P L D 1977 Lahore 368 (PLP)

4. The petitioner has now come up to the High Court and has challenged the validity of the orders dated 24-5-1975 and the proceedings held thereafter being without jurisdiction and of no legal effect.

5. The main question to be examined in this case is : as to whether the learned Chairman of the Commission was competent to recall or review his order dated 24-4-1975 whereby, he issued notices to respondents 2 and 3 after having recorded the preliminary statement of the petitioner being complainant before him. Regulation No. 20 of the National Industrial Relations Commission (Procedure and Functions) Regulations, 1973, provides that the Commission on receipt of a complaint of an offence of which it is authorised to take cognizance may, if it thinks fit for reasons to be recorded in writing, postpone the issue of process for compelling the attendance of the person complained against, and either inquire into the case itself or direct an inquiry or (investigation to be made by a Labour Court, a Junior Labour Court, a. Magistrate, a Police Officer, or such other person as it thinks fit, for the purpose of ascertaining the truth or falsehood of the complaint. Regulation No. 21 provides that if in the opinion of the Commission there is sufficient ground for proceeding then a summon or warrant, as the circumstances of the case may require, may be issued to the accused for his appearance before the Commission. Regulation No. 24 provides that when the accused appears a formal charge shall be framed relating to the offence of which he is accused and he shall be asked whether he admits that be has committed the offence for which he is charged. If he admits the charge then his admission will be recorded ; and if he shows insufficient cause why he should not be convicted, the Commission may convict him accordingly, according to the provision of regulation No.

25. In case of his denial of the charge the Commission shall hear the complaint and take all such evidence as may be produced by him and will also hear the accused person and will take all such evidence to be produced by him. Regulation No. 27 provides that if the Commission upon taking evidence produced by the parties finds the accused not guilty it shall record an order of acquittal, otherwise would sentence him according to law. Regulation No. 31 provides that subject to the provisions of Chapter VI, with regard to trial of offences, Code of Criminal Procedure would be applicable to the proceedings in relation to trial of offences before the Commission. It means that the provisions as contained in sections 200 to 203 and 204 and 205 of Chapters XVI and XVII, particularly, and other relevant provisions of the Code with regard to framing of charge and discharging, punishing or dismissing the complaint after recording evidence would be applicable to the proceedings before the Commission in regard to trial of offences.

6. In the present case, as mentioned above, the learned Chairman after having recorded the preliminary evidence of the petitioner on 24-4-1975, when the petition was filed, issued notices to respondents 2 and 3 to appear on 27-5-1975. This shows that after issue of notices to the accused persons the Commission was obliged to act in accordance with the provisions as contained in regulations 24 to 27, as mentioned above. There is no such provision in the regulations empowering the Commission to recall or rescind its previous orders, particularly an order passed under regulation No. 21, issuing process to the accused persons after recording the statement of the complainant. Under the law the Commission can frame charge against the accused after issue of process and if he admits the charge then be can be convicted accordingly, and otherwise it is obliged to record evidence of the complainant as well as of the accused and decide the matter thereafter in accordance with law. No such procedure has been followed in the present case by the learned Chairman, but after having complied with the provision as contained in regulation No. 21 in issuing process to the accused persons, he rather recalled his said order. I am of the view that such order is obviously without jurisdiction, which could not be passed by the learned Chairman and the proceedings held thereafter, based on the said order, also cannot be maintained.

7. It has been argued that since alternate remedy of appeal under section 22(d) of the Industrial Relations Ordinance, 1969, is available to the petitioner against the impugned order passed by the learned Chairman, the writ petition would not be maintainable in law. The basic question to be examined in this behalf is as to whether the learned Chairman lacks jurisdiction passing the impugned order. If he does not have any jurisdiction to pass the same then position may be somewhat different. The general rule is that it is wrong on principle to entertain -petitions for writs except in very exceptional circumstances when the law provides a remedy of appeal to another Tribunal fully competent to award the requisite relief. As an exception in cases of absence or excess of jurisdiction or where the impugned order suffers from illegality on the face of the record a certiorari may be granted even though the right of statutory appeal has not been availed of. In most cases the Court would act on general common law rule that, writ of certiorari will not lie when there is another adequate remedy of appeal, writ of error or otherwise, where an inferior Court has jurisdiction but in a proper case where the question o ,jurisdiction is raised, the extraordinary jurisdiction of the High Court ma be successfully invoked by way of certiorari. Reliance in this behalf cannot be placed upon Messrs S. A. Haroon and others v. The Collector of Customs, Karachi and the Federation of Pakistan P L D 1959 S C (Pak.)

