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Writ Petition No. 4089 of 1984, decided on 28th June, 1987.

(a) West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)‑‑

‑‑‑S.1(4)‑‑Constitution of Pakistan (1973), Art. 199‑‑Applicability of Ordinance VI of 1968‑‑Plea not taken in pleadings‑‑Effect‑‑Plea that petitioner establishment employing less than twenty workers was immune from operation of Ordinance VI of 1968 having not been taken in pleadings, held, was rightly rejected by lower forums‑‑Petitioner establishment having several branches in various cities‑‑Plea of number of employees employed by such petitioner being a controversial point required recording of evidence and could not be allowed to be taken in constitutional petition‑‑Concurrent findings of fact that petitioner was a workman could not be upset in constitutional jurisdiction.

‑‑‑Art.199‑‑West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.1 (4)‑‑Constitutional petition, filing of‑‑Constitutional petition to be filed within three months after obtaining certified copy of last order‑‑Effect of delay‑ Where constitutional petition was filed beyond period prescribed therefore and no plausible explanation for such delay having been given, a valuable right, held, would accrue to respondent‑ Constitutional jurisdiction could not be exercised in aid of injustice‑ Constitutional petition being devoid of merit was dismissed.

Tufail Muhammad etc. v. Raja Muhammad Zia Ullah Khan etc. P L D 1965 S C 269 rel.

S.M. Bokhari for Petitioner.

Pervez I. Mir for Respondent.

Date of hearing: 5th May, 1987.

The petitioner, Managing Director, Dawood Yamaha Limited, Abdullah Haroon Road, Karachi‑3, has moved this Constitutional petition against the respondents under Article 9 of the Provisional Constitution Order, 1981, praying therein that the impugned orders passed by respondents Nos. 2 and 3 dated 22‑12‑1982 (Annexure 'K') and dated 19‑3‑1984 (Annexure 'N') be declared without lawful authority and of no legal effect.

2. The brief facts of the case as alleged by the petitioner are that Nawazish Ali respondent No.1 was initially working as Sales Officer with the petitioner‑company. The services of respondent No.1,v were terminated vide order dated 18‑6‑1980. The respondent No.l sent a grievance notice dated 22‑6‑1980 and thereafter filed a grievance petition under section 25‑A of the Industrial Relations Ordinance, 1969, before respondent No.2 on 19‑7‑1980. The petitioner also submitted reply to the grievance petition on 12‑5‑1981 (Annexure 'C'). The respondent No.2, Punjab Labour Court No.2, Lahore, after recording the entire evidence and hearing the parties accepted the grievance petition on 22‑12‑1982 and accordingly respondent No.l was re‑instated to his service without back benefits. The petitioner feeling aggrieved of the aforesaid order of respondent No.2, went in appeal before respondent No.3, Punjab Labour Appellate Tribunal, Lahore. Respondent No.l also went in appeal praying therein that back benefits should also be allowed to him. The petitioner's appeal was rejected, whereas the appeal of the respondent No. l was accepted vide the appellate order dated 19‑3‑1984 (Annexure 'N'). As stated earlier, the petitioner has challenged the vires of the aforesaid order earlier, the petitioner has challenged the vires of the aforesaid order by means of this Constitutional petition.

3. Learned counsel for the petitioner submitted that respondent No.l was not a workman and as such, the Labour Court had no jurisdiction to entertain and decide the matter. It is next contended that the number of workmen in the petitioner's concern was less than 20 and as such, the provisions of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 were not applicable to the facts and circumstances of the instant case. Learned counsel appearing for respondent No.l submitted that the impugned orders passed by the Labour Court as well as the Punjab Labour Appellate Tribunal, Lahore, have been passed with lawful authority after considering the evidence produced by both the parties. It is submitted that concurrent finding of fact has been given by both the Courts below saying that the respondent No.1 is a workman and as such, he was entitled to the relief allowed to him by them. The learned counsel submitted that the petitioner filed the written statement before the trial Court, but he did not raise the point of number of workmen employed by the petitioner's concern. This being so, the decision arrived at by the Tribunals below is justified in law. It is vehemently argued by learned counsel for respondent No.l that the last impugned order in the case was passed on 19‑3‑1984 whereas the instant writ petition was filed on 17‑9‑1984 after the delay of about 5 months and as such, the petition suffers from laches and delay. It is maintained that the respondent No.l is a workman under the petitioner‑company and he has rendered very valuable services to the petitioner. It is also argued that at one stage while serving the petitioner‑company in the then East Pakistan, he was taken as prisoner of war.

