 1977, to which he submitted a reply, dated 24thSeptember, 1977. It also seems that on 28thSeptember, 1977 respondent No. 3 was given a personal hearing by the Managing Director of the petitioner company. However, on 29thSeptember, 1977 respondent No. 3‑ was dismissed from service. It further seems that on 5thOctober, 1977 respon dent No. 3 made a grievance petition to the petitioner company in terms of section 25‑A of the I.R.O., to which petitioner sent, a reply dated 17thOctober, 1977. After that respondent No.3 filed an application under section 25‑A of the I.R.O. before the Labour Court on 6thNovember, 1977, to which the petitioner filed a reply, dated 29thNovem ber, 1977. Before the Labour Court 5 persons were examined, respondent No. 3 examined himself and two witnesses, namely, Messrs Muhammad Ahmed and Yousuf Ali, whereas the petitioner examined Mr. M. M. Siddiqui, the inquiry officer and F. A. Zuberi, the Managing Director of the petitioner company. The learned Labour Court by its order dated 7thNovember, 1979 dismissed respondent No. 3's above application. Being aggrieved by the above order respondent No. 3 filed the aforesaid appeal before the learned Sind Labour Appellate Tribunal, which recorded additional evidence of 3 witnesses, namely, Messrs Muhammad Ahmed, Yousuf and Dr. Ghulam Hussain, one of the Directors of the company. After that by the aforesaid order dated 29th May; 1980 the learned Labour appellate Tribunal allowed the appeal. The petitioner being aggrieved by the above order has filed the present petition. 3.(a) In support of the above petition Mr. Ali Ahmed Fazeel, learned counsel for the petitioner, has made the following submissions (i) That the learned Labour Appellate Tribunal had no jurisdiction to record suo mote additional evidence. (ii) That in the alternative, in any case, even if it is to be held that the learned appellate Tribunal had the power to record additional evidence, the provisions of Order XLI, rule 27, C.P.C. were not complied with. (iii) That the learned Labour Appellate Tribunal misread the evidence. (iv) That the learned Labour Appellate Tribunal erroneously inferred that the inquiry officer was partial. (b) On the other hand Mr. Ali Amjad, learned counsel for respondent No. 3, has contended as follows. (i) That the learned Labour Appellate Tribunal enjoys the same power as the Labour Court enjoys and, therefore, it can make further inquiry and record additional evidence ; (ii) That since the petitioner did not raise any objection before the Labour Appellate Tribunal to the taking of the additional evidence, they cannot be permitted to raise the above plea to the writ jurisdiction; (iii) That I. R. O. being a complete Code itself, the power of the labour Court or of the Labour Appellate Tribunal cannot be curtailed on the basis of the provisions of the C. P. C. (iv) That there is no misreading of evidence or erroneous inference that the inquiry officer was partial. (e) Before taking up the above contentions of the learned counsel for the parties, it may be advantageous to reproduce herein below the order dated 10th February, 1980 passed by the learned Labour Appellate Tribunal for examining 3 witnesses, which reads as follows "10th February, 1980‑-- Mr. Ali Amjad for Appellant. Mr. Qamaruddin for Respondent. After hearing the arguments of the learned counsel I am; of opinion that it is necessary for the purpose of deciding the appeal to record the statements of Dr. Ghulam Hussain, Muhammad Ahmed and Yousuf Ali, who according to the statement of the complainant before the enquiry officer were eye‑witnesses to the incident, but were not examined. Mr. Qamaruddin undertakes to produce the three witnesses on 21stFebruary, 1980 to which date the hearing of the appeal stands adjourned. (Sd.) APPELLATE TRIBUNAL" 6. (a) Mr. Ali Ahmed Fazeel in support of his above two contentions has referred to section 107 of the C. P. C., Order XLI, Rule 27, C. P. C., sections 36(2) and 38(3) of the I. R. O., whereas Mr. Ali Amjad inter aha has referred section 25‑A(5) of the I. R. O. It may be advantageous to reproduce herein below the above provisions of law: ‑‑-- "Section 107‑Powers of appellate Court‑(1) Subject to such conditions and limitations as may be prescribed, an appellate Court shall have power :‑ (a) to determine a case finally ; (b) to remand a case ; (c) to frame issues and refer them for trial ; (d) to take additional