MUSHTAK ALI KAZI, J.-This petition is directed against the order of Sind Labour Appellate Tribunal, Karachi, allowing the appeal of the respondent No. 2 Muhammad Umar, a worker in the petitioner Textile Corporation, setting aside the order of the Labour Court No, 6, Hyderabad and re-instating him in service with all the back benefits.
2, The facts in brief are that the workers of the petitioner textile mill at SITE, Hyderabad, insisted on observing 9th of Moharram as a holiday and they volunteered to work on 6th of September which was otherwise a closed holiday. The management did not accept this demand. Workers, however, absented themselves on 9th of Moharram. When they came after the 10th of Moharram for work the respondent No. 2 was charge-sheeted and after a domestic enquiry conducted by the Enquiry Officer he was given a second show-cause notice and dismissed from service. The respon--dent No. 2 filed an application under section 25-A, I. R. O, 1969 stating that the allegations levelled against him were false and he had been wrongly dismissed from service. The learned Labour Court held that the respondent had rightly been found guilty of misconduct on the evidence adduced before the Enquiry Officer and the Court could not, therefore, interfere. The respondent then preferred an appeal before the Sind Labour Appellate Tribunal, Karachi against the said order of the Labour Court . The Appellate Tribunal found that the Labour Court had not scrutinized the domestic enquiry and had reached an erroneous conclusion that the charge levelled against the respondent had been duly established : that during the enquiry only one witness Qayyum Shah, a Security Supervisor, had been examined who alleged that the respondent had incited the workers not to attend the mill on 9th of Moharram i. e. 22-1-1975 : that the evidence of Abdul Qayyum. Was based on the information given to him by the Head Watchman who had not been examined. The management had effected a lock-out from 25th January, 1975 and the workers had moved writ petition in the High Court. It was observed by the High Court that the workers had not gone on strike but had simply absented without permission for which the management could at the most deduct their wages for the day. Under these circumstances the appellate Tribunal set aside the order of the Labour Court and directed re-instatement of the respondent in service with all back benefits. Against this order the management has moved the present petition.
3. It has been argued by Mr. Madadali Shah on behalf of the petitioner that the Labour Court could not go behind the findings of facts by the Enquiry Officer in the course of the domestic enquiry and he could not, therefore, arrive at any independent conclusion in respect of the allegations that have been found to have been established against the said worker. He has also pointed out that the appellate tribunal could not award back benefits to the worker while directing his re-- instatement as section 36-B (iv) of the I. R. O. Had been repealed by Ordinance XXVI of 1975 dated 23-12-1975.
4. Regarding the first objection it may be stated that it was held by the Supreme Court in Crescent Jute Products Ltd. v. Muhammad Yaqoob (PLD 1978 SC 207) that the Labour Court had jurisdiction to go behind the domestic enquiry and examine the facts of the case to see whether the decision of the Enquiry Officer was not biased or partial. Thus the court could go into all the facts of the case to check against arbitrary, capricious and camouflaged dismissals. It was observed in the course of that decision by Karam Elahi Chauhan, f. That where the employer produced no evidence to prove any actual default on the part of the employee, the Labour Tribunal had jurisdic--tion to examine the case afresh. In subsection (5)of section 25-A of the I.R.O. 1969 it is laid down that in adjudicating and determining the 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 ; that the Labour Court has thus jurisdiction to go behind the 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 based on merits as well as law. The words "shall go into all the facts of the case" area clear guide with regard to the were scope of the enquiry which a Labour Court undertakes under section 25-A. These words have been used with a purpose and have to be given full effect so as to achieve the result desired. They clearly signify that the Labour Court has full and complete powers to enter into questions of facts and to arrive at its own conclusions regardless of there being no illegality of procedure in the domestic enquiry. 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 court.
5. This question had been examined in detail in Constitutional Petition No, 206/75 by a Division Bench of this Court and it was observed in the judgment of that case dated 4-10-1978 that the Labour Court is empowered to determine whether the domestic enquiry was fairly conducted and was not violative of any law or principles of natural justice. It was accordingly held that no fault could be found with the conclusions reached by the Labour Court that the domestic enquiry held against the respondent was not proper but on the contrary it was unfair and perverse.
6. Regarding the payment of wages for the period the worker was kept out of work, it has been held in PLD 1 )63 SC 140 in a case under Payment of Wages Act that the mere fact. That the employee was not given work by the employer will not derogate his right to receive wages that after the re- instatement of the employee the authority was justified to hold that the claimant was entitled to the payment of full wages for the relevant period. In PLD 1973 SC 589 it was likewise held that where an employee is ready and willing to render service but the employer is not affording him opportunity to render such service, the employee is entitled to full wages unless a deduction is expressly allowed under the Act : that in a suit for declaration of dismissal as illegal and for recovery of arrears of salary by way of consequential relief the claim for the arrears of full salary of a civil servant who was kept out of employment under wrongful order was recognized subject to the only qualification that if during the relevant period he was gainfully employed he shall account for his earning in making claim for the arrears of salary (Pakistan v. Mrs. A. V. Issacs) (PLD 1970 SC 415).
7. It is true that these decisions are based on Payment of Wage Act or in cases of wrongful dismissal from service but the general prin--ciples are of were application. Therefore, repeal of provisions relating to junior Labour Courts will not have the effect of depriving the worker in cases of wrongful dismissal of claiming the benefits for the period the were wrongfully kept out of work.
8. It may also be mentioned in this connection that the petitioner Textile Corporation had declared a lock-out in the mill on 25-1-1975 when the workers had returned after the Moharram holidays.
This action of the petitioner was challenged by the Union by filing an application under section 34 of the I. R. O. In the Labour Court . The application was dismissed with the result that a Constitutional Petition being Petition No. 200 of 1975 was filed in the High Court. This petition was allowed as per judgment of the learned Single Judge dated 29-1-1975 and the learned Judge held that the workers had not gone on strike but they had merely absented themselves from work. The petitioner mill then moved Constitutional Petition No. D-882/77 which came up before a Division Bench of this Court. This petition was dismissed in limine by order dated 28-12-1977 and it was held that the action of the workmen in abstension from duty on 22-1-1975 did not amount to strike that since there had been no strike there could also be no abetment in respect of the strike which did not occur ; that the enquiry by Mr. Abro under the circumstances when he had appeared as a witness against the workers could not be held to be an impartial enquiry and under the circumstances the workers could not be deprived of their legitimate dues since the findings of the Enquiry Officer were obviously unfair and.
It appeared that hard line attitude had been adopted by the petitioner Textile Corporation against its employees.
9. Thus, considering the observations contained in the Division Bench judgment of this Court regarding the domestic enquiry and also considering the decisions of the Supreme Court on the question that a Labour Court could go behind the enquiry, the contentions of the learned counsel for the petitioner appear to be without any force.
The petition is accordingly dismissed with costs.