' These are 2 separate proceedings taken in the exercise of the suo mote powers of revision of this Tribunal under subsection (3-a) of section 38,
1. R. O. These proceedings have been initiated in the following circumstances :-
2. Mohammad Siddique and Mohammad Sarfraz, to whom 1 will refer to as the workmen, were the permanent workmen of Sami Pharmaceuticals Ltd., to which 1 will refer to as the company, of whom the former was the General Secretary of Sami Pharmaceuticals Ltd. Employees' Union, which is the Collective Bargaining Agent in the company. Both the workmen were dismissed from service by the company by separate orders, dated 31st December, 1980, on charges of misconduct which are claimed to have been established in domestic enquiries held against the 2 workmen. Both the workmen challenged the orders of their dismissal through separate grievance petitions filed before the learned IInd Labour Court. The 2 petitions were fixed for 7th March 1981, for the filing of the affidavits of the 2 workmen. Although the 2 workmen were present in the Court of the learned Labour Court on the aforesaid date, as they did not file their affidavits when their cases were called up for hearing, the learned Labour Court dismissed their grievance petitions by separate orders.
The 2 workmen challenged the dismissal of their grievance petitions before this Tribunal through Appeals Nos. KARz and 203 of 1981. However, 4$ in the meanwhile the workmen had filed applications before the IInd Labour Court for setting aside the orders of the dismissal of their grievance petitions, the learned representative of the 2 workmen sought permission, for withdrawing the appeals of the 2 workmen with permission to file fresh appeals in case the restoration applications of the workmen were dismissed. The learned representative was permitted to withdraw the appeals on the above terms and he actually did so. As the restoration applications filed by the 2 workmen were dismissed by the learned Labour Court, vide separate orders passed on 16th May, 1981, the 2 workmen filed fresh appeals, being Appeals Nos. KAR-286 and 297/81, against the dismissal of the restoration applications. Both these appeals were subsequently withdrawn by the learned representative of the workmen on 6th August, 1981, as they had been filed beyond the period of limitation. Thereafter, on the information given to this Tribunal by the 2 workmen, and after sending for the record of the 2 grievance petitions filed by the 2 workmen, and hearing of their learned representative, notices were issued to the parties why the orders of the learned Labour Court dismissing the grievance petitions of the 2 workmen and rejecting the restoration applications be not revised in the exercise of suo motu powers of revision of this Tribunal.
3. I have heard Mr. Saleem Raza for the 2 workmen and Mr. Abid Puri, who appeared for the company.
4. It was contended by Mr. Saleem Raza that the dismissal of the grievance petitions of the workmen by the learned find Labour Court by its order, dated 7th March, 1981, was invalid and improper inasmuch as not only the 2 workmen were present before the learned Labour Court when their grievance petitions were called up for hearing but further, the non-filing of the affidavits of the 2 workmen before their cases were called up for hearing was due to special circumstances of the case which the learned Labour Court failed to take into account either when dismissing their grievance petitions or when rejecting their restoration applications. According to the learned representative the affidavits of the 2 workmen have been prepared and were available with him, but as he had to appear on that date also before the IIIrd and IVth Labour Courts, he went to the find Labour Court after finishing his work in the above 2 Courts, when he learnt that the grievance petitions of the 2 workmen have been dismissed as their affidavits had not been filed. The contention of the learned representative appears to be supported by his personal affidavit, which he had filed in support of the restoration applications. It was further urged by Mr. Saleem Raza that since the 2 petitions of the workmen were fixed for 7th March, 1981, solely for the filing of their affidavits, the affidavits could be filed at any time of the day and not necessarily before the time when the petitions were called up in Court.
5. I am not inclined to accept the contention of Mr. Saleem Raza that when the grievance petition is fixed before a Learned Labour Court for filing of an affidavit such an affidavit can be filed at any time during the day and not before or at the time when the case is called up for hearing. The practice in the Labour Courts is that petitions which are fixed for filing of affidavits are called up for hearing in the Courts. This is necessary not only for the purposes of enabling the Court to verify whether the affidavits have or have not been filed and for giving a fresh date to the parties, if the matter is to be adjourned, but also, if the Court considers appropriate to require the other side to cross-examine the witness filing the affidavit, which would be in accordance with the spirit of the law since grievance petitions are ordinarily required to be decided within 7 days.
