P L D 1969 Dacca 94 (PLP)

B. A. SIDDIKY, J.‑This Rule under Article 98 of the Constitution was obtained by the petitioner against the order of Labour Court No. 2 of East Pakistan. The case of the petitioner in brief was that he was an employee of Burmah‑Shell Oil Storage and Distributing Company .of Pakistan Limited since 1948 as a Stenographer until 31st July 1965. In July 1965 a new Company under the name and style of Burmah Eastern Limited was incorporated and it took over the marketing Part of the business of the said Burmah‑Shell Oil `Storage and Distributing Company of Pakistan Limited. The services of the petitioner along with other employees of the Marketing Section of the Burmah‑Shell Oil and Burmah Oil Company were terminated and the petitioner along with others were given fresh appointment under the Burmah Eastern Limited. There was an agreement between the Burmah Shell and Burmah Eastern that they (Burmah Eastern Limited) will take over the staff of the Burmah Oil Company on terms to be fixed by them. The petitioner was then appointed by Burmah Eastern Limited as `Stenographer from the 1st August 1965 on fresh terms and conditions. But it is said by the petitioner that the letter terminating his services with his previous employer gave an .assurance that his service would be continued on the same terms and conditions by the new employer. But subsequently it was found that the new terms and conditions given to him by his mew employer the Burmah Eastern Limited were much inferior and disadvantageous to him. However, he accepted the new terms and conditions in writing and joined his post under, the Burmah Eastern Limited and continued to work with the new employer. In November 1965 he was transferred to Chittagong with effect from 1st December 1965. The petitioner protested against the said order of transfer and requested the Manager of Burmah Eastern Limited in writing to cancel permanently his illegal and mala fide order of transfer to Chittagong. The Manager instead of cancelling the said order only deferred it till 31st December 1965: Thereafter the petitioner took 4 days casual leave from 3‑1‑66 to 6‑1‑

66. But he was asked to join at the Chittagong office of the Company on the expiry of the said leave. The petitioner again requested the Manager to cancel the order of transfer permanently by a written memorandum dated 6‑1‑66 but instead of cancelling the said order of transfer the petitioner was asked not to attend Dacca office with effect from 7‑1‑66 but to join at the Chittagong Office. On 6‑1‑66 the petitioner alleges to have made verbal: representation to the Manager at Dacca but instead of redressing his grievance the manager asked the petitioner to proceed to, Chittagong and join there on 10‑1‑66 thereby he allowed the petitioner 3 days joining time between 6th and 10th. Thereafter on the 18th January 1966 the Installation Labour Officer of the Burmah Eastern Limited at Chittagong by his letter No. DDO‑1/36 dated 18‑1‑66 asked the petitioner to show cause within 7 days from 19‑1‑66 why he should not be dismissed from: service for absence without leave for more than 10 days. There said show cause notice dated 18‑1‑66 was received by the petitioner at Dacca on 27‑1‑

66. Thereafter the Company by its letter DDO‑1/49 dated 28‑1‑66 which was received by the petitioner on 8‑2‑66 dismissed the petitioner from the services of the Company. On 9‑2‑66 the petitioner made a representation, against the order of dismissal to the Installation Labour Officer Chittagong, with a copy to the Dacca Manager of the said company protesting against the dismissal from service mentioning that the show‑cause notice was received by him on 27‑1‑

66. The Company then sent a reply to that representation through its lawyer in which the company refused to recall the order of dismissal. It is further alleged that on receipt of show‑cause notice on 27‑1‑66 the petitioner personally met the Dacca Manager of the Company on 28‑1‑66 and represented that the show‑cause notice was nothing but a vindictive action on the part of the Company for his Trade Union activities and that be has been given: no opportunity to make representation against the said notice. But the Dacca Manager of the Company informed the petitioner that he had already been dismissed from the service of the Company. Here it may be mentioned that the petitioner was the President of the Burmah‑Shell Oil Company's Employees' Union. Then it is said that the petitioner has filed a suit in the Court of the Munsif at Dacca on 20‑12‑65 for a declaration that the order of transfer of the petitioner from Dacca to Chittagong and the terms imposed on him under the contract are unjust, illegal ands as such is of no legal effect. It is alleged that the petitioner has. been dismissed as a retaliatory measure by the Company against his filing of the suit. On 9‑2‑66 the petitioner alleges to have filed a grievance petition to the respondent No. 1 protesting against his order of transfer to Chittagong to which the Company replied on 12‑4‑66, Thereafter the petitioner filed a complaint before the 1st Labour Court of East Pakistan on 28‑3‑66 which was transferred to the 2nd Labour Court on 8‑9‑

