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Civil Petition No. K‑431 of 1984, decided on 22nd August,1985.

(On appeal from the judgment and order of the High Court of Sind at Karachi, dated 10‑5‑1984 passed in Constitutional Petition No. D‑9 of 1978).

‑‑‑S. 38(3‑a)‑‑Labour Appellate Tribunal‑‑Revisional jurisdiction‑Whether could be exercised on motion of parties‑‑Suo motu statutory power can be invoked by authority vested with it on application of a party to proceedings before subordinate forum or authorities Provisions of subsection (3‑a) of S.38 have no bar on Tribunal to exercise jurisdiction if requisite information comes before it from any source including an application made by any party.

‑‑‑Ss. 36(2) & 25‑A‑‑Civil Procedure Code (V of 1908), O.V, r. 15‑ Service of notice on mother of respondent‑‑Respondent being out of country to perform Haj‑‑Dismissal of petition for non‑appearance‑ Restoration of petition impugned‑‑Held, service of notice was not duly effected and order of dismissal was patently illegal as it had effect of refusing opportunity of hearing to respondent‑‑Petition rightly restored.

‑‑‑Art. 199‑‑Constitutional jurisdiction, exercise of‑‑Impugned order passed in order "to foster the cause of justice"‑‑High Court was within its power to refuse relief in Constitutional jurisdiction even though authority concerned had acted clearly without jurisdiction‑‑High Court having acted in consonance with higher principle of justice laid down by Supreme Court, no exception could be taken to order impugned‑‑Leave to appeal refused.

Raunaq Ali v. Chief Settlement Commissioner P L D 1973 S C 236 rel.

S. Iqbal Ahmed, Advocate Supreme Court assisted by M. Shabbir Ghaury, Advocate‑on‑Record for Petitioner.

Malik Muhammad Saeed, Advocate Supreme Court assisted by A. Aziz Dastagir, Advocate‑on‑Record for Respondents.

Date of hearing: 22nd August, 1985.

This petition for leave to appeal is directed against the judgment of a Division Bench of the High Court of Sind Karachi, whereby the petitioner's Constitutional Petition was dismissed.

2. The facts are that Muhammad Javed, respondent No.l herein, was an employee of the petitioner company. His services having been termlnRted on 27‑2‑1975 he filed a grievance application under section 25‑A of the Industrial Relations Ordinance, 1969 before the IVth Junior Labour Court, Karachi. As the said respondent had also filed two criminal prosecutions on the same cause of action alleging unfair labour practices, which were pending trial, the proceedings in his case before the Junior Labour Court were stayed. The criminal prosecutions, however, ended in dismissal in October, 1975. Consequently the proceedings relating to the said respondent's grievance application were, therefore, to be recommenced. However, as a result of amendment of the Industrial Relations Ordinance by Ordinance XXVI of 1975, Junior Labour Courts were abolished. Therefore, the application under section 25‑A of the Industrial Relations Ordinance was transferred to the Vth Senior Labour Court, Karachi.

3. It appears that after receiving the record the Senior Labour Court issued notice to the parties for 17‑3‑1976. According to the bailiff's report the notice directed to respondent No.l was delivered to his mother, as admittedly he was out of the country for purposes of performing Haj. On 17‑3‑1976 when the case was taken up by the Court, as recorded in the order passed on the same date, no one appeared for respondent No.1, with the result that his application was dismissed in default. Subsequently on 24‑3‑1976 respondent No. l's brother acting as attorney submitted an application for restoration of the application under action 25‑A of the Industrial Relations Ordinance, but this restoration application was also dismissed for non‑prosecution on 12‑4‑1976 and an appeal filed against the said order was also dismissed as incompetent by the Sind Labour Appellate Tribunal. In the circumstances, respondent No.l challenged the adverse orders passed against him by means of a Constitutional Petition No. D‑214 of 1977 before the Sind High Court, but the same was withdrawn, on the ground that by then the Sind Labour Appellate Tribunal had been conferred a new power of suo motu revision to correct the illegalities and improprieties committed in the proceedings by the subordinate forums under the Industrial Relations Ordinance vide Ordinance IX of 1977.

4. Respondent No.l eventually moved the Sind Labour Appellate Tribunal under section 38 (3‑a) of the Industrial Relations Ordinance challenging the correctness, legality and propriety of the orders dated 17‑2‑1976 and 12‑4‑1976 (passed by the Senior Labour Court). The petitioner company, inter alia, raised a legal objection before the Appellate Tribunal to the effect that the amendments effected in section 38 of the Industrial Relations Ordinance by insertion of a new subsection (3‑a) cannot be given retrospective effect so as to enable the Tribunal to exercise such jurisdiction in respect of orders passed before the coming into force of the amending Ordinance No. IX of 1977. The Tribunal held that the newly added clause to section 38 was a procedural provisions, giving residuary power to the Tribunal which could be exercised at any time. On this reasoning, this legal objection was repelled. On the merits the Tribunal found on facts that the summons issued by the Labour Court to the respondent for 17‑3‑1976 was. not duly served according to law, in t‑hat, it was served on the mother of the said respondent contrary to the provisions of Order V , rule 15 of the Code of Civil procedure which requires the service to be effected upon an adult male member of the family and not upon a female member. In view of these conclusions the learned Labour Appellate Tribunal, Karachi, by its order dated 19‑12‑1977 set aside the two impugned orders before it and remanded the case to the Labour Court for decision in accordance with law.

