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Constitutional Petition No. S.‑55 of 1980, decided on 17th July, 1983.

‑‑‑‑‑ Ss. 25‑A & 37 (3) West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O. 12 (3) Appeal‑Expression "and thereupon the provisions of the said section shall apply as they apply to redress of an individual grievance " S. 37 (3) not specifically referred in adopting provisions introduced in S. O. 12‑Aforesaid expression about applicability of provisions of S. 25‑A applying to redress of individual grievance renders available all rights attached with S. 25‑A including right of appeal under S. 37 (3)‑Appeal against order of Labour Court, held, competent under S. 37(3) ‑[P. I. A. C. v. Chairman, Punjab Labour Appellate Tribunal P L D 1979 Lah. 415 and Mukhtar Hussain v. Punjab Labour Appellate Tribunal P L D 1979 Lah. 748 dissented from).

P. I. A. C. v. Chairman, Punjab Labour Appellate Tribunal P L D 1979 Lah. 415 and Mukhtar Hussain v. Punjab Labour Appellate Tribunal P L D 1979 Lah. 748 [dissented from).

Cotton Trading Corporation v. Rana Shabbir Ahmad 1981 P L C 981 and K. A. K. Afridi v. P. I. A. Corporation 1982 S C M R 167 ref.

Shahi Bottlers Ltd. v. Khushi Mohammad 1979 P L C 424 fol.

Sher Afgan for Petitioner.

Iqbal Ahmad for Respondent No. 1.

Dates of hearing : 13th, 14th and 22nd June, 1983.

The petitioner is Golden Industries Limited' and respondent No. 1 is Alibhoy son of Tayebaly Morkas. Respondent No. 2 is the III Sind Labour Court, Karachi, respondent No. 1 was an employee of the petitioner‑Company and was working as Senior Chief Accountant. On the charge of misappropriation of certain amount, proceedings were taken by the petitioner‑Company against respondent No. 1 and ultimately by letter, dated 26th April, 1978; petitioner‑Company informed respondent No. 1 that he, was dismissed from service with immediate effect. Respondent No. 1 submitted a grievance petition to the petitioner‑Company but the petitioner. Company replied by letter, dated 8th June, 1978 informing respondent No. 1 that he had been rightly dismissed from service and his request for re‑instatement could not be accepted. In the circumstances, respondent No. 1' filed an application under section 25‑A of the Industrial Relations Ordinance, 1969, before the III Sind Labour Court (Application No. 175 of 1978) praying for setting aside the dismissal order and seeking re‑instatement with full back benefits. 14 reply was filed by the petitioner‑Company and thereafter evidence tendered by both the parties was recorded by the Labour Court. By order, dated 20th January, 1980, the III Sind Labour Court allowed the applica tion of respondent No. 1, directing petitioner‑Company to re-instate respondent No. 1 with fullback benefits. The petitioner‑Company, being aggrieved, filed an Appeal No KAR‑85/80 under section 37 (3) of the I. R. O., 1969, before the Sind Labour Appellate Tribunal. The said appeal came up for hearing before the Sind Labour Appellate Tribunal on 2nd March, 1980 when the representative of the petitioner‑Company did not press the appeal and as such the said appeal was dismissed. An application, dated 15th March, 1,980 for review of the order, dated 2nd March, 1980 was filed on behalf of the petitioner‑Company before the Sind Labour Appellate Tribunal, praying that the order dated 2nd March; 1980 be set aside and the appeal be re‑admitted and disposed o8' on merits in the interest of justice, law and equity. The main ground in the review application taken by the petitioner‑Company was that under the provisions of the I. R. O., 1969, "Masood Mirza, claiming to be the representative, had no right to appear and represent the cause of the management side in general and of the appellant in particular, hence his statement is of no consequence and is not binding on the appellant." It was further pleaded without prejudice to the aforesaid plea that even otherwise Masood Mirza had no authority in law to act on behalf of the appellant and, therefore, his statement was without any lawful authority and of no consequences. The said review application for re‑admission of the appeal was vehemently argued on behalf of the petitioner‑Company before the learned Sind Labour Appellate Tribunal but by order, dated 25th March, 1980, finding no merit in the review application, the learned Tribunal dismissed the same.

2. In the present constitutional petition, which was presented in this Court, on 23rd April, 1980, the only order that has been impugned, in the order dated 20th January, 1980 of the Sind Labour Court No. III, Karachi. The order, dated 25th March, 1983 of the Sind Labour Appellate Tribunal has not been challenged. I have head Mr. Sher Afgan, learned counsel for the ‑petitioner‑Company and Mr. Iqbal Ahmad, learned counsel for respondent No. 1.

3. A preliminary objection had been raised by Mr. Iqbal Ahmad, learned counsel for respondent No. 1 that the orders, dated 2nd March, 1980 and 25th March, 1983 of the learned Sind Labour Appellate Tribunal dismissing the appeal and review application of the petitioner‑Company have not been challenged in this case. I find from a perusal of the memo. of the present constitution petition that there is no averment therein why the two orders passed by the learned Sind Labour Appellate Tribunal have not been challenged. Mr. Sher Afgan, learned counsel for the petitioner‑Company argued that under the law an appeal was not competent against the order passed by the learned Sind Labour Court on application under section 25‑A of the I. R. O., 1969 and as such it was not necessary to challenge those two orders. According to the learned counsel, the filing of the appeal by the petitioner‑Company against the order of the Sind Labour Court was itself incompetent and the two orders, dated 2nd August, 1980 and 25th March, 1983 are resultantly of no consequence. If the legal position is that an appeal was competent before the Sind Labour Appellate Tribunal and the said appeal was dismissed as not pressed and the review application against that order was also‑ dismissed by the learned Labour Appellate Tribunal, and the aforesaid two orders have not being challenged in the constitution petition, this petition is liable to be dismissed.

