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(a) Constitution of

Pakistan

‑‑‑Art.199‑‑‑Constitutional jurisdiction‑‑Objection to territorial juris diction not raised before lower forum‑‑Effect‑‑No party, held, would be entitled to raise question of territorial jurisdiction for the first time, in constitutional jurisdiction if such objection was not raised before the Tribunal which had adjudicated upon and also even before appellate authority.

Sind Alkalis Limited v. Presiding Officer, I V Sind Labour Court and 2 others 1983 P L C 119 and Sind Alkalis Limited v. IV Sind Labour Court, Karachi and others 1983 P L C 1220 ref.

(b) Constitution of

Pakistan

‑‑‑Art.199‑‑Constitutional jurisdiction, exercise of‑‑Constitutional juris diction being discretionary in nature, held, could always be pressed into service in aid of justice and not to the cause of justice.

(c) Constitution of

Pakistan

‑‑‑Art.199‑‑Industrial Relations Ordinance (XXIII of 1969), S.47(2)‑ Constitutional jurisdiction‑‑Objection to territorial jurisdiction of Labour Court‑‑ Estoppel‑‑Where petitioner establishment had itself filed application before Labour Court for seeking permission to dismiss employee from service on basis of finding of Enquiry Officer, such petitioner, held, would be estopped to object to jurisdiction of Labour Court subsequently.

(d) Industrial Relations Ordinance (XXIII of 1969)‑‑

‑‑‑S.25‑A‑‑Constitution of Pakistan (1973), Art 199‑‑Dismissal from service on basis of inquiry‑‑Charge of partiality and misconduct against Inquiry Officer in grievance petition‑‑Inquiry Officer not produced by appellant establishment in support of his Inquiry Report and to rebut allegations of partiality and misconduct‑‑By non‑production of Inquiry Officer in evidence in support of his inquiry and in rebuttal of allegations against him, inference drawn by Labour Court and confirmed by Labour Appellate Tribunal, held, was in consonance with law‑‑High Court declined to interfere ‑with just and lawful order, of lower forum in exercise of constitutional jurisdiction.

Abdullah and 3 others v. Abdul Karim and others P L D 1968 SC 140 and Malik Din and another v. Muhammad Aslam P L D 1969 S C 136 ref.

(e) Industrial Relations Ordinance (XXIII of 1969)‑‑

‑‑‑Ss.25‑A(4) & (5)‑‑Grievance petition against dismissal from service‑ Scope of inquiry‑‑Labour Court in adjudicating and determining a grievance, held, could go into all the facts of the case and pass just and proper orders in circumstances.

Sui Gas Transmission Co. Ltd. v. The Islamic Republic of Pakistan and 2 others P L D 1959 S C 66; Pakistan Petroleum Workers' Federation, Karachi v. Burmah Shell Oil Storage and Distributing Company of Pakistan Ltd., Karachi and others P L D 1961 S C 479; Messrs. National & Grindlays Bank Ltd. Karachi v. Homi F. Behrana and others P L D 1979 Kar. 692; Grindlays Bank Limited v. Rai Abdul Razak Khan and others 1981 S C M R 441; Pakistan Tobacco Co. Ltd. v. Channan Khan and others 1980 P L C 981; Imdad Ali v. Sind Labour Appellate Tribunal and another P L D 1975 Kar. 288; Ahmad Hadi Shah and others v. Rashid Textile Mills Ltd. Karachi and another P L D 1976 Kar. 799; Crescent Jute Products Ltd., Jaranwala v. Muhammad Yaqub, etc. PLD 1978 S C 207 and Mst. Khairunissa and others v. Malik Muhammad Ishaq and 2 others P L D 1972 S C 25 ref.

Nizam Ahmed for Petitioner.

Ali Amjad for Respondent No.1.

Date of hearing: 8th March, 1984.

This petition is directed against the orders, dated 15‑5‑1980 and dated 5‑8‑1980 passed by respondents Nos.2 and 3 respectively.

