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Writ Petition No. 419 of 1984, decided on 23rd February, 1986.

‑‑‑S. 25‑A‑‑West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O. 15‑‑Termination of service‑‑Order of Labour Appellate Tribunal going against domestic inquiry and evidence produced before Labour Court‑‑Inquiry against worker conducted in an impartial and fair manner and Inquiry Officer giving full opportunity to him to defend‑‑During inquiry proceedings worker admitting some of allegations against him No bias alleged against Inquiry Officer and no enmity proved with management‑‑Judgment of Labour Court upholding order of termination of service of worker based on facts of case‑‑Labour Appellate Tribunal giving its own findings on facts which were neither on record of domestic inquiry nor in evidence‑‑

Order of Labour Appellate Tribunal re‑instating worker, held. was without lawful authority and of no legal effect.

‑‑‑S. 25‑A‑‑West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O. 15‑‑Labour Court‑‑Only concerned with question whether action taken against worker was in accordance with law‑‑Question whether worker committed theft, held, was a question of fact and could only be inquired into by Inquiry Officer.

Jehanzeb Rahim for Petitioner. Nemo for Respondents. Date of hearing: 23rd February, 1986.

‑‑This Constitutional petition arises in the following circumstances:‑

Muhammad Latif, respondent No. 2 herein joined the service of petitioner's Establishment as a Telephone Operator in the year 1966. Thereafter he was promoted as Telephone Supervisor, vide letter, dated 15‑1‑1976. Later on respondent No. 2 was transferred to Room Services on 21‑6‑1983 due to administrative reasons whereafter he was served with a show‑cause notice alleging therein that he had taken a sum of Rs.2,460.25 to his residence, which he collected from the room of the

hotel. Respondent No. 2 herein submitted his reply and denied all the allegations. This reply was found unsatisfactory, therefore, an enquiry was conducted by Muhammad Razaq, who, after giving full opportunity to respondent No. 2 to defend his case, found him guilty under sections 15 (3)(b) and (j) of the Standing Orders Ordinance, 1968 and submitted his report to the petitioner's Management. Acting on this report the petitioner terminated the services of respondent No. 2, vide order, dated 28‑9‑1983. Respondent No. 2 then served the petitioner's Management with a grievance notice but the same was not redressed. The respondent No. 2 challenged the termination order under section 25‑A of the Industrial Relations Ordinance, 1969, in the Court of Presiding Officer, Labour Court, Peshawar, respondent No. 3 herein, but failed to succeed. He then assailed the said order in appeal before Chairman, Labour Appellate Tribunal, Peshawar, respondent No. 1 herein, who accepted the appeal and ordered re‑instatement of respondent No. 2 without back benefits/wages vide, dated 10‑10‑1984, hence the present petition.

2. This petition was admitted to full hearing on the grounds that according to the petitioner since there was no flaw in the domestic inquiry, the Labour Court, respondent No. 3 herein, could not go into the facts determined by the Inquiry Officer and substituted its view for the view taken by the Inquiry Officer and the employer, and that on that ground the decision of the Labour Appellate Tribunal violates the law laid down by the Supreme Court in Pakistan Tobacco Co. Ltd. v. Channan Khan and others 1980 P L C 981 and in Syed Mir Muhammad v. N.‑W.F.P. Government through Chief Secretary P L D 1981 S C 176.

3. The learned counsel for the petitioner argued that respondent. No. 1 has set aside the finding of respondent No. 3 on facts, Respondent No. 3 in fact after perusing the record of the domestic inquiry and evidence produced before him, had come to this conclusion after going through all the facts of the case, that action against respondent No. 2 herein has been taken in accordance with law. The learned respondent No. 1 has not referred to the conclusion on facts even by respondent No. 3 and has given his own findings on facts which are neither on the record of the domestic inquiry nor are in the evidence produced before respondent No. 3. The learned counsel further argued that the learned respondent No. 1 while exercising powers for hearing the appeal from the decision of respondent No. 3, is to exercise jurisdiction on the facts established before the Labour Court, respondent No. 3. The learned respondent No. 1 without adverting to the material irregularity in the procedure and the law and or misreading of evidence, has exceeded its jurisdiction in setting aside the judgment of the Labour Court, respondent No. 3, which was based on facts in exercise of jurisdiction under Industrial Relations Ordinance, 1969. The petitioner's counsel vehemently argued that the learned respondent No. 1 has concluded that the respondent No. 2 was guilty of misconduct but was not liable to the punishment of termination of services for misconduct. The learned Tribunal under the provision of Industrial Relations Ordinance, 1969, while hearing the appeal cannot exercise jurisdiction in respect of severity of punishment and it is upto the employer to punish recalcitrant employee for misconduct which includes termination from service. In support of his arguments the learned counsel for the petitioner, as already referred to in the preceding paragraph laid great stress on a judgment reported in Pakistan Tobacco Co. Ltd. v. Channan Khan and others 1980 P L C 981. Lastly he argued that acts/ omissions committed by respondent No. 2 had constituted misconduct as contemplated by Standing Order 15(3) and were proved before the Inquiry Officer and in the Court of respondent No. 3, thus the said respondent was rightly punished for the same. The learned respondent No. 1 has failed to advert to the legal provision with respect of definition of misconduct and thus passed the impugned order which is patently illegal. In any case the judgment of the learned respondent No. 1, impugned in this Constitutional petition, according to the learned counsel for the petitioner, is in excess of jurisdiction and in violation of Industrial Relations Ordinance, 1969 and the West Pakistan Industrial and Commercial Employment (Standing Orders), Ordinance, 1968.

