This judgment shall dispose of W.P. No, 2661/03 an FAO No, 56/03 as, in fact, these proceed against an order passed by a learned Punjab Labour Court No, 9, Multan, on 31.5.2003 and also question the order passed by the learned Punjab Labour Appellate Tribunal on 24.5.2002.
2. The case has a chequered history. The petitioner is an employee of Pak Arab Fertilizers (Pvt..)
Limited, Multan. He was dismissed from service vide order dated 20.5.1975. He tiled a grievance petition under Section 25-A of the IRO, 1969, on 13.8.1975 Notices were issued to the said employer who filed a written statement contesting the prayer for reinstatement with full back benefits.
Evidence was recorded. Vide judgment dated 8.6.1977 the petition was allowed and the petitioner was ordered to be re-instated in service but. without back benefits Both the parties felt aggrieved and filed appeals before the learned Punjab Labour Appellate Tribunal at Lahore. Vide judgment dated 11.7.1977 the appeal filed by the employer was allowed while the appeal filed by the petitioner was dismissed and resultantly the grievance petition was dismissed. This order was challenged by the petitioner by filing W.P. No, 1546/77 in this Court. The writ petition was dismissed in limine on 18.7.7977. Against this order, the petitioner filed an appeal which was allowed by the Hon'ble Supreme Court of Pakistan on 10.11.1990 and the appeals were remanded to the learned Labour Appellate Tribunal for decision afresh. I may note here that the Hon'ble Supreme Court of Pakistan Court held that the grievance petition filed by the petitioner was within time. After the remand appeals were pending with the learned Tribunal for quite some time. Meanwhile Section 2-A was added in the Service Tribunal Act, 1973. The petitioner brought the said fact to the notice of the learned Tribunal vide an application. Now on 24.5.2002 the appeal was remanded in the presence of learned counsel for the employer/appellant petitioner in person and following order was passed: "The learned counsel for the appellant and the respondent have unanimously stated that the judgment of the Court below dated 8.6.1977 is perverse and does not represent the true appraisal of evidence hence the instant appeal filed by the appellant establishment may be allowed and the case may be remanded to the learned Labdur Court No, 9, Multan for re-writing of the judgment.
The request being genuine and unanimous is allowed. I, therefore, allow this appeal, set aside the impugned judgment and remand the case to Punjab Labour Court No, 9, Multan for fresh adjudication of the case in the light of the evidence available On the file and after hearing the learned counsel for the parties.
Parties are directed to appear before Labour Court No, 9, Multan, on 8.6.2002. Expeditious disposal is required, preferably within 60 days."
After the said remand, the learned Punjab. Labour Court No, 9, Multan, proceeded to hold vide judgment dated 31.5.2003 that in view of the said Section 2-A of the Service Tribunals Acts, 1973, which is fully applicable as the employer-Company is an establishment owned, controlled and supervised by the Federal Government with a controlling share of 52%, the grievance petition is not proceedable in the Labour Court and then the said Labour Court proceeded to return the grievance petition to the petitioner for its presentation before a Court of competent jurisdiction.
3. The petitioner in person vehemently contends that he had duly brought the factum of the said amendment of the said statute to the notice of the learned Labour Appellate Tribunal still it proceeded to remand the case. He also adds that he never agreed to the said remand. His precise plea is that if Section 2-A of the .said Act, 1973, was to be applied then by all means the appeal filed by his employer before the learned Labour Appellate Tribunal stood abated alongwitli his own appeal and then matters were to be governed by legal and Constitutional provisions. Mr. Javed Altaf, Advodate/ learned counsel for the employer-Company while not denying that the said Section 2-A is applicable, and thus trying to support the judgment of the Labour Court, urges that since the remand was ordered with the consent of the petitioner, the said objection would not be available and it cannot be said that the Labour Court or the learned Appellate Tribunal had acted without jurisdiction or without lawful authority.
