1. ' MOHAMMAD SHAFI SIDDIQUI, J.--- In this suit No,739 of 2016 plaintiffs have challenged the show- cause notices issued to them individually. While the suit was pending, plaintiffs Nos.1 and 2 also received notices of personal hearing as the authority claimed to have dispensed with the holding of an inquiry in relation to charges levelled against them as they claimed to have sufficient evidence.
2. ' Mr. Muhammad Ali Lakhani, learned counsel for the plaintiffs, submitted that he has filed five fresh suits bearing Nos.808 to 812 of 2016 on fresh cause of action of issuing notice of hearing after dispensing the inquiry as mentioned above. They also claimed to have challenged the vires of Regulations, 1985. He submitted that since cause to challenge such notices and Regulations accrued subsequently, he may be permitted to withdraw the earlier suit as subsequent suit is comprehensive and include all reliefs including those claimed in earlier suit. He claimed that subsequent suits based on facts of each individuals so that it may not overlap facts of others and be proceeded accordingly. Hence permission was sought to withdraw earlier suit. He added that such defect could only be cured if plaintiffs are allowed to withdraw earlier suit with permission to proceed with their subsequent individual suits.
3. ' The plaintiffs have filed the earlier suit substantially challenging the show-cause notices dated 22.03.2016 being violative of Rule 78(1) of Pakistan International Airlines Corporation Employees (Service and Discipline) Regulations (hereinafter referred to as PIAC Regulations) and against fundamental rights of the plaintiffs as guaranteed under the Constitution. They have further sought declaration to the effect that they have not committed any misconduct in pursuance of the PIAC Regulations of the defendant. In this suit ad-interim/injunctive order was passed in terms whereof the plaintiffs were directed to appear in pursuance of the notices of personal hearing and it was clarified that any decision in the absence of inquiry as required in terms of Rule 79(2) of PIAC Regulations be kept in abeyance.
4. ' Now, these plaintiffs have filed their individual suits with a fresh cause that on 28.03.2016 two of the plaintiffs i,e, Safdar Anjum and Nasrullah Khan, plaintiffs "Nos.1 and 2 in'tarlier suit, were issued a personal hearing notice wherein it is alleged that owing to sufficient evidence available to substantiate the charges leveled against them, the competent authority of the defendant has dispensed with the need to conduct a formal inquiry.
5. ' From perusal of the pleadings in both the suits,' the plaintiffs Nos.1 and 2 intend to exercise their right of filing yet another suit based on fresh cause of action whereby the notice of personal hearing was issued. There are some additional causes available to plaintiffs to initiate subsequent proceedings in the shape of suits now placed before me. Since the object is implementation of Regulations 78 and 79 of PIAC Regulations, the plaintiffs seek outright withdrawal of earlier suit subject to the condition that appropriate proceedings be initiated and the injunctive order be passed in subsequent suits. Mr. Salman Talibuddin, learned counsel for the defendant, though formally claimed copy of plaint, pleadings, annexures and the applications, however on realization that only Regulations 78 and 79 of PIAC Rules are to be interpreted being question of law, he raised no grievance if the application -in the subsequent suits are disposed of after hearing the parties and in consideration of the material placed on record of this earlier Suit No,739/2016 the defendant as a reply/counter-affidavit.
6. ' Hence, by consent the Suit bearing No,739 of 2016 is dismissed as withdrawn with the observation that their independent cases now placed, before me shall be dealt with accordingly. The injunction applications filed in the fresh suits were thus argued by the learned counsel on the strength of material available on record of Suit No,739 of 2016 and pleadings of subsequent suits.
7. ' As I have observed earlier the plaintiffs are seeking the implementation of Regulations 78 and 79 of the PIAC Regulations, it is plaintiffs' case, as argued by learned counsel for the plaintiffs, that under no stretch of imagination such inquiry could be dispensed with even if they (defendants) have sufficient evidence or material before them which they consider and have reasons to believe that it is sufficient to dispense with the holding of inquiry. Learned counsel for the plaintiffs submitted that it shall only be done once the plaintiffs are provided with such evidence/material so that they may have a right to confront/challenge such material and assertion of the defendants.
8. He submitted that in watsapp messages or recorded speech/conversation as heavily relied upon could not constitute sufficient material for dispensing with the necessity of holding an inquiry in relation to charges leveled against the plaintiffs. Learned counsel submitted that the notice of personal hearing was given only to plaintiffs Safdar Anjum and Nasrullah Khan who have filed Suits Nos.808 and 809 of 2016. In rest of three cases it is claimed that no further proceedings have been initiated pursuant to the reply to the show-cause notices.
