1990CLC1086 (PLP)

SAEEDUZZAMAN SIDDIQUI, J.‑‑We propose to dispose of the above‑mentioned three High Court Appeals by a common judgment as the points of law and facts involved in these cases are identical. The appellants in the above cases are employees of the respondent. They were charged with negligence and carelessness in performance of duties on 14‑1‑1983, and after domestic enquiry their services were terminated on 20th June, 1983. The petitioners preferred separate grievance petitions under section 25‑A of the Industrial Relations Ordinance, 1969 (I.R.O.) before the Labour Court at Karachi. The respondent on being served with the notice of the grievance petitions raised a preliminary objection as to the maintainability of the petitions under section 25‑A of the I.R.O. before the Labour Court. The Labour Court after hearing arguments of the parties held that the grievance petitions filed by the petitioners were maintainable in view of the decision in the case of Trustees of Port of Karachi v. Abdul Ghani 1983 S C M R

769. The respondent who were dissatisfied with the above order of the Labour Court challenged the same by filing C.P.Nos.90, 91 and 92 of 1985 in this Court under Article 199 of the Constitution which have been allowed by a learned Single Judge of this Court by order dated 31‑5‑1987. The learned Single Judge held the order of the Labour Court taking cognizance of the grievance petitions of the appellants as illegal and without lawful authority and accordingly quashed the proceedings pending before the Labour Court. The appellants have now challenged the above order of the learned Single Judge in the above High Court Appeals. It may be mentioned here at the very outset that the above‑mentioned appeals are not argued on merits by the learned Counsel for the parties in view of the decision of this Bench in the case of Zahoor Ahmed v. Trustees of Port of Karachi and others C.P. No.831/1981 decided on 23‑8‑1989. The learned Counsel for the parties agreed that in view of the above decision, the order of the learned Single Judge on merits cannot be maintained. However, the learned Counsel for the respondent raised a preliminary objection to the maintainability of these appeals on the ground that under proviso to subsection (2) of section 3 of Law Reforms Ordinance, these appeals are not maintainable. Mr. Mohammad Sharif, learned Counsel for the respondent contended that the services of the appellants were terminated as a result of domestic enquiry and as such the orders of termination of service passed in the cases were appealable under section 23 of Karachi Port Trust Act, 1886. It is, accordingly, contended that as the initial orders passed in the cases were appealable, the present appeals are incompetent. Alternatively, it is contended by the learned Counsel for the respondent that even if it is held that proceedings in these cases commenced only upon filing of the grievance petitions before the Labour Court, the order passed by the Labour Court holding the grievance petitions maintainable was appealable under subsection (3) of section 37 of the I.R.O. Additionally, it is contended that the order passed by the Labour Court holding that the grievance petitions of the appellants were maintainable was also revisable under subsection (3a) of section 38 of the I.R.O. and as such from whatever angle the cases are examined, the present appeals against the order of the learned Single Judge are not maintainable. The learned Counsel for the appellants on the other hand contended that the orders passed by the Labour Court holding that the grievance petitions filed by the petitioners were maintainable, was not appealable under section 37 (3) of the I.R.O. which only permitted appeal against the final decision. It is further contended by learned Counsel for the appellant that in so far the revisional provision contained in section 38 (3a) of the T.R.O. is concerned, these are suo mote powers of the Labour Appellate Tribunal and no right is available to a party to file a revision petition under that provision. It is, accordingly, contended that as the orders which were challenged before the learned Single Judge under Article 199 of the Constitution were neither appealable nor revisable, the present appeals against the order of the learned Single Judge arc maintainable. In order to appreciate the contentions of learned Counsel for the parties, it is necessary to examine carefully the provisions of section 3 of the Law Reforms Ordinance, 1972 under which the above appeals arc tiled by the appellants as well provisions relating to appeals and revisions contained in the I.R.O. against the decision of Labour Court. We will first consider section 3 of Law Reforms Ordinance. It reads as under: "Appeal to High Court in certain cases.‑‑‑(1) An appeal shall lie to a Bench of two or more Judges of a High Court from a decree passed or final order made by a Single Judge of that Court in the exercise of its original civil jurisdiction. (2) An appeal shall also lie to a Bench of two or more Judges of a High Court from an order made by a Single Judge of that Court under clause (2) of Article 201 of the Interim Constitution of the Islamic Republic of Pakistan, not being an order made under sub‑paragraph (i) of paragraph (b) of that clause: Provided that the appeal referred to in this subsection shall not be available or competent if the application brought before the High Court sunder Article 201 arises out of any proceedings in which the law applicable provided for at least one appeal or one revision or one review to any Court, Tribunal or authority against the original order. (3) No appeal shall lie under subsection (1) or subsection (2) from an interlocutory order or an order whiich does not dispose of the entire case before the Court. (4) Nothing contained in this Ordinance shall be construed as affecting (a) any appeal under the provisions of the Letters Patent applicable to a High Court or under section 102 of the Code of Civil Procedure, 1908 (V of 1908), which was pending immediately before the commencement of this Ordinance; or (b) any appeal or petition for leave to appeal from a decree, judgment or order of a Single Judge of a High Court made to the Supreme Court before the commencement of the Law Reforms (Amendment) Ordinance,. 