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Constitutional Petition No. 934 of 1981, decided on 3rd May, 1982.

Industrial Relations Ordinance (XXIII of 1969)‑---

--‑‑‑ S. 38 (3‑a)‑Revision‑Appellate Tribunal having once exercised revisional jurisdiction whether can re‑exercise same‑Revision. power‑Whether ' can be exercised to order Labour Court to summon witnesses‑Grievance petition before' Labour Court pressed on ground that impugned dismissal order was passed by person not competent to do so‑Witness of employer admitting such stand in cross‑examination but employer moving application for summoning such person‑Application dismissed 'by Labour Court‑‑Another application of employer for summoning of another witness also dismissed by Labour Court‑Revision application dismissed by Appellate Tribunal with observations that Labour Court may consider whether .it would not be in interest of justice and elimination of further litigation to examine named witness- Employer on basis of observations of Labour Appellate Tribunal pressing for summoning such witness‑ but Labour Court declining on ground that it had no power after having dismissed applications of employer earlier‑Appellate Tribunal again exercising revision power and accepting application of employer containing request for direction to Labour Court for summoning of witness‑Second order of Appellate Tribunal challenged in constitutional petition before High Court on plea that having once exercised revisional jurisdiction Labour Appellate Tribunal was not competent to re‑exercise same and particularly to order summoning of witness- Labour Court, in circumstances, held, committed, error in holding that it had no power to re‑examine question of summoning of witness despite observations to that effect by Labour Appellate Tribunal in its first order‑Appellate Tribunal thus could rectify error/illegality committed by Labour Court‑Appellate Tribunal,, however, held, not competent in revisional jurisdiction to order summoning of a particular witness when proceedings in progress before Labour Court ‑ Impugned second order of Appellate Tribunal, in circumstances, sustained to extent that Labour Court was competent to re‑examine question whether to summon the witness in view of order of Appellate Tribunal being appellate Court‑Constitutional jurisdiction‑‑Constitution of Pakistan‑(1973), Art. 199.

Mst. Rabid v. Ahmad Ali and others .1979 S C M R 28 ref;

Mirza Muhammad Kazim for Petitioner.

Muhammad Akram Zuberi for Respondent.

Date of hearing : 3rd May, 1982.

This petition is directed against the orders, dated 9th February; 1981 and 12th August, 1981 passed by the learned respondent No. 1 i.e. Sinn Labour Appellate Tribunal. The relevant facts leading to the filing of the above petition are that the petitioner was working with respondent No. 3 mill as a weaver. It seems than he was charge‑sheeted and after holding a domestic inquiry he was dismissed on 5th June, 1980 by an order passed by a Senior Executive Mr. Sulaimann Gaba of respondent No. 3. The petitioner after serving a grievance notice filed a petition under section 25‑A of the i. R. O. wherein inter alia it was pleaded that Mr. Sulaimann Gaba was not competent in law to pass the dismissal order. The above petition was resisted by respondent No. 3. It further seems that respondent No. 3 filed an affidavit of Mr. S. K. Ali the Inquiry Officer in rebuttal to the petitioner's affidavit. The above witness was cross‑examined by the petitioner and it appears that in the cross -examination, he admitted the factum that Mr. Sulaimann Gaba being a Senior Executive was not competent to dismiss the petitioner. It further seems that after the above admission, respondent No. 3 moved an application requesting therein that. Mr. Sulaimann Gaba be summoned as a witness. However, the said. application was dismissed by respondent No. 2 by an order dated 16th November, 1980. It also seems that another application was moved, this time for summoning the Assistant Director, Labour Directorate for the production of the notification for notifying Mr. Sulaimann Gaba as the Manager for the purpose of section 2 (c) of the West Pakistan Standing Orders Ordinance. However this application was also dismissed by an order, dated 25th November, 1980. Respondent No. 3 being aggrieved by above two orders filed revision application namely, Revision Application No. 946/80 which was dismissed and while dismissing the above revision application the following observations were made:

In view of all these circumstances, while not interfering with the two orders, respectively, dated 16th November, 1980 and 7th December, 1980 passed by the learned Labour Court, I would leave it to the learned Labour Court to consider whether it would not be in the interest of justice and elimination of further litigation between the parties to examine the Factory Inspector for satisfying itself whether on the date the dismissal orders in respect of workman Naseebzada were passed ....:..............

2. It also seems that after passing of tile above order, dated 9th February, 1981 respondent No. 3 pressed for the summoning of any of the above 2 witnesses on the basis of the observation made by the learned Sind Labour Appellate Tribunal quoted hereinabove but the respondent No. 2 by his order, dated 12th April, 1981 declined to summon any of the witnesses on the ground that it had no power after once dismissing respondent No. 3's application by order, dated 7th December, 1980. It also seems that respondent No. 3 again filed another revision namely, R.A. No. K. R. 222/81 which was allowed by the impugned order, dated 12th August, 1981. The petitioner being aggrieved has filed the present petition.

3. In support of the above petition Mr. Mirza Muhammad Kazi learned counsel for the petitioner has urged that learned respondent No. 1 after having exercised revisional jurisdiction once was not competent in law to re‑exercise the same and particularly to order summoning of the witness.

On the other hand it has been contended by Mr, Muhammad Akram Zuberi that the learned respondent No. 1 has .the power under section 38(3) of the 1. R. O. to pass an appropriate order in the interest of justice to eliminate multiplicity of the litigation.

4. Mr. Mirza Muhammad Kazim has referred to the case Mst. Rabia v. Ahmed Ali and others (1979 S C M R 28) in which the Supreme Court while declining to grant leave to appeal observed that High Court having ,exercised its discretion not to interfere in revisional jurisdiction, cannot be said to be illegal order or an order passed arbitrarily.

5. In our view learned respondent No. 2 committed error to holding that in spite of the observation of the learned respondent No. 1 contained in the order, dated 9th February, 1981 it had no power to re‑examine the question as to whether either Mr. Sulaiman Gaba or Assistant Director Labour Directorate be summoned. The observation made by the learned Labour Appellate Tribunal was binding on respondent No. 2. However, at the same time we are of the view that learned respondent No. 1 could not have given the direction to the respondent No. 2 .while exercising revisional power under section 38(3) of the I. R. O. to summon a particular witness. It may be observed that the learned respondent No. 1, being appellate authority is competent to examine the legality or propriety o an order in its appellate jurisdiction which will cover the question as to whether the labour Court was justified in .shutting out a party from producing a particular witness at a stage when the proceedings were in progress. In oar view the interference of the nature in question in exercise of revisional jurisdiction cannot be made. Learned respondent No. I could however rectify the error/illegality committed by learned respondent No. 2 by holding that in spite of the observation of the learned Labour Appellate Tribunal it had no power to re‑examine the question. To this extent the order of the learned respondent No. I is in consonance with law.

6. We, therefore, allow the petition to the extent of sustaining the order of respondent No. 1 in holding that respondent No. 2 was compe tent in law to re‑examine the question as to whether to summon Sulaiman Gaba or the Assistant Director, Labour Directorate, in view of the appellate Court order, but we are not inclined to uphold the direction o the respondent No. I to respondent No. 2 to the effect that a particular witness be summoned. However, we may observe that respondent No. 2 shall re‑examine the above question to the light of‑ the observation made by learned respondent No. 1 in the order, dated 9th February, 1981. The above petition stands disposed of in the above terms with no order as to costs.

Petition accepted.

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