P L D 1958 Supreme Court (Pak,) 153 (PLP)

MUHAMMAD MUNIR, C. J.‑

I agree that for the reasons given by my brother Shahabuddin, the appeal should be allowed and the award set aside to the extent' indicated by him. SHAHABUDDIN, J.--‑This is an appeal by special leave of this Court against eight of the thirty‑nine findings recorded by the Industrial Tribunal consisting of Mr. Akhtar Hussain Khan, who dealt with the dispute between the appellant employer Messrs. Dalmia Cement Ltd., and the union of its workers, the Dalmia Cement Factory Workers' Union, which was referred to him by the Government of Pakistan under section 10 of the Industrial Disputes Act, 1947 for adjudication. The eight findings appealed from cover demands 13, 14, 16, 19, 21, 22, 26 and 34 which relates respectively to payment of overtime allowance, acting allowance, confirmation of temporary workers, reinstatement of one Mehtabuddin who was in charge of the Watch and Ward Department but was dismissed for inefficiency, grant of night shift allowance, revision of dearness allowance, and pay scales and lastly prohibition of compulsory overtime work. Leave was granted in this case for considering a number of questions of general importance raised in the petition including a question as to the limits within which this Court may proper interfere with the award of the Industrial Tribunal given under the Industrial Disputes Act, 1947. As regards the latter question Mr Brohi for the appellant‑company contended that this Court could interfere with such awards under Article 160 of the constitution circumstances indicated by one of us (Cornelius, J.) in the following extract from his foreword to Shafi' s Analysis and Text of Tribunals' Award Vol. I, 1957 edition;-- "Although by Article 160 of the Constitution of the Islamic Republic of Pakistan, as recently interpreted by the Supreme Court of Pakistan in the Remington Rand case P L D 1957 S C 170 an, appeal may be entertained against an award of an Industrial Tribunal, yet it must be remembered that `the supervisory jurisdiction‑of the Supreme Court under Article 160 is a restricted jurisdiction', and. while the Court may interfere to correct errors of law, it will do so only if `the law so misunder stood or misapplied raises some general question of fundamental importance to the proper functioning of the Tribunal or the decision of the case'. (Vide the case of Saeed v. Election Petitions Tribunal P L D 1957 S C 91). With the operative and detailed provisions of awards, the Court is not likely to interfere, except in extreme cases of patently unjust proposals which are based on no evidence, or are made in defiance of the evidence". I, with respect, agree with this observation which is based on the decisions of this Court. The learned Attorney‑General who appeared for the Government of Pakistan and Mr. Mushtaq Hussain, the learned Advocate for the union did not contest the position taken by Mr. Brohi on this point. They, however, contested the next argument of Mr. Brohi that the award in question came within the scope of interference indicated in the above observation. Mr. Brohi' s contention was that the Tribunal did not appreciate the basic principles applicable to the case, but based the award on opinion and inferences which are unsupported by facts. There was according to him no proper consideration of the contentions of parties or the available data on record, and the award in respect of the above matters being mere guess work should be set aside. The position taken by the learned Attorney , General and Mr. Mushtaq Hussain on the other hand was that what the Tribunal did was the best that could be done on the material before it and‑ that as all the materials relating to the fixing of wages and dearness allowance were not available, the Tribunal had to rely on the rates given to the employees of other companies and that there was no justification for interference by this Court. But as shall be seen presently in the discussion of each of the eight matters to which the appeal relates, the criticism of Mr. Brohi is fully justified. It is convenient to take the questioned findings in the order 'in which Mr. Brohi dealt with them before us. Demand No. 34‑ In the reference to the Tribunal this demand is "There should be no forced overtime". But apparently: the union modified its position at the time of filing its written statement, for, there, it is stated as follows :‑ "Forced overtime should be stopped, but if the Company wants the workers to work overtime it should ,.give them attractive terms and they should be allowed to work voluntarily to add to their emoluments, but it should not be made a tool to victimize workers There was, however, no specific allegation that any of the workers was victimized by being forced to work overtime. The demand according to this part of the written statement was there fore in effect more for better terms than for the abolition of overtime work. It is not stated in the award that the union urged for its prohibition at the time of the hearing. The reply of the company was that there was nothing forced and that the overtime work was regulated according to Standing Order No. 30 of the Company. It is surprising that on these pleadings the Tribunal thought that the controversy was as to whether compulsory over time work should be allowed to continue and more surprising is the fact that the Tribunal found for the union on the point under reference without considering the Standing Order relied on by the appellant‑company which contains the direct answer to the question. The Tribunal was under an erroneous