1976 PLP 444 (PLC)

The lower Court has said in the impugned order that the dismissal order was passed on the same day when the enquiry report was signed by the Enquiry Officer and hence no proper opportunity "was afforded to the respondent to explain his case before the authorities. As a matter of fact the respondent participated in the enquiry. In the recent judgment in Appeal No. KAR-156/72 decided on 2-3-1973 the Sind Labour Appellate Tribunal has held that no second show cause notice to dismiss the workman is necessary. The charge-sheet itself required to show cause why he may not be dismissed for the offence with which he stood charged." Suffice it to say that the order of the Junior Labour Court was set aside and hence these petitions.

3. At this stage I may also state that originally 14 workmen including the seven present petitioners had been charge-sheeted and dismissed by the respondent Mills. All those 14 workmen had filed applications under section 25(A) of the Industrial Relations Ordinance before the Junior Labour Court. and the respondent-Mills had thereafter, filed 14 separate appeals. Out of these 14 appeals, six were dismissed by the Appellate Court and I am infor med by the learned counsel at the Bar that these six workmen have been re-instated. The appeal against 8 workmen including the seven petitioners were allowed by the Appellate Court and they have filed separate petitions. One out of these workmen withdrew the petition and I am informed b the learned counsel on either side that the dispute as between that workman and the respondent Mills has been settled. Presently petitions of the seven pre sent petitioners are before me.

4. I have heard Mr. Muhammad Shafiq Qureshi for the petitioners and Mr. Nizam Ahmed for the respondent Mills. The respondent namely, the first Sind Labour Court, Karachi has not defended these petitions.

5. Mr. Muhammad Shafiq Qureshi the learned Advocate for the petitioners has raised the following contentions in support of the petitions before me:-- (i) That the Appellate Court acted wrongly by not considering the facts of the case; (ii) That the order of the Appellate Tribunal states no reasons for dis placing the findings of the Junior Labour Court; (iii) That the order of the dismissal was illegal because the enquiry held by the Enquiry Officer was not fair and was violative of the provi sions of Standing Order 15; and (iv) That after the report of the Enquiry Officer no second show cause notice was given by the respondent-Mills to the present petitioners. Mr. Nizam Ahmad the learned Advocate for the respondent-Mills candidly conceded before me that the Appellate Court has not adverted or applied its mind to the facts of the case and had not advanced any sufficient grounds for disbelieving the findings of fact recorded by the Junior Labour Court. However, the learned Advocate has urged that it is not the function of the Junior Labour Court or the Appellate Court to disturb the factual findings recorded by the Enquiry Officer in the domestic enquiry conducted at the instance of the employer. In regard to the respondent Mills having failed to give second show-cause notice, the learned Advocate for the respondent has contended before me that the second show-cause notice is not contemplated by Standing Order

15. Mr. Nizam Ahmad, the learned Advocate for the respondent Mills has also urged before me that on the date fixed for announcement of order by the Appellate Court the petitioners in these cases had conducted themselves in an unruly manner in the Court and had also manhandled the Presiding Officer of the Appellate Court and by such conduct they have disentitled themselves to discretionary relief in these proceedings. In such context the learned Advocate has placed before me an application supported by an affidavit of Mr. Habibullah, the Manager of the respondent Mills. In the affidavit or the application, Mr. Habibullah has not stated if he was present at the time of this alleged incident. In the counter-affidavit that was filed by the respon dent Mills similar allegations were made which were denied by the petitio ners in their rejoinder affidavit. In such context I have no other material before me except the affidavit of Mr. Habibullah which does not state if he was personally present and saw the incident but the allegations are denied by the petitioners. In my view the material is not sufficient to result in a finding against the petitioners on the ground of their having behaved in unruly manner before the Appellate Court. I am also not aware whether any action or report was made by the Presiding Officer of the Appellate Court and if so what was the result. Whether such a circumstance will disentitle the petitioners to relief in these proceedings is also open to question and Mr. Nizam Ahmed, the learned Advocate for the respondent-Mills has not been able to point out any case-law directly touching on the subject. I do not propose to record nor do I feel called upon to record any finding on such allegations in this judgment.

6. The main question in the present proceedings is in regard to the legality of the order passed by the Appellate Court. This order as already stated is sought to be attacked on the ground that the same does not advance any reasons for displacement of the findings of the facts recorded by the Junior Labour Court and in fact the tenor of this order indicates that the Appellate Court held the view in favour of non-interference with the factual findings of the Domestic Tribunal viz. the Enquiry Officer.