66. The complaint petition before the Labour Court was filed challenging the order of transfer of the petitioner to Chittagong as well as the terms and conditions imposed on him by his new employer. Later on an amendment to the plaint was sought and allowed, by which the question of insufficiency of the notice for show cause under section 18 of the Standing Orders was also raised. The petitioner has, in his petition, challenged the order of dismissal of the petitioner being illegal, male fide, wrongful and having been passed without any lawful authority and as such of no legal effect. The Labour Court by its judgment dated 3‑1‑67 dismissed the complaint petition of the petitioner on the ground that the petitioner is not entitled to any relief sought under the said petition and also that there has been no violation of the provision of section 18 of the Standing Order by the employer in dismissing the petitioner. Of the two respondents, namely, (1) Burmah Eastern Limited (2) Second Labour Court of East Pakistan, only respondent No. 1 has put in appearance and contested the Rule by filing affidavit‑in opposition. In the affidavit‑in‑opposition it is stated that there has been no violation of any statutory provision by the respondent No. I in passing the dismissal order of the petitioner from the services of the Company, respondent No. l has further stated that the peti tioner at no point of time raised the question of violation of any of the provisions of the Standing Orders by the Company in dismis sing him. The question of non‑observance of the provision of section 18 of the Standing Orders was never raised by the petitioner either in writing or verbally when on 6th January and 28th January he met the Manager of the Dacca Office. All the grievances that he made was that his order of transfer to Chittagong was illegal, male fide and motivated and therefore that should be cancelled permanently. Secondly it is alleged by the respondent No. 1 that there has been no illegality committed by the Labour Court in dismissing the complaint petition of the petitioner. Mr. K. M. Subhan, the learned Advocate for the petitioner argued with some emphasis the point of non‑observance of the provision of section 18 of the Standing Order by respondent No. 1 in dismissing the petitioner. The relevant portion of section 18 of the least Pakistan Employment of Labour (Standing Orders) Act, 1965 reads thus: ‑ "Procedure for punishment.‑(1) No order for discharge or dismissal of a worker shall be made unless‑‑ (a) the allegations against him are recorded in writing. (b) he is given a copy thereof and not less than three days' time to explain; (c) he is given a personal hearing of such a prayer is made; and (d) the employer or the manager approves of such order." The order of dismissal passed by the Installation Labour Officer of respondent No. 1 was approved by the Manager of Operation Department of the said Company. It is the case of the petitioner that the petitioner having not been given any opportunity to show cause as provided for in clauses (b) & (c) of section 18(1) of the Standing Order the order of dismissal itself is bad in law and the Labour Court having not found so, the Judgment of that Court is without lawful authority and as such is of no legal effect. Mr. Subhan strenuously argued that the giving of an opportunity to the petitioner to show cause as to why he should not be dismissed is not only based on the principle of Audi alteram partem but is a statutory obligation on the part of the employer as provided in section 18 of the Standing Orders Act. Therefore it is not found that the employer has not fulfilled his obligation under the law his order of dismissal of the petitioner cannot be held to be good and the Labour Court having not so found its judgment is without lawful authority and is of no legal effect. In that view of the matter the jurisdiction of this Court under Article 98 of the Constitution is attracted and the petitioner is entitled to agitate the question before under the said Article. The writ sought for is in the nature of certiorari. According to Mr. Subhan there are errors apparent on the face of record, i.e. the judgment of the Labour Court with regard to the non fulfilment of the statutory obligation by the employer and his not having found so. It has not been denied by Mr. Subhan that the petitioner did not make any grievance of his having not been given opportunity to show cause prior to the order of dismissal was passed and until he amended his complaint petition before the Labour Court. To recapitulate some of the facts necessary to consider this point raised by Mr. Subhan we may say that the petitioner was transferred to Chittagong on 19th November 1965 and he was directed to join Chittagong office of the Company from the 1st of December of that year. The petitioner objected to his order of transfer and asked the Company to cancel the same permanently. On his representation the Company instead of cancelling the order of transfer of the petitioner deferred it till 31st December 1965. This meant that the petitioner was to join the Company's office at Chittagong to which he was transferred on 1st January 1966. Instead of joining Chittagong on 1st January 1966 the petitioner prayed for 4 days casual leave from 3 to 6th January 1966 both days inclusive. This leave was granted to the petitioner but he was asked to join Chittagong on the expiry of the said casual leave. On the 6th January 1966 the petitioner sate the Dacca Manager of the Company and protested against his order of transfer and demanded permanent cancellation of it. The Manager did not yield to his protest, instead he asked him to joint Chittagong office on 10th January allowing him 3 days joining time from 7th to 9th. The petitioner thereafter did not either report at Chittagong office of the Company or at Dacca office and kept completely silent and did not even inform the Company about his whereabouts until 28th January when he appeared before Dacca Manager and again protested against his transfer to Chittagong. In the meantime the Company having waited for the petitioner to join his post at Chittagong either on the 10th January or on any date after that issued a notice on 18th January asking him to show cause within 7 days from 19th January 1966 as to why he should not be dismissed from the services of the Company for absenting himself without leave for more than 10 days. This notice was under section 17 of the Standing Order. Clause (d) of section 17 of the Act provides that habitual absence without leave for more than 10 days will be construed as misconduct on the part of the employee under section 18 of the Act. This show‑cause notice dated 18th January 1966 giving him time for 7 days from 19th of that month was received by the petitioner on 27th January 1966. Having received this notice of show cause the petitioner is not found to have shown any cause in writing to the Company nor has he made a grievance that 7 days period from 19th January having expired on the 25th of that month and the notice having been received by him on the 27th he should be granted some more time to explain his conduct. It is said that the petitioner went and saw the Manager and protested against the illegal order of transfer to Chittagong. He also said that he mentioned about the show‑cause notice to the Manager on 28th January when he protested against the illegal order of transfer. But the respondent No. 1 has denied this interview of the petitioner with his Dacca Manager. The affidavit‑in‑opposition of the respondent No. 1 has been sworn by one Erfan Ahmed who described himself as Area Sales Manager, Dacca. This is the gentleman whom it is said the petitioner had met on the 28th January 1966 We do not find anything on record from the petitioner's side or from the side of the respondent No. 1 from which it can be said that the petitioner bad in writing protested against the insufficiency of time for showing cause. What we find is a reference in the letter of the petitioner dated 9th February 1966 addressed to the Installation Labour Officer, Burmah Eastern Limited, Chittagong with regard to a discussion that the petitioner had with the Dacca Manager on 28th January 1966. This is found at the foot of the letter where it is mentioned that a copy of this letter was forwarded to the Dacca Manager. Not a word in this letter dated 9th February 1966 about the show -cause notice has been said by the petitioner. This letter has been annexed to the petition as Annexure 'C'. In these facts and circumstances of the case we cannot accept the position that the petitioner had made any grievance of his having not received the show‑cause notice or having not got sufficient time to show cause after getting notice, to the Dacca Manager even when he alleges he met him on the 28th. In the face of the denial of the respondent that there was another meeting between petitioner and the Dacca Manager on 28‑1‑66, we cannot accept the assertion of the petitioner that he at all met the Dacca Manager on 28th January. The letter dated 9th February 1966 is quoted below in extenso:‑ Mansoor Ahmed, 66, Elephan Road, Dhanmondi, Dacca‑2. 9th February 1966. To The Installation Labour Officer, Burmah Eastern Limited, P. O. Box No.

