1976 PLP 429 (PLC)

Art. 199--Writ-Concurrent findings of Courts below-Cannot be interfered with. A. G. Monammadally for Petitioner. Shahensha, Hussain for Respondent No.

3. Date of hearing : 1st March 1976. In this constitutional petition the petitioner have challenged the order of the residing Officer of Sind Labour Court No. IV, Karachi, dated 14th May 1975, whereby he upheld the order of the Junior Labour Court No. II, Karachi, dated 14th February. 1975, re-instating the third respondent in service with back benefits.

2. The brief facts forming the background of this case are that the third respondent was employed with the petitioners. It is alleged by the petitioners that on 25th October, 1974, he carob to the 1401. at 4 p. m. and raised slogans which were detrimental to the interest of the petitioners and also incited the workers to adopt go-slow tactics in the production. The Supervisor of the Mill namely Shahzad Ali remonstrated him and asked him to refrain from indulging in such activities upon which lie picked up a quarrel with him and abused and insulted him. He also threatened him of beating inside and out side the Mill and threw a roller at him, However, with the intervention of some persons the situation was brought under control. The third respondent is said to have left the Mill immediately after creating this ugly situation.

3. On the following day the petitioner; served the third respondent with a show-cause notice which was replied by the third respondent the same day. In his reply he repudiated all the allegations levelled against him and said that no such incident took place in the Mill, An enquiry officer was appointed on 29th October 1974 who conducted the enquiry. In his statement before the enquiry officer the third respondent stated that he had attended the factory on 25th October 1974 but denied the allegations brought about against him by the petitioners. The evidence of the petitioners' side was recorded by the enquiry officer but the third respondent refrained from producing any witness in his defence. However, a day earlier to the enquiry i. e. on 7th November, 1974 the third respondent sent two letters (Exhs. 'F & 'G') to the Manager of the petitioners' organisation. Through the first letter it was requested that a copy of the complaint made by the Supervisor to the petitioners may be supplied to him so that he may be able to prepare his defence. In the second letter it was stated that the enquiry officer had asked him to discontinue his Trade Union activities otherwise he would be dismissed from service. On this ground the third respondent alleged that the enquiry officer was prejudiced against him due to his hectic Trade Union activities and therefore some other person should be appointed as enquiry officer. The petitioner's case is that both these applications were received by him after the enquiry was over. However, no evidence was produced to prove this fact before the Junior Labour Court. On the conclusion of the enquiry, the enquiry officer recom mended dismissal of the third respondent from service upon which a second show-cause notice with the report of the enquiry officer was sent to the third respondent. Ultimately he was dismissed from service.

4. After dismissal from service the third respondent served the petitioners with a grievance notice within the meaning of section 25-A (1) of Industrial Relations Ordinance, 1969, followed by the application in the Junior Labour Court. The Junior Labour Court ordered his re-instatement in service after considering the averments of the parties advanced in respect of their respective cases. It may, however, be briefly narrated that the Junior Labour Court held that no proper enquiry was conducted and based its finding on the fact that copy of the complaint was not supplied to the third respondent to enable him to reply the charge-sheet, and copy of the second show-cause notice with enquiry report was also not sent to the third res pondent. He further held that the third respondent had objected to the appointment of Nab! Ahmed as enquiry officer but no heed was paid to his objection, which ultimately resulted into miscarriage of justice. He also held that even the charge-sheet was not properly served on the third respondent. It was as a result of the consideration of these grounds that he held that the enquiry had not been properly conducted and therefore he finally ordered re instatement of the third respondent in service. It may further be mentioned here that before the Junior Labour Court the case of the third respondent was that he was not present in the Mill on 25th October, 1974 and the letter Annexure 'C' as well as his statement before the enquiry officer Annexure 'E' which indicate that he was present in the factory were forged documents.

5. The petitioners filed an appeal before the Labour Court against the adverse finding given by the Junior Labour Court but the Labour Court also dismissed the appeal. Among other grounds the Presiding Officer also held that on 25th October, 1974 the third respondent was not present in the Mill as his attendance card which should have normally contained the signature of the time-keeper in token of his presence revealed that the column meant for signature on 25th October, 1974 was blank. According to him, it prima facie proved that he was not present in the factory on 25th October, 1974. Next, he considered that as no wage had been paid to the third respondent on 25th October, 1974, therefore, it conclusively proved that he was absent on that date. He also did not believe the entry in the Daily Muster Roll showing the presence of the third respondent in the Mill on 25th October, 1974. This document was produced before the Junior Labour Court to prove that on 25th October, 1974 the third respondent came to the Mill, therefore, the letter 'P' was inserted in the column meant to show presence or absence of a worker. But the entry was subsequently scored out. The Labour Court did not believe this document because it was full of overwritings and cuttings. This document has been filed with the petition as Aonexure 'A' and in the column mentioned above there is, 'P' mark, 'X' mark and then nothings of 25th and 29th October, 1974 with the remarks "kept away" and another remark "absent on 25th October, 1974." The Labour Court while fully agreeing with the findings of the Junior Labour Court, additionally took the ground of the absence of the third respondent also into consideration which bad not been fully dealt with by the Junior Labour Court.

