PLC 2002 Judgments

2002 P L C 1

[Karachi High Court]

Before Saiyed Saeed Ashhad, C. J. and Muhammad Afzal Soomro, JJ

GRANULARS (PVT.) LIMITED

versus

MUHAMMAD AFZAL and others

Constitutional Petition No.D‑1720 of 2000, decided on 2nd May, 2001.

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

‑‑‑‑S.2(i)‑‑‑"Workman" and "officer"‑‑‑Distinction‑‑‑Test‑‑‑Test for determining whether an employee is a workman or an officer, is not the designation or the post held by such an employee but the nature of work which is being performed by him or the salary/emoluments‑‑‑Employee may be holding a post, which from its designation appears to be a supervisory or managerial post but if the employee mainly performs manual or clerical work then such an employee falls within the definition of a workman‑‑‑If however, an employee does not hold a post, the designation of which suggests it to be a supervisory or managerial post but the incumbent thereof mainly performs supervisory and managerial functions then such incumbent is not a workman.

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

‑‑‑‑Ss. 2(i) & 7‑‑‑Status of employee‑‑‑Service when not to be governed by labour laws‑‑‑Effect‑‑‑Appointment letter nowhere stated that the service of the employee was to be governed by the labour laws which was a necessary requirement in respect of an appointment letter issued to a workman‑‑­Effect‑‑‑Employer was required to specifically state that the service would be governed by the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, and other laws applicable to him.

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

‑‑‑‑S.Os. 12(5) & 15‑‑‑Employee a "workman" or an "officer"‑‑­Determination‑‑‑Conflict in S.0.12(5) of West Pakistan Industrial Commercial Employment (Standing Orders) Ordinance, 1968, and appointment letter‑‑‑Appointment letter accepted by the employee contained a clause whereby the employee could be dismissed from service in a manner prescribed in the clause‑‑‑Effect‑‑‑No permanent or temporary workman under the provisions of S.0.12(5) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 could be terminated on the ground of misconduct, which definition included various allegations referred to in the clause stated in the appointment letter, otherwise, than in the manner prescribed in S.0.15 of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968‑‑‑By signing the appointment letter without raising any objection to the contents of the clause, the employee had denied himself to be a workman‑‑­Once the status had been denied, it was not open to the employee to claim that he was a workman and carried on clerical/manual work.

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

‑‑‑‑Ss. 2(i) & 3‑‑‑Status of employee‑‑‑Determination‑‑‑Non‑payment of overtime‑‑‑Failure to make any complaint for non‑payment of overtime‑‑­Effect‑‑‑Non‑payment of overtime to any workman by the employer would amount to violation of the statutory provisions and would render him liable for action‑‑‑Where there was nothing on record that the employee had ever made any complaint to the concerned. Authorities for non‑payment of the overtime for working after duty hours as well as on closed holidays, the same suggested that the employee was aware of his status in the establishment which was not of a workman.

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

‑‑‑‑Ss. 2(i) & 8‑‑‑Status of employee‑‑‑Determination‑‑‑Leave‑‑‑Various kinds of leaves allowed to the employee in the appointment letter were not in conformity with the various kinds of leaves available to a workman under S.8 of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968‑‑‑Effect‑‑‑Where the employee accepted the entitlement of leaves as per the appointment letter, such factor would contribute to the circumstances of the employee not being a workman.

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

‑‑‑‑Ss. 2(xviii) & 25‑A‑‑‑Grievance petition‑‑‑Workman‑‑‑Onus to prove‑‑­When a person claims himself to be a workman and invokes jurisdiction of Labour Court under S.25‑A of the Industrial Relations Ordinance, 1969, for redress of any of his grievance, burden of proving that he is a workman/worker lies heavily on him.

Managing Director, Shahi Bottlers (Pvt.) Limited v. The Punjab Labour Appellate Tribunal, Lahore and 2 others 1993 SCMR 488 ref.

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

‑‑‑‑Ss. 2(xviii) & 25‑A‑‑‑Grievance petition‑‑‑Workman‑‑‑Onus to prove‑‑­Objection raised by the employee was that the employer had failed to prove that the employee was not a workman‑‑‑Validity‑‑‑Where no evidence was led by the employee to prove that he was a workman, employer was not under any obligation to produce evidence to establish that the employee was not a workman.

Rana Mukhtar Ahmed v. Punjab Labour Appellate Tribunal and 2 others PLD 1992 SC 118 ref.

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

‑‑‑‑S. 2(xviii)‑‑‑West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(i)‑‑‑'Workman'‑‑‑Proof‑‑­Where employee who performed some clerical or manual work ancillary or incidental to or in addition to the supervisory and managerial duties performed by him he would not fall within the definition of a "workman".

Managing Director, Shahi Bottlers (Pvt.) Limited v. The Punjab Labour Appellate Tribunal, Lahore and 2 others 1993 SCMR 488; Syed Matloob Hassan v. Brooke Bond Pakistan Limited, Lahore 1992 SCMR 227; Abdul Razzaq v. Messrs Ihsan Sons Limited and 2 others 1992 SCMR 505 and Pakistan Engineering Co. Ltd. v. Fazal Beg and others 1992 SCMR 2166 ref.

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

‑‑‑‑S. 2(xviii)‑‑‑West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(i)‑‑‑'Workman'‑‑Proof‑‑­Employee performing duties relating to income tax, wealth tax and social security‑‑‑Whether such employee was workman‑‑‑Duties performed by the employee involved application of mind, knowledge of statutes relating to income‑tax, wealth tax and social security which was more or less intellectual work and also involved decision making‑‑‑Such employee on account of the duties performed by him in the establishment could not be said to be a "workman"

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

‑‑‑‑S.25‑A‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Industrial dispute‑‑‑Concurrent findings of facts by the Courts below‑‑‑Grievance petition filed by the employee was allowed by Labour Court and he was reinstated in service‑‑‑Judgment passed by the Labour Court was maintained by the Labour Appellate Tribunal‑‑‑Plea raised by the employer was that the employee was not a workman‑‑‑Validity‑‑‑Evidence adduced by the employee was not at all satisfactory, sufficient and reliable in establishing him to be a workman and both the forum misread and misconstrued the evidence on record in holding the employee to be a workman‑‑‑Both the forums had erred in allowing his grievance application under .S.25‑A of the Industrial Relations Ordinance, 1969, as the same ought to have been dismissed on the ground that the employee was not a "workman" and could not invoke the jurisdiction of the Labour Court for enforcement of the provisions of S.12 of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968‑‑‑High Court in exercise of Constitutional jurisdiction set aside the orders/decisions of the two forums and the grievance application fled by the employee under S.25‑A of the Industrial Relations Ordinance, 1969, was dismissed in circumstances.

Ganga R. Madhari v. Standard Bank Ltd. and others 1985 SCMR 1511; Distribution Officer, Hoechst Pharmceuticals Pakistan (Pvt.) Ltd. v. Punjab Labour Appellate Tribunal and 2 others 1993 SCMR 1282 and Muhammad Sadiq v. Punjab Labour Court No. l and another PLD 1988 SC

Qazi Faez Isa for Petitioner.

Ch. Rasheed Ahmed for Respondent.

Dates of hearing: 29th and 30th March, 2001.

2002 P L C 80

[Karachi High Court]

Bejore Zahid Kurban Alvi and

S. Ali Aslam Jafri, JJ

SUI SOUTHERN GAS CO. LTD, through Chief Manager (I.R.)

versus

MEMBER, NATIONAL INDUSTRIAL RELATIONS COMMISSION and another Constitutional petition No.620 of 1999, decided on 5th May, 2001.

Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑S. 22‑A(8)(g)‑‑‑West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O. 15(3)(a)‑‑‑Service Tribunals Act (LXX of 1973), S.2‑A‑‑‑Constitution of Pakistan (1973), Art. 199‑‑­Constitutionan petition‑‑‑Proceedings on ground of misconduct‑‑­Application before National Industrial Relations Commission‑‑­Maintainability‑‑‑Applicant who was proceeded against on certain acts of misconduct, had filed application before National Industrial Relations Commission against. his grievance and the Commission issued stay order in favour of the applicant‑‑‑Operation of S.2‑A, Service Tribunals Act, 1973 was retrospective in nature and being a law relating to procedure as such proceedings pending before any other forum other than Federal Service Tribunal in respect of departmental order made before insertion of S.2‑A could no longer continue and only remedy was to approach Service Tribunal‑‑‑Applicant, though was a worker, but after insertion of S.2‑A in Service Tribunals Act, 1973, the remedy, if any, therefore, lay before Service Tribunal and not before National Industrial Relations Commission‑‑‑Order passed by the Commission was set aside, in circumstances.

Syed Aftab Ahmed and others v. K.E.S.C. and others 1999 SCMR 197 and Gulzar Hussain v. Sui Northern Gas Pipelines Ltd 2000 SCMR 959 ref.

Mahtnood Abdul Ghani for Appellant.

S. Zaki Muhammad; Dy. A.‑G. for Respondent No.2 (repeatedly called absent).

Date of hearing: 4th May, 2001.

2002 P L C 87

[Karachi High Court]

Before Saiyed Saeed Ashhad, C. J. and Wahid Bux Brohi, J

SEARLE PAKISTAN LIMITED through Deputy Director

Versus

FULL BENCH, NATIONAL INDUSTRIAL RELATIONS COMMISSION, ISLAMABAD and 2 others

Constitutional Petition No. D‑501 of 1999, decided on 22nd March, 2001.

Industrial Relations Ordinance (XXIII of 1969)‑-‑

‑‑‑‑Ss: 15 & 22‑A(8)(g)‑‑‑West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O. 15(3)(e)‑‑­Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Unfair Labour practice by the employer‑‑‑Application against‑‑‑Domestic inquiry/proceedings against which the employee had filed application under S.22‑A(8)(g), Industrial Relations Ordinance, 1969 was to be initiated for his continuous unauthorised absence for more than ten days‑‑‑Employer in initiating proceedings against the employer on the basis of the inquiry report submitted by the Inquiry Officer, was not guilty of committing unfair labour practice as defined in S.15 of Industrial Relations Ordinance, 1969‑‑­Exercise of jurisdiction by National Industrial Relations Commission under S.22‑A(8)(g) of Industrial Relations Ordinance, 1969 was beyond the scope of its jurisdiction‑‑‑Orders passed by the Commission being in illegal exercise of its jurisdiction, could not be sustained and were liable to be set aside.

Mahmood Abdul Ghani for Petitioner.

M.A.K. Azmati for Respondent.

Date of hearing: 16th January, 2001.

2002 P L C 124

[Karachi High Court]

Before Muhammad Moosa K. Leghari, J

MUSLIM COMMERCIAL BANK LTD., I.I. CHUNDRIGAR ROAD, KARACHI

and another

Versus

MUHAMMAD SHAFI

Civil Revision Application No. 54 of 1999, decided on 14th December, 2001.

(a) Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑Ss. 42 & 54‑‑‑Civil Procedure Code (V of 1908), O.VII, R.11‑‑­Dismissal of an employee from contractual employment with a private organisation‑‑‑Suit for declaration and mandatory injunction ‑‑‑Competency‑‑­Rejection of plaint‑‑‑Plaintiff who was employed as a Cashier with defendant‑Bank was dismissed from service after charge‑sheeting him and holding inquiry against him on charge of misappropriation‑‑‑Plaintiff challenged order of his dismissal from service by tiling grievance application before the Labour Court which was dismissed holding that charge of misappropriation had been proved against him and that he not being a workman, was not entitled to maintain grievance petition‑‑‑Labour Appellate Tribunal upheld findings of Labour Court which were also upheld by the High Court‑‑‑Plaintiff, after dismissal of grievance petition up to High Court, had filed suit for declaration and mandatory injunction before Civil Court‑‑‑Trial Court rejected plaint under O.VII, R.11, C.P.C. holding that suit was barred by law, but Appellate Court reversed findings of the Trial Court which order was challenged in revision by petitioner/defendant‑‑­Validity ‑‑‑Not every form of declaration could be sought by a person under S.42 of Specific Relief Act, 1877 but only such declaration Could be asked which related to the entitlement of the plaintiff to any legal character or to any right as to property‑‑Declaration under S.42 of Specific Relief Act was not available to contractual employment inasmuch as damages' would be an adequate remedy for illegal or .unlawful termination of service by the employer‑‑‑Employee of a private organization would not possess any legal character/status under S.42, Specific Relief Act, 1877‑‑‑Illegality in dismissing/terminating the services of a private employee was of no consequence and would not provide a dismissed employee the right to seek reinstatement in service‑‑‑Plaintiff, in circumstances, has no legal character/status or entitlement to seek a relief of declaration under S.42 of Specific Relief Act, 1877‑‑‑Suit otherwise being barred by time was liable to be dismissed on that ground also.

1998 SCMR 68; 1994 SCMR 2232; 1972 PLC 190; PLD 1993 Lah 281; 1983 PLC 1284; 1977 PLC 6; 1994 MLD 207; 1992 CLC 1122; PLD 1982 Kar. 313; 1997 PLC (C.S.) 1014; R.T.H. Janjua v. National Shipping Corporation PLD 1974 SC 146; Anwar Hussain v. Agricultural Development Bank of Pakistan and others PLD 1984 SC 194 and Aurangzeb v. Messrs Gool Bano Dr. Burjer Ankalseria and others 2001 SCMR 909 ref.

(b) Industrial dispute‑‑‑

‑‑‑‑ Relationship of master and servant‑‑‑Undesirable servants could not be trusted upon an unwilling master.

Muhammad Umar Malik v. The Muslim Commercial Bank Ltd. and 2 others 1995 SCMR 453 ref.

(c) Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S. 42‑‑‑Limitation Act (IX of 1908), S.14 & Art. 120‑‑‑Suit for declaration‑‑‑Limitation‑‑‑Delay, condonation of‑‑‑Limitation for filing suit for declaration as provided under Art. 120 of Limitation Act, 1908 was six years from the date of right to sue, suit which was filed by the applicant after lapse of more than six years from dismissal of his service, was barred by time‑‑‑Plaintiff having himself chosen to prosecute his case even in Constitutional jurisdiction of the High Court after exhausting the remedies available under the law, the time spent by him in wrong forums could not be allowed to be condoned in filing the suit.

(d) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S. VII, R.11‑‑‑Rejection of plaint‑‑‑Normally the statement itself in the plaint or the documents on which it was based were to be taken into consideration while rejecting the plaint but O.VII. R.11; C.P.C. was not exhaustive of the situations in which the plaint could be rejected or a suit could be dismissed summarily‑‑‑Not a hard and fast rule that before rejection of plaint, evidence must be recorded in each and every case:

Bermah Eastern Ltd. v. Employees Union PLD 1967 Dacca 190; Muhammad Akhtar v. Abdul Hadi 1981 SCMR 878; Nazeer Ahmad v. Ghulam Mehdi 1988 SCNIR 824 and Shahnaz Begum v. Zulaikha Bibi 1990 CLC 1526 ref.

Shahid Anwar Bajwa for Applicants.

A.M. Mubeen Khan for Respondent.

Date of hearing: 28th November, 2001.

2002 P L C 133

[Karachi High Court]

Before Saiyed Saeed Ashhad, C.J. and Muhammad Moosa K. Leghari, J

HAIDER ZAMAN

Versus

INDUSTRIAL CLOTHINGS (PVT.) LTD. INDUSTRIAL AREA, LANDHI, KARACHI and Z others

Constitutional Petition No. D‑860 of 1997 and Miscellaneous Application No. 1571 of 1998, decided on 30th March, 2001.

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

‑‑‑‑S.Os. 1(4), (e) & 12‑‑‑Temporary workman‑‑‑Termination of service‑‑­Validity‑‑‑Services of a temporary workman could be dispensed with without assigning any reason when it was found that either the work for which he was employed had been completed or that the post for which he was employed was no ‑longer required to be continued‑‑‑Where a person was employed temporarily for a work which was not of permanent nature, he could not become permanent even if he had completed the period of nine months due to work lasting for a longer period than expected.

Haq Nawaz Baloch v. Chairman, Sindh Labour Appellate Tribunal and 2 others 1992 PLC 297; Pakistan International Airlines v. Sindh Labour Court No.5 and others PLD 1980 SC 323 and Muhammad Yaqoob v. The Punjab Labour Court No.1 and 5 others 1990 SCMR 1539 ref.

Nemo for Applicant.

Mehmood Abdul Ghani for Respondent No. 1.

2002 P L C 145

[Karachi High Court]

Before S. Ahmed Sarwana and M. Mujeebullah Siddiqui, JJ

MUSLIM COMMERCIAL BANK LTD.

versus

REGISTRAR, INDUSTRY-WISE TRADE UNION and others

Constitutional Petition No. D‑725 of 1992; decided on 27th August, 2001.

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

‑‑‑Ss. 22, 22‑A & 22‑E‑‑‑Collective Bargaining Agent‑‑‑Appointment of more than one Agents‑‑‑Validity‑‑‑More than one Collective Bargaining Agents in one establishment cannot be appointed.

1992 PLC 125 ref.

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

‑‑‑‑S.22‑EE‑‑‑Collective Bargaining Agent‑‑‑More than one Agents, certification of‑‑‑Condition necessary for more than one agents‑‑‑Provision of S.22‑EE of the Industrial Relations Ordinance, 1969, is the only provision which envisages existence of more than one Collective Bargaining Agents for the purpose of safeguarding the interest of workmen employed in an establishment or group or groups of establishments belonging to the same employer and same industry.

1996 PLC 49 ref.

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

‑‑‑‑Ss. 22(,1), 22‑A & 22‑EE‑‑‑Constitution of Pakistan (1973), Art. 199‑‑­Constitutional petition‑‑‑Collective Bargaining Agent‑‑‑Certification of more than one Collective Bargaining Agents‑‑‑Failure to hold inquiry‑‑‑National Industrial Relations Commission by its order certified two Collective Bargaining Agents for the workmen employed in the establishments of the petitioner‑Bank situated in the Provinces of Sindh, Balochistan, North‑West Frontier Province and Punjab under S.22(1) of the Industrial Relations Ordinance, 1969‑‑‑One Collective Bargaining Agent was certified for the four Provinces and the other Collective Bargaining Agent for the areas of cities of Rawalpindi and Islamabad Zone‑‑‑Validity‑‑‑If National Industrial Relations Commission wanted to certify more than one Collective Bargaining Agents in the establishments of the petitioner‑Bank, it should have held inquiry as provided in S.22‑EE of the Industrial Relations Ordinance, 1969, and it should have objectively satisfied that it was in the interest of the workmen employed in the establishments of the petitioner‑Bank and should have determined Collective Bargaining Units, whereafter it could, after holding election as provided by law, declare any trade union to be a Collective Bargaining Agent for the Collective Bargaining Unit‑‑‑Where the Commission had not undertaken such exercise the act of the Commission certifying the Collective Bargaining Agent for the two cities only was in violation of the provisions of Ss.22‑A & 22‑EE of Industrial Relations Ordinance, 1969‑‑Order passed by the National Industrial Relations Commission was set aside being contrary to the provisions of Ss.22, 22‑A & 22‑EE of the Industrial Relations Ordinance, 1969, the principles of natural justice, without jurisdiction, void, mala fide and of no legal effect‑‑­Constitutional Petition was allowed by the High Court in circumstances.

199'' PLC 125; 1996 PLC 49; PLD 1984 Kar. 292 and Waheed Corporation v. Capital Development Authority 1998 PTD 3863 ref.

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

‑‑‑‑Ss. 22(1‑) & 22‑A‑‑‑Industry‑wise trade union‑‑‑Qualification‑‑‑Disputed trade union was only working m Federal Territory and in one city‑‑‑National Industrial Relations Commission certified the trade union as industry‑wise trade union and issued certificate of Collective Bargaining Agent‑‑­Validity‑‑‑To qualify as an industry‑wise trade union it was necessary that the membership of the union must extend to establishments in more than one Provinces‑‑‑Part of one Province could not be care out and attached to Federal Territory to provide the basis for an argument that the membership of the union extended to more than one Provinces‑‑‑Such trade union could not be certified as industry‑wise trade union ill, circumstances.

Waheed Corporation v. Capital Development Authority 1998 PTD 3863 ref.

(e) Natural justice, principles of‑‑‑

‑‑‑‑Order adversely affecting interest of any person‑‑‑Cannot be passed without giving the person an opportunity of explaining his position and hearing his point of view, (f) Administration of justice‑‑‑

‑‑‑‑ Correction/rectification of any mistake‑‑‑Inherent jurisdiction of authority passing any order‑‑‑Scope‑‑‑Authority which has the power to pass an order also has the power to correct/certify any mistake that may have arisen from any accidental slip or omission but before doing so it is incumbent that .a notice be given to all the„ persons who were parties to the proceedings pointing out the slip, omission or error and after hearing them make the correction, if appropriate.

Mahmood Abdul Ghani for Petitioner.

Saeed Ghani, Secretary of Respondent No.2..

Date of hearing: 8th May, 2001.

2002 P L C 201

[Karachi High Court]

Before Syed Mushir Alam, J

MUHAMMAD YOUNUS

Versus

PRESIDING OFFICER, SINDH LABOUR COURT NO.III

and 2 others

Constitutional Petition No. S‑178 of 1999, decided on 27th February, 2002.

(a) Industrial Relations Ordinance (XXIH of 1969)‑‑‑--

‑‑‑Ss. 25‑A, 34, 35(5)(e), 37(3) & 51‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Alternate remedy‑‑­Order passed by Labour Court under S.51 of the Industrial Relations Ordinance, 1969, was assailed in Constitutional petition‑‑‑Validity‑‑‑Appeal to Labour Appellate Tribunal under S. 37(3) of the‑ Industrial Relations Ordinance, 1969, was provided against the award or decision given under S.25‑A or S.34 of the Industrial Relations Ordinance, 1969, or sentence passed under S.35(5)(e) of the Ordinance‑‑‑Right of appeal was regulated and conferred by law‑‑‑Where no remedy was provided to assail orders passed under S.51 of the Industrial Relations Ordinance, 1969 the Constitutional jurisdiction had been rightly invoked by the petitioner‑‑‑Constitutional petition was maintainable in circumstances.

Messrs Jannat Textile Mills Ltd. v. Sind Labour Appellate Tribunal, Karachi and 2 others PLD 1979 Kar. 725 ref.

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

‑‑‑‑S. 38‑‑‑Revisional jurisdiction of Labour Appellate Tribunal‑‑‑Scope‑‑­Legislature with intention to attach finality to the orders passed by the Labour Court, under the provisions of S.38(a) of the Industrial Relations Ordinance, 1969, confined appellate jurisdiction to a limited sphere‑‑‑Unlike Code of Civil Procedure, 1908, right to invoke revisional jurisdiction is not conferred on any party under the provisions of S.38(3‑A) of the Industrial Relations Ordinance, 1969‑‑‑Revisional jurisdiction under the scheme of Industrial Relations Ordinance, 1969, can only be exercised by the Appellate Tribunal suo room and not at the behest of any party.