impression that a workman was bound to do only the ordinary work and that making overtime l work compulsory would be going against the spirit of Article 16 of the Constitution. Had the above‑mentioned Standing Order been looked into the Tribunal would have realized that a workman was bound to work overtime if required to do so. The Employ ment (Standing Orders) Act 1946 requires employers in Industrial Establishments to define with sufficient precision the conditions of employment under them and to make the said conditions known to the workmen. Standing Order 30 is an order issued under the above Act and under paragraph 30 of that Order, every workman is bound (except on valid grounds) to work extra hours when required to do so provided that overtime working shall be regulated according to law. Section 47 of the Factories Act which is the relevant provision of law provides that where a worker in a non seasonal factory works for more than nine hours in any day or for more than 48 hours in any week, he shall be entitled in respect of overtime worked to pay at the rate of twice his ordinary rate of pay. It was not alleged that extra remuneration was not being paid. The reason for providing for overtime work as explained by Mr., Brohi, is that in a factory which works continuously it is necessary for a workman to continue to work beyond his shift if his reliever does not turn up or comes after some delay as otherwise the work of the factory would be seriously dislocated. In view of the3e facts, specially the rule that makes liability to work overtime a term of employment no question of forced labour attracting the letter or spirit of Article 16 on which the Tribunal has relied arises. When a person enters into a contract to perform a certain service it does not amount to forcing him to perform that service if he is held to the liability under the contract. It was not con tended that the workmen were not aware of the conditions of employment mentioned in the above Standing Order. It appears to me that the union itself realized the weakness of their demand that compulsory overtime should be stopped and therefore modified its position by asking for better terms for such work, a point which the Tribunal did not consider apparently because it was not referred to it. In these circumstances, Mr. Brohi was justified in attacking this finding as arbitrary and fundamentally opposed to law and recognized practice. Demands Nos. 22 and 26.‑ These demands are stated in the reference as follows. Demand No: 22.‑ All the workers getting up to Rs. 200 per mensem as basic pay should be given an increment equivalent to 44 per cent. of) the total wages due to increased cost of living on account of revaluation of Pakistan currency with effect from 1st August 1955. Demand No. 26.‑ "The standardization and revision of wage scales should be brought out in fair comparison of , nature of duties and res ponsibilities as under" (herein are mentioned the various scales of pay). The first of these demands though the increase asked for in it is 44 per cent. of the total wages, was construed by the Tribunal as a claim for an increase only in the dearness allowance, and the other as a demand for the revision of wage scales, and both these demands were considered together. Before stating the contentions of the parties as well as the findings of the Tribunal on these points it is necessary to refer to two previous awards made in respect of the workers of the appellant‑company with regard to wages. In 1949 Mr. Wasim the then Advocate‑General to the Government of Pakistan was appointed as arbitrator to decide the basic pay and allowance of workers of this company. He awarded an increase of 18 , 75010 in the wages of workers drawing up to one hundred rupees a month. He examined the grades and placed workers in their appropriate grades. In 1955 Mr. Mansur Alam was appointed as the Tribunal to decide the dispute between the present parties on various points including the question of wages. The demand of the union was that the factory grade list of 1943 was out of date in respect of time scales and should be revised forthwith in consultation with the union. The present appellant resisted this demand on the ground that a mutual settlement effected between it and the union in 1952 where under the demand for revision of the wage scales was withdrawn by the union was in force. This contention was upheld by Mr. Mansoor Alam who observed that some sanctity should be attached to collective bargaining and a settlement mutually arrived at between the parties should not be lightly brushed aside, and that on merits he was inclined to agree with the company that no case had been made out for an increase in the wage scale. According to him an increase in the cost of living could be a ground for an increase in the wage scale only in those companies where there was no separate scale of dearness allowance prescribed, but that in the companies where there was a scale of dearness allowance in addition to basic wages an increase in cost of ‑living could be a ground only for revision of the dearness allowance and not of wage scales. He took into con sideration the fact that the price of cement was under rigid control of Government and consequently the profits also were under control, and that the increase in wages would necessarily be reflected in the selling price of cement which was the basic commodity for all industrial enterprise and development of country. He, however, observed that having regard to the fact that there was a slight increase in cost of living since the last increase in wages there could have