1976PLC740 (PLP)

(d) Industrial Relations Ordinance (XXIII of 1969)- -- S. 34 read with West Pakistan Water and Power Development Authority Rules, 1966, r. 5 and West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S. O. 12-Labour Court finding order of termination of workman's servicts to have been passed without any inquiry against him and his being condemned unheard-Order of Labour Court directing re-instatement of such workman-Held, unexceptionable. K. A. Ansari for Petitioner. Muhammad Aqil Mirza for Respondent No.

1. Ghulam Qadir for Respondent No.

2. Date of hearing: 27th March 1975. This is a petition under Article 199 of the Constitution of Islamic Republic of Pakistan and is directed against an order dated the 11th of April 1974 passed by respondent No. 1, the Punjab Labour Court No. 3, Lyallpur under section 34 of the Industrial Relations Ordinance XXIII of 1969, whereby the termination of the service of respondent No. 2, Bashir Ahmad, by the petitioners was declared as illegal and without lawful authority.

2. Briefly the facts relevant for the disposal of this petition are that respondent No. 2 joined service as a Storekeeper, M.P.O., WAPDA, Lyallpur lie was brought on the regular service with effect from 1st April 1970. Afterwards, on the 9th of July 1970 be was charge-sheeted for misconduct and the statement of allegations against him was also served on him. He submitted his explanations to the charge-sheet on the 27th of July 1970. But eventually his service was terminated on the 4th of June 1971.

3. In these circumstances, on the 20th of September 1972, respondent Xo. 2 filed an application under section 34 of the Industrial Relations Ordinance, 1969, before the Punjab Labour Court, Central Zone, Lahore, The case was later on transferred by the Appellate Tribunal to the Punjab Labour Court No. 3, Lyallpur for its disposal. Finally on the 11th of April 1974 Punjab Labour Court No. 3, Lyallpur accepted the application of respondent No. 2 on the ground that he was condemned unheard and no inquiry as completed by the rules and principles of natural justice was at all institute' against him before the termination of his services. The Labour Court, therefore, ordered the re-instatement of respondent No. 2 with back benefits to be paid to him for six months only. In these circumstances the petitioners have filed this writ petition under Article 199 of the Constitution challenging the validity of the order dated 11th April 1974 passed by respondent No. 1, the Punjab Labour Court No. 3, Lyallpur. This writ petition was admitted by me to a hearing when the learned counsel for the petitioners, inter alia, argued before me that respondent No. 2, Bashir Ahmad, had no locus standi to apply to the Labour Court under section 34 of the Industrial Relations Ordinance, 1969 in respect of his individual grievance and that it was only a Collective Bargaining Agent or an employer who could have moved in the matter. It was also contended before me at the time that for the redress of the individual grievances recourse could be made to the procedure laid down in section 25-A of the Ordinance before the Junior Labour Court and as such the Punjab Labour Court No. 3, Lyallpur had no jurisdiction in the matter. I have heard the learned counsel for the parties. In this connection, I may mention here section 34 of the Indus trial Relations Ordinance, 1969 has undergone changes from time to time. The cause of action in this case had accrued to respondent No. 2 on the 4th of Jur.e 1971 when his services were terminated. On the 20th of September 1972, he filed the application under section 34 of the Industrial Relations A Ordinance, 1969, before the Punjab Labour Court, Central Zone, Lahore, challenging the validity of the order of his wrongful dismissal from service. At the relevant time, under section 34, it was open to a workman to apply to the Labour Court for enforcement of any right guaranteed or secured to him by or under any law. It was only afterwards on the 6th of February 1973 that the law on the point was amended by the Industrial Relations (Amendment) Act, 1973 and the word 'workman' omitted from section 34 of the Ordinance of 1969 and correspondingly for the redress of individual, grievances the machinery was provided under section 25-A by an application made to the Junior Labour Court only. These amendments were prospective in nature. The right vested in respondent No. 2 whose application under section 34 of the Ordinance 1969 was competent on the 20th September 1972 could not be taken away retrospectively. In this connection learned counsel for the respordent has relied on some of the separated cases from the Labour Court. In particular, he relied on National Advertising Limited, Karachi v. S. B. Usmani (1974 P L C 84). In that case it was held that section 34 as amended by Ordi nance 48 of 1972 was prospective and a workman can move application under section 34 even after the amendment if the cause of action arose prior to the enforcement of the amendment. Similarly, in Shikarpur Electric Supply Co. v. Abdullah Baye (P L J 1974 Tr. (Lab.) 227) the Labour Court held that section 34 of the Industrial Rela tions Ordinance, 1969 as amended by Labour Laws (Amendment) Ordinance, 1969, as amended by Labour Laws (Amendment) Ordinance was prospective and that the right of individual workman under section 34 (before ils amendment) to seek redress against his employer was not taken away by deletion of word 'workman' in section 34 by Ordinance XII of 1972. The right to apply under section 34 was a right vested in an individual workman and was not taken away by any express provision in Ordinance XII of 1972. Similarly, in Asmatullah v. Opel Laboratories Ltd., Karachi (P L J 1974 Tr. C. (Lab.) 55) the Labour Court held that application filed by an individual worker under section 34 of the Industrial Relations Ordinance, 1969 (as amended by Ordinance XLVIII of 1972), was maintainable before a Labour Court having Jurisdiction for a cause of action which has arisen prior to the enforcement of the amendment. I am, therefore, of the considered opinion that, the application made by respondent No. 2 under section 34 of the Industrial Relations Ordinance, 1969, on the 20th of September 1972 was fully competent and the subsequent amendment had no retrospective effect. No objection can, therefore, be taken against the cognizance of that application by the Punjab Labour Court No. 3, Lyallpur. Indeed, I find that no such objection was specifically taken in the main writ petition and was merely raised before me at the hearing in Katcha Peshi by the learned counsel for the petitioners.

