' This order will dispose of two writ petitions, bearing No, 1393 and 1394, both of 1979. These are being taken together as identical questions of fact and law arise therein.
2. The petitioner is a cooperative society and is engaged amongst other things in the manufacture of bicycles. It owns a factory at Shandara which is known as Rustam and Sohrab Cycle Factory.
Muhammad Sarwar and Muhammad Javaid, main respondents in the two writ petitions, were employed by the management of the petitioner's society as workman in this factory. There were some disturbances in, the factory on 24th November, 1977 for the reason that a section of the employees wanted to get that day declared as a holiday. The management resisted the demand of the employees. In defiance of the decision of the Management some of the employees including the respondents went on strike. The representatives of the Labour Department intervened but when they failed to bring about reconciliation they moved the Labour Court in the matter. The Labour Court declared the strike to be illegal and directed the striking employees to return to work. The respondents declined to obey this order and obstructed other employees also from attending to their jobs. The situation became grave and the military authorities stepped in. They arrested the respondents and tried them before a military Court. The said Court convicted the respondents on 22nd December, 1977 and sentenced them to suffer rigorous imprisonment for a period of one year and receive five lashes, each. Subsequently, on 21st March, 1978 their sentences were remitted and they were released from Jail.
3. After their arrest the management initiated disciplinary proceedings against the respondents.
They were served with charge-sheets. The respondents refused to submit replies to the charge- sheets saying that they would do so only after their release from jail. Subsequently, on 16th January, 1978 after the respondents had been convicted the management terminated their services. The letters of termination read as follows: "You have been convicted by the Martial Law Authorities having violated Martial Law Orders Nos. 5, 12, 13 and 14 and given imprisonment for a period of one year from 22nd December, 1977. The management cannot keep your posts vacant for such a long and indefinite period. Your services, therefore, are being terminated with immediate effect.
' You may collect your dues through your duly authorised representative on any working day".
' After their release from jail the respondents served the management with notices under section 25-A of the Industrial Relations Ordinance and asked for their reinstatement in service. The management declined to reinstate them in their jobs. The respondents then filed separate applications before the Labour Court on 25th April, 1978. By its order dated 1st March, 1979 the Labour Court set aside the orders of termination on the ground that before dispensing with the services of the respondents the management ought to have held an inquiry and as this was not done their removal from service was illegal. The petitioner society challenged the orders of the Labour Court before the Punjab Appellate Labour Tribunal. It also, made a prayer to the Tribunal for the suspension of the impugned orders. The appeals were admitted to regular hearing and interim relief sought by the petitioner society was also granted. However, as under section 38(8) of the Industrial Relations Ordinance the interim reliefs could not extend beyond 20 days, the petitioner society filed these writ petitions to challenge the orders of the Labour Court. During the pendency of these writ petitions it withdrew the appeals which it had preferred before the Appellate Tribunal.
4. A preliminary objection has been taken on behalf of the respondents to the competency of these writ petitions. It is contended on their behalf that the orders of the Labour Court were appealable before the Labour Appellate Tribunal. The petitioner society had thus an adequate remedy available to it against the impugned orders. The mere fact that the Appellate Tribunal was not competent to grant an interim relief for a period exceeding 20 days did not make the remedy by way of appeal less efficacious. By expressly limiting the scope of the interim relief the Legislature had made its intention very clear. In exercise of its constitutional jurisdiction this Court ought not to allow the Legislative policy to be defeated by entertaining a writ petition merely on the ground that the Appellate Labour Tribunal could grant interim relief only for a limited period. In support of this contention learned counsel for the respondents referred to the cases of Muhammad All v. Chief Administrator of Auqaf (1) and Mumtaz Hussain v. Chief Administrator of Auqaf (2). Both these authorities do add weight to the contention of the learned counsel.
5. But the reason given by the learned counsel for the petitioner society for invoking the constitutional jurisdiction of this Court is entirely different. He states that there was some doubt on the point whether the order of the Labour Court was appealable before the Labour Appellate Tribunal. In this context he referred to two decisions of the Court reported as ,i>Pakistan International Airlines Corporation v. Punjab Labour Appellate Tribunal (3) and Mukhtar Hussain v.
