2008 PLP 362 (PLC)

HAFIZ TARIQ NASIM, J.

Facts leading to this writ petition are that respondents Nos.2 to 9 were served with a show-cause notice on 30-4-2008 by the Chief Engineer, Irrigation Research Zone, Lahore under the provisions of Punjab Efficiency, Discipline and Accountability, Act, 2006 they filed petition under section 49(4)(e) read with section 63 of the Industrial Relations Ordinance, 2002 before the National Industrial Relations Commission, Lahore contending that they are the members and office-bearers of the new registered union namely Pakistan Irrigation Employees and Workers (Pasban) Union Head Office, Lahore pointed out irregularities and corruption against the Junior Research Officer Ijaz Ahmad, S.D.O., Hafiz Arshad, Member, Research Officer, Ghulam Qadir before the Chief Engineer. An Inquiry Officer was appointed where they recorded their statements and during the process of inquiry respondent No.2 Muhammad Iqbal wrote. a letter to the Bureau Chief Royal News Channel for highlighting the corruption which is going on with the connivance of Chief Engineer and on this, the Journalist and mediamen of news channel visited the station on 26-4-2008 when the S.D.O. and Sub-Engineer along with other men apprehended the mediamen, media personnel approached the concerned police station for lodging an F.I.R. against the S.D.O. etc. but the S.H.O. did not listen their grievance so they approached the D.I.-G. Gujranwala for registration of a criminal case who directed the concerned S.H.O. to lodge the F.I.R. but later on the dispute was resolved between the parties. Out of retaliation, the Chief Engineer issued show-cause notice to all i.e. respondents Nos.2 to 9 on 30-4-2008, which are an outcome of annoyance, mala fide and arbitrariness.

2. The learned Member, N.I.R.C. issued notice and passed an interim order in the following terms:-- "The points raised need consideration, hence notice of this petition along with application for interim relief be issued to the respondent for 16-5-2008. In the meantime the respondent is restrained from passing a final adverse order detrimental to the rights of the petitioners. He may however, proceed with the inquiry proceedings, if so desired."

3. On 16-5-2008 Dr. M. Irtiza Awan, Advocate submitted the authority letter on behalf of the present petitioner, sought adjournment for submission of reply and the case was adjourned to 23-5-2008.

4. On 23-5-2008 reply to the petition as well as to the application for interim relief was filed by the present petitioner and the case was fixed for arguments on the said application for 6-6-2008.

5. Surprisingly after taking adjournment on 16-5-2008 by the present petitioner when the case adjourned on his request to 23-5-2008, respondents Nos.2 to 9 were imposed the penalty of compulsory retirement from service by the present petitioner i.e. Chief Engineer, Research Irrigation and Power Department in exercise of his powers under section 13(5) of the Punjab Efficiency, Discipline and Accountability, Act, 2006.

6. The petitioner through this writ petition has assailed the order, dated 16-5-2008 and the order, dated 23-5-2008 passed by the learned Member, NIRC praying that the proceedings taken by the learned Member, NIRC be declared as without jurisdiction and the interim order, dated 6-5-2008 and all subsequent orders recorded by respondent No.1 on the said petition be set aside being without lawful authority and he be restrained from taking any further proceedings on the above petition.

7. The learned counsel for the petitioner submits that respondents Nos.2 to 9 could not invoke the jurisdiction of NIRC particularly when there is a specific provision in the PEDA in the form of section 20 which reads as follows:-- "the provision of the Act shall have the effect notwithstanding anything contained in any other law for the time being in force."

8. Further adds that sections 16 and 17 of the PEDA provided a right of departmental appeal/review and revision to respondents Nos.2 to 9 against the action, taken against them by the competent authority and then they had a right to appeal before the Punjab Service Tribunal under section 19 of the Act but the learned Member NIRC did not advert to the point of jurisdiction' which had to be resolved before proceeding further and as such granting interim relief by the learned Member NIRC is nullity in the eye of law. Further submits that respondents Nos.2 to 9 are not yet approved officers of any registered industry by Trade Union or Federation and on this score their approach to NIRC was a departure of the provisions of Industrial Relations Ordinance, 2002. Adds that mere issuance of a show-cause notice cannot lead to the presumption of unfair labour practice but this aspect was altogether ignored by the learned NIRC while granting interim relief. Learned counsel for the petitioner submits that it was the duty of NIRC to decide the case pertaining to its jurisdiction and then consider the merits of the case particularly when the matter impugned was pertaining to the terms and condition of service and such matter exclusively falls within the jurisdiction of Service Tribunal, the order passed by the NIRC could be termed as without jurisdiction void, ab 'initio and nullity in the eye of law. In this respect he relies on Town Committee, Gakhar Mandi v. Authority under the Payment of Wages Act Gujranwala and 57 others PLD 2002 SC 452 and Shabbir Jan Sarhandi v. Province of Sindh through Chief Secretary and 3 others 2006 PLC (C.S.)

