The 3 respondents, all of whom were employed in the appellant-Company, which is said to have been set up through the assistance of and is producing goods required for the Defence Services, filed grievance petitions before the learned Labour Court alleging that they had been wrongfully dismissed from service by the appellant-Company. The learned Labour Court has allowed their grievance petitions and directed the appellant-Company to re-instate them in service with full back benefits. Aggrieved by this decision, the appellant-Company has come up in appeal to this Tribunal. As the 3 appeals filed by the appellant-Company in respect of the 3 respondents involve substantially common issues of law and fact, they have been heard together and are being disposed of this Order.
2. I have heard Mr. Muhammad Naseem for the appellant and Mr. S. P. Lodhi for the respondents. Mr. Muhammad Naseem assailed the impugned decision of the learned Labour Court on the following grounds :-
(i) The establishment of the appellant-Company is covered by the provisions of section 1(3), I. R. 0., and hence the provisions of the said Ordinance cannot be availed of nor are applicable to the employees of the appellant company, including the respondents ;
(ii) even if it be assumed for argument's sake that the provisions of the I. R. O. Are applicable to the respondents it has not been established that the respondents are workmen for the purposes .Of the Standing Orders, and hence, their grievance petitions are not maintainable under the provisions of Standing Order 12 (3) ;
(iii) the Labour Court was not entitled to go into the evidence before the Enquiry Officer and had to confine its decision to the issue whether the domestic enquiries in respect of the respondents were fairly and properly held,
(iv) Even, if it be held that the orders of dismissal from services of the respondents are defective, the learned Labour Court should have given an option to the appellant company to bold another enquiry and made the award of the back benefits to the respondents dependent upon the results of such enquiries.
3. In support of his first contention, Mr. Muhammad Nasim relied upon the decisions in the cases of ;-
(I) Gammon (Pakistan) Ltd., Rawalpindi v. Muzaffar Khan 1974 PLC 10;
(it) Canteen Stores Department, Karachi v. Sind Labour Court No, V PLD 1977 Kar, 314 and
(ill) United Builders and Associates v. Presiding Officer, Punjab Labour Court 1976 PLC 855.
4. I, however, find it unnecessary to go into the question whether the appellant company is performing services or it is in installation connected with or incidental to the Armed Forces of Pakistan, and, therefore, the application of the provisions of the I. R. 0. To it is excluded, for the grievance petitions by the 3 respondents are not under the I. R. 0., as having been removed from service, they do not fall within the definition of workers for the purposes of the I. R. 0., but their grievance petitions fall to be considered under clause (3) of Standing Order 12, as held by this Tribunal in the case of Johnson & Johnson v. Zubair Ahmad .
5. This brings me to a consideration of the second contention raised by Mr. Muhammad Naseem that it has not been established that the respondents are workman for the purposes of the Standing Orders. It may, however, be pointed out that in their grievance petitions, the respondents had clearly asserted that they are workers employed in the appellant-Company. The said Company has nowhere disputed that fact that the respondents are workmen for the purposes of the Standing Orders, Not having raised this issue before the learned Labour Court, the appellant- Company cannot be allowed to agitate this issue of fact at this stage. I, therefore, find no merit in this contention of the learned counsel.
6. I also find no force in the next contention of Mr. Muhammad Naseem that the Labour Court was not entitled to go into the evidence before the Enquiry Officer. This issue stands concluded by the decision of their Lordships of the Supreme Court in the case of Crescent Jute Products Ltd. v.
Muhammad Yaqub . In that case, it has been held by their Lordships of the Supreme Court that the words "shall go into all the facts of the case", appearing in subsection (5) of section 25-A, I. R. O., clearly signify that the Labour Court has full and complete powers to enter even into questions of facts and to arrive at its own conclusion regardless of there being no illegality of procedure in the domestic proceedings. Their Lordships went on to observe that by the use of the above words, the legislative intent appears to have been to provide a double check, one in the form of a domestic enquiry to be held by the employer, and the other in the form of a judicial determination by a Labour Court.
7. It only remains to be considered whether there was adequate material before the Enquiry Officer or the Labour Court in support of the charges against the respondents, and whether in the domestic proceedings the respondents were given a fair and reasonable opportunity of defending themselves. All the 3 respondents were charged with remaining absent from their duties, without permission, on various dates. Now as regards respondent Rais Ahmed, it appears that though a charge-sheet was issued in respect of him, no enquiry as envisaged by clause (4) of Standing Order 15 was at all held. At least no statements of witnesses recorded in the domestic enquiry or the report of the Enquiry Officer were produced before the learned Labour Court. In fact it has been conceded in para. 6 of the preliminary objections filed by the appellant-Company before the learned Labour Court that no enquiry was held. The justification for not holding the enquiry was1 2 that respondent Rais Ahmad failed to present himself for defence and hence it was assumed that he was not interested in the service. I regret having to point out that this was no jurisdiction for not complying with the mandatory provisions of clause (4) of Standing Order 15, which require that the employer must institute independent enquiries before dismissing a workman on the charge of misconduct. The dismissal orders in respect of respondent Rais Ahmad, therefore, cannot be sustained.
8. As regards respondents Dilshad Khan and Yaqub Ali, no doubt separate domestic enquiries were held in which they appeared to have participated, but an examination of the record of those enquiries leads me to the conclusion that neither of these respondents were given a fair opportunity of defending themselves. The enquiries were unfortunately held by a person who was presumably not well acquainted with the procedure of the 'domestic enquiries in the labour cases.
He, therefore, began domestic enquiries by first examining the 2 workmen concerned and cross- examining them at length. In fact he appears to have acted as an Investigating Officer and went to the extent of describing himself in the proceedings as such. After so examining the 2 respondents, he enquired from them whether they had any evidence to lead in nefence. As no material had come on record before the Enquiry Officer up to that stage in support of the charges against the two respondents, it was not only premature to ask such a question or give such an opportunity to the 2 respondents, but the respondent obviously could not lead any netence without knowing what evidence was going to be led against them. The Enquiry Officer, after examining the witnesses testifying against the 2 respondents closed the enquiry and submitted his enquiry report without giving an opportunity to the 2 respondents to lead evidence in defences. I am clear in my mind that this procedure, which have been unwittingly adopted by the Enquiry Officer has resulted in grave prejudice to the respondents and had deprived them of a fair and proper opportunity of defence. The domestic enquiries in respect of respondents Dilshad Khan and Yaqub also stand vitiated and the dismissal orders which are based on such enquiries also cannot be sustained.
9. Since the dismissal orders are being set aside on the technical ground of no enquiry being held in the case of respondent Rias Ahmad and want of proper enquiries in the cases of other 2 respondents, the appellant-Company has to be allowed an option to hold a proper enquiry against the respondents in accordance with law. I am fortified in my view by the most recent decision of their Lordships of the Supreme Court in the case of Islamabad Club v. Punjab Labour Court .
10. For the reasons discussed by me above, while dismissing the 3 appeals of the appellant- Company, I would allow an option to the appellant-Company to hold proper domestic enquiry against the 3 respondents. The award of back benefits would also be dependent upon the results of such enquiries. However, if no enquiries are held against the respondents within a period of 3 months from the date of this Order, the respondents would be entitled to full back benefits as directed by the learned Labour Court. At the time of admission of appeal, the appellant Company had deposited a Bank Receipt, the ,same should be returned to it. 1980 PLC 622 PLD 1978 SC 207 PLD 1980 SC 307 3 1 2 3