1976 PLP 28 (PLC)

2. The services of Chanan Beg and Mukhtar Ahmad, respondents, who were employees of National Bank of Pakistan, Rawalpindi, were terminated. They filed separate petitions under section 25‑A of Industrial Relations Ordinance, 1969 for their re-instatement and back benefits before the Junior Labour Court, Rawalpindi, which re‑instated them vide its orders dated 9‑4‑1973 and 26‑6‑1973, respectively. National Bank of Pakistan, Rawalpindi, thereafter filed two separate appeals before Punjab Labour Court No. 2 against the aforementioned decisions of the Junior Labour Court. The learned Presiding Officer of Punjab Labour Court No. 2 disposed off both these appeals by one order dated 31‑12‑1974. The appeal of National Bank of Pakistan, against the re‑instatement of Mukhtar Ahmad was dismissed while the appeal of the National Bank of Pakistan against Chanan Beg was adjourned for hearing on merits.

3. Aggrieved by the afore‑mentioned order the National Bank of Pakistan, Rawalpindi, appellant, has preferred this appeal.

4. The learned counsel for the respondents at the outset raised a preliminary objection that this appeal was not competent. In this connection he referred to sections 36‑D and 37 (4) of Industrial Relations Ordinance, 1969. Section 36‑D reads as follows: ‑ (1) Any party aggrieved by a decision of Junior Labour Court under section 36‑B may prefer an appeal to a Labour Court within fifteen days of the delivery thereof and a decision of the Labour Court in such appeal shall be final. Section 37 (4) reads as follows: ‑ All decisions of a Labour Court, other than awards referred to in subsection,(3) of this section, and sentences referred to in subsection (3) of section 36, shall be final and shall not be called in question in any manner by or before any Court or other authority. From the above it is clear that a decision given under section 36‑D by the Labour Court is final and that all other decisions other than awards are also final and shall not be called in question in any manner by or before any A Court or other authority. Thus under Industrial Relations Ordinance there is no right of appeal to the Tribunal against the order passed under section 36‑D of the Ordinance. It is a well‑established principle of law that a right of appeal is a substantive right and not a mere right of procedure. This right cannot be assumed but it has to be specifically conferred by a statute. I am fortified in this view by the judgment of the High Court of West Pakistan in the case, Mst. Maqsoodan Bibi v. Mst. Bhano (P L D 1965 Lah.183). Further according to Article 175 (1975 P L C 738) of the Constitution of Islamic Republic of Pakistan no Court shall have any jurisdiction save as is or may be conferred on it by the constitution or by or under any law. Sind Labour Appellate Tribunal in the case, Ghazi Decoration Service Employees Union Registered as Trade Union v. Labour Court (2) held: ‑ It is well settled law that an appeal is a creature of statute and it must be specifically provided. As no specific provision has been provided under the Ordinance, the appeal is dismissed as not maintainable. Sind Labour Appellate Tribunal in another case, Mohammad Usman v. Messrs ARAG Industries Ltd. Karachi (1974 P L C Note 140) held that order of the Labour Court passed in appeal under section 36‑D of Industrial Relations Ordinance, 1969 was not appealable. Lahore High Court in a Full Bench case, Workers v. The Management, Sultan Textile Mills Ltd., Sargodha through the Managing Director arid another (1973 P L C 175) held that the right of appeal is not a mere matter of procedure but a vested right. It cannot be taken away by repeal of enactment conferring that right.