6. It next falls to be considered whether the learned Labour Court passed a valid and legal order in dismissing the grievance petitions of the 2 workmen, though they were admittedly present in the Court when the grievance petitions were called up for hearing, on account of the non-filing of their affidavits which were with their representative, who was busy in other Courts. The learned Labour Court has not, while dismissing the grievance petitions of the 2 workmen referred to the law under which he was making these orders, nor was Mr. Abid Puri, the learned counsel for the company able to refer me to any specific provisions of the law empowering the learned Labour Court to pass such orders. Mr. Abid Puri, however, contended that since the 2 workmen had been required by the learned Labour Court to file their affidavits by 7th March, 1981, and they have failed to comply with the orders, their grievance petitions were rightly rejected by the learned Labour Court. There appears to be no specific provision either in the I. R.
0., or in the Sind Rules framed thereunder empowering the learned Labour Court to pass such an order. Subsection (4) of section 25-A, I. R. O., provides that the Labour Court shall deal with a grievance petition as if such matter were in an industrial dispute. Subsection (2) of section 37, I.R.O., clothes a Labour Court, for the purposes of adjudicating and determining any industrial dispute, with the powers of enforcing the attendance of a person and examining him on oath, compelling the production of documents and material objects, and issuing commission for the examination of witnesses or documents. Furthermore, for the purposes of adjudicating and 'determining an industrial dispute, a Labour Court is to be deemed to be a Civil Court. There is no specific provision in the law that grievance petitions are to be decided on affidavits only. This practice has developed on the basis of certain instructions issued by this Tribunal. Even then witnesses are examined by the Labour Courts while dealing with grievance petitions and industrial disputes. In the absence of any specific provision of law requiring the 2 workmen to file their affidavits, it was not only open to the Labour Court, but it would have been appropriate for it, since the 2 workmen were present in the Court when their grievance petitions were called up to examine them on oath, if their affidavits were not forthcoming. No doubt, under the Civil Procedure, a Court may pronounce Judgment against a party which fails to present its written statement within the time fixed by the Court, and the Court may strike out the defence of the party which fails to file an address for service, but such power has been specifically conferred on the Court by rules 10 and 12 of Order VIII, C.P.0 The I.R.0 , and the Rules framed thereunder, however, neither specifically require the filing of affidavits by person submitting grievance petition nor do the aforesaid Ordinance and the Rules provide for the dismissal of grievance petitions if the person by whom they are filed do not file their affidavits in the Labour Court within the time fixed by the Labour Courts. I am, therefore, of the view that the orders, dated 7th March, 1981 of the learned Second Labour Court, dismissing the grievance petitions of the 2 workmen on the ground that they have not filed their affidavits are not in accordance with law and would appear to be invalid. The correct course for the learned Labour Court would have been, if it did not consider that the 2 matters should be adjourned, to record the statements on oath of the 2 workmen, who were admittedly p resent in the Labour Court.
7. It next falls to be- considered whether this Tribunal in the exercise of the suo motu powers of revision is empowered and should, in the circumstances of the case, revise and modify either the orders, dated 7th March, 1981, or the subsequent orders dated 16th May, 1981, dismissing the restoration applications filed by the workmen. It was contended by Mr. Abid Puri that since appeals admittedly lay against the decision dated 7th March, 1981, given by the learned Labour Court, dismissing the grievance petitions of the 2 workmen, and in fact appeals against the said decisions were filed by the 2 workmen, which were subsequently with drawn by the learned representative of the 2 workmen and disposed of as such, by this Tribunal, by its order, dated 6th August, 1981, the said decisions of the learned Labour Court could not be made the subject of suo motu revision proceedings under subsection (3-a) of section 38, I.R.O. The contention of the learned counsel was that despite the fact that subsection (3-a) of section 38 seems to empower this Tribunal in the exercise of its suo motu powers of revision to revise any order of a learned Labour Court, which this Tribunal considers to be incorrect, illegal or improper, yet this power does not extend to appealable decisions or orders, passed by Labour Courts, particularly if appeals against such orders and decisions have been preferred against them. The learned counsel relied, in support of this contention upon subsection (3) of section 37, which gives finality to the decision of the Tribunal given in 'appeal against such decisions and orders. The said subsection reads as follows:-- "Any party aggrieved by an award given under subsection (1) or a decision given under section 25- A or section 34 or a. Sentence passed under clause (c) or subsection (5) of section 35 may prefer an appeal to Labour Appellate Tribunal within 30 days of the delivery or passing thereof and the decision of the. Tribunal in such appeal shall be final."
