' SYED AKHTAR NAQI NAQVI, MEMBER.---This appeal is directed against the order dated 23-7-2003 passed by Syed Altaf Hussain Shah learned Member Single Bench of this Commission whereby the appellants were directed to comply with the final orders passed in the main petition before the next date failing which necessary measures for execution of the order were to be taken. The circumstances which led to this appeal are that the respondent along with two other colleagues filed a grievance petition No,4A(1048)90-L before this Commission under section 22-A (8)(g) of the repealed I.R.O.,1969 against the District Manager PRTC Kot Lakhpat in which they contended that they were working under the said District Manager PRTC as Junior Clerks (Traffic)/Time Checker in Kot Lakhp.At Depot Lahore and were active members of the PRTC Azad Mazdoor Prem Union which was legally competent to procure and protect the rights and interestof the workers employed in the PRTC but the said District Manager PRTC was habitual of doing away with the rights and interests of the workers by means of his discriminating treatment for not giving them their due promotion and was in a habit of extending threats to the office-bearers and workers of dismissal, termination, transfers and suspension from service on account of their lawful trade union activities.
The respondents and his two colleagues further contended that they were deputed to work with the checking staff as Ticket Examiners w.e.f, 16-3-1989 and they were performing their duties till the institution of the grievance petition. It was contended that the duty roster of the petitioners was later on changed vide office order. No,735 dated 31-7-1990 whereby the respondents had to work in the evening shift and to perform checking duty to maintain T.T. 23 and to submit the same to the Incharge. The respondents contended that their next promotion was of Ticket Examiner and since they were performing their duties -as such for the last more then nine months and were working without any break and interruption and the posts against which they were performing their duties were vacant for the last two years and of permanent nature and no one had a lien against those posts and as per Standing Order. Ordinance, 1968, after the expiryof 90 days, the respondent and his two colleagues had become -permanent Ticket Examiners. However, the District Manager with the connivance of the PRTC Labour Alliance Union started victimizing the respondent's union hence the said grievance petition requesting this Commission for directing the District Manager PRTC Kot Lakhpat/respondent of the main grievance petition not to commit any act of unfair labour practice and not to change the nature of duty of the respondent and to confirm/regularize him and his two colleagues as Ticket Examiners w.e.f, 20-1-1990 and for restraining the said officer from changing the duty roster or terminating, transferring or reverting the respondent and his two colleagues due to their lawful trade union activities.
2. Ex parte proceedings were taken in that case against the said District Manager PRTC Kot Lakhpat and the case was decided ex parte against the said District Manager and in favour of the respondent and his two colleagues vide order dated 13-7-1992. I would reproduce the order of the learned member namely Dr. Munir Ahmed Mughal dated 13-7-1992 as under:-- "Petitioners along with counsel present. Respondent is absent and proceeded ex parte. In ex parte evidence the petitioners have relied upon affidavit of Mushtaq Ahmed Gill (Mark-A). Nothing is in rebuttal as such the petition is allowed with cost of Rs,5000. The respondent is directed not to change the nature of duties of the petitioners. Petitioners are also confirmed and regularized as Ticket Examiners with effect from 20-1-1990."
