DECISION The respondent workman, who was employed as an Electrician in the appellant-Company and is also said to have been the President of the C. B. A. In the Company, was charge-sheeted for defacing a register (log book) and writing objectionable slogans and challenges thereon. A domestic enquiry was held by the appellant-Company in respect of the above charges through Enquiry Officer, the Hasan, but the respondent refused to participate in the same on the ground that an Enquiry Committee should be constituted in consultation with the Union and some workers should be associated with the Enquiry Committee. The Enquiry Officer found the charges established against the respondent, mainly on the basis of the testimony of Najamuddin, another electrician in the appellant-Company. On the basis of his report, the appellant was dismissed from service with effect from 13th November, 1979. The respondent challenged his dismissal order before the learned Labour Court on the grounds, firstly that he has been victimized due to his Trade Union activities, secondly, that despite the fact that he had shown want of confidence in the Enquiry Officer the Management refused to appoint another Enquiry Officer or Enquiry Committee, thirdly, that though on the date fixed for the enquiry he went to the factory to attend the enquiry he was prevented by the Chowkidar at the gate from entering the factory, fourthly, that he was denied the assistance of a worker during the enquiry proceedings and lastly that his dismissal orders were issued while he was lying on the sick bed. The learned Labour Court has taken the view that the sole evidence connecting the respondent workman with the charge alleged against him and upon which the Enquiry Officer has relied is the testimony of Electrician, Najjamuddin, but since his statement was not produced before the Labour Court and does not form a part of the proceedings which have been produced by the appellant company. There is no material before it on the basis of which it could hold that the guilt of the respondent had been established. It, accordingly, has allowed, the respondent workman's grievance petition and directed that he should be re-instated in service. The appellant-Company has come up in appeal to this Tribunal against the said decision.
2. Mr. Samiullah Khan, the learned Representative for the appellant-Company, conceded that the main or rather sole evidence connecting the respondent workman with the charge of misconduct framed against him is that of Electrician, Najjamuddin. His submission, however, was that perhaps it was through an inadvertence that the statement of this witness was not produced before the learned Labour Court and does not find place in domestic enquiry proceedings before the learned Labour Court. He, further contended that the non-production of this statement does not vitiate or invalidate the enquiry proceedings nor can the fact of its non-production necessarily lead to the inference that the charge of misconduct against the respondent has not been proved, specially as the material part of his evidence has been incorporated in the Enquiry Officer's report which admittedly has been produced before the Hon'ble Labour Court. If the scope of the proceedings under section 25-A, I. R. 0., had been limited to determining whether the domestic enquiry was fair and impartial, as under the old law, the argument of Mr. Samiullah Khan would have been unassailable. However, subsection (5) of section 25-A, I. R. 0. Enjoins upon the Labour Court to "go into all the facts of the case", The scope of the said subsection and particularly of the above words was considered by their Lordships of the Supreme Court in the case of Crescent Jute Products Ltd. v. Mohammad Yaqub and their Lordships observed as follows :- "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 subsection (4), the Labour Court shall go into all the facts of the case and pass orders as may be Just and proper in the circumstances of the case'. From the language of the statute hereinbefore 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 own conclusions 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 form in determining the grievance afresh after considering the facts on which any impugned dismissal is based. If that was not so, then there was no occasion for using the words 'shall go into all the facts of the case', which in or view, define he jurisdiction of the Junior Labour Court as a tribunal of facts, with regard to the matters which may have been dealt with by the domestic tribunal or the employer. Therefore if the Legislature in its wisdom has chosen the words of farrcaching consequence, we do not see how their meaning can be whittled down and the provision construed in a limited sense as if (for example) the Junior Labour Court was hearing a second appeal within the meaning of section 100, C. P. C. Or a revision under section 115, C. P. C. The reason is also not far to seek, because, as pointed out earlier, it was intended to provide a forum to check against arbitrary, capricious and camouflaged dismissals."1
3. In the absence of the statement of Najjamuddin, it was not possible for the learned Labour Court and it is not possible for this Tribunal to be satisfied that there is material to establish the misconduct of the respondent workman. Since this vital material is missing and has not been placed before the Courts, I would concur in the view taken by the learned Labour Court and would dismiss the appeal in limine. However since the appeal is being dismissed on a technical ground as the statement of Electrician, Najjamuddin, has not been produced before the Labour Court, it would be open for the appellant company to institute fresh enquiry against the respondent on the original charge. Any such enquiry should be held within period of three months from the date of this order. In permitting a fresh enquiry to be held against the respondent, I have taken note of the fact that the learned Labour Court itself seems to have been more or less convinced that some sort of misconduct was committed by the respondent-workman and hence rejected his prayer for grant of back benefits. PLD 1978 SC 207