2006 P L C 206

[Lahore High Court]

Before Maulvi Anwarul Haq, J

MUHAMMAD MAQBOOL ANEES

Versus

PRESIDING OFFICER, PUNJAB LABOUR COURT NO.9, MULTAN and 2 others

W.P. No.2661 and F.A.O. No. 56 of 2003, heard on 13th July, 2005.

(a) Industrial Relations Ordinance (XXIII of 1969)---

----Ss. 25-A & 37(3)---Service Tribunals Act (LXX of 1973), Ss.2-A, 4 & 6---Constitution
of Pakistan (1973), Arts 199 & 212(3)---Grievance petition---Insertion of S.2-A in Service
Tribunals Act, 1973 during pendency of appeals before Labour Appellate Tribunal---
Remand of case to Labour Court for its decision afresh---Return of grievance petition by
Labour Court for not having jurisdiction to decide matter in view of S.2-A of Service
Tribunals Act, 1973---Validity---Statute would take effect, whether or not Court or Tribunal
was aware of the same---Appeals of both parties before Labour Tribunal stood abated in
terms of S.2-A of Service Tribunals Act, 1973---Order of Labour Tribunal remanding case to
Labour Court was without jurisdiction as no proceedings were pending before Tribunal
while remanding case---High Court accepted constitutional petition and appeal while
declaring order of Tribunal and consequent proceedings and order passed by Labour Court
to be without lawful authority and set aside same.

PLD 1991 SC 258; G.M. National Bank of Pakistan and others v. Abdul Aziz and others
2002 PLC (CS) 18; Federation of Pakistan v. Muhammad Siddiq PLD 1981 SC 249 and
General Manager Pak Arab Fertilizers Ltd. Khanewal Road, Multan v. Muhammad Ayub son
of Fazal Elahi C.A. No.796 of 2000 rel.

(b) Interpretation of statutes---

----Statute would take effect, whether or not Court or Tribunal is aware of the same.

Petitioner in person.

Javed Altaf for Respondent.

Date of hearing: 13th July, 2005.

JUDGMENT

MULVI NWARUL HAQ, J---This judgment shall dispose of W.P. No.2661/03 and F.A.O.
No.56/03 as, in fact, these proceed against an order passed by a learned Punjab Labour
Court No.9, Multan, on 31-5-2003 and also question the orders passed by the learned Punjab
Labour Appellate Tribunal on 24-5-2002.

2. The case has rather a chequered history. The petitioner is an employee of Pak Arab
Fertilizers (Pvt.) Limited, Multan, He was dismissed from service vide order dated 20-5-
1975. He filed a grievance petition under section 25-A of the I.R.O. 1969, on 13-8-1975.
Notices were issued to the said employer who filed a written statement contesting the prayer
for reinstatement with full back benefits. Evidence was recorded. Vide judgment dated 8-6-
1977 the petition was allowed and the petitioner was ordered to be reinstated in service but
without back benefits. Both the parties felt aggrieved and filed appeals before the learned
Punjab Labour Appellate Tribunal at Lahore. Vide judgment dated 11-7-1977 the appeal
filed by the employer was allowed while the appeal filed by the petitioner was dismissed
and. resultantly the grievance petition was dismissed. This order was challenged by the
petitioner by filing W.P. No.1546/77 in this Court. The writ petition was dismissed in limine
on 18-7-1977. Against this order, the petitioner filed an appeal which was allowed by the
Hon'ble Supreme Court of Pakistan on 10-11-1990 and the appeals were remanded to the
learned Labour Appellate Tribunal for decision afresh. I may note here that the Hon'ble
Supreme Court of Pakistan Court held that the grievance petition filed by the petitioner was
within time. After the remand appeals were pending with the learned Tribunal for quite some
time. Meanwhile section 2-A was added in the Service Tribunals Act, 1973. The petitioner
brought the said fact to the notice of the learned Tribunal vide an application. Now on 24-5-
2002 the appeal was remanded in the presence of learned counsel for the
employer/appellant/petitioner in person and following order was passed:--

"The learned counsel for the appellant and the respondent have unanimously stated
that the judgment of the Court below dated 8-6-1977 is perverse and does not
represent the true appraisal of evidence hence the instant appeal filed by the
appellant establishment may be allowed and the case may be remanded to the learned
Labour Court No.9, Multan for rewriting of the judgment.

The request -being genuine and unanimous is allowed. I, therefore, allow this appeal,
set aside the impugned judgment and remand the case to Punjab Labour Court No.9,
Multan for fresh adjudication of the case in .the light of the evidence available on the
file and after hearing the learned counsel for the parties.

Parties are directed to appear before Labour Court No.9, Multan, on 8-6-2002.
Expeditious disposal is required, preferably within 60 days."

After the said remand, the learned Punjab Labour Court No.9, Multan, proceeded to hold
vide judgment dated 31-5-2003 that in view of the said section 2-A of the Service Tribunals
Act, 1973, which is fully applicable as the employer-Company is an establishment owned,
controlled and supervised by the Federal Government with a controlling share of 52%, the
grievance petition is not proceedable in the Labour Court and then the said Labour Court
proceeded to return the grievance petition to the petitioner for its presentation before a Court
of competent jurisdiction.

