MESSRS GOLDEN INDUSTRIES LTD., KARACHI Versus ALI BHOY

ORDER

This application, which purports to have been made under Order XLI, rule 19, Order XLVII and section 151, C. P. C. read with section 21 of the General Clauses Act, 1897, is directed against the following order passed by this Tribunal on 2‑3‑1980, in the appeal preferred by the Golden Industries Ltd. the applicant herein, against the decision of the learned Labour Court, given on 21‑1‑1980, directing the re‑instatement of the respondent workman with full back benefits :‑

"2‑3‑1980 :‑

Mr. Masood Mirza for Appellant.

Mr. Iqbal Ahmad for Respondent.

Mr. Masood Mirza states that he does not press this appeal which accordingly stands disposed of as not pressed."

2. The grounds on which the aforesaid order has been assailed are, firstly, that Mr. Masood Mirza was not entitled to appear and represent the cause of the Management side in general and of the applicant‑Company in particular; secondly, that Mr. Mirza was given no authority by the applicant‑Company to withdraw the appeal or not to press the same in the absence of compromise; and that lastly, Mr. Masood Mirza made the above statement without knowledge and consent or authority of the applicant.

3. As the present applicant obviously seeks of review of the order of this Tribunal, I enquired from Mr. Sher Afghan, the learned counsel for the applicant‑Company, how the application was maintainable in view of the decision of this Tribunal in the case of Haji Suleman Usman v. Gulab Khan and others, decided on 21‑8‑1979, where it has been held, after an exhaustive review of the law on the subject, this Tribunal has no power to review its decision, as such power has not been conferred on it either by the I. R. O., 1969, or any other law. Mr. Sher Afghan, while candidly conceding that this Tribunal was not clothed with the power of review submitted that under section 21 of the General Clauses Act, 1897, it could recall the order in question. The principle of locus poenitentiae (power of receding till a decisive step is taken) was considered by their Lordships of the Supreme Court in the case of Pakistan v. Himayatullah Farukhi (P L D 1969 S C 407). That was a case in which the representation of a civil servant for fixation of his pay in the higher scale was accepted by the President and he was informed accordingly by the Secretary to the President. Subsequently, however, the President revoked his order on the ground that it was passed without consulting the Ministry of Finance as required by the Rules of Business. Repelling the contention that the Government had the power under section 21 of the General Clauses Act to recall its order, which order, it was alleged, in fact had not taken effect, Sajjad Ahmad Jan, J observed as follows :‑

"There can hardly be any dispute with the rule as laid down in these cases that apart from the provisions of section 21 of the General Clauses Act, locus poenitentiae i.e. the power of receding till a decisive step is taken, is available to the Government or the relevant authorities. In fact, the existence of such a power is necessary in the case of all authorities empowered to pass the orders to retrace the wrong steps taken by them. The authority that has the power to make an order has also the power to undo it. But this is subject to the exception that where the order has taken legal effect, and in pursuance thereof certain rights have been created in favour of any individual, such an order cannot be withdrawn or rescinded to the detriment of those rights."

4. In the instant case, the order, dated 2‑3‑1980, was passed and announced in open Court, and is thus deemed to have been communicated to the parties. By this order, the decision of the learned Labour Court was upheld and the appeal preferred by the applicant‑Company was allowed to be withdrawn and disposed of accordingly. As such, valuable rights accrued to the respondent on the passing of the impugned order. Conse quently, the said order cannot be recalled in purported exercise of powers under section 21, General Clauses Act, 1897, even if this Tribunal, in the, exercise of its judicial functions, was clothed with those powers. It may be pointed out that decisions of the Labour Courts, which are confirmed by this Tribunal are declared to be final, as provided in subsection (4) or section 37 of the I. R. O. A decision cannot be both final and at the same time be liable to be recalled. I am, therefore, firmly of the opinion that the impugned decision can neither be reviewed nor recalled by this Tribunal.

5. On the merits also, the applicant has no case. The applicant having engaged Mr. Masood Mirza to appear on its behalf in the appeal and to argue the same before this Tribunal, is estopped from contend in that Mr. Mirza was not entitled to represent it or appear for it before this Tribunal.

6. The remaining 2 objections of the applicant in respect of the appeal preferred on its behalf by Mr. Masood Mirza equally appear to me to be without substance. The authority given try the applicant to Mr. Masood Mirza which was filed along with the Memo. of Appeal, authorized him to negotiate, compromise and withdraw the appeal filed on behalf of the applicant. This authority admittedly has been signed by Mr. Salim faun, a Director of the applicant‑Company. As such, Mr. Masood Mirza un -doubtedly had the authority from the applicant to withdraw the appeal in question. The authority does not require that before withdrawing the appeal, Mr. Mirza was to consult the applicant‑Company or to obtain fresh authority from it. Having given full authority to Mr. Mirza to negotiate with the other side, compromise with him or to withdraw the appeal, it now does not lie in the mouth of the applicant‑Company to protest against the exercise by Mr. Mirza of the authority which it had given to him.

7. For the reasons stated by me above, I find no merit in this appli cation and dismiss the same.

Appeal dismissed.