This Constitutional Petition is directed against an order passed on 3 r-12-19 4 by the Second Sind Labour Court, the second respondent herein, refusing permission to the petitioner herein under section 47 of the Industrial Relations Ordinance, 1969, to which I will refer to as the I. R. O., to dismiss the first respondent herein.
2. The petitioner is a private limited Company engaged in the sale and manufacture of pharmaceutical products and I will refer to it as the company. The first respondent was engaged by the company with effect from 23-5-1963 as a Statistical Assistant. On the basis of a show-cause notice, dated 22-11-1973, and a charge-sheet, dated 4-12-1973 a domestic enquiry was held by the petitioner against the first respondent. According to the report of the Enquiry Officer in that enquiry the following six charges were established against the first respondent :-
(i) failure to submit the sales statistics for the months of August, September and October, 1973, which were required to be submitted monthly ;
(ii) habitual negligence by reason of failing to submit the above reports ;
(iii) posting of posters on the walls and in the premises of the factory on 21-I1-1973 during working hours ;
(iv) disfiguration of the walls of the Company's factory and causing wilful damage to the Company's property by the aforesaid act of posting posters ;
(v) refusing to accept copy of show-cause notice which was considered to constitute disorderly behavior subversive of discipline ; and
(vi) absence by the first respondent from his seat, without permission, on 2 -11-1973, between 3 and 3-30 p. m., and again from 4 to 4-40 p. m.
3. On the basis of the report of the Enquiry Officer the petitioner proposed to dismiss the first respondent and accordingly issued a second show-cause notice to him on 22nd February, 1974.
The first respondent preferred an appeal to the General Manager. Of the Company against the enquiry proceedings and the action proposed to be taken against him, but his appeal was rejected by the General Manager's Letter of 22-5-1974. As the first respondent was the President of the S. K. & F. Employees' Union, which is stated to be the sole Union of workmen and the Collective Bargaining Agent in the establishment of the Company, an application was submitted by the Company to the Second Sind Labour Court, the second respondent herein for permission under section 47, I. R. O. For dismissing the first respondent. It may be pointed out that earlier the Company had obtained permission from the Third Sind Labour Court to stop the increments of the first respondent for one year, but no such penalty has up til now been imposed upon him as the orders of the Third Sind Labour Court have been challenged in this Court by way of a constitutional petition which is still pending.
4. The Second Sind Labour Court has dismissed the application of the Company under section 47, I.
R. O. By the impugned order as in its opinion the domestic enquiry against the first respondent was not fair and impartial and was conducted in an arbitrary and perverse manner. The learned Labour Court based this finding on the following defects and infirmities noticed by it in the enquiry :-
(i) The enquiry was started with the cross-examination of the first respondent.
(ii) The Enquiry Officer had himself examined and cross-examined the witnesses.
(iii) The Enquiry Officer had been himself briefing the witnesses.
(iv) The Enquiry Officer asked the Company's witness, Abidi, about the work and conduct of the first respondent, which he was not competent to do.
(v) Despite the fact that there was no charge of late coming by the first respondent, the Enquiry officer had made enquiries from the witnesses on this point.
(vi) A number of questions sought to be-asked by the first respondent from the Company's witnesses were disallowed by the Enquiry Officer which fact has greatly prejudiced the case of the first respondent.
(vii) A copy of the original complaint on the basis of which the charge sheet was issued to the first respondent was not furnished to the said respondent. According to the learned Labour Court this circumstance alone "would be considered death blow for the applicant's (Company's) case".