9. ' He added that controversial questions of facts could only be resolved after full inquiry and adopting the process. Mere issuance of show-cause notice and hearing is not sufficient. He submitted that Appellate Bench of Federal Shariat Court has declared all provisions of law denying an inquiry to be ultra vires.
10. ' As against this, learned counsel for defendant has attempted to demonstrate by playing the alleged audio recording of the plaintiffs that it constitutes sufficient material to instigate other employees of PIA to get involved in the strike/stoppage of flights operation and routine work. He submitted that the audio statement incited and instigated the employees, which in the opinion of the competent authority i,e, Director HR Admin and Coordination, was sufficient to dispense with inquiry. Counsel further submitted that it is the judgment and wisdom of the officer concerned to dispense with the inquiry and no other modus operandi could then provide, an alternate mechanism in that regard otherwise entire mechanism of PIAC Regulations shall come to a halt.
11. Learned counsel submitted that the plaintiffs have every right to pursue their remedy in case the decision of the authority goes against them pursuant to the proceedings of show-cause notice and/or hearing notice. Counsel submitted that such appropriate remedy of appeal is available in terms of Regulation 86 of PIAC Regulations.
12. ' I have heard the learned counsel for the parties on injunction applications filed in the fresh suits pleadings and perused the material available on record of Suit No,739 of 2016 as agreed.
13. ' There are two regulations which require interpretation in relation to different situation. Regulation 78 relates to a disciplinary action and the procedure which is followed by an inquiry to be conducted by competent authority provided that if the accused makes admission of the allegations leveled against him/her, the requirement of initiating inquiry against him/her shall be dispensed with and the authority may on the basis of such admission pass such order as it may deem fit in the circumstances of the case.
14. ' In terms of Regulation 79 the competent authority is equipped with the tool of dispensing inquiry in certain cases which include:
(a) certain facts which were established in Court of law;
(b) where an employee has absconded or where it is for any other reason may impracticable to communicate with him/her;
(c) where the employee is caught in the course of commission of wrongful act or circumstances pertaining to the wrongful act are so manifest that the compliance with the procedure in Regulation 78 would be a purposeless formality. In such cases it was left to the competent authority to take an explanation of the accused, where possible, and after giving him/her an opportunity of being heard in person impose such penalty as it deem fit in the circumstances of the case.
15. ' Initially the order dispensing with holding of inquiry was not placed on record however subsequently with counter-affidavit, the defendant placed a notification of 01.02.2016 in terms whereof the services of PIA were made essential under Pakistan Essential Services (Amendment)
16. Act, 1952 (Act LIII of 1952). They have further placed the order in relation to the two plaintiffs i,e, Safdar Anjum and Nasrullah Khan, which apparently was passed by Director HR Admin and Coordination. This objection of plaintiffs that the competent authority i,e, Director HR Admin has not dispensed with the inquiry, is not available to the plaintiffs now. In terms of letter issued by Acting General Manager dated 28.03.2016 the order was only communicated to these plaintiffs. This original letter/ order passed by Director HR Admin and Coordination, though placed on record, but its substance was neither forwarded to the plaintiffs as they claimed to have no information/ knowledge as to the material available in this regard nor had any other source. The show-cause notice is comparatively silent as to the nature of material and information claimed to be in their custody and possession. All that was forwarded to the plaintiffs was a letter dated 28.03.2016 which shows that the authority has dispensed with the need to conduct a formal inquiry.
17. ' A perusal of letter impugned in the suit and sought to be suspended in application C.M.A. 5058 of 2016 shows that it is devoid of judicious application of mind to dispense with the inquiry. In my view if anyone in the authority concerned has prematurely conceived to the proposition that he/she can dispense with holding of an inquiry without sharing it with accused/plaintiffs, he/she is rendering himself/herself an unfit person to conduct further proceedings of personal hearing. Such dispensation order could only be passed and should only be passed once the material is shown and shared with the accused whose reply and response could become a basis of such decision of dispensing with the inquiry. Any authority or person giving personal hearing should not rely on personal knowledge and information as in that case the essence of impartiality will be lost. When such audio was played in Court my first reaction and question was "who is he". The person recorded the conversation could be a material witness but without he being confronted with accused it cannot be used as an evidence against him, who may or may not have a valid and legitimate answer to deny such material. Mr. Salman Talibuddin also conceded that in case the accused provides valid and reasonable cause at the time of hearing, the inquiry process may be initiated despite it being dispensed with earlier. To me this amounts to putting cart before horse.
