1990 MLD 916 (PLP)

MUKHTAR AHMED JUNEJO, J.‑‑‑Petitioners Muhammad Ishtiaq and Afsar Hussain Khan have invoked Constitutional jurisdiction of this Court against an order dated 1‑3‑1988 passed by learned Sindh Labour Appellate Tribunal setting aside their reinstatement, ordered by a Labour Court and dismissing their grievance applications moved under section 25‑A of I.R.O.

2. Admittedly the two petitioners were employees of Prince Glass Works Limited (Respondent No.1) on the night between 21st and 22nd July when they allegedly threatened to assault MrAbdul Qayyum, Head Furnace Operator who wanted to enter the factory gate to inspect blowing furnace to check if there was any Furnace Operator on duty. It was alleged that when Abdul Qayyum tried to enter into the factory ignoring the threats, the two petitioners attacked him and physically assaulted him near the factory gate. Such charge‑sheets dated 27‑7‑1982 were issued to the petitioners who replied the same. This was followed by two separate domestic enquiries on conclusion of which the Enquiry Officers submitted their reports finding the Petitioners guilty of misconduct and recommending their dismissal. Respondent No.1 relying on the enquiry reports issued second show‑cause notices dated 2‑10‑1982 to the petitioners calling upon them to explain as to why they should not be dismissed from service and asking them to appear for personal hearing before he Manager of Respondent No.1 within 24 hours. Subsequently the petitioners were dismissed from service under the identical orders dated 31‑10‑1982.

3. Petitioners challenged their. dismissal by filing separate grievance applications in Sindh Labour Court IV Karachi, which ordered their reinstatement in service with back benefits under two identical orders passed on 5‑12‑1984. In appeals learned Sindh Labour Appellate Tribunal under a single order dated 16‑8‑1987 maintained the orders of dismissal and dismissed of both the grievance applications after holding that the charge of misconduct against the petitioners was fully established in a proper, fair and lawfully held enquiry and that there was no need to interfere with findings of the Enquiry Officer and that learned Labour Court was not correct in passing the orders of reinstatement.

4. Petitioners challenged order of the Labour Appellate Tribunal dated 16‑8‑1987 in this Court under Constitution Petition No.D‑983 of 1987 which was accepted on 17‑11‑1987 and the two appeals of the Respondent were remanded to learned Tribunal to arrive at a conclusion after discussing the material on record within a period of three months of receiving the judgment. Under the impugned order dated 17‑4‑1988 learned Tribunal again accepted the two appeals filed by the ‑Respondent Nod after. considering the entire evidence. Following observations made in the impugned order require consideration. "Therefore, beyond any doubt and/or hesitation, after considering all the above facts, circumstances, evidence brought on record, legal aspects of the cases of the present two respondents, I am of the firmed view that both the respondents had committed gross mis‑conduct which was fully established in a lawfully, reasonably and impartially held domestic enquiry in which not only the independent prosecution witnesses were examined, but, the respondents were also afforded full opportunities to defend themselves." "There is sufficient evidence and circumstances available on record to hold that the respondents were correctly removed from their employment by the management and so they were not entitled to maintain their grievance petitions under section 25‑A, I.R.O. 1969, being aggrieved persons, hence, both these petitions are also to be rejected." As result of aforesaid findings learned Tribunal maintained orders of dismissal of the petitioners. Hence this petition.

5. Mr. Muhammad Kazim, learned Counsel for the petitioners argued that the alleged incident took place outside the premises of the factory and consequently the two petitioners cannot be found to be guilty of mis‑conduct as defined by Standing Order 15(3) of the Ordinance.. It was further argued that the evidence brought on record during the domestic enquiry was not natural and that, had the incident taken place on 21‑7‑1982 as alleged, Abdul Qayoom would not have lodged complaint as late as on 26‑7‑1982, and that had Abdul Qayoom been deprived of Rs.800 as alleged, he would have lodged FIR against the petitioners, and that the entire evidence was false and was fabricated with a mala fide intention to victimize the petitioners.

