2000 P L C 1
[Karachi High Court]
Before Dr. Ghous Muhammad, J
Messrs KOHINOOR TEA (PVT.) LTD. through Managing Director
Versus
REGISTRAR OF TRADE UNIONS, KARACHI and 2 others
Constitutional Petition Nos. S-23 of 1998, heard on 30th N2ovember, 1998.
Industrial Relations Ordinance (XXIII of 1969)---
----Ss. 7 & 8---Constitution of Pakistan (1973), Art. 199---Constitutional petition--- Registration of Trade Union---Order of Registrar Trade Unions was assailed by employer, whereby trade union was registered---Order of registration of trade union was passed in slipshod manner without application of mind by the Authority to the facts of the case as well as the provisions contained in Ss. 7 & 8 of Industrial Relations Ordinance, 1969---Validity--Authority was supposed, to pass speaking order clearly indicating the application of mind supported by cogent reasons so that the reader might come to know as to how the issues involved and questions raised by the parties concerned were dealt with---Where such procedure was not followed, case was remanded for decision afresh.
Essa Cement Industries Workers' Union v. Registrar of Trade Unions, Hyderabad Region, Hyderabad and 4 others 1998 SCMR 1964 = 1998 PLC 500 distinguished.
M.L. Shahani for Petitioner. Khalid Imran for Respondents Nos. I and 2.
Ashraf Hussain Rizvi for Respondent No. 3.
Date of hearing: 30th November, 1998.
2000 P L C 6
[Karachi High Court]
Before Rasheed Ahmed Razvi, J
PROGRESSIVE EMPLOYEES UNION through General Secretary
Versus
REGISTRAR TRADE UNIONS HYDERABAD REGION
HYDERABAD and another
Constitutional Petition No.S-41 of 1999, decided on 29th April, 1999.
Industrial Relations Ordinance (XXIII of 1969)---
----S. 22---Constitution of Pakistan (1973), Arts. 17 & 199---Constitutional petition---Collective Bargaining Agent, determination of---Holding of referendum--- Interference by District Magistrate---On the intervention of District Magistrate the referendum was postponed as due to political as well as law and order situation such referendum was not conducive to public peace---Validity---District Magistrates/Deputy Commissioners were not competent to interfere in the trade union affairs by raising frivolous plea of law and order situation---Such officials should keep in mind that they were interfering in the fundamental rights of a trade union before passing any such order---No' material was available which might have justified the District Magistrate to interfere in the holding of referendum for determination of Collective Bargaining Agent and was not clear whether the order of the District Magistrate was passed under S. 144 of Cr.P.C., neither any provision of law nor any period was prescribed in that order---Such order was to deprive workers of their fundamental rights as guaranteed under Art. 17 of the Constitution---Constitutional petition was accepted accordingly.
Civil Aviation Authority, Islamabad v. Union of Civil Aviation Employees and another PLD 1997 SC 781 fol.
Muhammad Yousuf Leghari for Petitibner..
Muhammad Bux Joya Asstt. Director Labour, Government of Sindh on behalf of Respondent No. 1.
Mian Khan Malik, Addl. A.-G. for Respondent No.2.
Abid Hussain, Deputy Commissioner, Thatta (on Court's Notice).
Farooq Asgahr Shah, General Secretary of Cement Factory Employees' Union, Thatta (on Court's Notice).
2000 P L C 14
[Karachi High Court]
Before Rasheed Ahmed Razvi, J
PHILIPS ELECTRICAL INDUSTRIES OF PAKISTAN LTD.
Versus
THE 2ND SINDH LABOUR COURT, KARACHI through Presiding
Officer and 53 others
Constitutional Petition No.S-498 of 1998, decided on 3rd May, 1999.
(a) Industrial Relations Ordinance (XXIII of 1969)-----
----Ss 25-A(4)(3), 35 &. 36---Establishment of Labour Courts ---Purposes--Purposes of Labour Courts were adjudication and determination of industrial disputes referred to or brought before them under Industrial Relations Ordinance, 1969; to inquire into and adjudicate any matter relating to implementation or violation of a settlement which was referred to .it by Provincial Government; to try any offences and any other such offences as might be notified by Provincial Government and to exercise and perform all such powers and functions as conferred upon them by virtue of Industrial Relations Ordinance, 1969---Labour Court during adjudication and determination of a grievance petition under S 25-A (4) of Industrial Relations Ordinance, 1969, would be competent to inquire into all facts of the case and to pass such orders as would be just and proper---More powers were conferred on Labour Court under S. 36 of Industrial Relations Ordinance, 1969.
(b) Industrial Relations Ordinance (XXIII of 1969)-----
----Ss. 25-A & 35---Powers of Labour Court---Labour Court even while redressing an individual grievance as provided under S.25-A Industrial Relations Ordinance, 1969, had been authorised to go into all the facts of the case and to pass order as would be must and proper in circumstances of the case.
(c) Industrial Relations Ordinance (XXIII of 1969)--
----Ss. 25-A, 35, 36 & 43---Powers of Labour Court to pass interim order--Labour Court which had been authorised to pass a final order in the nature of restoring the services of an employee with all back benefits, was equally competent to pass an interim order in special and peculiar circumstances, prohibiting opponent (employer) from passing any illegal order and restraining him from an unauthorised act pending disposal of matter before, it, but Labour Court should not pass such order as a routine matter---Such order should be an exception and only passed in those cases where all the three ingredients for grant of an interim injunction were made out, namely, existence of prima facie case; strong likelihood for suffering irreparable loss and injury; and lastly question of balance of convenience--Wherever such interim orders were passed, it would be incumbent upon Labour Court to proceed expeditiously with the matter and to dispose of same as early as possible.
PLD 1975 Kar. 858; Brooke Bond (Pakistan) Ltd. v. IInd Sindh Labour Court, Karachi and another PLD 1973 Kar. 189; Director-General of Associated Press of Pakistan. Islamabad and 4 others v. Rahmatullah 1994 PLC 225; United Bank Limited and others v. Ahsan Akhtar and others 1998 SCMR 68; Marghub Siddiqi v. Hamid Ahmad Khan and 2 others 1974 SCMR 519; Muhammad Yaqoob v. The Punjab Labour Court No. 1 and 5 others 1990 SCMR 1539; Hochtief Gammon v . Industrial Tribunal and others AIR 1964 SC 1746; The Law of Industrial Dispute, Vo1.II, 4th Edn., Bombay by O.P. Malhotra; Messrs Merck Sharp and Dohme of Pakistan Ltd. v. Sindh Labour Appellate Tribunal and 2 others 1982 PLC 148; Crescent Jute Products Ltd., Jaranwala v. Muhammad Yaqub and others PLD 1978 SC 207; Shafi Muhammad v. Presiding Officers, Labour Court No.VI at Hyderabad and 2 others 1996 PLC 446: Hafiz Muhammad Ishaque and others v. Punjab Labour Appellate Tribunal and others NLR 1978 Lab. 466; ICI Pakistan Ltd., Lahore v. Punjab Labour Court III, Ferozwala, Sheikhupura and another 1999 PLC 13; Punjab Seed Corporation and 2 others v. Punjab Labour Appellate Tribunal and 2 others 1996 SCMR 1947; Karachi Pipe Mills Employees' Union, Karachi v. Karachi Pipe Mills Ltd., Karachi 1992 PLC 143; Karachi Pipe Mills Ltd. v. Sindh Labour Appellate Tribunal and 2 others 1984 PLC 1359; Pakistan Herald Workers' Union v. Sindh Labour Appellate Tribunal and 3 others 1996 SCMR 1827; L.I.C.I./I.C.A Employees' Union v: Pakistan Insurance Corporation, Karachi and another PLD 1975 Kar. 858; Sindh Employees' Social Security Institution and another v. Adamjee Cotton Mills Ltd. PLD 1975 SC 32; Manager (Adorn.) House Building Finance Corporation, Zonal Office, Multan v. Punjab Labour Court No. 8, Bahawalpur and others 1995 PLC 44; Sindh Employees' Social Security Institution, and others. v. Adamjee Cotton Mills Ltd. PLJ 1973 Karachi 259; Ghulam Hussain and another v. Malik Shahbaz Khan and another 1985 SCMR 1925; Shahzada Muhammad Umar Beg v. Sultan Mahmood Khan and another PLD 1970 SC 139; M. Naseem Iqbal v. Dawood College of Engineering and Technology, Karachi and others 1987. MLD 2580; Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others PLD 1975 SC 331; Messrs Tawakkal Export Corporation and 5 others v. Muslim Commercial Bank and another 1997 CLC 1342; Commissioner, Khairpur Division, Kahairpur and another v. Ali Sher Sarki PLD 1971 SC 242; Syed Sardar Shah Bokhari v. The Chief Justice and Judges of the High Court of West Pakistan PLD 1965 SC 479; Government of Pakistan through Ministry of Finance v. M.I. Cheema, Dy. Registrar, Federal Shari2t Court and others 1992 SCMR 1852; Federation of Pakistan through Secretary, Finance, Islamabad v. Abdur Rehman and others 1995 SCMR 6; Manager (Adorn.), House Building Finance Corporation v. Punjab Labour Court No. 8, BahaWalpur 1995 PLC 44; Messrs Ahmed Food Industries Ltd., Karachi v. Sindh Labour Appellate Tribunal, Karachi and 2 others 1974 PLC 225; Syed Imran Raza Zaidi, Superintending Engineer, Public Health Engineering Circle-1, Gujranwala v. Government of Punjab and 2 others 1996 SCMR 645 and 1995 PLC 44. ref.
Noor Muhammad and Gulzar Ahmed for Petitioner. Muhammad Nishat Warsi for Respondents Nos. 2 to 54.
2000 P L C 26
[Karachi High Court]
Before Mrs. Majida Razvi and Sarmad Jalal Osmany, JJ
Messrs COWASJEE & SONS
Versus
DIRECTOR SINDH EMPLOYEES SOCIAL SECURITY
INSTITUTION and another
Constitutional Petition No.D-2329 of 1995, decided on 22nd September, (a) Constitution of Pakistan (1973)--
----Art. 199---Constitutional jurisdiction exercise of---Where action/order of Authority below was without or in excess of jurisdiction or otherwise was unlawful either being violative of petitioner's Fundamental Rights under Constitution of Pakistan including right to be heard or in violation of any other law, High Court could interfere in exercise of power under Art. 199 of Constitution of Pakistan (1973) in said action/order.
(b) Provincial Employees Social Security Ordinance (X of 1965)---
----Ss. 20 & 23----Obligation of employer to pay initial and increased contribution---Institution, in terms of S. 20(1) and/or S. 23, Provincial Employees' Social Security Ordinance, 1965, was not bound to serve any demand, show-cause notice or give any personal hearing to employees' establishment either before employer's obligation to pay initial contribution became operative or at time of demand for increase.
R.C.D. Ball Bearing Limited v. Sindh Employees' Social Security Institution, Karachi PLD 1991 SC 308; Messrs Hindustan Steel Ltd. v..The State of Orissa AIR 1970 SC 253; Shabbir Ahmad v. Mst. Kabir-un-Nisa PLD 1975 SC 58; United Sugar Mills Ltd., Karachi v. District Magistrate, Sukkar and another PLD 1979 Kar. 410;Haji Hashmatullah and 9 others v. Karachi Municipal Corporation and 3 others PLD 1971 Kar. 514; Annoor Textile Mills Ltd. v. The Federation of Pakistan PLD 1994 SC 568 and Kohinoor Chemical Co. Ltd and another v. Sindh Employees' Social Security Institution and another PLD 1977 SC 192 ref.
(c) Interpretation of statutes---
----Pendency of case in Court challenging vires of any amendment in any law---Effect---Mere pendency of case in Court challenging vires of any amendment in any law was no excuse not to abide by such amendment whatever be the consequences.
(d) Interpretation of statutes--
----Fiscal statute---Operation of provision of such law---Once operation of any provision of any statute was set in motion, particularly a fiscal statute obliging a person/company to do a certain art, then unless said act was violative of any of that person's right or of any law or otherwise defective, its operation could not be complained of---Where such particular statute itself limited operation of any of its provisions or created terms and conditions for the operation, then such limitation, terms and conditions would have to be observed.
(e) Provincial Employees' Social Security Ordinance (X of 1965) ---
----S. 23---Delay in payment of amount of contribution---Penalty--Provisions of S. 23, Provincial Employees' Social Security Ordinance, 1965 had provided for situation where employer did not pay contribution within time and also had provided for penalty thereof---Penalty provided for in said section would neither 'lapse nor otherwise disentitle Institution to receive same either with the passage of time or failure on its part to demand same due to any lapse of time---Mere delay of Institution in demanding an increase from employer in contribution in terms of S. 23, Provincial Employees' Social Security Ordinance, 1965 was not fatal to said demand.
(f) Provincial Employees' Social Security Ordinance (X of 1965)---
----S. 23---Constitution of Pakistan (19731, Art. 18---Delay in payment of amount of contribution---Right of freedom of trade, business or profession--Violation---Employer had contended that S. 23, Provincial Employees' Social Security Ordinance, 1965 way a punitive provision of law and had placed unfair and unreasonable restriction on its right under Art. 18 of Constitution of Pakistan (1973) in its business---Contention of employer was repelled because fiscal statute such as S. 23, Provincial Employees' Social Security Ordinance, 1965 which required employer to make contribution to Institution for welfare of the employees, could not be considered to be in violation or in derogation of Art. 18 of Constitution of Pakistan (1973)--Provision of S.23, Provincial Employees' Social Security Ordinance, 1965 imposing penalty on employer for late payment in making contribution, also could not be considered to be in violation of employer's right to engage in y lawful business activity.
R.F. Veerjee for Petitioner.
Khalid Habibullah and Munib Ahmad Khan, A.A:-G. for Respondents.
Date of hearing: 4th September, 1998
2000 P L C 32
[Karachi High Court]
Before S. Ahmed Sarwana, J
EXECUTIVE ENGINEER, HIGHWAY DIVISION, THATTA
Versus
MUHAMMAD YAMIN and 2 others
Constitutional Petition No.S-3 of 1987, heard on 5th, May, 1999.
(a) West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)---
----S. 10-B---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Driver of a road roller, whether civil servant or workman--Respondent was employed as driver of a road roller and was injured in an accident---Respondent/Commissioner, Workmen's Compensation awarded a sum of Rs.10,500 as a claim of group insurance as demanded by respondent/employee---Contention raised by the petitioner/respondent was that respondent/employee was not a workman and was a civil servant and as such his remedy was with the Service Tribunal ---Validity--Respondent/employee was a. "workman" within the definition of a "workman" given in Workmen's Compensation Act, 1,923, and was excluded from the definition of a "civil servant"---Remedy for such a person was under. the ordinary laws relating to labour and not under Sindh Service Tribunals Act, 1973---Application of respondent/employee was competent before the respondent/ Commissioner.
The Secretary, Irrigation Department, Sindh v. Nasir Khan and others 1985 PLC 1060 and Project Director, Ghotki (WAPDA) v. Commissioner, Workmen's Compensation and others PLD 1992 SC 451 ref.
(b) Interpretation of statutes-
--- Beneficial statute---Construction---Mode---Any beneficial or remedial statute promulgated for' ameliorating the lot of - working class must be construed to advance the remedy and suppress the mischief.
PLD 1977 SC 197 fol.
(c) West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)---
----Preamble---Statutory benefits of workman---Technicalities---Not to stand in the way of justice---Provisions of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, must be interpreted in favour of workman---Courts were not to deprive the workman of his statutory benefits on account of any minor technical flaw in the proceedings of which the employer himself was also guilty---Rules of procedure were made to advance the cause of justice and not to deprive a poor illiterate workman of his benefits.
Mian Khan Malik, Addl. A.G. for Petitioner. Nemo for Respondents Nos. 2 and 3.
Date of hearing: 5th May, 1999.
2000 P L C 52
[Karachi High Court]
Before Nazim Hussain Siddiqui, C.J and Ghulam Rabbani, J
NASIR JAMAL and 23 others
Versus
PAK SUZUKI MOTOR COMPANY LIMITED and 3 others
Constitutional Petition No. D-1228 of 1998, decided on 11th May, 1999.
Industrial Relations Ordinance (XXIII of 1969)--
----Ss. 2(viii), (xxviii), 25-A' & 37(3)---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(f)(iv)---Constitution of Pakistan (1973), Art 199---Constitutional petition---Termination of service---Employee---Determination---Petitioners who claimed to be employees of Company filed grievance petition against order of Company whereby their services were verbally terminated--Grievance petitions were allowed by Labour Court, but Labour Appellate Tribunal set aside in appeal order of Labour Court holding that petitioners were not employees of the Company but were employees of contractor and had no concern whatsoever with the Company and that cause of grievance, if any, could be raised by petitioners against the contractor---Evidence on record had proved that Company neither had any administrative control over petitioners nor had any authority to reinstate or dismiss petitioners nor Company was responsible for wages of petitioners nor said contractor was a fictitious person---Ex facie, finding of Labour Appellate Tribunal recorded on assessment of evidence available on record, could not be disturbed by High Court in exercise of Constitutional jurisdiction simply because a different view was possible.
Hussainbhai, Calicult and Alath Factory Thozhilali Union, Calicult and others 1978 LLJ 397 and Abdul Razzaq v. Messrs Ihsan Sons Limited and 2 others 1992 SCMR 505 ref.
Mirza Muhammad Kazim and Ashraf Hussain for Petitioners.
Obaidur Rehman for Respondent No. 1.
Nemo for the Remaining Respondents.
Date of hearing: 9th February, 1999.
2000 P L C 62
[Karachi High Court]
Before Sabihuddin Ahmed, J
Messrs AGFA GEVAERT PAKISTAN LTD. through Managing Director
Versus
SINDH (PROVINCIAL) EMPLOYEES' SOCIAL SECURITY INSTITUTION through Commissioner, Gulshan-e-lqbal, Karachi
Miscellaneous Appeal Nos. 13 and 14 of 1999, 45 of 1995 and 5 of 1996. heard on 16th September, 1999.
(a) Interpretation of statutes---
----Principles---Provisions of a statute ought to be construed in the first instance according to their plain grammatical meaning.
(b) Provincial Employees' Social Security Ordinance (X of 1965)---
----Preamble, Ss. 2(8)(f) & 64---Appeal before High Court---Contention of respondent was that Provincial Employees' Social Security Ordinance, 1965 being a beneficial statute. must be liberally construed in favour of employees---Validity---Question of strict or beneficial construction to the statute could only arise if otherwise there was an ambiguity regarding the scope and meaning of said statutory provisions.
(c) Interpretation of statutes--
---- Question of strict or beneficial construction to the statute could only arise if otherwise there was an ambiguity regarding the scope and meaning of said statutory provisions.
(d) Provincial Employees' Social Security Ordinance (X of 1965)---
----Ss. 2(8)(f), proviso [as amended by Labour Laws (Amendment) Act (XI of 1994)] & 64---Amendment of Ordinance---Nature and retrospective effect---Contention was that amendment in S.2(8)(f), Provincial Employees' Social Security Ordinance, 1965 was only a piece of declaratory legislation enacted by way of abundant caution and ought to be given retrospective effect---Validity---Held, such contention would nullify the very basis on which proviso to said section was added at best it could only be treated as a. piece of remedial legislation and when Legislature itself gave it prospective effect, Court could not make its application retrospective.
Kohinoor Chemicals Company v. Sindh Social Security Institution PLD 1977 SC 197; Dawood Cotton Mills v. Sindh Social Security Institution
PLD 1978 Kar. 744 and Sindh Employees' Social Security Institution v. Dawood Cotton Mills PLD 1988 SC 1 ref.
Abdul Samad and Munib Ahmad Khan for Petitioner. Khalid Habibullah for Respondent.
Date of hearing: 16th September, 1999.
2000 P L C 67
[Karachi High Court]
Before Sabihuddin Ahmed, J
Messrs NAGRIA TEXTILE MILLS (PVT.) LTD
Versus
FOURTH SINDH LABOUR COURT AT KARACHI and another
Constitutional Petition No. 186 of 1999, heard on 15th September, 1999
(a) Industrial Relations Ordinance (XXIII of 1969)----
----S.51---Recovery of money due from an employer---Provision of S.51, Industrial Relations Ordinance, 1969 would not confer a substantive right of recovery of money upon a worker, but it had only sought to ensure compliance of terms of settlement, award or judgment of Labour Courts for payment of money by stipulating that money due could be recovered as arrears of land revenue or public demand and upon proper computation be paid to a workman.
(b) Constitution of Pakistan (1973)---
----Art.199---Constitutional petition---Maintainability---In absence of any misreading of evidence or illegality in the order of Court below, Constitutional petition against the same was misconceived.
Safdar Hussain for Petitioner.
Ashraf Hussain Rizvi for Respondents.
Date of hearing: 15th September, 1999.
2000 P L C 74
[Karachi High Court]
Before Rana Bhagwan Das and Mushir Alam, JJ
ABDUL RAZZAK
Versus
CHAIRMAN, AREA ELECTRICITY BOARD, HYDERABAD and others
Constitutional Petition No.D-43 of 1992, heard on 27th October, 1999.
(a) Industrial Relations Ordinance (XXIII of 1969)---
----S.38(3-a)---Revisional jurisdiction, exercise of---Labour Appellate Tribunal, though was not entitled to upset the decision rendered by Labour Court for the reason that memo. of appeal was signed by employer's Advocate and not by any person duly authorised in that behalf, but said order could always be passed by Labour Appellate Tribunal in exercise of its revisional jurisdiction which had broader scope and was not restricted by the conditions for the exercise of Appellate jurisdiction---Labour Appellate Tribunal which had found that Labour Court had acted without jurisdiction, was not divested of its authority to correct the error of law by setting aside said order in exercise of its revisional jurisdiction.
(b) Constitution of Pakistan (1973)-
----Art. 199---Constitutional jurisdiction, exercise of---High- Court in exercise of its Constitutional jurisdiction, would not act in aid of injustice and to perpetuate a wrong---Constitutional jurisdiction being extraordinary in its nature was to be exercised to foster the ends of justice and to right a wrong---High Court was not bound to set aside every irregular or illegal order if it had not caused any material prejudice or gross miscarriage of justice.
Water and Power Development Authority v. Javed Ahmed 1989 SCMR 1068; President of M.C.B. v. Muhammad Yakoob Chacher C.P. No. D-230 of 1991, decided on 8-5-1991 and National Bank of Pakistan v. Sindh Labour Appellate Tribunal, Karachi and another 1992 PLC 86 ref.
(c) Constitution of Pakistan (1973)-
----Art.199---Writ of certiorari or mandamus---Object---Order in the nature of a writ of certiorari or mandamus, was a discretionary order and its object was to foster justice and right a wrong---Before a person could be permitted to invoke discretionary power of Court, it must be shown that the order sought to be set aside had occasioned some injustice to the party---If it did not work any injustice to any party, rather it cured a manifest illegality, extraordinary jurisdiction of High Court ought not to be allowed to be invoked.
Raunaq Ali v. Chief Settlement Commissioner PLD 1973 SC 236 and Muhammad Baran v. Member (Settlement and Rehabilitation) PLD 1991 SC 691 ref.
(d) Constitution of Pakistan (1973)---
----Art.199---Constitutional jurisdiction, exercise of---High Court was within its power to refuse relief in Constitutional jurisdiction even though Authority had acted without jurisdiction, but had passed order in order to foster cause of justice---High Court in exercise of its discretionary Constitutional jurisdiction, was not bound to interfere in all circumstances.
Norwich Union Fire Insurance Society Limited v. Muhammad Javed Iqbal 1986 SCMR 1071; Export Promotion Bureau v. Qatser Shafiullah 1994 SCMR 859 and Begum Shams-un-Nihar v. Said Akbar Abbasi PLD 1982 SC 413 ref.
(e) Constitution of Pakistan (1973)-
---Art.199---Constitutional jurisdiction, exercise of---Patently illegal and void order passed by Authority could not be restored on account of technicalities as it would put premium on an act inherently without jurisdiction.
Mst. Noor Jehan v. Government of Sindh and others C.P No. D-897 of 1996, decided on 26-8-1999 ref.
S. Matt.-.ar Alain for Petitioner. Mahboob Malik for Respondents.
Date of hearing: 27th October, 1999
2000 P L C 89
[Karachi High Court]
Before Saiyed Saeed Ashhad and Abdul Ghani Shaikh, JJ
Messer HINOPAK MOTORS LENMITED
Versus
CHAIRMAN, SINDH LABOUR APPELLATE TRIBUNAL and others
Constitutional Petitions Nos.D-3186 to D-3193 of 1993, heard on 14th April, 1999.
(a) Industrial Relations Ordinance (XXITI of 1969)---
----S.8(3)---Trade Union, registration of---Order of Registrar, rejecting application for registration of trade union---Validity---Failure to file appeal against order of Registrar Trade Unions rejecting the application for registration---Effect---Order of Registrar of Trade Unions being a judicial pronouncement, in deciding the same principles laid down for deciding a question or issue judicially were to be followed---Party aggrieved by order of rejection of trade union had to challenge such order of Registrar by way of appeal---Failure to file appeal would result in accepting the verdict of the Registrar of Trade Unions and the applicant would be bound by the same.
Muhammad Chiragh through L.R. Sehar Bano Bibi and others v. Dullav Khan and others PLD 1954 Dacca 134 ref.
(b) Industrial Relations Ordinance (XXIII of 1969)---
----S.2(xviii)---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(i)---"Worker" and "workman"---Meaning---Employee of a contractor, employed or engaged for the purpose of carrying out the work assigned or entrusted by an industrial establishment---Status---Such employee was included in the definition of "worker" apd "workman" as provided in S.2(xviii), Industrial Relations Ordinance, 1969 and S.2(i), West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968.
(c) Industrial Relations Ordinance (XXIII of 1969)--
----S.25-A---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.12(3)---Constitution of Pakistan (1973), Art. l99---Constitutional petition---Termination of employment of employees of a contractor who were employed/engaged for carrying out work assigned or entrusted to the contractor by industrial establishment---Labour Court reinstated such employees without back benefits and order of the Labour Court was upheld in appeal by the Labour Appellate Tribunal---Validity---Employees having failed to establish that they were the employees of the industrial establishment, both the Courts below arrived at the findings in disregard and overlooking the material evidence on record---Reliance was placed on inferences, surmises, and conjectures, which were not warranted to be drawn from the record---Orders of both the Courts below were set aside and the grievance applications of the employees were dismissed.
Humayun Badshah v. Habib Bank Limited and 3 others 1996 SCMR 1606; Punjab Seed Corporation and others v. Punjab Labour Appellate Tribunal and others 1996 SCMR 1947 and Messrs Hakim & Sons Chemical Industrial (Pvt.) Ltd. v. The Registrar of Trade Unions and another 1999 SC'MR 234 distinguished.
Mian Munir Ahmed v. The State 1985 SCMR 257; Farid Ahmed v. Pakistan Burma Shell Limited 1987 SCMR 1463; Sindh Employees' Social Security Institution v. Consolidated Sugar Mills 1989 SCMR 888; Distribution Officer (Hoechest) Pharmaceutical (Pvt.) Ltd. and another v. Punjab Labour Appellate Tribunal 1993 SCMR 1282 and Muhammad Sadiq v. Punjab Labour Appellate Tribunal No. l and another PLD 1988 SC 633 ref.
M.L. Shahani for Petitioners (in all Petitions).
Mirza Muhammad Kazim for Respondents (C.Ps. Nos. D-3186 to 3193 of 1993).
Date of hearing: 14th April, 1999.
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2000 P L C 144
[Karachi High Court]
Before Muhammad Roshan Essani and S.A. Rabbani, JJ
MUKHTAR AHMED and 2 others
Versus
CHAIRMAN, S. L. A. T. and 2 others
Constitutional Petition No.D-2583 of 1993, decided on 1st June, 1999.
(a) Industrial Relations Ordinance (XXIII of 1969)---
----Ss. 25-A, 34, 35 & 38---Constitution of Pakistan (1973). Art. 199--Constitutional petition---Remedy against appeal---Validity---Petitioners filed Constitutional petition against decision of Labour Appellate Tribunal--Maintainability---Where law provided only one appeal, remedy by way of Constitutional petition could not be a substitute for a second appeal for the reason that same had not been provided---Remedy of Constitutional petition was not available in cases where the Legislature intended to end litigation at certain stage and with such intention did not provide a forum of appeal---Decision of Appellate Tribunal could not tie challenged on the ground of misappreciation or wrong conclusion---Constitutional petition being not maintainable was dismissed accordingly.
(b) Constitution of Pakistan (1973)---
----Art. 199---Constitutional petition---Scope---Such a remedy is an extraordinary one provided for the cases where the Legislature had not provided an adequate remedy through law.
(c) Industrial Relations Ordinance (XXIII of 1969)--
----S. 38---Constitution of Pakistan (1973), Art. 199---Constitutional petition--- Maintainability---Decision of Labour Appellate Tribunal--Constitutional petition tray lie only in case where the Tribunal fails to exercise jurisdiction vested in it or where it assumes jurisdiction where it has none.
Majeed Jeelani for Appellant.
Nemo for Respondent.
Date of hearing: 25th May, 1999.
2000 P L C 161
[Karachi High Court]
Before S. Ahmed Sarwana, J
SINDH ROAD TRANSPORT CORPORATION and others
Versus
SHER MUHAMMAD and others
Constitutional Petition No.S-31 of 1994, heard on 25th May, 1999.
West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)--
----S.O. 10-B---Workmen's Compensation Act (VIII of 1923), Ss. 2(b) & 4---Constitution of Pakistan (1973), Art. 199---Constitutional petition--Disability by natural cause---Death or injury---Compulsory group insurance and medical expenses---Payment of---Workman was declared medically unfit because of weakness of his eyes---Commissioner for Workmen's Compensation directed employer to pay Group Insurance amount to the workman payable under S.O 10-B of the Ordinance for the disability suffered by him and towards reimbursement of medical expenses---Contention of employer was that workman could not file claim on account of any disability suffered from .natural cause---Validity---Order of the Commissioner for Workmen's Compensation was upheld by the High Court with the directions to petitioner to pay compensation for every day of delay in payment of decretal amount at the rate of 12 per cent per annum---[Karachi Road Transport Corporation v. Kajeer Khan 1993 PLC 296 and Pakistan Tobacco Company v. Muhammad Siddique 1978 PLC 363 reversed].
Karachi Road Transport Corporation v. Kajeer Khan 1993 PLC 296 and Pakistan Tobacco Company v. Muhammad Siddique 1978 PLC 363 reversed.
Muhammad Siddique v. Sindh Labour Appellate Tribunal PLD 1979 Kar. 560 and Muhammad Habib Khan v. Pakistan Tobacco Company PLD 1991 SC 183 rel.
Rafique Ahmed for Petitioner.
Nemo for Respondent.
Date of hearing: 25th May; 1999.
2000 P L C 274
[Karachi High Court]
Before Saiyed Saeed Ashhad and Anwar Zaheer Jamali, JJ
Messrs CRESCENT PAK. INDUSTRIES LTD.
Verses
SINDH LABOUR APPELLATE TRIBUNAL PAKISTAN
SECRETARIAT, KARACHI and another
Constitutional Petition No.D-1043 of 1992, heard on 1st April, 1999.
Industrial Relations Ordinance (XXIII of 1969)---
----Ss.25-A &. 38---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O. 15---Constitution of Pakistan (1973), Art. 199---Dismissal on ground of misconduct---Findings of Enquiry Officer---Interference with---Labour Court and Labour Appellate Tribunal were required to examine inquiry proceedings with a view to satisfy themselves as to the legality and validity of enquiry proceedings and findings of Enquiry Officer---Record of inquiry proceedings could be gone through both by the Labour Court and Labour Appellate Tribunal to see whether proper opportunity was provided to aggrieved employee to defend himself and whether Enquiry Officer had conducted inquiry proceedings in a proper and fair manner---Findings of Enquiry Officer could not be ignored or set aside merely on ground that a view contrary to one taken by Enquiry Officer was possible in view of the evidence and material brought before Enquiry Officer---Finding of Enquiry Officer could be substituted by Labour Court or Labour Appellate Tribunal only after same was arrived at as a result of misreading or misconstruing evidence on record or in disregard thereof, contrary to same or that it was perverse.
Abdus Samad for Petitioner.
Nemo for Respondents.
Date of hearing: 1st April, 1999.
2000 P L C 325
[Karachi High Court]
Before Hamid Ali Mirza and Anwar Zaheer Jamali, JJ
Messrs HOLIDAY INN, CROWNE PLAZA, MAIN SHAHRA-E-FAISAL, KARACHI
Versus
AFTAB AHMED SIDDIQUI and another
Constitutional Petition No.817 of 1998, decided on 26th October, 1999.
Industrial Relations Ordinance (XXIII of 1969)-
----S.25-A---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O. 12(3)---Termination of service---Service of employee was terminated during period of his probation without giving specific reason for the termination simply stating that services of employee were no more required by employer---Mere words "no more required" would not amount to any reason within mischief of provisions of S.O.12(3) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968---Employee was rightly ordered to be reinstated in service with all back benefits.
Pakistan International Airlines v. Sindh Labour Court No.5 and others PLD 1980 SC 323 ref.
Munib Ahmed Khan for Petitioner.
Ashraf Hussain Rizvi for Respondent No. 1.
2000 P L C 376
[Karachi High Court]
Before Rana Bhagwan Das, J
K.P.T. PROGRESSIVE WORKERS UNION
Versus
REGISTRAR OF TRADE UNIONS and others
Constitutional Petition No. D-2532 of 1995, decided on 17th September, 1999.
(a) Industrial Relations Ordinance (XXIII of 1969)---
----S.10---Cancellation of registration of trade union---Jurisdiction of Labour Court--- Scope---Primarily it was the function and authority of the Labour Court to cancel such registration under the provisions of S.10 of Industrial Relations Ordinance, 1969.
(b) Industrial Relations Ordinance (XXIII of 1969)---
----Ss. 7(A)(3) & 10---Cancellation of registration of trade union---Exercise of jurisdiction by Registrar, Trade Unions---Scope---Labour Court can act only upon a complain in writing made by the Registrar of Trade Unions for cancellation of registration of trade union---Where, after holding such inquiry as the Registrar deems fit, he finds that such trade union had dissolved itself has ceased to exist, under the provisions of S.7(A)(3), he is authorised to cancel registration of such trade union accordingly.
(c) Industrial Relations Ordinance (XXIII of 1969)---
----S.10---Cancellation of registration of track; union ----Registrar, status of--Scope---Status of the Registrar is that of a prosecutor in terms of 5.10(1) & (2) of Industrial Relations Ordinance, 1969---Registrar enjoys executive functions under S.10(3) of Industrial Relations Ordinance, 1969 and the same must be exercised fairly, reasonably, honestly and in an equitable manner.
(d) Industrial Relations Ordinance (XXIII of 1969)--
----S. 10---Constitution of Pakistan- (1973), Art. 199---Constitutional petition---Canceling the registration of trade union by the Registrar of Trade Union---Registration of petitioner union was cancelled by Registrar on the grounds that show-cause notices were returned un-served the annual returns for a period over five years were not filed and periodical elections were, not held by the union--Validity---Registrar had acted in hot haste and on extraneous considerations by directing such cancellation without proper inquiry and without affording an opportunity of hearing to the union--Exercise of such authority could not be endorsed as judicially approved--Registrar was required to ascertain the ground realities rather than to base his case on such findings in the absence of any reply to show-cause notices--Just, fair and proper course was to lodge a complaint before the Labour Court-rather than to invoke and exercise authority vested in an executive in a. summary and slipshod manner---Order of cancellation of the registration of the trade union was without lawful authority and the same was struck down.
Holiday Inn. Workers' Union v. Registrar of Trade Unions 1992 PLC 23 and Pakistan 'Glass Industries Labour Welfare Union v. Presiding Officer, Labour Court No. VI, Hyderabad 1980 PLC 9 ref.
Sher Muhammad v. Director-General of Pakistan, Telegraphs and Telephones Department PLD- 1979 Kar. I and Iqan Ahmed Khurrum v. Government of Pakistan PLD 1979 Kar. 610 distinguished.
(e) Industrial Relations Ordinance (XXIII of 1969)---
---S.11---Constitution of Pakistan. (1973) Art. 199----Constitutional petition--- Maintainability---Filing of Constitutional petition without availing adequate remedy of appeal provided under S.11, Industrial Relations Ordinance, 1969---Validity---Where order was illegal and without jurisdiction passed on considerations other than those essentially required by the mandate of law, recourse to appellate fortune was neither absolutely necessary nor called for---Provision relating to availing of adequate and alternate remedy before invoking Constitutional jurisdiction of High Court was a rule of convenience and riot a rule of law---Registrar had acted without jurisdiction under extraordinary bureaucratic pressure and undue interference in the discharge of his duties---Such order suffered from patent illegality and excessive exercise of authority, as, such the same was struck down-Constitutional petition being maintainable was allowed in circumstances.
Ali Muhammad v. Hussain Bakhsh PLD 1976 SC 37; Yousuf Ali v. Muhammad Aslam Zia PLD 1958 SC (Pak.) 104; Ch. Altaf Hussain and others v. The Chief Settlement Commissioner PLD 1965 SC 68; Syed Ali Abbas and others v. Vishan Singh PLD 1967 SC 294; Manzoor Ahmed Wattoo .v. Federation of Pakistan PLD 1997 Lah. 38 and Senator Gulzar Ahmed v. Punjab Cooperative Board 1998 CLC 50 ref:
Malik Muhammad Saeed for Petitioner.
Ainuddin Khan, Addl: A.-G. for Respondent No. 1.
Muhammad Arif Khan for Respondent No.3. '
Date of hearing: 23rd August, 1999.
2000 P L C 383
[Karachi High Court]
Before Anwar Zaheer Jamali, J
AGRICULTURAL ENGINEER, AGRICULTURAL MACHINERY, THATTA DIVISION, THATTA
Versus
TAJUB ALI and 2 others
Constitutional Petitions Nos. S-117, alongwith S.25 to S-29, S-32 to S-42, 5-44 to S-105, S-113 to S-115, S-119, S-121 to S-131, S-133, S-134, S-136, S-139 to S-143, S-145, S-146, S-148, S-i50, S-152, S-154 to S-164, S-166, S-167, S-169 to S-173, S-175, S-176. S-178 of 1990 and S-3 to S-145.of 1991, decided 'on 14th December, 1999.
Payment of Wages Act (IV of 1936)---
----Ss. 15 & 17---Constitution of Pakistan (1973), Art 199--Constitutional petition---Appeal filed after prescribed period and failure to deposit amount before filing of appeal-- Employees filed their applications under S.15, Payment of Wages Act, 1936. against the employer about illegal deduction in the wages/allowances and claimed its refund---Commissioner allowed the applications and directed the employer for deposit of such amount---Appeal was filed before the Labour Court after the prescribed period of thirty days without deposit of such amount---Appeal so filed was dismissed by the Labour Court---Plea taken by the employer for delay in filing of appeal was due to delay in departmental sanction and non-deposit of amount was due to non-availability of funds---Validity----Such being not a sufficient cause for condonation of delay and for non-deposit of amount as required under S.17 (1)(a) of Payment of Wages Act, 1936, pleas of employer were not accepted---Petition was dismissed in circumstances.
Government of Balochistan, Livestock Department v. Livestock Employees Union, Balochistan and 2 others 1993 PLC 13; Agriculture Workers' Union, Balochistan v. .The Registrar of Trade Unions, Balochistan, Quetta and others 1997 SCMR 66 and Employees' Old-Age Benefit Institution v. National Industrial Relations Commission and others 1988 SCMR 765 distinguished.
Executive Engineer Central Civil Division Pak (PWD); Quetta v. Abdul Aziz and others 1996 PLC 385; Federation of Pakistan v. Niaz Ahmad 1997 SCMR 959: 1981 SCMR 37 and Ahmad Spinning Mills Ltd. v. Authority and others 1990 PLC 26 ref.
Mian Khan Malik, Addl. An-G. for Petitioner.
Fasahat Hussain Rizvi and Mahmood Hussain Siddiqui for Respondent No.1.
Date of hearing: 2nd December, 1999
JUDGMENT
By this common judgment I propose to dispose of all the above listed constitution petitions as they involve common questions of facts and law and are direct against identical orders passed by the respondent No.2 (authority under Payment of Wages Act/Commissioner Workmen's Compensation at Hyderabad) and respondent No.3 (Presiding Officer Labour Court No.6 Hyderabad), whereby former allowed the applications under section I'S of the Payment of Wages Act, 1936 (hereinafter referred to as Act of 1936, filed by the private respondent (s) and latter dismissed the appeals against such orders tiled by the petitioners.
Brief facts relevant for the disposal of these petitions are that the private respondents, who we-e employees of the petitioners, filed their respective under section 15, of the Act of 1936 before the respondent No.2, agitating their grievance about illegal deduction in their wages/allowances by the petitioners and claimed its refund.
The petitioners in their reply statement controverted these allegations and submitted that the private respondents were civil servants and governed by civil Servants Act, the salaries and allowances paid to them were in accordance with their entitlement and scale and, thus, their applications under section 15 of the Act of 1936 were not maintainable and that the respondent No.2 had no jurisdiction in the matter.
During the course of proceedings before respondent No.2. Issues with regard to jurisdiction of the Court maintainability of the application and the relief claimed by the private- respondents were- framed and after recording of evidence of the parties respondent No.2 decided all these issues in favour of private respondents allowed their applications and consequently ordered payment of respondents' claim with directions to deposit the said amount in the Court within thirty days.
Against such orders of respondent No.2, the petitioners filed appeals under section 17. of the .Act of 1936, mainly urging' the ground of lack of jurisdiction of respondent No.2. These appeals when filed by the petitioners before respondent No.3 were not only presented beyond the prescribed period of limitation of thirty days as provided under section 17 of the Act of 1936 but the same were also not accompanied with a certificate of deposit of amount as required under the proviso to section 17 (1)(a) of the Act-of 1936. Considering these legal deficiencies in the appeals as fatal the respondent No.3 dismissed all these appeals on the grounds being time-barred and not maintainable for want of deposit certificate's.
I have heard Mr. Mian Khan Malik, learned Additional Advocate General for the petitioners and .M/s. Fasahat Hussain Rizvi and Mehmood Hussain Siddiqui appearing for the private respondents in many petitions. The official respondents Nos. f and 3, however, remained un-represented.
The learned Additional Advocate-General while' arguing the-case of the petitioners frankly admitted that the appeals preferred before respondent No. 3 were time-barred and also compliance of the proviso to section 17(1)(a) of the Act of 1936 .was not made as the amount which was to be deposited in terms of the orders of respondent hjo.2 was not deposited even uptil the time of passing of the impugned orders by the respondent No.3. However, to meet this situation the learned A.A.-G. contended that the-delay in filing of appeals was caused due to departmental correspondence and delay in sanction from the Government while non-fulfillment of the requirement of proviso to section 17(1)(a)-of the Act of 1936 was due to the non-availability of funds with the petitioners' Department. Arguing the facts of the case learned A.A.-G. contended that the private respondents in all these petitions were serving on "work charged basis" with the petitioners organization which is attached with the Provincial Government and, therefore, they being civil servants were not entitled to invoke the jurisdiction of respondent No.2 by filing their applications under section 15 of the Act of 1936. In support of .his contentions, learned counsel placed his reliance on the following case law:
"(a) Government of Balochistan, Livestock Department v. Livestock Employees Union, Balochistan and two others (1993 PLC 13), (b) Agriculture Workers' Union, Balochistan v. The Registrar of Trade Unions, Balochistan, Quetta and others (1997 SCMR 66) and
(c) Employees' Old Age Benefit Institution v. National Industrial elations Commission arid others (1988 SCMR 765).
On the other hand, Mr. Fasahat Hussain Rizvi, learned counsel for the private respondents in several petitions, strongly controverted these to submissions and argued that for the purpose of limitation an autonomous body, corporation or Government Department cannot claim any special treatment and, therefore, the ground of correspondence and delay in sanction cannot be considered as a valid ground for condonation of delay in filing of these appeals before respondent No.3, Referring to the non-filing of certificate of deposit alongwith the memo of appeal, learned counsel argued that it is an admitted position that not only deposit of amount as contemplated under section 17 of the Act of 1936 was not-made by the petitioners at the time of filing of the appeals but even at the time of passing of impugned orders by the respondent No.3 such compliance was not made and, thus, all the appeals were rightly dismissed by respondent No.3, being not maintainable. Lastly the learned counsel argued that the status of a workman working on work charged basis has already been examined by the apex Court in the case of Executive Engineer, Central Civil Division Pak (PWD) Quetta v. Abdul Aziz and others (1996 PLC 385) and a perusal of this judgment furnishes a complete reply to the contention raised by the learned A.A.-G. in this regard. Mr. Rizvi further referred to a number of unreported judgments of this Court passed in C.P. Nos. S-116/90. 37/84, 87 and 88/85, 54 and 57/84, 8/90, 37/86, 12.13 and 14 of 1986 and C.P. Nos.S-21 and 22 of 1986, to show that other identical petitions filed by the petitioners, wherein similar legal and factual contention were raised by the learned A.A.-G., have already been dismissed by this court.
Mr. Mahmood Hussain Siddiqui representating some other private respondents in these petitions adopted the arguments of Mr. Rizvi with this addition that during the, pendency of these petitions most of the private respondents have either died or retired or have left the job of the petitioners but no steps have been taken by the petitioners to either bring the legal heirs of deceased respondents on record or to submit the fresh addresses or whereabouts of such other private respondents. In this context the learned counsel referred to the statement of learned Additional Advocate-General dated 29-11-1999 and its Annexures A, B and C which are three lists of the private respondents (Annexure "A" mentioning names of twenty-one private respondents who are still in service with petitioners, Annexure "B" mentioning names of eighty private respondents who have already retired and Annexure "C" giving the names of forty-two private respondents who have expired), and that against the private respondents who have already expired or retired it will be a mere exercise in futility to proceed with these petitions.
Mr. Mian Khan Malik, in his reply arguments did not controvert the facts as stated by Mr. Siddiqui and he was also unable to make any material distinction in the present petitions and the other petitions which have already been dismissed by this Court by its judgments in the above referred petitions.
I have considered the arguments advanced by the learned counsel for the parties and have perused the case record. In all these petitions it is an admitted position that the appeals filed by the petitioners before respondent No.3 were not only time-barred but also not accompanied with the deposit certificate as required under the law. The arguments of the learned counsel that due to departmental correspondence and delay in sanction, delay in filing of appeals was caused and that due to the non-availability of finds the deposit of amount could not be made at the time of filing of appeals or even thereafter has no force as even if these pleas are accepted as correct the same do not furnish a sufficient cause either for condonation of delay in filing of appeals or for non-deposit of amount and non-filing of deposit certificate as required under section 17(1)(0) of the Act 1936. If any case law is needed on these points, reference may be made to the case of Federation of Pakistan v. Niaz Ahmad (1997 SCMR 959) wherein the Hon'ble Supreme Court of Pakistan referring to another case reported as 1981 SCMR 37 has observed as follows:
"This Court has repeatedly laid down that so far as the limitation is concerned, the Government cannot claim to be treated in any manner differently from an ordinary litigant. In fact, the Government enjoys unusual facilities for the preparation and conduct of their cases and its resources are much larger than those possessed by ordinary litigants, if in spite of these facilities the Government cannot comply' with the requirement of the law of limitation, then it is for it to take steps to have that law. It was further observed in the afore-noted case that according to the law, each day's delay must properly and satisfactorily be explained and the excuse that the matter got delayed because of its having remained under examination at different departmental levels is never a valid ground for condonation of delay."
Reference may also be trade to the case of Ahmad Spinning Mills Ltd. v. Authority and others (1990 PLC 26) wherein a learned Single Judge of this Court while examining the effect of non-deposit of amount as required under section 17 of the Act of 1936 has observed as follows:-- , "Intention of the Legislature in enacting section 17 of the Payment of Wages- Act is very clear. It seems that the Legislature intended the amount covered by an order under section 15 of said Act to be deposited in the Labour court before it entertained an appeal against such an order. Such a provision cannot be allowed to be circumvented. Moreover, purpose of Article 199 of the Constitution of the Islamic Republic of Pakistan does not appear to be to nullify the effect of a legislative provision or to make ineffective a statutory provisions."
Also see: unreported judgment in the case of Executive Engineer Mechanical Division, Gudo Barrage Sukkur v. Rahim Aux and 46 others (C.P. No.163/ 1984).
Reverting to the factual contention raised by the learned Additional Advocate-General it tray be observed that the question of status of a workman working on work charged basis in an organization attached with the Provincial. Government has been discussed at length by the Hon'ble Supreme Court of Pakistan in the case of Executive Engineer, Central Civil Division Pak. (PWD) Quetta v. Abdul AZi$ and others (1996 PLC 385). In view of the dictum-laid down in this case the other contention of the learned Addl. A.-G. has also no force.
In the facts and circumstances of these petitions, the case law referred by the learned Additional Advocate-General is also distinguishable and not applicable to these petitions.
Besides I have also perused the judgment in C. P. No. S.116 of 1990 and other petitions referred by the learned counsel for the private respondents and seen that similar contention raised in these petitions have already been examined, discussed and rejected by this Court. I find no valid reason to form a different view in these petitions.
For the preceding reasons, these petitions merit dismissal and the same are accordingly dismissed.
Above are the reasons for the short order dated 2-12-1999.
Q.M.H./A-13/K Petitions dismissed.
2000 P L C 389
[Karachi]
Before Dr. Ghous Muhammad, J
A & BEVERAGE SHAMA LABOUR UNION 404-406, INTERNATIONAL AUTO PARTS, KARACHI
Versus
SINDH LABOUR COURT N0.3 through Presiding Officer, Block-7 Sindh Secretariat, Karachi and another
Constitutional Petition No.S-472 of 1998, decided on 25th November, 1999.
Constitution of Pakistan. (1973)-- -
----Art. 199---Constitutional petition---Non-compliance of directions/observations given by High court while remanding case to subordinate Court---Effect---High Court in an earlier Constitutional petition set aside impugned order and remanded case to Presiding Officer of Labour Court to decide the same afresh in the light of directions/observations made by High Court in its order---Labour Court was supposed to follow remand order in letter and 'spirit, but it failed to do so by ignoring directions/observations of High Court and decided case in a way not permissible under the law---Remand order was passed by High Court on merits, but Labour Court,' instead of following directions of High Court, tried to find out fault with the same---Such approach of Labour Court was unwarranted and amounted to contempt of High Court---Order passed by Labour Court on remand of the matter, was set aside and matter was remanded to different Labour Court to decide .afresh according to law.
Muhammad Suleman Junejo v. Chief Secretary, Sindh 1980 PLC (C.S.) 694 ref.
Shahenshah Hussain for Petitioner. Abdul Hafeez for Respondents.
Date of hearing: 15th November, 1999
JUDGEMENT
The petitioner, a. registered trade union, is aggrieved by the order dated 1-10-1998 passed by Mr. Qamar Ahmed Shaikh the Presiding Officer, Sindh Labour Court No. 3 (respondent No. l)
The respondent No.2 is a private, limited company. According to the petitioners their members were employees of the respondent No.2.
The petitioners had earlier filed C.P. No.S.3 of 1995 in this Court against the order dated 24-11-1994 which was set aside and the matter was remanded to the respondent No. l for decision afresh in the light of the observations made in the judgment dated 15-4-1995.
Now the grievance of the petitioner is that the respondent No. l ignored the directions/observations of this Court and decided the case in a way not permissible under the law.
I heard the learned counsel for the parties and perused the record.
Learned counsel for the petitioner mainly urged that the remand order had been passed on merits, but the respondent No., l instead of following the directions of this Court in the remand order tried to find fault with them, and thus, his approach was unwarranted and amounts to contempt of this Court.
Vide order dated 3-6-1999, office was directed to issue contempt notice to .the respondent No.l. In his reply the alleged contempt (Mr. Qamar Ahmed Shaikh), denied having committed any contempt or violation of the orders passed by this Court, although he also stated as follows;
"3. That I respectfully submit that the facts given in paras. 31, 32, 33, and 34 of the Judgment dated 15-5-1998 are based upon only the fact that the factory was closed 3 years ago and that is admitted position as a result of the permission granted by the order of the Court; and therefore, at this stage that point was also to be considered: Moreover, at the time of decision of this case when the matter was remanded back to this Court for re-consideration, that fact perhaps, was not brought before the Hon'ble Court as per directions contained in the order at page 9, line 8 by which it has been observed that:
'The Labour Court has, therefore, to be satisfied that such a move on the part of the employer is genuine and not mala fide with the object of getting rid of the workmen. In the event of contest to an application under section 11-A by the workmen of their Union, the Court is obliged to examine all relevant facts to ascertain that there are real circumstances justifying the closure or termination of employment. The Court has also to see that the workmen also get what they are entitled to under the shape of their wages and benefits.
and, therefore, I respectfully submit that it was not due to any mala fide but a bo11a fide one and in that regard I would respectfully submit that such point No.5 was also taken out and decided alongwith other points at the time of judgment. "
So far as the impugned judgment is concerned, I am satisfied that the Presiding Officer labour Court-3 did not apply his mind, to the observations/directions of this Court after remand and passed the impugned order. Therefore, in the interest of justice the impugned Order is set aside and the matter is remanded to the Labour Court No-V for disposal afresh according to law.
So far as the show-cause notice and the reply are concerned, it would be relevant to reproduce paras. 31 to 34 from the order passed after remand of the case by Mr. Qamar Ahmed Shaikh, Presiding Officer, Labour Court No.3, paras. 31, 32, 33 and 34 read as under:--
"31. It is evident that in view of the said established facts as mentioned in paras. 22 to 29 above there is no scope or question at all at this stage of this Court either granting or refusing any permission to the applicant, either for closing down any establishment or for terminating the services of any workmen of the applicant, as neither any establishment nor any workmen of the applicant exist at this stage. In fact such permission having already been granted almost four (4) years ago end having been fully acted upon, it has become a completely past and closed matter not capable in any manner of being re-opened at this stage in view of the irreversible nature of the realities of the situation.
32. It appears that the said facts and documents mentioned in para.4 of the Order, were not brought to the notice of the Hon'ble single Judge of High Court because, otherwise, this case would not have been remanded and the Union's Constitutional Petition would have been declared to be infructuous.
33. Had the said facts and documents been brought to the notice of the Hon'ble Single Judge of the High Court, there would also have been no occasion to cite in the-Judgment, the two rulings of the Indian Supreme Court which lay down that closure should be real and genuine and not merely a pretence. There can be no doubt, in view of the said facts add documents mentioned in para. 4 herein before, that the closure in the applicants case was real genuine and complete in every respects as envisaged in the said two Indian rulings.
34. In view of the foregoing, I find no option but to dispose of the above application accordingly."
A bare perusal of the above hardly leaves any doubt in my mind that the alleged contemner made the observations which are uncalled for He was supposed to follow the remand order in letter and spirit which he failed to do. However, instead of framing the charge under the law of contempt, it would be proper to recommend action against .the Presiding Officer on administrative side, the reason being that Mr. Qamar Ahmed Shaikh was dismissed on 19-9-1992 after due inquiry on corruption charges when he was on the strength of- this Court as Additional District and Sessions Judge, but thereafter he managed to obtain the dismissal order set aside from the then Chief Minister, Sindh (Mr. Liaquat Jatoi) but so far he is not recognised as a judicial officer by this Court and was not allowed to resume duty. Therefore the Government, of Sindh posted him as the Presiding Officer Labour Court. There is absolutely no doubt that he is still reputed to be corrupt and it is very unfortunate that such a person has been assigned the vital task of deciding the matters under the Labour Laws. In the Judgment passed by a Division Bench of this Court, authored by me in Service Appeal No.11 of 1997, Muhammad Sagheer Rana v. High Court of Sindh (unreported) was held as follows:--
"9. On the point regarding lack of specific allegations touching upon controversial integrity we feel that in matters of corruption no direct evidence would normally be available. In Muhammad Suleman Junejo v. Chief Secretary, Sindh, 1980 PLC (C.S) 694 it was held that in cases of corruption and malpractice by a civil servant, it is the reputation that travels far and wide; direct evidence is hardly possible as the litigant who pays illegal gratification and gets his work done is not expected to come forward and give evidence and in this regard the adverse general reputation is enough to take action.
10. We are passing through hard times where the society and values have fundamentally deteriorated and there are rampant allegations of corruption against the members of the subordinate judiciary. It is an unfortunate situation where the protectors of the rights of the Citizens of this country are found unscrupulously invoked in acts of corruption and malpractices. In the light of the prevalent circumstances it is more desirable for the, Chief Justice of the Province who is the highest judicial functionary of the Province, to enjoy more liberal powers to check the subordinate members of the judiciary, stringently and effectively...
13. As already explained in -para. 11 above, when taking action against member of the subordinate judiciary, regard must be had to his :overall general reputation, reputation of being corrupt, merit of the judgments and orders passed by him, and complaints generated against him by lawyers and litigants. Regard must also be had to the periodic reports of 'all the Sessions Judges under whom the particular Judge may have worked. In this respect, weight must also be given to the comments given by the Judges of the superior Courts (when hearing appeals/revisions) upon the judgments/orders of the Judges of the subordinate Courts under appeal/revision "
It is, therefore, ordered that office should send a copy of this judgment to the learned Chairman Labour Appellate Tribunal for information as well as to the Chief Secretary and the Secretary Law, Department, Government of Sindh to consider whether Mr. Qamar Ahmed Shaikh who is still reputed to be corrupt deserves to be retained in service. Orders accordingly.
H.B.T./A-21/K . Order accordingly.
2000 P L C 393
[Karachi]
Before Sabihuddin Ahmed and S.A. Rabbani, JJ
ATLAS AUTOS GROUP LABOUR UNION through General Secretary
Versus
REGISTRAR OF INDUSTRY-WISE TRADE UNIONS and another
Constitutional Petition No. D-144 of 1993, heard on 19th January, 2000
(a) Industrial Relations Ordinance (XXIII of 1969)--
----S. 8---Recalling order of registration of trade union---Jurisdiction of Registrar---Scope---Registrar Trade Unions after having passed a clear order that a formal certificate be issued, does not retain the power to recall such order.
(b) Industrial Relations Ordinance (XXIII of 1969)--
----S. 8---Registration of trade union---Hearing of a rival trade union at the time of registration---Validity---Rival trade union had no legal right to be heard at the stage of application for registration as a trade union.
Essa- Cement Industries Workman Union v. Registrar of Trade Unions 1998 PLC 500 ref.
(c) Industrial Relations Ordinance (XXIII of 1969)---
----Ss. 8 & 10---Constitution of Pakistan (1973), Art, 199---Constitutional petition--- Registration of trade union---Registrar Trade Unions passed an order of registration of petitioner/trade union--Such order of registration was recalled on the application of the respondent/rival trade union--Validity---Registrar of Trade Unions gravely erred in treating the matter as something akin to adversary litigation and proceeded on wrong assumption that the respondent/rival trade union might be prejudiced in case the registration certificate was granted without hearing that rival trade union--Order of issuance of a registration certificate indicated that the same did not find any defect in the petitioner's application for registration---If the petitioner was registered in contravention of requirement of law, a complaint could be made to the Full Bench of the National Industrial Relations Commission---Registrar Trade Unions was directed to issue a certificate of registration to the petitioner accordingly.
National Bank bf Pakistan People's Federation v. National Industrial Relations Commission PLD 1975 Kar. 320 ref.
Ashraf Hussain Rizvi for Petitioner. Amjad Hussain for Respondent No.2.
Date of hearing: 19th January 2000.
JUDGMENT
SABIHUDDIN AHMED, J.---the admitted facts appear to be that the petitioner applied for registration as an Industry-wise Trade Union to the respondent No.l vide application dated 7-7-1992. If appears that on 18-8-1992 the respondent No.2, which is a rival Trade Union, preferred certain objections, regarding registration of the petitioner. The petitioner was apprised of these objections on 4-11-1992 and the matter was fixed for hearing on 15-11-1992. According to the petitioner while their representative appeared before the respondent -No.l on that day nobody appeared for the objector and after a copy of the objections having been made available to such representative the matter was adjourned to 28-1`1-1998. On the, adjourned date as well no appearance was made on behalf of the objector/respondent No.2 and consequently the respondent No.l passed an order, the operative part whereof reads as under:--
"As the objector has not appeared and there is nothing on record for reason of his failure to 'appear, his application, as stated above, is dismissed for non-appearance and non-prosecution. The applicant union is hereby registered. A formal certificate of registration is issued in favour of the applicant union."
Nevertheless it appears that pursuant to the aforesaid order an entry regarding registration of the petitioner had, been made in the Register of Unions and a proper certificate of registration was submitted before the respondent No.1 for signature on 30-11-1992, the 'respondent No.1 instead of signing the same recorded an order that on 29-11-1992 at about 1.00 P.M. he received an application dated 25-11-1992 from the respondent No.2/objector seeking adjournment of the hearing on 28-11-1'992 but this application had not been transmitted on to him till the order dated 28-11-1992 regarding issuance of formal registration certificate was passed. Consequently, he decided to issue notices to the parties for appearance. Thereafter, by a further order dated 4-1-1993 the respondent set aside the "ex pane" order dated 28-11-1992, the petitioner has called in. question the aforesaid order dated 4-1-1993 through this petition. .
Mr: Ashraf Hussain Rizvi, learned counsel for the petitioner, primarily argued that once a registration certificate had been directed to be issued by the respondent No. 1 vide order dated 28-11-1992 he had no power to review his earlier order and such registration could only be cancelled under section 10 of the Industrial Relation Ordinance by order of the Appellate Authority, which in the instant case would be Full. Bench of the National Industrial Relations Commission. He placed reliance on a Division Bench judgment of this Court in National Bank of Pakistan, People's Federation v. National Industrial Relations Commission (PLD 1975 Karachi 320). Moreover, he contended that on general principles the petitioner, lost locus poenentiae to recall the order dated 28-11-1992 inasmuch as it conferred vested rights upon the petitioner. Finally he argued that the respondent No.2 had no locus standi to object to the petitioners registration and the respondent No.1 was not justified in recalling his order merely to hear the respondent No.2. Reliance was placed, inter alia, on a recent pronouncement of the Honourable Supreme Court in Essa Cement Industries Workman Union v. Registrar of Trade Union (1`998 PLC (Labour) 504).
No appearance was made on behalf of the respondent No.1.
Mr. Ali Amjad, learned counsel for the respondent No.2, on the other hand, without demurring, the proposition of law laid down in the Division Bench decision of this Court, candidly conceded that if a registration certificate had actually been issued, the respondent No. 1 indeed had no power -to cancel the same. He nevertheless pointed out that in the instant case there was nothing on record to indicate that the certificate in question had actually been issued and, therefore, the respondent did have locus poenentiae. He pointed out that under Section 9 of the Industrial Relations Ordinance, a Registrar was empowered to issue a certificate of registration in the case a Full Bench of the NIRC in terms of section 22(b) (2) was empowered to cancel the registration of a Trade Union. Since no registration certificate had actually been issued, the question of cancellation could not arise. Mr. Rizvi attempted to meet the argument by contending that a certificate had been duly signed but the petitioner had not been able to obtain a copy thereof. While there is nothing on record to substantiate Mr. Rizvi's assertion and it appears that the order dated 1-12-1998 was passed before signing the certificate. We are doubtful whether the respondent ho. l after having passed a clear order that a formal certificate be issued still retained the power to recall such order. Alternatively Mr. Ali Amjad argued that any authority performing quasi judicial functions had enhanced the power to recall ex pane orders passed by it, and indeed his view is supported -by authority. The crucial question, nevertheless, is whether the order dated 28-11-1998, can be treated as an ex parte order. There seems to be great force in Mr. Rizvi's last. contention that the respondent No.2 had no legal right to be heard at the stage of the petitioner's application for registration as a Trade Union and the law on this question has been authoritatively settled by the Honourable Supreme Court in Essa' Cement Industries Workers Union v. Registrar Trade Union, and it may be pertinent to quote the following observations of Memoon Kazi, J.:--
"It, therefore, follows that neither the employer nor a trade union already existing in the same establishment can claim locus standi to challenge the decision of the Registrar merely on the ground that no opportunity of hearing was provided to it or an objection raised by it before the Registrar was not considered before such decision. "
For the foregoing reason we would allow this petition and direct the respondent No. l to issue a certificate of registration to the petitioner as soon as the copy of this order reaches him.
Q.M.H./A-20/K Petition allowed.
2000 P L C 423
[Karachi High Court]
Before Muhammad Roshan Essani and S.A. Rabbani, JJ
KARIM BUX SANGRI and 4 others
Versus
CHAIRMAN, SINDH LABOUR APPELLATE TRIBUNAL, KARACHI
and 9 others
Constitutional Petition No. D-1235 of 1994, decided on 26th May, 1999.
Industrial Relations Ordinance (XXIII of 1969)--
----S. 25-A---Service Tribunals Act (LXX of 1973), S.2-A---Grievance petition--Maintainability---Petitioners who were "guards" in Pakistan Railways had filed grievance petition in which they had raised dispute relating to their seniority---Petitioners being employees of Railways, having been treated in Service of Pakistan under S.2-A of Service Tribunals Act, 1973, remedy for their grievance lay before Service Tribunal and not before Labour Court---Grievance petition filed by petitioner was not maintainable.
1999 SCMR 197 ref..
S. Ahmed Faruqi for Petitioners.
Nemo for Respondents Nos. l and 2.
Shabbir Ahmed Awan for Respondents Nos.3 to 10.
Date of hearing: 21st May, 1999.
JUDGMENT
S.A. RABBANI, J. ---Petitioners are Guards in Pakistan Railways promoted to the post from lower ranks. They have a dispute relating to their seniority vis-a-vis the direct recruits in the cadre. They claimed that by virtue of nature of their duties they are workmen as defined in Standing Orders Ordinance, 1968 and Industrial Relations Ordinance, 1969, and they filed Grievance Application No.5 of 1989 before Sindh Labour Court at Sukkur. The application was decided in their favour but on appeals by the respondents, the case was remanded to the Sindh Labour Court Sukkur by the Sindh Labour Appellate Tribunal. In the second round, both the application, as well as appeal, were dismissed by the Labour Court and the Tribunal. Petitioners, therefore, filed this petition for relief under Article 199 of the Constitution of Islamic Republic of Pakistan.
