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Civil Appeal No. 34 of 1971, decided on 18th November 1976.

(On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated the 4th October 1969, in Writ Petition No. 205 of 1969).

-----Read with Rules framed under Act‑Permits or tickets or Miner Books issued to miners creating heritable right in recipient and on death or incapacitation of such recipients Miner Books admittedly transferable to one of his legal heirs subject to certain conditions‑ Appellant, a miner, transferring his Miner Book in favour of his 8 or 9 years old son and four months thereafter appellant's uncle trans ferring his, Miner Book in favour of appellant and transfer confirmed by Collector, Central Excises and Land Customs‑Transfer of his Miner Book, by appellant in favour of his minor son, held, not a clean and honest deal and obviously motivated by desire to sub sequently obtain Miner Book of his uncle‑All three sons of appellant employed on regular full time jobs‑Appellant also subsequently incapacitated by injury to his left leg‑Employer, held, under no obligation to retain appellant in service in view of considerations of efficiency and safety‑Manager of Mines, in circumstances, held, justified in holding answering respondent better entitled to transfer of Miner Book of appellants' uncle and transfer of such Book to appellant rightly cancelled.

----Art. 199‑Writ petition, maintainability of‑Appellant an employee of West Pakistan Industrial Development Corporation‑Constitutional guarantees being not available to such employees, writ petition, by such an employee, held, not competent.‑[Industrial dispute].

The Chairman, East Pakistan Industrial Development Corporation, Dacca and another v. Rustam Ali and another P L D 1966 S C 848 ref.

Muzaffar Ahmed, Advocate and Wajid Hussain, Advocate‑on‑Record for Appellant.

Respondent No. 1 in person.

Riaz Ahmad Pirzada, Advocate and Abdul Karim, Advocate‑on‑Record (absent) for Respondent No. 2.

Dates of hearing : 17th and 18th November 1976.

Muhammad Hayat appellant herein and Hayat Muhammad respondent No. 2, besides having somewhat similar names are closely related inter se. They were miners working in the Khewra Salt Mines. Miners working in the Salt Mines were issued tickets or permits to work in the mines. The dispute between them relates to the possession of Miner Book No. 32/13. It appears that standing orders were issued by the Central (government under the Industrial Employment and Standing Orders Act, 1946 and some Rules were also framed in that regard, the object inter alia being to regulate the employment of miners working in the mines. The standing orders were revised in the year 1955 and although prior to that no direct statutory provision in the Act or Rules is available regarding the maintenance of Miner Books yet it appears that these permits or tickets issued to the miners created a heritable right in the recipient on whose death or incapacitation it could be transferred to one of his legal heirs subject to certain conditions. The factual correctness of this position is not disputed by the parties. The other undisputed facts of the case are that on 8‑12‑1952, Muhammad Hayat appellant transferred his Minor Book No. 6/11 in favour of his minor son Muhammad Din, who was about 8 or 9 years of age at that time. After about four months on 26‑3‑1953, Hassu uncle of Muhammad Hayat appellant and Hayat Muhammad respondent No. 2 transferred his Miner Book No. 32/13 in favour of the appellant and the two transfers were confirmed by the Collector Central Excise and Lands. Subsequently, on 22‑5‑1957 Labour Officer of the Khewra Salt Mines ordered the re‑allotment to the appellant of his Book No. 6/11 which he had earlier transferred in favour of his son Muhammad Din on 8‑12‑1952 and also directed the transfer of Book No. 32/13 which he had obtained from his uncle Hassu in favour of respondent No. 2. This order was successfully challenged by Hassu before the Director, Excise & Taxation, West Pakistan, who vide his order dated 2‑4‑1958 directed restoration of the previous position. Feeling aggriev ed, respondent No. 2 filed Writ Petition No. 179 of 1959 in the High Court of West Pakistan, which was admitted to full hearing. Having in vain waited for about five years respondent No. 2 presumably in frustration withdrew the same on 17‑6‑1964. In the meantime, the Management and the Administra tive Control of the Khewra Salt Mines was transferred to W. P. I. D. C. On 16‑1‑1965, the Manager of the Salt Mines on the representation of some Lambardars and the Secretary, Labour Union again withdrew Book No. 32/13 from the appellant and re‑allotted it to respondent No. 2. Feeling aggrieved, the appellant challenged this order in constitutional jurisdiction of the High Court and filed Writ Petition No. 205 of 1965, which was dismissed by a Division Bench, vide judgment dated 4‑10‑1969. Leave was granted by this Court to consider the contentions Firstly, that the Manager's order dated 16‑1‑1965 was made ex parte without issuing notice to the appellant who was condemned unheard and secondly, that the question of the transfer of the two Miner Books stood finally concluded by the order of the Collector which was re‑affirmed by the appellate order ‑of the Director, Excise and Taxation dated 2‑4‑1958 and therefore, it was not competent for the Manager to reopen the same after seven years.