been a case for an increase in the dearness allowance but that as unfortunately no such demand was made he could not award an increase. He therefore, recommended to the company that it should increase the dearness allowance paid to its employees by Rs. 5 p. m. He also recommended that the increase of 1875. per cent. which was awarded by Mr. Wasim and was being paid separately might be merged in the wages so as to bring out a clear wage structure. This award was published in the Gazette Extraordinary dated 20th April 1955 and the statement of Mr. Brohi that both the recom mendations of Mr. Mansur Alain were given effect to by the appellant‑company was not controverted. The case of the union in their statement was that the revaluation of the Pakistani currency had resulted in increase of prices of all type of goods by 44 per cent. and in some cases by over 50 percent., that in the case of Messrs. Mackinon and Makenzie, the Industrial Tribunal had awarded an increase of 5 per cent. and that there was also an increase in the case of the General Motors and that as the existing scale of wages was fixed in 1943 it needed revision. The company on the other hand sub mitted that total wages included basic wage and other allowances, that the question of revising the basic wage did not arise, that as the dearness allowance was raised only in April 1955, a further increase was not justified unless it could be proved that the cost of living had risen from April 1955 to such an extent that what was granted by Mr. Mansoor Alam was not sufficient. On these pleadings and the background indicated by the two previous awards one would expect a detailed consideration of the question whether the wages structure should be revised or only the dearness allowance should be increased and if there was to be an increase, on what basis it should be determined. But in the finding of the Tribunal which increased both the basic pay as well as dearness allowance there is no indication of the question having been considered on merits. After stating the contentions on both sides the Tribunal observed: "I am definitely in favour of the revision of the scales of wages as the old scales have out‑lived their normal span of life, and should be declared as closed". It is not explained how the existing scale had become out of date. Having regard to the fact that it was only in April 1955 that Mr. Mansoor Alam had declined to interfere with the wage structure it was necessary for the Tribunal to have considered whether there was any reason to hold that since then there was such a rise in prices that a revision of the basic wage was called for. Basic wages are fixed with reference to the cost of living index obtaining in a specified base year which is selected in the expectation of the prices remaining at a steady level ; but it is not stated with reference to which year the Tribunal fixed the basic wages. The learned Attorney‑General while conceding that there' should be a base year could not say which was that year in this case. While dealing with the argument of the company that in a Madras case the minimum wage was fixed with reference to the price index of 1936 it was observed by the Tribunal that the. conditions of living at Karachi in 1956 or 1957 were totally different from those in Madras 20 years ago; but it cannot be said that 1956‑1957 was taken as the base year. In any case there is nothing to show what the price index of 1956‑1957 was. As regards the rise in prices there is only a bare statement that there was a rise in the . price of wheat, rice and sugar etc. The basis for this statement is not indicated and, what is more, it is not definitely stated that there. was a rise in the prices, since the award of Mr. Mansoor Alam. The statement regarding rise in prices is obviously based on a vague impression and not on any price index. Then again in respect of one of the arguments of the company noticed in the award viz., that taking into account all the allowances and the two increments granted by the two previous Tribunals what the company was paying was really fair wages which were more than the minimum wages, it was observed by the Tribunal that that argument would be examined later with reference to statistical data. But in comparing the wages given by the appellant‑company with those given by other firms the difference between a minimum wage and a fair wage does not appear to have been kept in view. A minimum wage is the irreducible amount considered necessary for the sustenance of the worker and his family and for the preservation of his efficiency, while the living wage is the ideal which enables the workman to provide for himself and his family a measure of comfort also. Fair wage is between these limits and while for a minimum wage employers' capacity to pay is not a relevant consideration, it is so in the case of the fair wage. But it is not clear if while comparing the scales of the appellant with those of the other firms it was determined whether the latter paid minimum or fair wages. After discussing the scales of the other companies the Tribunal observed : "It might of course be said about the oil companies that their financial position is very strong and they can afford to pay much higher wages. Under the circumstances, I cannot bring the Dalmia Workers at par with them, but they certainly deserve higher wages and allowances than what they are actually getting at present". If this observation is to be taken as indicating that the comparison was of fair wages, there is hardly any real comparison on merits for no data regarding the respective paying capacities