5. It was next contended on behalf of the petitioners that respondent No. 2 was, at the time of the termination of his service on the 4th of June 1971 working as a Storekeeper, M. P. O., WAPD A at Lyallpur, which was n employment to which the Pakistan Essential Services (Maintenance) Act 33 (of 1952 was made applicable. In this connection, the learned-counsel produced before me a copy of the Notification No. S. R. O. 681(1)/73, dated the 30th of November 1973 issued by the Central Government declaring that the Act was made applicable to all employments in or in connection with the organizations dealing with the generation, transmission, distribution or supply of electricity: The learned counsel also relied on a reported case decided by the Industrial Appellate Tribunal, West Pakistan In re: Representatives of the WAPDA Workers' Union and others v. Fazil Khalid Khan and others (1969 P L C 492). In that case it was held that Pakistan Essential Services (Maintenance) Act (LIII of 1952) (as amended was still in force and that an employee in the Machinery Pool Organization (M.P.O) under the WAPDA was covered by the notification issued under the Act. But it does not necessarily follow that thereby the jurisdiction of the Labour Court has barred from entertaining the application made by respondent No. 2 under section 34 f the Industrial Relations Ordinance, 1969 against wrongful termination of is service. Under the provisions of the Pakistan Essential Services (Mainte nance) Act, 1952 certain penalties are prescribed against the disobedience of any lawful order issued in the course of employment for abandoning employment, departing from certain specified area by persons engaging in certain employment and violation of rules regulating the wages and conditions of service. But these provisions have nothing to do with the termination of services by the employer against the employee. But the learned counsel for the petitioners relied on the provisions contained in section 7-A of the Pakistan Essential Services (Maintenance) Act inserted by the Pakistan Essential Services (Amendment) Ordinance III of 1965 which is reproduced below:- "7-A. The provisions of this Act shall have effect, notwithstanding any thing to the contrary contained in the Trade Unions Act, 1926 (LVI of 1926) or the Industrial Dispute Ordinance, 1959 (LVI of 1959), or any other law." 'This provision does not oust the application of section 34 of the Industrial Relations Ordinance, 1969. As such in my considered opinion, the petition C made by respondent No. 2 before the Labour Court under section 34 was) fully competent.

6. Even otherwise, I find that this objection was neither specifically taken in the writ petition nor was it ever raised before the Labour Court and n as such the petitioner is estopped by his conduct from raising this objection. In Ghulam Mohi-ud Din v. Chief Settlement Commissioner (Pakistan), Lahore and others (P L D 1964 S C 829) the Supreme Court held that one of the grounds upon which the Courts in England have consistently held a party seeking such a writ to have disentitled himself to this extraordinary remedy is his failure to object to such usurpation of jurisdiction before the Tribunal concerned or to raise the objection at the earliest opportunity before the Tribunal, whose illegal order he seeks to have quashed by the writ, if he was aware that the Tribunal lacked the jurisdiction it purported to exercise. The principle upon which the writ is refused in sash cases is not that jurisdiction has been conferred on the Tribunal concerned by waiver and acquiescence but even though the impugned order is without jurisdiction the person seeking to have it quashed should not be granted that discretionary relief as he had stood by and allowed the Tribunal to usurp a jurisdiction which it did not possess knowing that the Tribunal concerned was committing such an illegality in consequence of something done by that person himself.

7. In this case, after holding the necessary inquiry, the Punjab Labour Court No. 3, Lyallpur has held that the order of termination of the service of respondent No. 2 was passed without any inquiry held against him and that he was condemned unheard. In accordance with the provisions contained in rule 5 of the West Pakistan Water and Power Development Authority Rules, 1966 the respondent could not be removed from service without the necessary inquiry. His removal from service was also contrary to Standing Order E No. 12 of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. As such the impugned order passed by respondent No. 1 in favour of respondent! No. 2 was unexceptionable. I, therefore, find no force in this writ petition which is liable to be dismissed.

8. For the foregoing reasons, this petition is dismissed with costs. Petition dismissed.