The facts leading to the filing of the above petition are that the respondent No.1 was working at the relevant time as operator in the printing section of the petitioner Company. It has been averred by the petitioner that on 26‑1‑1976 the respondent No.1 alongwith some‑other workers formed an unlawful assembly and incited the other workers to raise slogans against the management. It has also been averred that the respondent No.1 was charge‑sheeted on 28‑1‑1976, to which a reply was submitted by respondent No.1 on 30‑1‑1976. It has been further averred that after the receipt of the reply it was decided to hold a formal enquiry against respondent No. 1. Consequently, one Shaikh Salim was appointed as Enquiry Officer who fixed the first date of hearing on 3‑2‑1976. It is the case of the petitioner that respondent No.1 was granted adjournments several times at his request. He also cross‑examined the complainant. After that he boycotted proceeding in March 1976. It is further the case of the petitioner that the Enquiry Officer submitted his report on 3‑3‑1976 recommending respondent No.1's dismissal. Thereupon, respondent No.l was issued a second show‑cause notice, dated 4‑3‑1976. It also seems that on 14‑4‑1976 the petitioner made an application under section 47(2) of the I.R.O. in the Second Sind Labour Court, Karachi for permission to take action against respondent No.l on the basis of the above enquiry report as an industrial dispute. was then pending between the management and the union and respondent No.1 was said to be the Propaganda Secretary. It has been averred that the above industrial dispute was dismissed by the Labour Court on 28‑4‑1976. Consequently, the above application under section 47(2) of the I.R.O. was withdrawn by the petitioner on 14‑12‑1976. After that the petitioner dismissed respondent No‑1 from service on 16‑12‑1976 Respondent No.1 being aggrieved by the above dismissal order served a grievance notice, dated 27‑12‑1976 under section 25‑A of the I.R.O. which was replied to by the petitioner on 29‑12‑1976. Thereafter, respondent No.1 filed an application under section 25‑A of the I.R.O. on 25‑1‑1977 in the Second Labour Court, Karacni. The above application was resisted by the petitioner inasmuch as a written statement was filed. The respondent No.l in support of the allegations made in the application inter alia against the Enquiry Officer filed his personal affidavit in evidence and also presented himself for cross‑examination by the petitioner. The petitioner cross‑examined respondent No.1 but did not adduce any‑ evidence in support of the written statement or in rebuttal to the evidence brought on record by respondent No.1. The learned Labour Court by its aforesaid order, dated 15‑5‑1980 allowed respondent No. 1's above application and ordered re‑instatement with full back benefits. The petitioner being aggrieved by the above order filed Appeal No. KAR‑372 of 1980 which was dismissed by respondent No.3 by its order, dated 5‑8‑1980 with the modification that the Labour Court should hold enquiry as to the back benefits. The petitioner being aggrieved by the above two orders has filed the present petition.

2. In support of the above petition Mr. Nizam Ahmed learned counsel for the petitioner has urged as follows:‑

(i) That the learned Second labour Court had no territorial juris diction in respect of the subject‑matter.

(ii) That since the enquiry proceedings were exhibited and proved through respondent No.1, there was no legal requirement to examine the Enquiry Officer and, therefore, the adverse inference drawn by the two Courts against the petitioner is not warranted by law.

(iii) That under section 25‑A of the I.R.O. the jurisdiction of a Labour Court is limited and it cannot constitute itself as a Court of appeal.

On the other hand Mr. Ali Amjad learned counsel for the respondents No.1 has urged as follows: ‑

(i) That since no objection as to the territorial jurisdiction was raised either before the Labour Court or before the Sind Labour Appellate Tribunal, the petitioner cannot be allowed to raise this objection in a writ petition in order to non‑suit respondent No. 1.

(ii) That since there were allegations against the Enquiry Office and as the above allegations were proved by respondent No. 1 through evidence, it was incumbent upon the petitioner to have produced the Enquiry Officer in order to rebut the evidence brought on record by respondent No.1.

(iii) That what has been admitted by respondent No.1 in the cross -examination is not the entire enquiry proceedings but the page; which contained respondent No.1's signature.

(iv) That the scope of the jurisdiction of a Labour Court is clearly defined in section 25‑A (5) of the I.R.O. as interpreted by the superiors Courts.

