1984 PLP 881 (PLC)

The facts leading up to this suo motu revision briefly stated are that the respondent, Syed Hussain joined the service of the applicant‑company on 2nd August, 1955, and has been continuing in such service. At the time of his appointment, he gave the date of his birth as 1st July, 1923 On the basis of his statement, the birth date was entered in his Service Book and the record of the applicant‑company as being 1st July, 1923. Thereafter, he went on shifting his birth date from time to time, in order to seek the date of his retirement extended. His representations in that respect were being duly replied by the applicant‑company refusing to change his birth date as already entered in this service record. The retirement age of the employees in the applicant's service was 58 years to be extended by 2 years in case the employee was found medically fit. The company offered this facility to the respondent when he was to attain the age of 58 years in accordance with the date of his birth entered in his service record and having been found medically fit his service was exten ded by 2 years to the age of 60 years which was to expire on 1st July, 1983. He was served with one month's notice, dated 29th May 1983, informing him about his retirement from service which was due on attaining the age of 60 years on 1st July, 1983, in consonance to clause (6) of the settlement, dated 20th August, 1972. The applicant served a grievance notice and subsequently filed a grievance application under section 25‑A, I. R. O., 1969, in Labour Court No. 11, Karachi, on 22nd May, 1983. Along with the application under section 25‑A, I. R. O., 1969, he filed an application for temporary injunction under Order XXXIX, rules I & 2, C. P. C., pray ing for restraining the applicant company from forcing his retirement on the basis of the date of birth entered in his service record, pending disposal of the grievance application under section 25‑A, I. R. O., 1969. The learned Labour Court issued notice to the other side and after hearing the representatives of both sides passed the order on 30th June, 1983, in the following terms :‑ "Heard Counsel for both the sides. His Lordships Mr. Mushtaq Ali Qazi Judge, while considering the D. B. authority reported in 1973 P L C 111 and P L D 1973 Kar. 189 has, according to the case law reported in P L D 1975 Kar. 858, held that passing of interlocutory order to maintain status quo is within the jurisdiction of a Labour Court. Therefore, I do hereby order, for the maintenance of status quo (Notice not to be implemented) till the disposal of this applica tion. For arguments, this application‑the matter be put off to 2nd July, 1983."

2. Aggrieved by this order, this Tribunal was moved by the applicant company in this suo motu revision byway of an information, calling in question the correctness, legality and propriety of the impugned order, above‑mentioned.

3. I have perused the record and proceedings and the evidence available which mainly comprises of the affidavits, counter‑affidavits as well as documents‑from both sides. I have also heard the learned repre sentatives of the parties at sufficient length. Mr. Mahmood A. Ghani, the learned representative appearing on behalf of the applicant has mainly contended that as contemplated by section 36, sub‑clause (3), I. R. O., for the purpose of adjudication and determination of any industrial dispute, the Labour Court was obliged to follow the provisions of the Code of Civil Procedure and since the grievance as envisaged under sections 25‑A and 34,

1. R. O., were not the industrial disputes within the meaning of the definition of `industrial dispute' under section 2 (xxxiii), enforcement of any right guaranteed or secured under any law other than this Ordinance or any Award or Settlement having been excluded, the provisions of the C. P. C. shall not apply to such grievance in applications under sec tion 25‑A and section

34. He has further contended that sub‑clause (4) of section 25‑A, has specifically provided that the grievance application under section 25‑A, is to be heard and decided as if such matters were an industrial dispute and, therefore, the Labour Court shall have only pro cedural powers under the C. P. C. for the purpose of regulating of such A proceedings and not substantive powers as those of issuing of temporary injunction or maintaining of status quo etc. In support of his contention, he has relied on the Division Bench Judgment of our High Court in a Constitutional Petition No. 138 of 1972, decided on 10th October, 1972, in the case of Brooke Bond (Pakistan) Ltd. v. Second Sind Labour Court, Karachi and another (1973pLC111), wherein the learned Judges observed as under :‑ `It is in subsections (2) and (3) that section 36 makes more careful provision for procedure and powers in two different jurisdictions ; in (2) while adjudicating and determining an industrial dispute and in (3) while trying an offence under the Ordinance. I am, therefore, of the view that subsection (2) does not confer upon a Labour Court, while adjudicating and determining an industrial dispute, all the powers of a civil Court under the Civil Procedure Code but only such of them as may be described as procedural i. e. such as are required for the purpose' of adjudication and determination. Now, it. is clearly not necessary in order to be able to adjudicate or deter‑ mine a dispute, that pending the adjudication or determination, a party be restrained from giving effect to the kind of the order of which respondent No. 2 complained to the Labour Court."

