DAWOOD COTTON MILLS LTD., KARACHI Versus RAZA KHAN

DECISION

The parties have been embroiled in litigation for a period of twenty years by now, and there seems to be no end in sight. It started in 1973 when the respondent hereinafter called the worker was given a charge‑sheet, for go‑slow in his work on 9‑5‑1973. There was another charge‑sheet on the same day wherein he was alleged to have instigated the workers of the mill for proceeding on strike. .

2. The worker had filed a petition under section 25‑A of the I.R.O. 1969, before the Junior Labour Court No. 5. The only record of this proceeding that is available is the order of the Junior Labour Court. This shows that the worker's allegation was that he was not allowed to report for duty from 16‑5‑1973 and the employer's case was that he had absconded from duty.

3. The inquiry in connection with the second charge‑sheet had proceeded ex parte. The order of dismissal came on 28‑6‑1973 and that also had been challenged by the worker before another Junior Labour Court and was dismissed. It might as well be mentioned that he had not preferred any appeal against the earlier order of the Junior Labour Court but had taken an appeal against the latter order of the Junior Labour Court before the Labour Court No. IV anti the same came to be dismissed on 12‑12‑1973 on the ground that the petition was barred on the principle of res judicata. The appellant had filed a Constitution petition before the High Court against the aforesaid order which came to be allowed as it was observed that the earlier application had a different cause of action and the matter should therefore have been disposed of on merit. As a result the case was remanded on 21‑4‑1976 to the Labour Court for disposal on merit. It transpires that the worker was involved in some criminal proceedings and according to his version he came to be released from the jail sometime in 1980 and it was then that he learnt about the High Court judgment.

4. As the worker was not appearing before the Court there appeared a `Public Notice' for his appearance before the Labour Court No. 2 but for reasons which are not very clear, the case proceeded before the Labour Court No. 4 where it was allowed with a special cost of Rs.500 and back benefits only w.e.f. 28‑8‑1980 when the worker for the first time entered appearance as directed by the High Court.

5. This order was challenged before the Tribunal by both the parties. The Tribunal by its decision, dated 24‑11‑1981 set aside the order of the Labour Court, as being without jurisdiction. It reads as under:‑‑

"The case was remanded by the High Court of Sindh and Baluchistan vide order dated 21‑4‑1976 for retrial to the Second Sindh Labour Court. Notices were issued to both the parties. Notice, could not be served on the applicant either through 'the Bailiff or by registered post as the applicant could not be traced out at the given address and his representative refused to accept the notice on his behalf on the ground that he was no longer representing the applicant. Subsequently the notice was published in the daily `Arran' of 6‑8‑1976 pursuant to the order dated 3‑8‑1976, of this Court. Service of notice by publication is held proper and good. The applicant is called absent. Petition under section 25‑A of I.R.O., stands dismissed in default for non prosecution.

In view of the above order, which has attained finality and has not been challenged, the further proceedings before tote learned Labour Court, although neither parties raised the plea that the matter had already been decided by the Second Labour Court, are entirely without jurisdiction and therefore invalid. The impugned order, therefore, has to be set aside as being without jurisdiction."

6. The worker had challenged this decision of the Tribunal in a Constitution petition which was allowed and the case was remanded to the Labour Court to decide the two appeals filed by the parties on merits. There was a Review Petition filed by the Employers which came to be dismissed in the following words:

"In support of the above averment certain alleged documents have been tiled by the applicant. We had decided the case on the material available on the date of hearing and in any case we had remanded the case to the learned Sindh Labour Appellate Tribunal. We do not see any reason to review the above judgment. The petition is dismissed."

7. Unfortunately the appeal came to be dismissed by my learned predecessor on 22‑2‑1990 on the ground that it had not been properly presented. This order was challenged before the High Court in writ petition which was allowed and the case was remanded to this Tribunal vide order dated 31‑7‑1991.

8. The order of the High Court on the Review Application was taken to the Supreme Court.

9. The Hon'ble Supreme Court, vide judgment dated 10‑1‑1990, in Civil Petition for Leave to Appeal No. 903‑K of 1989, observed as follows:‑‑

"We have heard the learned counsel for the petitioner at some length but find no reason to interfere with the judgment/order of the High Court. His main argument is that the order dated 11‑8‑197,6 was erroneously assumed to have been passed by the Second Labour Court. But we find no substance in this submission as this fact was neither brought to the notice of the Labour Court nor before the High Court at the main hearing of Constitution petition. Ultimately, learned counsel expressed apprehension that if this petition is dismissed, the Labour Appellate Tribunal while deciding the appeals afresh, may decline to exercise powers of remand, even if the case warranted such orders. We have no reason to subscribe to such apprehension and are sure that the Labour Appellate Tribunal will address itself to the merits of the appeal in accordance with law and it will be open to it to remand the case to Labour Court if so warranted, allowing parties to lead fresh evidence."

Looking to the loss of very material parts of the record, including the two petitions before the Junior Labour Court, it will be in the fitness of things that proper and if necessary fresh evidence is led before the Labour Court. The Labour Court will provide all the assistance to the parties if they need any document of the Court record, so that after twenty years of travail, the case is presented with clarity and all the precise details. The case is therefore being remanded to the Labour Court No. 2 for the recording of the parties evidence and disposal in accordance with law.

The appeal filed by the worker regarding back benefits stands dismissed, as it has become infructuous.

Order accordingly

H.B.T./2210/Lb.S Order accordingly.