Punjab Labour Appellate Tribunal (4) where a learned Single Judge had taken the view that the orders of the Labour Court were not appealable before the said Tribunal. In the presence of these decision, he argued, the remedy by way of appeal to the Labour Appellate Tribunal appeared to be uncertain; consequently the petitioner society had no option but to approach this Court in writ jurisdiction.
6. There can be little doubt that the view taken by this Court in the cases of the Pakistan International Airlines Corporation and Mukhtar Hussain, would have given the petitioner society sufficient justification for entertaining the belief that its remedy did not lie before the Labour Appellate Tribunal. There is indeed a decision, expressing the opposite view, of the Labour Appellate Tribunal at Karachi see Midway House v. Yameen Kausar (5) but so far as this Court is concerned the decision of the learned Single Judge has not yet been over-ruled by a larger Bench. The Supreme Court has granted leave against the decision of the learned Single Judge (see Sahibzada K. A. K. Afridi v. Pakistan International Airlines Corporation (6) but it has not yet decided the matter.
In fact I held up decision in these writ petitions at the request of the respondents for sometimes as they wanted me to await the judgment of the Supreme Court in the said case. However that may be, taking into account the uncertainty about the jurisdiction of the Labour Appellate Court to entertain the appeal of the petitioner society I am unable to sustain the objection raised by the respondent to the competency of these writ petitions.
7. On merits it is to be noticed that the order of the Labour Court is based on the solitary ground that before terminating the services of the respondents no inquiry was held. Now, it is not disputed that the terms and conditions of the employment of the respondents were, in so far as they related to the termination of their employment, governed by the West Pakistan Industrial and Commercial Employment (Standing. Orders) Ordinance, 1968. There are two provisions in this Ordinance which deal {{FOOT NOTE}}
(1) 1972 SCMR 297 (2) 1976 SCMR 450
(3) PLD 1979 Lab. 415 (4) PLD 1979 Lah. 748
(5) 1980 PLC 728 (6) 1982 SCMR 116 {{FOOT NOTE}} ' with termination of the employment of the workmen, namely, Standing Order 12 and Standing Order 15. There is an important distinction between these two Orders. Standing Order 12 deals with termination simpliciter of employment on a ground other than misconduct and Standing Order 15 deals with the termination of employment by way of punishment. Where the employer invokes the provisions of Standing Order 12 for terminating the services of a workman he is required to give one month's notice to the workman in writing stating the precise reasons for his doing so. But where he intends to remove a workman from his employment for misconduct by way of punishment he is required by Standing Order 15(4) to give an opportunity to the workman to explain away the allegations against him.
8. The case of the petitioner society before me is that even though initially the respondents were charge-sheeted for misconduct but with their conviction by a military Court an entirely new situation was created. The military Court had sentenced them to imprisonment for a period of one year, each, and the petitioner society could not keep their posts vacant for such a long period.
Consequently, it had no choice but to terminate their services in accordance with the provisions of Standing Order 12. This aspect of the matter, it is submitted, was entirely ignored by the Labour Court, which proceeded to decide the applications of the respondents on the assumption that they had been removed from service under Standing Order 15. It is also submitted that the Labour Court had failed to notice that for terminating the services of a workman under Standing Order 12 no inquiry was required to be held. Thus, the very basis upon which the orders of the Labour Court were founded was non-existent and for that reason the said orders were illegal.
9. I think there is merit in the contention of the petitioner society. The letters of termination of employment issued by the management to the respondents clearly stated that their services were being dispensed with on the ground that their posts could not be kept vacant for such a long and indefinite period white they were serving the sentences imposed D upon them by 'the Martial Law Authorities'. In these letters there was no allegation of misconduct which could be relatable to their employment under the petitioner society. Quite obviously in dispensing with their services the management was relying upon the provisions of Standing Order 12. This Order, as already mentioned, did not require that an inquiry must be held before a workman's contract of employment was determined. In the circumstances it was not open to the Labour Court to set aside the decision of the management merely on the ground that no inquiry had been previously held.