955. He further submits that as per law laid down in case of Mst. Mubarak Salman and others v. The State PLD 2006 Kar. 678, void judgment of Court below can be corrected by exercising its suo motu jurisdiction by the High Court particularly when Article 203 of the Constitution of Islamic Republic of Pakistan, 1973 confers the powers on the High Court in respect of its supervisory jurisdiction. On merits the learned counsel for the petitioner submits that the interim order passed by the learned Member NIRC was not conveyed to the present petitioner and as such he passed the order of penalty dated 17-5-2008 and as such he did not commit any contempt etc.

9. On the other hand, the learned counsel for respondents Nos.2 to 9 argued the case at length, ably controverted the points raised by the learned counsel for the petitioner and submits that the present writ petition against the interim order is not maintainable as held in case of Kashmir Edible Oils Limited through Manager Administration v. Nadeem Bari and another 2005 PLC 412 and Jehandad and 2 others v. State and another PLD 2006 SC

270. Further submits that if a party violates Court's order he shall not be entitled for the discretionary relief in the form of writ. Adds that the interim order in the form of stay was passed by the learned Member NIRC on 16-5-2008 and it is well-settled law laid down by the Honourable Supreme Court of Pakistan that the moment the stay order is passed it shall be effected from that moment and not from the time and date of communication. In this respect he relies on Bakhtawar and others v. Amin and others 1980 SCMR 89 and Din Muhammad and 2 others v. Abdul Rehman Khan 1992 SCMR

127. Further submits that at the time of filing of writ on 2-6-2008 the petitioner had no cause of action for filing the same as the petitioner had compulsorily retired respondents Nos.2 to 9 in violation of restraint order passed by the learned Member NIRC hence this writ petition is liable to be dismissed on this short ground. The activities of the corrupt mafia in the department was disclosed to the high-ups which was made the basis of show-cause notice firstly which was rightly challenged before the NIRC and further it was resulted into penalty of compulsory retirement and Court has ample power to scrutinize the entire matter in reference to severe allegations of corruption against the petitioner and his other allies and it is well-settled law that any action which is based on arbitrariness and mala fide cannot sustain in the eye of law, hence the writ petition be dismissed and the respondents Nos.2 to 9 be restored to their position as reinstated employees.

10. Arguments heard; record perused.

11. First of all the point of jurisdiction is to be examined being the foremost issue.

12. It is undisputed fact that respondents Nos.2 to 9 are employees of the Government of the Punjab and could be proceeded against under the Punjab Efficiency, Discipline and Accountability Act, 2006 and if such employees felt aggrieved of any action of the departmental authority under the provisions of PEDA, 2006, it is held that they could not invoke the jurisdiction of NIRC which is not meant for these controversies and simultaneously the learned Member NIRC could not exercise its jurisdiction by entertaining the respondents' petition and then issuing any interim order.

13. Taking the strength from the law laid down by the Honourable Supreme Court of Pakistan reported as Province of Punjab through Secretary, Health Department v. Dr. S. Muhammad Zafar Bukhari PLD 1997 SC 351 and the law laid down by this Court in case of Jamil Ahmad Sheikh and another v. District Officer (Revenue), Kasur and 3 others PLD 2006 Lah. 597, wherein it is held that "the act would be without lawful authority and of no legal effect, when the person doing same had no authority or jurisdiction to do same

Such act would be ultra vires and without jurisdiction

Cases of inherent inconsistency, totally want of jurisdiction could not be overlooked, which would be liable to be declared as without lawful authority".

14. There can be no cavil from the well-settled law that the learned NIRC was not a forum available to respondents Nos.2 to 9 being civil servants of the Government of the Punjab to agitate the matter in dispute and the learned NIRC while entertaining their petitions and issuing interim order directing the Government Authorities not to take any adverse action against respondents Nos.2 to 9 virtually exceeded its jurisdiction, thus, the impugned order passed by the learned NIRC is declared to be void, illegal, having no legal effect and the writ petition is allowed.

15. Before parting with the judgment, it shall be appropriate to observe that the penalties order passed by the present petitioner in respect of respondents Nos.2 to 9 are of course amenable to the jurisdiction of Punjab Service Tribunal and they are entitled to get their grievances redressed from the appropriate Tribunal, however, while considering their cases on merits, the points raised by respondents Nos.2 to 9 before the NIRC being of serious nature are to be attended in their true perspective.

16. In the attending circumstances, the petitioner and his allies against whom serious allegations of corruption have' been made specifically by respondents Nos.2 to 9 should also not be let off in an ordinary routine matter but the Chief Secretary, Government of the Punjab shall ensure the transparency in the impugned exercise and as such I direct the Chief Secretary, Government of the Punjab to constitute a high power committee who shall inquire into the allegations levelled against the petitioner/Chief Engineer and his certain subordinates, in the inquiry, the complainants i.e. respondents Nos.2 to 9 as well as the petitioner and his subordinates be associated and the result whereof be conveyed to this Court within two months of passing of this judgment. The learned Assistant Advocate-General Punjab, Lahore shall ensure the compliance of Court's order in letter and spirit. H.B.T./C-11/L Petition allowed.