Through this constitutional petition, the petitioner has challenged the judgment dated 8.10.2013 passed by Punjab Labour Appellate Tribunal-II, Multan.
2. The facts of the case are that the Respondent No. 3 was appointed as Assistant Lineman in WAPDA and was subsequently promoted as Lineman-II. Respondent No. 3 aggrieved by the imposition of major penalty of compulsory retirement initially filed a departmental appeal which was not responded to and, therefore, petitioner filed an appeal No. 921(L)/C.S/2000 before Federal Service Tribunal which was subsequently withdrawn on 26.10.2001. The petitioner on 14.2.2007 filed a grievance petition before Punjab Labour court No-8, Bahawalpur against the imposition of major penalty of compulsory retirement. The Punjab Labour Court No-8 dismissed the grievance petition filed by the petitioner through judgment dated 9.4.2010. Aggrieved by the judgment passed by Punjab Labour Court No-8/Respondent No. 2 an appeal was filed before Punjab Labour Appellate Tribunal No. II and through impugned judgment the grievance petition filed by the petitioner was accepted. Hence, this writ petition.
3. The learned counsel for the petitioner argued that Punjab Labour Appellate Tribunal No. II/Respondent No. 1 while passing the impugned judgment did not consider the fact that the grievance petition was filed by the petitioner almost after seven years delay. It is further argued that the impugned judgment dated 8.10.2013 is based on surmises and conjectures; Punjab Labour Appellate Tribunal No II while passing the impugned judgment completely disregarded the fact that being a Special Tribunal created under the special law it does not possess the inherent powers as are available to a civil Court and since the grievance petition filed by the petitioner was barred by time Respondent No. 1/Punjab Labour Appellate Tribunal No. II erred in law while accepting the grievance petition filed in the year 2007. It is further argued that grievance petition could not have been accepted as the petitioner after being imposed a major penalty of compulsory retirement has accepted his benefits as a full and final settlement.
4. On the other hand, the learned counsel appearing on behalf of Respondent No. 3 has vehemently opposed the arguments advanced by learned counsel for the petitioner and argued that since the order dated 22.4.2000 imposing penalty of compulsory retirement upon the petitioner was void and no a limitation runs against the void order.
5. I have considered the arguments advanced by the learned counsel for the parties and have also gone through the record.
6. Section 46 of the Industrial Relations Ordinance, 2002 reads as under:-- "Redress of individual grievances.--(1) A worker may bring his grievance in respect of any law or any award or settlement for the time being in force to the notice of his employer in writing, either himself or through his Shop Steward or collective bargaining agent, within one month of the day of which cause of such grievance arises.
(2) Where a worker brings his grievance to the notice of an employer himself or through his Shop Steward or collective bargaining agent, the employers shall, within fifteen days of the grievance being brought to his notice, communicate his decision in writing to the worker.
(3) If an employer fails to communicate a decision within the period specified in sub-section (2) or, if a worker is dissatisfied with such decision, the worker or Shop Steward may take the matter to his collective bargaining agent or the Labour Court, as the case may be, and where the matter is taken to the Labour. Court, it shall give a decision within seven days from the date of the matter being brought before it as if such matter were an industrial dispute. Provided that a worker who desires to take the matter to the Labour Court, he shall do so within a period of two months from the date of communication of the employer or, as the case may be, from the expiry of the period specified in sub-section (2).
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7. The perusal of this section provides that a workman may bring his grievance to the notice of his employer in writing either himself or through its Shop Steward or collective bargaining agent within one month of the day on which cause of such grievance arises; the employer in case the grievance is brought to his notice is under an obligation to communicate his decision, to the notice of the employee within a period of 15 days; if an employer fails to communicate his decision within the period specified or if a worker is dis-satisfied with such decision the worker may take the matter to the Labour Court but he shall do so within, a period of two months from the date of A communication of the decision by the employer or as the case may be from the expiry of the period specified in sub-section (2) of Section 46 of the Industrial Relations Ordinance, 2002.
