' MUFTAKHIRUDDIN, J.-This is an employer's petition under Article 9 of the Provisional Constitution Order and challenges the orders passed by the Presiding Officer Labour Court, Quetta on 15-11-1983 and of the Labour Appellate Tribunal, Quetta, dated 20-5-1984.
2. The petition arises out of an application filed by the respondent Muhammad Asif Ahmed in the Court of the Presiding Officer Labour Court No, 1, Quetta. The grievance of the respondent before the Presiding Officer was that he has been working as a clerk in the Cantt : Branch in the National Bank of Pakistan and on account of shortage of Rs, 4,000 in the account No, 14196 of one Gul Muhammad he was charge-sheeted on 27th July, 1982 alongwith three officers of the Branch but no enquiry was held nor he was afforded an opportunity to defend himself but abruptly dismissed from service on 11-1982. An appeal as provided under Bank Rules was filed and was followed by reminders but he was not informed about the fate of the appeal. Hence the grievance petition under section 25-A, Industrial Relations Ordinance, 1969 was filed on or about 6-4-1983 before the Labour Court, Quetta. As an abundant caution an application under section 65-B of I. R.
0., 1969 for condonation of delay was also made. The Presiding Officer after recording the evidence led by the parties came to a finding of fact that no enquiry was held in accordance with law, and the principles of natural justice were violated. Accordingly the order of dismissal passed against the respondent No, 1 was set aside and he was directed to be re-instated with all back benefits within 7 days from the date of the order. The petitioners filed an appeal against this order of the Presiding Officer Labour Court but without any success. Before the Labour Appellate Tribunal it was stressed that if the domestic enquiry was not found to be strictly in accordance with law, the Labour Court should have referred back the case for fresh enquiry. It was disclosed during the agreements that "the case against all the four employees was pending before the Special Court constituted under Ordinance IX of 1984. The Appellate Tribunal therefore observed that "in all fairness to the employees, including the respondent, domestic enquiry should have been conducted in the light of the decision of the criminal case. The appellant seems to have acted rather hastily," and it was accordingly held that "the finding in the judgment under appeal that the enquiry had not been conducted according to law, has not been refuted satisfactorily, therefore the appeal was dismissed without costs.
' The further observation, to quote the same in the words used by the Labour Appellate Tribunal was : "The appellant would however, be at liberty to hold fresh domestic enquiry if deemed necessary but such enquiry shall be held after the decision of the criminal case by the Special Court. The Labour Court has also directed re-instatement of the respondent with back benefits. The question of payment of back benefits shall mainly depend upon the result of the fresh enquiry if any held by the appellant. Accordingly this part of the judgment is not upheld. It shall be decided at the relevant stage by the appellant. However, the order under appeal shall hold good to the extent of respondent's re-instatement in service."
' Against these orders this constitutional petition had been filed. An application was filed on 30-7- 1984 (C. M 363/1984) wherein it was prayed that the departmental enquiry should be allowed to be held even though the criminal case is pending on the same subject. By our order dated 19th September, 1984 we decided to hear the petition on merits. We have been informed that the respondent No, 1 has been re-instated.
3. That learned counsel appearing for the petitioner has urged the following grounds before us :-
(i) that the labour Court had no jurisdiction, the respondent No, 1 had been dismissed on the ground of misconduct, which was not as a consequence of any industrial dispute nor led to an industrial dispute did not give right to grievance which can be agitated before the Labour Court.
(ii) That the petition before the Presiding Officer Labour Court was barred by time.
4. The real test as pointed out by the Hon'ble Supreme Court in Shahbaz Khan's case (1), for determining whether an employee is a workman is what is the substantial nature of his employment. It has not been denied that Respondent, Muhammad Asif Ahmed is an Assistant and has been doing clerical job in the National Bank at its Branch A and thus he qualifies himself as a workman. It is also an admitted feature of the case that even the rules framed by the National Bank of Pakistan provide a procedure for disciplinary action and thus it is the right of the employees of the Bank to be proceeded with in accordance with rules and this right in the matter of disciplinary action is guaranteed under the rules framed by the National Bank for its employees. The very language of section 25-A of the Industrial Relations Ordinance, 1969 as amended indicates that whosoever qualifies as a workman under the law can seek the remedy provided therein in respect of the rights secured under other law. This provision therefore establishes a link directly with the
(1) 1977 SCM R 103 substantive right enshrined in some other act/law for which a remedial enforcement provision is made under this law. This is the view which was taken by Shafiur Rahman, J. (as he then was) in Messrs Shahi Bottler's Ltd.'s case (1), and we are in agreement with the same. The right guaranteed to the respondent No, 1 therefore can be enforced under section 25-A of the I. R.
0. And the grievance petition filed by him was competent. There is no denial of the fact that no enquiry was conducted in accordance with law applicable to the respondent No,1 and further that no witness was examined in his presence nor he was afforded any opportunity to produce c his defence. Thus, he has not been treated in accordance with the Disciplinary rules applicable to the respondent No, 1 and the principles of Natural Justice were violated. The objection about the jurisdiction of the Court/Tribunal to decide a matter is distinct from the one when the maintainability of an application on account of certain prerequisite is to be considered.
