P L D 2003 Supreme Court 952 (PLP)

MIAN MUHAMMAD AJMAL, J.

Leave to appeal is sought against the validity of the judgment of the Lahore High Court, Rawalpindi Bench, Rawalpindi dated 1-10-2001, whereby Writ Petition No.1720 of 1999 of respondent was allowed, the order impugned therein were declared to be without lawful authority and of no legal effect and the case was remanded to the Labour Court for re-writing the judgment after taking into account all the evidence on record.

2. Brief facts are that the respondent was employed as Houseman in the petitioner's Hotel. Vide show-cause notice/charge-sheet dated 11-6-1990, he was charged for holding an unlawful assembly of 40/50 employees and using abusive language, damaging the properties of the hotel arid physically attacking the Assistant Controller, Finance alongwith others. He did not reply the charge-sheet. Notices of inquiry proceedings were issued to him but he remained absent, as such, he was proceeded against ex parte. The Inquiry Officer after completion of the inquiry, observed in his report that the respondent not only indulged in forcible entry into other departments, but also destroyed food, crockery, furniture of the hotel raised slogans and used abusive language, attacked the Assistant Controller and also instigated others to do so and thus found him guilty of the charges as detailed in the charge sheet. Consequently, he was dismissed from service vide order dated 12-7-1990. Feeling aggrieved by the said order, he sent a grievance notice or. 10-10-1990 to the General Manager of the Hotel. Thereafter he filed a petition under section 25-A of the Industrial Relations Ordinance, 1969 before Punjab Labour Court No.6, Rawalpindi on 3-12-1990, wherein he alleged that neither any charge-sheet was served upon him, nor inquiry was held or defence opportunity was provided to him and he was not personally heard. The Labour Court recorded the evidence of the parties and on assessment thereof dismissed the petition vide judgment dated 11-5-1994 observing that the respondent himself while appearing as P.W.1 stated that he had received the charge-sheet, submitted its reply which is not available on record and also admitted that he had received inquiry notice but did not join inquiry proceedings.

3. Feeling aggrieved by the said judgment, the respondent filed appeal which was dismissed by the Punjab Labour Appellate Tribunal, Lahore vide its judgment dated 25-11-1998. He then filed Writ Petition No. 1720 of 1999 before the Lahore High Court, Rawalpindi Bench, which was allowed by a learned Judge in Chambers of the High Court vide his judgment dated 1-10-2001, impugned herein.

4. We have heard the learned counsel for the parties and have gone through the record of the case. The record shows that the respondent was proceeded against for misconduct and proper inquiry was held against him wherein he was found guilty of the charges and in consequence thereof he was dismissed from service. He challenged the dismissal order before the Punjab Labour Court through a petition filed under section 25-A of the Industrial Relations Ordinance, 1969 which on proper appreciation of the evidence on record, was dismissed. On appeal, the Punjab Labour Appellate Tribunal, Lahore confirmed the order of the Labour Court and dismissed respondent's appeal. The learned Judge in Chambers of the High Court in writ jurisdiction set aside the said orders declaring the same to be without lawful authority and of no legal effect and remanded the case to the Labour Court for re-writing the judgment after taking into consideration all the evidence on record.

5. We have gone through the detailed and well-reasoned judgment or the Labour Court and find it to be exhaustive and well-founded, therefore, we do not agree with the conclusion drawn by the learned High Court in remanding the case of the Labour Court for re-writing the judgment. It may be noted that the High Court in writ jurisdiction cannot act as Appellate Authority and cannot substitute its findings with the findings of the fact arrived at by the competent Court/Tribunal constituted under the special law who have exclusive jurisdiction to adjudicate and decide the matter. The High Court while exercising its Constitutional jurisdiction has to see whether the judgment/order impugned in Constitutional petition is with or without jurisdiction and if it is found to be without jurisdiction, only then it can interfere with it. In the present case the petitioner himself had invoked the jurisdiction of the Labour Court and the Labour Appellate' Tribunal. therefore, he was estopped to challenge the jurisdiction of the said Court/Tribunal in Constitutional proceedings which aspect was not taken into consideration by the learned Judge in Chambers of the High Court. The respondent in his deposition before the Labour Court has unequivocally admitted that he came to know about his dismissal from service after about a week but strangely enough grievance notice was sent on 10-10-1990 i.e., after about three months, which under the law was time-barred he also admitted that he received the charge-sheet and the inquiry notices but did not join the inquiry proceedings as such his non-participation in the inquiry proceedings was intentional and thus he cannot draw any premium for his own fault of deliberate absence from the inquiry proceedings.

6. In view of the aforesaid admissions of the respondent which were duly considered by the Labour Court and the Labour Appellate Tribunal alongwith the other evidence on record, the conclusions drawn by them were proper and based on correct appreciation of evidence and as such the impugned judgment is not sustainable. Consequently, we convert this petition into an appeal, allow the same, set aside the impugned judgment of the High Court and restore that of the Punjab Labour Appellate Tribunal anti the Labour Court with no order as to cost. M.B.A./G-182/S Appeal allowed.