1989PLC495 (PLP)

S. 25-A--Pakistan Railways Police Act (VII of 1977), Ss. 5 & 19--Constitution of Pakistan (1973), Art. 199--Dismissal from service--Jurisdiction--Persons holding any rank or post in the Railways Watch and Ward were to be transferred and appointed to such corresponding rank or post in or under the Pakistan Railways Police Act as notified by Federal Government. In the transitional period and until framing of Rules and Regulations, persons belonging to Railway Police of any Province and persons belonging to Railway. Watch and Ward were to be governed by the Punjab Police Rules and the Rules of the Railway Watch and Ward respectively. No such notification as contemplated under section 5 of Pakistan Railway Police Act, 1977, having been issued, petitioner an employee of Railway Watch and Ward, could invoke provisions of Industrial Relations Ordinance. Petitioner on account of acquiescence in the jurisdiction of Labour Court and on account of laches could not invoke Constitutional jurisdiction of High Court. JUDGEMENT "The order of dismissal of the petitioner is set aside. The petitioner shall be taken back on duty forthwith. Anyhow as no regular inquiry was held against the petitioner it shall be open with the Pakistan Railways respondent to hold a fresh inquiry against the petitioner. They may give an order about the holding of such an inquiry if they so like, within 30 days from the date of this order. The question of payment of back benefits to the petitioner shall depend on the result of the inquiry if held against him. If no inquiry is ordered to be held against the petitioner within the period mentioned above all the back benefits shall be paid to the petitioner after the expiry of 30 days from today." This order was challenged by the petitioners by filing an appeal before the Punjab Appellate Tribunal, Lahore. 2. Anwar Shah respondent was reinstated on 28-4-1980 in view of the aforesaid judgment of the learned Labour Court. The competent authority further directed that departmental inquiry be held afresh. The Inquiry Officer after holding the inquiry submitted his report exonerating the respondent from the charge of theft levelled against him. The appeal filed by the petitioners was accepted by the Punjab Labour Appellate Tribunal, the order dated 9-3-1980 was set aside and the case was remanded for determination of the question of applicability or otherwise of the Pakistan Railways Police Act, 1977. The Labour Court vide order dated 4-11-1986 dismissed the grievance petition returning the finding that the jurisdiction of the Labour Court was barred as the services of the respondent stood transferred to the Railways Police since before the commencement of the proceedings. This order dated 4-11-1986 was then challenged by the respondent by filing an appeal before the Punjab Labour Appellate Tribunal, Lahore. It may be noted at this stage that the respondent since his reinstatement continued to serve the Watch and Ward Wing of Pakistan Railways Police till his discharge from service on 9-12-1986. He was discharged as the order staying the operation of the order of the Punjab Labour Court had not been extended by then. The appeal of the respondent was, however, accepted by the learned Appellate Tribunal vide order dated 17-1-1987 after returning the finding that the rules framed under the Pakistan Railways Police Act, 1977 came into force on 18-8-1980 with immediate effect and not with retrospective effect and so before the rules were framed the respondent was transferred to the Railways Police, he continued to be a member of Railways Watch and Ward Wing and thus the jurisdiction of the Labour Court was not barred. The Appellate Tribunal resultantly set aside the order dated 4=11-1986 and remanded the case to the Labour Court for decision on merits. In remand proceedings the parties were provided opportunity to lead evidence but no further evidence was produced and the Labour Court taking note of the fact that a fresh inquiry was directed to be held and that the Inquiry Officer on the basis of the material before him exonerated the respondent from the charge, held that the dismissal of the respondent was illegal. He accordingly directed that the respondent be reinstated. This was done vide order dated 7-6-1987. Thereafter the petitioners filed this Constitution petition assailing the order dated 17-1-1987 of the Punjab Labour Appellate Tribunal, Lahore and the order dated 7-6-1987 passed by the Labour Court. 3. Learned counsel in support of the writ petition argued that the view of the Punjab Labour Appellate Tribunal that the Pakistan Railways Police Act cannot be deemed to have become applicable earlier to the enforcement of the rules is incorrect as the enactment came into force on receiving assent by the President on 9-1-1977 as section I, of the Act provides that the Act shall come into force at once. It was added that the cumulative effect of sections 1, 5, 6 and 19 of the Act is that the Railway Watch and Ward Staff stood transferred to Pakistan Railways Police since 9-1-1977 the date of enforcement of the Act and as such the respondent being a member of the Pakistan Railways Police could not avail of the grievance procedure provided by the Industrial Relations Ordinance, 1969. According to the learned counsel the learned Labour Court has rightly held that the respondent stood transferred to the Railways Police since the date of enforcement of the aforesaid Act and as such the jurisdiction of the learned Labour Court was barred. 