PLC 2003 Judgments - Pakistan Legal Archive

Courts in this Volume

Implementation Tribunal For Newspaper Employee
Karachi High Court Sindh
Labour Appellant Tribunal Balochistan
Labour Appellant Tribunal Nwfp
Labour Appellant Tribunal Punjab
Labour Appellant Tribunal Sindh
Lahore High Court Lahore
National Industrial Relations Commission
Peshawar High Court
Quetta High Court Balochistan
Supreme Court

Implementation Tribunal For Newspaper Employee

PLC 2003 IMPLEMENTATION TRIBUNAL FOR NEWSPAPER EMPLOYEE 136 #

2003 P L C 136

[Third Sindh Labour Court]

Before Qamar Ahmed Shaikh, Presiding Officer

RECKITT AND COLMAN OF PAKISTAN LTD through Manager

Versus

RECKITT AND COLMAN PHARMACEUTICAL EMPLOYEES UNION through General Secretary and others

Application No. 1 of 2000, decided on 5th October, 2000.

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

‑‑‑‑S.O.11‑A‑‑‑Closure of establishment‑‑‑ Management of the establishment, having suffered loss, filed petition under S.O.11‑A of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 for closure of the establishment‑‑‑Management had produced its budget showing continuous deficit and losses and there did not appear any mala fides on part of management in closing the establishment‑‑‑Agreement/settlement was arrived at between the Management and Collective Bargaining Agent whereby Management agreed to pay dues to workers‑‑‑Out of 117 workers, 96 workers submitted their resignations accepted their dues in full and final settlement and had severed their connection with the Management‑‑Remaining 21 workers had contested the proceedings for closure of establishment in their individual capacity‑‑‑Validity‑‑‑Settlement arrived at between the Management and Collective Bargaining Agent in establishment was binding upon all those members of union who were represented by union including said 21 workers‑‑‑Union which was Collective Bargaining Agent having already given detailed "no objection" to grant of petition of Management filed under S.O.11‑A of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 for closure of establishment, nothing could refrain the Court from disposal and acceptance of said petition‑‑‑Petition for closure of establishment filed by Management under S.O.11‑A of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 was allowed as prayed for, in circumstances.

1986 PLC 1052; 1997 SCMR 1508; 1975 SCMR 49 and 1998 PLC 15 ref.

Mehmood Abdul Ghani, Faisal Mehmood Ghani and Syed Wizarat Hussain Zaidi for Applicant.

Nishat Warsi for Respondent.

M.A.K. Azmati for the Intervenes.

PLC 2003 IMPLEMENTATION TRIBUNAL FOR NEWSPAPER EMPLOYEE 170 #

2003 P L C 170

[Implementation Tribunal for Newspaper Employees]

Before Justice Jawaid Nawaz Gandapur, Chairman, I.T. N. E., Islamabad

KHALID MEHMOOD, GENERAL SECRETARY DAILY JANG AND PRESS WORKERS UNION (CBA) RAWALPINDI

Versus

DAILY "JANG", RAWALPINDI

Case No. IT-(Punjab) 138/02/C/JJNG, decided on 18th January, 2003.

Newspaper Employees (Conditions of Service) Act (LVIII of 1973)---

----Ss.9, 10 & 14---Wage Board Award---Night shift allowance, entitlement to---Vide First Wage Board Award, notified through Notification dated 30-1-1961, Journalists stationed at Rawalpindi who worked for more than 14 nights in a month, were required to be paid 30% of their basic pay as Night Shift Allowance by Newspaper owners---Subsequent Wage Board Awards announced from time to time maintained the said position---Employees of Daily Jang, Quetta also approached Management for grant of said Night Shift Allowance, but same was refused by the Management, on which their Union through its General Secretary filed petition before Tribunal which was accepted and Management was directed to pay said allowance w.e.f. 27-11-1988, which order was upheld up to the Supreme Court---After about six years from order of the Tribunal, Daily Jang and Press Workers' Union Rawalpindi, requested Daily Jang that they should also be paid Night Shift Allowance already allowed---Request of petitioner-Union having been turned down, petitioner-Union approached Tribunal with the prayer that EmployerCorporation through its Chief Executive be directed to pay said Night Shift Allowance to petitioners---Validity---General Secretary on the earlier occasion had not cited the Corporation as respondent-Management, but had made the then Manager Daily Jang, Quetta as respondent---Had the then General Secretary of the Union on earlier occasion cited Employer Corporation, order of Tribunal granting Night Shift Allowance w.e.f. 27-11-1988 would have been applicable to all Establishments of the Corporation---Same having not been done the date of application of order of Tribunal which was 27-11-1988 would not apply to case of petitioner-Union but it would be entitled to payment of Night Shift Allowance from 18-1-2002 on which date petition was subsequently filed by petitioner-Union before Tribunal---Petitioner-Union could approach respondent Management for payment of Night Shift Allowance, accordingly.

Karachi High Court Sindh

PLC 2003 KARACHI HIGH COURT SINDH 1 #

2003 P L C 1

[Karachi High Court]

Before Muhammad Moosa K. Leghari and Muhammad Mujeebullah Siddiqui, JJ

BASHIR AHMAD

Versus

Messrs AMIN TEXTILE MILLS LIMITED through General Manager and 2 others

Constitutional Petitions Nos.528‑D and 529‑D of 2001, decided on 30th May, 2002.

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

‑‑‑‑Ss.2(xxviii) & 25‑A‑‑‑West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(i) & S.0.12(3)‑‑‑Grievance petition‑‑‑'Workman'‑‑‑Determination of‑‑‑If a workman was aggrieved by termination of his services or removal, retrenchment, discharge or dismissal; he could take action in accordance with provisions of S.25‑A of Industrial Relations Ordinance, 1969 and provisions of said section would apply to redress an individual grievance‑‑‑For invoking jurisdiction of Labour Court, person approaching it for redressal of his individual grievance must necessarily fall within ambit of a "workman" as provided under West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968‑‑‑Initially burden of proving the fact that an employee did tall within definition of "workman". lay upon employee by producing documentary as well as oral evidence in support of his pleading that he was a workman and was performing duties of either clerical manual nature.

Syed Matloob Hassan v. Broke Bond Pakistan Limited Lahore 1992 SCMR 227; Managing Director Shahi Bottlers (Pvt.) Ltd. v. The Punjab Labour Appellate Tribunal, Lahore and 2 others 1993 SCMR 488; Abdul Razzaq v. Messrs Ihsan Sons Ltd. and 2 others, 1992 SCMR 505 and Ganga R. Madhani v. Standard Bank Ltd. and others 1983 SCMR 1511 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)‑‑‑Status of "workman"‑‑Determination of‑‑‑For purpose of determining status of a "workman" deciding factor was neither designation conferred upon an employee nor salary drawn by him‑‑‑Real test to include or exclude an employee from ambit of "workman" was nature of the duties performed by him‑‑‑If it was proved by leading sufficient evidence that a person was doing manual or clerical work in an industrial or commercial establishment, he would be covered by definition of "workman".

Muhammad Sadiq v. Punjab Labour Court No. 1 Lahore PLD 1998 SC 633 ref.

‑‑‑S.38‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional jurisdiction‑‑‑Scope‑‑‑Judgments/decisions passed by Labour Appellate Tribunal were well‑reasoned and based on evidence available on record‑‑‑In absence of any perversity, infirmity, illegal exercise of jurisdiction or lack of jurisdiction, judgments/decisions of Labour Appellate Tribunal, could not be interfered with by High Court in exercise of its Constitutional jurisdiction.

Mehmood Hussain Siddiqui for Petitioners (in both Petitions).

Abdul Ghani Khan for Respondent No. 1 (in both Petitions).

Masood A. Noorani Addl. A.‑G., Sindh for Respondents Nos.2 and 3.

Date of hearing: 16th May, 2002.

PLC 2003 KARACHI HIGH COURT SINDH 16 #

2003 P L C 16

[Karachi High Court]

Before Majida Razvi and Sarmad Jalal Osmany, JJ

KARACHI METROPOLITAN CORPORATION through Director, Administration

Versus

REHMAT MASIH through his Legal Heirs and 4 others

Constitutional Petition No. D‑1109 of 1988, decided 8th September, 1998.