177. In the said case question of jurisdiction was raised to the effect that the Collector of Customs had no .authority to seize any particular goods unless there was prima fade evidence to suggest, at least, that the goods were covered by a notification imposing any restriction or ban on its import, and the question of interpretation of the law involved was of considerable importance and might frequently arise. The respondents in that case before the Supreme Court had objected to the maintainability of the writ petition preferred before the High Court on the ground that since alternate remedy by way of appeal was available, therefore, writ should have been dismissed only on that ground. The Supreme Court refused to give effect to such technical objection in view of the question with regard to jurisdiction having been raised.

8. In Sui Gas Transmission Company Ltd. v. The Islamic Republic of Pakistan and others P L D 1959 S C (Pak.) 66 it was held that an industrial Tribunal is not to act as benevolent despot or to clutch jurisdiction where it does not exist. It is -true that a tribunal in dealing with an industrial dispute is not a Court in the sense that it is strictly bound by the rules of evidence, but that does not mean that it can act on mere conjecture and its own peculiar ideas of social justice. It is obligatory on its part to act within the jurisdiction and according to the law applicable to the matter in dispute. As already stated, in the present case the order dated 24-5-1975 is without jurisdiction and the learned Chairman has not been able to act within the ambit of law applicable to the matter in dispute. The view taken in P L D 1959 S C (Pak.) 177 has been confirmed in Nawabw zada Muhammad Amir Khan v. The Controller of Estate Duty PLD1961SC

119. It has been held that the rule that the Court will not entertain a writ petition when other appropriate remedy is yet available is not a rule of late barring the jurisdiction of the Court. It is a rule by which the Court regulates exercise of its own discretion. One of the well recognized exceptions to the general rule is a case where an order is attacked on the ground that it was wholly without authority. It was held that where the attack was on the very jurisdiction of the Controller of the Estate Duty to proceed with the .assessment of the Estate duty on account of section 74-A of the Estate Duty Act and appeal was already pending having been filed by the petitioner, the appeal as such would not stand in the way of exercise of writ jurisdiction by the High Court. It has been further observed that where an order is challenged as wholly without jurisdiction, a petition for writ appears to be a more appropriate remedy.

9. In Murree Brewery Co. Ltd. v. Pakistan P L D 1972 S C 279 writ petition k as filed by the appellant before the Supreme Court challenging the very jurisdiction of the Capital Development Authority acting under the Capital Development Authority Ordinance, 1960, to make the impugned acquisition under the Ordinance. It was contended on behalf of the respondents that writ petition was not maintainable inasmuch as the petitioner had not exhausted his remedy of appeal under section 36 of the Ordinance. it was held that since the petitioner had challenged the very jurisdiction of the Capital Development Authority in making the impugned acquisition, and if succeeded in ,establishing that such acquisition was ultra vires of the Ordinance, appeal under the relevant provision of law would be an exercise in futility.

