' MUHAMMAD ATHAR SAEED J.--- This appeal has been filed against the judgment of the learned single Judge, dated 6-3-2009 in C.P. No,S-24 of 2003 whereby the learned Single Judge had dismissed the Constitutional Petition filed by the present appellant against the permission granted by the learned Labour Court to the respondents, who were the employer of the appellant, under section 47(2), to dismiss the present appellant from service.
2. We have heard Mr. M.A.K. Azmati, learned counsel for the appellant, Mr. Ch. Muhammad Ashraf Khan, learned counsel for the respondents and Mr. Saifullah, learned A.A.-G. Sindh.
3. At the very outset of the case the learned counsel for the respondents challenged the maintainability of the appeal as according to him the appeal was not maintainable under the proviso to subsection (2) of section 3 of the Law Reforms Ordinance 1972, which provide that if the order, which has been challenged in a Constitutional Petition before the learned single Judge arises out of any proceeding in which the law applicable provides for at least one appeal or one revision or one review, an Intra-Court appeal shall not lie or be competent and a Civil Petition for leave to appeal against the above judgment of the single Judge would have to be filed before the Honourable Supreme Court of Pakistan.
4. The learned counsel took us through the provisions of section 47 of I.R.O. 1969 to point out that the grant or refusal of permission arises out of the proceedings pending before the learned Labour Court and then drew our attention to section 38(3)(a) of I.R.O 1969, which provided that the Labour Appellate Tribunal may on its own motion call for the record of any case of proceeding in which the Labour Court has passed an order for the purpose of satisfying itself as to the correctness, legality or propriety of such order and may pass such order thereon as deemed appropriate by the Appellate Tribunal. The learned counsel submitted that although a suo motu revision is provided by this section but this provision is in pari materia with section 115 of the Civil Procedure Code in which such-like powers have been vested in the High Court and the District Judge and such powers are almost invariably exercised on revision applications being moved by the aggrieved parties.
5. As far as the exercise of the powers under section 38(3)(a) of the I.R.O., 1969 is concerned, learned counsel pointed out that section 48(3) of I.R.O., 2002 (which is pari materia with section 38(3)(a) of the I.R.O., 1969 has been the subject of adjudication before this Court and the honourable Supreme Court and this Court in its judgment in the case of Pearl Continental Hotel v.
Muhammad Yaseen reported in 2006 PLC 269 as held that the application can be filed under this section for revision by the parties and such application can be considered as a revision application for the purposes of passing an order under section 48(3) of I.R.O., 2002. He submitted that the respondents had filed a Civil Petition for leave to appeal in this case before the honourable Supreme Court and the honourable Supreme Court in the same titled case reported in SBLR 2006 SC 111 has upheld the order of this Court. He further submitted that as far as provisions of section 115, C.P.C. Are concerned, it is now settled law that the Court always decides such revision on applications made by the parties. He then relied on an unreported judgment of the honourable Supreme court of Pakistan, dated 18-11-2007 in Civil Appeal No,365 of 1993 where the honourable Supreme Court in identical matters held that where either one right of appeal or revision is available to any of the parties (irrespective of whether it is the appellant or the respondent) and if a constitutional petition is filed against such an order and disposed off by a Single Judge, then the remedy against the order in the constitutional petition will lie not by way of Intra-Court appeal but by filing a Civil Petition for leave to appeal before the honourable Supreme Court.
6. The contention of the learned counsel for the respondents has been strongly opposed by the learned counsel for the appellant who also read out the provisions of section 47(2) of I.R.O., 1969 and pointed out that all that this section provided was whether permission can be allowed by a Labour Court to an employer during the pendency of an industrial dispute to the employer to dismiss a worker or not and therefore, it will not be covered by the suo motu revision provided under section 38(3)(a) of the I.R.O., 1969, and the only remedy which was available to the present appellant was not to file a revision application but to invoke the constitutional jurisdiction of this Court which was done and since no remedy was available against the impugned permission granted under section 47(2), therefore, he was not hit by the proviso to subsection (2) of section 3 of the Law Reforms Ordinance, 1972 and did not fall within the ambit of the judgment of the honourable Supreme Court quoted supra. He was therefore, competent to file an Intra-Court appeal, which was the remedy available to him. In this connection he relied on a judgment of this court in the case of Smith Kline and French of Pakistan Ltd. v. A. Rashid Pai and another reported in 1987 PLC 400.
7. To further substantiate his point that this Court in its jurisdiction to hear Intra-Court appeals had heard an appeal on identical question, he also relied on a judgment of the honourable Supreme Court in the case of Muhammad Akram and another v. Second Sindh Labour Court reported in 1987 SCM R 31 to again point out that not only a D.B. Of this Court had heard an Intra-Court appeal on identical point but the Hon'ble Supreme Court had also not considered the maintainability of the case vis-a-vis proviso to subsection (2) of section 3 of the Law Reforms Ordinance and had heard and disposed off the case on merits.
