2019 PLP 263 (PLC)

RASAAL HASAN SYED, J.

This judgment will dispose of W.P. No.9969/2013, W.P. No.9499/2013, W.P. No. 9968/2013, W.P. No. 9355/2013 and W.P. No. 9498/2013 as the same arose from common judgment of the learned Punjab Labour Appellate Tribunal-II, Multan.

2. Fakhar Abbas, Imam Bakhsh, Ghulam Murtaza, Ghulam Abbas and Ghulam Yaseen arrayed as respondent No.3 in the respective writ petitions, filed Grievance Petitions Nos. 61, 140, 141, 142, 225 of 2002 under section 25-A of the Industrial Relations Ordinance, 1969, for re-instatement with back benefits and for setting aside of their termination order before the learned Presiding Officer Punjab Labour Court No.9, Multan. Evidence was recorded in all these petitions which were finally disposed of vide order dated 12.12.2007 by the learned Presiding Officer Punjab Labour Court No. 9, Multan. The operative part of the order reads as follows:- "

5. In order to decide the fate of the petitions, I rely on the deposition made by Shahid Shakil, Labour Officer, Ehsan Elahi Industries, who appeared in the witness box on behalf of respondent as R.W.

1. According to him the present management took over the control of the respondent/establishment in the year 2005. Besides this, the industry was lying closed for the last three years due to non-payment of loans and liabilities of different banks and financial institutions because the Mill was running in loss. According to R.W. 1 the previous management, in order to reduce the strength, terminated the petitioners to avoid the loss. The previous management sent the termination letters to the petitioners. According to him neither the petitioner contacted new administration nor submitted any application for re-employment. He has promised that the cases of the petitioners will be considered on priority basis if they move for re-employment. All the petitions are disposed of in the light of this offer made by R.W.

1. The petitioners are directed to move fresh before the new management and the respondents-management are directed to consider the cases of the petitioner on priority and humanitarian basis within a period of one month " Respondent No.3 in each writ petition separately filed First Appeal against the order which was heard and finally disposed of by the learned Punjab Labour Appellate Tribunal-II, Multan vide order dated 18.7.2013. The order reads as follows:- "Learned counsel for the appellant submits that although evidence of both the parties was recorded by the learned Labour Court No.9, Multan, even then in the presence of evidence of both the parties on the record, learned Labour Court No.9, Multan, disposed of the grievance petition with the direction to the grievance petitioner to approach respondent/establishment.

2. Learned counsel for the respondents submits that the appellant did not approach respondent-establishment.

3. Learned counsel for the appellant submits that if order of fresh appointment is made that will snatch the previous services rendered by appellant in the respondent-establishment.

4. Learned counsel appearing on behalf of new administration who purchased the respondent-establishment from the previous owner submits that appellant did not approach the new administration and did not submit any application for fresh consideration as directed by learned Labour Court.

5. The order dated 12.12.2007 passed by learned Labour Court No.9, Multan is hereby set aside and instant case is remanded back to learned Labour Court No.9, Multan who will pass fresh order after appraisal of evidence on record with regard to rights of appellant employee for his previous service which he rendered in the respondent-establishment. Simultaneously respondent-establishment will take the appellant on duty till the final decision of grievance petition. If the learned Trial Court deems necessary to record additional evidence of both the parties, he can do so. The learned Labour Court will decide the grievance petition within 6 months positively from the receipt of original file. Both the parties will appear before the learned Labour Court No.9, Multan on 04.9.2013."

3. After hearing the learned counsel, it is observed that the main grievance of the petitioners is that the learned Appellate Tribunal should have decided the appeals on merit as the evidence was available on record and in any case if the file was to be remitted back to the learned Labour Court, the order for re-instatement could not have been passed as it would amount to acceptance of the grievance petition.