We have heard learned counsel appearing for the petitioners and respondents Nos.6, 8 to 10. The learned counsel for the petitioners tried to point out weaknesses and flaws in the impugned order of Sindh Labour Appellate Tribunal and contended that the Tribunal failed to appreciate the decisions of the Supreme Court.
Learned counsel for the respondents contended that it is a service matter and after the amendment, inserting section 2-A in Service Tribunal Act, 1973, made on 10-6-1996, the Service Tribunal has exclusive jurisdiction to adjudicate upon it. In support of his contention, he relied upon 1999 S C M R 197.
The following observation of the Supreme Court would be relevant and applicable in the case of present petitioners:
"A perusal of newly enacted section 2-A indicates that the service under any Authority, Corporation, Body or Organization established by or under a Federal law or which is owned or controlled by the -Federal Government or in which the Federal Government has a controlling share or interest has been declared to be in service of Pakistan. It has also been provided that every person holding a post under any such Authority, Corporation, Body or Organization shall be deemed to be in civil service for the purposes of this Act i.e. the Service Tribunal Act, 1973. In our view, it is not necessary for an employee working in any of the organizations covered by section 2-A that he should also come within the ambit of definition of ' civil servant' given in section 2(b) of the Act of 1973. The , employees of the various Authorities, Corporations etc. mentioned in section 2-A have been treated in the service of Pakistan for limited purpose for providing remedy by way of appeal to them against an order of which they may feel aggrieved."
In the same decision it has also been held that right of appeal being a procedural matter and section 2-A of the Service Tribunal Act, 1973 is applicable retrospectively. After these findings of the Supreme Court there remains no doubt about the fact that the remedy for the petitioners in this case lies before the Service Tribunal. Petition is, therefore, not maintainable ant is dismissed accordingly.
H.B.T./K-10/k Petition dismissed.
2000 P L C 430
[Karachi High Court]
Before Muhammad Roshan Essani and Muhammad Ashraf Leghari, JJ
Messrs PAKISTAN PAPERSACK CORPORATION LTD.
Versus
CHAIRMAN, SINDH LABOUR APPELLATE TRIBUNAL and 75 others
Constitutional Petition No. D-211 of 1990, decided on 8th September, 1999.
(a) Industrial Relations Ordinance (XXIII of 1969)---
----Ss. 25-A & 34---Joint grievance petition---Competency---Individual or collective grievance could be made through Collective Bargaining Agent under provisions of Ss.25-A & 34 of Industrial Relations Ordinance, 1969
Collective Bargaining Agent and employer could move application under S.34 of the Ordinance when controversy was about enforcement of right secured under settlement between Management and Collective Bargaining Agent---Collective Bargaining Agent was competent to make move to Labour Court even without waiting for formal application from affected workmanMatter being of grievance about enforcement of right secured by workmen under settlement, same was not the matter relating to individual affairs of any workman----Contention that Collective Bargaining Agent was not competent to move joint grievance application for workmen, was repelled.
1992 S C M R 36 and 1984 PLC 1359 ref.
(b) Industrial Relations Ordinance (XXIII of 1969)--
----Ss. 25-A & 34---Constitution of Pakistan (1973), Art.199--- Constitutional petition---Contention was that grievance petition was barred by time---Grievance petition in question was sent by post and was dispatched in time which was witnessed by postal receipt brought on record---Question of limitation being mixed question of fact and jaw, same could only be decided by Labour Court and Appellate Labour Tribunal and not by- High Court in exercise of its Constitutional jurisdiction.
(c) West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)
----S.O. 13---Constitution of Pakistan (1973), Art. 199----Constitutional petition---Retrenchment---Both Courts below had found that retrenchment of employees was mala fide and illegal---Conclusion of Courts below which was almost identical on facts which was not suffering from any illegality, irregularity or infirmity, could not be interfered with by High Court in exercise of Constitutional jurisdiction.
Qadir H. Sayeed for Petitioner.
M.L. Shahani for Respondents Nos.3 to 76.
Date of hearing: 27th August, 1999.
JUDGMENT
MUHAMMAD ASHRAF LEGHARI, J.---This Constitutional Petition is preferred by the petitioners against the orders dated 18-11-1987 and 28-2-1990 passed by Presiding Officer, Vth Sindh Labour Court Karachi and Chairman Sindh Labour Appellate Tribunal Karachi, respectively.
The respondents Nos.4 to 76 submitted their grievance petition in the Court of Vth Sindh Labour Court Karachi who had been leased to allow the same on 18-11-1987.
The petitioners filed an appeal before Sindh Labour Appellate Tribunal at Karachi, who vide order dated 28-2-1990, modified the order of Vth Sindh Labour Court Karachi to the extent that he disallowed relief to 9 petitioners who had not appeared for cross-examination but for remaining 29 workmen, who volunteered for cross-examination were granted relief and appeal against those workmen was dismissed. The petitioners against the said order of App7 Tribunal have filed this Constitutional petition and have prayed for the following relief:---
"(a) Declaring the said decision dated 28-2-1990 of respondent No.1 in Appeal NOXAR 414 of 1987 and the earlier order of the respondent No.2 dated 18-11-1987 as without lawful authority and of no legal effect.
(b) That the impugned order dated 28-2-1990 of the respondent No.1 be declared as null and void and without jurisdiction.
(c) Directing the respondent arid all their subordinates, servants, and agents to refrain from enforcing or acting upon the said impugned decision; and
(d) Making/giving such other or further declarations/directions as may seem to this Hon'ble Court just and proper in the circumstances of the case."
The facts giving rise to this petition are that the respondents Nos.4 to 76 were the workmen under the establishment of petitioners and on 4-12-1987, their services were terminated on the ground of retrenchment. The respondents challenged, their termination on the ground that they were removed mala fidely and against the terms and conditions of agreement dated 14-10-1986, arrived at between C.B.A. Union and the petitioners. According to which the workers were to gain benefits to the tune of nine lacs rupees and in order to frustrate the said benefits, the respondents were retrenched after service of grievance notice upon the petitioners and on their failure to get any relief, the respondents filed grievance application before the Labour Court through General Secretary of C.B.A. Union. The petitioners resisted the grievance petition mainly or the ground that it was not maintainable and that the retrenchment by them was bona fide. During the pendency of appeal the petitioners were allowed to produce their additional evidence but subsequently by order dated 11-1-1989 the case was sent back to Labour Court for recording the cross-examination of 47 workmen whose affidavits in evidence were filed. In rebuttal the additional evidence was produced by the petitioner as well. The petitioners filed affidavit of Muhammad Hayat General Manager of petitioners.
The record shows that out of 47 workmen only 29 respondents surrendered themselves for cross-examination whereas 19 respondents had failed to appear before the Labour Court for their cross-examination. The aforesaid 29 workers had denied their signatures on the documents showing the receipts of dues in full and final settlement by them. The L. T.I. marks of 26 respondents were obtained but 3 workers did not put their L.T.I. marks, The thumb-impressions were proposed to be sent for examination but the same could not be sent to hand writing expert because the petitioners failed to deposit the required fees for comparison. The 73 respondents had neither signed the grievance notice nor grievance petition but Syed Nasir Raza, the General Secretary of C.B.A. Union had signed the same on their behalf. They neither surrendered for examination nor were they cross-examined. Only 29 respondents were examined in Labour Court and General Secretary of C.B.A. had produced a letter for authority to the grievance petition purported to be an authority conferred upon him by the workmen. The names of those 29 respondents and serial numbers are (mentioned in the impugned order in para. 6 and need not to reproduce it. They had stated that they had not signed Annexure 'B' as the same does not bear their signatures.
It is contended by Mr. Qadir H. Sayeed, Advocate for petitioners that grievance notice was time barred and was not legal as it was given collectively through C.B.A. General Secretary and not in individual capacity of workmen. It is further argued that the two Courts below have acted illegally and have not appreciated the evidence in accordance with law and have misread the evidence and documents on record.
Mr. M. L. Shahani, Advocate for respondents has submitted that the retrenchment was mala fide in order to oust the workers from service and deprive them of benefits amounting to rupees nine lacs as per agreement between the' Management and C.B.A. on 14-6-1986. The factum of settlement and benefits there under are admitted. Mr. Shahani has further stated that the grievance notice was given under section 25-A of I.R:O.
According to him the application was filed by workers which is placed at Annexure 'D'. It is contained therein that their grievance be placed before the authorities.
From the record, it appears that the petitioners had a out-dated and old machinery at Korangi and they established another factory at Hub Chowki as the earlier was not productive. There is no evidence that petitioners wanted to close the previous one but in case, had it been so, the proper course under the law would have been to shift the senior workers to new factory and the retrenchment, if any, it would have been started from junior most workmen. Even the petitioners applied for closure of earlier factory in 1988, whereas retrenchment was in 1986. The evidence of General Secretary Muhammad Hayat reveals that Korangi factory was not going in loss and in 1985, they earned profit of Rs.14.98 millions. This fact indicates that at the time of retrenchment the factory was not going in loss.
Further the evidence of Muhammad-Hayat reveals that there was no settlement in between urtion and Management but it was only on 14-10-1986, when agreement referred above was executed in between C.B.A. Union and Management, by which the workmen had to receive benefits of Rs. nine lacs.
During that period the record shows that petitioners had booked orders of supply of material of sixty millions to State Cement from July 1986 to December 1987.
For the aforesaid reasons, it appears that retrenchment was mala fide and not for the purpose of genuine re-organization.
The contention by the learned counsel that C.B.A. was not competent to move joint grievance application for workmen is untenable as sections 25-A and 34 of I.R.O. are available for the purposes to make an individual grievance or collective through C.B.A. Move under section 34 of I.R.O. can be made by C.B.A. and any employer when the controversy is about the enforcement of the right secured under settlement between Management and C.B.A., the latter is perfectly competent to make move to the labour Court, even, without waiting for the formal application from the affected workmen. Present case is definitely of grievance about enforcement of the right secured by workmen under the settlement. This is not the matter relating to individual affair of any workman. The reference can be made to the cases of 1992 SCMR 36 and 1984 PLC 1359.
The next point urged is that the grievance petition was barred by time has also no force because it was through post and it was dispatched in time. Such postal receipt is brought on record. Even otherwise, the question of limitation, in the circumstances of this case is mixed one and it could only be decided by the Labour Court and Appellate Tribunal and not by this Court in exercise of Constitutional jurisdiction
The conclusion of two Courts below is almost identical on facts. Both the Courts have held that the retrenchment of workmen was mala fide and illegal. Due to aforesaid reasons we have come to the conclusion that the impugned order does not suffer from any illegality, irregularity or infirmity and needs no interference. Consequently the petition stand dismissed with no orders as to cost.
H.B.T./P-5/K Petition dismissed.
2000 P L C 468
[Karachi High Court]
Before Dr. Ghous Muhammad and Mushir Alam, JJ
Messrs PEOPLE FISHERIES (PVT.) LIMITED through Managing Director
versus
SINDH LABOUR APPELLATE TRIBUNAL, KARACHI and 3 others
Constitutional Petition No. D-480 of 1998, heard on 4th June, 1999.
Industrial Relations Ordinance (XXIII of 1969)---
----Ss.25-A & 37(3)---Qanun-e-Shahadat (10 of 1984), Art.163---Oaths Act (X of 1873), Ss.7 & 8---Constitutional _ petition---Grievance petition--Dismissal of the petition on special oath---Employee in his grievance petition had sought reinstatement in service with back benefits---Employee had himself offered that he would give-up his grievance petition if employer denied the fact in issue by special oath---Employer having taken oath on offer of employee, grievance petition was dismissed by Labour Court accordingly, but Labour Appellate Tribunal set aside order of Labour Court and remanded case to be decided on merits---Validity---Once employee had himself agreed to mode of decision before Labour Court, decision of Labour Court was unquestionable and employee was estopped to challenge the same before Labour Appellate Tribunal---Once offer made by a party was accepted by another, then party making an offer could not be allowed to resile from the offer as same amounted to binding contract---Labour Court, in circumstances, was justified to decide matter on oath and Labour Appellate Tribunal was not right to reverse decision of Labour Court---Order of Labour Appellate Tribunal, was set aside by High Court in Constitutional petition.
1981 SCMR 162 and 1974 SCMR 224 ref.
Farooq Hashim for Petitioner.
Asstt. A.-G. for Respondent.
Date of hearing: 4th June, 1999.
JUDGMENT
MUSHIR ALAM, J.---Through instant petition the petitioner has impugned decision of the Sindh Labour Appellate Tribunal (hereinafter referred to as 'SLAT') in Appeal No. KAR 240 of 1997 dated 4-3-1998 whereby, appeal filed by respondent No.4 Duria Aman, was allowed and case was remanded to the Labour Court No.II for proceeding on merits.
Brief facts leading to this petition are that the respondent No.4 filed a grievance petition under section 25-A of I.R.O. 1969, against the petitioner seeking reinstatement in service with back benefits.
Before the learned Labour Court, the respondent No.4 besides himself examined two witnesses in support of his case and closed his side on 18-9-1989- thereafter the petitioner filed the affidavits of three witnesses in rebuttal. But the re8pondent No.4 instead of cross-examining the petitioner's witnesses, sought adjournment on various pretexts and ultimately after his side was closed, filed an application dated 29-7-1997 before the learned Labour Court to decide the entire matter on special oath. Application reads as follows:
"It is prayed that this Honourable Court may be pleased to administer the special oath to the above respondent as under:
'Was Mr. Abdul Karim Mongrio ever employer as Accountant in the respondent establishment.'
In view of the above I give up my grievance petition if the answer is in the negative.
In the interest of justice, above prayer may kindly be granted."
"Applicant's representative Mr. A.D. Cruze, respondents' M.D. Syed Muhammad Iftikhar Zaidi and his counsel present. Oath administered on Holy Qur'an and he stated on oath that Abdul Karim Magrani was our employee but he was not Accountant in respondent Company.
Mr. A.D. Cruze earlier submitted application that applicant was administered poison to prevent his attention in Court. M.C. was submitted on last date and copy annexed from the Court is proceeding with the matter hence he withdraws his power and asks the Court to send notice to the applicant.
Application for adjournment moved on 22-9-1997 was rejected by my order of that day and there was no mention of any poison in the said application and M.C. of which copy if again produced today these are the two M.Cs. of 19-9-1997 i.e. one produced on 20-9-1997 with adjournment application which was allowed and the one produced with adjournment application of 22-9-1997 and again today. Both certificates are different. As regards notice to the applicant withdrawal of Vakalatnama. The law is to the contrary that notice is to be served by the counsel himself and not by the Court and there is no provision in the LR.O.
In the result the main petition under section 25-A; I.R.O. stands dismissed."
It appears that respondent No.4 being aggrieved by above referred order filed appeal before the learned Sindh Labour Appellate Tribunal.
The learned Sindh Labour Appellate Tribunal allowed the appeal and remanded the case to the Labour Court No.II, the learned Labour Appellate Tribunal held:
"After hearing both the learned counsel. I have come to the conclusion that there was no provision that party should be compelled to take oath and. if he declines to do so, adverse order be passed against him.
Under the circumstances the present appeal is allowed end the impugned order dated 30-9-1997 passed by the learned Lower Court is hereby set aside. The matter is remanded to the Labour Court No.11 for proceeding on merits."
The record shows that the respondent No.4 was served through publication effected in daily Jang dated 12-12-1998 but he chose to remain absent and did not contest the petition.
Mr. Farooq Hashim, learned counsel for the petitioner argued that the petitioner was administered special oath on the offer in writing made by the respondent No.4 to the Labour Court and matter was adjourned to 30-9-1997, 5-9-1997, 30-8-1997, 4-9-1997, 20-9-1997, 22-9-1997 and 30-9-1997 and on each date the respondent No.4, on one or the other pretext, chose to remain absent under the compelling circumstances the trial Court was justified to administer special oath to the petitioner in terms offered by the respondent No.4 in writing and decided the case vide order dated 3-9-1997, reproduced above.
It was further urged that once the respondent Na.4 offered oath to the petitioner which was accepted and oath was taken on Holy Qur'an and matter was decided accordingly. The learned SLAT erred both in law and facts reversing the orders of trial Court.
We have heard the learned counsel for the petitioner, respondent No.4 though served as per record through publication in daily Jang dated 12-12-1998 but chose to remain absent. Mr. Ainuddin Khan, learned Additional Advocate-General on Court notice Perused the impugned order and record.:
From the facts given above, it can be seen that the respondent No.4 voluntarily made an offer to the petitioner to take special oath which offer was readily accepted. Learned SLAT held that "there was no provision that party should be compelled to take oath and if he declines to do so adverse order be passed against him. Such finding cannot be sustained, firstly the respondent No.4 had voluntarily given in writing that if the petitioner answers the questions posed by him in negative, he would give up his grievance petition. It was on the basis of the oath taken by the petitioner who gave answer in negative, the grievance petition was dismissed vide order reproduced in para. 4 above, by the learned labour Court. Secondly, that Oath Act, 1873 does not prescribe any particular form or procedure for deciding the matter on oath against section 163 of the Qanoon-e-Shahadat Order, 1984. Once an offer made by a party is accepted by the other, then the party making an offer cannot be allowed to resile from the offer as ii amounts to binding contract and the trial Court was justified under the circumstance to decide the matter on oath, view find support from case cited as Atiquallh v, Kafayatullah (1981 SCMR 162) and Salim Ahmad v. Khusbi Muhammad (1974 SCMR 224).
Once the respondent No.4 himself agreed to a triode of decision before the trial Court, the decision by the trial Court was unquestionable and the respondent No.4 was estopped to challenge the same before the learned SLAT and the learned Appellate Tribunal erred in reverting the decision of learned trial Court, from the order of the learned Appellate Tribunal referred to in para. 6 above, it seems that learned Appellant Tribunal misdirected itself considering that the matter was to be decided in accordance with Article 163 of the Qanoon-e-Shahadat Order 1984, which lays down certain procedure, as against Oath Act 1873. Both set of provisions have their own sphere of operation and cannot be held to be derogatory or overlapping each other.
From the contents of application made by the respondent No.4 to decide the matter on special oath, it cannot be said that this was under Article 163 of the Qanoon-e-Shahadat Order 1984 which provides claimant to first take oath in support of his claim and then call upon the defendant to deny the claim on oath. In the instant case, it was the respondent No.4 who offered to, give up his grievance petition provided the petitioner answers a question in negative, which offer was accepted by the petitioner and took oath accordingly, and the decision was given by the learned trial Court Under the circumstances, it was not incumbent on the trial Court to first call upon the respondent No.4 to take oath as the matter was decided in accordance with the Oath Act, 1873 and not under Article 163 of Qanoon-eShahadat Order, 1984; guided by the principle laid down in Saleem Ahmad Case by the Hon'ble Supreme Court that offer made by a party and accepted by the other is in the nature of binding contract and one of the contracting party could not be allowed to back out of it unless the contract was void or had been frustrated, admittedly this was not the case of the respondent No.4 before the Appellate Tribunal therefore the learned Tribunal was not justified to upset the decision of the learned Labour Court.
Consequently, the petition was allowed by us by short order and above are the reasons for the same, since the petition was allowed there was no necessity to pass any order in the listed application which also stands disposed of.
H.B.T./P-10/K Petition allowed.
2000 P L C 476
[Karachi High Court]
Before Abdul Hameed Dogar and Muhammad Ashraf Leghari; JJ
SABIR MEHMUD BHATTI
versus
CHAIRMAN, SINDH LABOUR APPELLATE TRIBUNAL
Constitutional Petition No. 1228 of 1997; decided on 8th February, 2000.
(a) Industrial Relations Ordinance (XXHI of 1969)---
----S. 2(xxviii)---"Workman"---Determination---Proof---If functions performed by employee were of supervisory nature, he would be excluded from the definition of "workman" ---Initial burden for proving fact that employee was "workman" would heavily lie upon employee who by producing oral as well as documentary evidence would prove that he was a workman and was performing duties of clerical and manual nature.
Security Paper Limited. Sindh Labour Appellate Tribunal and another PLD 1988 SC 180; Abdul Razaq v. Messrs Ishan Sons Limited and others 1992 SCMR 505; Messrs Pearl Continental Hotel v. Syed Zamirul Haq and others Civil Petition No. 478-K of 1998; General Manager Mr. Irshad B. Anjum v. Akber Ali Khan and others Constitutional Petition No.D-103-h of 1998; Managing Director, Shahi Bottlers (Pvt.) Limited v. Punjab Labour Tribunal, Lahore and 2 others 1993 SCMR 488; Karachi Shipyard & Engineering Works Limited v. Abdul Ghaffar and 2 others 1993 SCMR 511; Muhammad Sadiq v. Punjab Laboux Court No. 1, Lahore and another PLD 1988 SC 633 and Ganga R. Madhani v. Standard Bank Ltd and others 1985 SCMR 1511 ref.
(b) Industrial Relations Ordinance (XXIII of 1969)---
----Ss. 2(xxviii) & 25-A---Constitution of Pakistan (1973), Art: -199--"Workman"---Determination---Grievance petition---Competency---Evidence on record had fully proved that work arid powers conferred on and functions thereby required to be performed by employee were neither manual nor clerical, but he was holding a supervisory job---Labour Appellate Tribunal, in circumstances, had rightly held that petitioner did not fall within definition of "workman" and his grievance petition filed under S.25-A of Industrial Relations Ordinance, was not competent.
Managing Director, Shahi Bottlers (Pvt.) Limited v. Punjab Labour Tribunal, Lahore and 2 others 1993 SCMR 488 and Muhammad Sadiq v. Punjab Labour Court No. 1, Lahore and another PLD 1988 SC 633 ref.
(c) Industrial Relations Ordinance (XXIII of 1969)---
----S. 2(xxviii)---"Workman"---Determination---Real test for determining whether a person fell within ambit of definition of "workman" would depend on nature of duties performed by the employee at the time of termination.
Muhammad Tasnim for Petitioner.
Muhammad Humayun for Respondent. No.2
Date of hearing: 8th February, 2000.
JUDGMENT
MUHAMMAD ASHRAF LEGHARI, J.---This petition directed against the judgment of Chairman, Sindh Labour Appellate Tribunal dated 19-5-1997, whereby the order, dated 6th March, 1997 passed by Second Sindh Labour Court Karachi was reversed and thereby the Appellate Tribunal held that the petitioner Sabir Mehmood Bhatti was not working with the respondent No.2 as workman within the meaning of the term as defined in the Industrial Relations Ordinance, 1969.
The petitioner Sabir Mehmud was employed with the respondent No.2 as Typist-cum-Store-Keeper in Pearl Continental Hotel Club Road, Karachi. He was thereafter promoted and posted as Inventory Controller in a managerial category. He was second time promoted and subsequently designated as Assistant Purchasing Manager and was drawing salary of Rs.7,500 per month. Thereafter, his services were terminated by letter dated 2-2-1992 by the respondent No.2 on the ground that he was found to be unfit and his service is no more required. He was allowed three months salary in lieu of notice before termination. The petitioner Sabir Mehmud then served the grievance notice to the management and filed a petition under section 25-A of the Industrial Relations Ordinance before the Labour Court. The Labour Court found that the petitioner was the workman and his petition was as such maintainable. The Labour Court held that since no reasons were given for termination by the respondent No.2 and the same was declared to be illegal under the provisions of Standing Order 12. The petitioner was, therefore, reinstated with back benefits.
The respondent No.3 General Manager, Pearl Continental Hotel impugned the said order of Labour Court in appeal before the Sindh Labour Appellate Tribunal and the appellate Tribunal vide its decision dated 19-5-1997 held that the petitioner was not a workman and that he was holding job in the Supervisory and managerial category, therefore, the grievance petition under section 25-A of Industrial Relations Ordinance was not maintainable.
It is contended by Mr. Tasneem learned counsel for the petitioner that the petitioner is a workman. He argued that the salary and designation are not the criteria for deciding employee as workman. He stated 'that the petitioner was the General Secretary of a Union of Hotel Intercontinental of respondent No.2. He was victimized due to the Union activities. It is pleaded that the petitioner was holding a job throughout his service as workman/worker right from 1968 till the termination of his service i.e. 2-2-1992. The learned Counsel argued that the finding of learned Labour Appellate Tribunal is contrary to law and is not in" conformity to the pronouncement of the superior Courts. Learned counsel pleaded that the impugned judgment is sketchy and devoid of material reasonings. The learned counsel stated that the petitioner was not doing the job of supervisory managerial nature but his job was manual and clerical. He argued that the learned Labour Appellate Tribunal has misread the evidence on record and has come to an erroneous conclusion. He has referred to the cases Security Paper Limited. Sindh Labour Appellate Tribunal and another (PLD 1988 SC page 180), Abdul Razaq v. Messre Ihsan sons Limited and 2 others (1992 SCMR 505). Unreported case M/s Pearl Continental Hotel v. Syed Zamirul Haq and others Civil Petition No: 478-K of 1998 and another Unreported case M/s. Pearl Continental Hotel, Club Road, Karachi through its General Manager Mr. Irshad B. Anjum v. Akber Ali Khan and others, Constitution Petition No.D-103-K of 1998.
Mr. Muhammad Humayun learned counsel for the respondent No.2 stated that the petitioner was assigned supervisory duties and was not working as workman. He stated that the learned Labour Appellate Tribunal had rightly set aside the order of Labour Court, whereby the petitioner was reinstated. The learned counsel argued that the Labour Court had no power to entertain grievance petition under section 25-A, as the petitioner was not performing clerical or manual duties as claimed by him. He has drawn our attention to Exh.A/4 which is letter dated 17-9-1988 by the petitioner showing that his leave was cancelled and the petitioner was called back to his duties to prepare the capital budget and Annual Central Purchase Requirements. Learned counsel has argued that Exh.R/2 displays the jobs of description of the petitioner which reveals that the, petitioner was not working as a workman. The learned counsel has made a reference to the case of Managing Director, Shahi Bottlers (Pvt) Limited v. Punjab Labour Tribunal Lahore and '2 others (1993 SCMR page 488). Karachi Shipyard & Engineering Works Limited v. Abdul Ghaffar and 2 others (1993 SCMR 511), Muhammad Sadiq v. Punjab Labour Court No. 1, Lahore and another (PLD 1988 Supreme Court 633), Ganga R. Madhani v. Standard Bank Ltd: and others (1985 SCMR 1511).
The numerous pronouncement of superior Courts have been produced before us wherein the principle is well-established that if the functions performed by the employees were of supervisory nature he would be excluded from the definition of a workman. -The initial burden for proving the fact that the employee was workman heavily lie upon the employee by producing documentary as well as oral evidence in support of his contention, as such, it was for the petitioner to prove through documentary or oral evidence in support of his contention that he was workman and was performing duties of clerical and manual nature. In the present case the duties entrusted to the petitioner appear to be of supervisory nature as indicated from Exhs.A/l, A/2, A/3, A/4 and R/2. The learned Labour Appellate Tribunal on the basis of these documents had rightly held that the petitioner did not fall within the definition of workman and consequently his grievance petition under section 25-A of Industrial Relations Ordinance, 1969 was not complement. The evidence produced before the Labour Court proved that the work and powers conferred on and functions thereby required to be performed by the petitioner were neither manual nor clerical but he was holding supervisory job and his grievance petition could not be maintained. Reference is made to a case of Managing Director, Shahi Bottlers (Pvt) I Limited v. Punjab Labour Appellate Tribunal, Lahore and 2 others (supra), wherein it is held that:---
"Coming back to the burden of proof, it was incumbent upon respondent No.3 to have produced documentary or oral evidence in support of his contentions that he was workman and performed duties of clerical and manual nature. He could have produced witnesses in support of his contention. Evidence produced before the Labour Court was insufficient and unsatisfactory and on the basis of which finding given by Labour Court is proper and sustainable under the law. "
Exh. No.A/2, is the letter which in its very beginning contained as under:--,-
"Following Supervisory Staff have been allowed to have dry clearing of one suit in a week and laundry of three shirts and three paints only in a week-."
The name of petitioner appears in the list at Serial No.5 of the aforesaid supervisory officers. Although, the said letter pertains to a period when still the petitioner was working as Inventory Controller. , The petitioner applied for his promotion to the post of Assistant Purchase Manager. This application is placed on record as Exh. 4/1 addressed to the General Manager, Pearl Continental Hotel, wherein he has urged that he has been working for last 22 years and for over 15 years as Inventory Controller. He further prayed in the said application that by virtue of his job, he was fully conversant with the purchasing procedure, price trends and the market. The promotion required such type of duties which were ancillary to his main duty and he was conversant with purchasing procedure. This type of Working involved exercise of discretion.
The job description Exh.R/2 is produced on record which reveals the duties and responsibilities of petition. The plea that Assistant Purchase Manager was alone and oneself and nobody was working under him is again imaginary as what for the man was appointed as Assistant Manager and was drawing salary of Rs.7,500. The simple meaning of word Manager implies and signify to be a person who deals with administration and with the design and marketing. He was not working as manager of any person. No prudent mind can believe the Assistant Manager holding such a job drawing such a huge salary had no power of hire or fire in such a large establishment like Pearl Continental Hotel, Karachi. Yet another factor for deciding this vital point which needs adjudication is to be seen in the light of contents of para. 12 of the affidavit filed by petitioner in the Labour Court, which reads as under:--
Even on so-called promotion and fake designation my nature of job was not changed and I had to maintain work mainly and substantially the same as the store department alongwith my transfer and even I have no hire and fire powers and I had to work strictly under the supervision and control of purchasing manager. "
The above quoted passage is in conflict with application Exh.4/1 herein the petitioner made a request for promotion as being very experienced man for performing certain independent and supervisory type of duties.
The real test for determining whether a person falls within the ambit of definition of 'workman' depends on the nature of the duties performed by him at the time of his termination. The evidence adduced and the documents produced indicated that the duties performed by the petitioner were of supervisory character and not that of worker. The petitioner did not fall in the definition of 'workman' in terms of section 2(xxviii) of the Industrial Relations Ordinance, 1969 and his grievance petition could not be maintained. The reference is made to Muhammad Sadiq Punab Labour Court No. 1, Lahore and another (supra) PLD 1988 Supreme Court 633).
The case law referred to by learned counsel for the petitioner has no relevance and bearing with facts and circumstances of the case in hand.
For the facts and reasons stated above, we are of the view that the nature/job of petitioner was not of manual and clerical but it was supervisory involving direct control and independent application of mind and as such he was not a workman as it proved from the evidence adduced by the parties.
The decision given by the Labour Appellate Tribunal is just and proper and does not warrant interference in this writ jurisdiction. Consequently, this Constitution Petition No.D-1228 of 1997 is hereby dismissed, but their will be no order as to costs.
H.B.T.S-42/K Petition dismissed.
2000 P L C 583
[Karachi High Court]
Before Ghulam Nabi Soomro and S.A. Rabbani, JJ
UMAR ZAIB
versus
Messrs PAKISTAN BEVERAGES
Constitutional Petition No.87 of 2000, decided on 16th March, 2000.
Industrial Relations Ordinance (XXIII of 1969)---
----S.38(8)---Constitution of Pakistan (1973), Art. 199---Constitutiona petition---Dismissal from Service---Reinstatement---Suspension of order-Jurisdiction of Appellate Tribunal---Petitioner/employee who was dismisses from service, was ordered to be re-instated in service by Labour Court with back benefits---Labour Appellate Tribunal on appeal, suspended operation of order of Labour Court on application of employer---Maintainability of order of Labour Appellate Tribunal---Order of Labour Appellate Tribunal which in fact, was stay order, could be passed by Labour Appellate Tribunal only within a period of twenty days from date of filing of appeal as provided by S.38(8) of Industrial Relations Ordinance, 1969---Order passed by Labour Appellate Tribunal after three months from filing appeal before it, was without jurisdiction in view of proviso to S. 38(8) of Industrial Relations Ordinance, 1969, and being of no legal effect, could no sustain.
Shahjehan v. Syed Amjad Ali 2001) SCMR 88 ref.
Ashraf Hussain Rizvi for Petitioner.
Nasir Mehmood for Respondent No. 1.
Nemo for Respondent No.2.
Date of hearing: 10th March, 2000.
ORDER
S.A. RABBANI, J.----Recaptulation of the facts of case of the parties is not necessary. For the present purpose, it is sufficient to mention that the petitioner was an employee if respondent No. l and obtained an order for his reinstatement in service with back benefits from the Labour Court. In the appeal from that order, Sindh Labour Appellate Tribunal, on an application of respondent No. l who filed the appeal, suspended operation of the order of the Labour Court subject to bank guarantee by the appellant. This order of the Appellate Tribunal has been called in question through the present petition. However, in addition to a declaration about this order, the petitioner further seeks setting aside of a subsequent order. The petitioner has also prayed for a verdict that he continue to remain in the employment of respondent No. l without any break and is entitled to all consequential benefits, as directed by the Labour Court.
Mr. Ashraf Hussain Rizvi, learned counsel for the petitioner, contended that the impugned order, passed on 13-8-1999, is without jurisdiction in view of the proviso to section 38(8) of the Industrial Relations Ordinance, 1969.
Mr. Nasir Mehmood appearing on behalf of respondent No. l viz. the employer, contended that the impugned order is not covered by section 38(8) of Industrial Relations Ordinance because it is not an order staying the operation of the order of the Labour Court but, as it has been worded, the operation of the impugned order has been kept in abeyance.
The argument of the learned counsel for the respondent No.1 is without force because keeping in abeyance means nothing but stay of the operation and, in case it is not so, an order to keep the order of the Labour Court in abeyance, as such, would not be covered by the powers given to the Appellate Tribunal under section 38 of the Ordinance and, therefore, in that case, the order of the Appellate Tribunal would be without jurisdiction and beyond the powers of the Tribunal.
The order is practically for staying the operation of the order of the Labour Court and such an order can be passed only within a period of twenty days from the date of filing of the appeal. This is logical inference emerging from section 38(8) of the Ordinance, which provides that if the Tribunal makes an order staying the operation of the order of the Labour Court, it shall decide such appeal within twenty days of its being preferred. Thus, the period during which such a stay order can be made and remain alive is twenty days starting from the date of filing of appeal. In the present case, the appeal was filed in May, 1999 and the impugned order was passed on 13-8-1999 i.e. beyond the period of twenty days after the appeal was preferred. The proviso to section 38(8) of the Ordinance provides that a stay order passed by the Appellate Tribunal should stand vacated on the expiration of twenty days if the appeared is not decided within that period. Thus, by virtue of the proviso the impugned order already stands vacated. Despite this fact, the impugned order was without jurisdiction because the powers of the Labour Appellate Tribunal to pass an order staying operation of order of the Labour Court can only, be exercised within twenty days from the day the appeal is preferred. This is the import of section 38(8) of the Ordinance that can be gathered by a plain. reading of the provision.
The prayer of the petitioner for the relief about his continuance in employment is misconceived because this is a petition filed under Article 199 of the Constitution and not act appeal. It has been held in the case of Shahjehan v. Syed Amjad Ali (2000 SCMR 88) that when the High Court exercises Constitutional jurisdiction, its powers are not analogous to those of Appellate Court and although it can strike down an order, passed by a subordinate Court or a Tribunal on the; ground of being without lawful authority and of no legal effect, it cannot substitute its own judgment for that of the subordinate Court or the Tribunal.
Consequently, the Petition is allowed to the extent of declaration that the impugned order, dated 13-8-1999 passed by the Sindh Labour Appellate Tribunal, Karachi in Appeal No. 102 of 1999, was without jurisdiction and of no legal effect. It stands disposed of accordingly.
H.B.T./U-2/K Petition allowed:
2000 P L C 661
[Karachi High Court]
Before Nazim Hussain Siddiqui, C. J. and Ghulam Rabbani, J
SALAHUDDIN and 42 others
versus
SINDH LABOUR APPELLATE TRIBUNAL and 2 others
Constitutional Petition No. D-1072 of 1996, decided on 19th November, 1999.
Industrial Relations Ordinance (XXIII of 1969)---
----S. 25-A---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.11-A --- Constitution of Pakistan (1973), Art. 199--Constitutional petition---Closure of establishment---Employer's business mostly depended upon demand from U.S.S.R. and after its disintegration, business of employer, having adversely affected, employer had to close down its factory---Employees whose services were terminated due to the said development, could not establish mala fide on part of employer---Seeking permission from Court to close the establishment no doubt was mandatory as its object was to safeguard the interest of employees and also to ensure that running establishments were not closed down without justification but business of the employer was closed due to changed circumstances at international level---Employer in absence of any mala fide was justified to close down his factory in circumstances.
South British Insurance Employees v. The Sindh Labour Court No.4 and others 1975 SCMR 49 ref.
Faiz Ghanghro for Petitioners.
Choudhry Rasheed Ahmed for Respondent No.3.
Date of hearing: 18th November, 1999.
JUDGMENT
NAZIM HUSSAIN SIDDIQUI, C.J.---The petitioners have impugned the order dated 29-11-1995 of Presiding Officer, II Sindh Labour Court, Karachi and the order dated 4-2-1996 of Sindh Labour Appellate Tribunal, whereby learned Tribunal maintained the order of Labour Court, dismissing the applications filed under Section 25-A of the I.R.O., 1969. The facts relevant for decision of this petition are as follows:
The petitioners were the employees of respondent No.3, Mercury Garment Industries and on 28-8-1988 the services of 226 employees were terminated by said respondent on the ground of re-organization/economic reasons. Only 26 employees of Management Staff were retained. The petitioners challenged their termination before the Labour Court, but without success. Thereafter, the matter was taken up to the Labour Appellate Tribunal, which by order dated 4-2-1996, dismissed the appeal preferred against the order of Labour Court.
While dismissing the appeal, the learned Tribunal relied upon the case of South British Insurance Employees v. The Sindh Labour Court No.4 and others, 1975 SCMR 49. The respondent No.3 had filed Application No.1 of 1992 under Standing Order 11-A of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 for grant of permission to close down the establishment, which was, allowed by IVth Sindh. Labour Court vide order dated 23-1-1996.
The only point for consideration is that, whether Standing Order 11-A was rightly interpreted by the learned Tribunal. Standing Order 11-A is as follows:
"II-A. Closure of establishment.--Notwithstanding anything contained in Standing Order 11, no employer shall terminate the employment of more than 50 per cent. of the workmen or close down the whole of the establishment without prior permission of the Labour Court in this behalf, except in the event of fire, catastrophe, stoppage of power supply, epidemics or civil commotion."
In the case of South British Insurance Employees' Union, the Hob'ble Supreme Court, about Standing Order II-A observed as follows:
"It will be seen that the Standing Order does not stipulate that the application to the Labour Court for permission to close down should be the first step in the process. All that it prescribes is that no employer shall close down the whole of its establishment without prior permission of the Labour Court in this behalf. Thus the Labour Court's permission might indeed be. the last step in the process of closing down, or an application in this behalf may be made by the employer simultaneously with any other step that he may have to take to wind up his business and close down his establishment. The Standing Order does not appear to us to spell out any sequence in which the various steps for closing down an establishment have to be taken by an employer, and, therefore, no question arises of the respondent having committed any illegality in this behalf."
Mr. Faiz Ghanghro, learned counsel for the petitioners, states that Standing Order 11-A was amended by the Labour Laws (Amendment) Act, XI of 1976, whereby the following was added in the said order:
"terminate the employment of more than 50 per cent of the workmen."
Learned counsel argued that since the amendment was introduced in the year 1976, therefore, the aforesaid reported case viz. South British Insurance Employees' Union is not attracted to the circumstances of this case. According to him; termination of 226 employees on 28-8-1998 was illegal and in violation of Standing Order 11-A.
As against above, Mr. Choudhry Rasheed Ahmed, learned counsel for respondent No-3 contends that irrespective of the aforesaid amendment, the principle laid down by the Supreme Court in the said case is applicable and that ratio of said case is that no employer shall close down the whole establishment without prior permission of Labour Court and that Court Permission might indeed be the last. step in the process of closing down or that an application in this behalf may be made by the employer simultaneously with any other step. In the instant case, as observed by learned Tribunal, the respondent's business mostly depended upon demand from USSR and after its disintegration, the business was adversely affected as such, the garment factory was closed down. The Tribunal has also observed that, under such circumstances, for the purpose of re-organization, the services of the workers could be terminated under Order 12 of the Standing Orders Ordinance on one month wages in lieu of notice and other dues. Learned Tribunal has also observed that mala fide on the part of respondent No.3 was not established.
It is true that application for closing down the establishment should have been presented within a reasonable time and in this particular case, services were terminated on 28-8-1988 and the application under Standing Order 11-A was filed in the year 1992, the fact, however, remains that the order dated 23-1-1996 of Labour Court was never challenged. It therefore, attained finality in the year 1996.
Seeking permission from Court as above is mandatory. Its object is primarily to saveguard the interest of workmen and also to ensure that without justification running establishments are not closed down. In the instant case due to changed circumstances at in of the respondent No.3 abruptly relapsed as such the establishment was closed down. Since, there was no mala fide and the order dated 23-1-1996 was not impugned, the petition is not maintainable.
On 18-11-1999, after hearing learned counsel for the parties, we had dismissed the petition in limine and these are reasons for the same.
H.B.T./S-53/K ??????????????????????????????????????????????????????????????????????????????????? Petition dismissed.
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2000 P L C 116
[Labour Appellate Tribunal N.W.F.P.]
Before Justice Mian Muhammad Ajmal, Chairman
ASTAM KHAN, EX-ASSISTANT MUNSHI, FDC TIMBER MARKET, GOHARABAD, ABBOTTABAD
Versus
FOREST DEPARTMENT CORPORATION
through General Manager (Operation) Office and another
Appeal No.22 of 1998, decided on 19th March, 1999.
Industrial Relations Ordinance (XXIII of 1969)--- .
----Ss. 2(viii) & 25-A(i)---Service of grievance notice on employer--Validity ---Employer was a person who employed workman in establishment under a contract of employment----Grievance notice had to be served upon said employer and not on any higher or Appellate Authority-- -Employee was appointed by Deputy Manager of employer Corporation and also was removed from service by order passed by said Deputy Manager, but grievance notice was served by employee on Genera-1 Manager who was next higher Authority of the establishment---Grievance notice having been served in violation of mandatory provisions of S. 25-A(1) of Industrial Relations Ordinance, 1969, grievance petition filed by employee was rightly dismissed by Labour Court being not legally maintainable.
1984 PLC 89 ref.
Syed Ghazi Shah for Appellant.
Abdul Shakoor for Respondents.
2000 P L C 119
[Labour Appellate Tribunal N.-W.F.P.]
Before Justice Mian Muhammad Ajmal, Chairman
Messrs SERVIER RESEARCH AND PHARMACEUTICALS (PAKISTAN) PVT. LTD. and another
Versus
MUNIR AHMAD BHATTI and another
Appeal No.74 with Civil Miscellaneous No.28 of 1996, decided on 23rd November, 1998.
(a) Industrial Relations Ordinance (XXIII of 1969)---
---Ss. 2(xxviii) & 25-A---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(i)---Workman--Determination---Grievance petition---Maintainability---Grievance petition filed by employee against termination of his services was resisted by employer contending that employee being a "Medical Information Officer" was not a "workman" and could not seek remedy before Labour Court by filing grievance petition against his termination---Employee was performing manual and clerical function by supplying samples of medicines, literature and other information regarding products of employer Company to Registered Medical Practitioners to promote sales of products of employer Company---Employee had also to perform and convey daily progress report and tour programme to employer Company---Employee had no power to hire and fire nor he was supervising the work and conduct of other employees and he was also not employed in mainly managerial, administrative or supervisory capacity---Mere designation was not sufficient to exclude person from definition of a workman---Designation was neither essential nor fundamental factor for determination of the status of an employee as "workman"---Only criterion to determine status of a workman was the nature of duties assigned to him---Employee, in circumstances, was a workman and his grievance petition was maintainable.
(b) Industrial Relations Ordinance (XXIII of 1969)---
----S. 25-A---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O. 15(3)(4)---Termination of service on ground of misconduct---Re-instatement---Services of employee were terminated on ground of misconduct; but neither any charge-sheet was served on employee within a month of alleged misconduct nor any enquiry was constituted against him as provided under S.O. 15(4), West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968---Mandatory provisions of law having not been complied with by employer in terminating services of employee, order of termination was set aside and employee was ordered to be reinstated in service.
(c) Industrial Relations Ordinance (XXIII of 1969)---
----Ss. 25-A & 51---Re-instatement in service---Back benefits--Entitlement---Order terminating services of employee having been set aside by Labour Court on technical ground, mere technical propriety would not entitle employee to be paid back wages and benefits because employee had himself failed to comply with lawful order of transfer by not joining duty at place where he was transferred which had constituted indiscipline on his part.
Umar Hayat for Appellants. Ijaz Anwar for Respondents.
2000 P L C 131
[Labour Appellate Tribunal N.W.F.P.]
Before Justice Mian Muhammad Ajmal, Chairman
Messrs PAK CHINA FERTILIZERS LIMITED through Managing Director
Versus
SHAH QAISAR FAROOQ
Appeal No.80 of 1998, decided on 5th. March, 1999.
Industrial Relations Ordinance (XXIU of 1969)--
----Ss. 2(xxviii) & 51---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.1(b)--Permanent workman---Application filed by employee under S.51, Industrial Relations Ordinance, 1969 for recovery of balance amount on account of Golden Hand Shake Scheme, was resisted by employer alleging that employee being employed on contract basis was not a workman and could not invoke jurisdiction of Labour Court---Employee though initially was employed on contract basis, but his services were extended from time to tine and later on he was appointed on regular basis and was confirmed as such and he served for more than twelve years without any break---Employee, in circumstances, had attained status of a permanent workman and was entitled to receive disputed amount under agreement.
Haji Muhammad Iqbal for Appellant.
Abdur Rehman Qadir for Respondent.
2000 P L C 136
[Labour Appellate Tribunal N.W.F.P.]
Before Justice Mian Muhammad Ajmal, Chairman
ABDUL GHANI
Versus
REGISTRAR, TRADE UNIONS, HAZARA DIVISION AT HARIPUR and 2 others
Revision Appeal No.11 with Civil Miscellaneous No. 40 of 1998, decided on 21st December, 1998.
(a) Industrial Relations Ordinance (XXIII of 1969)--
----S. 38(3-a)---Revisional jurisdiction of Labour Appellate Tribunal--Scope---Provisions of S.38(3-a), Industrial Relations Ordinance, 1969 had empowered Labour Appellate Tribunal to call for the record of any case to see whether order passed by Labour Court was correct, proper and lawful.
(b) Industrial Relations Ordinance (XXIII of 1969)--
----Ss. 8(7) & 38(3-a)---Amendment in constitution of Trade Union--President and Secretary-General of Trade Union in order to avoid "no confidence motion" against themselves, amended relevant clause of constitution of Trade Union---Registrar of Trade Unions without taking into consideration proper process for the institution of said amendment, approved the same---Validity---Registrar of Trade Unions was obliged to hold independent enquiry to verify as to whether Executive Committee within approval of 3/4th majority of the total members of the Trade Union had delegated the power to President and General Secretary of Trade Union for the proposed amendment in constitution of Trade Union-- -Registrar. Trade Unions had failed to perform his duties in a manner provided under law and he without proper scrutiny, accorded approval of amendment on the same day on which proposed amendment was presented to him, without application of independent judicial mind---Labour Appellate Tribunal in exercise of its revisional jurisdiction set aside order of approval of the amendment.
Abdur Rehman Qadir for Petitioner.
Ghazan Iqbal for Respondents.
2000 P L C 139
[Labour Appellate Tribunal N.W.F.P]
Before Justice Mian Muhammad Ajmal, Chairman
TAHIR HUSSAIN
Versus
PAKISTAN INDUSTRIAL DEVELOPMENT
CORPORATION (PVT.) LTD through Chairman and 2 others
Revision No. 14 of 1999, decided on 21st May, 1999.
Industrial Relations Ordinance (XXIII of 1969)--
----Ss. 1(3), 25-A & 38(3-a)---Grievance petition---Competency---Revision petition--- Abatement---Petitioner, who was a retired Junior Officer (Accounts) had filed grievance' petition against respondent (Pakistan Industrial Development Corporation) which was a statutory Corporation created vide Provincial Industrial Development Corporation Ordinance, 1962 for promoting economic and industrial development in the Province and for matters ancillary thereto---Petitioner's grievance being against Government controlled Corporation, his case was hit by S.2-A, Service Tribunals Act, 1973 and forum under Labour Laws had no jurisdiction to adjudicate the matter---Grievance petition and thereafter, revision petition of petitioner, were rightly dismissed as abated.
Syed Ghazi Shah for Petitioner.
Qazi Muhammad Shehreyar for Respondents.
2000 P L C 141
[Labour Appellate Tribunal, N.W.F.P.]
Before Justice Mian Muhammad Ajmal, Chairman
ANWAR ZAMAN
Versus
CHIEF EXECUTIVE, BANNU WOOLLEN MILLS LTD BANNU
Appeal No. 7 of 1998, decided on 4th December, 1998.
(a) Industrial Relations ordinance (XXIII of 1969)---
----Ss. 22-A (8) (g), 22-D, 22-E & 25-A---Termination of service--Grievance petition---Competency---Employee approached National Industrial Relations Commission through petition under S. 22-A (8)(g) of Industrial Relations Ordinance, 1969 which was dismissed after proper inquiry--Employee on dismissal of the petition by Commission filed grievance petition before Labour Court under S. 25-A of Industrial Relations Ordinance, 1969 which was dismissed by Labour Court on ground that it was hit by principle of res judicata as similar petition was already dismissed by National Industrial Relations Commission---Validity---After dismissal of petition by National Industrial Relations Commission, employee could file appeal against said dismissal under S. 22-D of Industrial Relations Ordinance, 1969, but employee instead of availing said right of appeal approached Labour Court for same relief which had already been denied to him by National Industrial Relations Commission---Order of National Industrial Relations Commission having attained finality under S. 22-E, Industrial Relations Ordinance, 1969, said order could not be called in question in any manner before any Court or Authority---Grievance petition, subsequently, filed by employee, was not competent in circumstances.
(b) Industrial Relations Ordinance (XXIII of 1969)---
----Ss. 22-B(3)(a) & 25-A---Powers and functions of Labour Court and National Industrial Relations Commission---Principle of res judicata--Applicability---Benches of National Industrial Relations Commission are empowered under S. 22-B (3) (a) of Industrial Relations Ordinance, 1969 to perform and exercise such functions as are performed and exercised by a Labour Court in relation to cases of unfair practice for enforcement of any right or redress of individual grievance in respect of any right guaranteed or secured by any employer or worker by or under any law or any award or settlement---Such powers of National Industrial Relations Commission and Labour Court being concurrent, dispute decided by one forum, cannot be reagitated before other and any such re-agitation would be hit by principles of res judieata.
(c) Industrial Relations Ordinance (XXM of 1969)---
------S. 25-A---Grievance petition---Competency---Services of employee employed for specific period were terminated on ground that "his services were no longer required" and employee had challenged said termination in grievance petition before Labour Court---Competency---Appointment of employee was made for a specific period and after its expiry, services of employee were terminated---No guaranteed or secured right of employee having either been infringed or violated in any manner, grievance petition was rightly dismissed.
Waqar A. Seth for Appellant. Sanaullah Khan Gandapur for Respondent.
2000 P L C 318
[N.W.F.P. Labour Appellate Tribunal]
Before Justice Mian Muhammad Ajmal, Chairman
MUHAMMAD AJMAL KHAN, MAIL RUNNER
Versus
THE DIRECTOR-GENERAL, PAKISTAN POST OFFICES, ISLAMABAD and 4 others
Appeal No.6 with Civil Miscellaneous No.6 of 1999, decided on 4th October, 1999.
Industrial Relations Ordinance (XXIII of 1969)---
----Ss. 25-A & 37(3)---Notification No.3(16)/92/PO(Pt), dated 4-7-1996--Grievance petition---Maintainability---Employee initially was appointed as 'Mail Runner' in Postal Department for a period of sixty days, but his period of service was extended from time to time and he continued to serve for more than two years---Services of employee were terminated on ground that his appointment which was made in contravention of Rules, was irregular--Grievance petition filed by employee against termination of his services was dismissed by Labour Court holding that same had abated as by virtue of newly added S.2-A in Service Tribunals Act, 1973, employee would be deemed to be a civil servant---Validity---Pakistan Postal Service Corporation having been converted into attached Department of Ministry of Communication vide Notification No.3(16)/92/PO (Pt), dated 4-7-1996, said Corporation was not an Authority, Corporation Body or Organization of Federal Government as enumerated in S.2-A, Service Tribunals Act, 1973 and said section would not apply to postal employees after conversion of employer Corporation into an attached Department---Order dismissing grievance petition passed by Labour Court; was set aside, in circumstances.
Naqibullah Khan Khattak for Appellant.
Munawar Khan for Respondents.
2000 P L C 322
[N.W.F.P. Labour Appellate Tribunal]
Before Justice Mian Muhammad Ajmal, Chairman
SAID WAHAB and others
Versus
THE CHIEF MECHANICAL ENGINEER, LOCOMOTIVE
FACTORY, RISALPUR and others
Appeals Nos. 27, 28, 29 and 30 of 1998, decided on 4th October, 1999.
Industrial Relations Ordinance (XXIIII of 1969)---
----Ss. 25-A & 37(3)---Grievance petition---Maintainability---Employees serving in Pakistan Railways being aggrieved of different office orders o: Railway administration, filed grievance petitions before Labour Court which were dismissed having been abated by virtue of provisions of S.2-A in Service Tribunals Act, 1973---Such employees would be deemed to be civil servants---Validity---Pakistan Railways 'functioning as a Department of Federal Government, could not be said to be an, Authority, Corporation, Body or Organization of Federal Government as enumerated in S.2-A, Service Tribunals Act, 1973 as it was exclusively owned and controlled by Federal Government through Ministry of Railways---Provisions of S.2-A, Service Tribunals Act, 1973, would not apply to Railway employees who fell within definition of "workman "---Order of Labour Court was, thus, set aside.
Muhammad Latif and Zafar Javed Durani for Appellants.
Ijaz Anwar and Jehanzeb Khan for Respondents.
2000 P L C 447
[N.W.F.P. Labour Appellate Tribunal]
Before Justice Muhammad Ajmal, Chairman
STATE LIFE INSURANCE CORPORATION OF PAKISTAN
Versus
MUHAMMAD ANWAR SWATI and others
Revisions Nos. 4 to 7, 15 to 18, 28 with Civil Miscellaneous Nos.9 to 17 and 40 to 48 of 1999, decided on 8th October, 1999.
(a) Industrial Relations Ordinance (XXIII of 1969)---
----Ss. 2(xiii) & (xxviii) & 38(3-a)---Workman---Termination of employees from service under Regln. No.A(ii)(c)(2) of State Life Employees (Service) Regulation, 1973 did not constitute industrial dispute as they were not .workmen within meaning of S.2(xxviii) of Industrial Relations Ordinance, 1969.
(b) West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)---
----S.O. 12(3)---Industrial Relations Ordinance (XXIII of 1969), S.25-A--Removal and dismissal from service---Any person who was removed, retrenched, discharged or dismissed from service otherwise than in connection with or in consequence of an industrial dispute, could approach Labour Court with his grievance petition. under provisions of S.O.12(3) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 for redressal of his individual grievance provided he was a "workman" under the said Ordinance and duly employed in any commercial or industrial establishment.
1994 SCMR 2213 ref.
(c) Industrial Relations Ordinance (XXIII of 1969)---
----S. 2(xxviii)---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(i)---"Workman"--Determination of status of workman---Whether a particular employee was a workman or not was a mixed question of law and fact which could not be determined without recording evidence---Mere designation was not the decisive factor for determination of the status of an employee as workman and while determining status of an employee, his nature of work and other related factors had to be taken into consideration.
(d) Civil Procedure Code (V of 1908)---
----O. XXXIX, Rr. l & 2---Temporary injunction, grant of---Points to be determined---Temporary injunction could be granted in those cases where it was established that claimant had a good prima facie case, balance of convenience was in his favour and he was likely to suffer irreparable loss which could not be measured in terms of money.
Mian Faseehul Mulk for Petitioners.
Aftab Alam for Respondents.
2000 P L C 472
[N.W.F.P. Labour Appellate Tribunal]
Before Justice Sardar Muhammad Raza, Chairman
MIR JAFFAR
versus
GOVERNMENT OF N.-W.F.P. TRANSPORT DEPARTMENT through Secretary and another
Appeals Nos. 6 to 15 of 2000, decided on 13th March, 2000.
(a) Industrial Relations Ordinance (XXIII of 1969)---
----S. 25-A(1)---Grievance petition---Competency---Employees served grievance notices on employer not by as provided under S.25-A(1) of Industrial Relations. Ordinance, 1969 but through their counsel---Grievance notices having not been served by employees in conformity with requirement of law, grievance petitions filed by employees were rightly dismissed being incompetent.
Syed Muhammad Hussain v. Pakistan Tobbacco Company PLD 1980 -SC 80 and 1998 PLC 254 ref.
(b) Industrial Relations Ordinance (XXIII of 1969)---
----S. 25-A---Grievance petition---Competency---Grievance petition directly filed without first issuance of grievance notice to the employer, would be incompetent as issuance of grievance notice before filing grievance petition could not be ignored or bypassed.
Packages Limited v. Muhammad Maqbool and others PLD 1991 SC 258 ref.
Malik Muhammad Rehan Awan for Appellants.
2000 P L C 564
[N.W.F.P. Labour Appellate Tribunal]
Before Justice Mian Muhammad Ajmal, Chairman
REGIONAL MANAGER, M.C.B. LTD. and others
versus
SHAFI ULLAH and others
Appeal No.52 and Civil Miscellaneous No.38 of 1998, decided on 29th May, 1999.
(a) Industrial Relations Ordinance (XXIII of 1969)---
----S. 25-A---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.12(3) & S.2(i)--Misconduct---Dismissal from service---Remedy---Grievance petition--Maintainability---Employee having been dismissed from service on account of misconduct and not in connection with or in consequence of industrial dispute, he could not seek redress under S.25A of Industrial Relations Ordinance, 1969, but under S.O. 12(3) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, provided employee would prove to be a "workman" under S.2(i) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968.
1998 SCMR 644 and 1999 SCMR 373 ref.
(b) Industrial Relations Ordinance (XXDI of 1969)---
----Ss.2(xxviii) & 25A---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(i)--"Workman"---Determination---Grievance petition---Maintainability---Only those persons who were employed in any industrial and commercial establishment for doing skilled or unskilled, manual or clerical work for hire or reward, would be "workman"---Employee who claimed to be a workman had produced three witnesses in proof of his claim, but neither employee nor his witnesses had stated with regard to nature of work done by employee a; relevant time---When a person would approach Labour Court for declaring him to be "workman" burden of proof would lie on that person and not on the employer---Only witness examined by employer had stated that employee at the time of his dismissal was serving as an officer and in absence of Manager, he used to perform his duties of administration---Employer had placed on record copy of key register whereby the employee had exercised powers of Manager, but nothing was brought on record that he was mainly performing duties in managerial or administrative or in a supervisory capacity---Evidence on record was so meagre and scanty that on basis of such evidence, it could not be properly determined the status of employee as workman---Case was remanded for determination of maintainability and competency of grievance petition.
1998 SCMR 644 arid 1999 SCMR 373 ref.
Hashim Raza for Appellants.
Muhammad Saeed Khan for Respondent.
2000 P L C 70
[Punjab Labour Appellate Tribunal]
Before Mian Ghulam Ahmad, Chairman
KHAWAR MAHMOOD
Versus
ZONAL CHIEF, UNITED BANK LIMITED, BAHAWALPUR ZONE, BAHAWALPUR
Appeal No.BR-305 of 1998, decided on 25th September, 1999.
(a) Industrial Relations Ordinance (XXIII of 1969)---
----S.2(xxviii)---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(i)---"Workman" and "worker"--- Distinction---Marked distinction existed between definition of. "workman" and "worker" given in two legislations i.e. West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and Industrial Relations Ordinance, 1969---Definition stated in S.2(i) of West Pakistan Industrial and Commercial employment (Standing Orders) Ordinance, 1968 is simpler as compared to definition contained in S.2(xxviii) of Industrial Relations Ordinance, 1969.
(b) Industrial Relations Ordinance (XXIII of 1969)---
----Preamble & S.2(xxviii)---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), Preamble, S.2(i) & S.O. 12(3)---Nature and object of labour laws---Termination of service--Remedy---Labour laws were beneficial laws, enacted for the benefit of labour class with object to provide inexpansive and expeditious remedy before Labour Court---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 being a benevolent enactment, is to be construed liberally in favour of labour class and restricted interpretation ought not to be put on the scope of definition of "workman "---Where a person belonged to the labour class, he could not be excluded from ambit of definition of "workman"---If services of an employee were terminated in breach of S.O 12(3) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 for seeking relief from Labour Court, he should fall within scope of definition given in S.26) of the said Ordinance and need not fall within purview of definition as embodied in S.2(xxviii) of Industrial Relations Ordinance, 1969.
(c) Industrial Relations Ordinance (XXIII of 1969)--
----Ss. 2(xxviii) & 25-A---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.12(3)---Right guaranteed--- Enforcement---"Workman"---Definition---If an employee wanted to press into service S.25-A, Industrial Relations Ordinance, 1969 for enforcing any right guaranteed under West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 other than right covered under S.O. 12(3) of said Ordinance, he should also fall within definition of "worker" provided under S.2(xxviii) of Industrial Relations Ordinance, 1969.
(d) Industrial Relations Ordinance (XXIII of 1969)--
----Ss. 25-A & 37(3)---West Pakistan Industrial and ' Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.12(3)--Termination of service---Remedy---Right of appeal---Provisions contained in S.O. 12(3) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, had prohibited termination of service of a. workman without written order and without giving reasons for termination--- Workman, aggrieved by termination of his service or removal, retrenchment, discharge or dismissal, could take action in accordance with provisions of S.25-A, of Industrial Relations Ordinance, 1969 and thereupon provisions of said section would apply as the same could be availed of for redressal of an industrial grievance---Provisions of S.O. 12(3) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 had indicated that Legislature did not intend to deny the right of appeal in respect of an order of termination to a worker under said provisions of Standing Order, but intention was to provide a remedy available in terms of S.25-A of Industrial Relations Ordinance, 1969 and it would necessarily imply existence of right of appeal under S.37(3), Industrial Relation Ordinance, 1969---Right of appeal could be sustained on the ground that two reliefs were equally available, one under S.25-A, Industrial Relations Ordinance, 1969 and others under S.O. 12(3), West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and provision which was more beneficial and which provided of appeal could be resorted to---Employee declared as civil servant under S.2-A of Service Tribunals Act, 1973 would not automatically become civil servant in absence of corresponding amendment in Civil Servants Act, 1973.
PLD 1992 SC 127; 1997 SCMR 1630; 1992 SCMR 505; 1992 PLC 424; 1993 SCMR 322; 1999 PLC (C.S.) 1208 and 1999 SCMR 1526 ref.
Tariq Shamim for Appellant.
Masood Ashraf Sheikh for Respondent.
2000 P L C 271
[Labour Appellate Tribunal Punjab]
Present: Mian Ghulam Ahmad, Chairman
Messrs LAKSON TOBACCO COMPANY LIMITED through Factory Manager
Versus
SAFDAR HUSSAIN SHAH
Appeal No.RI-382 of 1998, decided on 25th September, 1999.
Industrial Relations Ordinance (XXIII of 1969)---
----S.25-A---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance-(VI of 1968), S.O. 15(3)(b) & (4)---Dismissal from service on allegation of theft---"Workman" was dismissed from service -after issuing him show-cause notice, charge-sheet and holding enquiry against him on allegation that he stole bundles of cigarettes from Production Department of employer---Enquiry against employee was conducted by member of staff of employer, whereas interests, demands of justice, equity and fair play warranted that enquiry against employee should have been entrusted to other establishment or to clean, impartial and honest Officers of Labour Department---Charge of theft on basis of which employee was dismissed from service remained unproved as bundles of stolen cigarettes had not been recovered and it was not known where the same had disappeared--No criminal case was registered against employee---Case against employee being of no evidence adverse action taken against employee proved to be tainted with mala fides and an element of vengeance---Employee's ouster from service on basis of said inquiry and unproved insinuation, in circumstances, could not be termed as justifiable and sustainable in law and equity.
Tanveer Deputy Attorney-General for Pakistan and Sh. Muhammad Munir for Appellant.
Muhammad Bashir Mirza for Respondent.
2000 P L C 278
[Labour Appellate Tribunal Punjab]
Present: Mian Ghulam Ahmad, Chairman
THE ZONAL CHIEF, UNITED BANK LIMITED ZONAL OFFICE, RAHIM YAR KHAN
Versus
MUHAMMAD RIZWAN INAMULLAH QADRI, GENERAL SECRETARY, LABOUR UNION (C.B.A.) and another
Revision Petition No.553 of 1999, decided on 15th December, 1999.
Industrial Relations Ordinance (XXIII of 1969)---
----Ss. 15, 22-A(12), 35(5)(d), 38(3-a) & 47---Interim injunction--Revisional jurisdiction, exercise of---Labour Court issued ad interim injunction and suspended implementation of dismissal order passed against employee---No injunction in nature of status quo ante could be granted by Labour Court---Order granting ad interim order passed by Labour Court, was set aside by Labour Appellate Tribunal in exercise of its revisional jurisdiction.
Imran Bokhari for Petitioner. Ch. Muhammad Bashir for Respondents.
2000 P L C 280
[Labour Appellate Tribunal Punjab]
Present: Mian Ghulam Ahmad, Chairman
CHIEF EXECUTIVE, NEWAGE CABLES (PVT.) LIMITED, LAHORE
Versus
INQALABI WORKERS UNION NEWAGE CABLES (C.B.A.) through Vice-President and others
Revision Petition No.QSA-528 of 1999/Pb., decided' on 1,3th December, 1999.
Industrial Relations Ordinance (XXIII of 1969)---
----Ss.34 & 38(3-a)---Interim injunction, grant of ---Revisional jurisdiction, exercise of---Labour Court in proceedings under S.34., Industrial Relations Ordinance, 1969 granted interim injunction in favour of respondent-union and against petitioners/employers although no request for suspension of order passed by employer against union, was made by the union---Labour Court being not empowered to grant interim injunction, order of Labour Court was set aside by Labour Appellate Tribunal in exercise of its revisional jurisdiction.
