1. MUHAMMAD HALEEM ACTG. C. J.-This appeal, by special leave, arises from the judgment -of. The High Court of Sind, Karachi, dated 12th of September, 1979, by which Constitutional Petition No. S-70 of 1978 was dismissed.
2. Leave to appeal was granted to consider the question as to whether in the face of the provision of the special enactment, namely, section 23 of the Karachi Port Trust Act, 1886, the respondent could invoke the provision of the general law, namely, section 25-A of the Industrial Relations Ordinance 1969, for seeking the relief against dismissal which was available under the first named section. In other words, the question was whether the provision of the former Act prevailed over the latter Ordinance. This question arose, for decision in the following circumstances.
3. Admittedly the respondent was a permanent employee of the Karachi Port Trust as a licensed Engineer. As there were complaints of his being involved in disposing of Karachi Port Trust properties such as oil, paints, etc. From the launch in which he was serving a secret watch was maintained and on 10th of July, 1975, some one from his launch named Aslam was caught red- handed with a can of oil being handed over to a recipient of another vessel belonging to the Karachi Port Trust. His statement was recorded in which he admitted having given the oil can without authority and that on a physical check of the oil store in the vessel, 3,030 gallons were found as against the log book entry of 3,016 gallons. He was served with a charge-sheet alongwith the statement of allegations. The charges and the statement of allegations are reproduced below: Charges
(1) Misconduct in view of unauthorised removal and/or transfer of K. P. T. Property viz. Paints and Diesel oil from the craft D. H. S. 'Rajhans' through K. P. T. Launches M. L. Zara and M. L. Negahban in connivance with some staff members of the launches for onward transaction of sale thereof with private launches plying in the channel against monetary gain.
(2) Misconduct for acting beyond authority and wilful abuse of office.'
4. Allegations
(1) 19-4-1974 at 12-50 p.m. 15 gallons of paint was supplied to M. L. Zar'a and the name of the Tindal was Mula.
(2) 9-7-1975 at 10-30 p. m. 15 gallons of paint was supplied to M. L. Negabban and the name of the Tindal was Waheed.
(3) 23-6-1975 at 12-40 p. m. 50 gallons of Diesel oil was supplied to M. L. Zara.
(4) 23-5-1975 at 2-50 p. m. 50 gallons of Diesel oil was supplied t8 M. L. Negahban.
(5) 28-5-1975 at 1.25 p. m. 40 gallons of Diesal oil was supplied to M. L. Negahban.
5. An inquiry was, thereupon, held. Before the Inquiry Officer be admitted his statement which was recorded on 10th July, 1975. The incident to which it related was, however, not mentioned in the statement of allegations. The appellant examined 11 witnesses while the respondent produced three in defence. The Inquiry Officer submitted his report on 5th of April, 1976, and although he exonerated him of all the allegations enumerated above, yet he held him guilty on both the charges on the basis of his confessional statement in regard to the incident dated 10th of July, 1975, A second show-cause notice was served on him on 23rd of June, 1976, and, thereafter, by a resolution dated 11th of August, 1976, the Board of Trustees dismissed him from service.
6. He did not prefer an appeal under section 23 of the Karachi Port Trust Act, 1886, but gave a grievance notice on 20th of October, 1976, and as no reply was received, he filed an application for re-instatement and for the payment of the back benefits on 29th of December, 1976, in Labour Court No. 1 under section 25-A of the Industrial Relations Ordinance, 1969. This application was allowed by order dated 4th of July, 1978. The grievance of the respondent was that the Inquiry Officer held him guilty of the charges in regard to which there was no mention in the statement of allegations which could not accordingly, be the subject-matter of decision. This ground prevailed with the Labour Court as would appear from the following conclusion:- "The above statement of allegations admittedly does not mention anything about the incident which is alleged to have taken place on 10-7-1975. In fact, in the findings of the Inquiry Officer, the applicant seems to have been exonerated of the charges contained in the above statement of allegations but the applicant has been found guilty in respect of the incident which took place on 10-7-1975. In this context, it may also be relevant to mention the admission made by the respondent's witness Nazir Qureshi in his cross-examination. This witness admitted that in the charge-sheet the alleged incident of 10-7-1975 was not mentioned. He admitted that according to the findings of the Inquiry Officer, the applicant was exonerated of the charges mentioned in the charge-sheet. He also admitted that no action is taken or, anonymous applications."
7. Against this order the appellant filed writ petition without preferring an appal to the Labour Appellate Tribunal as the Tribunal was not then functioning on account of the demise of the Chairman of the Tribunal on 23rd of June, 1978, which office remained vacant until 17th of October, 1978, on which date Mr. Justice Ghulam Rasool K. Sheikh was appointed as part time Chairman.
8. Hence it was not possible to obtain any relief in appeal against 'the order of the Labour Court which had to be executed within a limited time: A preliminary objection was taken before the High Court that as the appellant had not exhausted his remedy by way of an appeal under sections 37 and 38 of the Industrial Relations Ordinance, the petition was not legally maintainable. It was urged in reply that as the Tribunal was not functioning, no redress could be had against the order of the Labour Court which had to be implemented and, therefore, this extraordinary relief was resorted to But this plea did not find favour with the High Court. 'The appellant next urged that the Labour Court had no jurisdiction to entertain the application under section 25-A of the Industrial Relations Ordinance as that Ordinance did not apply to the employees of the Karachi Port Trust which were governed by the Karachi Port Trust Officers and Servants (Efficiency and Discipline) Rules, 1969, hence no relief could be granted by the Labour Court. The High Court however did not express any opinion on this ground as it was brought to its notice that it was not even mentioned in the written arguments submitted by the appellant before the Labour Court. However, from the order of the - Labour Court we find that the appellant had raised the submission that in view of the Service Rules of the Karachi Port Trust Employers, the application under section 25-A of the Industrial Relations Ordinance was barred. As the ground had been pointedly raised, its omission from the written arguments should not have prevailed with the High Court from not attending to it as written arguments are not a part of the pleadings. The Labour Court did not, in its turn, also, express any opinion on this question but adverted to the merits of the case and held in favour of the respondent. The High Court upheld the conclusion of the Labour Court and dismissed the petition -holding at the same time that as the petition had been pending for the last 14 months, it would not be proper to direct the respondent to seek his remedy by way of an appeal under the Service Rules, It was contended, by the learned counsel for the appellant that by reason of the first proviso to section 1 of the West Pakistan (Standing Orders) Ordinance, 1968, the statutory Rules of Service prevailed over the provisions of that Ordinance in regard to any legal right secured there under, and that as the respondent was a dismissed workman, he could not have availed of the provisions of section 25-A of the Industrial Relations Ordinance which applied only to the case of a workman in employment and not to the former as he was excluded by the definition clause which was worded in the present tense. (See section 2(28) of the Industrial Relations Ordinance, 1969). Another limb of the argument was that a workman could not seek a remedy against his dismissal before the Labour Court unless such dismissal was connected with an industrial dispute. This much cannot be disputed that the provisions of the West Pakistan (Standing Orders) Ordinance are not applicable to the case of the respondent; but as for the other submission that section 25-A will not be applicable, no such plea was taken in this form either before the Labour Court or before the High Court and leave was also not granted to consider this question.
9. It will not be appropriate here to dilate on the merits of the statement as after the dismissal of the petition, the respondent was reinstated on 25th of October, 1979, and a charge-sheet was, thereafter, served on him in regard to the incident in question on 26th of June, 1980. The respondent, thereupon, filed afresh petition in the High Court and had obtained a stay order in July, 1980.