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Constitutional Petition No. 860 of 1981, decided on 12th October, 1981.

Provisional Constitution Order (1 of 1981)‑--

--‑‑Art. 9‑‑Industrial Relations Ordinance (XXIII of 1969), S. 25‑A_‑Back benefits‑‑Labour Appellate Tribunal, held, has dis cretion‑to order back benefits or not and such discretion cannot be called in question being exercised in arbitrary or illegal manner.

Nawab Syed Raunaq v. Chief Settlement Commissioner and others P L D 1973,S C 2.36 ; Muhammad Hussain Munir and others v. Sikandar and others P L D 1974 S C 139 : Badrul Hague Khan v. Election Tribunal Dacca and others P L D 1963 S C 704 and Textile Corporation of Pakistan Ltd. v. Sind Labour Appellate Tribunal and another N L R 1980 Labour Kar. 172 ref.

Date of hearing : 12th October, 1981.

This is. a constitution petition under Article 9 of the Provisional Constitution Order, 1981, calling in question a part of the order dated 6th April, 1981 passed by Mr. Justice (Retd.) Z. A. Channa. Sind Labour Appellate Tribunal in Appeal‑No. KR‑762 of 1980, whereby the learned Tribunal ordered the reinstatement of the petitioner but refused the back benefits for the reasons firstly, because it was not clear as to when the lock‑out in regard to the Shipyard was lifted, secondly, according to' his own version the petitioner appeared to have waited until some sort of agreement between the management and the workmen was reached and thirdly, there was nothing on record to indicate whether since the date of his dismissal the petitioner had not been gainfully employed.

We have heard Mr. M, L. Shahani learned Counsel for the petitioner.

It is not disputed that the Labour Appellate . Tribunal had discretion to order back benefits or not and it cannot be said that in this case the discretion was exercised in an arbitrary or illegal manner. Moreover we are not sitting ‑in appeal over the order. No specific provisions of law are claimed to have been violated. Even if we assume that the order is wrong or erroneous, the following rules laid down by the Supreme Court in Nawab Syed Raunaq Ali v. Chief Settlement Commissioner and others (P LOD 1973 S C 236), is attracted.

"It is no doubt true that there is clear distinction between an ac wholly without jurisdiction and an act done in the improper exer cise of that jurisdiction. Where there is jurisdiction to decide, then as it has often been said there is jurisdiction to decide either rightly or wrongly, and merely a wrong decision does not render the decision without jurisdiction. To amount to a nullity, an act must be non‑existent in the eye of law ; that is to say, it must be wholly without jurisdiction or performed in such a way that the law regards it as a mere colourable exercise of jurisdiction or unlawful usurption of jurisdiction."

It may be useful, if we also here quote the dictum of the Supreme Court in Muhammad Hussain Munir and others v. Sikandar and others (P L D 1974 S C 139).

"However, that may be, it is wholly wrong to consider that the above constitutional provision was designed to empower the High Court to interfere with the decision of a Court or Tribunal of inferior jurisdiction merely because in its opinion the decision is wrong. In that case, it would make the High Court's jurisdiction indistinguish able from that exerciseable in a full‑fledged appeal, which plainly is not the intention of the Constitution‑makers."

We may also quote a passage from the Judgment of Kaikaus, J in Badrul Hague Khan v. Election Tribunal, Dacca and others (P L D 1963 S C 704)

"The proposition is indisputable that when there is jurisdiction to decide a particular matter then there is jurisdiction to decide it rightly or wrongly and the fact that the decision is incorrect does not render the decision without jurisdiction. I do not see any difference in a case where the question .of law decided is a matter on which two opinions can easily be held and a case where the decision on a question of law appears to be clearly erroneous. It would not make difference that on logical reasoning the interpretation of law by the Tribunal could not be supported. Unless a case of mala fide or a mere colourable exercise of jurisdiction could be made out the decision would not be without lawful authority. If an order can be without legal authority because of a clearly wrong determination of a question of fact. There is no reason for any distinction in this connection between a decision on a question of law and a decision on .a question of fact. There is no reason for any distinction in this connection .between a decision on a question of law and a proposition that clearly erroneous decisions are without lawful authority the Court acting under Article 98 would constitute itself a Court of Appeal for matters of fact as well as matter of law."

The learned Counsel heavily relied on Textile Corporation of Pakistan Ltd. v. Sind Labour Appellate Tribunal and another (N L 8 1980 Labour Kar. 172) in support of his proposition that the petitioner could not have been deprived of his legiti mate dues after he had been ordered to be reinstated. However, in this case the question whether the discretion was properly exercised or not, which is involved in the present case, was not involved.

We therefore, find no substance in this petition and accordingly dismiss it.

M.Y.M. Petition dismissed.

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