1980 PLC 253 and P L D 1998 Lah. 72 ref.
S.A. Naeem for Petitioner. Safdar Sindhu for Respondent No. 1.
Zagham Abbas for Respondent No.2. .
JUDGMENT
The revision petition is directed against the order; dated 18-10-1999 of the learned Labour Court No.3, Lahore, at Ferozewala, accepting the application filed under section 151, C.P.C. by the Inqalabi Workers' Union for grant of interim relief.
At the outset of his arguments, the learned counsel appearing for establishment, the Newage Cables, has drawn the attention of this Court to the view consistently adopted and expressly expounded by the fudge, the Presiding Officer of the Labour Court, to the effect that a Labour Court does not have the power to grant ad interim injunction and can deal with and decide the matter in controversy between the parties to the litigation when a case reaches its conclusion and is ripe for decision. In the instant case, however, the learned Court seems to have gone too out of the way, in having disposed of the application, counched in general terms, under section 151, C.P.C., eight months after its submission and accepted it by observing that the workers could not be permitted to be punished for the simple reason that they had failed to make the request (for grant of ad interim injunction) originally on submission of the main petition under section 34 (I.R.O., 1969), on as back as 3.0-1-1999, further expressing himself almost finally in favour of the workers or members of the Union. In the course of the discussion, in paras. 5 and 76 of the judgment, it has been said that consideration of comparative convenience and irreparable loss lie in favour of the workers, and the establishment would not lose anything or be exposed to any measure of injury or loss, if the workmen are enabled to continue working during pendency of the case.
In the petition filed on 30-1-1999, no request for suspension of the impugned order of the establishment had been made, and it was subsequently on 19-2-1999 prayed that the organization be restrained from effecting retrenchment of the employees. The learned lower Court has observed that the Courts exist and function to administer justice and to keep balance, meaning thereby that overall ends of justice have to be preserved and served, without being truly technical. Very purpose of law would be defeated if the workers are turned out of their jobs, it has been so pronounced by the learned Court below, adding that the very object of union formation will be frustrated. The learned counsel representing the concern has relied on 1980 PLC 253 (Karachi) and PLD 1998 Lah. 72. In the reported cases it has been laid down that if a Labour Court awards back benefits to a worker, without there being a prayer in that behalf, the order would be unlawful and inoperative, further a person or personnel must approach the Court of law with clean hands and if it is shown that he had indulged in any kind of conduct that had sullied his hands or had done anything against the established 'social and moral-norms of the society, he would not qualify for grant of discretionary relief in equity.
On behalf of the concern it has been shown that on 10-2-1999, layoff of a few workers, had been ordered, that too for the statutory period i.e. 14 days, and the order ceased to have effect after 23-2-1999. Presently there is no such order in the field and, thus, prayer made for rescinding or suspending any such order would be inapt. 142 workers were retrenched on 2-1-1999, (effective from 4-1-1999). 16 workers were retrenched on 6-1-1999 and 127 workers on 16-1-1999. Out of them, 101 workers approached the establishment and received their dues in the amount of approximately 30 lacs of rupees. 21 workers afterwards approached the Labour Court for similar purpose. Resultantly 123 workers are no longer aggrieved on any score and do not seek any relief or succour from the Court. The Organization has taken up in service 55 workers. In the field, as already said, there is no lay-off or retrenchment order at present.
The Union had served that Establishment with a strike notice and initiated proceedings for its cancellation, as envisaged by sections 27 to 30 of the Act. The factory operations are presently having smooth-sailing, and only a few mischief-mongers or trouble-creators may be active, with the sole objective of serving their unholy ends and directly designs.
I am really convinced\that the workers enbloc or as a class have no sacred cause and lawful goals to serve; and the learned lower Court has come to their rescue not in a justifiable, judicial and judicious manner. They may however, succeed in establishing their assertions when the matter is proceeded with and is finally adjudicated upon. I would vacate the injunction order and set aside the impugned order, dated 18-10-1999, as the same eminently calls for interference by this Court in exercise of its revisional jurisdiction. The revision petition -is accepted, although with no order as to costs. The parties shall snake appearance in the Court below for further proceedings on 18-1-2000.
H.B.T./5-L(Trib.) Revision petition accepted
2000 P L C 283
[Labour Appellate Tribunal Punjab]
Present: Mian Ghulam Ahmad, Chairman
HABIB BANK LIMITED, HEAD OFFICE, KARACHI and 4 others
Versus
MUHAMMAD ARSHAD MAHMOOD CHEEMA
Revision Petition No.556 of 1999, decided on 13th December, 1999. .
Industrial dispute ----
----Practice ----Practice and procedure---Law intended and ordained that matter should primarily, at least initially, be brought under discussion by Labour Court and thereafter by Labour Appellate Tribunal---Procedure as also proprietary and expediency and wisdom of the process required and dictated that Court of first instance should proceed with the matter on entertaining it and even at the initial stage should render well-considered, sane, sound, judicious balanced and equitably maintainable order.
Mian Abdul Rashid and Mian Muhammad Saleem for Petitioners.
Ch. Ghulam Qadir Cheema for Respondent.
Date of hearing: 13th December, 1999.
JUDGMENT
Ch. Nabi Ahmad, Presiding Officer, Labour Court, Gujranwala directed maintenance of status quo, by rendering an interim order on 5-11-1999, on entertaining grievance petition, having been filed by Muhammad Arshad Mehmood Cheema, a Bank Officer, against the Authorities of the Habib Bank Ltd. The order was made clearer, by further directing that the officer's ouster from service would not take place, if by then the orders of his dismissal/removal from service had not been rendered and conveyed by the competent Authority. This amounted to issuance of an injunction order against the Bank people, who preferred the present revision petition on 10-11-1999. I distinctly recall that Ch. Ghulam Qadir Cheema, Advocate kept sitting in this Court, throughout the day, on 10th and again on 11th of November, as he was probably expecting that the Bank Authorities would be having recourse to this Tribunal, agitating against the aforesaid order, dated 5-11-1999 of the learned Labour Court, copy of which had been made available to the employee on 8-11-1999. 9-11-1999 was a gazetted holiday, being the Birth day of Allama Iqbal. The revision petition 'was filed on 10-11-1999, late in the day, it appears, and it was proposed by the office to be placed before the Court on the following day, i.e. on 11-11-19951.
The learned counsel for the parties had consume ample time, exceeding three hours, in making and concluding their address. I, however, feel that it was all an unnecessary exercise. If the learned counsel for the parties were to make submissions and raise contentions, covering the whole compass, nothing would be left for the Labour Court for consideration and adjudication, although it is the Court of the first instance, which has to deal with rival contentions and take a decision, to begin with. If all the issues in controversy are dealt with and decided by the Labour Tribunal, the parties to the litigation will be deprived of one forum. Law intends and ordains that the matter should primarily, at least initially, be brought under discussion by the Labour Court and afterwards by the Labour Appellate Tribunal; and the procedure, as also propriety and expediency or wisdom of the process requires and dictates that the Court of first instance should proceed with the matter, on entertaining it, and even at the initial stage should render a well considered order, sane and sound, judicious and balanced, as also legally sustainable and equitably maintainable plane.
The dismissal order of the employee is claimed to have been passed by the competent Authority on 28-10-1999. The grievance petition before the learned Labour Court was filed about a week thereafter on 5-11-1999. According to the Bank people, the employee conducted himself in a clever and escaping, nay, cunning and mischievous manner, and by getting hold of the attendance register, he marked his presence, at a stretch, for all the days that intervened, but he could not be treated to be on duty during this period, as he stood dismissed from service w.e.f. 28-10-1999. The order had even been conveyed to him, at the two addresses furnished by him, on being Gali Rajputana near Sir Syed High School, Mandi Sumbarrial, District Sialkot, and the other being Village and Post Officer Begowala, Tehsil Daska, District Sialkot though his village is stated to be Bhonanwala, a few miles away Begowala. A determined effort was made to serve him at his official or bank address even. He, however, conducted himself in entirely evasive way and claims to have not been communicated the order of his ouster from service, although with the grievance petition, dated 5-11-1999, he had himself annexed his dismissal order, dated 28-10-1999, and had also made a mention of the same in the averments embodied in the grievance petition.
The learned lower Court will examine this aspect of the matter whether in such a situation the adverse order will be taken to have been communicated to the employee or not, when it had actually been rendered (on as back as 28-10-1999) and the employee must also have not been permitted to perform duty, even for a day, or a short while, after 28-10-1999. The Labour Court will also have to attend to other important questions involved, and different other aspects of the case, as for instance, whether the officer can legitimately claim to be a workman, for having access to a Labour Court, for redressal of his grievance, further whether the learned lower Court, even while having competence in the matter, could grant an injunction in the manner of status quo ante. Gross character or monsterous nature of the allegations against the official will also have to be kept in mind.
I would not advert to this and other questions involved, and would leave the same for the Labour Court to deal with, on application of mind, after hearing the learned counsel for the parties, and going through the relevant record of the Bank, if necessary. The case is withdrawn from the Labour Court, Gujranwala, and is entrusted to the learned Labour Court No. 1, Lahore where it shall be put up for further proceedings on 16-12-1999. The learned counsel representing the two sides are leading Lahore lawyers, and it will be convenient for them to attend to their job, in right, earnest and with full dedication, before the Labour Court at Lahore, rather than at Gujranwala.
I would add that the employee/officer had also filed a contempt petition on 20-11-1999, against Mr. Muhammad Yousaf Bhatti, Vice President/Zonal Chief, Habib Bank Ltd., Ghulam Qader Arcade, Sialkot Cantt. the prayer being that he be treated as contemner, proceeded against and punished for not complying with the order, dated 5-11-1999 of the Learned Lower Court Gujranwala. In my considered opinion, the complainant having practically been ousted from service earlier no case for commission of an act of contempt of Court on behalf of the respondent in the petition is made out, and I, therefore, proceed to dismiss the contempt petition, so far as the jurisdiction of this Court is concerned.
H.B.T./2-P (Lab.) Order accordingly.
2000 P L C 285
[Labour Appellate Tribunal Punjab]
Present: Mian Ghulam Ahmad, Chairman
THE ENGINEERS COOPERATIVE HOUSING SOCIETY, LAHORE and others
Versus
Maulvi MUHAMMAD
Appeal No. LHR-189 of 1998/Pb., decided on 23rd November, 1999.
Industrial Relations Ordinance (XXIII of 1969)---
----S.25-A---Grievance petition---Ex parte order---Setting aside of--Grievance petition filed by employee against termination of his service was accepted by Labour Court ex parse---Grievance petition was accepted ex parte after about seven years of its filing and during that long period employee could not adduce any evidence and he made his own statement after about five years of filing of said grievance petition---Service upon employer had not been effected in a satisfactory manner---Such aspect of matter needed further probe and ends of justice warranted that both sides should be enabled to participate in the proceedings especially when employer had taken up a number of technical objections with regard to maintainability of grievance petition---Decision of Labour Court which was scanty and was neither comprehensive not well-reasoned, was set aside in circumstances.
Maj. Raja Abid Hussain, Secretary with Nisar Ahmed Butt for Appellants.
Ch. Khalil-ur-Rehman for Respondent.
JUDGMENT
Maulvi Muhammad's grievance petition, under section 25-A, Industrial Relations Ordinance, 1969 was accepted ex parte on 15-5-1998 by the learned Labour Court No.Z, Lahore. The order has been appealed against by the TECH Society.
The Colony has its location on the canal bank near the New Campus, Lahore. Maulvi Muhammad served the Society as Head Mali for about 1/1-2 years, from 6-2-1991 to 15-7-1992. His services were terminated by reason of certain acts of misconduct attributed to him. The nature of his and according to the appellant, and no legal formalities needed to be observed. Still, however, the prescribed procedure was pursued and the employee was ousted from service, not in an whimsical or arbitrary manner. The employee had recourse to the Labour Court on 4-10-1992, and the final order in his favour was rendered by the learned Labour Court on 15-5-1999.
It has been pointed out that the employee could knot adduce any evidence over such a long period and eventually he alone made his statement (on 7-11-1997), and that too in absence of the other side, ex parte proceedings having been taken against the respondent Society. The employee's version has, thus, gone un-rebutted. The appellants respondents in the learned lower Court, maintain that ex parte proceedings had been ordered against them on the basis of no valid premises and following P.Os. repeated absence on leave, .service upon them had not been effected in a satisfactory manner. This aspect of the case needs further probe and the ends of justice warrant that both sides be enabled to participate in the proceedings and have assistance of their counsel too. There was no cause' for hurry, particularly when the proceedings had lingered on over several years, beginning of October, 1992 to mid-May, 1998.
I find that in reply, the respondents before the Labour Court had taken up a number of technical objections, and even on factual plane the grievance petitioner's version had been controverted, on premises, fairly sound and solid. It had essentially to be seen. by the Court if the Society the grievance petitioner was serving, could be treated as a commercial or industrial establishment. The strength of its staff had to be determined, before proceeding further. 1t seems that the employee was claiming to have become a permanent workman by operation of law, as he had remained in service of the Society for well over a year. His reinstatement was ordered by Labour Court, without verifying the fact whether or not, by then he had attained the age of superannuation. It was a Cooperative Society, working of which was to be governed by the Cooperative Societies Act, 1925. Applicability of the provisions of the Labour Law was a matter of doubt, according to the Society, which had also taken up a plea that the grievance petition was time-barred and the statutory grievance notice had not preceded the submission of the petition.
There would, thus, arise a number of important questions, which must be met with by the employee satisfactorily, before the Labour Court really embarks upon the examination and adjudication of the plea taken up by him to the effect that he had been wronged and been ousted froth service in an unlawful, inequitable and unjust manner. The decision of the lower Court I in scanty and neither comprehensive nor well-reasoned. I would set it aside, I on acceptance of the appeal, although with no order as to costs. The petition is entrusted to learned Labour Court No. l , Lahore, for its disposal in 1 accordance with law, on withdrawal from learned Labour Court No.2, Lahore. Next date in the transferee Court would be 11-12-1999. Matter having already unduly been delayed, an effort shall be made to dispose it of finally within a period of 3 to 4 months.
H.B.T./3-P(Lab.) Order accordingly.
2000 P L C 287
[Labour Appellate Tribunal Punjab]
Present: Mian Ghulam Ahmad, Chairman
THE FACTORY MANAGER, TREET CORPORATION LTD.
Versus
MUHAMMAD BABAR
Appeal No.LHR-147 of 1999, decided on 24th December, 1999
Industrial Relations Ordinance (XXIII of 1969)---
----S.25-A---West Pakistan industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O. 15(3)(b) & (4)--Termination of service---Services of employee were terminated on ground of absence from duty without leave over a period exceeding ten days after issuing him show-cause notice and holding domestic enquiry against him--Employee had contended that he remained absent from duty due to registration of criminal case against him in which he remained associated with investigation of said case---Employee though remained associated with investigation alongwith others, but only for few hours and had been discharged after interrogation finding him innocent and he was not arrested in the case---No genuine cause, thus, existed for employee to have remained absent from duty for that long period---Absence from duty without valid justification or lawful excuse, without permission of the superiors and without leave amounted to an act of misconduct on basis of which employee could be removed from service---In absence of anything on record suggesting that employee had whimsically or maliciously been proceeded against or was victimized for his trade union activities, Labour Court was not justified to reinstate the employee with back benefits especially when enquiry conducted against him was in accordance with principles of equity, justice and fairplay and Enquiry Officer did not appear to have, in any way, conducted himself partially---Judgment of Labour Court passed without applying mind to facts of case, was set aside in circumstances.
Syed Imran Bokhari for Appellant.
Sahibzada Riaz Anwar for Respondent.
JUDGMENT
Malik Pervez Ahmad, Presiding Officer, Punjab Labour Court No.2, Lahore on 17-5-1999, rendered a decision accepting Muhammad Babar's grievance petition, filed under section 25-A, Industrial Relations Ordinance, 1969. The respondent here has come up in appeal to this forum.
Muhammad Babar was an employee of the Treet Corporation. A criminal case, under section 380/411/457, P.P.C. was registered against him and others at Police Station, Green Town, Lahore, on 31-12-1996. He stopped coming to his place of duty, with effect from 1-1-1997. A show cause notice was issued on 12-1-1997, calling upon him to explain his absence from duty, without leave, over a period exceeding ten days, tantamounting to misconduct. For the first time, on 20-1-1997, he addressed an application to the Factory Manager, taking up the plea that as he had remained associated with the investigation of the criminal case being conducted by the C.I.A. Qila Gujjar Singh (Lahore), he had not been able to attend to his duty and would be able to do so when the investigation exercise was over. His reply to the show-cause notice was considered as unsatisfactory and an enquiry was initiated against him. Enquiry notice was issued and Mr. Yousaf Hussain Dilawri, Advocate was requested to act as the Enquiry Officer. He submitted his report on 25-2-1997. A perusal of the same reveals that he had visited the premises on 17-2-1997, when the Personnel Officer, Mr. Muhammad Azam was present as a representative of the management, while Muhammad Babar was absent, despite intimation made to him in that behalf by registered post, as was the stand-point of the factory's representative. Enquiry was adjourned to 23-2-1997, and the representative was directed to make sure that the employee was made aware of the next date. On 23-2-1997, Muhammad Babar did appear. He however, gave a lie to the allegation of his absence, maintaining that he was under investigation in a theft case which incidence had prevented him from coming to the factory and attending to his duty. In the proceedings of the enquiry, the Time Keeper, Mr. Imtiaz Ahmad placed before the Enquiry Officer the attendance register, which showed that Muhammad Babar had been absent without permission or leave from 1-1-1997 onwards. Babar made his own statement in the enquiry proceedings and did not examine any other witness in defence. He maintained that so long as he was not 'cleared' from the allegation of theft of blades, he could not attend to his duty, nor was the management actually allowing him to do so. Final report of the enquiry was submitted against him on 25-2-1997.
A perusal of the grievance petition dated 13-5-1997 as also the reply submitted by Muhammad Babar, with regard to the grounds embodied in the memo of appeal, lodged in this Court, the plea taken up by Muhammad Babar was that he had been involved in a false case of theft and had been arrested by the local police and that after his release on bail, he had reported for duty, but he had not been allowed to enter the premises. According to him, the allegation of his absence from duty had no basis and he had been ousted from service in a mala fide manner, without holding a regular enquiry. The Investigating Agency had found the charge to be baseless and his absence from duty was not willful or intentional, but was owing to his unlawful arrest. He had been condemned unheard and without personal hearing, by the Enquiry Officer, whose report had unjustifiably been trusted and acted upon by the management, in removing him from service, on 12-3-1997.
In his reply submitted in this Court, it has been averred that he had addressed an application for leave to the management, but copy thereof was not available with him. In the reply dated 9-7-1999, tendered before this forum, as also in his statement made on 23-2-1997 before the Enquiry Officer, he had clearly conceded that his arrest in the theft case had never been effected. The 'progress report' dated 16-2-1997, drawn up by an A.S.I. (Annexure 'B'), as available on the file of the appeal) reveals that for the purpose of interrogation, all the accused persons, including Muhammad Babar, had remained associated with the investigation for a few hours only, and they had then been 'discharged', on having been found innocent. As such, there was no genuine cause for the employee to have remained absent from duty over that long period. It will not be denied that absence from duty, without valid justification or lawful excuse, without permission of the superior, and without leave applied for had been granted, amounts to an act of misconduct, and it is open to the employer to remove the delinquent from service. There is nothing on record to suggest that Muhammad Babar had whimsically or maliciously been proceeded against and victimized for his trade union activities. He was not a member of any trade union, operating in the set-up. The Enquiry Officer does not appear to have in any way conducted himself partially, and obvious of well-known principles of equity, justice and fairplay. Actually he did not proceed against the accused in the undue or indecent haste even. Although the establishment's representative made the E.O. aware of the fact that notices had been despatched to the worker for 12-2-1-1997 and 18-2-1997 (Exhs.P.3 and 4 of the enquiry file), and Muhammad Babar had still not made appearance, the Enquiry Officer asked the representative to make another effort to effect service- upon the employee, who appeared 'in person on 23-2-1997, and offered his explanation. On the same day, he also made a statement before the Enquiry Officer. Being an Advocate, it appears that, Mr. Yousaf Hussain Dilawari was conscious of his obligations and had proceeded with the matter in a regular and lawful manner. The only excuse put forth by the employee for not attending to his duty was his involvement in the theft case, .a fabricated or false case, according to him. Having not practically been arrested in the said case, there was no bar in his way to continue coming to the factory and perform his duty. The assertion .was examined or probed into by the Enquiry Officer with a modest and realistic approach.
The Presiding Officer of the Labour Court, however, in keeping with his usdal style; superficially and indiscreetly, jumped to the contrary conclusion, remarking, in a way. "On hearing the learned counsel for the parties the fact that had emerged was that hindrance in the way of the worker's performance of duty was registration of the criminal case and his (continued) association with the investigation, and there was cogent justification for his absence from duty". On making this observation, without discussing the facts of the case, the evidence on record, and the legal contentions involved, the learned Judge hastened to arrive at the decision, in the next breath, by ordering rescission of the termination order and acceptance of the grievance petition, in the manner of reinstatement of the employee in service, with all the back benefits. I do not think that the learned Presiding Officer had earnestly and assiduously, judicially and judiciously, applied his mind to the facts of the case. The impugned order is found to be lacunic and not well-reasoned, and as such not sustainable in law. It is hereby set aside. The appeal is allowed, with of course no order as to costs.
Keeping, however, in view the hard fact that the police agency had exonerated the employee of the charge of theft, and except for his absence from duty over a long time, he had not been arraigned for any other kind of misconduct or serious lapse on his part, justifying or warranting his removal from service,' I would convert the order of the employee's dismissal from service into one of the termination of his services. A vital factor prompting me to endorse the event of Babar's ouster from service of the Treet Corporation is that in the course of arguments, and on different dates of hearing, to which the matter was adjourned for possible patch up between the parties, Babar had minced no words in making it known to the Court that he was verily fed up with the proprietorship and the management, who had failed to appreciate his devotion for the cause of the concern and value his honest and hard work, and instead of rewarding hirri for his dedication had landed him in acute and eternal agony. He has expressly been uttering in open Court that he would not relish remaining any more on the rolls of the establishment, for the simple reason that they would never compromise with him and would in all likelihood adopt a pronounced posture of hostility and vengeance against him, bringing in wake ever accentuating miseries and all the more serious episodes, by reason of even fabrication of false cases against him, as has been done in the past. Probably, for the same reason, or against similar background and bent of mind, he had absented himself from duty over a long time. Keeping in mind the disdain he had developed for the job and his aversion against continuance with the concern, I have, unlike the learned Presiding Officer of the Labour Court, not indeed opted to endeavour for accommodation. of the employee, out of the way and in an indulgent manner, with a view to mitigate gravity of the lapses on his part, justifying his retention in service. But he ought not, at the same time, be deprived or the monetary benefits, which under the law and prevalent practice he has the entitlement to receive.
The learned lower Court had rendered decision in favour of the employee on as back as 17-5-1999, and the establishment had preferred the present appeal on 31-5-1999. While admitting the appeal to regular hearing, this Tribunal has suspended operation of the impugned decision, subject, of course, to all just and legal exceptions, which meant that on expiry of 20 days, following the Labour Court's favourable order (dated 17-5-1999), the employee had essentially to be put back in service. He had even submitted a contempt petition, for securing his reinstatement in service, and initiation of penal proceedings against the Officer concerned. The same has remained unreplied so far. With effect from 7-6-1999,, the employee would be deemed to have been in service, in the same capacity, and with the same emoluments. The dues, as accruable till today, shall be parted with by the management, for payment to the employee, without any amount of delay.
H.B.T./4-L (Trib) Appeal allowed.
2000 P L C 328
[Labuor Appellate Tribunal Punjab]
Before Mian Ghulam Ahmed, Chairman
MEHMOOD AKHTAR SHEIKH
Versus
CRESCENT SUGAR MILLS, FAISALABAD
Application No.FD-135 of 1999, decided on 22nd October, 1999.
Industrial Relations Ordinance (XXIII of 1969)---
----S.25-A---Grievance petition---Application for---Transfer of petition--Employee filed application to transfer his grievance petition to another Court and in another District at the time when evidence of parties was recorded and matter was posted for final arguments---Employee during course of hearing of the case had filed many applications for production of additional evidence, but could not produce same despite his applications in that respect were accepted---Employee, thus, by his conduct had been abusing process of the Court---Employee, in circumstances, would endeavour to secure adjournments to prolong the matter even if his grievance petition was entrusted to a different Court---Application for transfer of grievance petition to another Court was rejected, in circumstances.
Ahmad Awais Khuram for Petitioner.
Nemo for Respondent.
2000 P L C 347
[Punjab Labour Appellate Tribunal]
Before Mian Ghulam Ahmad, Chairman
ADMINISTRATOR, METROPOLITAN CORPORATION, JINNAH, HALL, LAHORE and another
versus
Agha NAEEM IQBAL and another
Revision Petition NO.LHR-11, Applications Nos. 79 and 543 of 1998, decided on 22nd February, 1999.
Industrial Relations Ordinance (XXIII of 1969)---
----Ss. 25-A, 22-A(12) & 38(3-a)---Removal from service---Suspension of operation of order of removal---Jurisdiction---Non-compliance of order of Court---Employee was placed under suspension on account of certain allegations of misconduct and corruption, but Labour Court, on filing grievance petition by employee suspended operation of order, of suspension and stayed further proceedings---Employer despite the stay order, removed employee from service---Employee filed contempt application against employer--- Employer had contended that Labour Court as well as Labour Appellate Tribunal had acted without jurisdiction as no restraint order could be issued by any labour forum. against course of criminal proceedings initiated against employee---Validity---Legal forum could have passed an order, which may prima facie, be not sound or legally sustainable, but aggrieved person could not suo motu assume that same was not binding on him and could well be ignored .and even - disobeyed---Even an ostensibly stupid or infirm or unsustainable order got to be assailed or got rescinded has by having recourse to competent higher forum and so long as such an order would hold field, its compliance had to be made and it could not be permitted tip be disregarded in any way---Wilful disregard of Court orders and flagrant defiance on part of employer could not be permitted.
Ch. Bashir Ahmad and Faiz Muhammad Bhatti for the Corporation.
Ahmad Awais for the Employee.
2000 P L C 351
[Punjab Labour Appellate Tribunal]
Before Mian Ghulam Ahmad, Chairman
ZAMIRUL HASAN
Versus
ASAD SAEED, DIVISIONAL SUPERINTENDENT
(WORKSHOP) P.R. MUGHALPURA, LAHORE
Application No.LHR-465 of 1992/Pb., decided on 17th February, 1999.
(a) Industrial dispute---
-Regularization in service---Meaning and scope---Employee who was dismissed from service, was ordered to be re-instated in service, but period between his dismissal and reinstatement was excluded from period of his service---Employee though had himself signified his consent for not claiming arrears of emoluments for period over which there was practical break in service, but said break in service could not create unbridgeable gap in period of his service and service of employee was to be treated continuous---Period of break of service had to be taken into account for purpose of calculation of total length of service---Entire span of service would have to be treated as a continuous one while undertaking whole service for determination of seniority and entitlement respecting regularization and confirmation of service as also award of annual increments and for calculation of pension, gratuity etc.
(b) Industrial Relations Ordinance (XXIII of 1969)---
----Ss. 25-A(8) & 38 (5) Non-implementation of ,decision of Labour Appellate Tribunal ---When an employee made grievance of fact that Labour Appellate Tribunal decision had not been fully implemented by employer and that employee had been placed at a manifest disadvantage or subjected to an irreparable injury or a continuing wrong, grievance of employee in that respect could not be treated as ill-based or misconceived one.
(c) Interpretation of statutes---
---- Interpretation put on the judgment of Judge---Principles---Correct construction was to be put on the wording and intent of the author, the 'Judge--- Express provisions of statute and well recognised legal principles were not to be ignored or misconceived---Every effort ought to be made to undo miscarriage of justice and advance larger ends of fairplay, equity and justice.
(d) Fundamental Rules---
---- F.R. 54(2044)--Industrial dispute---Period between removal from service and reinstatement in service---Counting-- Period of unemployment between employee's removal from service and his reinstatement should be treated as one spent on duty and counted for computation of leave due and award of increments etc.
Petition in person.
Mian Fida Hussain for Respondent.
2000 P L C 568
[Punjab Labour Appellate Tribunal]
Before Ghulam Ahmad, Appellate Tribunal
Dr. AKHLAQ AHMAD
versus
M.D., POLYMER (PVT.) LTD. and another
Appeal No.368-Lhr. of 1999, decided on 12th November, 1999.
Industrial Relations Ordinance (XXIII of 1969)---
----Ss.2(xxviii) & 25-A---"Workman", status of---Determination---Grievance petition---Maintainability---Doctor serving in a dispensary had claimed to be a "workman" contending that he had been keeping medicines and treating patients by not only paying mental attention, but by undertaking manual labour as well---Employee claimed that he was a workman as he had been administering injections and feeling pulse of patients and also had been issuing prescription slips---Such sundry and trivial things and acts could not determine Doctor as a "workman"---Primary or prominent, part of work would matter, and not , just casual, accidental, incidental, ancillary, subsidiary or subservient act or activity, which would make same truly manual and convert an instance of physical labour into labourer-like performance of duty---Qualified doctor, by no stretch of imagination, plead or claim to be a "workman", entitled to seek privileges and protection of a workman under the Labour laws.
Syed Ikhtisar Akhtar for Appellant.
2000 P L C 657
[Punjab Labour Appellate Tribunal]
Before Mian Ghulam Ahmad, Chairman
DEPUTY ADMINISTRATOR, COOPERATIVE MODEL TOWN
SOCIETY LIMITED, LAHORE
versus
MAKHDOOM AHMAD QURESHI
Appeal No. LHR-299 of 1999, decided on 10th March, 2000.
Industrial Relations Ordinance (XXIII of 1969)---
----Ss. 25-A, 37(3) & 51---Arrears of emoluments---Entitlement---Grievance petition---Appeal to Labour Appellate Tribunal---Employee was originally appointed as Cooli in Grade-I, but during course of time he earned promotion to the post of Meter Reader in Grade-7--Employee continuously worked on the said post for about seven years and was ousted from the service in consequence of an enquiry held against him---Employee who continuously worked on the post of Grade-7, his performance 'and conduct remained up to the mark and his A.C.Rs. depicted outstanding/excellent performance---Employee was though not confirmed on the said post to which he was promoted, but he continued to work to the "entire satisfaction of his superiors"---Employee was denied arrears of emoluments for the period of seven years despite he remained working on that post---Validity---When a post involved assumption of responsibility or performance of duty of a higher degree or greater importance, incumbent of said post could not be denied emoluments of that post---Employee, who had been drawing salary of Grade-1, for a long period of seven years despite working on higher post of Grade-7, was rightly found entitled to difference of balance of pay for said period even if employee had not been regularly promoted to higher post or had not been confirmed in that capacity---Judgment of Labour Court whereby employee was found entitled to get difference of pay, over and above which he had actually been paid was confirmed in appeal by Labour Appellate Tribunal.
Ch. Muhammad Rashid for Appellant.
Kh. Tariq Masud for Respondent.
2000 P L C 678
[Punjab Labour Appellate Tribunal]
Before Mian Ghulam Ahmad, Chairman
AMJAD ALI KHAN
versus
THE CONTROLLER, GOVERNMENT PRINTING AND STATIONERY, GOVERNMENT OF THE PUNJAB and another
Appeal No. LHR-73 of 1996, decided on 10th March, 2000.
Industrial Relations Ordinance (XXIII of 1969)---
----Ss. 2-A & 37(3)---Grievance petition.--Competency---Appeal before Appellate Tribunal---Appellant who had retired from service had filed grievance petition wherein he had claimed his outstanding dues, various retirement benefits and full quantum of pension---Grievance petition was returned by Labour Court holding that he being no, more in service after retirement, could not claim to be "workman" and invoke aid of Labour Court as only a person on the job could claim to be a "workman" and could file grievance petition---Validity---Appellant was not asking for his' reinstatement in service and had not assailed order of his retirement, but had only laid claim to his outstanding dues---Correctness of claim of appellant had to be determined in the light of evidence and relevant rules, but his grievance petition was returned simply on technical ground--Interpretation of law seeking safeguard and defend rights of working class was to be considered to be close to legal and statutory intent and objective and the contrary view would be perverse and averse to intention and aim of law and equity---Case of appellant could be proceeded in the Labour Court and same had to be thrashed and determined on merits---Case was remanded by Appellate Tribunal to Labour Court to decide afresh accordingly.
Farooq Zaman Qureshi for Appellant.
Sajid Hasan, Legal Assistant for Respondents.
2000 P L C 681
[Punjab Labour Appellate Tribunal]
Before Mian Ghulam Ahmad, Chairman
SHAUKAT ALI and others---Appellants
versus
COMMISSIONER, P.E.S.S.I., LAHORE and others---Respondents
Appeals Nos.QSA-286 and QSA-287 of 1999, decided on 15th November, 1999.
Industrial Relations Ordinance (XXIII of 1969)----
----Ss.l(3)(f), 25-A & 37(3)---Grievance petition---Competency---Appellants who were dismissed from service filed grievance petition under S.25-A, Industrial Relations Ordinance, 1969 which was dismissed by Labour Court being incompetent---Person being an employee of establishment set up for treatment or care of sick, infirm, destitute or mentally diseased people, could not have recourse to a Labour Court as provided under S.1(3)(f) of Industrial Relations Ordinance, 1969---Grievance petition which otherwise was delayed over period exceeding nine years being palpably time-barred, was rightly rejected being incompetent.
A.B. Malik for Appellants.
Muhammad Saeed Warraich for Respondents.
2000 P L C 682
[Punjab Labour Appellate Tribunal]
Before Mian Ghulam Ahmad, Chairman
Sh. FAZAL REHMAN & SONS LIMITED
versus
SHABBIR AHMED BUTT and 91 others
Revision Petitions Nos. MN-96 to 187 of 2000, decided on 21st July, 2000:
(a) Industrial Relations Ordinance (XXIII of 1969)---
----Ss.10(3), 25-A & 38(3-a)---- Grievance petition--Competency --- Factory set up by original owner, was nationalized and came under the control of Ghee Corporation which operated the same from 1973 to 1992---Corporation thereafter sold away the factory to original owners---Owners due to sustained deficit, borrowed huge amount and made payment to staff their dues in entirety in pursuance of a settlement arrived at between original owner of the factory and representatives of Labour Union---Employees according to terms of agreement left the factory and ceased to be employees of the .same---Registration of factory was' also cancelled alongwith annulment of registration of Collective Bargaining Agent (Employees' Union) and employees merited dismissal outright---Labour Court without taking into consideration the facts, accepted grievance petition filed by employees against their alleged wrongful ouster from service---Service of employees were not terminated by employers, but they themselves had left the factory according to agreement arrived at between the employers and Collective Bargaining Agent---Employees who ceased to be employees under employer after receiving their dues were not entitled to file grievance petition and Labour Court was not justified to proceed with grievance petition filed by the employees---Judgment of Labour Court was set aside by Labour Appellate Tribunal in exercise -of its revisional jurisdiction.
(b) Administration of justice-
---- Principles---Court seized of the matter was bound to take judicial notice of the changed situation and circumstances of case having taken place in course of proceedings after institution of the case---Court would be duty bound to take stock of material developments having occurred afterwards and even the relief that emanated had to be moulded accordingly.
Syed Safdar Imam Bukhari for Petitioner.
Muhammad Arif Rafique Sindhu for Respondents.
2000 P L C 686
[Punjab Labour Appellate Tribunal]
Before Mian Ghulam Ahmad, Chairman
Sh. FAZAL REHMAN & SONS LIMITED, MULTAN
versus
SHABBIR AHMAD BUTT
Revision Petition No.MN-630 of 1998, decided on 21st July, 2000.
West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)---
----S.O. 11-A---Industrial- Relations Ordinance (XXIII of 1969), Ss.10 & 38(3-a)---Closing of factory---Cancellation of registration of Trade Union--Agreement was arrived at between Collective Bargaining Agent and employer to close down the factory and to bring an end to the business activity and for termination of services of employees in manner of Golden Shake Hand Scheme or resignations being tendered by employees voluntarily, on receiving their dues in full and final payment thereof---. Employee who had not only voluntarily tendered his resignation on getting all his outstanding dues, but was also not an office-bearer of Trade Union and had no locus standi to participate in the proceedings and impleaded as party---Complications would crop up and proceedings for closure of factory would be prolonged unnecessarily if such employee, who had no locus standi, was permitted to become a party in proceedings---Order impleading respondent as party was set aside by Labour Appellate Tribunal holding that matter would proceed and be carried to conclusion without impleading said employee.
Syed Safdar Imam Bokhari for Petitioner.
M. Arif Raique Sindhu for Respondent.
2000 P L C 700
[Punjab Labour Appellate Tribunal]
Before Mian Ghulam Ahmad, Chairman
FARYAD HUSSAIN
versus
MANAGER, SAAD TEXTILE INDUSTRIES (PVT.) LTD., FAISALABAD
Appeal No.FD‑196 of 1998, decided on 22nd June, 2000.
Industrial Relations Ordinance (XXIII of 1969)‑
‑‑‑‑Ss. 25‑A & 37(3)‑‑‑West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.11‑A‑‑‑Closing of factory‑‑‑Grievance petition‑‑‑Rejection of‑‑‑Services of employee were terminated on ground that employer company had been closed due to liquidation and proprietorship/management of the defunct company had ceased to exist‑‑‑Grievance petition against the termination of service was dismissed by Labour Court‑‑‑No worthwhile material had been placed on record in proof of liquidation and no permission had been obtained from the Labour Court for the closure of company under S.O.11‑A of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968‑‑‑Closure of industry claimed by employer, in circumstances, had to be treated as a fictitious and a sham exercise‑‑‑Labour Court should have proceeded to record evidence to be led by the parties arid only in the light thereof, correct conclusion could be deduced‑‑‑Decision of Labour Court, which could not stand judicial scrutiny, was reversed by Labour Appellate Tribunal in appeal.
M. Ikram Zahid for Appellant.
Irshad Ali Mian for Respondent.
2000 P L C 107
[Karachi Labour Appellate Tribunal]
Before Dr. Tamil-ur-Rahman, Appellate Tribunal
MUHAMMAD JUMMA
Versus
Messrs FORBES FORBES CAMPBELL (PVT.) LIMITED and another
Revision Application No. KAR-116 of 1998, decided on 26th January, 1999.
Industrial Relations Ordinance (XXIII of 1969)-
----S.38(3-a)---Payment of Wages Act (IV of 1936), Ss.2(ii), 15 & 17--Overtime---Payment of---Entitlement---Employee had claimed that he performed his duty twelve hours a day for about two years, but he was not paid four hours' overtime for that period---Authority under Payment of Wages Act allowed said overtime, but in appeal filed by employer, order of Authority was set aside by Labour Court holding that place where employee had worked did not come within ambit of "industry "---Evidence on record had established that establishment where employee was working as Chowkidar, was a commercial establishment under West Pakistan Shops and Establishments Ordinance, 1969---Payment of Wages Act, 1936, being not applicable to employer-establishment, employee was rightly held not entitled to overtime claimed by him---Order of Labour Court could not be interfered with in revision by Labour Appellate Tribunal.
Gohar Iqbal for Applicant. Masud Ahmed Khan for Respondents.
Date of hearing: 26th January, 1999.
2000 P L C 111
[Labour Appellate Tribunal, Sindh].
Before Dr. Tamil-ur-Rehman, Chairman
PRECISION RUBBER PRODUCTS LABOUR UNION through Vice-President
Versus
Messrs REGISTRAR OF TRADE UNIONS, GOVERNMENT OF SINDH and another
Revision Application NoXAR-106 of 1998, decided on 31st August, 1999.
(a) Industrial Relations Ordinance (XXIII of 1969)---
----Ss. 10 & 38(3-a)---Cancellation of Trade Union---Service of notice of cancellation---Proof---Revision petition---Petitioner Labour Union whose registration was cancelled by Registrar, Trade Unions, had alleged that petitioner was condemned unheard as no notice of hearing was issued to petitioner by Registrar, Trade Unions, prior to cancellation of registration---' Onus to prove service of said notice was on Registrar, Trade Unions, but nothing had been produced on record by the Registrar, Trade Unions, to prove service of said notice---Registrar of Trade Unions having failed to discharge his burden, petitioner had rightly contended that he was condemned unheard.
(b) Industrial Relations Ordinance (XXIII of 1969)---
----Ss. 10, 11 & 38(3-a)---Revision---Limitation---Revision petition against judgment of Labour Court passed in appeal moved against order of Registrar, Trade Unions, was filed after about five months of date of decision passed in appeal---Revision suffered from laches because at the most three months' time had been considered to be the maximum as proper time by superior Courts for submitting revision petition.
Ashraf Rizvi for Applicant.
Jehangir Azar J.D.L
East Division for Respondent No.1
Mehboob Rizvi for Respondent No.2.
ORDER
This is a revision application under section 38(3-a) of the Industrial Relations Ordinance, 1969, against the order, dated 30-10-1997, passed in Appeal No.3 of 1996 under section 11(b) of the I.R.O., 1969, whereby the learned Presiding Officer, Labour Court No.5, Karachi, maintained the order, dated 26-11-1997, passed by respondent No.1 (Registrar of Trade Unions) cancelling the registration of the applicant trade union namely the Precision Rubber Products Union.
(1) The applicants were condemned unheard as no notice of hearing was received by the applicant from the respondent No. 1.
(2) That the union, notwithstanding the resignation of nearly all the workers and dismissal of 5/6 workers, still exists.
(3) The alleged closure of the factory is illegal without obtaining an order under Standing Order 11-A, of Standing Order Ordinance, 1968.
Dealing with the first plea, whether any notice for cancellation of the union was given or not, the onus to prove, entirely lay on the respondent (Registrar, Trade Unions.)
Mr. Azar, representing the Registrar, Trade Union, submitted that there were two unions in the management namely (1) The Precision Rubber Products Workers Union, Korangi, Karachi and (2) The Precision Rubber Products Labour Union, Korangi Karachi. The Workers Union was registered in or about 1972 whereas the Labour Union was registered in or about 1995. The Registrar, after registration of the second union (hereinafter referred to as the Labour Union, received a complaint, dated 2-9-1995, addressed to the Registrar by Mr. Muhammad Ali, President Workers Union (CBA) (hereinafter referred to as the Workers Union) making a number of allegations against the Labour Union (Page 95 of the R&P of the Registrar, summoned by this Tribunal). An employees of the Workers Union also lodged a complaint, dated 22nd July, 1996, to the Registrar, Trade Unions stating, inter alia, that some of the office-bearers of the Labour Union are also the office-bearers of the Workers Union including one Muhammad Sabir, the Vice-President of the Labour Union, also a nominated member of the, Workers Union, as nominated by the Works Council. He, therefore, prayed for enquiry under section 10(3) of the I.R.O., 1969, and cancellation of the registration of the Labour Union, issued in 1995. A certified true copy of the list of Worker Union, dated 14-7-1996, was also attached with it.
I went through the entire file to find out if there was any notice as required under section 10(3) of I.R.O., 1969, issued to the Labour union, but it was not on record. Mr. Azar submitted that notice was issued to Labour Union as well, but he was not able to point out any letter on record or even place it during these proceedings. I, therefore, find force in the submission of Mr. Ashraf Rizvi that the Labour Union was condemned unheard. But he was heard in appeal by the learned Labour Court.
Mr. Mehboob Rizvi, representative of the factory, however, submitted that all the members of the Labour Union have either submitted their resignations or retrenched or dismissed and there is no person in the employment of the factory, which is closed. In fact, an application for closure of the factory was made, under Standing Order 11-A, of the Standing Orders Ordinance, 1968, to the Labour Court seeking permission to close down the factory for the reason stated in the application. But in view of the fact that almost all the workers having resigned, retrenched or dismissed, the said application was withdrawn as the same had become infructuous, with permission of the Court. Admittedly, the factory was being run on plot No.48, Sector No.28, Korangi Industrial Area, Karachi, on a rented premises, which was taken on rent by the factory management. The company is now engaged in trading only on acquiring another plot of land bearing No.24 Sector 28, Korangi Industrial Area, Karachi. It is not at all engaged in manufacturing and is engaged in the trading only. As such, the Labour Union does not exist de fecto as there are no member, no employee and no workman, in the factory. There is no factory in working or factory premises.
It is also pertinent to note that there is laches in filing of the revision application. It was filed after about five months of the date of the decision in appeal. At the most, three months' time has been considered to be the maximum, as proper, time by the superior Courts for submitting, the revision applications.
In the facts and circumstances noticed above, I do not feel inclined to interfere with the decision of the learned Presiding Officer, Labour Court No.5, by invoking the jurisdiction, vested in me, under section 38(3-a) of the I.R.O., 1969. The revision application is, therefore, dismissed.
H.B.T./330-K/(L.Trib.) Revision dismissed.
2000 P L C 114
[Labour Appellate Tribunal, Sindh]
Before Dr. Tamil-ur-Rehman, Chairman
MUHAMMAD SHAREEF
Versus
FAUJI FERTILIZER COMPANY, RAWALPINDI and another
Revision Application NOXAR-13 of 1999, decided on 18th August, 1999
Industrial Relations Ordinance (XXIII of 1969)---
----Ss. 25-A & 38(3-a)---Grievance petition---Closing right of cross-examination Revisional jurisdiction, exercise of by Appellate Tribunal--Respondents/employers filed affidavits-in-evidence of their two witnesses and proceedings were adjourned for cross-examination of said witness by petitioner/employee---Matter was adjourned from time to time on request of petitioner/employee for the reason that his counsel remained absent---After about thirteen adjournments petitioner/employee had failed to cross-examine witnesses of employer---On final date of hearing petitioner/employee or his counsel having failed to appear, right of employee to cross-examine witnesses of employer, was closed by Labour Court and main petition filed under S. 25-A, Industrial Relations Ordinance, 1969, by employee was fixed for final arguments---Validity---Order of Labour Court closing right of employee to cross-examine witnesses of employer not suffering from any illegality or impropriety could not be interfered with by Labour Appellate Tribunal in exercise of its revisional jurisdiction especially when application under S. 25-A, Industrial Relations Ordinance, 1969 had already been disposed of.
Nemo for Applicant. Masood A. Khan (on Pre-Admission Notice).
ORDER
This is a revision application under section 38 (3-a) of the Industrial Relations Ordinance, 1969, against the order, dated 22-2-1999, passed by the learned Presiding Officer, Sindh Labour Court No.5, Karachi, dismissing the application of the applicant for re-calling the order, dated 21-11-1998.
I have heard Mr. Masood A. Khan, Advocate for the respondent, on pre-admission notice. It is submitted by him that on 28-10-1997, the respondents filed affidavits-in-evidence of, two witnesses namely M/s. Matiullah and Saifullah. The case was then fixed for cross-examination of the respondent's witnesses. It was adjourned from time to time mainly for the reason that .the applicant's counsel remained absent or requested for time. Ultimately, the case against came up for cross-examination on 6-10-1998; meanwhile,' the case had already been adjourned for thirteen (13) times for cross-examination during the year. However, the learned Labour Court, showing its leniency, again gave a last chance to the applicant's counsel for cross-examination of the respondent's witnesses and the case was fixed for 24-10-1998. The case was, later on fixed for 19-11-1998. On that day too, adjournment was sought on the ground that his counsel was busy in the High court and the case may be fixed on any "Saturday". Accordingly, it was fixed for 21-11-1998, being Saturday, as requested on behalf of the applicant. On the said date, applicant's right to cross-examine the respondents' witnesses was closed as none for the applicant was present, neither the applicant nor his counsel.
Mr. Khan, therefore, submitted that the learned Labour Court was, thus, constrained to close the right of applicant of cross-examining the respondent's witnesses for their absence and fixed the main application under section 25-A of the I.R.O. 1969 for final arguments for 8-12-1998.
However an application was moved on behalf of the applicant for recalling the order, dated 21-11-1998, which was rejected by his order, dated 22-2-1999, against which this revision application has been filed.
Lastly, learned counsel for the respondent submitted that the main case under section 25-A of the I.R.O. 1969, has already been disposed of by the learned Labour Court by his order, dated 31-5-1999, and therefore, this revision application has already become infructuous.
I have gone through the order, impugned in this revision application and find no illegality, incorrectness or impropriety in the order, passed by the learned Presiding Officer of Labour Court No.5 and it is not a fit case for interference by this Tribunal in its revisional jurisdiction.
It also seems pertinent to observe that the main application under section 25-A of the I.R.O., 1969, has already been disposed of, as submitted by Mr. Khan. This revision application has, otherwise, become infructuous.
In view of what has been stated above, the revision application is dismissed in limine.
It may be added that when I was at the close of dictating the above order, Mr. Ghulam Nabi, junior of Mr. Gohar Iqbal, Advocate for the applicant, made his appearance and submitted that Mr. Gohar Iqbal is busy in the High Court, seeking adjournment, which request, was rejected by me.
H.B.T./325/K(Lab.) Trib). Revision dismissed.
2000 P L C 123
[Labour Appellate Tribunal Sindh]
Before Dr. Tanzil-ur-Rehman, Chairman
Messrs NAJAM & NISAR TEXTILE (PVT.) LTD. Through
Manager
Versus
MUHAMMAD NIAZ
Revision Application No.KAR-46 and Miscellaneous Application No. 216 of 1999, decided on 13th August, 1999.
Industrial Relations Ordinance (XXIII of 1969)---
----S. 38(3-a)---Revision---Maintainability---No illegality, impropriety or even incorrectness had been found in order passed by Labour Court on a miscellaneous application---Said order of Labour Court could not be interfered with by Labour Appellate Tribunal in revisional jurisdiction--Revision application was dismissed being not maintainable.
Muhammad Faruq Ghani for Applicant.
JUDGMENT
This is a revision application under section 38(3-a) of the Industrial Relations Ordinance, 1969 against the order, dated 12-3-1999, passed on a miscellaneous application by the learned Presiding Officer, Sindh Labour Court No.1, Karachi. The order being very short, it seems beneficial to reproduce as under:-- '
" Heard the learned counsel for the parties. The evidence of the respondent's side had not yet started. The applicant has still not been cross-examined. The respondent side would be at liberty to produce any such document with the affidavit during its evidence. The present stage seems to be a premature stage for moving of this application for summoning the contractor. However, any such evidence may be summoned if the Court deems fit in the interest of justice; for the time being the respondent is required to cross-examine the applicant This application is accordingly disposed of.
Announced in open Court.
(Sd)
(Akhtar Farooq)
Presiding Officer, Sindh Labour Court No. 1, Karachi."
I have heard Mr. Muhammad Farooq A. Ghani, learned counsel for the applicant- I find no illegality, impropriety or even incorrectness in the order, impugned before me in the revision application. Moreover, the evidence has not yet started. The practice of filing applications and on rejections, coming in revision in the Tribunal has become a fashion, which hampers the proceedings of the main case and disturbs the course of justice
4.Miscellaneous Application No. 216 of 1999 having become infructuous also stands dismissed.
H.B.T./322-K (L.Trib). Revision dismissed.
2000 P L C 124
[Labour Appellate Tribunal Sindh]
Before Dr. Tanzil-ur-Rahman, Chairman
Messrs NATIONAL FIBRES LTD. through Manager
Versus
MUHAMMAD AKRAM
Revision Application No. KAR-52 and Miscellaneous Application No. 230 of 1999, decided on 31st August, 1999.
Industrial Relations Ordinance (XXIII of 1969)---
----Ss. 25-A(4)(5), 36 & 38(3-a)---Power and duty of Labour Court in adjudicating and determining grievance ---Revisional jurisdiction by Labour Appellate Tribunal, exercise of---Labour Court after hearing parties, passed a speaking order giving reasons for summoning witnesses which order was within competence of Labour Court---Duty under provisions of S.25-A(5), Industrial Relations Ordinance, 1969, had been cast on Labour Court that while adjudicating and determining a grievance, under S.25-A(4) of the Ordinance, Labour Court would go into all facts of the case and pass just and proper order taking into consideration, circumstances of case---Powers exercisable under Civil Procedure Code in interest of justice had also been vested in Labour Court under S.36, Industrial Relations Ordinance, 1969--Order passed by Labour Court which was correct and not suffering from any infirmity in law, could not be interfered with in revisional jurisdiction by Labour Appellate Tribunal.
Faruq Abdul Ghani for Applicant.
ORDER
This is a revision application under section 38(3-a), of the Industrial Relations Ordinances 1969, against an order, dated 29-7-1999, passed by the learned Presiding Officer, Labour Court No. 1, Karachi.
Heard the learned counsel for the applicant/management and perused the order, impugned in this revision.
In support of the application, summoning a number of persons as witnesses, an affidavit has also been filed wherein it has been, inter alia, asserted that the documents, produced by the applicant along with their affidavit-in-evidence, were not mentioned in the reply statement and secondly the said documents are fabricated and bogus. The learned Labour Court, after hearing the parties at some length, passed a speaking order, giving the reasons for summoning the witnesses. The order, impugned in the revision, is within the competence of the learned Labour Court. In fact, section 25-A(5) casts duty on the Presiding Officer that while 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. Section 36, over and above, vests in the Labour Court, the powers, exercisable under the Civil Procedure Code in the interest of justice. '
I am clear in may mind that the order, impugned in this revision, is correct and does not suffer any infirmity in law. The order, impugned in the, revision is, therefore, upheld and maintained.
Mr. Faruq Abdul Ghani, at the end of his arguments, submits that the side of the respondent/applicant has already been closed and he will be deprived of leading further evidence. I think, if the respondents, after the evidence summoned by the learned Labour Court on behalf of the respondent/worker, is closed and if the management (applicant herein) feels the necessity to rebut the evidence, he will be allowed to do so by making an application on disclosing of proper grounds.
The production of witnesses, as per list, submitted by the respondent/worker, will be his responsibility. The Court will, however, render proper assistance to issue and get the summons served through legal means, available to it at the cost of respondent.
With the above observations, the revision application stands dismissed in limine.
Miscellaneous application No.230 of 1999 in view of the order, passed in the revision, the application has become infructuous and is dismissed accordingly.
H.B.T./332-K/(L. Trib) Revision application dismissed.
2000 P L C 126
[Labour Appellate Tribunal Sindh]
Before Dr. Tanzil-ur-Rehman, Chairman
Messrs RAFHAN BESTFOODS LIMITED through Dy.
Director, Human Resources and Administration
Versus
NASIR JAMAL QURESHI
Revision Application No.KAR-53 and Miscellaneous Application No. 232 of 1999, decided on 31st August, 1999.
Industrial Relation Ordinance (XXIII of 1969)---
----S. 38(3-a)---Revisional jurisdiction by Labour Appellate Tribunal--Exercise of---Revision application before Labour Appellate Tribunal against order whereby Labour Court had directed employee to produce certain documents pertaining to his employment had been disputed by employer in revision application filed by him before Labour Appellate Tribunal under S.38(3-a) Industrial Relations Ordinance, 1969---Validity---Revision application was misconceived as direction to produce documents -was given by Labour Court to employee and not to applicant/employer and said direction was complied with---In absence of any illegality or even impropriety in order of Labour Court, such order could not be interfered with in revisional jurisdiction by Labour Appellate Tribunal.
Muhammad Rehan Aqeel for Applicant. Respondent on Pre-Admission Notice.
2000 P L C 128
[Labour Appellate Tribunal Sindh]
Before Dr. Tanzil-ur-Rehman, Chairman
Messrs BLUE RIBBON BAKERS through Proprietor
Versus
FAROOQ AHMED
Revision Application No. KAR-44 and Miscellaneous Application No. 189 of 1999, decided on 9th August, 1999.
Industrial Relations Ordinance (XXIII of 1969)---
----Ss. 25-A, 36(2)(a)(b) & 38(3-a)---Grievance petition---Application for summoning record and,, production of witnesses---Revision petition---On filing grievance petition by employee against termination of his service, employer filed written statement and matter was fixed for evidence of parties---Employee filed his affidavit-in-evidence and he was cross-examined by employer and thereafter, employer filed affidavit-in-evidence and matter was fixed for his cross-examination---On date fixed for cross-examination of employer by employee, employee filed application under S.36(2)(a)(b), Industrial Relations Ordinance, 1969 for ordering employer to produce documents mentioned in said application and to produce certain witnesses in Court---Labour Court put off cross-examination and ordered issuance of notice to employer---Validity---Labour Court should have proceeded with cross-examination of employer and after said cross-examination was over, if Labour Court felt that any lacuna existed, it could call for record or summon the witnesses---To leave main case and move to side-track the real issue was against policy of Labour Laws which required disposal of grievance petitions under S.25-A Industrial Relations Ordinance, 1969 within seven days as provided in S-25-A ---Order of Labour Court was set aside by Labour Appellate Tribunal in exercise of revisional jurisdiction directing Labour Court to record cross-examination of employer and examine any other witness.
M.A.K. Azmati for Applicant.
Turab Ahmed and Miss Rehana for Respondent.
2000 P L C 134
[Labour Appellate Tribunal, Sindh]
Before Dr. Tanzil-ur-Rehman, Chairman
ASGHAR HUSSAIN
Versus
BOC GASES, BOC PAKISTAN LIMITED through Managing Director
Revision Application No.KAR-12 of 1999, decided on 20th August, 1999.
Industrial Relations Ordinance (XXIII of 1969)---
----Ss. 25-A & 38(3-a)---Dismissal of grievance petition for nonprosecution---Restoration---Revisional jurisdiction by Labour Appellate Tribunal, exercise of---Reply statement was filed by employer and matter was adjourned for filing of affidavit-in-evidence by employee---After about ten adjournments sought by employee within seven months, he could not file said affidavit-in-evidence and on last and final date fixed for hearing neither employee nor his counsel appeared and grievance petition was dismissed for non-prosecution---Validity---Law would help vigilant and not indolent--Application for restoration of grievance petition filed by employee after about twenty-seven days from its dismissal, was dismissed by Labour Court--Order dismissing application for restoration of grievance petition had been passed by Labour Court in accordance with law---In absence of any illegality, incorrectness or even impropriety in the order passed by Labour Court, same could not be interfered with in revisional jurisdiction in Labour Appellate Tribunal.
(b) Maxim----
---- Law helps vigilant and not indolent.
Ghulam Nabi and Gohar Iqbal for Applicants.
Shahid Anwar Bajwa for Respondent (on Pre-Admission Notice).
2000 P L C 158
[Sindh Labour Appellate Tribunal]
Before Dr. Tanzil-ur-Rehman, Chairman
MUSLIM COMMERCIAL BANK LTD. and another
Versus
SALAHUDDIN ANJUM and another
Appeals Nos. KAR-335 and 426 of 1997, decided on 8th March, 1999.
Industrial Relations Ordinance (XXIII of 1969)-
----Ss. 2(xxviii) & 25-A---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S. 2(i), Os. 12(3) & 15(3)---Dismissal from service---Employee being Officer Grade-III in Bank was dismissed from service after holding inquiry against him on. allegation of gross negligence whereby Bank suffered loss of considerable amount---Grievance petition filed by employee was objected to by Bank contending that employee was not "workman" within the meaning of S. 2(xxviii) of Industrial Relations Ordinance, 1969 as employee being Officer in Grade-III was performing duties of supervisory nature---Employee had contended that he did not claim to be a worker under S. 2(xxviii) of Industrial Relations Ordinance, 1969, but he claimed to be a "workman" under S. 2(i) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and that this case fell within purview of S.O. 12(3) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968---With consent of parties matter was remanded to Labour Court to decide afresh after allowing parties opportunity to lead further evidence for their respective claims.
Respondent/Appellant with Sayed Fasahat Hussain Rizvi for Respondent.
Mahmood A. Ghani for Appellant/Respondent.
2000 P L C 166
[Sindh Labaour Appellate Tribunal]
Before Dr. Tanzil-ur-Rehman, Chairman
COCA-COLA BEVERAGES PAKISTAN LTD
Versus
BASARAT HUSSAIN and another
Appeals Nos. KAR-5 and KAR-6 of 1999, decided on 16th March, 1999.
(a) Industrial Relations Ordinance (XXIII of 1969)---
----Ss. 2(xxviii) & 25-A---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S. 3(i)-- Workman--- Determination--- Grievance petition---Maintainability--Employees being Shift Officers looked after managerial and supervisory works of respective shift not concerning any manual or clerical work---In case employees were required to do some manual or clerical work, that was merely ancillary, incidental and auxiliary in nature and hardly took half an hour in eight hours working which could not form pith and substance of their job---Employees, in circumstances, were not workmen and their grievance petition filed under S. 25-A of Industrial Relations Ordinance, 1969 was liable to be dismissed being not maintainable.
General Manager, Hotel Intercontinental, Lahore and another v. Bashir A. Malik and others PLD 1986 SC 103; Muhammad Sadiq v. Hotel Intercontinental, Lahore and another PLD 1988 SC 633; Shahi Bottlers (Pvt.) Ltd. v. Punjab Labour Appellate Tribunal, Lahore and others 1993 SCMR 1370 and Imran v. Sindh Labour Appellate Tribunal and another PLJ 1981 Kar. 413 ref
(b) Industrial Relations Ordinance (XXIII of 1969)---
----S. 25-A---Grievance petition---Competency--Grievance petition against order terminating services was filed by employees without first serving upon employer notice as provided under S. 25-A(1) of Industrial Relations Ordinance, 1969 which was fatal to case of employees---Labour Court in circumstances, was not justified in accepting grievance petition filed by employees---Order of Labour Court reinstating employees with back benefits, being null and void, was set aside.
Obaidullah v. The Labour Court No.5 Karachi and 2 others 1981 PLC 321 and Koh-e-Noor Batteries Manufacture Company v. Lal Muhammad and another 1975 PLC 196 ref.
A. Hafiz for Appellant.
Muhammad Nishat Warsi and S.P. Lodhi, Representative for Respondents.
2000 P L C 172
[Sindh Labour Appellate Tribunal]
Before Dr. Tanzil-ur-Rehman, Chairman
DISTRICT MANAGER, S.R.T.C., BADIN DISTRICT
Versus
GHULAM MUHAMMAD
Revision Application No.HYD-229 of 1998, decided on 30th April, 1999.
(a) Qanun-e-Shahadat (10 of 1984)---
----Arts. 117 & 118---Burden of proof---Anyone who claims a certain right in his favour against other, burden of proving same would be on him as to prove that claim.
(b) Industrial Relations Ordinance (XXIII of 1969)---
----S. 25-A---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.Os. 1(d)(e) & 12(3)---Badli worker---Termination of service--- "Badli" workman ---Status--Determination---Employee though had worked for more than 183 days during a year, but he worked with gaps ranging from 2/3 days after sixty days total period---Nothing had been produced on record to show that case of employee was that of "Badli"---Employee having not attained status of permanent workman he was not entitled to notice of termination as provided under S.O. 12(3) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968).
Devdas M. Udeshi, Law Officer for Applicant.
Shaikh Wahid Bux for Respondent.
2000 P L C 175
[Sindh Labour Appellate Tribunal]
Before Dr. Tanzil-ur-Rehman, Chairman
Messrs SGS PAKISTAN (PRIVATE) LTD, Versus
MUHAMMAD NOORULLAH KAZI and 3 others
Appeals Nos. KAR-376 to KAR-379 of 1998, decided on 2nd March, 1999.
(a) West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)--
----S. 2(i)---Workman---Determination---Employees exclusively working as Computer Operators in company were neither assigned nor were doing any managerial duty---Employees also had no power to grant leave to any worker and were doing their job by themselves without any assistance of anyone else under supervision of a supervisor--Job of Computer Operator was coupled with manual and skilled work and it was pith and substance of employees' job ---Employees, in circumstances, were 'workmen' within meaning of S.2(i) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968.
PLD 1986 SC 103 ref.
(b) Industrial Relations Ordinance (XXIII of 1969)---
----S. 25-A---Grievance petition---Maintainability---Grievance petition was filed by employees against two companies, one a Pakistani Company and the other a Foreign Company---Employees, in fact, were employed by Foreign Company and both Pakistani and Foreign Companies were not one and same establishment as found by Labour Court---Employees were appointed for and on behalf of Foreign Company and letters of confirmation of services of employees were also issued by Foreign Company- and termination letters were also issued by Foreign Company---Cheques in full and final settlement of dues of employees were also issued by Foreign Company---Pakistani Company was a Joint Stock Company registered under Companies Ordinance, 1984 whereas Foreign Company was established only as an "agency" after getting a contract from Government of Pakistan---Both Companies were engaged in their business activities and affairs in two different directions---Merely because offices of both Companies were situated in same building would not make them as one establishment--Foreign Company had closed down its establishment and its contract with Government of Pakistan had come to an end---Employees, in circumstances, could not claim themselves as employees of Pakistani Company---Service of employees having been terminated by Foreign Company in accordance with law, grievance petition filed by employees against Pakistani Company were not maintainable.
Muhammad Aqil v. Sindh Labour Appellate Tribunal PLD 1974 Kar. 25 and PLD 1984 Kar. 292 ref. '
M.L. Shahani for Appellants.
Muhammad Tasnim for Respondents.
1999 P L C 184
[Sindh Labour Appellate Tribunal]
Before Dr. Tanzil-ur-Rehman, Chairman
Messrs KOTRI TEXTILE MILLS LTD.
Versus
THE COMMISSIONER FOR WORKMEN'S COMPENSATION, HYDERABAD and another
Appeal No.WCH-5 of 1998, & decided on 18th January, 1999.
Workmen's Compensation Act (VIII of 1923)-
----S. 32---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O. 10-B---Payment of amount under compulsory group insurance by employer---Appeal---Maintainability--Employer fling appeal against order whereby it was ordered to pay to employee amount of death compensation towards group insurance, had failed to deposit with Commissioner for Workmen's Compensation amount payable which was condition precedent for filing the appeal---For such default and there being no question of law being involved in appeal filed by employer same was dismissed- being not maintainable.
M.A.K. Azmati for Appellant.
Date of hearing: 18th January, 1998.
2000 P L C 186
[Sindh Labour Appellate Tribunal]
Before Dr. Tanzil-ur-Rehman, Chairman
TARIQ IKRAM and 2 others
Versus
NAEEMA BEGUM
Revision Application No.KAR-261 of 1998, decided on 11th January, 1999.