8. There is no, denial to the fact that initially Respondent No. 3 filed the service appeal before Federal Service Tribunal which was withdrawn on 26.10.2001 and thereafter he remained silent for about five years; after a long slumber of these five years a grievance notice was served on 6.11.2006 and a grievance petition was filed on 14.2.2007. It is not denied by the learned counsel for Respondent No. 3 that respondent has received all his benefits from the petitioner.
9. It is an undeniable fact that jurisdiction of Labour Court/Tribunal created under the special statute is dependent upon the nature of the claim, person who files the chum, time during which it has been filed and the manner in which such claim has to be filed. These are all jurisdictional facts and assessm ent of these facts determines the jurisdiction of Labour Court as well as Labour Appellate Tribunal. Jurisdiction can be (exercised by Labour Court/Tribunal when all the jurisdictional facts exist together.
10. It has been held in a judgment reported in NLR 1982 Labour 179 (Pakistan Mineral Development Corporation versus Amir Khan) that the Labour Court/Tribunal would have no jurisdiction to entertain a case where all the jurisdictional facts are not existing together. It has been specifically observed by the Division Bench that if a case has not been filed within prescribed time the Labour Court/Tribunal would have no jurisdiction to entertain such case.
11. In my opinion, Labour Court or Labour Appellate Tribunal are under an obligation to act within the scope of Industrial Relations Ordinance, 2002 and cannot exercise jurisdiction as a civil Court; as soon as Labour Court or Labour Appellate Tribunal steps out of the four corners of a special law order/judgment passed would be result of defective or excessive exercise of jurisdiction. This Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 would always rectify the illegality and violation of law and undo the harm caused by the Court/Tribunal. It is apparent that the order passed by Respondent No. 1 is patently in violation of ,express provisions of law i.e. Section 46 of the Industrial Relations Ordinance, 2002. It is not right to say that the Tribunal which is in vested with the jurisdiction to decide a particular matter has the jurisdiction to decide it rightly or wrongly because the condition for the grant of Jurisdiction is that it should decide the matter in accordance with law when the Tribunal goes wrong in law, it goes outside the jurisdiction conferred on it.
12. In my view, a petition to the labour Court is dependent upon a valid grievance notice. Before deciding the grievance petition/labour appeal, it is incumbent upon the labour Court as well as labour tribunal as to whether the grievance notice has been served within the prescribed period of limitation as service of notice precedes invocation of jurisdiction of labour Court. The grievance notice sent after an inordinate delay of more than 5 years instead of a prescribed period of 15 days in Section 46 of the Industrial Relations Ordinance, 2002 is not a valid grievance notice' on the basis of which grievance petition could have been filed; and in case the grievance notice has not been served within the period stipulated under the provisions of a special law i.e. Industrial Relations Ordinance, 2002, the most significant of the jurisdictional fact would be missing while filing a grievance petition and non sending of a grievance notice is a defect which goes to the root of the case.
13. At this stage, it would not be out of place to mention here that Respondent No. 3 after imposition of major penalty of compulsory retirement had received of his benefits and was also receiving his pension from the petitioner. After receiving all his emoluments in full and final settlement Respondent No. 3 had also withdrawn his service appeal pending before Federal Service Tribunal on 26.10.2001. The accumulative effect of these factors would be that Respondent No. 3 was also estopped from claiming his reinstatement by filing a grievance petition in the year 2007 against the order imposing the penalty of compulsory retirement dated 22.4.2000. In this regard reference is made to the judgment of Hon'ble Supreme Court of Pakistan reported in 2013 PLC 219 (Independent Newspaper Corporation (Private) Ltd. Versus Punjab Labour Appellate Tribunal Lahore and others).
14. For what has been discussed above, this Court is of the considered opinion that Punjab Labour Appellate Tribunal No. II while passing the impugned order dated 8.10.2013 erred in law as it stepped out of four corners of Industrial Relations Ordinance, 2002. Resultantly, this petition is allowed. The impugned order dated 8.10.2013 is set aside.