In this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner-Mills has impugned the order dated--29-11-1988 of the Punjab Labour Appellate Tribunal, Lahore accepting the appeal of Mazhar Hussain respondent against the decision dated 30-8-1988 recorded by the learned Presiding Officer, Punjab Labour Court No.4, Faisalabad and remitting the case back for redecision.
2. The facts forming the background leading to the passing of the remand order dated 29-11-1988 are that Mazhar Hussain respondent, hereinafter referred to as the employee, was working as Cone Winder in Kohinoor Textile Mills, Faisalabad. Upon the allegations of wilful absence from duty for more than 10 days the name of the employee was struck off the rolls by the petitioner-Mills with effect from. 23-4-1986. The employee felt aggrieved of order dated 23-4-1986, Exh.R1 and after service of grievance notice, copy. Exh.Pl, he preferred a petition before Mr. Ghulam Sarwar Shaikh, Presiding Officer, Punjab Labour Court No.4, Faisalabad by invoking the provisions of section 25-A of Industrial Relations Ordinance, 1969. The petitioner-Mills contested the petition pleading that an earlier grievance petition of the employee in relation to the very cause of grievance brought before the Labour Court, Faisalabad was withdrawn on 28-7-1988 without permission to bring a fresh one after service of grievance notice and therefore grievance petition dated 21-6-1986 was not maintainable. On merits it was pleaded that the employee was not harassed or coerced into giving up his employment with the petitioner-Mills and that he absented himself voluntarily on 12-4-1986.
The penultimate paragraph of the reply to the grievance petition dated 21-7-1986 reads as under:- - The employee examined Zulfiqar and Ali Sher as P.Ws. 1 and 2 respectively in support of his case and himself appeared as P.W.
3. His examination-in-chief reads as under:-- "I was given a chit by Shift Incharge (objected to) but earlier to it, no notice was given to me. No inquiry was even held. I was not taken on duty. Then I served the respondent with grievance notice, copy whereof is Exh.P.1. It was replied through Exh.P.2. Thereafter, I instituted this grievance petition.
I am not employed any where these days."
In his cross-examination the employee stated that he had given the notice on 4-6-1986 and that the above-noted chit was not mentioned in his notice. He also controverted. The suggestion put to him on behalf of the petitioner-Mills that he was rightly dismissed from service. He further stated that it was wrong to say that he had not challenged the order or his termination from service.
3.Shafiq Ahmed, Labour and Personnel Officer, Unit No 3, KTM, Faisalabad appeared as R.W.1. He stated that the employee was never turned out of the Mills by any officer in any manner and that no chit was ever issued to him. "Rather, he absented himself without intimation from his duty on 12- 4-1986. Upon conclusion that the petitioner had left the service of his own accord; his name was struck out of the pay roll of the Mills on 23-4-1986 by means of an Office Order Exh.R.1. Postal receipt in this connection is Exh.R.2 photostat copy of the extracts of despatch register is Exh.R.3". Certified copy of order dated 28-7-1988. Original application filed by the employee at the time of his recruitment and certified copy of written statement (in the earlier grievance petition) were brought on .The record as Exhs.R.4, R.5 and R.6, respectively.
4. The learned Presiding Officer, Punjab Labour Court No.4, Faisalabad was of the view that the allegation of absence without leave from 12-4-1986 to 23-4-1986 had gone unchallenged and un rebutted by the employee. He came to the conclusion that the employee had not uttered a single word in that context and that Exh.R.l-proves his absence from duty for more than 10 days. Further, observing that according to Exh.R.4 it is clear that the employee had brought an earlier petition in respect of the same cause of action and having withdrawn the same then, he was precluded from resorting to the grievance petition on the principle embodied in rule 1 of Order XXIII, C.P.C. And for that reason also the grievance petition was liable to be dismissed.
