JAVED IQBAL, J.---This civil petition for leave to appeal is directed against the judgment, dated 11- 3-1999 passed by Division Bench of the High Court of Sindh, Karachi, whereby the judgment, dated 27-2-1997 passed by learned Single Judge was modified and the entitlement of the petitioner was confined to receive the allowances which had been allowed to Mr. Zamir Haider and Miss Naila Ellahi.
2. Briefly stated the facts of the case are that petitioner was serving as Flight Steward with PIA. On 22-5-1992 he was apprehended in London in connection with smuggling of heroin but subsequently acquitted on 4-9-1992 by Isle Worth Crown Court but his services were terminated by means of order, dated 25-9-1992. Being aggrieved the termination of services was challenged before Sindh Labour Court (IV at Karachi) and resultantly he was reinstated in service with back benefits vide order, dated 26-2-1994. The respondent assailed the order of reinstatement in appeal before the Sindh Labour Appellate Tribunal which was dismissed. It is to be noted that meanwhile the petitioner filed an application under section 51 of the Industrial Relations Ordinance, 1969 (hereinafter referred to as I.R.O., 1969) with the following prayer:- "8. That the applicant has calculated the allowances payable to him as per above Annexures and the same have been described in the statements annexed hereunder and according to the same the applicant is entitled to:-- Foreign Slip Allowance: US.$35,243.20 Domestic Slip Allowance: Rs, 42,000.00 Flying Allowance: Rs,155,045.00 Less already received: Rs,445,942.00 The above calculation is up to 30-4-1997. This Hon'ble Court is competent to compute/determine the amount as above and recover the same from the respondents as arrears of land revenue or as public demand and get the same paid to the applicant. Statement of claim and computation is filed as 'R' to R-7.
9. That the cause of action has arisen to the applicant within the jurisdiction of this Hon'ble Court and the same is within the competence of this Court. It is, therefore, respectfully prayed that this Hon'ble Court may be pleased to recover the amount so computed/determined as payable to the applicant from the respondent employer as arrears of land revenue or as public demand and get the same paid to the applicant alongwith any further and additional amounts till realisation as having accrued to the applicant as well as the profits thereon and cost of the proceeding case."
3. The application was accepted and the petitioner was declared entitled to get foreign slip allowance, domestic allowance and flying allowance by means of order dated 19-1-1995. Being aggrieved the respondent preferred a Constitutional petition which was dismissed by learned Single Judge vide judgment, dated 27-2-1997. The respondent filed an Intra-Court Appeal which was heard by Division Bench of the High Court of Sindh, Karachi, and the judgment, dated 27-2- 1997 was modified as per details mentioned hereinabove.
4. We have heard Mr. Suleman Habibullah, Advocate Supreme Court on behalf of petitioner who mainly confined his contention to section 3 of the Law Reforms Ordinance, 1972, and according to him no Intra-Court Appeal was maintainable which aspect of the matter escaped attention of the learned Division Bench and resulted in serious miscarriage of justice. It is next contended that the decision of Sindh Labour Court (IV) at Karachi passed in Application bearing No,97 of 1994 preferred on behalf of petitioner under section 51 of the I.R.O., 1969 was in accordance with law and could not be reversed without any lawful ground which was kept intact by the learned Single Bench. It is pointed out that the petitioner filed grievance petition under section 25-A of I.R.O., 1969 which was accepted and he was reinstated in service with all back benefits and the foreign slip allowance, domestic slip allowance and flying allowance could not have been excluded from the back benefits. It is urged with vehemence that the said allowances were being paid to certain employees who were performing ground duties and, accordingly, the petitioner was also entitled for the said allowances and could not have been deprived on the pretext that he was not in active service due to his termination.