Industrial Relations Ordinance (XXIII of 1969)---
----Ss. 25-A(3) & 38(3-a)---Failure of employer to give effect to decision of Labour Court---Revision application---Maintainability---Pending application of employee filed under S.25-A(8) of Industrial Relations Ordinance, 1969 whereupon charge was framed, employer filed application under S.249-A, Cr.P.C. which was dismissed by Labour Court---Charge framed by Labour Court on application of employee being not groundless on merits, revision application filed by employer against order of Labour Court, was without any force and was dismissed.
Muhammad Latif Saghar for Applicants.
Shafique Ahmed Qureshi for Respondent.
2000 P L C 187
[Sindh Labour Appellate Tribunal]
Before Dr. Tanzil-ur-Rehman, Chairman
REHMATULLAH KHAN
Versus
Messrs SMITH KLINE AND FRENCH OF PAKISTAN LTD. and another
Appeal NOXAR-288 of 1997, decided on 3rd May, 1999.
Industrial Relations Ordinance (XXIII of 1969)---
----Ss. 25-A---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O. 15(3)(b)---Misconduct--Dismissal from service---Employee was dismissed from service after holding inquiry against him on allegation of misconduct viz. fraud, theft or dishonesty---Inquiry against employee was held by an independent Inquiry Officer who afforded full opportunity of hearing to the employee---Inquiry Officer in his report had found that it was not a case of carelessness, but was case of misconduct as provided under S.O. 15(3)(b) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968---No exception could be taken as to finding of Inquiry Officer and Labour Court whereby order of dismissal was upheld.
M.M. Jeelar for Appellant.
Syed Qamaruddin Hassan for Respondents.
2000 P L C 191
[Sindh Labour Appellate Tribunal]
Before Dr. Tanzil-ur-Rahman, Chairman
ABDUL JABBAR KHAN
Versus
Messrs GUL AHMED TEXTILE MILLS LTD. and another
Revision Application No.5 of 1999, decided on 19th March, 1999.
Industrial Relations Ordinance (XXIII of 1969)---
----Ss. 25-A & 38(3-a)---Grievance petition---On filing grievance petition for reinstatement in service, employee filed his affidavit-in-evidence and case was put off for his cross-examination, which remained put off for about thirty times and employee failed to appear for cross examination without any plausible reason---Labour Court gave five last chances, but employee still failed to appear---Labour Court dismissed case for non-prosecution after more than a year---Validity---Case was rightly dismissed by Labour Court as employee did not appear despite Labour Court showed leniency and kindness to him in granting opportunity---Application for recalling its order was rightly dismissed by Labour Court in circumstances.
M:A.K. Azmati for Applicant.
Masood A. Khan for Respondents
2000 P L C 194
[Labour Appellate Tribunal Sindh]
Before Dr. Tanzil-ur-Rehman, Chairman
Messrs MUGHAL WORKS
Versus
Mian SAID KHIZAR and 16 others
Appeal No.KAR-214 of 1997, decided on 15th April, 1999.
(a) Industrial Relations Ordinance (XXIII of 1969)---
----S. 25-A---Grievance petition---Maintainability---Grievance notice was addressed by employees to wrong person and grievance petition was also filed against wrong person---Grievance notice was bad in law and was of no consequence and grievance petition was also not maintainable.
(b) Qanun-e-Shahadat (10 of 1984)---
----Arts. 117 & 118---Burden of proof---Whoever claimed certain rights in his favour, had got to prove the same.
(c) Industrial Relations Ordinance (XXIII of 1969)---
----S. 51---Back benefits---Entitlement---Employees who claimed back benefits, did not state that they remained unemployed from date of their termination/gate-stop ---Not believable that an ordinary labour would remain unemployed for about ten years---Employees were not entitled to back benefits ,claimed by them.
Muhammad Bashir and others v. Chairman, Punjab Labour Appellate Tribunal, Lahore and others 1991 SCMR 2087 ref.
Riaz Hussain Baloch for Appellant.
Malik Noor Khan for Respondents.
JUDGMENT
This is an appeal filed under section 37(3) of the Industrial Relations Ordinance, 1969, against the decision dated 2-9-1997 passed in Grievance Application No.22 of 1989 (old number) 159 of 1993 (new number) by the learned Labour Court No.3. Karachi, ordering reinstatement of all the seventeen respondents with back benefits.
The facts leading to the above appeal, briefly stated, are that the respondents filed an application under section 25-A(10) of the Industrial Relations Ordinance, 1969 against Mughal Steel Re-Rolling Mills on 1-2-1989 alleging, inter alia, that they were working with the said Mughal Steel Re-Rolling Mills for the last three and half years. They had formed a trade union in the name and style of Mughal Steel Re-Rolling Mills Labour Union which annoyed the management. On 26-12-1989, when they went for duty, they were not allowed to do so and were gate-stopped removed from employment without issuing any letter of termination. Being aggrieved of the aforesaid gate-stop and removal from employment, they submitted an application against Mughal Steel Re-Rolling Mills to the Joint Director, West Division, Karachi, but with no result. The respondents sent grievance notices under section 25-A of the I.R.O., 1969 (addressed to Mughal Steel Re-Rolling Mills) under registered post on 30-1-1989, but the same were returned unserved with the remarks by the postman "refused to accept." Thereafter, they filed an application under section 25-A(10) of the I.R.O., 1969 for reinstatement with back benefits in the Labour Court. Notices were issued by the learned Labour Court in the name of M/s. Mughal Steel Re-Rolling Mills. The appellant (M/s. Mughal Works) received the said notice and filed the reply statement. It was pleaded that the Court's notices has been delivered to Mughal Works instead of Mughal Steel re-Rolling Mills. Since the address was shown as Plot No.A-36, S.I.T.E., Karachi, it was received by them. Hence, as a preliminary objection, it- was submitted in the said reply statement that the case was liable to be dismissed rejected against M/s Mughal Works being not party to the case. The learned Labour Court, however, proceeded with recording evidence of the respondents. All the 17 respondents filed their affidavits-in-evidence, same and similar in contents, but only three of the respondents namely Mian Said Khizar, Muhammad Riaz Khan and Yousuf Khan, at serials Nos. 1. 2 and 10, were cross-examined. Learned counsel for the parties, however, agreed that the cross-examination of respondents Nos.2 and 10 namely Muhammad Riaz Khan and Yousuf Khan be adopted as cross-examination for rest of the respondents. On behalf of the appellants Muhammad Nawaz and Muhammad Nazar filed affidavits-in-evidence and were cross-examined.
The learned Labour Court, after hearing the arguments, passed an order dated 19-7-1992, whereby the grievance petition was dismissed.
Being aggrieved with the said order of the learned Labour Court, the respondents filed an Appeal bearing No. KAR-530 of 1992 in this Tribunal, which came up for hearing before the then learned Chairman of this Tribunal. The order, dated 14-10-1993, passed in appeal, being very short, is re-produced below:-----
EXTRACT FORM ORDER SHEET 14-10-1993.
Mr. Khalilur Rehman for the appellant. None present for the respondent. Case was decided only on the point of limitation.
Fragmentary disposal of the case is not to be normally resorted to as it entails worry to the litigants.
I will allow the appeal and remand the case back to the Labour Court for disposal in accordance with law.
(Sd.) Appellate Tribunal."
Before proceeding further, it seems pertinent to observe that the representative of the workers did not place the facts correctly before the learned Chairman. The decision, impugned in the earlier appeal, was not only on the point of limitation and not at all fragmentary, as mentioned in the order in the appeal. It was a full fledged Judgment on all the points raised before the learned Labour Court, based on facts on record, dealing with the points of maintainability of the application--whether the respondents therein were carrying on their business in the name and style of Mughal Works or Mughal Steel Re-Rolling Mills, relationship of employer and employee between the parties, the point of notice and the question of back benefits were all discussed thoroughly. No plea of limitation was raised in the Labour Court nor it has been raised now.
On remand, however, the case was renumbered as 159 of 1993 (which was not necessary as it was remanded to the same Court), The learned Labour Court, after remand, recorded the evidence of the Postman on the point, of service of the grievance notice, but, here I am constrained to make an observation that it took four years to re-decide the case by his Judgment dated 2-9-1997, which has been impugned in appeal before this Tribunal.
Mr. Riaz Hussain Baloch, learned Advocate for the appellant (Mughal Works) raised the following pleas:-----
(1) That the Mughal Works is not Mughal Steel Re-Rolling Mills, the entire proceeding was misconceived.
(2) Grievance notice dated 3-1-1989 was addressed to M/s. Mughal Steel Re-rolling Mills and not to Mughal Works. The notice, therefore, is also bad in law.
(3) The finding of the learned Labour Court as to the relationship of the appellant and the respondent are wrong.
(4) In any case and without prejudice to the above, the back benefits, allowed to the respondents are not justified.
As regards the first plea, the respondents/applicants did not produce any documentary evidence to show that Mughal Works, the appellant and Mughal Steel Re-Rolling Mills, against whom the application was filed, are one and the same. They, however, produced one witness Gul Khaliq, who inter alia, stated in his affidavit-in-evidence that the respondent (Mughal Steel Re-Rolling Mills) in the grievance application is generally known as Mughal Steel Re-Rolling Mills and the name of the Proprietor is Muhammad Nawaz. The respondents filed grievance application against Mughal Steel Re-Rolling Mills. Grievance notice was also addressed in the name of Mughal Steel Re-Rolling Mills. The appellant maintained, throughout, that they have been running their factory in the name and style of M/s. Mughal Works and not in the name of Mughal Steel Re-Rolling Mills. The appellants produced as many as 16 documents along with their written statement which include licence, dated 12-5-1986 from Central Excise and Land Customs, S.I.T.E., Division, Karachi, its application for renewal, dated 26-11-1986, licence, dated 20-8-1987 to engage in business in connection with excisable goods, tenancy agreement and a number of bank documents, all issued in the name of Mughal Works. This aspect of the matter has been totally ignored by the learned Labour Court in the Judgment in appeal. The Judgment is completely silent on it.
It has also come on record that A-36 is an industrial plot. A portion whereof measuring 70 x 80 feet, as per tenancy agreement (Annexur R/5 to the reply statement) belongs to the owner of plot of Barafwala Silk Mills.
I, therefore, hold that the appellant (Mughal Works) are not one and the same as Mughal Steel Re-Rolling Mills; as such, the application was mis-conceived and filed against a wrong.
It is pertinent to note that this objection was taken by the appellant Mughal Works, on the very first day when they appeared in the Labour Court as long back as 1989. The first paragraph of the written statement mentions such assertion and the documents R/l to R/16 fully support their plea. No step as to rectify the mistake, on the part of the respondents/applicants was ever taken. As such it is held that the application under section 25-A(10) of I.R.O, was not maintainable as it was filed against a wrong person. The application, thus, falls flat.
Dealing with the second point--the grievance notice was sent on 3-1-1989 by registered post which appears to have been presented to the appellants (Mughal Works), as stated by the Postman (whose evidence was recorded later on), It was refused by them as it was addressed to a wrong person, I agree with the submission of the learned counsel for the appellant that the grievance notices, therefore, were bad in law and of no consequence The learned Labour Court, in its judgment, dated 2-9-1997, impugned in this appeal, does not appear to have adverted to this aspect of the matter except referring to the statement of the postman, which has little significance.
As regards relationship between the appellant and the respondents, as employer and employees, the finding also appears to be 'misconceived.
The appellants have specifically denied the relationship of employer and employee between respondents Nos. 1, 5, 6, 7, 8, 12 and 13 to 17, but so far as the remaining six respondents are concerned, the appellant admitted that they have been in their employment, but for some short periods, as detailed below:
Respondent No.2 May, 1986 to May, 1987.
Respondent No. 3 September, 1988 only.
Respondent No.4. June, 1988 to July, 1988.
Respondent No.9 November, 1986 to June, 1987.
Respondent No. 10 July, 1988 to October, 1988.
Respondent No. 11 July, 1988. "
It was, thus, incumbent on the said workers to produce some evidence-in-proof of their assertions that they worked for -three and a half years, which is' disproved by the official documents, produced by the appellate, as referred to in para.8 above. The Mughal Works started its business in the middle of 1996 as also proved by the Tenancy Agreement and the letter of commencement of business, As such, the appellant came into existence in the I middle of 1996. It was, thus, nonexistent in 1985. It is settled law that whoever claims certain rights in his favour has got to prove the same.
At this stage, Malik Noor Khan, Learned counsel for the respondents offered that he will withdraw his case, if the appellant, present in the Court, makes a statement that the eleven workers did never work in his factory. Muhammad Nawaz, Proprietor of the appellant made such a statement on Oath. The learned counsel for the respondents filed a statement withdrawing the case, filed by 11 workers as not pressed. The remaining six respondents namely Muhammad Raees Khan, Gul Dali Khan, Sher Muhammad, Fazalur Rehman Yousuf Khan and Guncha Gul have been in the employment of the appellant M/s Mughal Works, though for a short period, I asked Mr. Riaz Hussain Baloch, the learned Counsel for the appellant, if his client was ready to take back into employment the said six workers/respondents named above, the learned counsel, after consulting with the proprietor of Mughal Works Muhammad Nawaz, stated that they would be ready to re-employ the said six workers and they can even report for duty even tomorrow.
Learned counsel for the respondents admitted that the respondents Nos. 2, 3, 4, 9, 10 and 11 are entitled to reinstatement and not reemployment. The submission is not tenable in law. Since it has already been held by me that the grievance application, as framed and filed, was not maintainable and so also the grievance notice as held by me as bad in law and, furthermore, the respondents failed to establish that they all worked as permanent employees for complete three and a half years, question of reinstatement does not arise.
As regards back benefits, the respondents simply stated in their affidavits-in-evidence that they were entitled to back benefits, Nothing has been said by them that they remained unemployed from the date of their termination/gate-stop. It is equally unbelievable that an ordinary labour will remain unemployed for about ten years, As such; they are not entitled for the back benefits as also held by the Hon'ble Supreme Court in Muhammad Bashir and others v. Chairman, Punjab Labour Appellate Tribunal, Lahore and others (1991 SCMR 2087).
In any case having held that the application itself was not maintainable and the notice was bad in law, it was not necessary for me to go into the question of back benefits, but as offered by the appellant the said six workers namely Muhammad Raees Khan, Gul Dali Khan, Sher Muhammad, Fazalur Rehman, Yousuf Khan and Ghuncha Gul will be re-employed by the appellant, but without back benefits.
In result, the appeal stands partly allowed as per statement of the parties
H.B.T./269/KLab.(Trib.) Order accordingly.
2000 P L C 207
[Labour Appellate Tribunal Sindh]
Before Dr. Tanzil-ur-Rehman, Chairman
Messrs INTERHOME LIMITED, K.E.S.C. POWER UNIT No.6, KARACHI
Versus
MUHAMMAD YASIN
Revision Application No.KAR-392 of 1998, decided on 1st April, 1999
Industrial Relations Ordinance (XXIII of 1969)---
----Ss. 25-A & 38(3-a)---Grievance petition---Closing of cross-examination--- Revision----Date fixed for cross-examination of employer having wrongly been noted by junior of the counsel for employer, employer failed to appear on correct date of hearing and his cross-examination was closed---Mistake of junior counsel being bona fide application for recalling order closing cross-examination was made without any delay---Observation of Labour Court that application for recalling order of closing crossexamination was time-barred, was not supported by record---Labour Appellate Tribunal accepting revision against order of Labour Court with costs, ordered parties to appear before Labour Court on date already fixed for hearing the matter.
Mahmood Khan Badar for Applicant.
Respondent in person.
JUDGMENT
This is a revision application against the order dated 30-11-1998 passed by the learned Labour Court No.4, Karachi, whereby application dated 29-8-1998, moved by the applicant herein, for recalling the order dated 11-8-1998, was dismissed.
It appears that the matter was filed for cross-examination of the applicant for 11-8-1998 but the junior of Mr. M.K. Badar, Miss, Khalida Khatoon, instead of 11-8-1998 noted in her diary as 17-8-1998. Mr. Badar submits that on 17-8-1998 when she went to attend the case, it was found that the case was fixed for 11-8-1998 and not for 17-8-1998 with the result that the cross-examination of the applicant was closed.
It appears that on 29-8-1998 an application for recalling the order, dated 11-8-1998 was made. The learned Presiding Officer, issued notice of the said application for 10-9-1998. The application was, however, heard on 30-11-1998 which, by order of the same date, was dismissed. Against. which the above revision application has been filed.
On my enquiry, the respondent herein submitted that his case is still pending in the Labour Court and no final decision has yet been taken on his application under section 25-A of the I.R.O. 1969.
It seems that the mistake on the part of the junior of Mr. Badar was bona fide and the application for re-calling the order dated 11-8-1998 was made without delay i.e. on 29-8-1998 so the observations of the learned Presiding Officer that, "the application is sufficiently belated and hopelessly time-barred" is not supported by record.
Mr. Badar offered a sum of Rs.500 as cost to compensate the respondent herein. I think the offer is on a low side Let him pay Rs as cost to the respondent. The revision application is, therefore, allowed subject to payment of Rs.1,000 as cost The parties are directed to appear before the learned Labour Court on 5-4-1999, which is already fixed by the learned Labour Court. Mr. Badar undertakes to be present with his client Attaullah in Court on 5-4-1999, on which date he will also pay the Cost to the respondent. This will be the last opportunity for the applicant for presenting himself for cross-examination by the respondent, as the fire is hanging for the last five years.
H.B.T./282/K/Lab.(Trib.) Revision accepted.
2000 P L C 211
[Labour Appellate Tribunal Sindh]
Before Dr. Tanzil-ur-Rehman, Chairman
MUSLIM COMMERCIAL BANK LTD. through Executive Vice
President and Head of Human Resources Division
Versus
MUHAMMAD IMRAN and others
Appeals Nos.KAR-2, 3 and Miscellaneous Applications Nos. 35 and 36 of 1999, decided on 25th February, 1999.
(a) Administration of justice---
----Piecemeal decision---Jurisdiction---Exercise of---Courts not to encourage piecemeal decisions, but should generally lean towards exercising jurisdiction instead of ousting the same---Where Court had found that it had jurisdiction, let matter take its own course as provided in law---Even if after evidence and final arguments a decision was passed which could or could not be adverse to either of the parties, it would be open to be agitated in appeal.
(b) Industrial Relations Ordinance (XXIII of 1969)---
----S. 38(3-a)---Revisional jurisdiction, exercise of---In absence of any incorrectness, illegality and infirmity in order of Labour Court, case would not be fit to be interfered with by Labour Appellate Tribunal in exercise of inherent suo motu, revisional jurisdiction under S. 38(3-a), Industrial Relations Ordinance, 1969.
Mahmood A. Ghani for the Informant.
JUDGMENT
These are two revision applications, filed against a common order dated 28-1-1999, passed by the learned Presiding Officer of Sindh Labour Court No.5, rejecting the preliminary objections, raised by the applicant Bank before it. .
(1) That this Court has no jurisdiction to entertain this application, while the jurisdiction rests with N.I.R.C. where the applicant had already instituted a case.
(2) That since the case is already pending before the N.I.R.C. hence this Court cannot entertain this case during pendency of previously instituted also before N.I.R.C.
(3) That the department section where the applicant was posted has less than 20 employees hence the provisions of I.R.O., 1969 will not be applicable and this Court cannot exercise jurisdiction.
(4) That the petition is time-barred.
The learned Presiding Officer, after hearing the learned counsel for the parties and having gone through the relevant record and the authorities, cited at the bar by the learned Advocate for the respondent (Bank) held that the Labour Court had jurisdiction. Mr. Mahmood A. Ghani, giving the details of case, filed by the respondent (the employee) submitted that the respondent had filed a case before N.I.R.C. challenging the charge-sheet and order of enquiry, earlier in point of time, and had obtained an ex parte stay order from the N.I.R.C. against the applicant (Bank). After applicant Bank made appearance and pleaded their case the said stay order was discharged holding that there has been no unfair labour practice involved in the case. On enquiry, made by me to the learned counsel for the applicant to Bank, he candidly admitted that there is no case, at present, pending in the N.I.R.C.
Before adverting to this issue further, it is pertinent to note that so far as questions/issues Nos.3 and 4 are concerned, the learned Presiding Officer came to the conclusion that the same were questions of fact and law and ordered the respondent herein to file his affidavit-in-evidence on the next date of hearing i.e. 10-2-1999.
The Courts do not encourage picecemeal decisions. The Courts generally lean towards exercising jurisdiction instead of ousting it. The Court, having held that it has jurisdiction, let the matter take its own course as provided in law. Even, if after evidence and final arguments a decision is passed which may or may or may not be adverse to either of the party, It will be open to be agitated in appeal.
I do not fined any incorrectness, illegality and impropriety in the impugned order on the face of record and it does not seem to me to be a fit case to invoke the inherent suo motu powers, vested in me under section 38(3-A) of the I.R.O., 1969. The revision application is, therefore, dismissed in limine. .
Miscellaneous Applications Nos.35 and 36 of 1999
These are stay applications, which, having become infructuous, are also dismissed.
H.B.T./294-K/Lab.(Trib.) Revision dismissed.
2000 P L C 213
[Labour Appellate Tribunal Sindh]
Before Dr. Tanzil-ur-Rehman, Chairman
SAID HAKIM KHAN
Versus
Messrs MUHAMMAD SHAM TANNERIES through Factory Manager Jamal Ahmad
Appeal No. KAR-142 of 1998, decided on 11th January, 1999.
Industrial Relations Ordinance (XXIII of 1969)---
----S. 25-A(1)---Grievance petition---Limitation---Question of limitation being a mixed question of fact and law, parties should have been allowed opportunity to adduce evidence in the light of S. 25-A(1) of Industrial Relations Ordinance, 1969 to prove whether or not grievance was brought to notice of employer within three months from the day of accrual of cause of action.
Guncha Gul for Appellant.
Sharif Malik for Respondents.
ORDER
This is an appeal under section 37(3) of the Industrial Relations Ordinance, 1969 filed by the worker against the employer.
I have heard Mr. Guncha Gul, Advocate for the appellant and Mr. Sharif Malik, Advocate for the respondent.
The sole point agitated before me by the learned counsel for the parties is that of limitation. It is contended by the learned counsel for the appellant that the learned trial Court proceeded to decide the question of limitation without giving any opportunity to adduce evidence in the matter. The factum of the absence of recording evidence is not disputed by the learned counsel for the respondent. In the facts and the circumstances of the case it appears that the question of limitation is a mixed question of fact and law both. I feel that the parties in the case should have been allowed the opportunity to adduce evidence in the light of section 25-A(l) of I.R.O., 1969 to prove that the grievance was brought to the notice of the employer within three months from the day of the accrual of the cause of action, or not.
By consent, therefore, the impugned order, dated 15-4-1998 passed by the learned Labour Court is set aside and the case is remanded to the learned Labour Court to record evidence which the parties desire to produce on the point of limitation only.
Learned counsel for the appellant further submitted that the letter said to be grievance notice was posted from S.I.T.E. Post Office on 12-8-1997 addressed to the respondent.
Learned Labour Court may, therefore, call the postal authority of the concerned Post Office as court-witness to produce the relevant record on the point of delivery of the said letter to the respondent.
It is, however, clarified that in case the learned Labour Court comes to the conclusion that the grievance was not brought within time stipulated in section 25-A(1) of I.R.O., 1969 the matter will end there. But, if it comes to the conclusion that the grievance was brought to the notice of the employer within the time fixed by law it will them proceed to record evidence on merits of the case.
By consent the parties-will appear before the learned Labour Court on 26-1-1999.
H.B.T./270/K/Lab. (Trib.) ?????????????????????????????????????????????????????????????????? Order accordingly.
2000 P L C 219
[Labour Appellate Tribunal Sindh]
Before Dr. Tanzil-ur-Rehman, Chairman
RAJBEE INDUSTRIES
Versus
MUHAMMAD TARIQ
Revision Application NoXAR-292 of 1998, decided on 22nd January, 1999.
Industrial Relations Ordinance (XXIII of 1969)--
----Ss. 25-A & 38(3-a)---Grievance petition---Closing side of employer for non-prosecution---Revision---On filing grievance petition by employees employer filed written statement---Employee filed his affidavit-in-evidence and after his cross-examination by employee, side of employee was closed on date fixed for filing affidavit-in-evidence by employer---Neither affidavit-in-evidence was filed by employer nor his counsel appeared and side of employer was closed---Application for reopening side of employer was also dismissed for non-prosecution---Employer and his counsel had failed to give any plausible explanation for their absence---Employer and his counsel having been negligent or at least careless in pursuing matter diligently, side of employer was rightly closed by Labour Court---Revision against order of Labour Court, was dismissed in circumstances.
Habibullah for Applicant.
Azmatullah (absent) for Respondent.
Date of hearing: 22nd January, 1999.
2000 P L C 221
[Labour Appellate Tribunal Sindh]
Before Dr. Tanzil-ur-Rehman, Chairman
KHUDADAD
Versus
Messrs MUHAMMAD EBRAHIM & CO. (PVT.) LTD.
Appeal NOXAR-406 of 1997, decided on 11th February, 1999.
(a) Industrial Relations Ordinance (XXIII of 1969)---
----S. 25-A---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O. 13---Retrenchment--Employer had to make retrenchment of staff including employee on basis of last come, first go due to tight position of stringency and reduction in production---Retrenched employee had contended that person junior to him had been retained by employer whereas he being-senior had been retrenched---Contention of employee was misconceived because retained person though was junior to employee, but he belonged to category of employees different to employee.
(b) West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)---
----S. 1(4) & S. O. 13---Retrenchment---Number of employees in employer company at time of retrenchment consisted of thirty to thirty-five whereas maximum number required at that time was forty-nine---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance was not applicable in the matter.
M. Saleem Khan for Appellant.
Faruq A. Ghani for Respondent.
Date of hearing: 11th February, 1999.
2000 P L C 223
[Labour Appellate Tribunal Sindh]
Before Dr. Tanzil-ur-Rehman, Chairman
AIN-UL-HAQ
Versus
Messrs LATEX & RUBBER INDUSTRY
Appeal No.243 of 1997, decided on 12th April, 1999.
Industrial Relations Ordinance (XXIII of 1969)---
----S. 25-A---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.0.15(3)(c)---Misconduct--Dismissal from service---Employee was dismissed from service on ground of misconduct after holding domestic enquiry against him---Enquiry Officer who conducted inquiry independently and impartially found employee guilty of misconduct and employee was dismissed from service on basis of enquiry report of Enquiry Officer---Employee had failed to prove that enquiry Officer was partial and was not independent---Allegation on basis of which employee was dismissed from service having fully been proved, employee was rightly dismissed from service.
Salim Raza, Representative for Appellant.
Mahboob Rizvi for Respondent
2000 P L C 225
[Labour Appellate Tribunal Sindh]
Before Dr. Tanzil-ur-Rehman, Chairman
DISTRICT MANAGER, SINDH ROAD TRANSPORT CORPORATION, DADU DEPOT
Versus
ANWAR ALI
Revision Application No.HYD-230 of 1998, decided on 30th April, 1999.
(a) Industrial Relations Ordinance (XXIII of 1969)---
----S. 25-A---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.Os. 1(b) & 12(3)---Termination of service---Permanent status of employee---Determination---Employee initially was temporarily appointed for two months and after expiry of said period of two months he was again appointed after gap of two days and remained in service for sixty days and after expiry of :sixty days he was terminated and was no more employed thereafter---No continuity of service of ninety days existed without any break---Employee, in circumstances, had not acquired status of permanent workman and was not entitled to a notice of termination as provided tinder S.O. 12(3) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968.
(b) Industrial Relations Ordinance (XXIII of 1969)---
----S. 38(3-a)---Revisional jurisdiction, exercise of---Labour Appellate Tribunal had suo motu powers of exercising its revisional jurisdiction to examine an order/decision passed by Labour Court, as to the legality, correctness or propriety of said order/decision---Such power of Labour Appellate Tribunal could be exercised even on application of aggrieved party if it could make out a case for such exercise.
Talah Muhammad and 12 others v. Fateh Muhammad and 2 others 1990 PLC 80 ref.
Devdas M. Udeshi, Law Officer for Applicant.
Sheikh Wahid Bux, Representative for Respondent.
2000 P L C 228
[Labour Appellate Tribunal Sindh]
Before Dr. Tanzil-ur-Rehman, Chairman
SIRTAJ and 3 others
Versus
Messrs MEHTAB FABRICS (PVT.) LTD.
Appeals Nos. KAR-195 to 198 of 1998, decided on 24th March, 1999.
Industrial Relations Ordinance (XXIII of 1969)---
---Ss. 25-A & 37(3)---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S. 1(4) & S.O. 12(3)---Grievance petition---Maintainability---Evidence on record had proved that alleged employer was running a small ten looms factory wherein nine or ten workmen were working---Applicants had failed to produce on record any appointment letter, identity card or any documentary proof, to show their relationship with alleged employer as its workmen---Grievance petition filed by applicants was rightly dismissed by Labour Court-being not maintainable.
Mushtaq Shaikh for Appellants
Nemo for Respondent.
Sher Afgan: Amicus curiae,
2000 P L C 230
[Labour Appellate Tribunal Sindh]
Before Dr. Tanzil-ur-Rehman, Chairman
MUHAMMAD LAIQ KHAN
Versus
Messrs HABIB SUGAR MILLS LTD. and another
Appeal No.KAR-131 of 1998, decided on 10th February, 1999, Industrial Relations Ordinance (XXIII of 1969)---
----Ss. 2(xxviii) & 25-A---Workman---Determination-.--Grievance petition--Maintainability---Labour, Court dismissed grievance petition filed by employee against termination of his service holding him Supervisor/Incharge of Department concerned simply on basis of termination letter in which employee was shown as Supervisor/Incharge of Department by employer--Employer had not produced any other documentary evidence in proof of his claim---Appointment letter and roaster of duties which were basic documents were not produced by employer---Order of Labour Court whereby grievance petition was dismissed holding employee as Supervisor/Incharge, was sketchy and not inspiring confidence---Labour Appellate Tribunal setting aside order of Labour Court, remanded matter to be decided afresh by asking employer to produce said two documents.
Khadim Hussain for Appellant.
M. Latif Saghar for Respondents.
Date of hearing: 10th February, 1999.
2000 P L C 232
[Labour Appellate Tribunal Sindh]
Before Dr Tanzil-ur-Rehman, Chairman
ABID HUSSAIN
Versus
Messrs LATEX & RUBBER INDUSTRY
Appeal No.KAR 242 of 1997, decided on 12th April, 1999.
Industrial Relations Ordinance (XXIII of 1969)---
----S. 25-A---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O. 15(3)(4)---Dismissal from service on allegation of misconduct---Employee was dismissed from service after holding domestic enquiry against him on allegation of misconduct--Enquiry against employee was held by impartial and independent Enquiry Officer---Employee was provided opportunity of hearing and he appeared before Enquiry Officer, but during enquiry proceedings employee himself staged walk out alongwith his representative and Enquiry Officer had no option, but to complete enquiry in absence of employee---Could not be said, in circumstances, that employee was not given opportunity of hearing--Allegation of misconduct against employee having been proved, he was rightly dismissed from service.
Salim Raza, Representative for Appellant.
Mahboob Rizvi for Respondent.
Date of hearing: 12th April, 1999.
2000 P L C 292
[Labour Appellate Tribunal Sindh]
Present: Dr. Tanzil-ur-Rehman, Chairman
Messrs HYDARI INDUSTRIES LTD. Through Director Operation
Versus
MUHAMMAD RAMZAN and 29 others
Revisions Nos.Hyd-127 of 1997, Hyd-82, Hyd-83, Hyd-84, Hyd-85, Hyd-87, Hyd-88, Hyd-89, Hyd-90, Hyd-92, Hyd-93, Hyd-94, Hyd-95, Hyd-99, Hyd-100, Hyd-101, Hyd-102, Hyd-104, Hyd-105, Hyd-106, Hyd 107, Hyd-108, Hyd-111, Hyd-112, Hyd-113, Hyd-114, Hyd-115, Hyd-116, Hyd-117, Hyd-118 and Hyd-119 of 1999, decided on 8th November, 1999.
Industrial Relations Ordinance (XXIII. of 1969)---
----Ss.38(3-a) & 51---Payment of amount under settlement---Revision petition---Workers of factory, on its privatization having protested, an agreement was arrived at between Government and said workers---Main purpose of said agreement was to safeguard the interest of workers---When workers were relieved from their jobs under a Golden Hand Shake Scheme, management of factory agreed to pay dues to workers as determined and specified in said agreement---Cheques issued to workers in respect of payment of dues were dishonoured whereupon workers filed application under S.51 of Industrial Relations Ordinance, 1969 before Labour Court for payment of said amount which application was allowed---Management in its revision petition against order of Labour Court had contended that the application was not maintainable as there was neither any agreement nor award of decision of Arbitrator or of Labour Court or Labour Appellate . Tribunal on basis of which the application could be filed by workers--Contention of management was repelled as there were more than one settlement, arrived at between workers and management as well as workers and management through conciliator and amounts payable to workers were fully determined---Revision against order of Labour Court, being miscoqceived, was dismissed accordingly.
Avalene Silk Mills v. Second Sindh Labour Court, Karachi and 7 others 1981 PLC 4; Siemens (Pakistan) Employees' Union v. Siemens (Pakistan) Engineering Company and 2 others 1969 PLC 341; Hostellarie De-France Staff and Workers' Union v. Messrs Hostellarie-De-France 1983 PLC 1995 and Messrs Pfizer Laboratories Ltd. and another v. Irfan Ahmed 1999 PLC 391 ref.
Syed Fasahat H. Rizvi for Appellant.
Rana Mahmood Ali Khan for Respondents.
Dates of hearing: 25th and 27th October, 1999.
2000 P L C 300
[Sindh Labour Appellate Tribunal]
Before Dr. Tanzil-ur-Rehman, Chairman
Messrs NATIONAL BISCUIT FACTORY through Manager
Versus
NAEEM AHMED and another
Appeal No.WCH-3 of 1998, decided on 1st February, 1999.
Workmen's Compensation Act (VIM of 1923)--
----Ss. 8 & 30---Fatal injuries---Award of compensation---Employee working sin employer factory as packing machine operator met with an accident during his employment and as a result of said accident his two fingers were cut and other two fingers and thumb were damaged---Employee filed application under S.8(i) of Workmen's Compensation Act, 1923_ alleging 60% of loss in earning capacity and claimed Rs.60,000 as compensation as provided in Schedule to the Act---Employer resisted claim of employee in his written statement, but neither had filed affidavit-in-evidence nor had produced evidence and side of employer was finally closed 'and Commissioner for Workmen's Compensation, after hearing, parties awarded compensation to employee to extent Rs.50,000 on account of injuries incurred by him during and arising out of course of his duty---Contention of employer was that as he had been depositing contribution on behalf of employee with Employees Social Security Institution, said institute was responsible to either pay compensation to employee or reimburse expenses incurred by employer on treatment of employee---Contention of employer was repelled as employer being contributory to Social Security Fund could have referred employee to Social Security Institution for admission in hospital under control of said Institution, but employer had not done so---Order of Commissioner for Workmen's Compensation awarding compensation for employee according to Schedule of Workmen's Compensation Act, 1923 could not be interfered with.
Crescent Textile Mills Ltd., Lyallpur v. Mst. Sakina Bibi and 2 others PLJ 1978 Lah.
231; Mst. Lal Jan v. Silver Paper Tube Company, Karachi PLD 1974 Kar. 140 and Mst.
Sakina Bibi v. Crescent Textile Mills Ltd. PLD 1984 SC 241 ref.
Partab Rai for Appellant.
S.P. Lodhi for Respondents.
2000 P L C 306
[Sindh Labour Appellate Tribunal].
Before Dr. Tanzil-ur-Rehman, Chairman
MUHAMMAD YASEEN
Versus
SHOAIB AHMED JAFFARI and 4 others
Revision Application NOXAR-263 of 1998, decided on 16th February, 1999.
Industrial Relations Ordinance (XXIII of 19169)--
----S. 62---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O. 15(3)(c)---Criminal Procedure Code (V of 1898)---S.249-A---Misconduct---Complaint against employer---One of the employees who was Propaganda Secretary of Trade Union, having caused financial loss to employer by his irresponsible act, was proceeded against under S.O. 15(3)(c), West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968---Enquiry was conducted against said employee, but employee did not appear to have associated with said enquiry and instead General Secretary of Trade Union just to save employee (Propaganda Secretary) filed complaint against officers of employer. Company Labour Court heard witnesses produced by complainant and adjourned case for hearing accused/employer ---Accused/employer filed application under S.249-A, Cr.P.C. which was accepted by Labour Court giving cogent reasons---Complaint filed against accused/employer having been proved to have been filed with mala fide motive and intentions simply as counterblast to save Propaganda Secretary of the Trade Union, order acquitting accused/employer on application under S.249-A, Cr.P.C. based on cogent reasons, could not be interfered with.
M.A. Bhatti for Applicant.
Umer Qureshi for the Accused.
Date of hearing: 16th February, 1999.
2000 P L C 310
[Labour Appellate Tribunal Sindh]
Before Dr. Tanzil-ur-Rehman, Chairman
SHAFIQ AHMED
Versus
Messrs KARACHI SHERATON HOTEL through Chief
Executive/General Manager and 2 others
Appeal No. KAR.177 of 1998, decided on 11th January, 1999.
Industrial Relations Ordinance (XXIII of 1969)---
----S. 25-A---Forced resignation ---Proof---Grivance petition--Maintainability--- Employee in his grievance petition had alleged that Security Officer of employer hotel called him in his office and obtained forced resignation from him by detaining him in his office for about two and half hours---Employer had denied said allegation and had contended that employee had voluntarily resigned due to his physical condition---Employee did not give in writing about alleged incident to General Manager of Hotel or to Director thereof---Employee neither had filed any complaint before any Authority to the effect that he was forced to resign nor he filed any such case before National Industrial Relations Commission and he .also failed to lodge any complaint in police station for alleged wrongful confinement nor lodged any F.I.R. in that respect against Security Officer---Employee having failed to produce any evidence in support of his allegations his resignation could not be said to be forced one---Grievance petition of employee was rightly dismissed by Labour Court.
M.A. K. Azmati for Appellant.
Mehmood Abdul Ghani for Respondents.
Date of hearing: 24th December, 1998.
2000 P LC 330
[Sindh Labour Appellate Tribunal]
Before Dr. Tanzil-ur-Rehman, Chairman
Messrs STAR VACUUM BOTTLE MANUFACTURING COMAPNY (PVT.) LTD.
Versus
STAR VACUUM BOTTLE MANUFACTURING COMPANY
PVT. LTD. LABOUR UNION
Application No.KAR-12 of 1999, decided on 9th August, 1999.
Industrial Relations Ordinance (XXIII of 1969)---
----S. 50---Interpretation of settlement---Application for---Applicant bad failed to point out any ambiguity in settlement sought to be interpreted---No difficulty or doubt had been found in said settlement---Labour Appellate Tribunal was empowered under S. 50 of Industrial Relations Ordinance, 1969 to interpret a settlement or award only if there was any difficulty or doubt about interpretation---Application for interpretation of settlement was dismissed being misconceived.
M. Rafat Osmani for Applicant.
S.P. Lodhi, Representative for Respondent.
JUDGMENT
This is an application under section 50 of the Industrial Relations Ordinance, 1969 for interpretation of the settlement dated 20-1-1998, filed by the applicant management.
2.Heard the learned counsel for applicant and the representative of the respondent union.
FORM _'X"'
RULE 70
FORM OF AGREMENT
NAME OF THE 1. M/s. Star, Vacuum Bottle
PARTIES: Mfg. Co. Ltd., Landhi, Karachi (hereinafter called the Company).
Mfg'. Co. Labour Union, Reg. 'No,90234 -B Road, Liaqutabad, Karachi
(hereinafter called the Union).
REPRESENTING EMPLOYEES:
REPRESENTATING
EMPLOYEE
Director'.
Mr. Hussein Wali (G. Secretary).
Mr. Wahid Hussain (J. Secretary).
Mr.Feroz Jiwani, 4. Mr. Ghous Buksh (Pub.Secy.).
Manager.
SLORT RECITALOF THE CASE
The Star Vacuum Bottle Mfg: Co. Labour Union (Reg. No.902) being the certified Collective Bargaining Agent demanded profit bonus for the year ending 31st December, 1997 from the Management of Star Vacuum Bottle Mfg. Co. (Pvt.) Ltd., Landhi. The Company started negotiations on 2nd January, 1998. After long proceedings both the parties mutually arrived at the following settlement.
With the view .to maintaining continuous and harmonious Labour Management Relations and Industrial Peace the issue of the profit bonus for the years ending 31st December, 1998, 31st December, 1999 and 31st December, 2000 were also taken up.
Terms of agreement
The trial balance for the year ending 3.lst of December, 1997, was studied. The profit performance up to date was considered and the Union hereto felt that the working result for the years ending 31st of December, 1998, 31st December, 1999 and 31st December, 2000, may result in sufficient profit. In full and final settlement of the demand the Union hereby agree to accept the Company offer for the payment of profit bonus for the year ending 31st December, 1997 in accordance with the following formula. As regards the profit bonus for the years ending 31st of December, 1998, 31st of December, 1999 and 31st of December, 2000, the company has offered the same formula of profit bonus as for the year 1997.
Profit bonus
The company will pay profit bonus equivalent to 34 % of basic wages plus cost of living allowance and special cost of living allowance drawn during year less the number of days the workers have enjoyed Annual/Casual/Sick leave (i.e. on prorata basis) for the years ending 31st December, 1997 and 31st December, 1998 and 35 % for the years ending 31st December, 1999 and 31st December, 2000. The average will be computed by totalling the basic wages plus cost of living allowance and special cost of living allowance drawn during the 12 months and substracting therefrom the wage paid (i.e. basic wages plus cost of living plus special cost of living) for the aforesaid leave availed during the period.
It is specifically understood and agreed that the profit bonus would be inclusive of the bonus payable in terms of standing orders of 10-C for the aforementioned years. The profit bonus as per the abovementioned basis would be paid to all the permanent workers having not less than 90 days continuous service during the year for which the profit bonus is paid. The profit bonus will be payable on or before 28th January, 1998, 10th of January, 1999, 30th January, 2000 and 30th January, 2001 respectively.
It has also been agreed that one Vaccum Flask of Model 3501 pb(PC) shall be given to every permanent worker who is on roll of the company on the date of disbursement of bonus for the years 1997, 1998, 1999 and 2000 alongwith the bonus.
In consideration of this settlement, the Union undertakes and covenants with the Company that they will not make or raise any demand for the payment of any nature of bonus for the years, 1997, 1998, 1999 and 2000.
In witness whereof the parties have signed this agreement on 20-1-1998.
Representing Employees Representing Employees
(Sd.) (President)
(Sd) Director (Sd.) (G. Secretary)
(Sd)Manager (Sd.) (J. Secretary)
(Sd.) (Publicity Sec.)
(Sd.) (Treasurer)
(Sd.) (Vice-President)."
Section 50 of the I.R.O., 1969 empowers this Tribunal to interpret a settlement and award, if there .is any difficulty or doubt as to its interpretation.
Mr. Rafat Osmani, learned counsel for the appellant has not been able to show, me that there is any ambiguity in the said settlement. I also find no difficulty or doubt in the said settlement which requires interpretation. The application is misconceived and is dismissed accordingly.
Miscellaneous Application No.47 of 1999, having become infructuous is dismissed, in view of dismissal of the main application.
H.B.T./319-K (L-Trib.) Application dismissed.
2000 P L C 333
[Sindh Labour Appellate Tribunal]
Before Dr. Tanzil-ur-Rehman, Chairman
ENGRO CHEMICAL PAKISTAN LTD. Through S.M. Pervez Ghias
Versus
ENGRO CHEMICAL PAKISTAN LTD. MARKETING FIELD EMPLOYEES' UNION and another
Revision Application No.KAR-489 of 1993, decided on 15th March, 1999.
Industrial Relations Ordinance (XXIII of 1969)--
----Ss. 7(2)(b) & 8(3)---Registration of trade union---Registration of trade union was objected to by employer on the ground that official trade union was formed exclusively in relation to salesmen in employer establishment and that total number of members of said trade union was only 12/14 and it was further alleged that salesmen were not workmen---Questions raised by employer were mixed questions of fact and law which could not be decided unless and until evidence was recorded as to the nature of duties of members of applicant union and numbers of persons---Labour Appellate Tribunal setting aside order of Labour Court whereby Registrar of Trade Unions was asked to register applicant trade union, remanded case to Labour Court with direction to record evidence of parties and decide case afresh in the light of said evidence.
Mahmood A. Ghani for Applicant. .
Ghulam Qadir Siddiqui, General Secretary and Zaheeruddin for Respondent No. 1.
Nemo for Respondent .N6.2.
JUDGMENT
This case has come back on remand to this Tribunal by the Hon' ble High Court of Sindh, by order, dated 10-12-1998, passed in C.P. No.D-1359 of 1994: Copy of the order having been received in this Tribunal on 9-2-1999. The matter was fixed for hearing on 9-3-1999 with notice to the parties. It was, however, adjourned' on the application of the applicant's counsel on the ground that he was busy before the High Court Hyderabad Bench in three matters.
Mr. Mahmood A. Ghani, learned counsel for the applicant (hereinafter referred to as the Company) (in Revision Application No.489 of 1993) submits that an application for registration was filed on 8-12-1991 by the respondent (hereinafter referred to as the Union). The said application for registration having not been decided by the Registrar of Trade Unions for about four months the union filed appeal under section 8(3) of the I.R.O., 1969 to the Labour Court No.5 on 16-4-1992 on the ground that Registrar, Trade Unions made inordinate delay in deciding the application for registration of the Union and as such, the learned Labour Court should pass an order registering the said Union. On hearing about the filing of the said appeal before the learned Labour Court, the Company filed an application under Order I, Rule 10, C.P.C., for joining the company as a party to the proceedings before the Labour Court. After hearing both the parties, the learned Labour Court joined the employer/company as party to the said appeal, by its order, dated 18-2-1993. (It is pertinent to note that no appeal or revision, against the said order, was filed by the Union.)
It appears that the Registrar, Trade Unions, in the meanwhile, had rejected the application of the Union by his order, dated 19-4-1992 and that is why the learned Labour Court, by his order, dated 26-9-1993 ruled that the rejecting of the trade union by the Registrar Trade Unions Was invalid and directed the Registrar to register the Union within a week:
The Company, being aggrieved with the said order of the learned Labour-Court, filed a Revision Application on 29-9-1993 bearing NoXAR-489 of 1993 in this Tribunal, which was dismissed by the Tribunal by its order, dated 17-5-1994, Against the said order, the Company invoked the Constitutional jurisdiction of the High Court by filing a Constitution Petition 'No. D-1359 of 1994, which was disposed of by its order, dated 10-12-1998 whereby the case has been remanded, as aforesaid. The relevant observation is reproduced below:-----
"We have looked at in detail the impugned order and the case-law cited and we are of the opinion that the Tribunal should have given a detailed order so that the matter would have been clarified. We are., therefore, remanding the case back to the tribunal with the observation that the tribunal should look into following aspects:--
(1) Whether the members of the respondent No.4 fall within the definition of a workmen under the I.R.O., 1969?
(2) Whether the Union fulfilled the condition of section 7(2)(b) of the I.R.O., 1969 ?
(3). Whether the employer has the right to interfere and challenge, the registration of the union ?"
Now the case is again taken up today, learned counsel for the applicant submits that admittedly the respondent Union was formed exclusively in relation to Salesmen and that the total number of members of the said Union were 12/14. He further submits that there is a pathora of law on the point that salesmen are not workmen, with which he is ready.
Mr. Zaheeruddin, learned counsel for the respondent union submits that the questions, raised by the Hon'ble High Court, are mixed questions of facts and law and cannot be decided unless and until evidence is recorded as to the nature of duties of the members of the respondents Union and the number of persons whether forms 1/5th of the total number of persons employed and whether it comes within the ambit of section 7(2)(b) of the I.R.O., 1969. . .
I find myself, in' agreement with: the learned counsel for, the respondent with which Mr. Mahmood A. Gham also seems agreeable. It seems that the observations of the Hon'ble High Court and the points, raised by it, cannot be fully examined until and unless there is evidence on record. But the main hurdle in the way is the order, dated .26-9-1993 ordering the registration of the Union. Unless and until it is set aside by this Tribunal the question of recording evidence on the points, raised by the Hon'ble High Court, in its order of remand, cannot be examined and decided in one way or the other.
I am, therefore, constrained to set aside the order, dated 26-9-1993, passed by the learned Labour Court No.5 and remand the case to it with a direction to record the evidence of the union as well as the employer, who has been imp leaded as a party to the proceedings by order, dated 18-2-1993, which has gone unchallenged.
It also appears that soon after the filing of the appeal, on or about 16-4-1992, the Registrar, Trade Unions has rejected the application for registration of the Union, by his order, dated 19-4-1992. It will, therefore, be all the more necessary to call for the record from the Registrar of Trade Unions to examine the reasons of rejection of the registration of the union, sought for, and examine the Registrar of his representative as court-witness.
In view of the above observations, both the counsel agree that the revision application be disposed of accordingly.
Before parting with the matter, I would like to observe that as the matter is hanging fire for the last 8/9 years, it will be appreciated, if the learned Presiding Officer of the Court concerned, will make efforts to decide the case as early as possible. The learned counsel for the parties are directed to appear before the learned Court on 26-3-1999.
H.B.T./311-L/Lab. (Trib.) Order accordingly.
2000 P L C 341
[Sindh Labour Appellate Tribunal]
Before Dr. Tanzil-ur-Rehman, Chairman
Miss NIGHAT MATEEN
Versus
Messrs SEARLE PAKISTAN (PVT.) LTD. Through Occupier/Factory Manager
Appeal No.KAR-103 of 1997, decided on 19th May, 1999.
Industrial Relations Ordinance (XXIII of 1969)---
----S. 25-A---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O. 15(3)(a)(b) & (4)--Dismissal on allegation .of misconduct---Employee was dismissed from service after issuing charge-sheet and holding domestic enquiry on allegation of willful disobedience of order of superiors---Willful disobedience which amounted to misconduct had fully been established not only in domestic enquiry, but it was also admitted by employee---Enquiry- against employee was held impartially- and independently wherein employee was provided opportunity of hearing---Misconduct as defined in S.O. 15(3)(a) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, having been fully proved, punishment of dismissal from service which could be awarded by employer, had rightly been given to employee.
Shamsher Ali Khan v. Sindh Labour Appellate Tribunal and 2 others 1987 PLC 23; Badaruddin Sabri v. Messrs Pearl Continental Hotel 1990 PLC 638; Province of East Pakistan v. Muhammad Sajjad Ali Mazumdar 1962 PLC 528; PLD 1962 SC 71; Muhammad Riaz v. Sindh Labour Appellate Tribunal, Karachi and 2, others 4993 PLC 301; 1972 PLC 83 and Pakistan Tobacco Co. Ltd. v. Channa Khan and others 1980 PLC 981 ref.
M.A.K. Azmati for Appellant.
Mahmood A. Ghani for Respondent.
JUDGMENT
This is an appeal under section 37 of the Industrial Relations Ordinance, 1969, against the judgment, dated 30-4-1997, passed by the learned Second Sindh Labour Court, Karachi dismissing the grievance Petition No.36 of 1987.
.The appellant was employed in the factory of the respondent since 1983, as Packer.
She was issued a charge-sheet, dated 5-6-1986 alleging, inter alia, that she was directed to work, instead of empty bottles' checking, to labelling which she refused. The said charge-sheet is reproduced below:-----
Registered A.D. 5-6-1986
Miss N'ighat Matin, Miss Nighat Matin, G
Card No.76 Packer 6/7, Block No.6, Clifton
Searle Pakistan (Pvt.) Road, Karachi
Ltd., Karachi
Sub: Charge-sheet
It has been reported that on 4-6-1986 at 8-16 a.m. you were directed by your Belt Checker of Line No.2 to work instead of empty bottle checking to labelling but you refused to do so after that packing Incharge Mr. S. Tanveer Hussain himself instructed you in presence of Mr. Zafar Alain Khan but you flatly refused to the lawful instruction of your superiors.
Your above act is a misconduct under West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. Show cause within a week from the receipt of this charge-sheet as to why disciplinary action should not be taken against you under the law.
for SEARLE PAKISTAN (PRIVATE) LIMITED.
(Sd.) .
(H. U. KHAN), Factory Manager. "
The said charge-sheet was received by the appellant under her signature on the very day i.e. 5-6-1986. The said charge-sheet was replied by her through her letter, dated 12-6-1986 which, however, did not contain a denial to the said incident as stated in the charge-sheet. She simply asked for a copy of the report against her to give a reply to the charge-sheet. The Factory Manager, referring to her reply, dated 12-6-1986, found the same unsatisfactory. She was informed by letter, dated 17-6-1986 that "domestic enquiry will now be conducted on 22-6-1986 at 8-30 a.m. Mr. Zafar Aziz, Planning Manager, has been appointed as Enquiry Officer". She was thus directed to participate in the enquiry alongwith her witnesses. In case she failed to attend the enquiry the same will be conducted ex parte. By letter, dated 8-7-1986 which was received by the appellant at 4-45 p.m. on the same day under her own signature wherein it was stated that she did not participate in the enquiry held on 22-6-1986. As she was absent on that day another opportunity was given to her to defend by fixing the next date of enquiry on 10-7-1986 at 8-30 a.m., but she failed to appear. Having again failed to appear before the said officer on 10-7-1986, the enquiry was adjourned to 20-7-1986. On that date, she was again absent. However, she was given a last opportunity to appear and defend herself against the charge, by letter, dated 23-7-1986, which was received by her on the same day at 3-40 p.m., fixing as 27-7-1986. Again she failed to appear before the Enquiry Officer and participate in the enquiry. The enquiry against the appellant was, thus, closed ex pane. On September 8, 1986, a second show-cause notice was issued to the appellant by the Factory Manager, which was received on the same day under her signature. She paid to heed to second show-cause notice which called upon her to show cause, by which she was informed that the Enquiry Officer has submitted his report and he has found her guilty of the charge levelled in the charge-sheet. She was, thus, required to explain within 24 hours on receipt of the second show-cause notice, referred to above, as to why disciplinary action leading to her dismissal be not taken against her. She was also directed to appear personally on 9-9-1986 at 4-00 p.m. in the office of the factory Manager. The said show-cause notice for the sake of convenience, is reproduced as under:--
"Miss. Nighat Matin, Card No.76, Packer
Subject: Second Show Cause
You were issued with charge-sheet on 5-6-1986 and thereafter, you were issued with letter of enquiry to participate in the enquiry. In spite of repeated opportunities, you have failed to participate in the enquiry, which was conducted ex pane. Enquiry Officer has submitted his report in which he has found you guilty of the charge leveled in the charge-sheet. Before any disciplinary action is taken against you are issued with second show-cause notice and required to explain within 24 hours on receipt hereof as to why disciplinary action leading to your dismissal is not taken against you. You are also directed to appear personally for hearing on 9-9-1986 at 4-OO.p.m. in the office of the undersiged.
for SEARLE PAKISTAN (PVT.) LIMITED.
(Sd:)
(H. U. Khan), Factory Manager. "
She paid no heed to the said notice or direction to appear before the Factory Manager.
"Registered A/D
24th September, 1986.
Miss Nighat Matin, Card No.76, Packer, G-67, Block No.6, Clifton Road, Karachi.
Subject: DISMISSAL FROM SERVICE
You were issued with a charge-sheet on 5-6-1986 and thereafter, a letter of enquiry was issued to you to appear before Mr. Zafar Aziz, who was appointed as the Enquiry Officer.
The enquiry was fixed for 22-6-1986, 10-7-1986, 20-7-1986, 27-7-1986 and finally on 11-8-1986. You were informed these various dates of enquiry through letters which you have personally acknowledged. In spite of repeated adjournments you failed to participate in the enquiry which was conducted ex pane. The Enquiry Officer submitted his report wherein he has found you guilty of the charges leveled against you. These charges are misconduct punishable with dismissal under West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. Second show-cause notice was also given to you and you were asked to appear for personal hearing. You also failed to avail this opportunity.
Keeping in view the charges levelled against you which you have been established in. the domestic enquiry, you are dismissed from service with effect from 24-9-1986 (after the close of working hours).
Please collect your legal dues from our Accounts Department on any working day during working hours. Please also find enclosed herewith your service Certificate.
For Serale Pakistan (Pvt.) Limited
(Sd.) (Sd.) 24-9-1986
(H.U. Khan), 4-50. p.m.
Factory Manager
Encl. Service Certificate.
c.c.: 1. Accounts Department. 2. Time Office/Security."
The appellant, on receipt of the said dismissal letter, sent a grievance notice, dated 16-12-1986, which was received in the Factory on 21-12-1986 and was replied by their letter, dated 31-12-1986. The appellant filed a grievance petition on 19-2-1987 which was registered as No.36/1987, which was, however, dismissed.
I have heard learned counsel for the parties at length.
The first submission of Mr. Azmati, learned counsel for the appellant, is that the appellant was dismissed without providing proper opportunity to defend suit herself. This is belied by the record of the case. As many as seven letters, before passing the order of dismissal, were issued to her which were all received by her on the same day as she appears to have been working in the factory, but she neither replied to any one of them nor appeared before the Enquiry Officer. Except that in the reply, dated 12-6-1986 to the charge-sheet she stated that:
It may be mentioned that there is no reference of in the charge-sheet. In any case, the charge-sheet was explicit to the charge, mentioned in the charge-sheet, as also pointed out by the Factory Manager in his letter, dated 17-6-1986. At best, there may be a complaint to the Factory Manager, signed by the Belt Checker and two other officers, named in the charge-sheet.
"When charge-sheet fully described charges and substance, it was not necessary to supply copy of complaint."
I am; therefore, of the view that no exception can be taken to the enquiry, its procedure and finding the appellant as guilty following with a second show-cause notice was to levy of penalty/punishment as provided under Standing Order 15(4) of the Standing Orders Ordinance, 1968, which was also given to the appellant, as already referred to above.
Mr. Azmati; further submitted that the lapse, committed on the part of the' appellant, did not constitute misconduct as provided under Standing Order 15. The contention is entirely misconceived. It is clearly stated under Standing Order 15 (3)(a), of the Standing Orders Ordinance 1968 that, "willful insubordination or disobedience, whether alone or in combination with others, to any lawful and reasonable order of a superior", shall be treated as misconduct.
The expression "misconduct" has been used in wise sense of improper conduct as held by the Supreme Court in a service matter as long back as 1962 in the Province, of East Pakistan v. Muhammad Sajjad Ali Mazumdar (1962 PLC 528). This authority of the Supreme Court (PLD 1962 SC 71) was respectfully followed by our own High Court in a labour cases reported as Muhammad Riaz v. Sindh Labour Appellate Tribunal, Karachi and 2 others (1993 PLC 301) wherein it was observed that:
"It will, thus, be seen that any improper conduct on the part of a workman will constitute 'misconduct' for which the workman can be charge-sheeted by the employer. " , 12. Earlier in 1972 PLC 83, the above said Supreme Court authority was also relied upon by Chief Justice (Rtd.) Inamullah Khan, Chairman, Appellate Tribunal, holding, "misconduct means improper conduct". What is a misconduct, depends upon the circumstances of each case. Standing Order 15 of the Standing Orders Ordinance, is not exhaustive of the cases of misconduct mentioned therein. In this connection reference may be made to an unreported , case of the Supreme Court of Pakistan in Civil Appeal No.K-52 of 1964 (Karachi Steam Roller Flour Mills Limited v. Karachi Steam Roller Flour Mills Employees' Union).
Mr. Azmati, them, submitted about the harshness of punishment resulting in dismissal of the appellant, after going through the facts and law, in my view, the punishment is not harsh as the wilful disobedience of the order of her superiors, incharge, amounts to misconduct. In. the enquiry proceedings, the appellant did file her affidavit in evidence and examined herself as a witness. Two witnesses on behalf of the respondents Mr. Muhammad Ali and S. Tanveer Hussain and Enquiry Officer Zafar Aziz were examined, they filed their affidavits in evidence and appeared in the witness-box. It is for the employer to assess as to what punishment should be awarded for misconduct under the provisions of Standing Order Ordinance, 1968; and if the employer chooses the dismissal, this Tribunal, it appeal, cannot sit in judgment over it to substitute with lenient punishment. The rule, laid down by the Supreme Court, in the case 'of Pakistan Tobacco C Co. Ltd. v. Channa Khan and others (1980 PLC 981) is respectfully followed., 13-A. Lastly Mr. Azmati submitted that to do the work of labelling was outside the duty of the appellant. Admittedly, packing is an end product. It starts with empty bottles. First it has to be checked if it is not broken or otherwise leaking. Then those bottles are labelled of the Company showing other details as to the name of the Company, name of the product, date of manufacturing; date of expiry and the retail price. Once the bottles are checked and labels are fixed then those bottles move from the belt to the machine where the product is automatically filled in and sealed, so the labelling is a part of packing. In the instant case, Supervisor of the appellant asked her to attend to labelling of the bottles but she appears to have refused point blank to obey the direction of the Supervisor. The direction was not only reasonable but part of her duty, as and when required.
There was yet another point which though not argued by Mr. Azmati, but had come on the surface in the impugned judgment, that she was Vice-President .(female section) and she was victimized. But this allegation, to say the least, is preposterous, inasmuch she was elected Vice-President long after the episode had started. She was charge-sheeted on 5-6-1986 and she was elected, as alleged, on 20-9-1986, when the episode was already over.
No other point was raised by the appellant or plea taken by Mr. Azmati in his arguments.
In the result, the appeal has no substance and is dismissed accordingly.
H.B.T./312-K/Lab. (Trib) Appeal dismissed
2000 P L C 355
[Sindh Labour Appellate Tribunal]
Before Dr. Tanzil-ur-Rehman, Chairman
NAZIR MASEH
Versus
PRESIDING OFFICER, LABOUR COURT NO.V, KARACHI and another
Revision Application No.KAR-348 of 1998, decided on 25th March, 1999.
(a) Industrial Relations Ordinance (XXIII of 1969)--
----S. 25-A(4)---Grievance petition---Dismissal for non-prosecution---On filing grievance petition by employee against his dismissal from service, employer/filed written statement and matter was adjourned for evidence of petitioner/employee---Case was adjourned for about nine times mostly due to non-appearance of employee or his representative---Even on final date of hearing fixed for filing affidavit-in-evidence petitioner/employee and his representative were called absent whereas employer was present---Labour Court dismissed grievance petition for non-prosecution and application for restoration of grievance petition was also dismissed---Validity---Employee had contended that order of dismissal of his grievance petition was void as Labour Court instead of dismissing grievance petition should have proceeded with recording statement of employer and decided case on merits--Contention of employee was repelled because Labour Court was required to give decision on merits only when affidavit-in-evidence was filed by employee in support of his grievance petition, whereas employee had failed to file said affidavit-in-evidence V he remained absent throughout while burden of proof was also on him.
(b) Industrial Relations Ordinance (XXIII of 1969)---
----S. 25-A---Grievance petition---Dismissal in default ---Consequences--Employer appeared and filed written statement and matter was adjourned for evidence of petitioner/employee---Case was adjourned for about nine times mostly due to non-appearance of petitioner/employee and his representative---Even on final date of hearing fixed for filing affidavit-in-evidence, both petitioner and his representative were found absent--Grievance petition was rightly dismissed for non-prosecution because law could help vigilant and not indolent.
Col. (Retd.) Sadiq Hussain Sheikh v. Lt.-Col. Farooq Ahmed 1987 SCMR 1887; K.M.C. Sanitary and General Employees' Union v. Sindh Labour Court No.II and others 1987 PLC 754; Syed Munir Hussain Shah v. Mst. Syeda Mahfooz Begum and others 1987 PLC 1241; Shahzad Alam Mirza v. Pakistan Steel Mills 1989 PLC 693 and Kala Khan v. Jubilee Spinning and Weaving Mills 1993 PLC 864 ref.
(c) Maxim---
---- Law helps vigilant and not indolent.
S.P. Lodhi, Representative for Applicant. Mehmood A. Ghani for Respondent No.2.
DECISION
This is a revision application under section 38(3) of Industrial Relations Ordinance, 1969 filed against the order, dated 26th of September, 1998 whereby the learned Labour Court No.V, Karachi, dismissed the application for restoration.
Briefly stated, the facts are that an application under section 25-A(4) of the Industrial Relations Ordinance, 1969 was filed on 2-12-1997 by the applicant for reinstatement with full back benefits against his alleged wrong dismissal. The written statement was filed by the respondent on 12-1-1998 and the matter was adjourned to 5-2-1998 for evidence of the applicant. As on 5-2-1998 having been declared public holiday, the matter was taken up on 6-2-1998 but the applicant and his representative were called absent. The matter was, therefore, adjourned again for filing affidavit-in-evidence of the applicant. On 26-2-1998 the applicant and his representative were again called absent. The matter was put off to 19-3-1998 but the applicant and his representative again remained absent. The matter was again put off to 1-4-1998 but again applicant and his representative were called absent. On the next date, perhaps, for the first time, on 16-4-1998 Mr. Khaleel-urRehman, Representative of the applicant was present. On .14-5-1998 Representative filed an application for adjournment which was allowed by consent. On 16-5-1998 the matter was again put off to 28-5-1998 for affidavit-in-evidence of the applicant. On 28-5-1998 applicant was present in person but made an application for time which was allowed and the case was put off to 10-7-1998 for affidavit-in-evidence of the applicant. On 10-7-1998 applicant and his representative were called absent. Respondent was present. Grievance petition under section 25-A of I.R.O., 1969 consequently dismissed in default for non-prosecution.
On 7-8-1998 the applicant moved an application for restoration which, after hearing the parties, learned Presiding Officer was pleased to dismiss by his order dated 2.6-9-1998 against which the above revision application has been filed.
I have heard Mr. S.P.Lodhi, Representative of the applicant and Mr. Mehmood A. Ghani, 4dvocate for the respondent.
