2002 PLP 201 (PLC)

Petitioner on being reinstated approached the Labour Court under section 51 of the I.R.O. seeking execution/enforcement of the orders for the payment of back benefits as ordered by the Sindh Labour Appellate Tribunal. Said application was dismissed by the learned Labour Court on the ground that it had no jurisdiction in the matter, since back benefits were allowed by the Tribunal same can be enforced by the Tribunal alone. Such order, however, were set at naught, by the Sindh Labour Appellate Tribunal, holding that Labour Court has jurisdiction to execute the order passed by the Labour Appellate Tribunal. Learned Labour Court on remand, heard the matter on merits and dismissed the application vide order impugned dated 79‑9‑1988. Subject order was questioned by filing an application under section 12(2), C.P.C. read with section 36 of I.R.O. on the ground inter alia, that the impugned order dated 26‑9‑1988 was obtained by the respondent No.3 by misrepresentation and fraud. Said application was also dismissed vide order dated 25‑1‑1999 'which order has also been impugned through instant Court. Learned counsel was confronted with the maintainability of this petition. Mr. Rizvi submits that no remedy by way of appeal is provided under I. R. O. According to him, since the orders impugned before this Court were passed under section 51 of I.R.O. same are neither appealable nor revision could be filed by the petitioner. It was, therefore, contended that no alternate or efficacious remedy is available to the petitioner. In support of his contention he has relied upon Messrs Jannat Textile Mills Ltd. v. Sindh Labour Appellate Tribunal, Karachi and 2 others (PLD 1979 Kar. 725). On merits it was contended that once the Labour Appellate Court had ordered reinstatement of the petitioner with back benefit. Constitutional petition challenging reinstatement with back benefit was also withdrawn, the order of reinstatement with back benefits attained finality. Learned Labour , Court had no jurisdiction to sit upon such finding while exercising powers under section 51 of I.R.O. I have heard the arguments and perused the record. Adverting to the maintainability of the petition. Contention of learned counsel that no remedy is provided to assail orders passed under section 51 of the I.R.O., 1969, as such writ jurisdiction has been rightly invoked was examined by me. From a bare reading of section 37(3) of I.R.O it is clear that A appeal to the Tribunal is provided against the award or decision given under section 25‑A or section 34 or sentence passed under section 35(5)(e) of the I.R.O. It is settled proposition in law that right of appeal is regulated and conferred by law. In the case of Janat Textile Mills Ltd. (supra). Revision application filed by the petitioner therein, was dismissed by a Division Bench, being misconceived not permissible under subsections 3(a) of section 38, I.R.O. On examining subsection 3(a) of the section 38 I.R.O., it is clear that legislature with intention to attach finality to the orders passed by the e Labour Court, purposedly confined appellate jurisdiction in a limited sphere, as discussed above. Under subsection (3‑a) to section 313 I.R.O. unlike ("ode of Civil Procedure, 1908 right to invoke revisional jurisdiction is not conferred on any party; revisional jurisdiction under the Scheme of I.R.O. could be exercised by the Appellate 'tribunal suo motu and not at the behest of any party. Under circumstances I hold that since no alternate and adequate remedy is avilable to the petitioner to impugn orders passed under section 51 of the I.R.O., instant petition is maintainable. Now adverting to the merits of the case, facts are already given in the narrative above. It may be pertinent to point out that vide decision dated 28‑9‑1986 the Sindh Labour Appellate Tribunal directed reinstatement, of the petitioner with full back' benefit. In writ petition challenging such reinstatement, on an application C.M.A. No.2997 of 1986 following orders were passed. The petitioner is permitted to deposit the monthly salary of the respondent No.2, in Court, which the respondent No.2 will be allowed to withdraw on furnishing personal bond. However, if the petitioner at 'any time makes an application and satisfies the Court that the respondent No.2 is employed else, where then this order can be reviewed at the instance of the petitioner. This application is disposed of in the above terms. The petition may be fixed for regular hearing at an early date. The respondent No.2 is directed not to enter the factory premises of the petitioner or to participate in any union activity till the disposal of this petition. However, respondent No.3 who was petitioner in C.P. 1347 of 1986, moved an application seeking withdrawal of the petition. Which reads as follows: It is respectfully submitted that respondents have decided to reinstate the petitioner and comply with the order of learned respondent No.