18. ' By this observation it does not mean and rather should not mean that the competent authority is not competent to dispense with the inquiry if facts and circumstances of the case so warrants. The authority should not sit with the prejudiced mind that they have already dispensed with the inquiry and have made their mind. This statement of Mr. Salman Talibuddin, learned counsel for defendant, to me is a surprising factor. Since the defendants/competent authority is not sure as to the dispensation of the inquiry on the basis of material available with them then how a substantial right of inquiry could be snatched from the plaintiffs without hearing them and how a person with pre-conceived thoughts sit to preside. The defendant could only reach to such conclusion once they themselves are satisfied and convinced that the explanation/material forwarded to the plaintiffs in relation to the allegations is the substantial evidence available with the authority. The "material" could only form "substantial evidence" provided it is shared with the accused/plaintiffs and based on such reply an order is passed with reasoning.
19. ' In the instant case, the applicant has filed Constitution Petition No,S-401 of 2006 before the Hon'ble High Court of Sindh, Karachi and the same has been transferred to this Tribunal vide order dated 16.5.2014 along with other Constitution Petitions with the directions to the parties to appear before this Tribunal on 30.5.2014 and decide the same within two months from the date of receiving of the said files, but no proceedings could be taken by this Tribunal, so as to decide the matter on the directions passed by Hon'ble High Court due to summer vacations started from 1.6.2014 to 3.8.2014.
20. ' The applicant in his written arguments has repeated the same which he has filed in his petition bearing No,S-401/2006. However, the learned Advocate for the applicant has strongly contended that an appeal under Section 17 of the Payment of Wages Act was to,be filed within 30 days, but the Respondent No,1 filed appeal at a very belated stage and therefore, the same was not maintainable under the law, yet the learned Labour Court inspite of objections raised by the applicant has set aside the order passed by the learned Authority under the Payment of Wages Act and remanded the case back to the learned Authority for fresh decision after providing full opportunity of hearing to the parties vide order dated 31.5.2006. He therefore, prayed that the order passed by learned Labour Court may be set aside, so that.Applicant may collect the decretarial amount of Rs,10,92,700/- from respondent No,1 passed by the learned Authority.
21. ' The learned Representative on behalf of respondent No,1 based his arguments on the order dated 31.5.2006 passed by learned Labour Court and further drawn my attention to the Application No,136/2003 under Section 15 of the Payment of Wages Act filed by the applicant before the learned Authority under the Payment of Wages Act, 1936, whereby he has filed the schedule of his claim as under:-{{TABLE}} "SCHEDULE
1. Gratuity for 9 year's service two months gross pay for one years service.
22. 18 months gross pay a Rs,10,927.00 X. 18 = 196,686/- Two Bonuses each year for the period 1997, 1998, 1999, 2000, 2001, 2002 and 2003 (7 years) 7 X 2 = 14 months Gross pay 0 Rs,10,927/- X 14 =1152,978.00 Rs,196,686.00 Rs,152,978.00 Wages for the period October, 2003 Rs,10,927.00 25 days leave encashment. . Rs,10,927.00 Total: Rs,371,518.00" {{TABLE}} ' Learned Representative has contended that from the perusal of his above schedule of claim, it is evident that the same itself is illegal, void and against the provisions of law as an employee can claim gratuity equal to only one month's gross wages/salary on completion of continuous 12 months service while the applicant in his above schedule of claim has claimed two months gross pay for one year service without showing any law or practice in vogue in the establishment.
23. Besides, he has also claimed bonuses for seven years i,e,, from 1997 to 2003 @ two months salary for each completed financial year while under Standing Order 10-C, the employer who earned profit is required to pay one month gross salary for each completed financial year while the same was vehemently denied and that under first proviso attached to Section 15(2) of the Payment of Wages Act, 1936, an application has to be presented within three years from the date the wages was due or to be paid to the employee concerned, whereas the applicant has claimed his alleged bonuses for the past seven years without giving any explanation and the respondent No,1 while filing written statement has categorically denied the said alleged claim filed by the applicant.
24. ' The applicant has further contended that the respondent No,1 failed to cross-examine the, applicant on his affidavit' in evidence filed before the learned Authority.