4. Mr. Sher Afgan, learned counsel for the petitioner‑Company, relied upon two judgments from the Lahore High Court. Both these judgments are of Gul Muhammad, Khan, J. The first case is P. I. A. C. v. Chairman Punjab Labour Appellate Tribunal (P L D 1979 Lah. 415) and it was decided on 10th January, 1979. The other judgment of the same learned Judge of the Lahore High Court was given on 14th February, 1979 and it is Mukhrar Hussain v. Punjab Labour Appellate Tribunal (P L D 1979 Lah. 748). The learned Single Judge has taken the view in these two judgments that an order passed by a Labour Court while deciding an application under section 25‑A of I.'R. O. 1969 moved by a workman against termination of his services on his removal, retrenchment, discharge or dismissal, is not appealable before the Labour Appellate Tribunal. The main discussion and the reasoning of Gul Muhammad Khan, J. is to be found in his earlier judgment in the P. I. A .'s case. In the second judgment, the learned single Judge has confirmed his earlier view taken in the P. I. A.'s case.

5. On the other hand, Mr. Iqbal Ahmad, learned counsel for the respondent No. 1, has relied upon two other judgments also from the Lahore High Court. Both these two judgments are of Shafiur Rahman, J. The first judgment announced on 1st April, 1979 of Shafiur Rahman, J. is Cotton Trading Corporation v. Rana Shabbir Ahmad (1981 P L C 981). The second judg ment of the same learned Judge announced on 14th April, 1979 is Shahi Bottlers Limited v. Khushi Muhammad (1979 P L C 424). The first judgment of Shafur Rahman, J. is not on all fours in so far as the point in the present petition is concerned but the second judgment reported in 1979 P L C 424 supports the proposition of law advanced by Mr. Iqbal Ahmad. I may with advan tage reproduce here the reasoning of Shafiur Rahman, J. for taking the view that an appeal to the Labour Appellate Tribunal is competent in such circumstances. At page 426 of the said report, the following observations are made by Shafiur Rahman, J.:‑

"The very language of section 25‑A of the Industrial Relations Ordi nance indicates that whosoever qualifies as a workman under that law can seek the remedy provided therein in respect of the rights secured under other laws. This provision therefore, establishes a link directly with the substantive rights enshrined in some other Act for which a remedial endorsement provision is made under this law. Apart from this line of reasoning the incorporation of section 25‑A, on the strength of Standing Order 12, clause (3) has a distinct feature. The clause reads:-

"The services of a workman shall not be terminated, nor shall a workman be removed, retrenched, discharged or dismissed from service except by an order in writing which shall explicitly state the reason for the action taken. In case a workman is aggrieved by the termination of his services or removal, retrenchment, discharge or dismissal, he may take action in accordance with the provisions of section 25‑A of the Industrial Relations Ordinance, 1969. (XXIII of 1969) and thereupon the provisions of the said section shall apply as they apply to the redress of an individual grievance."

5. The expression "and there upon the provisions of the said section shall apply as they apply to the redress of an individual grievance" have to be noted. If it were the intention of the Legislature to stop at incorporating section 25‑A and to restrict the incorporation of it, such an expression would not have followed. The only meaning that can be given is that once resort to 25‑A is taken on the strength of this provision the provisions of that section in the matter of redress of individual grievance shall apply. Whatever, therefore is the procedure embedded or attached or linked with section 25‑A of the Industrial Relations Ordinance in the matter of the redress of grievance, will automatically be available. The provision being remedial in nature, the full benefit of the remedy has to be giver to the party claiming it. The restriction of the remedy only to the stage of Labour Court and not extending it beyond to appeal and other proceedings available would appear to be some what arbitrary and out of context. The judgments referred to particularly Pakistan International Airlines Corpora tion is under examination by the Supreme Court K.A.K. Afridi v. P.I.A.. Corporation (1982 S C M R 167).

I am in full agreement with the aforesaid view expressed by Shafiur Rahman, J. As observed by the learned Judge, the crucial words employed by the Legislature in clause (3; of Standing Order 12 are‑"and thereupon the provisions of the said section shall apply as they apply to the redress of an individual grievance". If these words had not been employed, perhaps the interpretation would have been different and an appeal would not have been competent. Although there is no specific reference to section 37 (3) in the adopting provisions introduced in Standing Order 12, the aforesaid expression about the applicability of the provisions of section 25‑A as they apply to redress of an individual grievance renders available all rights attached with section 25‑A, including the right of appeal under section 37 (3). With respect I may observe that I have not been able to agree with the view of Gul Muhammad Khan, J. According to me, the view expressed by Shafiur Rahman, J. is the correct interpretation of Standing Order 12(3), Following the reasoning of Shafiur Rahman, J., I am also of the view that in such cases an appeal is competent before the Labour Appellate Tribunal against the order of the Labour Court.

6. I have reached the conclusion that an appeal was competent under section 37 (3) of I. R. O., 1969 against the impugned order of the Labour Court. An appeal was filed by the petitioner‑Company which was dismissed as not pressed and the review application moved on behalf of the appellant was also dismissed by the Sind Labour Appellate Tribunal. The present constitutional petition is liable to be dismissed as neither the orders of the Sind Labour Appellate Tribunal have been challenged nor even a collateral attack has been made against the orders of the Appellate Tribunal in the memo. of the present petition.

3. Constitutional Petition No. S‑55/80 is dismissed but in the circum stances there will be no order. as to costs.

M. A. K. Petition dismissed.

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