4. Chittagong. Sir, I am very much surprised to receive your letter Ref. DDO‑1/94 dated 28‑1‑1966, and your letter No. DDO‑1/36 dated 18th, January 1966, received by me on 27th January 1966. Please note that on 6‑1‑66, I have informed the Dacca Manager of Burmah Eastern Limited in writing that:‑ "I beg you to refer to my application dated 20‑11‑65 and note that I cannot proceed to Chittagong to carry out your order of transfer, which is unlawful, unreasonable, mala fide and victimising. I shall be grateful if you would kindly allow me to continue to serve in my post at Dacca like the other Stenographers. The Dacca Manager, in his reply, Ref. No. Staff. P./F. dated. 6‑1‑66 stated that: ‑ "We refer to your letter dated 6‑1‑66 and to your call on the, undersigned this morning, we confirm having informed you that order of transfer stands and that you are required to join Chittagong Office. We need hardly add that the contents of your letter under reference are untrue." A copy of my above‑mentioned letter dated 6‑1‑66 was also forwarded to the General Manager of Burmah Eastern Limited, Chittagong, by Registered Post with A/d. It is, therefore, very clear that your charge of "absence without leave for more than 10 days" is absolutely false and baseless, because I have neither joined the Chittagong Office nor your installation near Chittagong. It is also very clear that you have issued your said letter dated 28‑1‑1966 without having jurisdiction and in collusion with the Dacca Manager of Burmah Eastern Limited. Therefore, your order of dismissal is illegal, mala fide and void, and as such not binding upon me. Yours obedient, M. Ahmed. Dated Dacca, the 9th February 1966. Copy forwarded to the Manager, Burmah Eastern Limited, 32 Jinnah Avenue, Dacca‑

