1987 PLP 420 (PLC)

7. It was also contended that the department was not definite about the misappropriation because in the inquiry notice the word "suspected embezzlement" was used which indicated that there was no embezzlement by the petitioner.

8. It was yet contended that the petition was dismissed on the basis of reply of the charge‑sheet not on the basis of report of the Inquiry Officer. The dismissal order was also assailed by the petitioner on the ground that one month's pay as provided by rule was not paid to him, after suspension order. Besides the above mentioned points, our attention was drawn to the directives of the Minister, dated 7‑1‑1975 and the judgment of Federal Shariat Court as reported in P L D 1985 page 325 observing that wages should be paid without delay. On the other hand Mr. Shakeel Ahmed, the learned counsel for the respondent vehemently urged that this Court shall not exercise his jurisdiction in favour of the petitioner who has been guilty of misconduct and who has used filthy language against the officials and has been creating fuss for the department through different letters which are part of the record. He also strenuously urged that there being concurrence in the findings of two Courts below, the writ is not competent. It was next contended that after issuance of Notification dated 15‑11‑1983 (page 175/176 of the lower Court file), the application filed by the petitioner under I.R.O. was not competent because he is declared to fall within the category of "employer". The learned counsel further submitted that the duties being performed by the petitioner were of supervisory nature, the detail of which was produced before the Labour Court, hence according to learned counsel, it was rightly held by the Labour, Appellate Tribunal that the petitioner was not a 'worker' but an "employer". Lastly, it was contended with considerable vehemence that the appeal filed by the petitioner before the Labour Appellate Tribunal was barred by time, therefore, the petitioner has got no right to challenge the said order in a Constitutional Petition. In order to appreciate respective contention raised by the parties, it may be observed that this is second set of litigation culminating in a Constitutional petition before this Court. In Constitutional Petition No.57/85, after setting aside the previous proceedings this Court ordered to remand the case to the learned Labour Court‑I. Quetta with the direction to hear the arguments afresh and on the basis of material available before it, to decide the application in accordance with law. Despite clear orders made to decide the application on merits on the basis of material available, the learned Labour Court, Quetta dismissed the application mainly on the ground that the same was not properly presented because according to the learned Labour Court the application was submitted by a person of 'unsound mind' and thus he being incapable of protecting his interests, the application was not competent. Such B observations were made by the learned Labour Court without referring the petitioner to the Medical Board or without adopting proper legal procedure as laid down in C.P.C. Be that as it may, the learned Labour Court did not dilate upon the merits of the case as directed by this Court. We have also noted that the conduct of the petitioner is not commendable and he has been harsh, contumacious, even using filthy language, as revealed from the record, but at the same time we feel that the decision of the cases should only be made on merits and according to law and should not be prejudiced by the unbecoming conduct of a litigant. Instead of making a note of the untowards attitude, if any, of the petitioner and taking action according to law if his conduct was contemptuous, and then deciding the case on merits, the learned Labour Court declared the petitioner as a person of 'unsound mind', which fact not only tantamounts to violation of the order of this Court but the same cannot be termed as an order passed on legal consideration. However, the learned Labour Court failed to decide the application on merits. Of course, there is an oblique reference of Notification in the order of Labour Court and the argument that the petitioner was not a "worker" but from the perusal of the said order it can be easily inferred that the Court has not finally decided that issue. Therefore, from the perusal of the order of the Labour Court, it cannot be safely concluded that the Labour Court held that petitioner was an "employer" as concluded by the learned Labour Appellate Tribunal. The learned Labour Appellate Tribunal has mainly discussed the causes of delay of filing of appeal and has concluded that the appeal was barred by time. There is no dispute that the appellant was present on 11‑5‑1986 but did not attend the Court on 12‑5‑1986. The explanation given by him was that he was asked to leave the Court on 11‑5‑1986 with further observation by the Court that he would be seen by him next day. It is worth to point out that petitioner had already moved an application complaining about the conduct of the Presiding Officer of the Labour Court to one of us (Acting Chief Justice). He came to know about the decision of the case when he received a letter dated 3‑6‑1986 addressed to him by the Registrar of the High Court which letter was received by the petitioner on 12‑6‑1986. The appeal was filed on 29‑6‑1986, because the copies were obtained by the petitioner on 26‑6‑1986. Furthermore, the petitioner took the plea that since the order of the Labour Court was void order, therefore, no limitation could run against the same. The Labour Court is a Court of special jurisdiction, having no power to declare a person to be of "unsound mind" or "insane" or a "lunatic". Particularly so, when the petitioner was not referred to a Medical Board and no legal procedure was adopted to declare him as a man of 'unsound mind'. We, therefore, find quite some force in the contention of the petitioner that the order of the Labour Court was an order passed without jurisdiction and thus void, against which no limitation runs. Reliance may be placed on P L D 1974 Lah. 434, the relevant observations thus read: ‑ .If on the basis of a void order subsequent orders have been passed either by the same authority or by other authorities, the whole series of such orders, together with the superstructure of rights and obligations built upon them, must unless some statute on principle of, law recognizing as legal the changed position of the parties is in operation, fall to the ground because such orders have as little foundation as the void order on which they are founded. In this view of the matter, a void order will have no value whatever and is simply to be ignored and consequently no question of limitation will arise against such an order. 