1980 PLP 508 (CLC)

The only point of law involved in these two petitions is whether an order of dismissal of an employee issued by the Managing Director of a company issued under section 6 of Economic Reforms Order, 1972, vie. (President's Order 1/72) can be challenged under the provisions of Industrial Relations Ordinance, 1969 read with the provisions of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance of 1968. The petitioner is a company which was taken over by the Government under the Economic Reforms Ordinance, 1972. Relevant admitted facts are that 4 respondents in Petition No. 1301/75 who were employees of the petitioner were suspended on account of misconduct op 17-2-1972. These respondents filed an application before Labour Court against their suspension and the Labour Court issued notice of the same to the petitioner, whereupon the petitioner withdrew the sus pension orders and there 4 respondents were re-instated by petitioner on 21-6-1972. But the petitioner again suspended these 4 respondents on account of misconduct in connection with Abdul Raoof cashier. The respondents again challenged their suspension before the Labour Court. But meanwhile the petitioner instituted a domestic enquiry and the respondents participated in that enquiry and were found to be guilty of misconduct and their dismissal was recommended. But since the application of respondents was pending decision before Labour Court, therefore the petitioner moved the Labour Court under section 47 of

1. R. O., 1969 for permission to dismiss the respondents. The Labour Court disposed of the applications of respondents under section 25-A of

1. R. O., 1969 'and the application of the petitioner under section 47 of

1. R. O., 1909 by one order and ordered their reinstate ment with back benefits. The petitioner appealed to the Appellate Tribunal and the Appellate Tribunal set aside the order of re-intatement and directed that in the domestic enquiry statement of Abdul Raoof be recorded and he may be allowed to be cross-examined by the respondents. The appellate Tribunal further directed that in case Abdul Raoof's statement was not recorded then the respondents would be entitled to receive their full wages for the suspension period. The petitioner held further enquiry but somehow or the other the statement of Abdul Raoof could not be recorded but the domestic enquiry was concluded and fresh recommendation of dismissal of respondents was made. The respondents thereupon filed application for contempt against the petitioner before the Appellate Tribunal on account of failure of petitioner to record statement of Abdul Raoof. But the said application for contempt was dismissed by the Appellate Tribunal on merits after hearing the parties. The petitioner on the basis of domestic enquiry concluded on 3-6-1974 issued a fresh show-cause notice to the respondents for dismissal. The respondents, deny the receipt of these notices. On 8th July, 197.1 the Managing Director of petitioner dismissed the 4 respondents in Petition No. 1301!75, under section 6 of Economic Reforms Order, 1972. In respect of Petition No. 1302/75 the relevant facts mentioned in the petition and the annexed documents are that the respondent was issued a charge-sheer, in 1972 and a domestic enquiry was held in .18-12-1972 and 19-12-1972 in presence of the respondent and he was Found guilty of the charge. A show-cause notice for dismissal was issued to the respondent and he showed cause against the dismissal and he was ultimately dismissed on 14-9-1974 by the Managing Director of petitioner under section 6 of Economic Reforms Order, 1972. The respondents in both the petitions issued grievance notices to the petitioner under section 25-A of I. R. O. of 1969 and failing to get any relief, all the respondents filed their separate applications before Junior Labour Court under section 25-A of I. R. O., 1969. The petitioner raised legal objections to the maintainability of the applications and pleaded bar under section 8 of Economic Reforms Ordinance, 1972. The Junior Labour Court dismissed the applications of the respondents by 2 separate orders dated 31-12-1974 and 15-3-1975 and held that it had no .jurisdiction in view of sections 6 and 8 of Economic Reforms Ordinance:, 1572. The respondents appealed to the Labour Court and the Labour Court by two separate orders passed on the same day, vie. 20-11-1975, accepted, the appeals of respondents and directed that the cases be decided on merits. The petitioner has felt aggrieved against both the orders and has two petitions in respect of the same and since common questions of law are involved therefore both the petitions are being decided together. Mr. Khalid Jamil has taken his stand on the simple proposition that the Labour Court is wrong in holding that the jurisdiction of the Labour Court is not barred in view of section 8 of Economic Reforms Order of 1972. He' submits that the order of dismissal made by Managing Director of the petitioner under section .6 of the said order completely sacrosanct and cannot be called in question before any Court including the High Court or the Supreme Court and therefore obviously it cannot be called in question before the Labour Court. In order to examine this submission, it would be necessary to examine the provisions of sections 6 arid 8 of Economic Reforms Order. They are reproduced hereunder :-- Section

6. Employees to continue in service.-Unless in any particular case tire Managing Director otherwise directs, all persons employed in, by or for the purpose of the business of the establishment by whomsoever appointed or ,engaged, shall continue in their respective employments on the same remuneration and other conditions of service as were applicable to them immediately before the appointment of the Managing Director of that establishment. Section

