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Constitutional Petition No. 723 of 1970, decided on 24th February, 1981.

---‑‑Ss. 25‑A & 38 (3)‑Labour Appellate Tribunal in appeal against order of Labour Court dismissing grievance petition‑Possesses same powers as possessed by Labour Court‑Empowered to assess evidence recorded in domestic enquiry on merits in order to come to an independent conclusion about alleged misconduct of work man‑Tribunal dismissing appeal summarily on ground that it was not empowered to go into merits of domestic enquiry‑Such order of Tribunal, held, not sustainable‑High Court in exercise of Cons titutional jurisdiction setting aside impugned order and directing that appeal shall be deemed to be pending for disposal before Tribunal‑Constitution of Pakistan (1973), Art. 199.

lmdad Ali v. Sind Labour Appellate Tribunal P L D 1975 Kar. 288 and Crescent Jute Products Ltd. v. Muhammad Yaqub P L D 1978 S C 207 rel.

------Art. 199 and Industrial Relations Ordinance (XXIII of 1969), S. 38 (3)‑Constitutional jurisdiction‑Labour Appellate Tribunal dismissing summarily appeal challenging order of Labour Court dismissing grievance petition‑Order of Tribunal based on view that it was not empowered to go into merits and assess evidence recorded in domestic enquiry about alleged misconduct of work man‑High Court finding that order of Appellate Tribunal suffering from legal infirmity and gross misconception of law as to its jurisdiction whereby it could assess evidence recorded in domestic enquiry on merits m order to arrive at independent conclusion about alleged misconduct‑Employer conceding legal position but contending that impugned order of Tribunal may not be interfered with by High Court in discretionary jurisdiction because substantial justice had been done and High Court would not on technicalities of law upset same‑High Court not feeling inclined to accept such contention for obvious reason that in doing so it shall be depriving workman of his statutory remedy of appeal which was denied by Tribunal on a gross misconception of law as to its jurisdiction Held: in refusing to go into merits Tribunal had committed a jurisdictional error which rendered its order without lawful authority.

Crescent Jute Products Ltd. v. Muhammad Yaqub P L D 1978 S C 207 rel.

M. L. Shahani for Petitioner.

Respondents Nos. 1 and 2 (absent).

A. A. Sharif for Respondent No. 3.

Date of hearing : 24th February, 1981.

This Constitutional Petition under Article 199 of the Constitution seeks to call in question the order, dated 1^st September, 1976 passed by the Sind Labour Court No. 5, Karachi and the order, dated 14th October, 1976 passed by the Sind Labour Appellate Tribunal, Karachi.

2. The facts forming the background of this case briefly stated are that the petitioner was employed as a Waiter to the establishment of the third respondent Messrs Sind Club, Karachi when on 13th September, 1975 an incident occurred in the Office of the Accountant of the said Club in which it was alleged that the petitioner misbehaved with the Catering Manager of the Club one Mr. Rais Khan. The petitioner was placed under suspen sion on the same day by Mr. S. A. Waheed, the Secretary of the Club and was directed not to enter the premises of the Club. Subsequently, a charge‑sheet, dated 15th September, 1975 was served on the petitioner to which he submitted his explanation. An enquiry, was therefore, ordered against the petitioner and Mr. Waheed, the Secretary of the Club was appointed as Enquiry Officer, who after holding the enquiry submitted his report, dated 22nd September, 1975 finding the petitioner guilty of the charges. After a second show‑cause notice the petitioner was dismissed from service with immediate effect by an order, dated 29th September, 1975 under the signature of Mr. J. F. C. Gallaher, a member of the Managing Committee, Sind Club.

3. The petitioner after serving the requisite grievance notice filed a petition under section 25‑A of the Industrial Relations Ordinance, 1969 (hereinafter to be referred to as the I. R. O.) before the Vth Sind Labour Court at Karachi. The petition was dismissed by the said Labour Court by its order, dated 1st September, 1976. The petitioner then being aggrieved with the said order filed an appeal under section 37 of the I. R. O. before the Sind Labour Appellate Tribunal. Karachi, which was, however, summarily dismissed by order, dated 14th October, 1976 which reads as under :‑

"14th October, 1976. Mr. S. P. Lodhi for appellant.

The only plea which has been raised before me is that the Labour Court should have gone into the facts and assessed the evidence recorded in the enquiry on merits in order to come to an indepen dent conclusion. I am afraid this plea cannot be entertained in view of the authority of Supreme Court. When this was pointed out to Mr. Lodhi, he vainly attempted to argue that the Enquiry Officer had not properly appreciated the evidence. This objection also cannot be entertained. The appreciation of the evidence entirely rests with the Enquiry Officer and cannot be assailed.