4. I have heard the learned counsel for the parties at great length and perused the record. The learned Presiding Officer, Punjab Labour Court No.2, after recording the evidence produced by both the parties and hearing them, came to a clear finding of fact that the petitioner had failed to prove that the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, was not applicable to the establishment of the petitioner. The learned trial Court observed that the petitioner never took the objection in his written reply saying that the petitioner's establishment was having employees less than 19 during the year preceding the dismissal of the respondent No.l. This was the factual position that the petitioner did not take up this material point in his pleadings and that being so, the parties were not required in law to lead evidence on a point which is not at moot between them. According to my considered view, this objection taken by respondent No.l was correctly and legally upheld by the learned Labour Court as well as the Appellate Tribunal. It is in the evidence that the petitioner had several branches of its establishment in various cities of Pakistan and, therefore, the question was whether the number of employees is to be considered, which workmen are employed by the petitioner at one branch or for that matter all the workmen employed by the petitioner in all the, branches of its establishment. This is again a controversial point which requires the recording of evidence. This point at this stage cannot be permitted to be taken. The competent Tribunals have also come to the conclusion that the character and nature of the duties being performed by respondent No.1 were such so as to make him a workman within the meaning of law. The findings given by the two Tribunals that respondent No.l was a workman are not open to challenge. The learned Presiding Officer also held that respondent No.l was not given any proper show‑cause notice and ex parte proceedings taken against him were obviously bad in law. It was observed by the Presiding Officer that the Inquiry Officer was not produced before the trial Court to prove that the inquiry was conducted against respondent No.l. These findings of fact have been affirmed by the learned Presiding Officer, Punjab Labour Appellate Tribunal after considering each and every point taken and argued before him. The learned Appellate Tribunal clearly and categorically held that the petitioner had not taken the point that the numbers of the workers employed by him were 14 only in his written statement. The learned Tribunal was of the view that no evidence could be led on the point whether the number of workers employed by the petitioner were 14 or not. It was also observed by the learned Tribunal that if the aforesaid point had been taken in the written statement, the respondent No.l would have then taken the objection that all the workers employed by the petitioner in all its branches all over Pakistan had to be considered. Since this point was not taken in the written statement, therefore, no evidence to that effect was led by respondent No.l. Regarding the other objection of the petitioner that respondent No.l was not a workman, it was held by the learned Appellate Tribunal that the respondent used to prepare cards of the stores, maintain local purchase register, cash memo. books and bill books and the learned Appellate Tribunal after considering the evidence came to the conclusion that the respondent could not be declared as supervisor and that he does not come within the exceptions of section 2(xxviii) of the Industrial Relations Ordinance, 1969. The learned Appellate Tribunal clearly came to the finding of fact that the respondent No.11 was a workman within the meaning of law. This is a finding of fact arrived at by the two competent Tribunals in which finding of fact the provisions of Article 8 of the Provisional Constitution Order, 1981, are not at all attracted in the facts and circumstances of the instant case. The learned counsel for the petitioner has not been able to point out that the impugned orders suffer from any jurisdictional defects. This was within the lawful authority of the Labour Court as well as the Labour Appellate Tribunal to pass the impugned orders and they have proceeded to pass the impugned orders. I proceed to repel the contention of learned counsel for the petitioner stating that the respondent No.l was not a workman and that the provisions as contained in the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, are not attracted to the case in hand. Additionally, a valuable right has accrued to respondent No.1 as he was successful before both the competent Tribunals. I, therefore, cannot ignore the glaring laches and delay with which this petition suffers. The last impugned order in the case was passed by the Punjab Labour Appellate Tribunal o 19‑3‑1984 and its certified copy was issued to the petitioner on 20‑3‑1984. It may be noted that the said order was challenged before this Court by moving this Constitutional petition on 17‑9‑1984 after about five months. The instant writ petition should have been file I within a reasonable period namely, within three months after obtaining the certified copy of the last impugned order. No plausible explanation whatsoever has been given by the writ‑petitioner so far as this delay is concerned. In the meantime, a valuable right has accrued in favour of the respondent No.l. It would be unjust if at this stage a writ is issued on purely a technical point which was never taken by the petitioner in his pleadings. This is the declared law by the Honourable Supreme Court of Pakistan that no writ could be issued in aid of. injustice. If any authority is needed, reference may be made to Tufail Muhammad etc. v. Raja Muhammad Zia Ullah Khan etc. P L D 1965 S C 269. Respectfully following the dictum laid down in the aforesaid authority, I am of the view that the petitioner is not entitled to the issuance of any writ by this Court.

5. The upshot of the above discussion is that the petition is devoid of force and I accordingly proceed to dismiss the same leaving the parties to bear their own costs.

A. A. / M‑267 / L

Petition dismissed.

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