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

‑‑‑‑Ss. 15(2) & 17‑‑‑Industrial Relations Ordinance (XXIII of 1969), S.38(3‑a)‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑‑Constitutional petition‑‑‑Deduction from dues‑‑‑Appeal against ‑‑‑Suo Motu revisional jurisdiction of Labour Appellate Tribunal, exercise of‑‑‑Employee who was to retire in 1982 after attaining superannuation age of 60 years, continued to work and draw salary etc. up to 1984 due to manipulation in his service record concerning his date of birth‑‑‑On detection of said manipulation Employer deducted amount of over stay of two years from dues payable to employee‑‑‑On tiling application against said deduction under S.15(2) of Payment of Wages Act, 1936, Authority under Payment of Wages declared the said deduction as legal and held the employee entitled to wages without deduction and also anted compensation for said illegal deduction‑‑‑On filing appeal by employer against such order same was set aside by Labour Court‑‑‑On filing revision against order passed by Labour Court, Labour Appellate Tribunal allowed the application of employee and set aside order passed by Labour Court and restored the order passed by Authority‑‑Validity‑‑‑Manipulation, if any was made in service record with regard to date of birth of the employee, in the office of employer as service record was in the custody of employer and not in custody of employee‑‑‑Said manipulation if allowed the employee to work for a further period of two years, responsibility of said manipulation was equally on the employer and employee who over stayed and, worked for two years, was entitled to wages for said over stayed period‑‑‑Labour Appellate Tribunal in circumstance, had rightly set aside order of Labour Court and restored order of Authority whereby employee was held entitled to payment of wages for period of two years that employee over stayed with employer‑‑Employee was also entitled to refund amount illegally deducted from his dues.

Muhammad Yasin Kiyani for Petitioner.

S.A. Channa and Muneeb Ahmad Khan, A.A.‑G. for Respondents.

Date of hearing: 4th September, 1998.

PLC 2003 KARACHI HIGH COURT SINDH 20 #

2003 P L C 20

[Punjab Labour, Appellate Tribunal]

Before Justice (Retd.) Iftikhar Ahmad Cheema, Chairman

ALLIED BANK OF PAKISTAN LIMITED through Attorneys

Versus

Syed NASIR ABBAS NAQVI

Appeal No. RI‑4 and RI‑10 of 2001, decided on 20th February, 2002.

(a) Industrial Relations Ordinance (XXIII of 1961)‑‑‑-

‑‑‑‑S.25‑A‑‑‑Grievance notice‑‑‑Service of‑‑‑Service of grievance notice by the employee upon employer before filing grievance petition was a sine qua non and its non‑service was fatal to grievance petition‑‑‑Departmental appeal to Authority could not be treated as grievance notice.

1999 PLC 466; 1982 PLC 389; 1982 PLC 616 and 1982 CLC 920 ref.

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

‑‑‑‑Ss.2(xxviii) & 25‑A‑‑‑West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(i)‑‑‑Status of workman‑‑‑Determination of‑‑‑Grievance petition ‑‑‑Maintainability‑‑Petitioner, a Bank employee who was working as Officer Grade III, was not only holding a power of attorney, but at material time was acting in fiduciary and managerial capacity‑‑‑Petitioner, in circumstances, was not a "workman" to maintain grievance petition before Labour Court, especially when nothing was on record which could. tend to show that petitioner was burdened with any function which could legitimately be called as manual or clerical in nature‑‑‑Even otherwise an officer of Bank who was holding a power of attorney was not a workman.

1985 SCMR 1511 and 1985 CLC 403 ref.

‑‑‑S.1(4)(a)‑‑‑Industrial Relations Ordinance (XXIII of 1969), S.25‑A‑‑‑ Applicability of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968‑‑‑Grievance petition, maintainability Of‑‑‑Petitioner at relevant time was serving in a Branch of the Bank as officer, in Grade‑III where less than twenty workers were employed‑‑‑Branch of the Bank was a separate establishment because; it had separate premises; it had a separate Manger; had separate account holders and account holders of cane branch could not operate same account at another branch; had separate Cheque Books; employee posted at one branch was only required to work there unless transferred and each branch required a separate permission from State Bank of Pakistan under S.28(1) of Banking Companies Ordinance, 1962 read with R.11 of Banking Companies Rules, 1963‑‑‑West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 was not applicable to case of petitioner and his grievance petition merited dismissal on that score.

1982 PLC 20; 1980 PLC 800; 1990 PLC 462; 1989 PLC 969; 1992 PLC 289 and 1992 SCMR 505 ref.

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

‑‑‑‑S.2(b) & (f)‑‑‑Clerical department of a factory‑‑‑Status of‑‑‑Clerical department of a factory was distinct from industrial establishment‑‑‑Clerical office of industrial establishment under provisions of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. would fall within the definition of "Commercial establishment" and not within definition of "Industrial establishment".

Associated Cement Companies Ltd., Chaibasa Cement Works, Jhinkpani v. Their Workmen AIR 1960 SC 56; Messrs JANG Publications Ltd. v. Registrar of Trade Unions, Sindh and another PLD 1984 Kar. 292; Muhammad Aqil v. Sindh Labour Appellate Tribunal and another PLD 1978 Kar. 649; 1991 PLC 846; 1987 PLC 754; 1995 PLC 692; 1986 PLC 521: 1984 PLC 1679; PLD 1975 Kar. 36 and 1997 PLC 219 ref.

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

‑‑‑‑Ss. 2(xxviii) & 25‑A‑‑‑West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S. 1(4)(a) & S.0.12‑‑‑Dismissed workman‑‑‑Grievance petition‑‑‑Maintainability of‑‑Dismissed workman whose dismissal had not led to an industrial dispute or which had not been in consequence of industrial dispute was not a workman for purpose of any proceedings under Industrial Relations Ordinance, 1969‑‑If the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 was applicable, a dismissed workman could maintain a grievance petition in respect of his dismissal in view of specific provision contained in S.O. 12 of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968‑‑‑Petitioncr to the present case was employed at an establishment where West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 was not applicable‑‑‑Petitioner being a dismissed person and being no longer a workman, was not entitled to maintain his grievance petition.

1980 PLC 514; 1980 PLC 655: 1988 PLC 573: 1987 PLC 846: and 1998 PLC 172 ref.

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

‑‑‑‑Ss. 2(xxviii) & 25‑A‑‑‑West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(i) & S.O. 12‑‑Retired workman‑‑‑Grievance application‑‑‑Maintainability of‑‑‑Retired workman was no longer a workman and except for a right guaranteed under S.O. 12 of West Pakistani Industrial and Commercial Employment (Standing Orders) Ordinance, 1968; could not maintain and application under S.25‑A Industrial Relations Ordinance. 1969.

1998 PLC 573: 1987 PLC 846; 1992 PLC 58 and 1998 PLC 172 ref.

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

‑‑‑‑Ss. 2(xxviii) & 25‑A‑‑‑West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(i), S.Os.12 & 15(3)(4)‑‑‑Dismissal from service‑‑‑Grievance petition‑‑‑Maintainability of‑‑Petitioner working as officer in Grade‑III in Bank was dismissed from service after issuing him charge‑sheet and holding inquiry against him on charge of misconduct‑‑‑Petitioner was not a workman, he was employed in establishment where West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 was not applicable‑‑‑Right claimed by petitioner did not derive any source from S.O. 12(3) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and his dismissal from service had not been in consequence of an industrial dispute nor had led to an industrial dispute‑‑‑Petitioner, in circumstances was not competent to maintain his ' grievance petition‑‑‑Petitioner was not condemned unheard as he participated in domestic inquiry and he was afforded full opportunity to cross‑examine witnesses‑‑‑Issuance of second show‑cause notice was not a. requirement under principle of natural justice nor mandatory under Labour Laws‑‑‑Order of dismissal of petitioner did not bear imprint of any illegality on its forehead and petitioner had failed to elicit anything which could detract from validity of his dismissal order‑‑‑Order of dismissal being perfectly justified and valid, appeal of petitioner against said Order was dismissed.

1996 PLC 702 and 1998 PLC 1; PLD 1981 SC 225 and 1999 ,SCMR 1237 ref.

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

‑‑‑S.O.15(3)(4)‑‑‑Constitution of Pakistan (1973). Art.13‑‑‑Imposition of penalty in a departmental inquiry‑ ‑‑Principle of "double jeopardy"‑‑Applicability of‑‑‑Imposition of any penalty in a departmental inquiry would Clot amount to a conviction and sentence under criminal law so as to attract application of principle of "double jeopardy".

1978 PCr.LJ 262 and PLD 1987 SC 195 ref.

Shahid Anwar Bajwa for Appellant.

Asmat Kamal Khan for Respondent.

PLC 2003 KARACHI HIGH COURT SINDH 47 #

2003 P L C 47

[Karachi High Court]

Before M. Ashraf Leghari, J

ORGANIZATIONS OF KARACHI PORT TRUST WORKERS REGISTERED TRADE UNION

Versus

REGISTRAR OF TRADE UNIONS and others

Civil Petition No. 1 of 2002, decided on 19th February, 2002.

