1984 PLP 1687 (PLC)

ABDUL HAYEE KURESHI, C J.‑

On the conclusion of the hearing of this case, we had, by a short order, dismissed this petition. The reasons for such short order presently follow. We have heard Mr. Khawaja Akhtar Ali for the petitioner, and Mr. S. Tariq Ali for respondent No.

2. Pre‑admission notice was given to the said respondent. The respondent No. 2 was employed as Staff Reporter in the peti tioner's establishment since 1977. By an order, dated 20th September, 1980, the petitioner transferred respondent No. 2 to Lahore in the same capacity. The order of transfer was to take effect from 1st October, 1980. The respondent No. 2, however, sent an application on 24th September, 1980, seeking eighty‑five days leave on medical grounds. Such leave was refused by the petitioner, and respondent No. 2 sent another application with a Medical Certificate issued by Dr. Anzaruddin Ahmad Siddiqi, recommending a month's leave to respondent No. 2, because he was suffering from hepatitis with breathlessness on exertion. A similar appli cation was again sent by respondent No. 2 for further one month's leave from 1st November, 1980 to 30th November, 1980. The respondent No. 2 was, thereafter, asked to, appear before the Medical Officer of petitioner Company, but he failed to appear. On 22nd November, 1980, the petitioner served a charge‑sheet on respondent No. 2 on the ground of wilful insubordination/disobedience of the order of the petitioner, as contemplated by paragraph 15, sub‑paragraph (3) (a) of West Pakistan (Standing Orders) Ordinance. It was stated in the charge‑sheet that the respondent No. 2 had remained absent for more than ten days without sanction of leave and bpd refused to appear before the Medical Officer of petitioner. An enquiry was held by Muhammad Ashraf, an Enquiry Officer: The respondent No. 2 stated that the action taken by the petitioner was mala fide, he alleged that he had been constantly harassed and victimised by shifting him from reporting side to News Desk, refusing to grant hire night transport allowance, withholding of his annual increment and refusal to pay him outfit and rest and recreation allowance. The Enquiry officer recorded findings that respondent No. 2 was elected as Member of the Executive Committee of the petitioner's employees' Union in 1919. However, it was found that mala fide intention of the petitioner was not relevant in that case, because respondent No. 2 had not proved him self to be an active trade unionist. The Enquiry Officer held that the respondent No. 2, in refusing to submit himself for medical examination before the Medical Officer of the petitioner, and disobeying the order of his transfer to Lahore was guilty of misconduct in terms of paragraph 15 of the Standing Orders Ordinance. This Report was accepted by the Director‑General of petitioner‑Company, and respondent No. 2 was dismissed as from 21st March, 1981. Respondent No. 2 filed an application under section 25‑A of the Industrial Relations Ordinance (hereinafter referred to as "IRO") before the IVth. Sind Sabour Court, Karachi. The learned Presiding Officer held that the respondent No.1 had been rightly treated as being absent from duty. In regard to the grievance of the respondent No. 2, that he had been victimised and the petitioner was guilty of unfair labour practice, the learned Presiding Officer took the view that there was no tangible evidence, and the mere fact of transfer of respondent No. 2 would not show that the petitioners were victimising respondent ‑No. 2, or acting in a manner which may be termed as unfair labour practice. The respondent No. 2, being aggrieved by the order of the Presiding officer, IVth Labour Court, Karachi, filed an appeal before the Sind Labour Appellate Tribunal. This appeal has been allowed, and hence the present petition. The learned Advocate for the petitioner has raised two main contentions before us. His first contention is that the Labour Appellate Tribunal could not consider the facts of the case, and acted incorrectly in re‑appraising the evidence before the Enquiry Officer and the Presiding Officer of the Labour Court. The second contention is that the learned Labour Tribunal acted wrongly in summoning and examining Dr. Anzaruddin Ahmad Siddiqi. In that context, the learned Advocate has mainly contended that it was not proper for the Labour Tribunal to examine the doctor in Court, because thereby a lacuna in the case of respondent No. 2 had been filed up. In regard to the first contention, that the Labour Appellate Tribunal could not consider the facts of the case, and disagree with the findings of the Enquiry Officer, or, the Presiding Officer, Labour Court, it is necessary to refer to some provisions of the I.R.O. The proceedings bad been initia ted under section 25 of the I. R. O. before the Presiding Officer of the Labour Court. The nature of jurisdiction of the Labour Court is stated in subsection (5), section 25‑A which reads as follows :‑ (5) In adjudicating and determining a grievance under subsection (4), the 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." An appeal against the decision of a Labour Court lies before the Appellate Tribunal. Powers of the Appellate Tribunal can best be gauged by reference to subsection (3) of section 38 of the I.R.O., which states that the Tribunal "shall exercise all the powers conferred by his Ordinance on the Labour Court. It would thus seem that, if the Labour Court can go into all the facts of the case under section 25‑A of the

