PLC 2001 Judgments

2001 P L C 115

[Karachi High Court]

Before Saiyed Saeed Ashhad and Sarmad Jalal Osmany, JJ

ABDUL QAYYUM and 12 others

versus

SINDH LABOUR APPELLATE TRIBUNAL and 2 others

Constitutional Petition No.D‑85 and Miscellaneous Application No.2195 of ­2000, decided on 7th November, 2000.

Industrial Relations Ordinance (XIII of 1969)‑‑‑

‑‑‑‑S. 37(3)‑‑‑Constitution of Pakistan (1973) Art. 199‑‑‑Constitutional petition‑‑‑ Appeal‑‑‑Application fled by counsel for appellant for adjournment on ground that he was busy in High Court was dismissed by Labour Appellate Tribunal and proceeded with the appeal‑‑‑Appellants having been denied the right of hearing through their counsel, Constitutional petition was allowed and case was remanded to Labour Appellate Tribunal for re‑hearing after providing opportunity to counsel for appellants to put forward their case.

Ashraf Hussain Rizvi for Petitioner.

2001 P L C 245

[Karachi High Court]

Before Muhammad Mujibullah Siddiqui, J

RECKITT & COLMAN OF PAKISTAN LIMITED, KARACHI and others

versus

THE COMMISSIONER, SINDH EMPLOYEES' SOCIAL

SECUERITY INSTITUTION, AWAN‑E‑MEHNATKASH

GULSHAN‑E‑IQBAL, KARACHI and others

Miscellaneous Appeals Nos.5 to 7, 10 to 16, 36, 50 of 1995, 48, 49 of 1996, 9, 13, 16, 17, 18, 27 of 1997, 3, 4 and 12 of 1999, decided on 11th December, 2000.

(a) Provincial Employees' Social Security Ordinance (X of 1965)‑‑‑

‑‑‑‑S.2(8)(f)‑‑‑"Employee"‑‑‑Definition‑‑‑Exclusion of person from definition of "employee" ‑‑‑Exclusion contained in S.2(8)(f) of Provincial Employees' Social Security Ordinance, 1965, was applicable to the person who was initially employed on wages exceeding Rs.3,000 per mensem and was not applicable to person who initially was employed at wages below Rs.3,000 per mensem, but due to subsequent increase in wages his wages exceeded said amount‑‑‑Legislature after insertion of proviso to S.2(8)(f) of Ordinance, 1965 had laid down the principle of once an employee always an employee for the purpose of said section irrespective of wages remaining below Rs.3,000 per mensem or exceeding same‑‑‑Once the status of an employee was acquired by a worker, that would never cease for the reason of increase in the monthly wages‑‑‑If the person once acquires the status, of an employee there should be no exclusion on account of any amount of wages per month received by the said employee.

Messrs Jupiter Textile Mills Ltd., Karachi v. Director, Hyderabad Directorate, Hyderabad and another 1997 PLC 473; Workmen of Food Corporation of India v. Food Corporation of India AIR 1985 SC 670; Sindh Employees' Social Security Institution v. Dawood Cotton Mills Ltd. PLD 1988 SC 1 and Messrs Agfa Gevaert Pakistan Ltd. v. Sindh (Provincial) Employees' Social Security Institution 2000 PLC 62 ref.

(b) Interpretation of statutes‑‑‑

‑‑‑‑Amendment/change in law‑‑‑Effect of amendment/change in law was always required to be considered by the Court and it was incumbent on the Court to consider if the amendment made by Legislature, should have the effect of changing the entire complexion of the issue under consideration.

(c) Interpretation of statutes‑‑‑

‑‑‑‑‑ Provision of a statute ought to be construed in the first instance according to its plain grammatical meaning.

(d) Interpretation of statutes‑‑‑

‑‑‑‑ Question of strict or beneficial construction of a statutory provision, could only arise if otherwise an ambiguity exists regarding the scope and meaning of said provision.

(e) Interpretation of statutes‑‑‑

‑‑‑‑ Prospective and retrospective operation of law‑‑‑Principles.

Crawford's Interpretation of Laws, published by Pakistan Law House, p. 105, para.73 and Ahgen v. Theobald (1890) 24 QBD 557 ref.

(f) Interpretation of statutes‑‑

------Declaratory" and "remedial Acts" ‑‑‑Distinction.?

Craies on Statute Law, 7th Edn., p.58 and Punjab Cooperative Bank Limited v. The Republic of Pakistan and 128 others PLD 1964 SC 616 ref.

(g) Interpretation of statutes‑‑‑

‑‑‑‑ Court to lean towards the purposive interpretation of the statute and for that purpose the form was not material, but the substance of law was to be seen‑‑‑Any Act which purported to have been enacted for a declaration, was not to be taken as declaratory law in its entirety notwithstanding that an enactment was purported to be a declaratory law‑‑‑Some of the provisions contained in the Act could not be of a declaratory nature‑‑‑Law could be declaratory in nature because of its substance although it was not stated that it was declaratory in nature‑‑‑Enactment on a particular subject, normally contained substantial, procedural and declaratory ‑‑‑Definitions in enactment were normally declaratory in nature as definitions contained in a statute assigned special meaning to the terms and expressions used by the Legislature in a particular enactment‑‑‑Definitions given in one statute were not to be considered for the purpose of any other statute‑‑‑Definitions as given in a particular statute were declaratory of the intention of the Legislature pertaining to the connotation and scope of the terms and expressions used in a particular enactment.

(h) Interpretation of statutes‑‑‑

‑‑‑‑ Definition clause of an enactment‑‑‑Nature and function‑‑‑Definitions in enactment were normally declaratory in nature as definitions contained in a statute assigned special meaning to the terms and expressions used by the Legislature in a particular enactment‑‑‑Definitions given in one statute were not to be considered for the purpose of any other statute‑‑‑Definitions as given in a particular statute were declaratory of the intention of the Legislature pertaining to the connotation and scope of the terms and expressions used in a particular enactment.

(i) Interpretation of statutes‑‑‑

‑‑‑‑ Proviso added to the section or subsequent to an Act‑‑‑Nature and scope‑‑‑Proviso was taken to be an exception and was interpreted to narrow the effect of preceding words‑‑‑Proviso was taken as means to ‑ create exception from the section to which it was added‑‑‑Proviso excludes and takes out certain cases from the rule of which it was added and to except and deal with a case which otherwise would fall within the general language of the main enactment and it was not an absolute rule as proviso was some time used as a precautionary measure, to explain the general words or section and to exclude some ground of misinterpretation which would extend same to cases not intended to be brought within its operation or purview.

(j) Interpretation of statutes‑‑‑

‑‑‑‑ Proviso to a section‑‑‑Purposive interpretation‑‑‑Principle of purposive interpretation required that an enactment or amendment was not to be interpreted merely in a particular form by following the formula that an explanation was to be understood as explaining the meaning of the provision to which it was added and that explanation clause could not enlarge or limit the provision of that proviso to section was always an exception to the general rule‑‑‑Instead of interpreting a provision of law on the basis of concept attributed to form of legislation, it would be more appropriate to consider the contents and substance of the provision itself instead of following the conceptual interpretation.

(k) Interpretation of statutes‑‑‑

‑‑‑‑ Interpretation by Court‑‑‑Purpose‑‑‑Purpose, of interpretation of statute by the Court was to ascertain the intention of the Legislature and the object of enactment.

(l) Provincial Employees' Social Security Ordinance (X of 1965)‑‑‑

‑‑‑‑S.2 (8)(f), proviso‑‑‑Interpretation of provisos to S.2 (8)(f) of Provincial Employees' Social Security Ordinance, 1965‑‑‑Proviso was not to be interpreted narrowly, but had to be interpreted in wider sense more particularly because the entire Ordinance was in the nature of beneficial legislation‑‑‑Proviso to S.2(8)(f) of Provincial Employees' Social Security Ordinance, 1965 did not have the effect of excepting anything provided in the main section or narrowing the effect and scope thereof‑‑‑Proviso had clearly envisaged to remove any doubt having the effect of excluding an employee from the definition of the term, after exceeding the ceiling of wages (Rs.3,000 per mensem) provided in the main enactment and enlarging the main provision.

(m) Interpretation of statutes‑

‑‑‑‑ Curative and remedial Acts relating to retrospective effect ‑‑‑Principles‑‑?Remedial Acts were those enacted in order to improve and facilitate remedies already existing for the enforcement of rights and for the redress of wrong or injuries as well as to correct defects, mistakes and omissions in a former law.

(n) Provincial Employees' Social Security Ordinance (X of 1965)‑‑‑

‑‑‑‑Preamble & S. 2(8)(f)‑‑‑Nature, purpose and interpretation of the Ordinance‑‑‑ Provincial Employees' Social Security Ordinance, 1965 was enacted to introduce the 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 being a beneficial and remedial statute, should be liberally interpreted so that benefits could be conferred on employees.

National Embroidery Mills Ltd. and others v. Punjab Employees' Social Security Institution 1993 SCMR 1201; Kohinoor Chemical Co. Ltd, and another v. Sindh Employees' Social Security Institution and another PLD 1977 SC 197; Messrs MacDonald Layton Constain Ltd. v. Punjab Employees' Social Security Institution PLD 1991 SC 1055; Divisional Superintendent, P.W.R., Karachi v. Bashir Ahmed PLD 1973 SC 589; Messrs Agfa Gavert Pakistan Ltd. 2000 PLC 62; Sindh Employees' Social Security Institution v. Dawood Cotton Mills Ltd. PLD 1988 SC 1; Kanpur Textile Finishing Mills v. Regional Provident Fund Commissioner AIR 1955 Pb. 130 and Muhammad Ibrahim v. Province of Sindh and another 1991 MLD '90 ref.

(o) Interpretation of statutes‑---

‑‑‑‑ Beneficial enactment‑‑‑Where a statute had been enacted for the benefit of affected persons, in interpreting such statute, there was no room for taking a narrow view, but Court was entitled to be generous toward persons on whom benefit had been conferred‑‑‑Court could not construe a beneficial statute in such a way that it could violate its provisions nor the Court could place beneficial interpretation on a provision contrary to its language merely on the ground that its literal construction would cause hardship or would not be beneficial to the class for whose benefit same was enacted‑‑‑Courts, however, while construing a beneficial enactment, could take into consideration object for which it was enacted‑‑‑If two possible constructions of statute were possible, one which favoured the class of persons for whose benefit statute had been enacted would be preferred.

Shaheen Airport Services v. Sindh Employees' Social Security Institution 1994 SCMR 881 and Punjab Cooperative Bank Limited v. The Islamic Republic of Pakistan and 128 others PLD 1964 SC 616 ref.

(p) Interpretation of statutes‑

‑‑‑‑ Declaratory statutes ‑‑‑Declaratory Act was an Act to remove doubts existing as to the meaning or effect of a statute‑‑‑Usual reason for passing such Act was to set aside what the legislative body deemed to have been a judicial error ‑‑‑Declaratory Act, ordinarily had retrospective effect unless a contrary intention was clearly indicated by the Legislature, and was applicable to cases pending at the appellate stage.

Mohammadi Bibi v. Keshi Upadhya and others AIR 1926 All. 725; A.T. Pannirselvam v. A.Veeriah Vandayar and another AIR '1931 Mad. 83 and Varalakshmi v. Viramulu AIR 1956 Hyd. 75 ref.

(q) Interpretation of statutes‑

‑‑‑‑ Retrospectivity of enactment‑‑‑Act would be given retrospective effect unless there were words to that effect or such a retrospective effect has to be given by necessary implication‑‑‑Exception to said principle had been made in case an enactment having regard to the nature of the statute‑‑‑Where the statute and its intendment partook of the characteristics of a declaratory law, it would be considered to have retrospective effect:

(r) Interpretation of statutes‑‑‑

‑‑‑‑ Principle‑‑‑Object of scheme of an Act was to be considered while interpreting the words "are employed" instead of interpreting the words according to rules of grammer as law was not an exercise in linguistic discipline.

Ramesh Metal Works and another v. State AIR 1962 All. 227 ref.

(s) Provincial Employees' Social Security Ordinance (X of 1965)‑‑‑

‑‑‑‑S.2(8)(f)‑‑‑Proviso to S. 2(8)(f)‑‑‑Nature and interpretation‑‑‑Proviso to S.2(8)(f) of Provincial Employees' Social Security Ordinance, 1965 in effect and in substance, was not in the nature of a proviso only, but was a leading provision‑‑‑Proviso generally was an exception to the section preceding the proviso and being in the nature of an exception, it was to be interpreted very narrowly and strictly.

Punjab Cooperative Bank Limited v. The Islamic Republic of Pakistan PLD 1964 SC 616 ref.

(t) Provincial Employees' Social Security Ordinance (X of 1965)‑‑

?

‑‑‑‑Ss. 2(8)(f), 20, 57, 59 & 64‑‑‑"Employee", meaning and scope‑‑‑Once a worker was included within the definition of "employee" under Provincial Employees' Social Security Ordinance, 1965, he would continue to be so, notwithstanding crossing the ceiling of wages (Rs.3,000 per mensem)‑‑?Proviso to S.2(8)(f) of the Ordinance, being a part of definition section of Ordinance was declaratory and at the same time beneficial, curative, remedial and welfare legislation and had to be given retrospective effect‑‑‑Authorities in circumstances, had rightly found that the employees who had crossed the ceiling (Rs.3,000 per mensem) would continue to be employees and Authorities were justified in demanding contribution in respect of such employees from employers in accordance with the provisions contained in the Ordinance, Gulzar Ahmed for Appellant {in Miscellaneous Appeal No. 5 of 1995.

Khalid Habibullah for Respondent (irk Miscellaneous Appeal No. 5 of 1995.

Mehmood Abdul Ghani for Appellant (in Miscellaneous Appeal No.6 of 1995).

Khalid Habib Ullah for Respondent (in Miscellaneous Appeal No. 6 of 1996.

Ch. Rasheed Ahmed for Appellants (in Miscellaneous Appeal No. 7 of 1995.

Khalid Habib Ullah for Respondents (in Miscellaneous Appeal No.7 of 1995.

S.M. Yaqoob for Appellant (in Miscellaneous Appeal No. 10 of 1995.

Khalid Habibullah for Respondent (in Miscellaneous Appeal No. 10 of 1995.

S.M. Yaqoob for Appellant (in Miscellaneous Appeal No. 11 of 1995.

Khalid Habibullah for Respondent (in Miscellaneous Appeal No. 11 of 1995.

Muhammad Humayun for Appellant (in Miscellaneous Appeal No. 12 of 1995.

Khalid Habib Ullah for Respondent (in Miscellaneous Appeal No. 12 of 1995.

Muhammad Humayun for Appellant (in Miscellaneous Appeal No. 13.

Khalid Habib Ullah, for Respondent (in Miscellaneous Appeal No. 13 of 1995).

Muhammad Humayun for Appellant (in Miscellaneous Appeal No. 14 of 1995).

Khalid Habib Ullah for Respondent (in Miscellaneous Appeal No. 14 of 1995).

Muhammad Humayun for Appellant On Miscellaneous Appeal No. 15 of 1995).

Khalid Habib Ullah for Respondent (in Miscellaneous Appeal No. 15 of 1995).

Muhammad Humayun for Appellant (in Miscellaneous Appeal No. 16 of 1995).

Khalid Habib Ullah for Respondent (in Miscellaneous Appeal No. 16 of 1995). .

Siddiq Mirza for Appellant (in Miscellaneous Appeal No. 36 of 1995).

Khftlid Habib Ullah for Respondent (in Miscellaneous Appeal No. 36 of 1995). .

Dilawar Hussain for Appellant (in Miscellaneous Appeal No. 50 of 1995).

Khalid Habib Ullah for Respondent (in Miscellaneous Appeal No. 50 of 1995).

Muhammad Humayun for. Appellant (in Miscellaneous Appeal No. 48 of 1996).

Khalid Habib Ullah for Respondent (in Miscellaneous Appeal No. 48 of 1996).

Muhammad Humayun for Appellant (in Miscellaneous Appeal No. 49 of 1996).

Khalid Habib Ullah for Respondent (in Miscellaneous Appeal No. 49 of 1996). .

S.M: Yaqoob for Appellant (in Miscellaneous Appeal No. 9 of 1997).

Khalid Habib Ullah for Respondent (in Miscellaneous Appeal No. 9 of 1997.

Muhammad Humayun for Appellant (in Miscellaneous Appeal No. 12 of 1997.

Khalid Habib Ullah for Respondent (in Miscellaneous Appeal No. 13 of 1997.

Abdus Samad for Appellant (in Miscellaneous Appeal No. 16 of 1997).

Khalid Habib Ullah for Respondent (in Miscellaneous Appeal No. 16 of 1997).

Abdus Samad for Appellant (in Miscellaneous Appeal No. 17 of 1997).

Khalid Habib Ullah for Respondent (in Miscellaneous Appeal No. 17 of 1997).

Muhammad Humayun for Appellant. (in Miscellaneous Appeal No. 18 of 1997).

Khalid Habib Ullah for Respondent (in Miscellaneous Appeal No. 18 of 1997).

Gulzar Ahmed for Appellant (in Miscellaneous Appeal No. 27 of 1997).

Khalid Habib Ullah for Respondent (in Miscellaneous Appeal No. 27 of 1997).

Mehmood Abdul Ghani for Appellant (in Miscellaneous Appeal No. 3 of 1999).

Khalil Habib Ullah for Respondent (in Miscellaneous Appeal No. 3 of 1999).

Mehmood Abdul Ghani for Appellant (in Miscellaneous Appeal No. 4 of 1999).

Khalid Habib Ullah for Respondent (in Miscellaneous Appeal No. 4 of 1999)

Khalid Javed for Appellant (in Miscellaneous Appeal No. 12 of 1999).

Khalid Habib Ullah for Respondent (in Miscellaneous Appeal No. 12 of 1999).

Dates of hearing: 24th and 25th October, 2000.

2001 P L C 319

[Karachi High Court]

Before Mrs. Majida Rizvi and Saiyed Saeed Ashhad, JJ

Syed NAEEM‑UL‑HAQ

versus

CHAIRMAN, SINDH LABOUR APPELLATE TRIBUNAL and another

Constitutional Petition No.D‑1633 of 1996, heard on 13th December, 1997.

(a) Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑S.25‑A‑‑‑Grievance petition‑‑‑Labour Court, jurisdiction of‑‑‑Petitioner whether a worker/workman‑‑‑Onus to prove‑‑‑Initially the burden lies on the worker/workman to prove that he is a worker/workman for invoking the jurisdiction of Labour Court.

Karachi Shipyard and Engineering Works Limited v. Abdul Ghaffar and 2 others 1993 SCMR 511 and National Bank of Pakistan v. Punjab Labour Court No.5, Faisalabad and 2 others 1993 SCMR 672 ref.

(b) Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑S.25‑A‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑ Grievance petition‑‑‑Maintainability‑‑‑Jurisdiction of Labour Court‑‑‑Petitioner was employed in supervisory capacity and was not a worker/workman‑‑‑Petitioner was dismissed from service on the charge of misappropriation of funds‑‑‑Grievance petition was filed by the petitioner before the Labour Court which was allowed and he was reinstated‑‑‑ Labour Appellate Tribunal allowed the appeal filed by the employer and the order of the Labour Court was set aside‑‑‑Validity‑‑‑Petitioner was not a worker/workman at the time when the show‑cause notice was issued to him and he was dismissed from service by the employer in consequence of domestic inquiry conducted against him, as such die petitioner was not entitled to invoke the jurisdiction of the Labour Court‑‑‑Held, Labour Appellate Tribunal while accepting the appeal of the employer had rightly concluded that the petitioner was an officer not workman.

Abdul Razzaq v. Messrs Ihsan Sons Limited and 2 others 1992 SCMR 505 and Mst. Nasim Siddique v. D.E.O. and others 1992 PLC (C.S.) 1023 distinguished.

Muhammad Tasneem for Petitioner.

Zahid Hussain for Respondent No.2.

Date of hearing: 13th November, 1997.

2001 P L C 325

[Karachi High Court]

Before Muhammad Mujeebullah Siddiqui, J

Mst. HUMA and another

versus

MUHAMMAD ASHFAQUE and others

Constitutional Petition No. S‑467 and Civil Miscellaneous Application No.751 of 2000. decided on 23rd October, 2000.

(a) Constitution 9f Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction, exercise of‑‑‑Scope‑‑‑Petitioner in his Constitutional petition had assailed findings of Courts below which pertained to the appreciation of facts and had not pointed out any error of law in appreciating the evidence by the Courts below‑‑‑No plea of non­-exercise of jurisdiction or excess of jurisdiction or any other illegality had been raised by the petitioner‑‑‑When Courts below were competent to decide the issue of facts and had decided the same on appreciation of entire evidence brought on record, then merely because a party was aggrieved with the finding of fact, would not provide justification for invoking Constitutional jurisdiction of High Court.

(b) Constitution of Pakistan (1973)‑‑

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction‑‑‑Scope‑‑‑Finding of fact‑‑‑If a Court or Tribunal had the jurisdiction to decide certain issue, the discretion so vested could be exercised in accordance with the settled principles of law‑‑‑Even if the finding of fact was assailed as wrong, it would not provide justification for invoking Constitutional jurisdiction of High Court.

Utility Stores Corporation of Pakistan Limited v. Punjab Labour Appellate Tribunal and others PLD 1987 SC 447; Muhammad Hussain Munir's case PLD 1974 SC 139 and Zulfiqar Khan Awan's case 1974 SCMR 530 ref.

(c) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction‑‑‑Scope‑‑‑Where there was any error of law in the case and any party had not been dealt with in accordance with law that would amount to a jurisdictional error making the finding without jurisdiction thereby providing justification for invoking of Constitutional jurisdiction of High Court‑‑‑If any mistake in appreciation of facts was alleged that would not provide a justification for invoking of Constitutional jurisdiction because the Tribunal or Court of competent jurisdiction had the discretion to appreciate the facts and to give finding accordingly‑‑‑So long a finding of fact was not shown to have done any violence to the express provision of law or any statute, the Court would not be deemed to have acted beyond jurisdiction‑‑‑Merely because two views were possible or any other view could also be taken, would not make a finding of fact to be erroneous in law or unwarranted in law, taking out the finding beyond jurisdiction or making same in excess of jurisdiction.

(d) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction‑‑‑Scope‑-‑Question of law‑‑‑No room for interpretation of law not warranted on the established principles of interpretation of statutes‑‑‑If there was any error on the point of law by the Court below or Tribunal, High Court would be justified in making interference in exercise of its Constitutional jurisdiction, but that would not be available in the case of finding on fact until and unless it was shown that the finding of fact was so perverse or against `the principle of appreciation of evidence, that the finding on fact had entered into the realm of jurisdictional error, making same to be an error of law.

(e) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction‑‑‑Scope‑‑‑Finding of fact‑‑­Grievance of petitioner was about the finding of fact only which could not provide justification for invoking Constitutional jurisdiction of High Court because the permission to do that would amount to provide a forum for appeal or revision, which Legislature had deemed fit not to allow‑‑‑Any such course would amount to enter in the field of legislation which was not permissible under any principle of the interpretation of statute‑‑­Constitutional petition could never be a substitute for an appeal or revision.

A. Iqbal Qadri for Petitioners.

2001 P L C 367

[Karachi High Court]

Before Muhammad Mujeebullah Siddiqui, J

KOHINOOR TEA COMPANY (PVT.) LTD.

versus

DIRECTOR OF LABOUR and others

Constitutional Petition No.S‑159 and Miscellaneous Nos.230 and 231 of 1999, decided on 27th October, 2000. .

Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑S. 10‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑ Maintainability ‑‑‑Cancellation of registration of trade union‑‑­Employer had sought declarations to the effect that registration of the trade union of workers in its establishment was illegal and solicited direction to the Authority to initiate proceedings under S.10, Industrial Relations Ordinance, 1969‑‑‑Such questions in the petition could only be determined by the Labour Court on a complaint by the Registrar of Trade Unions under S.10, Industrial Relations Ordinance, 1969‑‑‑Adequate, alternate and efficacious remedy under S.10, Industrial Relations Ordinance, 1969 being available to the employer petitioner, Constitutional petition was not maintainable without first availing the same.

Messrs Hakim & Sons Chemicals v. The Registrar of Trade Marks 1998 PLC 122; Shaikh Gulzar Ali & Company v. Special Judge, Banking Court and others 1991 SCMR 590; Adamjee Insurance Company v. Pakistan 1993 SCMR 1798; Abdur Rehman v. Haji Mir and others PLD 1983 SC 21 and Mumtaz Ahmed and others v. Assistant Commissioner and another PLD 1990 SC 1195 ref.

M.L. Shahani for Petitioners.

Nemo for Respondents Nos. l and 2

Muhammad Ali Mazhar for Respondent No.3.

2001 P L C 441

[Karachi High Court]

Before Zahid Kurban Alavi, J

HABIB SUGAR MILLS LTD. through Manager

versus

REGISTRAR OF TRADE UNIONS, GOVERNMENT OF SINDH and another

Constitutional Petition No. S.‑509 of 2000, heard on 22nd February, 2000.

(a) Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑S.8‑‑‑Trade union, registration of‑‑‑Satisfaction of Registrar‑‑‑Meaning and scope‑‑" Act of registration of union is neither mechanical nor automatic‑‑‑Registration requires satisfaction on the part of the Registrar as on the question of compliance of the .requirements of Industrial Relations Ordinance, 1969‑‑‑Satisfaction refers to the sate of mind‑‑‑Registration being a conscious act, due satisfaction should be reflected in the act‑‑‑Registration ought to satisfy the test of objectivity otherwise it tray well be exposed on the scrutiny, in exercise of power of judicial review.

(b) Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑S. 7(2)‑‑‑Trade union, registration of‑‑‑Employer forming his own trade union‑‑‑ Quota for outsiders‑‑‑Holding of office by non‑workman under 25% quota for 'Outsiders'‑‑‑Validity‑‑‑Outsiders under the provisions of S.7(2) of Industrial Relations Ordinance, 1969, should also be in the category of workman‑‑‑Even employer can form his own Trade Union in his own establishment holding office of President arid General Secretary of the Union from amongst 25 % outsiders' quota.

(c) Industrial Relations Ordinance (XXIII of 1969)‑

‑‑‑‑S. 5‑‑‑Industrial Relations (Sindh) Rules, 1973, Regln.3, Forth 'A'‑‑‑ Registration of trade union, application for‑‑‑Entitlement to such application‑‑‑Application has to be filed in terms of S.5 of Industrial Relations Ordinance, 1969 in Form 'A'‑‑‑Form 'A' under the provisions of Regln.5, of Industrial Relations (Sindh) Rules, 1973, provides that it is either a Trade Union of workmen or it is a Trade Union of employers.

(d) Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑S. 10‑‑‑General Clauses Act (X of 1897), S. 21‑‑‑Registration Certificate issued by Registrar of Trade Unions, recalling of‑‑‑Locus poenitentiae, principle of‑‑‑ Applicability‑-‑Where the Registration Certificate has been obtained through misrepresentation, such certificate is liable to be recalled on the doctrine of locus poenitentiae.

PLD1992 SC 207 ref.

(e) Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑S. 8‑‑‑Registration Certificate‑‑‑Validity‑‑‑Registration Certificate being only a proof that the Union has been registered but not a proof that the Union has been properly registered‑‑‑Such Registration Certificate can be challenged.

1998 PLC 504 and PLD 1968 SC 412 ref.

(f) Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑S. 5‑‑‑Industrial Relations (Sindh) Rules, 1973, Regln.3, Form 'A'‑‑?Registration of trade union‑‑‑Dual membership‑‑‑Scope‑‑‑Dual membership is not permissible under the provisions of Regln.3 of Industrial Relations (Sindh) Rules, 1973).

(g) Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑S. 13‑‑‑Registrar of Trade Unions‑‑‑Power to authorise other officer to perform functions on behalf of the Registrar‑‑‑Registrar is competent to authorize an officer in writing to perform all or any of his functions.

(h) Industrial Relations Ordinance (XXIII of 1969)‑‑

‑‑‑‑Ss. 7, 8 & 10‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑ Registration of trade union, cancellation of‑‑‑Third trade union was registered on the application of non‑workman‑‑‑Employer applied for the cancellation of the certificate on the ground that the Registrar of Trade Unions had wrongly treated the applicant to be a workman and registered the disputed union on the application of such person‑‑‑Validity‑‑‑Where the General Secretary of the disputed union had already been held by the Labour Court/Labour Appellate Tribunal and by the High Court to be non‑workman, such .issue could not be re‑examined by the Registrar of Trade Unions‑‑?Registration of the disputed union was liable to be cancelled as having been issued by the Registrar of Trade Unions in violation of the provisions of Industrial Relations Ordinance, 1969, and the rules framed thereunder‑‑?Order of the registration of disputed trade union was set aside in circumstances.

1998 PLC 504; 1992 PLC 23; 1992 PLC 7; 1992 PLC 83; Kamal Ahmer Khan v. National Bank of Pakistan 1991 PLC 834; 1992 SCMR 259; 1983 PLC 171; 1993 SCMR 1533; 1986 PLC 535 and B.P. Industries (Pvt.) Ltd. Employees' Union v. Registrar of Trade Unions, Sindh and 3 others 1992 PLC 662 ref.

Muhammad Abdul Ghani for Petitioner.

Ashraf Hussain Rizvi for Respondents.

Date of hearing: 22nd February, 2000.

2001 P L C 492

[Karachi High Court]

Before Ghulam Nabi Soomro and Anwar Zaheer Jamali, JJ

JEHANZEB

versus

Messrs GENERAL TYRE & RUBBER CO. OF PAKISTAN LTD. through Manager/Occupier and another

Constitutional Petition No.D‑613 of 2000, decided on 27th October, 2000.

(a) Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑S.38(8), proviso‑‑‑Applicability of S.38(8), proviso, Industrial Relations Ordinance, 1969‑‑‑Scope‑‑‑Suspending operation of reinstatement‑‑‑Labour Appellate Tribunal, jurisdiction of‑‑‑Scope‑‑‑Applicability of proviso to S.38(8) of Industrial Relations Ordinance, 1969, is only confined to the orders of Labour Court which relate to the reinstatement of a workman and not to orders of any other nature.

(b) Industrial Relations Ordinance (XXIII of 1969)‑‑

‑‑‑‑S. 38(8), proviso‑‑‑Suspension of back benefits‑‑‑Labour Appellate Tribunal, jurisdiction of‑‑‑Scope‑‑‑Suspension of back benefits by Labour Appellate Tribunal, is not hit by the proviso to S.38(8) of Industrial Relations Ordinance, 1969.

(c) Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑Ss.25‑A & 38(8)‑‑‑Constitution of Pakistan (1973), Art. 199‑‑­Constitutional petition‑‑‑Administration of justice‑‑‑Decision of case on technicalities‑‑‑Grievance petition of the petitioner was allowed by Labour Court and he was reinstated in service‑‑‑Labour Appellate Tribunal suspended the order of reinstatement and awarding back benefits to the petitioner‑‑‑Petitioner instead of getting the appeal decided on merits filed Constitutional petition on technical grounds‑‑‑Validity‑‑‑Law favours adjudication of disputes on merits rather than on enforcement of such technicalities observance of which some times may result in giving benefit to a defaulting party‑‑‑To avoid enforcement of such technicalities and to meet ,the ends of justice in appropriate case exercise of jurisdiction under Art. 199 of the Constitution, which is completely discretionary in nature, may be declined‑‑‑High Court declined to interfere with the order passed by the Labour Appellate Tribunal and directed the Tribunal to decide the appeal within two weeks‑‑‑Constitutional petition was disposed off accordingly.

1999 SCMR 1707; PLD 1993 SC 109; 1993 SCMR 126; 2000 SCMR 88; 2000 PLC 235; 1995 PLC 44; 1984 PLC 115; PLD 1975 Kar. 858; 1994 PLC 21; 1986 PLC 588; 1984 PLC 169; Syed Wajih‑ul-­Hassan Zaidi v. Government of Punjab and others 1997 SCMR 1901; Messrs Airport Support Services v. The Airport Manager, Quaid‑e‑Azam International Airport, Karachi and others 1998 SCMR 2268 and Export Promotion Bureau and others v. Qaiser Shafiullah 1994 SCMR 859 ref.

M. Shafiq Qureshi for Petitioner.

Muhammad Abdul Ghani for Respondent No. 1.

2001 P L C 597

[Karachi High Court]

Before Saryed Saeed Ashhad, C.J. and Muhammad Afzal Soomro, J

Messrs TEXTILE OVERSEAS CORPORATION through Manager

versus

IQBAL HUSSAIN and 2 others

Constitutional Petitions Nos. 1715 to 1721 and Miscellaneous No. 4854 of 1998, decided on 13th April, 2001.

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

‑‑‑‑Sched. & S.0.12(6)‑‑‑Benefits, calculation of‑‑‑Piece‑rated worker‑‑­Provisions of S.0.12(6) of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968‑‑‑Applicability‑‑‑Basically the provision deals with payment of gratuity to a workman who had either resigned or was dismissed from service for any reason 1‑ither than misconduct but at the same time it lays down a formula or a method for calculating the pay which a piece‑rated worker would have earned during the period for which he remained out of employment/service.

(b) Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑S: 38(3)‑‑‑Allowing of back benefits‑‑‑Labour Appellate Tribunal, jurisdiction of‑‑‑Scope‑‑‑Where worker had made out a case for allowing back benefits and the same was not rightly disallowed by Labour Court, such benefits could be allowed by Labour Appellate Tribunal in view of S.38(3) of Industrial Relations Ordinance, 1969.

(c) Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑S. 38(3)‑‑‑Appeal‑‑‑Powers of Labour Appellate Tribunal ‑‑‑Scope‑‑­Where an order is impugned by way of an appeal then the entire case becomes open and the Labour Appellate Tribunal has the authority to examine each and every issue and give its decision/finding on the basis of the evidence, facts and circumstances of the case and according to prevailing law‑‑‑Labour Appellate Tribunal in exercise of powers under S.38(3) of Industrial Relations Ordinance, 1969 can review, vary, reverse or modify the order of the forum below.

The Province of East Pakistan v. Muhammad Hossain Mia PLD 1965 SC 1 and Mst. Khurshid Begum and others v. Ahmad Bakhsh and others PLD 1985 SC 405 ref.

(d) Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑S.38(3)‑‑‑Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), Sched. & S.0.12(6)‑‑‑Constitution of Pakistan (1973), Art. l99‑‑‑Constitutional petition‑‑‑Industrial dispute‑‑=Allowing of back benefits to piece‑rated workers‑‑‑Calculation of such benefits‑‑‑Workers were reinstated by Labour Court in proceedings under S.25‑A of Industrial Relations Ordinance, 1969, but back benefits were not allowed to them‑‑­Labour Appellate Tribunal in exercise of appellate powers allowed the benefits on the formula prescribed under S.12(6) of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968‑‑‑Validity‑‑­Principle/formula laid down in S.12(6) of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, could be pressed into service for determining average monthly salary/remuneration of the piece­rated worker‑‑‑Same was to be determined on the basis of the highest salary/remuneration which they had received during the last 12 months of their service in the establishment of the employer and the same would provide the basis for calculating the back benefits for the period they remained out of service in the establishment‑‑‑Labour Appellate Tribunal had rightly applied the principle given in S.0.12(6) of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, for calculating the back benefits of the workers.

Qadeer Ahmed v. Punjab Labour Appellate Tribunal, Lahore and another PLD 1990 SC 787 and Muhammad Bashir Ahmed and others v. Chairman, Punjab Labour Appellate Tribunal. Lahore 1991 SCMR 2087 ref.

Khurshid Ahmed Siddiqui for Petitioner.

Rafiullah for Respondent No. 1 (in all the Petitions).

2001 P L C 607

[Karachi High Court]

Before Sabihuddin Ahmed and Ghulam Rabbani, JJ

ALLIED BANK OF PAKISTAN LTD.

versus

MUHAMMAD AYUB TANWARI and others

Constitutional Petition No. 1994 of 1997, decided on 23rd November, 2000.

(a) Service Tribunals Act (LXX of 1973)‑‑‑

‑‑‑‑S.2‑A‑‑‑Scope and application of S.2‑A, Service Tribunals Act, 1973‑‑­Section 2‑A only speaks of organisation established by or under a Federal law and not merely one which is established by the Federal Government‑‑­Provisions of S.2‑A would be applicable to every incorporated company irrespective of ownership or control by any person.

(b) Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑S.25‑A‑‑‑Service Tribunals Act (LXX of 1973), S.2‑A‑‑‑Grievance petition‑‑‑Abatement‑‑‑Pending petition, S.2‑A, Service Tribunals Act, 1973, had been inserted in the Act, whereby services under certain corporations or organisations established by or under a Federal law or owned or controlled by Federal Government were declared to be service of Pakistan and their employees were deemed to be civil servants, contention of the employer Bank was that petition filed by the employee had abated‑‑­-Validity‑‑‑Government only owned minority shares in employer‑Bank whereas majority shares (51%) had already been transferred to private parties‑‑‑Government instead interest in the Bank had decided to abdicate the same and thus it could not be assumed that Government continued to retain any controlling interest in the employer­ Bank ‑‑‑Employee could not be deemed to be a civil servant and his grievance petition did not abate.

Kausar Ali Shah v. Member, Election Commission PLD 1978 Lah. 5 ref.

2001 P L C 707

[Karachi High Court]

Before Faiz Muhammad Qureshi and Muhammad Moosa K. Leghari, JJ

AGRICULTURE ENGINEER, AGRICULTURAL MACHINERY ENGINEERING DIVISION, MALKI THATTA

Versus

SINDH LABOUR APPELLATE TRIBUNAL, KARACHI and others

Constitutional Petitions Nos.D‑91 and D‑92 of 1989 and Miscellaneous Applications Nos. 254 and 255 of 1992, decided on 21st March, 2001.

(a) Payment of Wages Act (IV of 1936)‑--

‑‑‑‑Ss. 2(vi) & 3‑‑‑Responsibility for payment of wages‑‑‑"Employer" which includes the person responsible for the supervision and the control of the industrial establishment should be responsible for the payment to the persons employed by him of all wages required to be paid under Payment of Wages Act, 1936.

(b) Payment of Wages Act (IV of 1936)‑‑-

‑‑‑‑Ss. 2(vi)(a)(c), 3, 15, 16 & 17‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Payment of House Rev and Conveyance Allowance‑‑‑Benefits/House Rent and Conveyance Allowance, claimed by the employees before the Authority under Payment of Wages Act, 1936 were covered by the definition of "wages" as contained in S.2(vi)(a) & (c) of said Act‑‑‑Authority, in circumstances, had exclusive jurisdiction to adjudicate the matter‑‑‑Adjudication was competently made by the Authority after recording the evidence wherein the parties were given full opportunity to lead their evidence‑‑‑Judgments of the Authority and other forums were well­ reasoned and based on evidence on record‑‑‑Employees who were work­ charged employees having specifically been excluded from the purview of "civil servants" both the forums had rightly exercised their jurisdiction in the matter‑‑‑In absence of any illegal exercise of jurisdiction, concurrent judgments of forums below could not be interfered with by the High Court in exercise of its Constitutional jurisdiction.

2000 PLC 383 and Executive Engineer, Central Civil Division Pak (PWD), Quetta v. Abdul Aziz and others 1996 PLC 385 ref.

(c) Constitution of Pakistan (1973)‑‑-

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction of High Court‑‑‑Scope‑‑­Interference in Constitut:.;,nal jurisdiction was permissible only where subordinate Court or Tribunal either had exercised jurisdiction which it did not possess or had exceeded its jurisdiction or had failed to exercise jurisdiction required to be exercised or in exercise of its jurisdiction had acted with material irregularity, rendering its order without lawful authority.