10. Of course the Labour Court was quite competent to examine whether the termination of the services of the respondents, even though described as termination simplifier, was in fact motivated by the allegations of misconduct which the management had levelled in the charge-sheets served upon the respondents and whether the exercise of the powers under Standing Order 12 was a colourable one and the case of the respondents properly fell under Standing Order' 15, but then the Labour Court has not gone into this question at all and has not recorded any finding thereon. In the absence of any such finding the Labour Court was not justified in merely assuming that the provisions of Standing Order I5 were applicable to the case of the respondents.
11. It was contended on behalf of the respondents that in exercise of writ jurisdiction this Court could not sit in judgment upon the decision of a Labour Court and that even if the Labour Court had taken a wrong view of the law in the matter the High Court could not intervene so long as the order made by the Labour Court was well within its competence. In support of this submission the learned counsel for the respondents referred to the cases of Muhammad Husain Munir v. Sikandar
(1) and Zulfiqar Khan Awan v. Secretary Industries and Mineral Development (2). In the case of Muhammad Husain Munir the High Court had interfered in writ jurisdiction with the allotment of fields made by the Board of Revenue during the course of consolidation of holdings. The Supreme Court set aside the decision of the High Court on the ground of competency, holding : "It is wholly wrong to consider that the constitutional provision (that is, the one relating to writ jurisdiction) was designed to empower the High Court to interfere with a decision of a Court or tribunal of inferior jurisdiction, merely because in its opinion the decision is wrong. In that case, it would make the High Court's jurisdiction in distinguishable from that exerciseable in a full-fledged appeal, which plainly is not the intention of the Constitution-markers. When there is jurisdiction to decide a particular matter then there is jurisdiction to decide it rightly or wrongly and the fact that the decision is incorrect does not render the decision without jurisdiction."
' The Supreme Court re-affirmed this view in Zulfikar Khan Awan, ibid. In this case the writ petitioner had failed to persuade the High Court to quash a decision of a service tribunal on the ground that the earlier decisions of the said tribunal had created an anomalous situation. The Supreme Court upheld the decision of the High Court and observed that the tribunal, having jurisdiction to decide a matter, was competent to decide it rightly or wrongly and the 'mere fact that the decision was incorrect did not render it as without lawful authority in order to justify interference by the Highi Court in the exercise of its writ jurisdiction.
12. In my-opinion the authorities cited by the learned counsel for the respondents are distinguishable from the cases before me. Here it is not a mere question of the Labour Court deciding the application moved by the respondents rightly or wrongly. On the other hand in deciding these applications the-Labour Court has entirely ignored a material fact, that is, consequent upon their conviction by a military Court the management of the petitioner society had terminated the services of the respondents in accordance with the provisions of Standing Order 12 and that the said Standing Order did not require that an inquiry must be held before the order of termination was made. Without first deciding if it was a colourable exercise of the power available under Standing Order 12 and if the respondents had been removed from service for misconduct the Labour Court could not have set aside the orders of termination merely on the ground that no inquiry had proceeded before these orders were made. It is now well-settled that where a tribunal fails to take into account material facts the High. Court can interfere with its decision in exercise of writ jurisdiction. In this context I may refer to cases of {{FOOT NOTE}}
(1) PLD 1974 SC 139 (2) 1974 SCMR 539 {{FOOT NOTE}} ' Commissioner v. Mian Sher Muhammad (1) and Chief Land Commissioner v. Makhdoom Syed Nazar Hussain Shah (2).
13. For the reasons stated above I declare the order of the Labour Court to be without any legal effect. The applications of the petitioners should be treated as still pending and disposed of in accordance with law after first deciding whether the termination of the services of the respondents was properly made under Standing Order 12 or whether it was a colourable exercise of the power under that Order and that the case of the respondents in essence fell under Standing Order 15.
There will be no order as to costs to these writ petitions. {{FOOT NOTE}}
(1) 1972 SCMR 395 (2) 1975 SCMR 352 {{FOOT NOTE}}