1991 PLP 403 (PLC)

Gulzar Ahmed for Respondent. Date of hearing: 25th February, 1990. This case has been received by remand back from the Hon'ble High Court of Sindh, Karachi.

2. I have heard Mr. S.P. Lodhi, Representative for the appellant and Mr. Gulzar Ahmed, Advocate for the respondent.

3. The point at issue is whether the appellant had refused a lawful order of the respondent for which he was dismissed. The learned Labour Court gave the finding in affirmative basing its conclusion on certain admitted practices in the establishment. This Tribunal, however, did not agree with learned Labour Court and held that there was no refusal of any lawful order. The decision of this Tribunal was challenged in Constitutional Petition No. D-399 of 1987 decided by the learned Division Bench of Sindh High Court at Karachi on 9-1-1989, whereby their Lordships observed "however, we find that neither the petitioner has produced any documents nor respondent 2 to indicate what were the duties assigned to respondent 2 in terms of above Standing Order 2-A. The explanation given by the respondent 2 is that he being a labourer could not have maintained the record. However, the petitioner being multi-national company of standing must be having some record on this aspect. We, therefore, remand the case to Appellate Tribunal, respondent 1 with the direction to take additional evidence on the above point and then to decide the appeal in accordance with law".

4. It may be pointed that the petitioner before the Hon'ble High Court was the respondent. Mr. Gulzar Ahmed further stated that the respondent had challanged this order of the Hon'ble High Court in the Hon'ble Supreme Court of Pakistan by an Application for Leave to Appeal which was dismissed by the Hon'ble Supreme Court of Pakistan on 19-9-1989. Their Lordships observed "we consider that the learned counsel for the petitioner is not appreciating the order of the High Court correctly. The learned Judges of the High Court clearly observed in their order that 'neither the petitioner has produced any document nor respondent No. 2 to indicate what were the duties assigned to respondent No.2 in terms of the above Standing Order 2-A'. Thus, what the learned Judges were desirous of ascertaining was the duties assigned to respondent No. 2 and this could be ascertained from the document showing terms and conditions of service contemplated by Standing Order 2-A or any other document. Thus, during the remand proceedings the petitioner company will not be restricted only to producing the document (the order in writing) showing the terms and conditions of service contemplated by Standing Order 2-A but any other document which indicates the duties assigned to respondent No. 2".

5. The copy of the order of Supreme Court produced by Mr. Gulzar Ahmed is not attested but it is a photstat copy, which Mr. Gulzar Ahmed states is a correct copy and I see no reason to disbelieve him.

6. Mr. Gulzar Ahmed submits, that the additional evidence be recorded by this Tribunal as ordered by the Hon'ble High Court. However, the power of this Tribunal as Appellate Tribunal are not taken away by this order by the Hon'ble High Court. From the observations of the Hon'ble High Court and Supreme Court it appears that in the view of their Lordships there was no documentary evidence on record to show as to what were the duties of the appellant. As pointed above the finding of the learned Labour Court is not based on any documentary evidence with regard to duties but is based on the admitted practice. Under the circumstances, it is fit and proper that both the parties may be given opportunity to produce documentary evidence on the point as to what were the duties which the appellant had to perform either under the rules or under an order, under Standing Order 2-A of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. I, therefore, set aside the order of the learned Labour Court and remand back the case to the learned Labour Court with directions to allow the parties to lead additional evidence by way of documentary evidence in the light of the aforesaid observations and then decide the case afresh on merits unprejudiced by the previous order of the learned Labour Court or of this Tribunal. M.Y.H./1626/Lb.S Case remanded. Case remanded.