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

‑‑‑‑S. 51‑‑Civil Procedure Code (V of 1908), S.12(2)‑‑‑Constitution of Pakistan (1973), Art, 199‑‑‑Constitutional petition‑‑‑Execution of order of award.‑‑Jurisdiction of Executing Court‑‑Past and closed transaction, principle of‑‑ Applicability‑‑‑Petitioner was reinstated with back benefits by the Labour Appellate Tribunal‑‑‑ ‑Constitutional petition filed against such order of reinstatement was withdrawn by the employer‑‑‑Petitioner filed execution petition before Labour Court for implementation of the order of back benefits passed by the Labour Appellate Tribunal‑‑‑Application under S.12(2), C.P.C. was filed by the employer alleging that the order of back benefits was obtained by misrepresentation and fraud‑‑‑Labour Court allowed the application ‑and dismissed the execution petition‑‑‑Validity‑‑‑When order of reinstatement with back benefit had attained finality, the Executing Court could not travel beyond the decision or judgment sought to be executed‑‑­Once the order of reinstatement with back benefits had attained finality, such order was past and closed transaction and the same could not be revisited or reopened by the executing Court‑‑ ‑Propriety of any award, order, decision or judgment could only be questioned, varied, modified, reversed in appellate or revisional jurisdiction by such hierarchy as provided under the Industrial Relations Ordinance, 1969 and not otherwise‑‑‑Powers exercisable by the Labour Court under S.51 of the Industrial Relations Ordinance, 1969, were akin to powers of Executing Court in civil proceedings and the same could not be equated with appellate or revisional jurisdiction‑‑‑Executing Court could not question the propriety of award, order or decision given by the competent Authority‑‑‑By dismissing the, execution petition, the Labour Court had travelled beyond its jurisdiction vested under S.51 of the Industrial Relations Ordinance, 1969, as issue of back benefits stood decided by the Labour Appellate Tribunal‑‑‑Employer, in the present case, had itself chosen to withdraw the Constitutional petition and nothing was left for the Executing Court so far as the issue of the back benefits was concerned‑‑­Order passed by the Labour Court dismissing the execution petition was set aside by High Court‑‑‑Constitutional petition was allowed in circumstances.

General Manager Radio Telecommunication Corporation Haripur v. Muhammad Aslam and 2 others 1992 SCMR 2169; Naseer Ahmed and another v. Employees Old‑Age Benefits Institution through Assistant Director‑General (PTP), Karachi and others 1996 PLC 673; Sardar Ahmed Yar Khan Jogezai and 2 others v. Province of Balochistan through Secretary, C&W Department 2002 SCMR 122 ref.

Ashraf Hussain Rizvi for Petitioner.

Nemo for Respondent.

2002 PLC 212

[Karachi High Court]

Before Sabihuddin Ahmed and Mushir Alam, JJ

SEAGULL EXPORTS (PVT.) LTD

Versus

SINDH LABOUR APPELLATE TRIBUNAL and others

Constitutional Petition No. 665 of 1989, decided on 23rd August, 2000.

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

‑‑‑‑Ss.2(viii), (xxviii); 25‑A & 38‑‑‑West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.(2)(c) & (i)‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑­Relationship of employer and employee‑‑‑Grievance petition‑‑‑Petitioners were owners of a textile mill' and one respondent was the contractor and others were workmen‑‑‑Contract arrived at between mill owners and respondent (contractor) showed that manufacturing of towels was to be carried out by the respondent according to instructions and specifications given by employer‑‑‑Yarn was to be provided by mill owners, but work of manufacturing was to be supervised by the said respondent who was required to employ his own labour and was responsible for payment of all dues of labour so employed‑‑‑Contributions payable to Social Security Institution and Employees' Old‑Age Benefit Institution, were also recoverable from said respondent‑‑‑Terms of contract provided that said respondent was required to determine terms and conditions of employment of workers and to exercise supervision and control over them in all respects‑‑‑Mill owner neither could direct such workers to perform any work nor to instruct them to do so in any manner‑‑‑Respondent, after termination of contract, terminated services of all such workers, but some of the workers filed grievance petition against mill owners instead of the respondents (who had engaged them)‑‑‑Labour Court rejected grievance petition of workers holding that no relationship of employer and employee existed between mill owners and workers, but Service Tribunal set aside the judgment of Labour Court on ground that essential presumption was that workers were working in factory belonging to mill owners‑‑‑Apart from baldly ascertaining that workers were employees of petitioners not a single instance was on record as to how mill owners exercised control over the said workers‑‑‑Contractor, according to terms of contract, being independent person responsible for carrying out manufacturing work after employing workers, engaged by him, could only be treated as his employees and mill owners who had nothing to do with payment of wages to said workers, no relationship of employer and employees existed between mill owners and such workers‑‑‑Judgment of Appellate Tribunal was set aside by High Court.

Farid Ahmad v. Burma Shell 1987 SCMR 1463; Munir Ahmad v. The State 1985 SCMR 257; D.C. Works Limited v. State of Saurashtra AIR 1957 SC 264 and Hussain Bhai Caliat v. Alat Factory Thozhi Lali Uni and others 1978 LLJ 397 ref.

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

‑‑‑‑S.2(xxviii)‑‑‑West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(i)‑‑‑"Worker"‑‑‑Definition‑‑­Worker is not merely a person employed directly by employer, but also the one employed through a contractor.

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

‑‑‑‑S. 38‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Jurisdiction of Labour Appellate Tribunal‑‑‑Scope‑‑‑Contentions were that High Court could not interfere in finding of fact recorded by Labour Appellate Tribunal and jurisdiction of High Court under Art.199, Constitution of Pakistan (1973) could only be attracted when Tribunal had acted without jurisdiction and that even wrong decision by Statutory Tribunals could not be interfered with unless they were found to be patently without jurisdiction‑‑‑Validity‑‑‑Rule that Tribunal which had jurisdiction to decide a matter, could decide it rightly or wrongly, does not hold the field any longer‑‑‑Matter going to root of jurisdiction, could always be examined by High Court.

Muhammad Hussain Munir v. Sikandar PLD 1974 SC 139; Abdur Rehman Bajwa v. Sultan and others PL,D 1981 SC 522; Nawab Syed Rounaq Ali v. Chief Settlement Commissioner PLD 1973 SC 236 and Utility Stores Corporation v. Punjab Labour Appellate Tribunal PLD 1987 SC 447 ref.

Noor Muhammad for Petitioner.

Farid Gul Khan for Respondents.

Date of hearing: 23rd August, 2000.

2002 P L C 238

[Karachi High Court]

Before Dr. Ghous Muhammad and

Sarmad Jalal Osmany, JJ

SIMPLEX RUBBER MANUFACTURERS (PVT.) LTD.

Versus

SIMPLEX RUBBER MANUFACTURERS EMPLOYEES UNION and others

Constitutional Petition No. 1608 of 1996, decided on 24th December, 1999.

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

‑‑‑‑Ss.15, 16 & 22‑A‑‑‑Unfair labour practice‑‑‑National Industrial Relations Commission‑‑‑Jurisdiction‑‑Cases which the Benches of National Industrial Relations Commission are empowered to hear must have element of unfair labour practice in them‑‑‑Commission does not encompass cases where no allegations of unfair labour practices are made‑‑‑Instances of unfair labour practices on the part of the employer as well as workmen have been mentioned in Ss. 15 & 16 of Industrial Relations Ordinance, 1969.

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

‑‑‑‑Ss. 22‑ A(9)(b) & 25‑A‑-‑West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.II‑A‑‑­Constitution of Pakistan (1973), Art. 199‑‑‑‑Constitutional petition‑‑­Grievance petition‑‑‑Unfair labour practice‑‑‑‑ transfer of case by Single Bench of National Industrial Relations Commission‑‑‑Permission to close establishment was sought by the employer and without waiting for the permission, services of employees were terminated‑‑‑‑Grievance notice was served by the employees and then petitions under S.25‑A of the Industrial Relations Ordinance, 1969, were filed before Labour Court‑‑‑During the pendency of proceedings under S.O.11‑A of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance 1968, the employer filed transfer application before the Single Bench of National Industrial Relations Commission‑‑‑Commission withdrew the cases from the Labour Court, allowed the employer to close down the establishment and dismissed the grievance petitions of the employees ex pane‑‑‑Full Bench of the National Industrial Relations Commission allowed the appeal filed by the employees and the order of withdrawal passed by the Single Bench of National Industrial Relations Commission was set aside‑‑‑Contention of the employer was that the National Industrial Relations Commission was not competent to decide the matter as there was no question of unfair labour practice‑‑‑Validity‑‑‑Nowhere in the petition it was alleged that any question of unfair labour practice was involved when the application of the employer and the employees were pending before the Labour Court, which had the jurisdiction to deal with their)‑‑‑Order passed by the Single Bench of National Industrial Relations Commission summoning the record from the Labour Court and their immediate disposal was illegal‑‑‑High Court declined to interfere with the order passed by the Full Bench of the National Industrial Relations Commission‑‑‑Petition was dismissed in circumstances.

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

‑‑‑‑Ss. 22‑A(9)(b) & 38(c)‑‑‑Withdrawal of cases from Labour Court‑‑‑ Jurisdiction of National Industrial Relations Commission‑‑‑Scope‑‑‑National Industrial Relations Commission can only withdraw the case if the same has been referred to the Labour Court or to any other forum‑‑‑Commission has no powers to withdraw the case from the original jurisdiction conferred by law on the Labour Court.

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

‑‑‑‑S. 22‑A‑‑‑Review‑‑‑Powers of National Industrial Relations Commission‑‑‑After passing of final orders the Single Bench of the Commission had no powers to review its own order‑‑‑Review could have been done only by Full Bench of National Industrial Relations Commission.

Raza Abbas for Petitioner.

Muhammad Shafiq Qureshi for Respondents

Date of hearing: 3rd December, 1999.

2002 P L C 250

[Karachi High Court]

Before Saiyed Saeed Ashhad. C.J.

and Mushir Alam, J

MUHAMMAD HANIF

Versus

SINDH LABOUR APPELLATE TRIBUNAL and another

Constitutional Petition No. 1865 of 2000, decided on 17th October, 2001.

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

‑‑‑‑Ss. 25‑A & 38‑‑‑Constitution of Pakistan (1973), Art.199‑‑­Constitutional petition Grievance notice and grievance petition‑‑‑Dismissal of appeal by Labour Appellate Tribunal‑‑‑Appeal against judgment of Labour Court was dismissed by Labour Appellate Tribunal on grounds that grievance notice and grievance petition filed under S.25‑A of Industrial Relations Ordinance, 1969. were time‑barred; that grievance notice was not signed by petitioner/employee, which was a mandatory requirement of law and that petitioner/employee was retired from service on his own request‑‑‑Labour Appellate Tribunal decided case against petitioner after exhaustively discussing all said grounds and petitioner could not refer any evidence or document on the basis of which it could be said that observations of Labour Appellate Tribunal were not proper or were contrary to record‑‑‑Judgment of Labour Appellate Tribunal could not be interfered with in Constitutional petition.

1984 PLC 842; Akhtar Munir and 4 others v. District Manager, Sindh Road Transport Corporation at Sanghar and others 1996 PLC 306 and Buxly Paints Ltd. v Izhar-ullah and others 1984 PLC 33 ref.

A. Nafees Osmani for Petitioner.

Mehmood Abdul Ghani for Respondent No.2.

2002 P L C 258

[Karachi High Court]

Before Muhammad Moosa K. Leghari

and Mushir Alam, JJ

MUSLIM COMMERCIAL BANK LIMITED through

Executive Vice‑President

versus

CHAIRMAN SINDH LABOUR APPELLATE TRIBUNAL and another

Constitutional Petition No.D‑1699 and Miscellaneous Application No.4558 of 2001, decided on 30th March, 2002.

(a) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S.24‑‑‑Industrial Relations Ordinance (XXIII of 1969), S.38(7)‑‑‑Transfer of case‑‑‑Party could not insist that his case should be heard at a particular place or by a particular Judge.

PLD 2001 Kar. 127 ref

(b) Natural justice, principles of‑‑‑

‑‑‑‑.Nobody is to be condemned unheard‑‑‑Order affecting the rights of a party is to be passed only after hearing the party concerned.

(c) Civil Procedure Code (V of 1908) ‑---

‑‑‑‑S.24‑‑‑Transfer of suit etc.‑‑‑Failure to give notice to opposite party‑‑­Effect‑‑‑Where such transfer is to be made on the application of a party, then notice to opposite party is to be given‑‑‑Failure to give such notice is merely an irregularity, when no prejudice is proved‑‑‑Court has power to transfer a case suo motu even without notice, thus, question of notice cannot be a question of jurisdiction.

AIR 193‑2 Cal. 265 and Muhammad Farash Khan v. Mst. Nishadar Jan PLD 1983 SC (AJ&K) 43 ref

(d) Administration of justice‑‑‑

‑‑‑‑ Object of interpretation of the procedure is to make it workable and not to enforce the same for the purpose of frustrating the ends of justice by a resort to technicalities.

(e) Administration of justice‑‑‑

‑‑‑‑ Justice should be even handed and transparent, so that same should glaringly appear to have been done.

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

‑‑‑‑Preamble & S. 25‑A‑‑‑Object of Industrial Relations Ordinance, 1969‑‑­Labour laws are construed to be beneficial legislation‑‑‑Purpose of the Ordinance is to regulate relations between employers and workers and settlement of any difference/dispute arising between them‑‑‑Purpose of establishment of Labour Courts is to adjudicate and determine industrial disputes‑‑‑Legislature has provided mechanism of expeditious redressal of grievances of workers‑‑‑Provision of S.25‑A of the Ordinance though not mandatory in nature, but object behind such legislation was to ensure quick disposal of cases relating to disputes between employers and workers‑‑­Industrial Relations Ordinance, 1969 is by no means a law meant to involve worker in a prolonged and interminable litigation.

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

‑‑‑‑Preamble, Ss. 38(7) & 25‑A‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constiutional petition‑‑‑Transfer of grievance petition to another Labour Court‑‑‑Challenge to transfer order passed by Labour Appellate Tribunal in Constitutional petition‑‑‑Validity‑‑‑Challenging interlocutory orders in Constitutional jurisdiction was bound to halt the progress of main case, increase the backlog, delay disposal thereof, frustrate the scheme of law and subject the worker class to a protracted agony‑‑‑Such eventuality would tantamount to defeat the justice‑‑‑Constitutional jurisdiction was made available in case of imminent, grave arid tangible threats to valuable personal and property rights, subject inter alia to condition that legal remedy, if at all available in circumstances, was not efficacious or adequate‑‑‑If every order like the present one passed by Tribunal was challenged by means of Constitutional petition, then same might not only amount to abuse of Constitutional jurisdiction, but would also defeat the very purpose for which Industrial Relations Ordinance, 1969 was enacted‑‑‑High Court dismissed the Constitutional petition in limine being misconceived and not maintainable.

A. F. Ferguson & C o. v. The Sindh Labour Court and another PLD 1985 SC 429 ref.

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

‑‑‑‑Ss. 38(7) & 25‑A‑‑‑Constitution of Pakistan (1973), Art. 199‑‑­Constitutional petition- Transfer of grievance petition to another Labour Court‑‑‑Respondent sought such transfer on the ground that he had lost confidence in Labour Court, where his grievance petition was pending‑‑­Labour Appellate Tribunal after perusing comments of the Presiding Officer of Labour Court passed such transfer order‑‑‑Contention of petitioners was that transfer order was passed without notice to them and as such they were condemned unheard‑‑‑Validity‑‑‑Labour Appellate Tribunal had jurisdiction to transfer any application or proceedings from a Labour Court within its jurisdiction to any other Labour Court either on its own motion or on the application of a party‑‑‑Tribunal could transfer case without notice to opposite party as S. 38(7) of the Ordinance did not provide for such notice‑‑­Presiding Officer of Labour Court in his comments had requested the Tribunal to transfer this case to some other Court to avoid any embarrassment‑‑‑Such approach was absolutely correct being in consonance with fundamental principles as bitterness created between litigants and Court was not germane to dispensation of justice‑‑‑Purpose of notice was to enable opposite party to place its point of view before the Court‑‑‑Petitioners could not show that any of his rights had been adversely affected or any prejudice had been caused to them as a result of transfer of case without notice‑‑Pre‑conditions for exercise of extraordinary powers of High Court, thus, were not satisfied in present case‑‑‑High Court dismissed the Constitutional petition being misconceived and not maintainable.

PLD 2001 Kar. 127; Entrenonde Polycoaters Ltd. v. Kamgar Sabha, Thane and another W.P. No.5022 of 1996; II LLJ; Management of M/s M.S. Nally Bharat Engg. Co. Ltd. v. State of Bihar and others C. A. No. 1102 of 1990 II LLJ. ref. .

Mahmood Abdul Ghani for Petitioner.

Sarwar Khan, Add]. A.‑G. for Respondent No. 1.

Nemo for Respondent No.2.

Date of hearing: 29th January, 2002.

2002 P L C 274

[Karachi High Court]

Before Saiyed Saeed Ashhad, C. J. and Mushir Alam, J

Messrs PEARL CONTINENTAL HOTEL KARACHI through Human Resources Manager

versus

MEMBER, NATIONAL INDUSTRIAL RELATIONS COMMISSION, KARACHI and another

Constitutional Petition No.2550 of 2001, decided on 13th March, 2002.

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

‑‑‑‑S.22‑A(8)(a)(b)(c)‑‑‑National Industrial Relations Commission‑‑­Functions of‑‑‑Main functions of NIRC is to promote the formation of industry-wise trade unions, federations of such trade unions and federation at the national level.

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

‑‑‑‑Ss.22‑A(8)(g),(9),(12), Expln., 15 & 16‑‑‑Unfair labour practice‑‑­Jurisdiction of National Industrial Relations Commission‑‑‑Scope‑‑‑Words "trade union" as used in S.22‑A(8)(g) of the Industrial Relations Ordinance would mean an industry-wise trade union, a federation of such trade unions or a federation at the national level‑‑‑Jurisdiction of the Commission to the cognizance and try offence relating to unfair labour practice enumerated in Ss. 15 & 16 of the Ordinance extends only to an industrywise trade union, a federation of such trade unions, or a federation at the national level‑‑‑Trade union/Collective Bargaining Agent registered at Provincial level without having any representation in more than one industry or more than one Province would have no right or authority to invoke jurisdiction of the Commission under S.22‑A(8)(g) of the Ordinance in respect of unfair labour practice on the part of the employers or workers.

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

‑‑‑‑S.22‑A(8)(g) & (9)‑‑‑Jurisdiction of National Industrial Relations Commission under subsection (8)(g) & (9) of S.22‑A of the Industrial Relations Ordinance‑‑‑ Distinction-‑‑Provisions of S. 22‑A(9) would not be attracted to a petition to under S.22‑A(8)(g) of the Ordinance‑‑­Section 22‑A(8)(g) of the Ordinance confers power on the Commission to deal with cases of unfair labour practices and for taking measures calculated to prevent an employer or workman from committing an unfair labour practice whereas S.22‑A(9) of the Ordinance confers power on the Commission to initiate prosecution, trial or take action with regard to any matter relating to its functions.

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

‑‑‑‑Ss. 22‑A(8)(g)(9)(12), Expln., 15 & 16‑‑‑National Industrial Relations Commission (Procedure and Functions) Regulations, 1973, Regln. No.32(2‑C)‑‑‑ Constitution of Pakistan (1973), Art. 199‑‑­Constitutional petition‑‑‑Unfair labour practice‑‑‑Petition under S.22‑A(8)(g) of the Industrial Relations Ordinance, 1969 by trade union registered with Provincial Registrar of Trade Unions‑‑‑Commission accepted such petition‑‑­Validity‑‑‑Provisions of S.22‑A(9) of the Ordinance would not be attracted to a petition under S.22‑A(8)(g) of the Ordinance‑‑‑Such petition could not be filed by a party other than an industrywise trade union, a federation of such trade unions and federation at the national level‑‑‑Trade union had no right to invoke the jurisdiction of the Commission under S.22‑A(8)(g) of the Ordinance for dealing with matters of unfair labour practice against the employers‑‑‑High Court allowed Constitutional petition and set aside the order passed by the Commission.

Appeal No.12(28) of 2000 ref.

Mehmood Abdul Ghani for Petitioner.

Latif Sagar for Respondents.

2002 P L C 283

[Karachi High Court]

Before S.A. Rabbani, J

PAKISTAN INSURANCE CORPORATION EMPLOYEES UNION KARACHI through General Secretary

versus

REGISTRAR OF TRADE UNIONS, GOVERNMENT OF PAKISTAN SINDH and another

Constitutional petition No. S‑113 of 2002, decided on 30th January, 2001.

Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑Ss. 10 & 22‑‑‑Cancellation of registration of Trade Union‑‑‑Issuance of Collective Bargaining Agent Certificate‑‑‑Registrar, Trade Union was authorized under S.10, Industrial Relations Ordinance, 1969 to make a complaint to Labour Court for cancellation of a Trade Union in case the Union contravened provisions of Industrial Relations' Ordinance, 1969 or Rules or of its constitution‑‑‑If Registrar, would make complaint before Labour Court, it would be for Labour Court to decide whether such contravention had been made or not, but when such a complaint was pending before Labour Court for cancellation of registration of Trade Union, Registrar, would not be bound to issue Collective Bargaining Agent Certificate Muhammad Ashraf Khan for Petitioner.

Mehmud Abdul Ghani for the Intervenor.

Nemo for Respondents.

Date of hearing: 18th January, 2001.

2002 P L C 292

[Karachi High Court]

Before Muhammad Afzal Soomro, J

MUTTEHIDA TELE STAFF UNION PORT QASIM

versus

DIRECTOR OF LABOUR and others

Constitutional Petition No.S‑170 of 2002, decided on 10th June, 2002.

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

‑‑‑‑S. 22(13)‑‑‑Registrar of Trade Unions‑‑‑Delegation of powers‑‑­Referendum proceedings‑‑‑Conducting of referendum by officer authorized by Registrar of Trade Unions‑‑‑District Officer Labour was authorized by the Registrar to conduct the referendum proceedings in the establishments of Cargo Handling Companies operating at Port Authority, by strictly observing the provisions of law‑‑‑Proceedings for holding referendum were initiated by the authorized officer on behalf of Registrar Trade Unions and the officer had issued the notices to various trade unions to enable them to participate in the referendum‑‑‑Registrar of Trade Unions, who authorized the officer for conducting the referendum was transferred and in his place new Registrar was appointed‑‑‑Contention of the petitioner trade union was that after transfer of the Registrar, the authorized officer had no authority to conduct the referendum‑‑‑Validity‑‑‑Registrar might authorize an officer in writing under S.22(13) of Industrial Relations Ordinance. 1969, to perform all or any of his functions‑‑‑Transfer of the Registrar did not affect the authorization given to the officer who had initiated the proceedings for holding referendum in accordance with law‑‑­Held, authorized person had the authority to hold the referendum in circumstances.

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

‑‑‑‑S. 21‑‑‑Participation in referendum‑‑‑Audited account report, non‑filing of‑‑‑Petitioner trade union till the initiation of proceedings for holding the disputed referendum had not presented the audited accounts for two years‑‑­Effect‑‑‑Petitioner was guilty of breach of S.21 of Industrial Relations Ordinance, 1969, in circumstances.

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

‑‑‑‑S. 21--Election of trade union‑‑‑No change in office‑bearers‑‑‑Intimation of result not sent to Registrar of Trade Unions‑‑‑No intimation to the Registrar was sent by the trade union for the reason that no change in the office‑bearers was effected in the elections conducted as the same office­-bearers were being elected again and again‑‑‑Validity‑‑‑Even if no, change was made, the trade union under S.21 of Industrial Relations Ordinance, 19,69, was bound to inform the latest position to the Registrar of Trade Unions.

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

‑‑‑‑S. 7(1)(j)‑‑‑Registration of trade union‑‑‑Mandatory requirement‑‑­Holding of election is the requirement for registration of a trade union under S.7(1)(j) of Industrial Relations Ordinance, 1969.