(d) Sindh Civil Servants Act (XIV of 1973)‑‑‑

‑‑‑‑S. 2(1)(b)(ii)‑‑‑Work‑charged employees‑‑‑Status‑‑‑Work‑charged employees being not civil servants were excluded from the purview of "civil servants" as defined under S.2(1)(b)(ii) of Sindh Civil Servants Act, 1973.

Abdul Hussain Motiwala for A.A.‑G. for Petitioner. Mehmood Hussain Siddiqui for Respondents.

Date of hearing: 21st March, 2001.

2001 P L C 67

[N.‑W.F.P. Labour Appellate Tribunal]

Before Justice Sardar Muhammad Raza, Chairman, THE SECRETARY COMMUNICATION, PTCL, MINISTRY OF

COMMUNICATION, SECRETARIATE, ISLAMABAD and 4 others

versus

NIAZ ALI

Appeal No. 67 of 1998, decided on 12th June, 2000.

Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑Ss. 2 (xxxiii), 25‑A & 38‑‑‑West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S. 2 (i)‑‑­Constitution of Pakistan (1973), Art. 2A‑‑Grievance petition‑‑­Maintainability‑‑‑Petitioner, a Telephone Operator being in service of Pakistan as defined in S.2‑A, Service Tribunals Act, 1973, was a civil servant and could resort to Service Tribunal for his grievance‑‑‑Grievance petition of the civil servant before Labour Forum was not maintainable.

Adam Khan for appellant.

2001 P L C 364

[Labour Appellate Tribunal N.‑W.F.P.]

Before Justice Sardar Muhammad Raza, Chairman

MUSLIM COMMERCIAL BANK LIMITED through

General Manager, N.‑W.F.P. Saddar Road, Peshawar Cantt.

versus

MUHAMMAD ASHFAQ ALI alias GOGGY, EX‑CASHIER, MUSLIM COMMERCIAL BANK LTD., CHOWK YADGAR BRANCH, PESHAWAR CITY

Appeal No. 14 of 1998, decided on 9th January, 2001.

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.15(3)‑‑‑Dismissal from service‑‑‑Employee was dismissed` from service on the ground that he delivered cash on production of a fake token and by so doing he had brought a huge loss to the Bank (employer) and also that he was guilty of fraud‑‑­Grievance petition of employee against his dismissal was accepted by Labour Court on two grounds, firstly that due to‑rush hours and due to close similarity of fake token with the real one, cash was delivered which act of employee could be doubted as a mere negligence and not misconduct‑‑­Validity‑‑‑Finding of Labour Court was unjustified because the banking business essentially was a matter of great trust and employee was expected to take great caution‑‑‑Excuse of rush hours by the employee was not excuse at all‑‑‑Omission of employee in circumstances, was much more than a mere negligence‑‑‑Delivery of cash seemed to be intentional‑‑‑Other ground of acceptance of grievance petition was that no previous charge of misconduct or such negligence was ever recorded against employee‑‑‑Previous negligent conduct of employee was never a cause for his dismissal and it was not very important for employer Bank to have proved the previous conduct‑‑‑Matter between employer Bank and employee was that of trust which if once betrayed could not be restored‑‑‑Grievance petition which was time‑barred, should have been dismissed by the Labour Court‑‑‑Order re‑instating employee passed by Labour Court was set aside in appeal by Labour Appellate Tribunal.

Muhammad Ozair Qureshi v. Chairman, National Construction Co. Ltd., Karachi and others 1982 PLC 17 ref.

Ghulam Nabi for Appellant.

Muhammad Jamil for Respondent.

Date of hearing: 9th January, 2001.

2001 P L C 479

[N.W.F.P. Labour Appellate Tribunal]

Before Justice Sardar Muhammad Raza, Chairman

NIAZ HUSSAIN SHAH

versus

DIRECTOR‑GENERAL, N.‑W.F.P. EMPLOYEES SOCIAL SECURITY

INSTITUTION, PESHAWAR

Appeal No.56 of 1999, decided on 16th March, 2001.

Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑Ss. 1(3)(f), 2(xxviii), 25‑A & 37(3)‑‑‑West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.12‑‑‑Termination of service‑‑‑ Grievance petition, maintainability of‑‑­Petitioner was employed as dispenser. in the hospital‑‑‑Petitioner to his grievance petition had alleged that he being a permanent worker, his service had been terminated without notice, without charge‑sheet and without inquiry‑‑‑Institution maintained for the treatment of care of sick, infirm, destitute and .mentally unfit persons, could not be treated as industrial or commercial ‑institution and petitioner could not be treated as a "workman"‑‑­Industrial Relations Ordinance, 1969, thus, was not applicable to the petitioner‑‑‑Grievance petition was rightly dismissed by Labour Court being not maintainable in circumstances.

PLD 1979 Lah. 448 and 1986 SCMR 618 ref.

Syed Abdul Manan for Appellant.

Muhammad Ayub Khattak for Respondent.

2001 P L C 634

[Labour Appellate Tribunal N.‑W.F.P.]

Before Sardar Muhammad Raza, Chairman

PERSONNEL MANAGER and another

versus

Mst. REKHMEENA and 2 others

L. R. No. 23 of 2000, decided on 18th June, 2001.

Payment of Wages Act (IV of 1936)‑‑‑

‑‑‑‑Ss.15 & 17‑‑‑Industrial Relations Ordinance (XXIII of 1969), S.38(3‑a)‑‑­Payment of wages‑‑‑Appeal against order of the Authority‑‑‑Appeal against order passed by the Authority was dismissed by Labour Court only on the technical ground that appeal under S.17 of Payment of Wages Act, 1936 was not filed by employer/appellant in person‑‑‑Validity‑‑‑Provisions of S.17 of Payment of Wages Act, 1936, had not indicated that appeal had to be filed by the employer himself, and by none else but had simply stated that it would be filed by the employer‑‑‑Language of S. 17 was not couched in specific negative words that it could not be filed either by an attorney or by a counsel or any one specific Authority in that behalf‑‑‑Failure to do so was also not provided with any punitive consequence‑‑‑Order passed by Labour Court was set aside and case was remanded to be decided on merits.

1989 PLC 176 ref.

Barrister Jehanzaib Rahim for Petitioners.

Zain Khan son/attorney of Respondent No‑I. (in person).

2001 P L C 9

[Punjab Labour Appellate Tribunal]

Before Mian Ghulam Ahmad, Chairman DAILY JANG through Chief Executive

versus

SLAEEM‑UR‑RASHIDI

Appeal No. LHR‑260 of .1999/Pb, decided on 1st March, 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. 15(3)(4)‑‑‑Dismissal from service‑‑‑Second show‑cause notice‑‑‑Employee was dismissed from service after serving show‑cause notice, charge‑sheet and holding enquiry on allegation of misconduct or neglect of duty‑‑‑Charge against employee had fully been proved in enquiry proceedings in which employee had participated‑‑‑Employee had not blamed or charged the employer for having gone inimically hostile towards .him or acted in a malicious or mala fide manner, but had challenged order of his dismissal on two grounds that show­cause notice and charge‑sheet had not been emanated from the Competent Authority and that second show‑cause notice was not issued to him‑‑­Validity‑‑‑Show‑cause notice was issued to employee by General Manager and enquiry was held by the Personnel Officer‑‑‑Resident Director had conveyed to employee final order of his dismissal from service which was issued with approval of the Chief Executive‑‑‑General Manager and Resident Director both were part and parcel of the Management and came under ,ambit of employers‑‑‑Service of second show‑cause notice was the requirement 'of civil service laws and not the labour laws‑‑‑Employer, under provisions of S.O. 15 of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, was to elicit explanation of employee on making him aware of charges against him and if reply of employee was found to be unsatisfactory an independent probe was to follow‑‑‑Second show‑cause notice and an opportunity of hearing afresh was not necessary‑‑‑Employee had taken part in the proceedings of enquiry and had cross‑examined witnesses of employer and had led his own evidence in defence‑‑­Administrative order did not suffer from any irregularity‑‑‑Labour Court, in circumstances, was not justified to set aside order of dismissal of employee passed by employer and to re‑instate employee‑‑-Order passed by Labour Court was set aside by Appellate Tribunal.

PLD 1982 SC 460 and 1999 SCMR 1237 ref.

Asad Ullah Siddiqui for Appellant. Kh. Zia Ullah for Respondent.

2001 P L C 24

[Punjab Labour Appellate Tribunal]

Before Mian Ghulam Ahmad, Chairman

PUNJAB EMPLOYEES SOCIAL SECURITY and another

versus

ASHAR ADIL and others

Appeal No.LHR‑207/Pb and Contempt Petition No. D.G.K./590 of 1999, decided on 19th May, 2000.

Industrial Relations Ordinance (XXII of 1969)‑‑‑

‑‑‑‑Ss1(3)(t), 2(xxviii), 25‑A & 37(3)‑‑‑Provincial Employees' Social Security Ordinance (X of 1965), S.5‑‑‑Grievance petition ‑‑‑Maintainability‑‑­Employee serving the Social Security Institution, had filed .grievance petition before Labour Court against termination of his services‑‑‑Social Security Institution was an Establishment set up for treating and care of sick, infirm, destitute and mentally retarted people and said establishment could not be treated as a "commercial establishment" or an "industrial institution"‑‑­Industrial Relations Ordinance, 1969 being not applicable to the case of the employee under S.1(3)(f) of Industrial Relations Ordinance, 1969, who otherwise was also not a workman, grievance petition before Labour Court was not maintainable‑‑‑Employee could take recourse to Service Tribunal and not to other forum for redressal of his grievance.

Saeed Waraich for Appellants.

H. R. Haider for Respondents.

2001 P L C 26

[Punjab Labour Appellate Tribunal]

Before Mian Ghulam Ahmad, Chairman

ITTEHAD WORKERS UNION, AYUB RESEARCH INSTITUTE, FAISALABAD

versus

THE REGISTRAR OF TRADE UNIONS, FAISALABAD and another

Appeal No. FD‑35 of 1993, decided on 22nd July, 2000.

Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑Ss.10 & 37(3)‑‑‑Registration of Trade Union‑‑‑Cancellation of registration‑‑‑ Employer was an educational and research centre doing no profitable business‑‑‑Entire activity of the Institute would come within ambit of Administration of State and employees thereof would be considered civil servants and labour laws were not applicable to the Institute as also its employees‑‑‑No trade union of workers, could be permitted to be formed and function in employer Institute‑‑‑Registration of Trade Union was rightly cancelled in circumstances.

1993 PLC 475 and 1976 PLC 675 ref.

Hanif Ahmad Dogar for Appellant.

Nemo for Respondent No. 1.

Abdul Rashid Randhawa for Respondent No.2.

2001 P L C 32

[Punjab Labour Appellate Tribunal]

Before Mian Ghulam Ahmad, Chairman

THE DEPUTY DIRECTOR, PAKISTAN INSTITUTE OF

ARCHAEOLOGY TRAINING AND RESEARCH, OLD FORT, LAHORE

versus

RIASAT ALI

Appeal No.LHR.594 of 1993, decided on 7th July, 2000.

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‑ ‑‑ Re‑instatement ‑‑‑Grievance petition‑‑‑Maintainability‑‑‑Employee working as Naib Qasid, was removed from service on allegation that he had made a misstatement about his age at the time of his entry into service‑‑­Employee was dismissed from service without any show‑cause notice and without affording him opportunity of hearing‑‑‑Validity‑‑‑Employer had alleged that grievance petition by employee was not maintainable as employer establishment was not an industry‑‑‑Even if employer establishment was not an industry, low‑paid officials like the employee could not be excluded from pale of workman‑‑‑Employee was "workman" and was entitled to invoke aid of Labour Court‑‑‑Labour Court having jurisdiction, had rightly accepted grievance petition of the employee.

Adrian Shafique for Appellant.

Farooq Zaman Qureshi for Respondent.

2001 P L C 38

[Punjab Labour Appellate Tribunal]

Before Mian Ghulam Ahmad, Chairman

JAFAKASH MAZDOOR UNION TOWN COMMITTEE, SHARQPUR

versus

THE CHAIRMAN, TOWN COMMITTEE, SHARAQPUR

Appeal No.QSA‑289 of 1999, decided on 19th April, 2000.

Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑Ss.2(xiv) (xxviii), 22, 32 & 37(3)‑‑‑Municipal employees‑-‑Status‑‑­Petitioner/ appellant claiming status of Collective Bargaining Agent filed petition under S.32 of Industrial Relations Ordinance, 1969 which was dismissed by Labour Court and petitioner had filed appeal against dismissal order‑‑‑Municipal employees having been treated as civil servants could neither function as Collective Bargaining Agent nor form a Trade Union‑‑­Petition was rightly dismissed by the Labour Court.

1997 PLC 608; 1976 SCMR 1399; 1993 PLC 151 ref.

Safdar Hussain Sindhu for Appellant.

Nawab Saeed Ullah Khan for Respondent.

2001 P L C 44

[Punjab, Labour Appellate Tribunal]

Before Mian Ghulam Ahmad, Chairman

P.R.T.C. through District Manager, Multan

versus

YAQOOB HASHIM

Appeal No. MN‑16 of 1995/Pb., decided on 4th December, 1995.

Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑Ss.25‑A & 37(3)‑‑‑Retirement under Golden Hand Shake Scheme‑‑­Grievance petition‑‑‑Maintainability‑‑‑Employee working as an electrician. was retired after having put in more than twenty‑five years of service under Golden Hand Shake Scheme‑‑‑Employee filed grievance petition against the retirement alleging that full dues were not paid to him‑‑‑Validity‑‑‑Employee had received all the pensionary benefits and balance amount he allegedly claimed did not really matter much as emoluments for period of only three months remained to be paid‑‑‑Evidence on record had proved that employee had himself wilfully deferred receipt of remaining dues which employer was willing to pay‑‑‑Employee could not be permitted to retrace his steps and withdraw option of retirement under Golden Hand Shake Scheme which he had voluntarily given‑‑‑Grievance petition filed by employee otherwise being barred by time was not maintainable‑‑‑Judgment of Labour Court whereby employee was ordered to be re‑instated in service on flimsy grounds being unsound was untenable.

Muhammad Arif Chaudhry for Appellant.

Nemo for Respondent.

Date of hearing:4th December, 1995.

2001 P L C 56

[Punjab Labour Appellate Tribunal]

Before Mian Ghulam Ahmad, Chairman

THE DISTRICT MANAGER, P.R.T.C., LAHORE

versus

MUHAMMAD HANIF and another

Appeal No. LHR-72 of 1998, decided on 29th April, 2000.

Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑Ss.25‑A & 37(3)‑‑‑Promotion‑‑‑Entitlement‑‑‑Grievance petition‑‑­Employee, despite being senior to co‑employee and more qualified, was ignored and co‑employee was promoted‑‑‑Employee who deserved promotion prior to co‑employee, filed grievance petition which was rightly accepted by Labour Court, declaring promotion of co‑employee as dubious, irregular and .unlawful‑‑‑Decision of Labour Court based on, evidence on record and not suffering from any illegality and irregularity could not be interfered, with.

Shuja‑ud‑Din Hashmi for Appellant.

Rana Ghulam Mustafa Naru for Respondent No. l

Nemo for Respondent No.2.

2001 P L C 59

[Punjab Labour Appellate Tribunal]

Before Mian Ghulam Ahmad, Chairman

Mst. NASREEN AKHTAR

versus

Messrs KHAIR DIN

Appeal No. SGA‑8 of 1998, decided on 22nd July, 2000.

Workmen's Compensation Act (VIII of 1923)‑‑‑‑

‑‑‑‑Ss.3, 4 & 30‑‑‑Death of employee on duty‑‑‑Liability of employer for compensation‑‑‑ Employee a driver of tractor‑trolly, died during course of duty‑‑‑Inspector Mines, after inspection, had reported that deceased employee was directly hit by falling stones, for proper upkeep and disposal of which, no adequate arrangement was made by the employer‑‑‑Inspector Mines further observed that no systematic and regular inspection was arranged by employer and no well‑managed blast operation existed with the result that stones, atop the hill, got loosened and often fell .on workers‑‑­'Tractor‑trolly driven by the deceased was engaged in doing the work for employer's operation of stone cutting followed by stone collection and stone transportation‑‑‑Case of deceased was not covered under provisions of Fatal Accidents Act nor Civil Court had any jurisdiction in the matter‑‑‑Employer could not escape his liability for what had happened with the tractor‑trolly and its driver during the course of duty‑‑‑Employer, therefore, had to indemnify and compensate the dependants of deceased employee‑‑­Compensation Commissioner having jurisdiction in the matter had rightly found the employer responsible to pay compensation, as determined by him to the widow of the deceased.

Ghulam Rabbani for Appellant.

M.A. Javed for counsel for Naseer Ahmad Qureshi for Respondent.

2001 P L C 62

[Punjab Labour Appellate Tribunal]

Before Mian Ghulam Ahmad, Chairman

Sh. FAZAL REHMAN & SONS LTD., MULTAN

versus

HAMAYUN HASAN and others

Appeal No.MN-1 of 1999/Pb., decided on 21st July, 2000, Industrial Relations Ordinance (XXIII of 1969)‑‑‑‑

‑‑‑‑Ss.25‑A. & 37(3)‑‑‑Withdrawal of grievance petition‑‑‑Filing fresh grievance petition after withdrawal of the earlier one ‑‑‑Employees, after return of petition by National Industrial Relations Commission for want of jurisdiction filed grievance petition before Labour Court with considerable delay and without service of statutory grievance notice‑‑‑Labour Court, on account of such defects allowed petitioners to withdraw the grievance petition with leave to file fresh one‑‑‑Validity‑‑‑For removal of some technical defect lis, suit or petition, could be permitted to be withdrawn but situation in the matter of employees was altogether different because employees after unsuccessfully approaching the National Industrial Relations Commission had filed grievance petition before Labour Court without service of grievance notice in time‑‑‑For removal of such fatal defect, an endeavour was being made and Labour Court had come to the rescue of the employees apprehending their technical knock‑out‑‑‑Order of Labour Court allowing employees to file fresh .grievance petition, being unjustified, could not be upheld‑‑‑Labour Appellate Tribunal set aside order of Labour Court in appeal.

Syed Safdar Imam Bukhari for Appellant.

Muhammad Arif Sindhu for Respondent No. 1.

2001 P L C 64

[Punjab Labour Appellate Tribunal]

Before Mian Ghulam Ahmad, Chairman

THE EMPLOYER, PREMIER PAPER MILLS LIMITED, SHEIKHUPURA ROAD, LAHORE

versus

THE REGISTRAR, TRADE UNIONS, LAHORE RANGE, LAHORE and others

Appeal No. LHR‑7 of 1996, decided on 22nd March, 2000.

Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑Ss. 22 & 34‑‑‑Fresh election of Trade Union‑‑‑Grievance petition of employer‑‑‑ Respondents who claimed to be President and General Secretary of Trade Union in employer establishment, made statement before Registrar, Trade Unions that a compromise had been arrived at between them and employer establishment for holding fresh election of Trade Union‑‑­Registrar, Trade Unions was accordingly directed to arrange for holding of fresh election of Trade Union under his supervision‑‑‑Employer establishment had filed application against Registrar Trade Unions and the said office‑bearers alleging that no compromise had been arrived at between them and the said office‑bearers‑‑‑Employer establishment had also alleged that Trade Union in the establishment had illegally been formed and me office‑bearers of Trade Union had no locus standi to approach the Registrar, Trade Unions for fresh election‑‑‑Labour .Court disposed of grievance petition filed by employer establishment under S. 34 of Industrial Relations Ordinance, 1969 in accordance with alleged compromise in absence of employer or his representative‑‑‑Validity‑‑‑Labour Court was not justified to dispose of grievance petition in a slipshod manner without caring to ascertain that employer establishment was properly and adequately represented in the date when said petition was disposed of in accordance with alleged compromise which was denied by the employer‑‑‑Order of Labour Court was set aside and case was remanded to be decided afresh in accordance with law.

Ch. Abdul Rab for Appellant.

Nemo for Respondents.

2001 P L C 73

[Punjab Labour Appellate Tribunal]

Before Mian Ghulam Ahmad, Chairman

ORIENT MATCH FACTORY LABOUR UNION

(C.B.A.), G.T. ROAD, SHAHDARA, LAHORE

versus

ORIENT MATCH FACTORY (PVT.) LTD., G.T. ROAD. SHAHDARA, LAHORE

Appeal No. QSA‑10 of 1999, decided on 4th February, 2000.

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

‑‑‑S.O.11‑A‑‑‑Industrial Relations , Ordinance (XXIII of 1969), Ss. 34 & 37(3)‑‑‑Closing of establishment‑‑‑Establishment had to be closed by management on account of huge losses suffered by it‑‑‑Collective Bargaining Agent challenged said closure firstly on the ground that establishment was closed without obtaining prior permission of Labour Court and secondly that the closure was mala fide as establishment had earned a lot‑‑‑Management had sufficiently proved that establishment had suffered a huge loss and that every effort had been made to rectify the same which had proved wholly futile and that management was left with no other alternative, but to close down the establishment‑‑‑Collective Bargaining Agent was given number of opportunities to prove that establishment was not running in loss and that action of management was mala fide, but it failed to prove the same‑‑­Standing Order 11‑A ‑ of West Pakistan Industrial and Commercial Employment . (Standing Orders) Ordinance, 1968 did not spell out any sequence of various steps to be taken towards closure of establishment and move to be made to Labour Court for necessary permission need not be the first step in the process as same could well be the last one‑‑‑Application of Labour Court for closure of establishment could be made at any time or at any stage of proceedings and management was not duty bound to wait till further orders were passed towards direction of closure‑‑‑Essence of process was bona fide intention of management which had fully been proved-‑­Establishment was rightly closed by Management in circumstances.

1975 SCMR 49; 1983 PLC 502 and 1998 PLC 27 ref.

Muhammad Yousaf, President for Appellant.

Arif Rafique for Respondent.

2001 P L C 28

[Sindh Labour Appellate Tribunal]

Before Dr. Tanzil‑ur‑Rehman, Chairman

MUHAMMAD UMER and 2 others

versus

Messrs PLASTICRAFTERS (PVT.) LTD. through Managing Director

.Appeals Nos.KAR‑174, KAR‑175 and KAR‑176 of 1998, decided on 16th December, 1999.

Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑Ss.25‑A & 37(x)‑‑‑West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O. 15(3)(4)‑‑‑Dismissal from service‑‑‑ Re‑instatement‑‑‑Employees were dismissed from service after charge‑sheet and holding inquiry on allegation that they instigated other employees to `go slow" ‑‑‑Enquiry was held against employees, but they boycotted the inquiry proceedings and despite several adjournments employees remained absent and did not take part in inquiry proceedings‑‑­Inquiry Officer had to record statements of witnesses produced by employer in proof of allegations against employees‑‑‑Inquiry proceedings against employees were taken in a proper manner after issuing number of notices to employees and affording them several opportunities to appear and defend‑‑­Principles of natural justice had not been violated in circumstances‑‑­Evidence on record had fully proved that employees were instrumental in instigating other workers to "go slow"‑‑‑Order of dismissal based on evidence on record and not suffering from any irregularity, could not be interfered with.

M.A.K. Azmati for Appellants. Mahboob Rizvi for Respondent.

Date of hearing: 16th December, 1999.

2001 P L C 34

[Sindh Labour Appellate Tribunal]

Before Dr. Tanzil‑ul‑Reh‑man, Chairman

MUJEEB‑UR‑REHMAN SIDDIQUI

versus

Messrs INDEPENDENT NEWSPAPERS CORPORATION (PVT.)

LIMITED through Chief Secretary

Appeals Nos.KAR‑149, KAR‑150 and KAR‑157 of 1998, decided on 20tH October, 1999.

Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑Ss.25‑A & 37(3)‑‑‑Retirement on attaining age of superannuation‑‑­Grievance petition of employee against retirement on attaining the age of superannuation alleging that at the time of his appointment no Rules of service as to age of retirement existed and no retirement age was fixed‑‑­Employer framed rules/bye‑laws during course of employment, fixing age of retirement as fifty‑eight years or completion of twenty‑five years of service whichever was earlier and employee did agree to be governed by said rules/bye‑laws and put his signatures thereon‑‑‑Said rules/bye‑laws fixing age of retirement having been consented to by the employee he could not challenge his retirement made on attaining agreed age of superannuation.

1991 SCMR 2087; 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.

Muhammad Nishat Warsi for the Workers.

Muhammad Ali Mazhar for the Management.

Date of hearing: 20th October, 1999.

2001 P L C 39

[Sindh Labour Appellate Tribunal]

Before Dr. Tanzil‑ur‑Rehman, Chairman

NASEEM AHMED KHAN and another

versus

Messrs MA AYESHA MEMORIAL CENTRE through Administrator

Revision Applications Nos.KAR‑9 and KAR‑10 of 1999, decided on 26th October, 1999.

(a) Interpretation of statutes‑‑---

‑‑‑‑‑Principles‑‑‑Principles of construction of statutes always draw upon, first on the express language of statute, next the context, then the subject and purposes and last of all on the policy‑‑‑If express language presents no difficulty in interpretation, resort cannot be had to the context.

(b) Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑Ss.1(3)(f), 25‑A, 37(3) & 38(3‑a)‑‑‑Grievance ‑ petition‑‑­Maintainability‑‑‑Employer establishment was registered under Voluntary Social Welfare Agencies (Registration and Control) Ordinance, 1961 and was a non‑profit voluntary organization for welfare of physically handicapped to provide services for painful conditions such as rheumatoid arthritis, stiff joints and other orthopedic ailments‑‑‑Establishment having been maintained for treatment or care of sick, infirm, destitute and mentally unfit persons, Industrial Relations Ordinance, 1969 was not applicable to it under S.1(3)(f) of said Ordinance‑‑‑Grievance petition by employee of such establishment was rightly dismissed by Labour Court being not maintainable.

Pakistan Railways through General Manager (HQ) and another v. Naseeb Baig Mirza 1989 PLC 869; Sami Pharmaceuticals Ltd. v. Sindh Labour Appellate Tribunal and 3 others 1985 PLC 754; Mian Zahid Sarfraz v. Raja Nadir Pervaiz Khan and others 1987 SCMR 1107; Women Christian Hospital v. Mst. Sakina Yonis 1990 PLC 371; Mst. Sakina Younas v. Administrator, Women's Christian Hospital, Multan and 2 others 1991 PLC 798; Pakistan Telecom Foundation v. Naveed Nayar Appeals Nos.KAR‑349 and 350 of 1998 and Ghousia lqrar v. Sindh Labour Appellate Tribunal 1984 PLC 1400 ref.

Gohar Iqbal for Applicants.

Masood A. Khan (on Pre‑admission Notice) for Respondent.

Date of hearing: 26th October, 1999.

2001 P L C 46

[Sindh Labour Appellate Tribunal]

Before Dr. Tanzil‑ur‑Rehman, Chairman

SHER ALAM KHAN and 12 others

versus

Messrs STAR TEXTILE MILLS LIMITED through

Notified Manager/Occupier and another

Appeals Nos.KAR‑108, of 1998, KAR‑330, KAR‑331.KAR‑332, KAR‑333, KAR‑334, KAR‑335; KAR‑336, KAR‑337, KAR‑338, KAR‑339, KAR‑340 and KAR‑341 of 1999, decided on 18th January, 2000.

Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑Ss.25‑A & 37(3)‑‑‑Grievance petition‑‑‑Relationship of employer and employee‑‑‑Proof of existence‑‑‑Employees had alleged to be in service of employer for different period of time ranging from five to nineteen years in different capacities ‑‑‑Employees had contended that they had been removed from service without any notice or stating any reason therefore‑‑‑Employer had denied existence of relationship of employer and employees between the parties ‑‑‑Claim of employees was not supported by any evidence as not only they had themselves admitted that they had no document to prove that they were employees of the employer but had also failed to produce any evidence in support of their claim‑‑‑Employer had proved up to the satisfaction of Labour Court that no, relationship of employer and employees existed between the parties‑‑‑Labour Court had rightly dismissed grievance petition, holding that no relationship of employer and employees existed between parties.

Messrs Basti Sugar Mills Ltd. v. Ram Ujagar and others AIR 1964 SC 355; Hussainbhai, Calicut v: Alath Factory Thozhilali Union, Calicut and others 1978 LLJ SC 397; Messrs Al‑Karam Textile Mills (Pvt.) Limited, Karachi v. Muhammad Jamal and 10 others 1995 PLC‑680; Shahab Industries Ltd., Karachi v. Shah Nimroz 1974 PLC Note 60 at p.33; Taj Din and 44 others v. Punjab Labour Court No.3 Lyallpur PLD 1976 Lah. 1169; Nazar Muhammad and 14 others v. Presiding Officer Sindh Labour Court .No.III and another PLD 1977 Kar. 214; Farid Ahmad v. Pakistari Burmah Shell Ltd. and others 1987 SCMR 1463; Mian 'Munir Ahmad v. The State 1985 SCMR 257; Siemens Pakistan Engineering Co._ Ltd. v. The Sindh Labour Appellate Tribunal and others Civil Petition No.D‑956 of 1992; Muhammad Wali and others v. Dawood Cotton Mills Ltd., Karachi and others 1.993 PLC 210; Associated Press of Pakistan v. Associated Press of Pakistan Employees' Union, Islamabad/Rawalpindi through President, Zafar Rashid Bhatti and 22 others 1996 PLC 687 and Sher Bahadur and others v. Messers Sub‑Coss‑11 (Pvt.) Ltd. and others 1999 PLC 447 ref.

Siddiq Malik, Representative for Appellant.

Masood A. Khan for Respondent.

2001 P L C 68

[Sindh Labour Appellate Tribunal]

Before Dr. Tanzil‑ur‑Rehman, Chairman

S.S. MUMTAZ ALAM

versus

Messrs PHILIPS ELECTRICAL INDUSTRIES

OF PAKISTAN LTD. and another

Appeal NOXAR‑427 of 1997, decided on 6th December, 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‑‑‑Mere designation and salary could not be the deciding factor to hold a person to be a "workman" or not.

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

‑‑‑‑S.2(i), S.Os.1(b)(e) & 12(3)‑‑‑Industrial Relations Ordinance (XXIII of 1969), Ss.25‑A & 37(3)‑‑‑Workman‑‑‑Determination‑‑‑Grievance petition‑‑­Competency‑‑‑ Employee was Confidential Secretary and responsible to call for bids and after their scrutiny submit the same to his boss‑‑‑Clerical work was merely incidental or ancillary and not main job of the Confidential Secretary‑‑‑Such clerical work would not turn the employee into a "clerk"‑‑­Person having been employed on probation for a fixed period of six months was not a permanent worker and no notice to such person as provided under S.0.12(3) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 was required for his removal.

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

‑‑‑‑‑S.O.1(A)‑‑‑Industrial Relations Ordinance (XXIII of 1969), Ss.25‑A & 37(3)‑‑‑ Permanent workman‑‑‑Grievance petition‑‑‑Probationary period having been fixed As six months, merely by passage of nine months employer would not become permanent workman automatically, in absence of any evidence that work was to continue for more than nine months.

S.P. Lodhi, Representative for Appellant.

Gulzar Ahmed for Respondents.

Dates of hearing: 4th May, 21st September and 25th October, 1999.

2001 P L C 77

[Sindh Labour Appellate Tribunal]

Before Munawar Ali Khan, Appellate Tribunal

SHAFI MUHAMMAD

versus

Messrs GLAXO LABORATORIES PAKISTAN

LIMITED, KARACHI.

Appeal No.KAR‑182 of 1998, decided on 10th April, 2000.

Industrial Relations Ordinance (XXIII of 1969)‑‑‑‑

‑‑‑‑Ss.25‑A & 37(3)‑‑‑Grievance petition‑‑‑Retirement on attaining age of superannuation‑‑‑Dispute about date of birth‑‑‑Employee who was retired on attaining superannuation age of sixty years, had assailed retirement order alleging that his date of birth according to Municipal Certificate was 17‑7‑1943 and not 31‑12‑1935 on basis of which he was retired‑‑‑Employee had also claimed that by his letter sent to employer on 11‑11‑1974 he had asked the employer to correct his date of birth, but no reply was issued to the said letter‑‑‑Validity‑‑‑Employee was retired on the basis of date of birth as was mentioned by employee at the time of seeking employment‑‑‑If no action on application filed by employee in 1974 for correction of date of birth was taken, employee should have taken further steps, but instead he kept quiet for about twenty‑two years and filed grievance petition in 1996 which he should have filed in 1974‑‑‑Employee having failed to explain such undue delay of more than twenty‑two years in agitating his grievance in the Labour Court, his petition was rightly dismissed being barred by time and also being not maintainable on merits.

Muhammad Shafiq Qureshi for Appellant.

Muhammad Humayun for Respondents.

Date of hearing: 30th March, 2000. .

2001 P L C 93

[Sindh Labour Appellate Tribunal]

Before Munawar Ali Khan, Appellate Tribunal

AZIZ‑UR‑REHMAN

versus

Messrs EVER GREEN INDUSTRIES (PVT.) and another

Appeal No. KAR‑355 of 1998, decided on 7th April, 2000.

Industrial Relations Ordinance (XXIII of 1969)‑‑‑‑

‑‑‑‑Ss. 2(xxviii) & 25‑A‑‑‑Grievance petition‑‑‑Maintainability "Workman"‑‑‑ Determination of‑‑‑Services of employee were terminated on the ground that he had absented himself from the duty‑‑‑Grievance petition of employee was resisted on the ground that his main duty being either managerial or supervisory he was not a workman and Labour Court had no jurisdiction to entertain his grievance petition‑‑‑Employee had himself admitted in his affidavit‑in‑evidence that he used to recommend leave applications of workers arid issue gate passes to them and he used to sign documents as Production Manager‑‑‑Employee also used to impart training to workers at different times and imparting training to workers did not fall within manual labour‑‑‑Evidence on record had proved that at the time when services of employee were terminated he was not engaged in doing manual labour‑‑‑Employee, in circumstances, was not a "workman" ‑‑‑Grievance petition was rightly dismissed by Labour Court being not maintainable.

Nazir Yousafzai for Appellant.

Chaudhry Muhammad Ashraf Khan for Respondents.

Date of hearing: 29th March, 2000.

2001 P L C 95

[Sindh Labour Appellate Tribunal]

Before Munawar Ali Khan, Chairman

MATEEN AHMED KHAN

versus

THE PRESIDING OFFICER, 2ND SINDH LABOUR COURT, KARACHI and another

Appeal No.KAR‑48 of 1998, decided on 16th August, 2000.

Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑Ss. 2(xxviii) & 25‑A‑‑‑Workman‑‑‑Determination‑‑‑Grievance petition‑‑­Maintainability‑‑‑Grievance petition filed by employee against termination of his service was resisted by employer contending that same was not maintainable as employee was not a "workman‑‑‑Appointment order, showed that employee was appointed as Stores Officer in senior confidential staff cadre and in that capacity he was required to perform his duties at such places in Pakistan as employer company required him to serve from time to time‑‑‑Job description mentioned that employee was responsible for supervising and control of his Section's Heads, Supervisors, Assistant Supervisors; Drivers and general duty workers‑‑‑Person required to perform said functions could not be put in category of workman‑‑‑Employee had also taken additional charge of Scrap Disposal Section from one who had retired from the said post and employee right from taking over said charge, remained designated as Superintendent of said section until termination of his services‑‑‑Merely because employee performed some work of clerical nature such as preparing invoices, issuing gate passes and receiving some material which was incidental to his main duties, his status, could not change from Supervisor to workman‑‑‑Employee neither was member of trade union in employer company nor he availed any benefit flowing from periodical settlements made between trade union and employer‑‑‑Employee had the authority to hire and fire Badli/temporary drivers and general workers‑‑‑Status of employee being not of a workman, his grievance petition was rightly dismissed by Labour Court being not maintainable.

PLD 1986 SC 103 ref.

Gohar Iqbal for Appellant.

Abdul Hafeez for Respondents.

Date of hearing: 7th August, 2000.

2001 P L C 100

[Sindh Labour Appellate Tribunal]

Before Munawar Ali Khan, Chairman

HOLIDAY INN CROWN PLAZA EMPOYEES UNION through General Secretary

versus

Messrs HOLIDAY INN, CROWN PLAZA through Manager Administration

Appeal No.KAR‑296 of 1999, decided on 22nd August, 2000.

Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑S. 37(3)‑‑‑Appeal-‑‑Limitation‑‑‑Delay, condonation of‑‑‑Appeal against decision of Labour Court which was to be filed within thirty days from delivery or passing of decision was filed fourteen days after the expiry of prescribed period‑‑‑Copy of decision of Labour Court was prepared by Copying Agency on the very date of passing said decision, but appellant collected said copy after fifteen days without explaining said delay‑‑‑No application for condonation of delay was filed by the appellant‑‑‑Appeal otherwise having been incompetently filed, was dismissed being barred by time.

Abduz Zubaid, Representative for Appellant.

Masood Ahmad Khan for Respondents.

Date of hearing: 15th August, 2000.

2001 P L C 109

[Sindh Labour Appellate Tribunal]

Before Munawar Ali Khan, Chairman

SHAFAT AHMED

versus

PAK SUZUKI MOTOR COMPANY LIMITED through Managing Director, Karachi

Appeal No. KAR‑368 of 1998, decided on 20th September, 2000

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)‑‑‑Termination of service ‑‑‑Workman‑‑‑Determination‑‑‑Grievance petition by employee against termination of his services was resisted on ground that same was not maintainable as employee being junior executive was not a workman‑‑­Burden lay on the employee to prove his status as workman, but he failed to discharge said burden by producing oral or documentary evidence‑‑­Employee had himself admitted that he was neither member of Collective Bargaining Agent nor had ever been given benefit of settlement arrived at between Collective Bargaining Agent and the Management‑‑‑Employee though was promoted from Senior Assistant to Junior Executive, but status of workman was not to be determined on the basis of designation or any other factor, but it was to be determined in the light of performance of his duties‑‑‑After promotion to junior executive salary of employee was revised and he was made subject to executive staff rules of employer company‑‑­Merely because employee was using computer, would not put him' in category of workmen‑‑‑After promotion to post of junior executive employee being no longer a workman, his grievance petition was rightly held to be not maintainable.

Ch. Muhammad Ashraf Khan for Appellant.

Qamaruddin Hassan for Respondent.

Date of hearing: 12th September, 2000.

2001 P L C 119

[Sindh Labour Appellate Tribunal]

Before Munawar Ali Khan, Chairman

KARACHI SHERATON HOTEL

through Syed Arshad Ali Director, Human Resources

versus

MUHAMMAD HANEEF

Appeal No. KAR.43 of 1999, decided on 12th September, 2000.

(a) Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑S.25‑A‑‑‑Grievance petition‑‑‑Maintainability of‑‑‑Employee was injured due to fall of water tank and was admitted in hospital‑‑‑After discharge from hospital employee remained on leave on recommendation of doctor who also recommended light duty for employee‑‑‑Employee after availing leave granted to him remained absent from duty for a long time‑‑‑Employer after issuing show‑cause notice held inquiry against the employee who opted for his retirement and employer accepting his request retired him from service‑‑­Employee thereafter served on employer unsigned grievance notice which was not valid notice in the eyes of law‑‑‑Said grievance notice was not only invalid, but was also time‑barred‑‑‑Such grievance notice being not legal, grievance petition by employee would be deemed to have been filed without first, filing grievance notice which was a condition precedent for filing grievance petition‑‑‑Grievance petition which otherwise was time‑barred was not maintainable in circumstances.

1984 PLC 842 ref.

(b) West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1969)‑‑‑

‑‑‑‑S.O. 12 (6)‑‑‑Gratuity‑‑‑Entitlement to ‑‑‑Scheme-of Provident Fund being in existence in employer's establishment, employee was entitled to payment of provident fund and not gratuity as claimed by him.