1. It is, therefore, prayed that the above petition may kindly be disposed of as withdrawn with no order as to costs. In this factual back drop, the petitioner approached the learned Labour Court, IIIrd Karachi by moving application under section 51 of I.R.O., for payment of Rs.87,228.54 as arrears of back benefit. Said benefits were refused vide order impugned, through this petition. The application under section 51 of she I.R.O. wad dismissed by the Labour Court in consideration of the fact that petitioner failed to disclose in his original' application under section 25‑A a single word regarding his unemployment during pendency of the proceedings. Trial Court placed reliance on the case of General Manager Radio Telecommunication Corporation Haripur v. Muhammad Aslam and 2 others (1992 SCMR 2169) and so also Naseer Ahmed and another v. Employees Old‑Age Benefits Institution through Assistant Director‑General (PTP), Karachi and others (1996 PLC 673) to dismiss the application under section 51, I.R.O. Contention of the learned counsel that cases relied upon by the learned Labour Court were not applicable according to him merits of the case could not be reopened in proceedings under section 51 of the I.R.O., as the same are invoked merely to execute/implement the orders passed by competent Authority including Labour Appellate Tribunal such order according to hm had attained finality. Contentions of Mr. Rizvi are not without force. The question of back benefit attained finality when the learned Labour Appellate Tribunal in its decision dated 28‑9‑1986 allowed the application under section 25‑A whereby petitioner was reinstated with back benefit. Such decision was assailed before this Court by way of writ petition. Wherein also on C.M.A. No.2997 of 1986 it was specifically ordered by a Division Bench that in case the petitioner therein (Respondent No.3 herein) at any time makes an application and satisfy the Court that the petitioner herein is employed else where this order can be revised at the instances of the petitioner/employer. Said order has been reproduced in the narrative above. Such being the position, when the order of reinstatement with back benefit had attained finality. Executing Court not travel beyond the decision or judgment sought to be executed. Once the order of reinstatement, with back benefit has attained finality, such order is past and closed transaction same cannot be revisited or reopened by the Executing Court. Proprietary of any Award order, decision or judgment could only be questioned, and be varied, modified, reversed in appellate or Revesional Jurisdiction by such hierarchy as provided under the I.R.O. and not otherwise. Powers exercisable by the Labour Court under section 51, I.R.O. are akin to powers of Executing Court in Civil Proceedings same cannot be equated with appellate or revesional Jurisdiction. Executing Court cannot question the properitry of the Award, orders or decision given by the Competent Authority, Through impugned order Learned Labour Court has traveled beyond its Jurisdiction vested under Section 51 of I.R.O, by reopening the issue of back benefit which stood decided by the Appellate Tribunal such view also find support from a very recent judgment of our Apex Court in Sardar Ahmed Yar Khan Jogezai and 2 others v. Province of Balochistan through Secretary, C&W Department (2002) SCMR 122). The cases relied upon by the learned Labour Court have no bearing on the merit of instant case there is no cavil to the proposition laid in the cases of General Menager Radio Telecommunication Corporation Haripur v. Muhammad Aslam and 2 others 1992 SCMR 2169 and so also Naseer Ahmed and another v. Employees Old‑Age Benefits Institution through Assistant Director General (PTP), Karachi and others (1996 CLC 673). Dicta laid down in said cases arises out of main proceedings under section 25‑A I.R.O. and not in execution proceedings. Respondent No.3 who had questioned the reinstatement with back benefits, itself chose to withdraw the writ petition. Nothing was left for the Executing Court as far as the issue of back benefit was concerned. Therefore, order impugned herein cannot be sustained and are accordingly set aside. Learned counsel for the petitioner submits that petitioner has received certain benefits from the Court. He further states that respondent No.3 only disputed quantum of benefits. According to whom Rs.58,182 are due as against a sum of Rs.87,228 claimed by the petitioner, out of which Rs.27,269 were deposited in the above referred writ petition. According to respondent No.3 Rs.30,912.20 is balance due and payable. Such admission is contained the affidavit‑in‑evidence filed by Iqbal Ahmed, General Manager of Cresecent Pak Industries Ltd., respondent No.3 herein before the trial Court. Under circumstances, I direct the respondent No.3 to deposit Rs.30,912.20 being undisputed amount in this Court within 15 days from the date of receipt of order of this Court; petitioner will be at liberty to withdraw the same after due verification and identification. As far as the remaining amount of arrears are concerned. Let the same be determined by the learned IIIrd Labour Court after taking proper account from the parties. Petition is terms of the above is allowed. Q.M.H./M.A.K./M‑310/K Petition allowed.