' An application for setting aside this ex parte order was moved by the said District Manager PRTC Kot Lakhpat but the same was dismissed as barred by time. An appeal was filed against the said order of dismissal of the application for setting aside ex parte order was preferred before the Full Bench of this Commission which was also dismissed in default and an application for its restoration was dismissed on ground of limitation. It was therefore, that on 16-3-1999 the respondent filed an application bearing No,7(90)/99-L for contempt of Court and for implementation of the ex parte order dated 13-7-1992 before the Single Bench NIRC Lahore but it was dismissed by Mr. M. Akbar learned Member Single Bench, as he then was vide his order dated 31-5-2000. An appeal was filed by the respondents against the said order before the Full Bench of this Commission but the same was also dismissed vide order dated 5-7-2002. I may however, mention here that the Honourable Full Bench did not agree with the learned Member Single Bench that the petition was suffering from latches but however, with regard to maintainability of the application under section 3 of the contempt of Court Act, it was held that the order of the learned Member was unexceptionable and with thisobservation the said appeal was disposed off, it was thereafter, that the respondent filed an application No,7(67)/02-L for 'contempt of Court and for implementation of order dated 13-7-1992 before the Single Bench NIRC Lahore. During the pendency of the said application the present appellants moved an application dated 27-9-2002 for quashment/dismissal of the said contempt petition under section 249(a) Cr.P.C. Before the learned Single Member contending therein that the appellants were not party to the original grievance petition No,4A(1048)90-L in which the order dated 13-7-1992 was passed ex parte and that only the District Manager PRTC Kot Lakhpat was the respondent of that petition therefore, the said application No,7(67)/02-L for contempt of Court was neither competent nor maintainable against the present appellants. It was contended that the said application was argued only on the point of non-maintainability and incompetency of this contempt application against the present appellants , and the other grounds against the order dated 13-7-1992 raised in the reply to the contempt application before the learned Single Bench, were-not argued and emphasized and the same were to be argued later bn if the appellant's application under section 249(a) Cr.P.C. Would have been dismissed and the contempt application Would have been found maintainable for contempt against the present appellants. I may mention here that the present appellants had contended in their application that the original order dated 13-7-1992 was based on no evidence and therefore, the said order was void and not liable to be implemented, that District Manager PRTC Kot Lakhpat who was the respondent was not competent to regularize or to confirm the present respondents as Ticket Examiners under the rules, that the order in question was not executable, that the order dated 13-7-1992 was passed ex parte without notice of date of hearing to the respondent of that case and therefore, he was condemned unheard rendering the said order void ab initio and therefore, the same could not be executed. It was contended that the respondent had moved the PLC Nos.1 and 2 for the same purpose which was agitated in the grievance petition No,4A(1048)/90-L i.e, for his promotion to the post of Ticket Examiner and the said cases were tried and decided by the said Courts vide orders dated 31-5-1988 and 20-10-1997 respectively directing the department to consider the case of the respondent for the promotion as Ticket Examiner and since the respondent was considered and was rejected as found not suitable and also found not qualified under the rules therefore, he was refused for his promotion as such and finally the respondent also filed two writ petitions bearing No,732/97 and 19110/98 before the Honourable Lahore High Court, Lahore for the purpose of his promotion to the post of Ticket Examiner as claimed in the aforesaid grievance petition No,4A(1048)/90-L which are still pending decision. It was also contended that PRTC had been wound up since 30-9-1997 and its operation was closed from the said date therefore, theapplication for implementation of the order dated 13- 7-1992 had become infructuous. The appellants contended that all these matters were also to be argued and there was only a preliminary argument for quashment of the contempt petition against the appellants. Thus the order under appeal dated 23-7-2003 passed on the quashment application dated 27-9-2002 passed in case No,7(67)/02-L is void ab initio, arbitrary, one sided and not executable and without lawful authority and without jurisdiction, so it is liable to be declared as such, hence this appeal.
3. We have heard the learned counsel for the parties at quite some length and have also perused the written arguments submitted by both the parties. We have also perused the record.
