1. ' The petitioner seeks to challenge the order of Labour Court No, VI, Hyderabad dated 22nd August, 1978 and prays that the impugned order be declared as ineffective, null and void on the ground that the learned Labour Court acted without jurisdiction and without lawful authority in directing re-instatement of respondent 2 with back benefits from 23rd May, 1974.
2. ' The facts leading to the filing of the petition are as under ;- ' Respondent 2 who was working as head jobber with the petitioner was granted one month's leave with pay expiring on 22nd May, 1974. Just one day before the expiry of the leave, that is, on 21st May, 1974 the petitioner received by post an application for extension of leave for one month upto 17th June, 1974 and on the same day the petitioner sent a reply to respondent No, 2 to the effect that leave could not be granted, and that he should produce medical certificate in support of his application. It is admitted position that the reply made by the petitioner could not be served on respondent 2 because of incorrect address which, according to the petitioner, was a typographical mistake.
3. ' Respondent 2 made yet another application dated 17th June, 1974 which received by the petitioner on 24th June, 1974 for further extension of one month's leave from 18th June, 1974 on the ground that he was still under treatment for accident. The petitioner replied, vide letter dated 20th August, 1974 requiring respondent 2 to produce medical certificate regarding accident and sickness within four days. Respondent 2 on 15th July, 1974 sent a medical certificate with his application dated 14th July, 1974 enclosing therewith a copy of the order of the High Court of Sind and Baluchistan granting him bail before arrest.
4. ' It is the case of the petitioner that even on that day respondent 2 did not himself come but sent the application and certificates through one Muhammad Alam. The Medical certificate submitted by respondent 2 was of a private Doctor and showed that respondent 2 who had been examined by the Doctor on 17th May, 1974 had been diagnosed to be a case of pneumonia.
5. ' In the meantime, before the application for medical certificate had been received by the petitioner a charge-sheet had been issued against respondent 2 by the petitioner which was published in newspapers. An enquiry was held against respondent 2 and a second show-cause notice was issued on 8th July, 1974 which was duly served and copies of the charge-sheet and statement of enquiry were supplied to him on his application dated 11th July, 1974. Respondent 2 was dismissed from service by the petitioner on 17th July, 1974.
6. ' Respondent 2 filed an application under section 25-A of the I.R.O. 1969 before the Junior Labour Court V, Hyderabad which was registered as No, 752/1974. The aforesaid application was allowed by order dated 30th October, 1974 directing the petitioner to reinstate respondent 2, but without back benefits.
7. ' Against the order of the learned Junior Labour Court dated the 30th October, 1974 the petitioner and respondent 2 both filed appeals before learned Labour Court No, VI Hyderabad (being Appeal No, 330/1979 by petitioner and No, 343/1974 by respondent 2). The Labour Court No, VI disposed of b oth the appeals by single order dated 23rd May, 1975 holding that the show-cause notice which had been sent to respondent 2, having been addressed incorrectly there was no presumption regarding service of the same. It was however held that the Management would be within its rights to hold fresh enquiry against him. It was further ordered that if Management failed to complete the enquiry within one month or the respondent 2 is exonerated in the enquiry he would be entitled to full back benefits due, according to law.
8. ' The petitioner in accordance with the aforesaid directions of the learned Labour Court No, VI held fresh enquiry. Charge-sheet was served on respondent 2 who appointed Mr. Mohsin Naqvi as his representative who cross-examined the witnesses on his behalf. His statement was recorded and his witnesses examined. The petitioner served respondent 2 with a show-cause notice alongwith copy of the report of the Enquiry Officer dated 18th June, 1975 to which he made reply in his letter dated 20th June, 1975. The respondent was dismissed from service with effect from 26th June, 1975 and against the said dismissal respondent 2 filed application (No, 1249/75) in the Junior Labour Court No, V. Hyderabad which was dismissed by order dated 15th September, 1975. Respondent 2 filed appeal against the aforesaid order being Appeal No, 266/195) in the Labour Court No, VI, Hyderabad which appeal was also dismissed by order dated 31st July, 1976. Respondent 2 filed Constitutional Petition (No, 213/1976) before this Court and by order dated 18th August, 1978 the case was remanded to the Labour Court with the direction to rehear the appeal and dispose of the same after duly considering the question of intimation of refusal of extension of leave being sent to the petitioner at wrong address. Accordingly, the case was remanded to Labour Court No, VI, Hyderabad and that Court allowed the appeal of respondent 2 directing that he be reinstated with full back benefits with effect from 23rd May, 1974. The instant petition has been filed against the aforesaid impugned order dated 22nd March, 1978.
9. On behalf of the petitioner Mr. Shaikh Abdul Aziz, the learned counsel for the petitioner, has raised the following contentions :-
(1) That due to amendment of the Labour Laws by Ordinance XXVI of 1975 any matter under section 25-A of the Industrial Relations Ordinance, 1969 pending before a Junior Labour Court immediately before the commencement of the Ordinance stood transferred, to Labour Court which therefore was no longer the appellate authority in such matters. It is, therefore, contended that on the date of remand, that is, on 18th August, 1978 due to the amendment of the law, the Labour Court No, VI, Hyderabad had no jurisdiction to rehear the appeal of respondent 2.