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

‑‑‑‑Ss.8(7), 9, 22(10) & 34‑‑‑Constitution of Pakistan (1973), Art.199‑‑Constitutional petition‑‑‑Collective Bargaining Agent‑‑‑Determination of‑‑Fresh election of union‑‑‑Issuance of certificate/notification in respect of change of office‑bearers of Union‑‑‑Petitioner‑union through certificate issued by Registrar of Trade Unions was determined as Collective Bargaining Agent and petitioner since issuance of this certificate had been functioning as such and enjoying all facilities provided to it under law‑‑‑Subsequently election in union was held and some replacement of office‑bearers was shade‑‑‑Petitioner informed Registrar of Trade Unions regarding change of office‑bearers, but no certificate/notification as required under S. 8 of Industrial Relations Ordinance, 1969 having been issued, by Registrar Trade Unions, petitioner preferred appeal before Labour Court, which was pending adjudication‑‑Petitioner had alleged that due to non‑issuance of acceptance certificate/notification on basis of subsequent change of office‑bearers, could not act as Collective Bargaining Agent and that act of Registrar of not issuing said certificate, was illegal, unlawful and against provision of law and could be declared as such‑‑‑Validity‑‑‑Alleged fresh election was not among unions of establishment, but was an internal replacement' in their own union and election was held among members of the Trade Union‑‑‑Union had contended that as fresh certificate had not been issued by the Registrar Trade Unions despite intimation, its period of two years of Collective Bargaining Agent had not yet commenced‑‑‑Which was repelled because such type of internal replacement could not be held to be the change in union‑‑‑Petitioner wanted to take advantage of technicality which should not come in the way of advancement of justice‑‑‑Word "change" in provisions of S.8(7) of Industrial Relations Ordinance, 1969 meant major change among unions of establishment and not a minor artificial internal replacement in union itself.

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

‑‑‑Art.199‑‑‑Constitutional.jurisdiction, exercise of--Scope--Controverted question of fact which needed evidence and detailed inquiries, could not be resolved in exercise of Constitutional jurisdiction of High Court.

Safdar Hussain for Petitioner.

M. Ishaq for Respondents Nos. 1 and 2.

M.A. Azmati for Respondent No.3.

Ch. M.A. Ashraf Khan for Respondent No.4.

Khalid Imran for the Intervenor.

Date of hearing: 19th February, 2002.

PLC 2003 KARACHI HIGH COURT SINDH 58 #

2003 P L C 58

[Karachi High Court]

Before Sarmad Jalal Osmany, J

S.G. FIBRE EMPLOYEES' UNION through General Secretary

Versus

REGISTRAR OF TRADE UNIONS, GOVERNMENT OF SINDH and 5 others

Constitutional Petitions Nos.543 of 1999, 292 and 328 of 2000, decided on 21st June, 2002.

Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑Ss.7, 8, 9 & 22‑‑‑Constitution of Pakistan (1973), Art.199‑‑Constitutional jurisdiction of High Court‑‑‑Scope‑‑‑Registration of Trade Union‑‑‑Constitutional petition would be maintainable where allegation was hat Registrar of Trade Unions had not applied his mind judiciously as to whether trade union should be registered or not and had passed a whimsical and slipshod order‑‑‑Constitutional remedies would be available where any statutory or executive functionary entrusted with responsibility for taking certain action in accordance with law had not done so‑‑‑Even disputed facts were not immune from scrutiny by High Court in exercise of its Constitutional jurisdiction and when it was not possible for Court itself to hold an inquiry in that regard, matter could be referred to Registrar of Trade Unions for further inquiry‑‑‑What was justiciable was the question whether Registrar of Trade Unions had exercised his mind judiciously in order to satisfy himself regarding issue of registration‑‑‑Non‑speaking order passed by Registrar of Trade Unions without applying his mind at all was set aside with direction to Registrar of Trade Unions to first conduct an impartial inquiry in matter and then to pass speaking order.

Messrs Kohinoor Tea (Pvt.) Ltd v. Registrar of Trade Unions 2000 PLC 1; Messrs Hino Pak Motors Ltd. v. Chairman, Sindh Labour Appellate Tribunal 2000 PLC 89; Muhammad Nasir Khan v. Secretary of Education 1999 PLC 312; Holiday Inn Workers' Union v. Registrar of Trade Unions 1992 PLC 23; NBP Employees' Front Sindh v: Registrar of Trade Unions 1997 PLC 434; NDFC Staff Union v. Registrar of Trade Unions 1991 PLC 841; High Court Appeal No.208 of 1998; UBL Employees' Union v. Registrar of Trade Unions 1997 PLC 14; Hakim Sons Chemical Industries (Pvt.) Ltd. v. Registrar of Trade Unions 1999 SCMR 234; Telegraph Stores and Workshop Workers' Labour Union v. Registrar of Trade Unions 1995 PLC 47; Essa Cement Industries Workers' Union v. Registrar of Trade Unions 1998 PLC 500; Fateh Muhammad v. Registrar of Trade Unions 1991 PLC 158; Khas Traders v. Registrar of Trade Unions 1990 PLC 351; Euro Ceramics Ltd. v. Registrar of Trade Unions 1996 PLC 45; NBP People's Federation v. National Industrial Relations Commission PLD 1975 Kar. 320; National Beverage Employees' Union v. Registrar of Trade Unions 1998 PLC 533; Abdul Hafiz v. Board of Intermediate and Secondary Education 1983 SCMR 566; Muhammad Idris v. East Pakistan Timber Merchants Group 1999 PLC 312; Burewala Textile Mills Ltd. v. Registrar of Trade Unions 1994 PLC 323; Ghee Corporation of Pakistan v: Registrar of Trade Unions 1991 PLC 207 and B.S. Magnetic (Pvt.) Ltd. v. Sindh Labour Court No. 5 1997 PLC 556 ref.

M.L. Shahani for Petitioner (in C.P. No.292 of 2000).

Chaudhary Muhammad Rafique, Addl. A.‑G. (in C.P. No.292 of 2000), Chaudhary Rasheed Ahmed for Respondent No.4 (in C.P. No.292 2000).

Sher Afgan for Respondent No.8 (in C.P. No. 292 of 2000).

Rehan Ali Siddiqui, General Secretary for Petitioner (in C.P. No.543 of 1999).

Rafiullah for Respondent No.3. (in C.P. No. 543 of 1999).

Chaudhary Muhammad Rafique, Addl. A.‑G. (in C.P. No. 543 of 1999).

S.M. Yaqoob for Respondent No.6 (in C.P. No. 543 of 2000).

M.L. Shahani for Petitioner (in C.P. No. 328 of 1999).

Rafiullah for Respondent No.3 (in C.P. No. 328 of 1999).

Gulzar Ahmed for Respondents Nos.4 and 5 (in C.P. No. 328 of 1999).

Chaudhary Muhammad Rafique, Addl. A.‑G.

Dates of hearing: 31st January, 2001; 1st 6th, 8th, 13th February. 21st June, 6th, 10th December, 2001 and 16th February, 2002.

PLC 2003 KARACHI HIGH COURT SINDH 102 #

2003 P L C 102

[Karachi High Court]

Before Saiyed Saeed Ashhad, CJ.

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, 37(3) & 38(3)‑‑‑Constitution of Pakistan (1973), Art.199‑‑Constitutional petition‑‑‑Grievance petition, dismissal of‑‑‑Appeal before Labour Appellate Tribunal‑‑‑Grievance petition by petitioner having been dismissed by Labour Court, petitioner had tiled appeal before Labour Appellate Tribunal‑‑‑Labour Appellate Tribunal dismissed appeal on grounds; firstly; that grievance petition by petitioner was time‑barred; secondly, that grievance notice submitted by petitioner was not signed by him and thirdly that petitioner had himself asked for retirement‑‑‑Grievance notice and grievance petition were tiled after about four years from the date when the petitioner was not allowed to resume duty‑‑‑Grievance notice admittedly was not signed by the petitioner‑‑‑Grievance notice not bearing signature of aggrieved workman, had been found not to be a legal notice‑‑Petitioner's retirement was made on his own request as was evident from letter of retirement written by petitioner which was on record‑‑‑Petitioner had not been able to refer to any evidence or document on record whereby it could be said that observations of Chairman of Labour Appellate Tribunal on basis of which appeal filed by petitioner was dismissed were not proper or were contrary to the record‑‑‑Order passed by Chairman, Labour Appellate Tribunal could not be interfered with by High Court in exercise of its Constitutional jurisdiction‑‑‑Constitutional petition which was misconceived and without any substance, did not merit consideration.

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. Izharullah and others 1984 PLC 33 ref.

A. Nafees Osmani for Petitioner.

Mehmood Abdul Ghani for Respondent No.2.

PLC 2003 KARACHI HIGH COURT SINDH 110 #

2003 P L C 110

[Karachi High Court]

Before Wahid Bux Brohi, J

Messrs NATIONAL ENGINEERING SERVICE PAKISTAN (PVT.) LIMITED

Versus

KHALILULLAH LODHI

Revision Application 225 of 1998, decided on 4th October, 2002.

(a) National Engineering Services (Pakistan) Limited Employees (Grant of Gratuity) Rules, 1973‑‑‑--

‑‑‑‑R.1‑‑‑Taking away the entitlement of benefits‑‑‑National Engineering Services (Pakistan) Limited Employees (Grant of Gratuity) Rules, 1973, are not statutory rules and cannot as such take away a right to which an employee workman is otherwise entitled.