5. Mr. Khalid Ishaq, the learned counsel for the Company, has assailed the impugned order on two grounds. His first ground of attack was that the learned Labour Court has wholly misconceived the nature and the scope of its powers under section 47, I. R. O.' and has proceeded to examine the case as if it was one under section 25-A, I. R. O., the powers and jurisdiction where under of the Labour Court are much wider than under section 47,
1. R. O. Elaborating his argument on this point, the learned counsel submitted that whereas under section 25-A of the I. R. O. It is permissible for the Labour Court to go behind a dismissal order or other order adversely affecting a workman and see for itself whether on facts, and in the circumstances of the case, the dismissal or other order was or was not justified, both on merits as well as law, as held by the Supreme Court in the case of Crescent Jute Products v. Muhammad Yakub (PLD 1978 SC 207) the scope of section 47, I. R. O. Is much more restrictive and the powers there under of the Labour Court are limited to satisfying itself that a prima facie case was made out against the workman in the domestic enquiry and that the said enquiry was fairly conducted and was not violative of any law or principles of natural justice. In support of his contention the learned counsel cited certain authorities from Pakistan and Indian jurisdiction which will be presently noticed. Mr. Khalid Ishaq submitted that the grant of permission under section 47, I. R. O. Merely removes the ban on the taking of proceedings against an office-bearer of a Trade Union but does not affect or erode the latter's right to challenge under section 25-A of the I. R. O. Any action taken against him in consequence of such permission. He, therefore, contended that it will still be open to the second respondent to challenge by way of a complaint or application under section 25-A of the I. R. O. Any action taken by the Company against him after necessary permission for such action is accorded by the Labour Court under section 47.
6. Mr. Zia Qureshi, the learned counsel for the first respondent, on the other hand, submitted that the grant or refusal of permission under section 47 I. R. O. Was within the sole discretion of the Labour Court and as the second respondent had exercised this discretion justly and fairly in the instant case, after taking into consideration all relevant factors, in refusing to accord permission for the dismissal of the first respondent it had acted strictly within its jurisdiction and its order in this behalf cannot be charac--terised as being without lawful authority. Mr. Zia Qureshi also cited a number of authorities in support of his contention that the scope of section 47, I. R. O. Was not as narrow as was contended by Mr. Khalid Ishaq.
7. Before considering the scope of section 47, I. R. O., it would be appropriate to examine as to what extent, if any, the powers of the Labour Court under section 47, I. R. O. Can be deemed to be discretionary and the circumstances in which this Court, in the exercise of its constitutional jurisdiction, can and should interfere in the orders passed by the Labour Court under that section.
8. No doubt section 47 of the I. R. O. Confers powers upon the Labour Court to grant or refuse permission to the employer to punish his employee or workman, but since the Labour Court is at least a quasi judicial tribunal and is deemed by the statute to be a civil Court while adjudicating and determining an industrial dispute and a Sessions Court for the purposes of trying an offence tinder the I. R. O., it is not expected to act in a capricious, dictatorial or uncontrolled manner, but in accordance with established judicial norms and for furthering the objects of the statute. In the case of Sui Gas Transmission Company Ltd. v. Islamic Republic of Pakistan (PLD 1959 SC (Pak.) 67), the Supreme Court had occasion to consider the nature and the extent of the powers of the Tribunal while dealing with an industrial dispute referred to it for adjudication under section 10 of the Industrial Disputes Act, 1947, which was the predecessor of the I. R. O., and observed as follows :- "The above analysis of the findings shows that the Tribunal did not deal with the matter before it in the manner expected of a functionary exercising judicial powers. Its approach to questions covered by the Demands 8, 18, 24 and 49 was that of a benevolent despot, while in respect of Khurahid Ahmed (Demand No. 4) jurisdiction was clutched and a conclusion was reached on some vague impressions and not on the evidence. It is true that a Tribunal dealing with an industrial dispute is not a Court in the sense that it is strictly bound by the rules of evidence but that does not mean that it can act on mere conjecture and its own peculiar ideas of social justice. It is obligatory on its part to act within the jurisdiction and according to the law applicable to the matter in dispute."
9. Where a tribunal acts in a capricious or arbitrary manner or otherwise in violation of the settled norms regulating the exercise of the powers conferred upon or vesting in it, the superior Courts, in the exercise of their Constitutional Jurisdiction, have not hesitated to declare such acts as invalid and to set aside their orders as was done by the Supreme Court in the above reported case of Sui Gas Transmission Co. In this connection I may with advantage refer to the following part of the passage from Wills' Constitutional Law, p. 586, which has been quoted in extenso by Munir, C. J. In his land--mark judgment in the case of East & West Steamship Co. v. Pakistan (1) :- "If a statute declares a definite policy, there is a sufficiently definite standard for the rule against the delegation of legislative power, and also for equality if the standard is reasonable. If no standard is set up to avoid the violation of equality, those exercising the power must act as though they were administering a valid standard. For this reason there is a need for a judicial review to see whether or not rower delegated has been exercised arbitrarily."
