This appeal is directed against . The decision of the learned Fifth Labour Court, given on 4th May, 1982 dismissing the grievance petition of the appellant by which he sought to challenge the orders of his dismissal from service.
2. The facts of this case, shortly stated, are that the appellant was working as Steel Fabricator in the respondent organization since 18th October, 1965. He was served with a charge-sheet, dated 29th August, 1978, containing the following allegations :-
(a) that on 24th August, 1978 he left his place of duty un--authorisedly ;
(b) that on the same day, he alongwith other workers raised slogans demanding entry into the Karachi Shipyard premises of Mst. Kaniz Fatima, who was stopped at the gate by the security staff, and by over powering the security staff and forcibly opening the gate of the factory, secured the unlawful entry of Ust. Kaniz Fatima into the Karachi Shipyard working area ; and
(c) that he joined a procession inside the factory area, raised provoca--tive slogans alongwith others and thereafter they unauthorisedly entered the Administration Block and occupied the Committee Room where Mst. Kaniz Fatima delivered a speech.
3. The appellant, through his letter, dated 30th August, 1978, reques--ted for a copy of the report on which the charge-sheet was based as also the names of the witnesses whom the management wanted to examine in support of the charges against him, but neither a copy of the report nor the list of witnesses was supplied to him. The appellant, however, submitted his explanation, dated 31st August, 1978, denying the various charges against him. As the explanation of the appellant was not found satisfactory by the management, Muhammad Aslam, Deputy Manager, Ship Repairs, was appointed as the enquiry officer to hold the domestic enquiry against him. The first enquiry against the appellant was found to be invalid by the learned Labour Court . And hence a second enquiry was ordered by the Management. It commenced on 20th May, 1981 and the report by the enquiry, officer was submitted to the Management on 21st June, 1981, holding that all the charges against the appellant were established. At this stage it may be pointed out that according to the appellant, on 3rd June, 1981, he had submitted an application to the enquiry officer expressing his want of confidence in him and requesting for change of enquiry officer on the ground that on inspection of the file he had found that a page in the hand of the enquiry officer had been unauthorisedly added to the proceed--ings, but the enquiry officer refused to accept the application. The appellant thereupon submitted an application dated 7th June. 1981, to the General Manager of the respondents, repeating his complaint against the enquiry officer and requesting for change the enquiry officer. It appears that this application, in which the appellant had also asserted that he had submitted a similar application on 3rd June, 1981 to the enquiry officer, who refused to accept it, was forwarded to the enquiry officer for his comments and on the basis of his comments. The Acting General Manager of the respondent rejected the prayer of the appellant for change of enquiry officer. It further appears that the appellant had cited four defence wit--nesses, including Mst. Kaniz Fatima, whom the appellant is alleged to have abetted in tier unauthorised entry into the premises of the Karachi Shipyard, but the enquiry officer refused to allow him to examine these persons in his defence. The enquiry officer, in his affidavit before the learned Labour Court , has given the following reasons for his refusal to per--mit the appellant to examine his defence witnesses :- "The appellant wanted to produce the . Following as his defence witnesses :-
(i) Mst. Kaniz Fatima,
(ii) Muhammad Amin.
(i.e) Rafiq Zia.
(iv) Roshan Ali Kalro. knowing that all these 4 workers were not the employees of the respondent at the time of the enquiry proceedings. Further I could not take the risk of these persons to the premises of the Shipyard as all of them had committed contempt of Court and the illegal strike in the premises of the Shipyard thereby causing law and order problems in disturbing the industrial peace. That the Chairman of N. I, R, C. In Case No. 4 (179) /78 by his order dated 2nd April, 1980 has convic--ted Nabi Bux, Roshan Ali Kalro, Rafiq Zia and Muhammad Amin for continuing the illegal strike. Nabi Bux was sentenced to serve imprisonment for six months and pay fine of Rs. 200. Roshan Ali Karlo, Rafiq Zia and Muhammad Amin were given 3 months imprisonment and to pay a fine of Rs. 200 each. That by a decision on the same date in case No. 7 (91)/78, Mst. Kaniz Fatima and all the 3 persons named above were found guilty of the contempt of the N.