5. The learned counsel for the appellant, on the other hand, contended that since the impugned order of Punjab Labour Court No. 2 was without jurisdiction, it was nullity in law and as such was appealable before the Tribunal. It is no doubt true that an order without jurisdiction is nullity in the eyes of law, but the point for determination is as to whether the Tribunal can set it aside even though it has no jurisdiction to hear the appeal against such an order. The learned counsel for the, appellant in support of his contention relied on the judgment of foe High Court in the case, Nawab Syed Raunaq All etc. v. Chief Settlement Commissioner and others (P L D 1973 S C 236) wherein it was held: ‑ It is now well‑established that where an inferior tribunal or Court has acted wholly without jurisdiction or taken any action beyond the sphere allotted to the tribunal by law and, therefore, outside the area within which the law recognises a privilege to err, then such action amounts to a usurpation of power unwarranted by law and such an act is a nullity; that is to say, the result of a purported exercise of authority which has no legal effect whatsoever. In such a case, it is well‑established that a superior Court is not bound to give effect to it, particularly where the appeal is to the latter's discretionary jurisdiction. The Court would refuse to perpetuate, in such circum. stances, something which would be patently unjust or unlawful. He also cited another the Supreme Court in the case, Mohammad Ashfaq v. The Sate (i) wherein it was observed: ‑ It is an equally well settled principle that if a Court not having jurisdiction wrongly exercises such a jurisdiction, an appeal lies from that decision in the same manner as an appeal lies from a decision with jurisdiction. These authorities are not relevant to the point in issue. In the aforemen tioned cans the Supreme Court had jurisdiction to hear the appeal and therefore could set aside the orders of the lower Court passed without jurisdiction. The learned counsel also cited the judgment of the Lahore High Court in the case, Syed Mohammad Alam v. Syed Mehdi Hussain and others (P L D 1970 Lah. 6) wherein it was held that if an order appealed against is found to be a nullity, the appellate authority can entertain and decide on merits even a time barred appeal against such order. Again this authority is not relevant because the High Court has the right to hear the appeal. Reliance was also placed on the judgment of the Sind‑Baluchistan High Court in the case Mohammad Aqil v. Chairman Sind Labour Appellate Tribunal and another (1974 P L C 194). In the above case the services of Muhammad Aqil were terminated and he filed an application against his employer under section 34 of Industrial Relations Ordinance, 1969 before the Labour Court which accepted the application and ordered his re‑instatement with back benefits. The employer went up in appeal before the Sind Labour Appellate Tribunal, which set aside the order of the Labour Court by holding that Mohammad Aqil was not a workman. Muhammad Aqil then went up in a writ petition before Sind‑Baluchistan High Court, which held that the order passed under section 34 of Industrial Relations Ordinance, 1969 was not an award and hence the Labour Appellate Tribunal had no jurisdiction to entertain the appeal, but since the decision on merits of the Labour Appellate Tribunal was correct, the High Court, in its exercise of writ jurisdiction refused to interfere with the decision of the Labour Court on the ground that a person cannot be permitted to evoke discretionary jurisdiction to perpetuate a manifest illegality. This ruling again has no relevancy because the High Court in the exercise of writ jurisdiction had discretion to interfere or not with the order of the Sind Appellate Tribunal. In the case, Dost Mohammad Mills Cotton Ltd. v. Mohammad Abdul Ghani and First Sind Labour Court (P L D 1975 Kar. 342). It was observed hat error of law apparent on the face of record would attract the jurisdiction of the superior Court. In this case also the High Court had jurisdiction to hear the writ filed against the order of Sind Labour Court and, therefore, this decision is also not applicable. Lastly the learned counsel for appellant relied on the judgment of the Labour Appellate Tribunal N.‑W. F. P. in the case, P.1. A. Corporation v. Akhtar All Qureshi (1974 P L C 235). In that case the services of Akhtar Ali Qureshi who was an employee of the P. I. A. Corporation, were terminated. Aggrieved by that order he filed an application under section 34 of Industrial Relations Ordinance, 1969, which was accepted by the Labour Court and he was ordered to be re‑instated. Against that order the P. I. A. Corporations went up in appeal before the Tribunal. It may be mentioned here that it is well‑established that an order passed under section 34 is not an award and hence not appealable before the Tribunal but yet the Tribunal entertained the appeal and set aside the order of the Labour Court on the ground that it was without jurisdiction. No reason war given by the learned Tribunal as to how it had assumed jurisdiction to hear the appeal. If the order of the Labour Court was without jurisdiction then the order of the learned Tribunal was also without jurisdiction. In view of the above I do not agree with the decision cited above.

6. In the result I am firmly of the view that I have no jurisdiction t hear the appeal in the instant case. The appeal is accordingly dismissed as being incompetent.