6. The main points requiring determination as canvassed before me by the learned counsel for the parties in this case are that whether there is mis reading of evidence or not and whether the enquiry was properly held. The learned counsel for the petitioners mainly contended that the Junior Labour Court as well as Labour Court could not sit in judgment upon the enquiry held by the enquiry officer and scrutinise the same in the manner as it is done by an appellate Court. In this connection he has argued that certain amount of sanctity is attached to the enquiry as is held by the Supreme Court in a case reported as Muhammad Shamim v. Pakistan Tobacco Co. Ltd., Karachi and another (1975 S C M R 46). In this ruling it is held that the finding of the enquiry officer could not be examined in a manner the appellate Court examined the finding of Courts below. I fully agree with this contention but it this case the grounds upon which the Junior Labour Court has held that enquiry was not properly held are altogether different. I have already mentioned that the junior Labour Court has reached the conclusion that the copy of the complaint had not been supplied to the third respondent, second show-case notice with enquiry report had not been delivered to the third respondent and that his objection to the appointment of Nabi Ahmed as Enquiry Officer was not con sidered. He has also held that the charge-sheet was also not proper. In this case it is quite significant that the Junior Labour Court has not examined or scrutinised the evidence recorded by the enquiry officer and has also not challenged the finding arrived at by the enquiry officer on the basis of appre ciation of the evidence recorded by him but he has taken into consideration the manner and method in which the enquiry was held. He has based his judgment on the basis of examination of the provisions of law and the principles of natural justice. After considering the same he came to a finding that the enquiry had not been conducted in accordance with law, and principles of natural justice were altogether ignored by the petitioners. The question whether the enquiry was conducted in accordance with law and the A principles of natural justice could be taken into consideration by the Junior Labour Court as well as Labour Court and while doing so they were perfectly within their jurisdiction.

7. The next contention of the learned counsel for the petitioners is that there was misreading of evidence inasmuch as the third respondent was treated by the Courts below as absent on 25th October, 1874 which has ultimately resulted into knocking down the very bottom of the case. In this connection reliance has been placed on daily muster roll Annexure 'A' about which I have already stated earlier that the Labour Court did not believe this document because of multiple entries and several remarks, cuttings and overwritings in the column which is meant for marking presence or absence of a worker. These entries evidently create a great confusion and it cannot therefore he held that this document was misread by the Labour Court or that he was not justified in rejecting it as a piece of evidence. If I were to appreciate this document I would have also not placed reliance on it because the relevant entry in this document is full of overwritings, etc. As far as the statement of the third respondent before the enquiry officer is concerned that he was present on 25th October, 1974, the Labour Court has not believed this document because the enquiry officer was biased and had prejudice against the third respondent. The evidence led before the Junior Labour Court to prove the absence of the third respondent on 25th October, 1974 has been believed by both the Courts below which I am not inclined to disturb B in exercise of my writ jurisdiction. Before I conclude the discussion on this point I may refer that there is yet another document namely application of the third respondent Annexure 'C' which has been produced to prove that the third respondent was present on 25th October, 1974. The learned counsel for the third respondent pointed out that in reply to the first show-cause notice (Annexure C ), the third respondent had admitted that he attended the factory on 25th October, 1974. But the genuineness of this document has been challenged by the third respondent. Not only this but in their letter dated 29th October, 1974, the petitioners have themselves stated that the reply to the show-cause notice was not received by them. In these circumstances the very existence of this document becomes doubtful. As such I am in full agreement with the findings of the Courts below who have carefully examined the entire evidence and reached the conclusion that enquiry was not properly held and that the 3rd respondent was not present in the Mills on 25th October, 1974.

8. As a result of the above discussion, I find that the concurrent findings of the two Courts below do not call for any interference. This petition has no substance and it is therefore dismissed. The parties are however, left to bear their own costs. Petition dismissed.