5. Mr. Qamar Abbas, Advocate Supreme Court appeared for respondent and vehemently controverted the view-point as canvassed on behalf of petitioner by arguing that no illegality or irregularity whatsoever has been committed by the learned Division Bench which was fully competent to adjudicate upon the matter as the learned counsel for the petitioner had very frankly conceded to the maintainability of the Intra-Court Appeal and at this belated stage no objection could have been raised. It is further contended that the foreign slip allowance, domestic slip allowance and flying allowance were not admissible to the petitioner and it could not have been granted without recording evidence and, accordingly, the order passed by learned Labour Court on 19-1-1995 being laconic has rightly been set aside. It is argued that the petitioner was not in active service and thus, the question of grant of foreign slip allowance, domestic slip allowance and flying allowance does not arise.
6. We have carefully examined the respective contentions as agitated on behalf of petitioner and for respondent in the light of relevant provisions of law and record of the case. We have also carefully perused the judgment passed by Sindh Labour Court (IV) at Karachi, dated 26-2-1994, judgment, dated 27-2-1997 of learned Single Bench of High Court of Sindh, Karachi, and judgment, dated 11-3-1999 of Division Bench of the High Court of Sindh, Karachi. Let we mention here at the outset that no illegality or infirmity whatsoever has been committed by the learned Division Bench and the conclusion derived is strictly in accordance with law and settled norms of justice and sufficient justifiable reasons are lacking warranting any interference. We have not been persuaded to agree with Mr. Qamar Abbas, Advocate Supreme Court that it would be an academic exercise rather an exercise in futility to dilate upon the hypertechnical objection as to whether Intra-Court Appeal was maintainable or not in view of the peculiar circumstances of the case and unanimous submission of the parties that the appeal was maintainable for the reason that appeal being a substantive right cannot be conferred with the mutual consent of the parties having no legal sanctity as it is a creature of statute. We have dilated upon the main objection regarding maintainability of Intra-Court Appeal in view of the provisions as laid down in section 3 of the Law Reforms Ordinance, 1972, pertaining to Appeal to High Courts in certain cases, which is reproduced hereinbelow for ready reference:-- "1. An appeal shall lie to a Bench of two or more Judges of a High Court from a decree passed or final order made by a Single Judge of that Court in the exercise of its original civil jurisdiction.
2. An appeal shall also lie to a Bench of two or more Judges of a High Court from an order made by a Single Judge of that Court under clause (1) of Article 199 of the Constitution of the Islamic Republic of Pakistan not being an Order made under sub-paragraph (i) of paragraph (b) of that clause: Provided that the appeal referred to in this subsection shall not be available or competent if the application brought before the High Court under Article 199 arises out of any proceedings in which the law applicable provided for at least one appeal or one revision or one review to any Court, Tribunal or authority against the original order.
3. No appeal shall lie under subsection (1) or subsection (2) from an interlocutory order or an order which does not dispose of the entire case before the Court.
4. Nothing contained in this Ordinance, shall be construed as affecting--
(a) any appeal under the provisions of the Letters Patent applicable to a High Court or under section 102 of the Code of Civil Procedure, 1908 (V of 1908) which was pending immediately before the commencement of this Ordinance; or
(b) any appeal or petition for leave to appeal from a decree, judgment or order of a Single Judge of a High Court made to the Supreme Court before the commencement of the Law Reforms (Amendment) Ordinance, 1972."
7. "The Law Reforms Ordinance (XII of 1972) came into force on the 14th of April, 1972. Under section 3
(a) of the Ordinance it was laid down that as from the commencement of the Ordinance no appeal under the provisions of any Letters Patent, as applicable to a High Court, shall be entertained by such High Court. This had completely done away with the Intra-Court appeal from the judgment of a Single Judge of the High Court to a Bench consisting of two or more Judges of the same Court under the Letters Patent of the High Court. But then the law in this respect was amended and this section was substituted under the Law Reforms (Amendment) Ordinance, XXXIV of 1972, which came into force on the 10th of August, 1972. Under the newly substituted section 3 (1) of the Ordinance it was laid down that an appeal shall lie to a Bench of two or more Judges of a High Court from a decree passed or final order made by a Single Judge of that Court in the exercise of its original civil jurisdiction. But at the same time section 3 (2) provided that no appeal shall lie to a Bench of two or more Judges of a High Court from an order made by a Single Judge of that High Court under clause (2) of Article 201 of the Constitution of the Islamic Republic of Pakistan in a matter arising under any law relating to the rehabilitation and settlement of displaced persons.
