JUDGMENT Ihsanul Haque Chaudhry, {-hairman), The petitiouers who were appointed as temoorary Patwaries at different places in district Sialkot subject to relaxation in age by the competent authority. They were appointed in May, 1983, and continued working as such without any pay. The petitioners when failed to get their emoluments ultimately filed an appeal under section 4 of the Punjab Serviee Tribunal Act, 1974, and prayed for direction to the respondents to pay their salaries from May, 1983 The appeal was admitted to regular heating. Respondent No 2 vide order dated 29-4-19*7, has now proceeded to dispense with services of the petitioners as the Board of Revenue has declined to grant relaxation in their ages. The Petitioners through the present application want that the operation of the order, dated 29-4-1987, should be suspended. The application is misconcieved and I am afraid that the o> der cannot be suspended in the title appeal. Powers of the Punjab Service Tribunal have been enumerated in section S of the Punjab Service Tribunal Act, 1974 and f jr the purpose of present applieation sub-section 2 is relevant which reads as under ;- "2. The Tribunal shall, for purpose of deciding any appeal, be deemed to be a Civil Court and shall have the same powers as are vested in such court under the Civil Procedure Code, 1908 tAct V of 1908) The Punjab Service Triounal, 1974 by legal fiction assumes Tribunal to be a Civil Court for deciding appeals and enjoying powers vested in such court under the CPC."
It is thus clear that the Tribunal while deciding the appeal enjoys the powers provided in order XL1 section 96 and 100 CPC. Their lordship of the Supreme Court of Pakistan has clearly held in PLD- 1986-SCMR 96S, that the Tribunal enjoys only powers relating to the appeals and no other provision. Now iclevant provision dealing with the matter is contained in rule S order 41 of CPC.
Which reads as under s- "5. Stay by Appellate Court.-(1) An appeal shall not operate as a stay of proceedings under a decree or oi der appealed fiom except so far as the Appellate Court may order, nor snail execution of a decree be stayed by reason only of an appeal having been preieired from the decree ; but the Appellate Court may for sufficient cause order stay of execution of suen decree."
2. It is clear that the order which is subject matter of this application is not an order impugned in the appeal, I eAeicising the powers under the above quoted rule can suspend an impugned order or judgment but has no jurisdiction to suspend an order, wmen is independent ol the impugned order and furnishes a fresn grievance 1 he petitioners have to first impugned the same m the proper form and then make request for suspension of the same in nutshell the legal position is toat an order, which is not subject matter of the appeal, cannot be suspended or dealt with in the appeal already pending. Petitioners have independent remedy against the order dated 19-4-i9o7.
As it is neither in cuntinuati n nor part of the earlier order impugned in the titled appeal. The application is misconcieved and henee dismissed. Announced in Chamber on 14-5-1987.
S.L.R. 1987 Labour Cases 244 [Lahore] Present; Falok Sher, J.
PERSONNEL/FACTORY MANAGER PACKAGES LTD.
Versos YOUSAF MASIH Etc. W.P. So. 3752 of 1985. Decided on 1st /one, 1987.
(a) West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance 19e8 ---- S.O. lS(3)(e)-Petitioner dismissing respondent on account of his absence for a period of more than 10 days without leave-Punjab Labour Appellate Tribunal re- instating respondent in service with 75% back benefits. (Para. 2)
(b) Constitntion of Pakistan (1973) ---- Art. 199-S O. 15 prescribes a whole spectrum of punishment-As a necessary corollary thereof it implies that visitation of quantum of such punishm nt should have the inbuilt correlationsbip with degree of blame- worthinees of the wrong doer-Held: Same not depicted-Further held Petition Accepted-Petitioner re-instated with full back benefits-However subject to deduction of fine of one paisa per rupee out of the wages for the actual period of absence without leave. (Para. 4, 5)
For the Petitioner I Ch. Javed Altaf, Advocate with Khurahid Ahmad Khan, Ch. Altaf Hussain Advocate with Javaid, Advocate.
For the Respondents : Muhammad Zassan Qureshi. Advocate.
Falak Sher, J.-This petition is directed against the order of the Punjab Labour Appellate Tribunal passed on 24-8-1985.
2. Brief facts of the ease are that respondent No. 1 joined the employment of tte petitioner in the year 1968 as a Fitter and while working as Machine Operatar in the yeai 198l, for health reasons absented himself from duty fer a period of more than 10 days, without leave ; consequently. The petitioner in the purported exercise of powers as contemplated by the standing order 15(3)^e) of the West Pakistan Industrial and Commercial Employment (Standing Orders), Ordinance, 1968 (hereinafter referred to as the Ordinance), dismissed him from service. Whereupon, respondent No. t, feeling aggrieved, iastituted a petition under section 25-A of the Industrial Relations Ordinance, !fe9 fafter serving the grievance notice) before the Punjab Labour Court No 2, seeking (reinstatement in service which was dismissed on 5-5-1985. Respondent No. 1, feeling dissatisfied, preferred an appeal before the Ppnjab Labour Appellate Tribunal, being Appeal No. LHR 334/85 Punjab which whs accepted vide order dated 24-8-1985, reinstating respondent No 1 in service along with 75% back benefits ; against which the petitioner has instituted the present petition.
3. The learned counsel for the petitioner contend* that absence of respondent No. 1 from duty without leave for more than 10 days has'been proved, which constitute misconduct meriting dismissal from service as prescribed by the standing order 15(3)(e) of the Ordinance ; thus the impugned order is without lawful authority. It is further contended that the learned Labour Appellate Tribunal has misraad the evidence as to service of notices etc. Upon respondent No. 1. d. I have examined the contention of the learned counsel fol the petitioner but I am not impressed bp the same, The solitary ironsd on which the respondent Ne. 1 has been dismiss- from service is that he remained absent from duty for more than 0 days without leave. A perusal of the record reveals that respondent No. 1 was suffering from tuberculosis (a disease to which workers in the paper industry easily fall a prey and are susceptible and had sought leave on medical grounds from petitioner which was refused. Taking the petitioner's case at its best that act of respondent No. 1 did constitute misconduct, as contemplated in terms of Standing Order 15(3) e) of the Ordinance rendering him liable to be vigited by a penalty ai p ovided by standing order 15(2) of t e Ordinance then, objectively speak'ng, one is supposed to act rationally within the frame work of law, It would be conducive for proper appreciation of the arguments of the learned counsel for the petition r to lojk at the scheme of standing order 1 (2) of the Ordinance in its appropriate perspective, revealing the true intendment of the legislature.
"IS. Punishment. m A workman found guiltv of misconduct shall be liable to any of the following punishments i-
(1) fine in the manner prescribed under the Payment of Wages Act 193ft IV of 1936> up to three paisa in the rupee of the wages payable t him in a month |
(ij) Withholding of ineremcnt or promotion for a specified period not exceeding one year |
(Iff) reduction to a lower post | or
(fv) dismissal without payment of any compensation in lieu of notice."
An examination of this statutory provision demonstrates that the legislature has prescribed a whole spectrum of punishment starting with a milder version ol fine and gradually escalating to the maximum penalty of dismissal, which is a pregnant evidence of the intention of the framers of this pioce of legislation that the employer has been vested with a discretion to choose the kind of puaisnment whicn would justify to meet the ends of justice in a given case. It needs no reminding that this discretion to be exercised like all other discretionary powers in a reasonable and judieious manner. As a necessary coiollary therefore it implies that visitation of quantum of punishment should have the inbuilt correlation- ship with the degree of blameworthiness of the wrongdoer.
5. I am afraid this correlationship is not depicted in the instant case when visualized through the binoeulosis ef nationalism.
In para 7 of the judgment of the learned trial Court, it is mentioned that there is ample evidence on the record to demonstrate that respondent No. 1 is a suspected patient of TB, and the management had thought him to be a problem, since he was not keeping good health, petitioner deemed it appropriate to shed off the load. This factual aspect has gone unrebutted by the petitioner ; thus stands proved The record peaks of the fact, that absence was for health reasons which is not a case of wilful insubordination or indiscipline warranting major penalty ; conversely speaking I would imagine that petitioner should have acted in g more humane manner, No mcnsrea is attributable to respondent No. 1 in the discharge of his employment and rendering services to the petitioner. 1 am of the opinion that the learned Appellate Tribunal has rightly reinstated lespondent No 1 in service ; however, I feel that the part of the impugned order granting 75 % >f back benefits, in the peculiar facts of the case needs re-appreciation Since no mensrea is attracted towards the conduet of respondent N a. 1 coupled with the faet that he did submit application for grant and execution of leave on medical grounds (which reason stands substantiated, thoefore, I hold the view that the maximum penalty that could have been imposed in t^e instant case is the one contemplated by the Standing Order 15(0(0 f the Ordinance, which says fine upto three paisa in the rupee of the wages payable to him in a month It is worth noticing that the statutory draftsman has mentioned even this three paisa at the maximum by using the expression ' upto" meani' g thereby that fine may be even lesser than that in a given ease. I accordingly modify the order in relation to the 75% back benefits The petitioner is entitled to reinstatement with full back benefits suoject to deduction of fine of one paisa per rupee out of the wages as contemplated under the Payment of Wages Act, 1936, for the actual period of absence without leave.
6 With the above modification in the impugned order, this writ petition is disposed of ; however; there shall be no orders as to costs.
S.L.R. 1987 Labour & Service Cases 247 [Peshawar] Present: Allah Bakhsh, and Muhammad Ishaq, JJ.
ABBAS KHAN KHATTAK versus PAKISTAN FOREVT INSTITUTE and two others W.P. No. 139 of 1985, on decidsd 8th February, 1987.
(a) PASSCO (Staff) Service Regulations (1979) ---- Regulation No. 14-Petitioner's services on conclusion of disciplinary proceedings terminated-Petitioner assailing >ueh order of termination before the Labour Court- Grievance notice-Held : Not competent before Labour Court-Petitioner advised to m >we Correct forum. (Para. 2)
(b) Provisional Constitution Order (1981) read with Laws (Continuance in force) Order (1977) --Art. 9-Petitioner invoking writ jurisdiction of Peshawar High Court- Petitioner serving at Lahore when inpugaed order passed against him- Petition-Held : Without j irisdietion-iame dismissed, (Para, i)
1979 SCMR 555 relied.
For the Petitioner 3 S. Iftikhar Gilani, Advocate.
For the Respondentt: Kh. Muhammad Akram, Advocate.
Date of hearing ; 20th January, 1987.
Allah Bakhsh, J -Abbas Khan Khattak has by this constitutional petition called in question an order dated 31-10-1981 passed by respondent 2 and has sought a declaration that it was ultra vires and malafide.
2. The facts forming the background of this petition briefly are that the petitioner was working as a Tenhnical Assistant (NPS-16) in the Pakisran Force! Institute, Peshawar, respondent 1, and his services were placed at tbs disposal of respondents 2 and 3. He was subsequently absorbed by them permanently on 21-8-1982 and his r ame was struck off the roll ef respondent 1 per notifeation dated 4th September, 1982. He was communicated an audit report and later on respondent 2 s- rved him with a show-cause notice An enquiry was conducted during November, 1983 and he was served with a second notice on 10-4-198*. The disciplinary proceedings came to an end and the impugned order was passed against him whereby his services were terminated under Regulation 14 of PASSCO (Staff) Service Regulations, 1979. He served the respondents with a grievance notice and moved the Labour Court. Peshawar but the petition was returned to him for presentation at the proper forum.
3. The learned counsel for the respondents 2 and 3 raised a preliminary objection with regard to the competency of the writ petition in this Court. He strenuosly contended that Pakistan Agricultural Storage and Services corporation Limited (PASSCO), a public limited Company incorporated under the Companies Act, had its registered office at Lahore where respondents 2 and 3 functioned, that the impugned order had been passed at Lahore and that the petitioner was serving as an employee of PASSCO at Lahore when the said order was passed against him. Since the impugned order had been passed at Lahore beyond the territorial jurisdiction of this Court where the petitioner served those days this Court would have no jurisdiction at all. He for this view of she matter relied on Sabir Din v Government of Pakistan .1979 SCMR 555), In this cases the respondent whose order was brought under challenge resided at R within the jurisdiction of High Court at Lahore. The petitioner at the time of passing the said order was posted at Muza^arabad, Azad Jumma & Kashmir. He brought a writ petition in the Peshawar High Court but it was held that this Court h d no jurisdiction, The matter was taken to the Supreme Court which affirmed the view of the High C >urt. In the instant case the petitio ler as aa employee of PASSCO was serving at Lahore when the impugned orde was passed at Lahore and was served on him at Lahore It would, therefore be the Lahore High Court which shall have jurisdiction in the matter and the territorial jurisdiction of this Court stood ousted. It may be pointed out that the learned counsel for the petitioner could not die any authority for a contrary view. It is significant to note that the petitioner had movod Labour Court at Peshawar but the latter held that it had no jurisdiction and ordered that the petition he returned to him for presentation at the proper forum. This order of the Labour Court was not questioned before the Appellate Tribunal and it attained finality. Moreover, the mere fact that Pakistan Forest Institute with whom the petitioner previously served has been arrayed as respondent 1 would matter little inasmuch as no relief has been claimed against it. Furthermore, the cause of action did not arise nor the petitioner resided within the territorial jurisdiction of this Court when the impugaed order was passed. We are of the view that this Court lacks jurisdiction tmd the writ petition has been brought at a wrong forum, 4, The next contention of the learned counsel for the respondents was that PASSCO was a public limited company incorporated under the Companies Act, had its own Memorandum and Articles of Association as well as service Regulations f amed thereunder, the petitioner was not goverred bv statutory rules and, as such, he could not invoke the constitutional Jurisdiction of this Court. Since his preliminary objection with regard to the jurisdiction of this Court prevails we would not like to give a finding on this contention.
The writ petition fails on the ground of lack of territorial jurisdiction and is ditmissed with costs.
K.L.E. 1987 labour Cases 249 [Lahore] Present: Rnja Afrasiab Khan, J.
PUNJAB SMALL INDUSTRIES CORPORATION versus ABDDUL WAHE8D W.P. No. 1912 of 1983, decided on 9th May, 1987.
