1976 PLP 319 (PLC)

I accor6ngly hold that the Enquiry was fair and impartial and the learned Junior Court had no jurisdiction to sit as Court of appeal against the same. The learned counsel says that the law laid down by the Sind Labour Court in these observations could hold good before the introduction of section 25-A in the Industrial Relations Ordinance by Ordinance IX of 1912. After the introduction of section 25-A the Junior Labour Court has been specifically given the power to go into all facts of a case. Subsection (5) of this section is relevant which reads as under: - In adjudicating and determining a grievance under subsection (4), the Junior Labour Court shad go into all the facts of the case and pass such orders as may be just and proper in the circumstances of the case. This provision of the law came under scrutiny by a Division Bench of this Court in Imdad Ali v. Sind Labour Appellate Tribunal (P L D 1975 Kar.288) which held that the refusal of the Junior Labour Court to go into the merits of the case amounted to jurisdictional defect. The relevant observations are: In subsection (5) the words In adjudicating and determining a grievance and those that follow namely, shall go into all the facts of r the case have been used not without a purpose for the intention seems to be to provide another forum for determining The grievances afresh a after considering the facts on which the dismissal is based. If hat was not so, then there was no occasion for using the words `shall go into all the facts of tie case , which in our view defines the jurisdiction of the Junior Labour Court as a tribunal of fact in re gird to the matters which have been dealt with by the domestic tribunal. There fore 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 115, 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 ail go into the merits of the case which is a jurisdictional defect." The learned counsel for the respondent contends that this view expressed by a Division Bench of this Court amounts to have been reversed in Muhammad Shamim, v. Pakistan Tobacco (1975 S C M R 940). In this case four grounds were taken for seeking permission to file an appeal before the Supreme Court. The fourth of the grounds urged was of the grounds urged was: The Labour Court should have gone into the question whether the petitioner has committed theft. The observations of their Lordships of the Supreme Court on this ground are in the following words: "The last contention that the Labour Court should have gone into the question whether the petitioner had committed any theft or not is also devoid of force. The Labour Court is only concerned with the question whether the action taken against the petitioner was in accordance with law. The question whether the petitioner committed the theft was a question of fact and could only be enquired into by the Inquiry Officer." But it is obvious that the statutory provisions of subsection (5) of section 25-A Industrial Relations Ordinance 1969 were not brought to the notice of their Lordships. Be that as it may, the findings of the Junior Labour Court are not sustainable on any ground. They are based purely on conjectures and surmises. After giving the history of the charge-sheets served upon the peti tioner the learned Presiding Officer of the Junior Labour Court No. 4 observed as follows: - This all has happened in space of about four-five months. This gives rise to the suspicion that the Management was after the applicant to find fault with him. And again: - The intention of the respondent does not appear to be bona fide. The learned Presiding Officer of the Sind Labour Court in his order dated 22-2-1974 has repelled the conclusions about the mala fide actions against the petitioner when he observes "But the facts on the record show otherwise. There is no material on record to arrive at such a suspicion. The opinion expressed by the learned Presiding Officer in the award is based on presumptions and conjectures." The Presiding Officer of the Junior Labour Court has not discussed the evidence brought on record before him on the merits of the case. The Sind Labour Court, therefore, had to go into the facts of the case. The learned Presiding Officer of Sind Labour Court has gone into the merits of the case and discussed the evidence brought on record before the Junior Labour Court and has come to a conclusion that he was rightly found guilty of misconduct at the inquiry. He observed that the facts on record showed that it was a just and proper inquiry held according to principles of natural justice. In view of the findings of the Sind Labour Court, the objection taken by the learned counsel for the petitioner that the provisions of subsection (5) of section 25-A of the I. R. O. has been disregarded, is not sustainable. The learned counsel for the petitioner, however, contends that the fact whether the order, alleged to have been disobeyed, was a proper order has not been inquired into. By this the learned counsel wants to know that the dis obedience is not made out because it was of an order which was not proper as at the time the alleged order was issued he was busy on another job. The onus to prove that such order was not proper lay upon the petitioner him self. The learned counsel for the petitioner has not been able to show me from the record if the petitioner ever alleged this fact or if any fact was g brought on record through cross examination of respondent's witness to support this contention. In any case the contention raises a question of fact which is beyond the scope of a writ petition. In view of the above discussion I find no merit in the petition and dismiss it with costs. Petition dismissed.