A perusal of the High Court's order shows that it called for a report from the Manager of the Salt Mines wherein, it was stated that the appellant in the first instance had got cleverly transferred his own book No. 6/11 in favour of his minor son Muhammad Din and later manoeuvred, to obtain the Book of his uncle Hassu and that this device of the appellant had created a lot of discontentment and unrest among the workers as evidenced by the representation by several Lambardars and Punjab Miners Labour Union, Khewra. Having perused the various documents, the learned Judges in the High Court found it for a fact that the appellant had got transferred his own Book No. 6/11; on ground of incapacitation on which account he had also received a compensation of Rs. 2,520 for 50 per cent permanent partial disablement of his left leg. Dealing with the contention relating to want of notice, the High Court took the view that the Manager, Salt Mines had conducted an elaborate enquiry hearing representations from all the concerned quarters and as such want of a specific show‑cause notice would not be very material in the case of such an open public enquiry. It was observed that the petitioner had obtained the Book by adopting dishonest means vitiating the entire transaction and this had the effect of taking away any finality which might otherwise have attached to the Collector's order. Finally, it was observed that "in any case, in view of the impression which we have formed regarding the conduct of the petitioner himself in the matter of the disposal of his own Miner Book and obtaining compensation in that behalf, we are not at all inclined to give him any relief simply on the ground that a formal show‑cause notice was not issued to him before the book was restored to the respondent".

Learned counsel for the appellant reiterated the contentions raised by him before the High Court. It was argued that the transfer of appellant's Book No. 6/11 in favour of his minor son on 8‑12‑1952 was an open transaction and therefore, there was hardly any element of fraud in it, that the Director's order dated 2‑4‑1958 had become final and no power to rescined that order after almost a full decade vested in the Manager. Lastly, grievance was also made of the want of show‑cause notice and the ex part order condemning the appellant unheard.

Having gone through the relevant record, we are clearly of the view that the High Court's finding contained in paragraph 4 of its judgment to the effect that the appellant had got his own Book "transferred to his son Muhammad Din on the ground of his incapacity and received compensation in the sum of Rs. 2,520 on account of 50 per cent. permanent partial disable ment of his left leg" was based on misreading of evidence as amply borne out by the record. In the parawise comments submitted by the Chief Mines Engineer, Salt Range Division, Khewra (Annexure B/I) the factual correctness of this allegation is categorically denied in paragraph 5(a) which reads as follows:----

"5(a). It is a fact that Muhammad Hayat s/o Khuda Bux transferred his Book No. 6/11 to his son Muhammad Din on 8‑12‑1952, but not on account of reason that he declared himself incapacitated on Medical Certificate, as is clear from the original application submitted by Muhammad Hayat s/o Khuda Bux on 3‑I1‑1952 at page 1 of File No. 216‑Glt/52 (enclosed in original)."

Again document Exh. D. 1 which is a representation by the appellant addressed to the Mines Manager coupled with a certificate by the Inspector, Khewra Mines and the medical report by the Assistant Surgeon, Khewra, and Exh. D. 2 which is a certificate by the Divisional Accountant, W. P. I. D. C. Salt Mines, Khewra, clearly establish that the appellant's incapacitation of left leg was caused by an injury sustained by him on 18‑1‑1963 about a decade after the disputed transfers of the two Miner Books on 8‑12‑1952 and 26‑3‑1953. To that extent therefore, the High Court if we may say so with respect was obviously in error. However, there are some other weighty con siderations which leave us in no manner of doubt that the appeal must fail. From the evidence on the record, we are inclined to share the High Court's' impression that the first transfer of the appellant's Book in favour of his minor's son Muhammad Din who was admittedly about 8 or 9 years of age, does not appear to us to be a clean and honest deal and was obviously motivated by the desire to obtain subsequently the Miner Book of Hassu who was equally related to the appellant and the respondent both being his real nephews. It is in evidence that all the three sons of the appellant are employed having regular full time jobs, two in the Salt Mines while the third in the Water and Power Development Authority. It is thus clear that the entire case of the appellant was built on a very weak foundation. At any rate after 18‑1‑1963 the date on which the appellant's left leg was incapacitated, the employer was under no obligation to retain him in service and in fact considerations of efficiency and safety demanded to the contrary. Thus in view of the position as it obtained in 1965, the Manager was justified in holding that the respondent was better entitled to the transfer of the Mine Book of Hassu. A more weighty consideration, however, is that in view of this Court's judg ment in The Chairman, East Pakistan Industrial Development Corporation, Dacca and another v. Rustam Ali and another (P L D 1966 S C 848) the appellant being and employee of the W. P. I. D. C. his writ petition before the High Court was not competent as Constitutional guarantees were not available to him. At the same time we cannot avoid an impression that perhaps the litigation fell within the scope of the Industrial Disputes Ordinance, 1959 which provided for different and unavailed remedies. Even otherwise, technicalities apart, we are convinced that the equities are in favour of the respondent. Accordingly, we dismiss the appeal with no order as to costs.

In view of a series of judgment of this Court beginning with The Chairman, E. P. I. D. C. v. Rustam Ali etc. I agree that the writ petition of the appellant was not maintainable and that his appeal should therefore, be dismissed with costs.

Appeal dismissed.

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