The brief facts out of which the present writ petition arises are that Respondent No, 2 was appointed by the. Manager Shafique Industries. Subsequently, he was entrusted with the duties of Collie and thereafter he was promoted to higher grade in the year 1965. Respondent No, 2 served the department till 1985. He was secured under the Employees Social Security Ordinance, 1965 vide Registration No, SS 859528 and during his service, he developed an occupational disease of Pulmonary Tuberculosis and Rheumatic Arthritis as determined by the Medical Officer of the Institution as 100%. Consequently, he was declared unfit for future service due to the aforesaid disease. Respondent No, 2 submitted an application before the Director, Punjab Employees Social Security Institution, Lahore for grant of Disablement Pension, who rejected the plea of Respondent No: 2 on the ground that the said illness was not covered under the rules/regulations. Respondent No, 2 being aggrieved preferred arr appeal before the Punjab Social Security Court, and the case was remanded back for consideration under Section 57 of the aforesaid Ordinance by the Commissioner of the Institution. The Director General of the Institution rejected the claim of Respondent No, 2 vide order dated 29.10.1996. Respondent No, 2 being aggrieved preferred an appeal before the Punjab Lahore Court No,
1. Lahore, under Section 59 of the Employees Social Security Ordinance, 1965, which was accepted vide judgment dated 17.07.1999. The petitioner, being aggrieved tiled this Constitutional petition.
2. The learned counsel of the petitioner sulimits that the Presiding Officer of the Punjab Labour Court No, 1 Lahore has proceeded to hear the appeal filed under Section 59 of the Employees Social Security Ordinance, 1965, even though he has not been notified as a Social Security Court under Section 60 of the Employees Social Security Ordinance, 1965, therefore, assumption of jurisdiction by Respondent No, 1 is without lawful authority. He further submits that claim of Respondent No, 2 was accepted by the Director General of the Institution after remand but disease of Respondent No, 2 was not covered under the rules/regulations of the petitioner, therefore Respondent No, 2 was not entitled to secure disabled man pension and gratuity. He further submits that case of Respondent No, 2 does not fall within the parameters prescribed by the Legislature in its wisdom in Sections 39, 40 and 41 of the Employees Social Security Ordinance, 1965. He further submits that impugned. judgment is passed by Respondent No, 1 without application of mind.
3. Learned counsel of Respondent No, 2 submits that Respondent No, 2 preferred an appeal against order of Director General of the Institution dated 29.10.1996 before the Punjab Labour Court No, II duly designated and nominated as Social Security Court. The said Court failed to deliver the judgment despite various dates and adjournments therefore, Respondent No, 2 was constrained to file a petition before the Punjab Labour Appellate Tribunal, Lahore under Section 38(7) of the Industrial Relations Ordinance, 1969 for transfer of the appeal from the Punjab Labour Court No, II, Lahore to any other Court of competent jurisdiction. The application, of Respondent No, 2 was accepted after hearing parties/their counsel vide order dated 28.6.1999 and the case was transferred to the Presiding Officer, Punjab Labour. Court No, 1, Lahore. He further submits that order dated 28.6.1999 Of the Punjab Labour Appellate Tribunal was not challenged by the petitioner before any higher forum. He further submits .that petitioner did not raise any objection qua hearing of the appeal by Respondent No, 1 of Respondent No, 2, therefore, petitioner has no right to agitate the matter qua assumption of jurisdiction by Respondent No,
1. He further submits that the Labour Appellate Tribunal has decided the controversy after proper appreciation of evidence and the Court has no jurisdiction to substitute its own findings in place of the findings of the Tribunal below.
4. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record.
5. It is better and appropriate to reproduce the basic facts in chronological order to resolve the controversy between the parties
(i) The application of Respondent No, 2 was rejected by the Director General of the Institution vide order dated 29.10.1996.
(ii) Respondent No 2 preferred an appeal before the Punjab Labour Court No, II Lahore duly designatad/nomminated as Social Security Court.
(iii) The Presiding Officer of Punjab Labour Court No, II. Lahore did not decide the case; well in time.
(iv) Respondent No, 2 submitted an application for transfer of the case from Punjab Labour Court No, II to any other Court of competent jurisdiction under Section 38(7) of the Industrial Relations Ordinance, 1969.
(v) The application of Respondent No, 2 was accepted by the Punjab Labour Appellate Tribunal vide order dated 28.6.1999, which is attached with the report and parawise comments as Annexure-R/1.
(vi)The order of the punjab Labour Appellate Tribunal was not challenged by the petitioner before any higher forum.
(vii) The petitioner did not raise any objection qua assumption of jurisdiction by Respondent No, 1.
(viii) Respondent No, 1 accepted the appeal of Respondent No, 2 vide order dated 17.7.1999.
