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Industrial Relations Ordinance (XXIII of 1969)--

-- Ss. 25-A(8) & 38(8)-Complaint for non-implementation of order of Labour Court-Workman ordered by Labour Court to be reinstated shall not remain out of employment for more than 20 days even by an order of stay unless reinstatement order is set aside in appeal - Reinstatement order upheld by Appellate Tribunal challenged before High Court in constitutional petition and High Court declining to pass stay order suspending operation of re-instatement order- Workman filing complaint before Labor Court for non-implementation of reinstatement order-Labour Court staying proceedings on complaint or grounds that matter was still sub judice in constitution petition before High Court Appellate Tribunal, in circumstances, in suo motu revision powers setting aside order of Labour Court and transferring complaint to another Labour Court for disposal according to law-Held: Only ground that constitutional petition had been admitted and was pending and matter was still sub judice, in circumstances, would not operate as an automatic stay against reinstatement order passed by Labour Court-Revision-Industrial Relations Ordinance (XXIII of 1969), S. 38(3-a).

H. M. Fazil Zaheer v. Kh. Abdul Hameed and others 1983 S C M R 906 rel.

M. M. Kazim for Applicant.

Masud Mirza for Respondent.

Date of hearing : 14th May, 1984.

The admitted facts are that the applicant, Gul Zaman filed an application under section 25-A, 1. R. O., 1969, before the learned Labour Court No. IV at Karachi. He was ordered to be reinstated with full back benefits vide order, dated 2nd December, 1982. The management filed an appeal against that order before this Tribunal. The appeal was dismissed. The management then went into a Constitutional Petition before the Hon'ble High Court. Alongwith that petition, an application for Injunction under Order XXXIX, rules I and 2, C. P. C. read with Article 9 of the Provisional Constitution Order, 1981 was also filed. The Hon'ble High Court admitted the petition, but disposed of the application filed under Order XXXIX, rules 1 and 2, C. P. C., only ordering payment of uptodate back benefits to the applicant. The Hon'ble High Court as would be clear declined to stay the operation of the order of reinstatement passed in favour of the applicant by the learned Labour Court, which was confirmed by this Tribunal in appeal. The applicant then filed a complaint under section 25-A (8), 1. R. O., 1969, before the learned Labour Court as he was neither reinstated nor was being granted his salary. The learned Labour Court entertained the complaint and issued process against the respondents. The respondents then filed an application in the Labour Court for dismissal of the complaint. The learned Labour Court on that-application stayed further proceedings in the complaint vide its order, dated 25th October, 1983, on the ground that subject-matter at issue was still sub judice in the writ proceedings before the High Court: This suo motu revision is directed against that order.

2. I have perused the relevant material on the record and have also heard the learned counsel for the parties, Mr. M. M. Kazim for the applicant and Mr. Masood Mirza for the respondents. As the provisions of section 38(8), 1. R. O., 1969, would disclose the intention of the Law is very clear that the workman ordered to be reinstated by the Labour Court shall not remain out of employment for more than 20 days, even by an order of stay until and unless an order of reinstatement is set aside in appeal. In the instant case this Tribunal in appeal confirmed the order of reinstatement passed by the learned Labour Court in favour of the applicant. It would, therefore, be clear that unless the order is stayed, suspended or set aside by the superior Courts in appeal or revision or writ proceedings under the Law, it would hold the field. It is an admitted position that the Hon'ble High Court declined to stay the operation of the order of reinstatement passed in favour of the applicant. It is an elementary principle of Law that mere filing of revision, petition or appeal, does not operate as a stay order. A prohibition or a restraint on the statutory powers cannot be inferred or implied but must be clearly/ expressed and communicated. Reliance in support of that view has been placed on the authority, of the Supreme Court of Pakistan reported in the case of H. M. Fazil Zaheer v. Kh. Abdul Hameed and others (1983 S C M R 906). In the circumstances, the only ground that the constitutional petition has been admitted and is pending and the matter is still sub judice would not operate as an automatic stay against the order of reinstatement passed in favour of the applicant. The Hon'ble High Court if had found the case fit for stay would not have declined to pass that order when the application was filed. Accordingly, it is very clear to me that the impugned order passed by the learned Labour Court is based on misconception of facts and Law and cannot be legally sustained.

3. The impugned order, dated 25th October, 1983, passed by the learned Labour Court is, therefore, set aside and this suo motu revision is allowed. The complaint filed by the applicant against the respondents is withdrawn from the IV th Labour Court at Karachi and is transferred to the III rd Labour Court at Karachi for disposal according to Law.

A. E. Revision allowed.

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