(b) National Engineering Services (Pakistan) Limited Employees (Grant of Gratuity) Rules, 1973‑‑‑-

‑‑‑‑R.1(e)‑‑‑Employees' Old‑Age Benefits Act (XIV of 1976), S.2(bb)‑‑Expression 'employee'‑‑‑Connotation‑‑‑Entitlement for gratuity‑‑‑Persons governed by the provisions of Employees Old‑Age Benefits Act, 1976, are excluded from the definition of employees under R.1(e) of National Engineering Services (Pakistan) Limited Employees (Grant of Gratuity) Rules, 1973‑‑‑Employee who had completed 5 years qualifying service for Employees' .Old‑Age Benefits pension, was not entitled to gratuity.

‑‑‑R.1(e)(i)‑‑‑Employees' Old‑Age Benefits Act (XIV of 1976), S.2(bb)‑-Entitlement to gratuity‑‑‑Principle‑‑‑As any other benefit available to an employee is not debarred under Employees' Old‑Age Benefits Act, 1976, therefore, the mischief of R.1(e)(i) of National Engineering Services Pakistan) Limited Employees (Grant of Gratuity) Rules, 1973, stands circumscribed within its own domain without affecting any other right.

(d) National Engineering Services (Pakistan) Limited Employees (Grant of Gratuity) Rules, 1973‑‑‑-

‑‑‑‑R.1(e)(i)‑‑‑Entitlement to gratuity‑‑‑Insertion of R.1(e)(i) of National Engineering Services (Pakistan) Limited Employees (Grant of Gratuity) Rules, 1973‑‑‑Retrospective effect‑‑‑Employee had completed years of service within the meaning of National Engineering Services (Pakistan) limited Employees (Grant of Gratuity) Rules, 1973, for the purpose of entitlement to gratuity‑‑‑Effect‑‑‑Introduction of Cl. (i) to R.1 (e) of National Engineering Services (Pakistan) Limited Employees (Grant of Gratuity) Rules, 1973, would not take any of the rights with retrospective effect.

(e) National Engineering Services (Pakistan) Limited Employees (Grant of Gratuity) Rules, 1973‑‑‑--

‑‑‑‑Rr.1(e), 2, 3 & 4‑‑‑Employees' Old‑Age Benefits Act (XIV of 1976), S.2(bb)‑‑‑West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.12(6)‑‑‑Gratuity, entitlement to‑‑Employer company had paid to the retiring employees provident fund and gratuity even before 1‑7‑1993 but the employee was denied such benefit on the basis of R.1(e)(i) of National Engineering Services (Pakistan) Limited Employees (Grant of Gratuity) Rules, 1973‑‑‑Validity‑‑‑Gratuity was calculated from the date of entry in the service and was paid after retirement‑‑‑Employee had been discriminated for no valid reason. by disallowing the benefit of gratuity to him for the period of completed service before application of Employees' Old‑Age Benefit Scheme to him‑‑‑By implication of R.1(3)(i) of National Engineering Services (Pakistan) Limited Employees (Grnat of Gratuity) Rules, 1973, at the most, affected the period when the employee was covered by Employees' Old‑Age Benefits Act, 1976, and was receiving pension/benefit thereunder‑‑‑Employee was entitled to gratuity calculated on the basis of his service before 1‑7‑1986, in circumstances.

(f) Evidence‑‑‑

‑‑‑‑ Evidence cannot be led on a point which is not pleaded in the pleadings.

Binyameen v. Hakim 1996 SCMR 336 ref.

(g) Plea‑‑‑

‑‑‑‑ party cannot be allowed to make gain on the basis of a plea which is not raised by him at the earliest stage.

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

‑‑‑‑S.115‑‑‑Revision‑‑‑New plea‑‑‑Jurisdiction of Trial Court ‑‑‑Objection‑‑Petitioner contended that the Trial Court could not adjudicate the matter as it had no jurisdiction‑‑‑Validity‑‑‑No such plea was raised at the stage of trial, therefore, it was too late for the petitioner to agitate the point of jurisdiction and avail an opportunity to place such material on record to controvert the plea of lack of jurisdiction, if any‑‑‑Contention of the petitioner based on the point of jurisdiction was not entertained by the High Court in circumstances.

(i) National Engineering Services (Pakistan) Limited Employees (Grant of Gratuity) Rules, 1973‑‑‑-

‑‑‑‑Rr. 1(e), 2, 3 & 4‑‑‑Employees' Old‑Age Benefits Act (XIV of 1976), S.2(bb)‑‑‑West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.12(6)‑‑‑Civil Procedure Code (V of 1908), S.1 15‑‑‑Gratuity, entitlement to‑‑‑Concurrent findings of fact by the Court; below‑‑‑Grievance of the plaintiff was that the employer‑company had arbitrarily withheld the drafting allowance and gratuity fund for the period from 1‑7‑1983 to 30‑6‑1990‑‑‑Plea raised by the employer‑company was that under the provisions of R.1(e)(i) of National Engineering Services (,Pakistan) Limited Employees (Grant of Gratuity) Rules, 1973, the plaintiff was not entitled to the benefit‑‑‑Both the Courts below had concurrently found the plaintiff entitled to the benefits and the suit was decreed‑‑‑Validity‑‑‑Plaintiff was admittedly entitled to the allowance before 1‑7‑1983 and the same was revived after 1‑7‑1990‑‑‑No legal justification existed to withhold the drafting allowance during the intervening period and as such the view taken by the Courts below on such point was affirmed by the High Court‑‑Plaintiff was entitled to drafting allowance for the period from 1‑7‑1983 to 30‑6‑1990‑‑‑Concurrent findings of the Courts below granting gratuity to the respondent was not open to question except to the extent that it was admissible under the rules only for the period of service before 1‑7‑1986 and not for the period during which benefit under Employees' Old‑Age Benefits Act, 1976 was availed‑‑‑With such modification as to the claim of gratuity the concurrent findings of the Courts below were maintained by High Court in exercise of revisional jurisdiction‑‑‑Revision was dismissed accordingly.

National and Graindlay Bank v. Employees' Union 1974 PLC Note 41 at p.23 ref.

M. G. Dastagir for Applicants.

Sanaullah Qamar for Respondent.

PLC 2003 KARACHI HIGH COURT SINDH 129 #

2003 P L C 129

[Karachi High Court]

Before Wahid Bux Brohi, J

Messrs PAK SUZUKI MOTOR COMPANY LIMITED

Versus

COMMISSIONER, SOCIAL SECURITY INSTITUTION and another

Miscellaneous Appeal No.49 of 1995, decided on 14th January, 2002.

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

‑‑‑‑Ss.1(3) & 20‑‑‑Change of ownership of establishment‑‑‑Effect on payment of contribution for employees‑‑‑Establishment came into existence in 1984 by taking over property of other establishment, but no Gazette Notification was issued within meaning of S.1(3) of Provincial Employees' Social Security Ordinance, 1965 covering establishment for purpose of application of provisions of that Ordinance‑‑Establishment had stepped in shoes of the otter establishment and almost same employees were working within same premises and same nature of work was being conducted therein‑‑‑ Device, however, was applied by establishment by obtaining resignation of employees and re‑‑employing them in same manufacturing plant within same premises and for same nature of work‑‑‑Change of ownership of establishment simpliciter, would not affect payment of contribution for employees working therein when all other factors having stabstantial effect, remained unchanged.

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

‑‑‑‑Ss.2(8)(b), 20(4)(a) & 64‑‑‑Secured person‑‑‑Payment of contribution‑‑Contention of Social Security Institution was that despite scale of wages mentioned in S.2(8)(b) of Provincial Employees' Social Security Ordinance, 1965 as it stood before its amendment, employees would be treated as secured persons and contribution should be payable up to amount mentioned in S.20 of that Ordinance‑‑‑In other words if wages of employees exceeded, Rs.1,500 per month, contributions in respect of such employees were payable as within range prescribed in S.20(4)(a) of Ordinance‑‑‑‑‑Contention of Institution was repelled being misinterpretation of law‑‑‑‑Held employee whose wages exceeded Rs.1,500 per month, would not qualify to be an employee for purpose of Provincial Employees' Social Security Ordinance, 1965 and no contribution was payable in respect of such employee.

Sindh Employees' S.S.I. v. Dawood Cotton Mills Ltd. PLD 1988 SC 1 and Rashid Ahmed v. State PLD 1972 SC 271 ref.

Syed Qamaruddin Hassan for Appellant.

Khalid Habibullah for Respondents.

Date of hearing: 18th September, 2001.

PLC 2003 KARACHI HIGH COURT SINDH 143 #

2003 P L C 143

[Karachi High Court]

Before Sabihuddin Ahmed and Ghulam Rabbani, JJ

BANK OF AMERICA EMPLOYEES' UNION through General Secretary, Karachi

Versus

FEDERATION OF PAKISTAN through Secretary, Finance Division, Islamabad and 2 others

Constitutional Petition No. D‑1531 of 1997, decided on 29th January, 2000.

