1. ' The Petitioner by invoking the jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, seeks declaration to the following effect:-- "(1) Declare that the respondents Nos.1 to 4 have not complied with the directions of the Hon'ble respondent No,5 dated 17-9-1997, and direct that they do so forthwith.
(2) Declare that the actions taken by Hon'ble Respondent No,5 on 24-10-2001 as well as on 30-10- 2001 were illegal, unlawful and without lawful authority, and against law, procedure and sound principles of justice.
(3) Set aside the impugned order.
(4) Direct respondents Nos . 1 to 4 to comply fully with orders/direction given on 17-9-1997, and upheld by all higher Courts.
(5) Grant costs of this petition and pass any other further orders or grant any further relief in favour of the petitioner."
2. The facts involved in the Petition are that the Petitioner was serving with the Establishment of respondents Nos.1 to 4 on permanent basis. On 23-5-1996 his services were illegally and unlawfully terminated. The petitioner filed his grievance Petition for re-instatement before the Labour Court with back-benefits. However, the Petition was dismissed by order dated 29-5-1997. The appeal preferred by the petitioner was allowed with direction to re-instate him within one month from the date of the order. The respondent establishment filed C.P. No, D-1857 of 1997 in this Court challenging the decision of Respondent No,5, which was dismissed by order dated 5-1-1998. The respondents appealed before the Supreme Court, impugning the order dated 5-1-1998 which was also dismissed by order dated 5-12-2002.
3. ' The respondents failed to re-instate the petitioner, instead the petitioner received a letter dated 6- 2-2001 terminating his services w.e.f, 3-2-2001-The Petitioner has already filed a Petition for reinstatement with back-benefits. The petitioner filed a complaint bearing No, K-21 of 2001 before the Respondent No,5 under Subsection (8) of section 25-A of the late I.R.O.
4. ' The grievance of the petitioner is that the complaint was fixed on 24-10-2001, when the Respondent No,5 (Chairman Labour Appellate Tribunal) pressed the petitioner and his Advocate to withdraw the complaint but the petitioner was not willing to withdraw the complaint and urged that it should be adjudicated and decided on merits and the matter was adjourned to 30-10-2001.
5. On the said date, during the hearing, the petitioner was kept outside the chamber and the complaint was dismissed as withdrawn in spite of his instructions to the advocate not to withdraw the complaint in any circumstances, 'the petitioner's counsel came out of the chamber and steed that he had no way out but to withdraw the complaint. It is also case of the petitioner that as per Vakalatnama the Petitioner did not authorize his Advocate to withdraw the case. Hence the Petition with the benefits reliefs.
6. ' We have heard the Petitioner in person and Mr. M.L. Shahani, learned counsel for Respondents and with their assistance examined the proceedings.
7. ' In case, of default in compliance of the decision within a period specified, the defaulter is subject to punishment which may extend to one year and the workman has to file such complaint before the' forum which passed the order/decision. Likewise section 151 of I.R.O., 1969 provides the mode of recovery of money due from the employer under settlement or award to be recovered as arrears of land revenue or as a public demand if upon an application of the person entitled to money, the labour, Courts so directs. The remedy that was available under the late Ordinance, 1969 to the worker are also available under the NewOrdinance. The provisions of section 46(5) and (7), of Ordinance 2002 are Taxa materia to the provisions of subsection (8) of section 25-A of late Ordinance, Likewise, section 62 of the Ordinance, 2002 is similar to the provisions of section 51 of the late Ordinance. The provisions of sub-sections (6) and (7) of section 46 and section 62 are as follows:-- Section 46 (1)..............................................................................
8. (2)..................................................................................................
9. (3)..................................................................................................
10. (4)..................................................................................................
11. (5)..................................................................................................
(6) If a decision under subsection (4) or an order under subsection (5) given-'by the Labour Court or a decision of the High Court in an appeal against such a decision or order is not given effect to or complied with within one month or within the period specified in such order or decision, the defaulter shall additionally be punishable with fine which may extend to ten thousand rupees.
(7) No person shall be prosecuted under subsection (6) except on a complaint in writing by a workman if, the order or decision in his favour is not implemented within the period.' Specified therein.
12. "62. Recovery of money due from an employer under an award or settlement: (1) Any money due from an employer under an award, settlement-or decision of the arbitrator, labour Court or High Court" may be recovered as arrears of land revenue or as a public demand if, upon an application of the person entitled to the money, the labour Courts so directs.
(2) Where any workman is entitled, to receive from the employer any benefit, under an award, settlement or decision of the arbitrator, the Labour Court or High Court, which is capable of being computed in terms of money, the amount at which such benefit shall be computed may, subject to the rules made under this Ordinance, be determined and recovered 'at provided for in subsection
(1) and paid to the workman concerned by a specified, date."
13. In the instant case, the appellant had invoked the jurisdiction of the Labour Appellate Tribunal, Respondent No,5, complaining non- implementation of the decision by respondent. The complaint waswithdrawn. The grievance of the petitioner is that the withdrawal was per force and against the mandate given by him to his Advocate.
14. ' Mr. Shahani has controverted the grievance made by the petitioner with regard to the withdrawal of complaint and maintained that the complaint was allowed to be withdrawn for the reasons stated in the order itself. He referred order dated 30-10-2001 (Annexure-G), which reads as follows:- - "Mr. Ashraf HussainRizvipresent for the complainant and Mr.Shahani is present for the Respondents.
15. When it was brought to the notice of Mr. Ashraf HussainRizvi that in compliance with the order of lower Court not only reinstatement order of the complainant was issued, but also he was paid back-benefits and the salary and as such there was no reason for filing this complaint. At this stage, Mr. Ashraf HussainRizvi stated that of course some amount of back-benefits has been paid but not in full. Mr. Ashraf HussainRizvi, therefore, withdrawn the complaint by his statement in writing. The complaint stands dismissed as withdrawn."
16. ' Perusal of the aforesaid order shows that in compliance with the-order, the re-instatement order was issued and the complainant given back-benefits. His grievance was that some amount of back-benefits has not been paid.
17. So far the allegations of pressure for withdrawal, this Court cannot go into the controversial question of fact. To meet the plea with regard to withdrawal of the complaint by the counsel without permission of the petitioner, Mr. Shahani has referred two decisions on the point to contend that the counsel appointed by a party has the authority to enter into compromise or settle the dispute or to withdraw from the same unless such authority was expressly denied. (1)
18. AnsarHasainRizvi v. Syed MazharHussainZaidi (1971 SCM R 634) and (2) M/s. Arokeyimited v. Munir Ahmed, (PLD 1982 SC 204). The view expressed in former case was reiterated in later case.
19. The Petitioner has already approached the proper forum for reinstatement on account of his second time termination of his service. His Petition under section 51 is pending disposal except his complaint which was withdrawn.
20. ' We are of the view that in such circumstances the question of facts cannot be brought to this Court by invoking the Constitutional jurisdiction under Article 199. The Petition being non- maintainable was dismissed in limine by short order dated 21-8-2003 and these are the reasons for the same.