1972." A careful examination of the proviso to subsection (2) of section 3 ibid will show that an appeal against the order of the learned Single Judge of this Court passed under Article 199 of the Constitution would not be maintainable if A the petition under Article 199 of the Constitution arose out of the proceedings which was initiated under a law which provided for at least one appeal, or one revision or one review to any Court, Tribunal or authority against the original order. The first objection of the learned counsel for the respondent to the maintainability of the above appeals is, that the original order of termination of the services of the appellants was appealable under section 23 of the Karachi Port Trust Act and as such the present appeals are not maintainable. We are unable to agree with the learned Counsel for the respondent. No doubt under Section 23 (2) of the Karachi Port Trust, it is provided that against an order passed under subsection (1) of the said section by the head of a department or any other officer in exercise of powers delegated to him under section 23 (1) ibid, an appeal shall lie against such an order to the Chairman and in any other case to Federal Government, but in our view, the order of termination of service passed in the B above cases against the appellants could not he treated as the commencement of the proceedings. In fact the order of termination of service passed against appellants by the respondent gave a cause to the appellants for filing proceedings which were subsequently initiated before the Labour Court. The expression original order and `proceedings' used under section 3 of Law Reforms Ordinance were interpreted by the Hon'blc Supreme Court of Pakistan in the case of Mst. Karim Bibi and others v. Hussain Bakhsh and another P L D 1984 Supreme Court 344 as follows:‑ "After giving our, anxious consideration to the arguments urged in support of this appeal we are, however, not impressed by any of the contentions raised. The test laid down by the Legislature in the proviso is that if the law applicable to the proceedings from which the Constitutional Petition arises provides for at least one appeal against the original order, then no appeal would be competent from the order of a Single Judge in the constitutional jurisdiction to a bench of two or more Judges of the High Court. The crucial words are the "original order". It is clear from the wording of the proviso that the requirement of the availability of an appeal in the law applicable is not in relation to the impugned order in the Constitutional Petition, which may be the order passed by the lowest officer or authority in the hierarchy or an order passed by higher authorities in appeal, revision or review, if any, Provided in the relevant statute. Therefore, the relevant order may not necessarily be the one which is under challenge but the test is whether the original order passed in the proceedings was subject to an appeal under the relevant law, irrespective of the fact whether the remedy of appeal so provided was availed of or not. Apparently the meaning of the expression original order" i; the order with which the proceedings under the relevant statute commenced. The word "proceedings" has been used in different enactments and has been subject to judicial interpretation in a number of cases wherein it has received either restricted or wide meaning according to the text and subject‑matter of the particular statute. I do not consider it necessary to notice the various judgments in which this word was so construed. Suffice it to refer to the case of Nawab Din v. Member Board of Revenue (P L D 1979 SC 840) in which this Court had occasion to examine the scope and meaning of the word as it occurs in section 2 (2) of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975. A useful discussion will be found in this case with reference to precedents as to the meaning of the term "proceedings". An earlier case of Jan Mohammad and another v. Home Secretary, West Pakistan and others PLD 1968 Lab. 1455 was referred to in this connection and the view taken therein was declared by this Court as the correct enunciation of the law on the subject. In the latter case reference was made to the definition of the term "proceedings" in the book "Words and Phrases" which may usefully be reproduced as under: "The term `proceedings' is a very comprehensive term and generally speaking means a prescribed course of action for enforcing a legal right, and hence it necessarily embraces the requisite steps by which judicial action is invoked. A `proceeding' would include every step taken towards the further progress of a cause in Court or before a Tribunal, where it may be pending. It is the step towards the objective to be achieved, say ! for instance, the judgment in a pending suit. The proceedings commence with the first step by which the machinery of the law is put into motion in order to take cognizance of the case. It is indeed a comprehensive expression and includes all possible