7. The learned Advocate for the petitioners has invited my attention to the provisions of section 25-A (5) of the Industrial Relations Ordinance, 1963 which reads as follows: "In adjudicating and determining a grievance under subsection (4), the Junior 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." Appeals against the decisions of a Junior Labour Court lie to a Labour Court. The words "shall go into all the facts of the case" are a fair indication in regard to the scope of enquiry by a Junior Labour Court under section 25-A of the Industrial Relations Ordinance. Such words indeed are with a purpose and have to be given full effect in accordance with the establish principles of interpretation of statutes. It would thus seem that when a case is brought before the Junior Labour Court, the scope of enquiry is wider than the scope of a Tribunal examining only the legality of the order. The words "shall go into the facts of the case" clearly signify that the Junior Labour Court has full and complete powers to enter even into questions of fact and to arrive at its conclusions regardless of no illegality of procedure being pointed out in a case. Intention of the Legislature appears to be to provide a double check, one in the form of domestic enquiry and the other in the form of judicial determination by the Junior Labour Court. Such circumstances were examined by a Division Bench of this Court in petitions Nos. 927 and 494 of 1973 (unreported) and Muhammad Haleem J. in such context observed as follows: "In subsection (5), the words 'in adjudicating and determining a grievance and those that follow namely, hall 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 defines the jurisdic tion of the Junior Labour Court as a tribunal of fact in regard to the matters which have been dealt which by the domestic tribunal. Therefore, if the Legislature in its wisdom has chosen the words of far- reaching consequences, we do not see how their meaning can be whit tled down and the provision construed in a limited sense as if the Junior Labour Court was bearing a second appeal within the meaning of action I CO, C. P. C. for a revision under section 115, C. P. C. The 40,reason is also not far to seek for it was intended to provide a forum, to check against arbitrary and capricious dismissals." I am in respectful agreement with the observations of the Division Bench.

8. On an examination of the order of the Junior Labour Court I have found that it has recorded findings of fact on the basis of the enquiry held either by the Enquiry Officer or by him and had come to the conclusion that the respondent Mills had failed to prove the misconduct of the petitioners as to make them liable for punishment under Standing Order

15. Besides there were findings of fact to the effect that the enquiry conducted by the Enquiry Officer was far from fair and no adequate opportunity for defence was given to the petitioners. For displacement of such findings of fact all that is stated by the Appellate Court is, what has been reproduced above in para. II of the order, the Appellate Court has considered the scope of interference in regard to domestic enquiries carried out by the Enquiry Officer. In such context the Appellate Court has among others relied on an order of the Industrial Court, West Pakistan in the case of Messrs Iqbal Silk Mills Ltd. v. Mahmood Mian (1969 P L C 691). The learned Chairman of the Industrial Court had in that case held that it was a settled principle of law that findings of fact recorded by an Enquiry Officer would be very rarely disturbed because the provisions of the Evidence Act and the Code of Civil Procedure had not been strictly applied to the domestic enquires, Initially, the case referred to was a case under the Industrial Disputes Ordinance, 1959, in which enactment provisions for proceedings identical to section 25-A of Industrial Relations Ordinance did not exist. I am clearly of the view that when a matter is brought before a Junior Labour Court under section 25-A of the Ordinance, the Junior Labour Court has full powers of appraisal of evidence and recording of independent findings. After the Junior Labour Court has recorded its findings, the Labour Court will sit in appeal over such orders by virtue of section 36-D of the Industrial Relations Ordinance like any other Appellate Court having similar powers to appraise the evidence and in such circumstances if the Labour Court feels inclined to disturb the findings of fact recorded by the Junior Labour Court; it can certainly do so, but not without recording its reasons. In the present case I find that Appellate Court has stated no reasons whatsoever for displacing the findings of the Junior Labour Court and for that reason alone the impugned order is liable to be quashed.

