SAMPAK PAPER AND BOARD MILLS Versus MAQSOOD AHMAD
The relevant facts for the decision of this writ petition are that respondent No. 1 was employed as Apprentice in Heater House Department of the petitioner. It was alleged that on 24‑7‑1985 he forced his entry in the mill premises switched off the plant and created a law and order situation. he was served with a show‑cause notice dated 18‑8‑1985. The respondent No. 1 submitted reply thereto on 20‑8‑1985 and Abdul Ghafoor was appointed 'as Enquiry Officer who submitted his report on 7‑10‑1985 and found that the allegations against the respondent No.1 have been proved. The management thereafter served the worker with second show‑cause notice dated 19‑10‑19$5 which was duly replied by him. However, the management after consideration of his explanation dismissed him from service vide order dated 3‑11‑1985. The worker allegedly served the management with a grievance notice on 14‑11‑1985 and thereafter proceeded to file the grievance petition before the Labour Court, who after recording evidence and hearing arguments dismissed the application vide order dated 8‑6‑1989, which was assailed by the respondent No.1 through an appeal before the respondent No.2 who accepted the appeal vide order dated 6‑11‑1989. Hence present writ petition by the employer. The writ petition was admitted to hearing and notice was issued to the respondents. But only respondent No.1 has appeared and contested the petition while the other respondent was proceeded ex parte.
2. The learned counsel for the petitioner argued that the grievance petition was not preceded by grievance notice as required under section 2.S,A of IRO, therefore, the same was not competent and rightly dismissed by the Labour Court. It is added that neither receipt was produced nor record of the Post Office was summoned to prove the alleged delivery of notice to the petitioner. It is added that it was for the worker to prove that he had served the management with a grievance notice and, therefore, onus was on him. In this behalf, the learned counsel has referred to Messrs Excise Batteries (Pakistan) Ltd., Karachi v. Asfandyar (1975 PLC 569), Messrs Prince Glass Works Ltd, v. Syed Jaffar and 9 others (1980 PLC 373), Muhammad Yaqoob v. Roti Corporation of Pakistan Ltd. and another (1980 PLC.' 746) and Tariq Khattajk v. Pakistan Tobacco Ltd. (1980 PLC 1027).
3. On the other hand, the learned counsel for the worker argued that service of the notice was fully proved by production of AD receipt Exh. P.3. It is added that under section 27 of the General Clauses Act, 1897 presumption is attached to the receipt and it was the petitioner to disprove the same.
4. I have considered the arguments on both sides. Before proceeding any further it is worthwhile to refer to section 27 of the General Clauses Act, 18897 which reads as under:‑
"27. Meaning of service by post. Where any (Central Act) or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression `serve''.' or either of the expressions `give' or `send' or any other expression is used, then unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre‑paying and posting by registered post, a letter containing the document, and unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post."
It is clear from the later part of the provision of law reproduced above that the presumption is available if the notice is properly addressed pre‑paid and posting by registered is proved. In this case at least one most material factor i.e. posting by registered post is lacking.
On the other hand, according to section 25‑A it is the mandatory requirement of law that a grievance notice should be served before initiating proceedings under section 25‑A of the IRO, therefore, the basic factors raising presumption are lacking in this case. The Labour Court rightly held that service of the grievance notice was not proved. The respondent in order to discharge the onus should have sent for the record of the Post Office or at least of the employer to prove the service of notice.
5. The learned counsel for the petitioner argued that respondent No. 2 on the one hand held that the enquiry was fair and proper and on the other hand proceeded to grant benefit of doubt to the respondent No. 1. It is maintained that the Punjab Labour Appellate Tribunal had no jurisdiction to reappraise the evidence and substitute its own opinion for that of the Enquiry Officer. It is added that the evidence was utterly misunderstood and mis spelled by respondent No.2 and this thing resulted in a wrong decision. It is added that the principles of Civil and Criminal Codes do not apply to the proceedings before the Enquiry Officer. The learned counsel in this behalf has referred to Pakistan Petroleum Workers Federation, Karachi v. Burmah‑Shell Oil Storage and Distributing Company of Pakistan. Ltd., Karachi. (PLD 1961 SC 479), Grindlays Bank Ltd. v. Rai Abdur Razaq Khan and 2 others (1981 SCMR 441), Muhammad Shamim v. Messrs Pakistan Tobacco Co. Ltd, Karachi and another (1975 SCMR 46), United Distributors Ltd. v. Zahid Hussain Khan and 2 others (PLD 1976 Karachi 376), Muhammad Ramzan v. Presiding Officer, Sindh Labour Court No. IV and 3 others (PLD 1976 Karachi 1100), Abdul Ghaffar v. Punjab Labour Court No. 2. Lahore and another (1980 PLC 140), Muhammad Baig v. Mirpurkhas Sugar Mill Ltd. (1980 PLC 178) and Punjab Road Transport Board, Lahore through its Secretary v. Fazal Elahi and another (PLD 1976 Lahore 1414).