8. We have examined the case in the light of the arguments of the learned counsel and have carefully perused the record of the case and the judgments relied on by the learned counsel. We have seen that the learned counsel for the appellant has restricted his arguments to the contention that the permission granted under section 47(2) is not an order and therefore, the remedy of revision under section 38(3)(a) was not available to him as it is only in respect of an "order". He has however, not challenged the contention of the learned counsel for the respondents that section 38(3)(a) also provides power to the Tribunal to consider the application for the revision of an order filed by any of the parties. We have also examined the cases relied on by the learned counsel for the appellant and we are of the opinion that in those cases no objection was raised from the respondents side that the appeal was not maintainable and since the question was not raised before the Court, therefore, the Court had not deliberated and adjudicated on it. We have now only to consider the arguments of the learned counsel that the permission granted under section 47(2) is not an order and therefore, the remedy of provision is not available to him.
9. Before we do so we may also state the factual position of the case which is that after permission under section 47(2) was granted to the respondents, they dismissed the present appellant from service and C against such dismissal a grievance petition has been filed by the present appellant before the Labour Court which is pending before the Labour Court.
10. Upon a perusal of the judgment of the honourable Supreme Court quoted above we have seen that the honourable Supreme Court has very exhaustively discussed the meaning of the word "proceedings" as appearing in subsection (2) of section 3 of the Law Reforms Ordinance and it will be relevant to reproduce the extract of the deliberation of the honourable Supreme Court of Pakistan on this point:- "The crucial question for determination is as to whether the intra-Court appeal was barred inasmuch as in the proceedings arising out of the Ordinance with respect to the registration of a trade union, an appeal was competent against the original order. The answer to this question is in the affirmative, inasmuch as section 8(3) of the Ordinance clearly provides right or appeal to the Labour Court. It will be convenient to reproduce the provisions of subsection (3) of section 8, which reads as under:- "Section 8. --(1)
(3). In case the application has been rejected or the Registrar has delayed disposal of the application beyond the period of fifteen days provided in subsection (1) or has not issued a certificate of registration within a period of three days as provided in subsection (2), as the case may be, the trade union may appeal to the Labour Court who for reasons to be stated in its judgment, may pass an order directing the Registrar to register the trade union and to issue a certificate of registration or may dismiss the appeal."
' It is thus clear that in the proceedings arising out of certain provisions of the Ordinance governing the registration of a trade union, under section 8 of the Ordinance appeal to the Labour Court is maintainable. Similar question was dealt with by this Court in the judgment reported as Mst. Karim Bibi and others v. Hussain Bukhsh and another PLD 1984 SC 344 wherein the proceeding arose out of the Displaced Persons (Compensation and Rehabilitation) Act it has been laid down that since under the statute an appeal was maintainable against the original order, therefore, intra-Court appeal was barred. This Court also touched and laid down what is meant by the term "proceedings". It is advantageous to quote the relevant observations hereunder: "The test laid down by the Legislature in the proviso is that if the law applicable to the proceedings from which the Constitutional Petition arises provides for at least one appeal against the original order, then no appeal would be competent from the order of a Single Judge in the constitutional jurisdiction to a bench of two or more Judged of the High Court. The crucial words are the "Original Order". It is clear from the wording of the proviso that the requirement of the availability of an appeal in the law applicable is not in relation to the impugned order in the constitutional petition, which may be order passed by the lowest officer or authority in the hierarchy or an order passed by the higher authorities in appeal, revision or review, if any, provided in the relevant statute.
Therefore, the relevant order may not necessarily be the one which is under challenge by the test is whether the original order passed in the proceedings is subject to an appeal under the relevant law, irrespective of the fact whether the remedy of appeal as provided was availed of or not.
Apparently the meaning of the expression "original order" is the order with which the proceedings under the relevant statute commenced. The word "proceedings" has been used in different enactments and has been subject to judicial interpretation in a number of cases wherein it has received either restricted or wide meaning according to the text and subject-matter of the particular statute.
' The following definition of the term "proceedings" from the book "Words and Phrases" has been quoted with approval:--- "The term 'proceeding' is a very comprehensive term, and, generally speaking, means a prescribed course of action for enforcing a legal right, and hence it necessarily embraces the requisite steps by which judicial action is invoked. A `proceeding' would include every step taken towards the further progress of a cause in Court or before a Tribunal, where it may be pending. It is the step towards the objective to be achieved, say for instance the judgment in a pending suit. The proceeding commences with the first step by which the machinery of the law is put into motion in order to take cognizance of the case. It is indeed a comprehensive expression and includes all possible steps in the action under the law, from its commencement to the execution of the judgment."
' It is thus evident that the proceedings in this case commenced when the appellant made an application for its registration as a Workers Union."
11. From a perusal of the above extract it is seen that the honourable Supreme Court has given a very broad meaning to the word "proceedings" and on the basis of this discussion we are of the considered opinion that a decision given under section 47(2) of the I.R.O., 1969 falls within the term "proceedings" and therefore, such a decision falls within the ambit of section 38(3)(a) of I.R.O., 1969 and the remedy of a revision is available to either of the parties, who are dissatisfied or aggrieved by the decision under section 47(2). Even otherwise after the implementation of the decision under section 47(2) a remedy of filing a grievance petition before the Labour Court is/was available to the appellant and has also been exercised by him.
12. We are therefore, of the considered opinion that this Intra-Court appeal is not maintainable in the light of the judgment of the honourable Supreme Court quoted supra and therefore, we have no option but to dismiss this appeal in limine as not maintainable.