1986 C L C 1241, relevant observations being on page 1249 reading as under: ‑ ..therefore the same is deemed to be void and nullity in the eyes of law. In this view of the matter whole superstructure and edifice constructed upon such void order would automatically fall alongwith the same and accordingly bar of limitation would not apply. Thus, delay of about 24 days in filing of appeal before the Majlis‑e‑Shoora will be of no legal consequence. In the peculiar circumstances contention of learned counsel for the respondent that the petitioner was supposed to explain each day 's delay is not relevant. 3. 1986 S C M R 962 and the relevant observation being on page 964 are reproduced: ‑ ". ..if an impugned order has been passed without hearing and notice to the parties whose presence was otherwise necessary before the authorities concerned, then order will be nullity in the eye of law and no question of limitation would arise." This leads us to the second controversy whether the petitioner is a "workman" or he is an "employer". This is a pertinent question which could determine the very jurisdiction of the Labour Court and thus the virtue of the entire proceedings from the start to the finish. In this respect we have examined the record and we have noticed that the proceedings against the petitioner were initiated under the Railway Servants (Efficiency and Discipline) Rules 1975 and not under Efficiency and Discipline Rules, 1973. This position was even conceded by counsel of the respondent‑department. The marked distinction between the abovesaid rules being that the former rules apply in case of a "workman" and the latter in case of an "employer. The respondent‑department, by initiating proceedings against the petitioner under 1975 rules was full well‑aware, or in the natural course of event it can be presumed that it was well within its knowledge, that by doing so it is treating the petitioner implicitly as a "workman" and not an" employer". Thereafter, when the petitioner was dismissed from service, he filed a departmental appeal with no response by the respondent department, and served a grievance notice obviously under I.R.O. but the same was not replied to. The department could easily take the plea that grievance notice could not be entertained because the petitioner being an "employer" was not competent to serve such a notice or at least it could be said that the department was not obliged to submit a detailed reply to grievance notice, since the same was irrelevant in so far as dismissal of the petitioner was concerned. But no reply was given at all. The petitioner then filed an application under section 25‑A of the I. R. O. In rejoinder, the department could again raise the plea that the petitioner is not a "workman" or that he is an "employer" but again no specific plea to that effect was taken. Instead, the parties submitted to the jurisdiction of Labour Court. It seems that the department became conscious of this fact only after when a Notification No. SRO‑No‑E 83‑NI/1, dated 15‑11‑1983 was issued declaring Assistant Inspectors and Inspectors as "employer". Only then the department produced a document depicting the nature of the duties of the petitioner and also the fact that the salary of the petitioner was more than Rs.800 per month. Even then no request was made to the Labour Court to make it an issue nor for that matter the jurisdiction of Labour Court was challenged. So much so that in cross‑examination no specific question was suggested to the petitioner that he is not a "workman". The contention of the petitioner that he was put to a startle or that he was taken by surprise seems justified. Adverting to the Notification, mentioned hereinbefore, and its effect to the proceedings of this case, suffice to say that the issuance or publication of the Notification is much later than the dismissal of the petitioner and initiating of proceedings before the Labour Court. The Notification was published on 15‑11‑1983 whereas the petitioner was dismissed from service on 15‑5‑1983. The application under section 25‑A I.R.O. was moved on 12‑9‑1983. It is now almost a settled principle of law that Notification cannot be given any retrospective effect. In such circumstances of the case, we feel no hesitation to hold that the department is now estopped to take the plea that the petitioner is not a "workman" but an "employer", more so when the litigation has already taken years and the parties are before us in the second set of litigation. The plea that the petitioner was not a "workman" should have been taken at the earliest. The cumulative effect of I.R.O. is that such disputes may be adjudicated upon within shortest possible period. Section 25‑A (4) of I.R.O. prescribes only 20 days for final disposal of such disputes. Prescribing such a short period of time, no two opinions can be forged but that the legislature with all its intents and purposes wanted prompt adjudication and speedy disposal of case under I.R.O. The purpose behind such an intention of legislature is obvious; i.e. to discourage prolonged litigation between "workers" and "employers" thus to guarantee a smooth functioning of .the economic process in order that production is not hampered and that efficiency of departments is not adversely affected. We are therefore, inclined to hold that the question whether the petitioner does or does not fall within category of an "employer" could not have been allowed to be raised at such a belated stage. The last contention raised by the petitioner is regarding the manner in which charge‑sheet was served and inquiry conducted against him. Factually the petitioner laid much stress on this point with the help of various authorities. He assailed the procedure in which the inquiry was conducted on various grounds. To summarise the contention of the petitioner, he submitted, firstly, that his defence witnesses were not summoned. In this respect he relied on 1981 P L C

551. It was further contended that the charge sheet should have been served within one month after the alleged misconduct which according to the petitioner could not validly be served after expiry of one month. Reliance was placed on P L C 1983 Kar. 291 and P L J 1979 (Tr. C.) Lah.