6. On the other hand, the learned counsel for the respondent No: 1 argued that the Labour Court while determining the grievance can go into all the facts of the case and pass orders which are just and proper in the circumstances of the case while the Labour Appellate Tribunal Exercises all the powers conferred on the Labour Court under the Ordinance save as otherwise provided. It can confirm, set aside, vary or modify an award or decision. It is submitted that before promulgation of IRO, 1969 the position was slightly different but now under the IRO both Labour Court and Appellate Tribunal have powers to do complete justice. The learned counsel in this behalf has referred to Crescent Jute Products Ltd., Jaranwala v. Muhammad Yaqub etc. (PLD 1978 SC 207), Allied Bank of Pakistan Ltd. v. Raja M. Zaheer‑ul‑Hassan and 3 others (1990 PLC 238) and Habib Bank Limited v. Mussadiq Hussain and 2 others (1993 SCMR 126).
7. I have given my anxious consideration to this aspect of the argument and gone through the relevant provisions of IRO and precedent cases. It is worthwhile to refer to section 25‑A(5) of the IRO, which reads as under:‑‑
"25‑A. Redress of individual grievances:
(1) ..
(5) 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."
8. Now coming to the powers of the Labour Appellate Tribunal. It is worthwhile to refer here to subsection (1) of section 38 which reads as under:‑‑
"38. Labour Appellate Tribunal .‑‑‑(3) 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. The decision of the Tribunal shall be delivered as expeditiously as possible, within a period of 60 days following the filing of the appeal; provided that such decision shall not be rendered invalid by reason of any delay in its delivery."
It is clear from the above provisions that the Labour Appellate Tribunal enjoys the same powers which are vested in Labour Court suffice it is to refer here A to the case of Habib Bank Limited (supra). The relevant portion reads as under:‑
"4. After hearing the learned counsel for the parties we are of the view that the learned Appellate Tribunal fell in error in construing the judgment quoted before it i.e. Chan Pir Shah v. Congothene Chemical Industries Ltd. etc. (1981 PLC 984) inasmuch as this very judgment referred to Sardar Sher Muhammad v. Rao Bashir Ali Khan and another (PLD 1962 (W.P.) Lahore 172) wherein distinction was drawn between the appellate jurisdiction and Constitutional jurisdiction. In the case in hand, the statutory provisions quoted above make it quite clear that the Appellate Tribunal could vary or modify the order under appeal. It was not bound to either sustain it in totality or set it aside completely. As an appellate authority it was open to the learned appellate Tribunal either to sustain the order or to vary or modify it in accordance with the facts established, whatever it may have deemed fit. The contention of the learned counsel for the respondent that the latter had suffered enough for the charges proved against him is a matter for the Tribunal to address."