10. While on this point, I am tempted to refer to Article 4 of the Constitution which declares it to be the inalienable right of every citizen an every other person in Pakistan to be treated in accordance with law. I the word "law" has been used in the said Article in its wider sense to include not only statute law but also judge-made-law and principles settled by the superior Courts as to the exercise of judicial and quasi judicial powers e then the failure of a judicial or quasi-judicial tribunal to exercise it powers in accordance with such settled and well-recognized principles would be violate of Article 4 of the Constitution and could apparently on that account also be struck down by the superior Courts. However, I would n like to express a definite opinion on the scope of this Article as no arguments were addressed thereon by the learned counsel who merely made a passing reference to its provisions.
11. I will now proceed to refer to the leading judgments from the Indian jurisdiction as well as of our own Courts on the extent and nature of the powers of the Labour Industrial Courts under section 47 of the I. R. O. And the corresponding provisions in section 33 of the Industrial Disputes Act, 1947.
Before doing so, however, I may point out that whereas subsection (5) of section 25-A of the I. R. O.
Provides that in adjudicating and determining a grievance under the said section 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, section 47 confers no corresponding powers and simply empowers the Labour Court to accord permission for and to remove the ban on punishing an officer of a registered Trade Union for misconduct. It is this vital difference in the two provisions which Mr- Khalid Ishaq has emphasised in support of his contention that the powers of the Labour Court under section 47 of the I. R. O. Are restricted to ascertaining that there is a prima facie case against the workman in respect of whom the action is proposed to be taken and that the domestic enquiry on the basis of which such action is desired to be taken was fair and not in violation of any law, but it was not within the province of the Labour Court to review the decision of the employer made on the basis of a domestic enquiry, go into the merits of the questions or even to consider whether the proposed punishment was excessive.
12. The first case on these points to which I will refer is that of River Steam Navigation Co. v. A. B. S. Choudhury (PL D 1958 SC (Pak.) 418). The two important questions which arose for determination by the Supreme Court in that case were, firstly, whether the power of the Tribunal under section 33 of the Industrial Disputes Act, 1947, to give or refuse permission to dismiss an employee, was subject to judicial review, and secondly, whether mere participation in an illegal strike was a sufficient ground in all circumstances for justifying exercise of discretion in the employer's favour. In regard to the first issue the Supreme Court held that the power of the Tribunal was subject to judicial review and 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 the foundation and the purpose of the Industrial Tribunals' 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 quasi-judicial nature." In regard to the second question before it, the Supreme Court held : "It is to be remembered that a conclusion that, a strike is illegal often turns upon considerations of a technical nature. In such a case mere participation cannot furnish a sufficient ground for destroying the basis, namely the employer-employee relationship of the Settlement of the dispute before the Tribunal. It may be pointed out that in the reported case the workmen had struck work because their demands were not accepted by their employer. The strike, however, was subsequently found to be illegal. This decision is important as it decides that in certain special circumstances though misconduct on the part of a person may be proved, such as participation in an illegal strike, if such misconduct is intimately connected with the charter of demands by or the rights of the workman and the misconduct is of a technical nature, permission for removal of the workman can appropriately be refused.
13. The next case to which I will refer, and to which in fact I have already referred in an earlier part of the judgment, is that of Sui Gas Transmission Go. Ltd. In that case, the Supreme Court, while dealing with the nature of the powers of the Industrial Tribunal, reiterated the views expressed by it in the case of Dalmia Cement Ltd. v. Dalmla Cement Workers Union (PLD 1958 SC (Pak.) 153): "That it was not the province of the Tribunal to go into the merits of the allegations but that its jurisdiction was only to see if there was a fair enquiry and the employee was, given an opportunity to explain the charge."
