P L D 1978 Karachi 601 (PLP)

The brief facts leading to this petition are that the 1st respondent being an employee of the petitioner, was on 28‑9‑1974, found to be in possession of a pistol within the factory premises of the petitioner itself, which matter wa sset tied on the interference of the General Secretary of the Union as the pistol was said to b: Lelonging to the uncle of the 1st respondent and had been brought only for the purpose of servicing. The matter did not end here as after sometime the 1st respondent went to the office of the Factory Manager and threatened him with dire consequences if he reported the matter to the Management. This was done in the presence of Mr. Habib‑ur‑Rehman Makba, customer of the petitioner. The Factory Manager, however, on account of this attitude of the 1st respondent reported the matter to the general manager of the petitioner, as a consequence of which the 1st respondent was served with a charge‑sheet dated 7‑10‑1974. He replied denying the allegations and one Captain Nawabzada Saleem Khan an officer of the petitioner was appointed as Inquiry Officer. He conducted the inquiry in which witnesses were examined in the presence of the 1st respondent who also cross‑examined them. He did not examine any witness in his defence, and the Inquiry Officer found the 1 st respondent guilty of the charges mentioned in the charge‑sheet and submitted his report alongwith the inquiry proceedings on 31‑10‑1974 to the General Manager of the petitioner. After applying his mind to the whole proceedings he gave a second show‑cause notice to the 1st respondent on 2‑11‑1974, apprising hiin of the result of the inquiry and the findings therein and called upon him as to why he should not be dismissed for the misconduct for which he was found guilty. Respondent No. 1 did not request for any personal hearing nor did he send any reply till 6‑11‑1974, which was the date given to him for that purpose in the second show‑cause notice. The General Manager of the petitioner, therefore, ordered dismissal of the 1st respondent on 6‑11‑1974, which order was personally delivered to the 1st respondent on 7‑11‑1974.

2. The 1st respondent sent a grievance petition under section 25‑A of the I. R. O., 1969, which was replied to on 12‑12‑1974, and copy of the report of the Inquiry Officer was also sent to him with the same. Respondent No. 1 thereafter filed an application before the Junior Labour Court No. 11, Karachi, respondent No. 2, which was contested but by an order dated 14‑2‑1975, the 1st respondent's application was accepted and his re‑instatement was ordered alongwith full back benefits. This order was challenged by way of appeal under section 36‑D of the

1. R. O., 1969, before the Sind Labour Court IV, but was decided by the 3rd respondent on 15‑9‑1975, by an order whereby the petitioner's appeal was dismissed.

3. Learned counsel for the petitioner argued that the Inquiry Officer had examined evidence and had given full opportunity of defending himself to the 1st respondent. The General Manager had given a second show‑cause notice after carefully examining the inquiry report and agreeing with the findings therein. The 1st respondent had been dismissed only when no reply was received from him. According to him the 1st respondent in his notice under section 25‑A of the I. R. O., 1969, challenged the dismissal order as illegal, void and contrary to the provisions of the Standing Order 15(3) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, and further that the copy of the inquiry held by Captain Nawabzada Saleem Khan had not been supplied to him. The same grounds were repeated by him in his application under section 25‑A of the I. R. O., 1969, filed before the Junior Labour Court 11, at Karachi, and these were duly replied to by the petitioner. But the Junior Labour Court decided the matter on 14‑2‑1975, on the basis of reasons which were unwarranted by law and facts. He disbelieved the very fact of the revolver being brought within the factory premises by the 1st respondent, and said "It is a matter of consideration that one man brings the revolver in the factory and is not caught, where there must be some good number of workers." Further "this was a criminal offence which should have been filed with the police but this was not done." He conculded from all this that "the respondent had not brought revolver but his Union activities resulted in his dismissal." He also held that "no opportunity was given to the 1st respondent to defend him in the domestic inquity and thus no proper inquiry had been held against him." The 3rd respondent in deciding the appeal, also evaluated the evidence in the case in a similar fashion and concluded "I really doubt the truth of the version of the witnesses. The charge against him was that he had threatened to beat the Factory Manager Mr. Raza Karim, but the evidence of Raza Karim falsifies this charge as nowhere throughout his evidence he stated that the respondent had threatened to beat him or that he had shown any fear. Under the circumstances since the charges being baseless the so‑called inquiry against the 1st respondent was redundant and of no avail. In this order he further observed : "No doubt the Labour Court is not competent to sit as a Court of appeal against the findings of the inquiry, yet it is the function of the Labour Court to see whether the inquiry was held properly and the conclusion arrived at was justified on basis of the evidence adduced during the inquiry and that the same is according to the principles of natural justice."

