1986 PLP 714 (PLC)

3. We heard Mr. Abdul Hafeez Qadri, learned counsel for the petitioner, and Mr. Muhammad Shibli, learned counsel for respondent No.l, at length. This petition was dismissed by us by a short order, dated 23‑1‑1986 Following are the reasons in support of the order.

4. The facts as stated above are admitted. The application of respondent No. l was allowed by the learned Labour Court and the appeal of the petitioner was dismissed by the learned Labour Appellate Tribunal mainly on the ground that certain workers, who were junior to the respondent No.l, were retained in services, while services of the respondent No.1 were terminated. It will be pertinent to reproduce the relevant portion of the order of the learned Appellate Tribunal. "The orders of termination of the respondent's services are based on the plea that the working of the soaper machine in the appellant organization has been totally stopped. This plea stands contradicted by the admission of the appellant's manager, Muhammad Ramzan, who has stated that while the soaper machine is not being used in the 'A' shift, it is used in the 'B' shift and is being operated by persons junior to the respondent. It was, however, contended on behalf of the appellant that these workers, who operate the soaper machine in the 'B' shift, are unskilled workers and consequently, the respondent. cannot be said to belong to the category of the workers who now operate the soaper machine in "B" shift in the appellant's organization. Apart from the fact, that it has not been established that unskilled workers could operate the soaper machine and that Gul Wazir,, Wazir Khan, Muhammad Hussain, Ibrahim, Gulistan Khan and Abdul Malik, are all unskilled workers, it may be pointed that the ground shown in the order of termination of the services of the respondent is that it has been decided to completely stop working the soaper machine. This ground, according to the appellant's own admission, is untrue. As such, this would not be a valid ground for terminating the services of the respondent. The termination order was thus based on different and perhaps extraneous grounds."

5. It is contended by the learned counsel for the petitioner, that the learned Labour Court and Labour Appellate Tribunal did not take into consideration the fact, that the respondent No.l was a category unto himself as he was operator of the finishing machine (soaper) whereas, workers retained were unskilled and did not belong to the category to which respondent No.l belonged. He, therefore, contends that there is no violation of Standing Order No.13, which may be reproduced as under: ‑ "Where any workman is to be retrenched and he belongs to a particular category of workmen, the employer shall retrench the workman who is the last person employed in that category."

6. Learned counsel for the petitioner, however, conceded, that there was no evidence on record to show, that any special skill was required to operate the finishing machine (soaper) which was not required to operate an ordinary finishing machine or whether the respondent No‑1 was drawing any higher salary than the other workers who were retained. He also admitted that record of the petitioners showed respondent No‑1 as a finishing worker, but contended that in fact, he was an operator of finishing machine (soaper) and to substantiate his contention, he relied upon the termination notice and grievance notice of the respondent No.l. In the termination notice respondent No.l has been addressed as operator finishing machine (soaper), whereas, in his grievance notice the respondent No.l has designated himself as a machine operator. In his application under section 25‑A of I.R.O. 1969, the respondent No.l has also shown himself as a machine operator.

7. It is admitted fact, that there were "A" and "B" shifts in the petitioner's factory. It is admitted, that in "A" shift finishing machine (soaper) was being used whereas in "B" shift ordinary machines were being used. It is also admitted, that sometimes occasionally machine with soaper was also used in "B" shift and it is still being so used after the termination of services of respondent No.l. It is also admitted, that the persons, who are junior to respondent No.l, used to operate this machine before and even after termination of services of respondent No.

1. Any person, who operates a machine would be a machine operator, and therefore, the contention of the learned counsel for the petitioner, that the respondent No.l was a category unto himself does not have any force. Even otherwise, this Court in its limited jurisdiction in the constitution petition, cannot set aside the concurrent findings of fact arrived at by the two Tribunals of competent jurisdiction which finding is based on the record and admission of petitioners own witness.