(a) Industrial Relations Ordinance (1969) ---- S. 25-A & 37-Services of respondents terminated on the plea of closing down of Footwear section of the petitioner Corporation-Grievance notices before Labour Court failing-Respondent's appeals accepted with back benefits---- (Para. 2)
(b) Provisional Constitution Order (198l) ---- Art. v-Petitioner corporation challenging reinstatement orders passed by Labour Appellate Court-High Court finding no justification to interfere in the finding of fact in writ jurisdiction-Contention that Labour Court had no jurisdiction in the matter-Repelled-There being no force in the petition-Held I Same stand dismissed- (.Para. 5)
PLJ 1978. Rr. c 51 PLD 198) Lah, 337. PLD 1974 S 139, PLD 1982, SC (AJ & K) 64 PLD 1987, Lah. 263. Relied.
Per the Appellant: M'S. Beg, Advocate.
For the Respondent; M. Nawaz Kasuri, Advocate.
Date of hearing I 9th May, 1986.
Maja Afrasiab Khan J.-The petitioner, Punjab Small Industries Corporation (.Hereinafter to be known as the Corporation) has moved this Constitutional petition WP No. i9l2 of 1983 under Article 9 of the Provisional Constitution Order, 198', against respondents whereby the Punjab Labour Appellate Tribunal vide its decision dated 20-4-1983, accepted f>e appeal of the respondent No. 2 Abdul Waheed, directing his reinstatement to his service with back benefits. Similarly, the Corporation has filed WP No. 1913 of 1983 against Muhammad Ashraf respondeat, WP Ho. 1914 of 1983 against Nazir Ahmad respondent, WP No 1915 of 1983 against Abdul Hamid respondent and WP No I 916 of *83 against Muhammad Sarfraz respondent. Since common questions of facts and law are involved in all these connected matters, I, therefore, propose to dispose of these petitions by my consolidated order.
2. Respondents No. 2 in all these connected matters were appointed as expert bottomar, upper man, bottomar, fcoey leather Mistri and upper man in a section of the Corporation called the Institute of Leather Technology, Footware Section Gujranwala. The object to run the aforesaid centre was to p,ovide trained personnel for shoe-making industry with latest technology According to the Corporation, at the initial stage the project was run with useful service to the inoustry but later on its utility diminished rapidly as a result of which the Board of Directors took the decision to close the project This is the version of the Corporation although it is wholly refuted and denied by the contesting respondents. The Board aforesaid, directed on 14-4-1980 that the services of the staff should be terminated and the project should be sublet As a consequence of the decision stated above, the services of respondents No 2 in each case were terminated with iromedia e effect bring no longer required yids order dated 9-8-1980 (Annexures 'B') The respondents filed grievance petitions under section 25-A of the Industrial Relations Ordinance, 1969, challenging the orders whereby their services were terminated before the Presiding Officer, Panjab Labour Court No. 7, Gujranwala. The learned Presiding officer of the said Court vide his orders date 22-2-1982 (Annexure *C') dismissed the petitions of the respondents The respondents went in appeal before the Punjab Lab ur Appellate Tribunal, Lahere, under section 37 of the Industrial Relations Ordinance 1969, challenging the orders aforesaid. The learned Labour Appellate Tribunal vide his ordes dated 20-4-1983 accepted the appeals of the respondents with back benefits,
3. The learned counsel appearing on behalf of the Corporation has submitted that the learned Tribunal has misread the evidence on records inasmuch as the statement of Ghulam Husain (RW1) clearly shows that the shoe section of the institute is closed. It is stated that if the respondents are taken into service back, this shall be a great financial burden on the Corporation. It is vehemently contended by learned counsel for the petitioner that the provisions contained in the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, are not applicable to the Corporation as the Corporation is a statutory body being run by the Government and has got its statutory rules. On these premises the learned counsel stated that the learned Labour Appellate Tribunal had no jurisdiction to entertain the appeals of the respondents and to decide the same.
Learned counsel wanted to produce some additional evidence at this stage to prove that shoe section of the institute could not be leased out as per an agreement between Pakistan and West Gernmany, Learned counsel for respondents Ns*. 2 in each case has taken the stand that their posts were never abolished and us such, their services could not be terminated. It i3 submitted that the shoe section of the institute has been given on contract basis, it is submitted that the learned Labour Appellate Tribunal after considering the entire evidence produced by both the parties and the law applicable on subject, had given a finding of fact that the shoe section has not bean closed and that the posts of the respondents have not been abolished. K is next venemeitly submitted that the petitioner has not corns with clean hands in tis e High Court and not deserve any discretionary relief. It is submitted that the petitioner now wants to build altogether a new case from the one which w*s available to it before the learned Labour Appellate Tribunal. The learned counsel forcefully argu: d that this was not the case of the Corporation that the shoe section of the institute had been closed. Neither this plea was taken in the written statement nor in the relieving order. The learned counsel has produced before me affidavit of Mr. Zsfar Saleem Advo.Ate, Gujranwala, to disclose tha* RW 1 Ghulam Husain did not depose in his statement that shoe section of the institute is lying closed since long. Besides this, the learned counsel has also placed before the Court the hand writte t copy of the statement of RW 1 which he no*ed while inspecting the file. It is next contended that no counter affidavit has been filed by the Corporation challenging the contents of the affidavit of Mr. Zfar Saleem Advocate, Gujranwala. The affidavit of Mr. Zafar Salseaa Advocate was that he was a counsel in the case and appeared before th Punjab Labour Court No. t as such. He slated that he in pected the file and noteu the statement of Ghulam Hussain Accounts Officer (RW 1) in its entirety and there was no mention by the said witness that the shoj section of the institute has been elosed.
4 I have heard learned counsel for the parties at great length and perused the record very minutely and l have come to the coclusion that the shoe section of the institute has not at all been closed.
To begin with, the learned Punjab Labour Appellate Tribunal after considering the entire evidence on record gave a clear finding of fact that shoe section has not been closed. The learned Tribunal has placed reliance on the written statement as well as the statement of Ghulam Husain (RW 1) to say that the shoe section has not been closed. T e learned Tsibunal had also come to (he conclusion that steps had been taken for leasing out the shoe section and tenders for that purpose have been invited. The learned Tribunal has eoneluded by saying that services of the workmen could not be terminated b adopting such a device. The finding of fact arrived at by the Punjab Labour Appellate Tribunal coupled with the affidavit of Mr. Zafar Saleem Advocate, Gujranwala, I have come to the conclusion that the shoe section was not closed at the relevant time The statement of RW 1 Ghulam Husain Accounts Office; did not contain the sentence namely, "shoe section is lying closed". It was pointed out by the learned counsel appearing on behalf of the respondents that interpolations had been made in the statement of Ghulam Husain (RW 1), in smueh as that sentence namely, "shoe section is lying closed" has been added in different ink by a different hand. I have myself seen the said disputed, sentence with! Magnifying glass and I find the same in different hand and different ink from the other statement of RW 1. The learned counsel for the Corporation, when confronted with this specific situation, could no explain the same in so many clear words. However, he stated that the learned Punjab Labour Court No. 7 has categorically stated in his judgment that the witness RW 1 Ghulam Husain has stated that shoe section is lying closed*. Additionally it is clear from the orders dated 9*8-1980, whereby the services of the respondents were terminated on the ground of abolition of posts. In these orders there is no mention that the shoe section has been closed. On the request of the learned counsel for the Corporation, one Mr. Muhammad Nauman Usmani, Supervisor, was summoned in Court and he deposed that shoe section i* closed since 1980 and the machinery worth 19 (nineteen) lacs is lying idle and that his services have bees retained in order to look after tba said machinery, I am also of the view that this officer is the employee of the Corporation and he cannot go against hig instructions. The mere fact that the machinery worth lacs of rupees is still installed at the spot and that he was here as supervisor will show that the section in question has not been closed. I, therefore, think that the finding of the learned Labour Appellate Tribunal that this device has been adopted to terminate the services of the respondents appears to be correct.
5. I am of the view that the finding given by the learned Labour Appellate Tribunal is based on evidence and I do not find any justification to interfere in that finding of fact in the exercise of extra- ordinary writ jurisdiction, If any authority is needed, reference may be mado to Muhammad Hussain Manir v. Sikandar etc. PLD 1974 SC 139, Muhammad Suieman etc v. Javed Iqbal etc. PLD 19s2 SC AJ & K 64 and A>mu v. District Judge, Sialkot etc. PLD 1S87 Lahore 263. There is no force in the contention of the learned counsel for the Corporation that the learned Labour Appellate Tribunal had no jurisdiction to entertain t^e appeal. The Corporation submitted to the jurisdiction of the learned Labour Appellate Tribunal and they did net raise this plea before the said Court and, therefore, now at this stage they cannot be permitted to raise the plea of jurisdiction. Furthermore, the plea of jurisdiction was raised by the Corporation before the Presiding Officer Punjab Labour Court Mo. 7, that the instant case does not fail in his jurisdiction for determination. However, the learned Presiding flier overruled the objection and held that the Labour Court was competent to entertain and decide the matter and in that behalf reliance was placed on siueed Ahmad Chand v Regional Manager, PaS & DC Lahore PLJ i9'8 Tr C Labour 5i. This view is further supported by the case of Habtbuliah v. Government of the Punjab etc. PLD i960 Lahore 337 wherein it was held that the respondeat is one of such Corporations and the functions it is entitled to perlorm under sections 18 and 27 of Act XV of 1973, to constitute it as a person performing functions in connection with the affairs of a Province. I respectfully follow the dictum laid down in this case for its service in the case in hand. It may be pointed out that the Corporation did not file any cross-objections before the Punjab Labour Appellate Tribunal so far as this part of the finding by the Presiding Officer Punjab Labour Court No 7 was concerned Thus the objection of the Corporation is repelled. The learned counsel wanted to produce some additional evidence ia the shape of a letter saying that the machinery installed in the institute shall not be leaed out cannot be permitted to do so at this stage. If the aforesaid letter was so much important from the point of view of Corporation, they should have produced that letter at earliest possible oppertuaity. They did not do so, neither before the Punjab Laoour Court No. 7, nor before the Punjab Labour Appellate Tribunal, They, therefore, cannot be allowed to produce fresh evidence at this stage in the exercise of Constitutional jurisdiction of the High Court. It is next argued by the learned counsel that the actions aed orders of the Corporation stand validated by the Validating Ordinance, 1972, and therefore, if any irregularity has been committed by the Corporation, that stands validated. 1 am not persuaded to go into the validity or otherwise of the contention raised by the learned oounsel for the Corporation because the same point is under consideration before the Full Bench of the Lahore High Court. Therefore, I do not enter iato the discussion on the plea of the learned counsel.
6. Now I take up Writ Petition No. 2332/S-83 titled Muhammad Ashraf v. Punjab Small Industries Corporation etc. In this case there is slight difference from the other five connected writ petitions, inasmuch as the petitioner, Muhammad Ashraf, directly came in the Nigh Court by moving the aforesaid writ petition against the orders of the respondent whereby his services were terminated on the ground that the post of Shoe Technologist ia the Institute of Leather Technology, Gujraawala, had been abolished, in this case, the leirned counsel states that the petitioner does not come within the definition of a workman, and, therefore, he could not go before the Labour Court for the redress of his grievance. However, he stated that if the High Court comes to the conclusion that the orders passed by the Punjab Labour Appellate Tribunal were justified in law and upheld, then in that case, the petitioner shall also be benefitted by that order. The writ petition of the petitioner was also admitted on the basis that the impugned orders terminating the services of the resp indents in the connected cases were under scrutiny before the High Court. The petitioner maintained that he sent the representation to the respondent Corporation but the same was not considered at all and instead the petitioner was given the assurance by the Corporation that the cases of Abdul Waheed, Muhammad Ashraf, Nazir Ahmad, Abdul Hamid and Muhammad Sarfraz were pending adjudication before the Court of law and whatever would be the result in those cases, it shall be applicable in the case of the petitioner as well and in case the Court decides that the respondents in the other connected matters are restored in their service, the writ-petitioner shall also be reinstated in bis service. On the deeisioa by t e Punjab Labour Appellate Tribunal vide its order dated 20-4-1983, the petitioner moved the respondent Corporation for his reinstatement but the Corporation refused t accept the request of the petitioner. 1a view of this, the petitioner has come in the writ jurisdiction of the High Court.
7. Learned counsel for the petitioner prays that he may be linked with whatever might be the decision in all the other connected matters. Since this petition too is connected wita the other similar matters, therefor, the delay in challenging the impugned order passed by rasp ndent Corporation is condoned in view of the special circumstances of the instant case.
8. The upshot of the discussion is that there is no force in WP No. 1912 of 19s3. WP No. 1913 of 19S3 of 983, WP No. I9i4 of 1983, WP No. 1915 of 1983 and WP No. 1916 of 1983 filed by the Corporation, which are accordingly dismissed leaving the parties to bear their own costs,
9. However, WP No. 2332/S of 1983 titled Muhammad Ashraf v. Punjab Small Industries Corporation is accepted declaring the impugned orders dated 1-sO-l'<80 and 10-11-1980 as without lawful authority and of no legal effect, leaving the parties to bear their own costs.
K.L.K. 19S7 Labour and Service Cases 253 [Lahore] Present; Muhammad Aslam Mian, /.
Ch. HAKAM ALI Etc. Versus GOVERNMENT OF PUNJAB Etc, Civil Revision No. 1040 of 1982, decided on 25th May, 1987.
Civil Procedure Code of (1908) ---- S.11 -Respondents contending their appointments being of no legal effect-It being simplictor case of determining the fitness of a person for promotion-Civil Courts competent in such matters-West Pakistan Tehsildari and Naib Tehsildari Service Rules 1962 undergoing a change with the induction of Punjab civil Servants Act 1974 read with Punjab Civil Servants (appointments and conditions of service) Rules 1974-Such rules requiring selection of appointees by a Departmental Selection Committee-Member Board of Revenue authorised to issue direction though no notice given to promotees/rgspondents-Order of Member Board of Revenue to prevail-Held-Petition accepted. (Paras. 9)
For the Petitioners I Mushtaq Masood, Advocate, For the Respondents : Malik 'vtuhimmad Azam Rasool, Advocate.
For the Respondents Nos 19. 21, 22 and 23 I Naj m-uz-Ziman, Assistant Advocate General with Altaf Muhammad Khan, Advocate.
Date of hearing ; 27th April, 1987.