5. Being aggrieved, the petitioner company challenged the order passed by the learned Appellate Tribunal in a Constitutional Petition before the High Court of Sind. In support of the petition the petitioner raised the following three grounds:

(i) That the revision under section 38 (3‑a) of the Industrial Relations Ordinance was misconceived as respondent No.l possessed no right to file such revision.

(ii) That right to file a revision being a substantive right, the Appellate Tribunal had erred in treating the amendment in law as procedural in nature.

(iii) That in any case even procedural enactment cannot be given retrospective effect so as to take away vested rights.

6. The learned Division Bench considered the first ground urged in support of the petition and took the view that there was no embargo in law on the Appellate Tribunal to exercise the suo motu revisional jurisdiction on the basis of information brought to its notice in an application filed by a party, although no party could invoke this jurisdiction as a matter of right. The learned Judges expressed the view that since the Appellate Tribunal had in fact exercised suo motu jurisdiction, in the circumstances of the case "to foster the cause of justice" they were not inclined to upset the order. In this view of the matter the learned Judges felt not called upon to deal with the other points raised in support of the petition and dismissed the same.

7. It is contended on behalf of the petitioner that the revision application filed by respondent No. l before the Labour Appellate Tribunal under section 38 (3‑a) of the Industrial Relations Ordinance was incompetent in law as this jurisdiction was not exercise-able on motion of parties. The next submission on behalf of the petitioner was that the amendment effected in law by means of Ordinance IX of 1975, whereby suo motu revisional power was vested in the Labour Appellate Tribunal, was not retrospective so as to apply to orders passed prior to the effective date of the amendment.

8. So far as the first argument is concerned, no principle of law or any precedent was quoted to show that the suo motu statutory power cannot be invoked by the authority vested with it on the application of a party to proceedings before the subordinate forum or authorities. On a perusal of the provisions of subsection (3‑a) of section 38, we find no warrant to hold that there would be any bar on the Tribunal to exercise this jurisdiction, if the requisite information comes before it from any source including an application made by any party Apparently the jurisdiction seems to be supervisory in nature in order to enable the Tribunal which is at the apex of the hierarchy of Tribunals set up by the Industrial Relations Ordinance to examine the legality or propriety of proceedings taken or an order passed by subordinate Tribunals. We, therefore, see no reason to disagree with the view taken by the High Court on this point. As regards the retrospectively or otherwise of the amending law, we feel that in the circumstances of this case it is not necessary to examine this argument. In this connection it may be pointed out that the Labour Appellate Tribunal in its order came to the conclusion that after the transfer of respondent No.l's case to the Sind Labour Court, notice issued on him was not properly served, in that, the said respondent was admittedly out of the country and the notice was given to his mother. Learned counsel for the petitioner has pointed out to us the provisions of section 36 (2) of the Industrial Relations Ordinance which stipulate that a Labour Court shall, for the purpose of adjudicating and determining any industrial dispute, be deemed to be a civil Court and shall have the same powers as are vested in such Court under the Code of Civil Procedure including, inter alia, enforcing the attendence of any person. It would, therefore, appear that the procedure prescribed for summoning a party before the civil Court would be attracted in enforcing the attendance of the parties to proceedings before the Labour Court. It has been held that under the enabling provisions of Order V, rule 15 of the Code of Civil Procedure, where defendant cannot be found and has no agent empowered to accept service of the summons, service may be made on any male adult member of his family. Admittedly not only that but it was submitted at the bar by the learned counsel for the respondent/ Caveator (and not controverted on behalf of the petitioner) that the mother of respondent No.1 endorsed the summons with the information that respondent No.l was out of the country. It was further stated by the learned counsel for the petitioner that the brother of respondent No.l appeared before the Labour Court on the date of hearing and requested for adjournment. Notwithstanding these facts, the Court without mentioning the request for adjournment dismissed the application of the respondent for default of appearance. It seems to us, therefore, that the service was not duly effected and the order of the Labour Court was patently illegal. In any case the Tribunal considered it to be so and thought in its judicial discretion to be an improper order as it had the effect of refusing opportunity of hearing to respondent No.l. The order of the Tribunal, in these circumstances was pre‑eminently just and as observed by the High Court passed in order "to foster the cause of justice". In this view of the matter, as laid down in Raunaq Ali v. Chief Settlement Commissioner P L D 1973 SC 236, the High Court was within its power to refuse relief in writ jurisdiction, where the impugned order before it had the effect of fostering justice and righting a wrong, even though the authority concerned had acted clearly without jurisdiction. The High Court having acted in consonance with this higher principle of justice laid down by this Court, there is no justification for taking exception to the impugned judgment. The other question of law need not, therefore, be examined.

9. For the foregoing reason, we are of the view that this is not a fit case for grant of leave and accordingly dismiss this petition.

M . I . Petition dismissed.

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