evidence or to require such evidence to be taken. (2) Subject as aforesaid, the appellate Court have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Court of original jurisdictions in respect of suits instituted therein." "O. XLI, R. Z7‑‑Production of Additional evidence in appellate Court (1) The parties to an appeal shall not be entitled to produce addi tional evidence, whether oral or documentary, in the appellate Court. But if;‑-- (a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (b) the appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the appellate Court may allow such evidence or document to be produced, or witness to be examined. (2) Wherever additional evidence is allowed to be produced by an appellate Court the Court shall record the reason for its admission." "Section 36‑(1) ..................... (2) A Labour Court shall, for the purpose of adjudicating and determining any industrial dispute, be deemed to be a civil Court and shall have the same powers as are vested in such Court under the Code of Civil Procedure, 1908 (Act V of 1908) including the powers of:‑-- (a) enforcing the attendance Of any person and examining him on oath. (b) compelling the production of documents and material objects, and (c) issuing commission for the examination of witnesses or m documents." S. 38‑(1) ... ... (2) ... ... ... ... ... (3) The tribunal may, on appeal, confirm set aside, vary or modify the award or decision given under section 25‑A or section 34 or a sentence. passed under clause (e) of sub section (5) of section 35 and shall exercise all the powers conferred by this Ordinance on the Labour Court, save as otherwise provided. The decision of the Tribunal shall be delivered as expediciously as possible, within a period of 60 days following the filing of the appeal provided that such decision shall not be rendered in valid by reason of any delay in its delivery" S: 25‑A. ... ... ... ... ... ... (1) ... ... ... ... ... ... (2) ... ... ... ... ... ... (3) ... ... ... ... ... (4) ... (5) In adjudicating and determining a grievance under sub section (4), the Labour Court shall go into all the facts of the case and pass such orders as may be just and proper in the circumstances of the case." (b) It may be noticed that under section 107(1) of the C.P.C. subject to such conditions and limitations as may be prescribed, an appellate Court has the power, inter alia, to take additional evidence or to require such evidence to be taken, whereas under subsection (2) of section 107 an appellate Court has the same powers and has to perform as nearly as may be the same duties as are conferred and imposed by Code of Civil Procedure on Courts of original jurisdiction in respect of suits instituted there under. (c) Whereas Order XLI, Rule 27, C.P.C. provides that the parties to an appeal shall not be entitled to produce additional evidence whether oral or documentary in the appellate Court. It further provides two situations in which an appellate Court may allow additional evidence for the reasons recorded, namely, (f) The Court from whose decree the appeal is preferred had refused to admit evidence which ought to have been admitted; or (ii) the appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment or for any other substantial cause. (d) It may be noticed that subsection (2) of section 36 of the I.R.O. quoted hereinabove provides that a Labour Court shall for the purpose of adjudicating and determining any industrial dispute being deemed to be a civil Court and shall have the same powers as are vested in such Court under the C.P.C., 1908, including the power to enforce the attendance of any person and to examine him on oath, to compel the production. of documents and material object and to issue commission for the examination of witnesses or documents. (e) It may be mentioned that subsection (3) of section 39 of the I. R. O., inter alia provides that the appellate Court while hearing an appeal from an order of a Labour Court shall exercise all the powers conferred, by the Ordinance on the Labour Court save as otherwise pro vided. In other words, according to the above provision the powers of a Labour Court and the Labour Appellate Court are coextensive. (j) It may further be noticed that section 25‑A of the I. R. O. empowers a Labour Court to examine all the facts of the case and to pass such order as may be Just and proper in the circumstances of the case.

