2023 PLP 125 (PLC)

YOUSUF ALI SAYEED, J.

The captioned Petition had been preferred along with the similar matters listed in Schedule 1 below (collectively the "Petitions"), impugning analogous Orders made by the Full Bench of the National Industrial Relations Commission (the "NIRC"), dismissing various Appeals filed by the Petitioner against the underlying Orders of a Single Bench in cases where the Petitioner had been directed to reinstate an employee along with back benefits.

2. The Petitions were disposed of on 15.03.2021, with two Miscellaneous Applications since being filed in each case, as specified in the aforementioned Schedule; one by the Petitioner under Section 12(2), C.P.C., seeking that the Petitions be revived for a decision on merits, and the other by the Respondent No.3, seeking encashment of the Bank Guarantee furnished before the Nazir of this Court as a condition of the interim order made on 08.02.2021.

3. As the matter gravitates around the disposal Order dated 15.03.2021, it would be appropriate to reproduce the same, which reads as follows: "The concurrent findings of two forums below, petitioner-company being an employer/ex-employer of the private respondents have challenged the findings of learned Sindh Bench / Full Bench of National Industrial Relation Commission, on the strength that there was no such observations as to reinstatement, as relied upon by the two forums below, and hence since there was no observation as to reinstatement there is no question of back benefits. Learned counsel also submits that without practically analyzing the evidence, which is yet to be ascertained through cogent evidence, summarily two forums below reached such conclusion which does not align with the evidence/material available on record. When confronted with the legal position of the case on the premise that lis between the parties have already been set at naught by the decision of the Hon'ble Supreme Court; and, the issue of back benefits has already been taken care of by the learned Single Bench of NIRC, concurred by the Full Bench of NIRC vide order dated 12.01.2021 had no satisfactory reply. Because of the above legal position of the case, and after detailed deliberations on the subject matter, both learned counsel concluded that the Petition bearing C.P No.D-225/2017, which is pending before learned Division Bench at Sukkur be heard, and till the decision, thereof the amount of back benefits, which was/is not calculated properly under the law may not be disbursed to the private respondent. Learned counsel for the petitioner further submits that the Grievance Petition filed by the beneficiaries through their attorneys was also not maintainable. Be that as it may, through this petition, we are not probing the aforesaid question at this stage, as the C.P No.D-225/2017 is pending and yet to be decided. However, we make it clear that till the decision of the aforesaid petition respondent No.1 shall not attempt for encashment of bank guarantee deposited by the petitioner-company with the Nazir of this Court vide order dated 08.02.2021 and the same shall remain lying with the Nazir, till the final decision of C.P No.D- 225/2017. In terms of the above understanding, learned counsel for the petitioners does not press these petitions, which are accordingly dismissed as not pressed, leaving the petitioners to avail their remedy before a proper forum as provided under the law. This order shall apply mutatis mutandis in all connected petitions. The office is directed to place a copy of this order in all connected petitions. These petitions stand disposed in the above terms with no order as to costs."

4. As it stands, the aforementioned C.P No. D-225/2017 had earlier been filed by the Petitioner before the Sukkur Bench, against certain interim and interlocutory orders dated 20.01.2017 and 22.9.2016 passed by the Full Bench of the NIRC and the Member NIRC respectively. However, during pendency of that Petition, the Full Bench of the NIRC finally decided the Appeal against the Petitioner vide its order dated 12.01.2021, which was then impugned by way of these Petitions at the Principal Seat.

5. Therefore, when the Petitioner sought to press C.P No. D-225/2017 in the given backdrop, the same came to be dismissed vide an Order dated 09.11.2021, with it being observed inter alia by the learned Division Bench that: "

6. As to the argument of Petitioner's Counsel that while dismissing the Petitions, the learned Division Bench at Principal Seat has permitted the Petitioner to seek adjudication of this Petition on merits is concerned, the same is not only misconceived but appears to be an outcome of some false pleadings and statement before the learned Division Bench at the Principal Seat. It is a matter of record that this Petition was dismissed for non-prosecution on 22.10.2020 against which restoration application was though filed; but remained pending for prosecution on the part of the petitioner. It is only on 13.10.2021 that the Petition was restored by recalling the order dated 22.10.2020; however, it may be noted that when the order dated 15.03.2021 was obtained from learned Division Bench at the Principal Seat, such facts were never disclosed to the Court and instead it was argued that this Petition is still pending, whereas, the matter of fact is that no such petition was pending; rather it stood dismissed for non-prosecution; and only a restoration application was pending. This appears to be a conscious attempt on the part of the Petitioner and its Counsel not to disclose correct facts before the learned Division Bench at the Principal Seat. In fact, the bench was misled and was made to believe that instant petition is not only pending, but so also it involved the main issue, whereas, this is an incorrect statement. Rather, even if this petition had been pending and not dismissed in non-prosecution, it had already become infructuous on 12.01.2021 when the final order had been passed by the Full Bench of NIRC. For the petitioner, the proper remedy was by way of impugning the final judgment of the full Bench of NIRC which had been done; but after failing to satisfy the learned Division Bench at the Principal Seat as to the merits of the case, an alternate argument was raised that the present Petition is pending before the Sukkur Bench, therefore, petitioner may be permitted to argue the Petition on merits. Such conduct on the part of the petitioner and its Counsel was unwarranted and if we may say, was an attempt, knowingly and intentionally, to mislead the Court and obtain favorable orders.

