Messrs CRESCENT PAK. INDUSTRIES LTD. vs SINDH LABOUR APPELLATE

1. ' SAIYED SAEED ASHHAD, J.---The petitioner had filed this Constitutional petition to challenge the order of the Sindh Labour Appellate Tribunal, dated 14-4-1992 whereby respondent No,2 was ordered to be reinstated in the service of the petitioner with full back benefits.

2. ' The brief facts leading to the filing of this Constitutional petition are that respondent No,2 was a permanent worker in the petitioner's establishment. On an earlier occasion he was dismissed from service but such dismissal was declared illegal and he was reinstated with 'full back benefits.

3. Respondent No,2 during the course of his employment used to be an active member of C.B.A. Union as a result of which petitioner's establishment was not happy with him. He was called and threatened with termination of service if he continued to participate in the Union activities and on his refusal comply with the illegal demand he was falsely charge-sheeted on false allegations.

4. Domestic inquiry was conducted wherein he was held to be guilty of misconduct and was dismissed from service on 18-6-1998. Grievance notice was served by him on the petitioner establishment but of no avail. He, therefore, filed a case under section 25-A of the Industrial Relations Ordinance before the Sindh Labour Court No,3. Karachi. His application under section 25- A of the I.R.O., was dismissed. Not being satisfied with the order of the Labour Court, respondent No,2 filed an appeal before the Sindh Labour Appellate Tribunal, who by its aforesaid, impugned order set aside the order of the Labour Court and ordered reinstatement of respondent No,2 in service with full benefits. The petitioner being aggrieved with the order of the Sindh Labour Appellate Tribunal challenged the same by way of this Constitutional petition.

5. ' We have heard the arguments of Mr. Abdus Samad, learned Advocate for the petitioner. None appeared on behalf of the respondents.

6. ' Mr. Abdus Samad, vehemently attacked on the order of Sindh Labour Appellate Court and submitted that the same was in complete disregard of the evidence on record as well as the established principle relating to the reinstatement of the worker dismissed on account of a domestic inquiry under Standing Order 15 of the Industrial and Commercial Employment (Standing Orders) Ordinance. In, this connection he submitted that it is a well-established principle of law that the Labour Court or Labour Appellate Tribunal would not substitute the finding of the Inquiry Officer with its own finding. It was submitted that the Labour Court as well as Labour Appellate Tribunal are required to confine themselves to the examination of the record as to the legality and validity of the inquiry proceedings and to verify that a proper and sufficient opportunity was provided to the aggrieved worker to participate in the inquiry proceedings by cross-examining the witnesses produced by the management and to be allowed to put forward his defence and examine defence witnesses. Mr. Abdus Samad, further submitted that apart from the fact that the Labour Appellate Tribunal substituted the finding of the Inquiry Officer with its own finding, the finding of the Labour Appellate Tribunal in holding respondent No,2 as not guilty and ordering his reinstatement with full back benefits was also contrary and not consistent with the material on record, according to which the charge levelled against the respondent stood proved beyond any shadow of doubt.

7. We have considered the arguments advanced by Mr. Abdus Samad and have also gone through the material on record. We are entirely in agreement with him that in a case initiated on an application under section 25-A of the Industrial Relations Ordinance, by an aggrieved worker whose service is terminated on the basis of the findings of the Inquiry Officer on the ground of misconduct, the Labour Court and the Labour Appellate Tribunal are required to examine the inquiry proceedings with a view to satisfy themselves as to the legality and validity of the inquiry proceedings and the findings of the Inquiry Officer. For this purpose they can go through the record of the inquiry proceedings with a view to see as to whether proper opportunity was provided to the aggrieved worker to defend himself for absolving himself of the charge levelled against him and further whether the Inquiry Officer had conducted the inquiry proceedings in a proper and fair manner. The finding of Inquiry Officer could not be ignored or set aside merely on the ground that a view contrary to the one taken by the Inquiry Officer was possible in view of the evidence and material brought before the Inquiry Officer. The finding of the Inquiry Officer could be substituted by the Labour Court or the Labour Appellate Tribunal only after the same was arrived at in misreading or misconstruing evidence on record or in disregard thereof, contrary to same or that it was perverse. This is not the position in . This case.

8. ' From perusal of the order of the IIIrd Labour Court it transpires that in the domestic inquiry the eye-witness account was supplied by Zafar Mehmood who had seen respondent No,1 writing slogan on the wall against the management. P.W. Zafar Mehmood had also informed Chowkidar Suleman, Canteen Contractor and also Time Keeper Ghulam Rasool who came at the spot and asked respondent No,2 to remove the writing on which he is said to have replied that he had written the same and was responsible for his consequence. In the circumstances, the observation of the Labour Appellate Tribunal that the management had not succeeded in establishing the charge of misconduct by any independent and reliable evidence and had relied on hearsay evidence cannot be accepted as it is contrary to the facts inasmuch as witness Ghulam Rasool, Muhammad Suleman and Sultan were informed of the writing of the slogan on the wall by P.W.

9. Zafar Mehmood, who himself had seen respondent No,2 writing the slogan on the wall. The observation of the Sindh Labour Appellate Tribunal that even eye-witness Zafar Mehmood had not stated as to what the actual slogans were written by respondent No,2, is devoid of any force as this contention/issue was never raised or agitated by respondent No,2 and it was not at any stage contested that the alleged slogans were not against the management but that his defence was that he had never written any such slogans. In the domestic inquiry the aforesaid P.Ws. Ghulam Rasool, Muhammad Suleman and Canteen Contractor were examined and all of them stated that they were informed by P.W. Zafar Mehmood that respondent No,2 had written the slogans on the wall that they had asked respondent No,2 not to write the slogans on which he replied that he had written the slogans under his name and was responsible for the consequence of such writing.

10. Upon the aforesaid discussions, we are satisfied beyond any doubt that the order of the Sindh Labour Appellate Tribunal in setting aside the order of the Labour Court No,3 and allowing the grievance application under section 25-A, I.R.O., of respondent No,2 by substituting the finding of the Inquiry Officer with its own finding was not in accordance with the provisions of law and cannot be substained. Accordingly, we allow this petition. The order of the Sindh Labour Appellate Tribunal is set aside and order of the 3rd Labour Court is restored.