1. R. O., the powers and scope of the Appellate Tribunal are also co‑extensive. Sub section (5) of section 25‑A uses the words that the Labour Court shall go into all the facts of the case, and, in our opinion, these words have to be given full effect and the scope of enquiry before the Labour Court is wider than the scope, say of a Tribunal, examining only the legality of the order. These words clearly signify that the Labour Court has full and complete powers to enter into questions of fact, and also to arrive at its conclusion in regard to questions of law. This questions was directly dealt with by one of us in the case of Ahmad Hadi Shah v. Rashid Textile Mills Ltd. (1976 P L C 444) the judgment in which case is re‑produced. The powers of the Appellate Tribunal being co‑extensive, such Tribunal can also enter into all questions of fact, and record its findings even after displacing the findings recorded by the Enquiry Officer, or, the Labour Court. The learned Advocate for the petitioner has, however, invited our attention to an order of the Supreme Court in the case of Muhammad Shamim v. Messrs Pakistan Tobacco Co. Ltd. (1975 S C M R 46). In that case, the petition for grant of special leave was rejected by the learned Judges of the Supreme Court. It seems a contention was raised in regard to the Labour Court undertaken' an exercise of going into the question of fact. Mr. Justice Waheeduddin Ahmad, in that context, stated as follows : ‑ "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 the question whether the action taken against the petitioner was in accordance with law. The question whether the petitioner com mitted the theft was a question of fact and could only be enquired into by the Inquiry Officer." The same question, concerning the Labour Court's jurisdiction to go into facts of the case, was examined in the case of Crescent Jute Products Ltd. v. Muhammad Yaqub (P L D 1978 S C 207). Mr. Justice Waheeduddin Ahmad was a Member of this Bench, although the order was written by Mr. Justice Karam Elahee Chauhan. No doubt, the earlier judgment of the Supreme Court in the case of Muhammad Shamim v. Messrs Pakistan Tobacco Co. Ltd. has not been referred to in the judgment, but the precise question in regard to the Labour Court's powers to examine the facts have been examined in the order of Mr. Justice Karam Elahee Chau han, with whom Mr. Justice Waheeduddin Ahmad had also agreed. In such context, the Supreme Court has stated as follows: --‑ "The contention, has no merit. In subsection (5) of section 25‑A of the Industrial Relations Ordinance (XXIII of 1969), it is laid down that "in adjudicating and determining a grievance under sub section (4), the Labour Court shall go into all the facts of the case and pass such orders as may be just and proper in the cir cumstances of the case". From the language of the statute herein before reproduced, it is clear that the Labour Court has the jurisdiction to go behind a dismissal order and to see for itself as to whether on the facts and in the circumstances of the concerned case it was justified or not, both on merits as well as law. The words "shall go into all the facts of the case" are a clear guide with regard to the wide scope of the enquiry which a junior Labour Court undertakes under section 25‑A. These words indeed have been used with a purpose and have to be given full effect so as to achieve the result desired. These words show that when a case is brought before a Junior Labour Court, the scope of enquiry is wider than for example the scope of a Tribunal examining only the legality of an order impugned before it. The words "shall go into all 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 conclusion regardless of there being no illegality of procedure in the domestic proceedings. By use of these words the intention of the Legislature appears to provide a double check, one in the form of a domestic enquiry to be held by an employer and the other in the form of a judicial determination by the Junior Court itself. In other words the intention of subsection (5) of section 25‑A appears to provide another forum in determin ing the grievance afresh after considering the facts on which any impugned dismissal is based." We will respectfully follow the latter judgment of the Supreme Court, additionally, for the reason that the same learned Judge, who was a Member of the earlier Bench and had written the order, was also a Mem ber of the Bench that decided the later case. This contention of the learn ed Advocate, that the Appellate Tribunal had no jurisdiction to enter into the questions of fact is, therefore, not tenable. The next question is in regard to the recording of further evidence by the Appellate Tribunal. The learned Advocate stated that, by doing so, the Appellate Tribunal has filled up a lacuna in the case of the respondent No.

2. It seems the defence of respondent No. 2, during the proceedings, was that he was prevented by a serious disease, like hepatitis, from pro ceeding to Lahore after his transfer. Certificates had been issued by Dr. Anzaruddin Ahmed Siddiqi, and the same had been submitted by respondent No. 2 to the petitioner. The question, that arose, was in regard to genuineness and proof of these certificates. In such circumstances, if the Appellate Tribunal had recorded further evidence, no fault can be found. It appears that the Appellate Tribunal had acted in the interests of justice, and had recorded further evidence only to arrive at truth. In any case, it is not contended that the Appellate Tribunal having all the powers that such appellate forums exercise, did not have the power to record further evidence. Even this point has hardly any substance. On merits, we find that the order of the Appellate Tribunal is justified and the respondent No. 2 was prevented by strong and sufficient cause from complying with the order of the petitioner to proceed to Lahore. 1n any case, the respondent No. 2 had stated before the Appellate Tribunal that he was prepared to proceed to Lahore. Such a statement of respondent No. 2 has also been recorded by the Appellate Tribunal in its order. No other point was raised before us. This petition is dismissed in limine. A. E. Petition dismissed.