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

‑‑‑S. 47‑‑Application under S. 47 for permission to dismiss employee (President of Collective Bargaining Agent)‑‑Appeal against dismissal of application‑‑Enquiry conducted against employee not proceeding in a fair manner‑‑Certain questions which employee wanted to put to certain witnesses in respect of mala fide of management against him and other members of C. B. A. were not allowed to be put by Enquiry Officer‑ Appeal against dismissal of application, having no force on merits, rejected.

(b) Industrial Relations Ordinance (XXI&I of 1969)‑‑

‑‑‑S. 47‑‑Application under S. 47‑‑Mala fide‑‑Question of mala fide, against employer having not been allowed to be agitated in matter by Inquiry Officer, not gone into before Labour Court‑‑Question of mala fide has to be positively established‑‑Mere filing of a number of applications for permission to dismiss a number of employees who were members of C. B. A. could not be regarded as a fact establishing mala fide of employer.

Khalid M. Ishaq for Appellant.

Junaid Farooqui for Respondents.

Dates of hearing: 6th and 12th August, 1986.

MUHAMMAD ZAHOORUL HAQ, J.

‑‑The relevant facts in this High Court Appeal are that the respondent No.l was employed with the petitioner in the Statistics Department. He was also the President of Collective Bargaining Agent. He was served with one show‑cause notice and, thereafter with another show‑cause notice in respect of the lapses alleged to be committed by him and an Enquiry Officer was appointed to inquire into the charges. The Enquiry Officer held the enquiry in which the respondent No.l participated and eventually he gave a report finding the respondent No. 1 as guilty of certain charges. A second show‑cause notice was issued to the respondent No.l as to why he should not be dismissed from service. Respondent No. 1 replied to the same.

2. The appellant thereafter went to the Labour Court under section 47 of the Industrial Relations Ordinance, 1969 seeking permission to dismiss the respondent No.l in view of the fact that he was President of C. B. A. and there was an industrial dispute pending between the union and the appellant at that time.

3. The Labour Court did not grant the application of the appellant on the ground that the enquiry had not been conducted in accordance with law and, therefore, permission to dismiss respondent No.l could not be granted. The deficiencies in the enquiry noted by the Labour Court were that the Enquiry Officer had cross‑examined the respondent No. l in certain respects and that he had disallowed a number of questions which the respondent No.l wanted to put to the witnesses in respect of the mala fide of the enquiry. The Labour Court also considered the non‑supply of the original complaint to the respondent No.l as fatal to the enquiry proceedings. He also took the view that the scope of enquiry under section 47 was as wide as the one under section 25‑A of the Industrial Relations Ordinance, 1969.

4. The appellant came ‑to the High Court and challenged that the whole basis of the order of the Labour Court was misconceived because the Labour Court under section 47 of the Industrial Relations Ordinance could not proceed in the same manner as he could proceed in an enquiry under section 25‑A of Industrial Relations Ordinance. Further submission was that there was no basis for the prejudice that had been found by the Labour Court against the Enquiry Officer and that in any case the non‑supply of the original complaint to the respondent No.l could not have been regarded as fatal to the enquiry.

5. The Hon'ble Judge in the High Court agreed with the appellant that the scope of enquiry under section 47 was not as wide as it was for the purpose of section 25‑A of Industrial Relations Ordinance, 1969. It also agreed with the appellant that the non‑supply of the original complaint in respect of which charge‑sheet had been issued was not fatal and, therefore, the enquiry should not be vitiated on that ground alone.

6. However, the Hon'ble Judge in the High Court found that the basis of findings of the Labour Court that the Enquiry Officer of the appellant company had acted in a manner which was not justified in law in holding the enquiry was correct. The petition was, therefore, dismissed but while dismissing the petition the Hon'ble Judge went further and held as under: ‑

In fact, the enquiry appears to have been initiated to stifle Trade Union activities in the Company and to put impediments in the securing of the demands made by the Union. The actions of the Company thus, prima facie appears to amount to victimization and unfair labour practice.