9. The next contention of Mr. Nizam Ahmed, appearing for the respondent Mills is in regard to the evidence that was recorded by the Junior Labour Court. He hay canvassed before me that it i9 not the function of the Junior Labour Curt to record fresh evidence on the same facts on which Inc Domestic Tribunal had Already recorded evidence and the learned Advo cate urged that by so doing the Junior Labour Court has transgressed its normal functions. In this context the examination of the record has revealed to me that the bulk of the evidence before the Junior Labour Court was led by the respondent Mills who have examined not less than 12 witnesses. Under section 36-B of the Industrial Relations Ordinance, powers have been conferred on the Junior Labour Court to summon and enforce attendance of witnesses' to examine them on oath, and also to compel the production of documents and material objects. However, the Ordinance does not pro vide, nor does section 36-B of the Ordinance in my humble opinion, appear to have been enacted, for creating a second venue or for holding a C second inquiry on the same allegations and facts which formed the basis of the inquiry by Domestic Tribunal. If that were so, it would be virtually meaningless to hold a domestic inquiry and the main purpose of Standing order No. 15 would be rendered an exercise in futility. If a second inquiry on same facts was mandatory, I am of the view that it would be more convenient and less humiliating for all parties as well the Domestic Tribunal to retrain from a domestic inquiry, which would be rendered only a time consuming and both creating process. But, there may be some cases, genui nely requiring the utilization of powers under section 36-B of the Ordinance. To quote instances; if allegations are made that no inquiry has been held or that the record of the Domestic Tribunal does not faithfully reflect the evidence, or for the allegation that the Domestic Tribunal had failed to record evidence. The illustrations are not exhaustive and there may be a variety of reasons which may persuade the invocation of section 36-B of the Ordinance. It cannot therefore, be said that evidence cannot be recorded by the Junior Labour Court, for that would amount to rendering the provisions of section 36-B of the Ordinance nugatory, but evidence can be recorded only for advancing justice or prevention of miscarriage of justice Such powers have t be exercised with caution and circumspection and only for the purpose of achieving the object of obtaining just and proper decision, as is contemplated by section 25-A (5) of the Ordinance which states the purpose of conferring jurisdiction on the Labour Court. Applying the above test I am of the view that the Junior Labour Court in the present case has not acted illegally because it was satisfied that the inquiry by the Domestic Tribunal was neither fair nor full. In any case the respondent has derived the full benefit by successfully persuading the Junior Labour Court to record the evidence of his witnesses.

10. In regard to the contention that the dismissal was illegal because the inquiry was not fair and was violative of provisions of Standing Order 15, I do not wish to record any finding for the reason of the order that I propose to puss.

11. The learned Advocate for the petitioner has also assailed the order of dismissal of the petitioners on the ground that a second show-cause notice before imposition of penalty was not given by the respondent Mills to the petitioners. Such point was raised before the Appellate Tribunal which repelled the contention on the basis of an urder passed by the Sind Labour Appellate Court. It seems that the Appellate Court was not aware of a judgment of a learned Single Judge of the Lahore High Court in the case of Punjab Road Transport Corporation v. Punjab Labour Appellate Tribunal Lahore (P L D 1972 Lah. 699) The learned Single Judge held the view that after the conclusion of the domestic enquiry another show-cause notice was nece6sary and in such context the learned Single Judge has observed as follows :- "In the absence of the Enquiry Officer's report he could not possibly know as to why his defence had not been accepted. In case he was supplied a copy of the inquiry report he may have been able to satisfy the employer that the findings recorded by the Inquiry Officer were erroneous or not justified. In these circumstances the supply of the Enquiry Officer's report was not only necessary in order to satisfy the interest of "natural justice but was essential in order to fulfil the requirements of clause (4) of Standing Order 15 itself. Under its terms a workman is assured of an opportunity to explain the adverse findings and by the omission to supply a copy of the Enquiry Report to the respondent be was deprived of the opportunity of explaining the adverse findings recorded therein. The omission in this respect therefore amounted to a contravention of clause (4) of Standing Order 15." The decision of the learned Single Judge was challenged before the Supreme Court and the same was upheld. His Lordship Mr. Justice Salahud din Ahmed while stating his opinion on behalf of the Bench of the Supreme Court, observed as follows:- "In our opinion, therefore, it was necessary and consistent with the principles of natural Justice that not only the respondent should have been furnished with a copy of the enquiry report but also he should have been given an opportunity to show cause why the order of dismissal should not be passed against him. Evidently such an oppor tunity must take the form of written show-cause notice to the respon dent. The mere fact that the respondent had personal audiences with his employer when he asserted he was not guilty cannot replace the aforesaid requirement of law. "I may incidentally point out that in the case which has been referred to, the workman was given a personal hearing before being punished but since a copy of the enquiry report had not been supplied to him and he had not been given an opportunity to show cause against the punishment, the order of dismissal passed by the employer was held to be bad in law, however, this too, is within the scope of the enquiry that has to be held by the Labour Court while hearing the appeal and I have adverted to this aspect of the case for pointing out the correct position of law as it stands today in view of the Supreme Court judgement.

12. For all the reasons that I have stated above I am of the view that the Labour Court exercising appellate powers has on mistaken view of law refused to enter into questions of facts and has displaced the findings of fact recorded by the Junior Labour Court mainly, on the premises that the Junior Labour Court has no powers to embark upon a factual enquiry. The Labour Court has also misconceived the legal position in regard to Vie nature of enquiry that has to be held by the Junior Labour Court. In the result I hold that the order of the Labour Court is without lawful authority and of no legal effect and for such reason the same is quashed. The Labour Court shall re-hear the appeals and decided the cases in accordance with the observations contained in this judgment. These petitions are allowed to such extent but the petitioners are awarded costs of the petitions recoverable from the respondent-Mills. Order accordingly.