1982 PLP 539 (PLC)

Ch. Rasheed Ahmad for Respondents. Date of hearing; 13th October, 1991 AJMAL MIAN, J.‑In this petition, the petitioner has challenged the order dated 17th December, 1980 passed ‑ by respondent No. 1 under section 6 of the Pakistan Essential Services (Maintenance) Act, 1952, re‑instating respondent No. 2 in service after setting aside the order dated 4th March, 1980 for terminating respondent No. 2's services. In support of the above petition, the petitioner has inter alia raised the following ground in para. (m) of the petition :‑ "(m) In any case in view of a number of decisions of the High Court including the Full Bench decision of the Hon'ble Court in H. C. A. No. 41 of 1976, decided on 3rd June, 1980, the Respondent No. I has no jurisdiction in the matter." 2. (a) It has been candidly conceded by Mr. Rashid Ahmed, learned counsel for respondent No. 2, that in view of the above Full Bench decision of this Court, namely, Pakistan Burmah Shell v. Central Labour Commission and others (P L D 1981 Kar. 33) and the case of P. E. M. C. v. N.

1. R. C. (N L R 1981 Lab. 200), respondent No. 1 (i. e. the Chairman, National Industrial Relations Commission) has no power to adjudicate upon an individual grievance. However, his contention is that since the petitioner had not raised this objection before respondent No. 1, they, are estopped from raising the same before this Court. In support of his above contention, he has referred to the case of Ghulam Mohiuddin v. Chief Settlement Commis sioner (Pakistan) Lahore and another (P L D 1964 S C 829), the case of Chairman Water and Power Development Authority, Lahore and 3 others v. Punjab Labour Court No. 111 Lyallpur and another (1976 P L C 740), and the case of Mst. Zubeda Bai v. II Rent Controller, Karachi and another (P L D 1981 Kar: 82). (i) Reverting to the case reported in P L D 1964 S C 229, it may be observed that in the above case the question before the Supreme Court was, as to whether the appellant was entitled to raise the question of jurisdiction before the Supreme Court, which objection was not raised by him before the Chief Settlement Commissioner as well as in the writ petition filed in the High Court. In the background of the above facts, the following observation was made by the Supreme Court "In these circumstances, it cannot be said that he was a mere passive spectator having no power to prevent the commission of the illegality. If he had succeeded in the review getting the entire house transferred to himself he would, we feel certain, have made no grievance on account of that illegality. The principle upon which the writ is refused in such cases is not that jurisdiction has been conferred on the Tribunal concerned by waiver and acquies cence but that even though the impugned order is without jurisdic tion the person' seeking to have it quashed should not be granted that discretionary relief as he had stood by and allowed the Tribunal to usurp jurisdiction which it did not possess knowing that the Tribunal concerned was committing such an illegality in consequence of something done by that person himself." It may be noticed that in the above case the Supreme Court declined to allow the writ not for the reason that by participation by a party before a Tribunal without jurisdiction, the jurisdiction is conferred on such Tribunal, but for the reason that the party did not raise the objection before the Tribunal knowing fully that it had no jurisdiction. (ii) Whereas, in the above Lahore case reported in 1976, P L C 740, it was held by a 'Single Judge that as the objection to the jurisdiction was neither raised before the lower Court nor specifically taken in a writ petition, the petitioner by his conduct was estopped from raising the same at the hearing of the petition. (iii) As regards the case reported in P L U 1981 Kar. 82, it may be observed that a learned Single Judge of this Court held that as the peti tioner did not raise any objection before the Rent Controller to the effect the it he was not empowered to order the restoration of the possession of the premises in dispute under section 151; C.P.C., he would not be allowed to raise the same in the petition. (b) In our view, the above‑cited cases are distinguishable inasmuch as it is an admitted position that prior to the above Full Bench judgment of Karachi, there were conflicting views as to the power of respondent No. 1 obtaining not only in this Court, but also in the Lahore High Court and for the case was referred to the Full Bench. Since the petitioner in the present petition has specifically raised the plea of jurisdiction, in our view, it will not be just and proper to hold that the petitioner is estopped by its conduct from raising the above plea, for the reason that the same was not raised before respondent No.

1. It may be pertinent to observe that it was also urged by Mr. Rashid learned counsel for respondent No. 2, that as the above judgment wash given by the Full Bench on 3rd June, 1980, it is to be presumed that the petitioner had the knowledge of the above legal position at the time o filing of the petition by respondent No. 2 before respondent No. 1 o 10th October, 1980. In our view, this contention is also devoid of any force inasmuch as it is an admitted position that the above Full Bench case has been published( reported first time in P L D 1982 Kar. 33.

3. Since the above Full Bench's majority view as well as the D. B. judgment referred to hereinabove in para 2. (a) are binding on us, we have to hold that the impugned order passed by respondent No. 1 is without e lawful authority and no legal consequences. In the circumstances of the case, there will be no order as to costs. Petition accepted.