1977 PLP 402 (PLC)

Art. 199-Writ-Grounds contesting orders of Tribunal below pressed for first time in writ petition-Held, cannot be made basis of decision. Mehboob Ahmad for Appellant. Bashir Ahmad for Respondent. This judgment disposes of the following two petitions: (1) Writ Petition No. 312/74, Sethi Straw Board Mills Ltd. v. Punjab Labour Court and others. (2) Writ Petition No. 313/74, Sethi Straw Board Mills Ltd., v. Punjab Labour Court and others. The employer has by these two petitions challenged the orders of the Labour Court, which has held the termination of the service of the two employees of the petitioner as unlawful and directed their re-instatement with back benefits. In the first petition the employee involved is Muhammad Latif, who was appointed as Assistant Mali in the year 1957. His services were terminated on 6-3-73 on the ground that the provision of a Mali as a domestic servant in Senior Officer's bungalow No. 2 by the Company had been withdrawn and the aforesaid employee was working on that bungalow when he was allowed 30 days salary in lieu of notice. The Junior Labour Court while dealing with his case held that the appointment letter of Muhammad Latif showed that he had been appointed to work in the Mills and not on any bungalow of the managerial staff. On appeal the Labour Court held that the order discontinuing the facility to the managerial staff of the Mills had not been produced and in the absence of such an order it could not be held that in fact what was given out as a reason for this disconti nuing the service of the Mali was in accordance with law. Hence the appeal was dismissed.

2. In the other petition the employment had taken place as Baildar-cum-Cooli with effect from 1-1-1966. The termination of his service took place on 9-12-1972. The reason given was that the work on which he bad been engaged had been completed. The Junior Labour Court held that the appointment of this employee was not on any particular project and there was in the opinion of the Junior Labour Court nothing in the record of the Company to show that the work had finished. The Junior Labour Court also recorded the finding that the action of the petitioner appears to be mala fide. Hence it allowed the petition. The Labour Court on appeal also was not satisfied with the reason disclosed for terminating the employment and also found that he had not been engaged on the project of construction of the roads and with the completion thereof his services could not be terminated.

3. The main grounds taken up by the learned counsel for maintaining these petitions are that even if the respondents were the permanent employees, their services could be terminated under Standing Order No. 12 on payment of a month's pay in lieu of notice and other dues. It is only when they had been proceeded against for misconduct which never was the case against the respondents, the termination had to be preceded by an inquiry and to be justified, Secondly, it is stated that the reason given by the employer for terminating the employment bad to be accepted as correct unless disproved and whatever was stated by the respondents did not amount to proving that the reason given was incorrect or untenable. Thirdly, with reference to certain documents filed in ibis Court. .luring the course of the hearing of the petition, it has been urged that a process of retrenchment was started and the respondents were the persons affected in accordance with law by such process of retrenchment. Finally, it has been brought to my notice that the Company has since gone into liquidation and it is not possible to reinstate the respondents in compliance with the orders of the Labour Court which are impugned in these proceedings.

4. The scheme of the Standing Orders which applied to the case of the respondents makes it clear that there is a power of termination for cause shown, there is another power or retrenchment for bona fide reduction of work and then there is penal removal which has to be preceded by show cause. I have already held in Punjab Road Transport Board v. Fazal Elahi (P L D 1976 Lah. 1414) that a finding recorded in a domestic inquiry is not sacrosanct to an extent that it cannot be questioned at all. It can be questioned but the grounds on which this can be done are limited and the scope is rather narrow. The same would also hold good for any reason given by the employer for bringing to an end the employment. The law requires the employer to give the reason in writing. It is not an idle requirement of the law. In appro priate cases the employee is free to challenge the cause given on the ground that it is colourable exercise of jurisdiction or is mala fide in factor law. In the cases in hand undoubtedly the employer had disclosed in writing the reasons for terminating the employment it had been challenged as a colourable exercise of power. The Junior Labour Court as well as on appeal the Labour Court has come to the conclusion that the cause shown was not one which could be accepted, that in one case it was mala fide and that the power which was invoked was not available. This finding can be reviewed only to the extent indicated by me in Fazal Elahi's case. The learned counsel for the petitioner except for saying that the word of the employer on the matters should be accepted as against any other evidence has nothing else to say because there is hardly any material for establishing the facts which have been made the reason for terminating the employment. In such a situation the Labour Courts were within their jurisdiction in drawing an reference with regard to the matter in controversy and if I am referred to no other material except the word of the employer I cannot bring to aid the Constitutional jurisdiction for satisfying the employer. In the case of Nur Muhammad it has been held that he was not employed for the construction of a road and therefore the completion of the road could not be the reason for terminating his employment. These were all questions which could as rightly observed by the Labour Court, be proved by producing the contemporaneous record to bear out the actions. This having not been done by the employer, the Constitutional jurisdiction does not come to his aid nor can the plea succeed.

5. As regards the principle of retrenchment and the liquidation of the Company, these are grounds which have been pressed for the first time here, and in contesting the legality of the orders passed by the Labour Court, such grounds cannot be made the basis of decision. The re-instatement who ordered was quite capable of being implemented and the fate of the respon dents would be no better or no worse than other employees similarly affected by liquidation of the Company. In the circumstances, the petitions fail and are dismissed with costs. Petition dismissed.