UTILITY STORES CORPORATION OF PAKISTAN LIMITED vs PUNJAB LABOUR APPELLATE TRIBUNAL And Other

1. MUHAMMAD HALEEM, C.J.--These appeals arise from the common judgment dated 2-5-1981 of the Lahore High Court, Lahore, by which Writ Petitions Nos. 197 of 1981 and 198 of 1981 were dismissed with costs.

2. There was a challenge to the order of the Secretary, Utility Stores Corporation of Pakistan, the appellant herein, dated 24th of February, 1980, whereby the services of the contesting respondents, who were supervisors in the said Corporation, were dispensed with as a result of the re- organization of the administrative set-up of the Corporation by which their number was reduced from 98 to 24 on the ground of their number being excessive than was necessary. The criterion adopted was seniority of the supervisors for their retention, that is, first come last go basis formula.

3. The contesting respondents thereupon served a grievance notice under section 25-A of the Industrial Relations Ordinance, 1969 (hereinafter referred to as the "Ordinance"), on the appellant but as there was no response they filed a petition before the Labour Court No. 1, Lahore, under section 25-A of the Ordinance alleging that being promotees they could not be retrenched as they had a right to be accommodated to their original posts of Salesmen and entitled to their pay and back benefits, and succeeded as the Labour Court No. 1 held that: "a promotee has a right to be reverted to his original post, if the post against which he is working, is abolished." An appeal to the Punjab Labour Appellate Tribunal against this order dated 21st August, 1980, failed as in appeal too the rule formulated by the Labour Court No. 1 was upheld, and it was held as under:-- "If they were to be retrenched from the post of Supervisor according to the seniority list, they have a right to go back to the posts of Salbsmen from which posts they were promoted as Supervisors.

4. Those posts of Salesmen are still in existence and have not been abolished. The proper course for the Management, therefore, was that after terminating the services of the respondents as supervisors being the junior most but should have asked them whether they would like to be reverted to the posts of Salesmen or not."

5. And further: "This is necessary to avoid unemployment of such retrenched employees from senior posts."

6. The appellant thereupon invoked the constitutional jurisdiction of the Lahore High Court in both the writ petitions, but did not succeed as the High Court also dismissed the writ petitions observing as under:-- "Now, one may or may not agree with the view taken by the Labour Court and the Labour Appellate Tribunal but it can by no means be said that it was an unfair or unjust one. Since the law confers the jurisdiction of determining what is just and proper upon the Labour Court and the Labour Appellate Tribunal I do not think that on the facts before me a case for interference with their decision in writ jurisdiction has been made out. It may be mentioned that some other supervisors who were directly recruited to that post by the petitioner corporation and were retrenched along with the contesting respondents, had also applied for relief before the Labour Court. The Labour Court distinguished their case from that of the contesting respondents and upheld their retrenchment."

7. Leave to appeal was granted to consider: (a)Whether due importance was not given to subsection (1) of section 25-A of the Industrial Relations Ordinance being the controlling provision of the section, and, for that matter, subsection

(5) of section 25-A.

8. (b)Whether the Tribunal and the High Court failed to give effect to Standing Order No. 13 of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968.

9. (c)Whether the words "just" and "proper" occurring in subsection (5) of section 25-A could be so interpreted as to override law or the jurisdiction exercised by the Tribunals.

10. In order to appreciate the controversy, it would be relevant to refer to section 25A(1) and (5) of the Ordinance which read as under:-- "(1)A worker may bring his grievance in respect of any right guaranteed or secured to him by or under any law or any award or settlement for the time being in force the notice of his employer in writing, either himself or through his shop steward or collective bargaining agent, within three months of the day on which cause of such grievance arises.

11. (5)In adjudicating and determining a grievance under subsection (4), the Labour Court shall go into all the facts of the case and pass such orders as may be just and proper in the circumstances of the case."

12. The basis on which the Tribunals below have granted relief to the respondents was that if they were surplus as supervisors then they had a right to be reverted to their original posts. The High Court took this basis to be "just and proper" in the facts and circumstances of the case. Now the question as to whether they had the right to be reverted to the posts of Salesmen from which posts they were promoted to the posts of Supervisors dependedon as to whether they retained their lien on the posts of Salesmen on being promoted as Supervisors.

13. Ordinarily the word "lien" means the right of an officer to resume, on return to duty, a substantive or acting appointment from, which he is relieved. Fundamental Rule 13 (Government of Pakistan "Compilation of the Fundamental Rules and Supplementary Rules, Volume I) lays down that a Government servant holding substantively a permanent post retains a lien on that post while performing the duties of that post or while on foreign service, or holding a temporary post, or officiating in another post. Such right is neither secured nor guaranteed to the respondents by or under any law. The learned counsel also was unable to point out to us any provision by which he could press the rule of lien to the rescue of the respondents. In that event, the respondents cannot have a grievance over their retrenchment which was on the principle "last in first out" as contained in Standing Order No. 13 of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968.

14. It was feebly urged that the appellants could have been re-employed under section 14 of the (Standing Orders) Ordinance, 1968, but for that no proper basis was laid to determine whether the employer proposed to take into his employment any person within a period of one year from the date of such retrenchment in the category of supervisors. And if any situation had fallen vacant for a Salesman even then this provision was not applicable as it only covered the category from which the workman was retrenched.