14. Since I am attempting to notice the reported cases in chronological order, I will next refer to the case of G. Mckenzie Co. Ltd. v. Its Workmen (AIR 1959 SC 399). Dealing with the extent and the nature of the powers of the Industrial Tribunal under section 33 of the Industrial Disputes Act, 1947, the Indian Supreme Court in the above-repoited case, at page 392 of the report, observed as follows :---- "It is for the Management to determine what constitutes major misconduct within its standing orders sufficient to merit dismissal of a workman but in determining such misconduct it must have facts upon which to base its conclusions and it must act in good faith without caprice or discrimination and without motives of vindictiveness, intimidation or resorting to unfair labour practice and there must be no infraction of the accepted rules of natural justice. When the Management does have facts from which it can conclude misconduct its judgment cannot be questioned provided the above-mentioned principles are not violated. But in the absence of these facts or in case of violation of the principles set out above its position is untenable."
15. Again at page 394 of the report of the above case, the Indian Supreme Court expressed itself thus :- "That section (section 33) does not confer any jurisdiction on a Tribunal to adjudicate on a dispute but it merely empowers the tribunal to give or withhold permission to the employer during the pendency of an industrial dispute to discharge or punish a workman concerned in the industrial dispute. And in deciding whether permission should or should not be given, the Industrial Tribunal is not to act as a reviewing tribunal against the decision of the Management but to see that before it lifts the ban against the discharge or punishment of the workmen the employer makes out a prima facie case. The object of the section is to protect the workmen in pending industrial disputes against the intimidation or victimisation. As said above principles governing the giving of permission in such cases are that the employer is not acting mala ,fide, is not resorting to any unfair labour practice, intimidation or victimisation and there is no basic error or contravention of the principles of natural justice. Therefore when the Tribunal gives or refuses permission it is not adjudicating an industrial dispute, its function is to prevent victimisation of a workman for having raised an industrial dispute. The nature and scope of proceedings under section 33 shows that removing or refusing to remove the ban on punishment or dismissal of workmen does not bar the raising of an industrial dispute when as a result of the permission of the Industrial Tribunal the.
Employer dismisses or punishes the workmen."
16. The next case again is from the Indian jurisdiction and is reported as Punjab National Bank v. All India Punjab National Bank Employees'Federation(AIR 1960 SC 160). In that case, on the question of the extent and limit of jurisdiction of the Industrial Tribunal in respect of an applicationmade to it under section 33 of the Industrial Disputes Act, 1947, the India Supreme Court has observed thus :-- "Where an application is made by the employer for the requisite permission under section 33 the jurisdiction of the Tribunal in dealing with such anapplication is limited. It has to consider whether a prima facie case has been made out by the employer for the dismissal of the employee in question. If the employer has held a proper enquiry into the alleged misconduct of the employee, and if it does not appearthat the proposed dismissal of the employee amounts tovictimisationor 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 these proceedings it is not open to the Tribunal to consider whether the order proposed to be passed by the employeris proper or adequate or whether it errs on the side of the excessive severity ; nor can the Tribunal grant permission, subject to certain conditions, which it may deem to be fair. It has merely to consider the prima facie aspect of the matter and either grant thepermission or refuse it according as it holds that a prima facie case or is not made out by the employer. But it is significant that even if the requisite permission is granted to theemployer under section 33 that would not be the end of the matter. It is not as if the permission granted under section 33validatesthe order of dismissal. It merely removes the ban ; and sothe validity of the order of dismissal still can be, and often is, challenged by the Union by raising an Industrial dispute in that behalf."
17. I will refer to still another case from the Indian jurisdiction, thatof Shri Gopal Paper Mills v.
Industrial Tribunal, Punjab (1963 L L C 398), In that case the application by the management under section 33 (2) of the IndustrialRelations Actfor approval to the dismissal of their workmen who had exchanged abuse and had a scuffle in the factor resulting in what was considered by the Management to b: riotous and disorderly behaviour, was dismissed by the Tribunal Inter alia on the following grounds :------ "(1) There was no dislocation of work nor there was any disobedience of anyorders of the superior officers. The general manager in order to justifythe severe penalty which he imposed described the act of each workman as riotous and disorderly which represented a magnified view of the alleged misconduct.
(2) The mention of past warnings without giving any opportunity to the twoworkmen to meet and explain the same in the order of dismissal was not justified.
(3) The order of the General Manager was mala fide, harsh andvindictive."