steps in the action under the law, from its commencement to the execution of the judgment." In the light of the aforesaid definition the proceedings under the Displaced Persons (Compensation and Rehabilitation) Act would seem to commence with the application of a person entitled to the transfer of property in the compensation pool under the Schedule and the Schemes framed thereunder. Normally the application will be disposed of by an order passed by the Deputy Settlement Commissioner, which will apparently be the original in the proceedings. Any party aggrieved by such an order may then invoke appellate or revisional jurisdiction conferred under the statute before the higher authorities or officers. In such a case the proceedings remain the same until their conclusion by the order of the final authority as all the intermediary stages are steps taken towards the further progress of a cause or towards the objective to be achieved i.e. the transfer of a particular property to the person entitled thereto under the relevant provision of law. Before the amendment of the Displaced Persons (Compensation and Rehabilitation) Act in 1973 there was a right of appeal provided by section

19. Therefore, no Letters Patent Appeal was then competent against the order of a Single Judge of the High Court to a larger Bench of the same High Court. Similarly there can be no dispute that in cases in which the original order was passed after the aforesaid amendment of law such appeal was competent as the right of appeal under the Displaced Persons (Compensation and Rehabilitation) Act was taken away by the amendment." (The underlining is by us). In the light of the above discussion, we are of the view, that in the cases before us the proceedings commenced, when the appellants filed their respective grievance petitions before the Labour Court, and as such the order of termination of service of the appellants which gave rise to the riling of the grievance petitions before the Labour Court could not be treated as the original order in the context 1 of the proviso to subsection (2) of section 3 of the Law Reforms Ordinance, 1972. The alternate argument of the learned Counsel for the respondent is that the order passed by the Labour Court holding that the grievance petitions filed by the' appellants were maintainable, was appealable under section 37(3) of the I.R.O. and it could also be revised by the Labour Appellate Tribunal under section 38 (3a) of the I.R.O. Section 37 of the I.R.O. under which the awards and decisions of Labour Court are appealable is as follows:‑‑ "Awards and decisions of Labour Court.‑‑‑(1) An award or decision of a Labour Court shall be given in writing and delivered in open Court and two copies thereof shall be forwarded forthwith to the Provincial Government provided that if the (Federal Government) be a party two copies of the award or decision shall be forwarded to that Government as well. (2) The Provincial Government shall, within a period of one month from the receipt of the copies of the award or decision, publish it in the official Gazette. (3) Any party aggrieved by an award given under subsection (1) (or a decision given under section 25‑A) or Section 34 or a sentence passed under clause (c) of subsection (5) of section 35) ....may prefer an appeal to Labour Appellate Tribunal within 30 days of the delivery (or passing) thereof and the decision of the Tribunal in such appeal shall be final. (4) Save as otherwise expressly provided in this Ordinance, all decisions of, and all sentences passed by a Labour Court shall be final and shall not be called in question in any manner by or before and Court or other authority." A careful analysis of the above provisions will show that any party aggrieved by an award given under subsection (1) of section 37 or a decision of Labour Court given under section 25A of section 34 o the sentence passed under clause (c) of subsection (5) of section 35, may prefer an appeal to the Labour Appellate Tribunal within 30 days of the delivery or pasting thereof and the decision of Tribunal in such appeal shall be final. Subsection (1) of section 37 provides that save as otherwise provided in the I.R.O. all decisions of and all sentences passed by, a Labour Court shall be Final and shall not be called in question in any manner by or before any Court or authority. It will be seen that under section 37 (4) ibid finality has been conferred on all "decisions" of Labour Court except those against which appeal is provided under subsection (3) of D section 37 ibid or those which may be revised by the Tribunal under section 38 (3a) of the I.R.O. No doubt word `decision' is not defined in the I.R.O. and in its ordinary grammatical sense, it means, "the act of deciding or settling a dispute or question by giving a judgment, the act of making up one's mind, a judgment or conclusion reached or given. (See Webster's New World Dictionary of the American Language, College Edition). It is therefore, possible to argues that any order passed by a Labour Court on any controversy raised by a party in the course of proceedings under section 25‑A could be treated as a decision. However, a careful examination of the provisions of sections and 37 of the I.R:O. will show that the word `decision' has not been used by the legislature in the above provision in such unrestricted sense. Subsection (4) of Section 25‑A ibid under which the Labour Court is required to give its decision on a dispute brought before it, reads as under:‑‑ "If the employer fails to communicate a decision within the period specified in subsection (2) or, as the case may be, subsection (3), or if the worker is dissatisfied