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

‑‑‑‑Ss. 7(1)(j) & 21‑‑‑Constitution of Pakistan (1973), Art.199‑‑­Constitutional petition‑‑‑Locus stand'‑‑‑Clean hands‑‑‑Failure to conduct elections in trade union‑‑‑Proceedings of referendum were assailed by petitioner trade, union which itself had not held its elections‑‑‑Constitutional petition was filed by General Secretary of the trade union‑‑‑Plea raised by the respondents was that the General Secretary had no locus standi to file the instant petition‑‑Validity‑‑‑Failure to hold election in the trade union had created doubt about the competency of the General Secretary of the petitioner union to sign the memorandum of petition and its affidavits‑‑‑Such person not being, competent to sign the documents, the filing of instant petition was null and void as the General Secretary had no locus standi to file .the petition‑‑‑Where the petitioner union had violated the provisions of S.21 of Industrial Relations Ordinance, 1969, the petitioner had not come to the Court with clean hands‑‑‑High Court declined to interfere with the referendum proceedings‑‑‑Petition was not maintainable in circumstances.

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

‑‑‑‑S. 21‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Disputed question of fact‑‑‑Dispute was with regard to number of members of the trade union‑‑‑Contention of the petitioner was that number of its members had increased to 77 and they had completed the requisite period of service‑‑‑Validity‑‑Such issue could only be resolved through' evidence which could not be recorded in Constitutional petition‑‑‑Constitutional petition was not maintainable in circumstances.

Karachi Warehouse and Carriers Workers' Union v. Pakistan Warehouse Carriers Workers' Union and 3 others PLD 1978 Kar. 417; Irrigation Tubewells Workers' Union (Regd.) v. Irrigation Tubewells Workshop and Operation Workers' Union (Regd.) and 2 others.1991 PLC 171: K. E.S.C. Progressive Workers' Union through Chairman and others v K.E.S.C. Labour Union through General Secretary and others 1991 SCMR 888; Ch. Jalaluddin and another v. Settlement Commissioner, Lahore and. others 1968 SCMR 995; The Punjab Miners Labour Union v. The West Pakistan Industrial Development Corporation, Jhelum PLD 1972 Lah. 489; MCB Staff Union of Pakistan v. Senior Member N.I.R:C., Lahore and others NLR. 2001 (sic) 16; Democratic Workers Union C.B.A. v. State Bank of Pakistan and others 2002 PLC (C.S.) 614; Civil Petitions Nos.3024 and 904‑L of 2000; Pakistan Burmah Shell Petrol Pumps Employees Union, Karachi v. Pakistan Burmah Shell Limited through its Director and 4 others PLD 1978 Kar. 279; Merchant Navy Seamens v. Sindh Labour Tribunal and 3 others 1987 PLC 444 and S.M. Afaq v. Federal Public Service Commission 2001 PLC (C.S.) 131 ref.

Shahanshah Hussain, Ali Mehdi and Asif Mukhtar for Petitioners.

Ch. Muhammad Rafiq, Additional Auditor‑General for Respondents Nos. l and 2.

Muhammad Shafiq Qureshi for Respondent No.3.

Ch. Muhammad Ashraf Khan for Respondent No.8.

Ch. Rasheed Ahmed for Respondents Nos.9 to 12.

Shamshad Khalid, D. M. (Legal) for Respondent No. 13.

Date of hearing: 29th May, 2002.

2002 P L C 311

[Karachi High Court]

Before S.Ahmed Sarwana and S. Zawwar H. Jaffery, JJ

ATTAULLAH

versus

THE CHAIRMAN, SINDH LABOUR APPELLATE TRIBUNAL and others

Civil Petition No‑815 of 2001, decided on 24th May, 2002.

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

‑‑‑‑S.2(g), Sched., S.O. 1(b)‑‑‑Permanent workman‑‑‑Person employed for land acquisition proceedings‑‑‑Scope‑‑‑Land acquisition proceeding is not a Job of permanent duration and, comes to an end when the land has been acquired and payments in respect of acquired land have been made to the Land Acquisition Authority‑‑‑Any person employed. for the purpose of land acquisition cannot claim to be a permanent workman.

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

‑‑‑‑S.2(g), Sched. & S.O: 1(b)‑‑‑Employees on work‑charged basis‑‑­Rights‑‑‑Such employees irrespective of the period of service do not enjoy the same rights as allowed to permanent employees and services of work­-charged employee comes to an end on completion of the job he is employed for.

P.I.A. v. Sindh Labour Court and others PLD 1980 SC 323; WAPDA and others v. Khanimullah and others 2000 SCMR 879 and Muhammad Yaqoob v. Punjab Labour Court No.1 and others 1990 SCMR 1539 ref.

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

‑‑‑‑S. 25‑A‑‑‑Grievance petition‑‑‑Closing of evidence‑‑‑No objection raised at the time of closing of evidence‑‑‑More than sufficient opportunity was given to petitioner to produce his evidence but on his failure to do so, the Labour Court passed order based upon the pleadings of the parties and undisputed documents filed by them‑ ‑‑Petitioner did not object to the same at the relevant time‑‑‑Effect‑‑‑Petitioner could not raise any objection after the Labour Court decided the matter against him.

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

‑‑‑‑S. 25‑A‑‑‑West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2 (g), Sched. 8e. S.O. 1(b)‑‑­Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition ‑‑‑Work­charged employee‑‑‑Petitioner was employed on work‑charged basis for supervising land acquisition proceedings which was not a work of permanent nature or duration‑‑‑Employer, after completion of the contract, did not extend the contract and services were terminated‑‑‑Grievance petition was dismissed by the Labour Court and the order was maintained by the Labour Appellate Tribunal‑‑‑Validity‑‑‑Petitioner having been employed on work­charged basis for supervising land acquisition proceedings. the employer was justified in not extending his contract after the land acquisition proceedings were completed‑‑‑High Court declined to interfere with the orders passed by the forums below‑‑‑Constitutional petition was dismissed in circumstances.

1998 SCMR 644; 1992 PLC 424; 1997 SCMR 103; 1979 SCMK 304; PLJ 1975 Kar. 25; PLD 1982 Kar. 913; 2001 SCMR 565 = 2001 PLC (C.S.) 368 and 2001 PLC (C.S.) 249 ref.

M. Shafique Qureshi for Petitioner.

S.S. Jehangir Khan for Respondents.

2002 P L C 345

[Karachi High Court]

Before Shabbir Ahmed and Muhammad Moosa K. Leghari, JJ

Messrs EMIRATES AIRLINES through General Manager

Versus

SINDH LABOUR APPELLATE TRIBUNAL and another

C.P.D. No. 2549 and Miscellaneous Applications Nos. 6599, 6600 and 6601 of 2001, decided on 2nd January, 2002.

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

‑‑‑‑S. 25‑A‑. Grievance petition‑‑‑Object and scope‑‑‑Provisions of Industrial Relations Ordinance 1969, provide mechanism for a worker to bring his grievance in respect of any right guaranteed or secured to him by or under any law or any award settlement.

(b) Undue influence‑‑‑

-----Concept—Under influence can arise if coercion, oppression, or compulsion is exercised to dominate the will of the other party and the person concerned is not able to exercise his free violation because of mental, financial or physical distress as a result of undue influence.

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

‑‑‑‑S. 25‑A‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Interlocutory order‑‑‑Employee was charged with the allegation of misappropriation of money and was threatened to be handed over to police‑‑‑Employee submitted his resignation which was accepted on the same date‑‑‑Employee instituted grievance petition before Labour Court subsequently, under S‑25‑A of the Industrial Relations Ordinance, 1969‑‑­Employer objected to the jurisdiction of the Labour Court in the matter‑‑­Objection was overruled and the matter was fixed for evidence‑‑‑Revision against the order passed by the Labour Court was also dismissed by the Labour Appellate Tribunal‑‑‑Validity‑‑‑Controversial facts existed in the case which necessitated recording of evidence by the Labour Court which was seized of the matter‑‑‑Order passed by the Labour Court was just and fair and was not without jurisdiction‑‑‑Labour Appellate Tribunal had rightly dismissed the revision‑‑‑High Court pointed out that in spite of the fact that the superior Courts had deprecated the practice of fragmented decisions by the labour forums, and the interlocutory orders by filing Constitutional Petitions on flimsy grounds, yet it had been observed with unease that such tendency of challenging the interlocutory orders passed by the Tribunals/Courts on untenable grounds was increasing day by day which had resulted into multiplicity of litigation, thereby immensely increasing the workload of High Court and was inflicting agonizing injury besides putting financial burden upon the respondents in such petitions‑‑‑High Court expressed its desire that such practice being undesirable must be brought to an end‑‑‑High‑ Court did not find any perversity or illegal exercise of jurisdiction in the .orders passed by the two forums below‑‑‑Petition was dismissed in limine.

A.F.Ferguson & Co. v. The Sindh Labour Court and another PLD 1985 SC 429 ref.

Nizam Ali Khan for Petitioner.

Date of hearing: 31st December, 2001.

2002 P L C 109

[Labour Appellate Tribunal N.‑W.F.P.]

Before Justice Sardar Muhammad Raza Khan, Chairman

MANAGING DIRECTOR, PAK‑CHINA FERTILIZER LTD., HARIPUR and another

versus

MUHAMMAD ISHAQUE

Appeal No.26 of 2000, decided on 28th September, 2001.

Industrial Relations Ordinance (XXIII of 1969)‑‑‑

---Ss. 1(3)(b ), 25‑A & 37(3)‑‑‑Grievance petition ‑‑‑Maintainability‑‑­Petitioner who initially was appointed as dispense: in hospital established by the company, subsequently was appointed as dresser in the said hospital‑‑­Grievance petition filed by the petitioner against termination of his service having been accepted by the Labour Court, company had filed appeal against that judgment‑‑‑Petitioner who throughout had remained in hospital of the company could not invoke the provisions of Industrial Relations Ordinance, 1969 as said hospital being charitable institution was excluded from operation of ‑provisions of said Ordinance under S.1(3)(b) thereof‑‑­Grievance petition filed by the petitioner was dismissed being not maintainable.

Pakistan Mineral Development Corporation v Punjab Labour Appellate Tribunal 1986 PLC 521; 1993 PLC 434 and Mrs. Naseem Sadiq v. Sindh Labour Appellate Tribunal 1984 PLC 1679 ref.

Haji Muhammad Iqbal for Appellants.

Abdur Rehman Qadar for Respondent.

Dates of hearing: 6th April and 28th September, 2001.

2002 P L C 120

[Punjab Labour Appellate Tribunal]

Before Iftikhar Ahmad Cheema, Chairman

MUSLIM COMMERCIAL BANK LIMITED through Attorney

versus

Khawja SAJJAD MEHMOOD

Appeal No.‑GA‑421 of 1998, decided on 27th September, 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)(4)‑‑‑Termination of service ‑‑‑Reinstatment‑‑‑Grievance petition‑‑‑Services of a Bank employee were terminated after charge‑sheeting him and holding inquiry against him on the charges that he assaulted the Manager of the Branch, was habitual late comer and absented himself from duty for more than ten days‑‑‑Inquiry against the employee ‑though was held by competent Inquiry Officer, but the employee was proceeded ex pane without satisfying the legal requirements of sending notice of offences to the employee and he was condemned unheard‑‑­Validity‑‑‑Inquiry Report, in circumstances, would carry no evidentiary value because same was conducted in the absence of the employee‑‑­Witnesses examined by the employer having not put to the test of cross­examination, the genuineness of their version could not be taken as a gospel truth‑‑‑Employee could not be visited with the extreme penalty of dismissal from service on basis of ex parte enquiry‑‑‑Order terminating service of the employee on basis of ex pane enquiry report was rightly declared illegal and without authority by the Labour Court‑‑‑Keeping in view the serious allegations levelled against the employee, he was entitled neither to back benefits nor to an order for reinstatement‑‑‑Since enquiry against the employee' was conducted in absentia, fresh inquiry was ordered to be conducted by a new impartial Inquiry Officer.

PLD 1481 SC 225; 1980 PLC 985 and 1972 PLC 247 ref.

Shahid Anwar Bajwa for Appellant.

Zafar Saleem for Respondent.

Date of hearing: 26th September, 2001

2002 P L C 17

[Sindh Labour Appellate Tribunal]

Before Munawar Ali Khan, Chairman

MUHAMMAD ANWAR

versus

ZAHID HUSSAIN KAZI, MANAGER FINANCE, MORGAN CHEMICALS, KARACHI and another

Appeal No. KAR‑18 of 2000, decided on 6th August, 2001.

Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑S. 25‑A‑‑‑Grievance petition‑‑‑Maintainability‑‑‑Grievance notice was not served by the employee on the employer, but was served through his advocate‑‑‑Grievance notice was to be served by the employee on the employer either himself or through his shop steward or Collective Bargaining Agent and word "advocate" had not been mentioned in S.25‑A of Industrial Relations Ordinance, .1969‑‑‑Grievance notice having not been served by the employee on the employer in accordance with requirement of law, grievance petition filed on such invalid notice, was not maintainable.

1981 PLC 899 ref.

Shah Hussain Tirmizi for Appellant.

Riaz Hussain Baloch for Respondent.

Date of hearing: 22nd May, 2001.

2002 P L C 32

[Sindh Labour Appellate Tribunal]

Before Munawar Ali Khan, Chairman

AHMED KHAN

versus

GENERAL MANAGER, QUETTA TEXTILE MILLS TLD. KOTRI, SINDH and another

Appeal No. HYD‑118 of 1999, decided on 7th August 2001.

Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑S.25‑A‑‑‑West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.0.15(3)(e)‑‑‑Misconduct‑‑­Dismissal from service‑‑‑Employee was dismissed from service after charge-­sheeting him and holding enquiry against him on allegation that he remained absent from duty unauthorisedly for more than ten days‑‑‑First Enquiry Officer having been alleged by the employee to be prejudicial against him, was replaced by another Officer who held enquiry against the employee in which employee participated‑‑‑New Inquiry officer in his Enquiry Report found the employee guilty of offence and he was dismissed from service on the basis of said Enquiry Report‑‑‑Employee, in circumstances, was rightly dismissed from service on allegation of misconduct‑‑‑Grievance petition against order of dismissal, was rightly dismissed by the Labour Court.

Mehmood Hussain Siddiqui, Representative for Appellant.

N.A. Talpur for Respondent.

Date of hearing: 29th May, 2001.

2002 P L C 38

[Sindh Labour Appellate Tribunal]

Before Munawar Ali Khan, Chairman

Messrs TAJ BAKERY, JACKSON BAZAR

versus

MUHAMMAD ASLAM KHAN and another

Appeal No.KAR‑39 of 2000: decided on 16th August, 2001.

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

‑‑‑‑S.25‑A‑‑‑West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), Ss. 1(4)(a) & 2(i)‑‑Grievance petition, maintainability of‑‑‑Non‑service of grievance notice ‑‑‑Effect‑‑­Salesman not workman‑‑‑Employee had claimed that prior to filing of grievance petition, grievance notice was sent to the employer, but the employer had denied service of notice on him‑‑‑Employee had contended that it was enough compliance of S.8‑A of Industrial Relations Ordinance, 1969, as soon as the notice required to be given under that section was sent to the employer‑‑‑Contention was repelled because S. 25‑A had provided that grievance notice had got to be brought to the notice of the employer in writing‑‑‑Requirement of S.25‑A of the Industrial Relations Ordinance, 1969 in respect of service of notice on the employer having not been complied with, grievance petition filed by employee, was not maintainable‑‑‑Even otherwise the employee at the time of his termination having been working as "salesman" and not as a "workman", West Pakistan ‑Industrial and Commercial Employment ‑ (Standing Orders) Ordinance, 1968 was not applicable to him.

1980 PLC 746 ref.

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

‑‑‑‑S. 2(i)‑‑‑Industrial Relations Ordinance (XXIII of 1969), Ss.2(xxviii) & 25‑A‑‑‑Salesman whether a workman‑‑‑Grievance petition, maintainability of‑‑‑Salesman would not fall within the definition of "workman" and West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 would not be applicable to his case‑‑‑Grievance petition filed by him would not be maintainable.

1992 SCMR 227 ref.

Mehboob Rizvi for Appellant.

Rafiullah for the Worker.

Date of hearing: 9th August, 2001.

2002 P L C 42

[Sindh Labour Appellate Tribunal]

Before Munawar Ali Khan, Chairman

Messrs PHOENIX SECURITY SERVICES (PVT.) LIMITED

versus

MUHAMMAD RAMZAN

Appeal No.KAR‑288 of 1998, decided on 6th August, 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)‑‑‑Dismissal from service‑‑‑Grievance petition ‑‑‑Maintainability‑‑‑Workman‑‑­Determination‑‑‑Employee working as storekeeper and doing manual and clerical duties was dismissed from service after holding enquiries against him‑‑‑Employee had challenged his dismissal in grievance petition‑‑­Grievance petition was resisted by the employer on legal as well as factual ground alleging that same was not maintainable as the duty of the employee as storekeeper was supervisory not involving manual or clerical job and that the employee not being a workman, his petition was not maintainable‑‑­Version of employee that he was a workman performing manual and clerical duties, remained unchallenged as he was not cross‑examined by the employer on that point‑‑‑Evidence of employee relating to his status of being a workman was also corroborated by his witnesses and even the employer's own witness had also stated that the employee was doing the duties of manual/clerical nature‑‑‑Labour Court, in circumstances, had rightly concluded that the duties performed by the employee were clerical/manual‑‑­Employee having been proved as workman, his grievance petition was legally maintainable‑‑‑Dismissal of employee was based on' Enquiry Report made in domestic enquiry held against him‑‑‑Witnesses of employer were not examined in presence of the employee and the employee was not provided fair opportunity to cross‑examine them‑‑‑Enquiry Officer was not produced in evidence to defend the truthfulness of the enquiry‑‑‑Employer having failed to establish the charge against the employee on basis of which he was dismissed from service, Labour Court rightly allowed his grievance petition.

PLD 1972 SC 25 and 1991 PLC 174 ref.

Sher Afgan for Appellant.

Shafiq Qureshi for Respondent.

Date of hearing: 30th May, 2001.

2002 PLC 111

[Labour Appellate Tribunal Sindh]

Before Munawar Ali Khan, Chairman

Messrs BENGAL FIBRE INDUSTRIES LTD. through Director

versus

SAGHEER AHMED

Appeal No. KAR‑14 of 2001, decided on 29th October, 2001.

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

‑‑‑‑Ss. 2(xxviii) & 25‑A‑‑‑"Workman"‑‑‑Determination of status‑‑‑Burden to prove‑‑‑Burden to prove status of workman initially was on the workman himself‑‑‑Grievance petition‑‑‑Maintainability‑‑‑Designation or question of emoluments was no criteria to determine the status of the employee being worker or not‑‑‑Employee who was employed as permanent workman was also General Secretary of the Workers' Trade Union in the employer industry‑‑‑Employee who was performing his duties as skilled worker, had no power of supervisor and also. had no control over the workers‑‑‑Chart of the duties produced by the employee showed that his duties were manual in nature which put him in the category of a workman‑‑‑Employee was dismissed from service after serving show‑cause notice upon him and holding enquiry against him‑‑‑Employee in circumstances could be presumed to be a workman‑‑‑Employee, being a workman his grievance petition was maintainable.

1991 SCMR 2300 and PLD 1982 Kar. 91ref

(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.0.15‑‑­Termination of service‑‑‑Grievance petition‑‑‑Services of the employee were terminated after serving him show‑cause notice, charge‑sheeting him and holding inquiry against him‑‑-Charge‑sheet against the employee was bogus and fabricated and enquiry against him was held by a person who was neither an occupier nor Factory Manager‑‑‑Employee was not provided opportunity to produce defence witness or to cross‑examine prosecution witnesses‑‑‑No eye‑witness of alleged incident was produced before the employee during the inquiry proceedings and the employer had entirely failed to prove any charge against the employee‑‑‑Grievance petition of the employee was rightly allowed by the Labour Court and he was rightly reinstated in service.

Faruq A. Ghani for Appellant.

Ch. Muhammad Ashraf Khan for Respondent.

Date of hearing: 18th Octobe 2001

2002 P L C 156

[Sindh Labour Appellate Tribunal]

Before Munawar Ali Khan, Chairman

Messrs CADBURY PAKISTAN LIMITED

versus

Qazi ZAMIRUDDIN and others

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 ‑‑‑Employer's application for recalling of employee for purpose of confronting him with certain documents‑‑‑Such request of employer having been turned down by Labour Court, employer had filed revision to call in question correctness of the order of Labour Court‑‑‑Documents in question were neither produced by the employer alongwith reply statement nor were disclosed in the pleading‑‑­Effect‑‑‑Only such documents could be produced at subsequent stage which were not within knowledge of party concerned and were subsequently discovered and also for the reasons that their bringing on record would advance interest of justice‑‑‑If such documents would seek to change or substitute wholly or partially plea of party, same would not be allowed to be brought on record‑‑‑Documents in question were well within the knowledge of employer right from the beginning of litigation, but those neither were produced alongwith pleading nor were disclosed therein.‑‑‑Such documents could no be allowed to be produced for any purpose at belated stage especially when employer wanted to substitute its original plea by a new one by producing the documents.

Mehboob Rizvi for Applicant.

Islam Hussain fir Respondent.

Date of hearing: 3rd April, 2001.

2002 P L C 303

[Sindh Labour Appellate Tribunal]

Before Justice (Retd.) Munawar Ali Khan, Chairman

MASOOD‑UR‑REHMAN and another

versus

B.P. INDUSTRIES (PVT.) LTD., KARACHI

Appeals Nos.KAR‑277 and KAR‑281 of 1998, decided on 15th February 2002.

Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑Ss.2 (xxviii) & 25‑A‑‑‑West Pakistan Industrial arid Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(i) & S.O. 13‑-Termination of service‑‑‑Grievance petition‑‑‑Maintainability of‑‑‑Salesman whether a workman‑‑‑Persons who where working as salesmen, their services were terminated strictly to compliance with requirements of law‑‑Grievance petition filed by the employees against termination of their services were dismissed by Labour Court being not maintainable and also being barred by time‑‑‑Employees who were inducted in service of the establishment as salesmen, could not prove that despite their such position and designation they we're made to work as workmen‑‑‑Nature of duties performed by the employees did not involve any manual labour or clerical work‑‑‑Selling bakery items to various shopkeepers and collecting money for said items from those shopkeepers though included some sort of labour, but that was only incidental to their main job of selling bakery‑items and for that alone they could not be put in the category of workmen‑‑‑Grievance petitions fled by such employees, were not maintainable and were rightly dismissed by Labour Court on that ground ‑‑‑Employees were not only given written orders of termination, but reasons for their termination were also specifically mentioned in termination order and they were given one month's salary in lieu of notice ‑‑‑Nothing wrong was found with termination order‑‑­Grievance petitions otherwise being time‑barred, were not maintainable.

M. Rafiq Malik for Appellants.

Mehboob Rizvi, Representative for Respondents.

Date of hearing: 7th February, 2002.

2002 P L C 307

[Sindh Labour Appellate Tribunal]

Before Justice (Retd.) Munawar Ali Khan, Chairman

MUSLIM COMMERCIAL BANK LTD. through Attorney

versus

WAHEED MURAD

Appeal No. KAR‑98 of 1999, decided on 18th February, 2002.