1996 PLC 306 and 1984 PLC 33 ref.

Mehmood A. Ghani for Appellant.

Nafees Osmani for Respondent.

Date of hearing: 31st August, 2000.

2001 P L C 138

[Sindh Labour Appellate Tribunal]

Before Munawar Ali Khan, Chairman

RECKITT & COLMAN OF PAKISTAN LTD. and another

versus

THE PRESIDING OFFICER, SINDH LABOUR COURT No.3, KARACHI

Revision Application NOXAR‑17 of 2000, decided on 21st August, 2000. .

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

‑‑‑‑S.O.11‑A‑‑‑Closure of establishment‑‑‑Permission for‑‑‑Duty of Labour Court‑‑‑For giving permission under S.O. 11‑A of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 for closure of establishment Labour Court had been invested with discretion which it had to exercise justly, fairly and honestly and not arbitrarily or capricious‑‑­While exercising said discretion, Court had to make sure that closure of establishment was sought not with bad motive or mala fide intention.

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

‑‑‑‑S.O. 11‑A‑‑‑Industrial Relations Ordinance (XXIII of 1969), S.38(3‑a)‑‑­Closure of establishment‑‑-Management filed application under S..O.11‑A of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 for closure of factory on account of financial losses‑‑­Pending said application an agreement was arrived at between the Management and Collective Bargaining Agent whereby employees agreed to resign after getting agreed benefits and majority of the employees on getting said benefits, submitted their individual resignations‑‑‑Collective Bargaining Agent and Management submitted joint consent application in Labour Court for permission to close down factory in terms of agreement, but said application was dismissed by the Labour Court‑‑‑Validity‑‑‑Set‑up of Collective Bargaining Agent which had executed agreement with management having been changed during that period, new set‑up had taken over which was not party to the agreement arrived at between previous set‑up and management‑‑‑New set‑up of Collective Bargaining Agent having certain reservations about agreement arrived at between previous set‑up and management, Labour Court should have taken decision on application for closing of factory after providing opportunity of hearing to new set‑up and adducing evidence in that respect‑‑‑Case was remanded to be decided on merits after hearing parties.

1986 PLC 1052 ref.

Mehmood A. Ghani for Applicant No. 1.

Nishat Warsi for Applicant No.2.

M.A.K. Azmati for the Intervenor.

Ch. Ashraf Khan for new set‑up of C.B.A. Union.

Date of hearing: 9th August, 2000.

2001 P L C 146

[Sindh Labour Appellate Tribunal]

Before Munawar Ali Khan, Appellate Tribunal

NAVEED KASIM

versus

FAROOQ KHAN

Appeal No. KAR‑96 of 1998, decided on 11th April, 2000.

Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑Ss.25‑A & 37(3)‑‑‑Removal from service‑‑‑Re‑instatement‑‑‑Employee working as helper under employer, in order to secure rights for himself and other workers, started trade union activities which annoyed the employer who first gate‑stopped the employee and then removed him from service without any order in writing‑‑‑Employer neither appeared despite several adjournments nor had filed a written reply to grievance petition‑‑‑Employer having failed to appear without any reasonable cause, grievance petition filed by employee was decided ex parte against employer‑‑‑Employee having, fully proved that he had been removed from service for his trade union activities, his grievance petition was rightly allowed against order of his removal and he was rightly ordered to be re‑instated with all back benefits.

1992 SCMR 1908 and PLD 1975 SC 331 ref.

M.M. Jeelani for Appellant.

Ashraf Hussain Rizvi for Respondent.

Date of hearing: 30th March, 2000.

2001 P L C 168

[Sindh Labour Appellate Tribunal]

Before Munawar Ali Khan, Appellate Tribunal

MUHAMMAD NAZIR

versus

Messrs HOTEL JABEES, ABDULLAH HAROON ROAD, KARACHI through Manager

Appeal NOXAR‑292 of 1999, decided on 16th March, 2000.

Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑S.25‑A‑‑‑Grievance petition‑‑‑Maintainability‑‑‑Employee who was dismissed from service, served grievance notice on employer, which was subsequently withdrawn unconditionally by the employ‑‑‑Giving of grievance notice was condition precedent for starting litigation in Labour Court as provided under S.25‑A of Industrial Relations Ordinance, 1969‑‑­Upon withdrawal of grievance notice by employee, mandatory condition for maintaining grievance petition in Labour Court having disappeared, grievance petition filed by employee was not maintainable.

1980 PLC 981 ref.

Abduz Zubaid, Representative for Appellant.

Muhammad Sadiq Rajput, Representative for Respondent.

Date of hearing: 9th March, 2000.

2001 P L C 183

[Sindh Labour Appellate Tribunal]

Before Dr. Tanzil‑ur‑Rehman, Chairman

MUHAMMAD JUMA

versus

Messrs FORBES FORBES CAMPBELL & COMPANY

Appeal NoXAR‑27 of 1999, decided on 24th November, 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.Os. 12(3) & 13‑-‑Termination of service‑‑‑Services of employee working as Chowkidar were terminated on ground that immovable property where employee was posted as Chowkidar was sold out by employer company and services of employee, who had become surplus, were no, more required‑‑‑Employee had admitted that property where he was posted as Chowkidar had been sold out and that he was junior most Chowkidar‑‑‑Employee could not bring anything on record to prove mala fides of employer in terminating his services‑‑‑Employee having been paid one month's notice salary, employer had not committed any violation of S.Os. 12(3) & 13 of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, in terminating services of employee and his grievance petition was rightly dismissed by Labour Court.

Muhammad Latif Saghar for Appellant, Masood A. Khan for Respondent.

2001 P.L C 193

[Sindh Labour Appellate Tribunal]

Before Munawar Ali Khan, Chairman

ANWAR MUHAMMAD

versus

PAKISTAN RAILWAYS through Divisional Superintendent, Karachi

Revision Application NOXAR‑122 of 1999, decided on 20th April, 2000.

Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑Ss. 25‑A & 51‑‑‑Grievance petition‑‑‑Back benefits‑‑‑Entitlement‑‑­Grievance petition by employee was allowed by Labour Court and employee was given not only seniority, and promotion, but was granted back benefits‑‑‑Employer filed appeal against judgment of Labour Court‑‑‑During pendency of appeal, employee gave statement to the effect that if he Was given promotion he would forego his back benefits and in view of said statement employee was promoted as desired by him and employer withdrew its appeal pending before Labour Appellate Tribunal‑‑‑After withdrawal of appeal by employer, employee once again approached Labour Court for determination of back benefits contending that waiver under compulsion of back benefits was made by him which could, not stand in his way for claiming back benefits‑‑‑Employee had failed to prove that he had waived his right to get back benefits under compulsion whereas it had fully been proved that he voluntarily waived his right to get back benefits to get promotion as early as ‑possible‑‑‑Once employee had foregone back benefits, he could not at his own free‑will again turn round and reclaim the same‑‑‑Labour Court, in circumstances, had rightly dismissed application by employee for determination of his dues, arrears of back benefits under S. 51 of Industrial Relations Ordinance, 1969.

1994 PLC 1158 ref.

M.A. Hassan Malik for Applicant.

Latif Saghar for Respondent.

Date of hearing: 17th April, 2000.

200,1 P L C 196

[Sindh Labour Appellate Tribunal]

Before Munawar Ali Khan, Chairman

Messrs MUSLIM COMMERCIAL BANK LTD., KARACHI

through Attorney/Vice‑President

versus

GHOUS BUX

Revision Application No.SUK‑4 of 2000, decided on 4th November, 2000

Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑Ss. 25‑A & 38(3‑a)‑‑‑Grievance petition‑‑‑Revision‑‑‑Contention of employer that before proceeding with grievance petition filed by employee, three legal objections, regarding lack of jurisdiction of Labour Court, limitation and res judicata should be decided first, was turned down by Labour Court‑‑‑For taking decision on such objections no evidence was to be led by parties and same could be decided on basis of material available on record‑‑‑Contention of employer having force, Labour Appellate Tribunal allowing revision remanded the case to decide the objections first.

Shahid Anwar Bajwa for Applicant.

Nemo for Respondent.

Date of hearing: 21st October, 2000.

2001 P L C 202

[Sindh Labour Appellate Tribunal]

Before Munawar Ali Khan, Chairman

MUHAMMAD ABBAS

versus

MANAGER, QUETTA TEXTILE MILLS, KOTRI and another

Appeal No.HYD‑134 of 1999, decided on 26th April, 2000.

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)(e)‑‑‑Grievance petition‑‑-Dismissal‑ from service on ground of being minor and remaining absent from duty for more than ten days‑‑‑Employee was dismissed from service on grounds that at the time of his appointment he was a child aged 14‑1/2 years and that he stayed away from duty for more than ten days without leave‑‑‑Employee who at the time of his employment had shown himself to be eighteen years' old, had produced medical certificate of a doctor issued after about one year and seven months of his employment showing his age as sixteen years‑‑‑Fact that employee was fourteen and half years old at the relevant time was proved‑‑‑Employee being minor at the time of his employment, could not be retained in service‑‑‑Evidence on record had also proved that employee remained absent from duty continuously for more than ten days without leave‑‑‑Employee, in circumstances, was rightly dismissed from service on ground of being minor and remaining absent from duty without leave.

Shaikh Wahid Bux Representative for Appellant.

N.A. Talpur for Respondent.

Date of hearing: 19th April, 2000.

2001 P L C 205

[Sindh Labour Appellate Tribunal]

Before Munawar Ali Khan, Chairman

GRANULARS (PVT.) LIMITED

versus

MUHAMMAD AFZAL

Appeal No.KAR‑267 of 1999, decided on 31st October, 2000.

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

‑‑‑‑S. 2(i)‑‑‑Workman‑‑‑Determination of status of workman‑‑‑Status of a workman was to be determined on the basis of duty he was required to perform and not on the basis of his designation or the emoluments he was drawing.

SCMR 488 and PLTf 1986 SC 103 ref.

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

‑‑‑‑S. 2(i) & S.O. 15(3)(a) & (4)‑‑‑Termination of service‑‑‑Entitlement of workman to statutory safeguards‑‑‑Service of employee was terminated without issuing him show‑cause notice and holding enquiry against him on account of his disobedience of orders of his employer‑‑‑Validity‑‑‑Service of employee having been terminated on allegation of misconduct, he was entitled to safeguards of issuance of show‑cause notice to him and holding enquiry against him as provided under S.O. 15(4) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968.

Qazi Faez Isa for Appellants.

Ch. Latif Saghar for Respondent.

Date of hearing: 26th October, 2000. .

2001 P L C 211

[Sindh Labour Appellate Tribunal]

Before Munawar Ali Khan, Chairman

TAJIM KHAN

versus

Messrs DARBAR SOAP WORKS (PVT.) LIMITED

Appeal No.KAR‑10 of 1999, decided on 4th October, 2000.

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

‑‑‑S.Os. 11‑A & 12‑‑‑Closure of establishment‑‑‑Termination of service of employees‑‑‑ Services of employees were terminated on ground of closing down of workshop where employees were working‑‑‑Employees having failed to prove that closing down of workshop was uncalled for, order terminating services of employees did not suffer from any defect or illegality.

Nishat Warsi for Appellant.

Rizwan Ahmad for Respondents.

Date of hearing: 26th September, 2000..

2001 PLC 214

[Sindh Labour Appellate Tribunal]

Before Munawar Ali Khan, Chairman

ISTAFTA NOSH and 5 others

versus

THE CHAIRMAN, PORT QASIM AUTHORITY BIN QASIM and 7 others

Appeal No. KAR‑14 of 2000, decided on 31st October, 2000.

Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑S. 25‑A(1)(2)‑‑‑Grievance petition‑‑‑Limitation‑‑‑Grievance notice was given to employer after delay of five months and grievance petition was also filed by employee after delay of twenty‑three days‑‑‑Grievance petition was dismissed by Labour Court on limitation‑‑‑Validity‑‑‑In absence of any explanation of the delay, grievance petition was rightly dismissed by Labour Court being barred by time.

2000 PLC 572; 1981 PLC 881 and 1981 PLC 888 ref.

Muzaffar Hussain, Representative for Appellants.

Abdul Rehman Butt for Respondent No. 1.

Ch. Latif Saghar for Respondents Nos.3 and 4.

Date of hearing: 25th October, 2000.

2001 P L C 219

[Sindh Labour Appellate Tribunal]

Before Munawar Ali Khan, Chairman

IRSHAD AHMED MIRZA

versus

Messrs MUMTAZ APPARELS (PVT.) LTD. and another

Appeal No.KAR‑275 of 1999, decided on 12th September, 2000.

Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑Ss. 25‑A & 51‑‑‑Payment of dues‑‑‑Grievance petition‑‑­Maintainability‑‑‑Workman ‑‑‑Definition‑‑‑Services of employee having been terminated verbally without assigning any reason, employee claimed dues to which he was entitled‑‑‑Employer having failed to redress employee's grievances, he filed grievance petition before Labour Court, which was dismissed on the ground that Labour Court had no jurisdiction in the matter and employee should file his case before Commissioner for Wages under Payment of Wages Act, 1936‑‑‑Employee who was employed in the establishment as Maintenance Operator being charged with duties of doing manual labour, fell within definition of "worker" ‑‑‑Employee, in. circumstances, had rightly invoked S. 25‑A of Industrial Relations Ordinance, 1969 for payment of his dues‑‑‑Grievance petition under S.25‑A of Industrial Relations Ordinance, 1969 could be filed only by "worker" in respect of any right guaranteed or secured to him by or under any law or any award or settlement for the time being in force‑‑‑Employee was a "worker" and wanted employer to pay him his legal dues admissible to him under law‑‑‑Grievance petition filed by employee, was maintainable in circumstances.

Rafiullah for Appellant.

S. Rizwan Ahmed for Respondent No. 1.

Date of hearing: 4th September, 2000.

2001 P L C 223

[Sindh Labour Appellate Tribunal]

Before Munawar Ali Khan, Chairman

SHAIR BAHADUR

versus

Messrs MOTIWALA INDUSTRIES and another

Appeal NoXAR‑279 of 1999, decided on 28th August, 2000.

Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑Ss. 2(viii), 25‑A & 37(3)‑‑‑Grievance petition‑‑‑Relationship of employer and employees‑‑‑Proof‑‑‑Appeal before Labour Appellate Tribunal‑‑­Petitioner/appellant had claimed that he was appointed as "Jiggarman" but his two 'years' service was terminated without giving him any termination letter‑‑‑Respondent resisted grievance petition denying relationship of employer and employee between the parties‑‑‑Grievance petition having been dismissed, petitioner had filed appeal before Labour Appellate Tribunal‑‑‑Petitioner/appellant had himself admitted that he was not given written appointment order nor documents like Identity Card, Social Security Card, Leave Pass and other documents‑‑‑Even termination order was not given to petitioner/appellant in writing‑‑‑Petitioner/appellant having miserably failed to prove his employment with respondent, Labour Court had rightly dismissed his grievance petition.

Shamsher Khan, Representative for Appellant.

Rafiullah for Respondent No. 1.

Date of hearing: 23rd August, 2000.

2001 P L C 230

[Sindh Labour Appellate Tribunal]

Before Munawar Ali Khan, Chairman

BACHA KHAN

versus

MANAGER/OCCUPIER GUL AHMED CLOTH MILLS

Appeal NOXAR‑327 of 1999, decided on 8th November, 2000.

Industrial Relations Ordinance (XXIII of 1969)‑‑

‑‑‑‑S. 25‑A‑‑‑Grievance petition‑‑‑Maintainability‑‑‑Service of grievance notice on employer before filing grievance petition being mandatory under S.25‑A of Industrial Relations Ordinance, 1969, grievance petition filed by employee against termination of his service without first serving grievance notice on employer, was not maintainable.

2000 PLC 166 and 1975 PLC 196 ref.

Jamil Ahmed for Appellant.

Masood Ahmed Khan for Respondents.

Date of hearing: 2nd November, 2000.

2001 P L C 234

[Sindh Labour Appellate Tribunal]

Before Munawar Ali Khan, Chairman

Messrs PRSIM TEXTILE (PVT.) LTD

versus

TALEH MUHAMMAD

Appeal No.KAR‑28 of 1999, decided on 4th May, 2000, Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑S. 25‑A‑‑‑Grievance petition‑‑‑Termination of service‑‑‑Grievance petition filed by employee against order of termination of his service was resisted by employer alleging that employee had himself voluntarily resigned by tendering his resignation‑‑Employer in proof of his contention simply got recorded statement of General Manager and no other oral or documentary evidence was produced to prove that employee had himself resigned‑‑­Solitary word of General Manager could not be accepted to have proved factum of employee's resignation‑‑‑Labour Court, in circumstances, had rightly allowed grievance petition filed by employee against termination of service reinstating employee with full back benefits.

Syed Rizwan Ahmed for Appellant.

Shamsher Khan for Respondent.

Date of hearing: 1st May, 2000.

PLC 2001 237

[Sindh Appellate Labour Tribunal]

Before Munawar Ali Khan, Chairman

MUHAMMAD RAMZAN

versus

Messrs SURRIYA TEXTILE MILLS LTD.

Appeal No.HYD‑324 of 1999, decided on 17th October, 2000.

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

‑‑‑‑S. 2(i)‑‑‑Status of workman‑‑‑Factors for determination‑‑‑Designation of post held by a person or emoluments drawn by him for the said post, were not determining factors to decide his status as workman, but he would be identified as workman by the job he was performing.

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

‑‑‑‑S.O. 15(3)(4)‑‑‑Dismissal from service‑‑‑Enquiry Officer who was Labour Officer of employer, being highly interested person, enquiry held by him particularly in absence of the employee, could not be made safe basis for dismissal of employee.

Ashraf Hussain Rizvi for Appellant.

Muhammad Humayun for Respondent.

Date of hearing: 12th. October, 2000.

2001 P L C 241

[Sindh Labour Appellate Tribunal]

Before Munawar Ali Khan, Chairman

Messrs CHEMDYES PAKISTAN (PVT.) ‑LTD.

versus

MUHAMMAD ZAKIR and another

Appeal NOXAR‑274 of 1998, decided on 19th October, 2000.

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‑‑‑All workers of the establishment submitted their resignation as per agreement arrived at between employer and Collective Bargaining Agent‑‑‑Other workers were paid ex gratia and other legal dues according to agreement, but the employee was denied the said dues‑‑‑Employee whose resignation was returned unacknowledged was offered employment in other company which he accepted, but he was stopped from doing work in that company‑‑‑Employee who was neither employed in other company nor was given payment of his dues including ex gratia after accepting his resignation alongwith other workers, having been subjected to undue discrimination, employer was directed to accept resignation tendered by employee and to pay all dues to him on account of gratuity, provident fund and benefit of ex gratia as paid to other workers.

Muhammad Humayun for Appellants.

Ch. Muhammad Ashraf Khan for Respondents.

Date of hearing: 10th October, 2000.

2001 P L C 269

[Sindh Labour Appellate Tribunal]

Before Munawar Ali Khan, Chairman

TEXTILE OVERSEAS CORPORATION

versus

SHAIR ALI and 5 others

Appeals Nos.KAR‑297 to KAR‑302 of 1999, decided on 19th September, 2000.

Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑S. 25‑A‑‑‑Grievance petition ‑‑‑Limitation‑‑‑Employee for redressal of his grievance would first bring his grievance in writing to the notice of his employer within three months of occurrence of grievance as provided in S.25‑A of Industrial Relations Ordinance, 1969‑‑‑If no reply was given to the notice of employee within fifteen days or reply received by employee was not satisfactory then employee could approach Labour Court by filing grievance petition within two months of receipt of said reply‑‑‑For calculating said period of limitation it would be necessary to fix date on which grievance of employee occurred‑‑‑Date of termination of employees as mentioned in grievance notice and also in grievance petition had remained unchallenged as employer neither gave reply to grievance notice of employees nor filed any regular written reply to the grievance petitions filed by them‑‑‑Grievance notice sent by employees within two months of termination of their services and grievance petitions filed within two months of serving grievance notice on employer to which no reply was given by employer, were well within time‑‑‑Labour Court had rightly found that grievance petitions were not barred by time as alleged by the employer.

Khurshid Ahmed Siddiqui for Appellants.

Rafiullah and Shamsher Khan, for Respondents.

Date of hearing: 11th September, 2000.

2001 P L C 274

[Sindh Labour Appellate Tribunal]

Before Munawar Ali Khan, Chairman

Syed AHTASHAM HYDER

versus

SANDOZ PAK through Managing Director

Appeal No.HYD‑07 of 1999, decided on 18th April, 2000.

Industrial Relations Ordinance (XXIII of 1969)‑‑

‑‑‑‑S. 25‑A‑‑‑West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(i)‑‑‑Workman, determination of‑‑‑Grievance petition‑‑‑ Maintainability‑‑‑Petitioner initially was appointed as Air‑Conditioning Engineer and later on his designation was changed as Utility Engineer‑‑‑Petitioner whose services were terminated after obtaining his resignation due to certain allegations, had received all his dues, but subsequently had filed grievance petition against termination of his services alleging that his resignation was obtained by employer under duress and intimidation‑‑‑Petitioner's designation from Air‑Conditioning Engineer was changed as Utility Engineer with no change in his practical duties and duties performed by petitioner were enough to hold that he was not a "workman" within meaning of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, because his main performance was not a manual work, but was a mental toil and incidental manual/physical exertion while making mental toil would not bring him within expression of manual worker‑‑‑Petitioner was responsible for assigning duties to workers for night and morning shifts which had proved that he was actually working as Utility Engineer/Manager‑‑‑Labour Court had rightly dismissed grievance petition of petitioner holding that he being not a workman could not file grievance petition‑‑‑Grievance petition was rightly dismissed by Labour Court on merits as well as on ground that it was not maintainable on technical grounds.

1976 LLC 580; PLD 1986 SC 103 and 1983 PLC 201 ref.

Raja Shamsuz Zaman for Appellant.

Muhammad Sabir for Respondents.

Date of hearing: 12th April, 2000.

2001 P L C 289

[Sindh Labour Appellate Tribunal]

Before Munawar Ali Khan, Appellate Tribunal

HUSSAIN AHMED

versus

GENERAL TYRE AND RUBBER CO. OF PAKISTAN LIMITED, PLOT NO.H23/2, LANDHI INDUSTRIAL AREA, KARACHI

Appeal No. KAR‑114 of 1999, decided on 15th May, 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.l(b) & 12(3)‑‑‑Termination of services of temporary workman‑‑‑Appointment of employee as helper was purely temporary which was likely to last for six months but termination of employee was postponed on account of his having received injury on hand due to accident and he was referred to hospital‑‑­Employee was declared medically fit and ,he reported for duty when his services were terminated‑‑‑Employee was to work only as a temporary helper and his appointment could end at any time during period of six months‑‑‑Had employee not suffered any injury during employment, iris services might have been terminated before the date of termination order and it was only because he was under treatment in the hospital that his termination ;vas postponed‑‑‑Post of helper was not of permanent nature as helpers who were generally taken up on daily wages were frequently changed‑‑‑Employee was appointed on daily wages and was paid Rs.50 per day and he was also issued temporary card‑‑‑Grievance petition filed by employee was rightly dismissed by Labour Court being not maintainable.

Muhammad Shafiq Qureshi for Appellant.

Mehmood A. Ghani for Respondent.

2001 P L C 308

[Sindh Labour Appellate Tribunal]

Before Munawar Ali Khan, Chairman

MUHAMMAD IRSHAD MAQSOODUR REHMAN and another

versus

CHIEF EXECUTIVE/MANAGING DIRECTOR, AMRELI STEELS (PVT.) LIMITED, KARACHI

Appeals Nos.290 and 291 of 1999, decided on 16th November, 2000.

Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑S. 25‑A‑‑‑West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.12‑‑‑Grievance petition‑‑­Termination of service‑‑-Employee who was junior most in his cadre, having been rendered surplus, his services were terminated owing to economic reasons and on basis of "last in and first out "principle‑‑‑Service of employee was terminated by an order in writing stating reasons for termination and legal dues were also paid according to law‑‑‑Employee having failed to prove mala fide intention of employer in terminating his service, order of‑ termination based on reasonable ground not suffering from any illegality or irregularity, could not be interfered with‑‑­Grievance petition of employee was rightly dismissed by Labour Court.

1998 PLC 172 and 1991 PLC 506 ref.

Abid Akram for Appellants.

Faisal A. Ghani for Respondents.

Date of hearing: 7th November, 2000.

2001 P L C312

[Sindh Labour Appellate Tribunal]

Before Munawar Ali Khan, Chairman

QALANDER KHAN

versus

Messrs UNION COLD STORAGE CO. LTD. through Chairman/Director

Revision Application NOXAR‑122 of 1999, decided on 21st November, 2000.

(a) Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑Ss. 38(3‑a) & 51‑‑‑Revision‑‑‑Maintainability‑‑‑Revision ‑ against order passed under S.51, Industrial Relations Ordinance, 1969 was maintainable:

PLJ 1979 Kar. 212 ref.

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

‑‑‑‑S. Os. I 1‑A, 12 & 14‑‑‑Closure of establishment‑‑‑If whole establishment was closed down, employer was not under obligation to reinstate any employee or give him any benefit.

1993 PLC 308 ref.

A. De Cruz for Appellant.

Gulzar Ahmed for Respondents.

Date of hearing: 8th November, 2000.

2001 P L C 329

[Sindh Labour Appellate Tribunal]

Before Munawar Ali Khan, Chairman

Messrs KHAN BROTHERS

versus

AMIR HAIDER NAQVI

Appeal No. KAR‑23 of 1999, decided on 9th October, 2000.

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 on attaining age of superannuation ‑‑‑Employee after crossing age of sixty years was due for retirement, employer had not committed any illegality in retiring him‑‑‑Employee was entitled to payment of back benefits and special allowance due to him.

Faruq A. Ghani for Appellant.

Muhammad Tasnim for Respondent.

Date of hearing: 27th September 2000.

2001 PLC 337

[Sindh Labour Appellate Tribunal]

Before Munawar Ali Khan, Chairman

QAISER MIRZA

versus

A.F.K. INDUSTRIES, PLOT N0.57, SECTOR, KARACHI

INDUSTRIAL AREAS through Khalid Ahmed

Appeal No.KAR‑95 of 1999, decided on 23rd November, 2000.

Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑Ss. 2(xxviii) & 25‑A‑‑‑West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968),. Ss. 1(4)(a) & (2(i)‑‑‑Grievance petition‑‑ ‑Maintainability‑‑‑Employee serving as salesman at Lahore filed grievance petition at Karachi where establishment of employer was situated‑‑‑Contention of employer was that sale point at Lahore was not part of the establishment at Karachi, but was an independent establishment . where less than twenty persons were working‑‑‑Such contention remaining unsettlled‑‑‑Labour Court at Karachi, had no jurisdiction to entertain and decide grievance petition filed by employee‑‑­Employee, otherwise, being salesman not falling within definition of workman, could not move grievance petition against establishment where less than twenty persons were working‑‑‑Grievance petition was rightly dismissed. by Labour Court in circumstances.

1992 PLC 424 and 1992 SCMR 227 ref.

Siddique Mirza for Appellant.

Nishat Warsi for Respondent.

Date of hearing: 16th November, 2000.

2001 P L C 348

[Sindh Labour Appellate Tribunal]

Before Munawar Ali Khan, Chairman

KARACHI PORT TRUST through Chairman, K.P.T West. Wharf Road, Karachi

Versus

MUHAMMAD SALIM and another

Appeal No.KAR‑8 of 2000, decided on 8th September, 2000.

Payment of Wages Act (IV of 1936)‑‑‑

‑‑‑‑S. 15‑‑‑West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O. 10-B‑‑‑Service Tribunals Act (LXX of 1973), S.2‑A ‑‑Payment of group insurance amount‑‑‑Jurisdiction of Commissioner far Workmen's Compensation‑‑‑Son of ex‑employee of Karachi Port Trust had filed application for payment of group insurance amount due to him as heir of his 'deceased father‑‑‑Commissioner for Workmen's Compensation allowed said claim directing the Karachi Port Trust to deposit amount of claim‑‑‑Karachi Port Trust being a body corporate established under Karachi Port Trust Act, 1886, was covered by S.2‑A of Service Tribunals Act, 1973 according to which employees of Karachi Port Trust would be deemed to be civil servants and Service Tribunal and not Labour judicial heirarchy forums, would have jurisdiction to deal with the case of applicant who could approach. Service Tribunal by adopting due procedure.

Aijaz Hussain and S.M. Awan for Appellant.

Imtiaz Ali Effendi for the Workers.

Date of hearing: 30th August, 2000.

2001 P L C 353

[Sindh Labour Appellate Tribunal]

Before Munawar Ali Khan, Chairman

NISAR AHMAD

versus

KARACHI SHERATON HOTEL

Appeal No. KAR‑246 of 1998, decided on 21st April, 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.15(3)‑‑‑Grievance petition‑‑­Dismissal of employee from service on allegations of misbehaviour/misconduct after show‑cause notice and inquiry‑‑‑Witnesses produced by employer in proof of allegations against employee had proved by their evidence that employee not only had disobeyed order of his superior, but also misbehaved with him‑‑‑Employee had failed to establish any ill‑will or prejudice against the witnesses‑‑‑Employee, in circumstances, had rightly been dismissed from service on allegations of misbehaviour/misconduct‑‑­Appeal against order of dismissal otherwise being barred by time, was dismissed.

1997 SCMR 860; 1999 SCMR.108 and Jumma v. Maulvi Mubarak 1971 SCMR 779 ref.

Nishat Warsi for Appellant.

Mehmood Abdul Ghani for Respondent.

Date of hearing: 18th April, 2000.

2001 P L C 361

[Sindh Labour Appellate Tribunal)

Before Munawar Ali Khan, Chairman

Messrs HAKIMSONS CHEMICAL INDUSTRIES (PVT.) LTD.

versus

OMER MUHAMMAD and 4 others

Appeals Nos.KAR‑269, 270, 271, 272 and 273 of 1999, decided on 31st August; 2000.

Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑Ss. 2(viii), 25‑A & 37(3)‑‑‑Grievance petition ‑‑‑Maintainability‑‑­Relationship of employer and employees between the parties ‑‑‑Proof‑‑­Petitioners who claimed to have been employed by the management, had filed grievance petition alleging that they were not allowed their legal rights, privileges and benefits admissible to them and that they had not been provided with Social Security Cards, Old‑Age Benefit Cards and other such­like documents to which they were entitled‑‑‑Further allegation in grievance petition was that services of petitioners were terminated verbally after they had put in three years, without giving them any written termination letter‑‑­Management denied relationship of employer and employees between the parties and stated that alleged appointment letters were forged and fabricated‑‑‑Petitioners had produced written appointment orders alongwith their affidavits‑in‑evidence which were basic documents to prove relationship of employer and employees and management had failed to prove that said appointment orders of petitioners were forged and fabricated documents‑‑­Relationship of employer and employees between parties; in circumstances, had been proved and petitioners were entitled to all rights, privileges, and benefits admissible to them under relevant law.

Syed Qamaruddin Hassan for Appellants.

Rafiullah and Shamsher Khan for Respondents.

Date of hearing: 24th August, 2000.

2001 P L C 375

[Sindh Labour Appellate Tribunal]

Before Munawar Ali Khan, Chairman

MUHAMMAD GUL

versus

Messrs DEWAN SUGAR MILLS LTD.

Appeal No. HYD‑151 of 1999, decided, on 24th November, 2000.

Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑S. 25‑A‑‑‑Grievance petition‑‑‑Resignation‑‑‑Employee had alleged that his resignation was obtained by employer by using physical force on him and that he was ousted from service for his trade union activities, whereas claim of employer was that employee had tendered his resignation voluntarily‑‑­Employee could neither prove alleged use of force nor the allegation that he was ousted for his trade union activities‑‑‑Resignation of employee having proved to be voluntary, grievance petition of employee was rightly dismissed by Labour Court.

Nishat Warsi for Appellant.

S. Asad Abbas Zaidi for Respondent.

Date of hearing: 20th November, 2000.

2001 PLC 377

[Sindh Labour Appellate Tribunal]

Before Munawar Ali Khan, Chairman

Messrs METROPOLITAN STEEL CORPORATION LTD., KARACHI

versus

Mst. NAJMA KHATOON and another

Appeal NOXAR‑75 of 2000, decided on 19th February, 2001.

Workmens' Compensation Act (VIII of 1923)‑‑‑

‑‑‑‑S.30‑‑‑Appeal, maintainability of‑‑‑Cheque in respect of amount payable under the order appealed against was dishonoured and employer had failed to produce any other evidence showing that the requisite amount was paid in cash or by second cheque‑‑‑In absence of certificate by the Commissioner to the effect that employer had deposited with him an amount payable under the order appealed against, appeal filed by employer was not maintainable.

S.M. Yaqoob for Appellants.

Muhammad Ayub for Respondents.

Badarul Haq Solangi for the Workmen's Compensation.

Date of hearing: 19th February, 2001.

2001 P L C 378

[Sindh Labour Appellate Tribunal]

Before Munawar Ali Khan, Chairman

MUHAMMAD ASLAM

versus

Messrs PARAMOUNT EXPORTS

Appeal No.KAR‑59 of 2000, decided on 23rd February, 2001.

Industrial Relations Ordinance (XXIII of 1969)-‑‑

‑‑‑‑S.25‑A‑‑‑Grievance petition‑‑‑Maintainability of‑‑‑Petitioner had claimed that he was employed as sewing machine operator on permanent basis, but his services were terminated verbally and without assigning any reason‑‑­Employer company denied claim of petitioner contending that since petitioner was never in service of the Company, the question of issuance of termination order did not arise‑‑‑Excepting verbal statement of petitioner that he was permanent employee under the company, no other evidence was on record to prove claim of petitioner‑‑‑Petitioner neither could produce application made by him for his appointment nor he could produce copy of appointment order‑‑‑Petitioner having failed to prove that he was ever employed in the service of company, grievance petition filed by petitioner was rightly dismissed.

Muhammad Aslam Khan for Appellant.

Mansoor Hussureshi for Respondent.

Date of nearing: 19th February, 2001.

2001 PLC 381

[Sindh Labour Appellate Tribunal]

Before Munawar Ali Khan, Chairman

SHABBIR AHMED KHAN

versus

PROPRIETOR, HAJI RAMZAN WEAVING FACTORY and another

Appeal No. HYD‑133 of 1999, decided on 12th February, 2001.

Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑S.25‑A‑‑‑West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.1(4) & S.0.12(3)‑‑­Termination of service‑‑‑Grievance petition‑‑‑Maintainability of ‑‑Services of petitioner having been terminated without any written order, petitioner had challenged his termination in his grievance petition‑‑‑Grievance petition was resisted by employer denying relationship of employer and employee between the parties‑‑‑Petitioner was neither issued any appointment order nor termination order in writing, in absence of both such important documents petitioner's liability to prove his contention of being employee of the establishment had become greater, but petitioner had failed to produce on record any evidence to prove relationship of parties as employer and employee‑‑‑Even otherwise West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 was not applicable to establishment as less than twenty workers were working therein ‑‑‑Grievance petition was rightly dismissed being not maintainable.

Shaikh Wahid Bux for Appellant.

Hakim Ali Siddiqui for Respondent.

Date of hearing: 30th January, 2001.

2001 P L C 383

[Sindh Labour Appellate Tribunal]

Before Munawar Ali Khan, Chairman

Messrs MEHRAN SUGAR MILLS LTD., TANDO

ALLAHYAR through Notified Manager at

Tando Allahyar District, Hyderabad

versus

SHOUKAT ALI KHAN and another

Appeal No.HYD‑121 of 1999, decided on 7th February, 2001.

(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) & S.0.13‑‑­Termination of service by way of retrenchment‑‑‑Workmen‑‑‑Determination of‑‑‑Employee was originally appointed as a clerk but was promoted first as Assistant Accountant and finally as Accounts Officer‑‑‑Services of employee were terminated alongwith others by way of retrenchment to re‑organise employer establishment for bona fide reasons‑‑‑Employee challenged his termination in his grievance petition‑‑‑Employee after his promotion as Accounts Officer was pled in the Officer's Grade‑9 and in that capacity was assigned mainly the duties of supervisory, administrative and managerial nature which included supervising the work of subordinate staff‑‑‑Employee, who after promotion ceased to be a workman, was stopped from participating in the trade union activities in the establishment‑‑‑Merely because in hierarchy of officers if employee was made answerable to his next superior officer, that would not mean that he was not an officer‑‑‑Employee after his promotion as Accounts Officer having ceased to be workman, West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 was not applicable to him‑‑‑Position of employee in respect of Company was of master and servant which was to be regulated by terms and conditions which governed the appointment of the employee.

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

‑‑‑‑S.O.13‑‑‑Retrenchment‑‑‑Services of retrenched personnel were not needed because they were considered as surplus to the requirement of the employer‑‑‑Employee who was retrenched had failed to prove that the terms and conditions of his appointment required prior notice to be given to him for termination of his services‑‑‑If no notice was given to employee, termination of his service by way of retrenchment could not be regarded as illegal.

Ghulam Sarwar Chandio for Appellant.

Fasahat Hussain Rizvi for Respondents.

Date of hearing: 25th January, 2001.

2001 P L C 388

[Sindh Labour Appellate Tribunal]

Before Munawar Ali Khan, Chairman

SHAH GUL AMBER

versus

Messrs GUL AHMED COTTON MILLS (PRIVATE) LTD., KARACHI NO12

Appeal No.KAR‑47 of 2000, decided on 29th January, 2001.

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)(e)‑‑‑Dismissal from service‑‑‑Employee was dismissed from service after holding enquiry against him on allegation that he remained absent unauthorisedly for more than ten days‑‑‑Employee was given ample opportunity to participate in the enquiry proceedings, but he did not avail the same and Enquiry Officer had‑ to conduct the enquiry ex parse‑‑‑Report of the Enquiry Officer showed that allegations against the employee had fully been proved‑‑‑In absence of any evidence on record which could prove that services of employee were terminated for the reason other than unauthorised absence for more than ten days, employee was rightly dismissed from service.

Muhammad Ayub Khan for Appellant.

Masood Ahmed Khan for Respondent.

Date of hearing: 22nd January, 2001.

2001 P L C 391

[Sindh Labour Appellate Tribunal]

Before Munawar Ali Khan, Chairman

Messrs CHOUDHRY SIZING MILLS, KARACHI

versus

VAKEEL and 6 others

Appeals Nos.KAR‑96 to 101 of 2000, decided on 18th January, 2001

(a) Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑S. 25‑A‑‑‑Grievance petition‑‑‑Written reply‑‑‑Written reply filed by employee was neither verified on oath nor the person who signed and produced the same was examined in evidence‑‑‑Such reply could not be used as part of evidence and would have to be kept out of consideration.

PLD 1972 SC 25; 1990 PLC 460; 1990 PLC 429 and 1990 PLC 63 ref.

(b) Industrial Relations Ordinance (XXIII of 1969)‑‑

‑‑‑‑S.25‑A‑‑‑West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.Os. 12 & 13‑‑‑Termination of service‑‑‑Employees had alleged that their termination was due to resentment and annoyance of the employees over formation of trade union by the employees in cooperation with other workers‑‑‑Employers had claimed that termination of employees was by way of retrenchment in the establishment‑‑‑Contention of employers with regard to retrenchment stood falsified by admission of their own witness as no other evidence was produced in support of said contention‑‑‑Evidence on record had fully established that termination of employees was due to the formation of trade union in the establishment‑‑‑Order terminating services of employees was quashed by Appellate Tribunal being unlawful.

Khurshid Ahmed Siddiqui for Appellants.

Siddiqui A. Malik for Respondents.

