1. GHULAM RASOOL K. SHAIKH, J. These Petitions have been filed to chal--lenge the order passed by the Industrial Court and confirmed by the Labour Appellate Tribunal, Karachi, ordering the re- instatement of 5 Workmen, namely, Aminul Haq, Mohammed Rafique, Gul Amir Khan, Aziz Khan and Shah Wazir, who were in the employment of the petitioner's company. These petitions had been consolidated as common questions were involved.
2. A dispute arose between the petitioner's company and its employees. A strike notice, dated, 10-4- 67 was served upon the petitioner company on 11-4-67 by the aforesaid five workmen who are respondents in these petitions as they were the elected, representatives of the employees. This was followed by further dismissal of 5 workmen on 13-4-67 and 6 workmen on 15-4-67, bringing the total number to 21. Two of the workmen were however, subsequently taken back.
3. The aforesaid live representatives filed an Industrial Dispute No. 8/67 in the Industrial Court on 17-5-
67. On the same day they presented an applica--tion under section 20 of the Industrial Disputes Ordinance, 1959, complaining that the petitioner-company had illegally locked out 21 workmen as they had refused to withdraw their demand as pressed by the Management, and out of them two bad been taken back. A prayer was; therefore, made that the petitioner's company be prohibited from the continuance of the illegal lock-- out and allow the locked out workmen and others to resume their duties immediately. An interim order was also sought. The Chairman, Industrial Court passed an interim order dated 19-5-67 prohibiting the continuance of the lock-out regarding five workmen who were signatories to the strike notice. Notice of this application was issued to the petitioner company. After hearing the parties find order on the application under S. 20 was passed on 13-6-68 and it was held that under the Industrial Disputes Ordinance, 1968, the petitioner- company was a public utility service and, therefore, according the that Act the five elected representatives had been refused work during the conciliation proceedings but on account of the promulgation of the new Ordinance No. 4 of 1968, the company was not public utility service on and therefore conciliation proceedings were deemed to have company could started on 17-4-67 and that being so the action taken by the petitioner-company could be treated to be a lock out. It may be stated here that in the case of public utility service the conciliation proceedings are deemed to have commenced by the service of the strike notice. In the present case the strike notice was served on 10-4-67. The Industrial dispute was also disposed of by order dated 10th December 1968. Aggrieved by the order disposing of the application made under section 20 the respondents filed an appeal before the Appellate Tribunal but it was subsequently withdrawn on 19th May,1969. , On 29 October 1968, the respondent made separate application under section 38 of the West Pakistan Industrial Dispute Ordinance, 1968 seeking re-instatement in service with full benefits by challenging the order of the petitioner dismissing them during the pendency of the Industrial dispute without the permission of the competent authority as they were officers of Trade Union.
4. These applications were resisted by the petitioner and it was denied that the respondent were the officer of any Trade Union much less a registered Trade Union and they had been dismissed on account of misconduct before any conciliation proceedings could, in law, be deemed to have commenced and as such there was no violation of section 30 of the Industrial Dispute Ordinance, 1959 which was analogous to section 37 of the West Pakistan Industrial Dispute Ordinance, 1968.
5. Both the parties tendered evidence.
6. On the assessm ent of the evidence the learned Chairman by orders dated 14-1-1970, came to the conclusion that respondents were elected office-bearers of the workmen and the petitioner's industry was a public utility service when the strike notice was served. It was also held that at and relevant tune the Industrial Disputes Ordinance, 1959, was in force and the provisions of that Ordinance had to be complied with and, therefore, under section 16 (1) (a) of the Ordinance the conciliation proceedings were deemed to have commenced in the case of Industrial dispute relating to a public utility at-mice where notice of strike or lock-out under section 18 of the Ordinance teas given and received by the conciliation officer. According to his finding notice of the strike was received by the conciliation officer on 10-4-67 and since, admittedly the petitioner- company was public utility service under the Ordinance of 1959, the conciliation proceedings must be deemed to have commenced from 10-4-67. Dealing with section 30 of the Ordinance it wits pointed out that no employer could, during the pendency of the conciliation proceedings, discharge, dismiss, or otherwise punish any workman except for misconduct not connected with the industrial dispute without the permission of the conciliation officer. He also observed that there was nothing on record to show that the respondents were discharged/dismissed for any mis-- conduct and, therefore, the provisions of section 30 of the Industrial Disputes Ordinance, 1959, were violated. It was also held that the respondents were admittedly entitled to remedy provided by section 31 of the West Pakistan Industrial Disputes Ordinance, 1968. According to the learned Chairman, sec--tion 67 of the :Industrial Disputes Ordinance, 1969, did not stand in the way of the respondents to have their grievence redressed in accordance with law. The contention that the provisions of section 47 of the Industrial Relations Ordi--nance, 1969, were inconsistent with the provisions of section 37 of the West Pakistan Industrial Disputes Ordinance, 1968, or with the provisions of section 30 of the Industrial Disputes Ordinance, 1959, was repelled, On the basis of these findings the re-instatement was ordered with retrospective effect with full past benefits.