with such decision, the worker or shop steward may take the matter to his (collective bargaining agent) or the (Labour Court), or as the case may be, the (collective bargaining agent) may take the matter to the (Labour Court), and where the matter is taken to the (Labour Court) it shall give (a decision) within (seven) days from the date of the matter being brought before it as if such matter were an industrial dispute: Provided that a worker who desires to so take the matter to the (Labour Court) shall do so within a period of two months from the date of the communication of the employer or, as the case may be, from the expiry of the period mentioned in subsection (2) or subsection (3), as the case may be." Similarly, under subsection (8) of section 25‑A of the I.R.O. the consequences for non‑implementation of the decision of a Labour Court given under subsection (4) ibid are stated as follows:‑ "If a decision under subsection (4) or an order under subsection (5) given by the Labour Court or a decision of the Tribunal in an appeal against such a decision or order is not given effect to or complied with within a week or within a period specified in such order or decision the defaulter shall be punishable with imprisonment for a term which may extend to one year or with fine which may extend to one thousand rupees." On examination of the above provisions, we are of the view that in the scheme of Section 25‑A of I.R.O. the legislature has used the word `decision' in the sense of a final order which has the effect of bringing an end to the proceedings filed before the Labour Court under section 25‑A (4) ibid. It therefore, follows that an interlocutory order passed by the Labour Court in the above proceedings which does not have the effect of bringing an end to the , proceedings before the Labour Court under section 25‑A(4) of I.R.O. but disposes of only an interlocutory matter or controversy cannot amount to a `decision' under section 25‑A (4) of I.R.O. We arc, further of the view that under section 37 (3) of I.R.O. only a decision' as discussed above is appealable. We now turn to examine the order dated 31‑5‑1987 passed by the Labour Court in the light of above discussion. The order dated 31‑5‑1987 was passed by the Labour Court in the cases before us on a preliminary objection raised by respondent regarding non‑maintainability of the proceedings. The Labour Court overruled the objection of respondent and held that it has the jurisdiction to decide these cases. The order dated 31‑5‑1987, passed by the Labour Court on the preliminary objection of respondent was of a interlocutory nature and not a decision under Section 25‑A (4) of the I.R.O. Accordingly, the appeal provided under section 37 (3) of the I.R.O. against the decision of Labour Court under section 25‑A ibid was not available against the order dated 31‑5‑1987. The further contention of learned Counsel for the respondent is that the order dated 31‑5‑1987 was also revisable under section 38 (3a) of the I.R.O. and as such the appeal under section 3 of Law Reforms Ordinance was not available against the order of learned Single Judge. We have already reproduced section 3 of Law Reforms Ordinance earlier in this order. A careful reading of the proviso to C subsection (2) of Section 3 of the Ordinance will show that an appeal against the order of Single Judge of the High Court, passed under Article 199 of the Constitution is barred in a case where the petition under Article 199 of the Constitution arises out of proceedings in which the law applicable provided for at least one appeal or one revision or one review to any Court, tribunal or authority against the original order. The words "provided" and "to any Court, tribunal or authority" used in the proviso to section 3 (2) of Law Reforms Ordinance in our opinion refer to an appeal, revision or review which the party is entitled to file under the relevant statute, as of right. The limitation contained in the proviso to section 3(2) of the Ordinance for riling of appeal against the order of a Single Judge of High Court in our view shall not apply in a case where the party does not have the right under the relevant statute to file the appeal, revision or review against the original order. Examined in the above context the provision of section 38 (3a) of the I.R.O. confer a supervisory jurisdiction on the Labour Appellate Tribunal over Labour Courts. Under the above provision, the Labour Appellate Tribunal may, on its own motion, at any time, call for the record of any case or proceedings under the Ordinance, in which a Labour Court within its jurisdiction, has passed an order for the purpose of satisfying itself as to the correctness, legality or proprietary of such order, and may pass such order in relation thereto as it thinks fit. This provision does not give right to any aggrieved party to file an application before the Appellate Tribunal to challenge the order of Labour Court. Existence of such a provision in our view, which entitles only the Appellate Tribunal either to act or not in a case, according to its own volition, cannot be read as a bar against the right of appeal provided under section 3(2) of the Law Reforms Ordinance. We, accordingly, overrule the preliminary objection raised by the learned counsel for the petitioners and hold that the above appeals are maintainable. As the impugned order of learned Single fudge cannot be i maintained on merits, in view of our decision in the case of Zahoor Ahmed v. Trustees of Port of Karachi, we accept the above appeals and set aside the order I of learned Single Judge. There will be no order as to costs. A.A./M‑1038/K Appeals accepted.