1982 PLC 43 (PLP)

AJMAL MIAN, J.‑‑This petition is directed against the order dated 2nd October, 1974, passed by the learned Sind Labour Appellate Tribunal, Karachi, in Appeal No. KAR‑227 of 1974. The brief facts leading to the filing of the petition are that the peti tioner was appointed as a Stenographer on 25thJune, 1957 and was confirmed as such on 10th February, 1958, in the then P. I. D. C. It seems that by Ordinance XXXVI of 1962, the P. I. D. C. was bifurcated into two Corporations, namely, West Pakistan Industrial Development Corporation (hereinafter referred to as "the W. P.

1. D. C.") and Bast , Pakistan Industrial Corporation. It further seems that the services of the petitioner were transferred to the W. P. I. D. C. It also seems that the petitioner applied for leave for a few days in 1965. It is the case of the respondent that in-spite of the extension granted in 1 eave period by them, the petitioner did not resume his duties, in-spite of repeated notices. Consequently, his services were terminated by a letter, dated 10thJune, 1965. It further seems that the petitioner filed Suit No. 75/66 inter alia for a declaration that the termination of his services was illegal and that he remained in service. The above suit was decreed on 3rdJuly, 1967. The appeal filed by the respondent against the above judgment and decree was dismissed on the ground that it was time‑barred. It also seems that the respondent had also filed a suit, namely, Suit' No 2409/67 against the petitioner in the Court of IV Civil Judge, First Class, Karachi, for letting aside the aforesaid judgment and decree dated 3rd July, 1967, which was dismissed on merits, against which, according to the respon dent, they had filed an appeal, which is still pending in the District Court, Karachi. It further seems that the respondent did not satisfy the aforesaid decree obtained by the petitioner. It may be mentioned that section 25‑A of the Industrial Relations Ordinance, 1969, hereinafter referred to as the

1. R. O. was enacted on 13thApril, 1972 by Ordinance IX of 1972. After the incorporation of the above section, the petitioner filed an application under the above provision on 20thJuly, 1972. The above application was allowed by the learned Labour Court by its order dated 18thJune, 1974 and the petitioner was reinstated with back benefits. The respondent being aggrieved by the above order filed an appeal before the Sind Labour Appellate Tribunal (Appeal No. KAR‑227 of 1974), which was allowed by the learned Sind Labour Appellate Tribunal by its order dated 2ndOctober, 1974. The petitioner being aggrieved by the beside order has filed the above petition. 2. (a) In support of the above petition Mr. Shibli has urged that at the relevant time the learned Sind Appellate Labour Tribunal had no juris diction to entertain the appeal and, therefore, the appellate order is without jurisdiction. On the other hand, Mr. Abbasi, learned counsel for the respondent has made following submissions :‑‑ (i) That the appeal was competent as the right of appeal accrued to the respondent upon the entertainment of an application under section 25‑A of the I. R. O. by the Labour Court and that right continued in-spite of the promulgation of Ordinance No. XLVIII of 1972 or Act XXIX of 1973. (ii) That the Ordinance No XLVIII of 1972 in any case had not taken away the right of appeal against an award, and that since the Labour Court had given an award the appeal was competent ; (iii) That this Court will not exercise its discretionary jurisdiction under Article 199 in order to perpetuate an illegal order passed by the Labour Court. 3. (a) Reverting to the above contention of Mr. Shibli that the learned Sind Labour Appellate Tribunal was not competent to entertain the appeal on the relevant date, it may be pertinent to refer to 'the relevant provisions of the relevant law. In this behalf a reference may be made to Ordinance No. XLVIII of 1972, here inafter referred to as "the Ordinance". It may be observed that by virtue of section 21 of the Ordinance certain now sections were incorporated enacted in the I. R. O. 1169, which inter alia included sections 36‑A & 36‑D. Sections 36‑A contemplated the constitution of junior Labour Courts. Whereas under section 36‑D, an appeal against a decision of a junior Court was provided to the Labour Court instead of to the Sind Labour Appellate Tribunal. Section 28 of the Ordinance provided saving of certain pending proceedings. It may be advantageous to produce herein-below, the above section 28, which reads as follows :‑‑ "Section