Mr S.P. Lodhi, Representative of the applicant first of all, submitted that the impugned order is void. The learned Presiding Officer should not have dismissed the main application under section 25-A of LR.O., 1969 in default but ought to have proceeded with recording statement of the respondent and decide the case on merits as provided under section 25-A(4) of I.R.O., 1969. Reference is made to the provision of subsection (4) of section 25-A, of IRO, 1969. He advanced to arguments except referring to the above provision of law. Learned counsel for the respondent, in reply, submitted that the learned Labour Court is required to give the decision on merits only when there is - an affidavit filed by the applicant in support of his application. Moreover, burden of proof was on the applicant. The submission of Mr. S.P. Lodhi is entirely misconceived and is not even supported by reading the provision itself.
The next submission of the Representative of the applicant. is that on 12-7-1998 when the application was dismissed in default applicant's Representative Mr. Khalil-ur-Rehaman had gone to Nepal to attend a Seminar. When I enquired Mr. Lohdi as to the date when he left Karachi for Nepal and came back from Nepal to Karachi, he was not in a position to tell me about any date. Although Mr Khalil-ur-Rehman had entered the Court room alongwith Mr. Lodhi but when this case was taken up he had already left the Court, so Mr. Lodhi showed his inability to make inquiry from Mr. Khalil-ur-Rehman himself. In any case, it was the duty of Mr. Khalil-ur-Rehman to inform the Court of his departure and inability, if there was any, to appear on 10-7-1998 in the Court.
Now coming to the absence of the applicant himself on 10-7-1998. It was stated by him in para. 4 of the affidavit-in-evidence which is reproduced as under:--
"(4) That I say that unfortunately, on the date of hearing, I became sick and could not attend the Hon'ble Court. (Medical Certificate enclosed and marked as ' A' ). "
I perused the medical certificate dated 10-7-1998 which certifies that the applicant was suffering from hypertension from 10-7-1998, he had been advised for complete bed rest. The Certificate further goes to state in the next para that "Now he is physically fit from 11-7-1998 and he may start his activities from 11-7-1998". The Personnel Director of the respondent Mr. S. Arshad Ali filed his own affidavit wherein, inter alia, it was denied that the ground of sickness taken by the applicant was correct. Medical certificate submitted by the applicant is dated 10-7-1998 which is also the date of hearing. In this Certificate it is mentioned that the applicant was suffering from Hypertension on 10-7-1998 and has been advised bed rest. Same certificate says that he is medically fit from 11-7-1998 and can resume his normal activities therefrom. The relevant paragraph five (5) further states that:
"On one hand the certificate speaks that he is suffering from Hypertension and on the other hand allows him to resume his normal activities the next date. Furthermore, the Certificate has been issued by the Maternity Home Doctor. This Certificate, on the face of it, is a bogus Certificate."
It was further stated in the affidavit that if on 10-7-1998 the applicant could go to the Doctor, should equally come to attend the Court for filing his affidavit but he failed to do so.
In view of the challenge to the genuineness of the document, that is, the alleged Medical Certificate by the respondent, it was necessary to produce the Doctor to testify his Medical Certificate. He made no application of summoning the Doctor. The learned Presiding Officer, Sindh Labour Court No.V, Karachi, was, perhaps, himself in doubt about the genuineness of this medical certificate, so he deputed his bailiff for verification of the said Certificate with a summon for appearance of Doctor Shah Sultan Rafique who seems to have signed the said Medical Certificate. The bailiff stated on oath that he went to the address given by the Court i.e. Naseem Medical Centre and Maternity Home, Dr. Rahim Jannat Ali who was present in the office read the summons and said that:
So she refused to receive the summons
So, summons with the above report of the bailiff was returned unserved to the office. The learned Presiding Officer in order to make more sure recorded the statement of the bailiff on oath in Court, in presence of the parties which for the sake of convenience is reproduced as under:--
"I, Fareed Khan son of Kala Khan, Muslim, Adult, resident of Karachi, Process Server of Sindh Labour Court No. V, Karachi, do hereby state on oath as under:--
1. That on 21-9-1998, I was handed over the summons alongwith photostat copy of Medical Certificate Nasir Medical Centre and Maternity Home for service on the Doctor Shah Sultan Rafique of the above named hospital situated at 1338, 32/E, Nasir Colony, Korangi No 1, Karachi.
2. That I reached on the aforesaid address and offered the summons for delivery whereon Dr. namely Rahim Jannat Ali was present there, who after reading the summons and photostat copy of the Medical Certificate said that there is no doctor by name Shah Sultan Rafique in this Clinic and that the certificate was not issued from this Clinic, it is a forged and manipulated Medical Certificate. The rubber stamp is also not of this Medical Centre.
3. That I submit this report alongwith the specimen of rubber stamp of the hospital on a piece of paper. "
For the above said reasons learned Presiding Officer placed no reliance on the Medical Certificate and rightly so, in my opinion.
It is quite pertinent to note that there was no cross to the bailiff by the applicant's side.
The last submission made by Mr. Lodhi was that it will be in the interest of justice if the case is remanded back to the learned Labour Court for giving opportunity to the applicant to produce his affidavit-in-evidence and deciding the case on merit. Looking to the entire history of the case and after going through the entire case diary I regret to state that the demand of justice seems to be otherwise i.e. in favour of the respondent. The scale of justice should be kept evenly balanced.
Learned counsel for the respondent referred to a number of authorities reported as under:--
(i) Col. (Retd.) Sadiq Hassan Sheikh v. Lt.-Col. Farooq Ahmed (1987 SCMR 1887) wherein it was observed that:
"Proceedings adjourned on three occasions to enable petitioner to produce his evidence but Rent Controller; after being satisfied that petitioner was purposely prolonging the proceedings, closing his evidence."
(ii) K.M.C. Sanitary and General Employees' Union v. Sindh Labour Court No. II, and others 1987 PLC 754.
It was a case of seeking one adjournment which was refused by the Labour Court. A revision was filed against the said order in the Tribunal which was dismissed and then the matter was taken to the High Court of Sindh by filing four Constitution Petitions there. The Hon'ble Judge refused to issue the writ observing that:
"But a request for adjournment was made on behalf of the petitioners on that date. Consequently the Labour Court had discretion either to grant the request of the petitioners or to refuse the same. Merely because the discretion was not exercised by the Labour Court in favour of the petitioners the same cannot render the proceedings before it without jurisdiction. Of course, if no opportunity of hearing at all had been provided to the petitioners, the case might have been different. I, therefore, do not find force in this contention as well and the same is also repelled."
(iii) Syed Munir Hussain Shah v. Mst. Syeda Mahfooz Begum and other (1987 CLC 1241) it was observed that:
"The aforementioned resume of the proceeding shows that the petitioner had sufficient opportunity to produce the evidence but he failed to avail it. In the circumstances, his complaint of wont, of opportunity is without any substance."
(iv) Shahzad Alain Mirza v. Pakistan Steel Mills (1989 PLC 693).
It is a decision of this Tribunal wherein it was observed that:
"It may also be pointed out that the case was dismissed in default on 8-10-1988 while the application for restoration was filed after more than weeks viz 5-11-1988. One Medical Certificate has been produced to show that the appellant was suffering from Hepotic disorder from 6-10-1998, to 26-10-1998. This Certificate also does not appear to be beyond suspicion. It does not bear the signature of the patient viz. the appellant in whose favour it purports to have been issued and does not even show the name of father of the patient. No affidavit of the doctor has been filed that on 8-10-1998 appellant could not attend the Court for the reason beyond his control. "
(b) Kala Khan v. Jubilee Spinning and Weaving Mills (1993 PLC 864) which is again a decision of this tribunal where it was observed that:----
"The appellant has miserably failed to establish that his. Absence before the learned Labour Court on 18-2-1987 was reasonable genuine, and beyond his control. There is also nothing on record to prove the fact that the absence of the Advocate-Representative of the appellant was also cogent. Under these circumstances, I am of the view that the impugned order is quite correct and lawful and is not liable to be set aside. Hence it is maintained. Appeal dismissed."
Reverting to the instant case, it is apparent that the case was adjourned as many as 9 times out of which at least 4-5 times both the applicant and his Representative were called absent. The law helps the vigilant and not the indolent. In my opinion, there will be an open injustice to the respondent if this application is allowed and the case is remanded to the Labour Court as submitted by the representative for the applicant.
For the above discussion, I am fully satisfied as to the correctness legality, and propriety of the order, dated 26th of September, 1998 passed by the learned Presiding Officer, Sindh Labour Court No.V, Karachi.
In result the revision application is dismissed.
H.B.T./316-K/Lab. (Trib.) Revision dismissed.
2000 P L C 361
[Sindh Labour Appellate Tribunal]
Before Dr. Tanzil-ur-Rehman, Chairman
Messrs AFGHAN NATIONAL BANK PAKISTAN (PVT.) LTD
through Managing Director
Versus
Mst. ROSHAN BUKHARI and another
Appeals Nos.KAR-84 and 85 of 1998, decided on 9th April, 1999.
Industrial Relations Ordinance (XXIII of 1969)--
----S. 25-A---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.0.12---Retirement on ground of crossing age of superannuation ---Grievance petition---Limitation--Employees were retired from service as they had crossed the age of superannuation ---Employees could not prove that they were victimised for their, union activities---Termination of services of employees through retirement was justified firstly because it was within parameter of settlement arrived at between employer and Collective Bargaining Agent whereby parties agreed that age of retirement/superannuation would be sixty years or completion of forty years service and even prior to said agreement, there was a constant practice of employer Bank that employees were being retired on attaining age of sixty years---Retirement of employees after attaining age of sixty years, thus, was not questionable---Grievance petition filed by employees against termination of their services otherwise being barred by time, should have been dismissed by Labour Court on point of limitation.
Tariq Mahmood v. Messrs Rice Export Corporation of Pakistan Ltd., Karachi 1981 PLC 888; Fayyaz Ali v. Sindh Labour Court No.V and another 1981 PLC 888; Alt Afsar Khan v. Messrs Hoechest (Pakistan) Ltd 1982 PLC 422; Sikandar Hayat v. Sindh Labour Appellate Tribunal, Karachi and 2 others 1991 PLC 508; 1998 PLC 331; Messrs A.E.G. Telefunken Pakistan (Pvt.) Limited v. Sindh Labour Appellate Tribunal and 2 others 1989 PLC 525 and Services Mess (formerly Services Club), Karachi and others v. Budha Khan and others 1993 PLC 371 ref.
Ch. M. Latif Saghar for Appellant.
Musthaq A. Shaikh for Respondents.
Date of hearing: 9th April, 1999.
2000 P L C 368
[Sindh Labour Appellate Tribunal]
Before Dr. Tanzil-ur-Rehman, Chairman
KARACHI DEVELOPMENT AUTHORITY through Director
General having office at Civic Centre, Gulshan-e-Iqbal, Karachi and another
Versus
HABIB AHMED KHAN
Appeal No.KAR-332 of 1998, decided on ,18th March, 1999.
Industrial Relations Ordinance (XXIII of 1969)---
----.Ss. 25-A, 37(3) & 2(xxviii)---Grievance petition ---Workman---Appeal--Maintainability---Petitioner, a Divisional Accounts Officer working in Development Authority in Grade-14, had prayed in his petition under S.25-A of Industrial Relations Ordinance, 1969 for allowing him Grade-17 and 33 % of Selection Grade 18 with back benefits-- -Petition was allowed by Labour Court against which appeal was filed by the Authority---Petitioner being in Grade-14 would not fall within category of a Workman, but would come within category of an officer and his remedy first lay with Director-General of the Authority, then with Secretary, Housing and Town Planning and in case petitioner was again aggrieved by decision of Secretary, he was to approach Service Tribunal---Even otherwise Development Authority against such petition under S.25-A, of Industrial Relations Ordinance, 1969, was filed having been constituted and controlled by Government, its employees would be servants, and not workmen---Petition under S.25-A, Industrial Relations Ordinance, 1969 and appeal filed against judgment of Labour Court on said petition, both were not maintainable in circumstances.
Muhammad Afzal Khan v. Karachi Development Authority and 6 others PLD 1984 Kar. 114 and M. Izzat Hussain Hamidi v. Director General, Karachi Development Authority Appeal No.KAR-43 of 1996.
Irtiza Hussain for Appellants.
Ehsan Elahi Khan for Respondent .
Muhammad Saleem Sarno, Addl. A.-G. (on Courts Notice).
2000 P L C 373
[Sindh Labour Appellate Tribunal]
Before Dr. Tanzil-ur-Rehman, Chairman
CHAND KHAN
Versus
Messrs M.M. ISPHANI LTD. through Director
Old Appeal No.KAR-62 of 1997 (New Appeal NOXAR-189 of 1998), decided on 25th May, 1999.
Industrial Relation Ordinance (XXIII of 1969)---
----Ss. 2(xxviii) & 25-A---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), Ss. 1(4) & 2(i)---" Workman"---Determination---Grievance petition ---Maintainability--Employee was appointed in employer company as Deputy Manager drawing salary of Rs.9,450 at the time of termination of his service---Employee used to act as Site Incharge and verify running bills of contractors working at site for employer company and he also placed purchase orders in a capacity of Site Incharge--Employee also used in sign payment sheets of casual workers---Function of employee being a supervisory nature, he was not a "workman" and grievance petition filed by him under S.25-A of Industrial Relations Ordinance, 1969 was not maintainable---Number of workmen employed in employer company during preceding year being less than twenty, provision of West Pakistan Industrial arid Commercial Employment (Standing Orders) Ordinance, 1968 were also not applicable to the case of employee---Grievance petition was rightly dismissed by Labour Court.
Sadiq Ali Khan v. Punjab Labour Appellate Tribunal and 2 others 1994 PLC 211; Ganga R. Madhani v: Standard Bank Ltd. and others 1985 SCMR 1511 and Karachi Shipyard and Engineering Works Limited v., Abdul Ghaffar and 2 others 1993 SCMR 511 ref.
Muhammad Tasnim for Appellant.
Mahboob Rizvi, Representative for Respondent.
2000 P L C 397
[Sindh Labour Appellate Tribunal]
Before Dr. Tanzil-ur-Rehman, Chairman
GENERAL TYRE AND RUBBER EMPLOYEES WELFARE
UNION through President.
Versus
REGISTRAR OF TRADE UNIONS, GOVERNMENT OF SINDH and another
Revision Application NOXAR-262 of 1998, decided on 18th October, 1999.
Industrial Relations Ordinance (XIII of 1969)--
----S.38(3-a)---Revision---Competency---Applicant had failed to pinpoint the order against which revision was aimed at---Revision application otherwise being.. bad for misjoinder of numerous causes of action, was dismissed.
Ashraf H. Rizvi for Applicant.
Nemo for Respondents.
2000 P L C 398
[Sindh Labour Appellate Tribunal]
Before Dr. Tanzil-ur-Rehman, Chairman
FAUJI FERTILIZER COMPANY LIMITED RAWALPINDI and another
Versus
LIAQUAT ALI
Appeal No.KAR-123 of.1998, decided on 30th September, 1999.
(a) Industrial Relations Ordinance (XXIII of 1969)---
----S.25-A---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.15(3)(b) & (4)---Dismissal from service---Employee serving as Supervisor was dismissed from service on allegation of misappropriation and fraud after issuing him show cause notice, charge-sheet and holding enquiry against him---Enquiry against employee was held by an Enquiry Officer who not only was a knowledgeable person, but was also an independent and God-fearing man who conducted enquiry independently taking into consideration facts of case and discussing entire evidence---Employee fully participated in enquiry proceedings with his helper and enquiry was conducted in detail on different dates which took twenty days of hearing---Employee could not find any fault in the said enquiry proceedings---Enquiry Officer in his detailed enquiry report found employee guilty of committing fraud and mispapropriation---Findings of Labour Court that case against employee was doubtful and that employee was punished without any reason, was based on non-reading and misreading of .evidence by Labour Court and were based on surmises and conjectures---Findings recorded by Enquiry Officer based on proper appreciation of record were correct and could not be interfered with---Order terminating service of employee on basis of said findings of Enquiry Officer, was in accordance .with law.
Muhammad Fahim Ansari v. Messrs ICI Pakistan Ltd., Karachi 1993 PLC 78 ref.
(b) Industrial Relations Ordinance (XXIII of 1969)--
----S.25-A---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance(VI of 1968) S.O. 15(3) & (4)---Misconduct--Enquiry into misconduct--- Nature---Finding given in an enquiry proceedings should not be lightly interfered with by Labour, Court unless it was totally wrong, perverse and based on no evidence and that principle of natural justice had been violated by not affording an adequate opportunity to accused employee for producing his evidence---Provisions of S.25-A, Industrial Relations Ordinance, 1969 though contemplated determination of allegation judicially with regard to alleged misconduct, but domestic enquiry into misconduct did not contemplate same standard and principle of appreciation of evidence, and quantum of proof as required in a criminal prosecution as to findings of guilt---Standard of appreciation of evidence in a domestic enquiry was different from standard of assessment of evidence in a criminal case which required proof of guilt beyond any reasonable doubt.
Barza v. Star Textile Mills Ltd. 1984 PLC 576; Muhammad Nazeer v. Mercantile Industries Ltd., Karachi 1991 PLC 712 and Shamim Ahmad Kazmi v. P.I.A. 1995 CLC 91 ref.
Masood Ahmed Khan for Appellant. Gohar Iqbal for Respondent.
Dates of hearing: 8th, 13th and 14th September, 1999.
2000 P L C 415
[Sindh Labour Appellate Tribunal]
Before Dr. Tanzil-ur-Rehman, Chairman
ZUBAIR HAIDER through Incharge Law, Pakistan Steel
Versus
RAEES AHMED and 5 others
Revision Applications Nos. KAR-58, KAR-59, KAR-60. KAR-63, KAR-80 and KAR-81 of 1999, decided on 14th October, 1999.
Industrial Relations Ordinance (XXIII of 1969)---
----Ss.25-A (8) & 38(3-a)---Non-compliance of decision or order of Labour Court---Effect---Jurisdiction of Labour Court---Determination---Jurisdiction of Labour Court under S.25-A(8) of Industrial Relations Ordinance, 1969 could be determined finally by Labour Appellate Tribunal after case was finally decided by Labour Court and an appeal /revision, if any, was filed before Labour Appellate Tribunal by aggrieved party.
1999 S C M R 197; PLD 1969 SC 167; 1986 SCMR 1994; 1977 SCMR 371 and PLD 1990 SC 951 ref. Miss Mahreen Nazar for Applicant.
Muhammad Tasnim for Respondents Nos. l to 3.
Respondents Nos.4 and 6. (absent).
Latif Saghar for Respondent No.5.
2000 P L C 421
[Sindh Labour Appellate Tribunal]
Before Dr. Tanzil-ur-Rehman, Chairman
ISRAR AHMED
Versus
EXECUTIVE ENGINEER, GHOTKI DIVISION (IRRIGATION) AT
GHOTKI and another
Appeal No. SUK-287 of 1998, decided on 28th October, 1999.
Industrial Relations Ordinance (XXIII of 1969)----
----Ss. 25-A & 37(3)---Grievance petition---Maintainability---Grievance petition filed by employee under S.25-A of Industrial Relations Ordinance, 1969 was rejected on the ground that employee was appointed during period when ban was imposed on appointments---Question of appointment during ban or not was irrelevant in face of finding of Labour Court that employee was a worker---Employee had submitted that he would be satisfied if case be remanded to Labour Court to decide afresh after allowing employer to file written statement and appear to produce evidence---Matter was remanded by Labour Appellate Tribunal to Labour Court to decide on merits after affording opportunity to employer to file written statement and appear before Labour Court for examination-in-chief.
Qurban Ali for Appellant.
Khursheed A. Khokhar, A.E.E. for Respondents.
Date of hearing: 28th October, 1999.
2000 P L C 425
[Sindh Labour Appellate Tribunal]
Before Dr. Tanzil-ur-Rehman, Chairman
WAZIR HUSSAIN
Versus
Messrs DIN LEATHER LTD.
Appeal No. KAR-299 of 1998, decided on 11th October, 1999.
Industrial Relations Ordinance (XXIII of 1969)--
----S. 25-A---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), 5.0.15(3)(4)---Misconduct--Dismissal from service---Employee was dismissed from service after charge-sheet and affording opportunities of being heard in enquiry held against him---Employee was duly notified of the date of enquiry, but he boycotted the proceedings and left enquiry room without cross-examining witnesses examined in enquiry---Employee did not avail at least three opportunities given to him by Enquiry Officer---Principles of natural justice, in circumstances, had not been violated and no prejudice had been caused to employee---Allegation of misconduct on basis of which employee was dismissed from service having been proved by unrebutted evidence, employee was rightly dismissed from service.
Jubilee Spinning & Weaving Mills Ltd., Karachi v. Bladar Khan and 8 others 1975 PLC 24; Jupiter Textile Mills Ltd. v. Hayat 1983 PLC 94; Syed Niaz Ali Ansari. v. Mushtaq Textile Mills Ltd., Hyderabad 1980 PLC 610; Fazal Hakeem. v. Messers Elite Textile Mills Ltd. 1982 PLC 591; Messers Amin Fabrics Ltd. v. Muhammad Akhter and another 1988 PLC 377 and General Manager, Bizvil Spinners Ltd. v. Tariq Habib 1990 PLC 378 ref.
Ashraf Hussain Rizvi for Appellant.
Muhammad Faruq A. Ghani for Respondent.
Date of hearing: 11th October, 1999.
2000 P L C 435
[Sindh Labour Appellate Tribunal]
Before Dr. Tanzil-ur-Rehman, Chairman
MUHAMAMD FAROOQ
Versus
Messrs PLASTICRAFTERS (PVT.) LIMITED and another
Appeal No. KAR-79 of 1999, decided on 5th October, 1999.
Industrial Relations Ordinance (XXIII of 1969)---
----Ss. 25-A & 37(3)---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.12(3)--Grievance Petition ---Limitation---Delay--- Condonation---Grievance notice against termination of service was given to employer within time, but grievance petition filed by employee with delay of three days was dismissed by Labour Court on ground of limitation---Said delay having sufficiently been explained by employee, was condoned by Labour Appellate Tribunal and matter was remanded to Labour Court to decide other issues after hearing parties.
Raftullah for Appellant.
Mehboob Rizvi, Representative for Respondents.
Date of hearing: 5th October, 1999.
2000 P L C 436
[Sindh Labour Appellate Tribunal]
Before Dr. Tanzil-ur-Rehman, Chairman
REHMAN GHANI and another
Versus
SARFARAZ AHMED AWAN
Revision Application No. 61 of 1999, decided on 20th September, 1999
Industrial Relations Ordinance (XXIII of 1969)-
----S. 38(3-a)---Revision application---Competency---On complaints by Assistant Director Labour and Inspector of Factories against Managing Director and Manager of Factory for violation of S.2(g) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, Labour Court passed order "issue process" ---Applicant who was Managing Director had challenged said order in revision contending that only Manger of Factory could be prosecuted under Factories Act, 1934 and not Managing Director or any other person---Order of Labour Court having contained two words only "issue process" applicant could take said plea before Labour Court on date fixed for hearing the case---Revision application was premature to be interfered with without giving opportunity to Labour Court to express its mind on point at issue- --Revision application was dismissed being premature.
Muhammad Humayun for Applicant.
2000 P L C 438
[Sindh Labour Appellate Tribunal]
Before Dr. Tanzil-ur-Rehman, Chairman
In re: REPRESENTATION OF A WORKER
Suo Motu Cognizance Notice No.1 of 1999,decided on 23rd October, 1999.
(a) Industrial Relations Ordinance (XXIII of 1969)---
----S. 49(1)---Word "a" used as prefix to "workman" and to "collective bargaining agent" m S.49(1)---Connotation---Word "a" used as prefix to "Collective Bargaining Agent" in S.49(1) of Industrial Relations Ordinance, 1969, should not be given a restrictive meaning in "the" Collective Bargaining Agent to which worker was a member---Opening words "a workman" in S.49(1) of the Ordinance would also mean "any worker".
(b) Interpretation of statutes---
---One word used at more than one place in same section and in same context could not convey two different meanings, unless context would mean otherwise.
(c) Industrial Relations Ordinance (XXIII of 1969)---
----S. 49---Representatidn of parties---Person who was an officer of any Collective Bargaining Agent of a registered trade union, could represent a worker provided he was duly authorised by the worker and his authorisation was authenticated before Registrar of Trade Unions and that representative who claimed to be an officer of Collective Bargaining Agent would produce a certified copy in respect thereof issued by Registrar, Trade Unions in any proceedings before Labour Court or the Tribunal---If the representative ceased to be an officer of Collective Bargaining Agent, he would intimate the Court concerned.
2000 P L C 442
[Sindh Labour Appellate Tribunal]
Before Dr. Tanzil-ur-Rehman, Chairman
ILYAS AHMED
Versus
Messrs JOHNSON & PHILIPS (PAKISTAN) LIMITED
through Managing Director
Appeal No. KAR-339 of 1998, decided on 24th November, 1999.
Industrial Relations Ordinance (XXIII of 1969)---
----Ss. 25-A & 37(3)---Dismissal of grievance petition---Appeal---During pendency of appeal, parties agreed that matter could be remanded to Labour Court other than Court which had decided grievance petition---With consent of parties matter was remanded to other Labour Court with direction to decide same after giving parties opportunity to lead evidence oral and documentary.
Muhammad Tasnim for Appellant. Ch. Muhammad Ashraf Khan for Respondent.
Date of hearing: 24th November, 1999.
JUDGMENT
This is an appeal under section 37(3) of Industrial Relations Ordinance, 1969, against the decision, dated 22nd September, 1998, passed by the learned Sindh Labour Court No.3 at Karachi, in Grievance Application No.29 of 1997 under section 25-A of I.R.O., 1969, whereby the said grievance application was dismissed.
2.I have heard learned counsel for the parties at some length.
By consent, the impugned decision is set aside and the case is remanded. At this stage, both the counsel requested in writing that the matter may be remanded to any other Court but Court No.3. The request made orally as well as in writing (placed on record) P.37 is accepted and the case is remanded to Sindh Labour Court No.5 with a direction that Export Trade International (Private) Limited, contractor, having office at 108, 16th East Street. Phase-I, Defence Housing Authority, Karachi, as stated in Annexure R/10, where the appellant is stated to be their employee, should be joined as party to the main case as respondent No.2. The respondent No.2. newly added, as per order of this Tribunal, should be served with a notice and give full opportunity to lead evidence, oral and documentary in Court on their behalf. The appellant herein will have a right to cross-examine such evidence and also to lead his evidence, oral as well as documentary, if any, in rebuttal, with a right to cross-examine by both the respondents. The appeal is disposed of accordingly. The parties are directed to appear before the learned Labour Court No.5 on 4-12-1999.
R&P be sent back to learned Labour Court No.5 alongwith a copy of the Judgment.
H.B.T./459/K(L.(Trib) Order accordingly.
2000 P L C 443
[Sindh Labour Appellate Tribunal]
Before Dr. Tanzil-ur-Rehman, Chairman
AHMED RAMZAN
Versus
MUHAMMAD HAMID
Revision Application No. KAR-132 of 1999, decided on 19th November, 1999.
Industrial Relations Ordinance (XXIII of 1969)-
----Ss. 36(2) & 38(3-a)---Summoning of witness---Application for summoning Advocate for respondent was rejected by Labour Court---Labour Court under S.36(2), Industrial Relations Ordinance, 1969 could grant application for summoning witness who was not a common man, but was an Advocate---Refusing to summon witness, if not illegality, but at least was an impropriety on part of Labour Court, especially when it was asserted by applicant that though he had withdrawn his case, but amount agreed to was not paid to him---Labour Appellate Tribunal in exercise of revisional jurisdiction directed Labour Court to summon witness to examine on point in question.
Abdul Zubaid, Representative for Applicant.
ORDER
This is an application under subsection (3-a) of section 38 of the Industrial-Relations Ordinance, against the order dated 11-10-1999 passed by the learned Presiding Officer. Sindh Labour Court No.5 at Karachi.
Mr. Abdul Zubaid General Secretary of Hotel Mehran National Workers, Union registered with the Registrar of Trade Unions, submits that he had made application for summoning Mr. Rafiullah who was advocate for the respondent. This application, for summoning Mr. Rafiullah, was refused by the learned Labour Court. Incidentally Mr. Rafiullah is present in this Tribunal in connection with another case. He sought my permission to make his submission and stated at the Bar that a cheque, issued by the respondent, to be paid to the applicant, after the case is withdrawn, is lying with him. The case was accordingly withdrawn. Mr., Rafiullah submits that his client had not contacted him. He further submits that he had referred the cheque to the applicant, but he refused to accept and insisted for cash.
I think the Court ought to have granted the application under section 36(2) of the I.R.O., 1969 for summaning Mr. Rafiullah and here I find, if not an illegality but at least an impropriety, in not summoning a witness, who is an advocate of the Court, not a common man. Particularly when it was asserted by the applicant that although he withdrew the case, but the amount was not paid to him. I, therefore, accept this revision application and direct the learned Labour Court to examine Mr. Rafiullah, Advocate, on the point in question, Mr. Rafiullah undertakes to appear before the learned Labour Court on 24-11-1999 for examination (no affidavit) and cross examination, if any in Court. Mr. Abdul Zubaid also will be present on that
The revision application is allowed. Consequent upon the order passed in Revision Miscellaneous No.446 of 1999 for summoning Mr. Rafiullah, having become infructuous, is dismissed.
H.B.T..457/K(L.Trib) Revision allowed.
2000 P L C 451
[Sindh Labour Appellate Tribunal]
Before Dr. Tanzil-ur-Rehman, Chairman
ALI SHER and 12 others
versus
Messrs ENGRO CHEMICAL PAKISTAN LIMITED and 2 others
Appeal No. SUK-105 of 1999, decided on 10th September, 1999.
Industrial Relations Ordinance (XXIII of 1969)---
----S.25-A---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O. 12---Termination of service---Grievance notice---Limitation---Services of employees were terminated by issuing them termination letter under S.O. 12 of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968---Employee's gave grievance notice to employers against termination of their services after. a period of three months from termination of services which was to be given within three months as -provided under S.25-A(1) of Industrial Relations Ordinance, 1969---Grievance petition filed by employees against termination of their services, was rightly dismissed by Labour Court being barred by time.
Shafiq Qureshi for Appellants.
Nemo for Respondents.
JUDGMENT
This is an appeal, filed under section 37(3) of the Industrial Relations Ordinance, 1969, against the order passed on 23-6-1999 by the learned Labour Court No. VII at Sukkur, on an application under section 25-A(10) of the I.R.O., 1959, tiled by thirteen workers, who are appellants herein, whose application was dismissed on the sole ground that the grievance notice, given to the respondent, was time-barred.
Heard Mr. Shafiq Qureshi, learned counsel for the appellants. The letter of termination dated 21-6-1998, filed by the appellant, appears at page 17 of the appeal file, which reads as under:---
A perusal of the above letter shows that Messrs Al-Sajid & Company (respondent No.2) were the contractors of Engro Chemical Pakistan (respondent No. l) and these appellants were on the pay-roll of the said contractors. The termination letter, as admitted by the learned counsel, appears to have been issued under Standing Order 12(1) of the Standing Orders Ordinance, 1968 with payment of one months' pay in lieu of notice.
Being aggrieved of the said order of termination, the appellants gave grievance notice, dated 3rd October, 1998, which appears to have been given, admittedly, after a period of three months, as provided under section 25-A(1) of the I.R.O., 1969, which is mandatory for seeking relief of reinstatement
Mr. Shafiq Qureshi submits that the employer, the respondent No. 2, simultaneously with the termination of the employment of appellants, also filed an application under Standing Orders Ordinance, 1968, which is soil pending before the learned Labour Court at Sukkur and the time for termination of the employment of the workers will start only after the said application is disposed of. It will be unfair on my part to make any observation on a. mailer, pending before the learned Labour Court.
At the moment, I am concerned whether the grievance notice, given to the employer, respondent No.2, was within the statutory period, provided in law or not? The learned Labour Court has given a clear finding in the order, impugned before me, that the grievance notice, dated 3rd October, 1998, was time-barred, which position, on the factual plain, is not disputed by the learned counsel.
I have no reason to take a different view, expressed by the learned Labour Court, in its order, impugned before me, that the grievance notice is time-barred.
During the course of dictating the judgment, Mr. Shafiq Qureshi, raised a plea that Standing Order 12(3) does not give any time limit for filing application before the learned Labour Court. I find no substance in the submission. It is the provision of section 25-A(1) of the Industrial Relations Ordinance, 1969, which governs the field in the matter.
In view of the above, the appeal is, therefore, dismissed in limine.
H.B.T./335/K/(L.TRIB.) Appeal dismissed.
2000 P L C 459
[Sindh Labour Appellate Tribunal]
Before Dr. Tanzil-ur-Rehman, Chairman
Messrs PEARL CONTINENTAL HOTEL, KARACHI
versus
GULZADA and another
Appeal No. KAR-352 of 1998 and Miscellaneous No. 102 of 1999, decided on 25th August, 1999.
(a) Industrial Relations Ordinance (XXIII of 1969)---
----S. 25-A---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O. 12---Resignation of employee---Withdrawal of---Re-instatement of---Resignation alleged to have been tendered by employee, was withdrawn by him on the same day by sending a message by telex to employer---Facts and circumstances had also shown that resignation was not tendered by employee of his own free-will---Resignation having been withdrawn by employee on the same day before its acceptance was conveyed to employer, Labour Court had rightly ordered reinstatement of employee accepting his grievance petition.
1992 SCMR 2135 ref.
(b) Industrial Relations Ordinance (XXIII of 1969)---
----S. 51---Back benefits---Entitlement---If action of employer in terminating services of employee or debarring employee from his job by gate-stopping otherwise, was illegal and mala fide, back benefits must follow provided it was established to the satisfaction of the Court that the employee had not been engaged in any gainful employment.
(c) Industrial Relations Ordinance (XXIII of 1969)---
----S. 51---Back benefits---Entitlement---Factors to be considered---Mere delay in disposal of a case by Labour Court, though would not by itself be sufficient to deprive worker of back' benefits, but if there had been an inordinate delay in disposal of case to which worker had himself been a contributory, worker must not be allowed to reap fruit in shape of back benefits for his own acts and misdoing in delaying the matter inordinately.
Muhammad Humayun for Appellants.
Muhammad Latif Saghar for Respondent.
Dates of hearing: 24th and 25th August, 1999.
JUDGMENT
This is an appeal under section 37(3) of the I.R.O., 1969, against the order dated 8-10-1998 passed by the learned Presiding Officer, Sindh Labour Court No.V. Karachi, whereby the appellants' Applications No.181 of 1991 under section 2 -A of the Industrial Relations Ordinance. 1969, was allowed, ordering reinstatement of the respondent with back benefits.
The facts, briefly stated, are that the 'respondent was employed as Bell Boy in the appellant's establishment. On or about 5th of November. 1991 he is alleged to have tendered his resignation addressed to the Personnel Mat The respondent, however, appears to have sent a message by telex the same day which was received on the night of 6th of November at 1:49 hrs. to the appellant Hotel alleging inter alia, that the resignation was obtained from him under "durace", "fear" and "threat" of being prosecuted by the police. He, therefore, withdrew the said resignation. After about 1-5 days respondent served grievance notice, dated 28th of November, 1991 and, thereafter, the respondent filed his Grievance Petition in the Labour Court No.V. Karachi, which was allowed, as aforesaid.
The applicant (respondent herein-under) examined himself as his own witness and the appellant examined two witnesses M/s. Dawood, Assistant Personnel Manager and Muhammad Tasleem, Assistant Front Manager They were cross-examined by the respective Advocates of the other side. Earlier one Mr. Chawala Personnel Manager had filed his affidavit-in-evidence but since he left the employment, Mr. Dawood filed his own affidavit- in-evidence on behalf of the appellant's Hotel.
Mr. Muhammad Hamayun, learned counsel for the appellant in support of his appeal raised the following plea:
(i) That the respondent tendered his resignation on his free-will and volition and the telex was an afterthought.
(ii) That the telex, even otherwise, was not / received by the appellant.
Mr. Saghar, learned counsel for the respondent, on the other hand submits that according to the case of the appellant the respondent was on duty on 5-11-1991 during 23 hours to 0800 hours, when he submitted the resignation to the appellant. According to appellant, therefore, 5th of November, 1991 comes to an end by 2400 in the night. It is an admitted position that telex was received by the appellant on 6th of November, 1991 at about 1.49 hours (the same night). Reference was made to para.2 of the written statement and para.7 of the affidavit-in-evidence of appellant's witness Dawood. The resignation, submitted at night in between 5th and 6th of November, 1999 and withdrawn the same day just after an hour or so, cannot be deemed to have been accepted in normal course, because the office of the appellant starts at 9.00 a.m. in the morning. The resignation bears no inward number and no signature of the Shift Incharge to whom the resignation was to be handed over (refer cross-examination of the appellant witness Dawood at page-109 of R&P). The resignation sloes not contain any endorsement of acceptance. The alleged acceptance was sent by registered post. The postal receipt or acknowledgement due was not produced by the appellant to show the exact date and time, when the acceptance was conveyed to the respondent. There appears to be an endorsement on the resignation (with no signature of designation) for comments from Front Office Manager. The resignation also contains an endorsement that the notice period may be waived, but there is no actual order of waiver or acceptance on it.
A perusal of Standing Order 12(1) of the Standing Orders Ordinance, 1968 will show that appointment is terminable either by the employer or by the employee with one month's notice or pay in lieu thereof, on either side. The resignation, taken on its face value, was not in strict compliance of Standing Order 12(1) of Standing Orders Ordinance, 1968, as it did neither mention tendering nor waiving of one months salary. The facts and circumstances also go to show that resignation was not tendered by the respondent on his free-will. For this I am supported by a decision of the Hon'ble Supreme Court reported as Muhammad Munirul Haq v. Muhammad Lateef. (1992 SCMR 2135) wherein it was observed that totality of the circumstances have to be taken into consideration for drawing a conclusion whether the resignation was voluntary or not. In any case, the resignation having been withdrawn within a couple of hours, without receipt of the communication of the acceptance by him stood withdrawn. In this respect I may refer to the provisions of the Contract Act relating to offer and acceptance and the principle that an offer can be revoked before its acceptance is communicated to him. In the instance case the resignation was withdrawn by telex. It does not contain any endorsement that it has been accepted by the employer. It contains only a recommendation of the waiver of the condition of the notice by some officer.
For the above discussion, it is manifest that the resignation tendered by the respondent, was not voluntarily and of his free-will. Even otherwise, the same having been withdrawn by a telex dated 5-11-1991 received in the office of the appellant on 6th November, 1991 at 1.49 hours, which is apparent from the telex itself the appellant has wrongly described it to be a telegram), the resignation seems to have been withdrawn before its acceptance was conveyed to the respondent. The finding of the learned Labour Court, on the point, is upheld. The order of the reinstatement of the respondent, is, therefore, maintained. The respondent to be reinstated within one month from the date of this judgment.
Yesterday, for want of time, I had allowed one day to both the counsel for the parties to address me on the question of back benefits. Mr. Saghar, in this respect, refers to para.II of the grievance petition to the extent that the respondent was working no where and was unemployed and same has been re-iterated by him in para. 13 of his affidavit-in-evidence. No question was put to him by the learned counsel. for the appellant on this aspect of the matter. Mr. Humayun, however, submitted that since the respondent is an unskilled worker he might have been busy with odd jobs and earning something.
The sum total of .the law, on the point of back benefits, laid down by our -Superior Court, seems to be that if the action of the employer in terminating or debarring from continuing with his job, by gate-stop or otherwise, is illegal and mala fide, the back benefits must follow provided it is established to the satisfaction of the Court that the worker has not been engaged in any gainful employment.
But there has been inordinate delay in the disposal of the case in the Labour Court. It -is noticeable that the grievance petition was filed on 15-12-1991 and the case was disposed of on 8-10-1998, in about seven years" time (instead of seven days as provided in section 25-A of the I.R.O 1969 itself). I addressed myself to a question as to who is responsible for the delay, the appellant or .the respondent or the Court too, if it remained vacant for some time. I, therefore, asked the counsel for the parties for the number of adjournments sought by them.
I am conscious of the fact that it has also been held in4some case by a learned Ex-Chairman of this Tribunal that "mere delay" in the disposal of a case by the Labour Court will not by itself be sufficient to deprive the worker from the back benefits but, in my humble view, if there has been an inordinate delay in the disposal of the case to. which the worker has himself being a contributory, he must not be allowed to reap the fruit in the shape of back benefits, for his own acts and misdoing in delaying the matter inordinately. I also asked the Reader of this Tribunal to look into the Diary Sheets so as to find out the position of adjournments sought by the employer and worker. According to his calculation 15 adjournments were sought by the worker and 31 adjournments were sought by the management besides 41 adjournment were obtained jointly by consent of both the parties. Besides the case was adjourned on six dates as the learned Presiding Officer was on leave. In view of the above, I feel inclined to grant 50 % back benefits to the worker/respondent, being contributory to 50% adjournments approximately.
In result, the decision of the learned Labour Court ordering the respondent to be reinstated is upheld. However, the order as to the awarding full back benefits is modified to the extent of 50% only. The appeal is disposed of accordingly.
Miscellaneous No. 102 of 1999.
It is an application filed in this Tribunal in or about March, 1999 for release of the current monthly salary, notice of which was served on the appellant it was ordered by me that this application will be heard alongwith the main appeal. Since the main appeal has been disposed of, I allow the said application and direct the office to pay the current salary deposited in this Tribunal, by the Registrar to the respondent by cross payees' account cheque in favour of the respondent on proper verification.
The learned Advocates are, however, directed to sit together and calculate the amount of back benefits and filed joint statement as to the amount of 50% back benefits as allowed to the respondent. Call up on 17-9-1999 for the said purpose.
H.B.T./333/K(L.(Trib) Order accordingly.
2000 P L C 463
[Sindh Labour Appellate Tribunal]
Before Dr. Tanzil-ur-Rehman, Chairman
IQBAL ZADA and 5 others
versus
Messrs R.F. CORPORATION (PVT.) LTD
Appeals Nos.KAR-106 to KAR-111 of 1999, decided on 23rd November, 1999.
Industrial Relations Ordinance (XXIII of 1969)---
----Ss 25-A & 37(3). -Termination of services---Grievance petition Services of employees were terminated orally despite they had served the employer for several years--Grievance petitions against the termination were dismissed by Labour Court passing sketchy order without referering or discussing important piece of evidence brought on record---Labour Appellate Tribunal set aside said sketchy order and remanded case to other Labour Court to decide the same afresh.
Rafiullah for Appellants. Respondent (absent).
Dates of hearing: 18th and 23rd November, 1999.
2000 P L C 466
[Sindh Labour Appellate Tribunal]
Before Dr. Tanzil-ur-Rehman, Chairman
ISHRAT-UN-NISA and 4 others
versus
Messrs NABI QASIM INDUSTRIES (PVT.) LTD. through Factory Manager
Appeals Nos.KAR-158 to KAR-162 of 1999, decided on 16th November, 1999.
Industrial Relations Ordinance (XXIII of 1969)---
----Ss. 38(3) & 65-B---Appeal---Limitation---Delay---Condonation of--Appeal against decision of Labour Court was filed by employee after about three month' delay---Reasons given for inordinate delay being quite unsatisfactory, application for condonation of delay, was dismissed.
M.A. K. Azmati for Appellants.
Ch. M. Ashraf Khan (on pre-Admission Notice) for Respondents.
Date of hearing: 16th November, 1999.
2000 P L C 534
[Sindh Labour Appellate Tribunal]
Before Dr. Tanzilur Rehman, Chairman
NADEEM SHAHZAD and 80 others
versus
Messrs JOHNSON & PHILIPS (PAK.) LTD.
Appeals Nos.K-170 to K-250 of 1999, decided on 8th February, 2000.
Industrial Relations Ordinance (XXIII of 1969)---
----Ss. 25-A & 37(3)---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.Os. 11A & 13--Retrenchment of employees ---Employees were retrenched by employer on ground that employer establishment wits constantly suffering losses--Grievance petition of employees against their retrenchment having been dismissed by Labour Court, they had filed appeals before Labour Appellate Tribunal--Earlier the Labour Union in the establishment had taken up matter to National Industrial Relations Commission against apprehended action of retrenchment by filing an application---Commission after hearing parties accepted plea of employer holding that establishment was running in losses and due to financial exigency it was essential to retrench employees---Such findings of Commission had attained finality as union had not filed appeal before Full Bench of the Commission---Accounts of establishment placed on record had proved that establishment had been constantly running in losses for the three consecutive years---Another proof of losses and deteriorated financial position of establishment was that establishment was unable to pay shares of workers in Workers' Participation Fund---Union or 'employees, could not prove that accounts produced on record were incorrect or did not exhibit correct position of economic condition of establishment---Union or employees also could not prove any mala fide of employer---Retrenchment of employees was made by employer by strictly following principle of "last come first go"---Contention of employees that retrenchment was made by employer without seeking permission from Labour Court as required under 0.11-A of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 was repelled because retrenchment made by employer was less than 50% of total number of workmen while permission was required if retrenchment exceeded more than 50% of the workers--Retrenchment of employees having not been made by employer by way of punishment, conciliation proceedings pending at time of retrenchment regarding different matter which started long before retrenchment, would have no effect on retrenchment proceedings--Establishment running in losses for last three years, had substantiated stand that retrenchment of employees was necessary and bona fide---Labour Appellate Tribunal upheld judgment of Labour Court whereby grievance petition of employees against their retrenchment were dismissed.
Messrs Johnson and Philips (Pakistan) Ltd. v. Muhammad Akram and others Appeals Nos.KAR-46 to KAR-75 of 1999; Sher Bahadur and others v. Messrs Subcos II (Pvt.) Ltd. 1999 PLC 447; R.C.D. Ball Bearing Ltd. Employees' Union v. R.C.D. Ball Bearing Ltd., Karachi 1992 PLC 1236; Messers Bayar Pharma Ltd. v. Mirza Hussain Akhtar 1981 PLC 24; Messers National Tyre and Rubber Co., Karachi v. Subedar Fazal Rehman and 2 others PLD 1977 Kar. 33; Utility Stores Corporation of Pakistan Limited v. Punjab Labour Appellate Tribunal and others PLD 1987 SC 447; Shamas Textile Mills and others v. Muhammad Sharif Zahid and others 1994 PLC 594; Messrs Epla Laboratories (Pvt.) Ltd. v. Muhammad Afsar and 4 others (unreported) Appeals Nos.K-383, 384, 386, 387 and 388 of 1998; Textile Corporation. of Pakistan v. Bar Ali and others 1982 PLC 391; Mahtoon Maula Bux and 34 other v. Messrs G.M. Fisheries Ltd. 1982 PLC 978; Ejaz Hussain alias Ejaz Ahmed and another v. Messrs Hotel Jabees Ltd. and another 1990 PL(: 643; Pakistan Tobacco Company Ltd. v. Full Bench of the National Industrial Relations Commission, Islamabad and 3 others 1985 PLC 884; Zeal Pak Cement Factory Ltd., Hyderabad v. The Chairman, West Pakistan Industrial Court, Lahore and others PLD 1965 SC 420; Zahiruddin and another v. Messrs Adam Silk Mills Ltd. 1982 PLC 927; M/s. Corning Glass Pakistan Ltd., Karachi v. Muhammad Hanif and another 1981. PLC 361; Syed Momin v. Rashid Textile Mills Ltd. and 3 others 1987 PLC 852; Muhammad Qasim v. Messrs Atlas Honda Limited Appeal No.KAR.336 of 1997 and Okara Textile Ltd. v. Muhammad Yasin 1986 PLC 1093 ref.
Saleem Raza, Representative and Gohar Iqbal for Appellant.
Ch. Muhammad Ashraf Khan for Respondent.
2000 P L C 572
[Sindh Labour Appellate Tribunal]
Before Dr. Tanzilur Rehman, Chairman
Messrs AFGHAN NATIONAL BANK PAKISTAN (PVT.) LTD. through Managing Director
versus
Mst. ROSHAN BUKHARI and another
Appeals Nos. 84-KAR and 85-KAR of 1998, decided on 9th April, 1999.
(a) Industrial Relations Ordinance (XXIII of 1969)---
----S. 25-A(2)(3)(4)---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.12---Retirement on attaining age of superannuation ---Grievance petition---Limitation---Grievance petition against retirement from service which was to be filed within prescribed period of two and half months from date of service of grievance notice on employer, was filed by employees seven clays after expiry of said period--Employees had contended that grievance petitions filed within two months from receipt of communication in reply to their grievance notice from employer was within time---Validity---Even if reply to grievance notice of employee had not been communicated by employer within period as prescribed in said subsections (2)(3) of S.25-A of Industrial Relations Ordinance, 1969, but was communicated after expiry of said period, grievance petition filed by employees after expiry of prescribed period of two and half months from date of service of grievance notice on employer, was barred by time and was liable to be dismissed on that ground.
Tariq Mahmood v. Messers Rice Export Corporation of Pakistan Ltd., Karachi 1981 PLC 881; Fayyaz Ali v. Sindh Labour Court No. V and another 1981 PLC 888 and Ali Afsar Khan v. Messers Hochest (Pakistan) Ltd. 1982 PLC 422 ref.
(b) Industrial Relations Ordinance (XXIII of 1969)---
----S. 25-A---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.12---Retirement on attaining age of superannuation ---Employees were retired from service honourably on attaining age of superannuation ---Employees neither had alleged that they had not crossed superannuation age nor could prove that they had been victimised for their trade union activities---Employees were retired on grounds firstly, that there had been a constant practice of employer Bank since its inception to retire its employees on attaining age of sixty years and secondly that settlement was arrived at between employer-Bank and Collective Bargaining Agent thereof in that respect---Retirement of employees, after having attained age of sixty years, was not questionable, in circumstances.
Sikandar Hayat v. Sindh Labour Appellate Tribunal, Karachi and 2 others 1991 PLC 508; Messers A.E.G. Telefunken Pakistan (Pvt.) Limited v. Sindh Labour Appellate Tribunal and 2 others 1989 PLC 525 and Service Mess (formerly Services Club), Karachi and others v. Budha Khan and others 1993 PLC 371 ref.
Ch. M. Latif Saghar for Appellant.
Mushtaq A. Shaikh for Respondents.
Date of hearing: 9th April, 1999.
2000 P L C 585
[Sindh Labour Appellate Tribunal]
Before Dr. Tanzilur Rehman, Chairman
Messrs PAKISTAN HERALD PUBLICATION (PVT.) LTD.
versus
Qazi NAJEEB AHMED and another
Appeal No. KAR-327 of 1998, decided on 6th August, 1999.
(a) Industrial Relations Ordinance (XXIII of 1969)---
----S. 2(xxviii)---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(i)---Workman--Determination---Question whether employee was a "workman" or not was a question of fact or at the most a mixed question of fact and law as same involved interpretation of two enactments (Industrial Relations Ordinance, 1969 and West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 wherein definition of "worker" and "workman" had been given.
(b) Industrial Relations Ordinance (XXIII of 1969)---
----Ss. 2(xxviii) & 25-A---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(i)---Workman--Proof---No job description was given to employee at the time of his employment or at any other time during course of his employment---Employer had also failed to file any job description with the reply statement or with affidavit-in-evidence---Main and substantial work of the employee was connected directly with performing skilled manual labour in the field relating to computer and his 'recommending appointment of new entrants or recommending leave applications was merely incidental to his main job---Employee was rightly found workman by Labour Court.
(c) Industrial Relations Ordinance (XXIII of 1969)---
----S.2(xxviii)---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(i)---Workman-- Determination---Criterion---Neither the designation nor the salary was a factor for determination of an employee to be a workman or not---Only criterion was the work itself that employee had to do---Actual nature of work should be a deciding factor to determine the status of an employee regardless of the designation given by the employer to him---Designation, some time, decorative, would not enhance the status of an employee.
Allied Bank of Pakistan Ltd. v. Muhammad Humayun Khan and others 1988 SCMR 1664; Security Papers Limited v. Sindh Labour Appellate Tribunal and others PLD 1988 Supreme Court 180; Mustehkum Cement Limited v. 'Abdul Rashid and others 1998 PLC 172 and S.M. Iylas v. Reckitt and Colman of Pakistan Appeal No.KAR-378 of 1998 ref.
(d) Newspaper Employees (Conditions of Service) Act (LVIII of 1973)---
----S.4---Industrial Relations Ordinance (XXIII of 1969), S.25-A--Termination of employment--- "Good cause", definition and scope--Employer had contended that services of employee had been terminated showing "good cause" as provided under S.4, Newspaper Employees (Conditions of Service) Act, 1973---"Good cause" would mean a substantial reason, one that would afford a legal excuse or legally sufficient ground or reason---"Good cause" would depend upon circumstances of each case--Meaning of "good cause" must be determined not only by verbal context of statute in which said term was employed, but also the context of action and procedures employed---Showing of "good cause" was a subjective determination of the employer or the cause being "good" or "bad" was to be interpreted objectively---When Legislature provided "good cause to be shown" it was open to be interpreted by the Court whether a sufficient good cause had been shown or not---In matter, without giving a notice of show cause as to why employment of employee; should not be terminated as his work was below the standard or not up to the mark, could only be said to be a subjective determination without giving employee an opportunity for furnishing of explanation whatsoever.
Independent Newspapers Corporation v. Chairman, Sindh Labour Appellate Tribunal 1995 PLC (C.S.) 262 Syed Mumtaz Ahmed v. Federation of Pakistan 1994 PLC (C.S.) 810; Messrs Daily Mashriq v. Nafees Ahmed Bazmi and others 1992 PLC 314; Syed Khalil v. Independent Newspaper Corporation (Pvt.) Ltd and other 1991 PLC: 647 and Karam Hussain v. Daily Mashriq through Chief Executive and 2 others 1992 PLC 136 ref.
(e) Words and phrases--
----- Good cause "---Meaning.
Black's Law Dictionary ref.
(f) Newspaper Employees (Conditions of Service) Act (LVIII of 1973)---
----S.4---Termination of services---Option had been given by second proviso to S.4 of Newspaper Employees (Conditions of Service) Act, 1973 that instead of giving notice for requisite period, wages for said period could be paid---In such a case also where action was taken under said second proviso for termination of service of newspaper employee, good cause had to be shown by employer establishment---Said second proviso did not dispense with requirement of good cause being shown for termination of services of a newspaper employee whether notice of the period was given as provided in main provisions of S.4 of Newspaper Employees (Conditions of Service) Act, 1973 or instead wages were paid in lieu of requisite notice period--Good cause; in either case had to be shown.
Syed Khalid v. Independent Newspapers Corporation (Pvt.) Ltd. and others 1991 PLC 647 ref.
(g) Industrial Relations Ordinance (XXIII of 1969)---
----S.51---Back benefits---Entitlement---Employer by producing documentary evidence on record had proved that employee during period of his termination had been gainfully employed in an establishment---Employee who had failed to contradict said allegations of employer, was not entitled to back benefits.
Muhammad Humayun for Appellant.
Khalil-ur-Rehman, Representative for Respondents.
Dates of hearing: 9th, 10th and 26th August, 1999.
2000 P L C 597
[Sindh Labour Appellate Tribunal]
Before Dr. Tanzilur Rehman, Chairman
HOTEL MIDWAY HOUSE (PVT.) LTD.
versus
MUHAMMAD ILYAS and 2 others
Revision Applications Nos. 123 to 125 of 1999, decided on 29th November, 1999.
Industrial Relations Ordinance (XXIII of 1969)---
----Ss. 25-A & 38(3-a)---Grievance petition---Re-instatement in service with back benefits---Implementation of order---Labour Court accepting grievance petitions of employees against their dismissal from service, ordered their reinstatement in service with back benefits---Order of Labour Court attained finality as the same was upheld in appeal by Labour Appellate Tribunal--Employer having failed to pay full back benefits to employees as per order of Labour Court, employee filed application for implementation of order of Labour Court which had attained finality---Application of employees was resisted by employers contending that application was not maintainable as in view of provisions of S.2-A of Service; Tribunals Act, 1973 same had abated---Contention of employer having been rejected, they filed revision against the rejection order---Validity---Rights of employees had already been finally decided by competent Labour Forum earlier to the incorporation of S.2A in Service Tribunal Act, 1973---Employees were not seeking any rights which required determination but were simply seeking implementation by way of execution of orders earlier passed by Labour Court affirmed in appeal by Labour Appellate Tribunal ---Question of applicability of S.2-A of Service Tribunals Act, 1973 would not arise, in circumstances.
Syed Ashfaq Hussain Rizvi for Applicant.
Respondents Nos. l and 2 (present). Respondent No.3 (absent).
2000 P L C 601
[Sindh Labour Appellate Tribunal]
Before Dr. Tanzilur Rehman, Chairman
Messrs JOHNSON & PHILLIPS (PAKISTAN) LTD, versus
MUHAMMAD AKRAM and 32 others
Appeals Nos.KAR-46 to KAR-78 of 1999, decided on 5th October, 1999.
Industrial Relations Ordinance (XXIII of 1969)----
----Ss. 25-A, 26(3) & 28---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.15(3)(4)--Issuance of charge-sheet in respect of stay-in-strike---Grievance petitions filed by employees were accepted by Labour Court holding that no charge-sheet, in respect of stay-in-strike was issued by employers to employees--Two letters produced on record by employer, in sum and substance contained charges in sufficient detail levelled against employees---Not necessary that letter sufficiently communicating charge to the employee should be titled as "charge-sheet" or such letter must be signed by employer himself or same should be in any particular language or form---Employees were thus supplied with the charge-sheet in circumstances.
1995 PLC 268; 1999 PLC 154 and District Manager, Karachi Omni Bus Service v. Muhammad Zaman and another 1975 PLC 45 ref:
Ch. Muhammad Ashraf Khan for Appellant.
Salim Raza, Representative for Respondents.
Date of hearing: 14th May, 1999.
2000 P L C 613
[Sindh Labour Appellate Tribunal]
Before Dr. Tanzilur Rehman, Chairman
ABDUL SAMI KHAN
versus
OVERSEAS PAKISTANIS FOUNDATION and others
Appeal NO.KAR-369 of 1998, decided on 13th August, 1999.
Industrial Relations Ordinance (XXIII of 1969)----
----Ss.l(b), 25-A & 37---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968) S.1(4)(a)--Grievance petition---Maintainability---Employer organization which was a welfare organization was established by and under a Federal Statute governed by a Board of Governors---Organization neither being commercial nor industrial, West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, had no application---Labour Court thus had no jurisdiction to entertain grievance petition filed by employee---Grievance petition filed by employee had rightly been dismissed by Labour Court being not maintainable.
1998 PLC (C.S.) 1121; 1975 PLC 361; 1975 PLC 1; 1988 SCMR 765; 1998 SCMR 2109; 1998 PLC (C.S.) 627; 1998 PLC.(C.S.) 1078; 1998 PLC (C.S.) 1359; Civil Appeal No. 1513 of 1998; Civil Appeals Nos.22, 33, 34 and 58 of 1997; 1999 SCMR 819 and Civil Petition No.3202 of 1993 ref.
Ashraf H. Rizvi for Appellant.
Latif Saghar (on Pre-Admission Notice) for Respondent.
2000 P L C 616
[Sindh Labour Appellate Tribunal]
Before Dr. Tanzilur Rehman, Chairman
FAUJI SUGAR MILLS
versus
THE REGISTRAR OF TRADE UNIONS and 4 others
Appeal No. HYD-112 of 1998, decided on 26th August, 1999.
(a) Industrial Relations Ordinance (XXIII of 1969)--
----S. 22(4)---Referendum for determination of Collective Bargaining Agent---Submission of list of workers---Employer had contended that it was obligatory for the employer to submit list of workers to the Registrar, Trade Unions, for the purpose of holding referendum between two contesting unions---Such contention of employer was repelled because under S.22(4) of Industrial Relations Ordinance, 1969 preparation of list of voters, by employer. was not mandatory, but if Registrar of Trade Unions would consider it necessary only then a duty was cast on employer to submit the list---Submission of list of voters by employer, therefore, was not a right guaranteed to employer.
Khan Iftikhar Hussain Khan of Mamdot v. Messrs Ghulam Nabi Corporation Ltd., Lahore PLD 1971 SC 550 ref.
(b) Industrial Relations Ordinance (XXIII of 1969)---
----Ss.7(1)(d) & 22---Referendum for determination of Collective Bargaining Agent---Application---Person authorised to file application---Dismissed employee working as office holder of Trade Union---Validity---Contention of employer was that applicant who was General Secretary of Trade Union having been dismissed from service was neither entitled to hold office of Trade Union nor had locus standi to file application for holding referendum before Registrar, Trade Unions---Contention was repelled because there was no bar to elect a dismissed employee as office-bearer of Trade Union in view of fact that 25 % of office-bearers could be elected as office-bearers of trade union from outsiders --Contention that art office-bearer from outside must necessarily be a workman, had no basis.
Khalid Javed for appellant.
Nemo for Respondents Nos. 1, 2 and 3, Ail Amjad for Respondents Nos.4 and 5.
Dates of hearing: 24th and 26th August, 1999.
2000 P L C 621
[Sindh Labour Appellate Tribunal]
Before Dr. Tanzilur Rehman, Chairman
Ch. MUHAMMAD SHARIFF, PRESIDENT and 8 others
versus
MUBARAK ALI SHAH and 3 others
Revision Application No.KAR-343 of 1998, decided on 23rd August, 1999.
Industrial Relations Ordinance (XXHI of 1969)---
-----Ss.8(7) & 38(3A)---Revisional jurisdiction of Appellate Tribunal, exercise of---Labour Court, while deciding appeal filed by member of trade Union who had locus standi to file said appeal, had applied its mind fully well to the relevant facts and on basis of record, had concluded that change of office-bearers submitted by petitioner before Registrar of Trade Unions was illegal and unwarranted under the constitution of trade union concerned---Labour Court also ordered to hold fresh election of trade unions within specified period under supervision of Registrar of Trade Unions--Findings of Labour Court based on evidence -on record and arrived at after applying judicious mind, could not be interfered with by Labour Appellate Tribunal in exercise of its revisional jurisdiction.
Ch. Muhammad Ashraf Khan for Applicant.
M.A.K. Azmati for Respondent No. 1.
Nemo for Respondents Nos.2 to 4.
Date of hearing: 23rd August, 1999.
2000 P L C 625
[Sindh Labour Appellate Tribunal]
Before Dr. Tanzilur Rehman, Chairman
MAZDOOR UNION
versus
REGISTRAR, TRADE-UNION and 2 others
Appeal No.HYD-96 of 1999, decided on 9th August, 1999.
Industrial Relations Ordinance (XXIII of 1969)---
----Ss.22, 34 & 37---Referendum for determination of Collective Bargaining Agent---Referendum proceedings were objected to on ground that requirements of S.22 of Industrial Relations Ordinance, 1969 for fulfilment of 1/3rd majority by contesting union had not been proved---Enquiry was held by Authority concerned in a proper way on direction of Labour Court, statements were recorded properly of all workers produced by Trade Union which had filed application for holding referendum, names and other particulars of said workers were mentioned in their respective statements--Every worker's statement was recorded separately and got it signed by him---Statements of seventy-six workers out of one hundred and three, who were members of said union were recorded by Authority and said seventy-six workers constituted statutorily required number of 1/3rd of a contesting union---Application filed by rival union under S.34 of Industrial Relations Ordinance, 1969 disputing referendum proceedings, had rightly been dismissed by Labour Court---Order of Labour Court could not be interfered with by Labour Appellate Tribunal in appeal filed under S.37 of said Ordinance.
Syed Fasahat. H. Rizvi for Appellant.
Muhammad Buksh Joyo, A.D.L for Respondent No. 1.
Rana Mehmood A. Khan for Respondent No.2.
Date of hearing: 9th August, 1999.
2000 P L C 627
[Sindh Labour Appellate Tribunal]
Before Dr. Tanzilur Rehman, Chairman
PRECISION RUBBER PRODUCT WORKERS UNION
versus
REGISTRAR OF TRADE UNIONS and another
Revision Application No. 105 of 1998, decided on 19th August, 1999.
Industrial Relations Ordinance (XXIII of 1969)-
-----Ss.10, 11 (b) & 38(3-a)---Cancellation of registration of Trade Union by Registrar, Trade Unions ---Appeal---Revisional jurisdiction, exercise of--Labour Court maintained in appeal order of Registrar, Trade Unions cancelling registration of petitioner Trade Union on basis of documents produced on record, after issuing notices to parties and holding enquiry in the matter---Order of Labour Court maintaining order cancelling registration of petitioner Trade Union not suffering from any illegality or irregularity and passed in accordance with law, could not be interfered with in revisional jurisdiction of Labour Appellate Tribunal.
Muhammad Ali, President for Applicant.
Jehangir Azar, J. D. L. East Division for Respondent No. 1.
Mehboob Rizvi for Respondent No.2.
Dates of hearing: 11th and 19th August, 1999.
ORDER
This is a revision application under section 38(3-a) of the Industrial Relations Ordinance, 1.969, against the order, dated 30-10-1997, passed in Appeal No. 2 of 1996 under section 11 (b) of the I.R.O., 1969, whereby the learned Presiding Officer, Labour Court No.5 at Karachi maintained the order, (fated 25-11-1996, passed by respondent No.l (Registrar of Trade Unions) cancelling the registration of the applicant trade union namely the Precision Rubber Products Workers' Union.
(1) The applicants were condemned unheard, as no notice of hearing was received by the applicant from the respondent No. 1.
(2) That the union, notwithstanding the resignation of nearly all the workers and dismissal of 5/6 workers, still exists.
(3) The alleged closure of the factory is illegal without obtaining are order under Standing Order 11-A of Standing Orders Ordinance, 1968.
(4) The management should not have been made party to the proceedings in appeal by the learned Labour Court.
Dealing with the first plea, whether any notice for cancellation o1 the union was given or not, the onus to prove, entirely lay on the respondent (Registrar, Trade Unions).
Mr. Azar, Joint Director Labour, East Division, representing Registrar, Trade Unions (respondent No.l) submits that on 7-5-1996, the office of the respondent No. l received an application of even date from one Mr. Shabbir Ahmed, Member Managing Committee of Precision Rubber Products Workers' Union (hereinafter referred to as the Workers' Union; whereby it was intimated firstly that the Workers Union has more than 25 %, who are outsiders and secondly the said union failed and neglected to submit the annual return for the last five years as required under section 10 of the I.R.O., 1969. On 8-5-1996, the respondent No.1 sent a letter under registered cover to the President of the Workers' Union Mr. Muhammad Ali for furnishing comments on the contents of the said application. As this letter issued by the Registrar, remained un-replied, on 6-6-1996, a reminder of the same was sent under registered cover requesting again to furnish .his comments alongwith the relevant record, stating clearly that if he failed to submit the same, it would be assumed that the contents of the sail: application were true. On 16-6-1996, a reply was received from, the Preside of the Workers' Union, by Which, instead of controverting the allegation::, unfounded allegations were made against the Registrar that it had underhand dealing with the management.