Once again this section was amended and substituted by section 3 of the Law Reforms (Amendment) Act (VIII of 1972). Although this section came into force on 12th of September, 1972, but it had a retrospective effect. Further amendments were introduced into this section by the Law Reforms (Amendment) Act (VI of 1975) which came into force on the 13th of January, 1975. This section is in two parts. In this connection subsection (1) of section 3 of the Ordinance (XII of 1972) lays down that an appeal shall lie to a Bench of two or more Judges of a High Court from a decree passed or final order made by a Single Judge of that Court in the exercise of its Original Civil Jurisdiction.
The mere fact of a matter coming directly before the High Court under a law would not, however, suffice to bring it within the ordinary original civil jurisdiction. The ordinary original civil jurisdiction was confined to the trial of suits arising within the local limits of that jurisdiction. The extraordinary original civil jurisdiction was given for the removal and trial of suits pending or falling within the jurisdiction of Courts subordinate to the High Court. Every other jurisdiction of civil nature conferred by the Letters Patent would, be best described as special jurisdiction or as statutory jurisdiction, since some of those jurisdictions were to be exercised under existing statutes. An order passed by a Single Judge in exercise of the jurisdiction vested in the High Court while dealing with Constitutional petitions was not open to appeal before a Bench of two or more Judges. Under the operative part of subsection (2) of section 3 of the Ordinance in general an appeal shall lie to a Bench of two or more Judges of the High Court against an order passed by a Single Judge under clause (1) of Article 199 of the Constitution, not being an order made under subparagraph (i) of paragraph (b) of that clause. But this is subject to and controlled by the proviso. The proviso lays down that no such appeal to a Bench of two or more Judges of the High Court shall be available or competent if the application brought before the High Court under Article 199 of the Constitution of Islamic Republic of Pakistan, arises out of any proceedings in which the law applicable provided for at least one appeal, or one revision or one review to any Court, Tribunal or Authority against the original order. At this stage a short analysis of this proviso shall be helpful. It takes us back to the "proceedings" out of which the petition under Article 199 (1) of the Constitution has arisen, so as to fmd out the law applicable to those proceedings, and then to see whether that law provided for at least one appeal, or one revision, or one review to any Court, Tribunal or Authority against the ' original order'. In case this is so, then there shall be no appeal to a Bench of two or more Judges of the High Court from an order made by a Single Judge of the same Court under Article 199 (1) of the Constitution. These are the steps that must be taken before invoking the bar contained in the proviso against an Intra-Court Appeal to a larger Bench from the order of a Single Judge of the High Court. (PLD 1975 Lah. 1339). Where it was contended that order passed under Article 199 of the Constitution (1973) was an order passed by the Court in the exercise of "original civil jurisdiction" and was appealable under subsection (1) of section 3 of the Law Reforms (Amendment) Act. Held, this contention has no force. There is a chain of authorities for the contrary view that in disposing of a Constitutional petition under Article 199 of the Constitution, the High Court does not pass the order in exercise of its civil original jurisdiction. A judgment deciding a Constitutional petition under Article 98 of the Constitution of Pakistan, 1962 (corresponding to Article 199 of the 1973 Constitution), is not a judgment passed by the High Court in the exercise of its civil original jurisdiction within the meaning of subsection (1) of section 3 of the Law Reforms (Amendment) Act, 1972. (PLD 1975 Lah. 1372 + PLD 1974 Karachi. 