Banking Companies Ordinance (LVII of 1962)‑‑‑

‑‑‑‑S.27‑B [as inserted through Banking Companies (Amendment) Act (XIV of 1997))‑‑Constitution of Pakistan (1973), Art. 17 & 199‑‑‑Constitutional petition‑‑‑Disruptive Union activities‑‑‑Petitioner, which was a registered Trade Union of Employees, had questioned the legality of S.27‑B of the Banking Companies Ordinance, 1962 which imposed a bar on the use of car or telephone facility by the members of Trade Union even with the consent of the Employer and prohibited them from carrying on Trade Union activities during working hours and restrained an outsider from becoming a member or an office‑bearer of a Trade Union, on the ground of its repugnancy to Art. 17 of the Constitution of Islamic Republic of Pakistan‑‑Validity‑‑‑Even prior to insertion of S.27‑B of Banking Companies Ordinance, 1962, no law guaranteed a right to an office‑bearer of a Trade Union, to use telephone or car facilities or to indulge in such activities in violation of his basic obligations to perform his allocated duties during office hours‑‑‑Main object of legislation of S.27‑B appeared to be to make such activities punishable under law and it could not be said that such law prima facie was repugnant to Art. 17 of the Constitution‑‑‑No restriction was imposed/existed on the power of an employer to grant certain facilities to members or officers of Trade Union and employee availing such facilities which were granted voluntarily or through negotiated settlement and no one could be held punishable for availing the same‑‑‑Question whether violation of statutory provision had taken place, would depend on facts and circumstances of each case ‑‑‑Vires of a statutory dispensation could only be questioned on ground of being repugnant to a provision of Constitution or a fundamental right recognized thereby‑‑‑Contention that impugned legislation ought to be struck down merely because it purported to take away a right conferred by earlier legislation was repelled‑‑‑Nothing was in Art. 17 of the Constitution to indicate that right to have an outsider as office‑bearer, was necessarily implied in the right to form a Trade Union‑‑‑Contention with regard to restriction on outsider to become a member or. office‑bearer of a Trade Union, was also repelled‑‑‑No employee of a Bank who happened to be an office‑bearer or member of a Trade Union had a right to, claim exemption from performing his normal duties during his working hours‑‑Law which effectively infringed a fundamental right to form a Trade Union or to undertake collective bargaining, must be held void being violative of mandate given by Art. 17 of the Constitution‑‑‑Question whether a particular dispensation had impaired Constitutionally guaranteed fundamental right in particular context, could appropriately be resolved only in a concrete case coming up before the Court.

Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416: Benazir Bhutto v. Federation of Pakistan PLD 1989 SC 66; Muhammad Nawaz Sharif v. President of Pakistan PLD 1993 SC 473 and Civil Aviation Authority v. Union of Civil Aviation Authority Employees PLD 1997 SC 781 ref.

Chaudhry Muhammad Ashraf Khan for Petitioners.

Ch. Muhammad Iqbal, Standing Counsel for Respondent No. 1.

Muhammad Sabir for Respondent No.3.

PLC 2003 KARACHI HIGH COURT SINDH 154 #

2003 P L C 154

[Karachi High Court]

Before Gulzar Ahmed, J

GENERAL TYRE AND RUBBER CO. OF PAK LTD.

Versus

PRESIDING OFFICER, SOCIAL SECURITY COURT and others

Miscellaneous Application No.4 of 2001, heard on 12th September, 2002.

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

‑‑‑‑Ss.2(8)(b), 20, 22, 57, 59 & 64‑‑‑Payment of Social Security Contribution‑‑‑Appellant Company which was duly registered with Social Security Institution was paying contribution regularly in respect of its secured persons who fell within definition of term "employee" as defined under S.2(8)(b) of Provincial Employees' Social Security Ordinance, 1965 without any default ‑‑‑Appellant received letter from the institution wherein it was stated that workers who had crossed the wage limit of Rs.1,500 per month; were not exempted from Social Security Scheme and that Contribution on their behalf should be paid and that appellant had not paid contribution in respect of 519 workers whose wages had exceeded Rs.1,500 per month and Institution demanded a huge amount from the appellant in respect of said workers‑‑‑Such employees on the basis of established law did not quality to be employees under Provincial Employees' Social Security Ordinance, 1965, appeal filed by appellant was allowed and orders of Authorities were set aside and demand against appellant, was also set aside as being not in accordance with law.

Sindh Employees' Social Security Institution v. Dawood Cotton Mills Ltd. PLD 1988 SC 1 and Commissioner, Sindh Employees' Social Security Institution and another v. Messers E.M. Oil Mills and Industries Ltd., S.I.T.E., Karachi and 2 others 2002 SCMR 39 ref.

Mehmood Abdul Ghani for Appellant.

Khalid Habibullah for Respondents Nos.2 and 3.

Date of hearing: 12th September, 2002.

PLC 2003 KARACHI HIGH COURT SINDH 159 #

2003 P L C 159

[Karachi High Court]

Before Muhammad Roshan Essani and S. Ali Aslam Jafri, JJ

Messrs GREEN ONYX COMPANY through Manager

Versus

FAQIR GUL and 2 others

Constitutional Petition No.D‑95 of 1998, decided on 20th December, 2002.

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)‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Grievance petition‑‑Termination of service‑‑‑Employee being a permanent worker had been serving in employer‑company for about 10 years, but was removed from service by employer without any order in writing or stating reasons for the same in contravention of S.O.12(3) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968‑‑‑Employee was permanent worker in employer company which employed about 50 workers and relationship of workmen and employer had been found to be existing between employer and employee‑‑‑Fact, that services of employee were terminated without giving him written order and reasons for same and that employer was not willing to take him back in service was evident front statement of authorized Representative of Management recorded by Assistant Director Labour‑‑‑ Labour Court and Labour Appellate Tribunal, in circumstances, had rightly ordered reinstatement of employee‑‑‑Concurrent judgment of Labour Court and Appellate Tribunal, could not .be interfered with, in circumstances.

Mehmood Habibullah for Petitioner.

Ashraf Hussain Razvi for Respondent No.1.

Date of hearing: 11th December, 2002.

PLC 2003 KARACHI HIGH COURT SINDH 189 #

2003 P L C 189

[Karachi High Court]

Before Wahid Bux Brohi, J

SINDH EMPLOYEES' SOCIAL SECURITY INSTITUTION

Versus

Messrs FUJI COLOR PAKISTAN LABORATORIES (PVT.) LTD.

Miscellaneous Appeal No.40 of 1997, decided on 18th September, 2002.

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

----Preamble---Rule of construction of a provision of the Ordinance--Object---Duty of Court stated.

Court will bear in mind the golden rule that since the Ordinance aims at ameliorating the lot of certain employees by providing benefits to them or their dependants in the event of sickness, maternity, employment or injury or death and for matters ancillary thereto, beneficial construction is to be made while interpreting any provision of the Ordinance.

(b) Interpretation of statutes---

---- Beneficial enactment---Rules of construction---Duty of Court.

While construing a beneficial enactment, Court has to take into ration the object for which it was enacted and the mischief which it intended to suppress and in doing so, if two possible constructions emerge from a provision of such statute, then one which favours the class of persons for whose benefit the law has been enacted would be preferred.

Sindh Employees' Social Security Institution v. Spencer & Company (Pak.) Limited 1998 SCMR 440 and Shaheen Airport Services v. Sindh Employees' Social Security Institution 1994 SCMR 881 ref.

----Ss. 1(3), 2(8)(11), 20(l), 23(1) & 57---Liability to pay contribution to Institution---Employer, a private limited company had laboratories in K and H---Demand of contribution from H Laboratory in respect of employees working with K Laboratory---Respondent's plea was that H Laboratory was a distinct and separate entity, and in absence of separate notification under S.1(3) of the Ordinance, H, Laboratory could not be treated as an individual establishment---Commissioner found respondent liable to pay contribution, but First Appellate Court set aside such decision on the ground that Institution had to establish that persons working at H Laboratory were actually working in connection with work of K Laboratory, for which there was no evidence---Validity---Burden of establishing a point of fact likely to deprive employees of their intended benefits would not be put on employees or Institution, particularly when main application had been filed on behalf of employer---Employer had to shoulder the onus of proving that laboratory at H was a different entity having no concern with notified Laboratory at K---Owner of both laboratories was same person as they were being run under same name---H Laboratory was in administrative contr6l of notified establishment at K---Workers at H would be deemed to be working in connection with affairs of establishment holding administrative control--Main application as well as first appeal had been signed and filed by respondent's establishment at K---Had laboratory at H been a separate entity, they would have, in their own ,right and capacity, challenged order of contribution passed by Institution, but they had not done so---If H Laboratory was a separate entity, then first appeal not having been filed by aggrieved party (i.e. H Laboratory), was not maintainable and was liable to be dismissed on such score alone---View taken by First Appellate Court was erroneous in holding that H Laboratory was a separate entity---High Court accepted appeal, set aside impugned order and modified order of Commissioner that increase under S.23(1) of the Ordinance be, not charged.

Kohinoor Chemical Company Limited v. Sindh Employees' Social Security Institution PLD 1977 SC 197 arid MacDonald Layton Constain Limited v. Punjab Employees' Social Security Institution PLD 1991 SC 1055 ref.