4. Learned counsel for the petitioner, vehemently argued that having accepted this principle the 3rd respondent had acted contrary to the same in appreciating the evidence and bolding that the domestic inquriy was mala fide and without any substantial material. He relied on a case decided by the Supreme Court reported in 1975 S C M R 46, wherein it has been observed that :‑ "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 a question whether the action taken against the petitioner was in accor dance with law. The question whether the petitioner committed the theft was a question of fact and could only be enquired into by Inquiry Officer." In his submission the scope of subsection (5) of section 25‑A of the I. R. O., 1969, did not permit any interference by the Junior Labour Court to go into the merits of the evidence recorded during inquiry proceedings by an inquiry Officer. In fact this was the only point which involved interpretation of clause (5) referred to above, which the learned counsel raised, and argued in this Court.

5. Mr. Hameed M, Siddiqui in reply referred to a Division Bench case of Imdad Ali v. Sind Labour Court Appellate Tribunal (P L D 1975 Kar. 288), in which the above law point bad directly come under consideration. Mr. Justice Muhammad Haleem, who wrote the judgment referred to the approach of the Sind Labour Court towards this question and quoted what had been said by the same in that case. The said quotation is given in para. 3 of the judgment which may be reproduced for the sake of convenience :‑‑ "Even otherwise it is an establishes principle that so far as the domestic inquiry is concerned the Courts are not to go into the merits of the case but have to determine if the inquiry was proper, fair, impartial and all reasonable opportunity was afforded to the opponent to defend himself. Relying on the above said case‑law I hold that the Junior Labour Court has gone beyond its scope and has sat in appeal over the findings of domestic inquiry," and further 'in the first place, I must observe, as has been held by the Supreme Court of Pakistan in number of cases that Industrial Tribunal cannot sit in appeal over the findings of the Inquiry Officer'." The Division Bench then proceeded to consider the question whether such a limitation was placed on the power of the Junior Labour Court and interpreted clause (5) of section 25 of that account, and held as under :‑ In subsection (5), the words "In adjudicating and determining grievance" and those that follow namely, "shall 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 A 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 define the jurisdiction of the Junior Labour Court as a tribunal for facts in regard to the matters which have been dealt with by the domestic tribunal. Therefore if the Legislature in its wisdom has chosen the words of far‑leaching consequences, 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 the second appeal within the meaning of section 100, 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 go into the merits B of the case which is a jurisdictional defect." Confronted with this situation the learned counsel for the petitioner argued that the case decided by the Supreme Court was subsequent in point of time as it is dated 12‑9‑1974, while the High Court case was decided on 5‑4‑1974. Notice was then issued to the Advocate‑General. In his submission the Division Bench case decided by this Court was obviously not brought to the notice of the Supreme Court, nor was the relevant clause (5) of section 25, as it now stood, directly made the subject of interpretation. The Division Bench case of this Court was conscious of the view held by the Supreme Court with regard to decision of the domestic tribunals on question of fact as is evident from what was stated in para. 3 of the judgment quoted above, still the learned Judges had particularly examined the language of clause (5) of section 25‑A which had undergone changes.

7. As no other point was raised or argued and both the learned counsel for the petitioner and the respondent relied on the interpretation of sec tion 25‑A of the I. R. O., XXIII of 1969, this petition is dismissed but with no orders as to costs. s. A. H. Petition dismissed.