345). The writ jurisdiction is a Constitutional jurisdiction, and, therefore, it follows that a judgment deciding a Constitutional petition would not be a judgment in the exercise of the original civil jurisdiction within the meaning of subsection (1) of section 3 of the said Act. (PLD 1974 Karachi 345). Subsection (4) of section 3 of the said Act only saves an "appeal under the provisions of the Letters Patent applicable to a High Court...Which was pending immediately before the commencement of the Ordinance". A right of appeal is different from an appeal which is pending, and an appeal can be said to be pending only after it has been filed, therefore, it is clear that the Legislature intended to save only those appeals under clause (10) of the Letters Patent which had actually been filed in the High Courts before 11th April, 1972, and this necessarily means that except for the appeals expressly saved all other rights of appeal had been abolished. (PLD 1974 Karachi 345). The proviso to section 3 (2) of the Law Reforms Ordinance (XII of 1972) as amended bars the Intra-Court appeal to a Bench of two or more Judges of the High Court in case the law applicable to the proceedings provided for at least one appeal, revision or review against the original order. In other words the bar under the proviso is applicable, if the law applicable to the proceedings provided for a forum for appeal, revision or review against the original order. This bar under the proviso is attracted in case such a forum is provided under the law applicable, even though the aggrieved party did not actually avail of the remedy provided by means of the appeal, revision or review. This is the only rational and harmonious interpretation that can be put on this proviso in consonance with the intention of the Legislature. (PLD 1975 Lah.
1339). The proviso in question was not intended to exclude a pending Letters Patent Appeals from the operation of the entire Ordinance but only of the section in which it is to be found. As a general rule a proviso to a section cuts down the meaning of that section as a proviso to a group of sections would cut down the meanings of that group provisos are not generally intended to do more than this (PLD 1975 Kar. 96). This clear purpose of the proviso was to make it plain that, despite section 3, which otherwise abolished Letters Patent Appeals and Second Appeals of a certain category, such matters as were then pending would not be affected. (PLD 1975 Kar. 96). The expression "Original Order" in the context of this proviso has been used to distinguish it from the appellate or revisional order, or an order passed in the exercise of review jurisdiction. In order to attract the application of the proviso one has to see if the law applicable to the proceedings (giving rise to the Constitutional petition) provided for at least one appeal, one revision or one review against the original order. It may be that although an appeal, revision or review against the original order was provided by the law but the right was not actually availed of and no appeal, revision or review was, in fact, filed against it. It is immaterial even if no appeal, revision or review against the original order was actually filed as long as the law itself provided for the one against it".
(PLD 1975 Lah. 1339). (See also 'Law Reforms Ordinance, 1972', pages 9 to 14 + PLD 1993 Kar. 713 + PLD 1984 SC 344).
8. The petition in hand has been examined in the light of what has been mentioned hereinabove and we are of the considered view that Intra-Court Appeal was maintainable for the reasons that order dated 19-1-1995 passed by the Sindh Labour Court (IV at Karachi) was passed on an application filed by the petitioner under section 51 of I.R.O., 1969 and no appeal, review or revision is available for assailing it. It is worth-mentioning that petitioner was reinstated with back benefits vide order dated 26-2-1994 passed by the Sindh Labour Court (IV at Karachi) on application submitted under section 25-A of I.R.O.
1969. It hardly needs any explanation that provisions contained in section 25-A and section 51 of I.R.O. 1969 are not synonymous or interchangeable but have their own domain, object-scope and characteristics. At this juncture it may be noted that under section 38 (3-a) of I.R.O. 1969 the powers of revision have been conferred upon the Tribunal and invocation of provision as contained in section 3 (a) cannot be made by an aggrieved person subject to certain exceptions.