7. Para 1 of the aforesaid order dated 15.3.2021 clearly reflects that the learned Division Bench was not convinced with the arguments so raised on behalf of the Petitioner and when he was confronted, he took a plea that instant Petition is pending at Sukkur Bench, therefore, he may be allowed to agitate the controversy in this Petition. In our considered view, such fact was not properly disclosed as firstly this Petition was only in respect of some interim orders; secondly it stood dismissed when the aforesaid order was obtained and lastly even otherwise by way of an application under Order VI, Rule 17, C.P.C., this Petition could not be entertained as according to the Petitioner's own case the jurisdiction vested in the Principal Seat as the final order was passed at Karachi. Considering all these facts and after hearing the Petitioner's Counsel, we had given him an option to withdraw this Petition to which he has not conceded, therefore, by way of a short order in the earlier part of the day this Petition was dismissed with costs of Rs.50,000.00 (Fifty thousand) to be deposited in the accounts of High Court Clinic, Sukkur, and High Court Bar Library, Sukkur equally, and these are the reasons thereof."

6. Thereafter, the Petitioner assailed the dismissal of C.P No.D-225/2017 before the Honourable Supreme Court through Civil Petitioner No. 6263 of 2021, which also came to be dismissed as not pressed on 26.01.2022, with the Order reading as follows: "After arguing the matter at some length, the learned counsel for the petitioner does not press this petition and contends that the petitioner is going to file appropriate application for revival of Constitution Petitions Nos. D-521 to 606 of 2021 decided by the High Court of Sindh vide order dated 15.03.2021. The petition is dismissed as not pressed."

7. As is apparent, the attendant circumstances scarcely create fertile ground for a case of fraud or misrepresentation, and a perusal of the Application under Section 12(2) reveals it to bereft of any assertion that could validly support a plea on either score. As such, when learned counsel for the Petitioner was confronted with a query as to what the basis for the Application was, he sought to argue that the learned Division Bench seized of the Petitions on 15.03.2021 had failed to exercise its jurisdiction to decide the matter on merit, due to which the Petitioner remained condemned unheard, and contended that the Application could be entertained as such failure brought the case within the ambit and purview of Section 12(2) on a jurisdictional plane. He placed reliance on an Additional Note to the judgment of the Honourable Supreme Court of Pakistan in the case reported as Utility Stores Corporation of Pakistan Limited v. Punjab Labour Appellate Tribunal and others PLD 1987 SC 447, where, while considering the earlier decision of the Court in the cases of Muhammad Hussain Munir v. Sikandar PLD 1974 SC 139 and Zulfiqar Khan Awan v. Secretary, Industries and others 1974 SCMR 530, it was held as under:- "I cannot agree with the learned Judge in the High Court. The view of the learned Judge that this Court has ruled that even if the order of a Tribunal is wrong in law, the High Court still cannot intervene in exercise of its constitutional jurisdiction is not justified and I feel that the judgments of this Court in the cases of Muhammad Hussain Munir's case (PLD 1974 SC 139) and Zulfiqar Khan Awan's case (1974 SCMR 530) have not been read in their proper context. It is not right to say that the Tribunal, which is invested with the jurisdiction to decide a particular matter, has the jurisdiction to decide it "rightly or wrongly" because the condition of the grant of jurisdiction is that it should decide the matter in accordance with the law. When the Tribunal goes wrong in law, it goes outside the jurisdiction conferred on it because the Tribunal has the jurisdiction to decide rightly but not the jurisdiction to decide wrongly. Accordingly, when the tribunal makes an error of law in deciding the matter before it, it goes outside its jurisdiction and, therefore, a determination of the Tribunal which is shown to be erroneous on a point of law can be quashed under the writ jurisdiction on the ground that it is in excess of its jurisdiction. It needs hardly be said that under Article 4 of the Constitution of the Islamic Republic of Pakistan, 1973, it is the right of every individual to be dealt with in accordance with law. Where the law has not been correctly or properly observed a case for interference by the High Court in exercise of its Constitutional jurisdiction is made out."

