' This is an appeal against the order of the Labour Court, Muzaffarabad, dated 11-8-1985 whereby the learned Labour Court has decided all the six preliminary issues framed by the Labour Court against the appellants.
2. Vide my order passed on 13-8-1985, I directed the parties present before this Court on that date, that this case would positively be heard on 15-8-1985. On that date, Raja Muhammad Hanif Khan, Advocate for the appellants, was present and the said order was made in his presence and hearing. But today, Raja Muhammad Hanif Khan, Advocate on behalf of the appellants, has not appeared. An application for an adjournment of the case was moved by the appellants which was refused by me because the application was simply meant to prolong the case and there was no genuine and reasonable cause for adjournment at all.
3. However, I have myself seen all the papers which were produced by some of the appellants (who were present today) and I have also perused the record pertaining to the case carefully with the help of the learned counsel for the respondents.
4. I have also heard the appellants present in the Court and Mr. Rashid-ul Haq Qazi, Advocate for the respondents. The main points raised in this appeal, drafted by Raja Muhammad Munir Khan, Advocate, are the following:-
(a) That the Labour Court was wrong to hold that the provisions regarding the issuance of notice under section 30 of the Industrial Relations Ordinance were mandatory. It has been mentioned in A the appeal that the provisions under section 30 of the said Ordinance are merely directory because the word "May' and not "Shall" has been used in section 30 of the Ordinance;
(b) That the Labour Court was wrong to say that the application before the Labour Court was not competent for certain technical grounds mentioned in the judgment of the learned Labour Court;
(c) That the appellants are being transferred mala fide simply because they are members of the Executive of the Union or its officeholders. The appellants are mostly peons employed at Muzaffarabad and to transfer them to far off places like Karachi clearly shows that the transfer orders were passed or are being passed simply for the sake of victimization. It has been alleged by the appellants that the Bank Authorities do not like the Union activities of the issued by the respondents on 18-1-1982 alongwith the postal receipt therefore, is on record at page 78 and 79 of the file of the Labour Court. The stand of the appellant has been that the telegram could not be held to be a notice as it was issued 3 days prior to the termination order. This plea in view of what has been observed above is of no consequence. I have therefore, no hesitation in repelling the contention of the learned counsel for the appellant raised in support of the grounds mentioned in paras. 4(a), (b) and (e) above.
7. The observation of the Labour Court in support of the objection of the applicants before him is established through the admission of Abdul Razzak Tareen the Zonal Chief when he appeared in Court. It is in these words:- {{URDU TEXT}} The prejudice is apparent on the face of the record. The entire enquiry proceedings was finalized very hurriedly. The workmen are definitely not conversant with the English language in which the proceedings were recorded.
8. The pendency of the complaints/counter-complaint is not denied even by the management and the existence of the demands of the Union which was being represented by the respondents herein, being office-bearers, does not require any proof since it is an admitted feature of the case.
Mr. Basharatullah, Advocate himself while putting his case before me has traced the history of the dispute and this is borne out by the report of the Enquiry Officer which forms part of the record of the Labour Court. The observation in this behalf made by the Labour Court in these words:- _ "Plain reading of section 47 of the I.R.O. 1969 prohibits dismissal of office-bearers of the union when conciliation proceedings or proceedings before the Labour Court was pending. In this Court complaint Case No, 7 of 1981 was pending which was in respect of the offences of misconduct alleged to have been committed by the applicants during negotiations upon the charter of demands." I do not find any cogent reasons to differ with the Labour Court that in view of the pendency of the proceedings (Case No,7 of 1981) the order of termination services passed against the office-bearers of the Union was not justified in law. The grounds mentioned in paras. 4(d), (e) and (f) thus stand answered.
9. There remains to be considered the contention of Mr. Basharatullah that the Labour Court has unjustifiedly re-appraised the evidence recorded in the domestic enquiry and relied on Pakistan Petroleum Workers Federations Case PLD 1961 SC 479. The reliance is misplaced j in the instant case as the proceedings have been instituted in the instant case under I.R.O. Promulgated in 1969 and the provision contained in section 25(5) of I.R.O. Does authorise the Labour Court to go into all the facts of the case. This provision has escaped the notice of Mr. Basharatullah, the same is reproduced:- "Section 25(5) I.R.O. Reads:- ' 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."