2001 P L C 396

[Sindh Labour Appellate Tribunal]

Before Munawar Ali Khan, Chairman

Messrs RAFHAN BEST FOODS LIMITED through

Human Resources Manager and Sales Manager and another

versus

NASIR JAMAL QURESHI

Appeal No.KAR‑89 of 2000, decided on 8th February, 2001.

(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)‑‑‑Status of workman‑‑­Determination‑‑‑Status of a workman was not to be determined by his designation, but by the nature of work performed by him.

(b) Industrial Relations 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)‑‑­Termination of service‑‑‑ Grievance petition, maintainability of‑‑­Applicability of Standing Orders Ordinance, 1968‑‑‑Status of workman‑‑­Determination‑‑‑Employee was appointed as Area Sales Representative doing the job of sale and supply of products of employer company‑‑‑Selling was not an easy job which could be carried out by an ordinary workman as the same required imagination, tact, wisdom, application of mind and know‑how of the thing offered for sale to the customers‑‑‑Employee engaged in making sale of the products of employer in addition to using his intellect and wisdom could also undertake some incidental manual work, but by doing, such small work connected with the sale of products, his status could not be changed nor for that reason alone he could be regarded as "workman "‑‑‑Work of salesman being wholly of different category from manual work or clerical work, he would not fall within the definition of "workman" ‑‑‑Employee being sales representative not falling within the definition of "workman", Labour Court was not justified in holding him as workman entitled to the benefit of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968‑‑‑Appointment of employee being of contractual nature of master and servant, it was necessary to spell out the details of terms and conditions on basis of which his appointment was made‑‑‑In absence of provision of notice to be given to employee before termination of his service, termination of his services had lawfully been made particularly, when he was repeatedly warned that his performance was gradually deteriorating.

PLD 1988 SC 118; 1998 PLC 172; PLD 1961 SC 403 and PLD 1975 Kar. 279 ref.

Muhammad Sabir for Appellants.

Rafiullah for Respondent.

Date of hearing: 30th January, 2001.

2001 PLC 401

[Sindh Labour Appellate Tribunal]

Before Munawar Ali Khan, Chairman

Messrs PAKISTAN BEVERAGE LTD. through

General Manager & Authorised Principal Officer, Karachi

versus

UMER ZAIB and another

Appeal No.KAR‑102 of 1999, decided on 6th February, 2001.

Industrial Relations Ordinance (XXIII of 1969)‑‑

‑‑S.25‑A‑‑‑Grievance petition‑‑‑Defective written reply by employer, effect of‑‑‑On filing grievance petition by employee, employers filed written reply which was neither signed by them nor by any person authorised by them and was not verified on oath‑‑‑Person signing the same was also not produced in evidence‑‑‑Such written reply unauthorisedly signed by employer's advocate could not be read as evidence and was to be excluded from consideration, especially when employers failed to rectify their irregularity of non‑signing the written reply.

PLD 1972 SC 25 and 1981 SCMR 687 ref.

Nasir Mehmood for Appellants.

Ashraf Hussain Rizvi for Respondents.

Date of hearing: 25th January, 2001.

2001 P L C 404

[Sindh Labour Appellate Tribunal]

Before Munawar Ali Khan, Chairman

INAYAT HUSSAIN MIRZA

versus

KUWAIT AIRWAYS CORPORATION through

Manager for Pakistan, Karachi

Appeal No.KAR‑33 of 2000, decided on 16th December, 2000.

Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑S.25‑A‑‑‑West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.Os. 12 & 13‑‑‑Termination of service on ground of retrenchment and re‑organization‑‑‑Employee had failed to prove that termination of service was due to any mala fide intention or grudge of the employer‑‑‑Not only the service of the employee was terminated by way of retrenchment but so many other workers were also retrenched‑‑‑Employer had proved that services of, employees were terminated due to its financial stringency and that retrenchment was made striclty in accordance with seniority and after observing all legal formalities‑‑‑‑Employer had power to terminate the services of any workman on fulfilment of specified requirements i.e., written termination order coupled with explicit reasons and one month's notice or pay in lieu‑thereof‑‑­Case being not that of misconduct, no enquiry was held‑‑‑Grievance petition filed by employee against termination of his service was rightly dismissed by the Labour Court.

Muhammad Tasnim for Appellant.

Munawar Issani for Respondent.

Date of hearing: 6th December, 2000.

2001 PLC 407

[Sindh Labour Appellate Tribunal]

Before Munawar Ali Khan, Chairman

AKBER KHAN

versus

THE PRESIDING OFFICER, 4TH SINDH

LABOUR COURT, KARACHI and another

Appeal No.KAR‑252 of 1999, decided on 16th December, 2000.

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)(e)‑‑‑Dismissal from service‑‑‑Grievance petition, maintainability of‑‑‑Employee was dismissed from service after issuing charge‑sheet and holding enquiry against him on allegation of unauthorised leave for more than ten days‑‑‑Employee though served grievance notice to the employers in time, but filed grievance petition after a long delay of fourteen months without furnishing any satisfactory explanation for the delay‑‑‑Merely because employee was poor illiterate person and was unaware of legal position, delay in filing grievance petition could not be condoned because ignorance of law was no excuse‑‑‑Allegation against employee having been proved, grievance petition was rightly dismissed by the Labour Court both on ground of delay as well as on merits.

1981 PLC 103; PLD 1975 SC 22; PLD 1976 SC 195 and PLD 1989 SC 130 ref.

Gohar Iqbal for Appellant.

Syed Oamaruddin Hassan for Respondents.

Date of hearing: 7th December, 2000.

2001 PLC 410

[Sindh Labour Appellate Tribunal]

Before Munawar Ali Khan, Chairman

SINDH CLUB through Secretary

versus

SOHAIL AHMED and another

Appeal No. KAR‑266 of 1999, decided on 4th December, 2000.

(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"‑‑‑Employee claimed .to be a permanent workman and employer in his written reply had admitted the claim of the employee‑‑‑Mere admission of employee in his cross‑examination that two assistants and two helpers worked under him, could not exclude him from the definition of "workman" particularly when no further clarification as to the job assigned to the said assistants/helpers was forthcoming.

(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)‑‑‑Dismissal from service‑‑‑Employee elected as General Secretary of the Trade Union, was dismissed from service on allegation that on the day when he was elected, in defiance of order of employer the meeting of the General Board of the Union was held during working hours which disturbed the peace and tranquility of members of employers' club and work of club was seriously affected‑‑­Validity‑‑‑Employee was not responsible for convening the meeting in question as it was, not held‑ on the motion of employee‑‑‑Former General Secretary of the Union and other office‑bearers of the Union were responsible for the meeting but no action had been taken against them‑‑­Allegation against employee having not been proved, he could not be dismissed from service on the said allegation.

(e) Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑S.51‑‑‑Back benefits‑‑‑Entitlement‑‑‑Employee .who was Homeopathy’s Doctor was running a part‑time clinic of Homoeopathy even prior to termination of his service‑‑‑Practice of Homoeopathy would not disentitle employee for back benefits as whatever he earned from his private practice, could not be interpreted as his income earned during the time he served the employer‑‑‑Back benefits could not be denied to the employee in circumstances.

Muhammad Ali Khan for Appellant.

M..A.K. Azmati for Respondents.

Date of hearing: 27th November, 2000.

2001 PLC 415

[Sidh Lahour Appellate Tribunal]

Before Munawar Ali Khan, Chairman

Miss NASIM MEHDI

versus.

K.L.M. ROYAL DUTCH AIRLINES

through General Manager Pakistan, Karachi Club Road, Karachi

Appeal NOXAR‑354 of 1998, decided on 7th ‑December, 2000.

(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). S. Os.12(3) & 15(3)‑‑‑Termination of service‑‑‑Service of employee ,earlier was terminated, but order of termination was set aside by Labour Court ordering reinstatement of the employee‑‑‑Service of employee again was terminated on ground of unauthorised absence from duty from the date she was ordered to be reinstated‑‑‑Order of Labour Court with regard to reinstatement of employee was a direction addressed to the employer who in normal circumstances should have informed the employee as to when and what place and which roster employee was to join duty after reinstatement‑‑‑Employer did not issue any formal order in the light of the decision of the Labour Court requiring the employee to join her duties‑‑‑In absence of such order, employee was not supposed to resume duties of her own accord‑‑­Employee, in circumstances, had not remained absent after date of resumption of her duties‑‑‑Order terminating service of employee was illegal.

(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), S.Os.12(3) & 15(3)‑‑‑Termination of service ‑‑‑Grievance petition, maintainability of‑‑­Grievance petition by employee against termination of service was resisted by employer contending that same was not maintainable as less than twenty workmen were employed in employer establishment‑‑‑Employer failed to prove his contention whereas employee by producing oral as well as documentary evidence had proved that more than twenty workmen were employed in the establishment‑‑‑Employee, in circumstances, was a "workman" and grievance petition filed against termination order was maintainable‑‑‑Even if West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 was not applicable, a workman still fell within the definition, of S.2(xxviii) of Industrial Relations Ordinance; 1969 and was entitled to invoke S.25‑A of that Ordinance to bring a grievance in respect of any right guaranteed or secured to him by or under any law, award or settlement.

1989 PLC 187; PLD 1972 SC 25 and 1993 SCMR 672 ref.

Faiz Ghanghro for Appellant. Abdul Hafiz for Respondents.

Date of hearing: 27th November, 2000.

2001 P L C 420

[Sindh Labour Appellate Tribunal]

Before Munawar Ali Khan, Chairman

Messrs ZEAL PAK CEMENT FACTORY LTD.

through General Manager

versus

GHULAM HABIB

Appeal No.HYD‑326 of 1999, decided on 13th February, 2001.

Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑S.25‑A‑‑‑West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S. Os. I(b)(e), 12 & 14‑‑‑Removal from service‑‑‑Employee was removed from service, but Labour Court setting aside removal order ordered his reinstatement and order of Labour Court was upheld by Labour Appellate Tribunal‑‑‑Employee after about one month of his reinstatement was again removed from service without any explicit reason and he filed grievance petition against the said removal‑‑­Employers in their written statement had alleged' that employee was a temporary workman and he having become surplus, was removed from service by way of bona fide retrenchment‑‑‑Employee from the date of his initial appointment until removal of his service for the second time continuously remained in service for about five years‑‑‑Both Labour Court and Labour Appellate Tribunal had recognized the status of employee to be of permanent workman and employers had not been able to prove that during all such period employee was in their service as a temporary contract employee‑‑‑Employee, in circumstances, was proved to be a permanent employee and his grievance petition was .maintainable‑‑‑Almost all the retrenched employees were re‑instated in service, except the employee who was singled out by the employers for mala fide reason‑‑‑Order of reinstatement of employee passed by Labour Court was maintained by Appellate Tribunal in circumstances.

Faisal Ghani for Appellants.

Ashraf Hussain Rizvi for Respondent.

Date of hearing: 6th February, 2001.

2001 P L C 424

[Sindh Labour Appellate Tribunal]

Before Munawar Ali Khan, Chairman

Syed HASSAN ASKARI

versus

MINOPAK MOTORS LTD. KARACHI and another

Appeal No. KAR‑78 of 2000, decided once February. 2001.

Industrial Relations Ordinance (XXIII of 1969)‑‑­

------S.25 –A---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.Os.12, 13 & 14‑‑‑Termination of service‑‑‑Grievance petition‑‑‑Limitation‑‑‑Grievance petition filed after expiry of prescribed period of three months was objected to on the ground that since employee had challenged the order of termination of his service by way of grievance petition the cause of grievance would arise to the employee on the date on which order of termination was passed against him‑‑‑Claim of employee was that since employee's services were terminated by way of retrenchment S.O. 14 of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 would c9me into play and according to said order all the retrenchment workmen were to be re­ employed within a year of their retrenchment‑‑‑Employee had further claimed that he was to be re‑employed within one year from his retrenchment and that he having remained unemployed ever since the date of his termination, his cause of action arose within one year from the date of termination of his service‑‑‑Validity‑‑‑Employee though was terminated from service by way of retrenchment, but no evidence was available on record to show that employers were prepared to take back any of the retrenched workmen‑‑‑Employers had categorically denied that they had re-inducted or re‑employed any of the retrenched workmen‑‑‑Employee in his grievance notice had clearly indicated that he was aggrieved by the order of termination of his service and not by refusal or reluctance of the employers to re‑employ him within one year of his retrenchment ‑‑‑Grievance notice and grievance petition filed long after prescribed period of three months, was rightly dismissed being barred by time.

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

‑S.0.14‑‑‑Retrenchment‑‑‑Employee under S.O. 14 .of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 had to wait for full one year from the date of his retrenchment before giving any grievance notice because his grievance would arise only after the expiry of one year from the date of his retrenchment and if he was not re‑employed within such span of time.

M.A.K. Azmati for Appellant.

M.L. Shahani for Respondents.

Date of hearing: 21st February, 2001.

2001 P L C 428

[Sindh Labour Appellate Tribunal]

Before Munawar Ali Khan, Chairman

KARACHI SHERATON HOTEL through Director.

versus

GHULAM FAREED

Appeal No. KAR‑398 of 1998, decided on 20th February, 2001.

Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑Ss. 2(xxviii) & 25‑A‑‑‑West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968). S.1(4) & S.0.12‑‑­Grievance petition‑‑‑ Workman, determination of‑‑‑Termination of service‑-‑ Employee was initially appointed as Cashier, but was later on promoted as Internal Auditor and at the time of termination of his service he was working as such‑‑‑Employee, on promotion as Internal Auditor, ceased to be a "workman" because not only his duties were changed but he also became entitled to such benefits and concessions which were not admissible to "workmen"‑‑‑Job of employee as Internal Auditor being to audit accounts prepared by others, he could not be placed at par with the persons who prepared the accounts‑‑‑Work of auditing was not prepared by "workman" nor a person entrusted with auditing job could be called a "workman''‑‑‑Duty of the employee was to supervise the work of as many as sixteen employees and he used to counter‑check the, vouchers submitted to him before payment‑‑‑Employee, unlike other workmen was allowed thirty days' earned leave, club facilities and facilities of availing the Dinning Hall meant for executives‑‑‑Employee was given three months' notice unlike the 'workmen" who generally were given one month's notice in lieu of his one month's pay‑‑‑Employee. in circumstances, was not workman and he could not avail the benefits of West Pakistan Industrial and Commercial Employment (Standing Orders 2 Ordinance, 1968‑‑‑Services of employee were rightly terminated after giving him notice of three months.

1985 SCMR 1511; 1990 PLC (C.S.) 295(sic) and 2000 PLC 325 ref.

Mahmood A. Ghani for Appellants.

Muhammad Shafiq Qureshi for Respondent.

Date of hearing: 12th February, 2001.

2001 P L C 466

[Sindh Labour Appellate Tribunal]

Before Munawar Ali Khan, Chairman

HASHIM KHAN

versus

PRESIDING OFFICER, SINDH LABOUR COURT, NO.III, KARACHI and another

Appeal No. KAR‑360 of 1999, decided on 31st March, 2001.

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.O. 12‑‑‑Grievance petition‑‑‑Appeal‑‑‑Petitioner had alleged that he served the establishment for about three years, but his services had been terminated verbally without giving him written order‑‑‑Respondent in his written reply had totally denied relationship of employer and employee between the parties‑‑‑In view of denial of respondent of the existence of relationship of employer and employee, burden was on the petitioner to prove said relationship, but he had failed to discharge ,such burden by producing any appointment letter or other documents like identity card‑‑‑Petitioner having miserably failed to prove his employment with the respondent, question of issuance of the written order of termination of his service did not arise.

Shamsher Khan, Representative for Appellant.

Syed Muhammad Humayun Akhtar for Respondents.

Date of hearing: 26th March, 2001.

2001 P L C 468

[Sindh Labour Appellate Tribunal]

Before Munawar Ali Khan, Chairman

CITY SCHOOL through Assistant Manager

Administration E‑31, Karachi and others

versus

Mrs. TALAT YAZDANI

Appeal No. KAR‑108 of 2000, decided on 14th March, 2001.

(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)‑‑‑Employee a teacher‑‑‑Grievance petition, maintainability of‑‑‑Lady teacher who was removed from service had filed grievance petition against order of her removal from service‑‑‑Job of the petitioner was teaching which prima facie was neither manual nor clerical in nature as it was performed by lectures or by short verbal discussion‑‑‑Preparing notes or writing on blackboard or checking copies of students by the teacher which involved some sort of manual labour and clerical work was only incidental to the main job of teaching for which mental power and capacity were needed‑‑‑Teaching, therefore, by no stretch of imagination could be regarded as manual or clerical work in nature‑‑‑Labour Court was not justified to accept grievance petition filed by petitioner against her removal from service.

1990 PLC 675; Appeal No. KAR‑76 of 1997; 1981 PLC 403 and PLD 1988 SC 180 ref.

(b) Words and phrases‑‑‑

‑‑‑‑‑‑ Teacher" and "teach", meaning and scope‑‑‑Word "teacher" would mean "one who teaches or instructs; especially one whose business or occupation was to teach others"‑‑‑Word "teach" would mean to impart knowledge by means of lessons, to give instructions in communicating knowledge, introducing into or impressing on the mind as truth or information and could be done as well through written communication, personal direction through the public press or through any means by which information could be disseminated.

Black's Law Dictionary, Fifth Edn. ref.

Shahid Anwar Bajwa for Appellants.

Abrar Bukhari for Respondent.

Date of hearing: 28th February, 2001.

2001 P L C 473

[Sindh Labour Appellate Tribunal]

Before Munawar Ali Khan, Chairman

ATTAULLAH

versus

CHIEF EXECUTIVE & GENERAL MANAGER, LIBERTY

POWER LIMITED, MIRPUR MATHELO

Appeal No. SUK‑114 of 2000, decided on 30th March, 2001.

Industrial Relations Ordinance .(XXIII of 1969)‑‑‑

‑‑‑‑Ss. 1(3)(b), 2(xxviii) & 25‑A‑‑‑West ‑Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(i) & S.O. 1(e)‑‑‑Termination of service‑‑‑Grievance petition‑‑‑Terms and conditions specified in appointment letter showed that appointment of employee was not only contractual to perform a specified duty, but was purely temporary terminable even during contract period without notice‑‑‑ Terms and conditions specified in the appointment letter were accepted by the employee‑‑‑Employee being not "workman" within the meaning of West Pakistan .Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and Industrial Relations Ordinance, 1969, provisions of said Ordinances were not applicable to him‑‑‑Grievance petition filed by the employee was not maintainable because no right guaranteed or secured to him under any law, award or settlement was infringed as his appointment was wholly regulated by the terms and conditions of contract specified in the appointment letter‑‑‑Claim of overtime, medical facility, grant of leave etc. of employee not being covered by the appointment letter would not be admissible to him‑‑‑Grievance petition was rightly dismissed by the Labour Court.

Shafiq Qureshi for Appellant.

S.S. Jehangir for Respondent.

Date of hearing: 22nd March, 2001.

2001 P L C 477

[Sindh Labour Appellate Tribunal]

Before Munawar Ali Khan, Chairman

SARFRAZ ALI

versus

SGS PAKISTAN (PVT.) LIMITED through Managing Director, Karachi

Appeal No. KAR‑38 of 2000, decided 31st March, 2001

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)‑‑‑Removal from service‑‑‑Grievance petition‑‑‑ Employee was removed from service verbally without assigning any reason and without issuing him written termination order despite the fact that he was duly appointed under letter of appointment and had served for more than two years‑‑‑Validity‑‑‑Held, it was necessary for the employer to inform the employee by order in writing that his services were no longer required‑‑‑Verbal order of employee's removal from service being in violation of provision of S.O. 12(3) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, was illegal.

1997 PLC 451; 1998 PLC 83 and 1993 PLC 303 ref.

Muhammad Tasnim for Appellant.

M.L. Shahani for Respondents.

Date of hearing: 27th March, 2001

2001 P L C 481

[Sindh Labour Appellate Tribunal]

Before Munawar Ali Khan, Chairman

MEHMOOD IQBAL and another

versus

KARACHI SHIPYARD AND ENGINEERING WORKS

LTD. through General Manager

Appeals Nos. 57‑KAR and 58‑KAR of 2000, decided on 9th March, 2001.

Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑Ss. 25‑A & 37(3)‑‑‑Service Tribunals Act (LXX of 1973), S.2‑A‑‑­Grievance petition, maintainability of‑‑‑Medical facilities admissible to petitioners, having been drastically curtailed, they filed grievance petition against said curtailment‑‑‑Maintainability of petition was objected to on the ground that after the insertion of S.2‑A in Service Tribunals Act, 1973 the Service Tribunal instead of Labour Court had the jurisdiction to hear the grievance petitions‑‑‑Petitioners after insertion of S.2‑A of the said Act, had become civil servants and they had to file appeal relating to terms and conditions of their service before the Service Tribunal and not before the Labour Court‑‑‑Validity‑‑‑Labour Court, held, had rightly decided that it had no jurisdiction to hear the grievance petitions filed by the petitioners.

1999 SCMR 2607; 1999 PLC (C.S.) 1208 and 1998 PLC (C.S.) 627 ref.

Rafiullah for Appellants.

Latif Saghar for Respondents.

Date of hearing: 26th February, 2001.

2001 P L C 497

[Labour Appellate Tribunal Sindh]

Before Munawar Ali Khan, Chairman

SINGER INDUSTRIES LABOUR UNION RECD. AND CBA

versus

SINGER PAKISTAN LIMITED through Director Personnel & Admn.

Application No.322 of 1998, decided on 13th April; 2001.

(a) Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑Ss.40 & 50‑‑‑Payment of Wages Act (IV of 1936), S.2(vi)‑‑‑Settlement, interpretation of‑‑‑Settlement in question was no longer in existence as the same stood superseded by a second settlement‑‑‑Interpretation of settlement or any clause thereof which was no longer in existence, would fall outside the jurisdiction of the Labour Appellate Tribunal.

1994 PLC 183 ref.

(b) Payment of Wages Act (IV of 1936)‑‑‑

‑‑‑‑S.2(vi)‑‑‑Industrial Relations Ordinance (XXIII of 1969), S.50‑‑‑"Basic wages" and "minimum wages"‑‑‑Distinction‑‑‑Settlement, interpretation of‑‑‑Applicant union had asserted that minimum wages fixed by the Government under Notification dated 21‑8‑1997 was same as basic wages and that payment of bonus, gratuity and provident fund etc. should have been given treating the minimum wages as basic wages‑‑‑Minimum wages was not one and the same thing as basic wages, but was different one. and it could not be made basis of calculating or paying bonus, gratuity and provident fund etc. as claimed by applicant union.

1984 SCMR 1135 ref.

Shafiq Qureshi for Applicant.

Mehmood A. Ghani for Respondents:

Date of hearing: 3rd April, 2001.

2001 P L C 501

[Labour Appellate Tribunal, Sindh]

Before Munawar Ali Khan, Chairman

Messrs KARACHI STOCK EXCHANGE (GUARANTEE) LIMITED, KARACHI through Senior Law Officer

versus

ADIL ABDUL JABBAR and 2 others

Appeals Nos. KAR‑7 to KAR‑9 of 2001, decided on 21st April, 2001.

Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑Ss.1(3)(b), 2(xxviii) & 25‑A‑‑‑West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.1(4)(c) & S.O. 15(3)‑‑‑Securities and Exchange Ordinance (XVII of 1969), Ss.34 & 35‑‑­Service Tribunals Act (LXX of 1973), S.2‑A‑‑‑Misconduct‑‑‑Termination of service‑‑‑Grievance petition, maintainability of‑‑‑Petitioners in their grievance petition filed under S.25‑A of Industrial Relations Ordinance, 1969 had successfully challenged order terminating their services on allegation of misconduct before Labour Court‑‑‑Employer establishment was governed by the provisions of Securities and Exchange Ordinance, 1969 and was regulated by Corporate Law Authority, Government of Pakistan, which was an attached Department of the Ministry of Finance, Economic Affairs and. Statistics‑‑‑Employer establishment was not only regulated by a Federal Law, but Federal Government exercised its control in respect of its working through Corporate Law Authority which was a Government institution and working as attached Department of the Ministry of Finance, Economic Affairs and Statistics‑‑‑Employer establishment as a body or organisation being covered by S.2‑A of Service Tribunals Act, 1973, service under said establishment would be service of Pakistan and every person holding a post thereunder would be deemed to be a civil servant and Service Tribunal and not the Labour Court, would have jurisdiction to redress the grievance of the employees of said establishment‑‑‑Labour Court ceased to have any jurisdiction in respect of the cases filed by employees of employer establishment‑‑‑Order passed by Labour Court allowing the grievance petition of the employees, was set aside being without jurisdiction.

Faruq A. Ghani for the Management.

Shoaun Nabi for the Workers.

Date of hearing: 12th April, 2001.

2001 P L C 506

[Labour Appellate Tribunal, Sindh]

Before Munawar Ali Khan, Chairman

Messrs PLASTICRAFTERS (PVT.) LTD., KARACHI and another

versus

MUHAMMAD FAROOQ and others

Appeals Nos.KAR‑23 and KAR‑24 of 2000, decided on 23rd April, 2001.

(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) & S.O. 15(3)(4)‑‑‑Termination of service‑‑‑Grievance petition, maintainability of‑‑‑Status of workman, determination of‑‑Employee at time of termination of his service was performing his duties as Incharge of his Department, but nature of his job was purely manual and he had no power of hiring and firing nor he was performing any supervisory or administrative duties and performing his duties under the instructions of Production Manager and his subordinates‑‑‑Employee had no authority to grant or refuse leave to the workmen of his Department‑‑‑Employee, even if in his cross‑examination, had admitted that he worked as incharge of his Department, would not exclude him from the category of workmen because designation alone was not sufficient to determine the status of workman‑‑‑Employee being a workman, grievance petition filed by him was maintainable.

PLD 1982 Kar. 917 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)‑‑‑Termination of service‑‑‑Services of the employee was terminated after charge‑sheeting him and holding enquiry against him on allegation that by giving wrong position of stock available in the Department under his control, employee had caused huge loss to the employer company‑‑‑During long service of twenty‑five years no such allegation was brought against the employee‑‑‑Alleged wrong position of stock neither was enclosed with the charge‑sheet nor it was produced by the employer in course of the enquiry proceedings‑‑‑Employer had also failed to prove any loss 'actually caused by misstatement of the employee with regard to availability of stock‑‑‑Employer having failed to prove charge against the employee, termination of service of employee was illegal‑‑Order of termination was also illegal as no termination order was served on the employee which was mandatory requirement of law‑‑‑Charge against the employee having not been proved, order of the Labour Court that employer could conduct fresh inquiry against the employee, was not justified‑‑‑Merely because the Enquiry Officer had failed in his duties by omitting to record his finding, same would not make it necessary for holding fresh inquiry on the desire of the employer.

Mehboob Rizvi, Representative for the Management.

Rafiullah foi the Worker.

Date of hearing: 16th April, 2001.

2001 P L C 511

[Labour Appellate Tribunal, Sindh]

Before Munawar Ali Khan, Chairman

HAJI MUHAMMAD ISMAIL MILLS LTD through General Manager, versus

SAEED AHMED and another

Appeal No.HYD‑21 of 1999, decided on 30th April, 2001

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.O. 15(3)(c)(e)‑‑‑Dismissal from service‑‑‑Grievance petition; maintainability of‑‑‑Status of workman determination of‑‑‑Employee working as Foreman was dismissed from service after charge‑sheeting him and holding inquiry against him on allegations of causing loss to the employer and on 'unauthorised absence‑‑‑Employee being Foreman was drawing salary of Rs.8,000 per month and had salary sheet different to that of workers and his Attendance Register was also different to that of workers as he used to sign in attendance register separately maintained for Staff officers‑‑‑Employee had claimed that he was a worker as he used to repair the machines‑‑‑Repairing of machine, no doubt involved manual labour, but for the employee who was a Foreman, such manual labour was only incidental‑‑‑Employee, in circumstances, could not be put in the category of "worker"‑‑‑Order of the Labour Court whereby the grievance petition filed by the employee was allowed with directions of reinstatement and payment of full back benefits was set aside, in circumstances.

1981 PLC 969; 1997 PLC 443 and 1996 PLC 182 ref.

Abdul Ghani Khan for Appellants.

Nishat Warsi for Respondent.

Date of hearing: 23rd April, 2001.

2001 P L C 515

[Labour Appellate Tribunal, Sindh]

Before Munawar Ali Khan, Chairman

AZAM KHAN

versus

DIRECTOR, GRACE APPERAL (PVT.) LTD.

Appeal No.KAR‑19 of 2000, decided on 6th April, 2001.

(a) Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑S.25‑A‑‑‑Grievance petition‑‑‑Limitation‑‑‑Employee served grievance notice on the employer one month after the prescribed date and grievance petition was also tiled about one month after the prescribed date‑‑‑Grievance petition was rightly dismissed being time‑barred in absence of any application for condonation of delay.

(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)‑‑‑Status of workman, determination of‑‑‑Grievance petition ‑‑‑Maintainability‑‑­Petitioner being Chowkidar had claimed that as he was doing manual work, he was covered by the definition of "workman "‑‑‑Petitioner had not stated anything in his grievance petition as well as in grievance notice indicating that he was doing a manual or clerical job‑‑‑In absence of such material on record, the mere fact that petitioner was a Chowkidar, would not put him in the category of "workman" ‑‑‑Even otherwise Factories Act, 1934 not being applicable to the employer establishment, the petitioner could not be regarded as "workman Grievance petition filed by the petitioner, was not maintainable especially when he had not proved by any documentary evidence that he had any right guaranteed or secured to him by or under any law or any award or settlement for the purpose of invoking S.25‑A of Industrial Relations Ordinance, 1969.

1988 SCMR 922; 1981 PLC 198; 1982 PLC 603; '1984 PLC 1100 and 1999 T.D. (Labour) 353 ref.

Abdul Ghaffar for Appellant.

Latif Saghar for Respondents.

Date of hearing: 29th March, 2001.

2001 P L C 519

[Labour Appellate Tribunal, Sindh]

Before Munawar Ali Khan, Chairman

Messrs CADBURY PAKISTAN LIMITED through General Manager

versus

Qazi ZAMIRUDDIN and another

Revision Application No.KAR‑68 of 2000, decided on 13th April, 2001.

Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑Ss. 25‑A & 38(3‑a)‑‑‑Grievance petition‑‑‑Production of documents‑‑­Substituting the original plea by new one‑‑‑Request of employer for recalling the employee for the purpose of confronting him with certain documents, having been turned down by the Labour Court, the employer had filed revision petition against the order of Labour Court‑‑‑Documents in question, despite being well within the knowledge of the employer from the very beginning of the litigation, were neither produced by the employer alongwith his reply statement nor were disclosed in the pleadings and were ‑not produced at the time of cross‑examination of the employee due to an oversight‑‑‑Said documents could not be allowed to be produced for the purpose of confronting the employee or for any other purpose especially when the employer by those documents wanted to prove that employee was not a "workman" thereby substituting the original plea by new one‑‑‑Only those documents which were not within the knowledge of party concerned and were subsequently discovered, could be produced at subsequent stage provided their bringing on record would advance the interest of justice‑‑‑If such documents would seek to change, amend or substitute wholly or partially the plea of the party, same could not be allowed to be brought on record‑‑‑Labour Court, in circumstances, had rightly rejected prayer of the employer for production of documents.

Mehboob Rizvi, Representative for Applicant.

Islam Hussain for the Worker.

Date of hearing: 3rd April, 2001.

2001 P L C 521

[Labour Appellate Tribunal, Sindh]

Before Munawar Ali Khan, Chairman

Messrs AMIN TEXTILE MILLS LIMITED, KOTRI

versus

BASHIR AHMED and another

Appeal No.HYD‑155 of 1999, decided on 19th April, 2001.

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.O.15(3)‑‑‑Misconduct‑‑‑Dismissal from service‑‑‑Status of worker determination of‑‑‑Grievance petition‑‑‑Maintainability‑‑‑Petitioner working as Foreman having been dismissed from service on allegation of misconduct, had filed grievance petition against his dismissal which was allowed by the Labour Court‑‑‑Petitioner being a Foreman was not a "workman" and if he had some manual work, it could be incidental to his main supervisory job‑‑­Grievance petition filed by petitioner against his dismissal from service, was not maintainable‑‑‑Order of Labour Court whereby grievance petition of petitioner was allowed, was set aside, in circumstances.

1981 PLC 969; 1997.PLC 443 and 1996 PLC 182 ref.

Muhammad Humayun for Appellant.

Rana Mehmood Ali Khan, Representative for Respondents.

2001 P L C 621

[Sindh Labour Appellate Tribunal]

Before Mushtak Ali Kazi, J

MUHAMMAD JAVAID

versus

THE CITY SCHOOL and others

Appeal NoXAR‑76 of 1997, decided on 1st April, 1997.

Industrial Relations Ordinance (XXPA of 1969)‑‑‑

‑‑‑‑Ss. 2(ix), (xiv), (xxvii) & 25‑A‑‑‑West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), Ss. 1(4)(a), 2(b), (f) & (i)‑‑‑Grievance petition, maintainability of‑‑‑Teachers, whether workmen‑‑‑Industrial and Commercial Establishment‑‑‑Meaning and scope‑‑‑Schools, hostels and other welfare organizations such as charitable service organisation, run by trust, would not fall within the definition of industrial or commercial establishment nor teachers would come within the definition of workers doing manual, skilled or unskilled work or clerical work as teachers imparted knowledge acquired by them through intellectual studies‑‑‑Imparting of education, could not be considered to be manual or clerical work attracting provisions of Industrial Relations Ordinance, 1969 and West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, but it was something which had been considered as pious and noble‑‑‑Professors/teachers who occupied the highest position in society as intellectuals in Islam, their work conic not be brought at par with manual labourers or workers‑‑‑Labour Court rightly dismissed grievance petition, holding that schools were not industrial or commercial establishments and teachers were not workers.

Mrs. Nishat Aslam v. Messrs Beacon House Public School (Pvt.) Limited 1990 PLC 675; Don Basco High School's case PLD 1989 SC 128; 1980 PLC 305; Jamia Karachi's case ,1981 PLC 403 and 1977 SCMR 66 ref.

Shahid Anwar Bajwa for Appellant.

Date of hearing: 1st April, 1997.

2001 P L C 635

[Sindh Labour Appellate Tribunal]

Before Munawar Ali Khan, Chairman

Messrs AL‑HADI TEXTILE (PVT.) LTD.

versus

HABIBUR REHMAN

Appeal No.KAR‑70 of 2000, decided on 10th May, 2001.

Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑Ss. 25‑A & 38(3)‑‑‑Grievance petition‑‑‑Maintainability‑‑‑Relationship of employee and employer‑‑‑Proof‑‑‑Respondent had claimed that he was employed with the Company as helper without giving him any written appointment order and that he had been removed from service without any written order according to law‑‑‑Company denied relationship of employee and employer between the parties as the respondent was not employed as claimed by him, Gut was hired to work as domestic servant and had nothing to do with the Company‑‑‑Burden was on the respondent to prove that he was employee of the Company and he had to prove the same by independent evidence, but he failed to discharge that burden by producing documentary and oral evidence, except his own verbal assertion‑‑‑Respondent could neither produce written order of his appointment nor written order of termination of his service to snow that he had ever served in the Company until his services were terminated‑‑‑Respondent having failed to establish his relationship with the company as that of employee and employer by whatever evidence, the Labour Court was not justified to accept grievance petition filed by him and to re‑instate him in service‑‑‑Labour Appellate Tribunal set aside the judgment of Labour Court.

1997 PLC 13 and 2001 PLC 223 ref.

Muhammad Tasnim on behalf of Muhammad Ashraf Khan for Appellant.

Zafar Farooqui, Representative for Respondent.

Date of hearing: 10th May, 2001.

2001 P L C 639

[Sindh Labour Appellate Tribunal )

Before Munawar Ali Khan, Chairman

AFZAL AHMED

versus

Messrs DAWOOD COTTON MILLS LTD.

Appeal NO.KAR‑80 of 2000, decided on 10th May, 2001.

Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑‑S.25‑A‑‑‑‑Grievance petition‑‑‑Limitation‑‑‑Maintainability‑‑‑Employee whose services were terminated was obliged to give grievance notice within three months of his termination, but he gave the notice after the delay of more than ten months‑‑‑Grievance notice being time‑barred, it would automatically follow that even the grievance petition filed by the employee was similarly time‑barred‑‑‑Grievance petition in absence of any separate application for condonation of delay was rightly dismissed being barred by time‑‑‑Employee otherwise had ceased to be employee of the employer as he had already resigned and had been paid his full and final dues‑‑­Grievance petition thus was not maintainable on that ground also.

Riaz Hussain Baloch for Appellant

Ch. Latif Saghar for Respondents.

Date of hearing: 2nd May, 2001.

2001 P L C 642

[Sindh Labour Appellate Tribunal]

Before Munawar Ali Khan, Chairman

MUHAMMAD IBRAHIM

versus

Messrs SAEED INDUSTRIES, KARACHI and another

Appeal No. KAR‑83 of 2000, decided on 15th May, 2001.

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)‑‑‑Grievance petition‑‑‑Termination of service‑‑‑Services of the employee were terminated verbally without giving him any letter of termination‑‑‑Under provisions, of S.O. 12(3) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, 'it was mandatory on the employer to issue written order of termination of service of any employee‑‑‑Employer could not prove that termination order was sent to the employee but he refused to receive the same‑‑‑No such order was produced by the employer on record‑‑‑Employer having failed to issue written order of termination of service of the employee containing explicit reasons for termination, verbal order of termination of the employee was illegal‑‑‑Order dismissing grievance petition filed by the employee against termination of his service, passed by the Labour Court, was set aside in appeal by Labour Appellate Tribunal.

Shamsher Khan, Representative for Appellant.

Syed Hamayun Akhtar for Respondents.

Date of hearing: 7th May, 2001.

2001 P L C 645

[Sindh Labour Appellate Tribunal]

Before Munawar Ali Khan, Chairman

Sufi MUHAMMAD SULEMAN

versus

Messrs TAJ COMPANY LIMITED and another

Appeal No. KAR‑328 of 1999, decided on 29th May, 2001.

Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑Ss. 25‑A & 38(3)‑‑‑Companies Ordinance (XLVII of 1984), Ss.292 & 316‑‑‑Grievance petition, maintainability of‑‑‑Affairs of respondent­---Company including its subsidiaries were taken over by High Court which in pursuance of 5.292 of Companies Ordinance, 1984 appointed Administrator of the Company to conduct its affairs under strict control and supervision of the Court‑‑‑Jurisdiction of Labour Court was barred unless the appellant/employee of respondent‑Company had himself obtained leave of the High Court for filing of grievance petition as provided under S.316 of Companies Ordinance, 1984‑‑‑Order of High Court whereby appellant's request for leave for filing the grievance petition was declined, having attained finality, Labour Court had no jurisdiction even to entertain said petition, muchless to decide the same‑‑‑Order of Labour Court whereby grievance petition was dismissed was unexceptionable.

Rafiullah for Appellant.

Muhammad Naazar Khan, Administrator for Respondents.

Date of hearing: 15th May, 2001.

2001 P L C 649

[Sindh Labour Appellate Tribunal]

Before Munawar Ali Khan, Chairman

MUHAMMAD JAVAID

versus

OPAL LABORATORIES (PVT.) LTD. through Director/Manager

Appeal NOXAR‑17 of 2000, decided on 21st May. 2001.