In the mean-time, the respondent No.l, received an order, data 18-8-1996 from the learned Member of N.I.R.C. (National Industrial Relations Commission), passed in Case No.4-A (46)/96K whereby it was ordered that an enquiry under section 10 of the I.R.O. be trade against the Workers' Union with a direction that the matter be disposed of within one month after holding due enquiry, with notice to both parties i.e. the management as well as the union. Photocopy of the proceedings initiated by the Workers' Union through its President Mr. Muhammad Ali before the N.I.R.C., have been placed by the respondent No. l on the file of Revision Application No.K105 of 1999 (at pages 157(159). The said order, dated 18-8-1996 passed by the learned Member, N.I.R.C., is reproduced as under:--
Date 18-8-1995.
Mr. Muhammad Ali, President is present for petitioner. Mr.. Muhammad Ghani, Advocate is present for respondents. Arguments heard.
The detailed order shall be passed later on. The provisional certificate of CBA ship pertains to the year 1972 and thereafter no fresh certificate has been obtained from the Registrar of Trade Unions. Under circumstances I am of the view that this is a doubtful certificate therefore, the matter is referred to the Registrar, Trade Unions for enquiry under section 10 of the I.R.O., 1969. In the meanwhile Mr. Muhammad Ali, the President of the Union shall not enter in the factory as already ordered. The matter to be disposed of within one month by the Registrar, Trade Unions after holding due enquiry with notice to both the parties. The petition at this stage is premature and the same is dismissed."
Mr. Azar further submits that the proceedings, which were initiated by the Registrar, after receipt of the application from Mr. Shabbir, Member Managing Committee of the Workers' Union, received a new dimension and impetus as it had the force of an order passed by the learned Member of the N.I.R.C. It was, therefore, obligatory on the part of the Registrar to take up the matter against the Union under the aforementioned order, which, embodied clear direction to the Registrar to proceed under section 10 of I.R.O., 1969. The mode of enquiry was also clearly mentioned by directing the Registrar to involve both the parties in the enquiry. The order also suggested a time frame of one month to complete enquiry. Thus the Registrar held an enquiry after notice to the workers' 'Union and the management calling upon them to produce the record. The said notices were, dated 22-8-1996, captioned as enquiry under section lb of the I.R.O., were duly received by the parties. A number of documents in this regard have been placed on record by the Registrar alongwith their additional comments (at pages. 113--119). It appears that after holding the enquiry, registration of the Workers Union was cancelled by the Registrar,, by his order, dated 25-11-1996.
It is manifest from the documentary evidence, placed before the learned Labour Court as well as this Tribunal, that the plea of Mr. Ashraf Rizvi, learned counsel for the applicant, that he was given no notice and condemned unheard, is unfounded.
As regards the second plea that the union, notwithstanding the resignation of nearly all the workers and dismissal of 5/6 workers, still exists, does not appeal to reason. Mr. Mahboob Rizvi, representative of the company submitted that there were in all ten office-bearers of the Workers' Union. A list has been filed alongwith the additional legal objection on behalf of the respondent No.2 for the maintainability of the revision application, which is reproduced as under:--
_______________________________________________________________________
Sr. No Name of Office Bearer Post in Date of Resignation Date of
Union Termination/ Collection
Dismissal of-Legal
Dues
________________________________________________________________________
2 Mr. Shakeel; V. President. Retrenched 27-7-1995
(20-7-1995)
(20-7-1995)
Secretary (21-10-1996)
5 Mr. Abdul Haq, Treasurer Resigned 22-10-1996
(21-10-1996)
6 Mr. Shabbir Khan, M.M.C Resigned 16-5-1995
(15-5-1995)
7 Mr. Shahid Khan Retrenched 23-7-1995
(20-7-1995)
8 Mr. M. Yousuf. Resigned 22-10-1995
(23-10-1996)
(27-10-1996)
10 Mr. Shahzad Iqbal Dismissed
(26-11-1996)
This list shows that except the President, who is an outsider, almost all the office-bearers have either been retrenched, resigned or dismissed and do not continue in the employment of the company.
Admittedly, nearly all the workers of the factory had put in their resignations and 5/6 workers were dismissed and, as such, there was no worker, without which a Union cannot be deemed to exist because the union represents the workers.
As regards the third plea that the, alleged closure of the factory is illegal as no order under Standing Order 11-A was obtained, Mr. Mahboob Rizvi, representative of the factory submits that the factory management had made an application under Standing Order 11-A of Standing Orders Ordinance, 1968 to the Labour Court seeking permission to close down the factory for the reasons stated in the said application. The said application, in view of the fact that nearly all the employees/workers had resigned and collected their, dues and 5/6 workers had been dismissed, according to Mr. Mahboob Rizvi, had become infructuous and as such, it was withdrawn with permission of the Court. Admittedly, the factory was being run on Plot No.48 Sector 2B, Korangi Industrial Area, on a rented premises which was vacated by the-factory management. The learned counsel for the applicant, however, submits that the factory is still in existence and is carrying on its business on another Plot No.24, Sector 2B, Korangi Industrial Area, Karachi. But Mr. Mahboob Rizvi; submits that the Company has closed its manufacturing and is engaged in trading only.
The last plea that the management should not have been made party to the proceedings in the Labour Court, the representative of the company submits that since the management of the company was involved in the subject-matterof enquiry, which were challenged before the Labour Court, an application was filed by the Company, to be made a party. That application was granted on 10-7-1997 by the learned Presiding Officer of Labour Court No.5. This plea, at this stage, is not available to the applicant. If they were aggrieved of the said order, they could have filed a revision application. I also think that the plea is belated and will bear no fruit.
In view of the above discussion, the revision fails, which is dismissed accordingly.
Announced in open Court, this the 19th day of August, 1999
H.B.T./324/K (Lab. Trib.) Revision dismissed
2000 P L C 632
[Sindh Labour Appellate Tribunal]
Before Dr. Tanzilur Rehman, Chairman
Syed IBRAHIM SHAH
versus
Messrs BOSCH PHAPMACEUTICAL (PVT) LIMITED
Appeal No.KAR-325 of 1998, decided on 21st September, 1999.
Industrial. Relations Ordinance (XXIII of 1969)----
----S.25-A---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O 15(3)(b)(c)---Misconduct--Dismissal from service---Employee was dismissed from service on ground of misconduct after issuing hire charge-sheet and holding domestic enquiry---. Allegations against employee were detailed in charge-sheet of which employee was fully aware, but employee did not reply to the charge-sheet which was received by him---Employee deliberately avoided to participate in enquiry proceedings despite an officer was sent to employee asking him to come and attend enquiry proceedings and a letter was served on employee informing about date of holding enquiry proceedings---Employee though did not attend enquiry proceedings, but his co-worker attended said proceedings and Enquiry Officer after examining witnesses, found employee guilty and employer on basis 'of enquiry report submitted by Enquiry Officer, dismissed employer from service---Employee could not point out any defect in domestic enquiry which could be termed as perverse and contrary to principles of natural justice----Charges of misconduct having fully been proved against employee, he was rightly dismissed from service.
Shamsher Ali Khan v. Sindh Labour Appellate Tribunal and 2 others 1987 PLC 23 ref.
S. P. Lodhi for Appellant.
M.L. Shahani for Respondent.
Dates of hearing: 15th and 16th September 1999.
JUDGMENT
This is an appeal under section 37 of the Industrial Relations Ordinance, 1969, against the order, dated 10-9-1998, dismissing the Grievance Application No. 115 of 1997 (Old No. 183 of 1997) under section 25-A of the I.R.O., 1969, passed by the learned Presiding Officer, Sindh Labour Court No.2 at Karachi.
(1) Whether the application under section 25-A is not maintainable?
(2) Whether the provisions of Standing Orders Ordinance do not apply to the respondent's establishment, due to employment of less than fifty workers?
(3) Whether the enquiry was not fairly and properly conducted?
(4) Whether the impugned order of dismissal from service required to be set aside and the applicant reinstated into service with back benefits?
Mr. Lodhi, Representative of the appellant submits that the appellant was working in the Stores of respondent for several years. He was delivered a charge-sheet on 16-10-1996. As a result of enquiry into the said charge sheet, the appellant was dismissed by the respondent on 5-11-1996. The pleas, in support of the appeal, raised by Mr. Lodhi, are three fold; (i) The learned Presiding Officer fell in gross error in giving finding that the establishment had less than 50 (fifty) workers at the relevant time, as such, the provisions of Standing Order-12(3) are not applicable; (ii) learned Presiding Officer also committed an error in holding that the application under section 25-A is not maintainable and (iii) the enquiry held under the charge-sheet against the appellant, was conducted improperly and the order of dismissal was wrong in law.
In support of the first two pleas, lie prepared a chart for the months of October and .November, 1996, as per Annexures 'A', 'C' and 'D' and submitted the same before me in order to clarify the position on the number of workers. A copy of the same was supplied, on my direction by him, to Mr. Shahani, learned counsel for the respondent. In the light of the said chart Mr. Lodhi submitted that during the month of October, 1996 total number of workmen (only) as employed by the respondent, was 63 (sixty-three) and in November, 1996, it consisted of 59 (fifty-nine). The learned counsel for the respondent did not dispute this position. He, in fact, candidly conceded to the first plea that the learned Presiding Officer fell into an error in holding that the number of workmen in the respondent-establishment, at the relevant time, was less tan fifty (50). Resultantly, the application is held to be maintainable and the provisions of Standing Order-15(3) of Standing Orders Ordinance, 1968 too, are applicable to the case. The findings of the learned Presiding Officer, on Issues Nos. l and 2 stand, therefore, reversed.
Now dealing with the third point, Mr. Lodhi submitted that the appellant had, in fact, boycotted the enquiry proceedings, when he was stopped from taking notes of the statement of witnesses and not supplied copies of the statement of the prosecution witnesses. The allegations of Mr. Lodhi, as alleged, have been explained by the enquiry officer in his deposition before the learned Labour Court.
Mr. Lodhi, Representative of the appellant has failed to point out a single defect in the domestic enquiry, which may be termed as perverse and contrary to the principles of natural justice. It appears that the 'appellant deliberately avoided to participate in the enquiry proceedings. He even did not care to file any reply to the charge-sheet.
Mr. Lodhi lastly submitted that a copy of the audit report (the complaint on the basis of which charge-sheet was framed and issued to the appellant) was not supplied to him. Mr. Shahanit, in reply to the said submission, placed his reliance on the case reported as Shamsher Ali Khan v. Sindh Labour Appellate Tribunal and 2 others (1987 PLC 23), a judgment of the Sindh High Court wherein it was held, that, "coming to the next ground taken by the petitioner that copy of the complaint forming the basis of charge-sheet was not supplied to him, although has not been disputed by the respondent No.2, but the contention appears to be misconceived as the charge-sheet contained sufficient details in respect of the allegations made against the petitioner---------Therefore, in our opinion, no prejudice had been caused to the petitioner. We therefore, reject this contention as well". In the instant case, the allegations have been detailed in the charge-sheet of which the appellant was fully aware.
To conclude, Mr. Lodhi failed to point out that the enquiry proceedings against the appellant or the dismissal was unfair. The role of the Labour Courts in judicial review of administrative action taken in or under the enquiry, resulting in termination of service of an employee is to see that the procedure, adopted by the enquiry officer/employer is fair, in consonance with the principles of natural justice and that the enquiry officer or the employer has not caused any prejudice to the worker. It is noticeable that the enquiry officer examined each and every person, connected with the audit report/charge-sheet, which formed basis of the charge-sheet.
The appellant did not take the trouble of even replying to the charge-sheet, which was duly received by him. In the circumstance, the respondent had no option but to appoint an enquiry officer and accordingly, a letter dated 21-10-1996 for holding an enquiry, was issued to him (page. 37 of the R&P). As a result thereof, the enquiry was held on 28-10-1996, which was duly attended by the appellant with the co-worker namely Muhammad Shafi. The first P.W. Yaqoob Niazi was got examined on the day in presence of the-appellant and his helper (co-worker). The cross-examination of P.W.1 was, however, adjourned to 30-10-1996 on the request of the appellant. On 30-10-1996, the appellant chose to remain absent from the enquiry although he had come to the factory to join the duty, which C shows that his remaining absent from the proceedings in the enquiry was deliberate and wilful. The enquiry officer, acting fairly, sent an officer of the company namely Mustafa, asking the appellant to come and attend the enquiry proceedings. In spite of that, the appellant did not care to attend the enquiry proceedings. The enquiry officer had, thus, no option but to examine P.Ws.2 and 3 namely Tariq Sultan and Miss Manawar Fatima on 30-10-1996. The enquiry officer again acting fairly also addressed a letter dated 30-10-1996 informing the appellant that the enquiry proceedings will then be taken up on 3-11-1996. On 3-11-1996, the appellant came and attended the enquiry proceedings. He, however, requested in writing for the supply of a copy of the proceedings of the enquiry. The enquiry officer kept the said letter of the applicant on record and informed him that there is no provision in law for supply of the copies of the enquiry proceedings. He also recorded the reasons for non-supply of the same (pages 35--37 of the R&P). He offered the appellant that he would read out each and every page of the deposition of the witness, before his cross-examination. The enquiry officer also promised him that he will be afforded every opportunity to facilitate the cross-examination of the witnesses already examined by him on the previous dates. The appellant, however, left the enquiry room without cross-examining any of the three prosecution witnesses.
The enquiry officer, in the said circumstance, had no option but to close the enquiry proceedings and started writing his report, which was submitted by him to the management on the next day i.e. 4th of November, 1996. Consequent upon the enquiry findings, the respondent issued a dismissal order on 5-11-1996 (erroneously typed as 5-10-1996) as pointed out by Mr. Shahani.
The appellant then gave a grievance notice dated 6-11-1996 which was duly replied by the respondent by their letter dated 14-11-1996. Thereafter the appellant filed his grievance petition on 25-11-1996 claiming reinstatement with full back benefits
Mr. Shahani, supporting the charge-sheet, the enquiry proceedings and finding of the enquiry officer and in consequence thereof the order of dismissal dated 5-11-1996, submitted that the allegations made in the charge-sheet are specific, to the point and when taken as a whole, constitute misconduct as provided under Standing Order 15(3)(b) and (c). He specifically referred to Exh. A/1 dated 8-10-1996 and Exh. A/2/1 dated 10-10-1996, forming the part of enquiry report as also duly exhibited in the learned Labour Court. These two documents, as submitted by Mr. Shahani, go to show that the finished goods stock was physically checked by the Accounts Officer in presence of the appellant, which bears his signature with date there under. To explain the above-said two documents, Mr. Shahani referred a portion from page 2 of the cross-examination of the appellant (page 169 of R&P), which is reproduced as under:--
"It is correct to say that in that audit report which found that entry of excess goods and less goods of stores---I see Annex. A/1 and A/2/1 they bear my signatures alongwith the audit officer. It is correct to say that both the Annexes: A/1 and A/2/1 do not bear the signatures of any one worker of the store.
The said Audit Report is signed by the auditors as well as 2/3 other officers. Physical checking appears to have been made in presence of the appellant. Learned counsel for the respondent further submitted that an employer is required to establish the misconduct in the domestic enquiry. In the domestic enquiry, these documents were exhibited and were also in the Labour Court, which were put to the appellant during the course of enquiry. 'The findings on Issues Nos.3 and 4 are, therefore, maintained.
In result, the appeal is dismissed.
Announced in open Court, this the 21st of September, 1999.
H.B.T./342/K (Lab. trib) Appeal dismissed.
2000 P L C 636
[Sindh Labour Appellate Tribunal]
Before Dr. Tanzilur Rehman; Chairman
SHAHDAD BALOCH and 3 others
versus
PAKISTAN HERALD COMPANY
Revision Applications Nos.KAR-48, 49, 50 and 51 of 1999, decided on 29th September, 1999.
Industrial Relations Ordinance (XXIH of 1969)---
-----Ss.25-A & 38(3-a)---Application to substitute affidavit-in-evidence by filing new one---Revisional jurisdiction, exercise of ---Employees applicants filed first affidavit-in-evidence and case was adjourned for cross examination---Employees on the adjourned date applied to file another affidavit-in-evidence before commencement of cross-examination of employees but said application was turned down by Labour Court for want of sufficient reason ---No provision existed either in Industrial Relations Ordinance, 969 or in West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 which provided acceptance of affidavit in-evidence in matters of grievance application---Parties, however, could not cite any rule, regulation, notification or even a circular, issued by any Competent Authority under any law for accepting affidavit-in-evidence as substitute of examination-in-chief---Parties having agreed to put in their witnesses in the witness-box for examination-in-chief, cross-examination and re-examination, Labour Appellate Tribunal ordered accordingly with observation that practice of accepting affidavit-in-evidence should be discontinued.
PLD 1975 SC 678 and 1982 SCMR 430 ref.
M.L. Shahani for Applicants.
Muhammad Humayun (on Pre-Admission Notice) for Respondent.
ORDER
By this common order, it is intended to dispose of four revision applications, filed under subsection (3a) of section 38 of the Industrial Relations Ordinance, 19699, for exercising revisional powers of this Court in respect of a common order, dated 13-7-1999, passed by the learned Presiding Officer, Sindh Labour Count No.5, at Karachi, in Applications Nos. 211, 215, 216 and 218 of 1998, under section 25-A of the I.R.O., 1969, whereby the prayer, made under section 151, C.P.C., for permission to substitute affidavit-in-evidence, by filing new one, was turned down for want of sufficient reason.
Mr. Shahani, learned counsel for the applicants submitted that the first affidavit-in-evidence was filed by the applicants on 23-2-1999. The case was then adjourned to: 10-3-1999 for cross-examination. On that date another affidavit-in-evidence alongwith an application under section 151, C.P.C. was presented in the learned Presiding Officer before the commencement of the cross-examination of the applicants. He referred to section 153, C.P.C. and submitted that the Court may at any time, and on such terms as to costs or otherwise as it may think fit amend any defect or error in any proceedings in a suit; and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on such proceeding". Learned counsel did not cite a single authority under section 153, which helps the situation, as involved in the case. He however, referred to two authorities namely PLD 1975 SC 678 and 1982 SCMR 430, but both these authorities deal with the question of technicalities. Unless, it is shown to my satisfaction that the facts, involved in the case, are of technical in nature, these authorities will be of no help to the counsel.
Mr. Humayun, learned counsel for the respondent, submitted that it is not a case of technicality. It is a question of substituting one statement by another, which is in the nature of examination-in-chief by affidavit, as also held by the learned Presiding Officer.
Mr. Humayun referred to Articles 71 and 130 of the Qanun-e-Shahadat Order, 1984, but both the Articles of the Qanun-e-Shahadat Order, 1984, in the facts and circumstances, of the case, are inapplicable. Lastly, Mr. Humayun submitted that it was stated in the application before the learned Labour Court that there was an inadvertent mistake by the typist in stating the facts correctly, which necessitated substitution of one affidavit by the other paras. 4 and 5 thereof.
On my querry to Mr. Shahani, he frankly admitted that it was mistake of the draftsman. Probably he could not comprehend correctly the instructions of the application, this submission of Mr. Shahani, seems to be quite plausible, as it has been found by me, in innumerable cases that the affidavit-in-evidence, filed, particularly by the labour, as a class, contained incorrect statements, found on cross examination by the other side, seemingly because most of them are either illiterate or half-literate.
There is no provision in the Industrial Relations Ordinance, 19691 which makes a provision of accepting evidence of the parties by means of affidavit. The provisions of Civil Procedure Code, 1908 have been made applicable under section 36(2) of the I.R.O., 1969, specifically mentioning the powers "of enforcing the attendance of any person and examining him on oath." There is no provision in the Industrial Relations Ordinance, 1969 and Standing Orders Ordinance, 1968, which provides the acceptance of the affidavit-in-evidence in the matters of grievance application under section 25-A of the I.R.O., 1969 and the Standing Orders Ordinance, 1968.
No counsel was able to cite any rule, regulation, notification or even a circular, issued by any competent authority under any law for accepting the affidavit-in-evidence in the Sindh Labour Courts as substitute of examination-in-chief. As stated by them, it is only the Sindh Rent Restriction Ordinance, 1979, which provides acceptance of affidavit-in evidence.
I, therefore, asked the learned counsel of the parties, if they would be ready to put in their parties and their witnesses, if any, in the witness-boa for examination-in-chief, cross-examination and re-examination. The reply o1 both the counsel was spontaneous that they would be willing to do so, 9. By consent, therefore, the revision applications stand disposed of it terms of their consent, as stated at the Bar. Order accordingly
Before parting with this matter, I would, however, like to observe that the present practice. of accepting the affidavit-in-evidence should be discontinued forthwith by all the Presiding Officers of Sindh Labour Courts. Unless the relevant statute or rule, made there under, make a specific provision for making a departure from the established rule of recording evidence in Court including the examination-in-chief under the Industrial Relations Ordinance or Standing Orders Ordinance, 1968. The parties and their witnesses must be examined in Court orally by the Court. As such, the present practice of accepting affidavit-in-evidence is against the judicial norm, as also enshrined in the Injunctions of Holy Qur'an and Sunnah.
It is noticeable that the Industrial Relations Ordinance, 1969 provides that application under section 25-A should be decided by a Labour Court within seven days. Although I am of the view that this limit of seven days is not only unrealistic but looks to be a mockery with law. But the case should be decided, at the most, within six/seven months, whereas they are being decided in four/five and in some cases seven to eight years, as I have come across during hearing of many appeals, which is highly deplorable. This may expedite disposal as well.
Announced in open Court, this the 29th September, 1999.
H.B.T./340/K (Lab. Trib.) Order accordingly.
2000 P L C 639
[Sindh Labour Appellate Tribunal]
Before Dr. Tanzilur Rehman, Chairman
Syed MUSTAFA ALI SARD
versus
PRESIDENT, COUNCIL OF THE INSTITUTE
OF CHARTERED ACCOUNTANTS
Appeal NOXAR-143 of 1999, decided on 18th October, 1999.
Industrial Relations Ordinance (XXIII of 1969)---
-----S.25-A---Grievance petition---Maintainability---Petitioner after termination of his service though served grievance notice to employer establishment within prescribed period but instead of filing grievance petition before Labour Court filed appeal before Service Tribunal after five months of termination of his service which was dismissed by Service Tribunal holding that Service Tribunal had no jurisdiction---Section 2-A was inserted in Service Tribunals Act, 1973, during that period where under employee could file appeal before the Service Tribunal, but he instead of filing fresh appeal before Service Tribunal had filed grievance petition under S.25-A, Industrial Relations Ordinance, 1969 with delay of about one year and four months--Employer establishment which was, established under Chartered Accountants Ordinance, 1961, a Federal law, was covered under. S.2-A, Service Tribunals Act, 1973---Employee, in circumstances, would be treated to be a civil servant for a limited purpose and Service Tribunal would have exclusive jurisdiction to redress grievance of employee---Labour Court had rightly dismissed grievance petition for want of jurisdiction in circumstances.
Appellant in person.
Sher Afgan (on Pre-Admission Notice) for Respondent
JUDGMENT
This is an appeal against the decision, dated 31st July, 1999, passed by the learned Sindh Labour Court No.5, at Karachi, dismissing the Grievance Application No. 191 of 1998, instituted under section 25-A of the I,R.O., 1969.
The appellant is present in person and submits that he was misguided by the respondent that the Industrial Relations Ordinance, 1969 has no application to the facts of the case and that is why he approached the Federal Service Tribunal and because of that a delay of about one year and four months have taken place.
The learned Presiding Officer has narrated the entire history of the case in detail and I need riot to repeat the same as being unnecessary. He, however, found the application under section 25-A, I.R.O., 1969, as not maintainable in view of the promulgation of section 2-A, inserted in the Service Tribunals Act on 10th June, 1997 and further that the application suffers from an inordinate delay of one year and four months.
It appears that after termination of service on 16-11-1996, the appellant, although served a grievance notice within the prescribed period in law, but filed an. appeal before the Service Tribunal on or about 15-4-1997, which was dismissed by order, dated 3rd January, 1998 holding that when the appeal was filed, the Service Tribunal had no jurisdiction. The appellant, it further appears, that instead of filing a fresh appeal before the Service Tribunal, as section 2-A had already been inserted in the Service Tribunals Act, filed an application under section 25-A of I.R.O., 1969 before the learned Labour Court, which had no jurisdiction to entertain such application.
Mr. Sher Afgan produces a copy of the Ordinance X of 1961, the Chartered Accountants Ordinance, 1961, published on 10th March, 1961. A perusal of the same shows that it is a body established by or under the Federal Law, which is covered under section 2-A of the Service Tribunals Act, 1973 and the appellant shall be treated to be a civil servant for a limited purpose and now as and from 10-6-1997, the Service Tribunal have exclusive jurisdiction to redress the grievance of the appellant.
The learned Presiding Officer seems to be correct in dismissing the application or want of jurisdiction and so this Tribunal lacks jurisdiction to j entertain the appeal.
For the aforesaid reasons, the appeal has no force and is dismissed accordingly.
Before parting with the matter, it may be observed that it seems to be a hard case, but my hands are tied down by law. I am unable to do anything for the appellant. With due respect, in my humble view, the Service Tribunal had the exclusive, jurisdiction when it was seized of the matter at the time of passing the order. The appellant may, however, file fresh appeal before the Service Tribunal, if so advised.
Announced in open Court, this the 18th October, 1999.
H.B.T./447(Lab Trib) Appeal dismissed
2000 P L C 641
[Sindh Labour Appellate Tribunal]
Before Dr. Tanzilur Rehman, Chairman
BAKHAT ZAMIN
versus
Messrs HAKIMSONS CHEMICAL INDUSTRIES (PVT.) LIMITED
Appeal No.KAR-158 of 1998; decided on 14th September, 1999
Industrial Relations Ordinance (XXIII of 1969)---
----Ss.25-A & 37(3)---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O. 1(e)---Temporary workman---Termination of service---Grievance petition---Employer by producing oral and documentary evidence on record had proved that, employee whose services were terminated without issuing him termination letter was simply a daily-paid worker with gaps of Fridays and Saturdays---Record proved that employee was hired on daily basis as and when need arose and that he was paid on daily basis---Employee having failed to prove that he was a permanent workman, his grievance petition against termination of his services verbally was rightly dismissed by Labour Court.
Muhammad Yaqub v. Punjab Labour Court and. 5 others 1990 SCMR 1539 ref.
M.A.K. Azmati for Appellant.
S. Qamaruddin Hassan for Respondent.
Dates of hearing: 28th January and 14th September, 1999.
2000 P L C 643
[Sindh Labour Appellate Tribunal]
Before Dr. Tanzilur Rehman, Chairman
Messrs PFIZER LABORATORIES LTD.
versus
IRFAN AHMED
Revision Application No.KAR-55 of 1999, decided on 17th September, 1999.
Industrial Relations Ordinance (XXIII of 1969)---
----S.38(3-a)---Revision petition---Maintainability---Employee who had retired from service and had been receiving amount of pension, had made application to Labour Court for computation of his pension correctly--Employer filed application for hearing of preliminary legal objection in reply statement---Said application of employer was dismissed by Labour Court observing that. Courts were supposed to decide case on merits rather on technicalities---Since question of computation of pension required evidence and proper adjudication, Labour Appellate Tribunal refused to interfere with order of Labour Court in exercise of its revisional jurisdiction.
S. Qamaruddin Hassan for Applicant.
Nemo for Respondent.
2000 P L C 645
[Sindh Labour Appellate Tribunal]
Before Dr. Tanzilur Rehman, Chairman
AL-KARAM TEXTILE MILLS CONTRACTORS WORKERS AZAD LABOUR UNION
versus
THE REGISTRAR OF TRADE UNIONS and 3 others
Revision Application No.KAR-62 of 1998, decided on 2nd September, 1999, Industrial Relations Ordinance (XXIII of 1969)---
----Ss.7(2)(b), 8(3), 37(3-a) & 37(4)---Registration of Trade Union--Revisional jurisdiction, exercise of---Application for registration of Trade Union was rejected by Registrar, Trade Unions on ground that applicant' Trade Union was not enjoying 1/5th or 20% membership as required under S.7(a)(b) of Industrial Relations Ordinance, 1969---Finding of Registrar, Trade Unions was upheld by Labour Court in appeal under S.8(3) of Industrial Relations Ordinance, 1969---Concurrent findings of facts based on record could not be interfered with by Labour Appellate Tribunal in exercise of revisional jurisdiction.
Munawar Ahmad v. The Sindh Provincial Cooperative Bank Ltd., Hyderabad 1981 PLC 344; The National and Grindlays Bank Employees' Federation v. National and Grindlays Bank Limited, Karachi NLR 1983 Labour 37; Fateh Muhammad v. Registrar, Trade Unions and another 1991 PLC 158 and 1990 PLC 351 ref.
Wazir Khan, General Secretary for Applicant-Union, Mahmood A. Ghani for Respondents Nos.2 and 3.
Nemo for Respondent No. 1.
Date of hearing: 2nd September, 1999
2000 P L C 647
[Sindh Labour Appellate Tribunal]
Before Dr. Tanzilur Rehman, Chairman
Messrs COCA COLA BEVERAGES PAKISTAN LIMITED
versus
ANWER ZEB
Appeal No. KAR-116 of 1999, decided on 18th November, 1999.
Industrial Relations Ordinance (XXIII of 1969)---
----Ss.25-A & 51---Termiantion of service---Re-instatement---Back benefits---Entitlement---Employment in the capacity of loader for a period not exceeding nine months on purely temporary basis---Services of employee were terminated within nine months strictly in accordance with terms and conditions of appointment letter---Labour Court accepting grievance petition of employee against termination of his service ordered his reinstatement in service with back benefits---Employer industry being a seasonal one, employee who was appointed for fixed period would not become a permanent worker---Employee having failed to lead any evidence to prove that during termination of his service he remained without a job, was not entitled for grant of back benefits---Appellant (employer) however, was directed to re-employ the respondent from the date of order on the same terms and conditions on which he was previously employed.
1991 SCMR 2087; 1992 SCMR 2169; PLD 1969 SC 591; 1991 SCMR 2087 and Metro Garments Industries, Karachi v. Sindh Labour Appellate Tribunal, Karachi and 2 others 1993 PLC 303 ref.
S.S. Jahangir Khan for Appellant.
S.P. Lodhi for Respondent.
Dates of hearing: 16th, 17th and 18th September, 1999.
2000 P L C 650
[Sindh Labour Appellate Tribunal]
Before Dr. Tanzilur Rehman, Chairman
FAUJI SUGAR MILLS MAZDOOR UNION (CBA)
versus
Messrs FAUJI SUGAR MILLS, TANDO MUHAMMAD KHAN
Application No.HYD-129 of 1998, decided on 15th September, 1999
Industrial Relations Ordinance (XXIII of 1969)---
----S.50---Sipdh Employees Special Allowance (Payment) Act (X of 1986), S.3-B [as added by Sindh Employees Special Allowance (Payment) (Amendment) Ordinance (VIII of 1995)---Settlement---Interpretation--Settlement arrived at between employer and Collective Bargaining Agent of employees' union had provided that benefit given under settlement to employees would be set off and adjusted against any benefits which would accrue to employees through promulgation of any enactment or order by Federal or Provincial Legislation---Additional special allowance equal to Rs.100 per month granted to employees under S.3-B of Sindh Employees Special Allowance (Payment) Act, 1985 was denied to employees by employer in view of cl. (6-B) contained in settlement agreement between parties with regard to set off and adjustment of benefits---Clause contained in settlement agreement had provided that benefits granted in any future enactment or order would be set off or adjusted provided a provision regarding set off or adjustment was incorporated in said future Legislation, Enactment or Order granting; benefits to employees---Provisions of S.3-B of Sindh Employees Special Allowance (Payment) Act, 1986 where under Additional Special Allowance equal to Rs.100 p.m. was granted, had nowhere provided provision of set-off or adjustment of, said benefit--Employees, in circumstances, were entitled to benefit of Rs.100 p.m. as special allowance granted to them under S.3-B of Sindh Employees Special Allowance (Payment) Act, 1986 and employer could' not deny same in the garb of set-off or adjustment.
Agriauto Progressive Labour Union (C.B.A.), Islamabad through General Secretary v. Messrs Agriauto Industries Limited, Deh Mouza Barrot Hub, District Lasbella through Managing Director 1993 PLC 805; Agriauto Progressive Labour Union (C.B.A.), Karachi v. Chairman, Labour Appellate Tribunal, Balochistan at Quetta and another 1994 PLC 182; Workers' Union (C.B.A.) v. Messrs Mirpurkhas Sugar Mills Ltd., Mirpurkhas 1998 PLC 361 and Pak Cigarette Labour Union, Karachi v. Pakistan Tobacco Co. Ltd., Karachi 1989 PLC 163 ref.
Ali Amjad and Faiz Ghanghro for Applicant.
Khalid Javed for Respondent.
Dates of hearing: 27th August and 15th September, 1999.
2000 P L C 688
[Sindh Labour Appellate Tribunal]
Before Dr. Tanzil-ur-Rehman, Chairman
Messrs UNITED BANK LTD.
versus
UNITED BANK LABOUR UNION
Revision Application No.KAR-40 of 1999, decided on 30th November, 1999.
(a) Industrial Relations Ordinance (XXIII of 1969)--
----Ss. 8-A & 47---Transfer of employee---Employee was ordered to be transferred from Head Office of employer Bank to a branch of Bank in the same city, which was nothing but a normal exigency of service and could in no circumstances be considered to be a punishment---Case of simple transfer, without any element of punishment, would not fall within purview of S.47, Industrial Relations Ordinance, 1969---Transfer was included in terms and conditions of employment and mere transfer itself would not change terms and conditions of employment--Worker of the Bank was liable to serve at any place in whole of Pakistan and could be transferred from one place to another in exigency of service for administrative reasons and he had no vested right to remain posted at a particular place of his choice.
Air India Corporation, Bombay v. Rebello and another AIR 1972 SC 1343; Zeal Pak Cement Factory Ltd., Hyderabad v. The Chairman, West Pakistan Industrial Court, Lahore PLD 1965 SC 420; 1965 PLC 216; Syed Momin v. Rashid Textile Mills Ltd. and 3 others 1987 PLC 852; Zeal Pak Cement Factory Ltd. v. Chairman, West Pakistan Industrial Court PLD 1965 SC 420; Chaman Lal Seth v. State of Uttar Pradesh AIR 1957 Ail..241; Tahira Fazeelat and others v. Province of Punjab and others 1998 PLC. (C.S.) 268 and Marghub Siddiqi v. Hamid Ahmed Khan and 2 others, 1974 SCMR 519 ref.
(b) Industrial Relations Ordinance (XXIII of 1969)---
----Ss. 2(xiii) & 32(1-A)---Trade Union had filed application under S.32(1-A) of Industrial Relations Ordinance, 1969 which provision of law related to award and which could only be passed in an "industrial dispute"--Point raised in interlocutory application would not and could not constitute industrial dispute as defined in S. 2(xiii) of Industrial Relations Ordinance, 1969.
(c) Civil Procedure Code (V of 1908)---
----O. XXXIX, Rr. 1 & 2---Grant of interim prohibitory injunction--Essential ingredients---Three essential ingredients for grant of interim prohibitory injunction were that prima facie case, existed, that balance of convenience was visible and that irreparable loss to party seeking said injunction was shown in case of refusal.
Province of West Pakistan through Deputy Commissioner, Hyderabad and another v. Malik Asghar Khan 1971 SCMR 569 ref.
(d) Industrial Relations Ordinance (XXIII of 1969)---
----Ss. 2(xiii), 32 & 36---Industrial dispute---Powers of Labour Court--Labour Court after insertion of S.2-A in Service Tribunals Act, 1973 could only entertain and adjudicate in the matter of industrial dispute under S. 32 of Industrial Relations Ordinance, 1969 and transfer of employee of Bank could not be a matter of industrial dispute.
Islamic Republic of Pakistan v. Muhammad Zaman Khan and other 1997 SCMR 1508; Qazi Inam-ul-Haq v. Heavy Foundry and Forge Engineering (Pvt.) Ltd. and another 1989 SCMR 1855; Habibul Haq v. Sargodha Vegetable Ghee and General Mills, Faisalabad and another 1991 PLC 899; Packages Ltd. v. Pir Muhammad and 11 others 1982 SCMR 716; Sindh Employees' Social Security Institution and another v. Adamjee Cotton Mills Ltd. PLD 1975 SC 32; Messrs U.D.L. Industries Ltd. v. Hongunang Electron Tube Plant and others PLD 1997 Kar. 553 and L.I.C.I/I.C.A. Employees' Union v. Pakistan Insurance Corporation, Karachi and another PLD 1975 Kar. 858 ref.
Shahid Anwar Bajwa for Applicant.
Ch. M. Latif Saghar for Respondent.
2000 P L C 10
[Lahore High Court]
Before Ch. Ijaz Ahmad, J
THE COMMISSIONER, PUNJAB EMPLOYEES
SOCIAL SECURITY INSTITUTION and another
Versus
BROADWAY BAKERS AND SWEETS, WAHDAT ROAD LAHORE and 3 others
First Appeal from Order No. 70 of 1999, decided on 13th May, 1999.
(a) Provincial Employees' Social Security Ordinance (X of 1965)---
----S. 61---Civil Procedure Code (V of 1908), S. 9---Jurisdiction of Civil Court, exercise of---If jurisdiction of Civil Court was exclusively barred by any special statute, even then Civil Court had jurisdiction to take cognizance of the matter because Civil Court being the Court of ultimate jurisdiction, could challenge against any action or order passed by an Administrative or quasi-judicial functionary which was coram non judice or without jurisdiction.
Abdul Latif's case PLD 1965 SC 671; Ghulam Mustafa Khar's case PLD 1998 Lah. 49; PLD 1989 SC 26 and Zafrullah Ahsan's case PLD 1960 SC (Pak.) 113 ref.
(b) Civil Procedure Code (V of 1908)---
----S. 9 & O.VII, R. 1---Jurisdiction of Civil Court---Determination---Plaint and not the written statement which determined the jurisdiction of Court.
(c) Civil Procedure Code (V of 1908)---
----S.9---Jurisdiction of Civil Court---Civil Court had jurisdiction to take cognizance in cases where statutory provisions had not been complied with and action was not in accordance with provisions and procedure prescribed under statute or where allegation of a party was that action was nullity in the Muhammad Latif's case PLD 1970 SC 180 and PLD 1970 SC 139 ref.
Mehmood-ul-Hassan Khan for Appellant.
ORDER
Brief facts out of which the present appeal arise are that the respondents paid contribution to the appellant under the provisions of Social Security Ordinance but thereafter did not discharge their liabilities qua the contributions under the provisions of the aforesaid Ordinance, the appellant issued demand notice for the recovery of the contribution amounting to Rs.22,620 for the period March, 1993 to November, 1994. Respondents filed complaint under the provisions of the Social Security Ordinance against the aforesaid demand notice on 17-12-1995. The competent authority dismissed the same vide order dated 4-3-1997. Respondents being aggrieved by the aforesaid order filed a revision petition which was also dismissed vide order dated 25-6-1997. Respondents have alternative remedy to agitate the aforesaid orders, before the Social Security Court under section 61 of the Social Security Ordinance, 1965. Respondents did not file appeal under section 61 of the Ordinance and filed a suit for declaration with permanent and mandatory injunction consequential relief before the Senior Civil Judge who entrusted the same to the learned Civil Judge. Respondents also filed application under Order 39, Rules 1 and 2, C.P.C. Learned trial Court dismissed the application of the respondents vide order dated 15-10-1998. Respondents being aggrieved filed appeal before the District Judge Lahore who entrusted the same to the learned Additional District Judge, Lahore. Learned Additional District Judge accepted the appeal vide judgment and decree dated 18-2-1999. Hence this appeal.
Decisions on complaints questions and disputes.--If any complaint is received or any question or dispute arises as to---
(a) whether any person is a secured person within the meaning of this Ordinance; or
(b) the rate of wages or average daily wages of a secured person for the purpose of this Ordinance; or
(c) the rate of contribution payable by an employer in, respect of an employee; or
(d) the person who is or was the employer in respect of a secured person; or
(e) any benefit and the amount and duration thereof; or
(f) any other matter in respect of any contribution or other dues payable under this Ordinance;
the matter shall be decided by the Institution, in such manner, and within such time as the regulations may provide, and the Institution shall notify its decision to the person or persons concerned, in writing, stating therein the reason or reasons for its decisions.
Learned counsel for the appellant contended on the basis of the aforesaid provisions of law that such matters ought to be decided by the Institution in such manner and within such time as regulations may provide and the Institution would notify its decision s- the person or persons concerned, in black and white, stating therein the reasons for its decision. He further urged that by virtue of section 58 of the aforesaid Ordinance (sic). It was argued that a review was competent of a decision rendered by the Institution, if new facts were discovered. Referring to the provisions of section 59 he further stated that any person aggrieved by a decision of the Institution, under section 57 or on a review under section 58 could appeal to section 61, the said Court had exclusive jurisdiction to hear and decide appeals from the decision of the Institution arising in the appropriate Social Security area. He further urged that section 62(4) reveals that an order of the Social Security is enforceable as if it was a decree: of a Civil Court. Aggrieved person against the decision by an order of the Social Security Court has another appeal as is envisaged by section 64 of the Ordinance. Learned counsel for the appellant contended that Chapter VI of the Social Security Ordinance prescribed a detailed special procedure for and set down a definite forum for all types of complaint and questions. Therefore, disputes and the pleas raised by the respondents in a suit were not differQ6from those contained in section 57, the respondents instead of filing a suit should have adopted the course prescribed by the Ordinance. He summed up his arguments that Civil Court has no jurisdiction to take the cognizance of the matter but the learned Additional District Judge did, not advert to this aspect of the case. He further stated that in present case respondents have availed remedies provided under sections 57 and 58. Therefore, the respondents have to agitate the same through appeal under sections 61 and 64 of the Ordinance.
(i) PLD 1965 SC 671 (Abdul Latif's case)
(ii) PLD 1998 Lah. 49 (Ghulam Mustafa Khar's case)
(iii) PLD 1989 SC 26.
The aforesaid proposition has been settled by the Hon'ble Supreme Court since 1960 in Zafrullah Ahsan's case PLD 1960 SC (Pak.) 113), and observed as under:--
"Where, the proceedings are taken mala fide and the statute is used merely as a cloak to, cover an act which in fact is not taken, though it purports to have been taken, under the statute, the order will not, in accordance with a long line of decisions in England and in this sub-continent, be treated as an order under the statute."
It is pertinent to mention here in the present case, the respondents have specifically stated that act of the appellant was against the law and based on mala fides. It is also settled proposition of law that it is the plaint and not the written statement which determines the jurisdiction of the Court It is also settled proposition of law that where the allegation of a party is that the action 'is nullity in the eyes of law, the Civil Court has jurisdiction to take cognizance, in such cases where statutory provisions have not been complied with and the action is not in accordance with the provisions and procedure prescribed under the statute. I am fortified by the judgment of the Hon'ble Supreme Court in Muhammad Latif's case PLD 1970 SC 180. Even otherwise judgment of the learned Additional District Judge is in accordance with the judgment of the Hon'ble Supreme Court (PLD 1970 SC 139).
4.In view of what has been discussed above, this appeal has no merit and the same is dismissed.
H.B.T./C-26/L Appeal dismissed
2000 P L C 37
[Lahore High Court]
Before Dr. Munir Ahmad Mughal, J
Messrs GULISTAN WEAVING MILLS
Versus
THE COMMISSIONER and another
Writ Petition No.22194 of 1996, decided on 1st July, 1999.
(a) Provincial Employees' Social Security Ordinance (X of 1965)--
----Preamble & S. 1(3)---Object and scope of Provincial Employees' Social Security Ordinance, 1965---Object of Ordinance was to introduce a scheme of social security for providing benefits to certain employees or their dependents in the event of sickness, maternity, employment injury or death and for matters ancillary thereto---Ordinance was to come into force at once and extend to whole of Pakistan, but its application was limited only to such areas, classes of persons /industries or establishments, for such dates and with regard to the providing of such benefits as Government could by notification specify in that behalf.
Kashmir Comer v. Sindh Employees' Social Security Institution, Karachi PLD 1975 Kar. 36; Kohinoor Chemical Co. Ltd. and another Sindh Employees' Social Security Institution PLD 1977 SC 197; P.W.R. Karachi v. Bashir Ahmad PLD 1973 SC 589; PLD 1960 SC 195; PLD 1965 SC 412; Messrs Standard Printing Press v. Sindh Employees' Social Security Institution 1988 SCMR 91 and Sindh Employees' Social Security Institution v. Messrs Cowasjee & Sons 1993 SCMR 1433 ref.
(b) Provincial Employees' Social Security Ordinance (X of 1965)--
----S. 1(3)---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Demand and payment of amount of contribution-- -Authorities issued letter to employer calling record and on denial of employer to supply the same, Authorities sent notice under S. 81 of Land Revenue Act, 1967 for recovery" of amount of contribution---Employer had challenged validity of said notice on ground that employer having not been notified under S. 1(3), Provincial Employees' Social Security Ordinance, 1965 for the imposition of social security scheme, letter for production of record and demand from employer for payment of amount of contribution was unwarranted by law rightly---Applicability of Provincial Social Security Ordinance, 1965 was to be made by Governor through Gazette Notification but no said notification was issued----Employer being not covered by notification, was not liable to pay amount of contribution---High Court, in exercise of Constitutional jurisdiction declared order of Authority illegal and without lawful authority.
Rana Abdul Hameed Talib for Petitioner.
Malik Muhammad Matin Khokhar Asstt. A.-G., Punjab for lent No. l .
Zafar Iqbal Khan for Respondents Nos.2 to 4.
JUDGMENT
The petitioner Mills is a public limited company Respondent No. 4 sent a letter to the petitioner's Mills on 18-5-1994 and called the record from the petitioner's Mills. The petitioner's Mills replied to respondent No.4 that since the petitioner's Mills has not been notified under section 1(3) of the West Pakistan Employees' Social Security Ordinance. 1965 for the imposition of social security scheme. Hence, the production of record was unwarranted by law. Respondent No.4 instead of supplying of copy of the notification with regard to the imposition of social security scheme to the petitioner sent notice for payment of Rs.15,000. The petitioner referred back the same on the ground that since there was no notification the demand has no entity, in the eye of law and requested for its withdrawal. Therefore, respondent No.3 sent notice under section 81 of the Land Revenue Act. 1967 for the recovery of the amount of Rs.6,36,000 by coercive method. The petitioner has also challenged the validity of the said notice.
Notice of the writ petition was given to the respondents. In response to it respondent No. l has appeared through the learned Assistant Advocate? General, Punjab, Lahore, while respondents Nos.2 to 4 are represented by their counsel and have also filed written statements in which the issuance of the letter by respondent No.4 and also the reply given by the petitioner and the subsequent demand and recovery notice by the respondents have been admitted and it has been pleased that the notification stood issued and it was specifically mentioned in it that the Ordinance has been made applicable to any other unit functioning in the premises of the notified establishment and that as the petitioner Mills is functioning in the notified premise of Messrs Gulistan Weaving Mills, the Ordinance is also applicable to the petitioner Mills.
The point for consideration is as to whether the proceedings taken against the petitioner's Mills without specifically mentioning the name of the petitioner's Mills in the Schedule to the notification in pursuance of Notification NO.Lab.V/II-61/90 dated 31-7-1991 under section 1(3) of the Punjab Employees' Social Security Ordinance, 1965 are without lawful authority and of no legal effect. Consequently, the demand notice dated 20-9-1994, the impugned order dated 25-1-1995 and the order dated -6-6-1996 of the Social Security Court, Punjab, Lahore are illegal.
Arguments have been heard at length.
Learned counsel for the petitioner has submitted that another Mills M/s. Gulistan Weaving Mills situated on the same road, which is also a public limited company having its own entity, boundaries, accounts and the employees and similarly registered with the Government of the Punjab and the Government of Pakistan for all purposes of a separate public limited Company. The said Mills has been notified for the purposes of the applicability of Social Security Scheme and that the respondents treating both the Gulistan Weaving Mills and the Gulshan Weaving Mills as one are illegal and without any authority imposing the notification to the petitioners' Mills whereas the petitioner's Mills is a juristic person having been registered as public limited company by shares under the Companies Ordinance, 1984 and also the petitioner's Mills is separately registered under the Factories Act, 1934 with, type Directorate of Labour Welfare, Lahore Region, Lahore vide Registration Certificate No. F/LR/SKP/184, dated 22-12-1991 and is also paying contribution to the Employees' Old-Age Benefits Institution with whom it is also registered. Further, it is registered with the Government of Pakistan Collectorate of Central Excise and Sales Tax, Lahore. It has its own account, own staff and all other things required for its independent entity, Learned counsel for the petitioner further submitted that under the Punjab Employees' Social Security Ordinance, 1965 the applicability of the Ordinance is to be made by the Government of the Punjab by a Notification specifying in this behalf and that no such Notification has so far been issued Wan respondent No.4 has erred in sending notice for the payment of amount without looking into the matter. with the scheme of the social security has been made applicable to the petitioner's. Mills and that respondent No.3 has started the coercive method against the petitioner's Mills. Learned counsel for the petitioner further submitted that petitioner's Mills was forced to file a complaint under section 57 of the Social Security Ordinance, 1965 before respondent No.2 alongwith an application for interim relief. Respondent No.2 rejected the prayer of interim relief and the petitioner preferred to run before the Social Security Court against the order of respondent No. 1 which was granted but was later on vacated by dismissing the appeal on 6-6-1996 holding that the appeal against interim order did not lie. The petitioner filed F.A.O. No. (sic) against order dated 6-6-1996 which was also dismissed being incompetent. Meanwhile the petitioner also filed Writ Petition No. 1643 of 1995 in the Lahore High Court which was also dismissed on the plea that relevant original Notification has not been shown by the petitioner to the respondent which was also held not maintainable and was dismissed on 26-2-1995 in limine. However, it was observed that in case petitioner approaches respondent No.2 for obtaining necessary Notification it shall be supplied to the petitioner but shall be dealt with him with due respect and strictly to accordance with law. Thereafter, the petitioner sent a letter, dated 13-9-1995 to respondents Nos.3 and 4 for supply of the petitioner's Mills. No reply was given. The petitioner again wrote a letter for the supply of the Notification to clear the matter and then another letter dated 4-4-1996 for the same purpose. These letters were sent to respondent No. 1 who also wrote a letter to respondent No.2 to supply a copy of the notification to the petitioner's Mills. No reply was given and respondent No. 1 again sent a letter to respondent No.2 but to no avail. Respondent No.2 vide his order dated 20-11-1996 also directed to respondents Nos.3 and 4 to supply the said notification to the petitioner's Mills it is further submitted that petitioner being public limited company having its juristic entity and answerable to its shareholders about payment cannot pay the undue amount which is not legally payable to the institution. The petitioner having requested the respondents that a Gazette Notification to this effect may be issued and the petitioners will be readily paying the contribution to the institution but to no avail. It is further submitted that the respondents have not provided facilities and benefits to the workers of the petitioner's Mills and that the amount of contribution cannot be claimed from the petitioner's Mills as the same is not a tax but a fee for rendering the services required under the Ordinance and that the action of the respondents against the petitioner's Mills is against laws and without jurisdiction and that they cannot recover any amount from the petitioner's Mills without the Gazette Notification of the applicability. It is further submitted that there is no other adequate, sufficient effective and immediate remedy available to the petitioner's Mills against the illegal acts of the respondents as such the writ jurisdiction of the High Court is being invoked and it is sought that the' judgment dated 6-6-1996 passed by the learned Judge Social Security Court, Punjab, Lahore and the order dated 25-1-1995 passed by the Vice-Commissioner, Punjab Employees' Social Security Institution be set aside and the operation of the demand notice dated 20-9-1994 by respondent No.4 be suspended and the notice under section 61 of the Land Revenue Act issued by respondent No.3 be declared as illegal; against law and of no legal effect and that the respondents be directed to if any, with regard to the petitioner's establishment.
Learned Assistant Advocate-General, Punjab as well as learned counsel for respondents Nos. 2 to 4 have frankly conceded that there is no Notification wherein the name of the petitioner's Mills was specifically mentioned in the schedule. They both have stressed that the words 'or any unit functioning in the premises of the establishment' brings the petitioner's Mills within the meaning of Notification:
I have given due consideration to the valuable arguments on both sides.
The relevant law is contained under Chapter 1 of section 1 (3) of the West Pakistan Employees' Social Security Ordinance No. X of 1965 which is reproduced for ready reference:--
"Chapter I--Preliminary
The Notification in question is also reproduced:------
THE PUNJAB GAZETTE PUBLISHED BY AUTHORITY, LAHORE, WEDNESDAY, JULY 31, 1991 GOVERNMENT OF
THE PUNJAB LABOUR DEPARTMENT
The 31st July, 1991
No. Lab -V/11-61/40.--In exercise of the powers conferred by subsection (3) of section 1 of the West Pakistan Employees' Social Security Ordinance, 1965 (West Pakistan Employees' Social Security Ordinance No.X of 1965), the Governor of the Punjab is pleased to apply with effect from 1st August, 1991 or the date of publication of the Gazette notification whichever is later the said Ordinance to the employer and employees of the establishments mentioned in the schedule annexed hereto and/or any other unit functioning in the premises of the establishments and to direct that the employees of such establishments shall be entitled to benefits provided in sections 35, 36 37, 38, 39, 40, 41, 42, 43, 44 and 45 of the Ordinance.
SCHEDULE
AREA SERIAL NO. NAME AND ADDRESS OF THE UNIT
Lahore (s) 1 to 331.?....
SHEIKHUPURA 332 to 335
District Sheikhupura. 337 to 339???."
The legal background of the promulgation of the Ordinance No. X of 1965 is that it was an Ordinance to introduce a scheme of social security for providing benefits to certain employees or their dependents in the event of sickness, maternity employment injury or death and for titters ancillary thereto and whereas the Provincial Assembly of West Pakistan was not in session and the Government of Punjab is satisfied that circumstances exist which render immediate legislation necessary at that time, therefore, in exercise of the powers conferred on him by clause (1) of Article 79 of the then Constitution, the Governor of West Pakistan was pleased to make and promulgate the said Ordinance. The2 Ordinance vas published in the Gazette of West Pakistan, Extraordinary 17th May, 1965 at page 2195, Chapter. l is Preliminary and section 1 deals with as short title, extent, commencement and application of the Ordinance which reads as under:--
"CHAPTER I
PRELIMINARY
(2) ................
(3) It shall come into force at once but shall apply only to such areas, classes of persons, Industries or Establishments from such date or dates and with regard to provision of such benefits as Government may by notification, specify in this behalf,"
The scheme of the Ordinance is that it comes into force at once and extends to the whole of West Pakistan but its application was limited only to such areas-classes of persons, industries or establishments, from such date or dates and with regard to the provisions of such benefits as Government may by notification, specify in this behalf, the idea is gradual application and extension of Ordinance as regards areas, industries and benefits depending upon experience gained and the progress made in enforcement.
In the case of Kashmir Corner v. Sindh Employees' Social Security Institution., Karachi (PLD 1975 Kar. 36), the material facts were that at the shop situated at Zebunnissa Street the appellants sell both imported goods and locally purchased goods while the owners of this shop also run a cottage industry, at 101/27. Korangi Industrial Area, Karachi known as the Kashmir Corner Industry and there was a demand from the appellants in respect of both these establishments and the demand in respect of the Kashmir Corner Industry is not disputed and is not the subject-matter of the said appeal. The liability to pay in respect of the Zebunnissa Street Establishment. The liability arises if at all, from the West Pakistan Employees' Social Security Ordinance, (West Pakistan Ordinance, 1965). By a notification, dated the 15th October, 1968 the Ordinance was made applicable with effect from the 1st November, 1968 to various establishments in the Karachi District and one of these at Serial No. 195 was Kashmir Corner Industries, Plot 101, Sector 27.K-1. Area, Karachi. The language in which the notification was made-so applicable was also worth. noticing. It was.--
"No. Lab-III-sss-1/67.--In exercise of the powers conferred by subsection (3) of section 1 of the West Pakistan Employees' Social Security Ordinance, 1965 (West Pakistan Ordinance No.X of 1965), the Governor of West Pakistan is pleased to apply with effect from the first day of November, 1968, the said Ordinance to the areas mentioned in column 2 of the Schedule annexed hereto and to the employer and the employees of establishments mentioned against each of such areas in column 3 thereof, and to direct that the employees of such establishments shall be entitled to the benefits as provided in sections 35, 36, 37, 38, 39,. 40, 41, 42, 43, 44 and 45 of the said Ordinance."
"The notification does not refer and the Ordinance does not, therefore, apply to a single natural person or legal entity all the employees of which are to be given the benefits of the Ordinance. On the contrary in its own terms it talks of the 'employers of establishments mentioned against each of such areas' and the word 'establishment' is itself defined in the Ordinance thus, establishment means organization, whether industrial, commercial, agricultural or otherwise' By reason of this definition and section 1(3) of the Ordinance which I have already quoted it seems plain that the Ordinance was not to apply to all concerns owned by a particular person or a legal entity as such but to industries or establishments specifically stated (Ignore as being irrelevant for present purposes, the words 'classes of persons'). It seems to me, therefore, that the intention of the legislation was to provide specifically for the employees of such industries or establishments. The demand in respect of the Zebunninna Street Establishment is made on the basis in that establishment are sold some of the goods manufactured in the Korangi Establishment and that the two establishments have a common ownership. In my opinion that mere fact does not connect the two sufficiently for the purpose of making the Ordinance applicable to the Zebunnissa Street Establishment. It is in fact the case of the appellant, which is not denied, that a great deal of the products manufactured at the Korangi Establishment are exported while the Zebunnissa Street Establishment sells goods which are not manufactured at the Korangi establishment only. "
It was further observed by the Hon'ble Chief Justice of the said Court:---
"Reliance was finally placed upon the definition of the expression 'Social Security Area' and which is defined to mean an area to which this Ordinance has been applied. This would indeed have carried the case of the respondent to a successful conclusion had the Ordinance been made applicable or was capable of being made applicable to all kinds of establishments within a particular area. Whether a notification could have issued in respect of all establishments within a particular area is not a question, which I am called upon to decide because the notification itself although it does define the area is nevertheless in terms restricted to certain named establishments. "
And ultimately, it was concluded that the appellants were not liable to pay any contribution in respect of the Zebunnissa Street Establishment and, therefore, the appeal was allowed with costs and the order of the 1st Sindh Security Court, Karachi was set aside.
"As regards the Kashmir Corner Industries, we may state at once that it is difficult to accept the contention advanced on behalf of this company that the establishment in the Zaibunnissa Street (formerly known as Elphination Street), Karachi, has nothing at all to do with the notified establishment situate in the Korangi Industrial Area. Such an assertion is negatived by the address printed on the letter addressed by the company itself to the Director of the Social Security Institution on the 18th of May, 1974. This letter clearly shows that the head office of the company is located at Kashmir Corner Elphtinston Street, Karachi. It follows, therefore, that here again it is a matter for investigation to determine as to which of the employees working in the Elphtinston (now Zaibunnissa Street) establishment are working in connection with the work of the notified establishment."
In the same judgment, the Hon'ble Supreme Court observed:--
"In order to appreciate the respective contentions advanced on behalf of the parties it is necessary to refer to the relevant provisions of the statute.
As already stated, subsection (3) of section 1 of the Ordinance enjoins that it 'shall apply only to such areas, classes of persons, industries or establishments, from such date or dates, and with regard to the provisions of such benefits as Government may, by notification, specify in this behalf, the notification of the 15th of October, 1968 has been issued under this provisions, and it specifies Karachi District as the territorial limits for the application of the Ordinance and further prescribes that the employees of the establishments mentioned in the notification shall be entitled to the benefits as provided in certain sections of the Ordinance.
The term employee's has been defined in clause (8) of section 2 of the Ordinance as meaning any person working normally for at least twenty-four hours per week, for wages, in or in connection with the work of any industry, business undertaking or establishment, under any contract of service of apprenticeship whether written or oral, express or implied."
According to clause (ii) of the same section 'establishment' means an organization whether industrial, commercial, agricultural or otherwise.
Now it is clear that the two definitions the terms 'employee' and 'establishment' have to be read together in order to arrive at a correct interpretation of the scope of the notification insured by the Provincial Government. Similar terms employed in the comparable Indian Legislation, namely. Employees State Insurance Act, 1948 fell for interpretation by a Division Bench of the High Court in Employees State Insurance Corporation v. Ganpathlal Pillal (AIR 1961 Mad. 1761. The word 'employee' is defined in section 2(9) of the Indian Act as meaning?
'any person employed for wages m or to connection with the work of a factory or establishment to which this Act applies, and
(1) who is directly employed by the principal employer on any work of or incidental or preliminary to or connected with the work of the factory or establishment, whether such work is done by the employee in the factory or establishment or elsewhere...
The leaned Judges took the view that only persons who were in some manner or other connected with the work of the factory, namely the manufacturing process could be said to be employees within the meaning of the definition even though there were the words incidental or preliminary to, but both these, had to be understood in conjunction with the words with the work of the factory. Having reached this conclusion they proceeded to examine whether the employees in question were performing any work in connection with the notified factory. It will be seen that only those employees were regarded as being liable to pay the necessary contribution whose work had a nexus with the work of the notified factory or establishment.
There is no doubt that we are dealing with a beneficial or remedial legislation conceived as a means of ameliorating the lot of the working class, and, as such it would be in keeping with the accepted principle of interpretation; as observed in Divisional Superintendent, PWR, Karachi v. Bashir Ahmad (PLD 1973 SC 589) that it should be so construed as to advance the remedy and suppress the mischief, or else it would frustrate the legislative intent. It would appear, therefore, that, in keeping with the object of the legislation, as wide an interpretation should be placed or the terms 'employee' and 'establishment' as permissible within the language employed in the statute.
Viewed in this light, the term 'establishment', as defined in clause (ii) of section 2 of the Ordinance, does not appear to me to be confined in its scope to merely the four walls of the physical premises where the notified establishment may be located; on the contrary the definition speaks of an organization whether industrial, commercial, agricultural or otherwise. In its literal sense an organization connotes a systematic arrangement for a definite purpose. In the legal sense it describes a system, a body or a society furnished with organs for the normal exercise of its appropriate functions. It follows, therefore, that an organization is not necessarily to terminus with the physical premises where it may be located. It is possible that a part of its stricture may be situated elsewhere but it must nevertheless be integral to its main functions and objects.
That this is the proper construction of the term 'establishment appears to find support from the definition of the term 'employee' as given in clause (8) of section 2 of the Ordinance, which includes in the definition not only a person working in the industry or establishment but also in connection with the work or any industry, business, undertaking or establishment, It is clear to me that a person who is working in connection with the work of an establishment may not necessarily be physically located in the notified premises but may be elsewhere of course, within the social security area as notified under clause (3) of section 1 of the Ordinance. The essential test in such a case would be whether the per concerned is indeed working in connection with the work of the notified establishment The late Chief Justice has rightly remarked, in the case of the Kashmir Corner Industries that the mere fact of common ownership could not be made the basis of extending the social security benefits to employees of a. sister concern, although they are no: working in connection with the notified establishment. Similarly the benefit could not be extended to employees simply described as working in the head office of the organization or establishment concerned, unless as proper inquiry is held to establish whether they are indeed working in connection with the notified establishment.
Mr. Ali Ahmad Fazeel drew our attention to certain items in the Notification of the 15th October, 1968, in which the Head Office Establishment had been separately notified, and argued that without such separate notification the employees of the head office could not at all be included in the benefits. The argument is untenable for the reason that such a departmental construction of the statute, although relevant is not binding on the Court. (See PLD 1960 SC 195 and PLD 1965 SC 412). Secondly, it appears that once the Head Office establishment is separately notified, then the question whether it has any nexus with the other notified establishment of the same company or employer becomes irrelevant, for in such a case the employees concerned would be covered by the fact of notification, thus, still leaving open the question of the true interpretation 'and scope of the terms 'employee' and 'establishment'.
It seems to me, therefore, that the correct position in law is that the specified benefits under the Ordinance would accrue to all employees of the notified establishment who are working either in the establishment or in connection with the work of the same The latter category of employees may not be physically located at the notified address, but in that event an inquiry would be necessary to establish whether they are in fact working in connection with the work of the notified establishments would not establish such annexes or connection. It needs to be further clarified that the connection must be with the work of the notified establishment, as indicated in the statutory definition, thus, requiring an exact description and appreciation of the nature of the work carried on in the establishment and by the disputed employees.
On this view of the matter it is necessary that an inquiry should be held by the Social Security Institution in both these cases to establish the identity of persons working in the head offices of the two notified establishments who can -be described as employees working in connection with the work of the establishments concerned, only such employees would fall within the ambit of the notification and the other persons working in the head office would stand excluded.
Mr. Ali Ahmad Fazeel stated at the bar that out of 150 employees working in the premises of the head office of the Kohinoor Chemical 57 only were in the. pay roll of this company and even out of these only 48 were in receipt of salary up to Rs.1,000, the - remaining nine being beyond the ambit of the Social Security Ordinance on account of being in receipt of higher salaries. He contended that out of the 48 workers in question very few could be said to be directly working in connection with the work of the notified establishment in view of the conclusion reached by us in the preceding paragraph it is not necessary for us to express any opinion on, this point as the matter will have to be determined by a proper inquiry."
The Hon'ble Supreme Court disposed of both the said appeals in terms of the following conclusions;--
For the foregoing reasons I would hold that:--
(1) Once an establishment is notified under section 1(3) of the Ordinance then the specified benefits under the Ordinance would accrue to all employees of the said establishment who are working either in the establishment or in connection with the work of the same. The latter category of employees may not be physically located at the notified address, but in that event an inquiry would be necessary to establish whether they are in fact working in connection with the work of the notified establishment. Such an inquiry should now be undertaken by the social security institution with regard to the employees working in the head offices of both the establishments involved in these appeals.