Muhammad Aslain Mian, J. -Ttiis civil revision has been filed against a judgment dated 160-1982 oi the learned Additional District Judge, Lahore, who upheld on appeal the judgment dated 3 7-1980 of the learned Civil Judge decreeing a declaratory suit with consequencial relief. The respondents Nos. 3 to 23 instituted a suit on 8-6-1*77 against Government of the Punjab respondent No. 1 in the Civil Court at Lahore seeking a declaration to the effect that an order dated 16-9 1975 regarding the appointment of respondents Nos. 3 to 23 had become final and was legal and an order dated 11-1- 1977 passed by respondent No. 1 was without jurisdiction illegal, null and void and in-operative as to the rights of respondent* Nos, 3 to 23 as Naib Tehsildars/A.C. Os. The plaint was subsequently amended by joining the petitioners and another as defendants. According to the averments in the plaint the respondents Nos. 3 to 73 were serving as Qaaun^os in the Lahore Division. They were selected for appointment as Naio Tehsildars by the Commissioner, Lahore Division ride his order dated 16*9-1975. The plaintiffs/respondents took over as Naib Tehsildars/AC Os in 1976 pursuant to the order of the Commissioner and went on performing their duty satisfactorily The order of the Commissioner stood fully implemented and acted upon. The Member, Board of Revenae on an representation of some aggrieved Qanungos by his ord,;r dated 11-1-1977 set aside the order dated 16th Septemoer, 1975 of the Commissioner, Lahore Division promoting the plaintiffs/respondents by selection, directing the Commissioner to make fresh appointments by considenng the other officials who were also eligible for promotion, The Member, Board of Revenue bad also added to his order that the plaintiffs/ respondents did not fulfil the condition of age limit as such their selection and appointment stood vitiated on that account. Under the law no representation lay to any higher authority against the promotion or determination of the fitness of a person to be promoted or appointed to a particular post, so the decision taken on a representation was illegal iloagwith the representation. According to the law the order of prom#* tion and appointment as made by the Coammsieaer was final being implemented and acted upon. The plaintiffs/ respondents were given no notice of the representation. They were not heard by the Member, Board of Revenue. The order of the Member, Board of Revenue had effected the pkintiffs/respondents' interest adversely.
According to the latest instructions the app iating authority was competent to relax the condition f age while considering the matter. The Member. Board of Revenue relied upon the instructions dated 5-11-1975 wHch had since been superseded by the subsequent inductions dated 7-2-197ft.
Consequently, the order dated 11-1-1977 of the Member, Board of Revenue was mis-eonceiv- ed and was liable to be set aside, The appointment were made by the GommisMoner in the public interest, be could do it being an appointing authority himself.
2, The respondent No. 1, petitioners and another controverted the suit by raising th preliminary objections as to the maintainability of the suit as well as cause of action and the jurisdiction f the Civil Court and as to the merits maintaining that the selection made by the Commissioner was not valid as that as against the provisions of Punjab Civil Servants Act, 1 '7* and the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 Acc rding to the Rules the selection as t > the appointment was initially to be made by the Divisional Sdection/Promo- tion Committee.
The Commissioner was not competent to make the selection by himself, alone. The selection of the plaintiffs/1 espondents bring illegal conferred no right upon them. T: e Board of Revenue was fully c mpetent to set aside the rrder of the Commissioner in exercise of the powers we ting in that by Section 4(1) of the West akistan Board of Revenue 41 ct, 95 . &t ths relevant time the Commissioner h. d 2. The learned Civil Judge found that the Commissioner had the power to promote Qanungos to the rans of Naib Tehsildars A.C. Os which he did. The order of the Commissioner Was not assailed bv an appeal. After a lapse of mors than one year the Memoer Bo^rd of Revenue had no authority to set aside the order on the comp aint of some interested persons. The plaintiffs/respondents were denied the right of being heard although the principles of natural justice required that nobody was to be condemned as un-heard. The suit was maintainab/e and the Civil vourt had the jurisdiction to try the suit as the ca e d d not involve the adjudication of terms ad conditions of the service but that was a case of promotion. The Commissioner had promoted the ptaintiffs/respondents havina considered them to be the fit persons for promotion. The case was evidently covere I by proviso (bi to section 4 of the Punjab Services Tribunals Act, 1974 which envisaged tint no appeal lay to a Tribunal against an order or decision of a depart nental authority determining the fitness or otherwise of a person to be appointed or hoi 1 a particula post or to be promoted to a higher grade. He relied upon PLD 1976 Lahore 287. Th* proviso to seetion 21 which gave a right of appeal or representation in respect of any order relating to the terms and conditions of the servics to a civil servant, had spesifhally barred the jurisdiction of the Service Tribunal from hearing any representation on matters relating to the determination of fitness of a person to hold a particu ar post or to be promoted to a higher poot or grade. According t the learned Civil Judge the Commis ioner had the auth >nty t > make selection of the pla ntififs/ re pondents and promote them as Naib Tehsildars/AC Os from the rank of Qanungos. No rule provided an* appeal again t the order o* the Commissioner so passed, The Commissioner, Lahore Division had made the appointment of the piamt Jfi/rssp ndents after thorough inquiry and after canode ing the r fi ness. The order which had been imple rented and acted upon could not be revi ed or rev ewed by the Member, Board of Revenue after about sixteen months. A ssuming that anauthirit- did vest in the Member, Board of Revenue yet the impugned order dated 11- 1-19 7 was not sustainable because that wa< pa sed at the back f the plaint fT'/respondent- who could not have been condemned un-heard. The impugned order was passed on consideration of various repre enta- tions which were made incompetently. The order passed by the Member, Board of Revenue was illegal and without jurisdiction. The law did not confer any ight on the Board of Revenue to ente'tain and consider any representation again t the final order of the Commissioner.
Consequently, the inpugned order was against specific provision of section?! Of the Punjab * Civil Servants Act, 1974, The learned Civil Judge decreed the suit as brought with costs vide judgment dated 3 7-1980.
3. Two appeals were filed from the said judgment and decree of the learned C vil Judge-one by the Province of Pumab etc. And the other by the petitioners and another which came to be decided bv the learned Additional District Judge, Lahore. He uphle the judgmnet and dec>ee of the learned Civil Judge and dismissed both the appeals vide his judgment dated 16-5-1982.
4 The learned counsel for the petitioners has contended that it was a case of de notion and eveision from higher rank to a lower rank so the matter appertained to the terms and conditions.
The matter was not covered by proviso to section 4 of the Punjab Service Tribunals Act, iv 4 as such the Civil Court had no jurisdiction. In the rvent the Service Tribunal under the said Act a one hud the (uri-d.c ion. The order of the Commissioner had been acted upon near about two years, there'ore the matt r had to be taken to the Service Tribunal. He ha* cited in support of his submi-sion Mian Ami-ul-Multo v. N.W F P. Through Chief Searet.Ry PLD 19^1 Peshawar 1. He has next contended that the Member Board of Revenue had th; jurisdiction to entertain a representation under section 21 of the Punjab Civil Servants Act, 1974 against an erroneous order of selection of the Naib Tehsildars as made by the Commi-Moner. The learned counsel for the petitioners has relied upon an order refusing leave to app'tl in C.P.S.L A, No. 62 of 1984 ' t.Al Dm end ot era v. Commission r, Lahore Division, in this decision the Departmental election Committee examined the suitability of certain putwaris for bringing them on the selection list of Qanungo- as promotees which selection li t Wit accepted by the Deputy Commissioner On the represen ation of the two respondents the Commissioner found that 5. The learned counsel for respondents Nos. 19, 21, 22 and 23 has supported the decisions of both the Courts below. He has referred to Rule 4 of the West Pakistan Tahsildari and Naib Tehsildari Service Rules, 1962 in order to say that the Commissioner was the appointing authority. The Rule so far as is being relevant is reproduced here j- "4. Appointing Authority-Recruitment to the Service shall be made j
(a) in the case of appointments to the posts of Naib-Tehsildars, by the Commissioner in charge of the Division where the vacancies in such posts occur subject to such directious as the Member Revenue may given generally or in any specific ease The next submission of the learned counsel is that no representation was ompetent to the Member, Board of Revenue respondent No. 1 under Section 21 of the Punjab Civil Servants Act, 1974 by virtue of the proviso to sub-section (2) of Section 21. The referred to provision is reproduced here ?- "21. Right of appeal or representation............................................... **
(2) Where no provision for appeal or review exists in the rules in respect of any order, a civil servant aggrieved by any such order may, except where such order is mace by the Governor, within sixty days of the communication to him of such order, make a representation against it to the authority next above the autnority which made the order.
Provided that no representation shall lie on matters relating to the determination of fitness of a person to hold a particular post or to be promoted to a higher post or grade,"
The third submission of the learned counsel is that even if a representation to respondent No. 1 B >a d of Revenue was competent the same could not be accepted to the very deterimeut of the respondents without hearing them. The last submission of the learned counsel is that ince the order of the Commissioner determined the fitness of the respondents to be promoted as Naib Tehsildars and the order of the Member, Board of Revenue up-setting the promotion fell under proviso (b) to Section 4 of the Punjab Service Tribunal Act, 1974 which says that no appeal shall lie to a Tribunal against an order or decision of a departmental authority determining the fitness or otherwise of a person to be appointed to, or hold a particular post or to >*6 promoted to a higher grade, in view of which the Civil Court had the jurisdiction to entertain the matter.
6. No body has appeared to address on behalf of respondents Nos. 3 to 18, & 20.
7. Tbe arguments of the learned Assistant Advocate General are the same as advanced by the learned counsel for the petitioners.
8. The contention of the learned counsel for the petitioners that only the Punjab Service Tribunal was competent to be moved and the Civil Court had no jurisdiction is not well founded as it is a case which clearly falls under section 4 subsection (b) of t e Punjab Service Tribunals Act, 1974, It is not a case of demotion as involving the terms and conditions of service as suggested by the learned counsel for the petitioners. It is simpliciter a case of determining the fitness of a person to be promoted to a higher grade which fitness has been annulled by the Member Board of Revenue because according to him the selection had not been made in accordance with law.
9. The text of the order dated 11-1-1977 of the Board of Revenue P roceeds with that a number of representations had been made to the ioard of Revenue against the order dated 16-9-1975 passed by the Commissioner Lahore Division whereby twenty two Qanungos were selected as Saib Tahsildars under Rule S.1)(b) of the West Pakistan Tehsildari and Naib Tashildari Service Rules, 1962 in consideration of which representations the order dated 16-9-1975 suffered from the two defects, "() Commissioner, Lahore Division, was not competent to grant relaxation of age in favour of Messrs Inayat Ullah, Abdul Majid, Bashir Ahmad. Ghulam Rasool, Muhammad Jamil, Nawab Din, Muhammad Hussain and Nawazish Ali Shah, in view of the embargo imposed by the Government of the Punjab in the Services, General Administration and Information Department vide their letter No. SOR. II (S&GAD) 4-37/74, dated 17.7-1975, read with their letter No. SORI (S&GAD) 9-20/75, dated 5-11-1975; () The promotion case should have been processed through the Departmental promotion Committee, as required in Government of the Punjab Services, General Administration Department's Notification No. SOR-III-6-3/73 dated 12-11-1974, read with their Notification No. SOR- III-6-3/73, dated 18-3-1975."
Consequently the Member, Board of Revenue directed that the entire case was to be placed before the Departmental Promotion Comuiittee whieh was to consider the cases denovo seniority-wise of all such officers who were eligible for promotion. The promotion was to follow the prescribed Procedure. If the Committee was of the view that a particular rule relating to upper age limit was to be relaxed then the permission was to be sought from the competent authority to do so before any promotion was ordered.
How the question which necessarily arises and about which both the Couits below have expressed their opinion is that whether the representation to the Member, Board of Revenue was competent and the Member, Board of Revenue had the power to revise the order dated 14-v- 975 of the Commissioner. In this case the Commissioner without caring for the Rules and instructions issued thereunder as has been pointed out by the Member, Board of Revenue proceeded to select and promote the Qanun- gos as Naib Tahsildars/ACOs According to the West Pakistan Tahsil- dari and ^aib-Tahsildari Service Rules fiamed in 1962 no doubt the Rules designated the Commissioner as an appointing authority in the case of the appointments to the posts of Naib Tahsildars subject to such directions as the Member Revenue could give generally or in any specific ease yet the law obtaining on the suoject under went a change with the framing of the Punjab Civil Servants Act, 1974 and the Punjab Civil Servants (Appointments and Conditions of Service) Rules, 1974 which Rules required the selection of the appointees to be made by a Departmental Promotion Committee. The Government in Services & General Administration Department had in pursuance of the provision of Rule 4 of the Punjab Civil Servants (Appointments and Conditions of Service) Rules, 1974 constituted the Board/Committees for makiog selection to the various posts vide its Notification No. SOR. III-6-3-1973 dated 12-11-1974. The Departmental Seleetion Committees were also authorised to act as Departmental Promotion Committees for respective posts and in Grade 1 to 15 vide Notification No. SOR-I 1-6-3-73 dated 18-3-1975 of the said department. The composition of the Divisional Selection/Promotion Committee per memo No. 1300-75/1969-B(M) III dated 22-4- 1975 issued by the Punjab Government consisted of the Commissioner as Chairman, the Additional Commissioner (Revenue) as Member and the Assistant to Commissioner concerned dealing with Establishment as Member so it is obvious thrt the selection and promotion made by the Commissioner was basically illegal because he by himself alone could not effect the same as he had done. Without expressing any opinion as to the applicability of sub-section (2) to Section 21 of the Punjab Civil Servant* Act, 1974 to the pre ent case in the matter of representation it is being held that since the act of the Commissioner was entirely beyond the precincts of the law, Rules and instructions thereto, therefore, such an order could be revised by the Member. Board of Revenue whether on representation or of his own in his powers of superintendance under section 4 (i) of the West Pakistan Board of Reveuue Act, *957 read with para 4 of the West Pakistan Tahsildari and Naib-Tahsildari Service Rules, 1962 where he was authorised to issue directions generally or in any specific case whieh can be construed s direc- etions before or after the event. So far as is concerned that n notice was given to the promotees the notice as a matter of course should ha re been given but on that score the order of the Member Board of Revenue cannot be turned down for two reasons :-
(a) It can be safely said that such an order as passed by the Comis- sioner vested them with no right at all and an invalid order could not mature into a valid one merely by the passage of time;
(6) The respondents who are interested in this oase have been heard thr 'Ugh thir couasel now : and the finding of this Court is in parity thcre-with the finding of the Member, B ard of Revenue, as a result whereof this revision petition is accepted and the findings of both the Court' below on issues Nos. 3 and 4 as to whether the order dated 16-9-1975 is final and irrevocable and validly effective and whether the order dated 11-1-t977 is without jurisdiction are reversed since b >th the Courts below h we acted in the exercise of their jurisdiction illegillv by fa ling to apply the correct law.
