P L D 1979 Karachi 97 (PLP)

Noor Muhammad for Respondent No.

2. Dates of hearing : 13th and 15th August 1978, The petitioner who was employed as a machine attendant with the respondent No. 2, was charge‑sheeted on 27th February, 1975, for misconduct. The petitioner's reply to the Charge Sheet was found unsatisfactory and enquiry was ordered which was conducted by the Personal Manager of the Company. As the result of the enquiry was against the petitioner, he was served with a second show‑cause notice on 17‑2‑1975. The petitioner's reply to the second show‑cause notice was considered and he was dismissed from service on 27‑2‑1975. The petitioner authorised the Union to take up his matter and the Union, after service of grievance notice, filed an application under section 25‑A of the Industrial Relations Ordinance, before the Junior Labour Court. The petitioner's case was that he had been victimised by the Company on account of his Trade Union activities, more particularly, because he was instrumental in filing a complaint against the Company before the N. I. R. C. It was further contended by him that the enquiry conducted against him was also not fair and there was violation of the rule of natural justice. The respondent No. 2, in its reply statement before the Junior Labour Court raised two‑fold preliminary objections. It was firstly stated that the grievance petition which was addressed by the Union was not in accordance with section 25‑A (1) of the Ordinance as the same was required to be submitted by the worker `himself'. The second objection was that the application under section 25‑A, which was presented by the Union also did not comply with subsection (4) of section 25‑A of the Ordinance inasmuch as it did not bear the signature of the petitioner and was not filed by him.

2. The Junior Labour Court framed two issues namely ; (i) as to whether the domestic enquiry was properly conducted and, (ii) whether the petitioner was victimised on account of his Union activities. The said issues were decided in favour of the petitioner and the Junior Labour Court ordered his reinstatement with full back benefits. As against this the respondent No. 2, filed an appeal before the first respondent which was allowed as per impugned order dated 25th November, 1975. The learned first respondent first decided the legal issue with regard to the maintainability of the application under section 25‑A of the I. R. O. and held that the same was not filed by the Union of the workers of the respondent Company. It was further held by him that no case of victimisation had been made out and "provisions of natural justice" were duly complied with.

3. Mr. Obaidur Rehman, learned counsel for the petitioner, contended that Pak Cigarette Union, which had represented the petitioner, was in fact, the Union of workers of the respondent‑Company and the finding of the respondent No. I in this connection was patenly erroneous. The learned counsel further contended that having decided the issue with regard to the maintainability of the application against the petitioner, the learned first respondent cannot be said to have applied his mind to merits of the case and as such the impugned order was passed without lawful authority. He referred to the provisions of section 25‑A (5) of the I. R. O. to point out that it was necessary for the Labour Court to go into all the facts of the case and non‑compliance of the same vitiated the order. In this connection he referred to ad-judgment of the Supreme Court reported in P L D 1978 S C 207, in which it was held that the Labour Court can go behind a dismissal order and see for itself whether on facts, and, in the circumstances of the case, dismissal order was or was not justified both on merits as well as law. He also referred to P L D 1975 Kar. 288, regarding the interpretation of clause (5) of section 25‑A of the I. R. O.

4. In so far as the first contention of the learned counsel for the respondent‑Company, frankly conceded that the finding of the first respondent in holding that the petitioner was not represented through the authorised Union was erroneous since the Pak Cigarette Union happened to be the Union and Collective Bargaining Agent of the Company. This point, therefore, needs no consideration. In the circumstances, it is the only second contention of the learned counsel which needs consideration.

5. A plain reading of the impugned order shows that the first respondent not only decided the legal issue but had also considered the case on merits. The two broad issues with regard to the validity of the enquiry and the allegation of victimisation were duly taken into consideration and evidence in support of the same was also discussed. It is, therefore, incorrect to say that the learned first respondent did not consider the merits of the case of the petitioner. In the circumstances, reappraisal of evidence is not possible in Constitutional Jurisdiction under Article 199 of the Constitution. There is no lack or excess of jurisdiction and it cannot be said that the impugned order was passed without lawful authority.

6. In the circumstances, the petition has no merits and is dismissed. However, there will be no order as to costs. S. Q. Petition dismissed.