Find a Lawyer

Revision Application No. KAR‑38 of 1983, heard on 16th February, ‑1983.

Expunction of remarks‑--

--‑‑ Disparaging remarks against person neither a party nor witness in proceedings‑Labour Appellate Tribunal exercising suo motu revision jurisdiction for expunctions of such remarks‑Labour Court making sweeping observation against office‑bearers of workers' union gene rally‑Only one office bearer a party to proceedings and another appearing as witness‑Other office‑bearers neither party to proceed ings nor witnesses therein‑Observations severable from rest of judgment‑Direction for expunction of such remarks, in circum, stances, issued by Appellate Tribunal ‑Expunction of remarks from order of Labour Court‑Revision jurisdiction of Labour Appellate Tribunal‑Industrial Relations Ordinance (XXIII of 1,969), S. 38 (3‑a).

Inayatullah Butt v. Cantonment Board P L D 1957 Lah. 583 ; Malik Feroze Khan Noon v. The State P L D 1958 S C (Pak.) 333 ; Mst. Asghari Khanum v. The State P L D 1980 S C 14 and Mr. Hameed‑ud‑Din's case P L R 1950 Lah. 58 rel.

Nayab Naqvi for the Informant.

A. Hafiz for Respondent.

Date of hearing : 16th February 1983.

DECISION

By a decision, given on 17th August, 1981, the learned First Labour Court set aside the orders of dismissal passed by the respondent herein in respect of one of their employee, Nusrat Kabeer, an office‑bearer of the Workers' Union in the respondent establishment, and directed his rein statement in service but rejected his claim for back benefits on the ground that the responsibility for starting the fight also partly lay on him. In that decision the learned Labour Court also made the following observa tions in respect of the office‑bearers of the Workers' Union, which union is the C. B. A. in the respondent establishment :‑

"Similar is the case with the documents produced by Mr. Afroze Ahmad Farooqui, as these documents create an effect on one's mind that the office‑bearers of the union had unnecessarily been inter fering with day to day administration of the respondent with a view to cowdown the management."

Aggrieved by the rejection of his claim for back benefits Nusrat Kabeer preferred an appeal to this Tribunal against the above decision only in respect of back benefits, but the appeal was dismissed by this Tribunal by its order dated 7th November, 1982. In that appeal it was also urged that the observations made by the learned Labour Court against the union be expunged as the union was neither a party to the proceedings nor was given notice before the observations were made. This Tribunal, while dismissing the appeal, declined to examine this contention on the ground that gas the observations had been made against the workers' union it was for the union to apply for expungement of the said remarks and observations. However, it was observed that the basic rule as laid down in the case of Inayatullah Butt v. Cantonment Board (P L D 1957 Lah.583) was that no observation should be made against a person or institution unless he or it had been given an opportunity of explaining his or its position or he or it had been examined as a witness. Apparently not satisfied with. the above observation of this Tribunal the workers' union invoked the suo motu revisional powers of this Tribunal for expun gement of the impugned observations of the learned Labour Court. In view of the principle laid down in the case of Inayatullah Butt, which has been approved by the Supreme Court, the record and proceedings of the case before the learned Labour Court was called for in the exercise of the revisional powers conferred on this Tribunal by section (3‑a) of section 38, 1. R. O., for the purpose of examining the correctness legality and propriety of the aforesaid observations of the learned Labour Court.

2. In response to the notice issued by this Tribunal Mr. Nayab Naqvi has appeared for the workers' union while Mr. A. Hafiz appeared for the respondent trust, i. e. Hamdard Dawakhana (Waqf) Pakistan. It was submitted by Mr. Nayab Naqvi that since the workers' union was admittedly neither a party to the proceedings before the learned Labour Court nor was it afforded an opportunity of explaining its position before the observations were made as such in making the aforesaid observations the learned Labour Court has exercised a jurisdiction not vested in it in law. In support of his contention the learned representative relied upon the decision of the Lahore High Court reported as Inayatullah Butt v. Cantonment Board and the decisions of the Supreme Court reported as Malik Feroze Khan Noon v. The State (P L D 1958 S C (Pak.) 333) and Mst. Asghari Khanum v. The State (P L D 1980 S C 14).

3. In the case of Inayatullah But, Shabir Ahmad, J., while 'expunging the remarks made by the Senior Civil Judge, Rawalpindi, against Inayatullah Butt, a member of the Cantonment Board, Rawalpindi and Chairman of the Finance and Taxation Committee, adversely commenting upon the conduct of Inayatullah Butt as such member, who was neither a party to the proceedings nor a witness in the proceedings before him, observed as follows.

"It is well‑settled that Courts should say nothing that. is likely to prejudicially affect a person without hearing that person. The reason for this rule is that remarks by Courts are likely to be used by interested persons against the person about whom they were made, and consequently it has been laid down in a large number of cases decided by the High Courts that disparaging remarks should not be made by Courts against persons who are neither parties nor witnesses before them. The petitioner was not a party to the suit and the fact that his wife was the plaintiff does not, in my mind, make any difference for our present purpose. The petitioner was not a witness either and condemning him without hearing him offends against the salutary rule followed by Courts in this respect.

