1991 PLP 774 (PLC)

Ch. Rashid for Respondent No.2. Ikram Siddique for Surety. Date of hearing: 18th March, 1991. This is a petition under Article 199 of the Constitution of Islamic Republic of Pakistan.

2. Respondent No. 2 Abdul Rasheed Khan was working in M/s. Pak Suzuki Motor Company Ltd. as Senior Assistant in the Accounts Department. On 27-3-1984 he is alleged to have met with an. accident sustaining fracture in his leg. He was admitted in Central Hospital, Karachi which was on the panel of the petitioner. He remained there as indoor patient upto 22-4-1984, when he was discharged. Respondent No. 2 claims that he was not fully cured and was not able to move normally. He therefore requested the hospital authorities to provide him with a pair of `crutches' but his request was not acceded to. The result was that, while walking towards his house, his injury was damaged. He made such a complaint to the petitioner, but with no redress. He received private treatment from a nursing home from 24-4-1984 to 9-5-1984. On resuming his duty he again submitted an application on 24-5-1984 to the petitioner. Instead of redressing his grievance, they issued charge-sheet against him on 9-9-1984 which, according to respondent No. 2, was time-barred. Respondent No. 2 submitted reply to the charge-sheet, whereupon domestic enquiry was instituted. Respondent No. 2 alleges that it was neither proper nor he was allowed to cross examine the witnesses, nor he was allowed to appoint any co-worker to assist him. Without affording an opportunity of personal hearing and issuing a second show -cause notice, respondent No. 2 was dismissed from service on 28-10-1984. He, therefore, submitted his grievance petition under section 25-A of I.R.O., 1969 requesting therein for reinstatement in service with full back benefits. The petitioner admitted the factual aspects of the case, but resisted the petition on the ground that the complaint of respondent No. 2 against the administration of Central Hospital, Karachi was false which had resulted in the stoppage of payment of bills by the company thereby putting the establishment into bad reputation. It was alleged by the petitioner that respondent No. 2 was given full treatment and other medical facilities to which he was entitled. The case of the petitioner was that on i1-6-1984 respondent No. 2 was issued a warning to desist from such activities and to be careful in future, but he did not pay any heed to this warning. He also thereafter sent undated and unsigned complaints to the Audit Department of the company to stop the payment of the bills of the Hospital. Consequently he was charge-sheeted and found guilty of misconduct on the enquiry and was therefore, rightly dismissed from service. It was denied that the charge-sheet was time-barred or the enquiry was improper.

3. The Labour Court heard the petition, came to the conclusion that respondent No. 2 had been properly dismissed from service for misconduct committed by him which was duly proved in the domestic enquiry. It, therefore, dismissed the petition, on 7-5-1986. Against the said order, respondent No. 2 filed an appeal in the Labour Appellate Tribunal. The learned Tribunal held that the dismissal of the respondent No. 2 from service was wrong and therefore, set aside the order of the Labour Court and directed reinstatement of respondent No. 2 in service with 50%r, back benefits.

4. Against the order of the Labour Appellate Tribunal dated 25-11-1987, the petitioner has come up to this Court under Article 199 of the Constitution.

5. The petition was admitted to regular hearing, on 16-12-1987. On 23-2-1988 a consent order was passed by this Court whereby respondent No.2 was directed to deposit in Court within 15 days the amount of all back benefits as awarded by the Tribunal and the retirement benefits. On 15-3-1989 respondent No. 2 was allowed to withdraw this amount subject to furnishing security to the satisfaction of the Nazir.

6. It is brought to our notice that respondent No. 2 Abdur Rasheed Khan has retired from service in February, 1989 having attained the age of superannuation i.e. 60 years.

7. Since the jurisdiction to be exercised by this Court under Article 199 of the Constitution is an equitable jurisdiction, the Court can in a proper case refuse to grant relief to the petitioner even if it is found that legally his stand is correct. Reference in this connection may be made to the Division Bench decision in the case of Zonal Chief, Muslim Commercial Bank Ltd. v. Ubedullah, reported in 1987 P L C 462, where it was held as follows:- "

9. It musty be remembered that the writ jurisdiction of the High Court is an equitable jurisdiction. It can be invoked only in aid of justice and not to perpetuate injustice. Reference in this connection may be made to the case of Wali Muhammad v. Sakhi Muhammad reported in P L D 1974 S C 106, where it was held that the grant of relief in writs was entirely discretionary, the High Court would have certainly acted in aid of justice in refusing any relief to the respondents on the facts of the case even if because of any technical reason, the order of the Tribunal below was not strictly proved justifiable. It is well-settled principle that the High Court's writ jurisdiction can be invoked in aid of justice and not to help retention of ill-gotten gains.

8. The respondent No. 2 has retired from service and has also withdrawn from the Court the amount of 50% back benefits awarded to him and the retirement benefits to his satisfaction, therefore, even if this Court comes to the conclusion that the order of Labour Appellate Tribunal dated 25-11-1987 is not legally correct and is liable to be set aside, then also the petitioner shall not get any further benefit so far as the continuance in service of respondent No. 2 is concerned, because he already stands retired and relieved of his job. All that the petitioner will be able to get is the amount of 50% back benefits or retirement benefits from a person who has retired from service after putting in service of 32 years. The case would, therefore, be only of an academic interest to the petitioner and nothing more. Whereas it will be cruel to and cause unbearable hardship to the respondent No. 2 and will be against the dictates of good conscience. Under these circumstances, we do not propose to grant any relief to the petitioner and therefore, dismiss the petition.

2. Misc. No. 499/1991 is granted. The surety is discharged, the amount already paid to respondent No.2 may be retained by him, and the documents of the surety may be returned to him. H.B.T./P-202/K Petition dismissed