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Constitutional Petition No. 386 of 1974, decided on 27th January 1976.

- Ss. 34 & 37-Order of Labour Court dismissing application of workman under S. 34-Appeal against such order before Labour Appellate Tribunal under S. 37(3)-Held, incompetent-Order passed by Tribunal on such appeal remanding case to Labour Court-Devoid of legal sanctity-Order passed by Labour Court after remand of case by Tribunal also without lawful authority.

Muhammad Aqil v. The Chairman, Sind Labour Appellate Tribunal 1974 P L C 194 and National & Grindlays Bank Employees' Union v. Sind Labour Appellate Tribunal P L D 1975 Kar. 754 ref.

Iqbal Kazi for Petitioner.

Nemo for Respondents.

Date of hearing : 27th January 1976.

-- On the conclusion of the hearing of this case on 27-1-1976, we had by a short order allowed this petition with costs in favour of the petitioner and I now proceed to record my reasons for the said order.

2. The facts leading to the present petition are that respondent Khuda Dino (hereinafter for the sake of brevity referred to as the workman). Was employed by the petitioners M/s Hirjina Salt & Chemicals (Pak.) Ltd. a private limited Company having its registered Office at Karachi. The petitioner is for the sake of brevity referred to herein as the employer. Some time in 1969 the services of the workman were terminated by the employer so that he made an application before the then existing Second West Pakis tan Industrial Court, Karachi. This application was registered as No. 77/69 and alleged non-compliance with the provisions of Standing Order 18 in the Schedule to the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. This Standing Order at present stands repealed and re-enacted as section 25-A in the Industrial Relations Ordinance, 1969. The Second West Pakistan Industrial Court allowed the application of the workman and ordered his re-instatement with all back benefits and the said order dated 27-4-1970 has been produced as Annexure C to the petition.

It is then the case of the employer that on 1-7-1970 a settlement was arrived at between the employer and the workman whereby the workman received a sum of Rs. 7,028 from the employer by Cheque No. 02618 drawn by the employer on the Standard Bank; and the workman also resigned on the ground that he had failing health on account of old age. This cheque was cleared by the workman through United Bank Ltd., P.E.C.H S. Branch on 18-7-1970. The workman had also executed a receipts in regards to the amount. Photocopies of the relevant documents had been produced by the employer at the time of the 1 bearing documents originals were placed on the record in Case No. 776/71 which was later on instituted by the workman against the employer in the Ist Labour Court at Karachi.

On 6-7-1971 the workman made an application to the Labour Directorate for enforcement of the order passed by Second West Pakistan Industrial Court and the case of the petitioner is that this application was based on false allegations and the fact of the workman having received a sum of Rs. 7,028 was concealed. Be that as it may, the Labour Directorate forwarded the application of the workman to the Authority under Payment of Wages Act and proceedings under section 15 of the Payment of Wages Act IV of 1936 were instituted against the employer. The Authority under the Payment of Wages Act dismissed the application of the workman on 9-10-71 holding that the workman had received an amount of Rs. 7,028 and had also resigned and was for such reason not entitled to any relief. A certified copy of this order has been produced before us which has beers marked as A-1 for the purpose of identification.

On 25-10-1'771 the workman filed an application under section 34 of the Industrial Relations Ordinance and the record of that case was summo ned and is before us. In this application the workman did not disclose that earlier an order had been passed against him by the Authority under the Payment of Wages Act., The relief sought by the workman was a direc tion to the employer to pay wages for 62 months and bonus of Rs. 1,000 totalling Rs. 12,400. This application was numbered as 77/71 before the Second Sind Labour Court, Karachi. The said Court on the basis of evidence led before it by the parties dismissed the application on the ground of res judicata. The workman thereafter, filed an appeal before the Sind Labour Appellate Tribunal invoking its jurisdiction under section 37 (3) of the Industrial Relations Ordinance and the said appeal was registered as Appeal No. KAC 147/72. By an order dated i5-11-1972 the appeal was partly allowed and the case was remanded for determination of the question whether the workman was entitled to re-instatement. On such remand this matter came up once again before the Second Sind Labour Court where further evidence was recorded and by an order dated 29-1-74 it was held that the workman was still in service and was entitled to re-instatement with full back benefits after 1-7-1970. The date is material because it indicates that as far as payment of Rs. 7,028 by the employer to the workman is concerned the Second Sind Labour Court held the same to the proved. Aggrieved by this order the petitioner/employer filed an appeal before the Sind Labour Appellate Tribunal, Karachi. Before the Sind Labour Appel late Tribunal could hear the appeal a Division Bench of this Court in Petition No. 599/73 in the case of Muhammad Aqil v. The Chairman, Sind Labour 1ppellate Tribunal (1974 P L C 194), held that an order or decision under section 34 of Industrial Relations Ordinance, 1969, was not an Award within the mean ing of section 2 (11) of the Industrial Relations Ordinance and therefore appeal under section 37 (3) of the same Ordinance before the Labour Appel late Tribunal did not lie. Following the decision of the Division Bench, appeal of the employer was dismissed by the Labour Appellate Tribunal by an order, a copy of which is Annexure A on record.