3. The petitioner in person vehemently contends that he had duly brought the factum of the
said amendment of the said statute to the notice of the learned Labour Appellate Tribunal
still it proceeded to remand the case. He also adds that he never agreed to the said remand.
His precise plea is that if section 2-A of the said Act, 1973, was to be applied then by all
means the appeal filed by his employer before the learned Labour Appellate Tribunal stood
abated along with his own appeal and then matters were to be governed by legal and
constitutional provisions. Mr. Javed Altaf, Advocate/learned counsel for the employer-
Company while not denying that the said section 2-A is applicable, and thus trying to
support the judgment of the Labour Court, urges that since the remand was ordered with the
consent of the petitioner, the said objection would not be available and it cannot be said that
the Labour Court or the learned Appellate Tribunal had acted without jurisdiction or without
lawful authority.

4. I have duly considered the respective contentions of the parties and have examined the
entire available records, with the assistance of the petitioner in person and the learned
counsel for the respondents. I have already detailed above the entire history of this case.
Now the Hon'ble Supreme Court of Pakistan in the judgment dated 10-11-1990 (I may note
here that this judgment is reported as PLD 1991 SC 258 and the matter was decided along
with some other. similar matters) had directed the learned Labour Appellate Tribunal to
decide the matter afresh in accordance with law. It is but obvious that the matter was not so
decided for more than a decade after the said judgment. In the meantime section 2-A of the
Service Tribunals Act, 1973, was promulgated on 10-6-1997 vide the Service Tribunal
(Amendment) Act (XVII) of 1997, the result was that a person holding a post under an
authority, corporation, body or organization established by or under a Federal law or which
is owned or controlled by the Federal Government or in which the Federal Government has
a controlling share or interest was deemed to be a civil servant for the purposes of this Act.
Admittedly, the employer-Company is such a body or corporation and the petitioner is
holding a post under it. The said insertion having been made, the entire statute is to be read.
Now section 6 of the said Act of 1973, provides that all suits, appeals or applications
regarding any matter within the jurisdiction of a Tribunal pending in any Court immediately
before the commencement of this Act shall abate forthwith. The proviso entitles any party to
such a suit, appeal or application to file an appeal within the time prescribed in respect of
any such matter which is under issue in such a suit, appeal or application. The result was that
both the appeals pending before the learned Appellate Tribunal stood abated. Now the said
section 2-A came up for interpretation in context of section 6 of the said Act, 1973, in the
case of G.M. National Bank of Pakistan and others v. Abdul Aziz and others (2002 PLC
(C.S.) 18). The Hon'ble Supreme Court of Pakistan approved the following dictum earlier
given in the case of Federation of Pakistan v. Muhammad Siddiq (PLD 1981 SC 249) at
pages 24 and 25 of the said report:

"It is not possible, we regret, to uphold the view taken by a learned Single Judge in
the High Court in the case of S.M. Nafisul Hassan Shah to the effect that an appeal
filed by the Government is not at all entertainable under the Act. It is true that in the
proviso to section 6 of the Ordinance which preceded the Act it was specified that a
civil servant, who was a party to suit, appeal or application which abated under the
purview of section 6 could prefer an appeal to the appropriate Tribunal. But in the
Act itself a change was brought about in the language of the proviso. The phrase any
civil servant who is a party to such a suit' was substituted by the phrase any party to
such a suit'. The Act was promulgated on the 29th of September, 1973 while the
appeal before the Service Tribunal in the said case was filed on the 24th of October,
1974, if this change would have been brought to the notice of the High Court, the
observation that the Service Tribunal had no jurisdiction to hear appeal or to
entertain any proceedings of any kind whatsoever at the instance of the Government',
would not have been made."
3. I have also the advantage of going through another judgment of the Hon'ble Supreme
Court of Pakistan Court of Pakistan which was given in a very case pertaining to the
respondent-employer-Company in the case of General Manager Pak Arab Fertilizers Ltd,
Khanewal Road, Multan v. Muhammad Ayub son of Fazal Elahi (C.A. No.796 of 2000) on
10-2-2005. Their Lordship have held that the original remedies provided in the statutes
governing the parties in a labour matter would stand abated but not a writ petition that was
filed after all the remedies had been exhausted.

6. Now what happened in the present case is that learned Appellate Tribunal, in the first
instance, had not complied with the clear directives of the Hon'ble Supreme Court of
Pakistan, in the second, with knowledge of the said statutory change (and to my mind the
statute would take .effect whether or not the Court or Tribunal is aware), he proceeded to
send back the case to the learned Labour Court holding its judgment to be perverse on the
basis of the statements recorded and with the direction to decide the matter in accordance
with law. The Labour Court ultimately has held that he has no jurisdiction to decide the
matter in view of section 2-A of the said Act, 1973 and has returned the grievance petition.

7. The petitioner has very rightly complained that the said order of the learned Labour
Appellate Tribunal remanding the case to the Labour Court is utterly without jurisdiction.
The reason being that there was no proceedings before him either in fact or in law on the day
when he proceeded to remand the same for the reason that the appeals of both the parties
stood abated in terms of section 2-A read with section 6 of the Service Tribunals Act, 1973
and Article 212 (3) of the Constitution of the country.

8. The writ petition as well as the FAO are allowed and the order passed by the learned
Labour Appellate Tribunal at Lahore on 24-5-2002 and consequent proceedings and order
passed by the learned Punjab Labour Court No.9, Multan, on 31-5-2003, are declared to be
without lawful authority and are set aside with a further direction that both the appeals
against the original order dated 8-6-1977 of the learned Labour Court No.9, Multan stood
abated by operation of section 2-A read with section 6 of the Service Tribunals Act, 1973
and Article 212(3) of the Constitution. No orders as to costs.

S.A.K.-122A/L???????????????????????????????????????????????????????????????????????
Petition/appeal accepted.
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