TAHSEEN AHMED BHATTI (MEMBER).---All the above appeal shall be decided by this single order for the reasons that the appellants in these appeals are common and the facts/grounds and law involved are also common.
2. The above appeals are directed against the orders dated 3-9-1992, 8-9-1992, 10-10-1992, 10-10- 1992 and 11-10-1992 respectively, all passed by the learned Member, Lahore, whereby he allowed cases Nos. 7(161)/92-L, 4A(809)/92-L, 4A(826)/92-L, 4A(369)/92-L and 4A (950)/92-L.
3. In all the above appeals, application under section 5 of the Limitation Act have been filed to condone the delay on the ground that delay occurred in obtaining the permission from the department for filing of the appeals. It is also the ground that bar contained in the Limitation Act would not be applicable in the present matters because the impugned orders are illegal and void.
4. The brief facts in Appeal No. 12(128)/92-L are that respondent in that appeal had filed a case under section 22-A(8)(g) of the I.R.O., 1969 alleging unfair labour practice by the appellants stating that they had invited applications for the posts of Technicians having qualification of Matric in the year, 1990 and that there was also quota for the sons of the departmental employees. That the respondents appeared in the examination but their result are not being announced since, August, 1990 because present respondents Nos.1, 4, 6 and 10 arc members of PTC Union and their fathers are also members of the said union and present appellants are against the said union and its activities.
5. The facts in Appeal No. 12(139)/92 are that the respondents in that appeal filed the similar case alleging unfair labour practice by present appellants stating that their result of the examination has been withheld for the reason that they are active members of the PTC Union and that present appellants do not like their trade union activities.
6. The facts of the Appeal No. 12 (140)/92 are that the, respondent filed similar case alleging unfair labour practice by present appellants stating that the respondents in that appeal is son of the departmental employee whose result of examination has been withheld because the said respondents has refused to leave the union activities.
7. The facts of the Appeal No. 12(141)/92 are that the respondent in that appeal filed a similar case alleging unfair labour practice by the present appellants stating that he is son of departmental employee and that the result of examination has been withheld because his father was the member of the PTC union which fact is not liked by the present appellants.
8.The facts of the Appeal No. 12(142)/92 are that the respondents in that appeal filed similar case alleging unfair labour practice against the present appellants stating that their result of examination has been withheld because present appellants do not like their trade union activities in PTC Union.
9. The learned Member of the Single Bench, Lahore recorded the statement of one Mr. Azeem-ud- Din, the Assistant Director, Examination who was cross-examined by the learned Advocate for the present respondents in Case No 7(161)/92-L and who deposed that the result of examination in question is ready and that only 111 ad hoc employees whose services were more than one year have been sent for training under the orders of the higher Authority, where after, relying on the said evidence the case of the respondents was allowed. Appellants were also imposed costs of Rs.13,000 to be proportionately paid to the present respondents. In all other cases of the remaining appeals the said evidence of Mr. Azeem-ud-Din in that case has been relied upon and the cases have been allowed in favour of respective respondents in appeals.
Heard learned Advocates for both the sides and perused the record and proceedings.
It was contended on behalf of the appellants that the impugned orders are illegal and void and therefore provisions of Limitation Act does not arise against the said orders as has been held in PLD 1974 Lahore at page 434 viz. Syed Nazar Hussain v. Settlement Commissioner, Lyallpur and another.
It was also argued that all the cases have been decided by relying upon the evidence of Mr. Azeem-ud-Din, Assistant Director, Examination against whom opportunity of cross-examination was act afforded to the present appellants, that the said witness is himself father of sonic candidate/respondent and he", had no authority to offer, himself as a witness. The learned Advocate for the' appellants further argued that the respondents who claim to be sons of departmental employees have no locus standi to invoke the jurisdiction of this Commission and in case of all respondents, there is not even prima facie evidence of unfair labour practice which is fundamental requirement for invoking the jurisdiction of this Commission. Whereas the learned Advocate for the respondents opposed the application for condonation of delay as also the appeals contending that the impugned orders are just, proper and legal.