18. The writ petition preferred by the Management for getting the resulting order of the Industrial Tribunal quashed was dismissed on the groundthat the conclusion of the Industrial Tribunal that the punishment wasindicative of the mala fide intention on the part of the Managementcould not be interfered. It was further found that the mention of the past warning in the order of dismissal, which had never formed the subject --matter of the charge-sheet, was a basic error in the procedure which provided justification for the Industrial Tribunal to come to the conclusion that the order of the Management was mala fide. Dismissing the letters patent appeal preferred by the Management, a Division Bench of the East Punjab High Court observed as follows :- "In the present case if the matter had rested only on the fact that according to the Tribunal the punishment awarded was unduly severe and for that reason had been refused, it could legitimately be said that the order of the Tribunal shows an apparent error on the face. But the Tribunal did not found its decision on that fact alone. The Tribunal came to the conclusion that the order of dismissal was mala fide and the factor of severe punishment was one of the matters that was taken into consideration to come to that finding. There can be no doubt that the question of mala fide is one of fact as was pointed out in Central India Coalfields Ltd. v. Ram Bilas Shobnath (1961) 1 L L J 546 and it is only for ;a Court of Appeal to reverse that finding and not for this Court under Article 226 of the Constitution."
19. I will refer to one last case from the Indian jurisdiction. That is the case of Sur Enamel & Stamping Workers Ltd. v. Their Workmen (1964 PLC 35). ' In that case the Indian Supreme Court observed that an enquiry into misconduct alleged against a workman cannot be said to have been properly held unless ; "(i) the employee proceeded against has been informed clearly of the charges levelled against him ; (ii) the witnesses are examined ordinarily in the presence of the employee in respect of the charges ; (iii) the employee is given fair opportunity to cross-examine witnesses ; (iv) he is given a fair opportunity to examine witnesses, including himself, in his defence, if be so wishes, on any relevant matter ; and (v) the enquiry officer records his finding with reasons for the same in his report."
20. Coming back to decisions of our own Courts, I will respectfully refer to the decision of the Supreme Court in Steel Corporation of Pakistan Ltd. v. Sherzaman (1968 SCMR 355). In that case four employees of the Steel Corporation, who were office-bearers of the Union of the Corporation's workers, were charged with inciting a strike, and after an ex parte enquiry, at which they were adjudged guilty, the corporation sought the permission of the Industrial Court to dismiss them. The Industrial Court refused to accord the permission sought on the ground that the domestic enquiry was perverse and against the principles of natural justice, equity and good conscience, but the only reason given in support of this conclusion was that in the further enquiry before it (the Tribunal), the corporation should have examined at least one witness to controvert the statement of the workmen that they did not go on strike, which action the corporation failed to take. Although the Supreme, Court observed that a failure to produce evidence before the Industrial Court could not vitiate the domestic enquiry, for perversity or any other reason", but nevertheless the Supreme Court refused to quash the order of the Industrial Court and upheld the refusal of permission under section 30 of the Industrial Disputes Ordinance, 1959, on the ground that the workman did not have a proper opportunity of meeting the case against them, in that the domestic enquiry was held at a time when the conciliation proceedings were in progress, which as office-bearers of the Union they were bound to attend. The Supreme Court, however, made it clear that the function of the Industrial Tribunal under section 30 of the Industrial Tribunals Ordinance, 1959, "does not include the power to repeat the enquiry by the corporation, or to supplement it by production of fresh evidence. If the Industrial Court finds fault with the enquiry or the procedure thereof, its duty would be, while refusing permission to dismiss, to indicate where the fault or error lay, which vitiated the enquiry."
21. I will next refer to a D. B. Decision of this Court in the case of Majeed Beg v. Futehally Chemicals Ltd. (1973 PLC 297), where it was stated, relying on the decisions of the Supreme Court in the cases of River Steamship Navigation Co. And Steel Corporation of Pakistan, "that it is not the function of the Industrial Court under section 30 of the Industrial Disputes Ordinance to held an enquiry to determine whether the workman had committed misconduct and on the basis of the evidence led before it to grant and refuse to grant the permission sought."
