P L D 1981 Karachi 620 (PLP)

1 ABDUL HAYEE KURESHI, ALTO. C. J.‑The petitioner, In Iran, has filed the present petition under Article 199 of the Constitution t o impugn an order passed by the learned Appellate Tribunal in Appeal No. Kar. 570/1980 on 22‑10‑1980. We have heard Mr. M. L. Shahani. The petitioner was, at all relevant times, employed in a permanent capacity as a Waiter in Village Restaurant (respondent No. 2). His services were terminated on 15‑5‑1979, on account of the retrenchment. It is then said that, with a view to circumvent the provisions of Standing Order No. 14, the respondent No. 2 appointed two persons, namely, Yousuf and Abdul Wahid respectively as Pantryman and Storekeeper, and such two new employees were, in fact, working as Waiters. The petitioner then made a grievance petition under section 25‑A of the Industrial Relations Ordinance before the Labour Court, which directed re‑employment of the petitioner without back benefits. On an appeal by respondent No. 2, such order of the Labour Court was reversed, and hence the petition. The main contention of Mr. M.L. Shahani before us is mainly based on facts. He has submitted that, although the two new employees were shown to have been employed as Pantryman and Storekeeper, still, in fact, these two employees were employed as Waiters, and this was done to circumvent the provisions of Standing Order No. 14, which provides that, if within twelve months of a workman being retrenched and a new employee in same capacity needs to be employed, the first chance shall be afforded to the workman who has been retrenched. On our pointing out that this Court would hardly ever enter into questions of fact in the exercise of jurisdiction under Article 199 of the Constitution, the learned Advocate referred us to the case of Dost Muhammad Cotton Mills v. Muhammad Abdul Ghani P L D 1975 Kar, 342 , which is a judgment of one of us. It was particularly stressed that jurisdictional facts are not immune from scrutiny by this Court. The following passages in the said judgment have been specifically referred to:‑ "It would on such state of law seem that it is not every finding of fact that acquires immunity from scrutiny, but such facts as lay the foundation for exercise of powers by a Tribunal are not so immune from scrutiny. Whether the findings of fact, the decision whereof lies within the domain of the Tribunal, are completely immune will be considered by me later. It is therefore too late in the day to assume that every finding of fact recorded by a Tribunal of limited jurisdiction is immune from judicial scrutiny. The preliminary objection is without substance and is rejected." In the said case, the controversy was in regard to a particular employee being a workman, and all that was said was to the effect that the fact of the employee being a workman or not was a jurisdictional fact that could be agitated before the High Court for determination of the question, whether the inferior Tribunal was rightly seized of the case, or, had wrongly declined to exercise jurisdiction. In any case, the reported judgment is only a warrant for the proposition that such enquiry into matters of fact could be undertaken. That judgment should not be understood to mean, or, imply that the High Court would readily convert itself into a Tribunal of facts, and entertain all and several questions, and indiscriminately A substitute its own finding on facts. In this case also, we will enter into factual questions, but in a limited sense, so that we determine only the question of jurisdiction of the Appellate Tribunal. In fact, no question identical to the questions in the reported case arose, because there was no controversy in regard to the petitioner being a workman. Coming to the merits of the case, we find that the two newly employed persons, namely, Yousuf and Abdul Wahid, were not examined by the petitioner. On the other hand, the petitioner examined one witness by name Raza Ali, whose evidence was not relied upon by the Appellate Tribunal. This was eminently within the jurisdiction of the Appellate Tribunal to take a particular view on facts. On the other band, the appointment letters in respect of Yousuf and Abdul Wahid were produced before the Appellate Tribunal, and the same showed that they were engaged on salary of Rs. 265 and Rs. 300 respectively per month, when the salary of a Waiter was only Rs. 250.00 per month. This was a circumstance, which could reasonably lead to a conclusion that Yousuf and Abdul Wahid had not been employed as Waiters. It seems there was some evidence that these two persons occasionally worked as Waiters, and in such context, the Appellate Tribunal adverted to and accepted the explanation that occasionally, due to excessive work, or other cause, they may have performed the duties as Waiters, but this circumstance would not show that they were employed in the category of Waiters. We are completely satisfied with such appraisal of evidence. We are of the view that the provisions of Standing Order No. 14 had not been infringed, and the petitioner therefore, can have no cause of action. We dismiss this petition in limine. M. Y. H. Petition dismissed.