5. On an appeal by the employee, the Punjab Labour Appellate Tribunal accepted the same and remanded the case to the lower Court for redecision "after inviting evidence, including the original or certified copy of the previous grievance notice, if any". It was observed that if the learned lower Court was of the view that the employee had filed the grievance petition without obtaining permission to submit the same after withdrawing earlier grievance petition in the same cause .. It should have called upon any of the parties to bring on the, record certified copy of the grievance notice, if any, served by the appellant upon the respondent". As regards question of the absence of the employee, it was observed that it was not the case of the petitioner-Mills that he was dismissed or his services were terminated on account of the absence for more than 10 days and that the learned lower Court has not decided whether the order passed by respondent (petitioner-Mills) on the point that the appellant (the employee) had remained absent for more than 10 days amounted to his termination from service or not". This happened on 29-11-1988.
6. Hence this petition.
7. Mr. Naeem Bukhari, Advocate for the petitioner has referred to the memo. Of appeal before the Punjab Labour Appellate Tribunal to contend that the point taken therein to the effect that the then Presiding Officer of Labour Court No.4, Faisalabad had orally announced to allow fresh petition but unfortunately he did not write to that effect in his order and submitted that the impugned order has been passed without considering that the assertion made in the memo. Of appeal was totally incorrect and therefore the appeal of the employee was liable to be dismissed. When asked to point out any jurisdictional error in the order dated 29-11-1988 to justify interference by this Court therewith in the exercise of its writ jurisdiction, he was of the view that as the petitioner-Mills had pleaded absence of notice on behalf of the respondent-employee to them and as the copy of order dated 4-6-1986 passed in the earlier grievance petition of the employee was available on the record as Exh.R/4, the Punjab Labour Appellate Tribunal should have considered the same and dismissed the appeal of the employee. As it had failed to follow this course, the impugned order is rendered without jurisdiction.
8. Mr. Abdul Majeed Bhatti, Advocate for respondent employee has argued that the order of remand is well-based and the reasons advanced by the Punjab Labour Appellate Tribunal for directing the learned lower Court to redecide the case after inviting evidence, including the original or certified copy of the previous grievance notice, cannot form the subject-matter of a Constitutional petition.
9. I have considered the arguments advanced on behalf of the parties and also perused the available material. The objection regarding non---maintainability of this petition in that no jurisdictional error is discernible in the impugned order, is well-taken. It was correctly pointed out by the appellate forum that no effort whatsoever was made by the learned Presiding Officer Punjab Labour Court No.4, Faisalabad to call upon any of the parties to place on the record certified copy of the grievance notice, if any, served by the employee upon the petitioner-Mills. Even the observations by the appellate forum to the effect that it was not the case of the petitioner-Mills that the employee was dismissed or his services were terminated by them on account of the absence for more than 10 days and that the lower Court did not decide whether the order passed by the petitioner-Mills on the point that the employee had remained absent for more than 10 days amounted to his termination from service or not, have not been shown to be contrary to the record.
10. It is not the case of the petitioner-Mills that the Punjab Labour Appellate Tribunal was not possessed of jurisdiction to remand the case to the lower Court. In the absence of any objection to the jurisdiction of a Court or Tribunal to decide a lis, one way or the other, including rendering an order of remand, a decision by it cannot be interfered with in writ jurisdiction. In any case, an appeal being a continuation of the original cause it is well-settled that Appellate Court can pass any order which the trial Court could have passed including incidental orders and its powers are limited and confined in scope to the limits of the jurisdiction of the original forum. Refer Siddique Khan and 2 others v. Abdul Shakur Khan and another (PLD 1984 SC 289). The order dated 29-11-1988 remitting the case back to Punjab Labour Court No.4 Faisalabad for re-decision after inviting evidence including the original or certified copy of the previous grievance notice if any, cannot but be held to be an order passed by the Punjab Labour Appellate Tribunal Lahore within the four corners of its jurisdiction as an appellate forum under the Industrial Relations Ordinance, 1969.
11. For all that has been said above, this petition is dismissed with no order as to costs.