22. I will finally refer to the decision of the Supreme Court in the case of Muhammad Shamim v.
Pakistan Tobacco Co. (1975 SCMR 46) which deals with the legal requirements of an enquiry under Standing Order 15(4) of the West Pakistan Standing Orders Ordinance and the material question in regard to such enquiry which is within the ambit of the Industrial Tribunal. In that case, a workman who was removed from service on the ground that he had committed theft, challenged his dismissal by way of an application under section 25-A of the Industrial Relations Ordinance. It was held by the Supreme Court
(i) that the workman could not complain of copy of enquiry report not being furnished to him, if he was given written show-cause notice and was also furnished with the result of the enquiry report, and had not asked for a copy of the enquiry report ; and (ii) that "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 committed the theft was a question of fact and could only b: enquired into by the Inquiry Officer."
23. The principles emerging from the above authorities as to the scope and extent of the powers of the Labour Court while granting or refusing permission to punish a workman and the circumstances in which such permission is to be granted or refused appear to be as follows :-
(i) The Labour Court, while considering the question of granting or refusing permission to punish a workman, acts in a quasi-judicial capacity and cannot deal with such question arbitrarily or without principles, and its action is subject to, judicial review. (ii) A Labour Court is not to act as a benevolent despot or to clutch at jurisdiction. It is obligatory on its part to act according to the law applicable to the matter in dispute. (iii) It is not the province of a Labour Court to go into the merits of the allegations. Its jurisdiction is only to see if there was a fair enquiry and the employee was given an opportunity to explain the charges against him. (iv) It is for the Management to determine what constitutes major misconduct within its Standing Orders but in determining such misconduct it must have facts upon which to base its conclusions and it must act in good faith, without caprice or discrimination and without motives of vindictiveness, intimidation or resorting to unfair labour practice and there must be no infraction of the accepted rules of natural justice. (v) The scope of an enquiry for granting or refusing permission to punish a workman is limited to -
(a) whether a prima facie case is made out against the workman ;
(b) whether the domestic enquiry on the basis of which it is proposed to punish him was properly conducted, specially whether a proper opportunity was afforded to him of meeting the case against him ;
(c) whether the employer is resorting to any unfair labour practice intimidation or victimisation or otherwise acting with mala fide intention ;
(d) whether there has been any contravention of law or principles of "natural justice. ,
(vi) The Labour Court is not to act as a reviewing Tribunal against the decision of the Management nor does the failure to adduce evidence before it vitiate the domestic enquiry, for perversity or any other reason.
(vii) It is not the function of the Labour Court under section 47 of the Industrial Relations Ordinance to hold an enquiry to determine whether the workman had committed misconduct. The question whether the workman committed misconduct can only be enquired by the Inquiry Officer.
(viii) The severity or otherwise of the punishment sought to be imposed upon the workman is ordinarily within the purview of the Management alone and outside the consideration of the Labour Court, but if the severity of the sentence is indicative of mala fide intention on the part of the Management, the Labour Court can refuse to accord approval.
(ix) Mere participation in an illegal strike, resorted to for pressing charter of demands relative to the terms and conditions of service of workman, where such demands form the subject-matter of a industrial dispute which is under adjudication, may not be a sufficient ground for grant of permission to punish the striking workmen.
(x) Where a written show-cause notice or charge-sheet and the result of the domestic enquiry have been furnished to the workman, the non-supply to him of a copy of the enquiry report, complaint or other document, for the supply whereof he has made no demand,) would not vitiate the enquiry.
24. In the instant case, though the learned Labour Court was in error in equating proceedings under section 25-A of the Industrial Relations Ordinance with proceedings under section 47 of that Ordinance and taking the view that in the latter proceedings it could go into the merits of the enquiry proceedings, but it has based its refusal Jo accord permission for the dismissal of the first respondent, not upon the failure of the Company to adduce fresh evidence before it in respect of the allegation against the first respondent, nor has it substituted its own decision for the decision of the Management on the point whether the first respondent was guilty of misconduct or as to the quantum of nature of penalty to be imposed upon him therefor, but has based its decision upon the finding that the domestic enquiry held against him was not made in a legal manner and was not fairly conducted. This finding in turn was based by it upon certain shortcomings and defects in the enquiry which it has noticed and commented upon in the impugned order. This, the Labour Court was fully competent to do and even Mr. Khalid Ishaque very fairly conceded that the Labour Court under section 47 of the Industrial Relations Ordinance is empowered to determine whether the domestic enquiry was fairly conducted and was not violative of any law or principles of natural justice. The learned Labour Court, in view of the shortcomings which it had noticed in the impugned order, came to the conclusion that not only the enquiry was not made in a legal manner but further was conducted in an arbitrary and perverse manner. If this finding of the learned Labour Court was based on material properly placed before it, the same being basically a finding of fact, cannot be disturbed F by this Court in the exercise of its constitutional jurisdiction. In Muhammad Hussain v.