3. Mr. Nizam Ahmed in support of his first contention as to the territorial jurisdiction has referred to a notification, dated 29‑1‑1976 at page 230 of the writ petition in order to demonstrate that Labour Court No.11 had no jurisdiction. On the other hand Mr. Ali Amjad has referred to the petitioner's above application under section 47(2) of the I.R.O. filed by them in the Court of Second Labour Court for permission to take action against respondent No. 1 in view of the pendency of an industrial dispute between the union and the management. It is, therefore, evident that both the parties proceeded on the assumption that Labour Court No. II had the jurisdiction in the matter. Be that as ‑it may, the question which requires consideration is, as to whether this Court in a writ petition first time can allow the petitioner to raise the question of jurisdiction of a Labour Court. Mr. Ali Amjad has referred to the case of Sind Alkalis Limited v. Presiding Officer, IV Sind Labour Court and 2 others reported in 1983 P L C 119, (ii) the case of Sind Alkalis Limited v. IV Sind Labour Court, Karachi and others reported in 1983 P L C 1220 and (iii) the unreported judgment of the Hon'ble Supreme Court, dated 22‑1‑1984 passed in Civil Appeal No. K‑143 of 1982 cancelling the special leave.

In the first case a Single Judge of this Court while deciding a constitutional petition against the order of a Labour Court held that objection as to the territorial jurisdiction of Labour Court having been not raised by the opposite‑party until after entire evidence of worker recorded and statement of witnesses of the opposite‑party recorded, was rightly rejected by the Labour Court. The above learned Single Judge's judgment was upheld by a Division Bench of this Court while dismissing the appeal in limine filed by the petitioner in that case. The above dismissal order is reported in the above 1983 P L C 1220. The above judgment of the D. B. was maintained by the Supreme Court in the above judgment, dated 22‑1‑1984 passed in Civil Appeal No.K‑143 of 1982. Sind Alkalis Limited v. Presiding Officer, IV Sind Labour Court, Karachi and 2 others. It may be observed that respondent No.1's case stands on much higher footing inasmuch as in the present case admittedly the objection to territorial jurisdiction was not raised by the petitioner either before the Labour Court or before the learned Sind Labour Appellate Tribunal and first time this question has been raised in this petition. In the above reported case the objection to territorial jurisdiction was raised before the Labour Court but after recording some of the evidence.

We are inclined to hold that a party is not entitled to raise the question of territorial jurisdiction first time in a writ petition if this objection was not raised before the tribunal which has adjudicated upon or also even not before the appellate authority. It may further be observed that writ jurisdiction is a discretionary jurisdiction and it is always pressed into service in aid of justice and not to defeat the cause of justice. The petitioner having failed to raise the question of territorial jurisdiction before Labour Court II and even before the learned Sind Labour Appellate Tribunal cannot be allowed to raise the same first time in this petition. Furthermore, even otherwise as a matter of fact there is estoppel against the petitioner as admittedly the petitioner had themselves filed an application under section 47(2) of the I.R.O. for seeking permission to dismiss respondent No.1 from the service on the basis of the finding of the enquiry officer in the very Labour Court.

4. Reverting to the second contention of Mr. Nizam Ahmed that since the enquiry proceedings were proved through the respondent No.l in the cross‑examination and since the same were exhibited, both the Courts below had erred in drawing adverse inference, it may be observed that he has referred to the case of Abdullah and 3 others v. Abdul Karim and others reported in P L D 1968 S C 140, and the case of Malik Din and another v. Muhammad Aslam reported in P L D 1969 S C 136. In the first case it was held that Civil Procedure Code provides for the admission of documents and that it is well‑settled that if objection to the formal proof of a document has not been taken at the earliest point of time it cannot be taken subsequently and certainly not in appeal can be allowed to be raised. The same view was reiterated bye Supreme Court in the above reported second case. In our view, the above cases have no application to the present case. Respondent No.1 has made serious allegations personally against the enquiry officer which are contained inter alia in paras. 5,6,7 and 8 of the application. The above allegations were denied by the petitioner through a written statement. Respondent No.1 filed affidavit in support of the averments contained in the application and offered himself for cross‑examination. He was cross‑examined by the petitioner. The petitioner chose not to put any witness in rebuttal. In our view, it was incumbent upon the petitioner to have produced the Enquiry Officer in order to rebut the allegations made by the respondent No. 1 duly supported through evidence against him. It is true that in the cross‑examination respondent No.1 was shown the enquiry proceedings and he has stated that pages 2 to 13 and page 16 of the inquiry proceedings contained his signature. This admission does not constitute the admission of the fact that the inquiry was conducted impartially or that the allegations which were made against the Enquiry Officer by respondent No.l stand nullified or not proved. We are, therefore, inclined to hold that the inference drawn by the Sind Labour Court II as well as by the Sind Labour Appellate Tribunal against the petitioner for not bringing on record any evidence in rebuttal are in consonance with law.