2. I beg you to refer to my discussion with you on 28th January and shall be grateful if you would kindly treat the Chittagong Installation Labour Officer's letter Ref. DDO‑1/36 dated 18‑1‑66 and Ref. DDO‑1/49 dated 28‑1‑1966 as illegal, mala fide and void, and allow me to continue to serve in your office as before. Yours obediently, M. Ahmed." From the last paragraph of the said letter it will be seen that he has indirectly mentioned about his absence without leave for more than 10 days but that too alleging that such a charge was false and baseless as he neither joined the Chittagong Office nor the Installation Establishment of the Company at Chittagong. All that he challenged in this letter is the order of dismissal passed on him but on a ground completely different than one under section 18 of the Act. This letter of the 9th February 1966 is termed as the grievance petition contemplated under section 25(1) (a) of the Act. We find no reason for the petitioner not to have written to the Company either on the 27th or 18th or any day thereafter, stating that, he received the show‑cause notice beyond the time fixed therein for his explanation and as such he should be given an opportunity to show cause. He could have as well‑shown cause even after 27th and in that could have prayed for extension of time stating reasons for the delay in showing cause. Nothing of the sort was done by him. For the first time on the 9th February he came with a petition of grievance which we have quoted above in which he challenges the order of dismissal but not on the ground of want of notice but on the ground of being dismissed for absenting himself without leave or permission for more than 10 days. According to him his not joining at Chittagong Office could not be construed as absenting from duties for more than 10 days without leave or permission for which a major punishment in the nature of dismissal can be imposed on him. The basis of complaint of the petitioner before the Labour Court is this letter of 9th February 1966 which is the petition of grievance under section 25 (1) (a) of the Act. In his petition of complaint before the Labour Court, as we have already observed, the petitioner at the first instance did not make any grievance of want of notice under section 18 or inadequacy of time as contemplated by the said section for giving explanation. Later on he amended his petition and brought in the question of section

18. However, since this amendment was allowed by Labour Court we may take it that he had complained of inadequacy of time. The Labour Court has dealt with the question of notice under section 18 in extenso. It has held against the petitioner on this point of notice under section