25. ' In this connection, the learned Labour Court after going through the R&P has observed at page-13 of its order dated 31.5.2006 which is reproduced hereunder:- "But in the instant case, it is very clear that the respondent did not actually come in the witness box and re-affirmed the contents of his affidavit in evidence, as there is no such enclOrsement on his affidavit in evidence. In absence of above mandatory requirement, the evidence of the respondent could not be the sole consideration for granting the claim of the respondent as the learned Authority has failed to give any sort of plausible reason in support of its finding to allow the claim of respondent. Unless an application is legally maintainable from all corners, it cannot be granted on mere fact that it is ex parte or the other side has not contested the claim by leading evidence in rebuttal."
26. ' It is further submitted by the learned Representative for respondent No,1 that while filing written statement the establishment has produced the order of promotion dated 28.1.2000 and job description of applicant and the perusal whereof reveals that he was working as Production Officer and he was not a workman under Standing Orders Ordinance, 1968, but the learned Authority has failed to consider the said aspect of the case and has allowed the claim filed by the applicant with three times penalty for which the learned Authority was not competent as it was not the case of deduction of wages and that the learned Authority has failed to consider as to whether the applicant in the capacity of Production Officer was entitled for payment of "gratuity" and "bonuses" under Standing Orders Ordinance, 1968. There also exist no evidence on record to show that the respondent No,1 establishment has declared 'bonuses' and paid to its other employees as the applicant has failed to 'adduce any such evidence documentary or otherwise to establish his claim before the learned Authority. Besides, the learned Authority has also failed to consider all these aspects of the case and has arbitrarily allowed the claim of the applicant and further allowed him three times penalty for which the learned. Authority was not authorized to do so, particularly taking into consideration the peculiar circumstances of the above matter.
27. ' Learned Advocate for the applicant has emphasized on the issue that the appeal under Section 17 filed by respondent No,1 was time barred and the same was not maintainable under the law. The learned Labour Court while dealing with the said issue had observed at page # 9 of its order dated 31.5.2006 which is as under:-- "The second ground raised in this respect on behalf of the appellant is equally very important as it goes to the very root of the impugned order as to its legality and if it is established that the impugned order is void and nullity the plea of limitation becomes immaterial because no limitation runs against a void order. Thus, the legality of the impugned order is required to be examined. In this respect the learned counsel for the appellant has attacked the legality of the impugned order on three scores firstly; that the legal procedure was not adopted by the learned Authority under the Payment of Wages Act for recording evidence of the respondents in as much as the respondent was never called and affirmed his assertions made in this affidavit in evidence irrespective of the fact that he was not cross-examined on behalf of the appellants: secondly that the learned authority has acceded its powers and jurisdictions while granting three times "delayed wages" as the impugned order has not been passed in respect of any claim of "deducted wages" where the authority could legally impose a maximum of 10 times penalty but it is a case of "delayed wages" where no more than Rs,10/- can be imposed by way of penalty; and thirdly the Authority has failed to discuss and appreciate the evidence of the respondent and failed to give its findings on the issues framed in the matter but passed the impugned order haphazardly in a slip-shod manner holding that the claim of the respondent has gone unrebutted, as the reply statement in the matter was already filed as such the learned Authority was specifically required to discuss the evidence and give its findings in respect of every issue framed in the matter."
28. ' Learned Advocate for the applicant has relied on PLD 1982 SC 88 and 1982 SCM R 160, wherein it is held by the Hon'ble Supreme Court of Pakistan, that when the special law not providing applicability of Section 5 of the Limitation Act, then the provisions of Section 3 of Limitation Act will apply in such proceedings and the appeal filed beyond the period of limitation was not maintainable, and that an application for condonation of delay also cannot be entertained in such proceedings.
29. ' Apart from above, the learned Advocate for the applicant has also relied on a judgment of Hon'ble Division Bench of High Court of Sindh in the matter between Muhammad Noorul Ameen v. The Authority under the Payment of Wages Act, reported as 1991 PLC 758, wherein it is held that Section 5 of the Limitation Act is not applicable to the proceedings under the Payment of Wages Act, 1936.
30. Learned Advocate for the applicant has further contended that order dated 19.10.2004 passed by the learned Authority has attained finality and since no appeal was filed within limitation period of one month, the respondent No,1 establishment could have filed Constitution Petition in the said matter and in this connection he has relied on the judgment of Division Bench of Hon'ble High Court of Sindh Karachi in the case between M/s. Intertrade v. Faisal and 2 others, reported in 2011 PLC 208.
