1996 PLP 498 (PLC)

3. We have seen the lower Court record. The Court diary shows that on 16‑5‑1995 the appellants and respondent's counsel were present and the matter was by consent adjourned to 7‑6‑1995. On 7‑6‑1995 the appellant/respondent alongwith his counsel were absent. The petitioner/respondent was present only. However, the learned trial Court has accepted the appeal on the said date through shore order with further orders that the detailed orders would be announced later on.

4. From the record we do not find any further proceedings which were taken by the trial Court in the said case. It, however, appears that the impugned order was passed on 25‑6‑1995 without informing to the other side. The appellants have argued that there is a 40 days' delay in filing of this appeal and the same should be condoned solely on the ground, as according to him, the said impugned order was without lawful authority and jurisdiction and is ab initio wrong, and therefore, not the legal order in the eye of law. For this purpose he? has relied upon a case reported in CLR 1978 p. '

99. He contends that the perusal of the said judgments show that if the order ab initio is wrong being a nullity in the eye of law the question of limitation for filing of appeal against such order would not arise and the appeal can be filed even beyond the period of limitation. We feel that the learned counsel have failed to establish and convince us as to how the impugned order is ab initio wrong or was void or nullity in the eye of law. The question of jurisdiction and meaning thereof was considered by their Lordships in a case reported in PLD 1974 SC page 139 where the meaning of jurisdiction has been well‑defined: "Jurisdiction‑‑Expression "without lawful authority and of no legal effect"‑‑An expression of art and refers to jurisdictional defects as distinguished from a mere erroneous decision whether on question of fact or even of law‑‑ High Court, in exercise of its writ jurisdiction, concerned only with question whether Court or Tribunal below had acted within its jurisdiction‑‑Tribunal having jurisdiction to decide a matter is competent to decide it rightly or wrongly and mere fact that decision is incorrect does not render the decision as 'without lawful authority'. "

5. On merits it is further contended by the learned counsel for the appellants that the respondent had reached the age of superannuation and therefore he had been retired, and therefore,, the N.I..R.C. had no jurisdiction to entertain the said case as the respondent had ceased to be worker, and therefore, the petition filed by him under section 22‑A(8)(g) was not maintainable. It is also argued that the impugned order is wrong as the appellant's case has not been considered at all and not a single plea raised by him was heard and reflected in the order. It is argued that no opportunity was afforded to the appellants before passing of the order. He has further argued that opportunity of necessary evidence should have been given to substantiate and to prove their contentions by leading evidence.

6. Mr. Abdul Hafeez Amjad, Advocate for the respondent strongly opposes the application for condonation of delay as no cogent reason has been shown nor the delay of 40 days has been explained for maintaining the application under section 65‑B of IRO, 1969 read with section 5 of Limitation Act, 1908. He states that a valuable right has accrued to the respondent by the lapse of sufficient time which cannot be taken lightly and he has further contended that no rejoinder has been filed to the counter‑affidavit filed by respondent, therefore, his assertions in the counter‑affidavit should be taken conclusive. He has now said that till today the respondent has been working in the appellant company and has not been paid his dues and says that order of the learned trial Court is very correct and does not merit to be set aside or interfered with. We have perused the record and heard the learned counsel at length. We are not convinced and satisfied by the impugned order passed by the learned trial Court as the same is not a speaking order and the various stands taken by the learned counsel have not been considered judiciously. The impugned order has been passed in a very slipshod manner and that not even a passing reference has been made to the averments made by the appellants in the present case. The purpose of establishing of Labour Courts and the N.I.R.C. basically was to impart substantial justice and maintain industrial peace and not go into the mere technicalities of the matter to keep equilibrium in the industrial sector.

7. In view of the fact that the impugned order has been passed by the trial Court hurriedly and without any application of judicial mind and even the factual position of both the sides has not been discussed. We consider it just and proper that the said order should not be allowed to stand in the way of justice. Under the circumstances we would like to condone the delay in filing of the appeal and impose a cost of Rs.10,000 by consent of the parties to be paid to the respondent within a period of three weeks and receipt thereof obtained from him.

8. On the point of jurisdictional issues we do not agree with the learned counsel for the appellant because no such point specifically was taken by the appellant before the trial Court that the N. I.R.C. had no jurisdiction. We are of the view that N.I.R.C. did have the jurisdiction as reported in PLD 1974 SC

139. The next point taken by the appellant is that the respondent has passed the age of 60 years. This issue is to be decided by the trial Court after recording of evidence of both sides.

9. The respondent has claimed that his dues are to the tune of Rs.23 lacs, or so while the appellant has stated that it is not correct and the claim is highly inflated.

10. The learned counsel for the appellant has very honestly stated that he has consulted the department concerned and they have stated that the due amount up to 4‑1‑1994 would be paid and that they are prepared to pay for the same within three weeks.

11. The said amount shall be paid to the respondent subject to all legal objections and the questions of further emoluments if any would be determined by the competent Court. This appeal is allowed and the impugned order is set aside and the case is remanded to the trial Court for fresh trial and hear the parties afresh and record their evidence and consider all the issues raised by the parties.

12. The case is remanded to the trial Court. The parties are directed to appear before the learned Member who has succeeded the learned Member who passed the impugned order. H.B.T./263/NIRC??????????????????????????????????????????????????????????????????? ??????????? Order accordingly.