9. Now I refer to the cases relied by the learned counsel for the petitioner. The case of Pakistan Petroleum Workers Federation, Karachi (supra) is not relevant because it was under the Industrial Dispute Act, 1947 and there is no provision parallel to subsection (5) of section 25‑A and subsection (1) of section 38 of the IRO, 1969 while case of Grindlays Bank Ltd. (supra) is only a leave granting order. The case of United Distributors Ltd. (supra) if studied closely does not support the argument of the learned counsel for the petitioner because it was held that the finding can be set aside on plausible reason while in the case of Muhammad Ramzan (supra) it was held that the Labour Court can determine whether the action has been taken in accordance with the law. But for this purpose the Labour Court and Tribunal would be well‑within their jurisdiction too find out whether a case was made out e.g. in the present case one of the arguments, advanced on behalf of the respondent No. 1 is that no case of misconduct is made out from the evidence recorded by the Enquiry Officer. It was open for the Labour Court and Tribunal to see whether on the given facts a case of misconduct is made out or not? This would be strictly in line with the powers vested under the IRO and reproduced above. The case of Abdul Ghaffar (supra) does not advance the argument of the learned counsel for the petitioner while in case of the Punjab Road Transport Board, Lahore through its Secretary (supra) it was not ruled by this Court that it is absolutely forbidden for the Labour Court and Labour Appellate Tribunal to undertake the re‑appraisal of the evidence. The relevant para. reads as under:‑‑
"9. The factual part of a domestic inquiry by the employer is open to scrutiny by the Labour Courts only to the limited extent indicated and if they at all undertake such a re‑appraisal they should be well‑advised to inform themselves of the rules, instructions and the working methods of the Establishment in order to understand the full implications and the background in which such findings of fact have been recorded. To apply the abstract principles or standards of criminal prosecution or of a civil litigation to such proceedings in the absence of such knowledge would be doing violence to the whole infra‑structure of the Labour laws."
In this view of the matter, there is no merit in the argument of the learned counsel for the petitioner that the respondent.No.2 had no jurisdiction to substitute its own opinion for that of the Labour Court and Enquiry Officer.
10. The learned counsel for the petitioner in the end argued that the misconduct was fully proved and the order of the respondent No. 2 is without basis and justification. In this behalf, the learned counsel has referred to cases of Pakistan Petroleum Workers' Federation, Karachi Muhammad Shamim and Grindlays Bank Ltd. (supra) as well as Farman v. M/s. Hotel Excelsior, Karachi (1977 PLC 216).
11. On the other hand, the learned counsel for the respondent No.1 argued that at the best case against his client was that of forcible entry in the mill premises and that is not be covered by the mischief of misconduct, therefore, he could not be dismissed from service.
12. I have considered the arguments in the light of facts on record. The, question for determination is whether findings recorded by the respondent No.2 are justified by the material on record or not? It is clear from the record that the respondent No. l was not only proceeded for forcing his entry in the mill premises but also for damage to the property of the employer, disobedience, riotous and disorderly behaviour and act of subversive of discipline. Before proceeding any further it is relevant to refer to clause (h) of para. 15 of West Pakistan (Standing Orders) Ordinance, 1968. The same reads as under:‑‑
"15. Punishments.‑‑‑(1)
(2) A workman found guilty of misconduct shall be liable to any of the following punishments:‑
(3) The following acts and omissions shall be treated as misconduct:‑
(h) riotous or disorderly behaviour during working hours at the establishment or any act subversive of discipline:"
The Tribunal could reappraise the evidence as held in the cases of Allied Bank and Habib Bank (supra) but unfortunately it failed to appreciate the same and reversed the findings recorded by Labour Court without any justification. It is clear from the statement of P.W.4, Muhammad Iqbal, CPM that the respondent No. 1 behaved in a disorderly manner and shut down a part of the plant resulting in loss to the management. The Tribunal failed to note that the respondent No. 1 in the first instance notified that he does not want to cross -examine this witness as he has been his pupil for sometime and thereafter offered that if the said witness states on oath that he threatened to close the machines or shut the door in indecent manner or switched off the machines or harassed or bothered any employee then he will accept his statement. The witness thereafter made following statement:‑‑
This statement by itself was sufficient to prove the misconduct of the worker. This is not all. Shabbir Hussain, R.W. 1, who appeared before the Labour Court, clearly implicated the said respondent. He categorically denied the suggestion that petitioner did not close down the electric supply of the mill. It is interesting to note that this witness was suggested that so‑called witnesses of the management did not make any statements and the Enquiry Officer recorded their statements on his asking. The suggestion is false on the face of it because each page of the enquiry proceedings is signed by the respondent No. 1 and even he has recorded remarks on some pages in his own hand. This was not denied in the arguments before me. Even if the statement of the contesting respondent is closely studied then it amounts to confession of his guilt.
13. The upshot of the above discussion is that while accepting this petition the impugned order of respondent No. 2 dated 6‑11‑1989 is set aside. The result is that the order of the Labour Court is restored and the petition of the worker stands dismissed.
H.B.T./S‑695/L Petition accepted.