1976 PLP 865 (PLC)

Sardar Mohammad v. General Manager, Lyallpur Cotton Mills ref. Mohammad Asghar Malik for Petitioner. Lt: Col. Inayat Ullah for Respondent. Prayer for interim relief was rejected as nobody appeared for the petitioner and that was opposed by the learned counsel for the respondent vide order of this Court dated 5-8-1976. The petitioner filed an application on the ground that his learned counsel had inadvertently noted the date as 6-8-1976 and he prayed for suspension of the impugned order. This application was admitted and notice was given to the respondent. Learned counsel for the respondent has opposed the application on merits and contested the grant of the prayer for suspension of the impugned order. Therefore, the previous order dated 5-8-1976 for the reasons given in the application is recalled and the prayer for suspension of the impugned order is determined on its merits.

2. The petitioner was working as a Chowkidar/Palledar under the respondents Nos. 3 and

4. He was removed from service by the employer on the ground of alleged theft. He filed an application under section 25-A of the Industrial Relations Ordinance, 1969 which was allowed by the learned Punjab Labour Court No.1, Lahore and the petitioner was directed to be re-instated, though he was not allowed back benefits. This is vide order dated t0-3-1676. The employer challenged this order by means of an appeal. So did the petitioner for back benefits. The learned Appellate Tribunal accepted the appeal of the employer, set aside the decision of the learned Punjab Labour Court and dismissed the petitioner's appeal. This is vide order dated 12-7-1976. The petitioner challenged the last mentioned order by means of a writ petition. It was admitted as it was contended that "Mushtaq Ahmad acted as a complainant, witness and Judge in the same cause which is contrary to rules of natural justice and the objection could not have been overruled by calling the same to be a technical flaw. It went to the roots of the matter." As regards prayer for suspen sion of the impugned order, notice was issued to the respondents.

3. Learned counsel appearing for the petitioner has contended that the order challenged in writ petition is without lawful authority because the learned Appellate Court had restored the order of termination of the service of the petitioner which had come about in proceed ings in which the same person was a complainant, witness and a Judge. The petition stands admitted. The petitioner has resumed duty under the order of the Punjab Labour Court dated 10-3-1976, directing the reinstate ment of the petitioner on 16-3-1976. The appellate order being void, the petitioner would be deemed to be in service and his removal there from in pursuance of the appellate order is of no legal effect. Thus, the petitioner being in service is entitled to remain so and the operation of the impugned order should be suspended. He has placed reliance on Syed Mazhar Ali Shah v. Agricultural Development Bank of Pakistan and another (P L D 1971 Lah.1002) The learned counsel for the petitioner had further submitted that since the petitioner is an ordinary worker and the intention of the law governing him i.e. the Industrial Relation Ordinance, 1969 is that he should not be kept out of job for more than twenty days, therefore, the petitioner is entitled to relief. 3-A. Learned counsel appearing for the respondents has stated that after the order of the Appellate Tribunal dated 12-7-1976, accepting the res pondent's appeal, the petitioner was removed from service on 13-7-1976. Therefore, he is out of service and no order can be passed directing re instatement. He has placed reliance on Imam Bux v. Province of West Pakistan through the Deputy Commissioner, Khairpur (1970 S C M R 491). He has submitted that the judgment relied upon by the learned counsel for the petitioner is of a previous date than the judgment referred to by him besides that the former is by High Court and the latter is by the learned Supreme Court of Pakistan.

4. The question that requires determination at this stage is as to whether the order of the learned Appellate Tribunal dated 12-7-1976 should be suspended during the pendency of the writ petition which stands admitted on the ground above mentioned. It may be noticed that the learned Appellate Tribunal bad itself in another case oft the same ground accepted the appeal of an employee, tie reference being to Sardar Muhammad v. General Manager, Lyallpur Cotton Mills, decided on 3-8-1976, and his order was upheld by this Court in writ petition No. 2049/76 on 10-8-1976 on 10-8-1976. Thus, prima facie the, petitioner has an arguable case. As regards balance of convenience, it is true that if the petitioner succeeds, he would be entitled to his wages for the period during which he would remain out of job under the illegal order. But in the circumstances of the case, it cannot be lost sight of that the petitioner is an ordinary Chowkidar/Palledar. Obviously, he would be living on his wages. He cannot wait till the day of judgment on the hope of having accumulated wages. He must need them day to day. The employer is a statutory body. It would suffer no irrepar able loss if it pays the wages of tie petitioner who would obviously have to work and render service. Therefore, there is no doubt that the balance of convenience lies in favour of the petitioner. The judgment referred to by the learned counsel for the respondent has given considerable anxiety. The principles laid down therein are, of course, beacon light for determina tion of like controversies. But the facts of the case were different. The High Court had vacated the stay order. The then petitioner sought special leave to appeal from the judgment. The leave was refused. Moreover, the petitioner in that case was a Government Servant. Constitutions and terms of service were different. The petitioner in the present case is an ordinary Chowkidar/Palledar. His terms of service are regulated by a special statute designed to help him. In all the circumstances of the case, the case referred to by the learned counsel for the respondents is not applicable to the facts of the case. 4-A. In view of the ground on which the petition stands admitted and in all the circumstances of the case as stated above, the operation of the impugned order of the learned Appellate Tribunal dated 12-7-1976, is suspended subject to the petitioner's furnishing security for the payments made to him to the satisfaction of his immediate controlling authority Since the petition involves a short question and relates to service of an ordinary wage earner, the same should be fixed for final hearing before the year is out. Order accordingly.