5. It is by now the well-established law that if an authority bas jurisdiction to entertain a matter it has also the jurisdiction to, decide the question of limitation rightly or wrongly. The Presiding Officer Labour Court and the Labour Appellate Tribunal have entertained the plea of limitation and have decided it by repelling the objection on the score of limitation and we are clear in our minds that they could decide whether or not to condone the delay in its presentation and we would not be justified in law in our constitutional jurisdiction to interfere with those orders.
6. The learned counsel for the petitioner has urged before us that the domestic enquiry can proceed pending the decision of the Special Judge who is seized of the matter. This contention is under examination by the Supreme Court in D.
1.-G., Lahore Range v. Anisur Rehman (2).
7. Now there remains to be considered whether the order of the Labour Appellate Tribunal in withholding the payment of back wages to the respondent was legal and with jurisdiction. We are conscious of the fact that this part of the order has not been challenged by the respondent No, 1 formally by any petition but we feel it would be rather a technical view of matter and is to be avoided because once the High Court is seized of the matter, it becomes its duty to cast its eye not merely on one part of the E proceedings but the whole of them. What comes under the review of the High Court are the proceedings as a whole from start to finish and the object of the scrutiny of the High Court is that so far as possible justice may be done to the proceedings as a whole and the mere technicalities unless offering an insurmountable hurdle should not be allowed to defeat the ends of justice.
' In Imtiaz Ahmad's case (3) Kaikaus, J. Observed at page 399 that :- "I must confess that having dealt with technicalities for more than forty years, out of which thirty years are at the Bar, I do not feel much impressed with them. I think the proper place of procedure in any system of administration of justice is to help and not to thwart the grant to the people their rights. All technicalities have to be avoided unless it is essential to comply with them on ground
(1) 1979 PLC 424 (2)1983 SCM R 160
(3) PLD 1963 SC 382 of public policy. The English system of justice on which our own is based may be to a certain extent technical but we are not to take from that system its defect. Any system which by giving effect to the form and not to substance defeats substantive rights is defective to that extent. The ideal must always be a system that gives to every person what is his.
' The principle object behind all legal formalities is to safeguard the paramount interest of justice.
We can now look forward to a greater infusion and conversion of Islamic law and morality in Islamic Republic of Pakistan. Islam does share with law and morality the common objectives regulating human conduct and social behaviour and comprehends and circumscribes their limits."
8. In the present case the order which was brought before the Labour Appellate Tribunal for consideration had two elements. One directing re-instatement if the order of termination was illegal and other payment of back wages. The respondent No, 1 had been asserting from the very beginning that he was entitled to back benefits and a prayer to that effect was made in the grievance petition made by him under section 25-A of the I. R.
0. Before the Presiding Officer Labour. The Presiding Officer after assessing the evidence led by the parties had come to the conclusion that the termination order was illegal and offended against law prescribed in this behalf and this was confirmed by the appellate tribunal too. As a natural corollary the workman was entitled to back benefits unless it could be shown that he has been gainfully employed elsewhere during this period, the burden of which lay on the employer. For this reason the order of withholding back benefit was not only improper but illegal and without jurisdiction.
' This view was taken by Sind Labour Appellate Tribunal in Ghulam Mustafa Larik and 4 others v.
President National Bank of Pakistan, Karachi (1). The decision is based on decisions of High Courts of Sind and Baluchistan and the Lahore High Court and also the unreported judgment of the Supreme Court of Pakistan passed on 23-10-1983 in C. P. S. L. A. No, K-254/83 (Messrs Dilkusha Enterprises Ltd. v. Messrs Abdul Rashid and others).
' Respectfully following the enunciation of law by the Supreme Court and agreeing with the views taken by the Courts referred above, we have come to the conclusion that the respondent No, 1 would be entitled to the back benefits for the period during which he remained out of employment as he shall continue in service till he is adjudged otherwise. If the respondent No, 1 is ultimately convicted by the special Judge he has to face the consequences of conviction but till then the emoluments cannot be withheld as punishment in advance. The reason assigned by the Labor Appellate Tribunal, Quetta loses sight of the elementary principle of jurisprudence that an accused person must be presumed to be innocent tile his guilt is established.
' For the above reasons we in the exercise of supervisory jurisdiction conferred on us under Article 199 of the Provisional Constitution Order, 1981 set aside the order of the Labour Appellate Tribunal by which the back benefits have been withheld and declare that the order to that extent is illegal and without jurisdiction. Accordingly we restore the order of the Presiding Officer Labour Court-I, Quetta passed
(1) 1984 PLC 1697 in Application No, 15 of 1983 on 15-11-1983 and order that the petitioners shall re-instate the respondent Muhammad Asif Ahmed in terms of that order and shall pay the back benefits to him within two weeks from the date of this order. With these observations we dismiss the petition but leave the parties to bear their own costs.