7. Subsequently, review applications were filed by the petitioner but were dismissed by the successor by order dated 25th September, 1970, on the short ground that according to Rule 29 of the Industrialth Dispute (Central Rules), 1960, the Chairman could correct any clerical mistake or error arising out of any amount in the award or petition and no argument was advanced on that point. It was also observed that even the principles under laying the provisions of Order XLVII, rule I, C. P. C. Were not attracted. Aggrieved by this appeals were filed before the Labour Appellate Tribunal but the same were dismissed on the ground that no appeal lay against the decision of an application under Order XLVII, rule 1, C. P. C. The contention that the decision amounted to an award and appealable as such under section 17 of the Ordinance of 1968 read with section 37 of the Ordinance of 1969, was repelled.
8. Aggrieved by this the present petitions had been filed.
9. At the time of arguments the learned counsel for the petitioners raised the following two pleas:
(1) The power of review was vested in the Industrial Court and it was not exercised.
(2) The order dated 14-1-70 was without jurisdiction.
10. Dealing with' the first plea the 'learned counsel for the petitioner could not point out any provision of the Industrial Disputes Ordinance conferring the power of review upon tile Industrial Court, but he mainly, relied upon the general principle that an authority empowered to issue. An order had also power to vary or, cancel that order as well as upon section 20 of the West Pakistan General Act providing that whereby in West Pakistan Act a power to issue notifications, orders, rules, scheme, form or by-laws is conferred, then that power includes a power exercisable in the like manner and subject to the like sanction and conditions (if as to act, amend', vary. Or, rescind any notifications, orders, rules, scheme, form, by-laws so issued. In this connec--tion he sought in aid the decision of my learned brother Nurul Arfin, J. In the case of N. Q. Industries v. Mst. Bapai Kaikhusro (PLD 1968 Kar. 589) in that case the principle canvassed before us was enunciated. With due respect I am unable to share the view that a power of review is available to an Industrial Court on the basis of general principle or by virtue of section 20 of the General Clauses Act. The power of review is not a matter of mere procedure but it is a question of jurisdiction, which cannot be exercised unless it has been expressly conferred upon a tribunal. As observed in the case of State v. Ziaur Rehman's (PLD1973SC49) the jurisdiction is a right to adjudicate concerning a particular subject-matter in a given case, as also the authority to exercise in a particular manner the judicial power vested in the Court. Thus a right of review like an appeal is a substantive right and I it is not available unless the statute confers that right upon the Court or they tribunal, as the case may be. My learned brother had referred to a case of Shahbaz v. The Crown (PLD1956FC46) whereby it was laid down that with regard to the power of a Government to recall an order of remission under section 401, Cr. P. C., the existence of such power was necessary in the case of all authorities empowered to pass orders under statute or regulations and that was the apparent reason why in order to give finality to judicial orders provision greatly restricting the use of this power had to be intro-- deuced in the Civil and Criminal Procedure Code, and wherever there was no such restriction imposed on the Government, there was no reason to deny them the power to correct even the errors of Judgment; and further this, power of correction was necessary for the proper discharge of their functions. This authority is clearly distinguishable as this refers to the powers of the Government and not a tribunal, which performs judicial or quasi-judicial functions. Apart from this, my learned brother was dealing with a case of setting aside an ex parte order of eviction on an application made by the party against whom that order was passed. So it cannot be said that the matter was really in respect of the exercise of the power of review. There exists a clear distinction between the power of review and the recalling of an order, which was passed ex parte. A similar question had arisen in the case of Mohd. Aslam v. Khurshid Begum (PLD 1972 Lah. 603) and this was referred to the Full Bench. It was ruled that an ex parte order passed by a Rent Controller under the West Pakistan Urban Rent Restriction, Ordinance could be recalled by him. One of the reasons given was that a perusal of the Ordinance would show that there was no provision in it anywhere for dismissing the matter in default or to proceed ex parte and if, therefore, any such a recourse was adopted by the Rent Controller, it was obvious that he adopted it by virtue of the inherent power vested in him to choose any procedure he liked and once he had chosen such a procedure, then to carry the matter to its logical end, he must retain the power to recall an order setting aside orders passed ex parte or in default. In the same case a distinc--tion was drawn between an ex parte order and filing of an application for review or setting aside an ex parte Judgment itself on the other hand.
