' Petitioner who was employed in Pakistan Railways as Gang Mate has filed this petition under section 22-A(8)(g) of I.R.O. Alleging that apart from his official duties, he has also been participating in lawful trade union activities for which reason respondent No,1 (Permanent Way Inspector, Pakistan Railways, Hafizabad) developed personal grudge against him. The petitioner got sanctioned two days leave from the said respondent w,e,f, 26-2-2000 and when he came back on duty "respondent No,1 verbally ordered the petitioner to stay away from the office premises" and did not allow him to mark his attendance and further informed him that his services were no more required. Grievance made by the petitioner is that he has been thrown out of service without any charge-sheet/show-cause notice or personal hearing which acts constitute unfair labour practice on the part of respondent No, 1 . It is accordingly prayed by the petitioner that the impugned action of the respondents may be declared mala fide, corum non judice, void ab initio and excessive and his verbal termination from service be set aside and the respondents be directed to allow him to perform his duty as usual and they be also restrained from interfering in his lawful trade union activities.
2. Respondents have filed a written statement denying the allegations made by the petitioner. Their contention is that it is not a case of unfair labour practice "as the petitioner is being proceeded under Efficiency and Disciplinary Rules and has already been issued charge-sheet for committing misconduct" and despite two reminders, he has not submitted reply to the charge-sheet.
3. During the course of hearing of this petition, learned Counsel for the respondents raised an objection on 23-6-2000 that the petitioner at the relevant time was serving as Gang Mate, Chak- Jhumra-Wazirabad-SanglaHills Section which was MOD Line declared vide notification dated 18- 10-1993 issued by the Ministry of Railways and, therefore, he was precluded from invoking the provisions of I.R.O. By virtue of section 1(3)(a) of the said Ordinance. It was noted, that this precise objection was not taken in the written statement filed by the respondents. Counsel for the respondents, therefore, took time to amend the written statement so as to take this specific objection. He was allowed to do so as the objection orally taken by him related to the maintainability of the petition. An amended written statement has accordingly been filed by the respondents on 5-7-2000 wherein the aforenoted objection has been specifically taken. Copy of the amended written statement was handed over to the learned Counsel for the petitioner who wanted to examine it and to file reply thereto. The case was, therefore, adjourned to 18-7-2000. On the last mentioned date, Counsel for the petitioner sent a request for adjournment which was allowed and the case was adjourned for today making it clear to the petitioner that no further adjournment shall be granted. Counsel for the petitioner has not turned up today nor has any reply/rejoinder to amended written statement been filed by the petitioner who has appeared in person.
4. Factual assertion made by the respondents in their amended written statement that the petitioner is employed as a Gang Mate on Chak-JhumraWazirabad Line (Wazirabad-Sangla-Hills) which is MOD Line thus, stands uncontroverted. I have seen the photo copy of the notification, dated 18th October, 1993 issued by the Government of Pakistan, Ministry of Railways (Railways Board) which the respondents have appended with their written statement. By this notification, 20 Railways Lines including Chak-JhumraWazirabad Railway Line, being essential to the Defence Services of Pakistan, during peace and war have been classified as MOD Lines and it has been further notified by the Federal Government that by virtue of provisions of clause (a), subsection (3) of section 1 of I.R.O., the said Ordinance is not applicable to any Railway employee employed in connection with MOD Lines or any installation connected therewith or incidental thereto. The Railway employees employed on the specified Railway Lines have accordingly been advised "not to take part in any trade union activities" and they are further warned that if they take part in any trade union activities, they will be liable to all legal and disciplinary actions as provided in the law and statutory Rules.
5. Petitioner who has appeared in person admits that at the relevant time, he was employed as a Gang Mate on Chak-Jhumra-Wazirabad Line which, as is manifest from the aforementioned notification, is one of the MOD Lines mentioned at serial No,19 of the Notification. That being so, as provided in the Notification itself, the Industrial Relations Ordinance, by virtue of its provisions contained in Clause (a) of subsection (3) of section 1 of I.R.O. Was not applicable to the petitioner as admittedly he was employed in connection. With MOD Line. Petitioner could not, therefore legitimately claim to have taken part in any lawful trade union activities and as such he cannot be heard to say that it was because of his lawful trade union activities that he was outsted from service nor could he invoke any provisions of I.R.O. For agitating his grievance.
' In the aforesaid view of the matter, I hold that this petition is not maintainable and the same is accordingly dismissed.
Petition dismissed.
2001 P C 115 [Karachi High Court] Before Saiyed Saeed Ashhad and Sarmad Jalal Osmany, JJ ABDUL QAYYUM and 12 others versus SINDH LABOUR APPELLATE TRIBUNAL and 2 others Constitutional Petition No,D-85 and Miscellaneous Application No,2195 of 2000, decided on 7th November, 2000.
Industrial Relations Ordinance (XXIII of 1969)--- ----S. 37(3)---Constitution of Pakistan (1973) Art. 199---Constitutional petition---Appeal--- Application filed by counsel for appellant for adjournment on ground that he was busy in High Court was dismissed by Labour Appellate Tribunal and proceeded with the appeal--Appellants having been denied the right of hearing through their counsel, Constitutional petition was allowed and case was remanded to Labour Appellate Tribunal for re-hearing after providing opportunity to counsel for appellants to put forward their case. [p. 116] A Ashraf Hussain Rizvi for Petitioner.
' The contention of Mr. Ashraf Hussain Rizvi is that the petitioners have been condemned unheard by the learned Appellate Tribunal inasmuch as Mr. Rafiullah, learned Counsel appearing on behalf of the petitioners was busy before this Court and had submitted an application for adjournment but the learned Chairman Sindh Labour Appellate Tribunal rejected the application and proceeded with the appeal. His submission is that the petitioners were not in a position to plead their case in a manner which could have been done by Leir counsel. As a result of which they have been made to suffer unjustly by depriving them of the right of personal hearing. The contention advanced by Mr. Ashraf Hussain Rizvi is borne out from the order of Sindh Labour Appellate Tribunal wherein in para.7 it has been stated that the arguments of the parties were heard and considered. That there is no denying the fact that the petitioners not being educated persons would not be in a position to argue their case before the Sindh Labour Appellate Tribunal in the same manner as could have been done by their Counsel and as a result thereof, we are satisfied that prejudice had been caused to the petitioners as their case could not be presented on its merits.
' Mr. Tariq Nisar, Manager of Respondent No,3, is present and requests for time for engaging an Advocate but in view of the above observations we do not consider it necessary as we are of the view that the petitioners had been denied the right of hearing through their Advocate and, therefore, we intend to remand the matter to the Appellate Tribunal for rehearing after providing opportunity to the learned Counsel for the petitioners to put forward their case.
' Accordingly, this Constitutional Petition is admitted to regular hearing and is allowed. The impugned order of the Sindh Labour Appellate Tribunal dated 7-12-1999 is set aside and the matter is remanded to the Sindh Labour Appellate Tribunal tor a fresh decision-after providing opportunity to both the parties to argue their case through counsel of their choice. Respondent No,3, (Mr. Tariq Nisar) is directed to appear before the Sindh Labour. Appellate Tribunal on 20-12-2000. Mr. Ashraf Hussain Rizvi should inform the petitioners of the dates of hearing. No notices for appearance will be required to be issued by the Tribunal.