6. Mr.Rasheed Ahmed Chaudhry, learned Counsel for the respondent No.1 ,opposed the petition and argued that the evidence on record as collected by the enquiry officers was sufficient for dismissal of the petitioners who were proved to have cominitted acts subversive‑of discipline as well as misconduct and that the learned Labour Appellate Tribunal had rightly held that the charges were fully established. It was further argued that this Court while dealing with a Constitution Petition was not a Court of Appeal. In order to meet objection of the learned Counsel for the petitioners that the alleged incident had taken place. outside the premises of the factory, learned counsel for the respondent No.1 referred to clause (h) of para (3) of Standing Order 15 of the Ordinance and argued that alleged acts of the petitioners were subversive of discipline and were covered by the definition of misconduct as given by S.0:15(3) of the Ordinance even if the same took place outside the factory. In this respect learned counsel relied on the case of Akhtar Alam v. Sindh Labour Appellate Tribunal and others 1985 P L C 570 where a Division Bench of this Court observed as below:‑ "We are inclined to hold that in order to constitute an act subversive of discipline, it is not necessary that it should be riotous or disorderly. The above clause (h) provides two categories of the acts which may constitute a misconduct, namely, riotous or disorderly behaviour during working hours at the establishment or any act subversive of discipline. In other words, the word 'or' appearing between the words "Riotous or disorderly behaviour during working hours at the establishment" and the words "any act subversive of discipline" is to be read disjunctively. The only qualification is that the words "any act subversive" must be construed ejusdem generic with the words preceding it."

7. The impugned order shows. that petitioner Ishtiaq Hussain had admitted in his cross‑examination that on the night of incident at relevant time he was present at gate of the factory and that at the relevant time Abdul Qayoom was Head Furnace Operator as well , as President of the C.BA. Union. Similar admission appears to have been made by Afsar Hussain also. Delay in lodging of the report on 26‑7‑1982 about the incident dated 21‑7‑1982 was due to Eid holidays from 22‑7‑1982 to 25‑7‑1982 as explained in the impugned order. In the enquiry against Afsar Hussain, Abdul Qayoom, Shamsul Haq and. Zaman Khan were examined and they were cross‑examined. Muhamntad Ishtiaq obtained innumerable number of adjournments in his enquiry, got changed the Enquiry Officer ‑and ultimately boycotted the enquiry when evidence of Abdul 0ayoom was being recorded on 31‑8‑1982. He repeated this on 4‑9‑1982. Consequently the Enquiry Officer proceeded ex parte against Muhammad Ishtiaq. Trial Court found evidence of Abdul Qayoom unreliable but held that the management displayed sufficient , patience in providing chance of leading defence to the petitioners who were responsible for the delay in completion of the two enquiries. Learned Labour Appellate Tribunal found that the charge of misconduct against the petitioners was fully established in a proper, fair and lawfully held enquiry.

8. In a Constitution Petition this Court cannot exercise powers which can be exercised by an appellate Court. In order to succeed, the petitioners had to establish that finding of learned Labour Appellate Tribunal was based on no evidence or on ignorance of material evidence or on consideration of inadmissible evidence or that the said Tribunal had exercised the jurisdiction arbitrarily or with perversity or with material illegality causing palpable injustice. In that case jurisdiction of this Court could be invoked to rectify the wrong and injustice occasioned to a party on the basis of admitted facts. The argument that a view different from the view taken by the Sindh Labour Appellate Tribunal, can be taken on the evidence available on record, cannot give rise to exercise of writ jurisdiction by this Court.

9. There is hardly any "ground to interfere with the impugned order. Consequently this Constitution Petition stands dismissed with no order as to costs. These are reasons for our short order dated 24‑10‑1989 by which we dismissed this Petition with no order as to costs. H.B.T./M‑1004/K Petition dismissed.