(d) Provincial Employees' Social Security Ordinance (X of 1965)--

----Ss.20(1) & 23(1)---Failure to pay contribution---Charging extra/additional amount---Scope---Increase under S.23(1) of the Ordinance was permissible, when employer failed to pay contribution payable under S.20(1) of the Ordinance---Where legality of contribution was challenged for a period prior to date of registration, then no wilful default in payment of contribution could be attributed to employer---Employer would not be liable to pay such increase in absence of intentional omission or wilful abstention from performing legal obligation as to payment of contribution.

Khalid Habibullah for Appellant.

Abdul Muqtadir Khan for Respondents.

PLC 2003 KARACHI HIGH COURT SINDH 207 #

2003 P L C 207

[Karachi High Court]

Present: Muhammad Afzal Soomro, J

GENERAL SECRETARY, PORT MUHAMMAD BIN QASIM HARBOUR AND DOCK WORKERS' UNION and others

Versus

C.B.R. and others

Constitutional Petition No.S-170 of 2002, decided on 7th June, 2002.

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

----S.21---Annual return---Mandatory under S.21 of Industrial Relations Ordinance, 1969 for a Trade Union to submit its Annual Returns wherein it had to send several statements audited in prescribed manner of all receipts and expenditure annually to the Registrar of Trade Unions, together with general statement, a statement showing all changes of officers made by Trade Union during the year---Trade Union, in the present case, after 31 St December, 1999, till initiation of proceedings for holding disputed Referendum in the establishment had not presented audited accounts for two years---Trade Union, in circumstances, had become guilty of breach of provisions of S.21 of Industrial Relations Ordinance, 1969 because period prescribed for submission of those accounts was 31st December, 2000 and 31st December, 2001, respectively---Even if no change was made, Trade Union under S.21 of Industrial Relations Ordinance, 1969 was bound to inform latest position to Registrar of Trade Unions.

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 its Chairman and others v. K.E.S.C. Labour Union through its 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; M.C.B. Staff Union of Pakistan v. Senior Member, N.I.R.E., Lahore and others 2001 PLC 131; Democratic Workers' Union C.B.A. v. State Bank of Pakistan and others 2002 PLC (C.S.) 614; Pakistan Burman Shell Petrol Pumps Employees' Union, Karachi v. Pakistan Burmah Shell Limited through its Director and 4 others PLD 1978 Kar. 279; Merchant Navy Seamen's 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.

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

----S.22(2)---Constitution of Pakistan (1973), Art. 199---Constitutional petition ---Holding of referendum to determine Collective Bargaining Agent in the establishment---Petitioner Trade Union had claimed that it had 200 members who all were entitled to cast their votes, but only 123 members had been held entitled to cast their votes whereas remaining 77 were held disentitled for casting their votes without any valid reason---No proof of employment of said 77 alleged members of Trade Union had been submitted by the petitioner---Factual controversy being involved in matter, High Court in exercise of Constitutional jurisdiction could not determine as to whether said 77 members of petitioner Trade Union were employees and had completed required period of three months of their membership---Such issue could only be resolved through evidence, which could not be recorded in Constitutional petition---Constitutional petition, in circumstances, was not maintainable.

Shehanshah Hussain, Ali Mehdi and Asif Mukhtar for Petitioners.

Ch. Muhammad Rafiq, Addl. A.-G. for Respondents Nos. 1 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.

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

Date of hearing: 7th June, 2002.

PLC 2003 KARACHI HIGH COURT SINDH 310 #

2003 P L C 310

[Karachi High Court]

Before Anwar Zaheer Jamali, J

SANGHAR SUGAR MILLS LTD

Versus

SANGHAR SUGAR MILLS WORKERS UNION and others

Civil Petition No. S-149 of 1998, heard on 21st April, 2003.

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

----Ss.1(3) & 20---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Making of contribution---Notification whereby Provincial Employees' Social Security Ordinance, 1965 was made applicable to the establishment and its employees had been challenged on the ground that under an agreement arrived at between the Establishment and Collective Bargaining Agent in the Establishment, more benefits and facilities were being extended to employees of the Establishment---Validity---Held, under cover of alleged agreement between the Establishment and Collective Bargaining Agent, the Establishment could not be absolved of their liability under statute which had become due after issuance of notification---Plea of some private arrangement ~ between the Establishment and Collective Bargaining Agent was ill-founded as contribution which was to be made by the Establishment in response to notification had nothing to do with agreement arrived at between the Establishment and Collective Bargaining Agent---Neither such agreement would absolve the Establishment from making payment of contribution to Social Security Department nor would it in any manner restrict the Establishment from undertaking any further beneficial steps for the welfare of its employees, despite making contribution in terms of notification in accordance with law.

Kohinoor Chemicals Co. Ltd. and another v. Sindh Empoyees' Social Security Institution and another PLD 1977 SC 197; Messrs Standard Printing Press v. Sindh Employes' Social Security Institution 1998 SCMR 91; Sindh Employees' Social Security Institution v. Messrs Pakistan Tobacco Company Ltd. 1995 SCMR 32: Muhammad Siddique v. Market Committee, Tandlianwala 1983 SCMR 785; Maple Leaf Cement Factory Ltd. v. Government of Punjab PLD 2002 SC 726; Pakistan Engineering Co. Ltd. v. Punjab Employees' Social Security Institution, 'Lahore 1981 PLC 79; Sindh Employees' Social Security Institution v. Messrs Spencer & Company (Pak.) Limited 1998 SCMR 440; People's Steel Mills Ltd. v. Sindh Employees' Social Security Institution C.P. No.789 of 1977; Mehran Sugar Mills Ltd. v. Sindh Employees' Social Security Institution and 2 others 1991 PLC 310 and Shaheen Airport Services v. Sindh Employees' Social Security Institution 1994 SCMR 881 ref.

(b) Constitution of Pakistan (1973)---

----Art.199---Constitutional jurisdiction---Scope---Jurisdiction of High Court under Art. 199 of Constitution which was discretionary in nature, was aimed to foster cause of justice and not to help a party which had not approached High Court with clean hands or wanted to protect some ill-gotten gains or even wanted to take benefit of some ill-advised litigation.

Khiali Khan v. Haji Nazir and 4 others PLD 1997 SC 304 and Mst. Kaniz Fatima through Legal Heirs v. Muhammad Slaeem and 27 others 2001 SCMR 1493 ref.

Muhammad Farogh Nasim for Petitioner.

Khalid Habibullah for Respondents Nos.2 and 3.

Date of hearing: 21st April, 2003.

PLC 2003 KARACHI HIGH COURT SINDH 380 #

2003 P L C 380

[Sindh High Court]

Before: Wahid Bux Brohi, J

CHEMPAK (PVT.) LIMITED and another

Versus

SINDH EMPLOYEES' SOCIAL SECURITY INSTITUTION (SESSI) and another

Miscellaneous Applications Nos.23 of 1997, 13 and 14 of 1998, decided on 16th January, 2003.

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

----Ss.2(8)(f), 20 & 64 [as amended by Labour Laws (Amendment) Ordinance (XXIII of 1993)]---Constitution of Pakistan (1973), Art. 89--Appeal---Enhancement of limits of wages of employees for contribution--Powers of the President to re-promulgate an Ordinance---Validity of Labour Laws (Amendment) Ordinance, 1993 whereby limits of wages of workers in Ss.2(8)(f) & 20 of Provincial Employees' Social Security Ordinance, 1965 were enhanced from Rs.1,500 to Rs.3,000 had been challenged--Contention of the company was that the President was not competent to re-promulgate the same Ordinance under Art.89 of Constitution and demand of contribution based on said re-promulgated Amending Ordinance, was not legal---Institution controverting contention of the company, had submitted that forums which had passed the impugned orders as also the High Court while deciding appeals within scope of Ss.63 & 64 of Provincial Employees' Social Security Institution Ordinance, 1965, were not competent to question the validity and constitutionality of amendments enforced through the Ordinance and that re-enactment of Ordinance being valid, demand of the contribution was made validly by the Institution---Validity---Until a law finally held to be ultra vires for any reason, the same should have its normal operation---Law enforced through the Amending Ordinance enhancing limits of Social Security contribution by bringing within its net employees drawing wages up to Rs.3,000, had its normal operation on the relevant day---Social Security Court, thus had rightly refrained from examining its vires and validity---High Court would also not enter into examination of validity and constitutionality of said Ordinance in view of dictum of Supreme Court in the case reported as 1988 SCMR 91 which had approved earlier decision of High Court in the same case---Vires of Ordinance could not be questioned in absence of making relevant Government as party who were responsible to defend piece of legislation enacted and promulgated by them---Quantum of contribution having never been challenged in the lower forum, could not be dilated upon at appellate stage---President of Pakistan was fully competent to re-enact the Ordinance, even if subsequent Ordinance was word by word as the preceding Ordinance.

