' This Constitutional Petition assails the order, dated 12th September, 1977 passed by the learned Punjab Labour Appellate Tribunal, Lahore.
2. Muhammad Yunus, the petitioner, was employed as a fitter in the Crescent Sugar and Distillery Limited, Lyallpur (now renamed as Faisalabad), viz. Respondent No, 2 (hereinafter referred to as the respondent). He was dismissed from service vide order, dated 16th September, 1976 of the respondent with effect from the afternoon of 17th September, 1976 on the charges of misconduct inasmuch as he allegedly refused to operate the machines and incited other fitters not to operate the said machines.
3. The petitioner challenged his dismissal before the learned Punjab Labour Court No, 3, Faisalabad through an application under section 25-A of the Industrial Relations Ordinance, 1969, inter alia on the grounds : (a) that in his capacity as fitter he was under no obligation to work as an operator and to operate the machines. His duties as fitter concerned with the maintenance of the said machines ; and (b) that after the enquiry he was served with a show-cause notice but in reply to that notice he sent an intimation in writing to the employer intimating him that he was not supplied the copy of the Enquiry Officer's report and that of his proceedings. He thus before submitting his reply to the show-cause notice requested the employer to provide him the aforesaid copies but without looking into his request and without supplying him the said copies he was dismissed from service. The grievance petition filed by the petitioner was resisted by the respondent who controverted the allegations of the petitioner and maintained that copy of Enquiry Officer's report was sent to the petitioner through registered A. D. But the same was received back as undelivered.
It was further pleaded that in the nature of petitioner's appointment, he was obliged to operate machines and he had been doing so for the last several years.
4. The learned Punjab Labour Court No, 3, Faisalabad, vide its judgment, dated 24th January, 1977 accepted the petitioner's application and ordered his re-instatement with back benefits. The learned Labour Court, however, failed to record any finding on the question as to whether the legal requirement of providing the copy of Enquiry Officer's report to the worker concerned, was complied with by the employer in this case or not. The said learned Court, of course, observed that the petitioner was employed as fitter and he was under no obligation to operate the machines merely for the reason that he had been performing the duties of operator for the last few years. The respondent preferred an appeal before the learned Punjab Labour Appellate Tribunal, Lahore. The said learned Tribunal accepted the appeal, set aside the decision of the Labour Court and dismissed the petitioner's application filed under section 25-A of the Industrial Relations Ordinance, 1969, vide its impugned judgment, dated 12th September, 1977. Thus the present Constitutional Petition.
5. While passing the impugned order, the learned Punjab Labour Appellate Tribunal, Lahore, observed that the Enquiry Officer has found the petitioner to be guilty of misconduct as defined under Standing Order 15 (3) (a) (h). And (k) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and that it was well-established that Labour Court or Tribunal could not sit as a Court of appeal on the decision taken by the Enquiry Officer. To arrive at this conclusio n, the learned Appellate Tribunal placed reliance on United Distributors Limited v.
Zahid Hussain Khan and 2 others , Muhammad Shamim v. Pak. Tobacco Co. Ltd. And another , Punjab Road Transport Board, Lahore through its Secretary v. Fazal Elahi and another and Mu hammad Ramzan v. Presiding Officer, Sind Labour Court No, IV and 3 others .
6. Needless to say that the Labour Appellate Tribunal also failed to record any finding on the two main questions raised by the petitioner in his application under section 25-A of the Industrial Relations Ordinance, 1969 which were to the effect that (a) the petitioner could not be made to discharge the duties of another/higher post, in spite of objection, without written order and without remuneration therefore ; and (b) in response to final show-cause notice, he asked for a copy of the Enquiry Officer's report, but the same was never supplied to him.