is given. There is only a vague idea that the capacity of oil companies is greater than that of the appellant‑company and no attempt was made to find out even approximately the difference in their capacities to pay. The increase granted is not based on any calculation. It is not known on what basis Rs. 85 or Rs. M per month was fixed. Further while comparing the scales of tile appellant with those of the other companies the nature of work done by the employees of those companies was not taken i n f o consideration. If this is a revision of basic structure it must be with, reference to 1956‑57, and yet dearness allowance was not only continued but was also increased. Dearness allowance is given counter‑act the rise in prices when it is considered that the stage revision of the basic wages is not reached, but if a revision place with reference to the prices up to date there is hardly any justification for the dearness allowance. The learned Attorncy-General General contended that while revising the basic wages dearness, allowance may also be given. Even if it is assumed that this can, be done, it must be on the ground that the basic wage is raised to meet the rise in prices partially and in order to meet the rest of the rise in prices dearness allowance is given. But there is no distinction drawn in the award. The reference of Demand No. 22 as already indicated ~~ whether increase was necessary because of the revaluation Pakistani rupee. Even if this is taken as confined to dearness allowance it should have been considered if the revaluation affected the prices of the necessities and if so, to what extent. No attempt to ascertain this has been made. All that the Attorney‑General in his attempt to support this award on this point could say was that as the Tribunal did not have before it all the materials, it referred to the scales of the other firms ; but there was nothing preventing the Tribunal from calling for further information. However, the Tribunal does not mention any such difficulty. In the circum stances, I would accept the contention of Mr. Brohi that the award on this point is based not on any definite material or principle but on mere guess work. Demand No. 21.‑ "There should. not be more than two night‑shifts in any department and extra compensation at 25 per cent. of the basic salary should be paid to A & C shift workers". The case of the union under this head was to the following effect. There were three shifts in the factory. Shift A from 9‑30 p.m. to 5‑30 a.m. Shift B from 5‑30 a.m. to 1‑30 p.m. and Shift C from 1‑30 p.m. to 9‑30 p.m. and there was a general shift which worked during the day only. The shift cycle should be so arranged by the company that no employee should do in a week more than two A shifts and 3 C shifts and one relieving shift. It was stated that if this suggestion was accepted by the Tribunal an award could be given accordingly. Workers in A and C Shifts that is those who work from 9‑30 p.m. to 5‑30 a.m. and from 1‑30 to 9‑30 p.m. should be paid night duty allowance at the rate of 25 per cent. of the wages as is the practice in cement factories in India. The company's case on the other hand was that the shifts were arranged in accordance with the provisions of the Factories Act with the approval of the Chief Inspector of Factories and if there was any irregularity in the working of the night shift the Chief Inspector would have objected to the same, but that there was no such objection, and that `in continuous operation of plant such as of the company' it was not possible to restrict a number of night shifts to two a week and that the demand for an allowance for night shifts could not be accepted. In the Standing Order (Exh. C) the direction with regard to the shifts is as follows. "More than one shift may be worked in a department or departments or any section of a department of the factory or establishment at the discretion of the Manager. Nobody should work for more than two night shifts". According to this rule it is clear that working in the night shift is a part of the contractual duty of a workman in an industrial concern. It was not alleged that the Inspector of Factories had found fault with the company as regards the night shifts, nor was it said that this rule of the Standing Order was in any way contravened by the appellant‑company. As a matter of fact the Tribunal observing that the union neither showed how many workers had to attend more than two night shifts in a week nor proved any irregularity in the working of the night shifts and that in the absence of any material about the method of rotation employed by the company it could not restrict the number of night shifts, rejected that part of the demand. But it added that the case for night shift allowance seemed to have some merit, as the workers were required to work during odd hours denying themselves the ordinary home comfort. He accordingly awarded 121 per cent of the basic wage as compensation to the night shift workers. This finding is arbitrary and opposed to law. If the Tribunal had looked into the Standing Order to which reference has .r l read y been made it would have realized that working at night shifts was a part of the duty of the ordinary workmen and section 46 of the Factories Act to which it refers while providing for night shifts does not prescribe an extra allowance as section 47 does in the case of overtime work. It is remarkable that having made up its mind to give the increase the Tribunal fixed it at 12 1/2 per cent. of the wages without saying why that rate was adopted; and the way in` which the direction of the increase is worded implies that there are night shift workers who work always at night, but it was found that it was so. On the other hand, the Tribunal complains of absence of materials as to the rotation in which work was done in night shifts. If there was rotation there could be no fixed night shift workers. That being so, the finding would in effect mean that every worker would get 121 per cent. of the basic wage as all extra allowance for working in rotation at nights. In ibis connection it was submitted by Mr. Mushtaq Hussain on behalf of the union that it is a fact that there are set of workers who Normal, only at night and that there are others who work only in day time, but there is no definite allegation to that effect in the statement of the union on record. Demand No 16.