' AJMAL MIAN, J.-This petition is directed against the order dated 31st May, 1975 passed by respondent No, 2 i.e, N.1.R.C.
2. The brief facts leading to the filing of this case are that respondent No, 1 was working as a driver with the petitioner. He was charge-sheeted on 8th August, 1974 for the following charges :- "Mr. Muhammad Kutty, EMP No, 3701-7, ' M. T. Driver, ' Transport Department ' Charge-sheet.-On 27th April, 1974 the Jeep No, KAE 5295 was used by Mr. Abdul Haleem Siddiqui, XEN (Sub Stu. Maint) upto 21-00 hours as shown from the duty slips. Thereafter you used the Jeep unauthorisedly instead of parking at Transport yard. On 28th July, 1974 at 02-00 hours we received a telephone message at our Movement Control Office, Elander Road about the accident of above noted Jeep with an electric pole at Clifton and your detention by Police authorities. On receiving these informations our M. T. Supervisor Mr. Abdullah went to Clifton Police Station. The Police Inspector on duty disclosed that you were found lying in the above noted Jeep badly intoxicated and were arrested for driving in state of drunkardness and causing accident. You were later on bailed out by our M. T. Supervisor. Our Jeep under reference has susained heavy loss due to accident.
' Your this offence comes under gross misconduct as para. 14 (1) of KESC's Rules and condition of service and require disciplinary action. You are therefore, directed to submit your explanation within 7 days to the above charge-sheet otherwise disciplinary action would be taken against you.
Sd/- Controller of. Transport."
It is the case of respondent No, 1 that the Enquiry Officer found that the charge of driving the car in the drunkenness was not proved and that it was held by the Enquiry Officer that the car involved in the accident was misused by him. In support of the above contention, Mr. Sabihuddi has invited our attention to the enquiry report at page 31. It seems that respondent No, 1 was dismissed on 23rd November, 1974 by the Managing Director on the receipt of the enquiry report from the Enquiry Officer.
3. Respondent No, 1 being aggrieved by the above order filed a case before the Labour Court, according to the learned counsel for the petitioner, respondent No, 2 raised the plea to the effect that the Labour Court had no jurisdiction, which objection prevailed with the Labour Court and, as a result thereof respondent No, l's above application was dismissed. After that respondent No, 1 filed an application before respondent No, 2, which was allowed and it was ordered that respondent No, 1 be re-instated with back benefits. Fhe petitioner being aggrieved by the above order has filed the present petition.
4. In the original petition, no ground was raised as to the jurisdiction of the N. I. R. C., but after filing an amendment application, which was allowed by this Court, the petition was amended and a plea as to the jurisdiction of respondent No, 2 was raised. In the recent cases. Namely, C. As. Nos. K- 85/79 to K-88/79, in which the present petitioner was the appellant, our Supreme Court has held by a judgment dated 1st December, 1981 that respondent No, 2 (i.e, N. I. R. C) has no jurisdiction to adjudicate upon an individual grievance. Before this judgment of the Supreme Court the majority view of a full bench of this Court in the case namely, Pakistan Burma Shell Ltd. v. Central Labour Commissioner and 5 others (1), and a D B. In the case of Pakistan Electrical and Mechanical Construction Ltd. v. Chairman, National Industrial Relations Commission (2), had taken the same view. Because of the above legal position Mr. Sabihuddin, learned counsel for respondent No, 1 fairly conceded that the order of respondent No, 2 is without jurisdiction.
' However, his contention is that this Court is not obliged to grant the present petition in view of the peculiar facts of the instant case, as granting of the petition will foster injustice. In support of his above contention, he has referred to the case of Ghulam Mohiyuddin v. Chief Settlement Commissioner (Pak.), Lahore and another (3), the case of Nawab Syed Raunaq All v. Chief Settlement Commissioner and others (4), and the case of Wali Muhammad and others v. Sakhi Muhammad and others (5), In the above cases, it was inter alia held that the Court may decline to exercise the writ jurisdiction when it will result into miscarriage of justice instead of fostering justice.
5. It has been vehemently urged by Mr. Sabihuddin that from the record of the petition, it is evident that the order of termination of respondent No, l's service cannot be sustained, inasmuch as the Enquiry Officer in his enquiry report held that the charge that respondent No, I was driving the vehicle involved in the accident in drunkenness was not conclusively proved and that only finding which was recorded by the Enquiry Officer against respondent No, 1 was that the vehicle was misused. On the contrary in the reply dated April, 1975 filed before respondent No, 2,
(1) PLD 1982 Kar. (2) NLR 1981 Labour 200
(3) PLD 1964 SC 829 (4) P L, D 1973 SC 236
(5) PLD 1974 SC 106 ' the Managing Director of the petitioner in sub-para. (2) had averred that respondent No, 1 was in drunken state at the time of the accident. According to the learned counsel for respondent No, I, this clearly shows mala fides on the part of the Managing Director of the petitioner and the fact that he has not applied his mind to the enquiry report.
' On the basis of the above facts, it has been further argued by him that petition will be allowed, it will in fact perpetuate an illegal termination order of respondent No, l's service, and therefore, this Court should decline to exercise the writ jurisdiction on the basis of the principles enunciated by the Supreme Court in the cases referred to hereinabove.
6. In our view, this Court cannot convert itself into a Court of enquiry for the purposes of holding, whether the termination order could] have been sustained on the basis evidence brought on record by the petitioner company as this is the function of the first Court of competent! Jurisdiction.
The question, as to whether the order of termination is B legal or illegel, is to be determined on the basis of the perusal of the evidence produced before the Enquiry Officer, the Enquiry Report and the other connected documents. In our view, we cannot do this while exercising writ jurisdiction and, therefore, we cannot hold that prima facie the order of termination of respondent No, l's services was illegal or improper. The rulings cited by the learned counsel for respondent No, 1 has no application to the instant case.
' It seems that the petitioner had raised an objection as the jurisdiction of the Labour Court, which resulted into dismissal of respondent No, l's application. It further seems that the petitioner in their reply filed before respondent No, 2 had not raised any objection to its jurisdiction. This might have constituted an estoppel, but since there were conflicting judgments of the High Courts, as to the scope of jurisdiction of respondent No, 2 in respect of individual grievance, which conflict has been resolved by the Supreme Court through the aforesaid judgment. We cannot hold that the petitioner submitted to the jurisdiction of respondent No, 2 knowing that it had no jurisdiction.
7. Since the judgment given by the Supreme Court referred to hereinabove is binding on us, we have to declare that the impugned order of respondent No, 2 is without lawful authority and of no legal effect.
8. The petition is, therefore, allowed, but there will be no order as to costs. Mr. Sabihuddin requests that this Court may make an observation that respondent No, 1 is free to file a complaint under section 6 of the Essential Services Act before the Deputy Commissioner for institution of criminal proceedings against the petitioner. In our view, it is not necessary for us to make any observation as respondent No, 1 is free to invoke the jurisdiction of any competent Court of law in accordance with the law.