2004 PLP 28 (SCMR)

IFTIKHAR MUHAMMAD CHAUDHRY, J.

This petition has been filed against the judgment dated 7th December, 1999 passed by Lahore High. Court, Lahore. For sake of convenience relevant paras. from the impugned judgment is reproduced herein below:-- "

5. It is clear that by entering and deciding the petition of respondent No.1, N.I.R.C. has assumed jurisdiction in the matter which assumption is bad for number of reasons including the petition being hopelessly barred by time and the respondent No.1 having accepted the impugned order of dismissal. Further, it was a case of individual grievance and respondent could have challenged the dismissal before the Labour Court by following the procedure of grievance notice as laid down in section 25-A of the Industrial Relations Ordinance, 1969. I hold the impugned order to be completely devoid of jurisdiction and hence without lawful authority. There is no force in the submission of Mr. Shami that this Court should dismiss the petition on the ground that petitioner has suppressed certain material facts. In ground (f) of the writ petition, the petitioner clearly states that an appeal was filed before the Full Bench but because it was not being heard for administrative difficulties, the petitioner had no choice except to file the Constitutional petition. This petition was admitted to full hearing on 18-7-1996 and the withdrawal of appeal 1998, during the pendency of this petition cannot non-suit the petition.

6. For what has been stated above, this petition is allowed and the impugned order of the Chairman N.I.R.C. dated 9-6-1996 is hereby declared to have been passed without lawful authority and consequently of no legal effect. Respondent No.1 will pay the costs of this petition. "

2. Precisely stating the facts of the case are that petitioner was serving as a Senior Head Cashier in the National Bank of Pakistan. On 24th September, 1975, he was charged with the allegation of fraud, forgery and the charge-sheet was accordingly issued to him. Ultimately, vide order dated 28th February, 1980, he was dismissed from service. Thereafter, petitioner statedly for the first time submitted an application in 1985 before the Review Board constituted for the redressal of grievance of the employees whose services were terminated during the period of Martial Law. It appears that no relief was given to him, however, ultimately .he approached the, N.I.R.C. by submitting an application under section 22(8)(g) of the Industrial Relations Ordinance, 1969 by invoking its jurisdiction on the ground that he has been made victim of unfair labour practice by the employer. On receipt of such application; Chairman N.I.R.C. vide order dated 9th June, 1996 set aside the order of dismissal dated 28th February, 1980 and re-instated the petitioner into service with all the back-benefits. Concluding para from the order is reproduced hereinbelow:-- "

5. In view of the arguments, I declare that as the, charge-sheet dated 21-7-1977 was served after a lapse of about two years, the termination of the petitioner on the basis of this charge sheet is contrary to the provision of Standing Orders Ordinance, 1968. Again it also transpires from the record of the case, that the period of suspension was treated as punishment which is contrary to the law and clearly indicates the inimical attitude of the respondent against the petitioner amounting to unfair labour practice. I set aside the order of termination dated 28-2-1980 and directed the respondents that the petitioner be taken into service with all the back-benefits."

3. The above order was challenged by the National Bank of Pakistan by filing appeal before the Full Bench of N.I.R.C. and simultaneously also involved the jurisdiction of the High Court by instituting Writ Petition No.12466 of 1996. During the pendency of writ petition, appeal filed before Full Bench of N.I.R.C. was withdrawn and learned High Court after hearing the parties allowed the writ petition by means of impugned judgment. As such instant petition for leave to appeal has been filed.

4. Learned counsel appearing for petitioner contended that as the matter was pending before the Full Bench of the N.I.R.C., therefore, learned High Court may have not issued writ in favour of respondent in exercise of jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan.

5. Learned, counsel appearing for caveator stated that because the N.I.R.C. assumed the jurisdiction without lawful and legal justification, therefore, writ was competent.

6. We have heard the learned counsel for the parties and have also gone through the file carefully. We inquired from the learned counsel for the petitioner whether he could show us from the record that N.I.R.C. assumed jurisdiction, for the reason that petitioner was made victim of unfair labour practice by the employer in accordance with the provisions of section 15 of the Industrial Relations Ordinance, 1969. But he failed to do so and stated that such assertion was made by the petitioner in the application before the N.I.R.C.

7. In view of above position, we are inclined to hold that N.I.R.C. has no jurisdiction to entertain the petition on behalf of the petitioner, examining whether he has been made victim of unfair labour in accordance with the provisions of section 15 of the Industrial Ordinance, 1969, therefore, assuming of the jurisdiction by the N.I.R.C. was illegal, as such the High Court was quite competent to entertain writ petition filed by the National Bank. of the, fact that it has also filed appeal before Full Bench of N.I.R.C: though the same was withdrawn by the Bank during pendency of the petition before High Court. It is well-settled that if an order or proceedings are patently without jurisdiction, High Court can issue writ in exercise of its jurisdiction under Article, 199 of the Constitution of Islamic Republic of Pakistan, as it has been held in the case of Chairman Central Board of Revenue v. Pak. Saudi Fertilizer Ltd. (2001 SCMR 777). Thus, in view of above discussion, we see no force in this petition as such same is dismissed and leave declined. M.H./N-176/S Petition Dismissed.