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Appeal No. HYD‑4 of 1979, heard on 18th March 1980.

‑‑ S. 36‑‑‑Procedure‑Decision and order of Labour Court‑Not only to be pronounced but must be written and signed when pronounced Sanctity of judicial records ‑‑ Raises presumption as to decision having been recorded and announced on day when it purports to have been given unless such presumption eroded by strong circumstances Decision suggested to have been recorded after transfer of Presiding Officer‑Not bearing seal of Court‑No notice of announcement given to parties and purportedly announced after more than 18 months of filing of written arguments by parties‑Circumstances coupled with instances of recording decisions in other cases after transfer, held, gravely eroded presumption of regularity or sanctity and correctness of judicial record‑Such order, held, having been passed when Presiding officer had become functus officio was a case of coram non judice Decision and order, in circumstances, set aside and matter remanded for decision after opportunity of oral arguments to parties‑Coram non judice‑Words and phrases.

A. Majeed for Appellants.

Syed Ahmad Farooqui for Respondents.

Date of hearing : 18th March 1980.

This appeal is directed against a decision of the learned Sixth Labour Court, given on 2‑3‑1976, dismissing the petition filed by the appellant‑Union under section 34, Industrial Relations Ordinance, on the ground, firstly, that the appellant‑Union had failed to establish that it was the Collective Bargaining Agent in respect of the Feeder Division Establishment, secondly, that after the death of the General Secretary, who filed the petition, the succeeding General Secretary of the Union has not signed the said petition and hence the petition had not been properly presented, thirdly, that the services of the retrenched workmen in the Feeder Division had been terminated in accordance with the provisions of clauses (1) and (3) of Order XII, and hence there was no infirmity or illegality in the said orders and lastly that neither the workers were entitled to payment of any gratuity nor could the claim for gratuity be legally agitated in an application under section 34, Industrial Relations Ordinance.

2. I have heard Mr. A. Majeed, who appeared for the appellant, and Mr. Farooqui, the learned counsel for the respondents. The primary contention of Mr. A. Majeed was that the impugned decision is coram non judice as it was given by a person who had become functus officio and had ceased to be a Presiding Officer of the Labour Court. The learned Representative submitted that though the decision purports to have been announced on 2‑3‑1976, when Mr. Bukhari, who gave the same was still holding the Office of the Presiding Officer of the Sixth Labour Court, the said decision was clearly given much later, after he had ceased to be the Presiding Officer of that Court and had become functus officio. In support of his contention, Mr. A. Majeed relied upon, firstly, the circumstances as appear from the record itself, and secondly, the observations made by my learned Predecessor in respect of the said Presiding Officer in Appeals Nos. HYD‑427/77, HYD‑428/77, HYD‑430/77, HYD‑434/77, HYD‑138/78, HYD‑142/78 and HYD‑143/78, decided on 23‑10‑1978. The circumstances on record, which according to Mr. A. Majeed support his contention are, firstly, that though the matter had been adjourned by the learned Labour Court on the application of the counsel of the respondents, to 27‑7‑1974, for hearing further arguments, neither were further arguments heard nor was any notice given to the representative/counsel of the parties to appear and argue the case, despite the fact that they are said to have consistently remained absent till the purported decision of the case some 18 months later; secondly, that though there are on record the written arguments of the learned counsel for the respondents, dated 17‑4‑1974, there is no mention about them in the case diary or the date on which they were filed; and thirdly, from 27‑7‑1974, the date to which the case had been adjourned on the application of the learned counsel for the respondents, uptodate on which the decision is said to have been announced, the diaries have been written in the hand of the learned Presiding Officer himself, contrary to the invariable practice, according to which the diaries are written by the Reader and only signed by the Presiding Officer, as in the case of the diaries, in the present case, for the period prior to 27‑7‑1974. These circumstances according to Mr. Abdul Majeed strongly suggest the inference that not only the diaries have been incorrectly and subsequently written but rebut the presumption that the case was decided on 2‑3‑1976, the date recorded on the decision.