' The Supreme Court of Pakistan has considered this provision in Crescent Jute Products Ltd's. Case PLD 1978 SC 207. I can do no better than to quote the observations contained at page 209 of the - report:- " 4 . Learned counsel for the petitioner/employer then argued that it was not necessary on the part of the employer to satisfy the Labour Court that actually there existed a cause for dismissing the employee. His precise submission was that this was a matter which was to be left to the satisfaction of the employer and all that he had to show was that he had dismissed the employee after taking proper proceedings and that he was not required to justify his dismissal on the merits of the case before the Labour Tribunal. It was argued that in this way even if the employer produced no evidence to prove any actual default on the part of the employee, the Labour Court could not declare the dismissal order to be invalid. The contention has no merit. 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 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 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 i8 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 facts of the case "clearly signify that the Junior Labour Court has full and complete powers to enter even into questions of facts 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 demestic 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 forum in determining the grievance afresh after considerating 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 our view, define the 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 far-reaching consequence, we do not see how their meaning can be whittled down and the provision construed in a limited sense as it (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."
In view of this authoritative pronouncement of the Supreme Court which is binding on all Courts in Pakistan there is no merit in the contention of Mr. Basharatullah that the Labour Court has no jurisdiction to re-appraise the evidence. The contention is, therefore repelled.
10. Keeping in view the provisions of section 25(5) I.R.O. The evidence brought on record is now to be assessed. The evidence on behalf of the appellants consist of the statement of witnesses and the report of the enquiry officer. The allegations against the respondents as contained in the "show-cause notice, dated 13-4-1981" which forms the basis of the termination order are that they tried to upset the normal Banking business on 15-3-1981 when they visited the Jinnah Road Branch, Quetta of Habib Bank and instigated the employees working in the Branch to go slow and that used filthy language and threatened with dire consequence when the Branch Manager intervened. It was mentioned in the notice that "since the above acts constitute serious misconduct, you are called upon to show cause as to why disciplinary action should not be taken against you." (What action was contemplated was not intimated). The witness Ghulam Hussain (D.W. 1) admitted in the cross-examination before the Labour Court:- {{URDU TEXT}} ' The enquiry report also contains the same version. The report says that "on cross-examination by Yousaf, Mr. Ghulam Hussain stated that they had not asked the staff to work during office Hours".
D.W.2 Zahoor Ahmed was posted as Manager in the Liaquat Bazar Branch w,e,f, November 1976 to June, 1982 therefore, could say nothing about the incident allegedly occurred on 13-4-1981 in the Jinnah Road, Branch, Quetta. D.W.3 Abdul Rub Abbassi is the person on whom the management banks too much. But this witness has acted as prosecutor on behalf of the Bank during the domestic enquiry and had cross-examined the witnesses produced by the respondent. He is, therefore, an interested person. He himself had been proceeded for misconduct by the Bank. Even this witness has said:- {{URDU TEXT}} It has rightly been contended by the counsel for the respondents that this is a case of no evidence.
The finding of the learned Presiding Officer in the face of the evidence (referred above) has rightly come to the finding that the management (the appellant) has failed to establish the misconduct against the respondent herein by any cogent and convincing evidence. I have also examined the evidence in the instant cases and concur in the findings of the learned Labour Court and hold that there is no tangible evidence to support the orders of dismissal of respondents.
' The upshot of the above discussion is that there is no force in the appeals accordingly I dismiss the Labour Appeals Nos, 6 and 7- of 1983 with costs. The orders of the Presiding Officer Labour Court Quetta passed in Application No,5 and 6 of 1983 therefore, maintained and the orders of termination of the respondents services are set aside. The respondents shall be re-instated with all back benefits within seven days hereof. In view of the above the Appeals Nos, 2 and 3 of 1984 filed by the appellants are also disposed of as the orders of my predecessor dated 10-3-1984 had lost its force and had become infructuous in view of the provisions contained in section 38(8) of the I.R.O. And stand vacated.
Appeals dismissed.