8. The Application was opposed by the Respondent No.3 as being vexatious, and in that peculiar backdrop, it merits consideration that Section 2(2), C.P.C. provides as follows: "Where a person challenges the validity of a judgment, decree or order on plea of fraud, misrepresentation or want of jurisdiction, he shall seek his remedy by making an application to the Court which passed the final judgment, decree or order and not by a separate Suit." [underlining added]

9. Needless to say, there is a sharp distinction between a "want of jurisdiction" and a "failure to exercise jurisdiction", with the latter concept being far removed from the former. Indeed, in the case reported as Adamjee Insurance Company Ltd v. Pakistan through the Secretary to the Government in the Ministry of Finance, Islamabad and 5 others 1993 SCMR 1798, it was observed by the Honourable Supreme Court that "Want of jurisdiction in a Tribunal is usually described as unlawful usurpation of power". In the case of The Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others PLD 1975 SC 331, it was held that an order is to be treated void only when it is made by a Court, Tribunal or other authority which has no jurisdiction either as regards that subject-matter, the pecuniary value or the territorial limits when a dispute arose. Such an order would amount to usurpation of power unwarranted by law and accordingly it would be a nullity. In another case, reported as Ch. Muhammad Ismail v. Fazal Zada, Civil Judge, Lahore and 20 others PLD 1996 Supreme Court 246, the apex Court deconstructed the different concepts in simple terms, as follows: "Before proceeding further, we would like to explain what is meant by want of jurisdiction, excess of jurisdiction and wrong exercise of jurisdiction. If a Magistrate having no powers to decide civil suits, proceeds to decide such a suit, it will be a case of want of jurisdiction. If a Civil Judge disposes of a suit the jurisdictional valuation whereof exceeds the limits of his pecuniary jurisdiction, it will be a case of excess of jurisdiction. If a Civil Judge has pecuniary as well as territorial jurisdiction to decide a suit but decides it by mis-interpreting any provision of law or by improperly appraising the evidence on the record, it will be a case of wrong exercise of jurisdiction."

10. As such, a failure to exercise jurisdiction is a concept far removed from that of a want of jurisdiction, which this Court clearly does not suffer from. Nor does it lie in the mouth of the Petitioner to raise such a plea, when it has itself come forward to invoke such jurisdiction and even now purports to be seeking a decision on merits.

11. Furthermore, under the given circumstances, it cannot even otherwise be said that this Court failed to exercise jurisdiction, as the matter was heard and it was during the course of hearing, when a certain view was tentatively expressed as to the merits of the case, that counsel appearing on behalf of the Petitioner saw fit to stage what may at best be called a strategic retreat, by withdrawing the Petition so as to fall back on the matter then pending before the Sukkur Bench as a device to forestall encashmemt of the guarantees. The case law cited by learned counsel for the Petitioner proceeds on an altogether different basis and is thus of no avail. That being so, the Application under Section 12(2) is found to be completely devoid of merit and is in fact greatly misconceived.

12. Turning then to the Application under Section 151, C.P.C., it was argued on behalf of the Respondent No.3 that in view of the dismissal of C.P. No.D-225/2017, there was no impediment to the encashment of the bank guarantee that had been furnished and it way prayed that appropriate directions for such a step as well as distribution of the proceeds be issued to the Nazir. No serious opposition was raised to that plea by learned counsel for the Petitioner during the course of arguments independent of the submissions advanced in support of the Application under Section 12(2). Indeed in their Counter Affidavit to the Application, the Petitioner had raised only a technical plea regarding the capacity of the deponent of the affidavit in support of that application and had contended that separate applications ought to be filed in all the Petitions, rather a consolidated application in C.P. D-521 of 2021. However, the substance thereof was not contested on merits beyond the contention that the Order dated 15.3.2000 had been impugned through the Petitioner's own Application under Section 12(2). Those technical objections also appear to be misplaced as the deponent of the affidavit is apparently the attorney of the respective respondents and applications are available across the Petitions, as mentioned in the Schedule.