3. The second ground urged by Mr. A. Majeed and relied in support of his contention was that it was an indisputable position that at the time of his transfer from Hyderabad the learned Presiding Officer had taken away the records of a very large number of cases for the purposes of writing awards, decisions and orders, which he sent subsequently, by installments, to his successor, and in support of this contention the learned representative relied upon the following observations made by my learned predecessor in Appeals Nos. HYD‑428/77 etc., decided on 23‑10‑1978 :‑

"I have heard the learned counsel as well as I have considered the explanation of the learned Presiding Officer and I am inclined to accept the contention as raised on behalf of the appellants that the Orders were never written while the Presiding Officer was holding the charge but the same were written and signed long after his transfer. The statement made by the learned Presiding Officer seems not to be correct. There is no order on the file of any of the cases. I recall that when I was last holding the charge of this Court, there were many complaints received from many quarters that the learned Presiding Officer had taken away more than 150 cases and the parties were approaching the Labour Court for the supply of the copies of the Orders, if at all passed in those cases but they were told that the cases were not available and had been taken away by the previous Presiding Officer on his transfer. There was also some correspondence in which, I too bad directed the previous Presiding Officer to return those cases. The list, which was sent by the successor Presiding Officer, also had confirmed this fact. Not only this, but, this is further supported by the facts that the copies of the Orders were supplied somewhere in September 1977, although the Orders were purported to have been written and signed in February and March 1976.

Therefore, what has been stated above, it is clear enough that serious illegality had been committed as the law requires that the Order not only should be pronounced but it must be written and signed when it is pronounced. On account of serious non compliance with the law, the impugned orders are not sustainable."

4. I have also seen the correspondence which had taken place on the above point between ,the Office of the Tribunal and the successor of the learned Presiding Officer, who purported to have decided these cases, from which it appears that hundreds of cases were taken away by the learned Presiding Officer at the time of his transfer in March 1976, and these cases were subsequently sent back by him, at intervals and in instalments.

5. In addition to the circumstances relied upon by Mr. A. Majeed in support of his above contention, there are other circumstances which tend to support him. The first is that the impugned decision does not bear the seal of the Court. This obviously would not have been possible if the learned Presiding Officer had continued to remain in office at the time when the decision is said to have been written and announced. This is a strong circumstance indicating that the judgment was recorded when he had ceased to hold the Office of Presiding Officer. The second circumstance is that no notice of the announcement of the judgment was given to the parties. This was all the more necessary since the judgment was being announced more than 18 months after the hearing of the arguments and during the intervening period no party bad been in attendance. One more circumstance which also seems to have a bearing upon this issue is that the application for copy of the decision was made by the respondent on 8‑7‑1978 and by the appellant on 6‑12‑1978. This suggests that possibly the record of the case was not available in the Office of the learned Sixth Labour Court and it was only after the record had become available that applications for copies of the decision were made.

6. Mr. Farooqui, the learned counsel for the respondent on the other hand, submitted that judicial record has a sanctity behind it and unless there are strong circumstances to the contrary this Tribunal should be slow to accept the contention that the decision in the instant case was not recorded and announced on the day when it purports to have been given i.e. on 2‑3‑1976. The contention of Mr. Farooqui undoubtedly has great force and ordinarily I would not have entertained an argument challenging the correctness or regularity of a judicial action or even the date when a particular decision was given but in the instant case, as already pointed out, there are strong circumstances indicating that there was departure from the normal and established practice of the Court. In view of these unfortunate circumstances, and also bearing in mind the past conduct of the learned Presiding Officer, in respect of which my learned predecessor has recorded very strong observations, which have been earlier reproduced in this order, I am of the view that the presumption as to the regularity or the sanctity and correctness of the judicial record has, unfortunately, been gravely eroded.

7. Mr. Farooqui next submitted that unless this particular case finds mention in the lists of cases which were subsequently received by the successor of the Presiding Officer, the presumption should be that the case was decided on the date upon which it purports to have been decided. Although it is not clear from the lists submitted by the successor of the learned Presiding Officer of the cases which he had subsequently received from his predecessor whether this particular case was among those cases, since there is one case, at Item No. 99 of the second list, entitled A. D. C. Union v. A. D. C., which seems to correspond to the present case, it is quite likely that the instant case was one of those cases which had been subsequently received from the Presiding Officer who had decided it.

8. For the reasons stated by me above, I am inclined to the view that the decision in the instant case was net given by the learned Presiding Officer on the date on which it purports to have been given but at the time when he had become functus officio and as such this is a case of coram non judice. I would accordingly set aside the impugned decision of the learned Presiding Officer and remand the case to the learned Labour Court for decision after giving opportunity to both parties of submitting oral arguments. Since the case is being remanded, I am not touching upon the various other legal factors and issues raised in the case. However, I would like to add that since, in my opinion, the impugned decision was coram non judice and further it is not known when it was actually given, no question of limitation arises so far as the appeal before this Tribunal is concerned.

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