7. Mr. Fazeel, in support of his above contentions, has referred to the case of Moula Bakhsh v. Abdul Hamid and 4 others (P L D 1971 Lah. 512), the case of the Secretary to the Government of West Pakistan, Communication & Works Department and another v. Gulzar Mohammad (P L D 1969 S C 60), the case of Ghulam Farid and 21 others v. Gahree and 12 others etc. (1972 S C M R 374), the case of Mst. Allah Rakhi v. Mst. Sakinu Bibi and others (P L D 1968 Lah. 1087), the case of Sh. Mohammad Ikhlas and others v. Mohammad Ismail (P L D 1963 S C 466), the case of Messrs Mohammad Siddiq Mohammad Umar v. The Australasia Bank Ltd. (P L D 1966 S C 684). On the other hand Mr. Ali Amjad has referred to the case of K. Venkataramiah v. A. Snztharama Redy and others (A I R 1943 S C 1526), the case of Mst. Alfan v. Mohammad Nur (P L D 1965 Lah, 401), the case of Crescent Jute Products Ltd., Jaranwala v. Mohammad Yaqub etc. (P L D 1978 S C 207): (i) Reverting to the case reported in P L D 1971 Lah. 512 it may be observed that a D. B. of the Lahore High Court 'while construing the provisions of section 107JC.P.C. pointed out that subject to the limitations and conditions contained therein an appellate Court enjoys additional powers in addition to the powers of Original Court, which inter. alia include the power to record additional evidence. (ii) With reference to, P L D 1969 S C 60 it may be stated that the Supreme Court while considering the provisions of Order XLI, rule 27, C.P.C. observed that the above provisions cannot be pressed into service in order to enable the parties to litigation to fill‑in‑gaps in evidence and that additional evidence can be admitted by an appellate Court provided sufficient ground is made out for non‑production of evidence at the initial stage, The Supreme Court remanded the case to the High Court with the direction to take additional evidence and to provide an opportunity to opposite party to adduce the evidence in rebuttal if any. (iii) As regards, 1972 S C M R 374 it may be stated that the Supreme Court while declining to grant leave to appeal pointed out that under Order XLI, rule 27 CPC the parties to appeal are debarred from producing additional evidence in the Appellate Court unless the Court against whose decree the appeal has been preferred had refused to admit the evidence, which ought to have been admitted or unless the appellate Court requires any document to be pro duced to enable it to pronounce judgment or order or for any other substantial cause. (iv) With reference to P L D 1968 Lah. 1087 it will suffice to observe that the learned Single Judge of the erstwhile High Court of West Pakistan, Lahore Bench, while construing the provisions of Order XLI, rule 27, C.P.C. observed that additional evidence cannot be taken by the appellate Court unless the Appellate Court after examining the evidence on record comes to the conclusion that the existing evidence is inherently defective and pronouncement of judgment cannot be properly made without such evidence. (v) Referring to P L D 1963 S C 466 it may be stated that the Supreme Court observed that before taking additional evidence under Order XLI, rule 27, CPC reasons must be stated which must be factually leading to inference of necessity of proper determination and that if any additional evidence is recorded in violation of the above provision, the same is to be ignored. In the above case the additional evidence recorded by the learned Single Judge of the High Court without complying with the above provision of the C.P.C. was ignored and the appeal against the High Court judgment was allowed and the order of the District Judge was restored. (vi) Reverting to P L D 1966 S C 684, it will suffice to observe that in the above case also it was observed by the Supreme Court that under Order XLI, rule 2,7, CPC requirement of additional evidence must be genuine and it must be felt by the Court. (vii) With reference to A I R 1963, S C 1526. it maybe stated that in the above case the Supreme Court of India held that the omission to record reason under Order XLI, rule 27(2), C.P.C. does not vitiate admission of such evidence notwithstanding use of the word shall in rule 27(2). It was also observed that when additional evidence was taken with the assent of both the parties or without objection at the time it was taken, it was not open to a party to complain of it later on. (viii) Reverting to P L D 1965 Lah. 401, it may be stated that the learned Single Judge of the erstwhile High Court of West Pakistan, Lahore Bench, Inter alia observed that the additional evidence recorded by a Labour Court with acquiescence of both the parties, objection to its admissibility cannot be permitted to be raised in the second appeal. (ix) As regards P L D 1978 ES C 207, it may be observed that the Supreme Court while construing section 25‑A (5) of the I. R. O, defined the extent of jurisdiction of the Labour Court and pointed out that from the language employed in the above section, it is clear that the Labour Court has the jurisdiction to go behind a dismissal order and to see for itself as to whether on the facts and in the circumstances of the concerned case it was justified or not both on merits as well as on law. It was also pointed out that the intention of subsection (5) of section 25‑A of the I. R. O. seems to provide a double check one in the form of a domestic enquiry to be held by an employer and the other in the form of a judicial determination by a junior Labour Court itself.