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)(e) & (4)‑‑‑T3ismissal from service‑‑‑Grievance petition‑‑‑Fresh inquiry‑‑‑Employee was dismissed from service after charge‑sheeting him and holding inquiry against him on charge of absence from duty on false excuses‑‑‑Employee was not given fair and proper opportunity to defend himself in enquiry proceedings‑‑‑Employee was not given patient hearing and his objections were overruled in the slip­shod manner and he was even not given proper chance to bring his defence in the cross‑examination of the witnesses‑‑‑Statement of the employee and of his defence witnesses, was not recorded by the Inquiry Officer and he was not allowed to bring co‑worker for his assistance‑‑‑Labour Court, in circumstances, had rightly set aside order of employee's dismissal from service‑‑‑Direction of Labour Court that the employer should hold fresh inquiry against the employee through some responsible and experienced person, was not justified as the employee was not at all at fault if the inquiry held against him turned out to be defective‑‑‑Benefit of lapses made by Inquiry Officer in conducting the inquiry, would have to be given to the employee and there was no justification to hold fresh inquiry against the employee‑‑-Decision of the Labour Court with regard to holding fresh inquiry was set aside and the employee was directed to be re‑instated in service with back benefits.

Shafiq Qureghr for Appellant Latif Saghar for Respondents:

Date of hearing: 14th May, 2001.

2001 P L C 653

[Sindh Labour Appellate Tribunal]

Before Munawar Ali Khan, Chairman

ALLIED BANK OF PAKISTAN LTD. through Attorney

versus

MUNIR AHMED

Appeal No.SUK‑38 of 1999, decided on 24th May, 2001.

Industrial Relations Ordinance (XXIH of 1969)‑‑‑

‑‑‑‑S.25‑A‑‑‑West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O. 15 (3)(e) & (4)‑‑­Termination of service‑‑‑Grievance petition‑‑‑Employee who was arrested in a murder case, furnished information of his arrest to employer and requested for leave as he was unable to perform his duties‑‑‑Employee had 205 days earned leave to his credit‑‑‑Employer instead of granting leave, terminated services of the employee without giving him show‑cause notice and without holding domestic inquiry against him‑‑‑Termination order was silent as to employee's request for period of 205 days as earned leave and thereafter for leave without pay‑‑‑Absence of the employee from duty was not wilful as due to his arrest he was not free to attend to his duties‑‑‑Absence of employee, in circumstances, could not be held to be his misconduct for the purpose of awarding punishment to him‑‑‑Even if it was considered as misconduct, he could not be punished by way of dismissal from service or by awarding him any other punishment without holding domestic inquiry against him‑‑‑Reasons given in the termination order were not sufficient for bringing an end to long service of more than 20 years of the employee‑‑‑Fate of the employee was hanging in balance at time of termination of his service as case against him was not finally decided and ‑his trial was in process‑‑‑Conviction of‑the employee alone would have provided the employer the sufficient reason for termination of his services‑‑‑Labour Court had rightly found that termination order was not in accordance with law.

1980 PLC 780 and 1991 PLC 508 ref.

Shahid Anwar Bajwa for Appellant:

M.L. Shahani for Respondent.'

Date of hearing: 10th May, 2001.

2001 P L C 657

[Sindh Labour Appellate Tribunal]

Before Munawar Ali Khan, Chairman

ABDUL QAYUM and 12 others'

versus

Messrs AQIF‑SILK FACTORY, KARACHI

Appeals Nos. KAR‑125 to KAR‑137 of 1999, decided on 17th May, 2001

Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑S.25‑A‑‑‑V"e s Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.1(4)(a) & S.Os. 2‑A, 12‑‑­ Termination of service‑‑‑Grievance petition, maintainability of‑‑‑Relationship of employee and employer‑‑‑Proof of existence‑‑‑Appellants who claimed to the employees of respondent had alleged that their services had been terminated without any written order and without show‑cause notice or enquiry‑‑‑Respondent denied the very existence of relationship of employer and employee between him and the appellants‑‑‑Respondent also denied that 20 or more workers had remained on his roll at any time during the preceding 12 months‑‑‑Burden to prove existence of relationship of employee and employer between the parties was on the appellants but they had failed to discharge the same either by oral or documentary evidence or by both‑‑­Appellants had largely relied upon their oral evidence contained in their affidavit‑in‑evidence, but said evidence could hardly be believed because in view of the complete denial of such relationship by the respondent said oral evidence would be treated as word against word‑‑‑Respondent by producing oral as well as documentary evidence had proved that only 7 persons were working in his factory which was registered under Shops and Establishments Ordinance, 1965‑‑‑Names of the appellants nowhere existed in employment and remuneration registers produced by the respondent‑‑‑None of the appellants was provided with appointment order in writing showing terms and conditions of their services‑‑‑Appointment, if any, of the appellants, was illegal, ab initio in absence of such basic document and they were not entitled to any legal rights‑‑‑Grievance petitions filed by the appellants were rightly dismissed by the Labour Court being not maintainable.

Rafiullah for Appellants. Mehboob Rizvi for Respondents.

Date of hearing: 8th May, 2001.

2001 P L C 1

[Lahore High Court]

Before Maulvi Anwarul Haq, J

MAZDOOR ITTEHAD UNION (REGISTERED) COLLECTIVE

BARGAINING AGENT, FAISALABAD through President of Union

versus

ADMINISTRATOR, MUNICIPAL CORPORATION, FAISALABAD and another

Writ Petition No. 13977 of 2000, heard on 28th August, 2000.

Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑Ss. 10 & 22‑‑‑Constitution of Pakistan (1973), Arts.l7 & 199‑‑­Constitutional petition‑‑‑Imposition of ban on Trade Union activities‑‑‑Scope and extent ‑‑Proceeding against trade union without adopting provisions of S.10, Industrial Relations Ordinance, 1969‑‑‑Legality‑‑‑Trade union was a registered union and was acting as Collective Bargaining Agent‑‑‑Authority imposed ban on the activities of the union on the allegation of involvement in "nefarious" activities‑‑‑Validity‑‑‑Completely banning the activities of the petitioner union was void as the same was in conflict with Art.17(1) of the Constitution‑‑‑Where no person was proceeded against in accordance with law for any alleged nefarious activity, order of banning the activities of trade union was without lawful authority and could not be sustained which was set aside in circumstances.

Civil Aviation Authority, Islamabad and others v. Union of Civil Aviation Employees and another PLD 1997 SC 781 ref.

Ijaz Anwar for Petitioner.

Tahir Munir for Respondents.

Date of hearing: 28th August; 2000.

2001 P L C 5

[Lahore High Court]

Before Syed Zahid Hussain, J

RAHWALI SUGAR MILLS through Administrator and 2 others

versus

PUNJAB LABOUR APPELLATE TRIBUNAL, LAHORE and 2 others

Writ Petition No‑5651 of 2000, heard on 18th September, 2000.

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

‑‑‑‑Ss.12 & 13‑‑‑Industrial Relations Ordinance (XXIII of 1969), S.25‑A‑‑­Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑­Grievance petition‑‑‑Termination from service‑‑‑Concurrent findings of facts by two forums below‑‑‑Principle of "last come, first go "‑‑‑Applicability‑‑­Service of employee was terminated without applying the principle of "last come, first go"‑‑‑Pick and choose at random was made and person junior to the employee had been retained‑‑‑Labour Court as well as the Labour Appellate Tribunal decided the matter in favour of the employee and re­instated him in service‑‑‑Concurrent findings of facts recorded by two Tribunals below were based on proper appreciation of evidence which had come on record‑‑‑Where there was no misreading or non‑reading of any material piece of evidence which could nullify the efficacy of the findings, High Court refused to interfere with such concurrent findings of the Tribunals below‑‑‑Constitutional petition was dismissed in circumstances.

WAPDA and others v. Khanimullah and others 2000 SCMR 879 distinguished.

Qayyum Nawaz and 9 others v. N.‑W.F.P. Small Industries Development Board, Peshawar through Managing Director, Kohat Road, Peshawar and 4 others 1999 SCMR 2331. ref.

(b) Constitution of Pakistan (1973)‑‑‑‑

‑‑‑‑Art.199‑‑‑Civil Procedure Code (V of 1908), 0.1; Rr. 1 & 3‑‑­Constitutional petition‑‑‑Necessary party' to proceedings‑‑‑Where a person was not party before the lower forum, .the same could not be impleaded as party in Constitutional petition.

Yousaf Ali v. Fazal Muhammad Malik and 3 others 1970 SCMR 681 ref.

Azam Nazir Tarar for Appellants. Malik Amjad Pervez for Respondents.

Date of hearing: 18th September, 2000

2001 P L C 124

[Lahore High Court]

Before Ch. Ijaz Ahmad, J

MUHAMMAD AKRAM

versus

UMER HAYAT and 2 others

Writ Petitions Nos. 2951 to 2954 of 1990, heard on 15th November, 2000.

(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‑‑‑Bank having been stopped to function by order of the State Bank, filed application before Labour Court for closing of Bank which application was rejected, but in appeal same was accepted by Labour Appellate Tribunal and the Bank terminated services of employees‑‑­Finding of Tribunal that services of employees were terminated by Bank and closed their business without permission of Labour Court by virtue of S. O 11‑A of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 was not in accordance with law.

Union Bank of Middle East v. Rehana Naheed and another 1987 PLC 703; Muhammad Javed Khan's case 1981 SCMR 542 and South British Insurance Employees' Union's case 1975 SCMR 49 ref.

(b) Administration of justice‑‑‑

‑‑‑Judge must wear all the laws of the country on the sleeve of his robe‑‑­Failure of the counsel to properly assist Judge was not a complete excuse.

Muhammad Sarwar's case 1969 SC 278 ref.

(c) Limitation‑‑‑

‑‑‑‑ Delay, condonation of‑‑‑Party approaching Court of competent jurisdiction for redressal of his grievance beyond prescribed period of limitation was bound to explain each day's delay to the satisfaction of the forum concerned because a valuable right would accrue to the other side.

Muhammad Salim's case PLD 1995 SC 396=1995 SCMR 546; Rehmatullah's case 1968 SCMR 975 and Ghulam Sarwar's case 1989 SCMR 864 ref.

(d) Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑S. 25‑A‑‑‑Grievance petition‑‑‑Procedure and period for agitating grievance where right guaranteed to employee had been violated, was specified and regulated by S.25‑A of Industrial Relations Ordinance, 1969‑‑­Obligatory on aggrieved person to satisfy the forum of competent jurisdiction that his claim did not suffer from any legal defect‑‑‑Employee had to first bring his grievance to the notice of his employer in writing within three months from cause of grievance.

National and Grandlays Bank Ltd.'s case PLD 1979 Kar. 692; Pakistan Barma Shell Oil's case PLD 1976 Kar. 200; Salim Sons Ltd.'s case PLD 1973 Kar. 1; Nasim Malik Mill's case PLD 1974 Kar. 80; Karachi Development Authority's case PLD 1974 Kar. 716; Pakistan National Centre's case PLD 1976 Lah. 1085 and District Council Sargodha's case 1980 PLC 426 ref.

(e) Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑S. 25‑A‑‑‑Grievance petition‑‑‑Employees even if they had received benefits from employer, would not be estopped to file grievance petition before Labour Court.

General Manager, National Radio Telecommunication's case NLR 1993 Labour 217 (sic) ref.

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

‑‑‑‑S.O. 13‑‑‑Retrenchment‑‑‑Contention that employers were well within their right to terminate services of 50% of staff of their own choice was repelled.

Islamabad Club's case PLD 1981 SC 81 ref.

Javed Altaf for Petitioner.

Nemo for Respondents.

Date of hearing: 15th November, 2000,

2001 P L C 131

[Lahore High Court]

Before Amir Alam Khan, J

MCB STAFF UNION OF PAKISTAN through President and General Secretary

versus

SENIOR MEMBER, NIRC, LAHORE and 2 others

Writ Petition No. 11840 of 2000, heard on 19th October, 2000.

(a) Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑S.8(4) & (5)‑‑‑Change in the executive body of the trade union‑‑‑Refusal by Registrar to register such change‑‑Validity‑‑‑Where such change is in contravention of any, of the provisions of industrial Relations Ordinance, 1969, the Registrar of Trade Unions may refuse to register such change.

(b) Constitution of Pakistan (1973)‑‑‑

‑‑‑Art. 199‑‑‑Constitutional jurisdiction of High Court‑‑‑Scope‑‑‑Where something was unjust and unlawful, High Court would refuse to perpetuate injustice or illegality‑‑‑High Court always loathed to issue writs in aid of injustice.

Nawab Syed Raunaq Ali and others v. Chief Settlement Commissioner and others PLD 19 1 3 SC 236 and Messrs Airport Support Services v. The Airport Manager, Quaid‑e‑Azam International Airport, Karachi and others 1998 SCMR 2268 ref. .

(c) Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑S. 8‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Writ of mandamus, issuance of‑‑ ‑Petitioner, a trade union failed to hold elections and was continuing with their tenure in violation of the terms of the constitution of the union itself‑‑‑Registrar of Trade Unions refused to issue sanction/approval of the newly‑elected executive body of the trade union‑‑‑Trade union sought direction to the Registrar in the nature of mandamus‑‑‑Validity‑‑‑Where the trade union had failed to hold elections and was continuing their tenure in violation of the terms of their own constitution; such trade union was not entitled to any discretionary relief‑‑­High Court refused to exercise discretion in favour of the trade union‑‑­Every day of the contravention of such trade union that had elapsed beyond the prescribed period of two years was without lawful authority and usurpation by the union‑‑‑High Court directed the Registrar of Trade Unions to hold fair and impartial elections ‑of the union so that a representative body of the union might be installed.

Pervez 1. Mir for Petitioner.

Kh. Saeed‑uz‑Zafar, A.A.‑G. for Respondents Nos. 1 and 2.

Nemo for Respondent No.3.

Ahmad Kamal Khan for the Intervenor.

Date of hearing: 19th October, 2000.

2001 P L C 176

[Lahore High Court]

Before Iftikhar Ahmad Cheema, J

RIAZ AHMAD MALIK

versus

ADMINISTRATOR, MUNICIPAL CORPORATION, BAHAWALPUR and others

Writ Petition No. 136 of 1998/BWP, decided on 9th February, 2000.

Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑‑Ss.22‑A(8)(g) & 22‑D‑‑‑Constitution of Pakistan (1973), Art. 199‑‑­Constitutional petition‑‑‑Maintainability‑‑‑Termination of service ‑‑‑Reinstatement‑‑‑Claim of back benefits‑‑‑Services of 'petitioner were terminated on ground that his appointment was not made in accordance with rules‑‑‑National Industrial Relations Commission accepting appeal of petitioner, reinstated him, but without back benefits‑‑‑Petitioner claimed back benefits by moving Constitutional petition‑‑‑Alternate and efficacious remedy of appeal under S.22‑D of Industrial Relations Ordinance, 1969 was available to petitioner, but without availing same he had filed Constitutional petition against his grievance‑‑‑Suit for recovery of back benefits was also an efficacious remedy available to petitioner which he did not avail‑‑‑Factual controversy whether petitioner remained unemployed/jobless from date of his termination till date of his reinstatement, demanded deep probe and recording of evidence which could not be undertaken in Constitutional petition before High Court‑‑‑Where alternate and efficacious remedy was available, Constitutional jurisdiction of High Court would be barred.

1990 SC4R 999; 1995 PLC 706; 1994 MLD 1241; PLD 1994 Kar. 89 and 1994 CLC 183 ref.

Petitioner in person.

Muhammad Ozair Chughtai for Respondent No. 1.

2001 P L C 279

[Lahore High Court]

Before Ch. Ijaz Ahmad, J

Mirza SARDAR BAIG

versus

PUNJAB LABOUR APPELLATE TRIBUNAL and 2 others

Writ Petition No.2127 of 1989, heard on 17th November, 2000.

(a) Act of Court‑--

‑‑‑‑ No body should be penalized by the act of Court.

Muhammad Mansha and another's case 1999 SCMR 1782 and Mian Irs a Ali's case PLD 1975 Lah. 7 ref.

(b) Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑Ss. 25‑A, 37(3) & 51‑‑‑Constitution of Pakistan (1973), Art. 1.99‑‑­Constitutional petition‑‑‑Back benefits, reduction of‑‑‑Labour Appellate Tribunal exercising its discretion and keeping in view principles of equity, justice and fairplay, reduced back benefits of petitioner after applying its independent mind and giving reasons for the same‑‑‑Validity‑‑‑Labour Appellate Tribunal having discretion either to grant or refuse back benefits, High Court had no jurisdiction to substitute its own decision in place of decision of the Tribunal in exercise of its Constitutional Qadeer Ahmed's case PLD 1990 SC 787; 1999 SCMR 1573; Muhammad Bashir's case 1991 SCMR 2087; Anwar Ali Shah's case 1992 PLC 1256; Khalf Shah's case 1988 PLC 877; Habib‑ur‑Rehman's case 1983 PLC 1279; Muhammad Jufri's case 1986 PLC 1166; Mussadaq's case PLD 1973 Lah. 600 and PLD 1964 SC 236 ref.

Mehdi Khan Chohan for Appellant.

Atta‑ur‑Rehman for Respondent.

Date of hearing: 17th November, 2000.

2001 P L C 304

[Lahore High Court]

Before Ch. Ijaz Ahmad, J

WATER AND POWER DEVELOPMENT AUTHORITY and 2 others

versus

THE PUNJAB LABOUR APPELLATE TRIBUNAL, LAHORE and another

Writ Petition No.3769 of 1988, heard on 20th November, 2000.

Constitution of Pakistan (1973)‑‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction of High Court‑‑‑Scope‑‑‑High Court had ample jurisdiction under Art. 199 of the Constitution to take the judicial notice of orders or judgments passed by the Courts below and it had also ample powers to take into consideration subsequent events.

Waseem Ahmed v. WAPDA 1997 SCMR 2000; Writ Petition No. 14777 of 1997 (unreported) Ikram Ullah Khan's case 1983 PLC 812; Bashir Ahmed's case 1983 PLC 1265; Muhammad Azhar's case PLD 1990 Lah. 352; Tahir Mehmood’s case 1993 PLC (C.S.) 576; M.R. Khalid's case 1994 PLC (C.S.) 138; Muhammad Ihsan‑ul‑Haq's case 1997 PLC (C.S.) 127; I.A. Sherwani's case 1991 SCMR 1041; Muhammad Ashraf Naseem's case 1985 PLC (C.S.) 390; WAPDA v. Muhammad Ashraf's case 1997 SCMR 1128; Pir Sabir Shah's case PLD 1994 SC 738; Pir Sabir Shah v. Shah Muhammad Khan PLD 1995 SC 66; Abdul Majeed's case 1984 SCMR 1302 and Nasir Jamal's case 1990 CLC 1069 ref.

Sultan Mehmood Malik for Appellants.

Mian Mehmood Hussain for Respondents.

Date of hearing: 20th November, 2000.

2001 P L C 333

[Lahore High Court]

Before Syed Zahid Hussain, J

MUHAMMAD AFTAB

versus

PUNJAB LABOUR APPELLATE TRIBUNAL LAHORE and 2 others

Writ Petition No. 3472 of 1990, heard on 19th December, 2000.

Industrial Relations. Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑Ss. 2 (xxviii), 25‑A & 38‑‑‑West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968) S.O. ' 15(3)‑‑­Constitution of Pakistan (1973), Art: 199‑‑‑Constitutional petition‑‑­Dismissal from service‑‑‑Grievance petition, maintainability of‑‑‑Workman, determination of‑‑‑Grievance petition filed by petitioner against order of his dismissal from service on allegation of misconduct, was accepted by Labour Court, but was dismissed by Labour Appellate Tribunal holding that petitioner was not a "workman" and that forum for petitioner to challenge order of dismissal was riot the Labour Court‑‑‑Petitioner was proceeded against under S.O. 15(3) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 which was applicable to "workman" ‑‑‑Factory Manager had also certified petitioner as workman in allotment order of residential plot in a scheme in which only the workmen were eligible‑‑‑Labour Court, in circumstances, had rightly found the petitioner as "workman" ‑Labour Court as well as Labour Appellate Tribunal had concurrently found that allegations of misconduct, against petitioner had not been proved‑‑‑Labour Court, in circumstances, had rightly ordered reinstatement of petitioner and judgment of Labour Appellate Tribunal whereby grievance petition of petitioner was dismissed for want of jurisdiction, ' was declared illegal by the High Court.

Emirates Bank International and another v. Rana Zahid Iqbal and 2 others 1999 PLC 302; The President, Habib Bank Limited, Karachi and 3 others v. Syed Shafqat Hussain Shakir 1998 PLC 390; Messrs Allied Bank of Pakistan, Karachi and 3 others v. Abdul Karim 1993 PLC 412; Zia Ahmad Makhdoom v. Pak Suzuki Motor Company Ltd. 1991 PLC 145; Muhammad Fazil v. The General Manager, Faisalabad Serena Hotel, Faislabad and 2 others 1999 PLC 307; Government of ,Pakistan and another v. Furqan Ahmad Qureshi 1988 SCMR.623 and Mustehkum Cement Limited through Managing Director v. Abdul Rashid and others 1998 SCMR 644 ref.

S.M. Zaman for Petitioner.

Muhammad Zaman Qureshi for Respondents.

Date of hearing: 19th December, 2000.

2001 PLC341

[Lahore High Court]

Before Syed Zahid Hussain, J

ABDULJABBAR

versus

PUNJAB LABOUR APPELLATE TRIBUNAL, LAHORE and 4 others

Writ Petition No.6206 of,1989; decided on 15th December, 2000.

(a) limitation-----------

‑‑‑‑Delay, condonation of‑‑‑When the concerned forum had condoned the delay, it was not to be interfered with by the higher forum unless the exercise of such, a discretion by the lower forum was found to be illegal and arbitrary.

Iftikhar Ahmed and others v. President, National Bank of Pakistan and others PLD 1988 SC 53; Naeem Ahmad Chaudhry v. Chairman, Punjab Labour Appellate Tribunal, Lahore and 4 others 1995 SCMR 1655; Muslim Commercial Bank Ltd. v. Mahmood Ahmad Butt and others 1997 PLC 550; Qadeer Ahmad v. Punjab Labour Appellate Tribunal, Lahore and another PLD 1990 SC 787: Muhammad Bashir and others v. Chairman, Punjab Labour Appellate Tribunal, Lahore and others 1991 SCMR 2087; General Manager, National Radio Telecommunication Corporation, Haripur District Abbottabad v. Muhammad Aslam and 2 others 1992 SCMR 2169; Muhammad Bashir v. Auditor‑General, Pakistan 1992 PLC (C.S.) 133; Allied Bank of Pakistan Limited v. Ejaz Ahmad Abbasi and another 1990 SCMR 1713; Talib Hussain v. Anar Gul Khan and 4 others 1993 SCMR 2177; Mir Nawaz Khan v. Federal Government through Secretary, Ministry of Finance, Islamabad and 2 others 1996 SCMR 315; Irtiqa Rasool Hashmi v. Water and Power Development Authority and another 1980 SCMR 722 and Water and Power‑ Development Authority v. Zahoor Ahmad 1994 SCMR 960 ref.

(b) Industrial dispute----

‑‑‑‑Departmental proceedings‑‑‑Criminal prosecution against employee and departmental proceedings against him could be taken side by side independent of each other.

Muhammad Bashir v. Auditor‑General, Pakistan 1992 PLC (C.S.) 133; Talib Hussain v. Anar Gul Khan and 4 others 1993 SCMR 2177 and Mir Nawaz Khan v. Federal Government through Secretary, Ministry of Finance, Islamabad and 2 others 1996 SCMR 315 ref.

(c) Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑S. 51‑‑‑Back benefits‑‑‑Entitlement‑‑‑Where order of reinstatement of employee was conditional to the effect that an enquiry could be made against him into his conduct, then employee would have to wait till final determination with regard in his conduct for entitlement to back benefits‑‑‑If employee was found at fault, Competent Authority could deny him part of the back benefits‑‑‑Mere setting aside of the order of dismissal irrespective of whether it was set aside con4itionally or unconditionally, would not entitle employee to claim arrears of pay and back benefits‑‑‑Continuance of the enquiry on the same charges would also disentitle employee to back benefits till the conclusion of the enquiry.

Muhammad Bashir and others v. Chairman, Punjab Labour Appellate Tribunal, Lahore and others 1991 SCMR 2087 and General Manager, National Radio Telecommunication Corporation, Haripur, District Abbottabad v. Muhammad Aslam and others 1992 SCMR 2169 ref.

(d) Industrial dispute‑‑‑

‑‑‑‑ Departmental proceedings‑‑‑If employer was anxious to proceed against the employee according to law, it would be open to employer to take action against employee by giving him a reasonable opportunity of defending himself.

S.M. Tayyab for Petitioner.

Mushtaq Ahmad Khan for Respondents.

Date of hearing: 11th December, 2000.

2001 P L C 350

[Lahore High Court]

Before Ch. Ijaz Ahmad, J

WALLYIAT ALI

versus

THE PUNJAB LABOUR APPELLATE TRIBUNAL, LAHORE and 2 others

Writ Petition No. 7971 of 1989 and Civil Miscellaneous No. l of 2000, heard on 8th December, 2000.

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‑‑‑ Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑ Grievance petition, dismissal of‑‑‑Failure to decide the matter without discussing evidence on record‑‑‑Petitioner was terminated on the charge of misappropriation‑‑‑Grievance petition was dismissed by Labour Court and appeal against the same was also dismissed by Labour Appellate Tribunal‑‑­Validity‑‑‑Appellate Tribunal had decided the matter without adverting to S.O.12(3) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, and did not discuss the evidence on record‑‑‑Appellate Tribunal having failed to decide the controversy between the parties without reasons which was its duty and obligation and had also not properly appreciated the evidence on record, judgment of the Labour Appellate Tribunal was not sustainable in law‑‑‑Case was remanded to the Tribunal for decision afresh.

Mollah Ejahar Ali's case PLD 1970 SC 173 fol.

Agricultural Engineer and others v. Abdul Razzak and others 1992 PLC 918; Guftar Shah's case 1974 PLC 205; Dost Muhammad Cotton Mills Ltd.'s case PLD 1975 Kar. 312; Abdul Shakoor's case 1990 PLC 706; Hadait Ali and 11 others' case 1988 PLC 582; Muhammad Rafiq's case 1984 PLC 1169; Messrs Allied Bank of Pakistan Ltd.'s case 1992 PLC 462; . Alamgir's case 1993 SCMR 603; Muhammad Siddique's case PLD 1974 SC 393 and Ghulam Mohy‑ud‑Din's case PLD 1964 SC 829 ref.

Ch. Shabbir Ahmed for Appellant.

Nemo for Respondents.

Date of hearing: 8th December, 2000.

2001 P L C 357

[Lahore High Court]

Before Sayed Zahid Hussain, J

PAKISTAN RAILWAYS through the Chief Personnel Officer

versus

PUNJAB LABOUR APPELLATE TRIBUNAL through

Deputy Registrar Lahore and 19 others

Writ Petition No.8655 of 1990, heard on 24th November, 2000.

(a) Judgment‑‑

‑‑‑‑ Only parties to a judgment are bound by it unless the same is in rem.

Pir Bakhsh and others v.. The Chairman, Allotment Committee and others PLD 1987 SC 145 ref.

(b) Industrial Relations Ordinance (XXIII of 1969)‑‑‑‑

‑‑‑‑S.25‑A‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑ Judgment in rem or judgment in personam‑‑‑Appeal against one of the grievance petitions was decided by the Labour Appellate Tribunal in favour of the employer and on the basis of that order the employer filed appeals against other grievance petitions but the same were dismissed as being time‑barred‑‑‑Contention of the employer was .that the judgment of Labour Appellate Tribunal was judgment in rem and the subsequent appeals should have been decided on the basis of the same‑‑‑Validity‑‑‑Case being that of individual grievances of each of the employees with regard to benefit extended and availed by them, determination of the same by the Labour Court was in the nature of judgment in personam‑‑‑Where the other judgments were not challenged within limitation, the ,judgments had attained finality.

Pir Bakhsh and others v. The Chairman, Allotment Committee and others PLD 1987 SC 145; Abdul Qadir and others v. Chairman, Allotment Committee and others 1987 SCMR 2104 and Muhammad Sohail and 2 others v. Government of N.‑W.F.P. and others 1996 SCMR 218 ref.

(c) Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑S. 25‑A‑‑‑Grievance petition‑‑‑Maintainability‑‑‑ Retired worker/workman‑‑‑ Jurisdiction of Labour Court‑‑‑Retired employee did not cease to be a "workman" and could maintain a petition before Labour Court.

Basharat Ali v. Punjab Labour Appellate Tribunal, Lahore and others 1989 SCMR 687 rel.

Jehangir A. Jhojha for Petitioner.

Ghulam Muhammad Sajrah for Respondents Nos.4 to 20.

Date of. hearing: 24th November, 2000.

2001 P L C 372

[Lahore High Court]

Before Syed Zahid Hussain, J

THE SUPERINTENDING ENGINEER, P.W.D.

BUILDING CIRCLE, FAISALABAD and 2 others

versus

LAL DIN and 21 others

Writ Petition No.923 of 1988, heard on 20th November, 2000.

(a) Payment of Wages Act (IV of 1936)‑‑‑‑

‑‑‑‑Ss.15 & 17‑‑‑Appeal against order of Authority‑‑‑Limitation‑‑‑Delay, condonation of‑‑‑Appeal against order of Authority filed after more than eight months from passing of said order was dismissed by Labour Court as barred by time after due application of mind to the explanation adduced by appellant in application for condonation of delay‑‑‑Appellant could not explain each day's delay in filing the appeal‑‑‑In absence of sufficient reasons for condonation of delay, Labour Court was justified in not condoning the delay‑‑‑Order dismissing appeal as time‑barred being neither arbitrary, nor invalid, nor suffering from any illegality or jurisdictional error, could not be interfered with.

(b) Limitation Act (IX of 1908)‑‑‑

‑‑‑‑S. 5‑‑‑In adjudication of matter before the Courts‑ and with particular reference to S.5 of Limitation Act, 1908, Government was not entitled to any preference and was to be treated like an ordinary litigant before the Court.

Province of Punjab v. Sh. Zafar Din Ahmad PLD 1977 Lah. 55; East Pakistan v. Abdul Hamid Darji and others 1970 SCMR 558 and Central Board of Revenue, Islamabad through Collector of Customs, Sialkot Dry Port, Samberial, District Sialkot and .others v. Messrs Raja Industries (Pvt.) Ltd. through General Manager and 3 others 1998 SCMR 307 ref.

(c) Administration of justice‑‑‑

'‑‑‑‑Government was not entitled to any preference and was to be treated like an ordinary litigant before the Court.

Province of Punjab v. Sh. Zafar Din Ahmad PLD 1977 Lah. 55; East Pakistan v. Abdul Hamid Darji and others 1970 SCMR 558 and Central Board of Revenue, Islamabad through Collector of Customs, Sialkot Dry Port, Samberial, District Sialkot and others v. Messrs Raja Industries (Pvt.) Ltd. through General Manager and 3 others 1998 SCMR 307 ref.

(d) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Petitioners having failed to avail remedy available to them under the law, Constitutional petition was not maintainable.

Mirza Maqbool Elahi through Legal Heirs and 8 others v. Capital Development Authority, Islamabad and 3 others 1998 SCMR 1074 ref.

Fauzi Zafar, A.A.G. for Petitioners.

Sadiq Ali Hashmi, Special Attorney for Respondents.

Date of hearing: 20th November, 2000.

2001 P L C 457

[Lahore High Court]

Before Muhammad Akhtar Shabbir, J

ABDUL AZIZ EX‑STENOGRAPHER, PUNJAB ROAD TRANSPORT

CORPORATION, BAHAWALPUR

versus

CHAIRMAN, PUNJAB LABOUR APPELLATE TRIBUNAL, LAHORE and 5 others

Writ Petition No. 127 of 2000, decided on 5th December, 2000.

Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑Ss. 25‑A, 37(3) & 55‑‑‑Constitution of Pakistan (1973), Art.199—­Constitutional petition‑‑‑Implementation of order of Labour Court‑‑‑Order of Labour Court whereby ad hoc appointment of petitioner was regularised, was set aside by Labour Appellate Tribunal in appeal‑‑‑High Court set aside judgment of Appellate Tribunal and upheld the judgment of Labour Court‑‑­Contention of petitioner was that his grievance had not been redressed according to judgment of the Labour Court and upheld by High Court‑‑­Petitioner had filed criminal proceedings against non‑implementation of judgment of the Court‑‑‑During pendency of said proceedings counsel for petitioner had stated that grievance of petitioner had been redressed by the respondent‑Department‑‑‑Statement of counsel being ,binding on the petitioner he could not get rid of the same‑‑‑Constitutional petition filed by petitioner was not maintainable in circumstances.

Jamshaid Akhtar Khokhar for Petitioner.

Shamshir Iqbal Chaughtai for Respondents.

Date of hearing: 5th December, 2000.

2001 P L C 462

[Lahore High Court]

Before Muhammad Zafar Yasin, J

NAZIR HUSSAIN

versus

THE PRESIDING OFFICER, PUNJAB LABOUR COURT No.8, BAHAWALPUR and another

Writ Petition No.3410 of 1998/BWP, decided on 9th February, 2000.

Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑S.38‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition, maintainability of‑‑‑Petitioner having an alternate remedy of appeal before Punjab Labour Appellate Tribunal under S.38 of Industrial Relations Ordinance, 1969, his Constitutional petition was not maintainable being premature.

Ghulam Abbas and 23 others v. Karachi Electric Supply Corporation and 2 others 1998 SCMR 483; ICI Pakistan Limited, Lahore v. Punjab Labour Court No.3, Ferozewala, Sheikhupura and another 1999 PLC 13. and United Bank Limited through President, U.B.L. Head Office Chundrigar Road, Karachi v. Shamim Ahmad Khan and 42 others PLD 1999 SC 990 = 1999 PLC (C.S.) 1032 ref.

Ahmad Mansoor Chishti for Petitioner.

Basit Babar Chughtai for Respondents Nos.2 to 4.

2001 P L C 523

[Lahore High Court]

Before Karamat Nazir Bhandari, J

SARDAR ALI RIZVI

versus

DIVISIONAL SUPERINTENDENT, RAILWAYS and others

Writ Petitions Nos.1639 of 1982 and 975 of 1983, decided on 20th October, 2001.

(a) Payment of Wages Act (IV of 1936)‑‑‑

‑‑‑‑Ss.15 & 17‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Authority rejected claim of petitioner holding that petition was not competent‑‑‑Appellate Court set aside order of the Authority and remanded the case‑‑‑Order of Appellate Court remanding the case having never been challenged, same had attained finality‑‑‑Such order of Appellate Court thus, could not be questioned in Constitutional jurisdiction of High Court and same could only be challenged either by way of revision before Labour Appellate Tribunal or through Constitutional petition before participating in the remand proceedings which was not done.

(b) Payment of Wages Act (IV of 1936)‑‑

‑‑‑‑Ss.15 & 17‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Concurrent finding of fact‑‑‑Concurrent conclusion of fact arrived at by the Authority and the Appellate Court below would be deemed to be correct when the respondent at no stage had led any evidence to disprove assertion made By the petitioner.

(c) Payment of Wages Act (IV of 1936)‑‑‑

‑‑‑‑Ss.15 & 17‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑High Court in exercise of its Constitutional jurisdiction would not interfere with order passed by Appellate Court on ground that different conclusion could have been drawn by the High Court in its Constitutional jurisdiction.

(d) Payment of Wages Act (IV of 1936)‑‑‑‑

‑‑‑Ss.15 & 17‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutfonal petition‑‑‑Payment of wages‑‑‑Recovery of amount already paid to the employee‑‑‑Validity‑‑‑Petitioner/employee who was retired from service twenty years ago had already received the amount awarded to him under orders of the Authorities and it would not be just to take away. the small monetary benefit from a petty employee after twenty years‑‑‑Even if orders of Authorities below were illegal, same could not be interfered with in Constitutional jurisdiction of High Court.

(e) Payment of Wages Act (IV of 1936)‑‑‑

‑‑‑‑Ss.15 & 17‑‑‑Constitution .of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Fixation of pay‑‑‑Jurisdiction of Service Tribunal‑‑‑Petitioner who was a Railway employee had challenged matter of fixation of his pay before Authorities under Payment of Wages Act‑‑‑Validity‑‑‑Railway employees having become civil servant after insertion of S.2‑A in Service Tribunals Act, 1973, petitioner/employee could only agitate the question of fixation of pay and consequential benefits in the pension before Service Tribunal‑‑‑If the petitioner would file appeal before Service Tribunal the question of exclusion of time under S.14 of Limitation Act, 1908, would have to be considered by the Tribunal.

Abdul Khalid Chaudhry for Petitioner.

Tariq Shamin for the Pakistan Railways.

Dates of hearing: 19th and 20th October, 2000.

2001 P L C 527

[Lahore High Court]

Before Raja Muhammad Sabir, J

WAPDA

versus

COMMISSIONER FOR WORKMEN'S COMPENSATION AND AUTHORITY UNDER THE PAYMENT OF WAGES ACT and others

Writ petition No.2108 of 1997 decided on 15th May, 2000.

(a) Service Tribunals Act (LXX of 1973)‑‑‑

---S.4---Jurisdiction of Service Tribunal ---Jurisdiction of all courts was barred where appeal in respect of terms and conditions of service of civil servant lay to Service Tribunal –Orders of dismissal removal. Termination reduction in rank suspension transfer payment or non-payment of emolument sere all related to terms and conditions of civil servant and said orders could be challenged only before ‘Service Tribunal.

WAPDA v. Muhammad Naeem 1997 SCMR 1128 and WAPDA v. Muhammad Zubair and others 1997 PLC (C.S.) 189 ref.

(b) Service Tribunals Act (LXX of 1973)‑‑‑

‑‑‑‑S.4‑‑‑West Pakistan Water and Power Development Authority Act (XXXI of 1958), Ss. 17(1‑A), 17(1‑B) & 17 (1‑C)‑‑‑Constitution of Pakistan (1973), Arts. 199 & 212‑‑‑Constitutional petition‑‑‑Jurisdiction of Service Tribunal‑‑­Employee who was serving as Assistant Lineman under the Authority filed application under S.15(2) of Payment of Wages Act, 1936 before the Authority under the Payment of Wages Act,. 1936 which was accepted‑‑­ Validity‑‑‑Service under Water and Power Development Authority having been declared to be service of Pakistan, employees of WAPDA would be deemed to be civil servants‑‑ ‑Jurisdiction of Labour Courts in matters pertaining to terms and conditions of service of said employees would be barred and Service Tribunal would deal with grievances of employees and not the Labour Court‑‑‑Employee having status of civil servant, Authority under Payment of Wages Act, 1936 had no jurisdiction to adjudicate upon application filed by him under Workmen's Compensation Act, 1923 and only Service Tribunal could deal with the grievance of the respondent.

(c) Service Tribunals Act (LXX of 1973)‑‑‑

‑‑‑‑S. 4‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑‑Constitutional petition‑‑‑Appeal before Service Tribunal‑‑‑Right of appeal though was available against impugned order, but said order was without jurisdiction and nullity in the eyes of law‑‑‑When the order was wholly without jurisdiction, the availability of other remedy would not disentitle an aggrieved party to invoke Constitutional jurisdiction of High Court‑‑‑Where Constitutional petition did not involve any investigation into disputed facts and same were capable of decision on basis of admitted facts, High Court would not invariably decline to exercise its jurisdiction on the ground that an alternate remedy byway of appeal was available to petitioner‑‑‑Mere availability of an alternate remedy could not debar High Court from exercising Constitutional jurisdiction‑‑‑In case of total lack or absence. of jurisdiction of Authority or apparent excess of jurisdiction, High Court, in general, would not hesitate much in entertaining Constitutional petition though an alternative remedy might well be available.