15. The High Court without attending to the existence of a right of the respondents to be reverted to the posts of Salesmen on being retrenched held the order to be "just and proper". The words "just" and "proper" mean "right or fair" and "suitable" respectively. The word "just" in subsection (5) of section 25A of the Ordinance has been used as an adjective to mean "according to law" and the word "proper" to mean "accurate". (See Legal Thesaurus, Regular Edition, by William C. Burton at pages 304 and 415). Therefore, the order to be "just and proper" conveys the eminent sense of the order being in accordance with law and to be proper. It involves all processual and procedural application of law and includes adequate application of substantive provisions thereof. Commonly stated it all takes in matters of legality, propriety and correctness of the order.

16. There is no dispute as to the ambit of the adjudicatory process. The objection, however, was that the Tribunal which was cognizant of the grievance could not adjudicate upon it as there was no issue to be tried in regard to any violation of a right guaranteed or secured by or under any law.

17. This obviously reflects to the absence of the jurisdiction of the Tribunal which the High Court failed to take note of and branded the order as "just and proper" which it could not in the absence of a legal right having been violated: In the result, the order of the High Court and the Tribunals below are erroneous and are set aside.

18. The appeals are allowed, but with no order as to costs.

19. NASIM HASAN SHAH, J.--I agree and would like to add that the dismissal of the writ petition directed against the order of the Labour Court and the Labour Appellate Tribunal by the High Court was founded on the view that in exercise of the writ jurisdiction the High Court does not sit as a Court of Appeal over the decision of the other Tribunal and in arriving at this conclusion relied on the following passage occurring in this Court's decision in Muhammad Hussain Munir v. Sikandar (PLD 1974 SC 139):-- "It is wholly wrong to consider that the constitutional provision (that is, Article 199 of the Constitution) was designed to empower the High Court to interfere with the decision of a Court or Tribunal of inferior jurisdiction, merely because in its opinion the decision is wrong. In that case, it would make the High Court's jurisdiction indistinguishable from that exerciseable in a full-fledged appeal, which plainly is not the intention of the Constitution-makers. When there is jurisdiction to decide a particular matter then there is jurisdiction to decide it rightly or wrongly and the fact that the decision is incorrect does not render the decision without jurisdiction."

20. It also relied on this, Court's decision in Zulfiqar Khan Awan v. Secretary, Industries ec. (1974 S.C.M.R. 530) wherein it was observed that merely because the decision of the Tribunal was wrong the High Court would not intervene in exercise of its constitutional jurisdiction.

21. On the basis of the above passages ,it was observed that even if the High Court was of the opinion that the orders of the Labour Court and the Labour Appellate Tribunal were "just" and "proper" it was not open for it to interfere with the said orders unless it was shown that they also suffered from an error of jurisdiction.

22. The learned Judge in the High Court has, in his judgment, also observed that:-- "Now, one may or may not agree with the view taken by the Labour Court and the Labour Appellate Tribunal but it can by no means be said that it was an unfair or unjust one. Since the law confers the jurisdiction of determining what is just and proper upon the Labour Court and the Labour Appellate Tribunal I do not think that on the facts before me a case for interference with their decision in writ jurisdiction has been made out."

23. I cannot agree with the learned Judge in the High Court. The view of the learned Judge that this Court has ruled that even if the order of a Tribunal is wrong in law, the High Curt still cannot intervene in exercise of its constitutional jurisdiction is not justified and I feel that the judgments of this Court in the cases of Muhammad Hussain Munir (PLD 1974 S.C. 139) and Zulfiqar Khan Awan (1974 S.C.M.R. 530) have not been read in their proper context. It is not right to say that the Tribunal, which is invested with the jurisdiction to decide a particular matter, has the jurisdiction to decide it "rightly or wrongly" because the condition of the grant of jurisdiction is that it should decide the matter in accordance with the law. When the Tribunal goes wrong in law, it goes outside the jurisdiction conferred on it because the Tribunal has the jurisdiction to decide rightly but not the jurisdiction to decide wrongly. Accordingly, when the tribunal makes an error of law in deciding the matter before it, it goes outside its jurisdiction and, therefore, a determination of the Tribunal which is shown to be erroneous on a point of law can be quashed under the writ jurisdiction on the ground that it is in excess of its jurisdiction.

24. It needs hardly be said that under Article 4 of the Constitution of the Islamic Republic of Pakistan, 1973, it is the right of every individual to be dealt with in accordance with law. Where the law has not been correctly or properly observed a case for interference by the High Court in exercise of its Constitutional jurisdiction is made out.

25. In this case, the terms "just" and "proper" occurring in subsection (5) of section 25-A were not rightly construed. The Labour) Court, under the said provision of law, could only make a "just" and "proper" adjudication when an issue existed that could be tried in regard to the violation of a right guaranteed or secured by or under any law. Hence merely because an order was thought to be "just" and "proper" even though no justiciable issue in regard to the violation of a legal right existed was clearly liable to be corrected under the writ jurisdiction of the High Court.