' ALI NAWAZ A. CHANNA (CHAIRMAN).---This appeal is directed against the order of learned Member, Single Bench Islamabad dated 26-7-1999 by which order he on complaint under section 22-C of I.R.O, 1969 ordered reinstatement of the respondent in service with all back-benefits. Being aggrieved of this order, the appellant had preferred a petition before the Hon'able Peshawar High Court on the ground that at the relevant time the Full Bench of this Commission was not functioning. The Hon'ble High Court entertained the petition, suspended the operation of impugned order of the learned Member and when finally it was brought to the knowledge of the Hon'ble High Court that presently the Full Bench is functioning at Islamabad, the petition was disposed of and the appellant was directed to approach the Full Bench of the Commission and in consequences of that order this appeal was filed before this Court. The facts constituting and giving rise to this appeal were given in detail in order while deciding the application for stay which facts were as under:
2. That the respondent had filed petition before the learned Member, Single Bench under section 22-A(8)(g) of I.R.O., 1969. At the time of admission of that petition the learned Member passed stay order against the appellant dated 20-10-1998 by which order he gave directions to the appellant that they should continue with the enquiry but should not pass final order against the respondent and also called the enquiryproceedings for his perusal. The said petition proceeded before the learned Member when by his order dated 18-12-1998 he dismissed the petition of the respondent under section 22-A(8)(g) of I.R.O. With the remakrs that "the action being taken by the respondent- Management is purely under misconduct and there is no element of unfair labour practice involved but the enquiry proceedings submitted show that the request of the petitioner to allow his co-worker to sit with him in the enquiry was not allowed.".
3. In view of this observation, he dismissed the petition of the respondent, but in the end gave a direction to the appellant that the appellant can go ahead with the disciplinary proceedings by allowing coworker of the petitioner to sit in the enquiry. Admittedly no appeal was preferred by the respondent against this order of dismissal of his petition under section 22-A(8)(g) of I.R.O.Itis the case of the appellant that, the appellant after dismissal of petition of the respondent, finding the charge of misconduct having been proved against the respondent terminated his services. After that the respondent filed grievance petition section 25-A of I.R.O.Before the competent Labour Court for his reinstatement in service. He also filed another application before this Court under section 22-C of I.R.O.For contempt against the appellant for having violated the orders of learned Single Member who had given directions to the appellant that they should provide the assistance of co-worker to the respondent. The learned Member proceeded with the contempt application and while deciding the contempt application he passed orders dated 26-7-1999 in which he gave directions to the appellant to reinstate the respondent in service from the date his services were terminated with back-benefits because the services of co-worker were not provided to the respondent as directed in order dated 18-12-1998. This order was challenged by the appellant before Peshawar High Court because according to the learned Advocate for the appellant the Full Bench of this Commission was not functioning. The Peshawar High Court admitted the petition and passed order on 3-8-1999 by which order the Peshawar High Court suspended the operation of order of learned Member, Single Bench dated 26-7-1999. This order of the Peshawar High Court was later on confirmed vide order dated 20-1-2000 as the learned Counsel for the respondent gave no objection to the confirmation of the said order. Thereafter when the petition came up for hearing before the Hon'ble High Court Peshawar on 29-1-2003 it was pointed out by the learned Advocate for the respondent that now the Full Bench of the Commission is functioning, therefore, on his statement the Hon'ble High Court dismissed the writ petition and gave directions to the appellant to file appeal before the Full Bench. After this order dated 29-1-2003 the learned Advocate for the respondent filed appeal before this Full Bench on 15-2-2003 after obtaining certified copied from the High CourtPeshawar, the prohibitory order of the Hon'ble High Court also became inoperative due to dismissal of writ petition hence the learned Advocate for the appellant has prayed that the impugned order of the learned Single Member dated 26-7-1999 may be suspended.
4. We have heard the learned Advocate for the appellant and the learned Advocate for the respondent. At the very outset the learned Advocate for the respondent argued that this appeal is hopelessly time-barred. The impugned order was passed on 26-7-1999 while this appeal has been presented on 25-3-2003 as such this appeal is liable to be dismissed. In this connection he placed his reliance upon the authority reported as PLD 1983 SC 785, 1997 SCMR 1167 and 2002 PLC (C.S.)
1113. He further argued that the appellant had chosen wrong forum of High Court of Peshawar in filing the petition before that Court and did not file appeal before the Full Bench where the appeal should have been filed. He also argued that the appellant made misstatement before the Hon'ble High Court, Peshawar that the Full Bench is not working hence the petition of the appellant was entertained by the Hon'ble High Court of Peshawar. He argued that on the basis of misstatement of the appellant and on the basis of the above-mentioned delay the appeal is liable to be dismissed.