‑ "The nature of employment of the staff who are continuing as `temporary' should be determined. Those having over months service at their credit should be confirmed and given rill the benefits with effect from 1st January 1953". The case of the union under this head was that the company has over 162 persons who have been classified as temporary, that most of them had to their credit over one year s satisfactory service, but that they have been continued as temporary through vacancies had occurred and that in 1946 when this demand was made by the workers the dispute was referred to an arbitration mid the award of the arbitrator was that all persons joining service should be deemed to have been confirmed after six months of service. The case of the appellant firm was that a firm of consultants who had been appointed to examine and report as to how many posts should be made permanent had submitted a report which was being examined and those workers who were temporary would after the consideration of the report arc confirmed with effect from the appropriate dates in each case and that this would be done in the next three months. But as regards tile employment of temporary hands it was submitted that it was not possible to fix any time limit on a work of temporary nature o r in respect of a casual vacancy, that preference was given in filling i ill temporary posts to those who, had already worked for the company with the result that a temporary employee after he had completed a temporary job was fixed in another job of temporary nature and that it was not possible to have ‑a rule that a temporary worker should after putting in six months service become automatically confirmed. As regards the award relied on by the union it was stated that it referred only to those persons who had been appointed on probation. In this demand two questions arise for consideration : (1) whether those who are regarded as temporary workers are working in temporary vacancies or in permanent . vacancies and (2) whether those who have put in six months service in temporary posts should be confirmed. Having regard to the above contentions the Tribunal should have either accepted the assurance of the company, that the first question would be decided on the examination of the report of the exports or proceeded to determine that question by calling for information as to the posts in which the 162 workmen were working. But the Tribunal completely overlooked this question and dealt with only the scond point and what it says under this head is as follows:‑ "It rather sounds too comical that a worker may remain on the temporary list in perpetuity, while vacancies are constantly occurring in the permanent cadre. A temporary worker has been defined in clause 3 (b) of the Standing Order of the Company as a workman who has been engaged for a work which is essentially of a temporary nature likely to be finished within or discontinued after a limited period'. Now these workmen are engaged in departments which will continue to function as long as the factory is in existence. Strictly speaking they are not temporary employees by any stretch of imagination, and under clause 9 of the Standing Orders of the Company they should be deemed to have been confirmed after successfully completing the probationary period of six months, unless an indication to the contrary has been given to them. Similar view was taken by the arbitrator in this very Company as far back as 1946". It appears from these observations that the Tribunal was under the impression that all the persons who are mentioned in the list were appointed in permanent vacancies. But the case of the union was not to that effect. The very fact that in the reference the demand is that the nature of employment of staff should be determined shows that the Tribunal had to first find out how many of these workmen had been appointed to work in permanent vacancies; This was a material point to consider because in the Standing, Order to which the Tribunal refers a probationer is defines: as a workman who is provisionally employed to fill a permanent vacancy subject to confirmation and has not completed six months uninterrupted service therein to the satisfaction of the company ; and rule 9 of the Standing Order on which Tribunal has relied is that after successfully completing the probationary period a workman should be deemed to have been confirmed unless an indication to the contrary has been given to him in writing. Before this rule can be applied to the persons mentioned in the list furnished by the union it should be determined whether they come within section 3 (b) of the Standing Order which defines probationer. As for the arbitration of 1946 the union is wrong when it says that the award of the arbitrator was to the effect that all persons joining service should be