8. The learned counsel for the petitioner, Mr. Siddiqui, .was asked to point out any error of law apparent on the record which may have been committed by the learned Tribunal to call for interference by this Court Mr. Siddiqui argued for nearly one and calf days to point the alleged error of law. Mr. Shibli has relied upon A I R 1960 S C 137 wherein it is held as under: ‑ "An error which has to be established by a long drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Where an alleged error is far from self‑evident and if it has to be established, by lengthy and complicated arguments, such an error cannot be cured by a writ of certiorari according to the rule governing the powers of the superior Court to issue such a writ."

9. The main argument of the learned counsel was, that neither in the grievance notice nor in the petition, respondent No.l has specifically taken the plea, that persons junior to him had been retained in service. He argued, that the learned Tribunals have acted beyond jurisdiction by giving decision on the fact which was not pleaded No doubt, 'that neither in notice nor in the application under section 25‑A of I.R.O. 1969, the respondent No.l has specifically pleaded this fact, but hi grievance was, that order terminating his services was illegal and was not in accordance with the law. Both the learned Tribunals have held this order to be in violation of Standing Order No.13. As such it cannot but be held to be against provision of law. The learned counsel for the petitioner, however, himself admitted, that no such plea which was being raised by him in this Court, was raised either in the memo of appeal or in arguments before the learned Appellate Tribunal. Mr. Siddiqui was asked whether plea now raised by him was specifically mentioned in the memo of petition. He relied upon ground No.3 of the petition, which reads as under: ‑ "That both the lower Courts have totally ignored the pleadings of the parties more particularly pleadings of respondent No.1 and have decided the matter on the basis of their own imagination as such the order of both the lower Courts are bad in law and are liable to be set aside."

10. It will be seen, that even this ground is of general nature and does not specifically state, "that the respondent No.l had not raised the plea, that persons junior to him were retained in service, therefore, such finding of the Courts below was outside the pleadings of the parties", but there is only general allegation, that both the Courts have ignored the pleadings of the parties. Thus, the plea taken by the petitioner in the petition is of general nature, which has been, however, elaborated by him during the course of arguments. Similarly, the plea taken by the respondent No.l in grievance notice as well as in his application under section 25‑A of I.R.O. 1969, that the order of termination of services was against the law, was of general nature, which be elaborated by evidence. Even the petitioners were conscious of this plea and issue and, therefore, their own witness, Muhammad Ramzan, in his affidavit‑in‑evidence, filed after evidence of respondent No.l was closed, has stated in pars 8" that six workers in "B" shift, who were working on finishing machine, belong to a different category of workmen and, therefore, the question of respondent No.l's seniority or juniority had nothing to do with their services." He in his cross-examination, has admitted, that these workers were junior to the respondent No.l which admission the learned Tribunal found to be correct. As such the petitioner cannot claim to have been taken by surprise by any plea which was neither pleaded nor was at issue.

11. In case of Muhammad Hussain Munir and others v. Sikandar and others P L D 1974 S C 138, it is held as under: ‑ "Expression, 'without lawful. authority and of no legal effect', is an expression of art and refers to jurisdictional defects as distinguished from a more erroneous decision whether in question of fact or even of law. It is well‑settled that where a Court or Tribunal has jurisdiction, and it determines, that question, it cannot be said that it acted illegally or with material irregularity merely because it came to an erroneous decision on a question of fact and or even of law. It is wholly wrong to consider that the constitutional provision was designed to empower the High Court to interfere with the decision of a Court or Tribunal of inferior jurisdiction merely because in its opinion decision was wrong."

12. In P L D 1975 Kar. 437 it has been held, "question of fact can properly be decided only by Labour Court on the basis of evidence produced before it and cannot be gone into by the High Court in writ petition".

13. Thus, the concurrent finding of the learned Labour Court and Appellate Tribunal on the fact, that the workmen junior to respondent No.l, were retained in service while the services of respondent No.l were terminated in violation of Standing Order No.13, appears to be in the proper exercise of their jurisdiction and is based on evidence on record and on correct appreciation of law and fact. As such no interference is called for by this Court in exercise of writ jurisdiction. The petition is, therefore, dismissed with costs. A. A.??????????????? Petition dismissed.