12. The learned counsel for the appellants argued that the delay in filing the appeals had occurred because permission of the competent authority was required to file the same, but he did not cite any case-law in support of this contention. In any case it may be mentioned that these appeals are time-barred by period of 2 days, 40 days, 8 days, 7 days and 2 days respectively. He further argued that if the impugned orders are illegal and void ab initio then Limitation Act would not run against the appellants and in this connection he cited PLD 1974 Lahore page 434; the facts of the case in the said ruling are that C.H. Form filed by the petitioner was rejected by the Settlement Authorities without notice and without inquiry, against the requirements of the Settlement Scheme No. 1, which having been approved by the Government has been held to have acquired statutory status. It has therefore, been held that the contravention of the said Scheme will render the impugned order as having been passed without lawful authority. Then dealing with the said order it has been noted that the Deputy Settlement Commissioner having not issued any notice or afforded any opportunity of being heard to the petitioner and not conveyed the ex parte order to him, had also dearly violated the provision of the said Scheme, which was also violation of the principle of "audi alteram partem" and therefore the order has been held to be void and liable to be ignored under these circumstances. It has also been head that the question of limitation does not arise against the void order. However, the Commission will have to examine the legality of the impugned orders in these appeals before accepting the above contention and for that it is necessary to examine and discuss the merits of appeals.
13. So far as the merits of these matters are concerned, it is seen that Mr. Azeem-ud-Din who appears to have offered himself as witness had no authority to do so, and he was authorised only to appear on behalf of appellants/department. Besides, if the said witness has been examined by the Commission/Court then the appellants had a right to cross-examine him for which opportunity was not afforded to them. The contention of the appellants that the said witness was himself the father of two candidates/respondents has not even been rebutted.
14. It appears from the facts stated above that there are two types of candidates; firstly those who claim to be sons of departmental employees and secondly those who claim to be themselves in service. According to the petition filed before the learned Single Member, all the petitioners who are respondents in Appeal No. 12(128)/92 have claimed to be the son of employees in the department, and according to the petition filed before the learned Single Member, the respondents in Appeal No. 12(139)/92 are said to be the sons of the department employees while respondent No.2 claims to be himself the employee also. In Appeals Nos. 12(140)/92 and 12(141)/92 both the respondents have claimed to be the sons of employees of the department as per the petitions filed before the learned Single Member, and respondent No. 1 namely Ijaz Muhammad in Appeal No. 12(142)/92 has claimed to be the son of employee of the department in the petition filed before the learned Single Member: So far as first category is concerned, they have no locus standi/right to invoke the jurisdiction of this Commission because they do not fall within the definition of the `worker' given in I.R.O., 1969, while the respondents who are claiming to be the employees have failed to either give the details of the alleged unfair labour practice or produce any prima facie evidence in this regard; particularly because, this allegation has been denied by the present appellants. In fact the position in support of prima facie details and prima facie proof of unfair labour practice by the respondents of the first category is also same, therefore, case under section 22A(8)(g) of the I.R.O., 1969 is maintainable before this Commission.
15. We find that the learned Single Member had no jurisdiction to proceed in the matter. As mentioned above, most of the respondents to have the status of workers and could not invoke the jurisdiction of Commission. The Supreme Court held in Iftikhar Ahmad and others v. President National Bank of Pakistan PLD 1988 SC 53 that the National Industrial Relations Commission had no general jurisdiction and can adjudicate only upon cases which have an element of the labour practice. The Supreme Court held in Rehmat Bibi v. Punnu Khan 1986 SCMR page 963 that the provisions of Limitation Act would not be attracted to a case where an order was void. Again in Khawaja Muhammad and 24 others v. Marduman Kahoi and 29 others (1987 SCM R 1543) the Supreme Court held the order of the Baluchistan High Court which had been granted on the basis of Punnu Khan's case and it was held that the order was a nullity, no limitation could run against it.
It may however, be pointed out that a distinction has to be made between void and voidable orders. We have held above that element of unfair labour practice has been proved in the case and therefore, the impugned order has jurisdictional defect which cannot be remedied. The plea of bar of limitation is therefore repelled.
In view of the above discussions, it is held that the impugned orders are illegal and void ab initio.
Accordingly the applications under section 5 of the Limitation Act in the above appeals are allowed. At this stage it may also be mentioned that no counter-affidavits against the affidavits in support of condonation applications have been filed by respondents for that reason the contention of the appellants that the delay had occurred on account of time spent in obtaining the permission of the department to file these appeals cannot be ignored. After all, such a permission is necessary, as some money of the department was to be spent for engaging advocate and etc. For the same reasons all the appeals are allowed and consequently the impugned orders are set aside.