11. This distinction had been elaborated in the following observations: "A distinction is to be maintained (a) in filing an application for claiming a rehearing of a case, ex parte decided on the one hand, and (b) filing an application for review of setting aside the ex parse Judg--ment itself on the other hand. The points of distinction are that (i) in the former type of proceedings the dependent-petitioner claims a rehearing on the ground (to put it broadly) that he was prevented by some sufficient cause from appearing on the relevant date of hearing and taking part in the proceedings of the case, while in the latter types of cases, he challenges the ex parte decree itself on its own merits including the errors of procedure in the trial of the case. (ii) In the former case, the merits of the ex parte decision or judgment are not to be taken into consideration, see Firm of Ghumanmal Khatoomal v. Secretary of State for India and another AIR 1926 Sind 249. (i.e) The latter types of cases partake some of the character of a review while the applications for claiming a rehearing on the ground of earlier absence due to some sufficient causes are not in the nature of a review."
12. (PLD 1968 Kar. 231) Mst. Zainab Khatoon v. Mian Ghulam Shabbir and others PLD 1965 SC 55, and (PLD 1965 Lah. 183) Hussain Bux v. Settlement Commissioner PLD 1971 SC 1. wherein it was clearly laid down that the right to claim the review of any decision of a Court of law like the right of appeal is a substantive right and not a matter of mere procedure and review is not available unless it has been conferred by law. In two other Lahore cases, Mst. Maqsoodan Bibi v.
13. Mst. Bano, (2) and Shaikh Rashid Ahmed v. Settlement Commissioner (PLD 1969 Lah. 894) the same view was expressed.' The first case was under the Guardians and. Wards Act and the other was under the Displaced Persons (Compensation and Rehabilitation) Act.
14. Apart from this, a reference to the Industrial Disputes Ordinance No. 4 of 1.968 would also support my view that the power of review is not available to the Industrial Court. Section 11 regulates the functions of the Court. It lays down that the Court shall adjudicate and determine any industrial dispute or inquire into and adjudicate any matter referred to it by the Government, try offences under sections 33 and 35 and exercise and perform such other powers and functions as are or may be conferred or imposed upon it by or under this Ordinance. Nowhere in this statute the power of review has been con--ferred upon the Industrial Court. When this provision of law was pointed out to the learned counsel he referred us to section 12, which regulates the procedure and power of the Court. Subsection (2) lays down that the Court, shall, for the purpose of adjudicating and determining any industrial dispute, be deemed to be civil Court and shall have the same powers as are vested in such a Court under the Code of Civil Procedure including the powers of (a) enforcing attendance of any person and examining him on oath, (b) compelling pro--duction of documents and material objects, (c) issuing commission for examination of witnesses. In my view, this subsection does not place an Industrial Court at par with a civil Court as regards substantive provisions of the Code of Civil Procedure but merely allows the procedure prescribed by the Code to be followed by the Industrial Court. Besides, the power con--ferred by this subsection can be exercised for adjudicating and determined any industrial dispute, whereas in the present case with which I am dealing I not an industrial dispute but it is an application made under section 38 of the j Ordnance for the contravention of the provisions of section 37. It is an indi--vidual dispute. Such a dispute can become subject-matter of an industrial dispute only if the body of workmen in general take up his case in the prescribed manner.
15. The second plea is that the order dated 14-1-70 passed by the Industrial Court ordering the re- instatement of the respondents was without jurisdic--tion as the respondents had been - dismissed from service before the- institu--tion of the proceedings in the Industrial Court. This plea has to be consi--dered in the light of the provisions of Industrial Disputes Ordinance, 1959, which held the field at the time when the respondents had been dismissed from service.