(2) On the issuance of the necessary notification the obligation is squarely placed in the employer to furnish the necessary returns to the Institution and to pay the prescribed contributions in respect of its own share and to realize the same from the employees, and credit the proceeds to the fund of the Institution. This liability to pay the contribution is not dependent upon the issuance of any notices of demand by the institution and the employer cannot be permitted to take advantage of his own default.
(3) As regards the employees a distinction has to be made in view of the fact that the legislation is intended for their benefit and if they have been prevented from making the contributions or availing of the benefit concerned owing to a default in the part of the employer, then it would not be in accordance with the spirit of the legislation to realise past contributions from the employees for the said period during which they were not treated as secured workers; and
(4) The arrears of contributions may not be realised from an employer? for the period during which .he had made alternative arrangements for affording the necessary benefits to the employees and had made a contribution in that behalf at least equal to the rate prescribed under the Ordinance and the Rules and Regulations framed there under. Otherwise the realization of arrears would mean a double levy on the employer, without any corresponding benefits to his employees. However, The existence of any such adequate alternative arrangements must be established to the satisfaction of the social security institution.
"The upshot of the above discussion is that right of appeal conferred is on the Social Security Court by section 59 of the Ordinance is by statute limited to matters enunciated in section 57 of the Ordinance. A further appeal on a substantial question of law to High Court under section 64 of the Ordinance does not enlarge rather it limits the scope of appeals arising an adjudication under section 57 of the Ordinance. Constitutional question of the vires of enacted law and notifications there under could not be agitated under section 57? before the Social Security Institution or in appeal under section 59 before the Social Security Court in further appeal under section 64 before the High Court. In any case, the enacted law (section 1, subsection (3)) is not ultra vires for its repugnance with Article 25 of the Constitution. As the challenge to the Government's notification under section 1, subsection (3) of the Ordinance necessarily involves the examination of certain controverted facts and determination thereof it cannot take place in the absence of the Government and the parties in whose favour discrimination was alleged for they could possibly demonstrate that their cases were not similar but distinguishable. "
section 1 of the West Pakistan 'Employees' Social Security Ordinance. 1965 (X of 1965), there was any room left for holding that M/s. Cowasjee and Sons (Lighters) was a separate establishment within the, meaning of the Ordinance.
The Social Security Court held that M/s. Cowasjee & Sons (Lighters) were not liable under the notification referred to above. The order was upheld by the High Court and the Hon'ble Supreme Court dismissed the appeal with the following observations:--
"Section 1 of the Ordinance is reproduced hereunder:--
(1) Short title extent commencement and application.--(1) This Ordinance may be called the Provincial Employees' Social Security Ordinance. 1965.
(2) It extends to the whole of Pakistan.
(3) It shall come into force at once but shall apply only to such areas, classes of persons, industries or establishment from such date or dates and with regard to the provision of such benefits as Government may, by notification, specify in this behalf."
An examination of subsection (3) of section 1 of the Ordinance as reproduced above makes it clear that a notification under it can be by reference to any one or more of the indicators contained therein i.e., the specified areas, the specified classes of persons, the specified industries or establishments. Besides the dates could vary in respect of the benefits allowed. In the case before us the only two things specified were the area and the industry or establishment. There are again three indicators in the specific notification in respect of the respondent which show that in the matter of industry or establishment each of its activity was taken to be distinct and separate notwithstanding the identical umbrella of the proprietorship which was a partnership. If the idea was to cover the partnership in all its manifold industrial and commercial activity then the notification should have shown as M/s. Cowasjee & Sons and should not have mentioned M/s. British India Engineering Works or treated the two as separate for purposes of notification; This separation in the notification clearly indicates that the various activities of the same partnership were distinguished one from the other and the partnership as such was not the subject-matter of the notification.
Secondly it appears to be normal reasonable approach also to the power conferred and exercised. Such a notification has to be preceded on the administrative side by a survey of the range of commercial and industrial activity and identification of those, which can and ought to be brought under the cover of social security. It is assumed that this antecedent step had been taken. The learned counsel for the appellant, however, contends that no such survey was undertaken or completed and it was just by the general appearance. of the industrial and commercial activity carried down by these organizations or concerns in a particular locality that they were notified. If that was so then it was a hasty and a sudden and swift act which is likely to land the institution in such confusions.
Thirdly, the institution itself from 1972 to 1976 was not aware nor did it bring within its cover under this notification, M/s. Cowasjee & Sons (Lighters). It was only in 1978 that it became aware of what it considered to be the proper scope, purpose and effect of notifying M/s. Cowasjee & Sons. Such an inference is not supportable either on the language of the notification or by bringing within its net both M/s. Cowasjee and Sons and M/s. British India Engineering Works from 1972 to 1978.
It is true that the notification under Ordinance have to be liberally construed and the benefit to be extended to the largest number of persons. This is so where the two interpretations of a notification are possible. It cannot on the basis of such a rule of interpretation be urged that the establishment covered by notification being one by interpretation it should be so extended to include more than one. The proprietary interest or ownership being not the test in the notification but the commercial activity as such the notification cannot be given the extended meaning, which the learned counsel for the appellant seeks. "
H.B.T./G-151/1?????????????????????????????????????????????????????????????????????????????????? Petition allowed.
2000 P L C 79
[Lahore High Court]
Before Sayed Najam-ul-Hasan Kazmi, J
RAUF YOUSAF
Versus
BAHADAR ALI, MEMBER, NATIONAL INDUSTRIAL
RELATION COMMISSION, LAHORE BENCH, II EGERTON ROAD, LAHORE and others
Writ Petition No.27740 of 1997, heard on 15th November, 1999.
Industrial Relations Ordinance (XXIII of 1969)--
----S.22-D---Constitution of Pakistan (1973), Art .199---Constitutional petition---Maintainability---Available alternate remedy not resorted to--Effect- --Constitutional petition against order passed by National Industrial Relations Commission before availing remedy of appeal as provided under S.22-A of Industrial Relations Ordinance, 1969---Contention of petitioner was that since Full Bench oil National Industrial Relations Commission had expressed some opinion in another case, petitioner in good faith had opted to challenge order directly in Constitutional petition instead of exhausting remedy of appeal against said order---Validity---Mere fact that Full Bench of National Industrial Relations Commission had decided certain other cases on the subject and had expressed opinion, would not mean that petitioner could file Constitutional petition directly instead of availing alternative remedy of appeal---Appellate jurisdiction would include jurisdiction to determine the issue afresh by taking into consideration legal and factual controversy---If petitioner would feel that his case was distinguishable or that earlier view was not correct, he could address his argument to persuade the National Industrial Relations Commission for a different view, in accordance with law---Constitutional petition could not be entertained in presence of available alternative remedy of appeal.
Ch. Riaz Ahmed for Petitioner.
Muhammad Sahir Ali for Respondents.
Date of hearing: 15th November, 1999.
JUDGMENT
In the course of hearing of this petition, it was observed that the order passed by N.I.R.C. was not challenged in appeal, though the appeal was maintainable under the provisions of section 22-D of Industrial Relations Ordinance, 1969.
Learned counsel for the petitioner did not deny that no appeal was filed, though the remedy of appeal was available against order of which the petitioner was aggrieved. Learned counsel explained that since the Full Bench of N.I.R.C. had expressed some opinion in other case, therefore, petitioner, in good faith, opted to challenge the order directly in the Constitutional petition instead of exhausting the remedy of appeal against the said order.
Mere fact that Full Bench of N.I.R.C. had decided certain other cases on the subject and had expressed opinion, would not mean that the petitioner should file the Constitutional petition, directly instead of availing the alternate remedy. The appellate jurisdiction includes the jurisdiction to determine the issue, afresh by taking in consideration legal and factual controversy. If the petitioner feels that his case is distinguishable or that earlier view was not correct, petitioner can address his arguments to persuade to the Bench, for a different view, in accordance with law. Be that as it may, in the presence of available alternate remedy of appeal, writ petition cannot be entertained. The petitioner shall, therefore, in the first instance, avail the remedy of appeal, which if filed will, of course, be decided on its own merit and in accordance with law, by considering all the objections which the petitioner has raised in this writ petition. Be that as it may, since in this case the petitioner had pursuing the matter in the Constitutional jurisdiction and during this period, the limitation for filing of appeal expired, the appellate Bench of N.I.R.C., shall, therefore, consider the question of limitation sympathetically and shall condone the delay due to the consumption of tune in pursuing the matter in the writ petition. Learned counsel for the respondents frankly conceded that if a request for condonation of delay is made, respondents will not oppose the same and will welcome the decision on merit.
This petition is, therefore, disposed of with the observations that the petitioner may avail the remedy of appeal, which appeal, if filed, shall be decided on merit and in accordance with law by the appellate Bench of N.I.R.C., by taking sympathetic view in condonation of limitation.
H.B.T./R-115/L Order accordingly.
2000 P L C 81
[Lahore High Court]
Before Syed Jamshed Ali, J
MUNICIPAL COMMITTEE, GOJRA through Administrator
Versus
Mst. TASNEEM AKHTAR and 2 others
Writ Petitions Nos.808, 810, 812, 813 and 814 of 1995, decided on 19th November, 1999.
(a) Industrial Relations Ordinance (XXIII of 1969)---
----Ss. 35 & 38---Constitution of Pakistan (1973), Art.199---Question of jurisdiction of Labour Court---Constitutional jurisdiction, exercise of--Respondent had contended that objection with regard to jurisdiction of Labour Court not raised by employers either before Labour Court or before Labour Appellate Tribunal could not be allowed to be raised for the first time in Constitutional petition---Validity---Question of law could be raised at any stage of proceedings---Question of jurisdiction raised by petitioner which went to the root of the case, could also be raised at any stage of proceedings, even before highest Court.
Islam Din and 7 others v. Naseer-ud-Din 1995 SCMR 906; Habib Bank Ltd, v. Sindh Labour Court No.1 and others 1987 PLC 552; Mst. Kubra Bibi and another v. Abdul Haq and 7 others 1983 SCMR 737; Mst. Ghulam Fatima v. Muhammad Hussain and 5 others PLD 1976 SC 729; Midway House (Pvt.) Ltd., Karachi v. Sindh Labour Appellate Tribunal and 2 others 1992 PLC 916; The Management of Municipal Committee, Mianwali v. The General Secretary, Municipal Muharrirs' Union and another PLD 1968 Lah. 395; State Bank of Pakistan, Lahore through Chief Manager v. Ch. Muhammad Akhtar and 2 others 1998 PLC 506; Punjab Small Industries Corporation v. Punjab Labour Appellate Tribunal, Lahore and others 1988 SCMR 1725; Pakistan Television Corporation v. M. Babar Zaman and others 1989 SCMR 1549; National Shipping Corporation v. Sindh Labour Appellate Tribunal and 2 others 1975 PLC 1; I.C.P. Employees' Front, Karachi through-General Secretary v. Presiding Officer, Vth Sindh Labour Court, Karachi and another PLD 1976 Kar. 1176; Mahaprasad Singh and others v. Ramani Mohan Singh and others AIR 1914 PC 140; Dr. Zulfiqar Haider v. Riaz Mahmud PLD 1992 SC 238; Shagufta Begum v. The Income Tax Officer, Cirlce-XI, Zone-B, Lahore PLD 1989 SC 360 and Haji Abdullah Khan and others v. Nisar Muhammad Khan and others PLD 1965 SC 690 ref.
(b) Administration of justice--
----Principles---Court or Tribunal before whom lis was brought had to apply correct law and administration of justice according to law, could not be left to the litigants and their counsel.
Ali Muhammad and others v. Muhammad Shafi and others PLD 1996 SC 292 ref.
(c) Industrial Relations Ordinance (XXIII of 1969)--
----Preamble, Ss. 2(xxviii) & 25-A---Nature and object of Industrial Relations Ordinance, 1969---Grievance petition---Maintainability---Industrial Relations Ordinance, 1969, was basically a beneficial legislation and its object was to ameliorate the conditions of workers---Such Ordinance had to be construed liberally and beneficially and a restricted construction of provisions of Industrial Relations Ordinance, 1969, would defeat manifest intention of Legislature---Employees of an Urban Local Council who were not performing any regal functions and were not excluded by definition of a "worker" or "workman" as defined in Industrial Relations Ordinance, 1969, could invoke provision of S.25-A of the Ordinance for redressal of their individual grievances.
(d) Industrial Relations Ordinance (XXIII of 1969)
----Ss.35 & 38---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O. 1(b)---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Permanent workman--Labour Court and Labour Appellate Tribunal, had on the basis of evidence, found that respondent/employee was employed against permanent post--Labour Appellate Tribunal had further found that procedure adopted by employer in appointing a respondent periodically for ninety days or less with a gap of one or two days after appointment, was in circumvention of law and could not be countenanced---Contention, that employee was employed on purely temporary basis and could not be declared as a permanent workman, had no merit in circumstances.
Abdul Majid Sheikh v. Mushaffe Ahmed and another PLD 1965 SC
208 and Pakistan International Airlines v. Sindh Labour Court No.5 and others PLD 1980 SC 323 ref.
(e) Industrial Relations Ordinance (XXIII of 1969)--
----S. 25-A---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O. 12(3)---Termination of service without formal order of termination---Services of employee were terminated without formal order of termination---Legality---Standing Order 12(3) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, provided that services of a workman would not be terminated nor would a workman be removed, retrenched, discharged or dismissed from service except by an order in writing which would explicitly state reasons for such action taken---Oral order discharging employee from service by employer was illegal.
(f) Industrial Relations Ordinance (XXIII of 1969)---
----Ss.2(xxviii) & 25-A---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(i) & S.0.12(3)---"Worker" or "workman"---Removal from service---Grievance petition---Maintainability---Unless removal of a worker was related to industrial dispute he could not be said to be a "worker" or "workman" but by virtue of S.O. 12(3), West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and amended by Industrial and Commercial Employment (Standing Orders) (Amendment) Act (XXIII of 1973), it was provided that a workman aggrieved by termination of his service or removal, retrechment, discharge or dismissal could take an action in accordance with provisions of S.25.A, Industrial Relations Ordinance, 1969 and thereupon provision of said section could apply as they applied to redressal of individual grievance---When dismissal etc. of a workman was not related to an industrial dispute, he could invoke provisions of S.25-A, Industrial Relations Ordinance, 1969, in circumstances.
Messrs Siemens Pakistan Engineering Company Ltd., Karachi v. Shahzad Saleem and 5 others 1997 PLC 44 and Secretary to Government of N.-W.F: P. Zakat/Social Welfare Department, Peshawar and another v. Sadullah Khan 1996 SCMR 413 ref.
Jaffar Hussain Jaffri for Petitioner. Munawar Ahmed Javed for Respondents
Date of hearing: 26th October, 1999.
JUDGMENT
This judgment will dispose of Writ Petitions Nos.810, 812, 813 and 814 of 1995 as common questions of law and fact are involved in all these cases. All the petitions are directed against the orders passed by the learned Labour Court and the learned Labour Appellate Tribunal directing reinstatement of respondent No. l in each case.
In Writ Petitions Nos.808, 811, 813 and 814 of 1995, respondent No. l was employed by the petitioner Municipal Committee as PTC Teacher while Writ Petition No.810 of 1995 involves a vaccinator and Writ Petition No.812 of 1995 involves an Octroi Clerk. All these appointments were made on temporary basis for a period of 90 days which were extended from time to time and after the last extension expired respondent No. l was verbally told that his services were no longer required.
Respondent No.1 filed a grievance petition before the learned Labour Court which was allowed vide order, dated 19-3-1992. Separate appeals were taken by the petitioner before the learned Punjab Labour Court Appellate Tribunal which were dismissed on 24-10-1994. The learned Labour Court and the learned Labour Appellate Tribunal found that by virtue of his continuous appointment for more than nine months respondent No.l had acquired the status of a permanent workmen and, therefore, his services could not be terminated by an oral order. It was also found that the contesting respondent was appointed against a permanent post.
The learned counsel for the petitioner has contended that the petitioner, which is local body, is not an "Establishment" or an "Industry" within the meaning of clauses (ix) and (xiv) of the Industrial Relations Ordinance (No.XXIII of 1969) nor the contesting respondent was a "workman", and therefore, the learned Labour Court had no jurisdiction, He next contended that the contesting respondent was appointed on purely temporary basis and extension was allowed on his own request and, therefore, the learned Labour Court had no jurisdiction to convert a temporary/ad-hoc appointment into a permanent appointment. He next contended that the contesting respondent was not appointed in the prescribed manner and, therefore, no right accrued in his favour to claim permanent appointment.
The learned counsel for the contesting respondent has submitted that the order passed by the learned Labour Court was implemented and acted upon. Reference was made to the order Annexure 'R.1' and the entry in the service book ' Annexure R.2' and that substantial justice having been done, no case was made out for interference in exercise of discretionary Constitutional jurisdiction. Reliance was placed on M/s Siemens Pakistan Engineering Company Ltd., Karachi v. Shahzad Saleem and 5 others (1997 PLC 44 (SC). He next contended that the appointment of the contesting respondent was made against a permanent post and if the petitioner Committee had violated the rule in making temporary/ad-hoc appointment it could not be allowed the benefit of its own lapses. Reliance was placed on Secretary to Government of N.-W.F.P. Zakat/Social Welfare Department, Peshawar and another v Sadullah Khan (1996 SCMR 413). He next contended that after appraising the evidence, the learned Labour Court and the learned Labour Appellate Tribunal have reached a concurrent conclusion that the contesting respondent appointed against a permanent post and was, therefore, a permanent workman in accordance with the provisions of Standing Orders No.1 of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and, therefore, no interference is called for.
Attending to the objection of the learned counsel for the petitioner as to the jurisdiction of the learned Labour Court he contended that the question was not raised before the learned Labour Court and the learned Tribunal and, therefore, cannot be allowed to be raised for the first time in Constitutional jurisdiction. In support of this submission he placed reliance on Islam Din and 7 others v. Naseer-ud-Din (1995 SCMR 906), Habib Bank Ltd. v. Sindh Labour Court No. L and others (1987 PLC 552), Mst. Kubra Bibi and another v. Abdul Haq and 7 others (1983 SCMR 737), Mst. Ghulam Fatima v. Muhammad Hussain and 5 others (PLD 1976 SC 729) and Midway House (Pvt.) Ltd. Karachi v. Sindh Labour Appellate Tribunal and 2 others (1992 PLC 916).
He also placed reliance on The Management of Municipal Committee, Mianwali v. The General Secretary, Municipal Muharrirs' Union and another (PLD 1968 Lahore 395), State Bank of Pakistan, Lahore through Chief Manager v. Ch. Muhammad Akhtar and 2rothers (1998 PLC 506 (SC), Punjab Small Industries Corporation v. Punjab Labour Appellate Tribunal Lahore and others (1988 SCMR 1725), Pakistan Television Corporation v. M. Babar Zaman and others (1989 SCMR 1549), National Shipping Corporation v. Sindh Labour Appellate Tribunal and 2 others (1975 PLC 1), I.C.P. Employees' Front, Karachi through its General Secretary v. Presiding Officer, Vth Sindh Labour Court, Karachi and another (PLD 1976 Karachi 1176) to contend that the Industrial Relations Ordinance applied to a Municipal Committee, State Bank of Pakistan, PTV Corporation, Punjab Small Industries Corporation, the National Shipping Corporation and the Investment Corporation of Pakistan.
I have considered the submissions made by the learned counsel for the parties. As far as the objection to the jurisdiction of the learned Labour Court is concerned, it does not appear to have been raised either before the learned Labour Court or before the learned Labour Appellate Tribunal. The judgments cited by the learned counsel for the contesting respondent that it cannot be allowed to be raised for the first time in Constitutional jurisdiction apparently support his contention. However, in number of cases it, was held that a question of law could be raised even for the first time at any stage of the proceedings. Here the question being raised is one of jurisdiction and goes to the very route of the case. In the following cases it was held that a question of law can be raised at any stage of the proceedings, even before the highest Court:--
(i) Maha Prasad Singh and others v. Ramani Mohan Singh and others (AIR 1914 Privy Council 140);
(ii) Dr. Zulfiqar Haider v. Riaz Mahmud (PLD 1992 SC 238);
(iii) Shagufta Begum v. The Income Tax Officer, Cirlce-XI, Zone-B, Lahore (PLD 1989 SC 360) and
(iv) Haji Abdullah Khan and others v. Nisar Muhammad Khan and others (PLD 1965 SC 690).
In Ali Muhammad and others v. Muhammad Shafi and others (PLD 1996 SC 292) it was held that consent cannot confer jurisdiction if a Court has none. I may observe that it is the duty of the Court or Tribunal before whom a lis is brought to apply the correct law and administration of justice according to law cannot be left to the litigants and their learned counsel. I may also refer to the following observations of the Hon'ble Supreme Court in Board of Intermediate and Secondary Education v. Mst. Salina Afroze and 2 others (PLD 1992 SC 263) "that a Judge must know the adage that a Judge must wear all the laws of the country on the sleeve of his robe and failure of the counsel to properly advise him is not a complete excuse in the matter". The objection of the learned counsel for respondent No.1 is, therefore, repelled.
"(17)The result of the discussion may be summarized thus; (1) The definition of 'Industry' in the Act is very comprehensive. It is in two parts, one part defines it from the stand point of the employer and the other from the standpoint of the employee. If an activity falls under either part of the definition, it will be an industry within the meaning of the Act. (2) The history of industrial disputes and the legislation recognizes the basic concept that the activity shall be an organized one and not that which pertains to private or personal employment. (3) The regal functions described as primary and inalienable functions of State though statutorily delegated to a Corporation are necessarily excluded from the purview of the definition. Such regal functions shall be confined to legislative power. (4) If a service rendered by an individual or a private person would be an industry, it would equally be an industry in the hands of a Corporation. (5) If a service rendered by a Corporation is an industry, the employees in the departments connected with the service, whether financial, administrative or executive, would be entitled to the benefits of the Act. (6) If a department of a municipality discharges many functions, some pertaining to industry as defined in the Act and other non-industrial activities, the predominant functions of the department shall be the criterion for the purpose of the Act."
The functions of an Urban Local Council have been classified as compulsory and optional in the Punjab Local Government Ordinance (No.VI), 1979. Sections 52 to 87 prescribe the compulsory functions while sections 88 to 125 prescribe optional functions. The compulsory functions are Public Health, Water Supply, Drainage, Private Markets, Slaugter House, Animals and Cattle, Education, Public Safety, Town Planning, Street Lights, Arboriculture, Social Welfare and Community Development, while the optional functions include Public Health, Dhobi Ghats, Ferries, Public Water Course, Fisheries, Supply of Milk, Public Markets, Animal Husbandry, Public Safety, Trees, Parks, Gardens and Forests, Culture, Education, Social Welfare, Urban Local Council, Police. The predominant function of an Urban Local Council is, therefore, provision of services. This may or may not be for the purpose of making profit.
As observed by the Hon'ble Supreme Court in the case of Agriculture Worker Union (supra), the Industrial Relations Ordinance, is basically a beneficial legislation. Its object, inter alia, is to ameliorate the conditions of workers and, therefore, such legislation has to be construed liberally and beneficially and a restricted construction of the provisions of the I.R.O. would defeat the manifest of the legislature. I am, therefore, of the view that the employees of an Urban Local Council who are not performing any regal functions and are not excluded by the definition of a "Worker" or "Workmen" as defined in the Industrial Relations Ordinance 1969, can invoke the provisions of section 25-A of the I.R.O. for redressal of their individual grievances, Therefore, the objection of the learned counsel that the petitioner Committee was not in "industry" or that respondent No. l was not a workman has no merit and is repelled.
As far as the other contentions of the learned counsel that respondent No. l was employed on purely temporary basis and, therefore, could not be declared as a permanent workman, it has no merit either. The learned Labour Court and the learned Labour Appellate Tribunal, have on the basis of evidence, found that respondent No. l was employed against a permanent post. It was further held by the learned Labour Appellate Tribunal that the procedure adopted by the petitioner Committee in appointing respondent No.1 periodically for 90 days or less with a gap of one or two days, after every appointment is obviously in circumvention of law and cannot be countenanced. In reaching this conclusion judgments of the Hon'ble Supreme Court in Abdul Majid Sheikh v. Mushaffe Ahmed and another (PLD 1965 SC 208) and Pakistan International Airlines v. Sindh Labour Court Nb.5 and others (PLD 1980 SC 323) were, inter alia, relied upon. The view taken by the Hon'ble Supreme Court in the case of Secretary to Government of N.W.F.P. Zakat/Social Welfare Department, Peshawar and another (supra) also supports the contention of the learned counsel for the petitioner.
There is yet another aspect of the matter. Undisputedly, no formal order dispensing with the services of respondent No.1 was passed. According to Standing Order No.12(3) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 the services of workmen cannot be terminated nor shall a workmen be removed, retrenched, discharged or dismissed from service except by an order in writing which shall explicitly state reasons for the action taken. The impugned oral order discharging respondent No. l from the service of petitioner Committee was, therefore, plainly illegal on this score as well.
While examining various provisions of Industrial Relations Ordinance and the Standing Orders Ordinance, I noticed that the definition of a "worker" and "workman" includes a person who has been dismissed, discharged, retrenched, laid off or otherwise removed from employment "in connection with or as a consequence of industrial dispute or whose dismissal, discharge, retenchment, lay off or removal has led to that dispute". The words underlined by me tend to show that unless removal etc. of a worker was related to a industrial dispute, he could not be said to be a "worker." or "workman". However, by virtue of amendment of Standing Order No. 12(3) by virtue of Act XXIII of 1973, it was provided that a workman aggrieved by termination of his services or removal, retrenchment, discharge or dismissal may take an action in accordance with the provisions of section 25-A of the Industrial Relations Ordinance, 1969 and thereupon the provision of the said section shall apply as they apply to the redress of an individual grievance. Therefore, even when dismissal etc. of a workman is not related to an industrial dispute, he can invoke the provision' of section 25-A of the Industrial Relation Ordinance.
I see no merit in this petition, which is, accordingly, dismissed. The parties are left to bear their own costs.
H.B.T./M-1258/L Petition dismissed
2000 P L C 99
[Lahore High Court]
Before Ch. Ijaz Ahmad. J
HAROON-UR-RASHEED---Petitioner
Versus
RAFHAN MAIZE PRODUCTS CO. LTD. through the Personnel/Factory Manager, Faisalabad and 2 others
Writ Petition No. 12971 of 1994, heard on 3rd November, 1999.
(a) Industrial Relations Ordinance (XXIII of 1969)--
----S.25-A---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O. 15(3)(b) & (4)--Constitution of Pakistan (1973), Art. 13---Allegations of theft---Dismissal from service---Criminal proceedings and departmental action against employee---Employer issued charge-sheet against employee and also got registered criminal case against him---Employee had contended that he having been acquitted of the charge of theft against him in appeal, departmental action of employer against him was in violation of Art.13 of Constitution of Pakistan (1973)---Validity---Contention of employee was repelled because criminal proceedings and departmental action could go side-by-side and could even end in varying results.
1991 SCMR 209; 1989 SCMR 333; 1999 SCMR 316; 1996 SCMR 315; 1993 SCMR 2177; 1990 SCMR 1713; 1993 SCMR 511; 1993 SCMR 618; 1980 SCMR 139; PLD 1970 SC 39; 1981 SCMR 291; 1981 SCMR 758; 1989 SCMR 918; 1980 SCMR 933; PLD 1981 SC 476; 1975 SCMR 46 and 1993 SCMR 2177 ref.
(b) Industrial Relations Ordinance (XXIII of 1969)---
----S.38(3)---Constitution of Pakistan (1973), Art. 199---Constitutional jurisdiction, exercise of---Labour Appellate Tribunal having given finding of fact against petitioner after proper appreciation of evidence, High Court in exercise of its constitutional jurisdiction had no power to substitute its own decision in place of decision of Labour Appellate Tribunal.
PLD 1973 Lah. 600 ref.
(c) West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)-
----S.O.15(3)(b) & (4)---Misconduct---Dismissal on allegation of theft--Non-supplying of inquiry report to employee---Effect---Dismissal 0f employee on .ground of misconduct without supplying enquiry report to employee, was against principle of natural justice and bad in law.
PLD 1967 Lab. 1138; 1991 SCMR 2300; Mehr Suleman's case PLD 1979 Kar. 257; Punjab Road Transport Corporations' case 1973 SCMR 455; Mir Muhammad's case PLD 1981 SC 176; Muhammad Sharif's case PLD 1981 SC 246 and Abdur Rehman Bajwa's case PLD 1981 SC 522 ref.
Shahid Hussain Qadri for Appellant. Munawar A. Javed for Respondents.
Date of hearing 3rd November, 1999.
JUDGMENT
Brief facts out of which the present writ petition arises are that respondent issued charge-sheet to the petitioner on 6-2-1990 and also got registered a case against the petitioner and others in Police Station Peoples Colony Faisalabad on 26-1-1990. Petitioner submitted reply of the charge sheet controverted the allegations leveled in charge-sheet on 18-2-1990. The respondent terminated the services of the petitioner vide order, dated 27-3-1990. Petitioner sent notice to the respondent under section 25 of I.R.O. On 28-3-1990 the respondent did not send reply of the notice. Petitioner filed petition before Punjab Labour Court No. 4 under section 25-A of I.R.O. of 1969. The respondent submitted reply controverted the allegations leveled in the petition. Learned Punjab Labour Court No.4 accepted the petition of the petitioner vide judgment, dated 30-4-1992. The respondent being aggrieved, filed appeal before the Punjab Appellate Tribunal who accepted the same vide judgment, dated 24-10-1994. Hence the present writ petition.
1991 SCMR 209
1996 SCMR 315 , 1993 SCMR 2177
He further stated that charge-sheet was not time-barred as P.W.2 Muhammad Sharif informed the shortage on 11-1-1990, 12-1-1990 and 16-1-1990 and the respondent got registered a case against the petitioner and others on 26-1-1990. He further stated that Rana Muhammad Ayub has given affidavit to the respondent on 23-1-1990 that petitioner has stolen the disputed property and sold the same to Shahzad Qamar and others. Respondent issued charge-sheet to the petitioner on 6-2-1990. He further stated that stolen property in question was recovered on the pointation of the petitioner on 3-2-1990. He further stated that the first appellate Court has given finding of fact against the petitioner after proper appreciation of evidence and this Court has no jurisdiction to disturb the finding of fact and he relied upon the following judgments:--
1990 SCMR 1713.
1993 SCMR 511.
1993 SCMR 618.
1980 SCMR 139.
PLD 1970 SC 39
1981 SCMR 291 /758
1989 SCMR 918:
1980 SCMR 933.
PLD 1981 SC 476.
1975 SCMR 46.
1989 SCMR 333.
1999 SCMR 316.
1996 SCMR 315.
1993 SCMR 2177
The contention of the learned counsel for the petitioner has no force. Similarly the contention of the learned counsel for the petitioner that the charge-sheet was served on petitioner after one month has no force as the first appellate Court has given finding of fact against the petitioner after proper appreciation of evidence. Petitioner submitted an application before the Personal Manager of the respondent requesting for change of the Inquiry Officer has also no force as the first appellate Court has given finding of fact against the petitioner after proper appreciation of evidence in' para.6. This Court has no jurisdiction to substitute its own decision in place of the decision of the Tribunal below as the principle laid down by the Division Bench of this Court in Massaduq's case PLD 1973 Lahore 600. The sole question remained to be resolved between the parties whether the inquiry was conducted by the respondents in accordance with the principle laid down by the superior Court or not. It is pertinent to mention here that petitioner sent notice to the respondents under section 25-A, of I.R.O. 1969 which reveals that inquiry report was not provided to the petitioner. Petitioner appeared before the Labour Court and stated in his statement in the following terms:--
The respondent failed to cross-examine him on this particular point Therefore, the same is to be accepted by the respondents as the principle laid down in the following judgments: --
PLD 1967 Lahore 1138.
1991 SCMR 2300.
Coupled with the fact that R.W.1 Maqbool Ahmad Alvi admitted in cross-examination in the following terms:-----
It is pertinent to mention here that petitioner has taken specific ground by sending notice to the respondent under section 25-A of I.R.O., 1969 and also taken this ground in para. 3(V). The respondents in reply simply denied this' fact. It is settled proposition of law that dismissal of an employee without supplying inquiry report being against principle of natural justice is bad in law. I am fortified by Mehr Suleman's case PLD 1979 Karachi 257 and 1973 SCMR 455 (Punjab Road Transport Corporation's case). The aforesaid proposition was also considered by the Hon'ble Supreme Court in Syed Mir Muhammad's case (PLD 1981 SC 176) and observed as under:--
"A copy of inquiry report was not supplied to the accused and he was not allowed an opportunity to submit his explanation with regard to the findings of the Inquiry Officer.
We consider, therefore, that the Service/Tribunal should have allowed the appeal and set aside the order of removal passed against the appellant, leaving it open to the relevant authorities to proceed from the stage from which the error could be corrected; namely, by supplying a copy of the findings of the Inquiry Officer to enable the appellant to submit his explanation in regard to the material brought against him during the enquiry proceedings and the opinion formed in respect thereof by the Inquiry Officer, as well as the action proposed to be recommended by the Authorised Officer."
The Punjab Labour Appellate Tribunal did not consider this aspect of the case and decided the same in violation of the law laid down by the Hon'ble. Supreme Court. Therefore, writ petition is maintainable as the principle laid down by the Hon'ble Supreme Court in the following judgments:--
PLD 1981 SC 246 (Muhammad Sharif's case).
PLD 1981 SC 522 (Abdur Rehman Bajwa's case).
In view of what has been discussed above, the writ petition is accepted and the judgments of both the Courts below are set aside and the case is remanded to the respondents by supplying a copy of the finding of the Inquiry Officer to the petitioner to enable him to submit his explanation in regard to the material brought against him during the inquiry proceedings and the opinion formed in respect thereof by the Inquiry Officer. The respondents are directed to conclude the inquiry within two months after receiving the order of this Court.
H.B.T./H-94/L Petition accepted
2000 P L C 104
[Lahore High Court]
Before Karamat Nazir Bhandari, J
ALLIED BANK OF PAKISTAN WORKERS UNION through General Secretary
Versus
REGISTRAR OF TRADE UNIONS, PUNJAB, 62-D, New Muslim Town, Lahore and 2 others
Writ Petition No.25848 of 1998, decided on 25th October, 1999.
(a) Industrial Relations Ordinance (XXIII of 1969)---
---- Ss. 5, 6, 7 & 22-A(8)(d)(e)---Trade Union, registration of ---Procedure-- Registration of trade union operating at national or at industry-wise level and trade union whose activities are restricted to either smaller territories or a single establishment or group of establishments---Distinction---Trade Unions of former type are registered by N.I.R.C. under S.22-A(8)(d)(e) of the Industrial Relations Ordinance, 1969, while the second category is registered by Registrar, Trade Unions, in terms of Ss. 5, 6 & 7 of such Ordinance.
(b) Industrial Relations Ordinance (XXIII of 1969)---
----S. 22---Constitution of- Pakistan (1973), Art.199---Constitutional petition --Collective Bargaining Agent---Holding of referendum ---Non-issuance of notice to trade union for participation in referendum ---Validity--Trade Union was registered at national level and referendum was to be held to determine Collective Bargaining Agent for local level---Employees of establishment at local level might become members of any union operating at local as well as national level---Such commonality alone, however, would not entitle any trade union operating at national level to participate in referendum to be held for determination of Collective Bargaining Agent for local or regional or circle level---Where the union was not a registered trade union in the establishments or group of establishments located in local circle, such union could not participate in referendum for local circle of the establishment.
Ch. M. Khalid Farooq for Petitioner. Muhammad Amin Lone, Asstt. A.-G. for Respondent No. 1. Farooq Zaman Qureshi for Respondent No.2.
Date of hearing: 15th October, 1999.
JUDGMENT
The petitioner Union throws challenge to the order, dated 12-12-1998 issued by Registrar of Trade Unions, respondent No. 1, by which order the Registrar proposes to hold referendum to determine the Collective Bargaining Agents for the Lahore Circle of Allied Bank of Pakistan Limited The impugned order records that earlier the injunction order was issued by learned Member, National Industrial Relations Commission, (hereinafter referred to as NIRC on 2-12-1998, which stands recalled, hence there is no hitch in holding the referendum.
It is asserted that the petitioner is a Union of the Bank Employees Registered at national level, it has its membership within the Lahore Circle and consequently notice to participate in the referendum ought to have been issued to the petitioner-Union also. It is prayed that because no such notice has been issued, the proposed holding of referendum by the Registrar is without legal authority.
In its comments, respondent No.1 has stated that in the Lahore Circle only two Unions are registered who are respondents Nos.2 and 3 and notice was, therefore, issued to these respondents inviting them to participate in the referendum. It is claimed that the action of the respondent is absolutely covered by the letter of law. In its reply respondent No.2 has maintained that petitioner-Union cannot participate in the referendum because it has not beer registered by respondent No. 1. It is stated that the petitioner-Union has been registered by N.I.R.C. at national level and as such is not entitled to participate in the referendum being held for determining the Collective Bargaining Agent for Lahore Circle of the Bank.
Initially this Court, while proceeding with the main petition, restrained holding of elections. However, subsequently, this order was modified and holding of election was permitted but it was directed that result of election will be subject to final decision of this Court. Respondent No. l has filed a report stating that the elections were held on 22-5-1999 in which respondent No.2 has secured 256 votes as compared to 132 secured by respondent No.3.
Mr. M. Khalid Farooq, Advocate, has relied on section 22(3) of the Industrial Relations Ordinance, 1969, to submit that once an application is received by Registrar under subsection (2), he has to, by notice in writing, call upon every registered trade union in the establishment or group of establishments to which the application relates, to indicate whether it desires to contest in the secret Ballot. His emphasis is that petitioner will be covered by the expression "every registered trade union".
On the other hand, Mr. Farooq Zaman Qureshi, Advocate, appearing for respondent No.2, has maintained that since the petitioner is a union registered by N.I.R.C. at the National Level, it cannot claim that the Registrar should invite the petitioner-Union under section 22(3) to indicate whether it wants to contest or not? The representative of the Registrar Trade Union has also supported the legal position that since the petitioner is not a union registered by Registrar, it cannot be permitted to participate in the referendum to be held by Registrar to determine the Collective Bargaining Agent of Lahore Circle .
The perusal of the relevant provisions shows that a clear distinction is being made between the trade unions operating at the National or at the Industry-wise level and those whose activities are restricted to either smaller territories or a single establishment or a group of establishments. The former are registered by N.I.R.C. under section 22-A(8)(d)(e). while the second category is registered by Registrar Trade Union in terms of sections 5, 6 and 7 of the Ordinance. When the Registrar is holding referendum, he is required to notify every registered trade union in the "establishment" or any "group of establishments". In subsection (2) of section 22, again expression used is "establishment" or "a group of establishments". The question, therefore, is whether the petitioner-Union registered at National Level is a union within the meaning of subsection (2) or subsection (3) of section 22 of the Ordinance.
The answer in my opinion has to be in the negative, in spite of the argument that the membership of the two unions or more than two unions may be common. In other words, the employees of the bank working at Lahore may become members of the union operating at local level as well as members of union operating at national level. However, this commonality alone will not entitle the union operating at national level to participate in the referendum to be held for determination of Collective Bargaining Agent for local or regional or circle level. In other words, the petitioner-Union cannot be held to be a Registered Trade Union in the "Establishments" or " Group of Establishment" located in the Lahore Circle of the Bank. This conclusion is confirmed by the fact that admittedly the unions operation at the national level or industry wise level are registered not by Registrar Trade Unions but by the N.I.R.C
For the above reasons, I see no merit in this petition, which is hereby dismissed, leaving the parties to bear their own costs. Registrar, respondent No. 1, can proceed to notify the result.
Q.M.H./M.A.K./A-176/L Petition dismissed.
2000 P L C 181
[Lahore High Court]
Before Raja Muhammad Sabir, J
TOWN COMMITTEE, CHOWINDA
Versus
ARRORA MASIH and others
Writ Petition No.9036 of 1990, decided on 9th December,.1998
(a) Payment of Wages Act (IV of 1936)--
----Ss. 15, 16 & 17---Industrial Relations Ordinance (XXIII of 1969), S.38(3-a)---Constitution of Pakistan (1973), Art.199---Industrial dispute--Constitutional petition---Maintainability---Employees were reinstated in service with back benefits by Labour Court---Back benefits as allowed by Labour Court having not been given to employees they filed application under S. 15, Payment of Wages Act, 1936 before Authority for payment of salary to them for period employees remained jobless--Notice sent to employer for said application had been impugned by employer in Constitutional petition before High Court---Validity---Order of Authority "as on application of employees filed under S.15, Payment of Wages Act was appealable under S.17 of the said Act and the order was further revisable under S.38(3-a), Industrial Relations Ordinance, 1969 before Labour Appellate Tribunal---Employer having not filed appeal or revision before relevant forums, Constitutional petition was not maintainable.
(b) Industrial Relations Ordinance (XXIII of 1969)---
----S. 51---Payment of Wages Act (IV of 1936), S.15---Back benefits--Entitlement---In absence of any positive evidence that employees who were ordered to be reinstated in service with back benefits had been engaged in some profitable pursuits during period of their dismissal from service, employees would be entitled to back benefits for said period---Order of Authority under Payment of Wages Act, 1936, whereby employees were held entitled to back benefits, could not be interfered with.
P.W.R., Lahore v. Mrs. A.V. Issacs PLD 1970 SC 415 ref.
C.M. Latif Rawn for Petitioner.
Ch. Abdul Latif for Respondents.
Date of hearing: 9th December, 1998.
2000 P L C 239
[Lahore High Court]
Before Maulvi Anwarul Haq, J
JAMSHED AHMAD KHAN
Versus
A.D. B.P. and others
Writ Petition No.5089 of 1999, decided on 8th December, 1999.
(a) Constitution of Pakistan (1973)---
----Arts. 199 & 212---Constitutional petition---Service matter---Reversion o petitioner to the lower post-- -Reason for such reversion was outstanding loan of deceased father of the petitioner---Validity---Father of the petitioner obtained a loan and after his death, he was survived by two daughters and two sons including the petitioner---Petitioner was neither a guarantor for the re-payment of the loan, nor was guilty of such a conduct so as to be visited with any penalty under the Service Regulations---Loan was secured by the deceased loanee by mortgage of his property---Person of the petitioner and traits personal to him could not be held to be liable for the repayment of that loan---Order of the Authority reverting the petitioner to the lower on such ground was without lawful authority and void in. circumstances.
(b) Muhammadan Law---
----Succession and administration---Liabilities of a deceased person---Legal representatives/heirs held personally liable for such liabilities of the deceased--- Validity---Such persons could never be personally held to be liable for the liabilities of a deceased person except to the extent of the estate of the deceased inherited by such legal representatives/heirs.
Agriculture Development Bank of Pakistan v. Sanaul Haq Khan PLD 1988 SC 67 ref.
Safdar Imam Bukhari for Petitioner.
Mian Abdul Aziz Naseem for Respondent No.3.
Date of hearing: 8th December, 1999.
2000 P L C 268
[Lahore High Court]
Before Syed Zahid Hussain, J
MUHAMMAD ASLAM and another
Versus
COMMISSIONER, WORKMEN'S COMPENSATION and another
Writ Petition No.2708 of 1985, decided on 4th August, 1999.
(a) Jurisdiction-
---- Where jurisdiction of Authority was dependent upon existence of certain facts and pre-conditions for assuming jurisdiction, or proceeding further in the matter, such conditions and facts must exist.
Mehr Dad v. Settlement and Rehabilitation Commissioner, Lahore Division, Lahore and others PLD 1974 SC 193 and Sindh Employees' Social Security Institution v. Dr. Mumtaz Ali Taj and another PLD 1975 SC 450 ref.
(b) Payment of Wages Act (IV of 1936)---
----S. 15---Employees Cost of Living (Relief) Act (I of 1974), S. 7, proviso- --Constitution of Pakistan (1973), Art. 199---Constitutional petition---Cost of living allowance---No part of wages---Cost of living allowance and overtime was not part of wages for the purpose of Payment of Wages Act, 1936---Where the Commissioner, Workmen's Compensation assumed the jurisdiction on the application of a Labour Officer, and had directed the employer to pay a sum of Rs.43,200 to his workers and staff members, such order of the Commissioner, was illegal and of no legal effect and the same was set aside.
Sima Fabrics Ltd. v. Authority Under Payment of Wages Act, Gujranwala and 3 others 1981 PLC 498 ref.
Mubin-ud-Din Qazi for Petitioner.
Nemo for Respondents.
Date of hearing: 3rd August, 1999.
2000 P L C 313
[Lahore High Court]
Before Karamat Nazir Bhandari, J
IMPERIAL ELECTRIC CO. LTD. through Director
Versus
THE BOARD OF TRUSTEES OF EMPLOYEES' OLD-AGE BENEFITS through Chairman and another
Writ Petition No. 1352 of 1985, decided on 17th September, 1999.
(a) Employees Cost of Living (Relief) Act, 1973 (I of 1973)--
----S.7 [as amended by Employees' Cost of Living (Relief) (Amendment) Act (XXVI of 1977)]---Expression "cost of living allowance"---Applicability--- After amendment and with the deletion of word "not" in S.7 of Employees"
Cost of Living (Relief) Act. 1.973, enjoins that cost of living allowance shall be part of wages for the purposes of any other law including the purposes of contribution to provident fund, gratuity bonus social security scheme and calculating of wages for overtime work.
(b) Employees' Cost of Living (Relief) Act, 1973 (1 of 1974)--
----S.7 [as amended by Employees' Cost of Living (Relief) (Amendment) Act (XXVI of 1977)]--- Constitution of Pakistan (1973), Art. 199---Constitutional petition---Non-payment of contribution of cost of living allowance ---Effect--- Allowance paid to worker under the provisions of Employee's Cost of Living (Relief) Act, 1973, became part of wages of a worker since 1-5-1977, and as such the employer had become liable to pay the contribution under provisions of Employees' Old-Age Benefits Act, 1976.
K.G. Old, Principal, Christian Technical Training Centre, Gujranwala v. Presiding Officer, Punjab Labour Court, Northern Zone and 6 others .PLD 1976 Lah. 1097; Muhammad Ebrahim Hussain Sarkar v. Mst. Solemannessa PLD 1968 Dacca 376; M.S. Faruki, Chief Officer, Lahore Municipal Corporation, Lahore v. The Province of West Pakistan and others PLD 1970 Lah. 195; National Embroidery Mills Ltd. and others v. Punjab Employees' Social Security Institution 1993 SCMR 1201 and Don Basco High School v. The Assistant Director, E.O.B.I. and others PLD 1989 SC 128 ref.
(c) Employees' Old-Age Benefits Act (XIV of 1976)---
----S.2(p)---Wages, definition of---When definition of wages was directly given in Employees' Old-Age Benefits Act, 1976, the same became certain and there was no need left to refer to other statutes for the purpose.
(d) Employees' Old-Age Benefits Act (XIV of 1976)---
----S.13---Non-payment of contribution on due date---Increase in contribution by percentage---Validity---Where employer failed to pay contribution on due date, provisions of S.13, Employees' Old-Age Benefits Act, 1976 would authorise the Authority to increase the contribution by such percentage or amount as may be prescribed upon the payment which an employer fails to pay on the due date.
Majid Khan and Hamid Khan for Petitioner.
M.A. Hayee Khan for Respondents.
Date of hearing: 10th September, 1999.
2000 P L C 418
[Lahore High Court]
Before Ihsan-ul-Haq Chaudhry and Muhammad Zafar Yasin, JJ
ALLIED BANK OF PAKISTAN WORKERS UNION- through General Secretary
Versus
REGISTRAR OF TRADE UNIONS, PUNJAB acid 2 others
Intra-Court Appeal No. 924 of 1999 in Writ Petition No.25848 of 1998, decided on 13th January, 2000.
Industrial Relations Ordinance (XXIII of 1969)---
----Ss. 22(2)(3) & 22-A (8)(d)(e)---Law Reforms Ordinance (XII of 1972), S.3---Determination of Collective Bargaining Agent---Respondent, a staff union registered with Registrar, Trade Unions at local level, moved application under S.22(2). Industrial Relations Ordinance, 1969 to determine Collective Bargaining Agent in the Bank---Registrar, Trade Unions issued notice to the Employees' Union which was the only other trade union registered with Registrar, Trade Unions to participate in referendum for determination of Collective Bargaining Agent---Appellant Trade Union which was a Trade Union in employer Bank at national level registered with National Industrial Relations Commission was neither served with any notice by Registrar nor was allowed to participate in referendum held for determination of Collective Bargaining Agent in the Bank---Constitutional petition filed by appellant trade union against order of Registrar, Trade Unions having been dismissed, appellant filed Intra-Court Appeal---Held appellant ride Union neither was a registered trade union with Registrar. Trade Unions who had to determine Collective Bargaining Agent nor it was a Trade Union of establishment or group of establishments to which application for referendum related---Collective Bargaining Agent was to be determined through referendum at local level in employer Bank and not at national level---Determination of Collective Bargaining Agent among industry-wise trade unions at national level had to be conducted by National Industrial Relations Commission under S.22-A, Industrial Relations Ordinance, 1969 for which appellant trade union had a right to notice and right to contest---Appellant Trade Union being a registered trade union with National Industrial Relations Commission under S.22-A(8)(d)(e) of Industrial Relations Ordinance, 1969, thus, was not at par with trade union registered with Registrar, Trade Unions--Appellant Trade Union, therefore, had rightly been excluded from taking part in referendum for determining Collective Bargaining Agent for local or circle level of employees of employer-Bank.
Ch. M. Khalid Farooq for Appellant.
Farooq Zaman Qureshi for Respondents.
2000 P L C 453
[Lahore High Court]
Before Dr. Munir Ahmad Mughal, J
CRESCENT TEXTILE MILLS WORKERS' UNION, FAISALABAD through President
versus
PUNJAB LABOUR APPELLATE TRIBUNAL, LAHORE and 4 others
Writ Petition No.4091 of 2000, heard on 20th March, 2000.
(a) Industrial Relations Ordinance (XXIII of 1969)---
----S. 38(5)---Contempt proceedings---Jurisdiction of Labour Appellate Tribunal to clarify its order---Scope---While deciding the contempt proceedings, the Tribunal has all the power to clarify its order and give certain directions, but those should be within the lawful powers of the Tribunal.
(b) Industrial Relations Ordinance (XXIII of 1969)---
----Ss. 15, 22-A(8) (g) & 38---Removal of employees by management on the basis of unfair labour practice specified in S.15 of Industrial Relations Ordinance, 1969---Cognizance taken by National Industrial Relations Commission on application of employees under S.22-A(8)(g) of Industrial Relations Ordinance, 1969---Action'taken by Labour Appellate Tribunal in the matter while deciding contempt proceedings---Validity---Matter to the extent of removal of the employees by the management on the basis of unfair labour practice exclusively fell within jurisdiction of National Industrial Relations Commission and the Labour Appellate Tribunal -should not have taken any action in circumstances.
(c) Industrial Relations Ordinance (XXIII of 1969)---
----S. 7(1)(d)---Election of office-bearers of trade union---Casting of votes by 25% outsiders for such election---Validity---Twenty-five per cent office-bearers of a union could be elected even from outsiders under S.7(1)(d) of Industrial Relations Ordinance, 1969---Electing of twenty-five per cent. outsiders was different from casting of vote by twenty five per cent. outsiders---No outsider could cast any vote in election of office-bearers.
(d) Industrial Relations Ordinance (XXIII of 1969)---
----S. 38---Contempt application---Jurisdiction of Labour Appellate Tribunal---Scope---Labour Appellate Tribunal, while hearing a contempt application, had no power to treat to be in service, a workman who was terminated by the employer.
(e) Industrial Relations Ordinance (XXIII of 1969)---
----S. 38---Constitution of Pakistan (1973), Art. 199---Constitutional petition--Permitting 25 % outsiders ,to cast vote in election of office-bearers--Validity---Workers. whose matters were sub judice before National Industrial Relations Commission regarding their removal on account of trade union activities, were entitled to cast vote in the internal elections of the union--Availability of right to cast vote by such ,terminated workers should not be taken to mean that the workers had been re-instated---Question of reinstatement would be decided in accordance with law by the proper forum, which the workers had chosen or would choose---Order of Labour Appellate Tribunal to the extent of permitting 25 % of outsiders to cast vote in election of office-bearers was illegal, without lawful authority and void and was set aside to that extent---Petition allowed accordingly.
Farooq Zaman Qureshi for Petitioner.
Yawar Ali for Respondent No.3.
Zubair Afzal Rana and Ch. Riaz Ahmed for Respondent No.4.
Sakhawat Ali, Registrar, Trade Union in person.
Date of hearing: 20th March, 2000.
2000 P L C 474
[Lahore High Court]
Before Malik Muhammad Qayyum, J
AMANULLAH and 9 others
versus
GOVERNMENT OF PAKISTAN, MINISTRY OF FINANCE, ISLAMABAD and 7 others
Writ Petition No.4231 of 1993, decided on 4th May, 2000.
Service Tribunals Act (LXX of 1973)----
----S. 2-A---Constitution of Pakistan (1973), Arts. 25, 199 & 212--Voluntary Retirement Scheme---Constitutional petition, abatement of--Grievance of petitioners who were employees of various Rice Mills under Control of Rice Export Corporation of Pakistan, was that though Voluntary Retirement Scheme had been framed by Authorities in respect of Project Directors, Deputy Directors had been denied said facility and petitioners who belonged to said category had been unfairly discriminated against--Validity---Project Directors being a class apart from Deputy Project Directors, it could not be said that facilities which had been made available to Project Directors should ,also be made applicable to other categories of employees---Article 25 of Constitution of Pakistan (1973) had not prohibited or forbidden reasonable classification---Corporation was a Corporation owned and controlled by Federal Government and persons serving under it had been declared to be civil servants under S.2-A of Service Tribunals Act, 1973---Provisions of S. 2-A, Service Tribunals Act, 1973 being applicable to case of petitioners, proceedings pending before High Court would be deemed to have been abated in view of Art. 212 of Constitution of Pakistan (1973).
Naveed Saeed Khan for Appellants.
Nemo for Respondents Nos. 1, 2, 3, 5, 6, 7 and 8.
Mian Ashiq Hussain for Respondent No.4.
Date of hearing: 4th May, 2000.
2000 P L C 554
[Lahore High Court]
Before Syed Zahid Hussain, J
Messrs SUI NORTHERN GAS PIPELINES LIMITED through General Manager (Personnel)
versus
THE MEMBER, NATIONAL INDUSTRIAL RELATIONS COMMISSION, LAHORE and another
Writ Petition No.6934 of 2000, heard on 2nd June, 2000.
Industrial Relations Ordinance (XXIII of 1969)---
----S.22A(8)(g)---Service Tribunals Act (LXX of 1973), S.2-A--Constitution of Pakistan (1973), Arts. 199 & 212---Constitutional petition--Termination of service---Jurisdiction of National Industrial Relations Commission---Services of employee having been terminated, he filed petition before National Industrial Relations Commission under S.22A (8)(g) of Industrial Relations Ordinance, 1969---Maintainability---Employer company being a public limited company wherein Government had controlling shares and administration, S.2-A of Service Tribunals Act, 1973 was applicable to the matter--Jurisdiction of all other Courts and Authorities including National Industrial Relations Commission, would stand excluded in view of bar contained in Art.212 of Constitution of Pakistan (1973) and it was exclusive jurisdiction of Service Tribunal that would extend in the matter--Assumption of jurisdiction by National Industrial Relations Commission in the matter being unwarranted by law, order passed by the Commission was declared to be illegal by High Court in exercise of its Constitutional jurisdiction.
Syed Aftab Ahmad and others v. K.E.S.C. and others 1999 SCMR 197; Divisional Engineer, Phones v. Muhammad Shahid and others 1999 SCMR 1526; Zahirullah and 13 others v. Chairman, WAPDA, Lahore and others 2000 SCMR 826; Abdul Haq v, G.M. SNGP Ltd., Lahore and another 2000 SCMR 925; Gulzeb Hussain v. Sui Northern Gas Pipelines Limited and 2 others 2000 SCMR 959 and Sindh Employees' Social Security Institution v. Dr. Mumtaz Ali Taj and another PLD 1975 SC 450 ref.
Saleem Baig for Petitioner.
Shahid Jamil Khan for Respondents.
Date of hearing: 2nd June, 2000.
2000 P L C 664
[Lahore High Court]
Before Sheikh Abdur Razzaq, J
PUNJAB ROAD TRANSPORT" CORPORATION (URBAN), ISLAMABAD through District Manager
versus
FULL BENCH, N.I.R.C., ISLAMABAD and 3 others
Writ Petition No. 2478 of 1998, heard on 4th July, 2000.
Industrial Relations Ordinance (XXIII of 1969)---
----S.22-A(8)(g)---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Unfair labour practice---Principle of consistency---Applicability---' Workers were charge-sheeted by the employer-Corporation---Single Bench of .N.I.R.C. allowed the petitions of the workers under S.22-A(8)(g) of Industrial Relations Ordinance_ 1969 on the ground that similar petitions of co-workers on similar charge-sheets had already been accepted by the Single Bench of N.I.R.C. and the same were upheld by the Full Bench of N. I. R. C. -Judgment of the Single Bench of N.I.R.C. was also upheld by the Full Bench of N. I. R. C. ---Contention by employer-Corporation before the High Court was that since the present workers were not party to the previous proceedings, therefore, that decision could not be stretched in their favour--Validity---Even if the earlier judgment was a judgment in personam, yet the allegation against the present workers was the same as was against their coworkers---Charge-sheet was issued to the co-workers and the same was quashed by the Single Bench of N.I.R.C. which was upheld by the Full Bench of N.I.R.C.---Relying upon the principle of consistency both the Courts below had passed their orders in accordance with law---Petition was dismissed in circumstances.
Abdur Rashid Awan for Petitioner.
Kh. Muhammad Arif for Respondents.
Date of hearing: 4th July, 2000.
2000 P L C 667
[Lahore High Court]
Before Syed Zahid Hussain, J
DIVISIONAL SUPERINTENDENT, PAKISTAN RAILWAYS, D.S. OFFICE, LAHORE and 2 others
versus
NATIONAL INDUSTRIAL RELATIONS COMMISSION through
Chairman and 7 others
Writ Petition No. 17738 of 1995, heard on 30th May, 2000.
Industrial Relations Ordinance (XXM of 1969)---
----Ss. 1 (3) (a), 2 (viii) (d), 22-A, 25-A & 37(3)---Notification dated. 9-6-1992 & 18-10-1993---Constitution of Pakistan (1973), Art. 199--Constitutional petition---Applicability of Industrial Relations Ordinance to Railway employees--Railway employees working in different capacities, aggrieved of certain actions/orders of Railway Administration, approached forum envisaged by Industrial Relations Ordinance, 1969 who passed the orders---Such orders had been assailed by Pakistan Railways on ground that Industrial Relations Ordinance, 1969 being not applicable to employees of Pakistan Railways, assumption of jurisdiction by National Industrial Relations Commission or- Labour Court was totally without jurisdiction and without lawful authority---Validity---Under two notifications issued by Government of Pakistan, Ministry of Railways, dated 9-6-1992 and 18-10-1993, Industrial Relations Ordinance, 1969 having been made inapplicable to employees of Railways, they could not agitate matter before any of the functionaries envisaged under said Ordinance--Provisions of Industrial Relations Ordinance, 1969 having ceased to be applicable to Railway employees by force of said notifications any proceedings filed under the Ordinance were incompetent in law and orders passed by National Industrial Relations Commission and Labour Court in favour of Railway employees, were illegal and not warranted by law.
Railway Workers' Union Regd. through Sardar Shaukat Ali, General Secretary v. Government of Pakistan, Ministry Railways through Chairman, Railway Board, Lahore and 2 others PLD 1995 Lah. 333; Akbar Ali and others v. Senior Administrative Officer, Pakistan Railways and another 1992 SCMR 1341; Mehboob Khan and 307 others v. Government of Pakistan through Secretary, Ministry of Railways, Islamabad and 7 others 1993 SCMR 2385; Divisional Superintendent, Pakistan Railways Rawalpindi Division, Rawalpindi v. National Industrial Relations Commission through Chairman and 2 others 1997 PLC 307; Director Accounts, WAPDA, Lahore and others v. Member-I. N.I.R.C. Lahore and others 1997 PLC (C.S.) 189; Writ Petition No.7997-S of 1995; Writ Petition No.371 of 1997; Federation of Pakistan v. Muhammad Siddiq PLD 1981 SC 249; Divisional Superintendent, Pakistan Railways, Pakistan Division, Rawalpindi v. National Industrial Relations Commission through Chairman and 2 others 1997 PLC 307 and Sindh Employees' Social Security Institution. v. Dr. Mumtaz Ali Taj and another PLD 1975 SC 450 ref.
Masud Mirza alongwith Bashir Abbas Khan for Appellant.
Chaudhry Ghulam Qadir for Respondents Nos.3 to 8.
Dates of hearing: 12th, 19th, 26th and 30th May, 2000.
2000 P L C 702
[Lahore High Court]
Before Sheikh Abdur Razzaq, J
INTERNATIONAL BEVERAGES LTD., ISLAMABAD through Director
versus
THE BOARD OF TRUSTEES OF EMPLOYEES
OLD-AGE BENEFITS, REGIONAL OFFICE, LAHORE and another
Writ Petition No.577 of 1988, heard on 30th May, 2000.
Employees' Cost of Living (Relief) Act, 1973 (I of 1973)---
-----S.7---Employees' Old-Age Benefits Act (XIV of 1976), Ss. 11 & 33-Constitution of Pakistan (1973), Art. 199---Constitutional petition--Contribution of Employees' Old-Age Benefit---Cost of living allowance, inclusion in the contribution---Validity---Demand and show-cause notice was issued to the petitioner for short payment---Contention by the petitioner was that cost of living allowance could not be included in the definition of "wages" for the purpose of Employees' Old-Age Benefits Act, 1976--Validity---Certain laws though had been excluded from the purview of the Act to S.7 of Employees' Cost of Living (Relief) Act, 1973 but there was no express exclusion of cost of living allowance from the purview of the provisions of the Act---If the same was not excluded either expressly or by implication from the definition of "wages" it could be included in the wages of employees for the purpose of contribution under the Employees' Old-Age Benefits Act, 1976--Contribution demanded by the Authorities vide demand and show-cause notice did not suffer from any illegality in circumstances.
Mehran Sugar Mills Ltd., Karachi v. Employees' Old-Age Benefit Institution, Karachi 1993 PLC 630 ref.
Saleem Zulfiqar Khan for Petitioner.
Muhammad Khalid Malik, Assistant Director, BOBI
Date of hearing: 30th May, 2000.
2000 P L C 109
[National Industrial Relation Commission]
Before Nabi Bakhsh Bhatti, Member
TAHIR MAHMOOD and another
Versus
DIRECTOR (OPERATIONS), NORTH, WASA, L.D.A. LAHORE and 3 others
Case No.4-A (206) of 1999-L, decided on 15th July, 1999.
West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)---
----S.Os. l (1)(b) & 15(4)---Regular workman--Employees even as per documents produced on record by employer, had completed one hundred and eighty days in service of employer---Employees, in circumstances, had attained status of 'regular employees and their services could not be terminated without charge-sheet and inquiry nor they could be asked through verbal orders not to come on duty.
Muhammad Asim v. Telecommunication 1997 PLC 1131 ref.
2000 P L C 147
[National Industrial Relations Commission]
Before Bahader Ali, Member
NAU BAHAR
Versus
CHAIRMAN, PAKISTAN STEEL through Regional Manager, Pakistan Steel, The Mall, Lahore a and another
Case No.4-A(509) of 1998, decided on 12th April, 1, 1999
Industrial Relations Ordinance (XXIII of 1969)---
----Ss. 15 & 22-A(8)(g)---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI c of 1968), S.O. 15(3)(a)---Unauthorised absence of employee---Dismissal from service---Unfair labour practice by employer---Employee who was active member of trade union and whose real brother was office-bearer of said trade union, was dismissed from service on account of unauthorised absence ---Validity---Leave earlier applied for by employee was duly granted by Competent . Authority and after availing said leave, employee applied for extension of leave which though was granted, but employee was not informed about fate of his application for extension of leave---Allegation of unauthorised a absence, against employee in circumstances was fake and frivolous ---Employers apparently were only after employee to victimize him on account of his I-lawful trade union activities which was an unfair labour practice on pant of employers---Order of dismissal of employee was set aside and he was directed to be reinstated with back benefits.
Ch. Waqar Ahmad for Petitioner.
Bashir Ahmad Tahir for Respondents.
2000 P L C 149
[National Industrial Relations Commission]
Before Nabi Bakhsh Bhatti, Member
SHAHID MUNIR and others
Versus
PECO
Case No.4-A (1407) of 1996-L, decided on 8th July, 1999.'
Industrial Relations Ordinance (XXIII of 1969)-
----Ss. 15 & 22-A---Ejectment of employees from residential quarters--Validity---Petitions before National Industrial Relations Commission--Maintainability- -Petitioners in their petitions had alleged that company was going to eject them from their respective residential quarters without any justification---Company had been privatized and Privatization Commission was getting such residential quarters vacated according to its own administrative requirements---After privatization of Company allotment of accommodation had become a part of terms and conditions of civil servants and fell within exclusive jurisdiction of Federal Service Tribunal and did not fall under category of unfair labour practice---National Industrial Relations Commission, in circumstances, had no jurisdiction to adjudicate on such matters---Petition filed by petitioners was dismissed being not maintainable.
2000 P L C 151
[National Industrial Relations Commission]
Before Nabi Bakhsh Bhatti, Member
GHULAM DASTAGIR
Verses
NATIONAL BANK OF PAKISTAN, SHEIKHUPURA and another
No.7(535) of 1998-L and 4-A (456) of 1995-L, decided on 6th May, 1999.
