1981 PLP 429 (SCMR)

SHAFl-UR-REHMAN, J.-The petitioner, seeks leave to, appeal against the judgment of the Lahore High Court dated 20-8-1978 whereby a constitutional petition filed by him was dismissed in limine on the ground that there was a concession by his counsel that he was "fighting only an academic matter" and the abject of the petition was to have future guidance".

2. The petitioner is the employer and the respondent No. 3 an employs being an officer Grade III. On complaints received the respondent was caught red-handed in a trap while receiving illegal gratification. He was proceeded departmentally. An inquiry was held to Which he did not parti cipate. It was concluded ex parse and was followed by a show-cause notice and ultimately an order of his dismissal from service on 1-6-1976. The respondent instituted proceedings under section 25-A of the Industrial Relations Ordinance and failed in the Junior Labour Court. On appeal be succeeded and the order of his dismissal was set aside and re-instatement was ordered as it was found that the Vice-President who had taken the material steps leading to his dismissal was in the circumstances of the case a Judge in his own cause.

3. The petitioner challenged the decision of the Appellate Labour Court in constitutional jurisdiction. When the matter came up for hearing the learned Judge found that in compliance with the order of the Labour Appellate Tribunal's decision the respondent had already been . re-instated in service. The constitutional petition was dismissed in limine on 20-8-1978 by a short order which is as follows: "Learned counsel concedes that he is fighting only an academic matter Respondent No. 3 has already resumed duty and that this petition i5 being filed to have future guidance. In the context of the re-instate ment of respondent No. 3, the question of past benefits would only be a consequential and the parties may agitate the same before appropriate forum and cannot be a proper subject-matter of the present petition. In view of the statement of the learned counsel, I need not go into the merits of the case. I dismiss the writ petition in limine."

4. The, learned counsel for the petitioner contends that the reinstate ment of the respondent had taken place under protest and was subject to tile litigation in which the petitioner was engaged and the matter before the High Court was neither academic nor had been rendered infructuous by such re-instatement. On merits it is contended that the dismissal order was passed by a different Vice-President than the one who initiated the case against the respondent and it was not a case of the employer being a Judge in his own cause. Besides, it is contended that the respondent was an officer and the Labour Court had no jurisdiction with regard to the terms of his employment. The order of dismissal, according to the learned counsel, was also supportable on the ground that he was caught red-handed and in terms of Wage Commis sion Award an elaborate inquiry into the matter was quite unnecessary.

5. It is true that the re-instatement of the respondent in the circum stances in which it took place did not either render the proceedings in the High Court infructuous or made it academic only. The re-instatement was pursuant to the order of the Appellate Labour Tribunal which was final and had to be complied with. The compliance was under protest and subject to the result of the litigation. It was not conclusive of the matter.

6. As regards the question whether respondent No. 3 on facts stated by him was not a workman, or that he was not subject to the jurisdiction of, the Labour Court we find that this specific objection was not raised and, consequently has not been dealt with by any of the Tribunals where adjudication has taken place. We would not, therefore, like to entertain for the first time this controversial question which is in fact a mixed question of law and fact.

7. We find from the record that in fact Mr. Abdul Qayyum the then Vice President had initiated the proceedings against the respondent, had, banded over the tainted money for laying the trap, and had at the concluding stages supervised the trap and. witnessed a part of the transaction. He had also served the charge-sheet and the show-cause notice to the respondent and had appeared as a witness in the proceedings against him. In the circum stances his involvement in the proceedings was more than that of a witness and it would, as held by the Appellate Labour Tribunal, make him a Judge in his own cause which situation could have been avoided.

8. On the facts of this case and the circumstances fully brought out on record we find that the petition raises no such question of law as may require consideration of this Court or could possibly be of benefit to the petitioner. Hence leave to appeal is refused. Nevertheless, the adjudications will be no impediment in taking legal steps against respondent No. 3 in accordance with the law applicable to him and in proceedings which are fait and just and have also the appearance of being so. Appeal dismissed.