Waseem Ahmad Khan v. WAPDA and 3 others 1997 SCIVIR 2000; WAPDA v. Muhammad Arshad Qureshi 1986 SCMR 18; Muhammad Akram Khan v: Payment of Wages Act Authority/Compensation Commissioner, Faisalabad and another NLR 1982 Labour 129 and Hydri Ship Breaking Industries td. v. Sindh Government and others NLR 1982 Tax 65 ref:

S.M. Masud for Petitioner.

Ch. Muhammad Bashir for Respondent No.2.

Date of hearing: 15th May, 2000.

2001 P L C 603

[Lahore High Court]

Before Mrs. Fakhar‑un‑Nisa Khokhar; J

MANAGING DIRECTOR, WASA, MULTAN

versus

PUNJAB LABOUR APPELLATE TRIBUNAL and others

Writ Petitions Nos. 1765 to 1774 of 2001 and 119'70 of 2000, heard on 18th April, 2001.

(a) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Concurrent findings of facts by the Courts below‑‑‑Effect‑‑‑Where Courts of competent jurisdiction had given verdict in favour of respondents, such finding could not be disturbed in Constitutional petition without production of material substance available with the petitioners in support of their plea.

(b) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Industrial dispute ‑‑‑Laches‑‑‑Past and closed transaction‑‑‑Dispute was with regard to regularization of service of employees which was regularized on the basis of order passed by Labour Court in the year 1994‑‑‑Contention of the petitioners was that the respondents were employed on work‑charge basis‑‑‑Validity‑‑‑Where order, dated 31‑1‑1994 was assailed in the year 2001, the petition suffered from laches and the order had become past and closed transaction‑‑‑When the Court of competent jurisdiction had given verdict in favour of respondents, they could not be deprived from their rights‑‑‑High Court declined to interfere with the findings of the Courts below.

2000 SCMR 879; Muhammad Aslam v. Punjab Labour Appellate Tribunal and others 1997 PLC 6; 1998 SCMR 1462; 1999 SCMR 2331 and PLD 1987 SC 145 ref.

Mehr Muhammad Naeem Arshad for Petitioner.

Syed Asif Raza Gillani for Respondents.

Date of hearing: 18th April, 2001.

2001 P L C 611

[Lahore High Court]

Before Ch. Ijaz Ahmad, J

PAKISTAN RAILWAY DIVISIONAL SUPERINTENDENT

versus

M. SARWAR

Writ Petition No‑4168 of 1990, decided on 15th November, 2000.

Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑Ss.25‑A & 38(3)‑‑‑West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O. 15(3)(e)‑‑‑General Clauses Act (X of 1897), S.24‑A‑‑‑Constitution of Pakistan (1973), Art. 199‑‑­Constitutional petition‑‑‑Removal from service‑‑‑Employee was removed from service on ground of remaining absent for two and half years‑‑­Departmental Appellate Authority dismissed the departmental appeal against removal by non‑speaking order without applying independent mind‑‑‑Labour Appellate Tribunal set aside order of Labour Court without adverting to reasoning of Labour Court and judgment of Labour Appellate Tribunal also suffered from misreading and non‑reading of record‑‑‑Under S.24‑A, General Clauses Act, 1897, it was the duty and obligation of public functionaries to redress the grievance of citizen with reasons‑‑‑Order passed by the Labour Appellate Tribunal suffering from misreading and non‑reading of record was set aside by High Court in exercise of its Constitutional jurisdiction and case was remanded to be decided afresh in accordance with law after hearing the parties.

Younis Gill v. Mis. A.D. Marker (Pvt.) Ltd., Karachi 1993 PLC 184; Abdul Qadeer v. Pak Railway, Karachi 1993 PLC 882; Ghulam Mohy­ud‑Din's case PLD 1964 SC 829 and Messrs Airport Supports Company's case 1998 SCMR 2268 ref.

Tariq Shamim, Legal Advisor, Pakistan Railways for Petitioner Taj M. Agha for Respondent.

Date of hearing: 15th November, 2000

2001 PLC614

[Lahore High Court]

Before Ch. Ijaz Ahmad, J

ALLIED BANK OF PAKISTAN LIMITED

versus

MUHAMMAD ABDULLAH CHAUDHRY and others

Writ Petition No. 12017 of 1997, decided on 3rd April, 2000.

Industrial Relations Ordinance (XXIH of 1969)‑‑‑

‑‑‑‑S. 37(3)‑‑‑Constitution of Pakistan (1973), Arts.2A &199‑‑‑Constitutional petition‑‑‑Effective order having been passed against the petitioner by the Labour Court, Labour Appellate Tribunal was required to decide appeal on merits instead of dismissing the same as time‑barred because under Art.2A, Constitution of Pakistan (1973), the case must be decided on merits instead of resorting to technicalities in the procedural law‑‑‑Effective order having been passed by the Labour Court against the petitioner he was well within his right to file appeal before the Tribunal‑‑­-High Court, in exercise of its Constitutional jurisdiction, remanded case to the Tribunal to decide the same afresh on merits.

Fazal Karim and another v. Ghulam Jillani and another 1975 SCMR 452; Akram Raz and another v. Sher Jamal 1980 SCMR 375; Muhammad Ramzan Bakhsh v. Ahmed 1991 SCMR 716; PLD 1962 Kar. 344; PLD 1957 Kar. 843; PLD 1987 Kar. 575; 1996 CLC 1184; PLD 1989 Lah. 64; PLD 1993 Lah. 141; 1998 PLC 1; 1996 PLC 702; 1998 SCMR 172; H.M. Saya & Co., Karachi v. Wazir Ali Industries PLD 1969 SC 65; 1997 SCMR 860; Sher Muhammad's case PLD 1989 SC 532; Khuda bar's case PLD 1975 SC 678; Mst. Sardaran's case 1993 SCMR 363 and Messrs Adam G Construction Companies' case 1999 MLD 2202 ref.

Shahid Anwar Bajwa for Petitioner.

Khan Muhammad Bajwa for Respondents.

Date of hearing: 3rd April, 2000.

2001 P L C 618

[Lahore High Court]

Before Malik Muhammad Qayyum, J

CHAIRMAN, PAKISTAN RAILWAY

versus

PUNJAB LABOUR APPELLATE TRIBUNAL and others

Writ Petition. No.3469 of 1978, decided on 127th September, 2000.

(a) Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑S. 38(3‑a)‑‑‑Payment of Wages Act (IV of 1936), S.17‑‑‑Jurisdiction of Labour Appellate Tribunal‑‑‑Scope‑‑‑Tribunal had no jurisdiction to revise the order passed by the Appellate Authority und.)r the Payment of Wages Act, 1936 as the Act did not contain any provision vesting revisional power in any Authority, Court or Tribunal.

(b) Industrial Relations. Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑Ss. 35(5), 37(3) & 38‑‑‑Payment of Wages Act (IV of 1936), Ss. 15 & 17‑‑‑Appellate jurisdiction of Labour Court‑‑‑Scope‑‑‑Labour Court while hearing the appeal against the order of the Authority under Payment of Wages Act, 1936, would act as an Appellate Authority set up under the Act and would not deal with the appeal under the Industrial Relations Ordinance, 1969.

(c) Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑S. 38(3‑a)‑‑‑Revisional jurisdiction of Appellate Tribunal ‑‑‑Scope‑‑­Revisional jurisdiction vested in Labour Appellate Tribunal could only be exercised where the case was decided under the Industrial Relations Ordinance, 1969‑‑‑Decision rendered under any other law would not qualify for exercise of revisional power.

(d) Payment of Wages Act (IV of 1936)‑‑‑

‑‑‑‑Ss. 15 & 17(2)‑‑‑Industrial Relations Ordinance (XXIII of 1969), S.38(3‑a)‑‑‑Finality of order =‑‑Revisional jurisdiction, exercise of‑‑‑Since finality was attached to the order passed by the Authority under S.15 of Payment of Wages Act, 1936, as provided under S.17(2) of the Act, to allow it to be challenged in revision under any enactment would destroy the finality which could not be the intention of the Legislature.

Pakistan through Chairman, Pakistan Railway Board, Lahore v. Maqsood Ali and others 1981 PLC 307; Pakistan Railways v. Labour Appellate Tribunal and others 1994 PLC 401 and National Cement Industries Limited v. Sindh Labour Appellate Tribunal 1981 PLC 561 ref.

Tariq Shamim for Petitioner.

Nemo for Respondents.

Date of hearing: 27th September, 2000.

2001 P L C 669

[Lahore High Court]

Before Ali Nawaz Chowhan, J

Malik BASHIR AHMAD

versus

PUNJAB LABOUR APPELLATE TRIBUNAL, NEW MUSLIM TOWN, LAHORE and 4 others

Writ Petition No. 14198 of 1999, decided on 26th August, 1999.

Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑Ss. 25‑A & 38(3‑a)‑‑‑Constitution of Pakistan (1973), Art. 199‑‑­Constitutional petition‑‑‑Proceedings before Labour Court‑‑‑Stay of proceedings‑‑‑Employer‑Bank having failed to produce evidence despite many opportunities were provided by the Labour Court, its case was closed‑‑‑Bank filed revision ag4inst order of Labour Court before Labour Appellate Tribunal which stayed the proceedings before Labour Court and adjourned .the case without issuing notice to the employee and without perusing the record‑‑‑Employee had. challenged order of Labour Appellate Tribunal contending that said order could not have been passed without affording opportunity of hearing to the employee as provided in S.38(3‑a) of Industrial Relations Ordinance, 1969‑‑‑Validity‑‑‑Labour Appellate Tribunal had not revised or modified order passed by Labour Court, but had only fixed date for hearing and also had requisitioned the record for persual‑‑­Counsel for the Bank had assured that he would not cause any delay before the Tribunal and would adduce arguments on the adjourned date of haring‑‑­Parties being ready to address the Tribunal, High Court asked the Tribunal to hear the arguments on the adjourned date of hearing and dispose of the matter within stipulated period.

Asmat Kamal Khan for Petitioner.

Jawad Hussain fot Respondents Nos. 3 to 5.

2001 P L C 672

[Lahore High Court]

Before Ch. Ijaz Ahmad, J

PROVINCE OF THE PUNJAB through Divisional Forest Officer, Gujrat Forest Division

versus

PUNJAB LABOUR APPELLATE TRIBUNAL and another

Writ Petition No.20089 of 2000, decided on 15th June, 2001

(a) Practice and procedure‑--

‑‑‑‑ When a thing is to be done in a particular manner then it must be done in that manner and not in any other way.

Atta Muhammad Qureshi v. The Settlement Commissioner, Lahore and 2 others PLD 1971 SC 61 ref.

(b) Payment of Wages Act (IV of 1936)‑‑‑

‑‑‑‑S.17(L)(a)‑‑‑Appeal‑‑‑Condition precedent to file appeal was that it should be filed alongwith certificate that the appellant had deposited with the Authority the amount payable under the direction appealed against.

Mansab Ali v. Amir and three others PLD 1971 SC 124; Quetta Club Ltd., Quetta Cantt‑ v‑ Muslim, Khan and others PLD 1983 Quetta 46; The Executive Engineer, Feeder Division v. Shah Noor and 15'7 others 1999 PLC 54; Sakhi Gul v. Messrs Caltex Oil (Pakistan) Ltd. 1995 PLC 351; Executive Engineer, Kotri Barrage v. Isso and 41 others 1983 PLC 5; WAPDA v. Ali Muhammad 1985 PLC 877; Agriculture Engineer, Thatta v. Mst. Shamim Akhtar and others 19?5 PLC 1093; Executive Engineer, Public Health v. Taj Muhammad and 23 others 1989 PLC 919 and Chief Personnel Officer, Pakistan Railways, Lahore and another v. Muhammad Ibrahim and 9 others 1983 PLC 1235 ref.

(c) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Arts.4 & 25‑‑‑Equality of citizen‑‑‑Government and the ordinary citizen are equal before the Court.

Government of N.‑W.F.P. v. Abdul Malik 1994 SCMR 833 and Nawabzad,4 Raunak Ali Khan's case PLD 1973 SC 236 ref.

Akhtar Hussain Awan, Addl. A.‑G.

2001 P L C 697

[Lahore High Court]

Before Muhammad Sair Ali, J

Rana MAHMOOD HUSSAIN, OFFICER GRADE‑II HABIB BANK LIMITED. SAHIWAL

versus

CHAIRMAN, NATIONAL INDUSTRIAL RELATIONS COMMISSION, CAMP AT LAHORE and 2 others

Writ Petition No.21848 of 1999; heard on 31st May, 2001.

(a) Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑S.22(c)‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Non‑compliance of order passed by National Industrial Relations Commission‑‑‑Departmental promotion‑‑‑Petitioner being aggrieved of having not been promoted to the next grade preferred application before National Industrial Relations Commission‑‑‑Application was allowed by the Commission and the employer Bank was directed to consider the case of the petitioner‑‑‑Order passed by the Commission was maintained up to the Supreme Court‑‑‑Employer made a statement before the Commission that the case of the promotion of the petitioner tad been sent to Finance Division for consideration‑‑‑Application under S.22(c) of Industrial Relations Ordinance, 1969, was filed by employee/petitioner was dismissed by the Commission on the ground that fie was not found fit for promotion by Departmental Promotion Committee‑‑‑Contention of the petitioner was that the employer had not complied with the direction passed by the Commission and was liable to be proceeded against under S.22(c) of Industrial. Relations Ordinance, 1969‑‑‑Validity‑‑‑By raising bogey of Departmental Promotion Committee, employer only evaded its solemn duties and commitments to comply with the orders passed by National Industrial Relations Commission and those passed by High Court as well as the Supreme Court‑‑‑Having unreservedly represented that petitioner's case was recommended for promotion to Finance Division under the Rules, employer could not have deviated from the undertaking by referring the case to a Departmental Promotion Committee as such the same amounted to non‑consideration of a legitimate and valid right of the employee for promotion to next grade‑‑‑Word 'consideration' did not give a licence to the employer to shift stands, commitments and duties under law, equity and morality‑‑‑'Consideration' by Departmental Promotion Committee of the employer was in fact a contradiction to the declared 'recommendation' by the employer favourable to the petitioner for his promotion to next grade‑‑‑If the recommendation of the petitioner had been turned down by the Finance Division the employer could argue a case against the petitioner‑‑‑Where the case of the petitioner was recommended for promotion, the employer could not have given through its Departmental Promotion Committee verdict of 'unsuitability' for his promotion‑‑‑Such contradictory and self‑destructive premise was not allowed by High Court as the conduct of employer smacked of legal and as well as factual mala fides‑‑­Order passed by the National Industrial Relations Commission on the application of the petitioner under S.22(c) of Industrial Relations Ordinance, 1969, was set aside and the case .was remanded to the Commission for decision afresh‑‑‑Constitutional petition was allowed accordingly.

(b) Words and phrases‑‑‑

‑‑‑‑"Consideration''‑‑‑Meaning and scope‑‑‑Word 'consideration" requires serious, reasonable, fair, bona fide, honest and genuine application of mind and appreciation of the comparative rights and records‑‑‑Object of 'consideration should be the assessment of all facts with a purpose to grant relief and not with predisposition to deny the right.

Farooq Zaman Qureshi for Petitioner.

Muhammad Iqbal Khan for Respondent No.3.

Date of hearing: 31st May, 2001.

2001 P L C 712

[Lahore High Court]

Before Maulvi Anwarul Haq, J

NATIONAL BANK OF PAKISTAN through President, Head Office I.I. Chundrigar Road, Karachi and 3 others

versus

CHAIRMAN, NATIONAL INDUSTRIAL RELATIONS COMMISSION OF PAKISTAN, CAMP AT LAHORE and another

Writ Petition No.457 of 1997, heard on Ist June, 2001.

(a) Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑S. 22‑B(3)(a)‑‑‑Individual grievance of worker ‑‑‑Redressal of‑‑­Jurisdiction of National Industrial Relations Commission under the provisions of S.22‑B(3)(a) of Industrial Relations Ordinance, 1969‑‑­Scope‑‑‑Provision of S.22‑B(3)(a) of Industrial Relations Ordinance, 1969, relates to constitution of the Bench of Commission and their functions/powers‑‑‑Word 'or' between the cases based on allegation of unfair labour practice and those for redress of individual grievance has been used as disjunctive, thus the Commission cannot redress individual grievance of a worker under the provisions of S.22‑B(3)(a) of Industrial Relations Ordinance, 1969.

(b) Service Tribunals Act (LXX of 1973)‑‑‑

‑‑‑‑S.2‑A‑‑‑Industrial Relations Ordinance (XXIII of 1969), S.22‑B‑‑­Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑­Maintainability‑‑‑Industrial dispute‑-‑Unfair labour practice‑‑‑Jurisdiction of Service Tribunal‑‑‑Scope‑‑‑Where the case was not pertaining to the terms and conditions of service and the employee had alleged commission of unfair labour practice against his employer, there was no question of abatement of Constitutional petition in view of the provisions of S.2‑A of Service Tribunals Act, 1973.

(c) Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑S.15(1)(c)‑‑‑Discrimination‑‑‑Scope‑‑‑Discrimination under the provisions of .S.15(1)(c), Industrial Relations Ordinance, '1969, is subject to the condition that the same has been made for reasons of trade union activities o1 the employees.

(d) Acquittal‑‑­

‑‑‑‑ Civil service‑‑‑Industrial dispute‑‑-Acquittal in a criminal case neither constitutes a bar nor is a clog on the imposition of departmental penalty.

Inspector‑General of Police, Punjab, Lahore and others v. Muhammad Tariq 2001 SCMR 789 ref.

(e) Industrial Relations Ordinance (XXHI of 1969)‑‑‑

‑‑‑‑S.22‑A‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Industrial dispute‑‑‑Alternate remedy, non‑availing of‑‑‑Employee was dismissed from service on charge of misappropriation but he invoked jurisdiction of National Industrial Relations Commission on the ground of unfair labour practice‑‑‑Commission without considering the fact that the matter pertained to the grievance of individual employee and there was no evidence of unfair labour practice allowed the petition and reinstated the employee in service with full back benefits‑‑‑Contention of the employer was that the employee failed to avail alternate remedy of departmental appeal available to the employee and the order of the National Industrial Relations Commission was without jurisdiction‑‑‑Validity‑‑‑Where the order of National Industrial Relations Commission suffered from lack of jurisdiction and illegality as apparent on the face of its judgment, non‑availing of the alternate remedy under S.22‑A, of Industrial Relations Ordinance, 1969, would not constitute a bar to the Constitutional petition‑‑‑High Court set aside the order passed by National Industrial Relations Commission and allowed the petition in circumstances.

Civil Aviation Authority and 3 others v. Izhar Ahmad and 144 others 2001 SCMR 328; Messrs ‑Sui Southern Gas Company Ltd. and another v. Khawaja Muhammad Munir and another 2000 SCMR 702; Syed Aftab Ahmed and others v. K.E.S.C. and others‑1999 SCMR 197; United Bank Limited through its President; U.B.L. Head Office Chundrigar Road, Karachi v. Shahmim Ahmad Khan and 42 others 1999 PLC (C.S.) 1032 = PLD 1999 SC 990; Federation of Pakistan v. Muhammad Siddiq PLD 1981 SC 249; Iftikhar Ahmad and others v. President, National Bank of Pakistan and others PLD 1988 SC 53 and Government of the Punjab through Collector, Faisalabad and another v. Hudabia Textiles Mills, Faisalabad through Chairman and 4 others 2001 SCMR 209 ref.

Muhammad Nawaz for Petitioners.

Ghulam Qadir Chaudhry for Respondents.

Date of hearing: 1st June, 2001.

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2001 PLC61

[National Industrial Relations Commission]

Before Muhammad Hussain Chaudhry, Member

MUHAMMAD SIDDIQUE

versus

SHAHEEN AIRPORT SERVICE through Manager Administration and another

Case No.4A(244) of 1998‑K, decided on 11th April, 2000.

Industrial Relations Ordinance (XXIII of 1969)‑‑‑‑

‑‑‑‑Ss.22‑A(8)(g) & 25‑A‑‑‑Petition before National Industrial Relations Commission‑‑‑ Competency‑‑‑Agitating grievance before two forums simultaneously‑‑‑Effect‑‑‑Pending grievance petition before Labour Court under S.25‑A of Industrial Relations Ordinance, 1969, petitioner/employee filed petition before National Industrial Relations Commission, under S.22‑A(8)(g) of the Ordinance‑‑‑Validity‑‑‑Agitating grievance before two forums simultaneously on same cause of action was not permissible‑‑­Petitioner having already challenged his dismissal before Labour Court, petition before National Industrial Relations Commission had become infructuous and was liable to be dismissed accordingly.

M. Siddique Malik, Representative for Petitioner.

S.M. Yaqoob for Respondents.

2001 P L C 79­

[National Industrial Relations Commission]

Before Allah Rakhio Leghari, Member

ABDUL KARIM

versus

P.I.A.C. through. Chairman, Karachi and 2 others

Cases Nos.4A(343)‑K and 24(348)‑K of 1999, decided on 21st August, 2000.

(a) Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑Ss. 1 (3) (c) & 22‑A(8)(g)‑‑‑National Industrial Relations Commission (Procedure and Functions) Regulations,' 1973, Regln. 32(2)(c)‑‑‑Status quo‑‑‑Issuance of‑‑‑Petition under S. 22‑A(8)(g) of Industrial Relations Ordinance, 1969 and application under Regln: 32(2)(c) of National Industrial Relations Commission (Procedure and Functions) Regulations, 1973 for grant of status quo, were filed by employee three days after passing of the dismissal order against him‑‑‑Order dismissing employee from service was sent to the employee by post as at relevant time he was absent from duty‑‑­Order of dismissal would take effect when it was passed'‑by the Authority competent to dismiss employee or at the most when said order was posted‑‑­Effective date of said order would not be the date of communication of the order‑‑‑National Industrial Relations Commission, could not grant status quo after dismissal of employee from service.

Pak‑Arab Refinery Limited v. Muhammad Rashid 1999 SCMR 373; 1997 PLC 10; 1995 PLC 35;‑ 1994 PLC 306; Asahi Industries v. Sindh Labour Appellate Tribunal, Karachi and 20 others .1980 CLC 550; Tin Plate Company of India Limited. Columri v. Abdul Sattar AIR 1960 Pat. 283; Lord Krishna Textile Mills v. Workmen AIR 1961 SC 860; Banglore Woollen, Cotton and Silk Mills v. Dasappa AIR 1960 SC 1352; Podar Mills v. Bhagwansing 1973 SCC 449:2 LLJ 133 and PLD 1979,Kar. 493 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)‑‑‑Status quo‑‑‑Grant of‑‑‑In cases for unfair labour practice likely to be committed, National Industrial Relations Commission was empowered under Regln. 32(2) of National Industrial Relations Commission (Procedure and Functions) Regulations, 1973 to advise or prohibit. all or any of connected persons to do or refrain from doing any act or to conduct their affairs in a manner calculated to avoid occurrence of unfair labour practice, but the Commission had not been vested with such power in respect of unfair labour practice already committed‑‑­Employee having been dismissed from service prior to filing of application for grant of status quo, no relief by way of status quo could be granted to employee under Regln. 32(2) of National Industrial Relations Commission (Procedure and Functions) Regulations, 1973.

1997 SCMR 1508; .1984 PLC 1480; 1986 PLC 985; 1984 PLC 1342; PLD 1976 Lah. 611; 1980 PLC 752(c) and 1994 PLC 476 ref.

(c) Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑Ss. 1 (3) (c) & 22‑A (8)(g)‑‑‑National Industrial Relations Commission (Procedure and Functions) Regulations, 1973, Regln. 32(2)(c) ‑‑‑ Dismissal from service‑‑‑Unfair labour practice on part of employer‑‑‑Power of industrial Relations Commission‑‑‑Scope of interference‑‑‑Employee bad been dismissed from service after a proper show‑cause notice and inquiry, on a very serious charge of misconduct‑‑‑Employee who alleged that he had been victimised on account of his trade union activities, had failed to prove his allegations‑‑‑Mere bald allegations of unfair labour practice, were not sufficient to prove victimization and provide no justification for interference by National Industrial Relations Commission‑‑‑Jurisdiction of Commission under Regln. 22‑A (8)(g) of Industrial Relations Ordinance, .1969 was very limited‑‑‑Commission could not sit as an Appellate Court over the action of the Management‑‑‑Petition filed by employee against his dismissal from service, was dismissed in circumstances.

Masood Noorani for Applicant.

Masood Ahmed Khan for Respondents.

2001 P L C 86

[National Industrial Relations Commission]

Before Zia Mahmood Mirza, Chairman, Alauddin Qureshi

and Muhammad Hussain Chaudhry, Members

ALI GOHAR & COMPANY (PVT.)

versus

SAEED AHMAD and 15 others through Ali Gohar & Co.

Appeals Nos. 12(26) and 24(50) of 2000, decided on 20th March, 2000.

Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑Ss. 22‑A (8)(g) & 22‑D‑‑‑National Industrial Relations Commission (Procedure and Functions) Regulations, 1973, Regln. 32(2)‑‑‑Unfair labour practice‑‑‑Interim relief, grant of‑‑‑Court or Tribunal before granting interim relief must find whether there existed a prima facie case in favour of person seeking interim relief‑‑‑Court/Tribunal has also to examine concepts of balance of convenience/inconvenience and irreparable loss‑‑‑Case being based on allegations of unfair labour practice, Member, National Industrial Relations Commission before proceeding to grant interim relief should have found at least prima facie that allegations made in petition filed under S.22‑A (8)(g) of Industrial Relations Ordinance, 1969, coupled with some other material, if any, placed on record before him, disclosed commission of an unfair labour practice on part of employer/appellant because on such a finding depended exercise of jurisdiction of National Industrial Relations Commission; but in the present case, nothing had been done in that respect‑‑­Member, National Industrial Relations Commission had not considered that grievance agitated before him was relatable to unfair labour practice and he had not examined question of interim relief with reference to provisions of Regln. 32(2) of National Industrial Relations Commission (Procedure and Functions) Regulations, 1973, which in terms was attracted only when some apprehension was shown that an unfair labour practice was likely to occur to prevent which some interim measure was called for‑‑‑Member, National Industrial Relations Commission, before passing interim order having not kept in view relevant considerations and legal/statutory requirements governing grant of interim relief, his order granting interim relief was set aside in appeal and case was remanded for passing fresh order in accordance with law particularly keeping in view principles governing grant of interim relief after hearing the parties.

Capt. Retd. Abdul Wajid and 2 others v. Sher Muhammad and others 1980 PLC 800; M.O. Basha v. The Presiding Officer, Sindh Labour Court PLD 1975 Kar. 57; 1986 CLC 442; Mst. Yasmin Zafar v. Muhammad Anwar Khan and others PLD 1.989 Lah. 38; PLD 1998 Quetta 1; 1985. PLC, 298; 1997 PLC 81; Pakistan Warehouse Carriers Workers' Union v. A Bench of N.I.R.C. 1988 PLC 890; Pakistan Telecom Company Lions Staff Union v. NIRC 1999 PLC 320; 1995 SCMR 6; 1998 SCMR 68; Associated Cement, Wah v. Hassan Din and 2 others 1995 PLC 592; 1980 PLC 752; PLD 1976 Lah. 611; Iftikhar Ahmad v. N.I.R.C 1998 PLC 268 and Miss Rukhsana Ijaz v. Secretary Education 1997 SCMR 167 ref.

Mahmood Abdul Ghani for Appellant.

Asmat Kamal Khan for Respondents.

2001 P L C 103

[National Industrial Relations Commission]

Before Zia Mahmood Mirza, Chairman, Muhammad Hussain Chaudhry, Senior Member and Ch. Ghulam Rasool, Joint Secretary

DIVISIONAL SUPERINTENDENT, PAKISTAN RAILWAYS, RAWALPINDI and others

versus

ALAUDDIN QURESHI, MEMBER, NIRC and another

Appeal No. 12(26)‑L of 2000/L, decided on 29th June, 2000.

(a) Industrial Relations Ordinance (XXIII of 1969)‑‑

‑‑‑‑Ss. 22‑A(8)(g) & 2‑D‑‑‑National Industrial Relations Commission (Procedure and Functions) Regulations, 1973, Regln. 32(2)‑‑‑Transfer of employee‑‑‑Interim relief‑‑‑Grant of‑‑‑Appeal before National Industrial Relations Commission‑‑‑Employee who was transferred from one place of working to another, had filed petition against the transfer order under S.22‑A(8)(g) of Industrial Relations Ordinance, 1969 alongwith application under Regln. 32(2) of National Industrial Relations Commission (Procedure and Functions) Regulations, 1973 for stay of execution of transfer order alleging that his transfer had been made with a view to victimize him and to prevent him from participating in his lawful trade union activities as General Secretary of the Trade Union‑‑‑Validity‑‑‑Employer had fully proved that transfer of employee was made in exigency of service‑‑‑Employee remained posted at his place of working almost 24 years‑‑‑Merely because employee happened to be the office‑bearer of Collective Bargaining Agent of Union, would not give him a license to remain posted at a particular place throughout his service career‑‑‑Transfer being term and condition of service, it was inherent right of employer to transfer employee whenever situation so demanded‑‑‑Transfer of employee from one place of working to another after about 24 years being in exigency of service, it could not and should not be accepted, that just because employee as an office‑bearer of Collective Bargaining Agent, his transfer was essentially an act of unfair labour practice by employer‑‑‑Prima facie no case of unfair labour practice having been made out in favour of employee, interim relief could not be granted to him.

(b) National Industrial Relations Commission (Procedure and Functions) Regulations, 1973‑‑‑

‑‑‑‑Regln. 32(2)‑‑‑Industrial Relations Ordinance (XXIII of 1969), S.22­A(8)(g)‑‑‑Interim relief‑‑‑Grant of‑‑‑Single Bench of National Industrial Relations Commission granted interim relief to employee without holding enquiry to satisfy itself that any alleged unfair labour practice was committed by employer by transferring employee from one place of working to another‑‑‑Court or Tribunal before granting interim relief, must find whether prima facie case existed in favour of the person seeking interim relief and it must also examine concepts of balance of convenience/inconvenience and irreparable loss‑‑‑Order granting interim relief passed by Single Bench mechanically and without any application of mind to factual and legal aspects governing grant of interim relief including concepts of balance of convenience/inconvenience and irreparable loss, was set aside.

Muhammad Shafi Mughal for Appellants.

Malik Mehrban for Respondent No.2.

2001 P L C 113

[National Industrial Relations Commission]

Before Zia Mahmood Mirza, Chairman

MUHAMMAD ALTAF

versus

PERMANENT WAY INSPECTOR (P.W.I) PAKISTAN

RAILWAYS, HAFIZABAD and 2 others

Case No.4‑A (129) of 2000‑L, decided on 21st July, 2000, Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑Ss. 1(3) (a) & 22‑A(8)(g)‑‑‑Allegation of unfair labour practice of employer by employee‑‑‑Maintainability of petition,.‑‑Employee had alleged in his petition that he had been thrown out from service verbally without any charge‑sheet/show‑cause notice of personal hearing which act of employer constituted unfair labour practice; ‑‑Employee at the relevant time was serving as Gang Mate on Railway lines which were essential to the Defence Services of Pakistan during peace and war‑‑‑Industrial Relations Ordinance, 1969, being not applicable to the employee in circumstances, petition by employee under S.22‑A(8)(g) of Industrial Relations Ordinance, 1969 was not maintainable.

Petitioner in person.

Syed Muhammad Naqi for Respondent No .1.

2001 P L C 117

[National Industrial Relations Commission]

Before Zia Mahmood Mirza, Chairman

Haji TUFAIL MUHAMMAD

versus

ASSISTANT ENGINEER No.1, PAKISTAN RAILWAYS, D.S. OFFICE, LAHORE

Cases Nos.4‑A (143) and 24(139) of 2000‑L, decided on 12th May, 2000.

Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑Ss.l(3)(a) & 22‑A(8)(g)‑‑‑Resignation‑‑‑Allegation of unfair labour practice by employer‑‑‑Employee had alleged that because of his trade union activities employer had obtained thumb‑impression on application for premature retirement and his resignation was obtained by employer by playing fraud on him which amounted to unfair labour practice on the part of employer‑‑‑Employee could not prove that his resignation was obtained by playing fraud on him while the employer had fully proved that employee had voluntarily resigned‑‑‑Petition by employee otherwise was not maintainable as he was working on special railway lines relating to Defence Services‑‑‑Industrial Relations Ordinance, 1969 being not applicable to the case of employee, his petition was liable to be dismissed.

Ch. Riaz Ahmad for Petitioner.

2001 P L C 135

[National Industrial Relations Commission]

Before Zia Mahmood Mirza, Chairman, Abdul Sattar Khan, Member

and Ghulam Rasul, J. S. Labour Division/Member

AERO‑ASIA STAFF & WORKERS UNION

through General Secretary and President

versus

MANAGING DIRECTOR, AERO‑ASIA INTERNATIONAL

(PVT.) LTD., KARACHI and another

Appeal No.12(221) of 1999, decided on 29th July, 2000.

Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑Ss, 2(xxvi), 14, 15, 22‑A(8)(g) & 22‑D‑‑‑National Industrial Relations Commission (Procedure and Functions) Regulations, 1979, Regln.. 32(2)‑‑­Application against unfair labour practice of employer ‑‑‑Maintainability‑--Locus standi of unregistered trade union‑‑‑Trade union filed petition under S.22‑A(8)(g) of Industrial Relations Ordinance, 1969 alongwith stay application under Regln. 32(2) of National Industrial Relations Commission (Procedure and Functions) Regulations, 1973 against alleged unfair labour practice of employer‑‑‑Union at the time of filing of the petition and application was just a combination of workers as defined in S.2(xxvi) of Industrial Relations Ordinance, 1.969 and was not a registered trade union‑‑‑Validity‑‑‑Union could not bring the petition and application in its own name as same did not have status of a body corporate so as to be entitled to sue or be sued‑‑‑Such a status could be acquired by trade union only when it got itself registered with the Registrar of Trade Unions‑‑Union being not registered trade union, was not competent to institute proceedings‑‑‑Petition filed by the union was rightly dismissed by Single Bench of National Industrial Relations Commission being not maintainable.

AIR 1940 Nag. 288 and 1989 MLD 3436 ref.

Malik Mehrban, Representative for Appellant.

Muhammad Ashraf Gujjar for Respondents.

2001 P L C 143

[National Industrial Relations Commission]

Before Zia Mahmood Mirza, Chairman, Ghulam Nauman Sheikh

and Muhammad Akbar, Members

EXECUTIVE ENGINEER, IRRIGATION SUMANDRI, RANGE FAISLABD

versus

KAMEER KHAN, BAILDAR

Appeal No.12(153) of 1999/L, decided on 23rd August, 2000.

Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑Ss.22‑A(8)(g) & 22‑D‑‑‑Appeal‑‑‑Limitation‑‑‑Delay, condonation of‑‑­Appeal against order of Single Member of National Industrial Relations Commission whereby employee's petition under S. 22‑A(8)(g) of Industrial Relations Ordinance, 1969 challenging his retirement was accepted was filed after expiry of prescribed period‑‑‑Appellant, who applied for certified copy of appellate order after 8 days of passing order of the Commission and obtained copy on the very day had filed appeal after one month and eleven days from the delivery .of certified copy of appellate order to him‑‑‑Appellant having failed to give cogent and reasonable grounds for condonation of delay application for condonation of said delay was rightly rejected.

P L D 1961 Kar.772; PLD 1975 Lah. 707 and PLD 1986 Quetta 107 ref.

Zameer Ahmad Mirza for Appellant,

2001 P L C 149

[National Industrial Relations Commission]

Before Zia Mahmood Mirza, Chairman, Muhammad Hussain Chaudhry, Member and Ghulam Sarwar Khero, Secretary Labour

PAKISTAN MACHINE TOOL FACTORY (PVT.) LTD., KARACHI

versus

MUHAMMAD SIDDIQUE

Appeal No.12(241) of 1999, decided on 5th April, 2000. .

(a) Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑S. 22‑A(8)(g)‑‑‑National Industrial Relations Commission (Procedure and Functions) Regulation, 1973, Regln.32(2)‑‑‑Initiation of departmental/disciplinary proceedings‑‑‑ Unfair labour practice by employer‑‑‑Proof‑‑‑‑Departmental as well as criminal proceedings were initiated against employee who was involved in a theft case‑‑‑ Show‑cause notice was issued to the employee and enquiry was ordered against him, but he, instead of facing enquiry proceedings, approached the National Industrial Relations Commission by filing petition under S.22‑A(8)(g) of Industrial Relations Ordinance, 1969 and under Regln.32(2) of National Industrial Relations Commission (Procedure and Functions) Regulations, 1973 for a stay order‑‑‑Member of the Commission without recording evidence of parties and without affording any opportunity to parties to adduce evidence in support of their respective contentions, not only confirmed interim injunction, but also allowed main petition, simply on ground that accused/employee had been acquitted from charge of theft by Court of competent jurisdiction‑‑‑ Validity‑‑‑Acquittal of accused in a criminal case, was no bar to initiate departmental/ disciplinary proceedings against him on the charge of misconduct being proved‑‑‑Single Member of National Industrial Relations Commission was not justified in holding that employee having been found not guilty by Court, he could not be found guilty by Enquiry Officer on basis of same evidence‑‑‑Standard of proof and principles governing assessment/evaluation of evidence in a criminal case entailing sentence of imprisonment in case of conviction were quite different from those applicable to departmental/disciplinary proceedings for misconduct which could at the most result in punishment of dismissal/removal from service.

(b) Industrial Relations Ordinance (XXIII of 1969)‑‑

‑‑‑‑S.22‑A(8)(g)‑‑‑Industrial dispute‑‑‑Jurisdiction of National Industrial Relations Commission‑‑‑Disciplinary proceedings against employee‑‑‑Right of employer‑‑‑Inherent right of employer to initiate disciplinary proceedings against an allegedly delinquent employee and to decide whether charge levelled against him was correct or not‑‑‑National Industrial Relations Commission could not interfere with disciplinary, proceedings against employee if those were still in progress and to quash said proceedings on plea of unfair labour practice‑‑‑Petition filed by employee before Single Member under S.22‑A (8)(g) of Industrial Relations Ordinance, 1969 being premature and employee in departmental enquiry having been found guilty of charge against him, employer was entitled to issue show‑cause notice to the employee.

Khalid Javed for Appellant.

Afzal Khan for Respondent.

2001 P L C 156

[National Industrial Relations Commission]

Before Zia Mahmood Mirza, Chairman, Muhammad Hussain Chaudhry, Member

and Ghulam Sarwar Khero, Secretary Labour Sindh

PAKISTAN NATIONAL SHIPPING CORPORATION, KARACHI

versus

MUHAMMAD MOOSA SOOMRO

Appeal No.12(02) of 1999‑K, decided on 7th April, 2000.

(a) Industrial Relations Ordinance (XXIII of 1969)‑‑

‑‑‑‑Ss.22‑A(8)(g) & 22‑D‑‑‑Dismissal from service‑‑‑Petition by employee‑‑­Plea of unfair labour practice on part of employer‑‑‑Limitation‑‑‑Inordinate unexplained delay, condonation of‑‑‑Justification‑‑‑Employee was dismissed from service after issuing him show‑cause notice on ground of misuse of medical facilities extended to him by the employer‑‑‑Employee filed petition under S.22‑A(8)(g) of Industrial Relations Ordinance, 1969 against dismissal order, after fourteen years of his dismissal from service, but did not offer any explanation for such inordinate delay, either in his petition or in his affidavit‑in‑evidence‑‑‑Employee, during course of his cross‑examination had only disclosed that he had filed civil suit to challenge his dismissal from service, but his plaint was rejected and that his said case was dismissed up to Supreme Court‑‑‑Petitioner having failed to give cogent reasons for inordinate delay in filing petition before National Industrial Relations Commission, Commission was not justified to allow employee benefit of S.14 of Limitation Act, 1908 to condone delay in filing petition‑‑Petition filed by employee before Commission which suffered from gross laches, warranted its outright dismissal on that ground alone‑‑‑Employee had alleged that he had been victimized on account of his trade union activities which was an act of unfair labour practice on part of employer‑‑‑Such allegation of employee was an afterthought as he did not take said plea in his reply to show‑cause notice issued to him‑‑‑Employee, who was just an ordinary member of union, could not produce any satisfactory and cogent evidence to substantiate his allegation that his removal from service was the result of his trade union activities and he could not furnish any specific details or instances of his trade union activities‑‑‑Dismissal of employee from service could not be said to be an act of unfair labour practice so as to attract jurisdiction of National Industrial Relations Commission.