deemed to have been confirmed) if they had worked for six months ; and it is surprising that the Tribunal also fell into the same error. The demand considered by the arbitrator, was `making men permanent after serving six months probation' and the award was that `six months from the date of joining service by a worker should be the maximum 1 period during which the company decide to confirm or discharge him' and that on the expiry of the six months if a worker was continued in service without an express order of confirmation he should be deemed to have been confirmed or made permanent. This obviously applies to probationers, but the Tribunal extended this rule to all temporary workers whether they be probationers or not. This was clearly against the Standing Order and the award once again is opposed to law. This relates to acting allowance. The demand under this head was that a worker who is acting in a higher post should be given as acting allowance 35 per cent. of the basic salary of that post. The case of the union was that the practice was to give 20 per cent. of the pay of the higher post; but the company had recently changed this, that if a man who is acting in a higher job had reached the maximum of his own post which is equivalent to the minimum of the next higher grade he did not get any acting allowance and that therefore 35 per cent of the minimum of the next higher grade should be given as an acting allowance. To this the reply of the company was that the acting allowance was being given according to the rule which was in force for a long time and that the union had failed to establish as to why 35 per cent of the basic salary should be paid in addition to the emoluments of the original grade. The relevant rule framed by the management is "an employee doing simple officiating work when acting in a higher post for a period for which acting allowance becomes payable shall draw the pay of his substantive post plus 20 per cent of the pay of the post in which he is acting or if such post is on a graded scale 20 per cent. of the minimum of the grade provided that the total emoluments so drawn shall not exceed the pay of the higher post or the minimum of the scale of the higher post if such post is on a graded scale". The decision of the Tribunal on this point was that this rule was "obnoxious in so far as it nullifies the monetary benefit of a temporary elevation to a superior grade. Ordinarily whenever an employee officiates in a higher post he is granted an officiating allowance amounting to 50 per cent. of the difference between his basic pay and the pay of the post to which he is promoted. My award therefore is that the offending portion of rule 8 of the acting Allowance Rule, should be amended as suggested above". The only basis of the decision as it appears from the award is the rule of acting allowance being 50 per cent. of the difference between the pay of the higher host and that of the post held permanently; but it is not stated as to when and by whom this rule was laid down and how it applies to the employees in an industrial concern. It was not ascertained as to what the practice in, the other industrial concerns was on this point. As the workmen wanted an increase in the allowance they should have been called upon to establish their claim. As it is; Mr. Brohi is justified in criticising this finding as based on mere guess work and not on facts. Demand No. 13 was that overtime allowance should be paid to all the workers irrespective of their assignments as motor drivers, clerks, sweepers, chowkidars, gardeners, compounders and purchase peons. The contention of the union was that when other workers of the factory were getting overtime allowance there was no reason why the workers referred to in the demand, motor drivers etc., should be denied that allowance. The company relied that the employees mentioned in the demand do not come under the category of `workmen' as defined in the Factories Act or Payment of Wages Act, but that Sind Shop and Establishment Act 1940, applied to them and they were paid overtime allowance in accordance with the circular orders based on the latter Act. The rate allowed under that Act (section 33) for overtime work is 1 1 times the ordinary rate of wages, whereas under section 47 of the Factories Act workers coming within the definition of workmen in that Act are entitled to twice their daily wages for overtime work. The Tribunal while recognizing the fact that these Acts prescribe different rates for overtime work held that the definition of a worker in the Factories Act applied to drivers, purchase peons and sweepers. Worker is defined in section 3 (h) of the Factories Act as "a person employed whether for wages or not in any manufacturing process or in cleaning any part of the machinery or premises used for a manufacturing process or in any other kind of work whatsoever incidental to or connected with the subject of the manufacturing process". In the opinion of the Tribunal clerks working in the factory, chowkidars, gardeners and peons do not come within this definition, but drivers, purchase peons and sweepers do. This distinction is made on the ground that the work of the latter is incidental to and connected with the manufacturing process. It therefore allowed the demand as far as these employees were concerned. But it has not been stated how the work of a purchase peon and driver and sweeper is incidental to or connected with the manufacturing process. There was obviously no evidence with regard to what their actual duties were. This is another finding without any factual basis. Demand No.