4. We have also perused the record of the case and we are of the view that petitioner's Management was able to show that the inquiry against respondent No. 2 was conducted in an impartial and fair manner. The record shows that the respondent No. 2 was suspended on 31‑8‑1983 and one Muhammad Razzaq was appointed as Inquiry Officer who gave full opportunity to respondent No. 2 to defend himself. He was allowed to appoint any helper, if so desired, but he did not avail this opportunity nor he defend himself. Respondent No. 2 signed the last page of the inquiry proceedings meaning thereby that he was fully satisfied with the same. During the inquiry proceedings respondent No. 2 has admitted some of the allegations against him. Besides this there is nothing on the record to suggest any bias en the part of the Inquiry Officer. In fact respondent No. 2 has clearly admitted in his statement that he had no enmity with the Manager of the petitioner's Establishment. Thus judgment of the respondent No. 3 was based on facts of the case, therefore, in our view respondent No. 1 was not justified in giving his own findings on facts which are neither on the record of the domestic inquiry nor in the evidence produced before the Labour Court, respondent No. 3. The authority cited at the bar i.e. Pakistan Tobacco Co. Ltd. v. Channan Khan and others (ibid) lays down as under:‑

"W.P. Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), 5.0.15 (2)(4) and S.O. 12(6)‑ Punishment of dismissal for theft awarded by empolyer after domestic enquiry‑‑Labour Court substituting the punishment with that of termination simpliciter‑‑Orders of Labour Court not maintainable".

There is also another authority reported in Syed Mir Muhammad Shah v. N.‑W.F.P. Government through Chief Secretary (ibid) wherein their Lordships have laid down as under:‑

"N.‑W.F.P. Government Servants (Efficiency and Discipline) Rules, 1973‑‑R. 6(1)(a)‑‑Charge‑‑‑Statement of allegations‑ Constituents of‑‑Statement of allegations not showing material forming basis of charge and further material also brought on record during inquiry proceedings‑‑Terms of r. 6 warranting communication to accused at very outset of all allegations explanatory of charge and all other relevant circumstances proposed to be taken into consideration, such, conditions, held, not fulfilled; hence, final action taken upon inquiry invalidated on ground of accused having not been apprised of all circumstances proposed to be taken into consideration‑‑Accused Officer, however, made aware of such allegations during course of inquiry by Inquiry Officer and such allegations also PUP to him at close of evidence and his answer obtained, failure to spell out details in statement of allegations in circumstances, held, did not cause any prejudice to accused‑appellant hence such omission, irregularity, etc. not fatal to action taken against him."

There is another authority reported in Muhammad Shamir, v. Messrs Pakistan Tobacco Co. Ltd., Karachi and another 1975 S C M R 46 wherein their Lordships have observed that the Labour Court is only concerned with the question whether the action taken against the petitioner was in accordance with law. The question whether the petitioner committed the theft was a question of fact and could only be inquired into by the Inquiry Officer. As stated in the earlier para. of this judgment the petitioner's Establishment has acted in accordance with law i.e. appointed an Inquiry Officer, who, after affording full opportunity to respondent No. 2 to defend himself, had submitted his report recommending the dismissal from service of respondent No. 2, but the petitioner's Management took a lenient view and only terminated the services of respondent No. 2, vide Office Order, dated 28‑9‑1983, allowing him to take all the benefits attached to his service. This order was challenged before the respondent No. 3, who, also acting according to law dismissed the petition of respondent No. 2. As such keeping in view of the case‑law cited at the bar we are of the view that respondent No. 1 was not justified in giving his own findings on facts, which are neither on the record of the domestic inquiry nor are in the evidence produced before the respondent No. 3.

5. On the view of the matter, that we take, we allow this writ petition and declare the order of respondent No. 1, to be without lawful authority and of .o legal effect. We, however, make no order as to costs.

M. Y. H.

Petition accepted.

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