8. Mr. Abid Puri submitted that the mere fact that the decisions, dated 7th March, 1981, of the learned Labour Court, dismissing the grievance petitions of the 2 workmen, were not given on merits, does not alter their status as decisions nor affects the finality of the orders passed by this Tribunal in the appeals preferred against them, which appeals, as already stated, were withdrawn by the learned representative of the 2 workmen. In support of his contention he cited the decisions reported as Shafiullah v. Messrs Globe Textile Mills (1) and Jannat Textile Mills Ltd. v. Sind Labour Appellate Tribunal (2). In the former case, it was observed by this Tribunal that the word 'decision' as used in sections 25-A, I.R.O., is applicable to the final adjudication by a Labour Court and that a decision need not be on merits. That was a case of dismissal of a grievance petition for default and it was held that such dismissal by the Labour. Court was a decision of the Labour Court under sections 25-A and, 37, In the case of Jannat Textile Mills, a Division Bench of the Karachi High Court, while observing that subsection (3-a) of section 38, I.R.O., confers the widest powers of revision upon the Labour Appellate Tribunal to examine the correctness, legality and propriety of any order passed by the Labour Court and to revise or modify it in such manner as it deems fit consistent with the provisions of the I.R.O., held that these powers did not extend to appealable decisions or orders of the Labour {{FOOT NOTE}}
(1) 1981 PLC 304 (2) PLD 1979 Kar. 725 {{FOOT NOTE}} ' Courts and observed in this behalf as follows "Whereas, orders and decisions of a Labour Court, other than decisions and awards which were specifically subject to the appellate jurisdiction of the Labour Appellate Tribunal, were declared to be final and there was a bar to their being questioned in any manner by or before any Court or other authority the substituted subsection (4) gives a qualified protection to these residuary orders and decisions of the Labour Court and begins with the words "Save as otherwise expressly provided in this Ordinance". The use of this expression can only mean that the orders and decisions of the Labour Court, which previously were given absolute protection and finality, are now subject to suo motu revisional powers of the Labour Appellate Tribunal. Since sub-section (4) of section 37 covers all the orders and decisions passed by a Labour Court, which are not subject to appeal, we consider that it will also cover orders passed by the Labour Court in the exercise of its appellate jurisdiction. In other words, the appellate orders of the Labour Court will also be subject to the suo motu revisional jurisdiction of the Labour Appellate Tribunal, just as other orders passed by the Labour Court the only limitation being, as provided in subsection (3) of section 37, that such orders should not be appealable."
' Similar view has been held by the Labour Appellate Tribunal, Punjab in the case of Divisional Superintendent, Pakistan Railways v.. Fateh Mohammad and 6 others (I).
9. Mr. Abid Puri also relied upon the general proposition laid down by the Supreme Court in the case of Municipal Committee Bahawalpur v. Shaikh Aziz Elahi (2) and followed by the Peshawar High Court in the case of Gulzada v. Hafi Mohammad Umar and 7 others (3), that a revision will not lie where an appeal lies. Both these authorities, however, are in respect of matters governed strictly by the provisions of the Civil Procedure Code. It is, however, unnecessary to consider these contentions of Mr. Abid Puri in regard to the finality claimed by him to be attaching to the decisions, dated 7th March, 1981 of the learned Labour Court, as this matter can be more conveniently disposed of on another point.
10. It was not disputed by Mr. Abid Puri that the orders of the learned Labour Court, dated 6th May, 1981, rejecting the restoration applications of the workmen, are not decisions and are therefore, not appealable, as held by this Tribunal in the case of Shafiullah v. Globe Textile Mills and hence these orders fall within the purview of the suo motu revisional powers of this Tribunal. It has, therefore, to be considered whether the orders, dated 16th May, 1981, of the learned Labour Court require or ought to be revised on the ground that they are incorrect, illegal or improper. As already stated, the restoration applications filed by the 2 workmen were supported by the affidavits or their learned representative, which affidavit asserted that the affidavits of the 2 workmen had been prepared and were in fact with the learned representative, but as the latter was busy in other Labour Courts, he was not able to file the affidavits by the time when the 2 grievance petitions were called up for hearing by the learned IInd Labour Court on 7th March, 1981. The {{FOOT NOTE}}
(I) 1980 PLC 418. (2) PLD 1970 SC 506
(3) PLD 1978 Pesh. 170 {{FOOT NOTE}} ' learned Labour Court has not at all taken into consideration the above facts tending to show sufficient cause for the failure to file the required affidavits but has rejected the restoration applications of the 2 workmen on the ground that it was not competent to review its orders, dated 7th March, 1981. No question, however, of review arises in these cases. It is true that the learned Labour Court dismissed the grievance petitions of the 2 workmen for failing to file affidavits but in fact the dismissal of the grievance petitions was for default and since there was cause shown for setting aside those orders, the learned Labour Court ought to have considered the same which it failed to do. The orders, dated 6th May, 1981 of the learned Labour Court, thus suffer from a patent error and cannot be upheld.
