198I PLP 441 (SCMR)

G. SAFDAR SHAH, J.--Briefly stated the relevant facts giving rise to this petition are as follows

2. The petitioners, who are a banking-Company, incorporated in England, has its main Office in Pakistan at Karachi and various branches at diverse places in the country. This case pertains to their Branch Office at Rawalpindi. The case of the petitioners is that as a measure of welfare of the staff, employed in their said Branch at Rawalpindi they have provided a canteen, the opening and closing hours of which were regulated by their Management that accordingly the closing hours of the said canteen were fixed at 7.30 p. m. on all week days, except Fridays and Saturdays when it was to close down at 6.30 p.m.; in the month of March, 1976, however, the Manager of the said Branch came to know that in contravention of the said arrangement the canteen was kept open till late hours of the night, and so by his written order, dated 7-3-1976, a copy of which was also displayed on the canteen Notice Board, the Manager of the Branch directed that the canteen must close down at the appointed hour of 7-30 p.m. ; that on 28-3-1976, a counter notice under the signatures of respondent No. 3 appeared on the staff canteen Notice Board to the e0'ect that the canteen was to open at 7-30 p.m,, as and when the same was brought to the notice of the Manager he called respondent No. 3 to his office and asked him that the said notice must be removed; that since the said counter notice continued to remain exhibited as before, the Manager sent for respondent No..3 to his office and tried to deliver to him a written communication reiterating therein his previous order as well as calling upon him to explain within four days as to why he had disobeyed his previous order, but he is alleged to have refused to receive the said letter and left the office; that on 27-3-1976, therefore, the Manager sent to respondent No. 3 a written notice in that behalf, but the latter seems to have taken no action in the matter until 31-3-1976 when he delivered his reply thereto to the Manager in person saying therein that he had no authority to have ordered the removal of the notice from the Notice Board and further that the time of 7-30 p.m. mentioned therein was actually a mistake as the same was meant to refer to the opening time of the canteen. On 6-4-1976, the Manager wrote another letter to respondent No. 3 asking him to explain as to why the said notice had not been removed but on receiving no reply from him he charge-sheeted him on 14-4-1976 for: (1) wilful interference in the affairs of the Management ; (2) instigating the staff to disobey the Managerial orders ; or (3) willful insubordination and disobedience.

3. On 18-4-1976, respondent No. 4 submitted his written reply thereto but on finding the same to be unsatisfactory the Manager ordered an inquiry against him that in persuance of the said order one Mr. Sakram was appointed as an Inquiry Officer who on 20th, 21st and 22nd May, 1976 recorded the evidence of the parties, heard them in support of their respective contentions and consequently vide his order, dated 9-6-1976, found him guilty of the charge of willful insubordination and willful interference in the affairs of the Management. On the charge of instigating the staff, however, he exhonerated him.

4. On 16-6-1976, a show-cause notice was issued to respondent No. 3 as to why he should not be dismissed from service. On 2i-6-1976, he submitted his reply to the said show-cause notice. Thereafter he was heard in person by the Chief Area Manager, named, Mr. Wilson, who vide his order, dated 3-7-1976 found him guilty but evidently taking a lenient view of the matter he directed that he shall be demoted from the post of Assistant to that of a clerk. It seems that when the said inquiry proceedings were going on against respondent No. 3, the members of the Staff Union, of which he was the acting Secretary, felt agitated and consequently raised an industrial dispute with the Management in the month of April, 1976. On 2-4-1976, the Staff Union served on the Management a charter of demands, but the Management denied the tenability of the same vide their written reply dated 6-4-1976. During the conciliation proceedings which followed, however, the Union withdrew its three demands, but even so there occurred a dead lock between them and the Management and consequently the matter went before the Labour Court, Rawalpindi, as an industrial dispute. On 8-7-1976, the petitioners made an application to the said Court under section 47(2) of the Industrial Relations Ordinance; 1969 praying there in for the grant of permission to implement their final order, dated 3-7-1976, by which respondent No. 3 was to be demoted from the post of Assistant to that of a clerk. The record would show that in order to dispose of the said application, the Presiding Officer examined the Inquiry Officer, as well as respondent No. 3, and thereafter, vide his order, dated 21-8-1976, dismissed the said application. Feeling aggrieved, the petitioners challenged the said order in the Constitutional jurisdiction of the High Court but the same also was used by a learned Single Judge, vide his order, dated 21-11-1978. The Inter-Court Appeal against the said order having failed in limine, the petitioners have come up to this Court praying for leave to appeal against the said judgment of the High Court.

5. We have heard Mr. Noor Muhammad, Advocate for the petitioners. His main contention is that the dismissal of the application of the petitioners filed under section 47(2) of the Industrial Relations Ordinance, 1969, by the learned Labour Court, and whose finding was confirmed by the High Court was without jurisdiction inasmuch as it had no authority to sit in appeal over the findings recorded by the domestic tribunal against respondent No.

3. In support of his contention the learned counsel relied on a judgment of this Court; Pakistan Petroleum Workers' Federation, Karachi v. Burmah Shell Oil Storage and Distributing Company of Pakistan Limited, Karachi (P L D 1961 S C 479).

6. By going through the evidence on record, the judgment of the Labour Court and the impugned judgment of the High Court prima facie, the contention urged by the learned counsel seems to be well founded. It is evidence from the record of the case that the Domestic Tribunal had found respondent No. 3 guilty of the charges of willful insubordination and disobedience a well as willful interference in Managerial functions. Upon the same evidence, the learned Labour Court seems to have recorded a contrary conclusion to the effect :- "It is not believable that an efficient and obedient worker having a blotless career is expected to be of that type. So for this reason I do not see any reason to accord permission to Management to take action against the respondent. Their petition is therefore, dismissed."

7. Now this finding recorded by the Labour Court evidently ran counter to the principle of law laid down by the Court in the above judgment. In this behalf it would suffice to reproduce from page 513 the following dictum :- "The Tribunal after considering the proceedings of the enquiry came to the conclusion that it should not be said that the finding that Nisar Khan was guilty was based on no evidence, that there had been no violation of any principle of natural justice, and observing that an Industrial Tribunal does not sit in appeal over or substitute its own judgment for that of an Enquiry Officer, he dismissed the application. The finding in the enquiry is enough to show that the dismissal was for misconduct not connected with the dispute, and therefore there was no violation of section 33 of the Act. The principle followed by the Tribunal of not sitting in appeal over the proceedings in the enquiry is perfectly correct, I would therefore dismiss the appeal of the Karachi Petroleum Workers' Union against this decision of the Tribunal." In the High Court also unfortunately no notice was taken of the law laid down in the said judgment of this Court and consequently upon the same evidence recorded by the Domestic Tribunal it was held that "it is clear to us that the dispute has arisen only because of a clerical mistake which has been made by the Management, a point of prestige by it. The Labour Court having the jurisdiction to refuse permission especially so when at the root of the controversy was such a mistake and the learned Judge having sustained that conclusion we find no merit in this appeal as it is not in advancement of substantial justice but entirely based on technicalities. The appeal is dismissed. We would not accept the contention of the learned counsel that the Labour Court has not jurisdiction to interfere with the substance of the conclusion drawn in the domestic inquiry or that the Labour Court is to only attend to the form leaving aside altogether the substance of the inquiry".

8. It would thus be seen that it is a fit case in which leave to appeal ought to be granted to the petitioner against the judgment of the High Court. Leave is accordingly granted to them as prayed. Security for costs Rs. 1,

000. The case would be heard on the present record but the parties would be at liberty to file whatever additional documents they would wish to rely on. leave granted.