2001 PLP 492 (PLC)

ANWAR ZAHEER JAMALI, J.‑‑‑This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 calls into question the legality of the order dated I3‑12‑1999 passed by the respondent No.2, whereby he suspended operation of the order dated 30‑11‑1999 passed by the Sindh Labour Court No.V, at Karachi, ordering reinstatement of the applicant in service with full back benefits. Relevant facts of the case may be summed up as under;

2. The petitioner was a workman in the establishment of respondent No. 1, wherefrom he was removed from his employment. Against such action of respondent No. 1 the petitioner served a grievance notice under section 25‑A of Industrial Relations Ordinance, 1969 to them on 5‑5‑1997 which was not replied by the respondent No.

1. Thereafter, the petitioner filed an application under section 25‑A of Industrial Relation Ordinance, 1969 before the Sindh Labour Court No.V at Karachi, agitating therein that, his removal/dismissal from service by respondent No. l was illegal and mala fide.

3. Respondent No. l contested the matter before the Labour Court, however, after usual proceedings application of the petitioner was allowed and consequently he was ordered to be reinstated in service with full back benefits vide order dated 30‑11‑1999.

4. Against the above order passed by the Sindh Labour Court No.V, at Karachi respondent No. l filed an appeal under section 37(3) of I.R.O. 1969 before respondent No.2 which was accompanied with an application for stay of the impugned order dated 30‑11‑1999. The Sindh Labour Appellate Tribunal vide its order dated 13‑2‑1999 admitted the appeal of respondent No. l to :regular hearing and also suspended the operation of the impugned order subject to furnishing of bank guarantee by respondent No. l within one month and further directions to continue depositing monthly future salary.

6. In the instant petition this order has been impugned by the petitioner. The main ground urged is that according to the proviso 10 section 38(8) of I.R.O., 1969 the Sindh Appellate Tribunal was not competent to suspend the operation of the impugned order for a period of more than 20 days which period has already expired and thus the said order is liable to be set aside.

7. We have heard Mr. M. Shafiq Qureshi, Advocate for the petitioner and Mr. Mahmood Abdul Ghani, Advocate for the respondent No. 1.

8. Mr. Shafiq Qureshi during the course of his arguments read before us section 38(8) of I.R.O. and contended that in view of clear and unambiguous language of this provision of law the order dated 13‑12‑1999 is patently illegal and is liable to be set‑aside as such. He placed his reliance or. a recent judgment of this Court dated 16‑3‑2000 passed in C.P. No.87 of 2000, wherein a Division Bench of this Court held as under. "The proviso to section 38(8) of the Ordinance provides that a stay order passed by the Appellate Tribunal shall stand vacated on the expiration of twenty days if the appeal is not decided within that period. Thus, by virtue of the proviso the impugned order already stands vacated. Despite this fact, the impugned order was without jurisdiction because the powers of the Labour Appellate Tribunal to pass an order staying operation of order of the Labour Court can only be exercised within twenty days from the day the appeal is preferred. This is the import of section 38(8) of the Ordinance that can be gathered by a plain reading of the provision."

9. On the other hand Mr. Mahmood Abdul Ghani controverting the above submissions contended that the petitioner has not approached this Court in its Constitutional jurisdiction with clean hands as before the Sindh Labour Appellate Tribunal the petitioner is not ready to proceed with the appeal and to get a final adjudication of his claim from the Appellate Court on merits while here he is insisting for vacation of stay order so that he may withdraw the back benefits and the current salary deposited in Court and slip away without getting final adjudication from the Appellate Court. In this connection he referred the Court diaries of the proceedings in the pending appeal before the Sindh Labour Appellate Tribunal to show that the petitioner in spite of repeated opportunities is not ready to proceed with the appeal Learned counsel also extended a proposal for disposal of this petition on the terms that the Tribunal shall decide the pending appeal of respondent No. l within seven days or within any other reasonable time as suggested by the petitioner and in the meantime the impugned order shall remain operative so that the interest of respondent No. l may be safeguarded. He placed his reliance on the following cases. 1999 SCMR 1707; PLD 1993 SC 109; 1993 SCMR 126; 2000 SCMR 88; 2000 PLC 235; 1995 PLC 44; 1984 PLC 115; PLD 1975 Kar. 858; Writ Petition No.442 of 1993, dated 30‑5‑1993 (Unreported Judgment); C.P. No.D‑1344 of 1999, dated 2‑9‑1999, (Unreported Judgment); 1994 PLC 21; 1986 PLC 588 and 1984 PLC 169. 10. in the above cited cases at serial Nos. l to 8 general principles o law about the powers and jurisdiction of High Court under Article 199 of the Constitution, powers of Labour Appellate Tribunals, powers of Court to grant interim reliefs, and ancillary and incidental powers of Court were dilated while to the two unreported cases and other cases at serial Nos. 11 to 13 in some what similar facts and circumstances, question of stay/suspension of order passed by the Labour Court with reference to section 38(8) of I.R.O., 1969 was considered. In all these cases in exercise of writ jurisdiction High Court suspended the impugned orders of the Labour Court during the pendency of appeal before the Labour Appellate Tribunal.