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)(b), (4)‑‑‑Dismissal from service‑‑‑Grievance petition‑‑‑Employee working as cashier in Bank was dismissed from service after charge‑sheeting him and holding enquiry against him on complaint made by two account holders that employee obtained cheques from them and got them encashed by way of overdraft as no money was available in their account and money drawn by employee as per overdraft was not paid to theta, but instead he misappropriated the same‑‑‑Work by employee was clerical in nature which also involved some manual labour‑‑‑Labour Court, in circumstances, had correctly concluded that employee was a "workman" under Industrial Relations Ordinance, 1969 and West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968‑‑‑Charge‑sheet in which charge of misappropriation of Bank money was mentioned was time‑barred‑‑­Enquiry held against employee was defective as no evidence on facts had been recorded‑‑‑Witnesses of Bank were produced before Enquiry Officer just to produce. relevant record and nothing else and they were not even subjected to cross‑examination‑‑‑Important witness like Enquiry Officer was not produced in evidence and he escaped scrutiny of his evidence by way of cross‑examination‑‑‑Complainants on whose complaint enquiry was started, were also not examined as witnesses‑‑‑Statement of employee recorded by Enquiry Officer did not speak of his obtaining of cheques by fraud‑‑‑No fraudulent obtaining of cheques by employee was established but cheques were proved to have been obtained with consent of complainants for purpose of operating their accounts to meet the shortage‑‑‑Labour Court, in circumstances, had rightly set aside order dismissing employee from service and he was rightly ordered to be reinstated in service.

1997 PLC 34 ref

Shahid Anwar Bajwa for Appellants.

Shabbir Ahmed Awan for Respondent.

Date of hearing: 12th February, 2002.

2002 P L C 319

[Sindh Labour Appellate Tribunal]

Before Justice (Retd ) Munawar Ali Khan, Chairman

KHADIM HUSSAIN and another

versus

Messrs FAUJI SUGAR MILLS through General Manager

Appeals Nos Hyd‑146 and 148 of 1999, decided on 26th March, 2002.

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

‑‑‑‑Ss.2(xxviii) & S. 25‑A‑‑‑West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(i) & S.O. 15‑‑­Dismissal from service‑‑‑Grievance petition‑‑‑Chowkidar whether workman‑‑‑Officers of the establishment were attacked by workers and office‑bearers of Collective Bargaining Agent Union and employees working as Chowkidars whose basic duty was to protect establishment and persons working in establishment, instead of performing their duty, collaborated with the criminals‑‑‑Employees having completely shattered confidence of establishment in them, were swiftly dismissed from service‑‑‑Labour Court set aside dismissal order, but employers were left free to hold domestic inquiry in the matter‑‑‑Employees having failed to participate in enquiry proceedings, they were dismissed once again from service‑‑‑Labour Court dismissed grievance petitions filed by employees against their dismissal‑‑­Employees working as Chowkidars, were not "workmen'.' as no evidence was brought on record to show that they were engaged in doing manual or clerical work‑‑‑Even if employees were considered as "workmen", they had failed to perform their duty at relevant time when officers and other persons were being attacked by office‑bearers of 'Union‑‑‑Employees being not workmen, grievance petitions filed by them were not maintainable and they could not invoke jurisdiction of Labour Court for purpose of their reinstatement.

S.P. Lodhi for Appellants. .

Muhammad Sadiq Qureshi for Respondent.

2002 P L C 322

[Sindh Labour Appellate Tribunal]

Before Justice (Retd.) Munawar Ali Khan, Chairman

UBL STAFF UNION, HYDERABAD through

General Manager

Versus

THE REGISTRAR, TRADE UNIONS and another

Revision Application No.HYD‑112 of 2001, decided on 20th February, 2002.

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

‑‑‑‑S.38(3‑a)‑‑‑Revision application‑‑‑Applicant/Staff Union requested to summon witnesses along with documents‑‑‑Photo copies of documents had already been brought on record, but witnesses were not allowed to be summoned‑‑‑Revision application had called in question refusal to summon witnesses‑‑‑Applicant was prepared to withdraw revision application on the condition that if photo copies of documents available on record were questioned at subsequent stage and their genuineness was challenged. applicant would be allowed to make application for summoning witnesses to prove genuineness of documents‑‑‑Respondent having no objection to the proposal, revision application was dismissed as withdrawn subject to condition that if photo copies of documents already available on record were challenged at subsequent stage, applicant would be free to summon concerned witnesses to prove genuineness of documents.

Rafiullah for the Applicant.

Naseer Ahmed for Respondent No.2.

Date of hearing: 20th February, 2002.

2002 P L C 326

[Sindh Labour Appellate Tribunal]

Before Justice (Retd.) Munawar Ali Khan, Chairman

Messrs NAGARIA TEXTILE MILLS (PVT.) LTD.

Versus

FEROZ SHAH

Appeal No.KAR‑99 of 1999, decided on 5th March, 2002.

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

‑‑‑‑Ss.2(viii)(xxviii) & 25‑A‑-‑West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.13‑‑­Termination of service‑‑‑Grievance petition‑‑-Relationship of employee and employer‑‑‑Proof of existence‑‑‑Employee in his grievance petition had challenged termination of his service verbally made by employer without assigning any reason‑‑‑Employer resisted grievance petition alleging that no relationship of employer and employee existed between parties as employee in fact was employee of independent contractor in employer establishment and in circumstances, employee was not entitled to any relief claimed by him in his grievance petition‑‑‑Employer excepting his own version, could not produce any evidence to prove that employee was employed by an independent contractor‑‑‑Employer not only had failed to produce any document in proof of his claim, but did not examine said contractor to show that employee was appointed by him and not by employer‑‑‑Employee like other employees was not provided with any letter of appointment or other necessary documents connecting with .his appointment excepting card indicating cover of Social Security Scheme provided to employee as was done in cases of other workers and employer paid contribution for such cover‑‑‑Card produced on record, which was not alleged to be forged one though was not a substitute of written appointment order, but it had its own bearing inasmuch as such card was issued to those who were employed in employer establishment‑‑‑In absence of any other written proof, Social Security Card was enough to indicate relationship of parties as employer and employee and the card could not be lightly ignored‑‑‑Labour Court, in circumstances, had rightly set aside order of employer terminating service of employee and also rightly ordered reinstatement of employee with back benefits.

(b) Pleadings‑‑‑

‑‑‑‑ Written statement‑‑‑If person who filed and verified written statement was not produced in evidence, written statement would have absolutely no value‑‑‑Only after said person was produced in evidence and subjected to cross‑examination in order to scrutinize truth of material contained in written statement that reliance could be placed on his written statement‑‑‑Where person responsible for filing written statement and verifying its contents had not been examined in Court, assertions made in written statement could not be looked into nor could those be relied upon in absence of any independent reliable material.

Safdar Hussain for Appellants.

Riaz Hussain Lund for Respondent.

Date of hearing: 19th February, 2002.

2002 P L C 331

[Sindh Labour Appellate Tribunal]

Before Justice (Retd.) Munawar Ali Khan, Chairman

MUSLIM COMMERCIAL BANK LTD., KARACHI through Attorney

Versus

IQBAL AHMED

Appeal No.LAK‑68 of 2000, decided on 12th April, 2002

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

‑‑‑‑S. 25‑A‑‑‑West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.15(3)(b) & (4)‑‑­Misconduct‑‑‑Dismissal from service‑‑‑Employee working as cashier in the Bank was dismissed from service after holding enquiries against him on allegation that amount in his possession which he received from other Branch of Bank was .found short‑‑‑Employee, in three enquiries, was found guilty of committing embezzlement/misappropriation of huge amount of two million and was found liable to make good loss of Bank and on the basis of said enquiries employee was dismissed from service‑‑‑Grievance petition filed by employee against his dismissal was accepted by Labour Court holding that charge against employee had not been proved and that allegations in fact were nothing, but minor irregularities of Instructions and Rules of Bank for which employee was not liable as he had acted under orders of his superiors‑‑‑Employee in criminal case registered against him, was acquitted and Trial Court absolved the employee from all liabilities with regard to missing/short amount‑‑‑Despite acquittal in criminal case, employee was held liable for shortage of amount‑‑‑Employee had contended that he having been acquitter in criminal case against him, no useful purpose would be served to proceed against him departmentally‑‑‑Contention of employee was repelled because despite his acquittal he might be found to be negligent and not vigilant in discharging his duties‑‑‑Employee could not escape liabilities of furnishing explanation as to how amount became short‑‑‑Negligent and careless employees like him; could not be inducted in Bank's jobs‑-‑If no other punishment was to be inflicted on employee, least that could be done for safeguarding Bank's money, would be to relieve him of the sensitive Bank job ‑‑‑Employee being not fit to be retained in service of the Bank his dismissal from service could be converted into simple termination of service.

2001 PLC 721; National Bank of Pakistan and others v. Basharat Ali and others 1996 SCMR 201; Attaullah Shaikh v. WAPDA and others 2001 SCMR 269; 2001 SCMR 789 = 2001 PLC (C.S.) 725; 2001 SCMR 269 = 2001 P L C (C.S.) 316 and 2001 PLC 743 ref.

Shahid Anwar Bajwa for Appellants.

Shabbir Ahmed Awan for Respondent.

Date of hearing: 2nd April, 2002.

2002 PLC 336

[Sindh Labour Appellate Tribunal]

Before Justice (Retd.) Munawar Ali Khan, Chairman

Messrs SHAHEEN AIRPORT SERVICES TERMINAL NO.2, KARACHI

Versus

KHALID NASEEM

Miscellaneous Application No. 116 of 2000, decided on 23rd April, 2002.

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

‑‑‑‑S.50‑‑‑Interpretation of order passed by Labour Tribunal‑‑‑Labour Tribunal in its order directed reinstatement of employee with only 30% back benefits‑‑‑Employer had filed, petition for interpretation of said order‑‑­Under S.50(1) of Industrial Relations Ordinance, 1969 only award or settlement could be referred to Labour Tribunal for interpretation but Labour Tribunal's own decision could not be referred to it for interpretation would amount to review of its own decision which was not permissible under law‑‑‑Decision of Labour Tribunal, sought to be interpreted, having been delivered about 14 years before filing of petition for interpretation, petition was hit by laches.

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

‑‑‑‑S.50‑‑‑Interpretation of order passed by Labour Tribunal‑‑‑Interpretation was needed only when any doubt or difficulty was found about any award or settlement‑‑‑Labour Tribunal in ° the order sought to be interpreted had directed reinstatement of employee in service with only 30% of back benefits forthwith and said order was clear on the face of it‑‑‑Word 'back benefits' had clearly shown such benefits which employee had acquired up to date of his reinstatement‑‑‑No doubt or difficultly existed in understanding order of Labour Tribunal especially when after decision of Labour Tribunal, decision of High Court as well as Supreme Court had also been given‑‑‑Petition under reference being meritless same was dismissed.

Abdul Rehman Butt for Applicant.

Siddique Malik for Respondent.

Date of hearing: 18th April, 2002.

2002 P L C 343

[Sindh Labour Appellate Tribunal]

Before Justice (Retd.) Munwar Ali Khan, Chairman

MAHMOOD HUSSAIN

Versus

Messrs COMMISSION SCIENCE AND TECHNOLOGY

Appeal No.KAR‑41 of 2001, decided on 7th February, 2002.

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‑‑‑Grievance petition, maintainability of‑‑‑Security guard whether a workman‑‑‑Services of Security Guard 'were terminated verbally without assigning any reason and without giving him any notice‑‑‑Petitioner in his ;grievance petition and in his affidavit it filed in support of grievance petition had himself mentioned that he had been serving as Security Guard and he had nowhere stated that in addition to working as Security Guard he had been doing any duties of workman also‑‑‑Labour Court, in circumstances, had correctly found that Security Guard was not included in the definition of 'workman' either in West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 or in Industrial Relations Ordinance, 1969‑‑‑Petitioner being not a 'workman', his grievance petition was not maintainable.

M.A.K. Azmati for Appellant:

Nemo for Respondent.

Date of hearing: 7th February, 2002.

2002 P L C 14

[Lahore High Court]

Before Ijaz Ahmad Chaudhary, J

MUHAMMAD KHALID

versus

SUPERINTENDING ENGINEER, HIGHWAY CIRCLE, G.T. ROAD, GUJRANWALA and 2 others

Writ Petition No. 1167 of 1994, decided on 10th September, 2001.

Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑Ss. 2(xxviii), 25‑A & 37(3)‑‑‑Constitution of Pakistan (1973), Art. 199‑‑­Constitutional petition‑‑‑Status of ad hoc employees as civil servants‑Grievance petition, maintainability of‑‑‑Petitioner appointed as junior clerk on ad hoc basis initially for a period of six months against the leave vacancy, was allowed to continue, but on resuming duty by the person who was on leave, he was relieved from service‑‑‑Grievance petition filed by the petitioner against order of the Authority was accepted by the Labour Court ordering his reinstatement but Labour Appellate Tribunal set aside order passed by Labour Court holding that the petitioner being civil servant, was not competent to invoke provisions of S.25‑A of Industrial Relations Ordinance, 1969‑‑‑Validity‑‑‑Ad hoc employees were also civil servants and they could avail remedy by .filing appeal before Service Tribunal‑‑‑Judgment passed by Labour Appellate Tribunal on correct interpretation of law, could not be interfered with by High Court in Constitutional petition.

PLD 1996 SC 610 ref.

Muhammad Zaman Qureshi for Petitioner.

2002 P L C 25

[Lahore High Court]

Before Tanvir Bashir Ansari, J

FAUJI FERTILIZER COMPANY

versus

PUNJAB LABOUR APPELLATE TRIBUNAL and others

Writ Petition No.202 of 1988/BWP, heard on 15th June, 2001.

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

‑‑‑‑S.25‑.A‑‑‑West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.0.12(3)‑‑‑Termination of employment‑‑‑Remedy against such order‑‑Filing of grievance petition‑‑­Validity‑‑‑When an employee covered under Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, is aggrieved by termination etc., of his service, such employee can take action in accordance with the provisions of S.25‑A of Industrial Relations Ordinance, 1969, and the provisions apply as they apply to redress of individual grievance.

Trustees of the Port of Karachi v. Muhammad Saleem 1994 SCMR 2213 and Allied Bank of Pakistan Ltd., v. Punjab Labour Appellate Tribunal and others 1996 PLC (C.S.) 702 distinguished.

(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(3) & 18‑‑‑Grievance of worker ‑‑‑Redressal of‑‑‑Procedure‑‑‑Discussed.

(c) 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‑‑­Establishment covered under the provisions of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance; 1968‑‑‑Where employee of 'establishment was aggrieved of action which was in violation of the rights guaranteed to him under the law, the employee could take his' grievance to Labour Court under S.25‑A of Industrial Relations Ordinance, 1969.

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

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Scope‑‑‑Plea not raised before relevant forums‑‑‑Where an objection was not taken before the forums below, held, such objection could not be taken for the first time in Constitutional jurisdiction .

(e) 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‑‑­Grievance petition‑‑‑Establishment connected with or incidental to Armed Forces of Pakistan‑‑‑Effect‑‑‑Where rights of employee of the establishment were secured and guaranteed, under S.O. 12(3) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, such employee could validly approach Labour Court.

Zainul Abidin v. Col. (Retd.) Feroze Hussain, Senior Manager (Admn), Army Welfare Trust Cement Plant, Nizampur 1998 PLC 32 ref.

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

‑‑‑‑Ss. 2(i), Sched. & 1(a)(i)‑‑‑"Permanent workman"‑‑‑Defined‑‑‑Where employee was engaged on work of permanent nature likely to last for more than 9 months, such employee was a permanent workman.

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

‑‑‑‑S.25‑A‑‑‑Constitution of Pakistan (1973) Art. 199‑‑‑Constitutional petition‑‑‑Industrial dispute‑‑‑Grievance petition‑‑‑Concurrent findings of facts by the Courts below‑‑Reinstatement of workman‑‑‑Labour Court allowed the grievance petition and reinstated the workman‑‑‑Order of reinstatement was maintained by the Labour Appellate Tribunal ‑‑‑Validity‑‑­Concurrent findings of facts arrived at by both the Courts of exclusive jurisdiction did not suffer from any misreading or non‑reading of evidence‑‑‑High Court declined to interfere in the orders passed by the Courts below in exercise of its jurisdiction under Art. 199 of the Constitution.

Masud Ashraf Sheikh for Petitioner.

Muhammad Suleman Malik for Respondent No.3.

Date of hearing: 15th June, 2001.

2002 P L C 102

[Lahore High Court]

Before Maulvi Anwarul Haq, J

S.A. BROTHERS (PVT.) LTD. through G.M.

versus

REGISTRAR Of TRADE UNIONS, ISLAMABAD‑-‑ and another

Writ Petition No. 1591 of 1998, heard on 19th July, 2001.

Industrial Relations Ordinance (XXIII of 1969)‑‑‑

--‑Ss. 7, 8, 9, 10 & 22‑‑‑Constitution of Pakistan (1973), Art.l99‑‑­Constitutional petition‑‑‑Registration of trade union‑‑‑Issuance of Registration Certificate and Collective Bargaining Agent Certificate---Cancellation of certificate‑‑‑Trade union was registered by Registrar Trade Unions on the basis of list of‑employees procured by the Registrar from the employer‑‑‑Certificates issued by the Registrar in favour of the union were challenged by the employer on the ground that those were issued without joining the employer‑company‑‑‑Validity‑‑‑Employer had nowhere alleged that any particular member of the union was not its employee‑‑‑Employer, in circumstances, would have no locus standi to challenge the certificates issued in favour of the union only on ground that it had been joined in the proceedings‑‑‑Employer had alleged that certificates in favour of union were issued without verification of membership of employees, but was unable to point out a single member to be an outsider‑‑‑Case of the employer before High Court was of misrepresentation and Constitutional petition had constituted gross abuse of the process of law and the process of Court which was dismissed with heavy costs.

Messrs Kohinoor Tea (Pvt.) Ltd. through Managing Director v. Registrar of Trade Unions, Karachi and 2 others 2000 PLC 1; Essa Cement Industries Workers' Union v. Registrar of Trade Unions, Hyderabad Region, Hyderabad and 4 others 1998 SCMR 1964 and Ghee Corporation of Pakistan v. The Registrar, Trade Unions 1991 PLC 207 ref.

Tausif Asif for Petitioner.

Qazi Ahmad Naeem Qureshi, Federal Counsel for Respondent No. 1.

Farhat Nawaz Lodhi for Respondent No.2.

Date of hearing: 19th July, 2001.

2002 P L C 116

[Lahore High Court]

Before Ijaz Ahmad Chaudhary, J

ALTAF HUSSAIN

versus

PUNJAB LABOUR APPELLATE TRIBUNAL, LAHORE and 2 others

Constitutional Petition No. 8144 of 1994, heard on 27th September, 2001.

Service Tribunals Act (LXX of 1973)‑‑‑

‑‑‑‑S 2‑A‑‑‑Constitution of Pakistan (1973), Arts. 199 & 212‑‑‑Removal from service‑‑‑Constitutional petition, maintainability of‑‑‑Petitioner, who was removed from service after charge‑sheeting him and holding inquiry against him, filed grievance petition before Labour Court which was dismissed and appeal filed against judgment of the Labour Court was also dismissed by the Labour Appellate Tribunal‑‑‑Said judgments had been challenged by the petitioner before the High Court by filing Constitutional petition‑‑­Maintainability‑‑‑After induction of S.2‑A in Service Tribunals Act, 1973, the employees of the Railways Authority had become civil servants and the matter relating to the terms and conditions of their services could only be agitated before the Service Tribunal and the High Court could not exercise its jurisdiction in such matters due to bar contained under' Art.212 of the Constitution of Pakistan (1973)‑‑‑Petitioner being employee of Railway Authority could agitate matter before Service Tribunal and High Court could not entertain his Constitutional petition even if order of removal from service passed against him was without lawful authority and liable to be set aside.

1999 SCMR 197; 2000 SCMR 179; 1991 SCMR 1192 and 1989 PLC (C. S.) 741 ref.

Ch. Munawar Ahmad Javed for Petitioner.

Muhammad Nawaz for Respondent No.3.

Date of hearing; 27th September, 2001.

2002 P L C 131

[Lahore High Court]

Before Sheikh Abdur Razzaq, J

ALLIED BANK OF PAKISTAN LTD. through Vice‑President/Zonal Chief, Zonal

Office, Bahawalpur

Versus

M.R. NADEEM and another

Writ Petition No. 213 of 1984, heard on 1st March, 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)‑‑‑Constitution of Pakistan (1973). Art. 199‑‑‑Constitutional petition‑‑‑Workman‑‑‑Dismissal from service‑‑ ‑Status of employee‑‑­Grievance application, maintainability of‑‑‑Applicant, a Bank employee working in Grade III was dismissed from service on charge of misconduct‑‑­Grievance application filed by the applicant was dismissed by the Labour Court but was accepted by Labour Appellate Tribunal‑‑‑Employer‑Bank filed Constitutional petition against the order of the Labour Appellate Tribunal‑‑­Validity‑‑‑Nature of duties of the applicant had shown that he had been the Manager of the Bank in different branches, and was also working in the same capacity whey he was issued a charge‑sheet and was dismissed from service‑‑‑Fact that the applicant had been issued power of attorney on behalf of the employer‑Bank, would mean that he was not a workman, but was an officer‑‑‑Applicant having failed to prove that he was "workman", the Labour Court was justified in dismissing his grievance application.

Basit Babar Chaughtai for Petitioner.

Nemo for Respondents.

Date of hearing: 1st March, 2001.

2002 P L C 136

[Lahore High Court]

Before Muhammad Sair Ali, J

Messrs PARADISE SNACK BAR through Managing Partner

Versus

PUNJAB EMPLOYEES' SOCIAL SECURITY INSTITUTION, GULBERG, LAHORE

Civil Revision No. 801‑D of 1992, decided on 7th November, 2001.

(a) West Pakistan Employees Social Security Ordinance (X of 1965)----

-----S.1(3)‑‑‑Expression 'as the Government may, by notification, this behalf'‑‑‑Scope‑‑‑Expression means that till such notification is issued by the. Government specifying the date and the establishment etc. therein, the provisions of the West Pakistan Employees. Social Security Ordinance, 1965 do not automatically apply to art establishment‑‑‑Such statutory provision mandatorily provides that the West Pakistan Employees' Social Security Ordinance, 1965, can only be made applicable upon issuance of a notification by the Government specifying and particularizing the "areas, classes of persons, industries or establishments" to which the provisions of the said Ordinance are meant to be applied‑‑‑Unless and until such areas, classes of persons, industries or establishments are named in the notification, the provisions of the West Pakistan Employees' Social Security Ordinance, 1965, cannot be extended to them.

(b) West Pakistan Employees' Social Security Ordinance (X of 1965)‑‑‑

‑‑‑‑S.1(3)‑‑‑Notification No.11‑17(Lab‑II)75, dated 21‑10‑1975‑‑‑Term 'premises', as employed in the Notification No.11‑17(Lab‑II)75, dated 21‑10‑1975‑‑‑Meanings‑‑‑Object and scope‑‑‑Term premises specifies the place where an 'establishment' is housed or located‑‑‑Premises' connotes a place accommodating an industry or any establishment by itself has no place in the West Pakistan Employees' Social Security Ordinance, 1965, independent of an industry, or establishment to attract applicability of the Ordinance‑‑‑Term 'premises', thus cannot be considered to be an area or a class of persons or an industry or an establishment to have a continuous applicability of the West Pakistan Employees' Social Security Ordinance, 1965, and the same cannot also be mis-constructed as a place wherein whichever person, industry or establishment is housed, automatically attracts the provisions of the said Ordinance‑‑‑Such misinterpretation can only defeat the express‑ provisions of S.1(3) of the West Pakistan Employees' Social Security Ordinance,. 1965‑‑­Notification No.11‑17(Lab‑11)75, dated 21‑10‑1975, primarily makes establishments listed in the Schedule subject to the provisions of the West Pakistan Employees' Social Security Ordinance,, 1965, and not a premises where the establishment is located.