Sikandar (PLD 1974 SC 139). Muhammad Gul, J., defined the scope of power of the High Court in the exercise of tits constitutional jurisdiction as follows :- "The High Court's supervisory jurisdiction under Article 98(2) (a) (ii) of the 1962 Constitution (or for that matter under Article 199 (1) (a);ii) of the present Constitution) having regard to its nature or content is assimilable to its jurisdiction under section 115, Civil Procedure Code, except in two important respects : first; the former jurisdiction being a creation of the Constitution stands on a higher pedestal than that under section 115, C. P. C. Second ; the former jurisdiction has a wider reach than the jurisdiction under section 115, Civil Procedure Code, which is confined to subordinate Courts. However, that may be, it is wholly wrong to consider that the above Consti--tutional provision was designed to empower the High Court to interfere with the decision of a Court or tribunal of inferior jurisdiction, merely because in its opinion the decision is wrong. In that case, it would make the High Court's jurisdiction indistinguish--able from that exerciseable in a full- fledged appeal, which plainly is not the intention of the Constitution makers."
25. In the above-reported case Muhammad Gul, J., referred to with approval to the following observation of Kaikaus J., in Badrul Haq Khan v. Election Tribunal, Dacca and others (PLD 1963 SC 704) :- "The proposition is indisputable that when there is jurisdiction to decide a particular matter then there is jurisdiction to decide it rightly or wrongly and the fad that the decision is incorrect does not render the decisionwithout jurisdiction. I do not see any difference in a case where the question of law decided is a matter on which two opinions can easily be held and a case where the decision on a question of law appears to be clearly erroneous. It would not make difference that on logical reasoning the interpretation of law by the Tribunal could not be supported. Unless a case of a mala fide or a mere colourable exercise of jurisdiction could be made out the decision would not be without lawful authority."
26. Mr. Khalid Ishaque submitted that the decision in Muhammad Hussain's case was subsequently reconsidered by Muhammad Gul, J., in another case, which is reported as Karam Khan v. M. Issa (1).
In the latter case, Muhammad Gul, J., observed that the expression "without lawful authority and of no legal effect", as explained in Muhammad Hussain's case, was not applicable to a case where the order of the authority which is the subject-matter of attack clearly suffers from an error apparent on the face of the record. Mr. Khalid Ishaque, therefore, was at pains to show that the order suffered from an error apparent on the face of the record. He has, however, not been able to convince me in this behalf. The learned counsel submitted that the impugned order was not a speaking order and that furthermore the defects noticed by the learned Labour Court, which impelled it to refuse to grant the Company's prayer for permission to dismiss the first respondent, were in fact imaginary and not supported by the evidence on record. The contention that the impugned order is not a speaking order, in my humble opinion, is entirely devoid of substance. The learned Labour Court has passed a fairly comprehensive order listing a number of circumstances which impelled it to arrive at the conclusion that the domestic enquiry held against the first respondent was not fair and proper. In my opinion, the learned Labour Court was not required to do anything further. The grievance of Mr. Khalid Ishaque is that the learned Labour Court should have, in respect of each defect which was noticed by it in the enquiry, referred to specific evidence in support of its views. I do not think that any detailed reference to the evidence on these points was called for. The entire proceedings of the domestic enquiry, includ--ing the report of the Enquiry Officer and the reply of the first respondent, were before the Labour Court, having been produced by the Company itself. It thus can safely be presumed that the learned Labour Court had gone through these proceedings and formed its conclusions on the basis of this material.