4. The main contention of the learned counsel for the appellants is that the appellants were not parties to the original grievance petition No,4A(1048)/00-L in which order dated 13-7-1992 was passed and therefore, no contempt proceedings can be initiated against them. He has referred to some authorities of law reported as PLD 1995 SC 572 wherein it was held by the Honourable Supreme Court that \the petitioners should not be summoned for facing such proceedings if they are not arrayed as party in the suit against whom the stay was granted, For violation of which other persons are being tried. In a judgment reported as (PLD 1997 SC at p. 351) it was held that a judgment in a contempt of Court petition is a judgment per incuriam one cannot be found guilty of disobedience of an order which is nullity in the eyes of law, while the Honourable Lahore High Court in (1999 MLD at page 2297) held that person not a party in suit or in, appeal neither any direction nor any injunctive order having been passed against such persons, no punitive action can be taken against such persons who were not the party in the suit or the appeal. A similar view was taken by the Honourable Lahore High Court in :a judgment reported as (1988 CLC at page 1370) and (PLD Lahore at page 126). No contrary view has been put forth by the learned counsel for the respondent. It is an admitted position that the initial grievance petition No,4A(1048)/00-L was filed against District Manager PRTC Kot .Lakhpat and the order dated 13-7-1992 was passed against him hence action should have been taken C. Against him and not against the present' appellants. It was the duty of the respondent or his counsel who preferred that grievance petition, to have seen whether the said District Manager PRTC .Kot Lakhpat was competent to grant the relief to the respondent and his two colleagues or not. It was the duty of the petitioner and his counsel to have seen whether a competent person was sued. It is an unfortunate situation that due to utmost negligence of the respondent-management that case could not be properly contested with the result that ex parte action was taken against the said District Manager and the grievance petition was acceptedthere and then in a slipshod manner by means of order dated 13-7-1992 which is now being sought to be implemented. To their further misfortune the management of the appellants could not file an application for setting aside ex parte order in time which was therefore, dismissed and an appeal against the order was also dismissed for non-prosecution while an application for restoration of that appeal was also dismissed being barred by time. We do not know whether it was on account of wilful negligence of the, officers of the management, the said District Manager PRTC Kot ,Lakpat or anybody else or it was a result of their connivance with the respondent that the cases could not be conducted properly. However, we find-that unfortunately the order dated 13-7-1992 was passed in a hasty manner.
5. A perusal of the contents of the grievance petition No,4A(1048)/90-L would show that as per averments of the respondent and his two colleagues named Mushtaq Ahmed Gill and M. Aslam Abid they had not alleged any act of unfair labour' practiceon the part of the respondent of that case i.e, District Manager PRTC Kot Lakhpat. On the contrary the respondent and his two colleagues averred in para. No,2 of the grievance petition that they were hardworking, honest and their work was appreciated by the Incharge/respondent and they were deputed to work with the checking staff as Ticket Examiners w.e.f, 16-3-1989. They had also claimed their entitlement for promotion as Ticket Examiners on the ground of their having been working in that position continuously for more than nine months in view of Clause 1 (b) of the Schedule to Standing Orders, Ordinance 1968 section 2 (g). The learned Member Single Bench could not appreciate that stay of a worker continuously for three months and for a total period of 180 days was meant for regularization of initial employment of a daily wager employee on this ground and not that a right of promotion is, created by means of this provision of law. This fact establishes two things; firstly that the respondent could not prove any act of unfair labour practice against the said District Manager PRTC Kot Lakhpat which was essential to invoke the jurisdiction of this Commission and secondly that the respondent was not regularly promoted as Ticket, Examiner and he was simply working as such for a temporary phase. These points were not appreciated by the .Earned Member Single Bench while passing the order dated 13-7-1992. No evidence was recorded and even any affidavit in evidence was also not produced. Perhaps the affidavit which is appended with an application for interim stay or with the main grievance petition was treated as an affidavit in evidence on the basis of which an ex parte order was passed confirming the promotion of the respondent as Ticket Examiner and directing the District Manager PRTC Kot Lakhpat not to change the nature of his duties and by means of the said order the respondent was confirmed and regularized as Ticket Examiner w.e.f,20-1-1990. This is an order which on the face of it seems to be one passed without lawful authority. It was so held in a judgment reported as D (PLD 1997 SC at page 351) that matters relating to examining the validity of service rules and notifications and the eligibility to civil servants of promotion to higher post preeminently appear within the exclusive jurisdiction of the Service Tribunal and even with regard to the High Court it was held that it would wrongly assume jurisdiction in such matters. Although no appeal is pending before us against the order dated 13-7- 1992 but as it was so held by a Division Bench of the Honourable Lahore High Court in a judgment reported as (PLD 1970 Lahore at page 6) that an Appellate Authority can entertain Mid decide on merits even a time-barred appeal against such order, in the light of the dictum laid down in the aforesaid judgments we can examine whether the order dated 13-7-1992 is executable as we have already observed that the learned member Single Bench had to establish an act of unfair labour practice on the part of the respondent of that case before assuming the jurisdiction in the matter which related to service conditions, of the respondent which was not done. There were certain other matters which also required consideration. The petition must qualify the conditions for promotion and in this case qualification of Matriculation was a condition precedent for the said purpose which the petitioner does not possess. In addition to that, the respondent moved twice to the PLC No,1 and PLC No,2 for similar relief whereby the PRTC Management was directed to consider the case of petitioner in the light of parameters prescribed and that his case was considered and he was declined promotion. In this view of the matter, the other dated 13-7-1992 seems to be without lawful authority in as much as the respondent of that case was condemned unheard.
