1. AJMAL MIAN, CJ.--This petition is directed against the order dated 8-8-1982 passed by respondent No,1.
2. The brief facts leading to the filing of the above petition are that the respondent No,2 which was a Collective Bargaining Agent at the relevant time filed an application under section 34 of the I,R.O. on 24-9-1980 for grant of three items, namely, over time, bonus and gratuity. The above application was resisted by the present petitioner. The Vth Labour Court by its order dated 8-81982 dismissed the same. Against which respondent No,2 filed an appeal, which was taken up by respondent No,1 and disposed of by the impugned order dated 11-11-1982. It was conceded by the learned counsel for the petitioner before respondent No,1 that the ground found favour with the learned Labour Court for dismissing the respondent No,2's aforesaid application was not sustainable. It was further conceded that the workers were entitled to the payment in terms of the judgment in the case of Karachi Pipe Mills Limited v. Employees Union (1981 P.L.C. 19). The learned Sindh Labour Appellate Tribunal by the impugned order dismissed respondent No, 2's above appeal in respect of two items, namely bonus and gratuity but allowed the appeal in respect of over time. The petitioner being aggrieved by the above order has filed the present petition, whereas the respondent was aggrieved by the same order, filed C.P.No,D-13/1983.
3. It may be observed that the petitioner had not raised any plea before the Labour Court or before the Sindh Labour Appellate Tribunal to the effect that respondent No,2's above application under section 34 of the I.R.O. was not competent as the Union was not entitled to agitate the individual's claim. However, it seems that after the filing of the above petition, a Full Bench of this Court in the case of Karachi Pipe Mills Limited v. Sindh Labour Appellate Tribunal and 2 others reported in PLD 1984 Kar. 503, the relevant portion at pages 515 and 516, took the view that a Collective Bargaining Agent was not entitled to maintain an application under section 34 of the I.R.O. for agitating the claim of an individual workman. Relying upon the above judgment, Mr. Abrar Hassan learned counsel for the petitioner has vehemently contended that the proceedings before the Labour Court as well as before the learned Appellate Tribunal were coram non judice and without jurisdiction and therefore, this Court in view of the above Full Bench judgment should hold so. On the other hand Mr. Mirza Mohammad Kazim, learned counsel for respondent No, 2 has submitted that the exercise of constitutional jurisdiction is a discretionary matter and since the petitioner had not raised any such plea before the two Courts below, it would be just and proper to dismiss the above petition on that ground particularly, keeping in view that respondent No, 2's above petition D-13/83 was dismissed on the very ground by us by an order dated 22-2-1989. The reliance has been placed by Mirza Mohammad Kazim on the case of Mohammad Soomar and others v. N.I.R.C., and others reported in 1987 PLC 782 in which a D.B. of this Court while relying upon the famous case of Supreme Court, Raunaq Ali reported in PLD 1972 SC 236, declined the petition on the ground that it would not be just and proper to press into service the writ jurisdiction. The relevant portion of the above judgment reads as follows : "From the order of the Senior Member dated 12-11-1986 it does not appear that the petitioner had challenged his jurisdiction. It is correct that all the nominated office-bearers were not joined as party, but petitioner No,1 who has been nominated as President was party before the N.I.R.C. and he did not raise any objection to the jurisdiction. This objection seems to have been raised in appeal.
4. We however, find that letter by which Mohammad Hussain was nominated office-bearer was illegal, unauthorised and not according to the constitution of the Union. Therefore, in the facts and circumstances of the case even if the N.I.R.C. did not have the jurisdiction to entertain the dispute justice has been done. Reference can be made to Raunaq Ali's case PLD 1973 SC 236 where following observation was made : "hut it is also now well-established that where an inferior tribunal or Court has acted wholly without jurisdiction or as Rubinstein puts it in his book on "Jurisdiction and Illegality" taken any action "beyond the sphere allotted to the tribunal by law, and therefore, outside the area within which the law recognizes a privilege to err" then such action amounts to a "usurpation of power unwarranted by law" and such an act is a nullity, that it is say, "the result of a purported exercise of authority which has no legal effect whatsoever'''. In such a case it is well established that a superior Court is not bound to give effect to it, particularly where the appeal is to the latter's discretionary jurisdiction. The Courts would refuse to perpetuate, in such circumstances, something which would be patently unjust or unlawful".
5. In our view even if we were to agree with Mr. Abrar Hassan, in our view it will not be just and proper to press into service the constitutional jurisdiction. Admittedly the petitioners are bound to pay over time to the workmen for the work which they must have done in additions to their normal working hours. If we were to allow the above petition it would lead to further litigation and inconvenience.
6. We had dismissed the respondent No,2's above petition keeping in view the fact that by doing so we would have been enforcing an application under section 34 which was not otherwise competent but the case of the present petitioners is distinguishable as they are invoking constitutional jurisdiction. In terms of the above judgment of the Supreme Court in the case of Raunaq Ali, the High Court is not bound to set aside every illegal order but if the dictates of justice so demand it may even refuse to set aside any illegal order. The above petition has no merit and it is dismissed, but there will be no order as to costs.