Black's Law Dictionary, 6th Edn., Contennial Edn. (1891‑1991), p.1180 ref

(c) West Pakistan Employees Social Security Ordinance (X of 1965)‑‑‑

‑‑‑S.1(3)‑‑‑Notification No 75, dated 21‑10‑1975‑‑‑Vires of Notification No.11‑17(Lab‑II)75, .dated 21‑10‑1975‑‑‑Authorities issued notice for recovery of social security contribution to the establishment for employees‑‑‑Petitioner assailed the notice on the ground that the establishment named in the notice had been ejected from the premises after long litigation and the same had no concern with the establishment owned by the petitioner‑‑‑Trial Court decreed the suit in favour of the petitioner but the Appellate Court allowed the appeal filed by the Authorities and dismissed the suit‑‑‑Validity‑‑‑In absence of Notification under S.1(3) of the West Pakistan Employees' Social Security Ordinance, 1965, specifying petitioner's establishment therein, the provisions of the West Pakistan Employees' Social Security Ordinance, 1965, could not be applied to the petitioner‑‑‑Notice issued by the respondent Authorities to the petitioner for the recovery of contribution in respect of the employees of the petitioner was illegal and without lawful authority‑‑‑Judgment and decree passed by Appellate Court was set aside and that of the Trial Court was restored ‑accordingly.

Messrs Kwong Fah Chinese Restaurant v. Punjab Employees' Social Security Institution 1990 MLD 235 ref.

Sh. Naveed Shahryar for Petitioner.

Malik Muhammad Bashir Anwar for Respondent.

Date of hearing: 30th October, 2001.

2002 P L C 154

[Lahore High Court]

Before Maulvi Anwarul Haq, J

RICE EXPORT CORPORATION OF PAKISTAN through Resident Director and others

versus

THE COMMISSIONER WORKMEN'S COMPENSATION AND AUTHORITY and 30 others

Writ Petition No.716 of 1995, heard on 22nd January, 2002

West Pakistan Shops and Establishments Ordinance (VII of 1969)‑--

‑‑‑‑S.12(1)(2) & (6)‑‑‑Employees Cost of Living (Relief). Act, 1973 (1 of 1974), Ss.6(a) & 7‑‑‑Constitution of Pakistan (1973), Art.199‑‑­Constitutional petition‑‑‑Application claiming cost of living allowance‑‑­Jurisdiction of Commissioner Workmen's Compensation‑‑‑Applications filed by the employees were resisted by the employer contending that the Commissioner Workmen's Compensation and Authority under Payment of Wages Act, 1936 had no jurisdiction in the matter in view of the proviso to S.7 of the Employees Cost of Living (Relief) Act, 1973‑‑‑Validity‑‑­Contention of the employer was repelled because applications were filed by the employees under S.12(2) of West Pakistan Shops and Establishments Ordinance, 1969 before the Commissioner who was the Authority appointed in terms of S.12(1) of the said Ordinance where cost of living allowance of an employee was withheld or delayed, the employee under S.6(a) of Employees Cost of Living (Relief) Act, 1973 could apply to the Commissioner being an Authority appointed under S.12(1) of West Pakistan Shops and Establishments Ordinance, 1969‑‑‑Appeal would lie against the direction issued by the Commissioner to the District Court.

Zain Packaging Industries Limited v. Abdul Rashid and others 1994 SCMR 2222 and The Pakistan National Produce Company Ltd. v. Workers' Union P.N.P. Rice Mills, Dhaukkal and others 1992 SCMR 1137 ref.

Mian Ashiq Hussain for Petitioners.

Nemo for Respondent.

Date of hearing: 22nd January, 2002

2002 PLC 158

[Lahore High Court]

Before Mumtaz Ali Mirza, J

MUHAMMAD YAQOOB‑‑‑Petitioner

versus

MUSLIM COMMERCIAL BANK and others‑‑‑Respondents

Writ Petition No. 2079 of 1999, decided on 16th February, 2000.

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

‑‑‑‑Ss. 25‑A, 37(3) & 38(3)‑‑‑Constitution of Pakistan (1973), Art.199‑‑­Constitutional petition‑‑‑Dismissal from service‑‑‑Relief‑‑‑Discretionary in nature‑‑‑Equitable considerations‑‑‑Principles‑‑Grievance petition filed by petitioner against order of his dismissal from service having been dismissed by Labour Court, petitioner filed appeal before Labour Appellate Tribunal which was dismissed for non‑prosecution‑‑‑Petitioner in Constitutional petition had called in question the legality and propriety of orders of Labour Court and Labour Appellate Tribunal‑‑‑Validity‑‑‑Jurisdiction vesting in High Court under Art.199, Constitution of Pakistan (1973) being equitable in nature, was discretionary which ought not be exercised in favour of a person whose conduct was open to serious question.

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

‑‑‑‑Ss. 37(3) & 38(3)‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Appeal before Labour Appellate Tribunal‑‑‑Constitutional jurisdiction, exercise of‑‑­Appellant remained absent and appeal was dismissed by the Appellate Tribunal for non‑prosecution‑‑‑Appellant was so negligent and care‑free in his conduct that he moved application for restoration of appeal beyond time which application too was dismissed for non‑prosecution‑‑‑Another application filed for revival of first application seeking restoration of appeal vas also dismissed for non‑prosecution‑‑‑Appellant, in the light of such conduct was not entitled to any indulgence of High Court in exercise of its equitable and discretionary jurisdiction.

Ch. Muhainmad Ayub for Petitioner.

Shahid Anwar Bajwa for Respondents Nos. 1 and 2.

2002 P L C 207

[Lahore High Court]

Before Syed Jamshed Ali, J

BOARD OF INTERMEDIATE AND SECONDARY EDUCATION, FAISALABAD through Secretary B. I. S. E., Faisalabad

Versus

THE PRESIDING OFFICER, PUNJAB LABOUR

COURT NO.4, FAISALABAD and others

Writ Petition No. 15162 of 1997, heard on 9th April, 2002.

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

‑‑‑‑Art. 199‑‑‑Alternate remedy‑‑‑Rule that availability of an alternate remedy is an impediment in exercise of Constitutional jurisdiction is only regulatory:

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

‑‑‑Ss.255‑A & 38(3)(a)‑‑‑Civil Procedure Code (V of 1908), O.XXXIX, Rr. 1 & 2‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑­Termination of service‑‑‑Grievance petition seeking reinstatement in service ‑‑‑Labour Court allowed employee's application for grant of temporary injunction in terms of suspending said order ‑‑‑Validity‑‑­Reinstatement to service was the main relief, which could not have been granted by way of interim order‑‑‑Labour Court had itself observed that question, whether employee was a workman or not, could not be decided without recording of evidence‑‑‑Labour Court could not have proceeded to 0rant interim relief without first finding that it had jurisdiction in the matter‑‑‑In absence of determination of question of jurisdiction, it could not be said that employee had a prima facie case‑‑‑Employee, if ultimately succeeded, would be entitled 'to salary for the period, he remained out of service, but if he failed, it would not be possible for employer to recover the salaries drawn by employee, because he would have continued in service under an interim order‑‑‑Balance of convenience was in favour of the employer‑‑‑Impugned order was manifestly arbitrary and in excess tit jurisdiction vesting in Labour Court, thus, contention of employee that remedy of revision under S.38(3)(a) of Industrial Relations Ordinance, 1969, was an adequate alternate remedy, had no merits‑‑‑‑High Court accepted Constitutional petition while declaring impugned order a without lawful authority and of no legal effect with the result that application filed by employee for temporary injunction was dismissed.

Regional Commissioner of Income‑tax and others v. Shafi Muhammad Baloch 1996 CLC 1989; Government of the Punjab through Secretary, Finance v. Punjab Public Service Commission Employees Association, Lahore and 12 others 1992 SCMR 1847; Muhammad Tariq and others v. P.I.A. and another 1998 PLC (C.S) 334; United Bank Limited v. Shamim Ahmed Khan and another 1999 SCMR 894 = 1999 PLC (C.S.) 296; Pakistan Limited, Lahore v. Punjab Labour Court No.3, Ferozewala, Sheikhupura and another 1998 TD (Labour) 3.2; Islamic Republic of Pakistan v. Muhammad Zaman Khan 1997 SCMR 1608 and Qazi Inam‑ul‑Haq v. Heavy Foundry and Forge Engineering (Pvt.) Ltd. and another 1980 SCMR 1855 rel.

Dr. Qazi Mohy‑ud‑Din for Petitioner.

Ch. Muhammad Zahid Ikram for Respondent.

Date of hearing: 9th April, 2002.

2002 P L C 234

[Lahore High Court]

Before Ijaz Ahmad Chaudhary, J

THE EXECUTIVE ENGINEER, WAPDA CONSTRUCTION

DIVISION, GUJRANWALA

Versus

MUHAMMAD IRSHAD and others

Writ Petition No. 16046 of 1997, heard on 13th March, 2002.

Industrial Relations Ordinance (XXIII of 1969)‑‑‑‑‑‑‑S.22‑A(8)(a)‑‑‑Service Tribunals Act (LXX of 1973) S.2‑A‑‑‑Constitution of Pakistan (1973),. Arts. 199 & 212(3)‑‑‑Constitutional petition‑‑‑Grievance petition‑‑‑Abatement of appeal and proceedings tinder S.22‑A of the Industrial Relations Ordinance, 1969‑‑‑Respondent was employed on work­ charged basis and subsequently the employment was converted to daily wages‑‑‑Aggrieved of the order, the respondent filed grievance petition which was allowed by the National Industrial Relations Commission‑‑­Order passed by the Commission was assailed before High Court in exercise of Constitutional jurisdiction‑‑‑Contention of the respondent was that after insertion of S.2‑A in the Service Tribunals Act, 1973, the petition had abated and only Service Tribunal had jurisdiction in the matter‑‑‑Plea raised by the petitioner was that after the insertion of the new provisions of law, the petition as well .as the proceedings before the National Industrial Relations Commission had also abated‑‑‑Validity‑‑‑Decree passed prior to the target date i.e. 10‑6‑1997, could not be said to have been abated because of the promulgation and. insertion of S.2‑A to the Service Tribunals Act, 1.973‑‑‑Constitutional petition had abated and the same was not maintainable due to bar contained in Art.212(2) of the Constitution since insertion of S.2‑A in the Service Tribunals Act, 1973‑‑‑Constitutional petition was dismissed in circumstances.

Federation of Pakistan v. Muhammad Saddiq PLD 1981 SC 249 and G.M., National Bank of Pakistan and others v. Abdul Aziz and others 2002 PLC (C.S.) 18 ref.

Civil Aviation Authority and 3 others v. Izhar. Ahmad and 144 others 2001 SCMR 328; M/s. Sui Southern Gas Company Ltd. v. Khawaja Muhammad Munir and another 2000 SCMR 702 and 1989 SCMR.197 ref.

Muhammad Ilyas Khan for Petitioner

Ch. Ghulam Qadir Cheema for Respondent No.1

Date of hearing: 13th March 2002.

2002 P L C 244

[Lahore High Court]

Before Jawwad S. Khawja, J

FAYSAL BANK LIMITED

versus

PUNJAB LABOUR COURT and another

Writ Petition No.2417 of 2002, heard on 2nd February, 2002

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

‑‑‑‑S.34‑‑‑Labour Court‑‑‑Jurisdiction‑‑‑Employee was Vice‑President of employer Bank, he was among the top‑most echelons of the Bank, therefore, considering himself as employer, invoked the jurisdiction of Labour Court under the provision of S.34 of the Industrial Relations Ordinance, 1969‑‑­Validity‑‑‑Employer in the present case was the Bank, the provision of S.34 of the Industrial Relations Ordinance, 1969, could not be invoked by the employee in his capacity as an employee‑‑‑Labour Court did not have any jurisdiction in circumstances.

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

‑‑‑‑Ss.2(xxiv), 26 & 34‑‑Term "settlement"‑‑Applicability‑‑‑Letter of employment, Staff Service Rules and Employment Policy of employer Bank were covered under the term "settlement"‑‑‑Validity‑‑‑Documents were not covered under the term "settlement"‑‑‑On the basis of such documents, the Labour Court could not exercise jurisdiction under S.34 of the Industrial Relations Ordinance 1969.

Pakistan Cycle Industrial Cooperative Society Ltd. v Punjab Labour Appellate Tribunal and others 1983 PLC 1215 ref.

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

‑‑‑S. 34‑‑Constitution of Pakistan (1973), Art.199‑‑Constitutional petition Maintainability Lack of jurisdiction‑‑‑Contention of the petitioner was that the proceedings before Labour Court were without jurisdiction, hence the Constitutional petition was maintainable Validity‑‑­Where the Labour Court lacked jurisdiction, the petitioner could not be compelled to join the proceedings‑‑‑Constitutional petition was maintainable in circumstances.

Sindh Employees Social Security Institution v. Dr. Mumtaz Ali Taj and another PLD 1975 SC 450; Farman Ullah Khan v. Agricultural Development Bank of Pakistan through Manager, Tank Branch, District Tank and 2 others PLD 2000 Pesh. 10 and Ghulam Muhammad and others v. Munir Ahmad Shah and others 1994 CLC 14 ref.

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

‑‑Ss. 34 & 38‑‑Constitution of Pakistan (1973), Art.199‑‑Constitutional petition Adequate alternate remedy‑‑Provision of revision under S.38 of the Industrial Relations Ordinance, 1969 before Labour Appellate Tribunal‑‑­Scope‑‑‑Labour Appellate Tribunal was merely vested with supervisory jurisdiction over Labour Courts which jurisdiction was exercisable by it suo motu‑‑‑Section 38 of the Ordinance (XXIII of 1969) does not afford any remedy to petitioner as of right‑‑‑Labour Court did not have the jurisdiction, adequate alternate remedy to the petitioner by way , of revision before the Labour Appellate Tribunal under S.38 of the Industrial Relations Ordinance, 1969, was not available.

Muhammad Ramzan v Trustees of Port of Karachi 1990 CLC 1086 ref.

Tariq Kamal Qazi for Petitioner

Muhammad Zaman Qureshi for Respondent No.2

Date of hearing: 27th February, 2002.

2002 P L C 269

[Lahore High Court]

Before Mian Hamid Farooq, J

PUNJAB ROAD TRANSPORT CORPORATION

through District Manager Sargodha

versus

FAQIR MUHAMMAD and another

Writ Petition No‑5867 of 1988, heard on 18th July, 2001.

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

‑‑‑‑S.1(4)(c) & S.O. 12(61‑‑‑Payment of gratuity‑‑‑Employee claimed gratuity on the basis of wages drawn by him before retirement‑‑­Employer/Punjab Road Transport Corporation contended that gratuity would be determined and calculated according to his basic pay as defined in Gratuity Rules framed by it‑‑‑Validity‑‑‑Gratuity Rules, on which employer had placed reliance, would apply to such employees of an establishment, to which provisions of Ordinance were not attracted‑‑‑Provisions of S.1(4)(e) of the Ordinance would apply to such establishments. wherein number of employees was 20 or more‑‑‑Employer Corporation was an establishment having employees far more than the number given in the Ordinance, gratuity of employee would be calculated and paid to him according to provisions of S.O. 12(6).

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

‑‑‑S.O. 12(6)-‑‑Payment of gratuity‑‑‑ Employee claimed gratuity on the basis of his wages drawn by him before retirement, whereas employer contended that it would be calculated on the basis of his basic pay‑‑‑Validity‑‑‑Gratuity amount would be calculated on the basis of all the payments made on permanent basis and regularly to him by his employer irrespective of the fact that those were termed as allowances etc.‑‑‑All allowances given to employee would be included in the term "wages" and he would be entitled to payment of amount of gratuity on the basis of such wages as admissible to him during the last 12 months of service.

General Manager Pakistan Railways and another v. Anwar Ahmed Khan and others 1995 PLC (C.S.) 627 and Zain Packaging Industries Limited, Karachi v. Abdul Rashid and 2 others 1994 SCMR 2222 ref.

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

‑‑‑‑S.15‑‑‑West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968). S.O. 12(6)‑‑‑Constitution of Pakistan (1973) Art.199‑‑‑ Constitutional petition‑‑‑Payment of gratuity‑‑‑All the forums below had found that employer had illegally and on erroneous notions withheld payment of gratuity amount to its employee, who had served same for more than 26 years‑‑‑All this was done to satisfy the ego of slime top notches of employer Corporation, who thought it fit to incur heavy expenses on litigation starting right from bottom upto High Court instead of paying petty amount of gratuity to its employee‑‑‑Employee was retired from service on 29‑i2‑1986 and had spent rest of his life in litigation lighting for his rights only to get a petty amount‑‑‑Such state of affairs was alarming, as public money had been wasted in such a reckless manner, which had resulted in closing down of employer Corporation‑‑‑ Impugned judgment passed by Labour Appellate Tribunal was legal, unexceptionable and did not call for interference by High Court in exercise of its jurisdiction under Art‑199 of Constitution, which was discretionary and equitable‑‑‑Constitutional petition was dismissed being devoid of merits.

Malik Ghulam Hussain and Yousaf Hussain Dilawri for Respondents.

Date of hearing: 18th July, 2001.

2002 P L C 323

[Lahore High Court]

Before Maulvi Anwarul Haq, J

MUHAMMAD KHALIL

Versus

THE PRESIDENT, BOLAN BANK LIMITED and 6 others

Writ Petition No. 16109 of 2000, heard on 31st May, 2002

(a) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O. VII, R.1 (c)‑‑‑Cause of action‑‑‑Meaning‑‑‑Cause of action means entire bundle of acts which a party is required to prove, if denied by other party.

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

‑‑‑‑Ss.25‑A, 36 & 38‑‑‑Termination of services‑‑‑Grievance petition‑‑­Maintainability of‑‑‑Territorial jurisdiction of Labour Court and Labour Appellate Tribunal‑‑‑Grievance petition filed by employee against termination of his services was resisted by employer contending that Labour p Court at F had no territorial jurisdiction to decide petition as employee was working at Q when his services were terminated‑‑‑Both‑Labour Court and Appellate Labour Tribunal concurrently dismissed grievance petition being not maintainable‑‑‑Termination order, though was served upon employee when he was serving at Q but employee was charge‑sheeted while he was performing his duties at F and enquiry against employee was also conducted at F‑‑‑After conducting enquiry at F employee was transferred to Q where termination order was served upon him‑‑‑Employer '(Bank), which was a Corporation, had a subordinate office at F where a part of cause of action had arisen against employee‑‑‑Employee though was serving at Q when termination order was served upon him, but no part of cause of action had accrued to him at F‑‑‑Both Labour Court and Labour Appellate Tribunal, in circumstances, had acted without lawful authority in refusing to hear grievance petition of employee and dismissing same being not maintainable on ground of lack of territorial jurisdiction‑‑‑Order of both forums were set aside declaring without lawful authority.

Rana M. Aslam Saleem for Petitioner.

Bashir Ahmad for Respondents Nos. 1 to 5.

Date of hearing: 31st May, 2002.

2002 P L C 338

[Lahore High Court]

Before Ch. Ijaz Ahmad, J

MUNIR AHMAD

Versus

DIRECTOR, WATER AND SANITATION AGENCY, F.D.A FAISALABAD and 6 others

Writ Petition No.5863 of 1992, decided on 4th December, 2001.

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

‑‑‑‑Ss.25‑A, 37 & 38‑‑‑Constitution of Pakistan (1973), Art.199‑‑­Constitutional petition, maintainability of‑‑‑Dismissal of grievance petition‑‑­Both Labour Court and Labour Appellate Tribunal had given concurrent finding of fact against the petitioner to the effect that there was nothing to reveal that any rule was violated or flouted by the employers in either regularizing the services of co‑employees/respondents or in their promotion‑‑‑Constitutional petition filed by the petitioner was not maintainable against said concurrent findings of fact of forum below‑‑‑High Court had no jurisdiction to substitute its own, findings in place of the Tribunal below in circumstances.

Muhammad Haleem's case PLD 1969 SC 270; Inayat Ali and another v. Manzoor Ullah and another 1987 SCMR 407;‑ Muhammad Iqbal Khokhar's case PLD 1991 SC 35; Faiz Ahmad v. The Registrar, Cooperative Societies PLD 1962 SC 315; M.H. Mirza v. Federation of Pakistan 1994 SCMR 1024; National Grindlays Bank Ltd. v. Homi F‑Behrama and 2 others. PLD 1979 Kar. 692; Ata Ullah Malik's case PLD 1964 SC 236; Khuda Bukhsh's case 1974 SCMR 279; Abdul Rehman Bajwa's case PLD 1981 SC 522; Muhammad Sharif's case PLD 1981 SC 246; S.W.H. Jafri v. Muhammad Salik Sheikh and 20 others 1979 PLC 43; Mussadaq Hussain's case' PLD 1973 Lah. 600 and Muhammad Anwar Hussain v. Chairman, B.I.S.E., Gujranwala 2000 PLC (C.S.) 678 ref.

Ch. Muhammad Azam Bhaur for Applicant.

Ali Akbar Qureshi for Respondents Nos. l and 2.

Munawar A. Javed for Respondents Nos.3 to 5.

2002 P L C 20

[National Industrial Relations Commission]

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

AMIR AHMAD EX‑GUARD GRADE‑I NESPAK (PVT.) LTD.

versus

MUHAMMAD AKRAM KHAN, EXECUTIVE SENIOR VICE‑PRESIDENT, NESPAK LAHORE and another

Appeal No. 12(105) of 1998‑L.

Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑Ss. 15, 22‑D & 53‑‑‑Dismissal from service‑‑‑Unfair labour practice by the employer‑‑‑Appeal before National Industrial Relations Commission‑‑­Employee was dismissed from service after issuing him charge‑sheet and holding departmental inquiry against him on allegation that he had subjected his colleague to physical violence by causing him injuries with the knife and thereafter he remained absent from duty‑‑‑Employee was found guilty in the inquiry in which he also participated‑‑‑Employee could not prove by whatever evidence that he had been victimized on account of his lawful trade union activities or his political ideas amounting to unfair labour practice by the employer‑‑Complaint was filed by the employee after more than two years from his dismissal from service without offering any explanation of the inordinate delay‑‑‑Effect‑‑‑Employee/complainant, held, was rightly dismissed from service in circumstances and order of his dismissal would not call for interference in appeal by the Commission.

Sahibzada Muhammad Anwar for Appellant.

Jawad Hassan for Respondents.

2002 P L C 24

[National Industrial Relations Commission]

Before Zia Mahmood Mirza, Chairman, Ghulam Nauman Sheikh and Allah Rakhio Leghari, Members

ABDUL QAYYUM

versus.

NATIONAL BANK OF PAKISTAN.

Appeal No. 12 (44) of 2000/L, decided on 14th November, 2000.

Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑Ss. 22‑A(8)(g) & 22‑D‑‑‑Dismissal from service‑‑‑Petition of employee under S.22‑A(8)(g) of the Ordinance‑‑‑Limitation‑‑‑Appeal before National Industrial Relations Commission‑‑‑Petition filed by employee under S.22‑A(8)(g) of Industrial Relations Ordinance, 1969 against his dismissal from service was dismissed by Single Bench of National Industrial `Relations Commission on the ground of laches‑‑‑Petition was filed after about thirteen years from dismissal from service‑‑‑In absence of any reasonable explanation for said inordinate delay, petition was rightly dismissed on the ground of laches‑‑‑Appeal against dismissal of petition filed about two and half years after dismissal order, also being time‑barred, was also liable to be dismissed on that ground.

H.R. Haider for Appellant.

2002 P L C 36

[National Industrial Relations Commission]

Before Ghulam Nauman Shaikh, Member

MUHAMMAD RAFIQUE QURESHI

versus

Messrs SUPER BISCUIT FACTORY MUSLIM TOWN, PHULILI, HYDERABAD through Proprietor and 2 others

Case No.7(16) of 2001, decided on 16th August, 2001.

Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑Ss. 22‑A(8)(g) & 22‑C‑‑‑National Industrial Relations Commission (Procedure and Functions) Regulations, 1973, Regln. 32(2)(c)‑‑‑Complaint against violation of ad interim order‑‑‑Complainant/petitioner had alleged that in his petition filed under S.22‑A(8)(g) of Industrial Relations Ordinance, 1969, ad interim order was passed directing respondent not to close down factory without prior permission of the Labour .Court which had been violated by the respondent/contemner by closing down the factory‑‑­Sole proprietor of factory concerned was not made party in said petitions and persons against whom petitions were filed neither were parties nor had any concern with the factory and ad interim prohibitory order was also not served on the respondent‑‑‑Main petition under S.22‑A(8)(g) of Industrial Relations Ordinance, 1969 having been dismissed being not maintainable, complaint filed by the complainant under S.22‑C of said Ordinance, was also dismissed being not maintainable.

Rana Mehmood Ali Khan, Representative for the Complainant.

Mehboob Rizvi for Respondents.

2002 P L C 48

[National Industrial Relations Commission]

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

MANAGING DIRECTOR, SARGROH VEGETABLE GHEE & GENERAL MILLS, FAISALABAD

versus

Syed KAUSAR HUSSAIN SHAH

Appeals Nos. 12(105) and 24(1208) of 1995‑L, decided on 14th July, 2000.

Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑Ss. 22‑A(8)(g) & 22‑D‑‑‑Petition against cancellation of appointment‑‑­Limitation‑‑‑Appeal before National Industrial Relations Commission‑‑­Petition was filed by the employee four years after cancellation of his appointment and no cogent explanation for such inordinate delay had been furnished by the employee‑‑‑Employee also failed to produce any evidence to. prove allegation of unfair4abour practice against the employer and Single Bench of National Industrial Relations Commission had also not looked into the said fact while accepting the petition of the employee‑‑‑Petition was liable to be dismissed both on merits and also on ground that same suffered from gross laches‑‑‑Order of Single Bench of the Commission was set aside in appeal.

Aurangzeb Khan for Appellant.

Abdul Hafeez Amjad for Respondent.

2002 P L C 59

[National Industrial Relations Commission]

Before Zia Mehmood Mirza, Chairman, Muhammad Hussain Ch., Senior Member and Najeebullah Malik, Secretary, Labour, Punjab

PUNJAB SEED CORPORATION

Versus

WALI MUHAMMAD

Appeal No.12(50) of 2000, decided on 6th July, 2000.

(a) Industrial Relations Ordinance (XXIII of 1969)‑‑‑‑‑‑‑Ss.22‑A(8)(g), 22‑D & 25‑A‑‑‑National Industrial Relations Commission (Procedure and Functions) Regulations, 1973, Regln. 32(2)‑‑‑Termination of service‑‑‑Allegation of unfair labour practice by the employer‑‑‑Temporary injunction, grant of‑‑‑Employees through their petition filed. under Ss.22‑A(8)(g) & 25‑A of Industrial Relations Ordinance, 1969 had challenged their termination from service alleging that their services had been terminated on account of their lawful trade union activities at the time when referendum proceedings were pending before Registrar, Trade Unions and they were campaigning for the union‑‑‑Employees had also filed an application under Regln. 32(2) of National Industrial Relations Commission (Procedure and Functions) Regulations, 1973 for grant of temporary injunction‑‑‑Single Member of the Commission granted application of the employees and suspended operation of termination order‑‑‑Trade Union of which applicant was Vice‑President and other employees were members, had given an undertaking in writing to the Registrar of Trade Unions that they would not participate in the referendum and they had no objection if collective bargaining agents' certificate was given to New Workers' Union and the Registrar had issued certificate accordingly‑‑‑Employees had already filed a civil suit and obtained a temporary injunction and the suit was pending before the Civil Court‑‑‑Employees did not disclose said facts in their petition filed before Single Member of the Commission‑‑‑Employees having not approached National Industrial Relations Commission with clean hands, they were not entitled to the grant of interim relief as the same being equitable and discretionary, was not to be granted to a person who came to the Court with unclean hands and had acted in an unfair and inequitable manner‑‑‑Order passed by Single Member of the Commission without adverting to vital aspects of the matter and without applying mind to the pleadings of the parties and other material placed on record could not sustain.

(b) Industrial Relations Ordinance (XXIII of 1969)‑‑‑‑‑‑‑Ss.22‑A(8)(g) & 25‑A‑‑‑National Industrial Relations Commission (Procedure and Functions) Regulations, 1973, Regln. 32(2)‑‑‑Allegation of unfair labour practice by the employer ‑‑‑Inteirm injunction, grant of‑‑­Services of the employees had already been terminated by the employer before filing their petition under S.22‑A(8)(g) of Industrial Relations Ordinance, 1969‑‑‑Act of unfair labour practice, if any, having stood completed before the employees approached National Industrial Relations Commission through their said petition, interim relief sought by the employees could not be granted to them which was attracted only to prevent an unfair labour practice likely to occur and not where it had already been committed ‑‑‑Interim order could also not be issued to restore status quo ante which in fact would amount to granting the whole relief sought in the main petition which was not permissible under law.

1999 PLC 22; 1995 SCMR 6, and 1998 SCMR 68 ref.

Ch. Abdul Wahid for Appellant.

Ch. Javed Iqbal for Respondents

2002 P L C 63

[National Industrial Relations Commission]

Before Ch. Riaz Ahmad, Member

ABID HUSSAIN SHAH

Versus

THE PRESIDENT, H.B.L, KARACHI and 3 others

Case No.4‑A(430) and 24(422) of 2000‑L, decided on 12th July, 2001.

| | | --- | | |

Industrial Relations Ordinance (XXIII of 1969)------‑S.22‑A(8)(g)‑‑‑National Industrial Relations Commission (Procedure and Functions) Regulations, 1973, Regln. 32(2)‑‑‑Service Tribunals Act (LXX of 1973), S.2‑A‑‑‑Petition for stopping the disciplinary action against the employees of Bank‑‑‑Competence‑‑‑Petitioner in his petition filed before National Industrial Relations Commission had prayed that second show‑cause notice issued to him be declared to be without lawful authority and of no legal effect and that employer be restrained from removing, retrenching, terminating and dismissing the petitioner from service‑‑‑Petitioner was an employee of Bank which was controlled and managed by Federal Government and in view of insertion of S.2‑A in the Service Tribunals Act, 1973, the petitioner had been declared to be in service of Pakistan and was deemed to be civil servant for the purpose of said Act‑‑‑Service Tribunal would have the exclusive jurisdiction, in respect of terms and conditions of his service including disciplinary matters barring jurisdiction of all other Courts except Supreme Court‑‑‑National Industrial Relations Commission, in circumstances, had no jurisdiction to entertain and adjudicate upon the petition filed by the petitioner‑‑‑Petition was rejected being incompetent.

1997 SCMR 2000; 1999 SCMR 197; 1999 SCMR 1526; Zahirullah and 13 others v. Chairman, WAPDA, Lahore and others 2000 SCMR 826; Haq v. General Manager SNGPL, Lahore and another '2000 SCMR 1925; Gulzeb Hussain v. SNGPL and 2 others 2000 SCMR 959 and 2000 PLC 554 ,ref.

Farooq Zaman Qureshi for Petitioner. Mian Abdur Rashid for Respondents.

2002 P L C 92

[National Industrial Relations Commission]

Before Justice (Retd.) Zia Mehmood Mirza, Chairman, Allah Rakhio Leghari, Member and Ghulam Sarwar Khero, Secretary Labour Sindh/Member

FATEH KHAN and 3 others

versus

MUSLIM COMMERCIAL BANK LIMITED through President

Appeals Nos. 12(02) to 12(05) of 2002‑K.

Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑Ss. 15, 22‑A(8)(g) & 22‑D‑‑‑National Industrial Relations Commission (Procedure and Functions) Regulations, 1973, Regln. 32‑‑‑West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O. 15(3)(a)‑‑‑Allegation of unfair labour practice by the employer‑‑‑ Appeal against recalling of stay order‑‑‑Employees were charge-­sheeted for wilful insubordination and subversion of discipline‑‑­Explanation of employees having not been found satisfactory, employer issued letters of inquiry to the employees‑‑‑Apprehending, that said inquiries would result in their dismissal/discharge, removal or termination, the employees filed petitions under Ss.15 & 22‑‑A(8)(g) of Industrial Relations Ordinance, 1969 alongwith stay applications under Regln. 32 of National Industrial Relations Commission (Procedure and Functions) Regulation; 1973 which were accepted by Single Bench of the Commission and interim prohibitory orders were also issued in favour of employees‑‑‑Subsequently interim orders were recalled and stay applications of the employees were dismissed and the employer dismissed the employees from service‑‑‑After recalling stay order and the employees having been dismissed from service, a new cause of action had accrued to the employees and they should have either amended their petition so as to challenge the orders of their dismissal or should have filed fresh petitions before appropriate forum‑‑‑Employees, after their dismissal from service, could not have filed appeals against' the orders recalling the interim say orders because the relief of prohibitory injunction had become nugatory and the employees could neither claim nor could they be granted any interim prohibitory relief in the appeal‑‑­Appeals filed by the employees were dismissed having become infructuous.

M. L. Shahani for Appellants.

Shahid Anwar Bajwa for Respondent.

2002 P L C 97

[National Industrial Relations Commission]

Before Riaz‑ul‑Hasan Alavi, Member

MUHAMMAD RIAZ

versus

G.M., P.C. HOTEL and another

Case No.4‑A(896) and 24(884) of 1998‑L, deicded on 13th December, 2001

Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑Ss. 22‑A(8)(g) & (9)(a)‑‑‑Unfair labour practice by employer‑‑‑Service career of employee, who was confirmed as junior steward in the establishment, was unblemished‑‑=After about six years of such service record a show‑cause notice was issued to the employee on the charge of misconduct to the effect that he despite being a permanent employee of the Government Department and working there as school teacher, had got the service in the employer establishment‑‑‑Allegation against the employee was that he being a Government employee was not entitled to work at two places simultaneously‑‑‑Employee had submitted "No‑Objection Certificate" issued by the Education Department at the time when he joined the service of the employer establishment and said certificate was duly verified‑‑‑Fact was in, the knowledge of the Education Department that the employee was also working in employer establishment after working hours of the school‑‑­Employee was suspended after holding inquiry against him, but copy of the inquiry report was not given to him and his request to issue said copy was turned down‑‑‑Employee/petitioner was permanent employee of the employer establishment and no complaint was against him‑‑‑Disciplinary action was initiated against the employee on the allegation of double employment on. the basis of a false letter‑ ‑‑No embargo existed upon the employee to serve in the employer establishment at evening time after working. hours of Government service, especially when the employee who had got the N.O.C. from the Education Department, had not concealed that fact when he joined service of employer establishment‑‑‑Employee was proceeded against illegally by the employer establishment and not only the show‑cause notice, but the inquiry proceedings. were also illegal‑‑‑Said proceedings against the employee were set aside and the employer establishment was directed to reinstate 'the employee forthwith accordingly and pay him, as back benefits, half of his salary regarding the period during which he was not allowed to perform his duty.

Ch. M.A. Khadim for Petitioner.

Ch. Fazal‑e‑Elahi for Respondents.

2002 P L C 104

[National Industrial Relations Commission]

Before Ghulam Nauman Shaikh, Member

MUHAMMAD RAFIQUE QURESHI, GENERAL SECRETARY, SUPER BISCUIT FACTORY MAZDOOR UNION, HYDERABAD

Versus

Messrs SUPER BISCUIT FACTORY, MUSLIM TOWN, PHULELI, HYDERABAD through Managing Partner and another

Case No. 4A(57)/K of 2001, decided on 16th August, 2001.

Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑Ss.15. & 22‑A(8)(g)‑‑‑National Industrial Relations Commission (Procedure and Functions) Regulations, 1973, Regln. 32(2)(cy‑‑Unfair labour practice by, the employer‑‑‑Petitioner had alleged that trade union having been formed and registered in the employer, factory, employer had threatened that factory would be closed and workers would be terminated‑‑­Petitioner had prayed that act of employer was unfair labour practice and that employer be restrained not to close down the factory without prior permission of Labour Court and not to pressurize the workers to discontinue trade union activities in the factory‑‑‑Validity‑‑‑Trade union, formed and got registered, was not Collective Bargaining Agent in the factory of the employer and the petitioner had filed the petition in his individual capacity and not :through General Secretary of the Union for which reason petition was not maintainable‑‑‑No specific instance of unfair labour practice by the employer having been mentioned, provision's of S:15 of Industrial Relations Ordinance, 1969 were not attracted‑‑‑Sole proprietor of the factory having not been impleaded, the petitioner was not maintainable also for non‑joinder and misjoinder of the parties.

Rana Mehmood Ali Khan, Representative for Petitioner.

Mehboob Rizvi for Respondent.

2002 P L C 172

[National Industrial Relations Commission]

Before: Qazi Ahmad Saeed, Member

Syed ZAFAR ABBAS

Versus

GLAXO WELLCOME PAKISTAN LIMITED and another through Station Head

Case No. 4A (227) and 24(348) of 1999, decided on 28th March, 2002.

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

‑‑‑‑Ss. 15 & 22‑A(8)(g)‑‑‑Petition before National Industrial Relations Commission against termination of service alleging unfair labour practice by employer‑‑‑Maintainability‑‑‑Petitioner/employee was dismissed from service after issuing him show‑cause notice and conducting inquiry against him on allegation of having committed theft‑‑‑Evidence on record had proved that charge‑sheet against petitioner was based on allegations of theft and petitioner could not clarify his position qua charge‑sheet in his reply‑‑­Petitioner was given opportunity of defence, he was provided opportunity to cross‑examine prosecution witnesses and to lead defence evidence in rebuttal, but he did not avail that opportunity‑‑‑Inquiry was finalized and petitioner, who was found guilty of offence, was dismissed from service‑‑­Petitioner/employee had alleged that he had been victimized for his lawful trade union activities and by so doing employers had, committed act of unfair labour practice‑‑‑Petitioner, who claimed to be Deputy General Secretary of a non‑Collective Bargaining Agent Union, had failed to establish a single trade union activity which could annoy employers to such an extent that they would go out. of their way to victimize petitioner‑‑‑Mere act of transferring petitioner from one place of working to another by employers, could also not form basis for holding that employers had committed act of unfair labour practice by dismissing petitioner‑‑‑Mere bald allegations of unfair labour practice were not sufficient to prove victimization, and thus a case for interference by National Industrial Relations Commission‑‑‑Petitioner having failed in proving unfair labour practice by employers, National Industrial Relations Commission had no jurisdiction to deal with petition filed by petitioner/employee.

1989 PLC 79; 1983 PLC 669; 1986 PLC 620; 1988 PLC 246; 1985 PLC 207; 1983 PLC 652; 1990 PLC 460; 1988 PLC 639; 1990 PLC 718; 1983 PLC 130; NLR 1980 TD 321; 1969 PLC 506; 1974 PLC (Note) 36; 1999 SCMR 705; PLD 1965 (W.P.) Lah. 394; PLD 1964 Kar. 337; 1991 PLC 160; 1991 PLC 44; 1981 PLC 609; 1990 PLC 662; 1996 PLC 162; PLD 1978 Kar. 152; 2000 PLC 537; 2000 PLC 254; 2000 PLC 557; 2000 PLC 254; 2001 PLC 79; 1992 PLC 424; 1978 PLC 115; PLD 1973 (SC) 160; 1976 PLC 392; 1977 PLC 24; 1999 PLC 191; 1969 SCMR 873; 1989 PLC 553; 1991 PLC 876; 1988 PLC 419; 1994 PLC 31; Nazar Muhammad General Manager TIP Haripur and another v. Ghulam Asghar and 4 others 1988 PLC 923; Iftikhar Ahmad, Vice‑President, National Bank of Pakistan and other's case PLD 1988 SC 53; 1985 PLD 1988 SC 53 and National Motors Limited v. Muhammad Hanif 1987 PLC 547 ref.

(b) Administration of justice‑‑

‑‑‑‑ Person who comes to a Court after concealment of material facts, is not entitled to any relief.

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

‑‑‑‑S. 22‑A(8)(g)‑‑‑Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.Os.15 & 16‑‑‑Jurisdiction of National Industrial Relations Commission‑‑‑Scope‑‑‑Jurisdiction of Commission was depended upon prima facie unfair labour practice‑‑‑Employer had a vested right to take disciplinary action against its employee, and the Commission had no jurisdiction to interfere in such matter‑‑‑Where such disciplinary proceedings/inquiry were being used as victimization or as a cover for an unjustified and unfair labour practice, then Commission would have jurisdiction to interfere with the action, otherwise jurisdiction of Commission was completely ousted.

Qalbe Ali Sheikh for Petitioner.

Ch. Abdul Rab for Respondents.

2002 P L C 189

[National Industrial Relations Commission]

Before Zia Mahmood Mirza, Chairman, Abdul Qayyum Raja and Qazi Ahmed

Saeed, Members

MUHAMMAD AKRAM

Versus

GENERAL MANAGER, F.T.R., P.T.C.L. FAISALABAD and another

Appeal No.12(79) of 2000, decided on 6th March, 2002.

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

‑‑‑‑Ss. 22‑A(8)(g) & 22‑D‑‑‑Petition before National Industrial Relations Commission against unfair labour practice by employers‑‑‑Dismissal of petition in default‑‑‑Application for restoration of petition was dismissed‑‑­Appeal before Full Bench of the Commission‑‑Employers had filed written statement and after hearing arguments of the parties; petition was fixed for orders‑‑‑Employee having failed to appear on date fixed for orders, petition was dismissed by Single Bench of the Commission for non‑prosecution‑‑­Application for restoration of petition having been dismissed employee filed appeal before Full Bench of National Industrial Relations Commission contending that petition was dismissed in default on a date which was not fixed for hearing of petition and dismissal order was passed on the date about which employee never had any notice‑‑‑Validity‑‑‑Order dismissing petition was void ab initio, nullity in eyes of law and without jurisdiction‑‑­Application for restoration of main petition was not time‑barred as no limitation would run in respect of such‑like orders‑‑‑In presence of sufficient grounds for restoration of main petition, application for restoration of main petition was accepted in appeal and matter was remanded to be decided afresh in accordance with law.

(b) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O. IX, R.8‑‑‑Limitation Act (IX of 1908), Art. 181‑‑‑Dismissal of suit, restoration of‑‑‑Limitation‑‑‑When dismissal of suit was ordered on a date not fixed for hearing then order of dismissal would not fall under O.IX, R.8, C.P.C. and such an order would be without jurisdiction and would be treated as void ab initio and period of limitation for its restoration would be governed by Art. 181 of Limitation Act, 1908.

1986 CLC 1320 and PLD 1981 Lah. 508 ref:

Naseer Ahmed Qureshi for Appellant.

Syed Ali Hassan Gillani for Respondents.

2002 P L C 192

[National Industrial Relations Commission]

Before Qazi Ahmed Saeed, Member

MUHAMMAD RAMZAN, DRIVER, NORTHERN BOTTLERS (PVT.) LTD.

ISLAMABAD

Versus

USMAN JAVAID, OPERATIONS MANAGER NORTHERN BOTTLERS (PVT.)

LTD. ISLAMABAD and another

Cases Nos.4(5), 7A(82), 4(6), 7A(80), 4(7), 4(8) and 7A(81) of 2001, decided on 26th November, 2001.

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

‑‑‑‑Ss. 8‑A, 15, 22‑A(8)(g) & 53(1)(1‑A)‑‑‑National Industrial Relations Commission (Procedure and Functions) Regulations, 1973, Regln: 32‑‑­Jurisdiction of National Industrial Relations Commission‑ Complainants/employees had alleged that they alongwith other employees had formed a trade union and they were elected as office‑bearers and submitted application for registration of their union before Registrar of Trade Unions; that employers threatened complainants of dire consequences if they did not dissolve the union and prayed that employers be punished under S.53(1), (1‑A) &, S.22‑A(8)(g) of Industrial Relations Ordinance, 1969 and complainants be allowed to resume their duties‑‑Complainants had also sought simultaneously not only a criminal remedy, but also a civil remedy‑‑­Validity‑‑‑Criminal as well as civil remedy could not be sought simultaneously through the single proceedings‑‑ ‑National Industrial Relations

Commission had no jurisdiction to take cognizance of complaint and same were not maintainable.

1987 SCMR 638; 1972 SCMR 91 and 1973 PLC 370 ref.

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

‑‑‑‑Ss. 8‑A, 15, 22‑A(8)(f)(i)(8)(g) & 53(1) & (I‑A)‑‑Transfer of Officers of Trade Union, during pendency of application for registration of trade union‑‑‑Unfair labour practice by employers‑‑‑No officer or trade union could be transferred, discharged, dismissed or otherwise punished during pendency of application for registration of trade union with Registrar Trade Unions even if such transfer, discharge or dismissal was justified under law‑‑Contravention of S.8-A of Industrial Relations Ordinance, 1969 was an offence punishable under S.53(1) of the Ordinance‑‑‑Section 8‑A of Industrial Relations Ordinance, 1969 was to cover those cases which were not covered under S.15 of the Ordinance‑‑‑Contravention of S. 8‑A in respect of local trade unions could not be tried by National Industrial Relation Commission as laid down under S.22‑A(R)(f)(i) of the Ordinance‑‑‑Act of unfair labour practice under S.15 of the Ordinance, if committed by an employer against a registered union could be tried by the Commission as well as .by Labour Court as both forums had concurrent jurisdiction‑‑‑Punishment provided under S.53(1) of the Ordinance was different from that provided under S.53(1‑A) which were penal sections for contraventions of S.8‑A & S.15 of the Ordinance respectively‑‑‑Violation of S.8‑A of the Ordinance was not an act off` unfair labour practice as defined under S.15 of the Ordinance and National Industrial Relations Commission would have no jurisdiction in the matter.

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

‑‑‑‑Ss. 8‑A, 22‑A(8)(f)(i) & (8)(g)‑‑‑Jurisdiction of National Industrial Relations Commission‑‑Complainant/employees not belonging to industrywise trade union, National Industrial Relations Commission had no jurisdiction to try offence relating to violation of S.8‑A of Industrial Relations Ordinance, 1969 as laid down under S.22‑A(8)(f))i) of Ordinance, 1969‑‑‑Plea of lack of jurisdiction could be raised orally at any stage.