1. R. C. . Mst Kaniz Fatima was fined Rs.
200 and not given any sentence of imprisonment because of the fact that she was a woman All the 3 others were sentenced to 4 months imprisonment and a fine of Rs. 300 each. Rafiq Zia was also sentenced for a period of 3 months and fine of Rs. 200 in another case decided on the same date., for disobeying the prohibitory order."
4. On the basis of the report of the enquiry officer the appellant was served with a second show- cause notice. A copy of the enquiry officer's report was appended to the second show-cause notice. As the explanation of the appellant to the second show cause notice was not found satisfactory by the Management, he was dismissed from service, vile ,order, dated 12th July, 1981
5. The appellant challenged the orders of his dismissal from service before the learned Fifth Labour Court. Only two witnesses were examined before the labour Court, namely the appellant and the enquiry officer, Muhammad Aslam. Neither the record of the enquiry proceedings nor even the report of the enquiry officer was produced before the Labour Court . There is thus no material on the record on the basis of which it can be said that the charges against the appellant are established. The learned A Labour Court has erred in taking the view that it was the responsibility of the appellant to produce anal bring on the record the report of the enquiry officer since a copy thereof was admittedly supplied to him along with the second show-cause notice. The learned Labour Court appears to have ignored the provisions of subsection (5) of section 25-A, I.R.O., which require the Labour Court , in adjudicating and determining a grievance, to go into all the facts of the case. The Supreme Court, in the case reported as Crescent Jute Products Ltd., Jarawiwla v. Muhammad Yakub (PLD 1978 SC 207), while discussing the Scope of the said subsection and the function of the Labour Court in this behalf, observed as follows :- "1n subsection (5) of section 25-A of the Industrial Relations Ordi--nance, 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 such 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 were 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 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 be 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 Labour Court itself. In other words the intention of subsection (5) of section 25-A appears to be to provide another forum in determining the grievance afresh after considering the facts on which any impugned dismissal is based,"
6. Since there is no material on the record of the case to establish the charges against the appellant, the dismissal orders in respect of the appel--lant cannot be sustained.
7. There are, however, other circumstances, which invalidate the dis--missal orders, dated 12th July, 1981. I have already made mention of the fact-that the appellant had submitted applications, dated 3rd June, 1981 and 7th June, 1981, expressing his want of confidence in the enquiry officer.
These applications were based on the fact that that the appellant had found the addition of an unauthorised page, behind his back; in the record of the enquiry proceedings. Even if the denial of the enquiry officer to the sub. Mission to him of the application, dated 3rd June, 1981, it is an admitted position that the appellant did make the application, dated 7th June, 1981, requesting for change of the enquiry officer. The rejection of this appli--cation by the management cannot be appreciated in view of the fact that in the first enquiry conducted against the appellant the same officer was appointed as the enquiry officer but he was changed at the request of the appellant who had expressed want of confidence in hint. The second factor which has vitiated the enquiry proceedings is that the appellant was not allowed by the enquiry officer to examine any defence though he had cited four witnesses in his defence. The reasons given by the enquiry officer, in his evidence before the learned Labour Court, for not permitting the appellant to lead defence merely show the interest which the enquiry officer had in the respondent organization and on the one hand do not justify his action and on the other hand his action has gravely prejudiced the appellant in defending himself against the grave charges levelled against him.
8. The upshot of the above discussion is that I would set aside the impugned decision of the learned Labour Court as also the order dated 12th July, 1981, directing the dismissal from service of the appellant and would c direct the respondent organization to forthwith re-instate him in service. However, as the dismissal orders in respect of the appellant are being set, aside on technical grounds, I would give an option to the respondents to hold a fresh and proper enquiry against the appellant, through an indepen--dent officer, other than the previous enquiry officer, Muhammad Aslam. In that enquiry, the appellant should be afforded fair opportunity of defence. Mr. M. L. Shahani, the learned counsel for the appellant, states that the appellant would himself to producing before the enquiry officer such of the defence witnesses as are not employees of the respondent organization and that further he would not be examining Mst. Kaniz Fatima in his defence before, the enquiry officer. The defence witnesses should be produced before the enquiry officer on such date or dates as may be specified by the enquiry officer. The award of back benefits to the appellant would be dependent upon the result of the fresh enquiry. However, if the respondents do not initiate fresh enquiry against the appellant within one month of this order, it is to be assumed that they have waived their right to hold a fresh enquiry and in that case the appellant would automatically be entitled to full back benefits.