JUDGMENT SYED JAMSHED AL1, J.- I had enumerated the order after hearing the learned counsel for the petitioner because the learned counsel for respondent No. 2 was not, then, in attendance.
However, before the order was typed and signed the learned counsel for respondent No. 2 appeared. He was also heard. Order dated 5.6.1997 of the learned Labour Court has been assailed in this Constitutional petition, which arises out of the following circumstances.
2. Respondent No. 2 was appointed as Additional Estate Officer on 10.10.1995 in the Board of Intermediate and Secondary Education, Faisalabad on ad hoc basis. His services were terminated vide order dated 29.4.1997. He approached the learned Labour Court with a grievance petition and also applied for the grant of a temporary injunction in terms of suspension of the order dated 29.4.1997. This application was allowed by the learned Punjab Labour Court vide order dated 5.6.1997 impugned in this writ petition.
3. The learned counsel for the petitioner contended that respondent No. 2 was appointed as Additional Estate Officer (BS-16) vide order dated 10.10.1995 on the direction of the Eduction Minister on ad hoc basis for a period of six months without following the procedure for selection. Vide order dated 14.4.1996 his appointment was extended, again on ad hoc basis, from 11.4.1996 to 10.10.1996.
Again vide order dated 20.10.1996, it was extended upto 10.4.1997 and on 29.4.1997 the services of respondent No. 2 were terminated. He referred to the policy decision dated 20.11.1996 of the Education Department wherein it was," inter alia, directed that no ad nonappointment should be made. He next contended that reinstatement in service was the main relief claimed by respondent No. 2 and it could not have been allowed by way of an interim order. It was next contended that respondent No. 2 was appointed as Additional Estate Officer in BS. 16 and was, therefore, not a workman and thus the learned Labour Court had no jurisdiction. He maintains that the impugned order is manifestly in excess of jurisdiction of the learned Labour Court.
4. On the other hand, the learned counsel for respondent No. 2 contends that the impugned .Order was passed by the learned Labour Court with due application of mind after finding that a prima facie case was made out in favour of the said respondent. According to him, the rule that such an interim order could not be passed is not an inflexible make and in an appropriate case such a relief could be granted by way of an interim order. Reliance was placed on Regional Commissioner of Income Tax, etc. v. Shafi Muhammad Baloch (1997 CL] I), Government of the Punjab through Secretary, Finance v. Punjab Public Service Commissions Employees Association, Lahore and 2 others (1992 SGMR 1847), Muhammad Tariq and others v. P.I.A, and another (1998 PLC (C.S.) 334) and United Bank Limited v. Shamim Ahmed Khan and another (1999 SC] 159). It was next contended that an interim order was not challengeable in Constitutional jurisdiction. Reliance was placed on Pakistan Limited, Lahore v. (1) Punjab Labour Court' No. 3, Ferozewala, Sheikhupura (2) Muhammad Waleed (1998 TD (Labour) 32)
5. The submissions made by the teamed counsel for the parties have been duly considered. The petitioner had disputed the jurisdiction of the learned Labour Court on the ground that respondent No. 2 was not a workman. The learned Labour Court itself observed that the question whether respondent No. 2 was or was not a workman could not be decided without recording evidence of the parties. Notwithstanding the fact that question of jurisdiction of the - learned Labour Court was yet to be determined it proceeded to grant the application of respondent No. 2 and suspended the order of termination. This could not have been done without first finding that the Labour Court had jurisdiction in the matter. Therefore, on this score alone the impugned order is not sustainable.
6. Reinstatement in service was the main relief claimed by respondent No. 2 before the learned Labour Court which could not have been granted by way of an interim order. It amounted to thrusting respondent No. 2 on the petitioner i.e. The employer without determining the questions of law and fact arising in the case. Reference may be made to Islamic Republic of Pakistan v.
Muhammad Zaman Khan (1997 SCMR 1608). In the said case services of the members of Income Tax Appellate Tribunal were terminated. The order terminating their services were suspended by this Court. The Honorables Supreme Court, while interfering, observed that "generally a Court cannot grant an interlocutory relief of the nature which will amount to drawing the main case without trial/hearing of the same". The judgment in Qazf Inam-ul-Haq v. Heavy Foundry and Forge Engineering (Pvt.) Ltd. And another (1989 SCMR 1855) was relied upon. The judgment in the case of Islamic Republic of Pakistan, supra was noted with approval in United Bank Lid. v. Ihsan Akhtar and others (1998 SCMR 68). Therefore, the impugned order of the learned Labour Court is not sustainable on this Court score as well.
7. The judgments cited by the learned counsel for respondent No. 2 have been examined. In the case of Regional Commissioner Income Tax, supra, the plaintiff had agitated a dispute regarding the correct date of his birth in the civil suit and an interim order of status quo was passed which was affirmed by the learned first Appellate Court. The learned Sindh High Court did not interfere in exercise of revisional jurisdiction by noticing the direction of the Finance Division of Government of Pakistan to the Central Board of Revenue in which the latter was directed to accept the plea of the plaintiff without any further litigation. In the case of Government of the Punjab, supra, the employees of the Punjab Public Service Commission were granted an allowance by way of an interim order which was not interfered with by the Honorables Supreme Court with the observation that the employees would Suffer irreparable loss and balance of convenience was also in their favour. The case of Muhammad Tariq, supra, is a leave granting order whereby operation of the impugned order of .Termination of the services of the petitioner was suspended. The case of United Bank Ltd., supra was again a leave granting order in which the Honorables Supreme Court had passed an interim order. It may also be observed that Honorables Supreme Court has very were powers to pass such orders as the dedicates of justice demand and the same powers could not be said to available to the subordinate Courts and Tribunals of special jurisdiction. The rule laid down by the Honorables Supreme Court in the cases of Islamic Republic of Pakistan and United Bank Ltd., supra is clearly attracted.
8. The learned Labour Court did not attended to the question as to whether the three ingredients for the grant of temporary injunction were made out. In the absence of determination of the question of jurisdiction of the learned Labour Court it could not be said that the petitioner had a prima facie case. In case respondent No. 2 ultimately succeeds, he would be entitled to the salary for the period he remained out of service. However, if he ultimately fails, it will not be possible for the petitioner to recover the salaries drawn by respondent No. 2 because he would have continued in service under an interim order of the learned Labour Court. Thus, balance of connivance was also in favour of the petitioner.
9. The objection of the learned counsel for respondent No. 2 that the remedy (of revision) under Section 38(3A) of the Industrial Relations Ordinance (No. XXIII of 1969) was an adequate alternate remedy and therefore, this writ petition is not maintainable has no merit in the facts and circumstances of the case for the reason that the impugned order of the learned Labour Court is manifestly arbitrary and in excess of jurisdiction vesting in the said Court, It may be noted that this petition was filed in 1997, and the operation of the impugned order* of the learned Labour Court was suspended vide order dated 8.7.1997 and since than it has remained pending before this Court. The rule of availability of an alternate remedy as an impediment to exercise Constitutional jurisdiction is only regulatory, In the facts and circumstances of the case I am satisfied that this is a fit case for exercise of Constitutional jurisdiction. Accordingly, this writ petition is allowed. The impugned order dated 5.6. I 997 of the learned Labour Court is declared as without lawful authority and of no legal effect with the result that the application filed by respondent No. 2 for temporary injunction is dismissed.