16. Section 30 of the Industrial Disputes Ordinance, 1959 as amended by Ordi--nance No. 16 of 1961 imposed certain restrictions upon the powers of an employer. It reads as under: "Conditions of service etc. To remain unchanged during pendency of proceedings.-(1) No employer shall, during the pendency of conciliation proceedings or proceedings before a Court in respect of an industrial dispute or during the period between the conclusion of the conciliation proceedings and commencement of the proceedings before the Court, after, to the prejudice of the workmen concerned in' such dispute, the conditions of service applicable to them -immediately before the commencement of conciliation proceedings, nor shall be-
(a) save with the permission of the Conciliation Officer; during the pendency of conciliation proceedings and the period thereafter proceeding the commencement of the proceedings before the Court, and
(b) Save with the permission of the Court, during tile pendency Pf the proceedings before the Court, discharge, dismiss or otherwise, punish any such workman, except for misconduct not connected with such dispute.
(2) Not with standing anything contained in subsection (1) an officer of a Trade Union shall not during the pendency of any proceedings for period specified in that subsection, be discharged or dismissed for misconduct not connected with the industrial dispute referred to therein except with the previous permission of the Court, but -may, pending the disposal of an application to the Court for such permission, be placed under suspension.
(3) The Court shall deal with an-application under subsection (2) in such summary way as it may think fit."
17. According to subsection (1) a workman cannot be clischarged/dismissed or otherwise punished without the permission of the Conciliation Officer or the Court as the case may be during the pendency of the proceedings except for misconduct not counted with the industrial dispute which is pending before the relevant authority. However, subsection (2) is proviso to sub--section (t) and it lays down that an officer of a Trade Union shall not, during the pendency of any proceedings, of the period specified in that subsection, be discharged or dismissed for misconduct not connected with dispute referred to therein except with the permission of the Court.
18. Another important section to be considered is section 16-of the Ordinance which provides that a conciliation proceeding shall be deemed to have (a) commenced in the case of an industrial dispute relating to a public utility ser--vice where a notice of strike or lock-out under section 18 is given, on the date on which such notice is received by the Conciliation Officer, and (b) in other cases on the date on which the Conciliation Officer starts investigation under subsection (2) of section 5.
19. The combined effect of sections 16 and 30 is that the employer could not dismiss an officer of a Trade Union after a notice of strike or look-out in respect of a public utility service, was received by the Conciliation Officer, without the permission of the Industrial Court but pending the disposal of an application for permission could place him under suspension.
20. Now turning to the findings of the Industrial Court which have not been assailed before us it was held that the petitioners company was a public utility service and the respondents were office- bearers of the Trade Union: This being the factual position, the conciliation proceedings, according to section 16, were deemed to have commended on 10-4-67 when the Conciliation Officer received the strike notice. Consequently, under subsection (2) to section 30 the respondents could not be dismissed from service except with the previous permission of-the Industrial Court. It is immaterial whether the Trade Union was registered or not, or whether the misconduct for which they were dismissed from service was connected or not connected with the industrial dispute. Admittedly, no permission was sought from they Industrial Court. Consequently, there was a violation of section 30 of the Industrial Disputes Ordinance.
21. Indeed there was violation of section 30 but mere violation is not enough to invoke the jurisdiction of the Industrial Court. The jurisdiction of the Court to entertain a complaint for the violation of section 30 is governed by section 31 of the Ordinance and it reads as under: "Where an employer contravenes the provisions of section 30,during the pendency of proceedings before a Court, any employee aggrieved by such contravention tray make a complaint in writing in the prescribed manner to such Court and on receipt of such complaint, that Court shall adjudicate upon the complaint as if it were an industrial dispute in respect of which application has been shade under subsection (5) of section 5."
22. The plain reading of this section shows that the complaint can be entertain by the Court only if the proceedings are pending before the Court. Admittedly there were no proceedings before the Court when the respondents were G dismissed from service. The action by the petitioner was taken during the pendency of the conciliation proceedings. No remedy was provided by the Ordinance but the petitioner could be prosecuted under section Z8 of toe Ordi--nance. Thus there can be no escape from' the conclusion that the impugned order was without Jurisdiction- This, really, does not conclude the matter the question still arises whether the petitioner be entitled to seek the extraordinary relief. It is a settled position that such a relief cannot be granted as a matter of course out depends upon the circumstances and the conduct of the person invoking the constitutional jurisdiction of the Court. In the present case there are circumstances, too prominent to ignored, which militate against the grant of the relief.
