2000 PLP 74 (PLC)

RANA BHAGWAN DAS, J.‑‑‑Petitioner employed as Assistant Lineman in WAPDA at Nawab Shah aggrieved by termination of his employment, made a Grievance Petition under section 25‑A, I.R.O., 1969 before the Sindh Labour Court, Sukkur, impugning the act of termination on the part of his employer. Petition was resisted by the respondents, but after recording evidence learned Labour Court allowed the petition and directed reinstatement of the petitioner with back benefits.

2. Respondents through their Advocate filed an appeal under section 37(3) of the I.R.O., 1969 before the Sindh Labour Appellate Tribunal and agitated the question of jurisdiction of the Labour Court, which was patently barred in view of the provisions contained in section 17 subsection (1‑B), which reads as under:‑‑ (1‑A) ........................................................................ (1‑B)Service under the Authority is hereby declared to be service of Pakistan and every person holding a post under the Authority, not being a person who is on deputation to the Authority from any Province, shall be deemed to be a civil servant for the purposes of the Service Tribunal Act, 1973 (LXX of 1973).

3. As this position in law was not controverted by the petitioner before the Appellate Tribunal, the decision given by the Labour Court, was set aside, and petition of the petitioner dismissed by a short but comprehensive order. It is as against this order that the petitioner approached this Court under Article 199 of the Constitution.

4. Upon hearing learned counsel for the parties and going through the provisions of law under which the jurisdiction of the Labour Court, was specifically barred and as held in Water and Power Development Authority v. Javed Ahmed (1989 SCMR 1068), we are of the considered view that no interference is called for with the exercise of the appellate jurisdiction by the Appellate Tribunal.

5. Mr. Manzar Alain, counsel for the petitioner, very fairly concedes that in view of the provisions contained in WAPDA Act, 1958 the Labour Court had no jurisdiction to adjudicate the grievance petition and strictly speaking the petitioner should have approached the Federal Service Tribunal for the redress of his grievance but he vehemently contended that learned Appellate Tribunal also acted without jurisdiction inasmuch as an appeal under section 37(3) of the I.R.O., 1969, could only be filed by an aggrieved person, whereas in the instant case appeal was preferred by the Advocate engaged by respondents. Learned counsel elaborated his argument by urging that the Advocate engaged by a party cannot be equated with a person aggrieved and in this connection he cited unreported judgment in C.P. No.D‑230 of 1990 President MCB v. Muhammad Yakoob Chacher decided on 8‑5‑1991 followed by another judgment rendered by the same Bench and reported as National Bank of Pakistan v. Sindh Labour Appellate Tribunal, Karachi and another (1992 PLC 86). Ratio of both the judgments authored by Mukhtiar Ahmed Junejo, J., (as he then was) appears to be that right of Appeal under section 37(3) of Ordinance, XXIII of 1969 having been given in a very restricted form, same could be preferred only by aggrieved party. Appeal not signed by employer but by his counsel, was rightly dismissed by the Appellate Tribunal, the D.B. held. There may be no cavil with the proposition of law as canvassed by Mr. Manzar Alain but Labour Appellate Tribunal is also invested with the powers of revision under section 38(3‑a) of the I.R.O., which reads as follows:‑‑ (1) ................................................................................... (2) ................................................................................... (3) ................................................................................... (3‑a) The Tribunal may, on its own motion? at any time, call for the record of any case or proceedings under this 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 propriety of such order, and may pass such order, in relation thereto as it thinks fit: Provided that no order under this subsection shall be passed revising or modifying any order adversely affecting any person without giving such person a reasonable opportunity of being heard." 6.We are of the view that even though Appellate Tribunal may not be entitled to upset the decision rendered by the Labour Court for the reason that the memo of appeal was signed by employer's Advocate and not by any person duly authorised in this behalf. It may be said with greater justification that such order could always be passed in the exercise of revisional jurisdiction, which has broader scope and is not restricted by the conditions for the exercise of appellate jurisdiction. In all fairness, Appellate Tribunal having found that the Labour Court acted without jurisdiction, was not divested of its authority, to correct the error of law by setting aside an order in the exercise of revisional jurisdiction.

7. Even otherwise the decision made by the Labour Court, appears to be without jurisdiction and void, which, therefore, cannot be allowed to remain intact. There is plethora of case law to the effect that High Court does not act in aid of injustice and to perpetuate a wrong. Constitutional jurisdiction being extraordinary is to be exercised to foster the ends of justice and to right a wrong. High Court is not bound to set aside every irregular or illegal order if it has not caused any material prejudice or gross miscarriage of justice. In the present case appellate order instead of occasioning prejudice to any of the parties, appears to have done substantial justice in the exercise of authority conferred by law.

8. We are fortified in our view by the dictum laid down in Raunaq Ali v. Chief Settlement Commissioner (PLD 1973 SC 236) laying down that an order in the nature of a writ of certiorari or mandamus is a discretionary order. Its object it to foster justice and right a wrong. Therefore, before a person can be permitted to invoke the discretionary power of a Court, it must be shown that the order sought to be set aside had occasioned some injustice to the party. If it does not work any injustice to any party, rather it cures a manifest illegality, then the extraordinary jurisdiction ought not to be allowed to be invoked. This view was reaffirmed in Muhammad Baran v. Member (Settlement and Rehabilitation) (PLD 1991 SC 691).

9. Again in a case reported as Norwich Union Fire Insurance Society Limited v. Muhammad Javed Iqbal (1986 SCMR 1071) Supreme Court observed that the High Court was within its power to refuse relief in Constitutional jurisdiction even though the authority concerned had acted without jurisdiction as the impugned order was passed in order to foster the cause of justice. This principle of law was cited with approval in Export Promotion Bureau v. Qaiser Shafiullah (1994 SCMR 859).

10. In Begum Shams‑un‑Nihar v. Said Akbar Abbasi (PLD 1982 SC 413). Supreme Court held 'suffice to say that the High Court in exercise of its discretionary writ jurisdiction is not bound to interfere in all circumstances and it would have been a proper exercise of its discretionary if it had not interfered with the order of the Chief Settlement Commissioner whereby he rendered the order of the Settlement Commissioner as null and void was not strictly legal.

11. On a careful consideration of the question involved in this petition we are of the definite view that on account of technicalities patently illegal and void order cannot be restored. It would rather put premium on an act inherently without jurisdiction. Needless to add we have already expressed this view in C.P. No.D‑897 of 1996 (Mst. Noor Jehan v. Government of Sindh and others) decided on 26‑8‑1999.

12. For all these reasons this petition is without any merit and is accordingly dismissed. H.B.T./A‑369/K ???????????????????????????????????????????????????????????????????? Petition dismissed.