1978 PLP 521 (PLC)

6. The learned counsel for the petitioner contended that before granting permission under section 47, it was the duty of the Labour Court to see that correct procedure had been adopted in framing charges and holding enquiry and that the workmen were correctly found guilty of misconduct or not. At this stage it will be convenient to reproduce section 47 of Industrial Relations Ordinance, 1969 which reads as under‑ (1) No employer shall, while any conciliation proceedings or proceedings before an Arbitrator, a Labour Court or Tribunal in respect of an industrial dispute are pending, alter to the disadvantage of any workman concerned in such dispute, the conditions of service applicable to him before the commencement of the conciliation proceedings err of the proceedings before the Arbitrator. We Labour Court or Tribunal, as the case may be, nor shall he‑ (a) save with the permission of the Conciliator, while any conciliation proceedings are pending, or (b) save with the permission of the Arbitrator, the Labour Court or Tribunal, while any proceedings before the Arbitrator, Labour Court or Tribunal are pending. discharge, dismiss or otherwise punish any workman except for misconduct not connected with such dispute. (2) Notwithstanding anything contained in subsection (1) an officer of a registered Trade Union shall not during the pendency of any proceed ings referred to in subsection (1) be discharged dismissed or otherwise punished for misconduct, except with the previous permission of the Labour Court.

7. Now the point for determination is as to what is the scope of section

47. If the contention of the learned counsel for the petitioner is accepted then the Labour Court would have to give its decision on the Sam facts all over again in petitions under section 25‑A filed against the punish went awarded to the workmen. In my view, therefore, the Labour Court under Section 47 of Industrial Relations Ordinance, 1969 has only to see whether a prima facie case of misconduct has been made out, that permission would not affect the decision of the main industrial dispute and that the punishment proposed to be awarded does not amount to victimisation. The r Labour Court should not address itself to the question whether the decision of the employer was a correct conclusion. In the ease Caltex (India) Limited v. Their Workmen (1960 P L C 497) "In exercising its jurisdiction under section 33 of the Industrial Disputes Act, 1947, the Tribunal has to consider whether a prima facie case has been made out by the employer for the dismissal of the employed in question. If the employer bas held a proper enquiry into the alleged misconduct of the employee and it does not appear that the proposed dismissal amounts to victimisation or an unfair labour practice, the Tribunal has to limit its enquiry only to the question as to whether a prima facie case has been made out or not. In such proceedings it is not open to the Tribunal to substitute its judgement in the matter of punishment. It cannot enquire whether the dismissal for which permission is asked is unduly severe. Nor does the fact that mere participation in an illegal strike will not always deserve dismissal have any relevance when the Tribunal is considering an application under this section."

8. In the case, Lord Krishna Textile Mills v. Its Workmen (1961 P L C 737) it was observed that all that the Tribunal can do in dealing with an employer's application is to consider whether a prima facie case for according approval is made out by him or not. It was also observed that the jurisdiction being limited, an Industrial Tribunal cannot such cases question the adequacy of the evidence or its sufficiency or satisfactory character as if it were a Court of appeal from the findings of the domestic enquiry. If the Tribunal is satisfied that the finding recorded at the domestic enquiry is perverse in the sense that it is not justified by any legal evidence whatever, only in such a case it may be entitled to consider whether approval should be accorded to the employer or not p but the difference between a finding which is not supported by any legal evidence and finding which may appear to be not supported by sufficient or adequate or satisfactory evidence should be borne in mind.

9. In the case Swatantra Bharat Mills, New Delhi v. Ratan Lal (1961 P L C 714) it was observed‑ "The jurisdiction of an Industrial Tribunal dealing with an application for approval of the dismissal of a workman, made under section 33(2)(b) of the Industrial Disputes Act, 1947, is limited to an enquiry as to whether a prima facie ease has been made out by the employer against the employee or not. The Tribunal cannot consider the merits of the contention of the rival parties as if it was trying the case itself or sit 111 appeal over the findings of the domestic enquiry."

10. In the case, Management, Victory Jute Products. Chittagong v. Muhammad Ibrahim and another (1963 P L C 754) it was observed‑ "In the matter of granting permission, the Court Is required to determine in a Summary way whether a prima facie case has been made out by the fast party to dismiss the second party. Such determination in a summary way by the Court can under no circumstances be called an adjudication of the matter. When it is a matter far less than adjudica tion, it is not within the province of the Court to go into details of the matter but only to see whether a prima facie case has been established for granting the permission to dismiss the second party and that discharge or dismissal shall be a discharge or dismissal by the employer and not by the Court, against which the second party shall always be within their right to raise dispute and defend themselves under law and that dispute if not settled through conciliation, shall then be adjudicated by the Court."

11. The learned counsel fog the petitioner, however, relied on the judg ment in the case, 'River Steam Navigation Company Limited and another v. A. B. ,S. Choudhry and others (P L D 1958 S C (Pak.) 418), wherein it was observed‑ "The question before an Industrial Tribunal dealing with an application under section 33 of the Act for permission to dismiss a workman, and thus to terminate the employer‑employee relationship, the existence and continuation of which is Ate foundation and purpose of the Industrial Tribunal's jurisdiction to the matter, obviously cannot be dealt with by the Industrial Tribunal arbitrarily or without regard to principle. Consequently, there need be no difficulty in holding that it is an act of a quasi‑judicial nature. It becomes clear that it was so considered in the present case, if regard be had to the careful manner in which the Industrial Tribunal extracted the issues of fact and law, recorded evidence, and heard the parties before giving a considered decision. The procedure which he adopted was clearly judicial, and we an satisfied that he acted with complete propriety in following this procedure." .

12. At that time the Industrial Disputes Act, 1947 was in force and there was no remedy available to an individual to bring his grievance. In other words there was no remedy as is provided now under section 25‑A of Industrial Relations Ordinance, 1969. Therefore, at that time it eras necessary for the Industrial Tribunal to go more deeply into the matter before giving permission for dismissal. In the judgment in the case of Mirza Majeed Baig and 3 others v. Messrs Futehally Chemicals Ltd., Karachi and 2 other (1973 P L C 297), it war observed‑ "It would appear to me from the aforesaid two decisions of the Supreme Court that it is not the function of the Industrial Court under section 30 of the Industrial Disputes Ordinance to hold an enquiry to determine whether the workmen had committed misconduct and on the basis of evidence led before it to grant and refuse to grant the permission sought."

13. The upshot of the above rulings is that the Labour Court his to gee whether a prima facie case of misconduct has been made out against the workman concerned, that the said misconduct has no connection with the Industrial Dispute, which is pending and that it was not a can of victimiza tion on account of Trade Union activities. It may, be pointed out here that the wordings of section 33 of Industrial Disputes Act, 1947 and section 30(2) of Industrial Disputes Ordinance, 1959 are almost the same as section 47 of Relations Ordinance, 1969. Therefore, the above decisions are relevant to the point in issue. In the instant case the charge of misconduct has prima facie been made out and the enquiry appears to have been properly conducted and that there was no victimisation. It will be foe the Labours Court to go more deeply into the matter, when it [s deciding the petitions under section 25‑A of Industrial Relations Ordinance, 1969 filed by Nasim Tahir, Ghulam Hussain. Hanif and Gut Khan against their punishment.

14. In view of the above, I find no merit in this revision petition, which is hereby dismissed. Petition dismissed.