Resultantly the suit as brought is dismissed. In the circumstance there is no order as to costs.
B.L.R. 1987 Labour and Service Cases 860 [Quetta] Present I Ajmal Mian A.C. J. an4 Amir-ul-Mulk Mengal, JJ MUHAMMAD YOUSUF ysrsus LABOUR APPILLATB TRIBUNAL, BALUCHISTAN, QUETTA G.P.No. 103 of 1986 decided on 2nd November, 1986.
Constitution of Pakistan (1973) ---Art. 199-Petitioner against the termination of hisf services as compositor filing a grievance application under section 25-A of the Industrial Relations Ordinance 1*09-Same accepted-Laoour Court ordering re-instatement of the petitioner into service with oack benefits-However Labour Appellate Tribunal on appeal by the official respondents being not a worker -Held j that application was not maintainable-There finding petitioner .Gainst petitioner invoking constitutional Jurisdiction-Held 5 that not in every case Worker as a a general rule is required to produce evindence to prove his in order outiesto oe a worker or a woikman under the relevant labour statute and lead evidence therefor under section 25-A of IRO, such buideu would be on the person averring same-tiela further ; That m writ jurisdiction interference with the concurrent fir dings of the two competent forums below on condonation of dlay could net be made-Petition allowed-Order of Labour Court maintained and that of the Labour Appellate Tubunal declared to be of no legal effect. (Paras. 4, 8)
1980 PSC 520 and 1208 ; 1984 PLC 1335 and 276 ; PLD 19s5 Quetta 100 and 234 | 19/6 SCMK 102 1 PLD l76 Kar. 8U and PLD 1985 SC 153 ref.
For the Petitioner j Iftikhar Muhammad, Advocate.
For the Aeipondent 1 Raja M. Afsar, Advocate.
Date of hearing $ 29th October, and 2nd November, 1986.
Ajmal Mian A.C. 3.-This petition is directed against a judgment dated 19th July, 1986 passed by respondent No, 1 {I.e. Labour Appellate Tribunal Baluchistan, Quetta), The brief facts leading to the filing of the above petitioa are that the petitioner joined the Government Printing Prsss (hereinafter referred to as the "Press"! Which is run by the Government of Baluchistan on lSth January, 19/9 as a compositor. However, at the relevant time he was working as "Naib-Katib," on 3rd May, 198l he submitted an application for sick leave for 14 days upto the period expiring on 17th May, 198l. He submitted another application for leave with a Medie 1 certificate. However, on 12th May, 198l a public notice was issued in a daily newspaper ''Mashriq" Calling upon him to resume duties within 7 days. After that his services were terminated on 26th May, 198l. The petitioner after serving a grievance notice filed an application under section 2'-A of the Industrial Relations Ordinance, 1969 (hereinafter referred to as the 'I.R.O."! On 6th April, 1983 which was resisted by the respondent Nos. 2 and 3 and inter alia, it was pleaded that the application was not maintainable, as the appropriate remedy lor the petitioner was to file an appeal before the Services Tribunal and that the application was also time barred. The learned Labour Court by its order dated 28th July, 1983 over-rnled the above objections and decided the same in favour of the petitioner. Thereafter the learned Labour Court proceeded with the case. The petitioner in support of his above application examined himself and three witnesses, namely Maulsi Abdul Baqi Head Katib, who deposed that the salary of the petitioner was Rs 557 per month ; Pervez Ahmed Despatch Clerk who proved filing of the second application alongwith the Medical Certificate and one Anwarul Hassan. Whereas, respondent Nos. 2 and 3 examined one Ghulam Haider Head Clerk and Nayar Javed. The latter proved the charge sheet ete : The learned Labour Court after hearing the parties by its order dated 8th November, 198 allowed the petitioner's application and ordered his reinstatement with back benefits within 7 days. The official respondents went in appeal, which was allowed by the learned Labour Appellate Tribunal Baluchistan, Quetta by its judgment cated 20th May, 1985, inter alia on the ground that the application was not maintainable. The petitioner filed Constitutional Petition No. St of 1985 against the above judgment of the lean ed Labour Appellate Tribunal which wa allowed by a judgment rated 26th March, 1986 and the case was remanded to the learned Labour Appellate Tribunal for fresh adjudication in the light of the observations contained in the above judgment. After the above remand order the learned Labour Appellate Tribunal by its judgment dated 19th July 1986 held that the peti ioner's application was not maintainable as he was not a worker wituin the ambit ot either the Factories Act, 1914 or the workments compensation Act, 1923 and that there was nothing wrong with the inquiry, it was also observed that the petitioner had not defended the case on merits. The petitioner being aggrieved by the above judgment has filed the present petition.
3. In support of the above petition, Mr. Iftikbar Muhammad, learned counsel for the petitioner has urged as follows (0 That the petitioner is a worker/werkman within the ambit of Factories Act, 1934 and the Workman's Compensation Act, 1923 and therefore, he could not have approached the Services Tribunal | (!i) That the first proviso to clause (e) of sub-section _ (4) of seetion 1 of the West Pakistan Industrial and Commerical Employment (Standing Orders) Ordinance, 1968 (hereinafter referred to as the "Ordinance") is not attracted to as there are no statutory rules pertaining to disciplinary action applicable to the workmen employed in the Press :
(ill) That since the judgment of learned Labour Court was in favour of the petitioner, it was for the official respondents to have convinced the learned Labour Appellate Tribunal that the peti* tioner had no case On the other hand. Raja M Afsar, learned counsel appearing for the official respondents has urged as under $
(i) That though the petition is covered by the definition of worker given ia the Factories Act 1934, he cannot invoke the provisions of the I RO. As he is not claiming the benefits conferred under the Factories Act.
(ii) That in order to cover a person within the ambit of the definition given of worker and workman in section 2 i, XXVIII) of the IRO, It is necessary that there should be elements of capital and profit ; {ill) That the official respondents have their own Efficiency and Discipline Rules, and therefore, proviso ^1) to elause (c) of subsection (4) of section 1 of the Ordinance is attracted to} and
(lv) That the petitioner/ application under section 25-A of the I. R.O, was time oarred.
Before dilating upon the above contentions of the learned counsel for the parties, it may be p rtinent to point out that clause (ft) of section 2 of the Baluchistan Civil Servants A:t. 1974 (IX of 1974)
(hereinafter referred to as the "Act") while providing the refinition of Civil Servant has expressly excluded inter alia, a parson who is worker or workman as defined in the Fsetories Act, 1934 or the Workmans Compensation Act, 1923 whereas sub-section (1) of section 25 of the Act empowers the government or any person authorised by it in this behalf to frame rules as appear to him to be necessary or expedient for carrying out the purposes of the Act. Furthermore, Act applies to the Civil Servants wherever they may be The accumulative effect of the above provisions is that if a person is covered by the definition of worker or workman given in the Factories Act or in the Workmen's Compensation Act, the provisions of the Act and the rules framed thereunder for carrying out the purposes of the Act, shall net be applicable. At this stage, we may point out that the submission of Raja M. Afsar, learned counsel appearing for tba official respondents that though the petitioner is covered by the definition of worker under the Factories Act, he is not entitled to invoke Section 25-A of the I.R.O.'as he was not enforcing any benefits granted under the Factories Act, is untenable. The object of excluding a government servant from the definition of a civil servant, if he falls within the definition of a worker or _ workman provided for in the Factories Act or ths Workmen's Compensation Act, seams to be to place them at par with the other workers or workmen under the various labour laws and not to confine the benefits under the above two acts.
4. At this stage, it will be appropriate to deal with the question, whether the petitioner is a worker or workman within the definition of
2. Since short question of law in involved and I have heard the learne 2 * 4 counsel for both the parties at length, therefore, I admit the petitions to regular hearing and the main petitions are disposed of by this order. Byjef facts wbieb are common to these four writ petitions, except for dates,
1. The appellant submitted the reply on 22nd July, 1984 to the Charge-Sheet, refuting all allegations. Being not satisfied with his reply the District and Sessions Judge, Karachi ordered for departmental enquiry by Mr. Rajab Ali Leghari, Additional District and Sessions Judge. He held the enquiry in presence of accused official and gave his findings on 31st October, 1984 to the effect that all the three charges were proved against the appellant, who was proposed to be given major punishment. Again on 4th November, 1984; the appellant was served with final Show- Cause Notice by the District Judge, Karachi. Consequently the order of Factories Aet and the Workmen's Gomoensation Act, as it has been found by the learned Labour Appellate Tribunal that since his work is of cleaca] nature the petitioner is not a woiker or workman As pointed out here nabove. Raj I M Afsar, learned counsel for the official respondents has conceded to the extent that the petitioner falls within tfee definition of worker given in clause (ft) of section 2 of the Factories Act. However, e are inclined to hold that the petitioner falls within the definition of beth the ai^above tw acts. It will be advantageous to reproduce hereinbelow the definition f worker given in clause (A) of section "* of the Factories Act and clause (n) of section 2 read with sub clause (fi) of Schedulc-H to the Workmen's Compensation Act, which read as follows ;- Factories Jet, 1934 Clause (A) of Station 2.
"Worker means a person employed directly or through an agency whether for wages or not in any mmufacturing process, or in cleaning any part of the machinery or premi es used for a manufacturing process, or in any other kind of work what oever, incidental to or connected with the subject of the manufacturing p ocess but does not include any person solely employed in clerical capacity in any room or place where no manufaeturing process is being carried on".
Workmen's Compensation Aet, 1923 Clause (n) of Section 2.
"Workman" means any person other than a person whose employment is of a casual nature and who is employed otherwise than for the purpose of the employer's trade or "business who is-
(i) a railway servant as defined in section 3 of the Railways Act, 1890 (IS of 1890) not permanently employed in any administrative district or sub-divisional office of a railway and not employed in any such capacity as is specified in Schedule II I or
(ii) employed on monthly wages not exceeding one thousand rupees, in any such capacity as is specified in Schedule II. Whether the contract f employment was made before or after the passing of tbis Act and whether such contract is expressed or implied, oral or in writing but does not include any person working in the capacity of a member of and any reference to a workman who has been injured shall where the work mao is dead, include a reference to his dependants or any of them."
Workmen's Compensation Aet, 1923 Sub-clause (ii) of Schedule II. "employed in any premises wherein or within the precinets whereof on any day of the preceding twelve months, ten or more persons have been employed in any manufac uring process, as defined in Clause (g) of section > of the Factories Act 19j (XXV of 1934), or in any kind of work whatsoever incidental to or connected with any such manufacturing process or with the article made and steam, water or other mechanical power r electrical power is used, A plain reading of the above quoted definitions indicates that under the Factories Act, a person is deemed to be a worker if be is employed directly or through an Agency, whether for wages or not inter alia, in any manufacturing process or premises used for a manufacturing process which will inclu 'e any other kind of work whatsoever incidental to or connected with the subject of the manufacturing process, but excludes any person solely employed in a clerical capacity in any room or place where no manufacturing process is being carried on. Whereas under the above quoted definition of workman given is the Workmen's Compensation Act read with clause (ii) of Schedule II t the above Act, a person falls within the definition of warkmaa if he is employed in any premises wherein or within the precincts whereof, os any day of the preceding twelve months ten or more persons have been employed in any manufacturing process as defined in clause () of section 2 of the Factories Act, or in any kind of work whatsoever incidental to or connected with any such manufacturing process or with the article made and steam water or other mechanical power or electrical power is used It may be observed that under clause (g) of seetion 2 of the Factories Act. "manufacturing process "has been defined as means any process for making altering repairing ornamenting finishing or packing or otherwise treating any article or substance with a view to its use sale transport, delivery or disposal etc ; It has been held by the learned Labour Appellate Tribunal that the petitioner his failed to prove that he was worker or workman within the definition of either f the above two acts. In this regard it may be pointed out that it is an admitted position that the oetitioner was working as *N rib Katib' in the Press. The duties of a 'Naib Kati >' or Katib' are matter of public knowledge of whieh judicial notice can be taken. A 'Katib* or a 'Naib Katib' caonot be equated with a clerk working in an office and performing clerical job. The job of a 'Katib or Naib Katib' is of & technical nature involving expert knowledge of writing on spe-cial materials which in turn are printed through machine. His work is an essential part of a printing process. Therefore in our view it was not necessary to have led any evidence on toe nature of duties when it is known to everyone what are the duties of a 'Katib* or a Naib Katib' in a printing press To re-enforce the above view which we are inclined to take we may point out that not in every case a worker as a general ml* is required to produce evidence to prove his duties in order to be a worker or workman under the relevant labour statute. If bis duties are matter of Public knowledge he may not lead any evidence on the above point for example duties of vehicle or a railway engine driver are known to the public at large. He is not supposed to lead any evidence on the above aspect in an application under seetion 25-A of the I.R.O In such a case burden of proof that the driver was not performing his normal duties will be on the person averring the same.
3. Adverting to the contention of Mr, Iftikhar Mohammad learned counsel for the petitioner that the first proviso to clause (c) of Sub- seetion (4) of section 1 of the Ordinance is not attracted to in the instr nt eaie. As there are no statutory rules in respect of disciplinary matter applicable to workmen working in the Press, it may be observed that in order to exclude the application of the provisions of the Ordinance, it is necessary to show that there are statutory rules of service conduct or discipline applicable to the workman involved. In the present case, though there are statutory Efficiency and Discipline Rules framed by the Government of Baluchistan, but they are applicable as pointed out hereinabove to the Civil Servants who are subjected to the Act. These are no separate rules framed by the Provincial Go ^crDiQiSBt sp pi t t? c to tbi workers or workmen covered by the definition given in the Factories Act and the Workmen's Compeasation Act. It mast folllow that ia the absence of any statutory rales psrtainiaf to disciplinary action the provisions of the Ordinance were ap diciole to the petitioner. In this regard, it may fee pertinent to point oat that the R m1 *ay Authorities have framed two separate Efficiency and Discipline Rules, one for Civil Servants and the other for workers or workmen.