In case the aforesaid facts are put in a juxta position that objection raised by the learned counsel of the petitioner that Respondent No, 1 has assumed the jurisdiction in violation of the provisions of the Employes Social Security Ordinance, 1965, has no force. It is admitted fact that the petitioner did not challenge the order of the Punjab Labour Appellate Tribunal dated 28.6.1999. before any higher forum, therefore, order dated 28.6.1999 is final qua the assumption of jurisdiction by Respondent No, 1, between the parties as the law did down by the Honourable Supreme Court in Pir Bakhsh represented by his Legal Heirs and others vs. The Chairman, Allotment Committee and other (PLD 1987 S.C. 145). Even otherwise the objection qua assumption of jurisdiction by Respondent No, 1, has no force as the petitioner has submitted before Respondent No, 1 and did not raise any objection of assumption of jurisdiction as mentioned above, therefore, petitioner has no lawful authority to raise objection against assumption of jurisdiction by Respondent No 1 on the well known principle of estoppel and waiver as the law laid down by the Honourabel Supreme Court in Haji Ghulam Rasool and others vs. The Chief Adminitrator of Auqaf, West Pakistan (PLD 1971 S.C. 376). Submission to jurisdiction without objection to lack of jurisdiction in Court, would disentitle submitting party to challange the order of Court that plea grounded on a lack of jurisdiction, specially adverse order has been passed against the party on the well known principle of approbate and reprobate. It is also settled principle of law that the party, who has not raised objection at the relevant time before the Court qua the assumption of jurisdiction then he has no right to raise the said 'objection after the case was decided against the party as the law laid down by the superior Courts in the following judgments :-- Rice Export Corporation of Pakistan (Pvt) Limited vs. Chairman, Sindh Labour Appellate Tribunal etc. (NLR 1993 Labour 67); Mst. Noor Jahan vs. Mst. Roshan Jahan etc. (NLR 1995 Civil 1); Chaudhry Haq Nawaz Chohan vs. Chaudhry Tariq Azam etc. (NLR 1995 CLJ 625); Nawab Din etc. vs. Muhammad Salim Aamer etc. (NLR 1995 U.C. 168); The second contention of the learned counsel of the petitioner on merits has also no force as Respondent No, 1 has given finding of fact against the petitioner after proper appreciation of vidence and record and this Court has no jurisdiction to substitute its own findings in place of the findings of the Tribunal below as the law down by the Division Bench of this Court and the Honourable Supreme Court in the following judgment:-- Board of Intermediate and Secondary Education, Lahore through ChairMan an another vs. M.
Massadaq Naseem Sindhoo (PLD 1973 Lahore 600); Syed Azmat Ali vs. The Chief Settlement and Rehabilitation Commissioner, Lahore etc. (PLD 1964 S.C.260); It is settled principle of law that Constitutional jurisdiction is discretionary in character. Since the substantial justice has been done between the parties, therefore, I am not inclined to exercise my discretion in favour of the petitioner as the law laid down by the Honourable Supreme Court in the following judgments :-- Nawab Syed Raunaq Ali etc. vs. Chief Settlement Commissioner and others (PLD 1973 S.C. 236); Rana Muhammad Arshad vs. Additional Commissioner (Revenue), Multan Division and others (1998 SCM R 1462).
It is pertinent to mention here that Respondent No, 2 preferred appeal against the following defendants before the Punjab Labour Court No, II initially, which was transferred to Punjab Labour Court No, 1, Lahore:--
(i) Punjab Employees Social Security Institution, 3-A Gulberg V, Lahore.
(ii) The Director General, Punjab Employees Social Security Institution, (Local Office), 115/116, Rifle Range, Chauburji Park, Lahore.
(iii) The Manager, Shafique Industries (Registered), 43/N Industrial Area, Gulberg II, Lahore.
Whereas the petitioner has filed this Constitutional petition on behalf of the Punjab Employees Social Security Institution, through Commissioner, without impleading the aforesaid defendants as respondents in this Constitutional petition, therefore, Constitutional petition is liable to be dismissed as the law did down by the Honourable Supreme Court in M Rcimizul Haq and other vs. The Secretary to the Government of Pakistan, Rawalpindi and others (PLD 1992 S.C. 221). It is admitted fact that petitioner has concealed material facts from this Court that the case was entrusted to Respondent No 1 by the Punjab Labour Appellate Tribunal vide dated 28.6.1999, therefore, petition is liable to be dismissed as the law laid down in the following judgments :-- Abdur Rashid vs. Pakistan and others (1983 SCM R 196); Principal, King Edward Medical Collage, Lahore vs. Ghulam Mustafa etc. (1969 SCM R 141).
In View of what has been discussed above, this writ petition has no merit and the same is dismissed.