13. Under the given circumstances, the Application of the Petitioner under Section 12(2), C.P.C. stands dismissed with costs of Rs.5,000/- (five thousand) to be deposited towards the Prime Ministers Flood Relief Fund within 7 days of the date of announcement of this Order and the receipt submitted before the office, while the Application of the Respondent No.3 under Section 151, C.P.C. stands allowed, with the Nazir being directed to encash the bank guarantee and pay over the amount realised to said Respondent upon proper identification.

14. This Order applies mutatis mutandis across the Petitions, with the pending applications specified in the Schedule standing allowed or dismissed in each case in the foregoing terms, including costs. For any further part of the claim as may remain unsatisfied, the Respondent may approach the appropriate forum. SCHEDULE I Sr. Case No. CMAs Nos. (Appl under section 151) CMAs Nos. (Appl under section 12(2) 01 521/2021 39392/2021 4141/2022 02 522/2021 836/2022 26260/2022 03 523/2021 835/2022 26261/2022 04 524/2021 834/2022 26262/2022 05 526/2021 841/2022 26264/2022 06 527/2021 837/2022 26265/2022 07 528/2021 840/2022 26266/2022 08 529/2021 842/2022 26267/2022 09 530/2021 843/2022 26268/2022 10 531/2021 844/2022 26269/2022 11 532/2021 847/2022 26270/2022 12 533/2021 848/2022 26271/2022 13 534/2021 849/2022 26215/2022 14 535/2021 976/2022 26216/2022 15 536/2021 975/2022 26218/2022 16 537/2021 850/2022 26221/2022 17 538/2021 977/2022 26240/2022 18 539/2021 978/2022 26241/2022 19 540/2021 854/2022 26242/2022 20 541/2021 867/2022 26243/2022 21 542/2021 868/2022 26244/2022 22 543/2021 869/2022 26245/2022 23 544/2021 873/2022 26246/2022 24 545/2021 880/2022 26247/2022 25 546/2021 883/2022 26248/2022 26 547/2021 973/2022 26249/2022 27 548/2021 874/2022 26250/2022 28 549/2021 877/2022 26251/2022 29 550/2021 878/2022 26252/2022 30 551/2021 884/2022 26253/2022 31 552/2021 - 26254/2022 32 553/2021 852/2022 26255/2022 33 554/2021 851/2022 26256/2022 34 555/2021 886/2022 26257/2022 35 556/2021 885/2022 26258/2022 36 557/2021 971/2022 26259/2022 37 558/2021 972/2022 26217/2022 38 559/2021 888/2022 26219/2022 39 560/2021 887/2022 26222/2022 40 561/2021 979/2022 26223/2022 41 562/2021 980/2022 26272/2022 42 563/2021 969/2022 26273/2022 43 564/2021 981/2022 26274/2022 44 565/2021 982/2022 26275/2022 45 566/2021 983/2022 26276/2022 46 567/2021 984/2022 26277/2022 47 568/2021 985/2022 26278/2022 48 569/2021 986/2022 26279/2022 49 570/2021 987/2022 26280/2022 50 571/2021 853/2022 26281/2022 51 572/2021 974/2022 26282/2022 52 573/2021 988/2022 26283/2022 53 574/2021 1021/2022 26284/2022 54 575/2021 1022/2022 26285/2022 55 576/2021 1020/2022 26286/2022 56 577/2021 1019/2022 26287/2022 57 578/2021 1018/2022 26288/2022 58 579/2021 1017/2022 26289/2022 59 580/2021 1016/2022 26296/2022 60 581/2021 1015/2022 26291/2022 61 582/2021 1014/2022 26292/2022 62 583/2021 1013/2022 26293/2022 63 584/2021 1012/2022 26294/2022 64 585/2021 1011/2022 26295/2022 65 586/2021 1010/2022 26296/2022 66 587/2021 1008/2022 26297/2022 67 588/2021 1009/2022 26298/2022 68 589/2021 989/2022 26299/2022 69 590/2021 1007/2022 26220/2022 70 591/2021 1006/2022 26224/2022 71 592/2021 1005/2022 26225/2022 72 593/2021 1004/2022 26226/2022 73 594/2021 1003/2022 26227/2022 74 595/2021 1002/2022 26228/2022 75 596/2021 1001/2022 26229/2022 76 597/2021 1000/2022 26230/2022 77 598/2021 999/2022 26231/2022 78 599/2021 998/2022 26232/2022 79 600/2021 997/2022 26233/2022 80 601/2021 996/2022 26234/2022 81 602/2021 995/2022 26235/2022 82 603/2021 994/2022 26236/2022 83 604/2021 993/2022 26237/2022 84 605/2021 - 26238/2022 85 606/2021 992/2022 26239/2022 MH/F-2/Sindh Order accordingly.