31. He further relied upon two other judgments reported as reported in 1998 PLC 172 and 2006 PLC 11, whereby it is held that the provisions of Payment of Wages Act are applicable on "person employed" by virtue of Section 3 and it is not restricted only for the workers and he further argued that the designation is not a criteria for determining as to whether a person belongs to the category of a workman but the nature of duties is the deciding factor. He further contended that the applicant was employed as a workman and therefore, he was entitled to the claim filed by him before learned the Authority.
32. ' As against the above assertions of learned Advocate for the applicant, learned Representative appeared on behalf of respondent No,1 establishment has also produced the following judgments/citations wherein the Hon'ble Supreme Court of Pakistan has constantly held that no limitation runs against void and erroneous order.
(i) 1996 SCM R 856 (ii) 1986 SCM R 962
(iii) 1987 SCM R 1543 (iv) 2001 SCM R 19 at page 21
(v) 1998 TD (Labour)(sic)
33. ' Learned Representative for Respondent No,1 has submitted that the learned Authority was not empowered to impose penalty and the said impugned order is also bad in law and liable to be set aside on this score .Also. In this connection, he has relied on the following judgments:-
(1) 1995 PLC 541 in case between Pakistan Railways v. Punjab Labour Court No,4, Multan and 4 others passed by High Court at Lahore.
(2) 1997 PLC 481 in case between Abdul Karim v. Chairman, PLAT, Lahore and 3 others passed by Lahore High Court.
(3) 1998 PLC 71 in case between Pakistan Industrial Gases Limited v. Commissioner for Workmen's Compensation and 2 others passed by High Court of Sindh, at Karachi.
(4) 1987 PLC 301 in case between Regional Superintendent, Pakistan Railways v. Zarina Begum and others passed by High Court of Sindh, Karachi.
34. I have gone through the record and proceedings of the above case and have also particularly perused the schedule attached by applicant along with his application bearing No,136/2003 under Section 15 of the Payment of Wages Act, 1936, whereby he has claimed gratuity @ two months gross-pay for one completed year of services while he has also claimed two bonuses for each year for a period of seven years i,e,, from 1997 to 2003. I am not aware as to how the applicant has filed such a claim while under Standing Order 12(6) of Ordinance, 1968, only one 'salary on completion of 12 months continuous service could have only been claimed while under Section 15(2), a person is restricted to file his claim within a period of three years whereas the applicant has claimed bonus for last seven years of his employment, but the learned Authority has failed to consider the said aspect of the case and it is also not established as to whether the applicant falls within the category of a "workman" as according to him, he was promoted as Production Officer on 08.11.1999 and the respondent No,1 while filing written statement has also filed his job description, but since no evidence has been properly recorded by the learned Authority, the said question could not be established on record.
35. ' From the perusal of order dated 19.10.2014 passed by the learned Authority, whereby he has allowed three times penalty and as against the original claim amounting to Rs,2,73,175/- he has allowed the total amount of Rs,10,92,700/- in favour of applicant without giving any cogent reason and that the said order is not speaking one and it shows that the learned Authority has passed the same in hurriedly manner and even failed to consider the issues so framed by him in the instant case.
36. I have also considered the impugned order dated 31.5.2006 passed by learned Presiding Officer, Labour court, and fully agree with the observations passed by him and even from the perusal of order dated 19.10.2004 by learned Authority, it is very clear that the said order is void and erroneous as the learned Authority has failed to record valid reasons for allowing claim filed by the applicant and so much so he has failed to consider as to whether the claim filed is even maintainable under the law or otherwise, therefore, the said order is void and 'erroneous and it has no bearing in the eye of law which was deserved to be rejected but on the contrary, the learned Authority without considering the same has wrongly allowed three time penalty for which he was not competent under the law. I have also fully considered the arguments filed by learned Advocate for the applicant and filed by the learned Representative of Respondent No,1 and I am fortified by the 'rulings submitted by the learned Representative of Respondent No,1 and hold that no limitation runs against void and erroneous order and that the order passed by the learned Authority was void and erroneous and he has wrongly allowed the claim in favour of the applicant. I see no substance in the petition/Rev. Application filed by the applicant which is hereby dismissed and at the same time, I maintain the order dated 31.5.2006 passed by Presiding Officer, Sindh Labour Court No,1 at Karachi, whereby the learned Labour Court has remanded back the case to the learned Authority under the Payment of Wages Act for a fresh decision after providing full opportunity of hearing and leading evidence to the parties concerned.