19. Demand No. 19 was that 20 persons who had been dismissed should be reinstated. The Tribunal allowed this demand only in respect of one Mehtabuddin. In their statement the union did not say anything special about this worker. Their case in general was that the decision of the Management with regard to the charges against the dismissed employees should not prevail, as it deviated from the statutory principles applicable in the matter of dismissal of employees. It was ‑ said (that it was for the management to prove that the dismissal had been ordered in accordance with those principles. To this the appellant replied that it was for the union to prove that the principles stated in their statement had not been kept in view by the management, that the persons whose reinstate ment was asked. for, ha4 been ‑ dismissed many years back, that there was a provision for appeal against the order of dismissal. It was pointed out that this demand was not made before the previous Tribunal which gave its award in April 1955 and that the reasons for dismissing the employees concerned had been recorded by the management. The charge against Mehtabuddin was that his work was unsatisfactory that he lacked sense of duty respon sibility and mental alertness and that he made an incorrect statement about his age. His explanation was obtained and he was dismissed. His appeal was rejected by the General Manager. It was not alleged by the union that any errors of procedure were committed during the enquiry ; yet the Tribunal held that this was a case of victimisation and that he should be reinstated forthwith with full pay from the date of dismissal till his reinstatement which would roughly be Rs. 2,

500. In doing so it dealt with the case as if it had to decide on the merits of .the charges and the explanation when in fact its jurisdiction was only to see if there was a fair enquiry and the employee concerned was given an opportunity to explain the charges, as there was no specific alle gation of malice. If malice had been alleged specifically the Tribunal could have gone into the merits of the allegation, but as it is, it went beyond its jurisdiction. It is remarkable that even in doing so it overlooked the sharp controversy between the parties regarding burden of proof and while the charge gave certain details showing that the age given by the employee was not correct, it was assumed to be correct without what was stated in the charge having been considered. Mehtabuddin was dismissed on 1st November 1954 and yet no representation was made before the Tribunal of 1955 and though the company raised this point specifically it was not considered by the present Tribunal. As pointed out by my Lord the Chief Justice in the Remington Rand case (P I, D 1957 S C (Pak.) 170) an Industrial Tribunal adjudicates on rights mid liabilities, has most of the indicia of a Court and exercise judicial powers of the State. It is no doubt not strictly bound w the rules of evidence, but that does not mean that it could act on L mere conjecture and its own ideas of social justice. In the dis charge of its duty of adjudication it should act on material properly brought on record and law applicable to the matters in dispute. The above analysis of the findings questioned before us shows that the Tribunal in the present case acted more as ;I benevolent despot than as a functionary exercising judicial powers. Sufficient has been said in the above discussion to indicate the findings in question are based on mere guess work without factual basis and in some cases in utter disregard of the relevant statutory provisions. There has thus been a clear miscarriage of justice and I would, therefore, set aside the award as far as demands covered by the appeal are concerned but pass no order to costs. A. R. CORNELIUS, J.‑I agree. MUHAMMAD SHARIF, . J. ‑I agree AHMAD, J. --I agree. A .H. Award set aside,