5. As regards the last submission, it may be advantageous to reproduce hereinbelow section 25‑A (5) which reads as follows:‑

"(5) In adjudicating and determining a grievance under sub section (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."

It may be noticed that under the above quoted subsection, it has been expressly provided that a Labour Court in adjudicating anti determining a grievance under subsection (4), 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. Mr. Nizam Ahmed in support of his contention has referred to the (i) case of Sui Gas Transmission Co. Ltd. v. The Islamic Republic of Pakistan and 2 others reported in PLD 1959 ‑ S C page 66, (ii) the case of Pakistan Petroleum Workers' Federation, Karachi v. Burmah Shell Oil Storage and Distributing Company of Pakistan Ltd., Karachi and others reported in P L D 1961 S C 479, (iii) the case of Muhammad Shamim v. Messrs Pakistan Tobacco Co. Ltd. Karachi and another reported in 1975 S C M R 46, (iv) the case of Messrs National & Grindlays Bank Ltd. Karachi v. Homi F. Behrana and others reported in P L D 1979 Kar. 692, (v) the case of Grindlays Bank Limited v. Rat Abdul Razak Khan and others reported in 1981 SCMR 441 and (vi) the case of Pakistan Tobacco Co. Limited v. Channan Khan and others reported in 1980 P L C 981.,

On the other hand Mr. Ali Amjad has referred to (1) the case of Imdad Ali v. Sind Labour Appellate Tribunal and another reported in P L D 1975 Kar. 288, (ii) the case of Ahmad Hadi Shah and others v. Rashid Textile Mills Ltd. Karachi and another reported in P L D 1976 Kar. 799 and (iii) the case of Crescent Jute Products Ltd. Jaranwala v. Muhammad Yaqub, etc. reported in P L D 1978 S C 207.

6. (i) In the first case, relied upon by Mr. Nizam Ahmed the Hon'ble Supreme Court while construing the provisions of Industrial Disputes Act, 1947 held that the tribunal while acting under the above Act is not entitled to go into the merits of the allegations and that its jurisdiction is only to see if there was a fair enquiry and the employee was given an opportunity to explain the charge.

(ii) In the second case the Supreme Court again while dealing with a case under the Industrial Disputes Act, 1947 observed that the tribunal is not to sit in appeal over proceedings in enquiry conducted by the domestic tribunal.

(iii) Referring to the third case, it may be observed that a Division Bench of the Supreme Court while declining leave to appeal with reference to the Standing Order 15(4) of the West Pakistan Industrial and, Commercial Employment (Standing Orders) Ordinance, 1968 held that the Labour Court is only concerned with the question, whether the action taken against the petitioner was in accordance with law and the question whether the petitioner committed the theft was a question of fact and could only be enquired into by the Inquiry Officer.

(iv) As regards the fourth case, it will suffice to observe that a learned Single Judge of this Court while construing section 25‑A of the I.R.O. held that decision of employer dispensing with the services of workman after conducting domestic enquiry and after complying with the legal formalities, should not be lightly interfered with by the Court.

(v) In the fifth case a Division Bench of the Hon'ble Supreme Court granted leave to appeal for the purpose of considering, whether the Labour Court can sit in appeal against the punishment of demoting a workman while considering an application under section 4(2) of the I.R.O.