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

‑‑‑‑Ss. 8‑A, 22‑A(8)(f) & 53‑‑‑Termination of services during pendency of application for registration of union‑‑‑Services of complainant/employees were terminated during pendency of application for registration of their union without permission of Registrar Trade Unions in violation of S.8‑A of Industrial Relations Commission Ordinance, 1969 which contravention was punishable under S.53(1) of the Ordinance‑‑‑Only Labour Court had jurisdiction to entertain and try such cases as laid down in S.53 of the Ordinance and jurisdiction of National Industrial Relations Commission had specifically been excluded under S.22‑A(8)(f) of Industrial Relations Ordinance, 1969‑‑‑Complaints filed before National Industrial Relations Commission were not maintainable on account of lack of jurisdiction‑‑­Complaints were returned to complainants for presentation to proper Court.

(e) Jurisdiction‑‑‑

‑‑‑‑ Issue of lack of jurisdiction can be pointed out orally at any stage.

Nisarullah Haque Aziz, Representative and Ch. Sadiq Muhammad Warraich for Complainants.

S. Naeem Bokhari for Respondents.

ORDER

By this Single Order, I propose to dispose of the above titled four complaints. All the above titled complaints were filed on 4‑10‑2001 by individual complainants separately against the respondents i.e. Usmana Javaid, Operations Manager, Sajad Malik Regional Sales Manager, Athar Niaz Distribution Manager and Zahida Anwar, Sales Manager of Northern Bottlers (Pvt.) Limited, Islamabad (hereinafter called the company) under Sections 8‑A and 15 read with section 53(1) and (1‑A) and section 22‑A(8)(g) of the I.R.O., 1969. A common allegation in all the aforesaid complaints is that the complainants alongwith others workers formed a trade union namely of Northern Bottlers Employees Union Islamabad on 2‑9‑2001 and the complainants were selected as office‑bearers i.e. President, General Secretary, Finance Secretary and Member Executive Council of the union to organise trade union activities. On 11‑9‑2001 an application for registration of the said union was submitted to Registrar. Trade Unions Islamabad and the complainant vide letter dated 12‑9‑2001 informed all the officers of the respondent‑Company about formation of the union and names of the elected office‑bearers including the complainants. It is further alleged that a news item regarding formation of the union an defection of the office­-bearers was also published in Urdu "Daily Ausaf" on 18‑9‑2001.

1. It is next alleged that the respondents started pressurising the complainants to resign from the union. They were also threatened of dire consequences, if they did not dissolve the union and the respondents started to take signatures of the complainants on gun‑point on white papers and also on some written documents. It is further alleged that on 21‑9‑2001 and again on 22‑9‑2001 the respondents alongwith their armed "Ghundas" and other officers, stopped the complainants alongwith some other members of the union at the gate of the Factory and did not allow them to enter into the premises to perform their duties. The complainants and other workers were told that if they resign from the union and dissolve it, then they could enter the Factory. But since the complainants did not agree to this suggestion, therefore, they imposed an illegal lock‑out upon the complainants and other workmen of the company. It is contended that the said action on the part of the respondents come within the mischief of section 8‑A read with section 15 of the I.R.O., 1969 as the said action was taken without permission of the Registrar of Trade Unions, Islamabad. The complainants have trade the following prayer in their complaints:‑

"This Hon'able Commission is, therefore, most respectfully prayed that respondents be punished as provided by sections 53(1) and 53(1‑A) read with section 22‑A(8)(g) of the I.R.O., 1969 and order may kindly be passed for resuming the duties by complainants or any other relief which the Hon'able Commission may deem fit. "

1. These complaints were placed before me on 6‑10‑2001. Representative of the complainants while arguing his case has submitted that since the complainants have informed the respondents about formation of trade union and also communicated the names of the office‑bearers of the union including the complainants, therefore, the action taken by the respondents in violation of section 8‑A of the I.R.O. 1969 constitute an act of unfair labour practice. After hearing representative of the complainants pre‑admission notices were issued to the respondents for filing parawise comments on the main petition counter‑affidavit on 31‑10‑2001 as the complainants have also moved their complaints under section 22‑A(8)(g) of the I.R.O., 1969 which is also clear from the prayer made in the complaints.

2. On 10‑10‑2001 the respondents moved applications for early hearing of the aforesaid complaints through Applications Nos.7A(84) of 2001, 7A(85) of 2001, 7A(86) of 2001 and 7A(87) of 2001 and also application for summary rejection/dismissal of the complaints vide Application. No. 7A(80) of 2001, 7A(81) of 2001 7A(82)/2001 and 7A(83) of 2001 which have been made part of these complaints. After hearing the learned counsel for the respondents Mr. S. Naeem Bokhari, Advocate, notices were issued to the complainants for 25‑10‑2001. On 25‑10‑2001 applications for early hearing were disposed of and all the complaints alongwith applications for summary dismissal of these, complaints were adjourned with the consent of the parties for arguments on 26‑1‑2001 and then to 1‑11‑2001.

3. In their applications for summary rejection/dismissal of the complaints, the respondents have contended that the averments made in the complaints, the conclusion of the Labour Department vide their letter dated 26‑9‑2001, telegrams dated 20‑9‑2001 and 21‑9‑2001 and letters dated 22‑9‑2001 sent by the, complainants to the Registrar of Trade Unions, Islamabad annexed with the complaints, clearly denotes and establish that the matter falls beyond the pale of jurisdiction of this Commission. It is further contended that Farooq Hashmi and Qamar Shehzad complainants in case No.4(6) of 2001 and Case No.4(8) of 2001 had earlier filed complaints No.7A(76)/2001 and 4(4)/2001 on 27‑9‑2001 and 26‑9‑2001 respectively, having the same cause . of action but the same were withdrawn unconditionally on 29‑9‑2001, therefore, the present two complaints i.e. 4(6) of 2001 and 4(8) of 2001 are clearly barred by law and an abuse of the process of this Commission.

4. I have heard learned counsel for both the parties. Learned counsel for the respondents Mr. S. Naeem Bokhari has mainly dwelt regarding jurisdiction of the Commission in entertaining the instant complaints. He contended that complainants have admitted themselves that during pendency of application for registration of their union, their services were terminated in violation of section 8‑A of I.R.O., 1969, which is an offence punishable under section 53(1) of I.R.O. 1969 anal this contention even if proved is not an unfair labour practice. He read out the complaints and pointed out that in para. 1, the complainants have submitted that they alongwith other workers have formed a trade union on 2‑9‑2001 and they were elected as office­-bearers of the said union i.e. President, General Secretary, Finance Secretary and Member Executive Committee and thereafter on 11‑9‑2001 an application for registration of the said union was submitted to the Registrar of Trade Unions, Islamabad. It is further submitted that the names of the officers of the union including the complainants were sent to the management of the company and a news item to this effect had also appeared in the national press but the complainants were not allowed by the respondents to enter the office on 21‑9‑2001 and again on 22‑9‑2001. This act on the part of the respondents occurred during pendency of the application for registration of the union before the Registrar of Trade Unions Islamabad.

5. Learned counsel for the respondents has contended that the amendment in section 8‑A was inserted with a view to protect the office-­bearers of the union or workers against any victimization during pendency of application for registration of the union. The complainants themselves admit that they had moved an application for registration of the union before the Registrar of Trade Unions, Islamabad and their services were terminated without permission of Registrar of Trade, Unions. Learned counsel pointed out that even if it is proved that the services of the complainants were terminated in violation of section 8‑A of I.R.O., 1969, this contravention is not an act of unfair labour practice. He further submitted that a bare reading of section 15 support his arguments that contravention of section 8‑A is not an unfair labour practice but constitute an independent offence punishable under section 53(1) of I.R.O., 1969, section 8‑A and section 53(1) of I. R. O., 1969 read as follows:‑‑

8‑A. "Save with the prior permission of the Registrar no officer of a trade union or workmen shall be transferred, discharged, dismissed or otherwise punished during the pendency of an application for registration of the trade union with the Registrar provide that the union has notified the names of the officers to the employer in writing."

53(1) "Whoever contravenes the provisions of section 8‑A shall be punishable with imprisonment which may extend to three years, or with fine which may extend to two thousand rupees or with both".

53(1‑A) "Whoever contravenes the provision of section 15 shall be punishable with imprisonment which may extend to (four years) or with fine which may extend to (ten) thousand rupees or with both.

Learned counsel for the respondents has further contended that in terms of the aforesaid provisions, when during pendency of an application for registration of a trade union, services of an office‑bearer of a union or a workman is terminated without permission of Registrar of Trade Unions, in violation of section 8‑A of I.R.O., 1969, the contravention shall be punishable under section 53(1) of I.R.O., 1969, and therefore, only the Labour Court has the jurisdiction to entertain and try such cases as jurisdiction of N.I.R.C. to try such offences has been specifically excluded under section 22‑A(8)(f)(1) of I.R.O., 1969. Therefore, the instant complaints cannot be tried by the Commission. Section 22‑A(8)(f) reads as follows:

"to try offences \ \ \ \ \ \ punishable as under‑‑‑

(i) section 53, other than subsections (1) and (5) thereof and

(ii) any other sections, insofar as they relate to employers or workers in relation to an industrywise trade union, a federation of such trade unions, a federation at the national level or officers of such union or federation.

1. Learned counsel for the respondents has further contended that the complaints also contains the prayer that the complainants be reinstated in service but without any definite prayer that they may be reinstated in service after passing a sentence against the respondents. In the present case the complainants have not requested that they may be reinstated after passing the sentence. In other words, the complainants are seeking their remedy under section 22‑A(8)(g) of I.R.O., 1969 and not under Regulation 32(1) of N.I.R.C. (P&F) Regulations, 1973. The complaints are also bad in law because they are seeking criminal as well as civil remedy simultaneously.

2. Learned counsel for the respondents has also drawn my attention to section 22‑A(8)(f) of I.R.O., 1969 and urged that N.I.R.C. had the jurisdiction to try offences punishable under section 53, other than subsections (1) and (5) thereof and there is no dispute that union of the complainants (whose application for registration was pending) is a local union and not an industrywise trade union. He further contended that neither gist of evidence nor names of witnesses had been given and that insofar as Farooq Ahmed Hashmi and Qamar Shahzad are concerned. Similar complaints having been withdrawn unconditionally and the subsequent complaint was barred and an abuse of the law and process of this Commission.

3. Learned counsel for the complainants Ch. Sadiq Muhammad Warraich has argued that applications for summary dismissal, of the complaints are not supported by any provision of law, and he is prepared to withdraw the entire averments made in the complaints as to violation of section 8‑A, trial of which under section 53(1) of I.R.O., 1969, is beyond the pale of jurisdiction of this Commission. He further contended that in addition to violation of section 8‑A, there were averments which constitute unfair labour practice and therefore, the complaints should not be dismissed/rejected merely because they contained material or references to such sections, provisions of which are beyond or outside the jurisdiction of this Commission. He also submitted that a second complaint was not, barred unless in the first complaint a person had been tried and convicted. He referred to 1987 SCMR 638. 1972 SCMR 91 and 1973 PLC 370. Lastly he argued that reference to a wrong section or misdescription of law is immaterial and the Court must take all material on record into account.

4. After hearing arguments of both the parties, I have come to the conclusion that the following three issues emerge regarding jurisdiction of the Commission and maintainability of the complaints:‑‑

(i) Can the Commission entertain a complaint if it is moved under section 22‑A (8)(f)(1) read with section 22‑A(8)(g) of I.R.O., 1969?

(ii) Whether violation of section 8‑A is an act of unfair labour practice as defined under section 15 of the I.R.O., 1969?

(iii) Whether violation of section 8‑A in respect of a union registered with the Provincial or Local Registrar of Trade Unions, can be tried under section 53(1) of I.R.O., 1969, by the Commission?

(a) As regards the issue raised at Serial No. 1, I am of the firm view that criminal as well as civil remedy cannot simultaneously be sought through a single proceedings. A perusal of the prayer as reproduced at para. 2 above would show that section 22‑A (8)(g) of I.R.O., 1969 has also been mentioned and the words 'after conviction of the respondents' are conspicuously absent. The complainants have sought simultaneously not only a criminal remedy but also a civil remedy which they cannot sought through a single proceedings. In this regard the Provision added under Regulation 32(2)(1) of the N.I.R.C (Procedure and Functions) Regulations, 1973 are crystal clear which read as follows:‑‑

'Provided that the Commission while awarding punishment under section 53 may also direct the reinstatement of a worker and allow consequential benefits to him."

In view of the' above, I hold, that this Commission has no jurisdiction to take cognizance of the instant complaints and accordingly the same are not maintainable.

(b) As regards interpretation of the issue at Serial No.II whether violation under section 8‑A can be equated with the term unfair labour practice" as defined under section 15 of the I.R.O. 1969 I would like to refer to the headings of section 8‑A and section 15 which read as follows:‑‑

Section 8‑A. "Transfer etc. of officers of trade union during pendency of application for registration."

Section 15. "Unfair labour practice on the part of the employers."

A bare reading of section 8‑A would clearly show that no officer of trade union can be transferred, discharged, dismissed or otherwise punished during the pendency of an application for registration of the union with Registrar, even if such transfer, discharge or dismissal is justified under the law. Contravention of section 8‑A is an offence which is punishable under section 53(1) of the Ordinance. While on the other hand if a worker is dismissed, discharged or removed from employment or threatened in respect of his employment by reason that he is a member or officer of a trade union or participating in promotion, formation or activities of a trade union, in contravention of section 15 of I.R.O., 1969, the offence shall be punishable under section 53(1) of I.R.O., 1969. It may be submitted that section 8‑A has been inserted by the law framers vide Industrial Relations (Amendment) Act, 1973 to cover those cases which are not covered under section 15 of the Ordinance. It may also be noticed that contravention of section 8‑A in respect of local trade unions cannot be tried by the Commission as laid down under section 22‑A (8)(f)(1) of the I.R.O., 1969, while an act of unfair labour practice as envisaged under section 15 of the Ordinance if committed by an employer against a union registered with the Provincial/Local Registrar of Trade Unions, can be tried by the Commission is well by the Labour Court as both the forums have the concurrent jurisdiction. Needless to add that the punishment provided under Section 53(1) is different from' that provided under section 53(1-A) which are the penal sections for contravention of Section 8‑A and section 15 respectively. I, therefore, hold that violation of section 8‑A is not an act of unfair labour practice as defined under section 15 of the Ordinance.

1. As regards jurisdiction of the Commission to try offences in respect of violation of section 8‑A in the" case of locally registered trade unions I would like to mention that section 22‑A(8)(f)(1) of the Ordinance lays down that it is the function of the Commission to try offences punishable under section 53 other than subsections (1) and (5) thereof. Subsection (1) of section 53 lays down that 'whoever contravenes the provisions of section 8‑A shall be punishable with imprisonment which may extend to three years, or with fine which may extend to two thousand rupees or with both' and therefore, under section 64 of the Ordinance, the Labour Court has the jurisdiction to try such cases in respect of locally formed union. However, section 22‑A (8)(f)(ii) lays down that the Commission has got the powers to try the offences punishable under any other section insofar as they relate to employers or workers in relation to an industrywise trade union, a federation of trade unions, a federation at the national level or officers of such unions or federation. I, therefore, hold that since in the instance cases the complainants do not belong to an industrywise trade union, therefore, the Commission has no jurisdiction to try the offence relating to the Violation of section 8‑A of the Ordinance, laid down under section 22‑A (8)(f)(i) of I.R.O., 1969. The judgment cited by the learned counsel for the complainants are not relevant to the facts of the present cases. Further issue of lack of jurisdiction can even be pointed out orally at any stage.

2. As discussed above, on minute examination of the pleadings of the parties and their respective versions, I find force in the objection raised on behalf of the respondents to the maintainability of the present complaints. It is an admitted position that services of the complainants were terminated during pendency of application for registration of their union without permission of the Registrar Trade Unions Islamabad in violation of section 8‑A of LR.O., 1969, which contravention is punishable under section 53(1) of I.R.O., 1969, therefore, only the Labour Court has the jurisdiction to entertain and try such cases as laid down under section 53 of I.R.O., 1969 jurisdiction of this Commission has been specifically excluded as envisaged under section 22‑A(8)(f) of I.R.O., 1969. In the circumstances, learned counsel for the complainants is not quite right in contending that the complaints are maintainable and this Commission has the jurisdiction to take cognizance of the complaints. I am of the condid view and considered opinion fortified by express provisions of section 8‑A read with section 53(1) and section 22‑A(8)(f)(1) of I.R.O., that this Commission has no jurisdiction to entertain the above titled complaints and to take cognizance of the cases. The complainants were not properly advised to have their luck before the proper forum i.e. Labour Courts, if they had some legitimate grievances.

Upshot of the above discussions is that in view of the provision of section 22‑A(8)(f)(1) of I.R.O., 1969, this Commission has no jurisdiction to take cognizance of the instant. complaints, and therefore, in terms of section 201(1) of Criminal Procedure Code 1898 all the above titled complaints are returned to the complainants for presentation to the proper Court, if they so desire.

H.B.T /53/NIRC Order accordingly

2002 P L C 222

[National Industrial Relations Commission]

Before Riaz‑ul‑Hassan Alvi, Member

SAIFUR REHMAN

Versus

DIVISIONAL ELECTRICAL ENGINEER, WORKSHOPS

and 2 others

Cases Nos.4‑A(238) of 2000‑L and 24(233) of 2000‑L, decided on 18th February, 2002.

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

‑‑‑‑Ss. 22‑A(8)(g)‑‑‑Transfer from one place of work to another‑‑‑Allegation of unfair labour practice by employer‑‑‑Illegal transfer of employee‑‑­Employee who was an active member of Railways Workers' Union and was elected member of its General Council, was transferred not only from one establishment to another, but also from one Division to another Division in a different city‑‑‑Transfer order was passed in clear disregard of policy of Railways laid down in R.1 of section V of Advance Chapter No.1 of Personnel Manual and against rules of employment relating to seniority. and promotion applicable to employee‑‑‑Employee was on 10 days' leave, but his leave was cancelled just after two days without any legal justification only to implement transfer order‑‑‑Employee was at top on seniority list and to knock down, his further promotion being a senior most, he was transferred‑‑‑Employee was transferred with mala fide intention only to victimize him due to his trade union activities and his leave was cancelled quite in an illegal manner‑‑‑Such‑like acts could not be allowed to continue in the interest of justice and same was also against the dignity of establishment‑‑‑Transfer order passed against employee was set aside with direction to employers to allow the employee to perform his duties at place of his posting from where he was illegally transferred.

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

‑‑‑‑S.2‑A‑‑‑Civil Servants Act (LXXI of 1973), S.2‑B‑‑‑Remedy to employees of organisation/corporation before Service Tribunal‑‑‑Section 2‑A was inserted in Service Tribunal Act, 1973 to provide remedy to employees of organization/corporation before Service Tribunal regarding terms and conditions of their service which previously was not available to them‑‑­Section 2‑A of the Act had created a class of Government servants who could avail remedy of appeal before Service Tribunal‑‑‑Provisions of S.2‑A was applicable to the employees who fell in the definition of "civil servants" given in S.2‑B of Civil Servants Act, 1973.

2000 SCMR 826 ref.

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

‑‑‑‑Ss.2(xxviii) & 22‑A(8)(g)‑‑‑West , Pakistan 'Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(i)‑‑‑Workmen's Compensation Act (VIII of 1923), S.2(N)(1) ‑‑‑ Workman ‑‑‑ Victimization of workers due to their trade unions activities‑‑‑Remedy‑‑‑Jurisdiction of National Industrial Relations Commission‑‑‑Railway employees falling within definition of workers/workmen were privileged to approach National Industrial Relations Commission if they succeeded to establish that due to their trade union activities they had been victimized‑‑‑Where an employee/workman of an establishment succeeded to prove that he was member/office‑bearer of a trade union of workers of same establishment and he had been victimized due to trade union activities then National Industrial Relations Commission had exclusive jurisdiction to entertain grievance of employee and to adjudicate upon same in accordance with law.

2002 P L C 228

[National Industrial Relations Commission]

Before Riaz‑ul‑Hassan Alvi, Member

CRESENT WORKERS' UNION REGISTERED through

President Haji M. Munir and 14 others

Versus

GENERAL MANAGER, CRESENT TEXTILE MILLS LTD. and 4 others

Cases Nos. 4A(999) and 24(1084) of 1997‑L, decided on 18th February, 2002.

Industrial Relations Ordinance (XXIII of 1969)‑‑‑‑‑‑‑‑Ss.22‑A(8)(g), 22‑A(9)(a) & 22‑B(3)‑‑‑West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.15(3)(e)‑‑‑Termination of service‑‑‑Unfair labour practice by employer‑‑‑Services of employees who were members/office‑bearers of trade union in the establishment were terminated on the ground that they remained absent from duty for more than 10 days‑‑‑Bone of contention was election of trade union in the establishment‑‑‑Employees supported union of their choice whereas employers were interested in the rival union‑‑‑Employers persuaded employees to surrender in favour of rival union, but on their refusal forged resignations on behalf of employees were prepared for which employees got registered criminal case against employers‑‑‑Subsequently said employees were terminated on ground of absence from duty‑‑‑Such acts of employers against employees had shown that employees had been victimized only because of their trade union activities‑‑‑Case was fit to have been adjudicated upon by National Industrial Relations Commission‑‑‑Allegation having been fully proved that employees were illegally thrown out of their services only because of their trade union activities, employers were directed to reinstate them in their service with 50% back benefits.

2002 P L C 286

[National Industrial Relations Commission]

Before Qazi Ahmad Saeed, Member

MUHAMMAD QASIM

versus

P.T.C.L. through Assistant General Manager

Case No.4A(11) and 24(10) of 2002, decided on 3rd July, 2002.

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

‑‑‑‑Ss. 15 & 22‑A(8)(g)‑‑‑National Industrial Relations Commission (Procedure and Functions) Regulations, 1973, Regln. 32(2)‑‑‑Unfair labour practice by employer‑‑‑Petition against‑‑‑Grant of stay order, confirmation of‑‑‑Employee who was transferred from one place of working to another. filed petition alongwith stay application against his transfer order‑‑‑Ad interim order issued in favour of employee subsequently was recalled after hearing arguments of parties, but main petition was fixed for hearing‑‑­Employer served show‑cause notice upon employee with direction to explain within specified period as to why penalty of dismissal from service should not be imposed upon him on ground of misconduct‑‑‑Employee in his detailed reply of show‑cause notice requested that since his main petition pending with National Industrial Relations Commission had not been decided, show‑cause notice issued to him should be withdrawn‑‑‑Employer being not satisfied with explanation submitted by employee, awarded punishment of stoppage of two increments with future effect, and also penalty of censure upon employee without affording employee opportunity of being heard‑‑‑Employee being aggrieved by said punishments, had filed petition 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 suspension of order of punishment‑‑‑Basis of allegation of misconduct against employee was filing of petition against his transfer‑‑‑Employer could not show any law that during pendency of petition employee could be punished on ground that why he had challenged his transfer order before National Industrial Relations Commission, especially when after disposal of earlier stay application employee had joined his new place of posting pending his main petition‑‑­Employee, in circumstances, had made out a good prima facie arguable case and all other necessary ingredients for issuance of interim injunction were in his favour‑‑‑Employee would suffer irreparable loss if interim relief sought by him was not granted to him ‑‑‑Issuance of show‑cause notice and punishing employee pending his petition for adjudication before National Industrial Relations Commission, would amount to an act of unfair labour practice by employer‑‑‑Stay order earlier allowed to employee was confirmed and main petition was fixed for hearing.

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

‑‑‑‑Ss. 15, 22‑A(8)(g)‑‑‑Unfair labour practice by employer‑‑‑Where allegations of unfair labour practice levelled by employee against employer, were denied by employer, such allegations could only be decided by recording evidence of parties.