Collector of Customs v. New Electronics (Pvt.) Limited PLD 1994 SC 363; Government of Punjab v. Zia Ullah Khan 1992 SCMR 602; Standard Printing Press v. Sindh E.S.S.I. 1988 SCMR 91; Riaz Ahmed v. State 1998 SCMR 1729; Noor Muhammad v. Ghulam Mustafa 1999 SCMR 264; Muhammad Hassan Harvi v. Federation of Pakistan PLD 1999 Lah. 320; Volkervam (Pak) Ltd. v. Sindh Employees' S.S.I. 1991 SCMR 2361; Standard Printing Press v. Sindh Employees' Social Security Institution PLD 1978 Kar. 945; S.E.S.S.I: v. Muhammad Ali Taj PLD 1975 SC 450; Federation of Pakistan v. Aitizaz Ahsan PLD 1989 SC 61 and Rahmat Khan v. Federation of Pakistan PLD 1993 Lah. 70 ref.

(b) Constitution of Pakistan (1973)---

----Art. 89---President was fully competent to re-enact an Ordinance, even if the subsequent Ordinance was a word by word the same as the preceding Ordinance.

Suleman Habibulah for Appellants.

Khalid Habibullah for Respondents.

PLC 2003 KARACHI HIGH COURT SINDH 436 #

2003 P L C 436

[Karachi High Court]

Before Gulzar Ahmed, J

AZIZUR REHMAN and 2 others

Versus

SINDH LABOUR COURT NO.V and 5 others

Civil Petition No.507 of 2002, decided on 7th April, 2003.

Industrial Relation Ordinance (XXIII of 1969)---

----S. 8(4)(5)(7)---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Dispute in relation to change of officers of Trade Union---Appeal to Labour Court---Labour Court concluded that it had no power to grant relief of cancellation of change of officer-bearers notified by Registrar of Trade Unions but it had power to direct holding of fresh elections---Labour Court accordingly ordered holding of fresh elections under supervision of Registrar, Trade Unions instead of quashing/canceling/setting aside notification/order of change of office-bearers issued subsequent to notification of election--Validity---Labour Court despite holding that subsequent change in office-bearers of employees union recorded by Registrar, Trade Unions was not in accordance with constitution of union and that there was, no justification with Registrar, Trade Unions to have accepted such subsequent change, did not proceed to quash/cancel/set aside order of Registrar, Trade Unions assuming that it had no jurisdiction of power to do so, but had ordered to hold fresh elections---Labour Court under provisions of S.8(4)(5)(7) of Industrial Relations Ordinance. 1969 had jurisdiction to entertain and decide appeals which would arise from order of Registrar of Trade Unions where he not only refused to accept change of office-bearers of Trade Union, but had accepted the change if there was a dispute in relation to: change of office-bearers of Trade Union---Labour Court, in circumstances, had not reached to correct conclusion in law in directing holding of fresh elections of the union---High Court in exercise of Constitutional jurisdiction, corrected error of law made by Labour Court in refusing to quash/cancel/set aside order of Registrar, Trade Unions.

Karachi Warehouse and Carriers Workers' Union v. Pakistan Warehouse Carriers Workers PLD 1978 Kar. 417; KMC and Sanitary and General Employees' Union v. Khalid Hafeez 1991 PLC 593; Abdul Rauf v. Registrar of Trade Unions 1980 PLC 219 and Shamsur Rehman v. Presiding Officer, Labour Court No. 1, Karachi 1983 PLC 742 (sic) ref.

Khalid Javed for Petitioners.

Khalid Imran for Respondents.

Date of hearing: 19th September, 2002.

Labour Appellant Tribunal Balochistan

PLC 2003 LABOUR APPELLANT TRIBUNAL BALOCHISTAN 86 #

2003 P L C 86

[Balochistan Labour Appellate Tribunal]

Before Justice Fazal‑ur‑Rahman, Chairman

WASA EMPLOYEES' UNION through General Secretary and another

Versus

REGISTRAR, TRADE UNIONS, BALOCHISTAN and another

Labour Appeal No. 4 of 1999, decided on 2nd July, 2002.

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

‑‑‑Ss. 1(3)(b), 10 & 11(A)‑‑‑Balochistan Water and Sanitation Authority Act (IX of 1989), Ss.3, 4 & 15‑‑‑Pakistan Essential Services (Maintenance) Act (LIII of 1952), S.5(1)‑‑‑Constitution of Pakistan (1973), Art.17‑‑‑Forming of trade union‑‑‑Employees of Balochistan, Water and Sanitation Authority‑‑Service declared as pensionable and essential‑‑‑Authorities filed complaint under S.10 of Industrial Relations Ordinance; 1969 seeking cancellation of registration and Collective Bargaining Agent Certificate issued to the employees‑‑‑Labour Court allowed the complaint and denied right of labour union, as a result Collective Bargaining Agent Certificate was cancelled on the ground that the service of the employees was now pensionable and was included in essential service, therefore, provisions of Industrial Relations Ordinance, 1969, were not applicable ‑‑‑Validity‑‑Balochistan Water and Sanitation Authority was not an establishment carried on by or under the Authority of Provincial Government but the Authority had been constituted under statute and had the status of a body corporate functioning under an Act of the Legislature and not under the Authority of Government‑‑‑Held, Balochistan~ Water and Sanitation Authority was an 'industry' within the meaning of Industrial Relations Ordinance, 1969, its employees could not be stated to be employed in the Administration of State and were not covered by exclusion cl. (b) of S.1(3) of Industrial Relations Ordinance, 1969‑‑Employees/workers like valve‑men, mechanics, helpers etc. were not covered by S.1(3)(b) of Industrial Relations Ordinance; 1969, and were not engaged in the administration of State‑‑‑Labour Court had wrongly held that the employees could not form any union as their services had been declared as pensionable and essential ‑‑‑Balochistan Water and Sanitation Authority was an industry and the employees were workers/workmen as per the provisions contained under Industrial Relations Ordinance, 1969‑‑Employees were not performing and were not connected with performance of any of the regal functions of Balochistan Water and Sanitation Authority so as to disentitle them to be registered as trade union workers‑‑‑Declaration of services as pensionable and order stated to be issued under the provisions of Pakistan Essential Services (Maintenance) Act, 1958, could not put a bar regarding formation of union‑‑‑Workers employed in the Authority were entitled to protection of labour laws and had a guaranteed right to form union‑‑‑High Court set aside the order passed by the Labour Court‑‑‑Appeal was allowed accordingly.

1988 SCMR 765; 1997 SCMR 66; PLD 2000 SC 207; 1994 PLC 553 and PLD 1993 Lah. 306 ref.

(b) Balochistan Civil Servants Act (IX of 1974)‑‑‑

‑‑‑‑S. 2(1)(b)‑‑‑Factories Act (XXV of 1934), S.2(b)‑‑‑Workmen's Compensation Act (VIII of 1923), S.2(n)(i)‑‑Worker/workman ‑‑‑ Provisions of Balochistan Civil Servants Act, 1974‑‑‑Applicability‑‑‑Provisions of Balochistan Civil Servants Act, 1974 are not applicable to a person who is a worker/workman as defined in Factories Act, 1934 and Workmen's Compensation Act, 1923.

‑‑‑‑S. 1(3)(b)‑‑‑Balochistan Water and Sanitation Authority Act (IX of 1989), S.12‑‑‑Balochistan Water and Sanitation Authority, an 'industry' within the meaning of Industrial Relations Ordinance, 1969‑‑‑Profit‑making motive, absence of‑‑‑Effect‑‑‑Authority was rendering various types of services and keening in view the services like water supply, sewerage and sanitation, it could be said that the Authority was an 'industry' within the meaning of Industrial Relations Ordinance, 1969‑‑‑Absence of profit‑making motive is not relevant for determining whether or not an undertaking or an organization is an 'industry'.

Khawar Saeed and Azam Jan Zarkoon for Appellant.

Asstt.‑ A.‑G. for Respondents.

Date of hearing: 21st March, 2002.

Labour Appellant Tribunal Nwfp

PLC 2003 LABOUR APPELLANT TRIBUNAL NWFP 8 #

2003 P L C 8

[N.‑W.F.P. Labour Appellate Tribunal]

Before Justice Mian Shakirullah Jan, Chairman

MUHAMMAD SALEEM AWAN

Versus

N.‑W.F.P. FOREST DEVELOPMENT CORPORATION through Managing Director, Office Enclave Phase‑V, Hayatabad, Peshawar and another

Appeals Nos. 77 and 76 of 2001, decided on 2nd August, 2002.