(2) That since the impugned decision is bad on the face of the record and further since it is based on misreading of evidence the writ, as prayed for, should be issued.
(3) That the impugned decision is bad since the concurrent findings of the Junior Labour Court and the Appellate Labour Court in favour of the petitioner should not have been set aside ; and finally.
(4) That back benefits should not have been allowed as the appeal had been allowed on technical grounds.
10. ' With regard to contention No,
1. Mr. Shaikh Abdul Aziz, the learned counsel for the petitioner has further elaborated that, in view of the changed position of the law, since jurisdiction had been taken away by the statute the High Court by remanding the matter could not go back on that jurisdiction. He relies on the decision in Syed Muhammad Kassim Hussain v. Mst. Aziz Fatma and another (1). In that decision there was the observation that the exercise of jurisdiction must be by legal sanction, and it cannot be conferred by a judgment of the High Court in revision if the jurisdiction was taken away by another statute. The observation was made while construing sections 5 and 20 of the West Pakistan Family Courts Act vis-a-vis section 448, Cr. P. C, the Act being procedural in nature was held also to affect the pending proceedings and the Magistrates were held to have lost jurisdiction under section 488, Cr. P. C. In respect of scheduled matters from the day the Family Court Act was enforced. In the instant case it is true that the Labour Laws (Amendment) Ordinance, 1975 did provide in section 3 thereof for transfer of pending cases and any matter under section 25-A of the Industrial Relations Ordinance, 1969 pending before a Junior Labour Court immediately before the commencement of the Ordinance stood transferred to the Labour {{FOOT NOTE}}
(1) 1971 P Cr. L J 720 {{FOOT NOTE}} ' Court. However, in section 4 of the aforesaid Ordinance it was provided that nothing in the Ordinance shall be deemed to require the transfre to the Labour Appellate Tribunal of any appeal from a decision of Junior Labour Court pending before a Labour Court immediately befeor the commencement of the Ordinance and every such appeal as provided by that section was to be heard and disposed of by the Labour Court as if the Ordinance had not come into force. The aforesaid provisions were re-enacted in the Labour Laws (Amendment) Act, 1976 and section 3 provided that any matter under section 25-A of the I.R.O., 1969 pending before a Junir Labour Court immediately before the 16th day of January, 1976 shall stand transferred to the Labour Court.
11. Section 4 which is with regard to savings, however, provides that nothing in the Act shall be deemed to require the transfer to the Labour Appellate Tribunal of any appeal from a decision of a Junior Labour Court pending before a Labour Court immediately before the commencement of the Act and that every such appeal shall be heard and disposed of by the Labour Court as if the Act had not come into force. The appeal which was pending before the coming into effect of the Ordinance of 1975 was saved by section and could have been decided even after the coming into force of the aforesaid Ordinance on 23rd December, 1975. Since, therefore, the decision of the appeal was in the jurisdiction of the Labour Court, on remand by the High Court, the aforesaid Court had the jurisdiction to pass the impugned order. Mr. Ali Amjad, the learned counsel for the respondent 2, has pointed out that the remand order was not challenged and had become final and binding. He has relied upon the decision of the Supreme Court in Abrar Hussain v. Government of Pakistan and another reported in PLD 1976 SC 315 inter alia on the point that writs should not issue from one Judge to another of the same Court. In any case, as already observed, since the Labour Court, even after the amendment of the Labour Laws had jurisdiction to decide pending appeals, and the High Court remanded the matter back to the same Court for deciding the appeal after taking into consideration the matters dealt with in the judgment the remand and the impugned decision were under section 4 of the Labour Laws (Amendment) Act, 1976.
12. With regard to the contention about back benefits in the impugned order, in Divisional N.W.R., Lahore v. Muhammad Sharif reported in PLD 1963 S. C. 340 it was observed that wages under the Payment of Wages Act (IV) 1936, included potential wages, and since the main purpose of the Wages Act is to compel employers to make prompt and full payment of wages to certain class of persons employed by them and the employee being ready and willing to render service, but employer not giving employee opportunity to render such service, he was entitled to wages for period of suspension. The impugned order in appeal makes it clear that the domestic enquiry was based on illegal charge-sheet, and the allegations made therein did not amount to misconduct and as such, the dismissal of the appellant on the basis of the said charge-sheet was illegal. The impugned order is not, therefore, based on technical illegalities but goes to the very root of the matter, after discussing the facts of the case on merits.
13. For the reasons given above, it is apparent that no illegality in the impugned order has been made put and, therefore, there is no reason whatsoever to interfere with it in exercise of discretionary jurisdiction by this Court.
14. ' The petition is accordingly dismissed, but in view of the legal points involved, no order is being passed with regard to costs.