Muhammad Raz Khan v. Government of N.‑W.F.P. and another PLD 1997 SC 397; Ashiq Ali v. Messrs Republic Motors Limited 1996 PLC 508; PLD 1958 SC 104; 1997 MLD 2473 and 1987 SCMR 753 ref.

(b) Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑Ss.22‑A, 22‑C & 22‑D‑‑‑Unfair labour practice‑‑‑Jurisdiction of National Industrial Relations Commission was confined only to cases of unfair labour practice and such jurisdiction was attracted only to the cases where management/employer in taking action against employee was motivated by any of considerations specified in S.15(1) of Industrial Relations Ordinance, 1969‑‑‑Commission was not concerned with mere illegalities/irregularities of the action which was function of Labour Court acting under S.25‑A of Industrial Relations Ordinance, 1969.

Mushtaq Ahmad Sheikh for Appellant.

Ashfaq Hussain Rizvi for Respondent.

2001 P L C 165

[National Industrial Relations Commission]

Before Zia Mahmood Mirza, Chairman, Abdul Sattar Khan, Member and Ch. Ghulam Rasul, Joint Secretary

IFTIKHAR AHMAD BHATTI

versus

HAJI KHAN BHATTI and 5 others

Appeal No.12(40) of 1999, decided on 26th June, 2000.

Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑Ss.7(1)(j), 8(7) & 22‑A‑‑‑Holding of new election of office‑bearers of union‑‑‑Two years' terms/tenure of office‑bearers of Union having come to an end, President of Union and three Members of Election Committee proceeded to hold election for new office‑bearers of the Union‑‑‑Tenure of office‑bearers of union could not exceed two years as contemplated by S.7(1)(j) of Industrial Relations Ordinance, 1969‑‑‑Holding of election of office‑bearers of union, therefore, could not be resisted after expiry of prescribed period of two years.

Mahmood Akhtar with Hafiz Muhammad Younas, Representative for Appellant.

2001 P L C 171

[National Industrial Relations Commission]

Before Allah Rakhio Leghari, Member

S.M. QAMARUDDIN and 7 others

versus

S.G.S. PAKISTAN (PVT.) LTD. Through Managing Director and 2 others

Case No.4‑A(323) and 24(328) of 1999‑K, decided on 26th August, 2000.

(a) Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑Ss.22‑A(8)(g) & 22‑D‑‑‑National Industrial Relations Commission (Procedure and Functions) Regulations, 1973, Regln. 32(2)(c)‑‑­Retrenchment ‑‑‑Termination of service‑‑‑ Unfair labour practice by employer‑‑‑Ad interim order‑‑‑National Industrial Relations Commission, limited scope of its jurisdiction‑‑‑Services of employees were terminated by way of retrenchment as Departments in which employees were working were closed due to economy measures‑‑‑Employee:: had challenged said termination alleging that same was due to their lawful trade union activities and thus, was unfair labour practice of the employer‑‑‑Employees in their petition under S.22‑A(8)(g), Industrial Relations Ordinance, 1969 could not quote specific instance of their said lawful trade union activities, but they had simply stated that they were being victimized due to their trade union activities‑‑‑Mere allegation that employees had been terminated due to their trade union activities was not sufficient to establish that they had been victimized due to their trade union activities‑‑‑Jurisdiction of National Industrial Relations Commission under S.22‑A(8)(g) of Industrial‑ Relations Ordinance, 1969 was very limited and Commission could not sit as an Appellate Court over action of the management/employer.

(b) Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑S.22‑A(8)(g)‑‑‑National Industrial Relations Commission ,(Procedure and Functions) Regulations, 1973, Regln. 32(I)(21‑‑‑Unfair labour practice‑‑­Status quo‑‑‑Suspension of order of termination‑‑‑Jurisdiction of National Industrial Relations Commission‑‑‑ Provisions of Regln. 32(1) of National. Industrial Relations Commission (Procedure and Functions) Regulations, 1973 dealt with cases of unfair labour practice already committed whereas Regln. 32(2) of the Regulations dealt with unfair labour practice likely to be committed‑‑‑Where unfair labour practice was likely to be committed, National Industrial Relations Commission was empowered to advise, direct or prohibit all or any of the connected persons to do or refrain from doing any act or to conduct' their affairs in a manner calculated to avoid occurrence of unfair labour practice, but Commission had not been vested with such powers in respect of unfair labour practice already committed.

1997 SCMR 1508; PLD 1976 Lah. 611 and 1980 PLC 752 rel.

M.A.K. Azmati for Petitioner.

M.L. Shahani for Respondents.

2001 P L C 179

[National Industrial Relations Commission]

Before Zia Mahmood Mirza, Chairman, Alauddin Qureshi

and Muhammad Hussain Chaudhry, Members

EHSAN UR REHMAN

versus

CDA through Chairman and 2 others

Appeal No.12(71) of 1999, decided on 9th February, 2000

Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑Ss.15 & 22‑A(8)(g)‑‑‑Allegation of unfair labour practice by employee‑‑­Residence allotted to employee was cancelled from her name on allegation that she had sublet the same‑‑‑Employee filed petition under S.22‑A(8)(g) of Industrial Relations Ordinance, 1969 alleging that place allotted to her was cancelled from her name on account of her being an active member of employees' union which union enjoyed status of Collective Bargaining Agent‑‑‑Single Bench of the N.I.R.C. accepted petition filed by employee holding that she had not sublet the allotted place‑‑‑Single .Bench though accepted petition filed by employee under S.22‑A(8)(g) of Industrial Relations Ordinance, 1969, but had not recorded definite finding that allotment was cancelled from the name of employee as a measure of any unfair labour practice and had simply observed in the order that the employee being an active member of employees' union indulged in unfair and unlawful trade union activities but no specific instances of said activities were cited‑‑­Mere bald statement that a workman was an active member of trade union without specifying any of his trade union activities which could possibly prompt employer to take some adverse action against him, could not bring case within purview of S.15 of Industrial Relations Ordinance, 1969, dealing with unfair labour practice on part of employer‑‑‑Petition under S.22‑A(8)(g) of Industrial Relations Ordinance, 1969, thus, was ‑not maintainable.

Muhammad Kashtoonish Khan for Appellant.

S. Rais Ahmad Jafri for Respondents Nos. l and 2.

Abdul Hafeez Amjad for Respondent No.3.

2001 P L C 186

[National Industrial Relations Commission]

Before Allah Rakhio Leghari, Member

ABDUL SATTAR

versus

Messrs S.G.S. PAKISTAN (PVT.) LTD. Through Managing Director and 3 others

Cases Nos.4‑A(134) and 24(137)/K of 2000, decided on 26th August, 2000.

Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑Ss.22‑A(8)(g) & 27‑A‑‑‑National Industrial Relations Commission (Procedure and Functions) Regulations, 1973, Regln. 32(2)(c)‑‑‑West Pakistan Industrial and Commercial Employment (Standing Orders; Ordinance (VI of 1968), S.O.15‑‑‑ Misconduct‑‑‑Allegation of unfair labour practice by employer‑‑‑Validity‑‑‑ Appeal before National Industrial Relations Commission‑ ‑‑Employee was suspended after issuing him show‑cause notice and holding, inquiry against him on allegation of misconduct‑‑‑Reply to‑‑­Show‑cause notice issued to employee having been found unsatisfactory employer conducted inquiry against him wherein he was found guilty and was suspended‑‑‑Such act of employer against employee could not be termed to be an act of unfair labour practice‑‑‑Employer under S.15 of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 was empowered to hold inquiry and take action against employee for act of misconduct after giving him show‑cause notice and holding proper inquiry against him‑‑‑Merely because employee was General 'Secretary of Workers' Union, was not sufficient to conclude that proceedings against him was due to his trade union activities‑‑‑Employer was well within its rights to take any action against employee for his misconduct and National Industrial Relations Commission had no power to sit in appeal and examine inquiry proceedings‑‑‑No specific instance of unfair labour practice of employer having been mentioned by employee in his petition, mere fact that employee was General Secretary of Workers' Union. was not sufficient to establish that action of employer against employee was an act of unfair labour practice.

M.A.K. Azmati for Applicant.

M.L. Shahani for Respondents.

2001 P L C 190

[National Industrial Relations Commission]

Before Zia Mahmood Mina, Chairman, Muhammad Hussain Chaudhry, Member

and Ghulam Sarwar Khero, Secretary Labour

ADIL KHAN and 3 others

versus

POST MASTER GENERAL, SOUTHERN SINDH

CIRCLE, KARACHI and another

Appeal No.12(142) of 1999, decided on 4th April, 2000.

Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑Ss.22‑A(8)(g) & 22‑A‑‑‑National Industrial Relations Commission (Procedure and Functions) Regulations, 1973, Regln. 32(2)(c)‑‑‑‑West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O. 15‑‑‑ Allegation of unfair labour .practice by employee‑‑‑Appeal before National Industrial Relations Commission‑‑‑­Appellants/employees were charge‑sheeted for allegations of misappropriation/embezzlement of huge Government money which allegations were also subject‑matter of criminal cases registered against them‑‑‑Employees filed petition under S.22‑A(8)(g) of Industrial Relations Ordinance, 1969 against issuance of the charge‑sheet alongwith stay application contending that they had been proceeded against with the object of punishing them for their lawful trade union activities‑‑‑Member of National Industrial Relations Commission dismissed the petition holding that there was nothing on record to show that proceedings against employees were initiated because of their trade union activities‑‑‑Member of the Commission further found that employees having been charged with misappropriation/embezzlement of huge amount of Government money, unless case against them was investigated, Management could not reach the conclusion regarding charge against them‑‑‑Validity‑‑‑Employers had a right to initiate disciplinary proceedings against employees on charge of misconduct‑‑‑Issuance of charge‑sheet and holding of enquiry to find out whether charge levelled against employees was correct or not, was statutory requirement‑‑‑Employer having initiated disciplinary proceedings, could take them to logical end and employees could not be permitted to frustrate/circumvent such proceedings by simply pleading victimization on account of trade union activities unless they placed on record sufficient material to show that action being taken against them was motivated by their lawful and legitimate trade union activities‑‑‑In view of grave nature of misconduct alleged against employees, their petition against initiation of disciplinary proceedings against them was rightly dismissed by Member of National Industrial Relations Commission which could not be interfered with in appeal.

National Motors' case 1987 PLC 547 ref.

Ch,. Muhammad Ashraf Khan for Appellant.

2001 P L C 198

[National Industrial Relations Commission]

Before Zia Mahmood Mirza, Chairman, Muhammad Hussain Chaudhry, Member and Ghulam Sarwar Khero, Secretary Labour, Sindh

AIRWAYS EMPLOYEES UNION OF PIA, KARACHI

versus

PAKISTAN INTERNATIONAL AIRLINES CORPORATION

Appeal No. 12 (228) of 1999, decided on 16th February, 2000.

Industrial Relations Ordinance (XXIII of 1969)‑‑‑‑

‑‑‑Ss. 7(i)(j), 10(3), 21 & 22‑D‑‑‑National Industrial Relations Commission Procedure and Functions) Regulations, 1973, Regln. 15‑‑‑Cancellation of registration of trade union‑‑‑Appeal‑‑‑Appellant trade union was registered with National Industrial Relations Commission and registration certificate vas issued‑‑‑Registration of trade union was cancelled on allegations that union had failed to hold election according to R.10 of its 1991 PLC 643 and 1997 PLC 315 ref.

Ch. Muhammad Ashraf for Appellant.

Muhammad Umer for Respondent.

2001 P L C 209

[National Industrial Relations Commission

Before Zia Mahmood Mirza, Chairman, Muhammad Hussain Chaudhry, Senior Member and Abdul Sattar Khan, Member

EHSAN ALI and others

versus

Ch. ABDUL HAFEEZ, Appeal No.7(20) of 2000, decided on 28th July, 2000.

Industrial Relations Ordinance (XXIII of 1069)‑‑‑

‑‑‑‑‑S. 22‑D‑‑‑Dismissal of appeal for non‑prosecution‑‑‑Application seeking restoration of appeal was filed after more than six months from its dismissal without filing application for condonation of delay‑‑‑Applicants on their own showing had notice of the date of hearing, but they did not appear despite having knowledge of the date of hearing‑‑‑Counsel of applicants was duty bound to keep himself informed about next date of hearing to which case was adjourned, but neither he nor applicants made any inquiry about the next .date of hearing of appeal from the office for more than seven months-Applicants, thus, could not plead that limitation would start running from the date they came to know about dismissal of appeal‑‑‑Application for restoration of appeal, being barred by time, was dismissed in circumstances.

Asmat Kamal Khan for Applicants.

2001 PLC217

[National Industrial Relations Commission]

Before Zia Mahmood Mirza, Chairman, Muhammad Hussain Chaudhry, Senior Member and Muhammad Akbar, Member

EMCO INDUSTRIES LIMITED through Deputy General Manager (P&A)

versus

AMIN MASIH

Appeal No.12(184) of 1999, decided on 5th July, 2000.

Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑Ss. 22‑A(8)(g), (10)(c) & 22‑A‑‑‑Termination of service‑‑‑Petition before industrial Relations Commission‑‑‑Reference to Labour Court‑‑‑Appeal‑‑­Employee in his petition under S. 22‑A(8)(g) of Industrial Relations Ordinance, 1969 had alleged that his services had been terminated by the employer by a verbal order which was violative of law‑‑‑Single Member of National Industrial Relations Commission before whom said petition was filed, referred the case to Labour Court for disposal taking view that irregularities and illegalities had been committed in terminating the services of employee‑‑‑Validity‑‑‑Only a case of unfair labour practice on part of employer could be referred to the Labour Court for disposal under S.22‑A(10)(c) of Industrial Relations Ordinance, 1969‑‑‑Petition by employee before National Industrial Relations Commission under S.22‑A(8)(g) of Industrial Relations Ordinance, 1969 having not disclosed commission of any unfair labour practice by employer nor Member of the Commission having shown in his order that it was a case of unfair labour practice, case could not have been referred to Labour Court for disposal‑‑­Single Member of Commission before exercising power under S. 22‑A (10)(c) of Industrial Relations Ordinance, 1969 ought to have satisfied himself, at least prima facie, that case which was being referred to Labour Court was one of unfair labour practice‑‑‑Order of Single Member of Commission was set aside in appeal.

S. Naeem Bokhari for Appellant.

Javed Iqbal for Respondent.

2001 P L C 226

[National Industrial Relations Commission]

Before Zia Mahmood Mirza, Chairman

Mirza MUHAMMAD ZAMAN

versus

PAKISTAN ENGINEERING COMPANY, LAHORE and others

Case No.7(39) of 2000‑L, decided on 3rd August, 2000.

Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑,S.25‑A(8)(g)‑‑‑National Industrial Relations Commission (Procedure and Functions) Regulations, 1973, Rgln. 36(2)‑‑‑Civil Procedure Code (V of 1908), O. IX, R.8‑‑‑Dismissal of petition in default‑‑‑Application for restoration‑‑‑Petitioner did not appear on the date fixed for hearing and case was adjourned by Senior Member of National Industrial Relations Commission‑‑‑Member of Commission on adjourned date of hearing being on tour case was adjourned by Reader of the Commission‑‑‑Petitioner having failed to appear on the adjourned date of hearing, petition filed by petitioner was dismissed in default‑‑‑Validity‑‑‑Date to which hearing of petition was adjourned being a date not fixed by Commission itself, but by its Reader, same could not be treated as a date of hearing and petition could not have been dismissed for non‑prosecution on that date‑‑‑Order dismissing petition in default being unsustainable in law, was recalled and petition was restored.

Muhammad Qasim v. Moujuddin and others 1995 SCMR 218 and Nowsheri Khan v. Said Ahmad Shah 1983 SCMR 1092 ref.

Ch. M. Khalid Farooq for Applicant.

Malik Bashir Ahmed for Respondents.

2001 P L C 272

[National Industrial Relations Commission]

Before Zia Mahmood Mirza, Chairman, Muhammad Akbar, and Ghulam Nauman Sheikh; Members

EXECUTIVE ENGINEER, IRRIGATION, SAMUNDARI

DRAINAGE SUB‑DIVISION, FAISALABAD

versus

MUHAMMAD YOUSUF and another

Appeal No.12(27) of 2000‑L, decided on 21st August,, 2000.

Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑Ss. 22‑A(8)(g) & 22‑D‑‑‑Delay in filing appeal ‑‑‑Condonation of‑‑‑Delay in filing appeal was sought to be condoned by appellant on two grounds; firstly that the delay had occurred because of long procedure of Department concerned and secondly due to sickness of his counsel‑‑‑Plea taken in appellant's affidavit regarding delay which was stated to have occurred due to procedural formalities, was not raised by appellant in his application for condonation of delay giving necessary details of alleged procedural formalities‑‑‑In absence of relevant/necessary details, vague plea of delay because of lengthy procedure of department, could not be accepted‑‑­Government could not claim to be treated in any manner differently from ordinary litigant‑‑‑Applicant also could give necessary details with regard to sickness of counsel as to how long he remained sick and what was the nature of his ailment‑‑‑Said plea had not been supported by an affidavit of counsel nor any other corroborative document, such as medical certificate, had been placed on record‑‑‑Plea, in circumstances, had remained unsubstantiated‑‑­Delay in filing appeal could not be condoned, in circumstances‑‑‑Appeal was dismissed being barred by time.

Commissioner of Income‑tax v. Rais Pir Ahmad Khan 1981 SCMR 37 ref.

Syed Saeed Ahmad Trimzi for Appellant.

2001 P L C 283

[National Industrial Relations Commission]

Before Zia Mehmood Mirza, Chairman, Muhammad Akbar, and Allah Rakhio Leghari, Members

SHABBIR HUSSAIN HABIB

versus

NISHAT GROUP OF INDUSTRIES

through Chief Executive/ Chairman, 53‑A, Lawrence Road, Lahore and another

Appeal No.12(106) of 1999‑L, decided on 25th May, 2000.

Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑‑Ss. 2(xxviii), 15(1), 22‑A(8)(g) & 22‑D‑‑‑West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(i)‑‑‑Employees Service Rules, 1982, 8.14.1‑‑‑Termination of service‑‑­Allegation of unfair labour practice by employer ‑‑‑Proof‑‑‑Workman‑‑­Determination of‑‑‑Services of petitioners serving as Deputy Manager (Administration) had been terminated, who filed petition under S.22‑A(8)(g) of Industrial Relations Ordinance, 1969 against termination of services alleging that he had been victimized for his trade union activities‑‑‑Said petition was resisted by employer contending that petitioner being not a workman, his petition was not maintainable and petitioner having failed to give any details of any unfair labour practice on part of employer, petition was liable to be dismissed on that score alone‑‑‑Petitioner serving as Deputy Manager (Administration) was drawing salary of more than Rs.16,000 per month and throughout his career he was not required to do any manual or clerical work, but had been issuing orders in capacity of Deputy Manager‑‑­Substantive job of petitioner was to supervise work of subordinates and to issue orders accordingly‑‑‑Petitioner used to approve leaves of his subordinates‑‑‑Petitioner had himself admitted that he used to resolve disputes between union and management and also negotiated with union on direction of the employer and he had never been a member of any trade union‑‑‑Petitioner, in circumstances, being not workman, petition filed by him was not maintainable‑‑‑Petitioner also had failed to prove that he had been victimized for his trade union activities‑‑‑Petitioner having failed to prove any unfair labour practice on part of employer, his services were rightly terminated by employer according to rules‑‑‑Petition filed by petitioner, in circumstances, was rightly dismissed by Single Member of National Industrial Relations Commission.

Mian Mahmood Hussain for Appellant.

2001 P L C 294

[National Industrial Relations Commission]

Before Zia Mahmood Mirza, Chairman

TARIQ MAHMOOD and 3 others

versus

SUPERINTENDING ENGINEER, UPPER JHELUM CANAL CIRCLE, JHELUM

Case No.4A(108) of 2000‑L, decided on 13th April, 2000.

Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑S. 22‑A(8)(g)‑‑‑Transfer of employee‑‑‑Unfair labour practice of employer‑‑‑ Employees 'who were transferred from one place of working to another had alleged that their transfers had been made due to their lawful trade union activities and that their transfers were illegal, mala fide and without lawful authority and same being discriminatory amounted to unfair labour practice‑‑‑Employees had not mentioned any specific instance of their trade union activities nor had referred to any previous acts of victimization/discrimination committed by employer with a view to punish them for their trade union activities‑‑‑Employees having failed to prove their allegations, transfers of employees made in exigency of service, could not be challenged.

Ch. Riaz Ahmad for Petitioners.

Javed Altaf for Respondent.

2001 P L C 296

[National Industrial Relations Commission]

Before Zia Mahmood Mirza, Chairman

Rana NADEEM ASGHAR

versus

THE MANAGING DIRECTOR, PIA, HEAD OFFICE, KARACHI and 4 others

Cases Nos. 4A(226) and 24(222) of 2000‑L, decided on 2nd August, 2000.

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 relief, grant of‑‑­Applicant who was transferred from one place of working to another, had filed petition under S.22‑A(8)(g) of Industrial Relations Ordinance, 1969 challenging said transfer contending that the transfer was a result of political victimization and that by said transfer employer intended to deprive applicant of his trade union activities being office‑bearer. of the union‑‑‑Applicant alongwith petition had filed application under Regln.32(2)(c) of National Industrial Relations Commission (Procedure and Functions) Regulations; 1973 for grant of interim relief‑‑‑Court or Tribunal before granting interim relief must satisfy itself whether there existed any prima facie case in favour of person seeking interim relief‑‑‑Court or Tribunal must also examine concepts of convenience/inconvenience of parties and irreparable loss likely to be suffered by applicant in case of refusal to grant interim relief‑‑‑Case of applicant being based on allegations of unfair labour practice, it was to be seen whether said allegations, prima facie disclosed commission of unfair labour, practice on part of employer‑‑‑Case of applicant rested on bald allegations as no details whatsoever had been given by him of any of his trade union activities‑‑‑Applicant had simply alleged that he was an active member of Collective Bargaining Agent‑‑‑Applicant, in circumstances, had failed to prove that prima facie case of commission of unfair labour practice by employer existed from .which it could be established that transfer of applicant was motivated only but his trade union activities or that it was intended to prevent applicant from performing his trade union activities‑‑­Employer having inherent right to transfer his employee from one place of working to another in view of administrative requirements, employee could not make legitimate grievance against his transfer‑‑‑Transfer of employee even if he was‑office‑bearer of union, would not constitute unfair labour practice on part of employer‑‑‑Applicant having failed to prove other ingredients for grant of interim relief like .balance of convenience and irreparable loss, application for grant of interim relief was dismissed.

1996 PLC 10; 1987 PLC 358; Lever Brothers of Pakistan Limited v. Senior Member, National Industrial Relations Commission, Islamabad and another 1984 PLC 115; Allied Bank of Pakistan and 3 others v. Chairman, NIRC and 4 others 1984 PLC 1342 and 1994 PLC 280 ref.

Muhammad Shan Gul for Petitioner, Ahmad Awais for Respondents.

2001 P L C 315

[National Industrial Relations Commission]

Before Zia Mahmood Mirza, Chairman

RUKHSANA BASHIR, TELEX OPERATOR, PTC, LAHORE

versus

DIVISIONAL ENGINEER, TELEX, LAHORE and another

Case No.4A(111) of 2000‑L, decided on 3rd August, 2000.

Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑Ss. 15(1)(c) & 22‑A(8)(g)‑‑‑Withdrawal of benefits‑‑‑Allegation of unfair labour practice of employer‑‑‑Employer in the light of judgment of Full Bench of National Industrial Relations Commission withdrew benefits of two advance increments earlier granted to petitioner with further direction that petitioner should not be promoted on the basis of ES III Training‑‑‑Petitioner in her petition had challenged said orders contending that the orders had been passed on wrong interpretation and illegal implementation of orders of Full Bench‑‑‑Petitioner had also casually urged in the petition that said orders were result of unfair labour practice‑‑‑Case of petitioner was not that she was member/office‑bearer of any trade union functioning/operating in establishment of employer nor it had been alleged in her petition that action against her had been taken‑ on account of her trade union activities‑‑­Jurisdiction of National Industrial Relations Commission was confined only to those cases which had an element of unfair labour practice‑‑­Petitioner, in circumstances, could not claim that she had been subjected to any discrimination or that she had been victimised for her trade union activities‑‑‑Petitioner having failed to make out any case of unfair labour practice National Industrial Relations Commission had no jurisdiction to deal with her petition‑‑‑Petition was dismissed being not maintainable.

Ch. Waqar Ahmed for Petitioner.

Muhammad Rafiq Shad for Respondents.

2001 P L C 434

[National Industrial Relations Commission]

Before Muhammad Zaman Qureshi, Chairman

AYYAZ MAHMOOD

versus

NATIONAL BANK OF PAKISTAN through President, Head Office NBP, Karachi and 2 others

Case No.4‑A(489) of 1998‑L, decided on 24th February, 1999.

(a) Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑S.2(xxviii)‑‑‑West. Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, (VI of 1968),'S.0.12(3)‑‑‑Worker‑‑‑Employee whose services were terminated under S.O. 12(3) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 would be covered by definition of "worker" contained in S.2(xxviii) of Industrial Relations Ordinance, 1969‑‑‑Contention that since termination of the employee was neither connected with nor the same led to an industrial dispute, employee being not a worker/workman, had no locus standi to tile petition for redressal of his grievance, was repelled.

PLD 1988 SC 53; Messrs Telephone Industries of Pakistan v. Sindh Labour Appellate Tribunal 1998 PLC 22 1994 SCMR 2213 and 1996 SCMR 883 ref.

(b) Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑S.22‑A‑‑‑Jurisdiction of National Industrial Relations Commission‑‑­Temporary or work‑charged staff would riot fall within the definition of "civil servant "‑‑‑Contention that in view o f insertion of S.2‑A in Service Tribunals Act., 1973 petitioner/employee who was temporary or work­-charged employee could not seek remedy before National Industrial Relations Commission was repelled..

PLD 1996 SC 610 ref.

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

‑‑‑‑S.1(4)(a)‑‑‑Industrial Relations Ordinance (XXIII of 1969), S.22‑A‑‑­Jurisdictiori of National Industrial Relations Commission‑‑‑Applicability of West Pakistan Industrial and Commercial employment (Standing Orders) Ordinance, 1968‑‑‑National Bank of Pakistan Staff Rules, 1980 being not statutory, provisions of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, were applicable to the employees off National Bank of Pakistan and remedy would lie before the Labour Court.

PLD 1993 SC 105 ref.

(d) Administration of justice‑‑‑‑

‑‑‑ Principle ‑‑‑When the law required a particular thing to be done in a particular mode then it must be done in that manner and in no other way.

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

‑‑‑‑Preamble & S.O.1‑-‑Object of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968‑‑‑Permanent worker‑‑­Various categories of workmen for employment in industrial and commercial establishments had been classified in S.O.1 of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance. 1968‑‑‑Employers of said establishments were not empowered in law to create any other category while employing a worker in order to frustrate the provisions of law‑‑‑Said Ordinance was promulgated to protect the working conditions of the workmen employed in Industrial and Commercial establishments‑‑‑Real determining factor as to whether post was of temporary or permanent nature was the duration of the job for which a worker was employed and not the mode of payment‑‑‑Employee having worked for long time in a job which lasted for more than nine months, he had attained the status of permanent workman after completing three months probationary period satisfactorily.

PLD 1996 SC 610 ref.

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

‑‑‑‑S.Os.2‑A & 12(3)‑‑‑Removal of employee by a verbal order‑‑‑Legal requirement of law was that for terminating the employment of workmen, a written order must be given stating explicitly the reasons for such termination‑‑‑Removal of employee by a verbal order was illegal‑‑‑Every workman at the time of his appointment, transfer or promotion was to be provided with an order in writing, showing the terms and conditions of his service.

1997 PLC 466 ref.

(g) Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑Ss.15(1)(a)(b), (d) & 22‑A(8)(g)‑‑‑Unfair labour practice by employer‑‑­Jurisdiction of National Industrial Relations Commission‑‑‑Employee was removed from service on the ground that he alongwith others was recommended by the Trade Union for regularization of his service‑‑‑Said removal had constituted unfair labour practice by the employer and National Industrial Relations Commission had jurisdiction in the matter.

PLD 1988 SC 53 ref.

Nasir Mahmood Qureshi for Petitioner.

Altaf Hussain Ch. for Respondents.

2001 P L C 450

[National Industrial Relations Commission]

Before Nabi Bukhsh Bhatti, Member

MANZOOR ALI, EX‑ASSISTANT SALES MANAGER

UTILITY STORES CORPORATION, VEHARI

versus

MANAGING DIRECTOR, UTILITY STORES

CORPORATION OF PAKISTAN and others

Cases Nos. 4A(27) and 24(27) of 1998‑L, decided on 26th February, 1999.

(a) Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑Ss. 15, 22‑A(8)(g) & 22‑B(3)(a)‑‑‑Unfair labour practice by employer‑‑‑ Proof‑‑‑Jurisdiction of National Industrial Relations Commission‑‑‑National Industrial Relations Commission under S.22‑B(3)(a) .of Industrial Relations Ordinance, 1969 could exercise powers of a Labour Court while entertaining petition under S.22‑A(8)(g) of Industrial Relations Ordinance, 1969, only when there were certain and specific allegations of unfair labour practice against employer‑‑‑Mere genera,[ and sweeping allegations of unfair labour practice without specifying detailed events and circumstances which could lead to poof of commission of an act of unfair labour practice. as provided under S.15 of Industrial Relations Ordinance, 1969, would not be sufficient to exercise said powers by National Industrial Relations Commission‑‑‑Petitioner having failed to substantiate specific facts, circumstances and events of unfair labour practice for attracting jurisdiction of the Commission, petition was dismissed as being not maintainable.

(b) Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑Preamble, Ss. 15; 16, 22‑A(8)(g) & 25‑A‑‑‑Service Tribunals Act (LXX of 1973), S.2‑A‑‑‑Jurisdiction of National. Industrial Relations Commission‑‑‑Scope‑‑‑Industrial Relations Ordinance, 1969.was a special legislation providing its own remedies‑‑‑ Remedy before National Industrial Relations Commission under S.22‑A(8)(g) of Industrial Relations Ordinance, 1969 was an independent and additional remedy for dealing with case of dismissal or otherwise victimization on account of trade union activities of worker‑‑‑Authority provided to National Industrial Relations Commission through different provisions of Industrial Relations Ordinance, 1969 was not available with any Court or Tribunal of country‑‑‑A person could be a civil servant and a workman, but when his case would attract provisions of Ss. 15 & 16 of Industrial Relations Ordinance, 1969 for his trade union activities remedy lay with National Industrial Relations Commission‑‑­ insertion of S.2‑A in Service Tribunals Act, 1973, would not affect or oust jurisdiction of National Industrial Relations Commission to adjudicate on cause of action of workers/civil servants based upon allegation of unfair labour practice as jurisdiction of Service Tribunal did not extend to matter relating to trade unions dealt with by Industrial Relations Ordinance, 1969.

1999 P L C 57 ref.

(c) Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑Ss. 15 & 22‑A(8)(g)‑‑‑Jurisdiction of National .Industrial Relations Commission‑‑‑A line would have, to be drawn in each case in the light of facts and circumstances of each case while exercising jurisdiction by National Industrial Relations Commission under S.22‑A(8)(g) of Industrial Relations Ordinance, 1969‑‑‑Where it was established in the light of facts and circumstances that a worker (may be a civil servant) was being discriminated or victimized on account of trade union activities, National Industrial Relations Commission had exclusive jurisdiction to adjudicate upon case of concerned workers‑ and to provide relief as provided under law.

Sheikh Abdul Hameed for Petitioner. Abdul Sadiq Chaudhary, Counsel for Respondents.

2001 P L C 454

[National Industrial Relations Commission]'

Before Muhammad Zaman Qureshi, Chairman

Alauddin Qureshi and Ch. Riaz Ahmad, Members

MUHAMMAD ARSHAD JAVED, PRESIDENT, NATIONAL

ORGANISATION POSTAL EMPLOYEES, NOPE CBA, KARACHI and others

versus

ZAFAR IQBAL, SECRETARY‑GENERAL NATIONAL ORGANISATION

POSTAL, EMPLOYEES NOPE, CBA, PAKISTAN, LAHORE GPO and another

Case No. 12(93) of 1998, decided on 20th November, 1998.

Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑Ss. 8(7) & 22‑A(9)(a)‑‑-Restraining office holders of Union to act as officers of Union‑‑‑Validity of .order‑‑‑On application tiled on behalf of appellant Union under S.8(7) of Industrial Relations Ordinance, 1969, Single Bench of National Industrial Relations Commission restrained respondent from claiming and acting as General Secretary of appellant union and from holding any meeting‑‑‑On appeal against said judgment, Full Bench of National Industrial Relations Commission, respondent was allowed to continue to be General Secretary of Union, but he was restrained from calling General Council meeting‑‑‑Respondent despite said restriction held Executive Council Meeting and removed appellants from their office whose appointment was duly approved by Registrar, Industry-wise Trade. Unions‑‑­Respondent after removing appellant from their office filed application before one of the Members of the said Full Bench to restrain appellants from: acting or posing themselves to be office‑bearers of appellant union and said member accepted application filed by respondent‑‑‑Validity‑‑‑Said member was also one of the members of Full Bench which had earlier restrained respondent from calling General Council Meeting‑‑‑Said member, in circumstances, was not competent' to sit over judgment of Full Bench of National Industrial Relations Commission nor he had any jurisdiction to undo approval granted by Registrar, Industrywise Trade Unions‑‑­Proceedings entertained by said member were coram non judice as he had acted in excess of jurisdiction, without lawful authority and in objectionable manner‑-‑Order of said Member whereby appellants were restrained from acting or posing themselves to be office‑bearers of Union, was set aside in circumstances.

Zafar Alain for, Representative for Appellants.

Nemo for Respondents.

Date of hearing: 17th November, 1998.

2001 P L C 459

[National Industrial Relations Commission]

Before Ghulam Nauman Shaikh, Member/R.I. T. U.

Syed ADAM MEHDI

versus

Rana MUHAMMAD TAHIR and others

Petition No.7‑A, (25) of 2000, decided on 10th October, 2000.

Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑S.8(5)‑‑‑Alteration made in the constitution of a registered Trade Union and change of office‑bearers of trade union‑‑‑Jurisdiction of Registrar of Industrywise Trade Union‑‑-Petitioner who was President of employees' Union had prayed for a restraint order against respondent that respondent should not act as Secretary‑General of the Union and also to restrain respondent not to transfer members and office‑bearers of the Union from one division to another‑‑‑Provisions of S.8(5) of Industrial Relations Ordinance, 1969 would apply only when information of a change of the office‑bearers teas submitted to the Registrar of Trade Unions and would have no application while election of the Union was in process‑‑‑No provision existed either in Industrial Relations Ordinance, 1969 or in Regulations for invoking the jurisdiction by the Registrar of Industywise Trade Unions to pass the restraint order as prayed by the petitioner‑‑‑Petitioner had no locus standi to make such prayer for issuance of prohibitory order in respect of the transfers of the members and office‑bearers as same could be made only by a Union which was Collective Bargaining Agent and not by an individual person.

Malik Mehrban, Representative for Petitioner.

Qureshi Muhammad Hafeez for Respondents Nos.2 and 3.

Date of hearing: 10th October, 2000.

2001 P L C 464

[National Industrial Relations Commission]

Before Muhammad Akbar, Member

SAIF‑UR‑REHMAN

Versus

DIVISIONAL ELECTRICAL ENGINEER WORKSHOPS, PAKISTAN

RAILWAYS and others

Cases Nos.4‑A(238)/LHR and 24(2337)/LHR, decided on 7th August, 2000.

Industrial Relations Ordinance (XXIII of 1969)‑‑‑‑

‑‑‑‑‑S. 22‑A(8)(g)‑‑‑Personnel Manual, Section V, 8.501‑‑‑Transfer‑‑­Petition against‑‑‑ Petitioner who was a Class‑IV workman and a trade unionist was transferred to another division of employer establishment in the same status‑‑‑Transfer matters were governed under the rules and instructions contained in Personnel Manual which had provided that transfer from one division to another and from one. branch to another could be made at the request of an employee, consent of division to which employee was transferred and also on approval of the headquarters concerned‑‑‑Transfer of petitioner having not been made according to said Manual, order of transfer was directed to be kept in abeyance/dormant till further order so as to avoid occurrence of unfair labour practice, and case would proceed on its own merits.

Kalbe Ali Sheikh for Petitioner.

S.M. Naqi for Respondents.

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2001 P L C 675

[National Industrial Relations Commission)

Before Zfa Mahmood Mirza, Chairman

In re: APPLICATION FOR REGISTRATION OF HSBC LAHORE‑ISLAMABAD EMPLOYEES UNION

Case No.3(3) of 2000, decided on 20th May, 2001.

Industrial Relations Ordinance (XXIII of 1969)‑--

‑‑‑‑Ss. 6, 7 & 22‑EE‑‑‑National Industrial Relations Commission (Procedure and Functions) Regulations, 1973, Regin. 8(1)‑‑‑Application for registration of industry‑wise trade union‑‑‑Industry‑wise character of the applicant union was clearly established and it was not in dispute that all its members were workmen actually engaged/employed in the establishment with which applicant union was connected‑‑‑One registered trade union already existed in the establishment which again was locally registered, provisions of S.7(2)(b) of Industrial Relations Ordinance, 1969 were not attracted and applicant union was not required to show that its membership was not less than 1/5th of the total number of workmen employed in that establishment‑‑­Membership of the applicant union even though was presently confined to the workmen employed in Lahore and Islamabad but the scope and sphere of the operation was not restricted only to those two branches, but its membership was open to all workers employed in the whole of establishment including its Karachi offices‑‑‑In absence of any valid objection to the registration of the applicant union as industry‑wise trade union for the establishment either from the side of establishment or the existing union, no legal justification was available for refusing to accord registration to the applicant union‑‑‑Application was allowed with direction to register applicant as industry‑wise trade union of workers employed in the Establishment.

Muhammad Asghar Khadim with Nasir Mahmood Rathore for Applicant.

S. Naeem Bokhari for HSBC.

Sher Muhammad, General Secretary, HSBC Employees' Union Karachi (in person).

Zaka Ullah Khan Khalil, Deputy Registrar, NIRC.

Date of hearing: 20th May, 2001.

2001 P L C 702

[National Industrial Relations Commission]

Before Zia Mahmood Mirza, Chairman

AMJAD MAHMOOD

versus

ZONAL HEAD, UNITED BANK LIMITED, ZONAL OFFICE, JHELUM and 2 others

Case No. 4A (107) of 1998, decided on 30th November, 2000.

