DECISION This is an appeal against an Order of the learned Presiding Officer of Labour Court No. II, Karachi, dated the lst of October 1973, whereby the learned Court ordered the re-instatement of the respondent with full back benefits. The facts necessary for the disposal of this appeal are these.
The respondent was charge-sheeted on the 28th of July 1969 for misconduct under Standing Order 15(3)(e) of the West Pakistan Industrial and Commercial Employment (Standing Orders)
Ordinance, 1968. A copy cf the charge-sheet was sent to the respopdent on 20th of July 1969. He was called upon to appear on the 3rd of August 1969. He received this notice as would appear from Annexure *B* at page 31 of the record of the Labour Court but failed to appear. The enquiry was postponed to 31st August, 1969. The respondent was informed on 9th of August 1969. He received this letter also as would appear from Annexure 'D* at page 35 of the record. The respondent, however, did not appear on this date also and, therefore, the enquiry was postponed to the 18th of September 1969. The enquiry was held on that date in the absence of the respondent. He was found guilty of misconduct for absence of more than 10 days.
2. It is noteworthy that the respondent made an application under section 25-A of the Industrial Relations Ordinance, 1969 on the 29th of May 1972 alongwith an application under section 5 of the Limitation Act read with section 55 (6) of the Ordinance on the same date. Had the application been made under Standing Order 18, it is doubtful if section 5 of the Limitation Act would apply.
3. Mr. S. M. Yaqoob, the learned Representative for the appellant has raised two main objections before me. He contended in the first place that the application under section 25-A of the Ordinance was not maintainable, ln the second place section 25-A cannot be given retrospective effect. The respondent should have made application under Standing Order 18(6) of 1968 and not under section 25-A of the Ordinance.
I propose to examine these propositions separately.
4. The Labour Court relying on a decision of the Labour Court of East Pakistan reported in 1971 PLC 533 came to the conclusion that full 3 days* notice should have been given for explanation. The learned Court, I have observed, relies on this case for the conclusion that there is a violation of mandatory provisions of law and, therefore, the enquiry is bad in law. I may note that had the learned Court cared to go through this decision more minutely he would have found that the requirement under East Pakistan Standing Order is that 3 days' notice be given to show cause, and, therefore, the learned Court of East Pakistan rightly held that there was violation of law but no such provision exists in West Pakistan. So far as West Pakistan Standing Orders are concerned the only requirement is under Standing Order 15(4) that a person charge-sheeted for misconduct should be informed in writing of the alleged misconduct and is given an opportunity to explain the circumstances against him. This was done in the case of respondent. Moreover the respondent cannot be said to have been prejudiced by short notice as the respondent did not attend on the first date of hearing. The charge-sheet was repeated again for a fresh date of hearing.
5. The learned Court relied on the case of Malik Ghulain J Hani (1), in which the Supreme Couit held that President's Order No. 3 of 1968 was not legal as it has been issued by usurper, lt also cannot be maintained on the ground of necessity. Under President's Order No. 3 any order passed by Martial Law Authority could not be challenged before a High Court or Supreme Court. The first requisite, therefore, is as to whether any order was passed in this case by Martial Law Authorities. The order in question was passed. It appears at page 45 of the record of the learned Labour Court. It is dated 26th August 1969. It was passed by a Major, GSO-II-Labour. It is addressed to Mr. Abdul Qayyum, the respondent before me. It runs as under:-- x 'Reference your complaint No. ML-227 dated 19th August against your employer Messrs Ghani Textile Mills Limited, S. I. T. E, Karachi, during the course of joint meeting between you and your employer on 25th August 1969 you have been found out to be a liar. Management has therefore been advised to dismiss your services. You are directed to collect your legal dues as early as possible." Copy was, no doubt, sent to the appellant also. The respondent in his cross- examination admitted to have made application to the Martial Law Authorities. He, however, denied in cross-examination to have received any reply from the Martial Law Authorities that his claim was false. This is at page 99 of the record of the learned labour Court. On the face of it, therefore, after a perusal of the order of the Martial Law Authority, already reproduced, it is clear that he was not re-instated but advised to be dismissed. The case of Malik Ghulain Jillani has, therefore, no application to the circumstances and facts of the present case, as no order was passed by the Martial Law Authority dismissing the respondent. Moreover it is doubtful if the saidl order can be said to have been passed by the Martial Law Authority. In thisl# connection a reference may be made to a decision of the Lahore High Court| reported in PLJ 1974 page 136. Tn almost similar circumstances the High (1) PLD 1972 SC 159 Court came to the conclusion that the order cannot be said to have been passed by Martial Law Authority.
6. The cause of action, admittedly, arose to the respondent when he was dismissed in 1969. He filed the application giving rise to the impugned Award on the 29th of May 1972 at that time he had his remedy under Standing Order 18. He should have followed the procedure laid down under Standing! Order 18. On the other hand he made an application to the Martial Law C Authorities which cannot be justified at all. In this connection reference may] be made to the case decided by the Sind & Baluchistan High Court in Saieemsons {1). It was held in that case that the procedure prescribed under Standing Order 18 is a must. The application under section 25-A was not maintainable under any circumstances. Section 25-A was introduced for the first time on the 10th of November 1972. It has not been given retrospective effect so as to cover a cause of action which arose in 1969. The least that can be said about the order is that it is uncalled for and should be set aside. The appeal is allowed and the impugned order is set aside. (1) PLD 1973 Kar. 1