27. Mr. Khalid Ishaque invited me to test the so-called defects noticed by the learned Labour Court with the evidence which was placed before it, including the evidence in the domestic enquiry, and offered to show that such evidence would disprove the view of the learned Labour Court that there were serious defects in the domestic enquiry. No doubt, some of the defects and shortcomings allegedly found in the domestic enquiry by the learned Labour Court do not appear to be founded on tangible evidence led or exhibited at the domestic enquiry. Furthermore, the non-supply of the original complaint to the first respondent, on the basis of which the charge-sheet was issued to him, cannot be considered to be a death blow for the company's case, as observed bythe Labour Court, in view of the decision of the Supreme Court in Muhammad Shamim's case, and the fact that the first respondent does not appear to have made a grievance of the non-supply of this document at the stage of the domestic enquiry and that admittedly he had been furnished with a show-cause notice, a charge-sheet and also the report of the domestic enquiry. However, there is no doubt that the Enquiry Officer commenced the enquiry with the cross-examination of the first respondent. Apparently, the Enquiry Officer started questioning the fire respondent to ascertain whether he bad been supplied with copies of the .Sheet and the show-cause notice, possibly with the object than had not been supplied to him, they could be supplied to him (1) 1974 Law Notes Lah.
472 before the enquiry commenced, but since on the charges against the first respondent was that he had refused to take delivery of the show-cause notice, which was dubbed in the charge-sheet as "disorderly behaviour and an act subversive of discipline", the conduct of the Enquiry Officer in questioning and cross-examining the first respondent in regard to the receipt or non-receipt by him of the show-cause notice and the charge-sheet, and particularly the endorsement on the show-cause notice and the charge-sheet regarding the refusal of the first respondent to accept the same and their consequent posting on the Notice Board of the Company, does bear out the finding of the learned Labour Court that the enquiry was commenced with the cross-examination of the first respondent, which, in the circumstances, shows that the enquiry was not fairly conducted. It may further be pointed out that though the charge-sheet itself is dated 4-12-1973, and the enquiry was held on the same day, there is an endorsement thereon which, however, has not been signed by the authorised officer, indicating that the said respondent had refused to accept the charge-sheet, and it had therefore been posted on the Notice Board and was also being sent to his residential address, and that further the charge of refusal to accept the charge- sheet was also being added.
28. It is also clear from the Enquiry Officer's report that despite the fact that there was no charge against the first respondent for late coming and only one instance was mentioned about his being absent from his seat without leave, the Enquiry Officer had taken evidence about the late coming of the first respondent on several occasions and similarly his being absent from his seat without leave on several occasions. Since these matters were not covered by the charge-sheet or even the show-cause notice, the taking of evidence by the Enquiry Officer thereon not only prejudiced the first respondent but is indicative of prejudice on the part of the Enquiry Officer.
29. The Labour Court has also found that the Enquiry Officer had disallowed a number of questions and this too, according to it, indicated that the enquiry was not fairly conducted. It was not denied by Mr. Khalid Ishaque that the Enquiry Officer had disallowed a number of questions which the first respondent wanted to put to the witnesses at the domestic enquiry. These questions related to the Trade Union activities of the first respon--dent who was anxious to show that it was after the Charter of Demands was submitted by the Union of which he was the President that the Company started harassing him and the other office-bearers. The refusal on the part of the Enquiry Officer to permit the asking of such question meant that the first respondent was precluded from showing that he was being victimised on account of his Trade Union activities and that the action of the Company in wanting to dismiss him was male fide. The allegation of male fide on the part of the Company cannot be lightly dismissed in view of the fact that it had issued show-cause notices or taken disciplinary proceedings against practically all the 15 office-bearers of the Union of which the first respondent is the President, including its General Secretary, M. H. Shah, who was assisting the first respondent in the domestic enquiry against the latter, as appears from the reply statement of the first respondent. The taking of action by the Company .Against these office-bearers of the Trade Union was not denied or disputed by Mr. Khalid Ishaque.
30. In view of the above circumstances, no serious fault could be found with the conclusion reached by the learned Labour Court that the domestic enquiry held against the first respondent was not proper and was on the contrary unfair and perverse. In fact, the enquiry appears to have been initiated to stifle Trade Union activities in the Company and to put impediments in the securing of the demands made by the Union. The actions of the Company thus prima facie appears to amount to victimination and unfair labour practice.
31. The upshot of be above discussion is that I see no merit in this petition and accordingly would dismiss the same with costs.