7. It is provided in section 25-A of the Industrial Relations Ordinance, 1969, that where a matter is taken to the Labour Court by a worker who is aggrieved by his termination, the Labour Court while adjudicating the matter 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. It is thus evident from the provisions of section 25-A that the Labour Court is not bound by what has been found as a result of domestic enquiry and the said Court is required to go into all the facts of the case and thereafter to pass such orders as are considered just and proper in the circumstances of the case. In Crescent Jute Products, Jaranwala v. Muhammad Yaqoob etc. it has been held that from the language of the Statute viz.. Section 25- A of the Industrial Relations Ordinance, 1969 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 view point adopted by the learned Labour Appellate Tribunal in his impugned judgment that the Labour Court could not go behind the dismissal order so as to examine the relevant facts afresh because its jurisdiction was limited merely to see whether the relevant formalities in the matter of dismissal had been complied with or not, has not been approved by the Supreme Court of Pakistan. In this view of the matter, it was obligatory for the learned Punjab Labour Appellate Tribunal to record its findings on the questions as to whether the petitioner in view of his appointment as fitter was obliged to work as operator and that if the employer did supply the copy of the Enquiry Officer's report to the workman which he had expressly demanded in writing from the employer. It stands1 2 3 4 5 established on high authority that the employer is bound to supply the copy of the Enquiry Officer's report to the accused worker before passing any final order on the enquiry against him. Even under Standing Order 15 (4) of the West Pakistan IndustrialD and Commercial Employment (Standing Orders) Ordinance, 1968, the employer is under legal obligation to supply the copy of the Enquiry Report to the work man against whom the enquiry has been conducted.
' In Punjab Road Taansport Corporation v. Punjab Labour Appellate Tribunal, Lahore and others it was held by the Supreme Court of Pakistan : "It was necessary and consistent with the principles of natural justice that not only the respondent should have been furnished with a copy of the Enquiry Report but also he should have been given an opportunity to show cause why the order of dismissal should not be passed against him. The mere fact that the respondent had a personal audiance with his employer when he asserted he was not guilty, cannot replace the aforesaid requirement of law." In The Workers of Bata Shoe Company Limited, Lahore v. Bata Shoe Company Limited and another . It was held that where a worker could not be lawfully transferred and he refused to act upon the order of transfer saying that his transfer was against the terms of the collective agreement, the course adopted by him was proper and it could not be said that he was guilty of insubordination by returning the transfer order.
8. In the circumstances of the under-consideration case also if it is found that in his capacity as fitter, the petitioner was not obliged to operate the machines then he cannot be said to have committed misconduct when he refused to operate the machines pursuant to the orders of his superiors. Reference in this behalf may also be usefully made to the provisions of Standing Order 2- A of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, which has been added by Amending Act XXIII of 1973. Under this Standing Order, every employer is obliged to specify the terms and conditions of service of every workman and the duties to be performed by such workman. The Workers' Union and the workers employed by the respondent raised an industrial dispute regarding which a settlement was arrived at on 7th December, 1973 (Annexure A). As against Demand No, 4 (b), it was decided that in pursuance of the new labour laws each and every worker should be given letters stating there job description. All such letters should be issue by 31st December, 1973. It was further decided that if a worker performs his job satisfactorily against a higher post for a period of two months, he should be appointed against it provided the post is vacant. It was thus a right given to the petitioner to insist upon the performance of that job only for which he was employed and to be paid additional remuneration if he was made to work against a higher post. As already observed, the learned Appellate Tribunal has failed to record its findings on the aforementioned questions arising in the petitioner's case.
9. For the foregoing reasons, this Constitutional Petition is allowed and the impugned order, dated 12th September, 1977 passed by the Punjab Labour Appellate Tribunal, Lahore (respondent No, 1) is declared to be without lawful authority and of no legal' effect. Resultantly, it is directed that the learned Punjab Labour Appellate Tribunal, Lahore, shall decide the petitioner's appeal afresh after recording its findings on the petitioner's contentions : (a) that the petitioner could riot be made to discharge the duties of another/higher post, in spite of objection, without written order and without remuneration therefore ; and (b) that in, response to final show-cause notice, a copy of Enquiry Officer's report was asked for which was never supplied.
' No order as to. Costs. PLD-1976 Kar. 376 1975 S. C M R 46 PLD 1976 Lah. 1414 PLD 1976 Kar. 1100 PLD 1978 SC 207 1973 SC M 4556 7 1 2 3 4 5 6