5. On the other hand, the learned Advocate for the appellant argued that the forum of the High Court can never be said to be wrong forum as High Court has over all control and supervision on all Courts and Tribunals subordinate to it. Moreover he argued that he was under an impression that Full Bench was not working hence he filed petition before the High Court. He argued that the petition continued before the High Court for sufficiently long time but the respondent never objected before the High Court that the petition before the High Court is not maintainable and that since the Full Bench is working it should have been filed there. He argued that on the contrary the respondents made statement before the Hon'ble High Court and raised no objection to the confirmation of status quo order of the Hon'ble High Court. He further argued that whenever the respondent pointed out that at present Full Bench is working and functioning the Hon'ble High Court dismissed the petition and gave directions to the appellant to approach and file an appeal before the Full Bench and in accordance with the said order appeal as filed before the Court.
6. We have considered the arguments of the learned Advocates for the parties in juxta-position with the material on record. There is no doubt that the petition was filed before the Hon'ble Peshawar High Court and it was entertained there and the operation of the order of learned Member was suspended. Admittedly this appeal was entertained by the Ho'ble High Court on the statement that the Full Bench is not working.
' The learned Advocate for the respondent has relied upon two judgments of the Full Bench of this Commissioner dated 18-8-1999 on which date the petition was filed before the Hon'ble High Court, Peshawar to show that the Full Bench was working on the said date. Be that as it may, but the question is whether the appellant had approached the Hon'ble High Court with mala fide or bona fide intention. The appellant might have bona fide misunderstanding that the Full Bench is not working and due to that the petition was tiled before the High Court. We think that this should have been taken in that perspective and not that the petition was got admitted in the Peshawar High Court by misrepresentation, fraud, or by concealment of facts. Even otherwise the petition before the Hon'ble High Court continued from 18-8-1999 till 20-1-2003 when it was pointed out to the Peshawar High Court that the Full Beach is functioning and working. On coming to know that a Full Bench is functioning the petition was dismissed and directions were given to the petitioner to file an appeal before the Full Bench. In our opinion the proceedings before the Hon'ble High Court were not in wrong forum, nor the appellant had intentionally or deliberately chosen wrong forum for getting the relief. The appellants have produced 13 copies of the Diary sheets of the High Court to show that the Advocate of the respondent was appearing in the High Court but he never objected, although he knew that the Full Bench is functioning, before the Hon'ble High Court that the appellant had chosen wrong forum and on the contrary when the respondent informed the High Court that now the Full Bench is working, the Hon'ble High Court passed the order of filing the appeal before the Full Bench. In such circumstances we are the considered opinion that the appellant was perusing his cause, before the Hon'ble High Court in a bona fide manner and there was no motive behind idea of filing petition before the Hon'ble High Court.
7. The learned Advocate for the respondent argued that even choosing of High Court by the party which had no authority to hear the petition was also a wrong forum as held by the Supreme Court in 1997 SCMR 1167. We are of the view that this authority is based upon different facts and circumstances. This authority of the Hon'ble Supreme Court is on the service matter where the Civil Servant had filed departmental appeal and that his appeal was dismissed. He approached the High Court and the Wafaqi Mohtasib and the Hon'ble Supreme Court held that Civil Servant must know the rules that after dismissal of his departmental appeal he has to approach the Federal Service Tribunal and if he approached the High Court it was wrong forum for him and, therefore, the time was not extended. That is not the case in this case. In this case the Hon'able High Court was approached on the assumption that the Full Bench is not working otherwise we think the appellant must have filed appeal before. This Bench. The other authority relied upon bythe learned Advocate of the respondent have no bearing or semblance with the focus of this case. Moreover the Hon'ble High Court while directing the appellant to file appeal before this Commission had made the following observations with regard to limitation and delay:-- "The writ petition in the circumstances is disposed of with directions to the petitioner to approach the Full Bench of the NIRC by way of filing an appeal. We hope that the learned Full Bench of the NIRC shall consider the matter of limitation in view of the peculiar circumstances and would condone the delay, if no other legal impediment is in the way of the petitioner."
From the above observation it is clear that the Hon'ble High Court was conscious of the situation about the point of limitation and gave directions that the limitation may be condoned by the Full Bench in the peculiar circumstances of the case if there is no legal impediment. We do not find any legal impediment in this case and we are of the opinion that the appeal is not hit by the limitation and is not time-barred. Accordingly the objection of the learned Advocate for the respondent is overruled.
8. As regards merits of the case we are of the considered opinion that the order of the learned Member Single Bench is patently illegal, perverse and without jurisdiction. Admittedly contempt application was pending before him and in contempt proceedings the action which could have been taken by the learned Member was to have punished the appellant on finding them guilty of contempt. The learned Member without finding the respondent guilty of contempt allegedly passed the order of reinstatement of the respondent on the ground that the services of co-worker were not provided to the respondent. Again this observation and findings of the learned Member was without any substance and foundation because the enquiry was already completed and then was no need of providing the assistance of co-worker. Moreover in the main petition the learned Member had held that the charge against the respondent was relatable to misconduct and not to unfair labour practice then how he ordered his reinstatement in service on contempt application.
The appellants do not appear to have committed any contempt nor they had violated any order of the Court.
9. Since the order of the learned Member was illegal, perverse, and without jurisdiction and totally void order then in our opinion there was no limitation period required for getting such order set aside.
' Accordingly we allow this appeal, and set aside the impugned order of the learned Member Single Bench.