P L D 1975 Karachi 288 (PLP)

MUHAMMAD HALEEM, J.‑A common order will suffice for disposing of Petitions 494 and 927/73 as in both of them an identical question of law was raised namely, as to the scope of section 25‑A(5) of Industrial Relations Ordinance, 1969 while deciding an application filed for redressing individual grievance under section 25‑A of the said Ordinance.

2. In brief the facts in Petition No. 494/73 are that the petitioner was employed by respondent No. 2 in September, 1968 and in March, 1972 he was vice‑treasurer of the Employees' Union and was nominated as trustee of the body called the `Companies Profits (Workers' Participation) Fund'. On 21st October, 1972 the petitioner was served with the charge‑sheet in which the charges were of wilful insubordination, disorderly behaviour and neglect of work and he was called upon to submit his explanation within a fortnight as to why disciplinary action should not be taken against him. Thereafter an inquiry was held and he was found guilty of all the charges and, therefore dismissed from service with effect from 4th November, 1972. He then preferred a grievance petition on 14th November, 1972 which was rejected on 27th November, 1972. Aggrieved by it he filed an application under section 25‑A of Industrial Relations Ordinance, 1969 before the Junior Labour Court No. 1; Karachi, which vide order dated 15th February 1973, held that the charges have not been proved against him and as such no case of misconduct was made out. The second respondent went in appeal against this order before the Sind Labour Court No. 1, Karachi, which did not go into the merits of the case not held while setting aside the order, that the Junior Labour Court could not go into the merits of the case and review the finding of the inquiry officer in the way that an appellate Court does. This order is dated 20th March, 1973 and has been impugned in this petition. In Petition No. 927/73, the petitioner was employed by the respondent No. 2, in April, 1960 and was charge‑sheeted on 24th July, 1972 for having misappro priated the tram fare. He was called upon to submit his explanation, and after its submission, an inquiry was held and upon the report of the inquiry officer his services were terminated on 24th July, 1972. The petitioner then preferred a grievance petition which was rejected, and finally, filed an application under section 25‑A of Industrial Relations Ordinance, 1969 before the Junior Labour Court No. 5 which ordered his re‑instatement by order dated 18th April, 1973. Against this order, the second respondent went in appeal before the Sind Labour Appellate Tribunal, Karachi, which again set aside the order of the Junior Labour Court on the identical ground. This order is dated 16th May, 1973 and is impugned in this petition.

3. The approach of the Sind Labour Court No. 1, in its order dated 20th March, 1973 seems to be of non‑interference with the finding of the domestic' 'tribunal. In elaborating this stand, this is what it has held :‑ "Even otherwise it is an established principle that as far as the domestic enquiry is concerned, the Courts are not to go into the merits of the case but have to determine if the enquiry was proper, fair, impartial. and all reasonable opportunity was afforded to the opponent to defend himself. Relying on the above said case‑law I hold that the Junior Labour Court has gone beyond its scope and has sat in appeal over the findings of domestic enquiry." Similarly the Sind Labour Appellate Tribunal Karachi, has in its order dated 16th of May 1973 observed as under :‑ "In the first place, I must observe, as has been held by the Supreme Court of Pakistan in a number of cases that Industrial Tribunal.: cannot sit in appeal over the finding of the Enquiry Officer. This Court is not entitled to examine as to why the Enquiry Officer preferred the statement of Muhammad Ashraf and Jamal Khan for that of Khushi Muhammad."

4. None of the above courts, therefore, went into the merits of the case upon the principle so stated. Whether such limitation is placed on the power of the Junior Labour Court therefore, needs consideration. Section 25‑A of Industrial Relations Ordinance. 1969 was first introduced in the Industrial: Relations Ordinance, 1969, on 13th April, 1972, by Ordinance IX of 1972. Subsection (5) of this section reads as under :‑ "(5) In adjudicating and determining a grievance under subsection (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." Again by the Industrial Relations (Amendment) Act, 1973 promulgated on 9th February 1973; 'the words "Labour Court" were substituted by the words "Junior Labour Court". Therefore, on the dates of the filing of the applications, section 25‑A was in force.

5. In subsection (5), the words "In adjudicating and determining a grievance" and those that follow namely, "shall go into all the facts of the case" have been used not without a purpose, for the intention seems to be to provide another forum for determining the grievance afresh after considering the facts on which the dismissal is based. If that was not so, then there was no occasion for using the words "shall go into all the facts of the case", which in our view define the jurisdiction of the Junior, Labour Court as a tribunal of fact in regard to the matters which have,, been dealt with by the domestic tribunal. Therefore if the Legislature" in its wisdom has chosen the words of far‑reaching consequence, we do not see how their meaning can be whittled down and the provision construed in a limited sense as if the Junior Labour Court was hearing a second appeal within the meaning of section 100, C. P. C. or a revision under section 115, C. P. C. The reason is also not far to seek for it was) intended to provide a forum to check against arbitrary and capricious) dismissals. We have, therefore, no hesitation in holding that the two Courts wrongly refused to go into the merits of the case which is a jurisdictional defect. The learned counsel for the contesting respondents were unable to l support the orders of the Sind Labour Court and the Sind Labour Appellate Tribunal and rightly conceded that they be declared as without lawful authority and the appeals be decided on merits. Mr. Nizam Ahmad, however, wanted us to give a finding that the Junior Labour Court could not examine the witnesses other than those examined by the domestic Tribunal, but we refrain from doing so in view of the order that we are now making. It will be for Mr. Nizam Ahmed to raise this contention before the Labour Court. The petitions are, therefore, allowed and the impugned orders are declared as without lawful authority and of no effect. The appeals will now be heard and decided on merits by the Courts in which they were filed. There will be no order as to costs. Petitions allowed.