8. There cannot be any cavil to the propositions of law propounded/enunciated in the above, sited cases. It is a well‑settled principle of law that under Order XLI, rule 27, Civil Procedure Code, additional evidence cannot be recorded by an appellate Court as a matter of course but compliance of the conditions contained therein is to be made before pressing into service the aid of the above provision. In the instant case in the above‑quoted order dated 10thFebruary, 1980 the learned Labour Appellate Tribunal has recorded the reasons for calling Dr. Ghulam Hussain, Mahmood Ahmed and Yousuf Ali as witnesses, namely, that they were mentioned as eye‑witnesses, by the complainant in his statement before the inquiry officer but were not examined. It has been vehemently urged by Mr. A. A. Fazeel that the above statement of fact contained in the order that the above witnesses were not examined is factually incorrect inasmuch as Messrs Mohammad Ahmed, and Yousuf Ali were examined by respondent No. 3 before the Labour Court, whereas it has been con tended by Mr. Ali Amjad that these two persons were not examined by the inquiry officer though their names were mentioned by the complainant Qasim Ali Khan in his statement before the inquiry officer. A reading of the above order indicates that reference to non‑examination of above witnesses is referable to the inquiry officer and not to the Labour Court. It may also be mentioned that though Mr. Muhammad Ahmed, Yousuf Ali were examined by respondent No. 3 before the Labour Court but in their affidavits or in cross‑examination they have not adverted to as to how the incident had taken place. Their statements were confined to the happening before the inquiry officer as both were acting as the representatives of respondent No. 3 before the inquiry officer.

9. In our view, section 36(2) of the I. R. O. was not enacted with the object to curtail the powers of the Labour Court or of the Labour appellate Court but it is an enabling provision conferring additional powers in addition to the powers contained in the I.R.O., since in the I. R. O. no provision was provided for summoning witnesses etc. the above section 36(2) provided that a Labour Court shall be deemed to be a civil Court and shall have the same powers as are vested in such Courts under the Civil Procedure Code, including the power of enforcing the attendance of any person and examining him on oath or compelling the' production of the documents and material object and issuing of commis sion for the examination of witnesses or documents. The jurisdiction of a Labour Court or an appellate Court is referable to section 25‑A offs I. R. O., which provision is wide in its scope unfettered with technicalities as to the mode of trial. It may again be mentioned that the Supreme Court of Pakistan while construing the above provision in the aforesaid case reported in P L D 1978 S C 207, has pointed out that the above provision is of wide import, which inter alia empowers a Labour Court to examine the record of the inquiry and to decide independently when the impugned action was justified and warranted by law. The powers of a Labour Appellate Court are co‑extensive with the powers of a Labour Court by virtue of section 38(3) of the I. R.O. which makes it clear that an Appellate Court shall have the same powers, which are enjoy by a Labour Court. There is no restriction or fetter imposed on the powers of an appellate Court and, therefore, an Appellate Labour Court can record additional evidence in a fit case. We are inclined to hold that the technicalities of the provisions of the Civil Procedure Code cannot, be strictly enforced in a proceeding under the I. R. O. either before they Labour Court or the Labour Appellate Tribunal. However, at the same time a Labour Court and an appellate Court are required not to act in a manner, which may be unfair or may deprive one of the parties to the proceeding before it a fair opportunity to meet the case of the other party. The power to record further/additional evidence cannot be exer cised unreasonably or capriciously by an Appellate Labour Court, but at the same time it is not subject to the strict compliance of the provision of Order XLI, rule 27, C. P. C. In the instant case there is no denial of the fact that the complainant Qasim Ali Khan in his statement before the inquiry officer had stated that the incident referred to hereinabove was witnessed