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Application No. KAR‑181 of 1982, heard on 4th May, 1982.

Industrial Relations Ordinance (XXIII of 1969)‑‑

‑‑‑S. 36‑Procedure‑‑Summoning of witnesses‑Labour Court em powered to summon any person and examine him on oath‑Such power must be exercised in accordance with established principle that witness be summoned if this witness relevant for matter pending.

Managing Director of the respondent‑Company was summoned by the Labour Court in a petition under S. 25‑A of Industrial Relations Ordinance, 1969. Evidence of such Managing Director was not considered necessary by the Labour Appellate Tribunal in suo motu exercise of revision under S. 38 (3‑a) of the Ordinance and order of Labour Court was set aside.

A M. Rafar Osmani for the Informant.

Akhtar Ali Mahmud for Respondent.

Date of hearing : 4th May, 1982.

DECISION

The record and proceedings in Application No. 195 of 1981, under section 25‑A, I.R.O. (Muhammad Ramzaa v. Aspro‑Nicholas (Pakistan) Ltd. pending before the learned Third Labour Court was requisitioned by this Tribunal in exercise of the suo motu powers of revision vested in it under section 38 (3‑a) for the purposes of examining the legality, correct ness and propriety of the following order made by the learned Third Labour Court on 3‑4‑1982 on the application of the learned counsel for the workman. Muhammad Ramzan, for summoning the Managing Director of the Aspro‑Nicholas (Pakistan) Ltd., as a witness‑:‑‑

The applicant's contention is that the Managing Director of the res pondent had himself asked him to 'tender apology for giving him minor punishment. The contention, if proved, will definitely entitle him for leniency. Issue summon to the Managing Director as appli cants witness. Hg. : 8‑4‑1982.

Sd/‑

3‑4‑1982."

2. Section 36, I.R.O empowers a Labour Court to summon any person and examine him on oath but this power must be exercised in accordance with the established principle that a witness is, to be summoned and examined only if his evidence is relevant for the purposes of the matter pending before the Court or he is required to produce a document which is relevant or material for the purposes of such a matter. The reasons given by the learned Labour Court for summoning the witness is that it is claimed that he had held out an assurance to the workman that if he apologises would be leniently dealt with. As held by their Lordships of the Supreme Court in the case of Pakistan Tobacco Co. Ltd. v Channan Khan and others (Civil Appeal No. K‑136 of 1976), decided on 26‑1‑1980.

"It is for the employer to assess as to what punishment should be awarded for misconduct under the provision of the Statute" ; and "if the employer chooses to award dismissal, the Labour Court can not sit in judgment over it and substitute it with a lenient punish ment."

In view of this authoritative pronouncement of their Lordships of the Supreme Court, it was frankly conceded by Mr. Akhtar Mahmud, the learned counsel for workman, Muhammad Ramzan, that he cannot support the summoning of the witness on that account. However, he contended that his real purpose in making an application to the Court to summon the employer was to question him whether he had himself applied his mind to the facts of the case of Muhammad Ramzan before approving his dismissal from service. Unfortunately, no reference to this ground is mentioned in the application of the learned counsel for the summoning of witness. As such, the learned counsel for Aspro‑Nicholas did not have an opportunity of opposing the grant of the application on this ground.

3. For the reasons stated above, I would set aside the impugned order of the learned Labour Court, dated 3‑4‑1982, summoning the Managin Director of Aspro‑Nicholas but would observe that it will still be open t the workman, Muhammad Ramzan, or his learned counsel, to make proper application for summoning of the witness and if the Court is satisfi ed that evidence of witness is relevant or necessary, it can issue the requi site process for his attendance and examination.

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