11. We have carefully examined the contentions raised before us and also perused the material placed on record. In order to examine the true import of section 38(8) of I.R.O., 1969 and its proviso it will be useful to reproduce the same herein under.

38. Labour Appellate Tribunal. (1) (2) (3) (4) (5) (6) (7) (8) Notwithstanding anything. contained in subsection (3), if in an appeal preferred to it against the order of a Labour Court directing the reinstatement of a workman, the Tribunal makes an order stating ' the operation of the order of the Labour Court, the Tribunal shall decide such appeal within twenty days of its being preferred: Provided that, if such appeal is not decided within the period aforesaid, the order of the Tribunal shall stand vacated on the expiration of the period."

12. From a bare reading of above quoted provision of law it will be seen that the applicability of proviso to section 38(8) is only confined to the orders of the Labour Court which relate to the reinstatement of a workman and not to orders of any other nature.

13. Applying this principle' to the facts of the present case at best the petitioner can agitate his grievance .in respect of impugned order passed by respondent No.2 only to the extent of suspension of his reinstatement. So far as the other part of the order relating to suspension of back benefits awarded to the petitioner is concerned same would not be hit by the proviso to section 38(8) reproduced above. It is also pertinent to note that even otherwise respondent No.2 while passing the impugned order. fully safeguarded the interest of the petitioner with regard to his claim of back benefits by asking the respondent No. l to furnish bank guarantee equivalent to that amount and further to deposit future monthly salary of the petitioner in Court.

14. Perusal of the Court diaries dated 29‑3‑2000 and 3‑5‑2060 in the pending appeal reveal that on these dates adjournments were sought before the respondent No.2 by and on behalf of the petitioner while on 17‑4‑2000 learned counsel for the petitioner did not agree for hearing of main appeal and pending applications together resulting in delay in disposal of the appeal. Before us also the learned counsel for the petitioner did not agree to the proposal extended by the other side for disposal of appeal by the tribunal on merits within a weeks time or any other time mutually agreed between the parties and insisted for strict technical observance of proviso of section 38(8) of I.R.O., 1969.

15. It may be observed that law favours adjudication of disputes on merits rather than on enforcement of such technicalities observance of which some times may result in giving benefit to a defaulting party. In any case to avoid enforcement of such technicalities and to meet the ends of justice in appropriate case exercise of jurisdiction under Article 199 of the Constitution, which is completely discretionary in nature, can be declined. If some case law is needed to fortify this legal position following cases may be referred.

1. Syed Wajih‑ul‑Hassan Zaidi v. Government of Punjab and others 1997 SCMR 1901.

2. Messrs Airport Support Services v. The Airport Manager, Quaid‑e -Azam International Airport, Karachi and others 1998 SCMR 2268.

3. Export Promotion Bureau and others v. Qaiser Shafiullah 1994 SCMR 859.

16. In the facts and circumstances discussed above we deem it just equitable fair and proper to dispose of this petition in the following terms. The respondent No.2 shall hear and finally decide the pending appeal filed by the respondent No. l being Appeal No.KAR‑322 of 1999, within two weeks from the receipt of this order and till then the impugned order shall remain in operation. In case any of the parties fails to appear or proceed with the appeal before the respondent No.2 the Tribunal shall pass appropriate orders in accordance with law. Q.M.H./J‑24/K Order accordingly.