4. This leads us to the question, whether the petitioner could have filed an applieation under Section 25-A of the IRO which provides that worker may invoke the above provision in respect of any right guaranteed or secured to him by or under any law or any award or settlement for the time being in force. Even if we were to hold that the provisions of the Ordinance (i.e. West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968s were not applicable to the petitioner it will not follow that he could not have invoked Section 25-A of the IRO. The above Section ean bs invoked enforcing any right guaranteed or secured to a worker by or under any law, award or settlement as pointed out herein above. The expression" any law" has very wide connotation and will include any law even other than the Ordinance. In this regard, reference may he made to the following nes :- (0 Muneer Ahmed and 10 others v. Pakistan International Airlines Corporation, Karachi reported in 1980 PLC, page 520 in which the facts were that the Labour Court dismissed the worker's application on the ground that the Ordinance was not applicable to PlA employees. Upon appeal the learned Labour Appellate Tribunal, Sind held that a worker ean invoke Section 25-A of the IRO if he is enforcing the right or benefits claimed by him under any law.
(it) Sumy Flow Mills v. Muhammad Asghar and 67 others, reported in 1980 PLC page-1208 In the above case, the learned Labour Appellate Tribunal Punjab held that workers cao enforce under Section 25-A of the IRO the benefits conferred on them under the Companies Profits Worker's participation) Act (XII of i968).
(Iii) National Bank of Pakistan v. Qazi Khan Muhammad and 2 others, reported in * 984 PLC page- 13ih, in which a Division Bench of the Sind High Court, to which one of us (Justice Ajmal Mian) was a Member, held that under section 25-A of the IRO an employee cannot enforce right of promotion if it is not guaranteed or secured to him under any law or an award or settlement for time being in force and that a Labour Court or Tribunal could not grant srmething which was not guaranteed or secured under any law or award or settlement for the time being in force
(vi) United Bank Limited, Sukkur v. Munir Ahmed and 2 others, reported in 1984 PlC page 276. In the above case, a Division Bench of the Sind High, Court, to which one of us (Justice Ajaul Mian) was a party held that the rules framed by the Wage commission cannot be treated at par with the statutory rules framed by an Authority provided under a Statute and since no statutory rules in tesms of the first provise to clause (c) of sub-section (4) of Section-l of the Ordinance, were framed in relation to the United Bank employees, the provisions of the aforesaid Ordinance were applicable,
[v) National Bank of Pakistan and another v. Muhammad Asif Ahmed and 2 others, reported in PLD 1985, Qutta page-100 in which a Division Bench of this Court held that since the National Bank of Pakistan had framed statutory rules for providing procedure for disciplinary action, the employee can enforce the same by invoking Section 25-A of the IRO.
(vi) Divisional Accounts Officer, Pakistan Railways and another v. Farid ud-Din UDC Divisional Accounts Officer, Pakistan Railways, Quetta and 2 others, reported in PLD 1985 Quetta, page 234. In the above case, distinction between the Railway employees covered by the Civil Servants Act and those covered by the definition of worker or workman under the Workmen's Compensation Act read with Schedule II. Was pointed out and it was held that those who were covered by the definition of workman under the aforesaid Act, were entitled to file an application before the Authority under the Payment of Wages Aet, 1936.
The ratio of the above cited cases seems to be that the provisions of the Ordinance are applicable even to a worker or workman working in Government establishment in the absence of any statutory rules providing for the matte in issue and that the expression" any law" employed in clause XXVIH of Section-2 of the IRO has very wide connotation and the above section can be invoked for enforcing any right guaranteed or secured by any law, which will include any labour law or other law pertaining to the person involved.
5. After holding that the petitioner is covered by the definition of worker and workman given in the Factories Aet and the Workmen's Compensation Act, it must follow that the petitioner was not Subject to t'e provisions of the Act or the disciplinary rules framed thereunder, and thus the proviso
(l) to clause (c) of Sub-section (4) ol Section-1 of the Ordinance was not attracted to 6. Reverting to Raja M. Afsar's submission that the petitioner's application was time berred and therefore, snoald have been dismissed, it may be observed that in furtherance of his above submission he has referred to the following cases :-
(l) Mst Khurshld Begum v. The Settlement Depa:tment and others, reported in 1976 SCMR page-102 in which a Division Bench of the Honurable Supreme Court of Pakistan, while declining a review petition held that the "vested rights being acquired by other party, such rights could not be taken away, unless valid ground made out for condonation of delay and each day's delay satisfactorily explained."
(fi) Met Mah Bibi v. Mst. Hameeda Begum reported in PLD 1976 Karachi, page 811. In the above case, a learned Single Judge of the Sind High Court held ihat delay of each day in filing appeal is to be explained and the negligence of a eounsel cannot be a ground for condonation of delay.
(Hi) Hakim Muhammad Buta and another v. Habib Ahmad and others, reported in PLD 1985 SC page-153, in wnich a full Bench of the Hon'ble Supreme Court of Pakistan, held that the High Court could suo moto go nto the question of limitation under section 115 CPC though there was waiver on the part of the respondent before the Appellate Court and omission on the part of the Court to decii e the above question.
In our view, the above cases have no application in as much as the petitioner had filed an application for the condonation of delay, which was allowed The learned Labour Appellate Tribunal maintained the above condonation for valid reasons, thus there is concurrent finding of the two competent forums that there were sufficient reasons for the condonation of delay and, therefore this Court cannot in exercise of Writ Jurisdiction interfere with the above concurrent finding.
Furthermore, official respondents have not impugned the above finding by filing a Constitutional Petition. On the contrary they are defending the two orders for the reasons given therein. In our view, a respondent in a writ petition cannot blow hot and cold in the same breath. It is not open to the official respondents to urge that the finding of the two Courts below on the question of limitation is oontrary to law in the absence of filing a Writ Petition by them.
7. The upshot of the above discussion is that the orde'1 of the learned Labour Appellate Tribunal dated 19th July, 1986 seems to be not inconsonance with lawful authority and of no legal effect and the order of the Labour Court dated 8th November, 1984 is maintained.
The petition stands disposed off in the above terms With no orders as to cost.
K. L. R. 1987 Labour and Service Cases [Lahore] Presentf Ajmal Mian, A. C. /., and Amirul Mulh Mengal INAMUL HAQUE versus DIVISIONAL SUPERINTENDENT PAKISTAN RAILWAYS LAHORE and two others G, P. No. 91 of 1986, decided on 5th November, 1980s Constitution of Pakistan (1973) ---- Art. 9-Petitioner against his dismissal serving grievance notice nnder section 25-A of I. R. O.-Labour Court No. 1 dismissing application of the petitioner-Appeal meriting the same fate-On remand Labour Court No 1 dismissed the application of the petitioner not on merits or on basis of material on record but declaring the petitioner as a person of unsound mind and mentally infirm-There against appeal before Labour Appellate Tribunal also failed-Same dismissed alongwith application for condonation of delay-Thereupon petitioner moving constitutional petition-Respondent contended that there being concurrence in the findings of the two Courts below-Writ was not competent-Further petitioner fell in the category of "Employer"-His duties were of supervisory nature-And the appeal as was filed by the petitioner before the Labour Appellate Tribunal was barred by time-Held-Conduct of petitioner being not commendable-It being contumacious but decision to be made on merits and according to law-Further held-Order passed by Labour Court was without jurisdiction-even delay in filling appeal was of no legal consequences-Both the parties sur mitting to the jurisdiction of Labour Courts-Question whether petitioner was a worker or not should have not been allowed to be raised at the belated stage- Petition allowed-However case remanded to Labour Court III to dispose of application on basis of material available. (Paras. 7, IS)
1985 SCMR 1584/CLG 1986 Lab. 1859/PLD 1984 SC-62 distinguished.
For the Petitioner j Inamul Haq (In person present).
For the Respondents f Shakeel Ahmad, Advocate.
Date of hearing f 2> th October, 1986, list October, 1986 and 22nd October, 1986.
Amiral-Mulk Mengal, J.-This Constitutional Petition is directed against the judgement dated i2- 5.19a5 and dated 26-7-1986 respectively passed by the Presiding Officer Labour Court-I, Quetta and the Labour Appellate Tribunal. -. The facts relevant for this petition, in a nut shell are that the petitioner was transferred to Quetta on 6th July, 1973 was Weighing Machine Inspector in Railway Department. He was suspended on 22-6-1 f82 but the said suspension orders were withdrawn on 31-7-1982, The petitioner submitted that one Muhammad SiddiquE, Clerk in Divisional Office, came to his office and asked for record for checking, which the petitioner gave in presence of two persons namely Ghulam Siddique and Abdul Sattar. It is further alleged that the above record was taken away by the afoi esaid Clerk. This statement is however, con- roverted by the respondents. However, the petitioner was charged sheeted on 19-10-1982, asking for time and also m king request for there turn of record in order to prepare bis reply. It seems that the petitioner was transferred to Lahore on 19-1-1983 but the General Manages (Personnel) at Lahore declined the request of the Quetta Railway authorities and ultimately the petitioner returned to Quetta and resumed his duty on 6-2-1983. On 10-2-l9a3 the petitioner was served with two letters at the same time, one letter containing the fact that the petitioner war takes on duty on 9-2-1982 (Pore-noon) and the second letter suspending him on 9- 2-1983 (After-noon). On 13-2-1983 an inquiry letter was received by the petitioner asking him to appear on 15-2-1983. On the said date the petitioner submitted his objections to Inquiry Officer and also for payment of bis dues.
3. It is the case of the petitioner that on 20-2-1983 he filed list of witnesses and the inquiry was adjourned to *6-2-1983 for evidence and further proceedings. The petitioner appeared, but his witnesses being high officials were not summoned by the Inquiry Officer. The petitioner requested for time to contact his legal advisor at Lahore which was granted and the inquiry was adjourned for 7 days, Consequently the Inquiry Officer proceeded ex-parte after issuance of warning letter to the petitioner and as a result of the above inquiry, the petitioner was dismissed from service on 15-5- 1983 which orders were received by the petitioner on >6-5- 9'3. The departmantal appeal was filed before the Chairman. Railway Board which according to the petitioner has not been disposed of till date, inspite of repeated reminders by the petitioner. On 10-8-1983 the petitioner served Grievance Notice under section - 5 (a) of the I. R, O. To the respondents. Since it was not replied to, the petitioner filed an application before the learned Labour Court-1, Quetta which was di missed by the Labour Court on 27-10-8*. The petitiener went in appeal, but the same was also dismissed on 21-5-1985. Being aggrieved by the above judgment, the petitioner filed a t onstitutional Petition No. 57/85 which was allowed and the impugned orders were declared as without lawful authority and thus of no legal effect But the case was remanded to the Labour Court-I, Quetta with the direction to hear the arguments afresh and to dispose of the case on the basis of material available before it. On 12-5-1986 the Presiding Officer. Labour Court-I, Quetta dismissed the application of the petitioner not on merits or on the basis of material on record as directed by the Division Bench in C.
P. No. 57/85, but declaring the petitioner as a person of un-sound mind and mentally infirm. The petitioner went in appeal against the said order before the Labour Appellate Tribunal on 29-6-1986 alongwith an application for condonation of delay. The said appeal was dismissed on 26-7-19*6.
Being aggrieved by the aforesaid orders passed against the petitioner this Constitutional Petitioner was filed before us.
4 We have heard the parties at great length. The petitioner appeared in person and vehemently urged the following points in support of his petition : 1, That the Presiding Officer, Labour Court failed to decide the application of the petitioner on merits, as directed by the Division Bench of this Court in C. P. No. 57/85 ; hence a gross illegality requiring interference in Constitutional Petition.
2, That the Presiding Officer, Labour Court was not competent under law to have held that the petitioner was a person of un-sound mind, without adopting proper procedure as envisaged in C.
P. C. The orders thus passed are without jurisdiction, 3, That the learned labour Appellate Tribunal did not legally apply his mind on the merits of the ease inasmuch as in the bogining ef the judgment he was pleased to observe that the application move3. On merits it was argued that inquiry was conducted in an illegal manner inasmuch as the petitioner requested for return of the record allegedly taken away fey the < lerk of Divisional Office who had come for checking it and without the record being made available the inquiry was illegal It was further submitted that the fact that the said record was taken by Muhammad Siddique was disclosed on 25-10-1982 in reply to the charge sheet.
4. The copy of the inquiry report was not supplied to the petitioner, thus causing prejudice to him sufficient enough to vitiate proceedings. It was further submitted that procedure as laid down under rule 5 and 6 of Railway Servants Efficiency and Discipline Rules : 197$ ave been violated by the Inquiry Officer in so far as no show cause notice was given nor statement of allegations were supplied to the petitioner alongwith the charge sheet nor for that matter the relevant circumstances and the proposed action to be taken against him was disclosed. It was thus argued that the procedure adopted, being in contravention of the said rules was illegal.
5. It was next contended that the chargesheet should have been given within one month after the date of the misconduct, but in the instant case the period was more than one month. It was thus contended that the charge sheet was illegal and the proceeding subsequent thereto are also illegal.
6. It was also contended that the department was not definite about the misappr priation because in the inquiry notice the 'word suspected embazzlement" was used whieh indicates that there was no embazzlement by the petitioner.
7. It was yet contended that the petition was dismissed on the basis of reply of the charge sheet and not on the basis of report of the Inquiry Officer. The dismissal order was also assailed by the petitioner on the ground that one month's pay as provided by rnle was not paid to him, after suspension order.
Besides the above mentioned points our attention was drawn to the directives of the Minister dated 7-i-i975 and the judgment of Federal Shariat Court as reported ia PLD 1983 page 32$ observing that wages should be paid without delay.
5. On the other hand Mr. Shakeel Ahmed, the learned counsel for the respondent vehemently urged that this court shall not exercise his jurisdiction in favour of the petitioner who has been guilty of misconduct and who has used filthy language against the officials and has been creating fuss for the department through different letters whieh are part of the record. He also strenuously urged that there being concurrence in the findings of two courts below, the writ is not competent. It was next contended that after issuance of Notific ttion dated 15-11-1983 (page 175/ 176 of the lower court file), the application filed by the petitioner under I. R. O was not competent because he is declare t to fall within the category of "employer" The lraraed counsel further submitted that the duties beine performed by the petitioner were of supervisory nature, the detail of which produced before the Labour Court, hence according to learned counsel it was rightly held by the Labour Appellate Tribunal that the petitioner was not a "work" but an "employer".