4. I have duly considered the respective contentions of the parties and have examined the entire available records, with the assistance of the petitioner in person and the learned counsel for the respondents. I have already detailed above the entire history of this case. Now the Hon'ble Supreme Court of Pakistan. in the judgment dated.10.11.1990 (I may note here that this judgment is reported as PLD 1991 SC 258 and The matter was decided alongwith some other similar matters) had directed the learned Labour Appellate Tribunal to decide the matter afresh in accordance with law. It is but obvious that the matter was not so decided for more than a decade after the said judgment. In the meantime Section 2-A of the Service Tribunals Act, 1973, was promulgated on 10.6.1997 vide the Service Tribunals (Amendment) Act (XVII of 1997). The result was that a person holding a post under anauthority, corporation, body or organization estbalished by or under a Federal Law or which is owned or controlled by the Federal Government or in which the Federal Government has a controlling share or interest was deemed to be a civil servant for the purposes of this Act. Admittedly, the employer-Company is such a body or corporation and the petitioner is holding a post under it. The said insertion having been made, the entire statute is to be read. Now Section 6 of the said Act of 1973, provides that all suits, appeals or applications regarding any matter within the jurisdiction of a Tribunal pending in any Court immediately before the commencement of this Act shall abate forthwith. The proviso entitles any party to such a suit, appeal or application to file an appeal within the time prescribed in respect of any such matter which is under issue in such a suit, appeal or application. the appeals pending before the learned Appellate Tribunal stood abated. Now the said Section 2-A came up for interpretation in context of Section 6 of the said Act, 1973, in the case of G.M. National Bank of Pakistan and others v. Abdul Aziz, and others (2002 PLC (C.S.) 18). The Hon'ble Supreme Court of Pakistan Court approved the following dictum earlier given in the case of Federation,of Pakistan v. Muhammad Siddiq (PLD 1981 SC 249) at pages 24 and 25 of the said report: "It is not possible, we regret, to uphold the view taken by a learned Single Judge in the High Court in the case of S.M. Nafisul Hassan Shah to the effect that on appeal filed by the Government is not at all entertainable under the Act. It is true that in the proviso to Section 6 of the Ordinance which preceded the Act it was specified that a civil servant, who was a party to suit, appeal or application which abated under the purview of Section 6 could prefer an appeal to the appropriate tribunal.
But in the Act itself a change was brought about in the language of the proviso. The phrase 'any civil servant who is a party to such a suit' was substituted by the phrase `any party to such a suit'.
The Act was promulgated on the 29th of September, 1973 while the appeal before the Service Tribunal in the said case was filed on the 24th of October, 1974, if this change would have been brought to the notice of the High Court, the observation that the Service Tribunal had no jurisdiction to hear appeal or to entertain any proceedings 'of any kind whatsoever at the instance of the Government', would not have been made."
5. I have also the advantage of going through another judgment of the Hon'ble Supreme Court of Pakistan Court of Pakistan which was given in a very case pertaining to the respondent-employer- Company in the case of General Manager Pak. Arab Fertilizers Ltd. Khanewal Road, Multan v.
Muhammad Ayub son of Fazal Elahi (C.A. No, 796 of 2000) on 10.2.2005. Their Lordship have held that the original remedies provided in the statutes governing the parties in a labour matter would stand abated but not a writ petition that was filed after all the remedies had been exhausted.
6. Now what happened in the present case is that the learned Appellate Tribunal, in the first instance, had not complied with the clear directives of the Hon'ble Supreme Court of Pakistan, in the second, with knowledge of the said statutory change (and to my mind the statute would take effect whether or not the Court or tribunal is aware), he proceeded to send back the case to the learned Labour Court holding its judgment to be perverse on the basis of the statements recorded and with the direction to decide the matter in accordance with law. The Labour Court ultimately has held that he has no jurisdiction to decide the matter in view of Section 2-A of the said Act, 1973 and has returned the grievance petition.
7. The petitioner has very rightly complained that the said order of the learned Labour Appellate Tribunal remanding the case to the Labour Court is utterly without jurisdiction. The reason being that there was no proceeding before him either in fact or in law on the day when he proceeded to remand the same for the reason that the appeals of both the parties stood bated in terms of Section 2-A read with Section 6 of the Service Tribunals Act, 1973 and Article 212(3) of the Constitution of the country.
8. The writ petition as well as the FAO are allowed and the order passed by the learned Labour Appellate Tribunal at Lahore on 24.5.2002 and consequent proceedings and order passed by the learned Punjab Labour Court No, 9, Multan, on 31.5.2003, are declared to be without lawful authority and are set aside with a further declaration that both the appeals against the original order dated 8.6.1977 of the learned Labour Court No, 9, Multan, stood abated by operation of Section 2-A read with Section 6 of the Service Tribunal Act, 1973 and Article 212(3) of the Constitution. No orders as to costs.