By the present petition the petitioner-employer has sought a relief in the shape of a declaration that the order passed by the Second Sind Labour Court, Karachi, on 29-1-1974 whereby the workman was ordered to be rein stated was without lawful authority and of no legal consequence. A further declaration has been sought that the workman was not entitled to reinstate ment or any benefit.

3. No counter-affidavit has been filed and on the date of hearing neither the respondent Khuda Dino (workman) nor his Advocate has put in an appearance.

4. Mr. Iqbal Qazi has formulated the fo'7lowing two contentions for reconsideration:

(1) That since the Appeal No. KAR-147/1972 before the Sind Labour Appellate Tribunal filed by the workman against the employer was not competent, the remand order that followed this appeal as well as the subsequent order of the Second Sind Labour Court were without jurisdiction, and

(2) That in any case, the order of the Second Sind Labour Court was based on assumptions, was opposed to the record and the Presiding Officer of the Second Sin; Labour Court had misdirected himself.

5. For the purposes of determination of issues in this case I am of the view that only first contention of the petitioner need consideration.

From the history of the case it would appear that litigation had been going on between the parties since 1969 and in the first round the workman obtained relief from the Second West Pakistani Industrial Court and was thereafter paid a sum of Rs, 7,028 in full settlement and a resignation was tendered by the workman. Subsequently, the workman made an application to the Labour Directorate for enforcement of the order passed by the West Pakistan Industrial Court and the case was forwarded to the Authority under the Payment of Wages Act. The workman was held to be not entitled to any relief. It was then that respondent/workman Khuda Dinno filed an application under section 34 of the Industrial Relations Ordinance and the Second Sind Labour Court dismissed the application on the ground that the issues had already been decided by the Authority under the Pay ment of Wages Act. The application having been dismissed it would appear that the Labour Court relied on the version given by the employer in regard to the settlement arrived at between the parties on 1-7-1470 whereby the workman received Rs. 7,028 and also resigned. The question then was whether an appeal lay before the Labour Appellate Tribunal against a section of the labour Court under section 34 of the Ordinance. Under section 37 (3) of the Industrial Relations Ordinance only a party aggrieved by an award under subsection of the wine section of the said Ordinance has a right to prefer an appeal to the Labour Appellate Tribunal. The short question then is whether the order of the Second Sind Labour Court dismissing the application of the workman under section 34 could be termed as an Award or a decision. If it is a decision, no appeal lies to the Appellate Tribunal and to such extent a Division Bench of this Court in the case of Muhammad Aqil is a direct authority. It would be of benefit to reproduce the relevant portion from the judgment of the Division Bench :

"As aforesaid award has been defined in the Industrial Relations Ordinance, 1969 as meaning determination by a Labour Court of any industrial dispute or any matter relation thereto. Can it be said that in exercise of its jurisdiction under section 34 of the Ordinance the Labour Court is determining an industrial dispute From the language of section 34 it would appear that the Court does not under it either determine or adjudicate an industrial dispute. It certainly does not determine or adjudicate upon rights of the parties. The section merely provides for enforcement of pre-existing rights and not deter mination or adjudication of rights between the parties. In this view of the matter the decision of the Industrial Court under section 3 4 would not fall within the meaning of the award as defined in the Industrial Relations Ordinance, 1969, for award is determination of an industrial dispute or any matter relating thereto and not enfor cement of a recognized right guaranteed to a workman under any Law, settlement or award. The result is that an order under section 34 made by the Industrial Court in this case was not an award but a decision and, therefore, it was not appealable under section 37 of the said Ordinance."

Another Division Bench of this Court followed the decision in the case of Muhammad Aqil and the latter judgment is in the case of National & Grin dlays Bank Employees' Union v. Sind Labour Appellate Tribunal (P L D 1975 Kar. 754).

I therefore have no doubt whatsoever that since the initial appeal before the Sind Labour Appellate Tribunal was incompetent and the Tribunal as coram non judice, any order passed by it or flowing as a consequence of such order is devoid of legal sanctity. As a necessary consequence the order of A the Second Sind Labour Court after the remand of the case by the Appellate Tribunal is also of no lawful authority and not binding in law.

During the pendency of the petition the petitioner was by an interim order directed to deposit the amount payable to 'the workman. All such 4, amounts deposited by the petitioner shall be returned to him forthwith. This petition has therefore to be allowed on such short ground alone.

6. I allow this petition and grant reliefs as prayed. Respondent Khuda Dino shall also bear the costs of the petition.

I. MAHMUD, J.-I agree.

Petition allowed.

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