Lastly, it was contended with considerable vehemence that the appeal filed by the petitioner before the Labour Appellate Tribunal was barred by time, therefore, the petitioner has got no right to cballange the said order in a Constitutional Petition.
6. In order to appreciate respective contentions raised by the parties, it may be observed that this is second set of litigation culminating in a Constitutional Petition oefore this Court In Constitutional Petition No. $7/85, after setting aside the p evious proceedings this Court ordered to remand the case to the learned Labour Court-1. Quetta with the direction to hear the arguments afresh and on the basis of material available before it, to decide the application in accordance with law. Despite clear orders made to decide the application on merits on the basis of material available, the learned Labour Court Quetta dismissed the applicati sn mainly on the ground that the same was not properly presented because according to the learned Labour Court the application was submitted by n person of "unsound' and thus he being incapable of protecting his interests, the application was not competent. Such observations were made by the lexrned Labour Court without referring the petitioner to the Medical Board or without adopting proper legal procedure as laid down in C P.C.
Be that as it may the learned Labour Court did not dilate upon the merits of the case as directed by this Court.
7. We have also noted that the conduct of the petitioner is not commend able and he has been harsh contum toious even using filthyl anguage, as revealed from the record, but at the same time we feel that the d. Ei'ion of the cases should only be made on merits aud according to law and should not be p'ejudiced by the unbecoming conduct of a litigant. Instead of making a note of the untowards attitude, if any of the petitioner and taking action according to law if his conduct was contemptuous, and then deciding the case on merit , the learned Labour Court declared the petitioner as a parson ef 'un-sound mind : which fact not only tantamounts to violation of the order of this Court but the same cannot be termed as an order passed on legal consideration.
However, the learned Laoour Court failed to decide the application on merits. Of course, there is an oblique referrence of Notification in the orde of Labour Court and the argument that the petitioner was not a 'worker" but from tae perusal of the said order it can be easily inferred that the Court has not fiaatly decided that issue. Therefore, from the perusal of the order of the Labour Court, it cannot be safely concluded that the Labour Court held that petitioner was an "employer" as concluded by the learned Labour Appellate Tribunal. The learned Labour Appellate Tribunal has mainly discussed the causes of delay of filing of appeal and has concluded that the appeal was barred by time. There U no dispute that the appellant was present oa 11-5-1936 but did no'attend the Court on 12-5-1986. The explanation given by him was that he was asked to leave the Court on 11-5-1986 with further observation by the Court that he would be seen by him next day. It is worth to point out that petitioner bad already moved an application complaining about the conduct of the Presiding Officer of the Labour Court to one of us (Acting Chief Justiee), He came to know about the decision of the case when h* received a letter dated 3*6-1986 addressed to him by the Registrar of the High Court which letter was received by the petitioner on 11-6-1986 The apneal was filed on 29*6*1986, because the copies were obtained by the petitioner on 26-6-1986.
Furthermore, the Petitioner took the plea that since the order of the Labour Court was a void order, therefore, no limitation could run against the same. The labour Court is a court of speeial jurisdiction, having no power to declare a person to be of "un-sound mind" or "insane" or a "lunatic". Particularly so, when the petitioner was not referred to a Medieal Board and no legal procedure was adopted to declare him as a man of 'un sound mind'.
8. We, therefore, find quite some force in the contention of the petitioner that the order of the Labour Court was an order passed without jurisdiction and thus void, against which so limitation runs Reliance may be placed on PLD 1974 Lahore page 434, the relevant observations thus reads - "If on the basis of a void order subsequent orders have been passed wetber by the same authority or by other authorities, the whole series of such orders, together with the superstructure of rights and obligations built upon them must unless some statute or principle of law recognizing as legal the changed position of the parties is in opera* tion fall to ground because such orders have at little foundation as the void order on which they are founded. In this view of the matter a void order will have no value whatever and is simply to be ignored and consequently no question of limitation will arise against such an order."
2. CLC 1986 Quetta 1241 relevant observations caing on page 1249 rending as under :- "................ Therefore the same is deemed to be void and nullity in the eyes of law. In this view of the matter whole superstruciure and edifice constructed upon such void order would automatically fall alongwith the same and accordingly bar of limitation would not apply. Thus, delay of about 24 days in filing of appeal before the JMUjlis-e- Shoora will be of no legal consequence. 1u the peculiar circumstances contention of learned counsel for the respondent that the petitioner was supposed to explain each day's delay is not relevant."
3. NLR 19 2 Supreme Court Judgement page 166 and the relevant observations being on page 169 are reproduced ;- "................ If an impugned order has been passed without hearing and notice to the parties whose presence was otherwise necessary before the authorities concerned, then order will be nullity in the eye of law and no question of limitation would arise."
9. This leads as to the second controversy whether the petitioner is a "workmen" or he is aa "employer.". This is a pertinent question which could determine the very jnrisdietion of the Labour Court and thus the vires of the entirs proceedings from the start to the finish. In this respect we have examioed the record and we have noticed that the proceedings against the petitioner were initiated under the Railway servants Efficiency and Discipline Rules 1975 and not under Efficiency and Diseipline Rules, 1973. This position was even conceded by counsel of the respondent department, The marked distinction on between the aiovesaid rules being that the former rules apply in case of a "workman" and the latter in case of an employer" The respondent department, by initiating proceedings against the petitioner under 1975 rules was fully well aware or in the natural course of event it can be presumed that it was well within its knowledge, that by doiBg so it is treating the petitioner implicitly as a "workman" and net an "employer". Thereafter when the petitioner was dismissed from service, he filed a departmental appeal with no response by the respondent department, and served, a grievance notice obviously under IRO but the same was not replied to. The department could easily take the plea that grievance notice could not be entertained because the petitioner being an "employer" was not competent to serve such a notice or at least it could be said that the department was not obliged to submit a detailed reply to grievance notice, since the same was irrelevant in so far as dismissal of the petitioner was concerned. But no reply was given at all The petitioner then filed an application under section 25- A of the IRO. In rejoinder, the department could again raise the plea that the petitioner is not a "workman" or that he is an "employer" but again no specific plea to that effect was taken. Instead, the parties submitted to the jurisdiction of labour Court.
10. It seems that the department became conscious of this faot only after when a Notification No SRO No. B1/83 N1/1 dated 15-11-1983 was issued deelaring Assistant Inspe :tors and Inspectors as "employer**. Only then the department produced a document depicting the nature of the duties of the petitioner and also the fact that the salary of the petitioner Was more than Rs <<00 per month Even than no request was made to the Labour Court to make it an issue nor for that matter the jurisdiction of Labour Court was challenged. So much so that in cross-examination no specific question was suggested to the petitioner that he is not a "workman", The contention of the petitioner that he was put to a startle er that he was taken by surprise seems justified. Adverting to the Notification mentioned hereinbefore and its effect to the proceedings of this case, suffice to say that the issuance or publication of the Notification is m 'ch later than the dismissal of the petitioner and initiating of proceedings before the Labour Court. The Notification was published oa 1S-11-1983. Where as the petitioner was dismissed from Service on 15-5-1983. The apolication under section 25-A IRO was moved on 12-9- 9 3. It is now almost a settled principle of law that Notification cannot be given any retrospective effect.
11 In such circumstances of the ease, we feel ao hesitation to held that the department is now estopped to take t e plea that the petitioner is not a "workman" but an "employer", more se when the litigation has already taken years and the parties are before us in the second set of litigation The plea that toe petitioner was not a "workman" should have been taken at the earliest. The cumulative effect of IRO is that such disputes may be adjudicated upon within shortest possible period. Section 2S-A
(4) of IRO prescribes only 20 days for final disposal of such disputes Prescribing such a short peried of time, no two opinions can be formed but that the legislature with all its intents and purposes wanted prompt adjudication and speedy disposal of cases under IRO. The purpose behind such an intention of legislature is obvious ; i.e. To discourage prolonged litigation between "workers'' and "employers" thus to guarrantee a smooth functioning of the economic process in order that production is not hampered and that efficiency of departments is not adversely affected.
We are therefore, inclined to hold that the question whether the petitioner dees or does not fall within category of an "employer" could not have been allowed to be raised at such a belated stage.
12. The last contention raised by the petitioner is regarding the manner in which charge sheet was served and inquiry conducted against him. Factually the petitioner laid much stress on this point with the help of various authorities. He assailed the procedure in which the inquiry was conducted on various grounds. To summarise the contention of the petitioner he submitted firstly, that his defence witnesses were not summoned In this respect he relied on PLC lv8l page 55*. It was further contended that the charge sheet should have been served within one month after the alleged misconduct which according to the petitioner eould not validly be served after expiry of one month. Reliance was placed on PLC 983 Karachi page 291 and PLJ 1979 (Tr. C.) Lahore page
100. The petitioner strenuously urged before us that the inquiry was not proper and legal inasmuch as according to section 13(4) of the West Pakistan Standing Order Ordinance an inquiry must be held by the employer within one month of the date of misconduct. The said provision is hereby reproduced for better appreciation :- IS (4) 1 "No order of dismissal shall to made unless the workman concerned is informed in writing of the alleged misconduct within one month of the date of such misconduct or of the date on which the alleged misconduct comes to the notice of the employer and is given an opportunity to explain the circumstances alleged against him. The approval of the employer shall be required in every case of dismissal and, the employer shall institute independent inquiries before dealing with charges against a workman."
The petitioner therefore strongly contended that any inquiry started after one month of misconduct becomes illegal. Reliance was placed on PLC 1977 page 122, NLR 198l TD page 213.
13. It was further contended by the petitioner that the statements of allegations and evidence recorded by the ^Inquiry Officer were not supplied to him thus causing prejudice to him which facts are sufficient to render the entire proceedings illegal. Reliance was placed on PLJ 1974 (Tr. C)
Lahore page 375 wherein it was observed that on the basis of domestic inquiry the management must supply to accused worker the following documents:-
1. Copies of statements of all witnesses whose evidence is recorded during the course of inquiry.
2. The accused worker when served with show cause notice must be furnished with copy of Inquiry Officer's report.
It was the case of the petitioner that since the record was not supplied to him hence the proceedings were illegal. The department however, denies taking of record by Muhammad siddique.
It was yet contended that Rules 5 and 6 of Railway Servants (Efficiency and Discipline) Rules, 1975 were not adhered to and not complied with by the department during the inquiry. So much so that the officer conducting inquiry being lower in rank, could not be appointed as authorised , officer. It was also argued that the inquiry so conducted was without lawful authority, because no show cause notice was served upon him according to rules.
14.Last, but not the least, it was contended that the entire back benefits may be accorded to the petitioner, although the amount which the petitioner now claims not only whimiscal but ridiculous.
However in ease the application is allowed, the Labour Court may consider the question of awarding back benefits to the petitioner according to relevant rules and law. The petitioner strongly argued that since he is out of job for several years and therefore remanding of the case to the Presiding Officer Labour Court amounts to further keeping him out of job for another couple of years ; more so when this is the second set of litigation reaching this Court in its constitutional jurisdiction He therefore, submitted that this Court may decide the case on merits. He relied on the following authorities :-
1. SCUR 1985. The case of Mst. Nemat Blbiv. Pathana wherein it was observed on page 1584 as under s- "There is force in the first submission, a recent judgement delivered by this Court, namely Mst Sardar Begum and others v. Muhammad Saleem and others PLD 1984 SC 62 we have held that in cases which required summary disposal and the present was clearly one such case the High Court instead of remanding the ease to the District Judge should have finally decided the same as to save the time of the parties. This is the Gourse which should also have been followed in this case."
2. CLC 1986 Lahore page 1859. The case of Bajasab Khan v. Mahmood Hussain and another wherein it was observed on page 1863, as under:- "It is well-eitablihed statement of law that a litigant cannot be made to suffer for act or negleot of the Court or its officials. Wrong done to a party by act of the Court cannot be allowed to stand.'* We have, however made it abundantly dear to the petitioner that question of facts which necessitate further investigation cannot be determined by this Court in exercise of its extra- ordinary writ jurisdiction. The authorities referred to hereinabove on this point, are of no help to the petitioner because we are not sitting as Court of appeal to evaluate the facts and to draw conclusions in order to redress the gnevaneies of the petitioner. It may be pointed out that the fact of taking away of record by Mr. Siddique is a disputed question. Similarly #tbs [VoJ, VI #the #tbs Karoshi Law Meportt #the #tbs 276 h. & St #the the points raised regarding the procedure of'inquiry and serving of the charge sheet etc. Need further probe.
15. However, in view of the discussion hereinabove we allow the petition and declare the order passed by the Labour Court-I, Quetta dated 12-3-1985 and order of the learned Labour Appellate Tribunal dated 26-7-l96 as having been passed without lawful auth rity and thus are of n legal effect. But we remand the case to the Labour Court-111, Quetta to dispose of the application on the basis of material available, aceording to law within a period of t*o months after receipt of record.
The reason for not sending the case to the Labour Court-I, Quetta is that despite the order made in CP No. 57/85 directing the Labour Court-I, Quetta to dispose of the application on the basis of material available on record, the Labour Court-I, Quetta did not comply with the said direction. We therefore, observe that it will not be in the interest of justice to remand the case to the Labour Court-I, Quetta. However, in the circumstances of the ease there will be no orders as to costs.
S.L.I. 1987 Labour and Service Cnees 276 [Lahore] Present I Muhammad Irshad Khan, Member.
AURANGZE* Terms WATER AND POWER DEVELOPMENT AUTHORITY Appeal Noe, 50 (R) of 1986 and 15*(L) of 1984. Decided on 23rd October, 1986.
Service Tribunals Act 1973 --S. 4-Appellant Line Superintendent in WAPDA-His services terminated daring probation- Challenging the same-However applying inter- alia for condonation of uelay in filing appeal- Held-According to the well settled principle of law reason for each day's delay has not only to be explained but is to be substantiated - Held further-After the prescribed period of limitation has elapsed no plea of injustice, hardship or ignorance can be of any avail unless delay is properly explained and accounted for-In circumstances petition for condonation of delay is rejected and in consequence appeal dismissed. (Para, 5)
1985 SCMR 663, ref, For the Appellant; Mian Mahmood Hussain, Advocate.
For the Respondent | Sardar Muhammad Amir Akbar &han, Advocate, Date of hearing | 23rd October, 1986.