(vi) Reverting to the last case, it will suffice to observe that a Division Bench of the Hon'ble Supreme Court allowed the appeal filed by the employer and held that the expression "such orders as may be just and proper in the circumstances of the case" do not entitle or empower the Labour Court to substitute the punishment awarded by the employer.

7. (i) It may now be pertinent to take up the case relied upon by Mr. Ali Amjad. The first case is of a Division Bench of erstwhile High Court of Sind and Baluchistan, in which while construing section 25‑A (5) of the I.R.O. it was held that the use of the words "shall go into all the facts of the case" in subsection (5) are not without purpose and that they intended to provide another forum for determining grievance afresh and that the refusal by the Labour Court to go into the merits of the case was jurisdictional defect.

(ii) In the second case a learned Single Judge of the erstwhile High Court of Sind and Baluchistan while relying upon the above Division Bench case held that the intention of section 25‑A (5) is to provide a double check and that the Labour Court has full and complete power to enter even into question of fact and to arrive at its conclusion regardless of any illegality of procedure being pointed out in a case

(iii) As regards the last case, it may be adventageous to produce herein below para. 4 of the above judgment, in which the above provision of section 25‑A (5) of the I.R.O. has been construed by a Division Bench of the Hon'ble Supreme Court. This is the latest case on the point as no other judgment of the Supreme Court was cited on the interpretation of the provision in question. Para. 4 of the Supreme Court judgment reads as follows:‑

"4. Learned counsel for the petitioner/ employer then argued that it was not necessary on the part of the employer to satisfy the Labour Court that actually there existed a cause for dismissing the employee. His precise submission was that this was a matter which was to be left to the satisfaction of the employer and all that he had to show was that he had dismissed the employee after taking proper proceedings and that he was not required to justify his dismissal on the merits of the case before the Labour Tribunal. It was urged that in this way even if the employer produced no evidence to prove any actual default on the part of the employee, the Labour Court could not declare the dismissal order to be invalid. The contention has no merit. In subsection (5) of section 25‑A of the Industrial Relations Ordinance (XXIII of 1969) it is laid down that 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'. From the language of the statute hereinbefore 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 the facts of the case clearly signify that the Junior Labour Court has full and complete powers to enter even 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 employer and the other in the form of a judicial determination by the Junior Labour Court itself. In other words the intention of subsection (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 the 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. 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 it (for example) 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 reason is also not far to seek, because, as pointed out earlier, it was intended to provide a forum to check against arbitrary, capricious, and camouflaged dismissals."

8. The judgments relied upon by Mr. Nizam Ahmed are mainly on the interpretation of the Industrial Disputes Act, 1947 whereas the above Division Bench judgment of the erstwhile High Court of Sind and Baluchistan and the above Supreme Court case reported in P L D 1978 S C 207; are directly on the point in issue. The prevalent view seems to be that Labour Court's jurisdiction is quite wide in its scope and it has jurisdiction to go behind a dismissal order and to see for itself as to whether on the facts and in the circumstances of a particular case it was justified or not, both on facts as well as on law. In our view, in the present case the question as to the scope of jurisdiction of a Labour Court is not very much material as admittedly the respondent No.1's allegations of mala fides about the victimisation and the misconduct on the part of the Enquiry Officer referred to in the above paras. 5 to 8 of the application before the Labour Court remained unrebutted. In this regard Mr. Ali Amjad has referred to the case of Mst. Khairunissa and others v. Malik Muhammad Ishaq and 2 others reported in P L D 1972 S C 25, in which it was held by the Supreme Court that a written statement cannot be exhibited in the case without the person who filed the same being examined in the Court as the statements made in the written statement are not on oath. In the present case though the petitioners in their written statement had denied the various allegations but since they had not put in any witness, the above denial was of no consequence.

9. We are, therefore, of the view, that the final order of the learned Sind Labour Appellate Tribunal is in accordance with law and so also the order of the Labour Court with the modification on the question of back benefits. We, therefore, see no reason to interfere with the two impugned orders. The petition is dismissed with no order' as to costs.

A.A. S‑121 K.

Petition dismissed.

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