18. The basis of that finding, according to Mr. Subhan, is that the Court having not found any merit in the petitioner did not like to consider the point of no notice or insufficiency of time under section

18. According to Mr. Subhan the statutory obligation under section 18 is imposed on the employer and there is no corresponding obligation cast on the employee. According to Mr. Subhan to the present case since the notice of employer does not show that the petitioner should show cause within 3 days from date of receipt of the notice, and the notice having been received beyond the time fixed in it for showing the cause there has not been any compliance of section 18 by the employer. We cannot interpret section 18 in the light as Mr. Subhan asked us to do. We are of the opinion that section 18 of course imposes an obligation on the employer to give a notice to the employee and sufficient time, namely, 3 days as mentioned in the section itself to enable him to show cause against the proposed punishment. But that does not mean that more than I days time cannot be given. In the present case the employer gave notice on the 18th January to show cause within 7 days from the 19th of that month. The letter was sent by registered post from Chittagong to Dacca which according to evidence on record was received by the Dacca Post Office on the 20th January but it was delivered on the 27th January. An employee of the Postal Department came to depose in this case and according to him although 3 working days were available between the Juma‑tul‑Wida and Eid holidays yet he could not explain as to why this letter was not delivered to the petitioner on the days when there was no holiday for the Post Office. However, so far as the employer is concerned it cannot be said that he did not comply with the requirement of the section 18 when it was found that he bad sent the notice to the petitioner on 18th giving him 7 days time to give explanation beginning from the 19th of that month. In ordinary course it was expected that the letter would reach the petitioner within 3 days at the maximum and he will have sufficient time to reply to it within the time allowed. In the facts of the present case even if it is held that the petitioner did not receive the letter within time and submit his explanation within the time allowed, i.e., by 25th January 1966, yet we cannot find any reason for the petitioner not to have moved the employer by either a telegram or a letter asking for extension of time stating the reason therefore. If he would have done so, we do not think that the employer would be so unreasonable as not to extend the time. In the facts of the present case the petitioner alleges that he went on 28th January 1966 and met Dacca Manager and told him about the notice verbally but it is not understood as to why he did not put in writing the reasons for his inability to show cause within the time allowed and to not have asked for an extension of time. He received the letter of dismissal on 8th February 1966 and on the 9th he came forward to file the grievance petition which is the basis of this case vide Annexure `C'. He does not seem to have made any grievance regarding insufficiency of time. His main and only grievance was transfer from Dacca to Chittagong. He did not as is evidenced from facts, bother himself about the show‑cause notice. In these circumstances we cannot held that there has been a violation of the provision of section 18 by the Employer. So far as the employer is concerned he had given time, but unfortunately the petitioner could not avail of the time not for the laches of the employer. Having gone through all the papers placed on record and the arguments of the learned Advocates of the parties we have no manner of doubt in our mind that the petitioner never considered the show‑cause notice to be of any importance because his case all throughout was and has been and still is tats transfer to Chittagong and his demand was for nothing else but permanent cancellation of the transfer order. It cannot be said that the petitioner had no knowledge of the proposed action of the Company till the 9th February 1966. Within that date he made, as we have already observed, no protest against want of time for showing cause and after that date be made no grievance of either want of notice or want of sufficient time until at the last moment when it was possibly thought that he had no case on merits and raised the question of notice by way of amendment of his complaint petition filed before the Labour Court. Mr. Haider Mota, the learned Advocate for the respondent No. 1, has contended that the impugned judgment of the Labour Court is not without lawful authority and that error of law will not render the Judgment to be without lawful authority and assuming that there was error of law, that alone would not render the judgment to be without lawful authority. It must be established that the impugned order is without legal effect. Further contentions of Mr. Haider Mota were that the Act does not provide that whenever an order of dismissal is passed in breach of section 18 the reliefs contemplated under section 25(d) shall ipso facto be granted. And in the present case the Labour Court having found that there has not been wrongful dismissal the petitioner is not entitled to relief because of his conduct and it is the discretion of the Labour Court to grant the relief asked for by the petitioner and the Labour Court has exercised its jurisdiction within bounds of law and not arbitrarily. This Court therefore shall not interfere with the said order of the Labour Court. It is now a settled law that a judgment cannot be said to be without lawful authority if it is found that the Tribunal which passed it had the jurisdiction under the law to do so. . It is only when there is want of inherent jurisdiction in the Court that the judgment is without lawful authority and only the judgment which is without lawful authority is without any legal effect. In support of his point Mr. Mota referred us to a decision of the Supreme Court in the case of Mian Jamal Shah v. The Member, Election Commission, Government of Pakistan, Lahore (P L D 1966 S C1). He placed his reliance specifically on passages occurring at pages 20, 47, 49 and 57, Mian Jamal Shah's case was decided mainly on Article 171 of the Constitution. But their Lordships have also made observations on the exercise of power by the High Court under Article 98 of the Constitution. Their Lordships held that unless it is found that an authority or a Court has acted without jurisdiction the High Court should not interferes with the order under Article 98 of the Constitution. Mr. Subhan in answer referred us to a passage appearing in the judgment of the learned Chief Justice in that case at pages 25 and 26 of the report. That passage does not run counter to the passages at pages 20, 47, 49 and