28. Savings. ‑Nothing in this Ordinance shall be deemed to (a) require the transfer to the Junior Labour Court of any matter under subsection (4) of section 25‑A which may be pending before a Labour Court immediately before the commencement of this Ordinance. (b) affect any appeal from an order of a Labour Court which may be pending before the Labour Appellate Tribunal immediately before such commencement." It may be noticed that under clause (a) of the above section 28 the pending cases under section 25A in the Labour Court immediately before the commencement of the Ordinance were saved. Similarly, pending appeals from orders of Labour Court immediately before the commence ment of the Ordinance were saved. (b) It has been urged by Mr. Shibli that except the cases mentioned in section 28, no other cases was saved and that the right of appeal was taken away by the Ordinance by implication/intention. In support of his above contention, he has referred to the case of Asad Ali and 9 others v. the Settlement & Claims Commissioner, Karachi (1) in which Full Bench comprising of 5 Judges, while considering some what similar argument as (1) P L D 1974 Kar. 345 canvassed before us by the learned counsel for the respondent, with reference to subsection (4) of section 3 of Act VIII of 1972 (the Law Reforms" Amendment Act, 1972) observed that under the above provision only pending appeals were saved. It was also observed that the right of appeal is different from an appeal which is pending and that an appeal can be said to be pending only after it has been filed. In the instant case, it is an admitted position that no appeal was pending on the date when the Ordinance (i. e. Ordinance No. XLVIII of 1972) was promulgated and that after the promulgation of the above Ordinance, the right of appeal pro. vided for in section 37(3) of the I. R. O. against a decision of a Labour Court was taken away as the relevant portion containing the right of appeal was omitted. In this view of the matter, the only right of appeal provided by virtue of incorporation of section 36‑D in the I. R.O0. on account of section 21 of the Ordinance was against a decision of a Junior Labour Court to a Labour Court and not to the Sind Labour Appellate Tribunal However, Mr. Abbasi has referred to the case of Hasan and others v. Fancy Foundation (P L D 1975 S C 1) in which the Supreme Court while considering the amendment of certain provisions in the West Pakistan Urban Rent Restriction Ordinance, 1959, by the West Pakistan Urban Rent Restriction (Amendment) Ordinance (XXI of 1965) observed that rights of the parties are to be decided according to law existing when action begun unless provision is made to the contrary. There cannot be any cavil to the above legal proposition enunciated by the Supreme Court. However, the question which requires consideration is, as to whether there is any contrary provision provided for to the Ordinance. In our view section 28 of the Ordinance read with section 36‑D of the newly‑added section in the I. R. O. provided contrary provision by not expressly providing a right of appeal against an order passed by the Labour Court in a pending case which was saved by virtue of clause (a) of section 28 of the Ordinance The ruling relied upon by Mr. Abbasi has no application to the instant case.

4. With reference to Mr. Abbasi's second contention that in any case the order passed by the Labour Court indicates that it was an award and not a decision and, therefore, an appeal was competent under section 37 (3) of the I. R. O. as the omission was only confined in respect of an appeal against a decision and not against an award, it has been pointed out by Mr. Shibli that the cases decided by the Labour Court under section 32 (P L D 1978 Kar. 649) of the I. R. O. constitute awards and the decisions given by the Labour Court under any other provision are in fact decisions. In support of his above contention he has referred to the case of Muhammad Aqeel v. Sind Labour Appellate Tribunal (3) wherein it was held by a D. B. that a decision given by a Labour Court on an applica tion under section 34 of the I. R. O. does not fall within the meaning of an award under section 2 (ii), and, therefore, it was not appealable under section 37 of the I. R. O. and that a decision given under section 32 only constitutes an award, and not under any other provision of the I. R. O. The above case seems to be on all fours and supports Mr. Shibli's above contention. It will suffice to observe that merely the fact that the learned Labour Court had mentioned the word 'award' on the first page of the, order would not make it an award if it was not given under section

32. Admittedly the Labour Court decided the petitioner's application under section 25‑A of the I. R. O. and not under section 32 and, therefore, it is not an award but a decision.

5. Reverting to the last contention of Mr. Abbasi that this Court will not exercise its discretionary jurisdiction under Article 199 of the Consti tution in to perpetuate an illegal order passed by the learned Labour Court, it may be observed that in support of the above contention Mr. Abbasi has pointed out that the petitioner could invoke section 25‑A of the

1. R. O. within 3 months from the date of the alleged grievance, whereas in the instant case admittedly the petitioner was dismissed on 10th June 1965, but the application under section 25‑A of the I. R. O. was filed on 20th July 1972. On the other hand, it was urged by Mr. Shibli that the petitioner had recurring cause of action and that he was entitled to maintain an application under section 25‑A after it was enacted on 13thApril, 1972 by Ordinance No. IX of 1972 as the respondent had failed and neglected to satisfy the decree passed by a competent Court. We would not like to make any observation on the merits of the above contention of Mr. Abbasi as we intend to confine our decision to the jurisdictional fact. Admittedly, the Sind Labour Appellate Tribunal had no jurisdiction to entertain the appeal on the date when the appeal in question was filed. Mr. Abbasi in support of his above contention has also referred to the case of Muhammad Aqeel v. Sind Labour Appellate Tribunal (P L D 1978 Kar.649) in which a Division Bench of this Court dismissed a writ petition challenging the order of the Sind Labour Appellate Tribunal on the ground that by allowing the same, it would not foster justice, nor right a wrong as the order of the Labour Court was without jurisdiction for the reason that the petitioner was not a workman and was not entitled to the protection of the Standing Order Ordinance. In our view, the facts of the above case are distinguishable from the instant case inasmuch as admittedly the Labour Court had jurisdiction is the instant case under section 25‑A C but according to the respondent, the same should not have been exercised as the period specified therein namely, 3 months had expired, long time back. In our view in the instant case we will have to see, whether equity is more on the side of the petitioner or on the side of the respon dent. In other words, it is to be seen, which course of action will cause lesser, miscarriage of justice i.e. interference or non‑interference. p In our view equity is more on the side of the petitioner and therefore, we are inclined to interfere with the impugned order which is prima facie without jurisdiction. For the aforesaid reasons we allow the petition and declare the impugned order as being without jurisdiction. There will be no order as to costs.