2000 PLP 215 (PLC)

Muhammad Lateef, Advocate Supreme Court with Haji M.A. Qayyum Mazhar, Advocate‑on‑Record for Respondents. Date of hearing: 26th February, 1999. RAJA AFRASIAB KHAN, J.‑‑‑To begin with, Qayyum Nawaz and nine others, the appellants were appointed on contract basis in the Wood Working Centre, D.I. Khan under the management of Small Industries Development Board, N.‑W.F.P. by the competent Authority on different dates. On the expiry of the periods, the contracts were further extended for a period of one year. After the expiry of the extended period, the appellants were paid leave encashment, gratuity and were accordingly relieved from service. They were, however, appointed on regular basis immediately after the termination of their service. The contract period of the appellants was not included in their regular service. A grievance notice under section 25 of the Industrial Relations Ordinance, 1969. (hereinafter referred to as the Ordinance) was given by them to the respondent. It was not taken into consideration by the respondent and as such grievance petition was filed by them under section 25‑A of the Ordinance on 2‑9‑1990. It was mentioned in the petition that the appellants were entitled to be acknowledged as regular employees even during the alleged period of contract. This plea of the appellants was turned down by the Labour Court vide its decision dated 8‑6‑1992. An appeal was instituted by them challenging the validity of the decision of the Labour Court. The Labour Appellate Tribunal vide its judgment dated 17‑2‑1993 accepted the appeal holding that the appellants were the regular employees of the respondent. The 'operative part of the judgment of the learned Tribunal is as follows:‑‑ "The crucial point for determination in this case is as to whether the appellants can be classified as workmen under the Industrial Relations Ordinance and Standing Orders Ordinance and if they qualify to be so whether they would still be governed by the contract agreements obtained from them at the time of their appointments or the terms and conditions of their services would be regulated by the said two enactments. Under the Standing Orders Ordinance there are the following categories of workmen:‑‑ (1) Permanent., (2) Probationers. (3) Badlis. (4) Temporary. (5) Apprentices. There is practically no dispute between the parties that but for the contract agreements all the appellants could qualify as permanent workmen. It is an admitted fact that the appellants performed their duties against the work of permanent nature and their period of employment was for a much longer period than the one which entitles them to be classified as permanent workmen under the Labour Laws. It is provided in section 4 of the Standing Orders Ordinance, 'Provided that no such agreement shall have the effect of taking away or diminishing any right or benefits available to the workmen under the provision of the schedule. It is, thus, manifest on the strength of this provision of law that it would be the Labour Laws which would govern the relation between the employer and the employees and the contract agreements would not be a hurdle in application of the Labour Laws. These agreements of contract obtained from the appellants on various dates were apparently mal fide and were meant for depriving them of the benefits under the relevant laws. This fact cannot be denied that there had not occurred any break in service of any of the appellants as the same day their contracts were renewed on which it expired. The learned Labour Court has taken incorrect view of the law by giving precedence to the contract agreements over the Labour Laws. (Emphasis supplied). This appeal is accordingly allowed and the judgment of the Labour Court is set aside and resultantly the relief prayed for in the grievance petition is granted to the appellants with costs." The respondents filed Writ Petition No.58 of 1993, which was accepted by the Peshawar High Court on 25‑9‑1994. Leave to appeal was granted to the appellants on 31‑5‑1995 on the ground that the Appellate Tribunal was a Tribunal of fact as well as of law and its decision could not be termed as without lawful authority. It was observed that the contract having been obtained by the respondent from the appellants was based on mala fide.

2. Learned counsel for the appellants submitted that the High Court was not competent to interfere with a finding of fact arrived at by the competent appellate forum inasmuch as, it was held that the respondent proceeded in the matter with mala fide in securing the contracts from its employees namely, the appellants. Learned counsel appearing on behalf of the contesting respondent argued that a contract was entered into between the parties and as such, the appellants could not be permitted to go against the express provisions of the said contract. In other words, the contention was that the period for which the appellants remained on contract could not be counted towards the length of their regular service.

3. After hearing the learned counsel for the parties at some length and perusing the record with their assistance, we hold the view that the appellate judgment having been rendered by the Labour Appellate Tribunal is lawful inasmuch as, it is based on due appraisal/assessment of evidence available on record. The Tribunal has concluded that the agreement entered into between the appellants and the respondent is based on mala fide to deprive them of their lawful rights. It was strange that the appellants were appointed on regular basis on the same day, when their contract period ended. The Labour Appellate Tribunal has rightly held that such agreements are not valid in view of the mandatory provisions of section 4 of the West Pakistan Standing Orders Ordinance, 1969. This being the position, finding of fact given by the Labour Appellate Tribunal is not open to challenge under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 before the High Court. The Tribunal has considered the entire evidence of the parties and in the result, has determined a question of fact that the appellants are permanent workmen performing duties in the establishment of the respondent. It has not been shown by the respondent that the appellate judgment of the Tribunal is without lawful authority or based on mala fide. It is not the case of the respondent that the Appellate Tribunal has no jurisdiction to interfere with the matter. It is well‑established law that a writ petition against such an order/judgment passed by a Tribunal of exclusive jurisdiction is competent only when it is shown that the judgment/order is without jurisdiction or without lawful authority or it is based on no evidence at all. No such case could be made out by the respondent in the High Court the impugned judgment, on the face of it, is based on mere conjectures and surmises. It did not, at all, advert to the mandatory provisions of Article 199 of the Constitution under which the powers were exercised. This appeal is, therefore, allowed and the impugned judgment rendered by the High Court dated 25‑9‑1991 is declared to be without lawful authority and of no legal effect. It is, accordingly set aside. The judgment of the Labour Appellate Tribunal dated 17‑12‑1993 is restored with no order as to costs. H.B.T./Q‑8/S Appeal allowed.