9. It is an admitted feature of the case that flying allowance at a fixed rate of Rs,2,280 p.m. Was being paid to Mr. Zamir Haider and Ms. Naila Elahi at the fixed rate of Rs,2,280 p.m. For the reasons that they were performing C.B.A. Duties. The question of reimbursement of an amount which was never incurred does not arise. The petitioner had neither visited abroad nor stayed in any hotel and no voucher in this regard could be produced when demanded by the respondent. It is not understandable how the foreign slip allowance and domestic slip allowance was determined by the learned Labour Court. The foreign slip allowance is certainly subject to stay in some foreign country in connection with official duty and by no stretch of imagination it can be allowed without performing the same and an employee who is performing ground duties cannot claim it. The learned Labour Court determined foreign slip allowance and domestic slip allowance under section 51 of I.R.O., 1969 which could not have been done in view of the controversy pertaining to adjudication of claim in between "employer" and "employee" as it could not have been computed in terms of money. In this regard 1993 PLC 87 can be referred. Even otherwise it could not have been determined without recording evidence and moreso the petitioner failed to substantiate his entitlement regarding foreign slip allowance and domestic slip allowance by adducing cogent, concrete and solid evidence. The provisions as contained in section 51 of I.R.O., 1969 could have been invoked subject to the condition that there was no dispute regarding entitlement and the amount' claimed should be determined one. The amount 1 pertaining to foreign slip allowance and domestic slip allowance was never determined by any award or settlement and in such view of the matter the learned Labour Court (IV at Karachi) was not competent to award the abovementioned allowances under section 51 of I.R.O., 1969 scope whereof has been discussed in case titled Tobacco International Ltd. v. Chairman, S.L.A.T. (1993 PLC 87), as follows:-- "A plain reading of section 51 indicates that it empowers the Labour Court to direct that any money due from an employer under a settlement or under an award or decision of the Arbitrator, Labour Court or Tribunal may be recovered as arrears of land revenue or as public demand. Subsection
(2) further indicates that where any workman is entitled to receive from the employer any benefit under a settlement or under an award or decision of the Arbitrator, Labour Court or Tribunal, which is capable of being computed in terms of money, such benefit shall be computed and the amount may be determined and recovered as provided for in subsection (1) of section 51. The provisions of section 51 came up for examination before a Division Bench of this Court in C.P. No,B-552 of 1981 Karachi Club v. Muhammad Farooq decided on 6-8-1985. In this case the respondent was ordered to be reinstated in service but the employer was permitted to hold a fresh enquiry against him. The employers seemed to have taken steps for holding such an enquiry but the respondent had succeeded in causing the enquiry to be withheld. In the meantime the respondent moved an application before the Labour Court under section 51 of Industrial Relations Ordinance seeking an order of payment of his back benefits to him. However, his request was declined by the Labour Court which held that the respondent was not entitled to make an application under section 51 of the Industrial Relations Ordinance as the result of the fresh enquiry had not been made known.
When the matter ultimately came up before this Court, it was held as follows:-- It appears from the text of section 51 reproduced above that it envisages recovery of money due from an employer under the settlement, or under an award or decision of the Arbitrator, Labour Court or Tribunal as arrears of land revenue or as public demand, but this section does not provide for determination of any claim against an employer.'
As is clear from the language used by the Legislature in section 51 of the Industrial Relations Ordinance, section 51 entitles the workman to recover money due to him and the section clearly envisages that the amount claimed by the workman should have been determined either under a settlement or under an award or a decision of the Arbitrator, Labour Court or Tribunal. In that case the amount payable can be recovered from the employer as arrears of land revenue or as a public demand. Subsection (2) of section 51 only enables the Labour Court to determine the amount of money due if the same is capable of being computed in terms of money, but the said subsection nowhere empowers the Labour Court to adjudicate upon any claim between an employer and a workman or determine questions raising issues of fundamental nature."
10. The petition has been examined in the light of provisions as contained in section 51 of I.R.O., 1969 as discussed hereinabove which in our considered opinion was not maintainable and the objection regarding its maintainability which was raised by the respondent has not been considered by the learned Labour Court, Labour Appellate Tribunal and learned Single Judge for the reasons best known to them. Suffice it to say that such questions could not be determined by the Labour Court in view of the limited powers as conferred upon it under section 51 of the I.R.O., 1969. Be that as it may, we are not inclined to grant leave to appeal and, accordingly, this petition being devoid of merit is dismissed.