1. ' MRS, QAISER IQBAL, J.--- This order governs the review application preferred by the appellant for review of judgment dated 9-3-2007.
2. ' Primarily it is contended that under section 25(A)(5) of Industrial Relations Ordinance, 1969, in consonance with section 46(4) of Industrial Relations Ordinance, 2002 the Labour Court is required to go into the facts of the case the burden to prove alleged misconduct is upon employer both in inquiry as well as in Labour Court. It is urged that on issue No,3 the plea raised had shifted the burden of non-commission of misconduct upon the worker, as per settled law inquiry as to misconduct as per intent of legislature is to provide double check, one in the form of a domestic inquiry and the order in the form of judicial determination and such exercise is necessary in order to determine the true features of the case which has not been considered in the impugned judgment. In support thereof reliance has been placed in case of Crescent Jute Products Ltd. v.
3. Muhammad Yaqub Erc. PLD 1987 SC 207, Glaxo Laboratories Pakistan v. Sindh Labour Appellate Tribunal 1987 PLC 447, Imdad Ali v. S.L.A, Tr. 1975 Karachi 288, E.F.U. General Insurance Ltd. v. Sindh Labour Court No,V and another 2007 PLC 500.
4. ' Learned counsel for appellant has invited my attention to the fact constituting the case that the appellant was reinstated in service of the respondent by Sindh Labour Appellate Tribunal, the respondent did not employ the appellant on the job, on which he was working at the time of his removal, he had time and again requested for reinstatement on the job but all in vain his removal from service cannot be construed as misconduct within the ambit of section 15(3) of the Ordinance, 1968.
5. ' On behalf of the respondent Mr. Mehmood Abdul Ghani has contended that the scope of review is very limited, it is not a matter of mere procedure, but purely question of jurisdiction. It cannot be exercised unless expressly conferred on Tribunal and such powers are not available to the Labour Court on the basis of general principle or by virtue of section 20 of Act X of 1897. In support of the above contention reliance has been placed in case of Messrs Ahmed Food Industries Ltd. v. Sindh Labour Appellate Tribunal, Karachi and 2 others 1974 PLC 225, Haji Khan Bhatti v. NIRC and others 1992 PLC 594, relying on the case of Mst. Maqsoodan Bibi v. Mst. Bano PLD 1965 (W.P.) Lah:183, wherein it was held:--- "Right of review is like a right of appeal a substantive right and it is not available unless it is expressly conferred by a statute."
6. ' It was urged by learned counsel for appellant that in case of Suba v. Fatima Bibi 1996 SCMR 158, it has been held that review petition would also be competent if something which was previous had been over looked in judgment and that it has been considered by the Court, finally result of the case would have been different. On the basis of the record available, the point raised could not be reopened or re-adjudicated in the limited power available under a review. In case of Messrs Ahmed Food Industries referred (supra) the power of review was considered in its true perspective, the relevant portion is reproduced herein below:--- "The power of review is not a matter of mere proceuure but it is a question of jurisdiction which cannot be exercised unless it has been expressly conferred upon a Tribunal. As observed in the case of State v. Ziaur Rehman PLD 1973 SC 49 the jurisdiction is a right to adjudicate concerning a particular subject matter in a given case as also the authority to exercise in a particularly manner the judicial power vested in the Court. Thus a right of review like an appeal is substantive right and it is not available unless the statue confers that right upon the Court or the tribunal, as the case may be. My learned brother had referred to a case of Shahbaz v. The Crown PLD 1956 FC 46 whereby it was laid down that with regard to the power of a Government to recall an order of remission under section 401, Cr.P.C., the existence of such power was necessary in the case of all authorities empower to pass orders under statute or regulations and that was the apparent reason why in order to give finality to judicial orders provisions greatly restricting the use of this power had to be introduced in the Civil and Criminal Procedure Code, and wherever there was no such restriction imposed on the Government, there was no reason to deny them the power to correct even the errors of judgment; and further this power of correction was necessary for the proper discharge of their functions. Thus authority is clearly distinguishable as this refers to the powers of the Government not a Tribunal which performs judicial or quasi judicial functions. Apart from this, my learned brother was dealing with a case of setting aside an ex parte order of eviction on an application made by the party against whom that order was passed. So it cannot be said that the matter was really in respect of the exercise of the power of review. There exists a clear distinction between the power of review and the recalling of an order which was passed ex parte. A similar question has arisen in the case of Muhammad Aslam v. Khurshid Begum PLD 1972 Lah. 603 and this was referred to the Full Bench. It was ruled that an ex parte order passed by a Rent Controller under the West Pakistan Urban Rent Restriction, Ordinance could be recalled by him. One of the reason given was that a perusal of the Ordinance would show that there was no provision in it anywhere for dismissing the matter in default or to proceed ex parte and if, therefore, any such a recourse was adopted by the Rent Controller, it was obvious that he adopted it by virtue of the inherent power vested in him to choose any procedure he liked and once he had chosen such a procedure, then to carry the matter to its logical end, he must retain the power to recall an order setting aside orders passed ex parte or in default. In the same case a distinction was drawn between an ex parte order and filing of an application for review or setting aside an ex parte judgment itself on the other hand. This distinction had been elaborated in the following observations:--- ' A distinction is to be maintained (a) in filing an application for claiming a rehearing of a case, ex parte decided on the one hand, and (b) filing an application for review of setting aside the ex parte judgment itself on the other hand. The points of distinction are that (i) in the former type of proceedings the defendant petitioner claims a rehearing on the ground (to put it broadly) that he was prevented by some sufficient cause from appearing on the relevant date of hearing and taking part in the proceedings of the case, while in the latter types of cases, he challenges the ex parte decree itself on its Own merits including the errors of procedure in the trial of the case (ii). In the former case, the merits of the ex parte decision or judgment are not to be taken into consideration, see Firm of Ghumanmal Khatoomal v. Secretary of State for India and another AIR 1926 Sindh 249. (iii). The latter types of cases partake, some of the character of a review while the applications for claiming a rehearing on the ground of earlier absence due to some sufficient causes are not in the nature of a review."
7. In the above case several authorities were considered. There are numerous other authorities holding the view that the power of review is not a matter of mere procedure but it is a substantive right and cannot be invoked unless it is available under the statute. In this connection reference may be made to the case of M.Y. Siddik v. Bawaqar Co. Ltd. PLD 1968 Kar. 231. It was a case under the Companies Law. There are two authorities of the Supreme Court:--
(1) Mst. Zainab Khatoon v. Mian Ghulam Shabbir and others PLD 1965 SC 55 and (2) Hussain Bux v.
8. Settlement Commissioner PLD 1971 SC 1.
9. Wherein it was clearly laid down that the right to claim the review of any decision of a Court of law like the right of appeal is a substantive right and not a matter of mere procedure and review is not available unless it has been conferred by law. In two other Lahore cases, Mst. Maqsoodan Bibi v.
10. Mst. Bano PLD 1965 Lah. 183 and Shaikh Rashid Ahmad v. Settlement Commissioner PLD 1969 Lah.
11. 894 the same view was expressed. The first case was under the Guardians and Wards Act and the other was under the Displaced Persons (Compensation and Rehabilitation) Act.
12. In any view of the matter under the Ordinance, 1969 and subsequent Ordinance, 2002 the power of review is not available to the aggrieved party. In the circumstances, there is escape from the conclusion that the power of review was not available to the Labour Court. The question of the reinstatement of the appellant and the subsequent events thereof were fully considered in the impugned judgment which could not be reopened or reviewed in the present proceedings therefore, review application is not maintainable in law and is accordingly dismissed.