4. I have given serious consideration. to the aforenoted contentions. As will be seen hereunder neither the view which prevailed with the learned Labour Appellate Tribunal nor that of the learned Labour Court is sustainable in law. The question which requires determination is whether the respondent could avail of the provisions of section 25-A of the Industrial Relations Ordinance against the order of dismissal dated 4-3-1979. Learned counsel for the parties agreed that if on the aforesaid date the respondent was member of the Pakistan Railways Police then in view of section 6 of the Pakistan Railways Police Act, 1977 the provisions of the Industrial Relations Ordinance 1969 relating to the grievance procedure were not available but if his services had not been transferred by then, the respondent would be entitled to invoke the grievance procedure against the order of dismissal and the jurisdiction of the learned Labour Court could be invoked. 5. In order to answer this question examination of relevant provisions of the Pakistan Railways Police Act appears necessary. Section 5 of the Act provides) that all persons holding any rank or post in the Railways Watch and Ward shall subject to such conditions as may be laid down by the Federal Government stand' transferred and appointed to such corresponding rank or post in or under the Pakistan Railways Police Act as may be notified by the Federal Government. It will, therefore, be seen that merely by virtue of section 5 the persons holding any rank or post in the Railways Watch and Ward do not stand transferred to the Pakistan Railways Police. The transfer to the Pakistan Railways Police is thus to be effected by the Federal Government by issuing a notification though the Constitution of the Railways Police has to take place in the manner prescribed by the rules to be framed. It is, therefore, apparent that the transfer of the members of the Watch and Ward to the Pakistan Railways Police is not dependent on the framing or enforcement of the rules. Likewise the view of- the learned Labour Court that the members of the Railway Watch and Ward stood automatically transferred on the enforcement of the Act itself also cannot be sustained on any hypothesis in view of aforenoted provision of section 5 of the Pakistan Railways Police Act, 1977. 6. It will also be noted that section 19 of the Act is not relevant for resolving the question raised. Section 19 provides that in the transitional period and until framing of the rules and regulations the, persons belonging to the R Railway Police of any Province and the persons belonging to the Railways Watch and Ward are to be governed by the Punjab Police Rules, 1934 and the Rules of the Railway Watch and Ward respectively. So a member of the Watch and Ward after becoming member of the Pakistan Railways Police will be governed by the rules of the Railways Watch and Ward till the framing and enforcement of the new rules under the Act. The new rules do not have to provide for the transfer to the Pakistan Railways Police. That matter stands covered and provided for by section 5 of the Act. 7. It may be reiterated that it is by issuing notification under section 5 that the services of the persons holding any rank or post in the Railway Watch and Ward will stand transferred and such persons will stand posted to the corresponding rank or post on such terms and conditions in the Pakistan Railways Police as notified. No such notification was placed on record. Due to the non-production of the said notification nothing can be said as to when Anwar Shah respondent stood transferred to and became member of the Pakistan Railways Police. The petitioners have thus failed to establish that Anwar Shah respondent was not entitled to invoke the provisions of the Industrial Relations Ordinance 1969. 8. There is another formidable objection to the grant of discretionary relief to the petitioners in the exercise of extraordinary Constitutional jurisdiction. The petitioners filed this Constitutional petition after the direction to reinstate the respondent was made by the learned Labour Court in its order, dated 7-6-1987. This order was passed in the remand proceedings held pursuant to the order, dated 17-1-1987 of the Punjab Labour Appellate Tribunal. The petitioners apparently acquiesced with the order of the Punjab Labour Appellate Tribunal having not challenged the same immediately thereafter and by pursuing the remedy in the remand proceedings. The petitioners stand now estopped from challenging the order dated 17-1-1987 on account of acquiescence and laches. Moreover, administration though challenged the order dated 9-3-1980 of the Punjab Labour Court by filing an appeal yet petitioner No. 2 who is the competent authority not only reinstated Anwar Shah respondent but also ordered that departmental enquiry be conducted afresh. Thereafter on one side the matter remained pending in the Labour Courts on initiation of the proceedings either by the petitioners or the respondent and on the other hand the respondent not only was allowed to serve the Railways Police but was also exonerated by the Inquiry Officer by recording a finding that the prosecution has failed to prove the charge. Learned counsel tried to justify the order of reinstatement by saying that the learned Labour Court while accepting the grievance petition directed the reinstatement of the respondent. Even if this explanation is accepted till no justification can be offered for making a direction regarding the holding of a fresh departmental inquiry. The act of ordering a fresh inquiry amounted to the acceptance of the position that the inquiry already held was legally defective as was pointed out by the learned Labour Court. The petitioner in the circumstances noted above as well as on account of acquiescence and laches are not entitled to invoke extraordinary Constitutional jurisdiction. 9. For all the reasons given above the petition is dismissed. The parties are left to bear their own costs. M.Y.H./A-571/L Petition dismissed.