The appeal is summarily dismissed.

(Sd.)

Appellate Tribunal."

4. The petitioner first sought to challenge the legality of the impugned orders on the plea that the Enquiry Officer being biased against the petitioner and in favour of the third respondent the entire disciplinary and enquiry proceedings were vitiated and could not, therefore, be sustained by the impugned order. As this contention raises essentially a question of fact, we are not inclined to examine it at this stage, specially in view of the fact that this petition can be disposed of on another short question of law. This brings us to the second contention of the petitioner that the appeal of the petitioner was disposed of by the learned Labour Appellate Tribunal on a gross misconception of the legal position as to powers of the Appellate Tribunal. The plain reading of the order passed in appeal shows that the Appellate Tribunal refused to go into the facts of the case and undertake an examination of the evidence recorded during the enquiry proceedings for the purpose of determining the questions raised to appeal on the view that such exercise was beyond the jurisdiction of the Appellate Tribunal. This view of the law is entirely unsustain able. Subsection (5) of section 25‑A of the I. R. O. lays down as under :‑

"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."

These provisions lay down the scope of the powers of the Labour Court while deciding a petition under section 25‑A. Sub section (3) of section 38, on the other band provides for the powers of the Labour Appellate Tribunal and reads as follows :‑

"The Tribunal may, on appeal, confirm, set aside, vary or modify the award or decision given under section 25‑A or section 34 or a sentence passed under clause (e) of subsection (5) of section 35 and shall exercise all the powers conferred by this Ordinance on the Labour Court, save as otherwise provided ".

While construing the amplitude and the scope of the powers conferred on the Labour Court under section 25‑A (5) this Court in Imdad Ali v. Sind Labour Appellate Tribunal (P L D 1975 Kar. 288) disagreed with the similar view taken by Appellate Tribunal in an earlier case and held that the intention behind the above‑quoted provisions "seems to be to provide another forum for determining the grievance afresh after considering the facts on which the dismissal is based". It was observed :

"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 defined the jurisdiction of the Junior Labour Court as a Tribunal of fact in regard to the matter which have been dealt with by the domestic Tribunal. 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 if 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 controversy, if any, is now finally settled by the pronouncement of the Supreme Court in Crescent Jute Products Ltd. v. Muhammad Yaqub (P L D 1978 S C 207). Referring to the provisions of subsection (5) of section 25‑A of the 1. R. O" their Lordships observed:

"From the language of the Statute herein before 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 is 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 had full and complete powers to enter into questions of fact 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 domestic enquiry to be held by an em ployer and the other in the form of a judicial determination by the Junior Labour Court itself. In other words, the intention of sub‑ section (5) of section 25‑A appears to provide another forum in determining the grievance afresh after considering 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 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."

Having regard to the aforesaid authoritative pronouncements on, the interpretation of the provisions defining the jurisdiction of the Labour Court, we are unable to sustain the view taken by the Appellate Tribunal in the impugned order, dated 14th October 1976. By virtue of the provisions of subsection (3) of section 38 of the I. R. O. the Labour Appellate Tribunal possesses the same powers as are possessed by the Labour Court. The learned counsel appearing for the respondent very candidly conceded before us that he is unable to support the view adopted in the impugned order by the Appellate Tribunal. He, however, contended that notwithstanding the legal infirmity clearly appearing in the aforesaid impugned order this Court may not in its discretionary writ jurisdiction interfere as it is well‑settled that in a case where substantial justice has been done, the Court will not on the technicalities of law upset an impugned order or action. On this contention the learned counsel sought to justify the order of dismissal and invited us to examine material on record. We are, however, not inclined to accept this contention for the obvious reason that in doing so we shall be depriving the petitioner of his statutory remedy which was denied by the appellate Tribunal on a gross misconception of law as to its jurisdiction. In refusing to go into the merits of the case, the Appellate Tribunal clearly committed a jurisdictional error which renders order as without lawful authority and of no legal effect and we hold accordingly. The contentions urged before us on the part of both parties in regard to the order of petitioner's dismissal from service can be urged before the Labour Appel late Tribunal.

5. In view of the aforesaid, we partly allow the petition in sofaras the order of the Labour Appellate Tribunal, dated 14th October, 1976 i concerned which we set aside. In the result, the appeal of the petitioner shall be deemed to be pending at the stage immediately before the passing of the said impugned order which shall be disposed of accord ing to law in the light of what has been stated in this judgment. In the circumstances of this case, there will, however, be no order as to costs.

A. E. Petition partly allowed.

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