57. It is no doubt true that the High Court will exercise its power under Article 98 when it finds that the subordinate Court or authority contemplated by the said Article either acted without jurisdiction or has acted in violation of any legal provision. There is no controversy with regard to this principle. We may in this connection also refer to a decision of Indian Supreme Court reported in A I R 1955 S C 425, Bose, J who delivered the judgment of the Court in para. 14 of it said:‑ "That, however, is not to say that the jurisdiction will be exercised whenever there is an error of law. The High Courts do not, and should not, act as Courts of appeal under Article 226." Their powers are purely discretionary and though no limits can be placed upon that discretion it must be exercised along recognised lines and not arbitrarily; and one of the limitations imposed by the Courts on themselves is that they will not exercise jurisdiction in this class of cases unless substantial injustice has ensured, or is likely to ensure. They will not allow themselves to be turned into Courts of appeal or revision to set right mere errors of law which do not occasion injustice in a broad and general sense, for, though no Legislature can impose limitations on these constitutional powers it is a sound exercise of discretion to bear in mind the policy of the Legislature to have disputes about these special rights decided as speedily as may be. Therefore, writ petitions should not be lightly entertained in this class of cases." This observation was made in regard to the provisions of Article 226 of the Indian Constitution which is akin to the provisions of Article 98 of our Constitution. It is therefore clear that this Court will not convert itself into a Court of appeal or Court of revision to correct each and every error appearing on the face of record which does not occasion any injustice. We ourselves hold the same view and our view is fortified by the judgment of our Supreme Court as well as by the view expressed by Bose, J. of the Indian Supreme Court. In the present case upon the facts which we have elaborately discussed we take the view that far from non observance of the statutory provision under section 18 by the respondent No. 1 there has been an observance of it but unfortunately due to non‑delivery of the letter to the petitioner in time he could not reply to the charges within the time allowed, but he, as we find, did not take any step to move on the ground of delay in receiving the letter and asking for extension of time. His case has never been, as we have already observed, that his order of dismissal is bad because of non‑observance of section

18. His case throughout is that he cannot be transferred to Chittagong and that order is bad in law and motivated and therefore he did not comply with that order and for such non

1. The exercise of power in Article 98 must necessarily be in a case where it is found that there has been flagrant violation of legal provision and/or that there is no jurisdiction vested in the authority whose judgment is challenged before us. Power under Article 98 is certainly discretionary and this discretion, this Court uses only when it finds that there has been flagrant violation of any legal provision or that there has been substantial injury or injustice done to the person seeking relief under Article

98. We are clear in our mind that, otherwise the writ jurisdiction cannot be invoked and certainly not in the facts and circumstances of the present case. We therefore find no substance in this rule. The Rule is accordingly discharged but we leave the parties to bear their own costs. ABDUL MOUDUD, J.‑I agree. A. H. Rule discharged.