1999 PLP 128 (PLC)

HAMID ALI MIRZA, J.‑‑‑This is an appeal under section 3 of Law Reforms Ordinance No. XII of 1972 directed against an order dated 1,1‑5‑1998 in Constitution Petition No. 168 of 1998 (Allah Rakha Choudhary v; Presiding Officer and 2 others) whereby the said Constitution petition filed by the appellant was dismissed hence this appeal. Brief facts of the case as stated are that the appellant was General Secretary of Karachi Shipyard Salaried Staff Union Regd. No. 4425 and was employed in Karachi Shipyard and Engineering Works Limited for several years but his services were terminated unlawfully for which he has stated to have taken the matter before the proper forum, however, on 22‑10‑1997 appellant applied for determination of C.B.A. afresh in Karachi Shipyard and in late hours of same evening a letter for verification of alleged change of office‑bearers was received from Labour Directorate and he submitted a statement before the Labour Directorate that he had not resigned from the General Secretary-ship and the documents alleged in respect of his resignation/change were forged and simultaneously he submitted a letter dated 23‑10‑1997 in protest against the conduct of Labour Directorate expressing the involvement of Labour Directorate in the bogus change. The appellant again received a letter dated 25‑10‑1997 from the Labour Directorate to attend the proceedings of so‑called verification of alleged resignation of 27‑10‑1997 though Labour Department was fully aware that the appellant was advised rest because of his eye operation till 8‑11‑1997, consequently he addressed a letter of protest against the conduct of Labour Directorate wherein he stated that any change or resignation purportedly on his behalf be not accepted, however, the appellant submitted an application under section 8(7) of I.R.O., 1969 before V Sindh Labour Court, Karachi praying therein that respondents Nos. 2 and 3 be restrained from acting upon his alleged resignation from the office of General Secretary of Union and on the said application, an order of status quo was passed and the respondent No.2 submitted his parawise comments and one Ghani Zaman Awan applied to be joined as a party to the proceedings which was disposed and the learned Labour Court (respondent 4o.1) on 2‑5‑1998 held that appellant has failed to make out prima facie case, considering also that there was only apprehension and the matter was premature as no final order was passed by respondent No.2 consequently the status quo earlier granted was vacated and the said respondent was directed to verify (i) whether the signature on the alleged resignation was forged, (ii) whether any general body meeting was held on 18‑9‑1997 and (iii) to pass any legal order. The above order was challenged in the writ petition before the learned Single Judge who was pleased to dismiss the same in limine which decision has been challenged in this appeal before us. We have heard learned counsel for the parties, perused the impugned orders and Annexures filed with appeal and the case‑law cited by the learned counsel for the parties. Learned counsel for respondents Nos. 2 and 3 has raised a preliminary objection to the maintainability of the appeal on the ground that it was barred under proviso to subsection (2) of section 3 of Law Reforms Ordinance No. XII of 1972. He contended that the initial order passed by respondent No.2 is appealable under section 8(7) of I.R.O., 1969 before respondent No.1 (Sindh Labour Court) arid proceedings before the said Labour Court would be termed as an appeal, consequently no appeal against the order of learned Single' Judge would maintainable as provided under proviso to subsection (2) of section 3 of Law Reforms Ordinance. Learned counsel for the respondents has placed reliance upon Muhammad Ramzan v. Trustees of Port of Karachi 1990 CLC 1086 (D.B.) in support of his contention. Learned counsel for the appellant has argued that no appeal has been provided under the I.R.O. against the order passed by respondent No.2, therefore, appeal before this Court would not be, barred by proviso to subsection (2) of section 3 of Law Reforms Ordinance. Section 3 of Law Reforms Ordinance reads as under:‑‑

"(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 riot 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." On perusal of the proviso to subsection (2) of section 3 as reproduced above will show that an appeal against the order of learned Single Judge of this Court passed under Article 199 of the Constitution would not be competent if the petition under Article 199 of the Constitution has arisen out of the proceedings which was, initiated under a law which provided for at least one appeal or revision or one review to any Court, Tribunal or Authority against the original order. In the instant case the appellant states that initial order with regard to his dispute regarding his resignation from the post of General Secretary of C.B.A. alleged to have been passed by the respondent No.1 and against the said acts he submitted an application under section 8('I; of I.R.O.. 1969 before respondent No. l (V Sindh Labour Court, Karachi), which proceedings before the said Labour Court was in the nature of an appeal under subsection (7) of section 8 of I.R.O., 1969. Subsection (7) of section S of I.R.O. 1969 runs:‑‑ "In case there is a dispute in relation to the change of officers of a trade union, or any trade union is aggrieved by the refusal of the Registrar under subsection (5), any officer or member of the trade union may apply or appeal to the Labour Court who shall within seven days of receipt of the application or appeal, as the case may be, pass an order either directing the Registrar to register the change or alteration in the constitution or in the officers of the trade union or may, for reasons to be recorded in writing, direct the Registrar to hold fresh elections of the union under his supervision. " Their Lordships in Muhammad Rantzan's case (1990 CLC 1086) at pages 1094 and 109.5 have observed:‑‑ ...........A careful reading of the proviso to subsection (2) of section 3 of the Ordinance will show that an appeal against the order of Single Judge of the High Court, passed under Article 199 of the Constitution is barred in a case where the petition under Article 199 of the Constitution arises out of 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. The words "provided" and 'to any Court. Tribunal or Authority' used in the proviso to section 3(2) of Law Reforms Ordinance in our opinion refer to an appeal, revision or review which the party is entitled to file under the relevant statute, as of right. " Reference may also be made to Ahmad Din v. Abdullah and others (1995 CLC 1557) wherein the learned Division Bench of Lahore High Court held that Intra‑Court Appeal against an order which being Appealable under the relevant statute would be barred by proviso to section 3 of Law Reforms Ordinance, 1972 as such would not be maintainable. Reference may also be made to Abdul Aziz Memon v. Syed Tasnim Ahmad and another (1984 PLC 67) at page 70 the learned Single Judge in the case of identical facts has observed that "the dispute with regard to change of officer of trade union and the action taken by respondent No.1 in filing appeal against the Registrar, Trade Union before the Labour Court was legal Ad proper under section 8(7) of I.R.O., 1969". In view of above provisions of law, an appeal under section 3 of Law Reforms Ordinance No. XII of 1972 against the order passed under Article 199 of the Constitution by the learned Single Judge would not be maintainable as an appeal under subsection. (7) of section 8 of I.R.O., 1969 under the relevant law has been provided. Besides above, a disputed question of fact with regard to the alleged forged application for resignation is involved which could not be decided in the Constitutional jurisdiction of the Court as it would need investigation and evidence in the case, therefore, the learned Single Judge was justified in dismissing the Constitution petition in limine, considering also that no prejudice has so far been caused to the appellant as the matter has been remanded by the Labour Court to determine if the alleged resignation application bore the signature of appellant or whether any general body meeting was held on 18‑9‑1997. We, in the circumstances, find no substance in this appeal which is hereby dismissed in limine along-with the listed applications. These are the reasons in respect of short order pronounced on 4‑6‑1998. Q.M.H./A‑270/K Appeal dismissed.