S. Rais Ahmad Jafri for. Petitioner.

Ghulam Sabir for Respondent.

2002 P L C 253

[Peshawar High Court]

Before Ijaz‑ul‑Hassan and Abdul Rauf Khan Lughmani, JJ

SAADI CEMENT LTD. through Chairman and another

versus

FAZAL‑E‑QADIR and another

Writ Petition No.278 of 2001, decided on 23rd November, 2001.

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

‑‑‑‑Art.l99(1)‑‑‑Constitutional jurisdiction of High Court‑‑‑Exercise of discretion Alternate adequate remedy‑‑‑Scope‑‑‑Discretion of fairly wide amplitude is conferred on High Court by Art.199(1) of, the Constitution, at the same time it imposes a responsibility on the High Court to exercise the discretion with some circumspection‑‑‑Satisfaction of High Court envisaged by Art. 1990) of the Constitution that no other adequate remedy provided in law is available to the aggrieved party is a condition precedent for exercise of the jurisdiction‑‑‑Petitioner before seeking the remedy under Art. 199 of the Constitution, has to show that he has no other adequate or efficacious remedy available to him.

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

‑‑‑‑Art. 199(1)‑‑‑Adequate remedy‑‑‑Connotation‑‑‑Term ‘adequate remedy’ has been defined to mean "efficacious remedy".

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

‑‑‑‑Ss. 15 & 17‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition Maintainability‑‑‑Alternate remedy‑‑‑Claim of unpaid dues was decided in favour of employee against which the employer without availing remedy of appeal under S.17 of Payment of Wages Act, 1936, tiled Constitutional petition‑‑‑Validity‑‑‑Employer could not be permitted to circumvent law by way of Constitutional Petition and it would not be correct for High Court to take over the function of the machinery provided by the statute in its Constitutional jurisdiction‑‑‑Intention of Legislature behind enacting S.17 of Payment of Wages Act, 1936, was to ensure that the amount covered by order under the provisions of S.15 of Payment of Wages Act, 1936 was deposited in the forum seized of the matter, before it entertained an appeal against such order‑‑‑High Court declined to circumvent the provision of the law as the employer had not availed the adequate and efficacious remedy‑‑‑Petition was dismissed in circumstances.

Pakistan Railways through Divisional Superintendent, P.W.R. Multan Division and 4 others v. Punjab Labour Court No.4, Multan and 3 others 1995 PLC 541: “Talpur Textile Mills Ltd. through its Manager, Tando Muhammad Khan v. Directorate of Labour Welfare Hyderabad and another 1996 PLC 610, Municipal Corporation, Sialkot through the Administrator v. Younis Masih and others 1998 PLC 336; Messrs Halcrow Ulg, Engineering Consultant, PAT Federal Canal Rehabilitation and Improvement Project, WAPDA and others v. The Authority under the Payment of Wages Act, Quetta and others 1999 PLC 362; Premier Cloth Mills Ltd. Lyallpur v. The Sales Tax Officer, Investigation Circle 11, Lahore and another 1972 SCMR 257; The Murree Brewery Co. Ltd. v. Pakistan through the Secretary to Government of Pakistan, Works Division and 2 others PLD 1972 Supreme Court 279; M/s S. M. Rehman & Co. v. Motabar and others PLD 1981 SC 282; Ahmed Spinning Mills Ltd. v. Authority under Payment of Wages Act and others 1990 PLC 26; M/s. Azmat Textile Mills Ltd. Karachi v. Authority under Payment of Wages, Central Division, Karachi and two others 1995 PLC 264; Pakistan Industrial

Gases, Ltd. v. The Commissioner, Workmen Compensation and 2 others 1998 PLC 71; Sarhad Development Authority N.W.F.P. v. Jehanzeb and another 1999 PLC 377; Mumtaz Ahmad and another v. Assistant Commissioner an another, PLD 1990 SC 1195, Sheikh Gulzar Ali & Co. v. Special Judge, Special Court of Banking and another 1991 SCMR 590; Adam Jee Insurance Company Ltd. v. Pakistan through Secretary Ministry of Finance Islamabad and another 1993 SCMR 1798, Abdur Rehman v. Haji Mir Ahmad Khan and another PLD 1983 SC 21; S. Muhammad Din and Sons Ltd. v. The Chairman, Punjab Labour Appellate Tribunal and 7 others 1989 PLC 567; The Divisional Superintendent of Pakistan Railways Lahore v. Mst. Khurshid Anwar 1994 PLC 18 and Sharafat Ali v. Zeenat Shirt Factory 1999 T.D. (Labour) 337 Karachi ref.

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

‑‑‑‑Art.199‑‑‑Constitutional jurisdiction‑‑‑Object‑‑‑Purpose of Art. 199 of the Constitution is not to nullify the effect of a legislative provision or to make it ineffective.

Malik Muhammad Aslam for Petitioner.

Abdur Rehman Qadir for Respondent.

Date of hearing: 6th November, 2001.

2002 P L C 82

[Quetta High Court]

Before Tariq Mahmood and Ahmed Khan Lashari, JJ

Messrs POINEER CABLES LIMITED through General Manager

versus

CHAIRMAN LABOUR APPELLATE TRIBUNAL BALOCHISTAN, QUETTA and 2 others

Constitutional Petition No. 222 of 2001, decided on 20th December, 2001.

Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑Ss. 25‑A, 35(5), 37(3) & 38‑‑‑Constitution of Pakistan (1973), Art. 199‑‑­Constitutional petition‑‑‑Judgment of 'Labour Court‑‑‑Appeal against ‑‑‑Deficiencies; in the judgment of Labour Court Appellate Tribunal‑‑‑Power and functions of Appellate Tribunal‑‑‑Labour Appellate Tribunal upheld judgment of Labour Court only reproducing discussion and reasoning of the Labour Court without offering its own reasons‑‑‑Labour Appellate Tribunal had Labour made observation regarding conclusion recorded by the Labour Court without itself going into the facts of the case and passing a reasoned judgment as an Appellate Authority ‑‑‑Judgment of Labour Appellate Tribunal just agreeing with the conclusion arrived at by the Labour Court without assigning any reason for its own conclusions or without making any Comment on the arguments advanced on behalf of parties or without any reference to evidence on record or relevant law, was not a judgment" in, the eyes of law‑‑‑Labour Court, under S.25‑A(5), Industrial Relations Ordinance, 1969 could go into all facts of the case and pass just' and proper order in the circumstances of the case‑‑‑Labour Appellate, Tribunal being Appellate Authority, had the same powers but such powers could be exercised only when there was an independent application of mind in the facts and circumstances of the case and law involved the matter‑‑‑Judgment passed by the Labour Appellate Tribunal being not in accordance with law, was declared to have been passed beyond its jurisdiction and case was remanded .for decision afresh in accordance with law.

1982 SCMR 542 and Utility Stores Corporation of Pakistan Limited v. Punjab Labour Appellate Tribunal and others PLD 1987 SC 447 ref.

M. Abdul Ghani for Petitioner.

K. N. Kohli, Dy. A.‑G. for Respondents

2002 P L C 52

[Supreme Court of Pakistan]

Present: Syed Deedar Hussain Shah and Hamid Ali Mirza, JJ

GHULAM MUSTAFA and another

Versus

PAKISTAN INDUSTRIAL GASES LTD. and others

Civil Petitions Nos. 356‑K and 359‑K of 2001, decided on 19th June, 2001.

(On appeal from the judgment dated 2‑3‑2001 passed by the High Court of Sindh, Hyderabad Circuit in C.P. No. S‑179 of 2000).

(a) Constitution of Pakistan (1973)‑‑‑‑‑‑‑Art. 175‑‑‑Courts‑‑‑Powers of Courts‑‑‑Scope‑‑‑Courts are creatures of Constitution and derive their powers and jurisdiction from the Constitution‑‑­Courts have to exercise their powers within the limits laid down by the Constitution.

(b) Constitution of Pakistan (1973)‑‑‑‑‑‑‑Art.175(2)(c)----Expression conferred on it by the Constitution or by or under any law'‑‑‑Connotation and scope‑‑‑Constitution has conferred powers on appropriate Legislature to create and establish Courts or Tribunals and can regulate their jurisdiction by the relevant law‑‑‑Words 'conferred on it by the Constitution or by or under any law signify that the Courts or Tribunals are to exercise their powers as provided by the Constitution or by or under any law and the expression shows that if law has been validly legislated the Courts and Tribunals would exercise their jurisdiction there-under.

(c) Payment of Wages Act (IV of 1936)‑‑‑‑‑‑‑S.15‑‑‑Jurisdiction of Authority established under S.15 of the Payment of Wages Act, 1936‑‑‑Appointment of the Authority‑‑‑Such Authority has to decide the claims in respect of class of persons employed in the industry with regard to wages and the Authority is to be appointed by the Provincial Government.

(d) Constitution of Pakistan (1973)‑‑‑‑‑‑‑Art. 268‑‑‑Continuance and adaptation of laws‑‑‑Scope‑‑Where a law is saved by Art. 268 of the Constitution where-under all existing laws would have to remain in force with necessary adaptation until altered, repealed or amended by an act of appropriate Legislature, such law is a valid law.

(e) Constitution of Pakistan (1973)‑‑‑‑‑‑‑Arts. 175 & 268‑‑‑Payment of Wages Act (IV of 1936), S.15‑‑‑Authority appointed to resolve dispute under provisions of S.15 of Payment of Wages Act, 1936‑‑‑Independence ct judiciary:‑‑Principles ‑‑‑High Court set aside the order passed by the Authority on the ground that the functions of the Authority were administrative in nature and the order was violative of principles of independence of judiciary‑‑‑Validity‑‑‑Supreme Court declined to take any exception to the establishment or jurisdiction of the Authority/Tribunal as the same had been established through a valid legislation‑‑‑Until and unless the provisions of law were repealed in view of Art.268 of the Constitution, the same could not be declared to be functioning without lawful authority, considering that Art.175(2) had expressly referred to the "Constitution by or under any law"‑‑‑Payment of Wages Act, 1936 was a time tested law in force for the last about 65 years, therefore, the same could not be declared to be violative of the principles of independence of judiciary‑‑‑Provisions of S.15 of Payment of Wages Act, 1936, being a valid law, also saved by Art. 268 of the Constitution would not offend or be violative of the principles of independence of judiciary‑‑‑Order passed by the Authority was not without, jurisdiction or unlawful‑‑‑Judgment of the High Court was set aside‑‑‑Petition for leave to appeal was converted into appeal and the same was allowed.

Sh. Liaquat Hussain v. Federation of Pakistan PLD 1999 SC 504 and Mehram Ali v. Federation of Pakistan PLD 1998 SC 1445 ref.

(f) Payment of Wages Act (IV of 1936)‑‑‑‑‑‑‑S.17‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional jurisdiction of High Court‑‑‑Scope‑‑‑Order passed in appeal by Labour Court under the provisions of Payment of Wages Act, 1936‑‑‑Such order is subject to review by the High Court under Art.199 of the Constitution. [p. 58] F

(g) Payment of Wages Act (IV of 1936)‑‑‑‑‑‑‑S. 17‑‑‑Industrial Relations Ordinance (XXIII of 1969), Ss.35(5)(d) & 36‑‑‑Labour Court deciding a matter under the provisions of Payment of Wages Act, 1936‑‑‑Jurisdiction of Labour Appellate Tribunal ‑‑‑Scope‑‑­Where under S.17 of Payment of Wages Act, 1936, a case is decided by Labour Court, when the matter is transferred to Labour Court under statutory provision its adjudication and determination by Labour Court, such is a proceeding under the Industrial Relations Ordinance, 1969‑‑‑Labour Court for the purpose of adjudicating and determining any industrial dispute is deemed to be a Civil Servant within the meaning of S.30 of Industrial Relations Ordinance, 1969‑‑‑By virtue of S.35(5)(d) of Industrial Relations Ordinance, 1969. order passed by Labour Court is amenable to the revisional jurisdiction before Labour Appellate Tribunal.

National Cement Industries v. Sindh Labour Tribunal 1981 PLC 561 and Pakistan through Chairman, Pakistan Railways.Board v. Maqsood Ali and others 1981 PLC 307 ref.

Petitioners in person (in C.P. No.356‑K of 2001).

M. Suleman Habibullah, Additional Advocate‑General for Petitioner (in C.P. No.359‑K of 2001).

M.A. Siddiqui, Advocate‑on‑Record for Respondents.

Date of hearing: 19th June, 2001.

2002 P L C 67

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui and Javed 1qbal, JJ

PROVINCE OF THE PUNJAB through Secretary, Irrigation

and Power Department, Lahore and another

PUNJAB LABOUR APPELLATE TRIBUNAL, LAHORE through Chairman and others

Civil Appeals Nos. 1569 to 1579 of 1999, decided on 25th October, 2001.

(On appeal from the judgment dated 13‑4‑1999 passed by Lahore High Court, Lahore in Writ Petitions Nos.19431, 19422, 19428, 19421, 19423 to 19427, 19429 and 19430 of 1996).

(a) Civil Servants Act (LXXI of 1973)‑‑‑--

‑‑‑‑S. 2(1)(b)‑‑‑"Civil servant"‑‑‑Definition‑‑‑Work‑charged employees employed by Irrigation Department were not covered by definition of civil servant as given in S.2(1)(b) of Civil Servants Act, 1973.

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

‑‑‑‑Ss. 1(4)(e), 10 & S.O.1(e)‑‑‑Industrial Relations Ordinance (XXIII of 1969), S.25‑A‑‑‑"Work‑charged employee"‑‑‑Termination of service‑‑­Remedy‑‑‑Work‑charged employees, if having their own statutory rules, cannot invoke the provisions of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and S.25‑A of Industrial Relations Ordinance, 1969.

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

‑‑‑‑S.25‑A‑‑‑West Pakistan Industrial and Commercial . Employment (Standing Orders) Ordinance (VI of 1968), Ss. 1(4)(e), 10 & S. 0. 1 (e)‑‑‑Civil Servants Act (LXXI of 1973), S.2(1)(b)‑‑‑Establishment of Temporary and Work‑charged Regularization Rules of Irrigation Department, Chap. 1, 8.1.131‑‑‑Constituition of Pakistan (1973), Art. 185(3)‑‑‑Grievance petition‑‑‑Maintainability‑‑‑Work‑charged employees‑‑‑Employees were working as Gardeners, Chowkidars, Helpers Security Guards, Turners etc., in Irrigation Department for the last many years, but their services were terminated treating them as work‑charged employees‑‑‑Grievance petition filed by such employees under S.25‑A of Industrial Relations Ordinance, 1969 was dismissed being not maintainable‑‑‑Labour Appellate Tribunal reversed the judgment of Labour Court and directed reinstatement of the employees‑‑‑High Court upheld the judgment of Labour Appellate Tribunal‑‑‑Validity‑‑‑Employees had remained in service for years together burden of proof was on Department to show that they were purely work­ charged employees‑‑‑Employment of such persons was not against a specific project or sub‑work of a project, thus, 8.1.131 of Establishment of Temporary and Work‑Charged Regularization Rules could not be made applicable to them‑‑‑Tenure of service of employees, nature of job and absence of any specific project would bring them within the ambit of "Permanent workers" as mentioned in para.(1)(b) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968‑‑­ Employees being neither "civil servants" nor "work‑charged employees", could invoke provisions of S.25-A of Industrial Relations Ordinance, 1969 for redressal of their grievances being "permanent workers" ‑‑‑Employees who had been recruited temporarily against posts of permanent nature which did not become extinct within short span of nine months, were neither served with show‑cause notices or charge‑sheets nor were they made to face any inquiry, but were asked to leave their jobs in a mechanical and tyrannical manner‑‑‑Effect‑‑‑Employers could not be allowed to conduct themselves in a despotic manner by defeating the express provisions of law, especially Labour Laws enacted for benefit of working class protecting them from. Excesses and punitive attitude of employing establishments including Governmental set‑ups‑‑‑Supreme Court dismissed the appeal of Department while holding the judgments of Labour Appellate Tribunal and High Court as well based and unexceptionable not calling for any interference.

Muhammad Yaqoob v. The Punjab Labour Court No. 1 and 5 others 1990 SCMR 1539; Executive Engineer v. Abdul Aziz 1996 PLC 385 and WAPDA v. Khanimullah 2000 SCMR 879 ref.

Arshad Ali Chaudhry, Advocate Supreme Court and Rao Muhammad Yusuf Khan, Advocate‑on‑Record (absent) for Appellants.

Respondent No. 1: Ex pane.

Raja Abdul Ghafoor, Advocate Supreme Court for Respondent No.2.

Date of hearing: 9th October, 2001.

2002 P L C 218

[Supreme Court of Pakistan]

Present: Qazi Muhammad Farooq and Syed Deedar Hussain Shah, JJ

MUSLIM COMMERCIAL BANK LIMITED through

General Manager

Versus

MUHAMMAD FAROOQ ABID and another

Civil Petition for Leave to Appeal No. 2731 of 2001, decided on 19th April, 2002.

(On appeal from judgment dated 29‑8‑2001 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi in W. P. No. 102 of 1996).

Industrial Relations Ordinance (XXIII of 1969)‑‑‑‑‑‑‑S.25‑A‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Reinstatement in service‑‑‑Defective departmental inquiry‑‑‑Employee on the allegation of misappropriation (if certain amount was dismissed from service‑‑‑Grievance petition under S.25‑A of the Industrial Relations Ordinance, 1969, filed by the employee was dismissed by the Labour Court‑‑‑Appeal before the Labour Appellate Tribunal was allowed and the employee was reinstated in service with a direction to the employer to hold a fresh inquiry‑‑‑Judgment passed Ay the Labour Appellate Tribunal was upheld by the High Court ‑‑‑Validity‑‑­High Court had considered the entire case and with sound and cogent reasons dismissed the Constitutional petition of the employer and upheld the order of the Tribunal‑‑‑No misreading or non‑reading of the material evidence by the High Court was found and the judgment was passed by the High Court on the basis of law laid down by Supreme Court. which did not call fox any interference‑‑‑Matter of public importance as contemplated under Art. 185(31 of the Constitution of 1973, was also not made out‑‑‑Leave to appeal was refused.

Raja Muhammad Akram, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate‑on‑Record for Petitioner.

Hafiz S.A, Rehman, Senior Advocate Supreme Court with M.A. Zaidi, Advocate‑on‑Record for Respondents.

Date of hearing: 19th April, 2002.

2002 P L C 267

[Supreme Court of Pakistan]

Present: Javed Iqbal and Tanvir Ahmad Khan, JJ

MAPLE LEAF CEMENT FACTORY LIMITED

versus

GOVERNMENT OF THE PUNJAB through Secretary, L0oui Department. Civil Secretariat, Lahore and others

Civil Petition for Leave to Appeal No.2350‑L of 2000. decided on 15th May , 2002.

(On appeal from the order dated 27‑6‑2000 passed by Lahore High Court, Lahore in I.C.A. No.361 of 2000).

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

‑‑‑‑S. 1(3)‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Powers of Provincial Government under S.1(3), Provincial Employees' Social Security Ordinance, 1965‑‑‑Scope‑‑‑Provincial Government has been empowered to make the provisions of Provincial Employees' Social Security Ordinance, 1965 applicable to any area, classes of persons, industries or establishments from such date as may be deemed tit and proper‑‑‑No condition or embargo whatsoever has been imposed upon the Provincial Government for issuance of such notification‑‑‑No provision exists in the Provincial Employees' Social Security Ordinance, 1965 whereby opportunity of hearing is to be afforded to the employer concerned and thus the principle "audi alteram partem" cannot be pressed into service‑‑‑Prevalent medical facilities would have no substantial bearing on the issue of notification as it is fur the employer to take care of employees which does not constitute a bar for making further subscription which is quite meagre in nature and would have little financial impact‑‑‑Leave to appeal against order of the High Court was refused as there was no illegality or fact of public 'importance involved.

M. Saleem Sahgal, Advocate Supreme Court an.? Tanvir Ahmed Khan. Advocate‑ on‑Record (absent) for Petitioner.

Nasim Saber, Additional Advocate‑General, Punjab and M. Mujahid Ahmad, Advocate Supreme Court for Respondents.

Date of hearing: 15th May, 2002.

2002 P L C 163

[Supreme Court (Azad J&K)]

Present: Sardar Said Muhammad Khan, C. J; and Muhammad Yunus Surakhvi, J

CHAIRMAN, AZAD JAMMU AND KASHMIR LOGGING AND SAW MILLS CORPORATION, MUZAFFARABAD and 2 others

versus

ABDUL HAMEED SIDDIQUI and another

Civil Appeal No. 204 of 2000, decided on 16th July, 2001.

(On appeal from the judgment of High Court dated 14‑11‑2000 in Writ Petition No. 108 of 1993).

(a) Azad Jammu and Kashmir Industrial Relations Ordinance, 1974‑‑‑

‑‑‑‑Ss. 2(28) & 30‑‑‑Azad Jammu and Kashmir Interim Constitution I Act (VIII of 1974), S.44‑‑‑Workman, determination of‑‑‑Petitioner: who was found guilty of misappropriation of money, was removed from service and amount alleged to be misappropriated was ordered to be recovered from him as arrears of land revenue‑‑‑Said order was assailed by the petitioner through writ petition before High Court‑‑‑Writ petition was objected to on the ground that petitioner being "workman" had alternate remedy available before the Labour Court and could not file writ petition‑‑‑Petitioner, at the time when proceedings were initiated was serving as Supervisor in Grade 'A' in BPS‑13 and thus was not "Workman "‑‑‑Petitioner, in circumstances, was not entitled to avail the remedy under Azad Jammu and Kashmir Industrial Relations Ordinance, 1974 before the Labour Court‑‑‑All the proceedings against the petitioner, right from the appointment of authorised officer up to passing of the impugned order by the Authority against him had been taken m total disregard of mandatory procedure prescribed in Efficiency and Discipline Rules‑‑‑Writ petition even otherwise was maintainable before the High Court on the ground that order against the petitioner was the result of proceedings conducted in total disregard of the Rules.

Ghulam Mohi‑ud‑Din v. Chief Settlement Commissioner and others PLD 1964 SC 829; Abdul Qadii v. Abdul Karim and others 1999 PLC (C.S.) 947; Altaf Ahmed Khan and others v. Member, Board of Revenue, Punjab, Lahore and others 1986 PLC (C.S.) 974; Personnel Manager, Bata (Pakistan) Ltd., Lahore v. Muzaffar Ali 1985 PLC 786; Bahawalnagar Sugar Mils Ltd. v. Nasrullah Khan 1984 PLC 1105; Income Tax Officer, Central Circle‑III, Karachi v. Eruck Maneckji and others 1991 SCMR 1447; Sindh Employees' Social Security Institution v. Dr. Mumtaz Ali Taj and others [PLD 1975 SC 450 and Messrs S.S. Salar & Company v. Ch. Muhammad Sarfaraz and 2 others PLD 1984 SC (AJ&K) 77 ref.

(b) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)‑‑‑

‑‑‑‑S.44‑‑‑Writ jurisdiction, exercise of‑‑‑Extraordinary writ jurisdiction made available to the High Court under S.44 of Azad Jammu and Kashmir Interim Constitution Act, 1974, could not be treated as substitute for an appeal or review‑‑‑Said jurisdiction could be assailed favourably in extraordinary circumstances by showing that order under challenge was without jurisdiction.

Raja Muhammad Hanif Khan, Advocate for Appellants.

Abdul Rashid Abbasi, Advocate for Respondents.

Date of hearing: 13th June, 2001.