8. Bar of jurisdiction.-(1) No Court, including the Supreme Court and a High Court, shall call in question, or permit to be called in question any provision of this Order or of any rule or order made or anything done or any action taken or purporting to be made, done, or taken thereunder. (2) No Court, including the Supreme Court and a High Court, shall grant any injunction or make any order, nor any such Court shall entertain any proceedings in relation to anything done or intended or purporting to be done under this Under. The contention of Mr. Khaild Jamil is prima facie correct as the Managing Director has the power to direct that the services of any person may be dispensed with and if the Managing Director as such makes such an order then section 8 allows a complete protection to that order and the same cannot be called in question if the order was made or purported to be made under any provision of Economic Reforms Order, and subsection (2) of section 8 further bars any proceedings in relation to anything done or intended or purported to be done under this order. The ouster of jurisdiction of the Courts seems to be complete except that Wit is a mala fide order or any order made in breach of the principles of natural justice then it could be challenged but even that challenge could he made only under the constitutional jurisdic tion of the High Court and not before any other Court. Since the Labour Courts are designated as Courts therefore their jurisdiction to call in question any order of dismissal made by the Managing Director or to entertain any proceeding in respect of the same is not allowed under section

8. Mr. Khalid Jamil, the learned counsel for the petitioner has relied upon P L D 1974 Lah. 49 where a Single Judge of the Lahore High Court held that a Managing Director as complete power to dispense with the services of an employee if the Managing Director has himself passed the order. But in this case oil merits the writ was allowed as the order in question was treated to have been passed by the Minister and not by the Managing Director. This decision was taken before a Division Bench of the sane High Court in appeal and in P L D 1980 Lah. 82 the Division Bench held that under section 6 of the Economic Reforms Order, 1972, the Managing Director had complete power to dispense with the services of any employee and the same could not be called in question in any Court in view of section 8 of the said order.) This seems to be a correct view of law. Mr. Ali Muqtadar, learned counsel for the respondent has on the other hand contended that the petitioners are estopped from challenging the jurisdic tion of the Labour Courts as they had all along acquiesced in the said juris diction and never claimed the protection under section 8 of Economic Reforms Order, 1972. This should disentitle the petitioner trout seeking any relief under the Constitutional discretionary jurisdiction of the High Court as they had been fighting a their battle in the Labour Courts since 1972 till 1974 and had themselves made an application under section 25-A of I. R. O. seeking permission to dismiss the respondents. But Mr. Khalid Jamil's reply is simply this that till July 1974 action had not been taken by the Managing Director tinder section 6 and hence the petitioner never raised the plea of bar under section 8 as the petitioner concedes that if action is not taken by the Managing Director under section 6 then the Labour Courts would have the jurisdiction to decide the labour disputes arising in the establishment of petitioner. It was only on 8-7-1974, in respect of Petition 1301/75 and 14-9-1974 in respect of Petition No. 1302,175 that the action was taken for the first time by the Managing Director in dismissing the respondents under section 6 of the order and thereafter the petitioner took up the plea of the Bar of section 8 of the order as it was available to them only thereafter and not earlier. This being a correct position of fact the Bar of estoppel is not attracted against the petitioner as they never acquiesced in the-jurisdiction of the Labour Court in respect of action taken by their Managing Director under section 6 July 1974 or thereafter. The plea of estoppel therefore fails and in view of the decisions of Lahore High Court, quoted above I hold that applica tion under section 25-A of

1. R. O., 1969' filed after July 19,'4 by respondents was barred under section 8 4 Economic Reforms Order, 1974. Mr. Muqitadar contended that the order of dismissal having been based upon an enquiry where Mr. Rauf cashier was not examined in spite of the order of Lahore High Court to that effect, the said enquiry was conducted in a manner which was against the principles of natural justice but this objection has already been' subject of an inquiry in contempt proceedings before the Labour Court where the respondent had filed a contempt application before the Labour Court against tire petitioner bin account of its failure to examine Mr. Rauf, but the Labour Court dismissed the same on merits after taking into consideration the circumstances on account of which it had not been possible for the petitioner to examine Abdul Rauf, therefore, the same cannot be used by the respondent in defence of the writ petition filed by the petitioner which is being disposed of merely on the objection of lack of jurisdiction. It may be open to the respondent to challenge the same in some other appropriate proceedings. I am therefore of the view that no application could be fled before the Labour Court against an order of termination of service made by Managing Director of the petitioner under section 6 of Economic Reforms Order, 1972 and hence the orders impugned in the two writ: petitions were passed without lawful authority by the Labour Court and they. are without effect. Since, the petition has been allowed on technical grounds, it would be open to the respondents concerned to seek resort to any other lawful remedy which may be open to them. The petitions are therefore allowed. M. Y. M. Petition allowed.