(a) Industrial Relations Ordinance (XXIII of 1969)--
----Ss. 15 & 22-A(8)(g)---Termination of services---Validity---Petition before National Industrial Relations Commission---Maintainability---Services of petitioner, a Bank employee who committed fraud in collaboration with an ex-Bank Officer, were terminated after serving him show-cause notice, charge-sheet and holding inquiry against him---Service of show-cause notice and charge-sheet on ground of misconduct, could not be treated as act of unfair labour practice on the part of employer---Taking part in trade union activities, would not give licence to employee to commit misconduct---After inquiry was finalized and employee was found guilty, employee could assail same before relevant forum as to whether charge against him was correct or not, because it was a matter to be inquired into and decided under relevant law by employer himself and in case charges against employee were proved, he could hardly challenge same as constituting unfair labour practice by employer---Petitioner/employee having failed to make out prima facie case of unfair labour practice, because no event of any victimization on part of petitioner/employee had been referred to in his petition, his petition had no force---Petition was dismissed being not maintainable.
(b) Industrial Relations Ordinance (XXIII of 1969)---
-----Ss. 15 & 22-A(8)(g)---Unfair labour practice by employer--Departmental proceedings against employee---Jurisdiction of National Industrial Relations Commission---Departmental proceedings against employee was an exclusive domain of employer and unless there was streak of unfair labour practice by employer, and inquiry was being used against employee as a cover for unjustified and unfair labour practice, National Industrial Relations Commission would have no jurisdiction to go into regularity or otherwise of proceedings against employees, because Departmental proceedings against employee was a vested right of employer and National Industrial Relations Commission had no jurisdiction to interfere with said lawful exercise or action of employer.
Javed Iqbal for Petitioner.
Ch. Zafar Iqbal for Respondents.
Date of hearing: 6th May, 1999.
2000 P L C 154
[National Industrial Relations Commission]
Before Nabi Bakhsh Bhatti, Member
Mian MUHAMMAD LATIF and others
Versus
MANAGING DIRECTOR, PASSCO and another
Case No.4-A(230), 4-A(233), 4-A(235) of 1999-L, decided on 30th June, 1999.
(a) Industrial Relations Ordinance (XXIII of 1969)-
----Ss. 15 & 22-A(8)(g)---Unfair Labour practice by employer---Service of show-cause notice and charge-sheet on employee on grounds of misconduct, could not be treated as acts of unfair labour practice of employer as taking part in trade union activities, would not give licence to an employee to commit misconduct---After inquiry was finalised and employee was found guilty, employed could assail same before relevant forum the question as to whether charge against him was correct or not because it was a matter to be inquired into and decided under relevant law by employer himself---If charges against employee were proved, employee could hardly challenge same as constituting unfair labour practice on part of employer.
(b) Industrial Relations Ordinance (XXIII of 1969)-
----Ss: 15 & 22-A(8).(g)---Unfair labour practice by employer ---Departmental proceedings---Jurisdiction of National Industrial Relations Commission--Departmental proceedings against employee fell within the exclusive domain of employer and unless there was a streak of unfair labour practice that inquiry was being used against employee as a cover for unjustified and unfair labour practice, National Industrial Relations Commission had no jurisdiction to go into illegality or otherwise against employee because Departmental proceedings against employee was a vested right of employer and National Industrial Relations Commission had no jurisdiction to interfere with such lawful exercise and action of employer.
(c) Industrial Relations Ordinance (XXIII of 1969)---
----Ss. 15 & 22-A(8)(g)---Unfair labour practice by employer ---Proof--Petition before National Industrial Relations Commission--Employees/petitioners in their petitions had alleged that respondents/ employers with mala fide intention had conspired with rival trade union and got lodged F.I.R. against them and that employers had involved employees on flimsy grounds and without issuance of charge-sheets, had suspended employees on ground of said F.I.R. and that employers, were bent upon to terminate services of employees---Employees had prayed that employers be directed to refrain from issuing employees termination letter and to refrain from committing any further alleged unfair practice--employees had failed to make out prima facie case of unfair labour practice against employers because no act of victimization on part of employers had been referred to in the petition of employees to show any streak of victimization---No material or event had been described to substantiate allegation of unfair labour practice ; of employers---Employers had placed on record very vital documents particularly details of charge-sheet to substantiate charge of misconduct against employees---Petitions filed by employees against employer were dismissed being not maintainable.
Nasir Ahmad Qureshi for Petitioners
Sultan Tanveer for Respondents.
2000 P L C 246
[National Industrial Relations Commission]
Before Aijaz Ahmed K. Shaikh, Member
HAMEED-UR-REHMAN KHAN, ASSISTANT ACCOUNTS
DEPARTMENT ACE (PVT.) LTD., KARACHI
Versus
Messrs ASSOCIATED CONSULTING ENGINEERS OF ACE (PVT.) LTD. and 2 others
Cases Nos.4-A(110)-K and 24(108) of 1998-K, decided on 1st December 1998.
Industrial Relations Ordinance (XXIII of 1969)--
----S. 22-A(8)(g)---National Industrial Relations Commission (Procedure and Functions) Regulations, 1973, Regin. 32(2)(c)---Unfair labour practice---. Interim prohibitory order, grant of---Petitioner/employee who had been retrenched under retrenchment policy framed by employer-establishment in presence of petitioner, had alleged that he had been victimized due to his trade union activities and that act of employer-establishment amounted to act of unfair labour practice of employer---Employee had contended that interim prohibitory order issued in his favour restraining employer to take action against him be confirmed---Employee who previously was Finance Secretary of union in employer-establishment at the time of retrenchment though was an active member of union, but was not its office-bearer---When employee was office-bearer of union, no action was taken against him due to his trade union activities---Had there been any grudge with employee at that time due to his trade union activities, he would have been victimized---At present when employee was simply an active member of union and not any office bearer thereof, nothing was on record to show that he had been victimized due to his trade union activities as alleged by him---No other person who had been retrenched due to retrenchment policy, had approached Labour Court challenging their retrenchment as an illegal act of unfair labour practice by employer---Employee having failed to prove that he had been victimized due to his trade union activities, interim prohibitory order passed in his favour was recalled.
M.A.K. Azmati for Petitioner.
Muhammad Tasnim for Respondents.
Date of hearing: 1st December, 1998
2000 P L C 250
[National Industrial Relations Commission]
Before Aijaz Ahmad K. Shaikh, Member
RASHID ASLAM
Versus
Messrs INDUS MOTORS CO. LTD. through Managing Director
Cases Nos.4-A(285)-K, 24(285)-K to 4-A(290)-K, 24(290)/98--K, decided on 10th December, 1998.
Industrial Relations Ordinance (XXIII of 1969)---
----Ss. 22-A(8)(g), 34 & 47---National Industrial Relations Commission (Procedure and Functions) Regulations, 1973, Regln 32(2)(c)---Stay order--Vacation---National Industrial Relations Commission, on application of applicant filed under Regln. 32(2)(c), National Industrial Relations Commission (Procedure and Functions) Regulations, 1973, issued stay order restraining respondent-employer from taking any adverse action against applicants on- basis of charge-sheet issued against them and applicant had sought confirmation of said stay/interim order---Labour Appellate Tribunal in conciliation proceedings pending between the parties, had already stayed proceedings against applicants---Applicants who were office-bearers and members of union, had already been Founds entitled to protection under S.47, Industrial Relations Ordinance, 1969 whereby services of applicants could not be dispensed with without permission of Conciliator or Labour Court---Double protection being not called for, application filed under Relgn. 32(2)(c), National Industrial Relations Commission (Procedure and Functions) Regulations, 1973 was dismissed and interim order granted to applicants under said Regulations was recalled directing parties to adduce their evidence in the main case.
National Motors Limited v. Muhammad Haneef 1987 PLC 547 ref.
M.M. Jeelani for Applicants.
Muhammad Humayun for Respondents.
Date of hearing: 10th December, 1998.
2000 P L C 254
[National Industrial Relations Commission]
Present: Muhammad Zaman Qureshi, Chairman
ZAFAR IQBAL and others
Versus
CHAIRMAN, SIALKOT DRYPORT and others
Cases Nos.4-A(929) to 4-A (932) of 1998-L, decided on 14th April, 1999.
Industrial Relations Ordinance (XXIII of 1969)----
----S.22-A(8)(g)----National Industrial Relations Commission (Procedure and Functions) Regulations, 1973, Regln. 32(2)---Removal from service--Suspension of order---Employees who were removed from service after issuing them show-cause notice and holding departmental enquiry, had alleged that they had been removed because of their trade union activities--Employees who gave beating to a truck driver were charge-sheeted and enquiry was conducted against them in which they participated---Employees were removed from service on basis of report of Enquiry Officer in which employees were found guilty of charges against them---Punishment of removal from service awarded to employees was based on their misconduct and employees had failed to prove that they had been victimized because of the trade union activities---Employees, in circumstances, were rightly removed from service on basis of misconduct proved in independent enquiry proceedings---Employees were not likely to suffer any irreparable loss if order of removal was not suspended---Balance of convenience also lay in favour of employers and not employees---Application for suspension of removal order and petition under S.22-A(8)(g), Industrial Relations Ordinance, 1969 incompetently filed before National Industrial Relations Commission, were dismissed with directions to office to return the petitions to be filed before Competent Authorities.
Riaz Ahmad for Petitioners.
Rafiuddin for Respondents.
Date of hearing: 22nd March, 1999.
ORDER
This order will dispose of the applications filed by the petitioners under Regulation 32(2) of the N.I.R,C. (Procedure aid Functions) Regulations, 1973 alongwith their petitions filed under section 22-A(8)(g) of the Industrial Relations Ordinance, 1969.
Alongwith the main petitions a separate application under Regulation 32(2) of the N.I.R.C. (Procedure and Functions) Regulations, 1973 was also filed seeking suspension of the impugned order, dated 19-9-1998.
Notices of the petitions/stay applications were issued to the respondents for 21-11-1998. Written comments were filed by the respondents. Arguments on the point of jurisdiction as well as on the stay applications were addressed by the parties counsel.
Counsel for the petitioner argued that the petitioners fell within the definition of workmen. They were victimized because of their union activities and were terminated illegally without holding an enquiry, which constituted unfair labour practice. On facts, it was stated that the driver of NLC truck had in fact beaten the Guard. Ten persons were involved by the respondents in that incident. Five out of them were subsequently exonerated while five others were terminated, including the petitioners. In this way, discrimination was made Hav. Anwar, had in fact quarreled with NLC driver but he was exonerated whereas the petitioners were illegally removed from service on account of their being active members of the trade union. It was further stated that after the petitioners had sent grievance notices to the respondents, an apology letter was got signed from the petitioners under pressure with a promise that the petitioners will be let off with minor punishment, but they were removed from service subsequently.
The counsel for the respondents on the other hand, submitted that Basharat Ali driver, NLC came at 05-00 a.m. in the morning on 17-8-1998 and he went to say his prayer in the mosque. Hav. Anwar Shah quarrelled with him as to why he had gone to the mosque without permission. At 08.00 am. Nazir, Senior Security Officer came on duty. Mirza Shaukat Ali petitioner also came there. They alongwith the petitioners and other framed an unlawful assembly, went into nearby hotel, pulled Basharat Ali driver of NLC from there and brought him into the Dryport and gave severe beatings to him. He was so injured that he was nearing death. He was removed immediately to the hospital. The matter went up to the General Headquarters. The Army Officers held an enquiry and Basharat driver was given Court Marshal for 15 days. Military Court recommended the removal of the petitioners. The petitioners gave in writing to the management that no F.I.R. should be lodged against them with the police in order to save their arrest and that departmental enquiry may be held. During departmental enquiry, five employees including the petitioners, were found guilty. They admitted the commission of offence. Action, had been taken against them with regard to the second incident. Hav. Anwar was not member of the unlawful assembly which had assembled after 08-00 a.m. on 27-8-1998 and had given beating to Basharat Driver. As such, the action against the petitioners was taken on the basis of the misconduct committed by them and not because of any trade union activities of the petitioners. The. N.I.R.C. as such has no jurisdiction in the matter and the petitioners could seek remedy before the Labour Court after service of the grievance notice.
A perusal of the documents placed on record in the light of the arguments addressed by the counsel of the parties, show that the petitioners alongwith other colleagues collectively gave beating to NLC driver Basharat Ali after dragging him from a nearby hotel. The charge-sheet was issued to the petitioners on 20-8-1995. The petitioners admitted the guilt and requested for forgiveness. An enquiry was thereafter held. The Inquiry Officer recorded the statements of the witnesses and the petitioners participated in that enquiry. He submitted his report on 15-9-1998 wherein he found the petitioners guilty of the charges. Then a final show-cause notice was issued on 18-9-1998. Subsequently, they were dismissed from service on 20-9-1998. It is mentioned in the petition that the petitioners then gave a grievance notice to the respondents on 12-11-1998, where after the present petitions were filed in the Commission on 20-11-1998. Prima facie, it appears that the petitioners have been punished on account of misconduct for beating Basharat Ali driver of NLC vehicle, and not because of any Trade Union activities. No case of unfair labour practice is, therefore, made out. There is no document on record to show that the petitioners have been victimised on account of their being members of any trade union. Further, as the petitioners were terminated from service vide order, dated 19-9-1998 and they gave grievance notice on 17-11-1998 and then filed the present petitions on 20-11-1998, they are not likely to suffer any irreparable loss if the impugned order of termination is not suspended at this stage. The balance of convenience also lies in favour of the respondents. The applications of the petitioners under Regulation 32(2) of the N.I.R.C (P&F) Regulations, 1973 are therefore, rejected.
In view of the above observations that no case of unfair labour practice is made out, the main petitions filed by the petitioners under section 22-A(8)(g) of the I.R.O., 1969 are also not maintainable, because prima facie, the punishment awarded to them is based on misconduct and the petitioners have been terminated after holding departmental inquiry. They have already served a grievance notice to the respondents. The N.I.R.C. has no jurisdiction to entertain the main petitions. The petitions should, therefore, be returned by the office to the petitioners for seeking remedy before the competent forum, if so advised.
H.B.T./1-NIRC Petition dismissed
2000 P L C 258
[National Industrial Relations Commission]
Before Aijaz Ahmad K. Shaikh, Member
JABEES EMPLOYEES' UNION through General Secretary
Versus
Messrs HOTEL JABEES through Managing Director
Cases Nos. 4-A(267)-K and 24(266)-K of 1998-L, decided on 24th
National Industrial Relations Commission (Procedure and Functions) Regulation,1973
----Regln. 32(2)(c)---Interim prohibitory order, grant of---Applicant union had prayed in its application filed under Regln. 32(2)(c) of National Industrial Relations Commission (Procedure and Functions) Regulations, 1973 to restrain Establishment from removing/discharging/dismissing Officers and active members of union from employment as a measure of victimisation and unfair labour practice---Contention of applicant union was that Establishment having failed to give benefit to workers, applicant union raised hue and cry which annoyed the Establishment and started victimizing office-bearers of union an due to said union activities Establishment had issued charge-sheets to office-bearers and active members of union .which amounted to act of unfair labour practice---Contention of union that chargesheets were issued to office-bearers of union because of trade union activities, could orl1v be decided on basis ,of evidence---Applicant union, in circumstances, had made out a prima facie case for grant of prohibitory order---Interim prohibitory order was confirmed and parties were directed to adduce their evidence.
1988 PLC 884; 1994 PLC 35 and 1998 PLC 62 ref.
S.P. Lodhi for Applicant. Shaikh Haider Bux for Respondent.
Date of hearing; 24th December, 1998
JUDGMENT
This order will dispose of the Application under Regulation 32(2)(c) of N.I.R.C. (P&F) Regulations, 1973 filed by the Jabees Employees' Union through its General Secretary supported by his affidavit with prayer to restrain the respondents or persons connected with them from removing/discharging/dismissing the officers and active members of the union from employment as a measure of victimization and-unfair labour practice.
On 19-10-1998 this Bench of Commission had passed interim prohibitory order on the above said application directing the respondents not to remove or dismiss the officers and active members of the petitioner union till the next date.
The respondents were served and they filed application for antedating the case. They filed comments and counter-affidavit raising objections about the maintainability of the case and the applicant has filed rejoinder.
I have heard the arguments of Mr. S.P. Lodhi, learned Representative for the applicant and Mr. Shaikh Haider Bux, learned Advocate for the respondents.
Mr. 'S.P. Lodhi, learned Representative has contended that the respondents management was not giving the' benefits to the workers for which the applicant union raised hue and cry which annoyed the respondent establishment and they started victimizing the office-bearers of the applicant and harassing them. It was further contended by the learned Representative for the applicant that due to trade union activities the respondents management has issued charge-sheet to office-bearers and active members of applicant union which amounts to act of unfair labour practice. It was further contended that under section 22(12)(b) of the I.R.O., 1969, the C.B.A. can represent the workmen in any proceedings as such this application is maintainable and the N.I.R.C. having the jurisdiction of unfair labour practice can interfere in the matter. He, therefore, further contended that the applicant has made out a prima facie case for grant of interim relief as such the interim prohibitory order granted on 19-10-1998 be confirmed.
Mr. Shaikh Haider Bux, learned Advocate for the respondents contended that from the petition itself no case of unfair labour practice has been made out by the applicant as there is no specific allegation of unfair labour practice against the respondents. He has further contended that issuance of charge-sheet to any of the employee is not an act of unfair labour practice as it is a legal right of the employer which cannot be taken away by any Court of law. The persons against whom the charge-sheets have been issued are working in the respondent establishment since last 10 years and if there was any enmity against them due to their trade union activities, they would have been issued charge-sheets earlier. He has further contended that no specific instance in the shape of detail of incident has been, shown in the petition as such the petition is not maintainable having no allegation of unfair labour practice as such the N.I.R.C. has no jurisdiction to entertain the same; therefore, the application be dismissed and the interim prohibitory order passed by this Bench of Commission on 19-10-1998 be recalled. In support of his contention, the learned counsel for the respondents has placed his reliance on 1988 PLC 884, 1994 PLC 35 and 1998 PLC 62.
I have given my thoughtful consideration to the arguments advanced by Mr. S.P. Lodhi, learned representative for the applicant and Mr. Shaikh Haider Bux, learned Advocate for the respondents and have gone through their pleadings.
The main objection of the respondents on the maintainability of the petition is that no specific instance or allegation of unfair labour practice has been mentioned in the entire petition by the applicant union which falls within the ambit of section 15 of the I.R.O., 1969 and in absence of allegation of unfair labour practice, the petition is not maintainable and this Bench of N.I.R.C. has no jurisdiction to entertain the same. They have also stated that issuance of charge-sheet is prerogative of the management which cannot be curbed and in support of their contention, the learned counsel for the respondents has relied upon some citations/case-lave which are distinguishable from the present case.
It has been contended that due to pursuance of the applicant union to make payment of legal rights and benefit to the workers including payment of special allowance, the respondents are annoyed with the office-bearers and active members of the union and have issued charge-sheets to them.
I have also gone through the correspondence made by the union to the respondents establishment which indicates that the benefits and legal rights of the workers are being denied by the management. There is nothing on record by way of documentary proof from the respondent's side to show the denial of the reported claims of the applicant union. The contention that the charge-sheets were issued because of the trade union activities can only be decided on the basis of evidence. The applicant has thus made out a prima facie case for grant of prohibitory order as such I allow application under Regulation 32(2)(c) of N.I.R.C. (P&F) Regulations, 1973 and confirm the interim prohibitory order passed by this Bench of Commission on 19-10-1998. The parties are directed to adduce their evidence. To come up on 25-1-1999 for filing affidavit-in-evidence by applicant.
H.B.T./4-NIRC Application granted.
2000 P L C 260
[National Industrial Relations Commission]
Before Aijaz Ahmad K. Shaikh, Member
HASHIMI CAN COMPANY EMPLOYEES UNION through General Secretary
Versus
HASHIMI CAN COMPANY through
Manager Personnel and Administration
Cases Nos.4-A(294)-K and 24(294)-K of 1998, decided on 11th December, 1998.
West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)---
----S.O.11---Industrial Relations Ordinance (XXIII of 1969), S.22-A(8)(g)--National Industrial Relations Commission (Procedure and Functions) Regulations, 1973, Regln. 32(2)(c)---Lay off---Interim prohibitory order, grant of---Applicants employees' union had prayed to prohibit respondent employer from continuing lay off of employees on alleged grounds of financial losses---Applicant Union had also alleged that employer was putting pressure upon union to agree and to enter into a settlement for a large scale retrenchment of senior workmenagainst principles of last in first go--Applicant union had claimed that lay off could be effected only in case of fire, breakdown of machinery, civil commotion or any other cause beyond control---Employer had justified lay off contending that there had been fall of production due to lack of orders in respect of goods manufactured in employer-Company and that employer had been facing economic problem and financial .difficulties---Financial difficulties and uneconomic operations being valid grounds for lay off, interim prohibitory order granted to applicant union against employer was recalled dismissing application filed by union under Regln. 32(2)(c) of National Industrial Relations Commission (Procedure and Functions) Regulations, 1973---Allegation of union with regard to forcing union to sign settlement as dictated by employer, needing evidence, could be decided at time of final disposal of petition under S.22-A(8)(g), Industrial Relations Ordinance, 1969.
1983 PLC 411; AIR 1960 SC 893; PLD 1991 SC 183; 1983 PLC 1359; 1992 SCMR 36; 1986 PLC 751; Iftikhar Ahmad and others v. President, National Bank of Pakistan. PLD 1988 SC 53; 1976 PLC 626; 1964 PLC 593 and 1981 PLC 390 ref.
Ali Amjad for Applicant.
Mehmood Abdul Ghani for Respondent.
Date of hearing: 11th December, 1998.
2000 P L C 444
[National Industrial Relations Commission]
Before Ghulam Nabi Bhatti, Member
MUHAMMAD YOUSAF
Versus
PUNJAB SMALL INDUSTRIES CORPORATION and others
Cases Nos. 4A(122)-L and 24(122)-L of 1999, decided on 4th October, 1999.
Industrial Relations Ordinance (XXIII of 1969)---
----Ss. 15 & 22-A(8)(g)---Unfair labour practice by employers---Employees who had attained status of permanent employees had alleged in their petition that employers had not issued orders of regularisation of their services despite they had completed prescribed period required under law and that on account of their lawful trade union activities employers intended to terminate their services without observing legal formalities---Validity---Employers could not prove that employees had got their employment by way of fraudulent act by deceiving employers---No complaint was there against employees about their working as they were performing their duties satisfactorily and they had completed period required under law and by operation of law had become permanent employees---Petitions filed by employees was accepted with direction to employers not to terminate services of employees without observing legal formalities i.e. issuance of charge sheet, show-cause notice, and proper enquiry---Employers were also directed not to commit any act of unfair labour practice specified under S.15 of Industrial Relations Ordinance, 1969.
P L D 1996 SC 610 ref.
Ijaz Ahmad Awan for Respondents.
2000 P L C 481
[National Industrial Relations Commission]
Before Khawaja Mahmood Ahmad, Chairman, Abdul Rashid Khan and Nabi Bakhsh Bhatti, Members
THE EXECUTIVE ENGINEER, CENTRAL CIVIL DIVISION-II PAK. PWD, 11-EGERTON ROAD, LAHORE and 2 others
versus
MUHAMMAD MUSTAFA and another
Appeal No.12(199)-L of 1998, decided on 18th August, 1999.
Industrial Relations Ordinance (XXIII of 1969)---
----Ss. 22-A(8)(g) & 22-D---Revision---Unfair labour practice by employer--Employee appointed as "work Mistri" was promoted as Foreman, but his promotion subsequently was cancelled by Competent Authority and employee was reverted to his original post of work Mistri---Employee had alleged that his reversion was on account of his trade union activities and that employer in reverting 'him had committed unfair labour practice---Employee had not been able to prove that his reversion was made on account of his trade union activities---Employee even in his petition' filed against his reversion under S.22-A(8)(g) of Industrial Relations Ordinance, 1969, except general allegations, had not mentioned any particular instance---Employee could have a good case in some other forum, but not before National Industrial Relations Commission because jurisdiction of the Commission was limited only to the extent of unfair labour practice and it had no general jurisdiction.
PLD 1969 SC 407 ref.
Riaz Ahmad for Appellants.
Respondent No. 1 in person
2000 P L C 483
[National Industrial Relations Commission]
Before Nabi Bakhsh Bhatti, Member
SHEHZAD SHAHEEN SHIBLI
versus
MUSLIM COMMERCIAL BANK through General Manager, Peshawar and 2 others
Cases Nos. 4A(103)/24(104) of 1998-L, decided on 28th July; 1999
(a) Industrial Relations Ordinance (XXIII of 1969)---
----Ss. 15' & 22-A(8)(g)---National Industrial Relations Commission (Procedure and Functions) Regulations, 1973, Regln. 32---Unfair Labour practice, by employer---Doctrine of res judicata---Reliance on ---Validity--Dismissal from service of employee on account of trade union activities--Employee who was dismissed from service had filed petition against .his dismissal alleging that he having been elected General Secretary of Officers Union of the Bank had been victimized for his trade union activities--Petition was resisted by Bank alleging that it was barred by doctrine of "res judicata"--Doctrine of res judicata was not applicable in the case of petitioner as order of dismissal from service was neither challenged earlier by petitioner before Bench of National Industrial Relations Commission nor before High Court--Trade union,, earlier, had challenged transfer of employees who were victimized by the Bank on account of their trade union activities and petitioner had simply challenged show-cause notice issued to him with the prayer that Bank be restrained from commission of further acts of unfair labour practice---No case against dismissal from service being pending before any Court, nor same matter having been decided earlier-in any proceedings, doctrine of res judicata. was not applicable to matter of petitioner as alleged by employer.
(b) Industrial Relations Ordinance (XXIII of 1969)---
----Ss. 2(xxviii) & 22-A(8)(g)---National Industrial Relations Commission (Procedure -and Functions) Regulations, 1974, Regln. 32---Workman--Determination---Test---Petitioner/employee though was promoted in category of Officer Grade-III and then Grade-II, but he had no managerial or administrative function to perform as officer and was only symbolically known as officer of the Bank without having any powers of officer and was performing clerical duties---Employee, in circumstances, was a "workman"---Real test whether a person was a workman or not did not depend upon designation or salary, but depended only upon nature of duties---Officers Grades III -and II serving in Banks even otherwise were workmen.
1979 SCMR 304; 1988 SCMR 1664; 1990 PLC 142; 1992 SCIVIR 1891; 1993 SCMR 672 and 1999. PLC 297 ref.
(c) Industrial Relations Ordinance (XXIII of 1969)---
----Ss. -15 & 22-A(8)(g)---National Industrial Relations Commission (Procedure and Functions) Regulation, 1973, Regln. 32---Dismissal from service---Unfair labour practice by employer---Employee who was dismissed from service, was elected General Secretary of union of the Bank, was never alleged to have committed misconduct and no event with regard to his misconduct was mentioned in charge-sheet---Allegations levelled against employee in charge-sheet on basis of which he was dismissed from service, could not be proved in domestic inquiry held against petitioner, but despite that a drastic action of dismissal was taken against him without providing him any opportunity of defence---Case of petitioner fell within ambit ofS.15, Industrial, Relations Ordinance, 1969 and his dismissal was only outcome of mala fide and intentional victimization due to lawful trade union activities---Order of dismissal of employee was set aside, in circumstances.
(d) Industrial- Relations Ordinance (XXIII of 1969)---
----Ss. 15 & 22-A(8)(g)---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O. 15(4)--Dismissal from service- --Principles of natural justice---Applicability-Employee having been dismissed from service without affording him opportunity of defence, it was contended on part of employer that supply of Inquiry Report, issuance of second show-cause notice, and opportunity of personal hearing while taking disciplinary action against employee was not the requirement of law-- -Contention of employer was repelled because accused must be given an opportunity of final show-cause notice alongwith findings of Inquiry Report with proposed specific punishment to enable him to defend his case against such punishment - Where such a basic requirement of law was not fulfilled, order against employee would be liable to be struck down being void ab initio---Right of "audi alteram partem" was the basic requirement of law for a citizen and no adverse order against employee could be passed without providing him right of personal hearing by punishing Authority.
1990 SCMR 1701; 1991 PLC (C.S:) 706; 1987 SCMR 1562; 1992 PLC (C.S.) 1185;1992 PLC (C.S.) 678; 1993 SCMR 122; 1997 PLC (C.S.) 1146 and 1998 SCMR 91 ref.
(e) Industrial Relations Ordinance (XXIII of 1969)---
----Ss. 22-A(8)(g) & 25-A---Remedy before National Industrial Relations .Commission---Nature---Remedy before National Industrial Relations Commission is an independent and additional remedy for dealing with cases of dismissal by way of victimization on account of trade union activities--Failure to invoke remedy under S.25-A of Industrial Relations Ordinance, 1969, is not a bar to application before National Industrial Relations Commission under S.22-A(8)(g) of the Ordinance---Contention that for invoking jurisdiction of National Industrial Relations Commission under S.22(A)(8)(g) of Industrial Relations Ordinance, 1969, requirement of prior notice under S.25-A of said Ordinance, was to be fulfilled by the aggrieved employee was repelled, in circumstances.
PLJ 1980 Kar. 376 and 1987 PLC 298 ref.
Abdul Hakeem Awan for Petitioner.
Anjum Sohail for Respondents.
Date of hearing: 28th July, 1999
2000 P L C 492
[National Industrial Relations Commission]
Before Khawaja Mahmood Ahmad, Chairman, Abdur Rashid Khan and Nabi Bakhsh Bhatti, Members
KHIZAR HAYAT and 4 others
versus
HABIB BANK LIMITED through President, Head Office, Habib Plaza, I.I. Chundrigar Road, Karachi and 2 others
Appeal No.12(16) of 1998-L, decided on 18th August, 1999.
Industrial Relations Ordinance (XXIII of 1969)---
----Ss. 22-A(8)(g)- & 22-D---Removal from service-Employee working as cashier in Bank; was removed from service on ground that he remained confined for more than one year in a criminal case registered against him--Employee had challenged his removal from service contending that he had been removed .from service 'on account of his trade union activities which fell within ambit of unfair labour practice by employer---Employee had only made a bald statement that- he `was removed on account of his trade union activities without giving any specific instance of unfair labour practice of employer---In order to establish a case of unfair labour practice employee was supposed to satisfy mind of National Industrial Relations Commission that employee had been. victimized because employer was annoyed with employee for trade union activities, detail of which should have been made available, but no said allegations were made by employee in his plaint before National Industrial Relations Commission---Whether proper legal enquiry was held or not before termination, it was not for National Industrial Relations Commission to examine said aspect, because jurisdiction of said Commission was strictly confined to unfair labour practice, which was lacking in case of employee---Order passed by Single Member of National Industrial Relations Commission could not be interfered with in appeal, in. circumstances.
Agha Saleem Khurshid for Appellant.
Mian Abdur Rashid for Respondents.
2000 P L C 495
[National Industrial Relations Commission]
Before Kahawaja Mahmood Ahmad, Chairman, Bahadar Ali and Abdur Rashid Khan, Members
KARAM DIN
versus
ADMINISTRATIVE OFFICER, PIAC, LAHORE AIRPORT, LAHORE and another
Appeal No 12(27) of 1999-L, decided on 18th August, 1999.
Industrial Relations Ordinance (XXIII of 1969)---
---Ss. 22-A(8)(g)) & 22-D---Dismissal from service on ground of misconduct---Appeal---Maintainability---Appellant/employee after issuing him show-cause notice and after holding enquiry and affording him opportunity of hearing, had alleged in his petition filed against his dismissal after 11 years of his dismissal from service that he had been dismissed from service on account of trade union activities--Appellant/employee having failed to make out case of unfair labour practice against employer, petition filed by appellant/employee against his dismissal from service after lapse of 11 years, was rightly dismissed by Single Bench of National Industrial Relations Commission---In absence of any cogent reason, appeal against said dismissal order was dismissed being without force.
Riaz Ahmed for Appellant.
Shoab Saeed for Respondents.
2000 P L C 497
[National Industrial Relations Commission]
Before Nabi Bakhsh Bhatti, Member
LIAQAT ALI and others
versus
POST MASTER GENERAL, PUNJAB, MULTAN and others
Cases Nos., 4-A(100)-L of 1997, 4-A(148)-L 4-A(156)-L of 1999, 4-A(898)-L 4-A(959)-L, 4-A(888)-L of 199$, 4-A(8)-L, 4-A(18)-Land 4-A(121)-L of 1999, decided on 15th September, 1999.
Industrial Relations Ordinance (XXIII of 1969)---
----S. 22-A(8)(g)---Constitution of Pakistan (1973), Arts. 2A, 3, 9 & 25--Termination of services on ground of age---Unfair labour practice by employer---Employees were appointed in Pakistan Post Office Department after fulfilling all requirements of law and after scrutiny and verification of their testimonials without any objection regarding educational qualification or other fitness and about age for appointments of employees---Employees had been serving in employer establishment for periods ranging from 3 to 10 years continuously, but thereafter employer decided to terminate their services alleging them to be overage by two to three years at time of their appointment---Employees had invoked jurisdiction of National Industrial Relations Commission by filing petition under S.22-A(8)(g) of Industrial Relations Ordinance, 1969 with a prayer to declare said act of employer as unfair labour practice---Earlier, Deputy Director (Admn.) of the concerned department vide his order had directed Post Master General to grant relaxation in upper age limit of certain employees in the establishment--Employees in circumstances were found to be victim of worst discrimination in regard to their employment and condition of employment at the hands of employer---Even otherwise employers who themselves had appointed employees many years earlier, could not be allowed to take. benefit of their own lapses in order to terminate services of employees as objection as to over-age with regard to employees was never raised by employer at time of appointment of employees or immediately thereafter---Employees had acquired sufficient skill and experience to render valuable services to the State and being in lowest category of employees, it would be unjust militating against provisions of Arts. 2A, 3, 9 & 25 of Constitution of Pakistan (1973) to deprive them of their livelihood---Orders of employers were set aside by National Industrial Relations Commission and case was remanded to grant relaxation in upper age limit accordingly.
1996 PLC (C.S.),927; 1997 PLC 562 and 1999 PLC 75 ref.
2000 P L C 501
[National Industrial Relations Commission]
Before Nabi Bakhsh Bhatti, Member
SHABBIR HUSSAIN HABIB, DEPUTY MANAGER (ADMINISTRATION), D.G. KHAN CEMENT COMPANY OF NISHAT GROUP OF INDUSTRIES, LAHORE
versus
NISHAT GROUP OF INDUSTRIES through Chief Executive/Chairman, 53-A Lawrence Road, Lahore and another
Cases Nos.4-A(3472) and 24(31178) of 1995-L, decided on 16th September, 1999.
(a) Industrial Relations Ordinance (XXIII of 1969)---
-S. 2(xxviii)---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(i)---"Workman"-Determination---Employee who was employed as Deputy Manager Administration had claimed to be a "workman" contending that his status was to be determined in view of duties performed by him and not in view of his designation---Employee in his evidence had admitted that he was appointed as Security Officer and then was converted as Junior Commercial Officer and finally he was promoted as Deputy Manager (Administration)---Employee during his cross-examination had not deposed that he performed such functions by virtue of which he fell within definition of workman"--Employer had established through documentary evidence on record that employee was performing duties of managerial and supervisory nature and was acting on behalf of employer to deal with labour union which he himself neither was member nor office-bearer---Employee, in circumstances, was not covered by definition of workman or worker.
1979 SCMR 304; 1999 SCMR 157; 1992 SCMR 897; 1997 PLC 550; 1989 PLC 934 and 1979 PLC 307 ref.
(b) Industrial Relations Ordinance (XXIII of 1969)---
----S. 22-A(8)(g)---Unfair labour practice by employer---Employee who was dismissed from service on ground of unsatisfactory service, had alleged that he had been victimised on account of .his trade union activities which constituted acts of unfair labour practice on part of employer---Employee who was serving as Deputy Manager (Administration), neither was member nor office-bearer of any labour union and being an officer did not fall in definition of "workman"---Employee being Deputy Manager, could not participate in trade union activities and he had not mentioned specific instance of unfair labour practice allegedly committed by employer and employee had also not mentioned any detail of trade union activities with trade union which could upset employer---In absence of any said activities, National Industrial Relations Commission could not adjudicate upon the matter because unfair labour practice on account of trade union activities was the prerequisite for invoking jurisdiction of said commission.
Mian Mahmood Hussain for Petitioner.
S. Naeem Bokhari alongwith Syed Iqtidar Shah for Respondents.
2000 P L C 510
[National Industrial Relations Commission]
Before Nabi Bakhsh Bhatti, J
Mst. MANSOORA TABBASUM
versus
ARIF KHAN ABBASI and others
Case No.7(543) of 1998-L, decided on 19th July, 1999
(a) Industrial Relations Ordinance (XXIII of 1969)---
----S. 2(viii) & (xxviii)---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S. 2(i) & S.O.20--Employmen through contractor---Rights of employee=--Workman/employee employed through contractor, would have lawful right to claim to be the employee of concerned establishment with all the due employment and legal rights at par with other regular workers in which workman executed his services under the control of the Authorities of the related establishment.
1987 SCMR 1463 and D.C. Workers Limited v. State of Saurashtra and others AIR 1957 SC 264 ref.
(b) Industrial Relations Ordinance (XXIII of 1969)---
----S. 2(viii) & (xxviii)---West Pakistan Industrial and Commercial Employment (Standing- Orders) Ordinance (VI of 1968), S. 2(i) & S.O.20---Contract of employment---Ingredients---Relationship of employer and employee---Concept of employment involved three ingredients; employer; employee and contract of employment---Employer was one who engaged services of other persons and employee was one who worked for another on hire and employment was the contract of service between employer and employee where under employee agreed to serve the employer subject to his contract and supervision---Prima facie test for the determination of the relationship between -employer and employee was the existence of -the right in the employer to supervise and control the work done by employee not only in the matter of directing what work employee was to do, but also the manner in which he would do his work.
United States of America v. Silk (1946) 131 US 704; British India Engineering Works' Karachi v. Akhtar Hussain Khan and others 1960 LCC 7; Taj Din and 44 others v. Punjab Labour Court No.3, Lyallpur PLD 1976 Lah. 1169; Employees' Social Security Institute v. Pakistan National Produce Company Limited 1989 PLC 81; 1978 LLJ 397; Hussain Bhai Calicut v. Alath Factory Union' and others 1992 PLC 1193; Siemens Pakistan Engineering Company Limited v. Nisar Gill and others 1992 PLC 1193; General Secretary, Pak-Saudi Fertilizer v. Pak. Limited 1993 PLC 931; M/s. Hinopak Motors Limited v. Muhammad Sharif and others 1994 PLC 90 and Abdullah and 10 others v. Messrs Daud Cotton Mills Limited 1998 PLC 147 ref.
(c) Industrial Relations Ordinance (XXIII of 1969)---
----S. 2(viii) & (xxviii)---Contractor---Meaning and scope---Contractor is of "person who in pursuit of an independent business undertakes to-do specific jobs or work for other persons without submitting himself to their control in respect to the details of the work.
(d) West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)---
----S. 2-A & S.Os. 12(3) & 20---Appointment of employees---Obligations of employer---Legal obligation of employer to provide orders of appointment in writing to workers at the time of their appointment, transfer, promotion etc. showing terms and conditions of their services---Employer of an industrial and commercial, establishment under S.O 20, West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 would personally be held responsible for proper and faithful observation of law provided in the said Standing Orders, whether or not the workman was employed through contractor---Employer was also obliged to issue termination order to employee in writing explicitly stating reasons for action taken and communicate to workman effectively.
PLD 1985 Lah. 407 and 1992 PLC 255 ref.
(e) Industrial Relations Ordinance (XXIH of 1969)---
----S. 3---Formation of trade union---Prerogative to form trade union, is not only that of permanent workers, but all workers without distinction, can form a union in terms of S.3, Industrial Relations Ordinance, 1969--Temporary workers would be a member and voter of union and no restriction could be imposed which was not intended by the Legislature---Person being employee of establishment had got sight to join trade union of her choice--Contention that since establishment had never issued to an employee letter of appointment, she could not be member of trade union registered in the establishment, was repelled.
1997 PLC 746 ref
(f) Industrial Relations Ordinance (XXIII of 1969)---
----Ss. 15, 22-A(8)(g) & 22-C---Service Tribunals Act (LXX of 1973), Ss.2-A & 4---Unfair labour practice by employer---Complaint---Complain; by employee against unfair labour practice was resisted by employer contending that after insertion of S.2-A in Service Tribunals Act 1973, complainant could not invoke jurisdiction of National Industrial Relations Commission as remedy lay for her only with Service Tribunal ---validity--Employer at one hand had-entirely denied relationship of employer and employee with complainant employee and on the other hand employer had rendered complainant employee to be a civil servant---Law would not allow employer to approbate and reprobate and blow hot and cold in the same breath---Even otherwise acts of unfair labour practice of employer fell outside the scope of S. 4, Service Tribunals Act, 1973 as no remedy had been provided for said acts of employer with Service Tribunal and exclusive remedy guaranteed to employee lay only with National Industrial Relations Commission under Industrial Relations Ordinance, 1969.
PLD 1997 SC 107; PLD 1990 SC 681; 1992 SCMR 1290 and 1999 SCMR 819 ref.
(g) Industrial Relations Ordinance (XXIII of 1969)---
-----Ss. 22-A(8)(g) & , 22-C---National Industrial Relations Commission (Procedure and Functions) Regulations, ' 1973, Regln. 32---Stay order--Grant of---Ad interim order was passed in favour of employee on her application filed under Regln. 32, National Industrial Relations Commission (Practice and Functions) Regulations, 1-973 when employee was on the roll/duty of employer---Employer on the very next day disallowed employee and restrained her from entering the office premises deliberately and intentionally---Such act of employer prima facie had constituted act of contempt of orders of National Industrial Relations Commission as provided under S.22-C of Industrial Relations Ordinance, 1969---Stay order issued in favour of employee, would come into effect the moment it was passed and same was binding on parties---Employer could not be allowed to defy the order.
Bakhtawar and others v, Amin and others 1980 SCMR 90 and PLD 1975 Lah. 126 ref.
(h) Industrial Relations Ordinance (XXIII of 1969)---
----S. 2 (xxviii)- expression either directly or through a contractor" occurring in S.2(xxviii) of the Industrial Relations Ordinance. 1969 indicates the position that employment, being by management directly or through some kind of employment agency would be considered a contract of employment between management and person so employed.
Sheikh Abdul Hameed for Petitioner.
Javaid Altaf for Respondents.
2000 P L C 557
[National Industrial Relations Commission]
Before Nabi Bakhsh Bhatti, Member
Rana ABDUL SATTAR
versus
PASSCO
Case No.4-A(850) of 1998-L, decided on 18th August, 1999.
(a) Industrial Relations Ordinance (XXIII of 1969)---
----S.22-A(8)(g)---West Pakistan Industrial. and Commercial Employment `(Standing Orders) Ordinance (VI of 1968), S.O. 15(2)(b)---Misconduct--Right of employer to hold enquiry---Employer had right to issue charge-sheet and to hold enquiry into charges of misconduct which was prerogative of employer which could not be taken away on allegations of unfair labour practice or on pretext of trade union activities---No bar could be imposed on the employer, that he could not hold enquiry against any office-bearer or member of trade union, guilty of misconduct---No licence could be given to employee who was an office-bearer to commit misconduct, misappropriation, embezzlement, during his service and employer was not helpless to proceed against said employee---Employer had a guaranteed right to deal with case of misconduct in accordance with law and rules applicable to employee subject to conditions that there should not be any element of mala fide or unfair labour practice or victimisation/discrimination against employee-Employers were well within their legal right to proceed with cases et misconduct, committed by employee and National Industrial Relation, Commission had no right to sit as an Inquiry Officer over the affairs of establishment which - were purely of administrative in nature---National Industrial Relations Commission had to see only whether an unfair labour practice on basis of trade union activities of employee had been committed or not.
(b) Industrial Relations Ordinance (XXIII of 1969)---
----S. 22-A(8)(g)---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O. 15(3)(b)---Misconduct--Dismissal from service on allegation of misconduct and misappropriation--Employee was dismissed from service after issuing him show-cause notice and holding enquiry against him on allegation of misappropriation of wheat filled bags under charge of employee at relevant time---Employee was given opportunity to defend him in enquiry proceedings and charges levelled against employee had stood proved--Employee had failed to produce or record any evidence to show that he had been victimised due to his trade union activities---Employee, in circumstances, had rightly been dismissed from service on allegation of misconduct.
(c) Industrial Relations Ordinance (XXIII of 1969)---
----Ss. 22-A(8)(g) & 25-A---Principle of res sub judice---Applicability--.Employee had challenged order of his dismissal from service in his grievance petition under S.25-A of Industrial Relations Ordinance, 1969---Pending said grievance petition, employee concealed the fact of his filing petition under S.22-A(8)(g) of Industrial Relations Ordinance, 1969 before National Industrial Relations Commission---Effect---Employee could not be allowed to seek two remedies at two different forums for same cause of action which would be hit by principle of res sub judice.
2000 P L C 570
[National Industrial Relations Commission]
Before Aijaz Ahmad K. Shaikh, Member
MOULA BUX BALOCH and another
versus
Messrs RICE EXPORT CORPORATION
Cases Nos.7(67)-K and 7(69)-K of 1998, decided on 13th November, 1999.
Industrial dispute--
---- Retirement under Voluntary Retirement Scheme---Payment of dues--Employees who claimed payment of certain amount under different heads were retired under Voluntary Retirement Scheme---Employees who had accepted Voluntary Retirement Scheme and were no more in service of employer, were not entitled for any payment for which they had not worked when amount due had already been released by employer and had: been received by them.
1996 PLC 5 ref.
Ch. Muhammad Ashraf for Applicants.
Raja Aftab for Respondents.
Date of hearing: 13th November, 1998.
2000 P L C 579
[National Industrial Relations Commission]
Before Dr. Ajaz Ahmad K. Shaikh, Member
BERGER PAINTS PAKISTAN LTD. Through Democratic Employees' Union and others
versus
BERGER PAINTS PAKISTAN LTD., through Factory Manager and others
Case No.4(133)(K), 24(131)(K) of 1998; decided on 14th December, 1998.
(a) Industrial Relations Ordinance (XXIII of 1969)---
----Ss.- 22-A(8)(g) & 22-D---Jurisdiction of National Industrial Relations Commission---National Industrial Relations Commission could not sit in appeal over enquiry conducted by employer---Provisions of S.22-A(8)(g) of Industrial Relations Ordinance, 1969 would not confer a general jurisdiction upon the Commission to entertain all , kinds of grievance petitions even though those might not contain an element of unfair labour practice.
PLD 1988 SC 53 ref.
(b) Industrial Relations Ordinance (XXIII of 1969)---
----S. 22-A(8)(g)---National Industrial Relations' Commission (Procedure and Functions) Regulations, 1973, Regln 32(2)(c)---Interim stay, grant of---For purpose of confirmation or vacation of stay, it was necessary to examine if issuance of charge-sheets in the background of settlement/custom/ practice/usage relating to absence from work or violence of employees had constituted unfair labour practice or misconduct---Evidence, in view of peculiar circumstances of case, could be recorded before said issues were, determined or clarified---In absence of Amy ground for vacation of stay granted by National Industrial Relations Commission, interim prohibitory orders were confirmed.
NLR 1982 Civil 490; PLD 1983 Kar. 387; 1982 PLC 691; 1996 PLC 12 and 1976 PLC 158 ref.
(c) West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)---
----S.O. 15(3)(e) & (f)---Habitual of coming late and habitual absence from duty---Habitual late coming or habitual absence, without permission, no doubt was a misconduct, but provisions of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 could be construed to the advantage of workers.
(d) West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)----
----S.O. 15---Misconduct---Management, no doubt, was entitled to charge-sheet office-bearers of union in their capacity as employees/workers if they committed some act of misconduct, but with condition that it would neither discriminate between ordinary worker and office-bearers of a union nor it would contain an element of unfair labour practice in background of issuance of charge-sheet.
Abdul Ghaffar for Applicants.
Muhammad Ali Khan for Respondents.
Date of hearing: 14th December, 1998
2000 P L C 594
[National Industrial Relations Commission]
Before Aijaz Ahmed K. Shaikh, Member
MUHAMMAD SALEEM SANIRANI, ENGINEERS, S.S.G.C
versus
SUI SOUTHERN GAS OFFICERS ASSOCIATION and others
Cases Nos.7(127)-(K), 24(510)-(K) of 1998, decided on 14th November, 1998.
Industrial Relations Ordinance (XXIII of 1969)---
----S.8(7)---Provisions of S.8(7) pertained to dispute in relation to change of office-bearers of a trade union and not to holding of election of office-bearers on the expiry of their terms---In absence of any dispute in relation to change of officers of trade union., application filed under' S.8(7) of Industrial Relation Ordinance, 1969 wherein prayer for holding election was made, was not maintainable---Applicant should have approached Registrar, Industry-wise Trade Unions for his relief.
Maqsood Akhtar Butt v. Muhammad Rafique Awan and others 1996 PLC 35; Haji Khan Bhatti v. NIRC and others 1992 PLC 594; General Secretary, Sui Northern Professional Engineers Association v. Sui Northern Gas Pipelines Limited and others 1993 PLC 168; Syed Mushtaque Hussain Shah v. Riai Muhammad Hazarvi and another PLD 1978 Kar. 612 and Zafar Muhammad, General Manager; TIP, Haripur and another v. Ghulam Asghar and 4 others 1988 PLC 923 ref.
M.A.K. Azmati for Applicant.
Masood Noorani for Respondent No. 1.
Nemo for the Remaining Respondents.
Date of hearing: 14th November, 1998
2000 P L C 608
[National Industrial Relations Commissions]
Before Nabi Bakhsh Bhatti, Member
MUHAMMAD HANIF and others
versus
CHIEF ADMINISTRATOR (AUQAF) and others
Cases Nos.4A(441)/99-L, 4A(642)/98-L, 4A(704)/98-L and 4A(720)/98-L, decided on 27th September, 1999.
Industrial Relations Ordinance (XXIII of 1969)----
-----S.22A(8)(g)---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S. Os.l(b) & 15(4)---Permanent workman---Termination of service---Employees who had been serving for the last so many years, their services were terminated without issuing them charge-sheet, show-cause notice and without holding proper enquiry against them---length of service of employees in the department was more than nine months and works/posts against which they were appointed were of permanent nature and were likely to last for more than nine months--Employees, in circumstances, having attained status of permanent employees, their services could not have been terminated without issuing them charge-sheet, show-cause notice, holding proper enquiry and assigning any reason.
PLD 1996 SC 610 and Managing Director, WASA, LDA, Lahore v. Barkat Masih and another Civil Appeal No. 1650/L of 1998 ref.
Ch. Nazir Muhammad for Petitioners.
Muhammad Arif Raja for Respondents.
2000 P L C 241
[Peshawar high Court]
Before Mian Shakirullah Jan and Talat Qayum Qureshi, JJ
ALLIED BANK OF PAKISTAN LIMITED through General Manager and 2 others
Versus
Qazi TARIQ JAVED and 2 others
Writ Petitions Nos.74 of 1995 and 139 of 1996, decided on 5th October, 1.999.
(a) Industrial Relations Ordinance (XXIII of 1969)----
----S. 25-A(5)---Grievance, determination of---Setting aside of inquiry report--- Jurisdiction of Labour Court to go behind a dismissal order--Validity----Labour Court under S.25-A(3), Industrial Relations '-Ordinance, 1969 has jurisdiction to go behind order of dismissal and to see for itself as to whether on the facts and in the circumstances of the case order of dismissal was justified or not, both on merits as well as in law---Where the Labour Court found serious defects and irregularities in the inquiry which had resulted in causing of miscarriage of justice or where the Inquiry Officer had not taken into consideration the' relevant evidence or had misread evidence, the Labour Court would not be debarred from to set at naught such an inquiry report---Labour Court could, therefore, go behind dismissal order in circumstances.
Crescent Jute Products Ltd., Jaranwala v. Muhammad Yaqoob and others PLD 1978 SC 207 and National Bank of Pakistan v. Punjab Labour Court No.7 and others 1939 SCMR 1372 ref.
(b) Industrial Relations Ordinance (XXIII of 1969)---
----S.25-A---Constitution of Pakistan (1973), Art.199---Constitution of petition---Back benefits, entitlement of---Dismissal of Bank employee on the charge of misappropriation ---Complainant on whose complaint the employee was dismissed did not appear in support of his allegations, thus, failed to prove his case and the Bank also failed to prove the charge of misappropriation before the Inquiry Officer---Charge of misappropriation having not been established, Labour Court set aside the order of dismissal and employee was held entitled to 50% of back benefits and costs of the case---Labour Appellate Tribunal upheld the order of the Labour Court in appeal---Validity---Lapses on the part of employee having been found by both the Courts below, employee was not entitled to full benefits in peculiar circumstances of the case---High Court declined to interfere with the concurrent findings of both the Courts of competent jurisdiction in circumstances.
Rashidul Haq Qazi for Appellants. Fazal-e-Gul Khan for Respondents.
Date of hearing: 5th October, 1999.
2000 P L C 336
[Peshawar High Court]
Before Sardar Muhammad Raza Khan and Mrs. Khalida Rachid, JJ, Messrs GLOBE TRADERS
Versus
EOBI and others
Writ Petition No. 1836 of 1997, decided on 29th July, 1999.
(a) Employees' Old-Age Benefits Act (XIV of 1976)---
----Ss. 1(4), 2(c), 2(bb), 11(3) & 33---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Registration of company for payment of contribution---Company was registered under S.11(3), Employees' Old-Age Benefits Act, 1976 and was directed to make contribution---Company resisted the registration by filing complaint under S-33, Employees' Old-Age Benefits Act, 1976 alleging that number of employees in the Company during the whole period had never exceeded eight employees and application for the Act required the strength of ten employees---Complaint of Company was dismissed on the ground that three Directors of Company would also be included as employees of the company---Pay roll of Company had shown only eight employees therein and three Directors were members of one family---Even otherwise said Directors did not fall within the definition of "employee" as given in S.2(bb) of Employees' Old-Age Benefits Act, 1976---Total number of employees in the Company being less than required number of ten employees Old-Age Benefits Act, 1976 was not applicable to the Company---Order of Institution whereby Company was registered and was asked to make contribution was set aside by High Court, in exercise of Constitutional jurisdiction.
(b) Words and phrases--
----"Employee"---Definition and connotation---Employee is a person who is engaged by another on payment of wages---It connotes relationship between master and servant.
Qazi Abdur Rashid and Qazi Abdul Basit for Petitioner.
Salim Dil Khan for Respondents.
Dates of hearing: 15th and 16th June, 1999.
2000 P L C 199
[Supreme Court of Pakistan]
Present: Saiduzzaman Siddiqui, Sh. Ijaz Nisar and Kamal Mansurs Alam, JJ
IZHAR AHMED KHAN and another
Versus
PUNJAB LABOUR APPELLATE TRIBUNAL, LAHORE and others
Civil Appeals Nos.489 and 490 of 1994, decided on 20th May, 1999
(On appeal from the judgment of Lahore High Court, Bahawalpur Bench, dated 27-2-1993 passed in Writ Petition No. 144-S of 1991BWP and Writ Petition No. 143-S of 1991/BWP respectively).
(a) West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)---
----S.O.1(b)(c)---Constitution of Pakistan '(1973) Art185---Industrial dispute---Permanent workman and temporary workman'--Determination---Test---Nature of work on which a workman was employed would determine whether workman was permanent or temporary---If work was of a permanent nature likely to last for a period of more than nine month's, workman employed on such a work, who had successfully completed probationary period of three months would be deemed to be a "permanent workman"---If nature of work was temporary and was likely to be finished within a period of nine months, then workman employed on such work would be deemed to be "temporary workman"---Mere fact that work of a temporary nature continued beyond nine months, would not make a workman employed on such work a permanent workman as expression "likely to be finished within a period not exceeding nine months" used in definition clause of S.O. 1(b)(c) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, would admit within its scope that a work of temporary nature, could in certain circumstances, stretch beyond nine months---Evidence on record had shown that post against which appointment was made was of permanent nature though in appointment letter same was described as purely temporary and that period of employment continued beyond period of nine months---Employees in circumstances would be deemed to be "permanent workmen" the within the definition given in S.O. 1(b) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968.
Pakistan International Airlines v. Sindh Labour Court No.5 PLD 1980 SC 323; Messrs Pakistan National Produce Company Ltd., Shikarpur v. Nawab Ali Budhani and another 1990 PLC 585 and Abdul Hameed Kiranvi v. Sindh Labour Appellate Tribunal and others 1990 PLC 213 ref.
(b) West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)--
----S.O.1(b)---Industrial Relations Ordinance (XXIII of 1969), S. 38--Constitution of Pakistan (1973), Arts. 185 & 199---Permanent nature of work---Determination---Labour Appellate Tribunal on evidence on record had recorded finding of fact that last assignment of employees was far in excess of nine months which included three months' probationary period--Such finding of Labour Appellate Tribunal could not be reversed by High Court---Supreme Court set aside order of High Court reversing finding of Labour Appellate Tribunal and restored order of Labour Appellate Tribunal.
Farooq Zaman Qureshi, Advocate Supreme Court for Appellant.
Sh. Masood Akhtar, Advocate-on-Record (absent) for Respondents
Date of hearing: 13th May, 1999.
2000 P L C 209
[Supreme Court of Pakistan]
Present: Ajmal Mian, C.J., Sh. Riaz Ahmed and Ch. Muhammad Arif. JJ
PAKISTAN TELECOMMUNICATION COMPANY LIONS STAFF UNION
Versus
N.I.R.C., ISLAMABAD and 3 others
Civil Petition No.784 of 1998, decided on 25th June, 1998.
(On appeal from the judgment, dated 9-6-1998 of the Lahore High Court, Lahore in Writ Petition No. 11130 of 1998).
Industrial Relations Ordinance (XXIII of 1969)---
----Ss. 22 & 22-A---Constitution of Pakistan (1973), Arts. 185(3) & 199--Referendum for election of Collective Bargaining Agent---Union which remained unsuccessful in Referendum, filed objection before National Industrial Relations Commission with regard to illegalities and irregularities allegedly committed by Returning Officer---Pending objection petition, Union filed Constitutional petition before High Court challenging Referendum---High Court disposed of Constitutional petition with observations that National Industrial Relations Commission would try to dispose of objection petition of Union on next date of hearing and .thereafter if need be, Union would be free to avail remedy provided under law, subject to all just exceptions---National Industrial Relations Commission having not decided objection petition of Union in terms of order of High Court, respondent union filed Constitutional petition before High Court wherein they obtained stay of proceedings pending before National Industrial Relations Commission---Validity---High Court was not justified in: staying proceedings through its interlocutory order passed in Constitutional petition filed by respondent Union as same ran counter to order passed by High Court in Constitutional petition earlier filed by petitioner Union whereby National Industrial Relations Commission was directed to dispose of objection petition of petitioner Union---Order suspending proceedings pending before National Industrial Relations Commission passed by High Court in subsequent Constitutional petition of respondent-Union was set aside, in circumstances.
Mian Bashir Zafar, Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for Petitioner.
M. Asghar Malik, Advocate Supreme Court and Ejaz M. Khan, Advocate-on-Record for Respondent No.3.
Maulvi Anwarul Haq, Deputy Attorney-General (on Notice).
Date of hearing: 25th June, 1998.
JUDGMENT
2000 P L C 215
[Supreme Court of Pakistan]
Present: Irshad Hasan Khan, Raja Afrasiab Khan and Muhammad Bashir Jehangiri, JJ
QAYYUM NAWAZ, and 9 others
Versus
N.W.F.P. SMALL INDUSTRIES DEVELOPMENT BOARD, PESHAWAR
through Managing Director, Kohat Road, Peshawar and 4 others
Civil Appeal No. 658 of 1995, decided on 26th February, 1999.
(On appeal from the judgment/order of the Peshawar High Court, D.I. Khan Bench, dated 25-9-1994 passed in W.P. No. 58 of 1993).
(a) Industrial Relations Ordinance (XXIII of 1969)--
----Ss. 25-A & 38(3)---Constitution of Pakistan (1973), Art. 199--Constitutional petition---Contract period of service---Inclusion of such period in regular service---Finding of fact by Labour Appellate Tribunal--Interference by High Court in its Constitutional jurisdiction--Scope--Employees were appointed on contract basis and after expiry of extended period of service were relieved from service on payment of leave encashment and gratuity---Such employees, however, immediately after termination of their services were appointed on regular basis---Plea of employees that they were entitled to be acknowledged as regular employees even during period of contract, was turned down by Labour Court but in appeal, Labour Appellate Tribunal found that employees were regular employees of employer---High Court in exercise of its Constitutional jurisdiction, however, set aside judgment of Labour Appellate Tribunal---Validity---Labour Appellate Tribunal after considering entire evidence of parties had determined the question of facts that employees were permanent workmen per-forming duties in the establishment and that agreement entered into between employees and employer was based on mala fides to deprive employees of their lawful rights---Labour Appellate Tribunal had rightly found that agreement arrived au between parties with regard to re-employment was not valid in view of mandatory provisions of S.4 of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968---Finding of fact of Labour Appellate Tribunal, based on due appraisal of evidence on record, was not open w challenge by High Court in exercise of its Constitutional jurisdiction, especially when it was not shown that judgment of Labour Appellate Tribunal was without lawful authority or based on mala fides.
(b) Constitution of Pakistan (1973)---
----Art. 199---Constitutional jurisdiction---Scope---Constitutional petition against order/judgment passed by a Tribunal of exclusive jurisdiction would be competent only when it was shown that its judgment/order was without jurisdiction or without lawful authority or it was based on no evidence at all.
Qazi Muhammad Anwar, Advocate Supreme Court with Muhammad Zahoor Qureshi Azad, Advocate-on-Record for Appellants.
Muhammad Lateef, Advocate Supreme Court with Haji M.A. Qayyum Mazhar, Advocate-on-Record for Respondents.
Date of hearing: 26th February, 1999.
2000 P L C 235
[Supreme Court of Pakistan]
Present: Irshad Hasan Khan, Actg. C.J. and Sh. Ijaz Nisar, J
GHULAM MUHAMMAD
Versus
GOVERNMENT OF THE PUNJAB
through Secretary, Industries, Lahore and others
Civil Petition No.967-L of 1998, decided on 15th September, 1999.
(On appeal from the judgment, dated 23-4-1998 of the Lahore High Court, Lahore in Writ Petition No.7705 of 1998).
(a) Industrial Relations Ordinance (XXIII of 1969)---
----S. 25-A---Jurisdiction of Labour Court---Scope---Labour Court in the exercise of its powers under S. 25-A, Industrial Relations Ordinance, 1969 has full and complete powers to go into the question of fact and to arrive at its own conclusion regardless of there being any defect in the procedure in the domestic proceedings.
The Labour Court in the exercise of its powers under section 25-A of the Ordinance, has full and complete powers to go into the questions of fact and to arrive at its own conclusion regardless of there being any defect in the procedure in the domestic proceedings. The Labour Court can go behind a dismissal order and see for itself whether on facts, and in circumstances of the case, dismissal order was or was not justified both on merits as well on facts. The intention of the Legislature appears to provide a double check, one in the form of a domestic inquiry to be held by an employer and the other in the form of a judicial determination by the Junior Labour Court itself.
Crescent Jute Products Ltd., Jaranwala v. Muhammad Yaqub and others PLD 1978 SC 207 quoted.
(b) Industrial Relations Ordinance (XXIII of 1969)--
----Ss. 25-A & 37(3)---Appeal before Labour Appellate Tribunal from a decision of the Labour Court made under S. 25-A, Industrial Relations Ordinance, 1969---Scope and extent.
Provisions of subsection (3) of section 37 o; the Industrial Relations Ordinance, 1969 expressly enables an aggrieved party to file an appeal before the Labour Appellate Tribunal from a decision of the Labour Court made under section 25-A of the Ordinance. In the exercise of appellate powers, the Labour Appellate Tribunal may confirm, set aside, vary or modify the decision given under section 25-A and exercise all the powers conferred by the Ordinance on the Labour Court, save as otherwise provided. Even otherwise the appeal being in continuation of the original proceedings, the appellate forum can pass any order which ought to have been passed by the original forum. In the present case, the Labour Appellate Tribunal has given cogent reasons in setting aside the decision of the Labour Court. The grievance petition was hopelessly time-barred and satisfactory explanation was not forthcoming on record regarding the in-ordinate delay having regard to the facts and circumstances of the case. The conclusion reached by the Labour Appellate Tribunal is discernible from the available material on record. It, therefore, cannot be said that jurisdiction exercised by it in setting aside the decision of the Labour Court suffered from any legal flaw or infirmity. After thorough scurtiny of the material placed on record and perusing the detailed judgment, the Labour Court was not justified in accepting a hopelessly time-barred grievance petition which was filed after a period of over ten years. No exception can be taken to the order passed by the Labour Appellate Tribunal allowing the appeal of the employer and dismissing the grievance petition.
Dr. A. Basit, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate- on-Record (absent) for Petitioner.
Mushtaq Ahmed, Superintendent and Munir Ahmed Bhatti, Office Superintendent for Respondents.
Date of hearing: 8th September, 1999.
2000 P L C 533
[Supreme Court of Pakistan]
Present: Saiduzzaman Siddiqui, C.J., Sh. Riaz Ahmed and Ch. Muhammad Arif, JJ
PROVINCE OF PUNJAB through Secretary, Irrigation and Power Department, Lahore and another
versus
PUNJAB LABOUR APPELLATE TRIBUNAL, LAHORE through Chairman and another
Civil Petitions Nos. 1560-L to 1562-L and 1567-L to 1574-L of 1999, decided on 24th November, 1999.
(On appeal from the judgment, dated 13-4-1999 passed by Lahore High Court in Writ Petitions Nos. 19431, 19422, 19428, 19421, 19423 to 19427, 19429 and 19430 of 1996).
Industrial Relations Ordinance (XXlt'11 of 1969)---
----S.25-A--West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.1(4)(c)---Constitution of Pakistan (1973), Art. 185(3)---Work-charged employees---Grievance petition--Maintainability---Respondents being work-charged employees of Irrigation Department were reinstated in service by Labour Appellate Tribunal--Contention raised by the petitioner was that the respondents being work charged employees could not be ordered to be reinstated in service--Petitioner further contended that the grievance petitions filed by the respondents were not maintainable in view of S.1(4)(c) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968---Validity---Leave to appeal was granted by Supreme Court to consider the contentions raised by the petitioner as the same required consideration.
Muhammad Anwar Ghuman, Advocate Supreme Court and Rao Muhammad Yousuf Khan, Advocate-on-Record for Petitioners.
Nemo for Respondents
Date of hearing: 24th November, 1999.