(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.0.15(3)‑‑-Unfair labour practice by the employer‑‑‑Petition before National Industrial Relations Commission‑‑‑Maintainability‑‑‑Petitioner was served with a charge‑sheet on certain allegations and a departmental enquiry was instituted against him wherein he was found guilty and a second show‑cause notice was issued to the petitioner to afford him another opportunity to defend his case‑‑­Petitioner was asked to appear before Competent Authority if he wanted to be heard personally, but the petitioner instead of replying to the said show­cause notice filed petition before National Industrial Relations Commission under S.22‑A(8)(g) of Industrial Relations Ordinance, 1969 alleging that he had been victimized for his trade union activities‑‑‑Petitioner had failed to give particulars specific instances of his trade union activities which could possibly have annoyed the employers or render them hostile to the petitioner to such an extent that they fabricated a false case against him‑‑‑Petitioner had made only a routine bald allegation that he was an active member of a particular union and did not allege that he was an office‑bearer of any union‑‑‑Case being not of unfair labour practice by the employer, petition by the petitioner was not maintainable.

(b) Industrial Relations Ordinance (XXRI of 1969)‑‑‑

‑‑‑‑S. 22‑A(8)(g)‑‑‑Jurisdiction of National Industrial Relations Commission‑‑‑Scope‑‑‑Jurisdiction of the Commission is attracted only to those cases, where the action complained of is motivated on account of trade union activities of an employee/workman.

Malik Mehraban for Petitioner.

S. Rais Ahmad Jafri for Respondents.

2001 P L C 13

[Supreme Court of Pakistan]

Present: Rana Bhagwan Das and Javed Iqbal, JJ

Syed ARIF RAZA RIZVI

versus

Messrs PAKISTAN INTERNATIONAL AIRLINES through

Chairman/M.D., Karachi

Civil Petition No.263‑K of 1999, decided on 3rd July, 2000.

(On appeals from the judgment, dated 11‑3‑1999 of High Court of Sindh, Karachi, passed in H. C. A. ‑No. 129 of 1997).

(a) Sindh Chief Court Rules (O.S.),‑‑‑‑

‑‑‑‑R. 159‑‑‑Original civil jurisdiction of Sindh High Court‑‑‑Matter coming directly before High Court under a law does not bring the same within the ordinary civil jurisdiction‑‑‑Such jurisdiction is confined to the trial of suit arising within the local limits of that jurisdiction.

(b) Law Reforms Ordinance (XII of 1972)‑‑‑‑

‑‑‑‑S.3(2), proviso‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Intra‑Court Appeal‑‑‑ Scope‑‑‑Proceedings assailed before High Court in exercise of Constitutional jurisdiction‑‑‑Where the law applicable to the proceedings, subject‑matter of the petition under Art.199 of the Constitution, provided for at least one appeal, or one revision, or one review to any Court, Tribunal or Authority against the original order, there would be no appeal to a Bench of two or more Judges of the High Court from the order made by a Single Judge of the same Court under Art. 199 of the Constitution.

PLD 1975 Lah. 1339; PLD 1975 Lah. 1372 and PLD 1974 Kar. 345 ref.

(c) Interpretation of statutes‑‑

‑‑‑ Proviso to section‑‑‑Function‑‑‑Proviso to section cuts down the meaning of that section as a proviso to a group of sections cuts down the meaning of that group‑‑‑Provisos are not generally intended to do more than the same.

PLD 1975 Kar. 96 ref.

(d) Law Reforms Ordinance (XII of 1972)‑‑‑‑

‑‑‑‑S.3(2), proviso‑‑‑Expression "original order"‑‑‑Object and scope‑‑­Expression "original order" used in the proviso is to distinguish the same from the appellate or revisional order, or an order passed in the exercise of review jurisdiction‑‑‑Where law applicable to the proceedings giving rise to the Constitutional petition provides for one appeal, one revision or one review against the original order, proviso to S.3(2) of Law Reforms Ordinance, 1972, is not applicable.

PLD 1975 Lah. 1339 and PLD 1984 SC 344 ref.

(e) Industrial Relations Ordinance (XXIII of 1969)‑‑‑‑

‑‑‑‑Ss.25‑A & 51‑‑‑Provisions contained in Ss.25‑A & 51 of Industrial Relations Ordinance, 1969, are not synonymous or interchangeable but have their own domain, object, scope and characteristics.

(f) Industrial dispute‑‑‑

‑‑‑‑ Foreign slip allowance‑‑‑Connotation‑‑‑Foreign slip allowance is subject to stay in some foreign country in connection with official duty and the same cannot be allowed without performing the same‑‑‑Employee performing ground duties cannot claim foreign slip allowance.

(g) Industrial Relations Ordinance (XXIII of 1969)‑‑‑‑

‑‑‑‑S.51‑‑‑Foreign slip allowance and domestic slip allowance‑‑­Determination‑‑‑Labour Court, jurisdiction of‑‑‑Scope‑‑‑Where there was a controversy pertaining to said allowances between the employer and the employee, Labour Court could not adjudicate the dispute in terms of money under the provisions of S.51, Industrial Relations Ordinance, 1969.

1993 PLC 87 ref.

(h) Industrial Relations Ordinance (XXIII of 1969)‑‑‑‑

‑‑‑‑S.51‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Foreign slip allowance and domestic slip allowance‑‑‑Determination‑‑‑Labour Court, jurisdiction of‑‑‑Petitioner was terminated from service on account of his involvement in smuggling of narcotics‑‑‑Labour Court, reinstated the petitioner in service with back benefits including the foreign slip allowance and domestic slip allowance‑‑‑Constitutional petition before the High Court was dismissed but in Intra‑Court Appeal filed by the respondent Division Bench of the High Court set aside the allowances granted to the petitioner‑‑‑Validity‑‑‑Provisions as contained in S.51 of Industrial Relations Ordinance, 1969, could have been invoked subject to the condition that there was no dispute regarding entitlement and the amount claimed should be determined one‑‑‑Amount pertaining to foreign slip allowance and domestic slip allowance had not been determined by any award or settlement and in such view of the matter the Labour Court was not competent to award those allowances under S.51 of Industrial Relations Ordinance, 1969‑‑‑Such question could not be determined by the Labour Court in view of limited powers as conferred upon it under S.51 of Industrial Relations Ordinance, 1969‑‑‑Leave to appeal was refused by Supreme Court.

1993 PLC 87 ref.

Suleman Habibulah, Advocate Supreme Court and Miss Wajahat Niaz, Advocate‑ oft‑Record (absent) for Petitioner.

Qamar Abbas, Advocate Supreme Court and K.A. Wahab, Advocate‑on‑Record for Respondents.

Date of hearing: 3rd July, 2000.

2001‑P L C 485

[Supreme Court of Pakistan]

Present: Deedar Hussain Shah and Hamid Ali Mirza, JJ

Messrs CAWASJEE & SONS

versus

BOARD OF TRUSTEES, E.O.B.I. and another

Civil Petitions Nos. 173‑K to 175‑K of 2000, decided on 17th August, 2000.

(On appeal from the judgment of the High Court of Sindh, dated 17‑2‑2000 passed in Writ Petitions Nos.2452, 2484 and 2485 of 1995).

Employees' Old‑Age Benefits Act (XIV of 1976)‑‑‑

‑‑‑‑Ss. 2‑bb & 9‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Liability of contribution‑‑‑ Determination‑‑‑Contribution of payment in respect of wages paid to Dock workers provided by Dock Labour Board‑‑‑Petitioners were in the business of stevedoring at sea port and were providing services in connection with loading and unloading of cargo‑‑‑Authorities demanded contributions in respect of wages paid to such workers engaged by the petitioners from time to time‑‑‑After having been unsuccessful before the Authorities the petitioners assailed the demand before High Court in its Constitutional jurisdiction which was dismissed‑‑‑Validity‑‑‑Where the employees fell within the definition of S.2‑bb, Employees' Old‑Age Benefits Act, 1976, only then the liability of contribution should be determined in accordance with S.9 read with other provisions of Employees' Old‑Age Benefits Act, 1976‑‑‑Persons in respect of whom contribution was demanded, had been rightly found to be employees in terms of S.2‑bb of Employees' Old‑Age Benefits Act, 1976, by the Courts below‑‑‑Mere fact that the employees in question were working on part‑time basis could not be a valid reason for excluding them from the category of employees as envisaged by S.2‑bb of the Act‑‑­High Court in dismissing the Constitutional petition had neither acted arbitrarily nor in violation of the settled principles of law‑‑‑Leave to appeal was refused.

Veera v. Kazi & Kazi Limited PLD 1990 SC 435 ref.

Lahore Race Club v. Deputy Director, Employees' Old‑Age Benefits Institution 1998 SCMR 1571 fol.

Akbar Hayat Mirza, Advocate Supreme Court for Petitioners.

S. Zaki Muhammad, Advocate Supreme Court and A.A. Siddiqui, Advocate‑on‑Record for Respondents.

Date of hearing: 17th August, 2000.

2001 P L C 533

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri, Acting C J, Ch. Muhammad Arif and Mian Muhammad Ajmal, JJ

YUSUF ALI SHAH‑‑‑Appellant

versus

QUETTA SERENA HOTEL through General Manager and 2 others‑‑‑Respondents

Civil Appeal No.703 of 1997, decided on 30th April, 2001.

(On appeal from judgment dated 3‑9‑1996 passed by the High Court of Balochistan, Quetta in C. P. No. 194 of 1996).

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

‑‑‑‑Ss. 2(i) & 12(3)‑‑‑Industrial Relations Ordinance (XXIII of 1969), S.25‑A‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑'Workman', determination of‑‑‑Grievance petition‑‑‑Maintainability‑‑‑Termination from service‑‑‑Contention of the employee was that he was posted as Assistant Manager at the time of his being proceeded against by. the employer, he was doing the clerical and manual work and was thus a 'workman' as defined in S. 2(i) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance; 1968‑‑‑Employee further contended that no opportunity was provided to him by the Trial Court, to lead evidence to show that he was doing manual and clerical work although he was posted as Assistant Manager‑‑‑Plea raised by the employee ,was that, he was covered by the definition of "workman" and was entitled to move his grievance application under S.25‑A of Industrial Relations Ordinance, 1969, by virtue of S. 12(3) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968‑‑‑Leave to appeal was granted to consider the points contended by the employee.

(b) Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑S.25‑A‑‑‑West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), Ss.2(i) & 12(3)‑‑‑Grievance petition‑‑‑Raising of new plea at the time of appeal‑‑‑Status of employee, determination of‑‑‑Management of the employer neither treated the employee as a workman/worker nor such treatment was meted out to any other employee similarly placed as the employee‑‑‑Labour Court as well as the Labour Appellate Tribunal dismissed the grievance petition and appeal respectively‑‑‑Concurrent judgments of the Courts below were assailed before High Court in Constitutional petition and the same was also dismissed‑‑‑Contention of the employee was that he did not make any statement before the Labour Court regarding non‑producing of any evidence‑‑‑Validity‑‑‑High Court was right in observing that the point which had not been raised before the forum seized of the lis in the hierarchy of Industrial Relations Ordinance, 1969, could not be allowed to be argued for the first time during Constitutional proceedings‑‑‑Nothing was amiss in the judgments rendered by the Labour Court and the Labour Appellate Tribunal respectively to justify the High Court to interfere with the same in the exercise of its Constitutional jurisdiction under Art. 199 of the Constitution.

Trustees of the Port of Karachi v. Muhammad Saleem 1994 SCMR 2213; Dost Muhammad Cotton Mills Ltd. v. Muhammad Abdul Ghani and another 1979 SCMR 304; National Bank of Pakistan v. Punjab Labour Court No.5 , Faisalabad and 2 others 1993 SCMR 672; Lever Brothers Pakistan Limited Karachi v. Mrs. Kishwar Sultana Khan 1994 PLC 610 and Syed Matloob Hassan v. Brooke Bond Pakistan Limited, Lahore 1992 SCMR 227 ref.

Muhammad Riaz Ahmed, Advocate‑on‑Record for Appellant.

Respondents: Ex parte.

Date of hearing: 30th April, 2001.

2001 P L C 583

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and Hamid Ali Mirza, JJ, ABDUL SATTAR and another

versus

SUI NORTHERN GAS PIPELINES LIMITED and others

Civil Appeals Nos, 1340 to 1342 of 1996, decide n 11th April. 2001.

(On appeal from the judgment date 4/5‑ 2‑1995 passed by Lahore High Court, Lahore in Writ Petitions Nos.8886, 5682 of 1991 and 8888 of 1990).

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

‑‑‑‑S.12(3)‑‑‑Industrial Relations Ordinance (XXIII of 1969), S.25‑A‑‑­Constitution of Pakistan (1973), Art. 185(3)‑‑‑Limitation Act (IX of 1908), S.5‑‑‑Leave to appeal was granted by Supreme Court to consider, whether the oral termination of the employees was violative of S.12(3) of Industrial and Commercial Employment (Sanding Orders) Ordinance, 1968, which expressly provided that services of a workman could be terminated only through a written order assigning explicit reasons, it was so held both by the Labour Court and Labour Appellate Tribunal but High Court had not attended to such aspect of the matter; whether there was no such classification as 'daily wagers' in S.1 of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, which enumerated various classes and categories of workmen; whether employees/petitioners were workmen within the meaning of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, and Industrial Relations Ordinance, 1969 and such employees could, therefore, agitate their grievance in Labour Court in respect of rights guaranteed under the provisions of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and whether the employees had pursued their remedy before the Special Authority/Member, National Industrial Relations Commission bona fide and as such the time consumed in those proceedings was a "sufficient cause" for condoning the delay under S.5 of Limitation Act, 1908, ‑in any case the delay having been condoned by the Labour Appellate Tribunal in its discretion, such discretion was not available to High Court to reverse that decision in exercise of extraordinary jurisdiction in Constitutional petition.

(b) Industrial Relation Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑S.2(xxviii)‑‑‑Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(i)‑‑‑'Worker' and 'workman', classification of‑‑‑Scope‑‑‑No classification is provided either in S.2(xxviii) of Industrial Relations Ordinance, 1969, or in S.2(i) of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, as to whether a daily wager can also be considered to be a worker or workman.

(c) Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑Ss.2(xxviii) & 25‑A‑‑‑Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), Ss.l(b), 2(i) & Sched.‑‑‑Grievance petition‑‑‑Daily wager‑‑‑Whether daily wager covered under definition of 'worker' and 'workman'‑‑‑Term of employment exceeded nine months‑‑­Nature of job was temporary and till the completion of project‑‑‑After completion of project the services of the employees were terminated‑‑­Grievance petition filed by the employees was accepted by Labour Appellate Tribunal but High Court in exercise of its Constitutional jurisdiction reversed the findings and dismissed the application‑‑‑Contention of the employees was that they were permanent workers in the organization and their services were not liable to be terminated on the ground that they were daily wagers‑­Validity‑‑‑Job of the employees as worker was on a specific project, on its completion their services were liable to be terminated and they could not claim themselves to be the permanent workers or workmen in terms of Sched appended to SA(b) of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, therefore, the services of the employee were rightly 'terminated‑‑‑Where nature of job against which a person was engaged, was likely to be completed within the period of nine months and in fact had completed later on after expiry of such period, such person would be temporary workman and as such would have no legitimate claim for his reinstatement in service‑‑‑Supreme Court declined to interfere with the order passed by High Court and appeal was dismissed.

Pakistan International Airlines v. Sindh Labour Court No.5 and others PLD 1980 SC 323; Muhammad Yaqoob v. The Punjab Labour Court No. 1 and 5 others 1990 SCMR 1539; Executive Engineer, Central Civil. Division, Pak. P:W.D., Quetta v. Abdul Aziz and others PLD 1996 SC 610; Izhar Ahmed Khan and another v. Punjab Labour Appellate Tribunal, Lahore and others 1999 SCMR 2557 and WAPDA v. Kanimullah and others 2000 SCMR 879 ref.

Muhammad Munir Peracha, Advocate Supreme Court and Muhammad Aslam Ch., Advocate‑on‑Record (absent) for Appellants (in all Cases).

2001 P L C 589

[Supreme Cot‑ t of Pakistan]

Present: Iftikhar Muhammad Chaudhry and Hamid Ali Mirza, JJ

BOARD OF GOVERNORS AITCHISON COLLEGE, LAHORE

Versus

PUNJAB LABOUR APPELLATE TRIBUNAL and others

Civil Appeal No‑62 of 1997, decided on 20th April, 2001.

(On appeal from judgment/order dated 17‑12‑1995 passed by Lahore High Court, Lahore in Writ Petition No.10667/1991).

(a) Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑S.25‑A‑‑‑Grievance petition‑‑‑Jurisdiction of Labour Court‑‑‑Scope‑‑‑To invoke jurisdiction of Labour Court an employee has to satisfy that he is worker or workman either under the provisions of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, or Industrial Relations Ordinance, 1969, and his grievance relates to industrial dispute.

Ahmad Sadiq v. Chief Settlement Commissioner PLD 1974 SC 368 ref.

(b) Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑S.2(f)‑‑‑Industry‑‑‑Educational institutions do not fall within the definition of "industry"‑‑‑Institutions responsible for imparting education do not fall within the definition of "industry".

AIR 1963 SC 1873 and PLD 1976 Lah. 1097 ref.

(c) Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑S.2(xxviii)‑‑‑Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(i)‑‑‑Term 'worker' or 'workman'‑‑‑Employees of educational institutions‑‑‑Status‑‑‑Educational institution is neither an industry, nor it falls within the definition of industrial establishment, therefore, its employees cannot be considered to be workers or workmen either under Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, or under the provisions of Industrial Relations Ordinance, 1969.

(d) Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑Ss. 2(xxviii) & 25‑A‑‑‑Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(i)‑‑‑Grievance petition‑‑­Maintainability‑‑‑Employee of educationed institution‑‑‑Such employee was terminated by the employer, and the grievance petition filed by the employee was dismissed by Labour Court‑‑‑Labour Appellate Tribunal accepted the appeal and the order was maintained by High Court in exercise of its Constitutional jurisdiction‑‑‑Validity‑‑‑Employee did not fall within the definition of worker or workman as defined under S. 2(xxviii) of Industrial Relations Ordinance, 1969, or under S.2(i) of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968‑‑‑Where the employee was not member engaged in an industry or industrial establishment, such employee had no entitlement to invoke the jurisdiction of Labour Court under S.25‑A of Industrial Relations Ordinance, 1969, because question of termination of his service was not relatable to an industrial dispute‑‑­Judgment passed by High Court was set aside by the Supreme Court.

AIR 1963 SC 1873; PLD 1976 Lah. 1097; 1994 SCMR 2213 and Ahmad Sadiq v. Chief Settlement Commissioner PLD 1974 SC 368 ref.

Umar Mehmud Kasuri, Advocate Supreme Court for Appellant. Respondents Nos. l and 2: Ex pane.

Nemo for Respondent No.3.

Date of hearing: 9th April, 2001.

2001 P L C 662

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri, Actg. C.J., Ch. Muhammad Arif and Mian Muhammad Ajmal, JJ

IMPLEMENTATION TRIBUNAL FOR NEWSPAPER EMPLOYEES; C.D.A., BLOCK N0.2, ISLAMABAD

versus

MATRI PUBLICATIONS LTD., HURRIYET PUBLISHERS OF DAILY "HURRIYET", HAROON HOUSE, KARACHI and others

Civil Appeals Nos.642, 643 and 644 of 1993, decided on 30th April, 2001.

(On appeal from the judgment of the High Court of Sindh, Karachi dated 11‑1‑1993 passed in Constitutional Petitions Nos.D‑938, 939 and 940 of 1993).

(a) Newspaper Employees (Conditions of Service) Act (LVIII of 1973)‑‑‑

‑‑‑‑S. 12‑A‑‑‑Industrial Relations Ordinance (XXIII of 1969), Ss‑55 & 51(1)‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Leave to appeal was granted by Supreme Court to consider; whether S.12‑A of Newspaper Employees (Conditions of Service) Act, 1973, having clearly spelt out the purpose of constitution of Tribunal as implementation of the decision of Wage Board constituted under the Act, therefore, if the Tribunal had passed the order which only secured the implementation of the Award of the Fourth Wage Board the order could not be defeated on a narrow interpretation of S.55 or 51(1) of Industrial Relations Ordinance, 1969.

(b) Newspaper Employees (Conditions of Service) Act. (LVM of 1973)‑‑‑

‑‑‑‑Ss.9(1), 10, 11, 12, 12‑A & 13‑‑‑Fixing of rates of wages‑‑‑Constitution of Wage Board‑‑‑Object‑‑‑Implementation Tribunal‑‑‑Purpose‑‑‑Provisions of Ss.9, 10, 11, 12, 12‑A & 13 of Newspaper Employees (Conditions of Service) Act, 1973, are enacted to facilitate constitution of Wage Board for fixing rates of wages in respect of newspaper employees in accordance with law and to provide effective implementation of decision, of Wage Board by Implementation Tribunal.

(c) Newspaper Employees (Conditions of Service) Act (LV17I of 1973)‑‑‑

‑‑‑‑Ss. 9, 11 & 15‑‑‑Fixing rates of wages‑‑‑Publication of decision of Wage Board‑‑‑Effect‑‑‑Where the decision was published in notification, the same was binding on all the employers in relation to newspaper establishments and every newspaper employee was entitled to the wages, in no case, less than the wages fixed, in the decision under S.15 of Newspaper Employees (Conditions of Service) Act, 1973, (d) Newspaper Employees (Conditions of Service) Act (LVIII of 1973)‑‑‑

‑‑‑‑S.13(4)‑‑‑Industrial Relations Ordinance (XXIII of 1969), S.51(1)‑‑­Decision of Wage Board‑‑‑Implementation‑‑‑Recovery of outstanding dues of employees‑‑‑Recovery as arrears of land revenue‑‑‑Powers of Implementation Tribunal‑‑‑Scope‑‑‑Tribunal to implement the decision of the Board under S.13(4) of Newspaper Employees (Conditions of Service) Act, 1973, can exercise the same powers as that of Labour Court, to issue directions under S.51(1) of Industrial Relations Ordinance, 1969, which provides that any money due from an employer under a settlement or award or decision of the Arbitrator be recovered, upon the application of the person entitled to the money, by Labour Court or Tribunal as arrears of land revenue.

(e) Newspaper Employees' (Conditions of Service) Act (LVIII of 1973)‑‑‑

‑‑‑‑Ss. 11, 12‑A. 13 & 15‑‑‑Industrial Relations Ordinance (XXIII of 1969), S.51(1)‑‑‑Decision of Wage Board‑‑‑Determination of rates of wages‑‑­Implementation Tribunal, jurisdiction of‑‑‑Tribunal on application filed by employees of newspaper, directed the management of the newspaper to make payments to its employees as fixed by Fourth Wage Award‑‑‑Order of the Tribunal was assailed before High Court in Constitutional petition and the same was allowed on the ground that without determining the amount to be recovered, the Tribunal had wrongly assumed powers under S.51(1) of Industrial Relations Ordinance, 1969‑‑‑Validity‑‑‑Implementation Tribunal was constituted to implement the decision of Wage. Board which had determined the rates of wages in respect of newspapers' employees‑‑‑Where money due from the employer had been determined in the award/decision of the Wage Board, therefore, no further determination was required and the Tribunal was competent to issue direction for the recovery of the money due against the employers under S.51(1) of Industrial Relations Ordinance, 1969‑‑‑High Court was not right in observing that the amount in respect of which the proceedings were initiated, was not determined‑‑‑Decision of Wage Board duly notified was binding on the employers and was within the competence and jurisdiction of Tribunal to implement the same‑‑‑Judgment passed by High Court was set aside, and order of Implementation Tribunal was restored.

Mansoor Ahmad, Deputy Attorney‑General for Appellant. Respondents: Ex parte.

Date of hearing: 30th April, 2001.

2001 P L C 680

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri, Actg. C. J., Ch. Muhammad Arif and.Mian Muhammad Ajmal, JJ

Messrs DAWOOD COTTON MILLS LTD. and others

versus

GOVERNMENT OF PAKISTAN through Secretary, Ministry of Labour, Pakistan Secretariat, Islamabad and others

Civil Appeals Nos. 1122 to 1124 of 1995, decided on 23rd May, 2001.

(On appeal from the judgment dated 31‑8‑1994 passed by the High

Court of Sindh, Karachi in Constitutional Petitions Nos.D‑1748, D‑1837 and D‑1838 of 1993).

(a) West Pakistan Minimum Wages for Unskilled Workers Ordinance (XX of 1969)‑‑‑

‑‑‑‑S.3 [as amended by West Pakistan Minimum Wages for Unskilled Workers (Amendment) Act (IX of 1993)]‑‑Demand by Old‑Age Benefit Institution to make contribution for the workers as contemplated on the basis of enhanced wag. w.e.f. 1‑7‑1992 under West Pakistan Minimum Wages for Unskilled Workers (Amendment) Act, 1993 enacted on 10‑4‑1993‑‑Validity‑‑‑When the intention of tire Legislature was clear in relation to giving retrospective operation to an enactment then tile Courts were bound to give effect to the same.

Kohinoor Chemical Co. Ltd. and another v. Sindh Employees' Social Security Institution and another PLD 1977 SC 197; Muhammad Nawaz Sharif v. President of Pakistan PLD 1993 SC 473; Province of the Punjab v. Amin Jan Naeem and 4 others PLD 1994 SC 141; Adnan Afzal v. Capt. Sher Afaal PLD 1969 SC 18'7; The Collector, Customs and Central Excise, Peshawar and others v. Messrs Rais Khan Limited through Muhammad Hashim 1996 SCMR 83; Annoor Textile Mills Ltd. and another v.‑ Federation of Pakistan and another PLD 1994 SC 558; Muhammad Akhtar Hussain and 4 others v. Government of West Pakistan through The Chief Secretary to Government of West Pakistani, Lahore and 454 others PLD 1970 SC 146; Syed Phul Shah v. Muhammad Hussain and 10 others PLD 1951 SC 1051; I.A. Sharwani and others v. Government of Pakistan through Secretary, Finance Division, Islamabad and others 1991 SCMR 1041; Nadonal Embroidery Mills Ltd. and others v. Punjab Employees' Social Security Institution 1993 SCMR 1201 and Messrs Volkervam (Pakistan) Ltd. v. Sindh Employees' Social Security institution 1991 SCMR 2361.

(b) Interpretation of statutes‑‑‑

‑‑‑‑Retrospective operation of a provision of law‑‑‑When the intention of the Legislature was clear in relation to giving retrospective operation to an enactment then the Courts were bound to give effect to the same.

Syed Phul Shah v. Muhammad Hussain and 10 others PLD 1991 SC 1051; I.A. Sharwani and others v. Government of Pakistan through Secretary; Finance Division, Islamabad and others 1991 SCMR 1041; National Embroidery Mills Ltd. and others v. Punjab Employees' Social Security Institution 1993 SCMR 1201 and Messrs Volkervam (Pakistan) Ltd. v. Sindh Employees' Social Security Institution 1991 SCMR 236? ref.

Akhlaq Ahmad Siddiqui, Advocate Supreme Court/Advocate‑on­Record for Appellant (in C.A.No.1122 of 1995).

Nemo for Appellants (in C.As. Nos. 1123 and 1124 of 1995).

Khalid Habibullah, Advocate Supreme Court and Ali Akbar, Advocate‑on‑Record (absent) for Respondent No.2 (in all Appeals).

Respondents Nos. 1, 3 and 4: Ex parte (in all C.As).

Dates of hearing: 22nd and 23rd May, 2001.

2001 P L C 689

[Supreme Court of Pakistan]

Present: Syed Deedar Hussain Shah and Hamid Ali Mirza, JJ

SABIR MEHMUD BHATTI

versus

GENERAL MANAGER, PEARL CONTINENTAL HOTEL and another

Civil Petition‑ No.252‑K of 2000, decided on 5th September, 2000.

(On appeal from the judgment of the High Court of Sindh, dated 3‑4‑2000 passed in C.P.No.D‑1228 of 1997).

Industrial Relations Ordinance (XXIII of 1969)‑‑‑‑

‑‑‑‑S.25‑A‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Grievance petition‑‑‑Maintainability‑‑‑Dismissal from service‑‑‑Labour Court, jurisdiction of‑‑‑Concurrent findings of fact by the Courts below‑‑‑Petitioner was working on post of Inventory Controller and as Assistant Purchase Manager and was responsible. for purchase of requirements of the hotel‑‑­Labour Appellate Tribunal as well as the High Court concluded that the petitioner was not a workman and his petition under S.25‑A of Industrial Relations Ordinance, 1969, filed before the Labour Court was not maintainable‑‑‑Validity‑‑‑No misreading or non‑reading of the evidence by the Appellate Tribunal as well as the High Court was found and there was no jurisdictional error in the judgments‑‑‑Supreme Court declined to interfere with the judgment passed by High Court‑‑‑Leave to appeal was refused.

Obaidur Rehman, Advocate Supreme Court and Ahmadullah Farooqui, Advocate‑on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing: 5th September, 2000.

2001 P L C 692

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui and Abdul Hameed Dogar, JJ

MUHAMMAD SAFDAR

versus

GOVERNMENT OF SINDH and others

Civil Petition No.604 of 1999, decided on 24th July, 2000.

(a) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 25‑‑‑Equal protection of law‑‑‑Concept‑‑‑Meaning‑‑‑Reasonable classification‑‑‑Scope‑‑‑Principles for application of equality enumerated.

Following are the principles for application of equality clause of the Constitution:

(1) That equal protection of law does not envisage that every citizen is to be treated alike in all circumstances, but it contemplates that persons similarly situated or similarly placed are to be treated alike;

(2) that reasonable classification is permissible but it must be founded on reasonable distinction or reasonable basis;

(3) that different laws can validly be enacted for different sexes, persons in different age groups, persons having different financial standings, and persons accused of heinous crimes;

(4) that no standard of universal application to test reasonableness of a classification can be laid down as what may be reasonable classification in a particular set of circumstances, may be unreasonable in the other set of circumstances;

(5) that a law ,applying to one person or one class of persons may be Constitutionally valid if there is sufficient basis or reason for it, but a classification which is arbitrary and not founded on any rational basis is no classification as to warrant its exclusion from the mischief of Article 25;

(6) that equal protection of law means, that all persons equally placed be treated alike both in privileges conferred and liabilities imposed;

(7) that in order to make a classification reasonable it should be based:‑‑

(a) On intelligible differentia which distinguished persons or things that are grouped together from those who have been left out;

(b) that the differentia must have rational nexus to the object sought to be achieved by such classification.

Government T` Sindh through Additional Chief Secretary v. Azizullah Memon and 16 ethers PLD 1993 SC 341 and Nisar Ahmad and others v. Federation of Pakistan and others 1999 SCMR 1338 ref.

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

‑‑‑‑S.8‑‑‑Industrial Relations Ordinance (XXIII of 1969), S.25‑A‑‑-Constitution of Pakistan (1973), Arts.25 & 185(3)‑‑‑Grievance petition ‑‑­ Maintainability‑‑‑Reasonable classification, principle of ‑‑‑Applicability‑‑­ Exemption from provisions of the Standing Orders‑‑‑Provincial Government, jurisdiction of‑‑‑Pakistan Security Printing Corporation was exempted by the Government through Notification‑‑‑Petitioner was employee of the Corporation and was served with show‑cause notice‑‑‑Such notice was assailed by the petitioner before Labour Court in grievance petition‑-‑Labour Court and Labour Appellate Tribunal dismissed the petition as well as appeal‑‑‑Validity‑‑‑Provincial Government had unlimited powers under the provisions of S.8 of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, of granting exemption from all or any of the provisions of the Standing Orders Ordinance by issuing Notification in the official Gazette‑‑‑Where the Corporation was dealing with sovereign functions ‑of State and was engaged in printing of currency notes, Government Bonds, Securities, stamps and other valuable material which were necessary for the economic stability‑‑‑In order to see that the Corporation ran smoothly and uninterrupted, the Legislature, in its wisdom, authorised the Government to exempt from any of the provisions of the Standing Orders Ordinance‑‑‑No reason was shown to the effect that S.8 of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 was violative of Art.25 of the Constitution‑‑‑Reasonable classification was always permissible under Art.25 of the Constitution‑‑­Main grievance of the petitioner in .the present case was not against S.8 of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, but it was against the Notification creating such exemption which was withdrawn‑‑‑Leave to appeal was refused.

Syed Shahenshah Hussain, Advocate Supreme Court and A. Aziz Khan, Advocate‑on‑Record for Petitioner.

N.C. Motiani, Advocate‑on‑Record for Respondents.

Date of hearing: 24th July, 2000.

2001 P L C 721

[Supreme Court of Pakistan]

Present: Munir A. Sheikh and Humid Ali Mirza, JJ

MUSLIM COMMERCIAL BANK LIMITED and others

versus

ABDUL JABBAR and others

Civil Petitions Nos.226‑L and 446‑L of 2001, decided on 18th May, 2001.

(On appeal from the judgment dated 15‑12‑2000 of the Lahore High Court, Lahore passed in W.P. No. 6206/89).

(a) Discretion‑‑‑

‑‑‑‑ Arbitrary exercise of discretion‑‑‑Remedy‑‑‑Exercise of discretion in any matter within its competence by a Court or Tribunal was always subject to correction by appellate forum available against the orders of the Court and if in appeal, it was found that the discretion had been exercised either arbitrarily, whimsically or on consideration of extraneous matters, the same could be interfered with.

(b) Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑S.25‑A‑‑‑Limitation Act (IX of 1908), Ss.5 & 14‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Industrial dispute ‑‑‑Condonation of delay‑‑­Mistake of Court‑‑‑Respondent was a Bank employee who was dismissed from service‑‑‑Order of dismissal was assailed in civil suit and the same was dismissed by Trial Court‑‑‑During the pendency of appeal before Appellate Court, judgment was pronounced by Supreme Court whereby right to approach Labour Court was given to the Bank employees‑‑‑Appeal was withdrawn and grievance petition was filed‑‑‑Labour Court condoned the delay and reinstated the respondent but Labour Appellate Tribunal reversed the finding of Labour Court and dismissal order was maintained‑‑‑High Court in exercise of jurisdiction under Art. 199 of the Constitution allowed the petition and restored the order passed by Labour Court‑‑‑Contention of the petitioner was that the respondent's grievance petition was time‑barred as the judgment was passed by Supreme Court in April, 1987, whereas the appeal was withdrawn on 12‑11‑1987‑‑‑Validity‑‑‑Lower Appellate Court before whom the judgment of Supreme Court was produced was obliged under duty to give effect to it but the same did not pass any order to that effect, delay in the case was also attributable to the Appellate Court‑‑‑Where order of dismissal of the respondent from service was found to have been passed nor by the competent person, it was a fit case for condonation of delay‑‑‑Labour Court did not commit any illegality nor acted arbitrarily or whimsically and the same was passed on relevant considerations ‑‑‑Supreme Court declined to interfere with the order passed by Labour Court and upheld by High Court‑‑‑Leave to appeal was refused.

Muslim Commercial Bank Ltd. v. Mahmood Ahinad Butt and others 1997 PLC 550; The Vice‑President (Adorn.), National Bank of Pakistan and others v. Basharat Ali and others 1996 SCMR 201 and Attaullah Sheikh v. WAPDA and others 2001 SCMR 269 ref.

(c) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art.185(3)‑‑‑Petition for leave to appeal‑‑‑New plea‑‑‑Petitioner produced a loose paper before Supreme Court in support of his plea‑‑‑Validity‑‑‑Where no such document was filed before the Courts, below, the inference would be that it was not in existence and available then‑‑‑Supreme Court did not entertain the plea at such belated stage.

(d) Industrial Relations Ordinance (XXIII of 1969)‑‑-

‑‑‑‑S.25‑A‑‑‑Grievance petition‑‑‑Reinstatement in service‑‑‑Initiation of departmental proceedings‑‑‑Acquittal from criminal charge‑‑‑Employee was a Cashier and dismissed from service on the charge of defalcation‑‑‑Criminal case against the employee was not proved and he was acquitted in the same‑‑­Labour Court allowed the grievance petition and reinstated the employee in service but allowed the Authorities to initiate departmental proceedings in case sufficient material was available against him‑‑‑Validity‑‑‑Employee might have been acquitted from criminal charge of actually sharing the mens rea but being Cashier he might be found to be negligent or not vigilant in discharge of his duties on account bf which the happening of the incident could not be prevented or avoided and for which the employee might be proceeded against through disciplinary proceedings‑‑‑Observation made by Labour Court did not suffer from any illegality in circumstances.

Raja Muhammad Akram, Advocate Supreme Court and M.A. Zaidi, Advocate‑on‑Record for Petitioners (in C.P. No. 226‑L of 2001).

S.M. Tayyab, Senior Advocate Supreme Court for Respondents (in C.P. No. 226‑L of 2001).

S.M. Tayyab, Senior Advocate Supreme Court for Petitioner (in C.P. No. 446‑L of 2001).

Date of hearing: 18th May, 2001.

2001 P L C 737

[Supreme Court ref Pakistan]

Present: Rana Bhagwan Das and Javed Iqbal, JJ

Messrs SHAHEEN AIRPORT SERVICES

versus

NAFEES‑UL‑HASSAN SIDDIQUI and another

Civil Petition No.328‑K of 2000, decided on 28th July, 20001.

(On appeal from the judgment of the High Court of Sindh, Karachi dated 27‑3‑2000 passed in Constitutional Petition No.229 of 1998).

(a) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art.185‑‑‑Appeal to Supreme Court‑‑‑Raising of new plea‑‑Scope‑‑New plea cannot be allowed to be raised before Supreme Court.

[Case‑law referred].

(b) Industrial Relations Ordinance (XXIII of 1969)---

‑‑‑‑Ss.2(xxviii) & 25‑A‑‑‑Constitution of Pakistan (1973), Art:185 (3)‑‑­"Workman"‑‑‑Definition‑‑‑Dismissal from service‑‑‑Grievance petition‑‑­Employee whether falling within the definition of 'workman'‑‑­Determination‑‑‑Employee was dismissed by the employer on the ground of inefficiency and poor performance‑‑‑Labour Court dismissed the grievance petition of the employee, considering him not falling within the definition of 'workman'‑‑‑Appeal before Labour Appellate Tribunal was allowed and the order was upheld by the High Court‑‑‑Contention of the employer was that the employee was not a 'workman'‑‑‑Validity‑‑‑Job description given by the employee was never challenged and the same had made it clear that he was performing manual work‑‑‑Labour Appellate Tribunal and High Court had correctly determined that the employee was not termed as Manager or Supervisor taking him out from the definition of 'workman'‑‑‑No illegality or irregularity had been committed by the forums below and the order passed by High Court was free from any legal infirmity‑‑‑Supreme Court declined to interfere with the order of High Court‑‑‑Leave to appeal was refused.

PLD 1986 SC 103; 1998 SCMR 644; Abdul Razaq v. Ihsan Sons Ltd. 1992 SCMR 505 and Rehmat Ali v. The Security Paper Mills Ltd. and another PLD 1982 Kar. 913 ref.

(c) Constitution of Pakistan (1973)‑--

‑‑‑‑Art. 185‑‑‑Appeal to Supreme Court‑‑‑Scope‑‑‑Findings of fact, review of‑‑‑Substituting findings by Supreme, Court in place of those arrived at by lower forums‑‑‑Scope‑‑‑Supreme Court would not review findings of fact reached by inferior Court or Tribunal, even if the same were erroneous‑‑­Where the Legislature did not choose to confer a right of appeal against the decision, the review by Supreme Court would be defeating its purpose and policy‑‑‑Supreme Court would not re‑hear the case on evidence and substitute its own findings, unless exercise of power by Tribunal was in violation of some provisions of law or in excess of jurisdiction or the same suffered from failure to exercise jurisdiction.

PLD 1981 SC 522 and 1982 SCMR 684 ref.

Qamarul Islam Abbas, Advocate Supreme Court and K.A. Wahab Advocate‑on‑Record for Petitioners.

Respondent No. 1 in person:

Date of hearing; 28th July, 2000.