' M.M. PIRZADA (MEMBER).---This appeal under section 22-D of I.R.O., 1969 has been directed against the impugned orders dated 25-6-1995 passed by the learned ex-Member Agha Salim Khurshid, in cases bearing Nos.4-A(6)/93 and 7(30)/94 filed by the respondent praying therein that the appellant/respondent before us be directed not to commit any act of unfair labour practice by way of discrimination against the petitioner in regard to his employment terms and conditions in particular and the appellant/respondent may further be directed not to withhold the benefits such as pension gratuity etc. Of the petitioner. The facts narrated therein state that the respondent was employed as a Copy Holder with the appellant in 1956 and by dint of his hard work he had come to the position of Senior Supplement Editor In charge, Newspapers, in the year 1975. He has further stated in the petition that the respondent/petitioner's trade union activities had annoyed the appellants and the appellants had started victimising him. The learned trial Court was pleased to pass an order whereby status quo order was ordered to be maintained and the appellants were directed to file written statement. The appellant/respondent after service of a notice filed their written statement on 18-1-1994. The appellant took up the plea that the petition was filed with the object of causing harassm ent and vaxation to the appellant/respondent and therefore, the same be dismissed. The factual position as stated in the said petition was not accepted and the impugned order was passed, and therefore, this appeal.
2. The appellants have also filed application for condonation of delay under section 65-B of 1.R.O., 1969 read with section 5 of the Limitation Act, 1908 where stand was taken that the impugned orders dated 7-6-1995 and 25-6-1995 were not announced or passed in the presence of the counsel of the appellant or. Abdul Wahid Litigation Clerk of the appellant company and they had come to know about it a few days before filing of the appeal only through the respondents and thereafter they obtained copies of the impugned orders and then filed the appeal before this Court. This position was controverted by the respondent by filing a counter-affidavit.
3. We have seen the lower Court record. The Court diary shows that on 16-5-1995 the appellants and respondent's counsel were present and the matter was by consent adjourned to 7-6-1995. On 7-6-1995 the appellant/respondent along with his counsel were absent. The petitioner/respondent was present only. However, the learned trial Court has accepted the appeal on the said date through short order with further orders that the detailed orders would be announced later on.
4. From the -record we do not find any further proceedings which were taken by the trial Court in the said case. It, however, appears that the impugned order was passed on 25-6-1995 without informing to the other side. The appellants have argued that there is a 40 days' delay in filing of this appeal and the same should be condoned solely on the ground, as according to him, the said impugned order was without lawful authority and jurisdiction and is ab initio wrong, and therefore, not the legal order in the eye of law. For this purpose he has relied upon a case reported in CLR 1978 p.
99. He contends that the perusal of the said judgments show that if the order ab initio is wrong being a nullity in the eye of law the question of limitation for filing of appeal against such order would not arise and the appeal can be filed even beyond the period of limitation. We feel that the learned counsel have failed to establish and convince us as to how the impugned order is ab initio wrong or was void or nullity in the eye of law. The question of jurisdiction and meaning thereof was considered by their Lordships in a case reported in PLD 1974 SC page 139 where the meaning of jurisdiction has been well-defined: "Jurisdiction--Expression "without lawful authority and of no legal effect"--An expression of art and refers to jurisdictional defects as distinguished from a mere erroneous decision whether on question of fact or even of law-- High Court, in exercise of its writ jurisdiction, concerned only with question whether Court or Tribunal below had acted within its jurisdiction--Tribunal having jurisdiction to decide a matter is competent to decide it rightly or wrongly and mere fact that decision is incorrect does not render the decision as ' without lawful authority'."
5. On merits it is further contended by the learned counsel for the appellants that the respondent had reached the age of superannuation and therefore he had been retired, and therefore, the N.I.R.C. Had no jurisdiction to entertain the said case as the respondent had ceased to be worker, and therefore, the petition filed by him under section 22-A(8)(g) was not maintainable. It is also argued that the impugned order is wrong as the appellant's case has not been considered at all and not a single plea raised by him was heard and reflected in the order. It is argued that no opportunity was afforded to the appellants before passing of the order. He has further argued that opportunity of necessary evidence should have been given to substantiate and to prove their contentions by leading evidence.
6. Mr. Abdul Hafeez Amjad, Advocate for the respondent strongly opposes the application for condonation of delay as no cogent reason has been shown nor the delay of 40 days has been explained for maintaining the application under section 65-B of IRO, 1969 read with section 5 of Limitation Act, 1908. He states that a valuable right has accrued to the respondent by the lapse of sufficient time which cannot be taken lightly and he has further contended that no rejoinder has been filed to the counter-affidavit filed by respondent, therefore, his assertions in the counter- affidavit should be taken conclusive. He has now said that till today the respondent has been working in the appellant company and has not been paid his dues and says that order of the learned trial Court is very correct and does not merit to be set aside or interfered with. We have perused the record and heard the learned counsel at length. We are not convinced and satisfied by the impugned order passed by the learned trial Court as the same is not a speaking order and the various stands taken by the learned counsel have not been considered judiciously. The impugned order has been passed in a very slipshod manner and that not even a passing reference has been made to the averments made by the appellants in the present case. The purpose of establishing of Labour Courts and. The N.I.R.C. Basically was to impart substantial justice and maintain industrial peace and not go into the mere technicalities of the matter to keep equilibrium in the industrial sector.
7. In view of the fact that the impugned order has been passed by the trial Court hurriedly and without any application of judicial mind and even the factual position of both the sides has not been discussed. We consider it just and proper that the said order should not be allowed to stand in the way of justice. Under the circumstances we would like to condone the delay in filing of the appeal and impose a cost of Rs,10,000 by consent of the parties to be paid to the respondent within a period of three weeks and receipt thereof obtained from him.
8. On the point of jurisdictional issues we do not agree with the learned counsel for the appellant because no such point specifically was taken by the appellant before the trial Court that the N.I.R.C.
Had no jurisdiction. We are of the view that N.I.R.C. Did have the jurisdiction as reported in PLD 1974 SC 139. The next point taken by the appellant is that the respondent has passed the age of 60 years. This issue is to be decided by the trial Court after recording of evidence of both sides.
9. The respondent has claimed that his dues are to the tune of Rs,23 lacs, or so while the appellant has stated that it is not correct and the claim is highly inflated.
10. The learned counsel for the appellant has very honestly stated that he has consulted the department concerned and they have stated that the due amount up to 4-1-1994 would be paid and that they are prepared to pay for the same within three weeks.
11. The said amount shall be paid to the respondent subject to all legal objections and the questions of further emoluments if any would be determined by the competent Court. This appeal is allowed and the impugned order is set aside and the case is remanded to the trial Court for fresh trial and hears the parties afresh and record their evidence and consider all the issues raised by the parties.
12. The case is remanded to the trial Court. The parties are directed to appear before the learned Member who has succeeded the learned Member who passed the impugned order.