by Messrs Muhammad Ahmed, Yousuf Ali, Abdul Hameed and that while alterca tion was going on Dr. Ghulam Hussain also came and saw Rifat Iqbal and some other persons. The petitioner company had only examined Rifat Iqbal before the inquiry officer and did not examine the other eye, witnesses mentioned by the complainant Qasim Ali Khan in his aforesaid statement. Furthermore, though two of the above persons, namely, Messrs Muhammad Ahmed and Yousuf Ali were examined by respondent No. 3 before the Labour Court as his witnesses but nothing was brought on record to throw any light as to how the incident had taken place. Whereas Dr. Ghulam Hussain was not examined either before the inquiry officer or before the Labour Court. In the background of the above facts, in our view, the learned appellate Tribunal could examine the., above witnesses at the appellate stage in order to satisfy itself as to the] actual happening at the time of the incident. We may also observe that) Mr. Ali Amjad s contention that the petitioner was supposed to examine the above witnesses on the question as to how the incident had taken place and what happened during that incident is not without force. Furthermore, it seems that the petitioner did not raise any objection to the recording of the evidence of the three witnesses in question before the learned labour appellate tribunal, and, therefore, the petitioner is not entitled to agitate the above plea in a writ petition. Any objection to a d procedural irregularity committed by a tribunal should be raised at the earliest opportunity and it should be pointed out to the tribunal committing such irregularity. Otherwise, it may constitute waiver or acquiescence on the part of the parties to the proceeding.

10. Reverting to the contention of Mr. Fazeel that the learned appellate Court misread the evidence and had drawn a wrong inference of partiality on the part of the inquiry officer, it may be pertinent to observe that the learned Labour Court proceeded in its order on the assumption that it could only interfere with the finding of the inquiry officer if it was perverse. The learned Labour Court in fact has not taken into considera tion the import of section 25‑A of the

1. R. O. which entitled it to examine the matter afresh and to go behind the finding of the inquiry officer in order to ascertain as to whether the charge levelled against respondent No: 3 was made out on the basis of the evidence produced by the petitioner. Nor it has referred to the evidence in its order. The learned Labour Appellate Tribunal in its order has referred to the Supreme Court cases, inter alia the above cases reported in P L D 1978 S C 20.7 and pointed out that the Labour Court acted under misconception of laws as to the scope of the inquiry before it. The learned Labour Appellate Tribunal was competent by virtue of section 38(3) of the I. R. O. toll E examine the papers of the inquiry and also to examine the case indepen dently and on the basis of the appraisal of the evidence to form opinion as to whether charge was proved. The witnesses named by the complainant in his statement admittedly have not supported the charge as contained in the charge‑sheet. However, the petitioner's witnesses Zadad Khan, Mohammad Nawaz and Mir Baz Khan (in his statement after he was re‑called at the request of the complainant Qasim Ali) and respondent No. 3's witness Muhammad Ibrahim to some extent have supported the charge. But at the same time the petitioner's some witnesses and respondent No. 3's most of the witnesses have not supported the charge. In our view it was open to the learned Labour Appellate Tribunal to appraise the evidence and to conclude the finding on the question of fact that the charge had not been proved. The finding recorded by the learned Labour Appellate Tribunal cannot be said to be perverse or contrary to the record. The Labour Appellate Tribunal was a Court of r competent jurisdiction to record a finding of fact, and, therefore, this ` Court cannot sit as a Court of appeal while deciding a constitutional petition and it cannot interfere with a finding of fact on the ground that if the matter would have been before it, it‑would have taken a different view on the basis of the same evidence.

11. The upshot of the above discussion is that the above petition does not merit and, therefore, it is dismissed but there will be no order as to costs. Petition dismissed,