10. It has been held in Muhammad Ayub Khan v. The Custodian of :Evacuee Property and others P L D 1963 Kar. 55 that defective exercise of jurisdiction amounts to lack of jurisdiction in the matter of issue of certiorari. It has been observed that expression "jurisdiction" may be accepted include, "assumption and exercise of jurisdiction", because no authority can be said to have exercised its jurisdiction if it was prevented from knowing the true facts if it took for a material fact what was not in law that fact, if it proceeded to act in grave and obvious disregard of a material provision of law ; if it exercised a discretion without the existence of the situation in which it could be exercised ; if it violated the principle of natural justice when the law had not permitted it to do so, and if it gave reasons for its conclusion which could not, in those circumstances, rationally lead to them. According to the learned Judge this was not an exhaustive list of those incidents in which defective exercise of jurisdiction could be successfully pleaded, but it was sufficiently elaborate. In that case, after having gone through the matter on merits as well as on law, it was held that the Custodian of Evacuee Property had no jurisdiction to pass the impugned order and as such the writ of certiorari Was competent.

11. According to para 239 of Halsbury's Laws of England, Third Edition, Volume II, there is no rule in regard to certiorari as there is with mandamus ; that it will lie only where there is no other equally effective remedy and provided the requisite grounds exist ; certiorari will lie although a right of appeal has been conferred by the Statute.

12. The above discussion would show that in spite of the fact that right of appeal against the impugned order is available to the petitioner under section 22(d) of the Industrial Relations Ordinance, 1969, the writ petition would be competent as the Chairman lacked jurisdiction to pass the impugned order. The filing of appeal before the appropriate authority as set up under the relevant provision of law would be an exercise in futility. Further, the learned Chairman had no material, whatsoever, before him in passing the impugned order on the ground that since respondent No. 2 called the petitioner at Rawalpindi and asked him to give up his activities as, member of the PFUJ and since the petitioner's statement recorded on 24-4-1975 was silent with regard to that point, therefore, the petitioner was- obliged to produce evidence to substantiate his allegation. I have gone: through the entire file maintained by the learned Chairman in order to see as to whether any such point was actually involved at the time when he passed the impugned order. There is nothing on record to show that the petitioner ever alleged in his complaint, filed before the Commission, or his statement recorded by the learned Chairman that he was called by respondent No. 2 at Rawalpindi and was asked to give up his activities as member of the PFUJ. Probably this impression he got from the written statement of the respondent or from the reply which was filed to an application preferred by the petitioner. That, however, did not mean that such allegation was ever levelled by the petitioner and unless it was proved to be so, there was no question of directing the petitioner to prove such matter. If it was so alleged by the respondent, then onus under the law lay upon him to prove such allegation in order to defeat the claim of the petitioner being mala fide. In this view of the matter the learned Chairman was not competent to rely upon any such material, which was otherwise not available on the file, and pass any order on the basis thereof. Any such order, under the law, cannot be maintained. Such matter was quite extraneous so far as the averments of the petitioner before the learned' Chairman were concerned. Moreover, even if any such material existed on the file, after having issued process to the respondents on the basis of preliminary evidence produced by the petitioner, the learned Chairman was, not competent to recall the process on the ground that since the point in question,, as referred to above, had not been proved in the preliminary evidence, therefore, the process issued as such was liable to be re-called.. Such point, if any, could be thrashed out on merits.

13. The learned counsel for the respondents has relied upon regulation No. 34 of the Regulations of 1973, in order to justify the impugned order passed by the learned Chairman. The said regulation provides that in the. interest of expeditious disposal of the business before the Commission, it may direct an examination, or cross-examination or re-examination to be cut. short or dispensed with. I am afraid, this contention has no force, as the said regulation can be attracted only at the time a party is being examined, cross-examined or re-examined and in order to expedite the disposal of the matter pending before . the Commission it may not permit irrelevant questions to be asked in examination, cross-examination or re-examination. That provision, however,! does not empower the Chairman to recall the process already issued on the basis of the preliminary evidence.

14. For the aforesaid reasons the impugned order dated 24-5-1975, Annex. `E', passed by the learned Chairman is hereby set aside as without' jurisdiction and of no legal effect. Since the subsequent orders were also based upon the said illegal order, therefore, they also cannot be maintained and are hereby set aside. The writ petition is accepted without any order, as to costs and the case is remitted to respondent No. 1 to be tried afresh, in accordance with law in the light of the observations made above from the stage of the order dated 7-5-1975, Annex. E . S. Q. Petition accepted