100. The petitioner strenuously urged before us that the inquiry was not proper and legal inasmuch as according to section 15 (4) of the West Pakistan Standing Order Ordinance an inquiry must be held by the employer with one month of the date of misconduct. The said provision is hereby reproduced for better appreciation: ‑ "15(4).‑‑No order of dismissal shall be made unless the workman concerned is informed in writing of the alleged misconduct within one month of the date of such misconduct or of the date on which the alleged misconduct comes to the notice of the employer and is given an opportunity to explain the circumstances alleged against him. The approval of the employer shall be required in every case of dismissal and, the employer shall institute independent inquiries before dealing with charges against a workman. The petitioner therefore strongly contended that any inquiry started after one month of misconduct becomes illegal. Reliance was placed on 1977 P L C 122, 1980 P L C 1007. It was further contended by the petitioner that the statements of allegations and evidence recorded by the Inquiry Officer were not supplied to him, thus causing prejudice to him which facts are sufficient to render the entire proceedings illegal. Reliance was placed on 1975 PLC 282 wherein it was observed that on the basis of domestic inquiry the management must supply to accused worker the following documents: ‑ (1)Copies of statements of all witnesses whose evidence is recorded during the course of inquiry. (2)The accused worker when served with show‑cause notice must be furnished with copy of Inquiry Officer's report. It was the case of the petitioner that since the record was not supplied to him, hence the proceedings were illegal. The department however, denies taking of record by Muhammad Siddique. It was yet contended that Rules 5 and 6 of Railway Servants (Efficiency and Discipline) Rules, 1975 were not adhered to and not complied with by the department during the inquiry. So much so that the officer conducting inquiry being lower in rank, could not be appointed as Authorised Officer It was also argued that the inquiry so 4 was without lawful authority, because no show‑cause notice was served upon him according to rules. Last, but not the least, it was contended that the entire back benefits may be accorded to the petitioner, although the amount which the petitioner now claims is not only whimsical but ridiculous. However, in case the application is allowed, the Labour Court may consider the question of awarding back benefits to the petitioner according to relevant rules and law. The petitioner strongly argued that since he is out of job for several years and therefore remanding of the case to the Presiding Officer, Labour Court amount to further keeping him out of job for another couple of years; more so when this is the second set of litigation reaching this Court in its constitutional jurisdiction. He therefore, submitted that this Court may decide the case on merits. He relied on the following authorities: 1. 1985 S C M R 1548. The case of Mst. Nemat Bibi v. Pathana wherein it was observed on page 1584 as under: ‑ There is force in the first submission. In a recent judgment delivered by this Court, namely Mst. Sardar Begum and others v. Muhammad Saleem and others P L D 1984 SC 62, we have held that in cases which required summary disposal‑‑and the present was clearly one such case‑‑the High Court instead of remanding the case to the District Judge should have finally decided the same as to save the time of the parties. This is the course which should also have been followed in this case. 2. 1986 C L C 1859. The case of Rajasab Khan v. Mahmood Hussain and another wherein it was observed on page 1863, as under: ‑ It is well‑established statement of law that a litigant cannot be made to suffer for act or neglect of the Court or its officials wrong done to a party by act of the Court cannot be allowed to stand. We have, however, made it abundantly clear to the petitioner that question of facts which necessitate further investigation cannot be determined by this Court in exercise of its extraordinary writ jurisdiction. The authorities referred to hereinabove on this point, are of no help to the petitioner because we are not sitting as Court of appeal to evaluate the facts and to draw conclusions in order to redress the grievances of the petitioner. It may be pointed out that the fact of taking away of record by Mr. Siddique is a disputed question. Similarly the points raised regarding the procedure of inquiry and serving of the charge‑sheet etc. need further probe. However, in view of the discussion hereinabove we allow the petition and declare the orders passed by the Labour Court‑I, Quetta dated 12‑5‑1985 and order of the learned Labour Appellate Tribunal dated 26‑7‑1986 as having been passed without lawful authority and thus are of no legal effect. But we remand the case to the Labour Court‑Ill, Quetta to dispose of the application on the basis of material available, according to law within a period of two months after receipt of record. The reason for not sending the case to the Labour Court‑1, Quetta is that despite the order made in C.P. No. 57 of 1985 directing the Labour Court‑I, Quetta to dispose of the application on the basis of material available on record, the Labour Court‑I, Quetta did not comply with the said direction. We therefore, observe that it will not be in the interest of justice to remand the case to the Labour Court‑I, Quetta. However, in the circumstances of the case there will be no orders as to costs. A. A. /259/Q Petition allowed.