Muhammad Irehad Khan, Member.-The relevant back-ground giving rise to the present appeal is that the appellant was appointed as Line Superintendent (Grade-II) on 5-3-l98i but after about a couple of weeks only his services were terminated vide order dated 24-3-1981 purportedly passed under clause 2 of his terms and conditions of service contained in his appointment order dated 5- 3-1981 which provides that if during the period of probation, his work or conduct is found unsatisfactory, the appointing authority may dispense with his services without giving him any notice. The appellant challenged the said termination order before the learned Labour Court which by its order dated 14-5-1981, holding the impugned order to be illegal, directed the reinstatement of the appellant m service with full back benefits. The Respondent-Authority, however, filed appeal to the learned Labour Appellate Tribunal which was dismissed on 3M-1983, The Respondent-Authority then filed a writ petition before the Honourable High Court which was accepted on 21-4-1984 holding that the appellant being a civil servant, the orders of the Labour Court were without jurisdiction. The appellant then filed the present appeal on 16-5-1984 before this Tribunal.
2. The appellant's case is that the impugned order was passed in purported exercise of the powers contained in clause 2 of the terms and conditions of me service of the appellant contained in his appointment order which could be invoked for dispensing with the services of a probationer only if his work or conduct during the period of probation, is found unsatisfactory, white, it was absolutely impossible to judge the work or conduct of the appellant during a few days he served as a probationer, it was asserted that the impugned order was passed under the pressure of the Chief Engineer, WAPDA, Lahore, to accommodate his own man, and, at any rate, the impugned order being devoid of good faith, is mule fide, it was further pointed out that before the Labour Court, a new plea was imported by the Respondent that the reason for the terminesion of the services of the appellant, was the reduction in the posts of Line Superintendents by 50% but this plea was rightly repelled by the said Court, firstly, because no reduction in the posts of Line Superintendents had taken place but, in fact, 50% of the posts of Line Superintendents (Grade-II) was designated as the posts of Meter Supervisors which are to be filled in by promoting Meter Readers; and, secondly, the so-ealled reduction in the posts had already taken place in 1980, while, the appellant was appointed as Line Superintendent thereafter in 198l on direct recruitment basis.
Therefore, the termination of the services of the appellant was not warranted even by the so- called reduction in posts. The Respondent now has taken a quite new stand befoie this Tribunal that prior to 5-3-1981, the appellant was serving under the WAPDA as a Meter Reader in Hafizabad Division, and had been charge-sheeted there for bogus meter readings whieh fact he suppressed at the time of securing a higher position of Line Superintendent (Grade-II). In rebuttal thereof, asserting that the appellant was not hound to disclose in his application for appointment that^ he was previously charge-sheeted, and, in any case, such alleged omission does not constitute a misconduct, it was explained that he (the appellant) had submitted his application for the post of Line Superintendent (Grade-II) through proper channel; the authorities of the Hafizabad Sub- Division, who duly forwarded the same giving thereon their no objection to the appointment of the appellant to the post of Line Superintendent (Grade-II). It was thus submitted that the impugned order being devoid of good faith and having been unjustifiably passed, is incompetent, unlawful and malafide.
3. Sardar Muhammad Amir Akbar Khan, learned counsel for the Respondent-Authority, apart from contesting the appeal on merit, raised legal objections about the competence and maintainability of the present appeal, He first submitted that no proper departmental appeal havia been filed by the appellant against the impugned order, the present appeal is barred by proviso
(a) to sub-section (1) of section 4 of the Service Tribunal Aet, 1973. The learned counsel, however, failed to show any statutory provision providing for a departmental appeal against the impugned order. This plea is accordingly repelled,
4. It was next contended by him that the present appeal having been inordinately delayed, is barred by limitation. Quite obviously, the present appeal having been filed on 16-3-1984 against the impugned order dated 24-3-1981 is hopelessly time barred. There is. However, an application for condonation of delay wherein it has been stated that the appellant in pursuance of certain judgments of this Tribunal and the Labour Courts whereby the categories of the persons of the appellant were treated to be "workmen" and not 'civil servants", had challenged the impugned order before the Labour Court which by its order dated 14-5-1981, set aside the impugned order and in pursuance thereof the appellant was reinstated in service and wag allowed back benefits.
An appeal filed by the Respondent-Authority before the Labour Appellate Tribunal had also failed but the respondent then filed a writ petition before the Honourable Lahore High Court which was accepted on 21-4-1984 and the appellant then vigilantly filed the present appeal on 16-3-1*84. It waa urged that the appellant acted under a bona fide impression and as such his mistake was excusable. The learned counsel for t e Respondent-Authority, however, vehemently opposing the petition for condonation of delay, contended that assuming but not conceding, if there was any controversy of opinion in respect of the jurisdiction of this Tribunal, it was finally resolved by an authoritative pronouncement of the Honourable Supreme Cvurt on 3-12-1982 in the case of F U.
Malik v. Wa PDA and reported as 1983 SCMR 663. The learned counsel emphasized that the appellant and his counsel, in any case, became fully aware of the oorreet legal position on ll-4- i983 when another petition being No. 117/1982 filed by the appellant before the Punjab Labour Court against another order of his dismissal from service, was returned to the applicant by the Labour Court holding him a civil servant on the basis of the decision of the Supreme Court in the above referred case whereon the same counsel, Mian Mahmood Hossain, had filed an appeal in the said matter of the dismissal of the appellant from service before this Tribunal on 27-4-1983 but even then it was not cared to file an appeal before this Tribunal against the order impugned herein and the appellant further had been sleeping negligently for more than a year and filed the present appeal only on 16-5*1984. It was submitted that there was no occasion or justification for the appellant and his counsel for delaying the present appeal by more than twelve months, simply because, by return of his petition No, 117/ 1982 the correct legal position was, in any case, known to them and they acted accordingly in that matter, therefore, they should have clearly understood that the order of the appellant's reinstatement in service passed by the Labour Court became ineffective and inoperative notwithstanding the pendency of the writ petition filed by the respondent for which, according to the appellant himself, he had no notice.
5. We found ourselves in accord with the learned counsel for the Respondent-Authority that at least on 11-4-1983 the appellant and his counsel were quite aware of the correct legal position about the exclusive jurisdiction of this Tribunal in the matter ; and that the delay occurred thereafter has to be explained and, according to the well settled principle of law, reason for each day's delay has aot oaly to be explained but substantiated. In such a context, however, the sole submission of the learned counsel for the appellant is that if the delay in filing the present appeal is not condoned, injustice done to the appellant shall &e perpetuated and thereby he shall suffer an irreparable loss oaused by the impugned order whieh, on the face of it, is illegal and mala fide.
The law on the point, however, is well settled that after the prescribed period of limitation has elapsed, the door of justice is closed and no plea of injustice, hardship or ignorance can be of any avail unless the delay is properly explained and accounted for. Indeed, exercise of discretion to condone the delay has to be reasonable and not arbitrary and can be resorted to in very special circumstances and only when delay of each day stands accounted for. As discussed above, the appellant has utterly failed to explain and account for such an inordinate delay and as such the same is inexcusable and uncondonable.
6.' Our examination of the case on merits, however, led us to the conclusion that the impugned order is devoid of good faith but we could give such declaration only if the present appeal is found to be competent which, as we have said above, it is not.
7.For the foregoing reasons, the petition for condonation of delay is rejected and, in consequence, the appeal is dismissed as incompetent being barred by limitation.
7. No order as to nosts.
K.L.R. 1987 Labour and Service Cases 279 [Islamabad] Prestnt t Muhammad lr*had Khan and S. A. Sayeed, Appeal No. 53(R) of 1986 decided on 23rd October, 1986.
Service Tribunals Act 1973 ---- a. 4-Appellant selected as Line Supdt in WAPDA-Proceeded with under the WAPDA Employees (Efficiency and Discipline) Kuie-same culminating into his dismissal from service while be beina on P -Appellant challenging such dismissal-lnter alia applying lot " , tion of delay contending that the delay was due to honapac - standing ajout the jurisdiction of the Tribunal-Delay c Appeal-Held : Accepted-However-Reinstatement of PPelA**, . .
Superintendent not possible as same having not materialised--ao/uri . Appellant to &e taken back to his previous service as Meter Re*p ^ ^ For the Appellant; Mian Mahmood Hussain, Advocate, For the Respondents : Sardar Muhammad Amir Akbar Khan, counsel along with Muhammad Nazeer, Head Clerk, Rang Mahal division, Lahure, Departmental Representative. #tbs [Vol, VI #the #tbs Karachi Law Reports #the #tbs 280 b, & S. #the Date of hearing ( 23rd October, 1986.
Mohammad Irshad Khan, (Member).-The relevant back-ground giving rise to the present appeal ia that the appellant was appointed as Line Superintendent (Grad-II) on 5-3-1981 and while working as such his service were terminated vide order dated 24-3-1981 purportedly passed under clause 2 of his offer of appointment, The appellant challenged the said termination order before the learned Punjab Labour Court which by its order dated 14-5-1981, directed the reinstatement of the appellant in service with full back benefits. It appears that the respondents were initially reluctant to carry out the order of the learned Laoour Court whereen the appellant filed a criminal complaint against the Respondent No. 1 in the Punjab Labour Court and ultimately he was reinstated m service. At the same time, however, he was first suspended from service and then served with the following Show Cause Notice : Subject; Show Cause Notice under section 5 (/v) of WAPDA Employee (E&D) Rules 1978 -Your personal record oBtained from your parent office l e. Office of XEN, Elecy ; WAPDA, Hafizabad, revealed that there were so many * serious allegations'* against you for whieh a chargesbeet and a Show Cause Notice icopy enclosed) had already been served upon you by the above named XEN, but you at the time of appointment in the Office of S E., 1st Lahore Circle, Lahore, as L,S. II, concealed the aftore-mentioned fact. Thus evidently you have cheated the Department and procured the appointment as L.S, II, in this Circle of Superintendenee through fraudulant meaas.
If the above allegations are proved, you will be guilty of gross misconduct under the Pakistan WAPDA Employees (E&D) Rules, 1978, applicable to you and will render yourself liable to all or any of the penalties described ia rule 4 of the said Rules. You are, therefore, hereby required to put in you written defence reply within fourteen days of the receipt of this Show Cause Notice, stating at the same time whether you desire to be heard in person.
Your defence reply should reaeh the undersigned within the stipulated period, failing which it will b- presumed that you have no defence to offer and an ex parte action will be taken against you, which may tentamount to the dismissal of your serivees.
Sd /- Superintending Engineer 1st Lanore Circle Lahore,"
2. The appellant submitted a detailed reply to the above Show Cause Notice whereby he denied and refuted the charges levelled against him. However, vide the impugned order dated 24-2-1982 he was dismissed from s-rvice in purported exercise of the power derived from clause 3 of the offer of appointment issued to the appellant vide Office Memo, dated 5-3-1981, Aggrieved the .Eby the appellant first filed a grievance petition before the learned Punjab Lahore Court out the same was returned to him by the said Court for want of jurisdiction vide its order dated li-3-1983 ; he then filed the present appeal on 27-1-1983.
3. The learned counsel for the appellant submitted that the respondents with ulterior motive, first terminated the service of the appellant a few days after he joined the service under clause 2 of offer of his appointment which could be invoked for dispensing with the services of a probationer only if his work or conduct during the period of probation, is found unsatisfactory, while, it was impossible to judge the work and eonduet of the appellant during a few days he served as a probationer. In any case* according to the learned counsel, when the appellant succeeded in getting the said by the Punjab Labuor, Court, the Respondent Klo, l became mere hostile and after reluctantly reinstating him in service in pursuance of the decision of the Labour Court, again dismissed him quite illegally and unjustifiably. The learned counsel further submitted that even otherwise the impugned order is bad in law inasmuch as the allegations on the basis of which the impugned order was passed, apart from being baseless, do not constitute a misconduct.
4. Be that as it may, however, the first question which falls for determination is whether the WAPDA Employees (Efficiency and Discipline) Rules were applieable to the appellant 7 It may be useful to reproduce below sub-rule 2 of Rule 1 of the said Rules which reads as under J- "2, They shall apply to all WAPDA Employees except those on probation and those borne on work charged establishment.** A bare reading of the above provision makes out that the application of the said Rules was excluded in ease of employees on probation. Since the appellant was admittedly still on probation, the impugned proceedings against him under the WAPDA Employees (Efficiency and Discipline) Rules, were incompetent and unlawful. Mention in the impugned order of clause 3 of the offer of appointment also is misplaced and does not, in any way, alter the above asid position because under the said elause the services of a probationer could be terminated for insubordination, intemperance or misconduct or eontiauous absence from duty, but the said rule could not be invoked for awarding a penalty of dismissal from service which eould be done only under the WAPDA Employees (Efficiency and Discipline) Rules. Thus viewing from this angle also the impuged order remains incompetent.
5. Even on merits the impugned order cannot be sustained for the simple reason that the allegation levelled in the charge-sheet does not constitute a misconduct punishable with the extreme penalty of dismissal from service inasmuch as the application of the appellant for appointment ns Line Superintendent (Grade-II) was duly forwarded by the Executive Engineer, Hafizabad Division, and on his selection as such he was relieved of his duties as Meter Reader in the Hafizabad Sub-Division which nects- sariyl implied that the relevant authorities of the Hafizabad Sub-Division had no objection to the appointment of the appellant as Line Superintendent (Grade-II). The Respondents also failed to show anything in support of the stand that the appellant was bound to disclose in his application for appointment as Line Superintendent (Grade-II) the fact of service of a charge-sheet on him previously.
6. The learned counsel for the Respondents has seriously taken an objection about the competence and maintaiaaoility of the present appeal urging that the appeal is barred by limitation. The present appeal having been filed on 27-4-1183 against the order dated 24-2-1982 is abviously time barred. An application for condonation of delay has, however, been filed by the appellant stating therein that certain judgments of this Tribunal and the Labour Courts, created a bona-fide impression about the jurisdiction of this Tribunal and as suh the appellant had first challenged the impugned order dated 24-2-1982 before the Labour Court whieh by its order dated 11-4-1983, returned the plaint for want of jurisdiction and thereafter he filed the present appeal on 27-4-1983. It was urged th t the delay was neither deliberate nor intentional but was due to a bona fide misunderstanding prevailed at that time about the jurisdiction of this Tribunal. In the circumstances of the case, we are inclined accept the explanation offered by the appellant and aecordingly the request for condonation of delay is allowed.