4. Mr. Mahmood A. Ghani has further referred to the decisions of this Tribunal, reported as 1981 P L C 737 and 1982 P L C 292, contending that this Tribunal also relied on the above‑mentioned authority in exercise of its sun motu jurisdiction, in those cases.

5. On the other hand, Mr. Muhammad Rasheed, the learned repre sentative for the respondent has mainly contended that where a Court has power to pass an order finally, it will generally have the power to do so by way of an interim measure, unless such a power is either expressly or by` necessary implication excluded. In support of his contention, he has relied on the Single Bench decision in Constitutional Petition No. 59 off 1975, decided on 27th May, 1975, in the case of L.

1. C. 1./l. C. A. Em ployees Union v. Pakistan Insurance Corporation Karachi and another (1) by our High Court. The learned Single Judge of the High Court while referring to the Division Bench Judgment relied on by Mr. Mahmood Abdul Ghani in support of the case of the applicant‑company has dis tinguished it as follows :‑ "I am in respectful agreement with the position laid down in Brooke Bond's case by the Division Bench of this Court that Labour Court has such powers of a civil Court as are required for the pur pose of adjudication and determination of any industrial dispute. The adjudication as of necessity will involve the passing of an effec tive order because the Labour Court has also the power and a duty to enforce its own orders as remarked by my learned brother, Abdul Hayee Kureshi, J. while dealing with this case at an earlier stage If a Labour Court cannot keep a cause of action itself alive, or permits a party to act in such manner that the purpose of proceed ing is defeated, certainly there would be nothing left to adjudicate upon. Under such circumstances an interim order to ensure due implementation of any final order, that may be passed, would appear to be necessary and incidental and it cannot be said that the Labour Court can have no power to pass .such an order and in doing so it would be acting beyond its jurisdiction." Mr. Mahmood A. Ghani for the applicant has tried to distinguish this Single Bench session inasmuch as he has contended that the order was not passed on an application under Order XXXIX, rules 1 and 2, C. P. C.. as in the instant case, but it was passed on an application under section 151, C. P: C., and that since it is a Single Bench decision, it should not be relied upon in preference to the Division Bench authority. After having given my anxious consideration in that respect to the two learned decisions, I do not find the case free from difficulty. In my view, the two decisions appear to me directly in conflict on the point in issue. Since the learned Single Judge has tried to distinguish the Division Bench Judgment, him self, in exercise of its Constitutional jurisdiction, I am afraid there remains nothing for this Tribunal to distinguish in between the conflicting decisions in exercise of its limited jurisdiction in sun motu revision under section 38 (3‑a) I. R. O., 1969. In such a situation, there were two courses open for the learned representative for the Applicant company ; either to have moved the High Court in its Constitutional jurisdiction so that the conflict bet ween the two decisions is resolved, by its Larger Bench or as the High Court deemed fit and proper ; or to wait to argue the matter before the learned Labour Court on its merits as I find from the impugned order that the Labour Court has passed only an interim order maintaining the status quo only till the application under Order 39, Rules 1 and 2, C. P. C. is disposed and has postponed its hearing only after 2 days. rather than to have moved this Tribunal in its sun motu jurisdiction. as no final order was passed on merits for this Tribunal for examining its correctness, legality and propriety. Sor far the decisions of this Tribunal cited by him as 1981 P L C 737 and 1982 P L C 292 in support of his contention, I would with respect point out that the Single Bench decision as reported in P L D 1975 Kar. 858 was not brought to the notice of my learned predecessor.

7. Under the circumstances, I would remand the case to the learned Labour Court with the direction to dispose of the application under Order XXXIX, rules 1 and 2, C. P. C. on merits, as expeditiously as possible, in view of its urgency, after allowing the parties an opportunity to adduce any further documentary evidence, if they so choose.

8. The revision application is disposed of accordingly. A. E. ‑ Application disposed of.