7. Mr. Khalid M. Ishaque learned counsel for the appellant has challenged the order in the High Court made on 4‑10‑1978 and has submitted that once the learned Judge had come to the conclusion that the scope of enquiry before the Labour Court was not as wide as the one under section 25‑A of Industrial Relations Ordinance, therefore, thereafter the matter should have been remanded to the Labour Court to re‑hear the application under section 47 of the Industrial Relations Ordinance within the limited scope of the said section. He further submitted that there was no justification at all for the observation of the Hon'ble Judge quoted in the preceding para. His submission is that the maximum that could be done was to dismiss the writ petition and thus, allow the appellant to pursue the remedy of holding another enquiry by some other officer who could hold the same without showing any prejudice to the respondent No.l. He argued that the final observation of the Hon'ble Judge did not leave an opportunity to the appellant to hold a fresh enquiry into the matter.

8. We have seen the order of the Labour Court as well as some portions of the enquiry conducted by the Enquiry Officer against the respondent No.l and we have perused the judgment of the Hon'ble Judge in the writ petition. We find that there was some justification for the Labour Court to come to the conclusion that the enquiry conducted against respondent No.l had not been proceeded in a fair manner and, therefore, there was no justification to allow application of the appellant under section 47 of Industrial Relations Ordinance to dismiss the respondent No.l. In this respect it is relevant to point out that certain questions which the respondent No.l wanted to put to certain witnesses in respect of the mala fides of the appellant against the President and other members of the C.B.A. were not allowed to be put by the Enquiry Officer on the basis that they were not relevant for the purpose of enquiry that the respondent No.l had not done his work in time. The Labour Court considered the disallowing of those questions on large scale as indicating an unfair mind of the Enquiry Officer. The Hon'ble Judge had agreed with that position and we also do not find any justification to disagree with that view. But the result of this was that the question of mala fide of the appellant company was not really allowed to be agitated in the matter by the Enquiry Officers and, therefore, the same was not gone into by the Labour Court. How the learned Single Judge has come to that view is rather difficult to understand. Merely filing of a number of applications for permission to dismiss a number of employees who were members of the Union cannot be regarded as a fact establishing the mala fides of the appellant. The question of mala fides had to be gone into and positively had to be established but that has not been done.

9. We again emphasize that the Labour Court had not held that there was a definite mala fide on the part of the appellant in taking the action against the respondent No.1 and it merely held that the enquiry was not properly conducted. It would have been appropriate if the view of the Labour Court had been upheld by the Single Judge and, thereafter petition dismissed. There was no necessity of the observation that the appellant was motivated by mala fides in moving the application under section 47 against the respondent No.l as mala fides were not before Labour Court.

10. Mr. Junaid Farooqui learned counsel for the respondent No 1 had submitted that the enquiry was not conducted in a fair manner. However, he was not able to support the observations of the Hon'ble Judge to the extent of the mala fides of the appellant. He simply submitted that because there had been many applications, therefore, mala fides could be presumed. However, we do not find a justification for presuming mala fide. Mr. Khalid M. Ishaque made a statement at the Bar that the other persons in respect of whom the applications seeking permission had been made by the appellant had been removed and their cases have gone upto the Supreme Court but the Supreme Court has not found any flaw in the dismissal and, therefore, the observation made by the Single Judge that there was prima facie mala fide was completely wrong. Mr. Junaid Farooqui is not in a position to challenge the statement of Mr. Khalid Ishaque as he says that he has no knowledge in respect of those matters.

11. In view of the above discussion we are of the view that there is no force in this appeal on merits and the same has to be dismissed but we are clearly of the view that the observations of the Single Judge in respect of the mala fides of the appellant were not borne out from the record and, therefore, they were not justified. The result would be that if the appellant decides to hold another enquiry into the matter of the charges which had been levelled against the respondent No.l, then the same can be inquired into by some other officers and of course it would then be open to the respondent No. 1 to raise all sorts of defences that are available to him.

M. Y. H. /4999/K Appeal dismissed

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