7. For the foregoing reasons the appeal is accepted and the impugned order is set aside As stated above, however, prior to passing the impugned order, services of the appellant were terminated on 24-3*1981 in purported exercise of the powers under clause 2 of the terms and conditions of his service contained in his appointment order. The said termination order having been set aside by the Labour Court, the appellant was taken back in service but was again dismissed by the order impugned herein. The aforesaid order of the Labour Court was subsequently found to be without jurisdiction and was so declared by the High Court. Thereafter the appellant filed an appeal being No. 155(L)/1984 before this Tribunal to challenge the order of his service. The said appeal, however, having been held to be barred by limitation, has been dismissed with the obvious result that termination order dated 24-3-1981 remains operative and effective, Therefore, reinstatement of the appellant in service as Lino Superintendent (Grade-II) is not possible although order of his dismissal from service impugned in the present appeal is being hereby set aside. It is, however, noticeable that but for his selection as Line Superintendent (Grade-II) the appellant would have continued in his previous service as Meter Reader. Since his selection as L.S. (Grade-II) is not materialized for no fault of the appellant, it would he highly improper undjust if he is deprived of Ms previous job also. It is, therefore, directed that the appellant should be taken baek in his previous service at Meter Reader.
8. No order as to costs.
U.K. Labour Services Cases 283 [Karachi] Present | Sped Abdul Rahaumt /.
HABIB BANK LIMITED versus MUBARAK ALAM SYED and others Suit No. 320of 1979, decided on 19th May, 1987.
Civil Procedure Code (1908) ---- O XXXIV read with Rules 227 & 233-Sind Chief Court Rules- Suit-Defendant No. 1 opening a loan account with the plantiff Bank at the request of Defendant No. 2 getting accommodation by creating 19*7] #tbs Defendant suit-Held (Para, 7)
1941 Mad. #the a first legal charge thereby mortgaging a plot with building thereon- Defendant No. 1 already being in service as an officer with the plaintiff Bank-On his failure to repay the loan plaintiff Bank bringing a suit against Defendant No. l who promising to repay the same by way of deposit of monthly instalments in the Court-Defendant No 2, the b other of Defendant No. 1 however denying to have stood as a security and to his having motgsged his property he even denying to have executed the mortgage Deed and affixing his thumb impressions and signatures thereon Alleging same to be forgsd-Such contention in the face of the evidpnee and the attesting witnesses of the document repelled-Held : No. 2 had signed and executed the mortgage deed-Plaintiff's further ; Decreed against the defendant.
ILR-32 Cal. 759, AIR i960 Andhra Pardesh 164 and AIR 551 rof.
For the Petitioner f Ibrahim Pishon, Advocate.
Par the Respondent: Defendant No. 1 Called absent.
Respondent No. 2 : S, A. Manan, Advocate.
Date of hearing j 19th May, 1987.
Syed Abdul Rehman, J.-This is a suit under Order 34 CPC read with Rules 227 and 233 of the Siad Chief Court Rules (O.S).
2. The defendant No. 1 Mubarak Alam Syed opened loan account No. 229 with the plaintiff Habib Bank Limited at its KDA Branch Karachi in his name. The defendant No. 1 was an officer in that branch of the bank. At the request of defendant No. 2, who is brother of defendant No. 1, the plaintiff agreed to allow the defendant No. 1 accomodation by way of loan to the extent of Rs.
56,000 on the condition that the defen* dant No. 2 should create a first legal charge by way of registered mortgage as guarantor. Consequently against the security of a registered mortgage deed dated 18-3-1 */ of plot of land nearing No. 406, Sheet No. K-1>B, measuring 154 square yards in Bihar Colony, Lyari Quarters Karachi together with the building constructed thereon, the plaintiff gave a loan of Rs. 56000 to the defendant No. 1 which was to be repaid in monthly instalments of Rs. 400 commencing from 18-3-1973. The interest was to be charged at 3% above the bank rate with a minimum of 9% per annum to be paid on or before 5th day of every month. The defeadant Mo. t repaid in all Rs. 7.200. The last payment of Rs. 6,000 was made on 6-2-1974. On 4-3-1976 the defendant No. 1 wrote a letter aeknewledging his liability and promising to pay the entire amount by the beginning of 1977. On 2S-2-79 a sum of Rs. 1,07,203.35 was due from the defendants to the plaintiff hence the suit.
3. The defendant No. 1 filed a statement to the following effect "It is most respectfully submitted by the defendant No. 1 that he is prepared to pay the decretal amount in monthly instalment of Rs. 2,000 to be deposited on or before 14th of each month in this Hoa'ble Court since the defendant No. 1 is in service he cannot afford to pay more than the said amount, 284 L & S. Karoshi Law Report/ [Vol. VI It is therefore prayed that the said suit may be disposed of against defendant No. 1 accordingly.
Sd- (Mubarak Alam Syed)
Defendant Bo. 1'*
4. The defendant No. 2 contested the suit and filed a regular written statement wherein he denied to have requested the plaintiff bank to allow loan to his brother, the defendant No. I or to have stood surety for him. He has also denied to have guaranteed the repayment of loan by creating a legal charge by way of motgaging his property. He denied to have executed registered mortgage deed. He has alleged that the signature and thumb impression of the defendant on the said mortgage deed are forged. He has attached his specimen thumb impressions and signatures on a paper alongwith his wiitten statement. He had admitted to have received a notiee from the plaintiff and to have properly replied the same in the negative.
On the pleading of the parties the following issues were framed
(1) Whether the registered mortgaged deed dated 18-5-1973 was not executed by the defendant No. 2 ?
(2) Whether the mortgage created in favour of the plaintiff is not valid?
My findings on both these issues are in the affirmative I.e. In the favour of the plaintiff for the following reasons |- ISSUE NO, 1 The burden of proof of this issue was on the plaintiff. Section 60(2) of the Registration Act raises a presumption of execution of a document. The definition of word attested according to Section 3 of Transfer of Property Act is as under g- "Attested in relation to an instrument, means and shall be deemed always to have meant attested oy two or more witnesses each of whom has seen the executant sign or *ttix tus mark, to the instrument, or has seen some other person sign the instrument m the pieseace and by the dnection el me executant, or has received from the executant a personal acknowlegment ol his signature or mark, os of the signature of suen otnar person, and each of whom has signed the instrument in the peraeace of the executant ; tout it shall not be necessary that more than one of such witnesses snail have een present at the same time, and no particular form of attestation shall be accessary.'* According to this definition an attesting witness is a person who in the presence of the executant of the document puts his signature or mark on it af ter he has seen the executant or some one by executant's directions signed or affixed ins mark to it. For the validity of an instrument attestation of two or more witnesses is necessary, aecuon 39 of the Transfer of Property Act requires that a mortgage bond should be attested by two witnesses. According to Section 68 of the Evidence Act which is parallel to Section 79 of Qanoon-e-bfiafiauat Order 1983 if a document is required by law to oe attested it shall not be used as evidence until one attesting witness at least has been called lor the purpose of proving its execution,
6. The plaintiff has examined P.W. Zainuddin Assistant Vice President of the Bank. In 1973 he was working in the area office which was situated in K.D A. Branch on the revolving duty. Upto July 1972 he was Manager of Habib Bank Limited. M.C. Branch. Defendant No. 1 Mubarak Alam Syed was working in KMC Branch under him as an officer. He has claimed to be familiar with the signature of the defendant No. 1. He has also claimed to be familar with the brother of defendant No. 2. He has stated that defendant No. 1 was given a loan on the security of defendant No. 2, He was also an attesting witness of mortgage deed. He has stated that defendant No. 1 as well as defendant No. 2 had signed on the mortgage deed exhibit 4/1 in his presence. He himself had also signed the same as an attesting witness. All these signatures were put in presence of Suo-Rcgisterar in his office and such a note was made by the Sub-Registrar. This witness was cross-examined at length by the advocate for the defendant but he eould not shake bis evidence in the least.
Defendants have not estaolished enmity or motive against him. Defendant No. 2 avoided to appear in presence of this witness before this Court. However, he wae pressed by the Court to appear and the witness was asked if he eould identify defendant No. 2. Thereupon the witness rightly identified the defendant No. 2 Akbar Alam, The mortgage deed also gets support from the letter exhibit 4/13 mitten by the defendant No. 2 Akbar Alam to Habib Bank Limited. The signature on this letter was net referred to the Hand Writing Expert although defendant No. 2 had denied the same. Besides this the entries from the bank account, the notices and many other documente were produced by the plaintiff. The plaintiff also examined Rashid Hameed, another officer of Habib Bank Limited.
As against this defendant examined himself as exhibit 4. He has produced the registered mortgage deed as exhibit 6/1 and has denied hie signature as well as thumb impression on the same. He has also denied to have executed the said document or to have gone to the Registration Officer for the said purpose. He was also confronted by plaintiff's counsel with P.T.I, ana KMC bills and the lease deed of the plot. He has gone to the extent of denying his signature on the registered lease deed of hig- own house and has alleged that this house was purchased by him from one Hamid Sajjad Hussain Jaffri for a sum of Rs. 3u00 on a stamp paper of Re.
2. He was cross-examined at length by the advocate for the plaintiff. From his cross-examination it is quite clear that defendant No. 2 is speaking deliberate lies to escape his liability. As already pointed out by me he has gone to the extent of denying his authenticated signature on the registered lease deed of his own house. At one stage he says that he and bis brother Mubarak Alam Syed had not gone to the office of the Registrar while later on he changes his statement and says that he does not know whether Mubarak Alam Syed had gone to the office of Registrar or net.
He has admitted that his brother Mubarak Alam Syed was employed in the bank but has shown his ignorance about the length of the service in the said bank or about the place of residence in Karachi or the length of period for whieh he lived at Karachi. Besides this whereas be admits that his brother was married he shows ignorance as to when he was married or to whom he was married. He goes to the extent of denying that he attended the marriage or even his father had attended the marriage of the defendant No. 1. All these unbelievable statements made by the defendant No. 2 in his cross-examination expose him as a perfect liar. In the beginning, the Court had appointed one Mr. A. B.
Chughtai to axamine the diiputed thumb impression and signature of the defendant No. 2 on toe mortgage deed hut he was discharged on his own request on 2-5-1922. On 17-8-1982 the Court appointed Dire* otor Forensie Expert to examine tae disputed signature and thumb impression on the mortgage deed but the defendant's counsel did not pursue the same and did not deposit bis fee etc. Tne advocate for defen* dant Mo. 2 tried to shift the Oiamo for not pursuing the examination of document by Director Forensic Expert but in vain. 1 do not want to go deep into this controversy for the simple reason that it would lead us no Where. Finally on the application ol defendant No. 2 the Couit appoint* ad Mr. Ghaboir Husaain Siudiqui as Hand Writing Expert. An application for substitution of Hand Writing Expert made oy the defendant Ho. 2 was dismissed by this Court on e-4*lP6. Tbe Court *Mr. Justice K. A. OhaniJ had made it clear tnat the defendant No. 2 was not debarred from producing bis own Hand Writing Expert as a witness to be examined on bis behaii, if otherwise permissible in the circumstances of the case. Consequently the deiendant Me. 2 privately ootamed the services of Mr. Shabhir Hussain Siddiqui Hand Writing Expert who examined the disputed thumb impression and band writing witn the specimen signature and thumb impression of the defendant No. 2 and expressed bis opinion that the same did not resemole with eacn other. He bas given his reasons lot coming to the said conclusion.
I have perused the report and evidence of the Hand Writing Expert, lam not in agreement with mm at ail. The comparison of the disputed signature of the defendant No. I with nts specimen signatures alone would be of no use because the deiendant Mo. 2 could have consciously changed his specimen signatures from the disputed signatures. Suen a question was put to the Hand Writing expert by the counsel for the plaintiff. He has admitted that the possibility ol deiiocrate change in the signature of a person cannot be ruled out. Besides inis mere is notbing on exmbits 4/14 and 4/15 to show as to in wnose presence tnese specimen signatures and thumb impiessiens were ootamed. Dcnmtcly there is no mention that these specimen signature and thumb impressions were obtained in presence of the Conrt. Apart from that the specimen thumb impressions are not properly ootained. These are olurrcd and there is douoie impress which has resulted m malting the tnumo impressions unht for examination wmch is also clear irom enlarged photos ol the tbumo impression produced by the Hand Writing Expert. To me it appears mat th tact that inspite of these specimen thumb lmpietuoas being blurred and double impressed the Hand Writing Expert nas come to me conclusion that the same are different from the disputed thumb impession when they were not for examination and has given his opinion aoout the same, casts serious doubts on the oona/idtt of the test. No doubt the plaintiff's counsel hee not cross- examined the expert on this point, but his omission to do so does not debar the court irom forming its opinion on such n glaring defect, which ie evident on the faee of the record, 7, Althomgh finger prints afford valueable evidence of identity but great caution must be exercised in arriving at a conclusion by comparison of thumb-impressions and the positive evidence of witnesses who were undoubtedly present and were eye-witnesses to the transaction should not be lightly brushed aside. In this case there was diversity between the thumb- impressions purported to have been taken on the oiigioal registered document as compared with the speeimeae of thumb-impressions which were produced before a private expert, which specimen thumb-impressions are of a suspicious nature. I have deeided not to place reliance on the evidence of the Hand Writing Bxpert which is based on saeh doubtful specimen thumb- impressions. In the ease of Jf. v. Abdul Hamid reported in I.LR. 32 Cal. 739 it was held that great caution must be exercised in arriving at a conclusion by comparison of thumb-impressions and the positive evidence of the witnesses who were undoubtedly present and were eye-witnesses should not be lightly brushed aside. In this ruling the opinion of expert are rejected as thumb impression were blurred. In another case of Godavarthy report'd in A. I.R. I960 Andhra Pardesh 164 it wa* held that it was the duty of the Court to scrutinize the evidence of the expert or make the comparison personally. In an earlier Madras ease, a Magistrate not being satisfied with the opinion of a finger-print expert gave the accused the benefit of doubt. It was held that the Court was not bound to accept the evidence of an expert even though there were no special reasons for not accepting it. It was proper for the magistrate to satisfy himself by personal examination of the finger-prints even though he was net an expert. Reference was made to A.I.R, 1941 Mad. 551 (Public Prosecutor vs Gopal).
7. I am therefore, fully satisfied that the defendant No. 2 had signed and executed the mortgage deed in dispute which is legally valid and binding upon defendant No. 2.
These are th? Reasons for which I have decreed the Plaintiff's snit by my short order dated 19-3- 1987.
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