There was no report that he had been served. These matters can be looked into while deciding an application for implementation of the said order and in view of the above, the said order is not enforceable more particularly against .The appellants who were not the respondents of the original grievance petition. It is a matter of common sense, as already held above, that the respondents had to implead the proper party for seeking relief. It can equally be presumed that the District Manager PRTC Kot Lakhpat was in league with the respondents. In fact the respondents/original petitioner should have sued the department itself through some officers instead of the District Manager PRTC Kot Lakhpat personally. In that case the order could have been executed against any officer of the department. This aspect of the matter could not be appreciated by the learned Member Single Bench in passing the order under appeal. There is another aspect of the mater which cannot be lost sight of that the PRTC Department ceases to exist for quite some time as it had been wound up in the year 1997 and when the order has not remained executable for the non- existence of the department, how the relief could be given to the respondent. These aspects were notconsidered by the learned Member Single Bench while passing the order under appeal. It would be noticed that all the aforesaid points were raised by the appellant in their reply dated 27-9-2002 to the application under section 22-C which was filed for implementation of the order dated 13-7- 1992 but the learned Member Single Bench in his order under appeal did not advert to those points which was incumbent upon him to have adjudicated upon those points 'as well. The application under section 249(a) Cr.P.C. Filed by the appellant was therefore, not fully disposed off. The learned counsel for the respondent could not rebut these arguments except that under the relevant provisions of law the assignees of the original respondents were also duty bound to execute the order but as we have already observed that it could be possible if the department had been sued whereas in this case, an officer was sued and designated.
6. The upshot of the above discussion is that the learned Member Single Bench has acted illegally without adverting to the law and facts of the case by simply assigning the reasons that the appellants were duty bound to implement the order dated 13-7-1992 being the representatives of the department. Had the learned Member Single Bench addressed the points raised by the appellants in their application under section 249(a) Cr.P.C. He would have found the order dated 13-7-1992 in-executable not only against the appellants but also against the original respondent of the grievance petition in which the said order was passed. We have already referred a judgment of the Honourable Supreme Court reported in (PLD 1997 SC at page 351) in which it was laid dbwn that a void order can be ignored and cannot be implemented and does not constitute any contempt of Court. We have also held above that the order dated 13-7-1992 was absolutely without lawful authority; without any reason and based on no evidence so much so that the basic condition of unfair labour practice which is a sine qua non for invoking the jurisdiction of this Commission, was not established by the petitioner. The order dated 13-7-1992 is therefore, against all canons of justice. We have also observed in, the preceding paragraphs that the impugned order could not be executable against the appellants and more particularly it has been rendered in-executable due to the closure and winding up of the PRTC Department. All these factors could not attract the attention of the learned Member Single Bench while passing the order under appeal which is not based on any application of mind. We therefore, accept this appeal, .Set aside the order under appeal and since the impugned order dated 13-7-1992 has not remained executable, we set aside the said order with no order as to costs.