' It was, however, contended by Mr. Abid Puri that suo motu revisional jurisdiction cannot be exercised on the application of or information given by a party and that in any case, since the matter had already come b-fore this Tribunal in the form of appeals against the decisions of the learned Labour Court, dated 7th March 1981 and the orders, dated 16th May, 1981 and the Tribunal had not considered it necessary to exercise its suo motu powers of revision, it was at least inappropriate to do so on the information subsequently furnished by the informants. In support of the first leg of his argument, Mr. Abid Puri relied upon the decision of a Division Bench of the Karachi High Court, of which Bench I was a member, in the case of Jannat Textile Mills v. Sind Labour Appellate Tribunal, where in it was held that under sub-section (3-a) of section 38, I.R.O. No right has been given to party to file a revision application or move the Labour Appellate Tribunal to exercise its powers of suo motu revision. The said decision was examined by this Tribunal in case of Messrs Khawaja Autocars Ltd. v. Syed Abdul Rehman (1), and it was observed that there is a clear distinction between a right to move the Labour Appellate Tribunal to exercise its suo motu powers of revision and the furnishing of information to the Labour Appellate Tribunal on the basis of which it could exercise its suo motu powers of revision. This Tribunal explained the distinction as follows :- "It was next submitted by Mr. Ashraf Hussain that the present proceedings had been initiated upon an application made by the Company but the exercise of suo motu powers of revision, upon an application of a party, has been held not to be permissible in the case of Jannat Textile Mills. No doubt, it was held in that case that a revision application by a party purporting to be under subsection (3-a) of section 38, I.R.O., was misconceived and not permissible, relying upon the decision of their Lordships of the Supreme Court in the case of Abdul Majeed Shahid v. Moor Jahan, wherein the Supreme Court, while construing the scope of revision under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, observed that there was no right given to an applicant under the said section to move a revision petition before the Settlement Commissioner, but it may be pointed out that, in the instant case, action has not been taken upon a revision application by a party. The proceedings have been initiated upon information submitted by the Company. This is totally a different position from preferring a revision application. Even this Tribunal, in the case of Fatehally Chemical Mehnatkash Union v. Registrar of Trade Unions and others, decided on 19th February, 1980, had observed {{FOOT NOTE}}
(1) 1980"PLC 1236 {{FOOT NOTE}} ' that the very fact that revisional powers can only be exercised by this Tribunal suo motu indicates that a party has no right to demand the exercise of such powers, but there is clearly a difference between a party having a right to demand exercise of suo motu revisional powers by this Tribunal and the laying of an information by a party before the Tribunal to enable it to determine whether it should or should not exercise its suo motu powers of revision. After all, this Tribunal can only act on information received by it from some source. This source can even be a party to the proceedings.
In fact, it would invariably be the aggrieved party who would like to lay information before the Tribunal. In my humble opinion, there is no bar to the laying by a party of such information before the Tribunal and proceedings initiated upon such information would not suffer from any infirmity.
The decisions in the cases of Abdul Majeed and Jannat Textile Mills merely denied the right to a party to move an application for the exercise of suo motu powers by a Court or the Tribunal, but do not lay down either that a party is prohibited from laying information before the Court, or that a Court or Tribunal is precluded, on the basis of such information, to exercise its suo motu powers of revision. I am, therefore, of opinion that the present proceedings upon the basis of the information laid by the company, suffer from no infirmity."
' I would reiterate the view expressed by me above.
12. So far as the second leg of argument of Mr. Abid Puri is concerned that as this Tribunal had not exercised its suo motu powers of revision when the appeals against the decisions, dated 7th March, 1981; were preferred by the workmen, and hence it is precluded from or at least it ought not to exercise its powers of revision, the short answer is that suo motu powers of revision can be exercised by this Tribunal at any time. There is no bar placed on the Tribunal that if at the earliest available opportunity it has failed or not exercised its revisional powers it is precluded from exercising those powers later on. Furthermore, since the appeals preferred by the two workmen against the decisions of the learned Labour Court, dated 7th March, 1981, were allowed to withdrawn with permission to file fresh appeals, it would not have been quite proper, in those circumstances to exercise powers of revision specially as restoration applications filed by the two workmen were pending before the learned Labour Court. Somewhat similar is the position in respect of the two appeals, which in fact did not lie, preferred against the orders of the learned Labour Court, dated 16th May, 1981.
13. The upshot of the above discussion is that, I would set aside the orders, dated 16th May, 198t, of the learned Labour Court, dismissing the restoration applications filed by the two workmen, and would remand the two matters to the learned Labour Court for deciding the same on merits in the light of the observations made by this Tribunal.