4. On careful consideration of the orders passed by the two forums it is evident that the parties had already led their evidence before the learned Labour Court. The learned Labour Court did make reference to the evidence but the decision appears to be not on complete consideration of the evidence rather a shortcut was traced out to place the ex-employees at the mercy of the management. It was the duty the learned Labour Court to have decided the petition on merit. If the petitioner before the learned Labour Court had succeeded in proving the termination to be illegal then they could have been ordered re-instatement but if the explanation of the management was found to be just and fair, the petition could have been declined. In any case the decision one way or the other should have been recorded which was not done in this case. Be that as it may, the learned Appellate Tribunal while hearing the appeal also took note of the fact that the evidence has been led by the parties. This being so, the case could not be remanded simply for decision afresh. The learned Appellate Tribunal was itself competent to decide the appeal on merits. It is settled rule that remand of the case is only made if the judgments of the forum below are reversed. Frequent remand of the cases has never been approved. In "Pramatha Nath Chowdhury and 17 others v. Kamir Mondal and others" (PLD 1965 SC 434) the honourable Supreme Court observed to the effect that if sufficient evidence exists on record, the case shall not be remanded and it is desirable that the appeal should be decided on merits while unnecessary remand should be avoided.

5. In this case undisputedly the parties had led their evidence. If there was any omission in the order of the learned Labour Court in the form of its failure to consider the entire evidence, the learned Appellate Tribunal could have duly examined the evidence and decided the appeal on merits rather than sending it back to the learned Labour Court. In "Muhammad Dervaish Al-Gilani and 14 others v. Muhammad Sharif and others (1997 SCMR 524) it was observed by the honourable Supreme Court to the effect that the principles of remand of cases to the lower court for deciding on merit or re-trial are well-settled. This power should not be exercised lightly but sufficient care ought to be taken in remanding the case. The court shall examine the evidence and if it arrives at the conclusion that it is not sufficient to pronounce judgment or to decide the issue between the parties it can remand the case or it may itself record the evidence and decide it but if on record there is adequate and sufficient evidence on which decision can be made, remand would not be justified. Similarly in "Habib Ullah v. Azmat Ullah" (PLD 2007 SC 271) it was observed by the honourable Supreme Court to the effect that the remand of the case could only be made when the court from whose decree the appeal was preferred has disposed of the matter on a preliminary point and the decree is reversed or where the court considers the re-trial of the suit necessary. It was further observed that the remand of the case ought not be ordered lightly if evidence on record is sufficient, and in such cases the appellate court should decide the case itself. The courts administering justice have to bear in mind that an order of remand reopens another chain of litigation that not only entails wastage of public time but also delays disposal of the case, involves unnecessary expense to parties and these vices are seriously detrimental to the justice system.

6. Considering the present case on the touchstone of rule enunciated in cases supra, it may be concluded that the learned Appellate Tribunal in this case committed grave error of law in making a casual remand of the case to the learned Labour Court. Having noted that the evidence had been led by the parties, the learned Appellate Tribunal ought to have decided the appeal itself. In case any additional evidence was required which in this case was never requested by either side, the learned Appellate Tribunal was not denuded of its jurisdiction to receive such evidence if warranted for proper administration of justice or for effective decision of the case. In any case, the remand was not permissible for decision afresh by the forum below in the presence of the evidence on record sufficient to decide the controversy. The order of the learned Appellate Tribunal is therefore not consistent with the law.

7. Another illegality committed in the impugned order was that by the same stroke that case was remanded to the learned Labour Court for decision afresh, the learned Appellate Tribunal also granted the claim of re-instatement made by respondents who were appellants before the learned Tribunal. This obviously implied that without finally deciding the petition or adjudging the termination to be illegal, main relief in the grievance petition under section 25-A of Industrial Relations Ordinance, 1969 was allowed; which did not stand to legal reason. Till such time that final determination was made either by the learned Labour Court or by the appellate court in favour of the employee, the order of re-instatement could not be issued. The learned Appellate Tribunal, therefore, acted without lawful authority and in an illegal manner in issuing a self-contradictory order.

8. As upshot to the above these writ petitions are allowed, orders of the learned Appellate Tribunal impugned herein are set aside. The appeals before the learned Appellate Tribunal consequently shall be deemed to be pending which shall now be decided by the learned Appellate Tribunal within three months after duly considering the evidence available on record. ZC/E-4/L Case remanded.