1978 PLP 261 (PLC)

(b) Industrial Relations Ordinance (XXIII of 1969) -- S. 1(3)--Application of Ordinance-Army Stud Farm-Function of such Farm to produce horses and mules for Pakistan Army-Held, can be regarded as "incidental to maintenance of Pakistan Army Provisions of Ordinance not applicable to such establishment. Pakistan Red Cross Society v. Abdul Razzak 1974 P L C Note 10 at p 5 and Ch. H. Maar1J v. Pakistan Red-Cross Society 1974 P L C Note 49 at p. 27 ref. Capt. A. D. Baluch, Legal Adviser for Appellant. Ch. Muhammad Hussain Jehanta for Respondent. The above-cited cross appeals have been filed one by Din Muhammad, Tube-Well Operator, hereinafter mentioned as the appellant employee and the other by the General Manager, Army Stud Farm, Probeenabad, Tehsil Depalpur, District Sahiwal, hereinafter mentioned as the appellant establish ment, against the order of the learned Junior Labour Court. Multan, dated 28th December, 1974, whereby, the appellant employee was directed to be re-instated in service with further direction that the period of his non. employment would be treated as leave without pay. The appellant establish ment has brought the appeal against the direction of re-instatement while the other party has come up in appeal on being aggrieved of the observation in the impugned order that the intervening period of his non-employment would be taken as leave without pay t. e. he would not be entitled to the back benefits of his service. The present order will dispose of both the appeals. A preliminary objection was raised on behalf of the appellant employee that the appeal is time-barred while from the other side it is maintained that the impugned order was passed in the absence of the appellant establishment on 28th December, 1974 when the actual date of hearing was fixed for 27th December, 1974. A reference to the record of the learned lower Court shows that the case came up for hearing before the learned Presiding Officer during his camp at Sahiwal on 28th December, 1974 and it was indicated in the order that the case came up for hearing on the date next to date fixed for hearing on account of a public holiday having occurred on the previous day. It was further given out in that order that the appellant employee in person and Muhammad Yousaf, Clerk on behalf of the appellant estab lishment were present In the Court. The learned Presiding Officer disposed of the case on that very date in the form of the impugned order. A copy of the said order was admittedly applied for on 20th January, 1975 and the necessary copy was delivered to the authorised person of the appellant establishment on the same day. The memorandum of appeal was filed in this Court on behalf of the appellant establishment on 21st January 1975. The objection' as to the limitation has been found to be correct on the face of it. Even conceding to the argument that the appellant establishment was not duly represented before the learned lower Court on the date of the impugned judgment, an appeal was due to be filed in this Court at the maximum by 20th January, 1975, because the impugned order definitely came to the notice of the appellant establishment on 4th January, 1975, when a co-employee of Din Muhammad appellant was ordered to be rein stated as a result of an order of the Junior Labour Court passed in similar circumstances. However, the learned counsel for the appellant establishment has contended that, even if the present appeal be regarded as time barred it would not affect the case of the appellant inasmuch as the impugned order has been passed without jurisdiction and as such being void ab initio should be regarded a nullity in tie eye of law. He has relied on Muhanwnaa Saleh and others v. M/s. United Grain & Fodder Agency, (P L C1964 S C 97), in which it was observed by his Lordship Mr. Justice Kajkaus as follows: It should be remembered that if an order be a nullity, then every Court before whom it is brought is not only entitled but bound to ignore it. If it be held that a taking-up of a case not on the date fixed, but on any other date rendered the proceedings totally void, the result would be that even the Court of a Third Class Civil Judge could hold that the High Court or the Supreme Court in taking up the case on a particular date without proper notice acted without jurisdiction and the judgment delivered was a nullity. The above-cited authority, though was given in different set of circumst ances, yet I agree with the learned counsel on the principle that if it i found by an appellate Court that the trial Court acted without jurisdiction In disposing of a case, the decision can be ignored in regard to the point o: limitation and the question of jurisdiction can be duly taken up by it for its own decision. In the present case I have been shown the original lease deed dated 9th September, 1975 executed between the Government of the Punjab and Chief of Army Staff of Pakistan, Army GHQ, Ministry of Defence in regard to the Land constituting the Army Stud Farm" which is run by the appellant establishment. One of the primary functions of the farm is to produce horses and mules for the use of Armed Forces of Pakistan and the income derived there from is utilised by the Director of Welfare and Rehabilitation Adjutant General Branch. GHQ, Rawalpindi, for the purposes of welfare and rehabilitation of the service and Ex-servicemen and their families. Under section 1(3) of the Industrial Relations Ordinance, 1969, its application has been expressly barred to any person employed in the Police or any of the defence services of Pakistan including any service or installation connected with or incidental to the Armed Forces of Pakistan. One of the main functions of the appellant establishment as given above not being con troverted on behalf of the appellant employee. It would fairly be concluded to hold that the same could not be taken out of the scope of the service incidental to the Armed Services of Pakistan. I find support in this view from the rule enunciated in a labour case judgment Re-Pakistan Red Cross Society v. Abdul Razzak (1974 P L C Note 10 at p. 5) given by learned Sind Labour Tribunal and relied on fn subsequent judgment by the same Tribunal, reported u Ch. H. Marris v. Pakistan Red Cross Society (1974 P L C Note 49 at p. 27). In the cited case the contention that the employees of Pakistan Red Cross Society should not be governed by the provisions of Industrial Relations Ordinance, 1969, by virtue of clause I of the First Schedule with reference to section 7 of Pakistan Red Cross Society Act, 1920, whereby the care of the sick and wounded members of the Pakistan Forces was one of the objects of society. In the present case the basic function of the Army Stud Farm as being the production of horses and mules for Pakistan Army, the same can easily be regarded as incidental to the maintenance of Pakistan Army. In this background of the merits of the case I am of the, considered view that the provisions of the Industrial;-j=,n* Ordinance 1969, were not attracted in the present case and on that score the impugn order cannot be upheld for want of jurisdiction. The appeal is therefore accepted and the application under section 25-A of the industrial Relations Ordinance filed by the appellant in the learned lower Court deemed to have been dismissed.