The Supreme Court in the cash of Malik Feroze Khan . Noon examined with some detail the law .relating to expunction of remarks and observations made in judgment against persons not parties or witnesses to proceedings and approved the principles laid down by Shabir Ahmad, J., in the above judgment. In that case Muhammad Munir, C. J., while speaking out strongly against the making of observations by Courts in respect of persons who were not parties or witnesses in the proceedings, referred to his observations in the case of Mr. Hameed‑ud‑Din .(P L R 1950 Lah.58) which run as follows :‑

"Disparaging remarks in a judgment, whether they amount to a verdict or not, imputing crime, moral delinquency or improper conduct to a person are a constant source of uneasiness and irritation to him. They lower him in the public estimation and haunt him like a specta for life, invariably visiting him whenever he enters the precincts of a Court of Justice as a witness or a party. Being fraught with such serious consequences they should only be made where any hesitation or reluctance in making them would impede the.. ends of justice, persons making or publishing such remarks, whether true or not, or not liable for liable of for defamation because in the former case they are protected by common law and in the latter by statute, the reason being that unless Judges had the power to make bold and fearless comments on the evi dence give before, .them they would not be able effectively to discharge their functions. These two conflicting considerations must always be present to the mind of a Judge whenever he is called upon to criticise the character and conduct of a person. On the one hand he should weigh the gravity of the damage that his remark would cause to the person concerned and on the other he must realize that he owes a duty to the parties, the public and the appellate Court of stating in full his reasons for the view he takes of the evidence. It is again a rule, as ancient as the law itself and based on common sense and fairplay, that when a Judge decides to condemn a man, whether a party or witness, the facts on which condemnation is intended to be based must be put to him so as to give him an opportunity to explain the condemnatory facts and thus to remove the Judge's suspicion about his conduct. A judge who condemns a man unheard acts as unfairly as if he were to convict a man without hearing him in his defence. Persons who are attributed ignominious or improper conduct in judicial determination, through they were neither parties nor witnesses in the cause, have, therefore, a just cause for complaint against this unfair treatment and the law reports are full of precedents where in the circumstances mentioned High Courts expunged the offending remarks. The need for caution‑ in making such remarks is much greater where the person disparaged is a public servant acting in his own independent sphere. In such cases it is absolutely necessary that the Judge's suspicion about his conduct be communicated to him and an opportunity given to him to show cause against the view that the Judge is inclined to take of his conduct. If the officer concerned has not at all appeared before the Judge and has had no opportunity to vindicate himself the Judge acts most unfairly if not actually without jurisdiction, in commenting adversely on his conduct. And a Judge who makes his position in Court a mere pretext to condemn another person for personal reasons does not act as a Judge at all, he is a mere party who has arrogated to himself the position of a Judge."

5. 1n the above case, Rehman J., While agreeing with the view of the other Judges that' the remarks and observations made in respect of Malik Feroze Khan Noon be expunged, observed as follows :--

"On the merits of the appeal, it would be sufficient to say that the offending remarks in the impugned judgment, can be severed from it without injuring the integrity, were unnecessary for the disposal of the case, condemned the petitioner unheard and are surcharged with dangerous potentialities: They not only case very damaging reflections on the petitioner who was neither a party nor a witness in the proceedings leading up to the judg ment in question, but would lend to prejudice. his fair trial, if at all that opportunity for vindication is made available to him by the complainant in the defamation case. It is, therefore, meet and proper that the passages complained of should be expunged."

6. In the recent case of Mst. Asghari Khanum, the: Supreme Court expunged the remarks made by a learned Single Judge of the Lahore High Court in his order granting bail against one G. who was neither a party to the proceedings nor a witness or accused in the case. It was held by the Supreme Court that the observations made against G though prefixed with the expression "prima facie" are not only tantamount to condemning him unheard but also are likely to prejudice fair trial of suit filed by him against his divorced wife

7. Mr. A. Hafiz, the learned counsel for the respondent trust opposed the expunction of remarks on two grounds, firstly, that the remarks and observations were not against the union itself as has been asserted by Mr. Nayab Naqvi but against the office‑bearers of the union and secondly, that not only Nusrat Kabeer, who had filed the grievance peti tion before the learned Labour Court was an office‑bearer of the union but further the General Secretary of the union, who had submitted informa tion in these proceedings before this Tribunal, was examined as a witness in the case. 'The learned counsel, however, very fairly did not dispute the principle enshrined in the aforesaid decisions that the Courts should refrain from making observations damaging to the reputation or interest of a person who was not a witness or a party to the proceedings before it and was not allowed an opportunity of explaining his conduct or posi tion. The contention of Mr. A. Hafiz is undoubtedly correct that the observations made by the learned Labour Court are not strictly against the union, but since the observations are against the office‑bearers generally, they would be hit by the principles enunciated in the above‑referred authorities as regards the office bears who were not parties or witnesses to the proceedings before the learned Labour Court. I have already indicated that Nusrat Kabeer who had filed the grievance petition before the learned Labour Court was an office bearer of the Workers' Union and that further Afroze Ahmad Farooqui, the General Secretary of the Workers' Union, was a witness in the said case. If the learned Labour Court had restricted its observations to these two officers, it could not be said to have exercised a jurisdiction not vested in it in law. One might have the impression looking to the language of the correspondence entered into by the General Secretary with the management and the affidavits filed by the General Secretary and Nusrat K3beer, that the observations were perhaps not unjustified but since the learned Labour Court has made a sweeping observation an respect of the office‑bearers of the union generally, and as the other office‑bearers were admittedly neither parties to the proceedings before it nor witnesses in those proceedings and further as the observations are clearly severable from the rest of the judgment, I would direct that the said observations be, expunged.

A. E. Appeal accepted.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.