This petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, calls in question the order dated 19-8-1982 passed by the Punjab Labour Court No, V, Faisalabad, whereby respondent No, 1 was reinstated without back benefits and the order dated 14-11-1982 of the Punjab Labour Appellate Tribunal, whereby the appeal filed by the petitioner against the said order was dismissed.
2. The brief facts are that respondent No, 1 was an employee of the petitioner and serving as a cashier in its Katchery Bazar Branch, at Sargodha. He was charge-sheeted for misconduct, in that, he allegedly misappropriated certain amount. During the departmental proceedings, respondent No, 1 was found guilty, which led to his dismissal on 1-11-1981.
3. Respondent No, 1 filed an application under section 25-A of the Industrial Relations Ordinance, 1969 (hereinafter called the Ordinance) for the redress of his grievance. The Labour Court after appreciating the evidence produced by the parties, accepted the application and held that the petitioner was not guilty of misappropriation of money. Consequently, the dismissal order was set aside. Respondent No, 1 was directed to be reinstated with back benefits vide order dated 19-8- 1982 of the Labour Court. The appeal was also dismissed on 14-11-1982 by the Labour Appellate Tribunal, who concurred with the finding of fact recorded by the Labour Court that respondent No, 1 was not guilty of misappropriation. It was held that the case was one of omission and not misconduct and, therefore, respondent No, 1 was not liable to dismissal.
4. Mr. Saeed-ur-Rehman Farrukh, learned counsel for the petitioner relied on Punjab Road Transport Board v. Punjab Labour Court No, 2 1976 PLC 392 and Pakistan Tobacco Co. Ltd. v.
Channan Khan 1980 PLC 981, to contend that once an employee is found guilty of misconduct, the employer alone is the sole Judge of what penalty is to be awarded to the delinquent and the discretion exercised by the employer in awarding the punishment is not open to interference by the Labour Appellate Tribunal in the exercise of its jurisdiction under section 25-A of the Ordinance.
5. The contention is devoid of any force. Subsection (5) of section 25-A of the Ordinance provides; "in adjudicating and determining a grievance under subsection (4), the Labour Court shall go into all the facts of the case and pass such order as may be just and proper in the circumstances of the case". This being so, the jurisdiction of the Labour Court 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, on law, is unquestionable. Refer Crescent Jute Products Ltd. v.
Muhammad Yaqub PLD 1978 SC 207. Also refer Inspector-General of Police v. Muhammad Farid 1983 SCMR 242 wherein it was held that it is within the powers of a Tribunal to interfere in appropriate cases with punishment imposed by the departmental authorities in disciplinary proceedings. In the case of Yamin Qureshi v. Islamic Republic of Pakistan and another PLD 1980 SC 22 it was held that:-- "It goes without saying that it lies within the jurisdiction of the Tribunal and, indeed, it is its obligation, to decide all questions of law and fact sought to be raised by the appellant to challenge the order of his dismissal, including his contention that no evidence was heard in his presence, nor was he given any opportunity to show cause against the proposed punishment. The appellant would be entitled not only to a full opportunity to present his case before the Tribunal but also to inspect all relevant records which might have been taken into consideration by the competent authority for the purpose of passing the impugned order. As we see the legal position, the Tribunal has wide powers under section 5 of the Act, as it may on appeal confirm, set aside, vary or modify the order appealed against."
6. In the instant case, the Labour Appellate Tribunal after re-appraisal of the evidence on record, recorded a finding of fact that respondent No, 1 was not guilty of misappropriation, but only of omission to follow the bank instructions. This being so, the impugned orders of Courts below setting aside the punishment of dismissal, cannot be treated as without lawful authority. Refer Pakistan I International Airlines Corporation, Karachi v. Junior Labour Court No. IV, Karachi PLD 1978 SC 239, wherein it was held that violation of a rule per se does not amount to misconduct so as to entail the major penalty of dismissal from service.
7. The case of Pakistan Tobacco Co., Ltd. (supra) is distinguishable, in that, in the precedent case a concurrent finding of fact was recorded by the Courts below that the employee was guilty of misconduct and it was in these circumstances the Supreme Court held that the Labour Court cannot sit in judgment on punishment awarded by an employer and substitute with a lenient punishment. Here, there is a concurrent finding of fact that respondent No. 1 was not guilty of misappropriation. This finding is not open to challenge in writ D jurisdiction. Clearly, the ratio laid down in Pakistan Tobacco Co. Ltd.'s case is distinguishable and not attracted to the facts of the present case.
8. In Punjab Road Transport Board's case (supra) it was held that in awarding the punishment permitted by law, the employer is exercising a discretion, which is not open to review by any outside authority. It is only when he does not observe the law, or exceeds its limits that the intervention of an outside authority or Tribunal is called for. In the precedent case, the charge of fraud in respect of employer's money was established which led to the punishment of dismissal.
Here, the charge of embezzlement against respondent No. 1 in respect of employer's money having not been established, the petitioner clearly exceeded its limits in passing the order of dismissal against respondent No. 1 and rendered himself to scrutiny and interference by the Labour Court under section 25-A of the Ordinance. Therefore, the rule laid down in Punjab Road Transport Board's case is of no avail to the petitioner.
9. The Labour Court has wide powers under section 25-A of the Ordinance. A duty is cast on it to go into all the facts of the case and pass such order as may be just and proper in the circumstances of the case. An appeal is in continuation of the original trial before the Labour Court and the Labour Appellate Tribunal is competent to pass, under section 38(3) of the Ordinance, any order which the Labour Court ought to have passed in a given case. It may, on appeal, confirm, set aside, vary or modify the decision given under section 25-A appealed against.
10. It would thus appear that the Punjab. Labour Court No. V, Sargodha, as well as, the Labour Appellate Tribunal acted within their jurisdiction in interfering with the punishment of dismissal imposed by the petitioner upon respondent No. 1 and directed his reinstatement without back benefits. The discretion exercised by the Courts below in interfering with the punishment of dismissal awarded to respondent No. 1 by the petitioner does not suffer from any illegality warranting interference by the High Court in the exercise of writ jurisdiction.
The writ petition, therefore, fails and is hereby dismissed, but there shall be no order as to costs.