23. To enumerate the circumstances and the conduct of the petitioner, it is to be noted, at the outset, that the petitioner is guilty of the violation of law. The strike notice was delivered to the Conciliation Officer on 10-4-1967 and was served upon the petitioner ' on 11-4-1967 and immediately on the~ following day I e. 12-4-67 the petitioner proceeded to dismiss the respondents who were the elected representatives and the signatories to the strike notice, thereby ignoring the mandatory provision of section 30. The permission of the Court for dismissal was a condition precedent and it could not be avoided. Nothing has been suggested why the permission was not sought, apart from the fact that no such contingency was provided. An illegal act cannot be supported. In this connection I may refer to the observation made in the case of Abdul Rashid Qureshi? v. The Industrial Court (PLD 1967 SC 3,67) that under the Constitution every citizen of Pakistan has the right to demand that he should be treated in accordance with law and only in accordance with law. It was a case under section 30 of the Industrial Disputes Ordinance. 1959 and the objection to the jurisdiction under Article 98 of the late Constitution was overruled.
24. It is also a settled position that no writ can be issued to perpetuate injustice. Although the Industrial Court was not competent to entertain the complaint filed by the respondents, but the action of the petitioner was illegal and while ordering the re-instatement the illegality committed by the petitioner was set at naught. In this connection I would like to quote the pertinent observation made in the case of Ronaq Ali v. Settlement Com--missioner (PLD 1973 SC 236). The relevant observation appears at page 258 and it reads as under: "An order in the nature of a writ of certiorari or mandamus is a discre--tionary order. Its object is to foster justice and. Right a wrong. Therefore, before a person can be permitted to invoke this discretionary power of a Court, it must be shown that the order sought to be set aside had occasioned some injustice to the parties: if it does not work any injustice to any party, rather it cures a manifest illegality, then the extraordinary jurisdiction ought not to be allowed to be invoked."
25. Similarly there is another observation made in the case of Wali Mohd and others v. Sakhi Mohd and others (PLD 1974 SC 106). The relevant observation is at page 109, which reads as under: "The grant of relief in writ jurisdiction being entirely discretionary with the High Court, the Learned Judge would have certainly acted in aid of justice in refusing any relief to the respondents on the facts of the case, even if because of any technical reason, the order of Khan Saiduddin Khan was not strictly found justifiable. It is well settled principle that the High Court's writ jurisdiction can be invoked in aid of justice and not to help retention of ill gotten gains."
26. These observations are equally applicable to the present case. In case the relief, which has been sought by the petitioner is granted it will amount l to the approval of the illegal action taken by the petitioner and perpetuate injustice.
27. Secondly, these petitions suffer from latches. The impugned order, were passed on 14-1-70 while the present petitions were filed in this Court on 20-1-71 i.e. After one year. No substantial ground has been urged to explain the delay. Indeed a review application was filed before the Indus trial Court and against the order passed in review an appeal was filed but this was an exercise in futility as no right of review was available under the Ordinance and there was also no right of appeal provided against the order of rejection on the review application.
28. Lastly, the petitioner did not raise any objection before the Industrial Court that it had no jurisdiction to entertain complaints made by the respondents. The petitioner, on the contrary, contested the application on merits. Consequently, the objection to the jurisdiction cannot be taken at this stage. In this view I am supported by the decisions of the Supreme Court in the case of Ghulam Mohiuddin v. Chief Settlement Commissioner and others (PLD 1964 SC 829) and the case of Syed Alim Hussain and others v. Syed Shamim Akhtar and others (PLD 1974 SC 100). It was laid down that where a party was aware of the illegality being committed by the Tribunal did not raise an objection before the Tribunal it could not be permitted to ask for certiorari for quashing the order of the Tribunal in the High Court on the same ground. The principle is that if the person seeking to have the order quashed stood by and. Allowed the tribunal to usurp a jurisdiction, which it did not possess knowing that the Tribunal concerned was com--mitting such an illegality in consequence of something done by that person himself. I am conscious of the decision of the Supreme Court in the) case of Mohd. Afzal y. Board of Revenue (PLD 1967 SC 315) wherein it had been laid down that by mere submission in the capacity of the respondent to the authority of the Member, Board of Revenue, the petitioner could not be thought to have conferred the jurisdiction on the member which he did not possess, or to have waived his right to challenge the member to interfere with the order of the Commissioner. In this connection it -may be noted that in that case there was no illegality in the original order which was challenged before the Board of Revenue. In the present case the action taken by the petitioner was in violation of law and cannot be condoned.