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

‑‑‑‑Ss.2(xxviii) & 25‑A‑‑‑West Pakistan Industrial .and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(i)‑‑"Workman"‑‑‑Determination of‑‑‑Grievance petition ‑‑‑Maintainability‑‑Evidence on record though had shown that employee was delegated financial powers, but those powers were never exercised by employee in letter and spirit‑‑‑All electric bills, vouchers and statements of accounts etc. were sent to employee for its onward submission to Project Director, who used to accord sanction in all matters‑‑‑Final Authority thus was Project Director and not the‑ employee‑‑‑Employee in his service career spreading over more than one decade, had never terminated or appointed any person, which proved that he had no hire and fire powers‑‑‑Mere delegation of financial powers given to employee would not oust the employee from definition of workman‑‑‑Evidence produced by employers had abundantly revealed that employee belonged to category of workman as most of duties performed by him were‑manual and clerical in character‑‑‑Employee who was proved to be workman, could file grievance petition against his grievances‑‑‑Grievance petition which was not barred by time was rightly allowed by Labour Court.

Mustehkum Cement Ltd. through Managing Director v. Abdul Rashid and others 1998 SCMR 644 = 1998 PLC 172 ref.

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

‑‑Ss.25‑A & 51‑‑‑Recovery of outstanding dues‑‑‑Grievance petition‑‑‑ Maintainability‑‑‑Grievance petition filed by employee had shown that employee had prayed for recovery of outstanding dues which were denied to him in disregard of settlement/agreement arrived at between Collective Bargaining Agent and employers‑‑‑Prayer of employee attracted S.51 of industrial Relations Ordinance, 1969, besides his mentioning of Ss.25‑A & 51 of the Ordinance in the heading of grievance petition‑‑‑Mere wrong addition or mention of provision of law in a petition before Labour Court would not disentitle or deprive employee from relief for which he was entitled under law‑‑‑Petition filed by employee under S.51 of Industrial elations Ordinance, 1969 had rightly been entertained by Labour Court.

Pakistan Fisheries Karachi and others v. United Bank Ltd. PLD 1993 SC 109; 1994 SMR 771 and 1999 MLD 595 ref.

----‑S.O.12(6)‑‑‑Gratuity‑‑‑.Calculation of‑‑‑Gratuity should' be paid on the basis of "wages" and wages would mean gross wages including fringe benefits which were on permanent basis and were part of basic pay i.e. Wages, ‑‑‑ held, was entitled to calculation of gratuity on basis of gross wages‑‑‑Term "wages", explained.

Zain Packaging Industries Ltd. v. Abdul Rashid and 2 others 1994 SCMR 2222 ref.

(d) Industrial dispute‑‑‑

----Labour laws‑‑‑Construction‑‑‑Construction of labour laws should be aimed at advancing cause of workman‑‑‑Labour laws being beneficial and benevolant in character have to be construed liberally in order to advance cause of workman.

PLD 2000 SC 207 ref.

‑‑‑‑"Wage"‑‑‑Explained.

Abdul Rehman Qadir for Appellant.

Abdul Shakoor Khan for Respondent.

Date of hearing: 2nd August, 2002.

PLC 2003 LABOUR APPELLANT TRIBUNAL NWFP 99 #

2003 P L C 99

[Labour Appellate Tribunal N.‑W.F.P.]

Before Mian Shakirullah Jan, Chairman

SHAMSUL AWLIA and another

Versus

MUSLIM COMMERCIAL BANK LTD.

Appeals Nos. 16 and 22 of 2001, decided on 10th May, 2002.

Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑Ss. 2(xxviii) & 25‑A‑‑‑Dismissal from service while working as Officer Grade‑II in a Bank‑‑‑Grievance petition by employees ‑‑‑Maintainability‑‑Labour Court dismissed such petition on the ground that employees did not come within definition of "workman" as Bank had executed power of attorney in their favour authorising them to appoint or terminate clerks etc.‑‑‑Validity‑‑‑Bank could not prove that employees had actually acted or exercised such delegated powers‑‑‑Mere execution of such power of attorney would not be sufficient to oust employees from definition of "workman"‑‑Had there been anything on record showing exercise of power by employees under such power of attorney and matter would have been different and they could be called "agents of the Bank" ‑‑‑Employees having been appointed as cashiers and later on promoted as officers had been performing multifarious duties of Bank, such as clerical works in addition to supervisory and managerial duties‑‑‑Labour Appellate Tribunal accepted appeals, declared appellants as "workman" and directed Labour Court to decide their grievance petition after recording evidence on merits.

Ijaz Anwar for Appellant.

Alhaj Gohar Rehman for Respondents.

Date of hearing: 10th May, 2002.

PLC 2003 LABOUR APPELLANT TRIBUNAL NWFP 286 #

2003 P L C 286

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

Before Justice Sardar Muhammad Raza, Chairman

CHIEF EXECUTIVE BABRI COTTON MILLS and 2 others

Versus

MUSHTAQ AHMED

Appeal No. 18 of 1999, decided on 18th June, 2001.

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

----S.25-A---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.12 --- Termination of service---Services of employee were terminated on grounds of financial crises and abolition of post of employee--- On filing grievance petition by employee against order of employers terminating his services, Labour Court set aside order of termination on ground that employee being senior in his cadre could not be removed in presence of his juniors---Employee was senior most in his cadre/section even according to seniority list wherein he ranked on the top--Employers could not prove their stance that the employee was given an offer of transfer to another section as a condition of his retention in service, but employee did not agree to it---Excuse of such offer was neither in writing nor was taken by employers in written statement---Same could not be relied upon particularly in circumstances when juniors to employee were retained in service by transfer to another section---Labour Court in circumstances had rightly held that employee being senior in his cadre could not be removed in presence of his juniors---Appeal against judgment of Labour Court, was dismissed.

Nisar Ahmad Khan for Appellants

Ijaz Anwar for Respondent.

Labour Appellant Tribunal Punjab

PLC 2003 LABOUR APPELLANT TRIBUNAL PUNJAB 20 #

2003 P L C 20

[Punjab Labour, Appellate Tribunal]

Before Justice (Retd.) Iftikhar Ahmad Cheema, Chairman

ALLIED BANK OF PAKISTAN LIMITED through Attorneys

Versus

Syed NASIR ABBAS NAQVI

Appeal No. RI‑4 and RI‑10 of 2001, decided on 20th February, 2002.

(a) Industrial Relations Ordinance (XXIII of 1961)‑‑‑-

1999 PLC 466; 1982 PLC 389; 1982 PLC 616 and 1982 CLC 920 ref.

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

1985 SCMR 1511 and 1985 CLC 403 ref.

1982 PLC 20; 1980 PLC 800; 1990 PLC 462; 1989 PLC 969; 1992 PLC 289 and 1992 SCMR 505 ref.

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

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

1980 PLC 514; 1980 PLC 655: 1988 PLC 573: 1987 PLC 846: and 1998 PLC 172 ref.

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

1998 PLC 573: 1987 PLC 846; 1992 PLC 58 and 1998 PLC 172 ref.

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

1996 PLC 702 and 1998 PLC 1; PLD 1981 SC 225 and 1999 ,SCMR 1237 ref.

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

1978 PCr.LJ 262 and PLD 1987 SC 195 ref.

Shahid Anwar Bajwa for Appellant.

Asmat Kamal Khan for Respondent.

Labour Appellant Tribunal Sindh

PLC 2003 LABOUR APPELLANT TRIBUNAL SINDH 76 #

2003 P L C 76

[Sindh Labour Appellate Tribunal]

Before Munawar Ali Khan, Chairman

MUHAMMAD RASHEED

Versus

PRESIDING OFFICER and 2 others

Appeal No. KAR‑107 of 2000, decided on 13th Mays 2002.

Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑Ss.2(viii), (xxviii) & 25‑A‑‑‑Removal from service‑‑‑Grievance petition‑‑ Relationship of employer and employee,‑‑Proof‑‑‑Petitioner who was removed from service by oral order, had filed grievance petition against his removal from service‑‑‑Petitioner after serving notices td employer (mill) and the contractor of mill filed grievance petition against the mill‑‑‑Mill denied relationship of employer and employee between parties and alleged that grievance petition was not maintainable as petitioner had no‑ locus standi to file case against mill‑‑‑Department in which petitioner worked in fact was given on contract and Mill Management had nothing to do with employees appointed by the contractor‑‑‑Petitioner could not produce any proof of his being in employment of the mill in form of any appointment letter whereas petitioner had admitted that all other workers in mill had been given appointment letters by the mill‑‑‑Petitioner also could neither examine any witness nor could produce any document in proof of his claim‑‑‑Such facts had led to irresistible conclusion that petitioner was .never employed by the mill‑‑‑Petitioner having no case, Labour Court was justified in dismissing his grievance petition.

Ghulam Mustafa Lakho for Appellant.

Masood Ahmed Khan for Respondent No.2.

Qamaruddin for Respondent.No.3.

Date of shearing: 6th May, 2002.

PLC 2003 LABOUR APPELLANT TRIBUNAL SINDH 107 #

2003 P L C 107

[Sindh Labour Appellate Tribunal]

Before Justice Retd. Munawar Ali Khan, Chairman

ALI AKBAR

Versus

Messrs FAUJI SUGAR MILLS

Appeal No. HYD‑154 of 1999, decided on 30th October, 2001.

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

‑‑‑‑S.O.12‑‑‑‑Termination of service‑‑‑Allegation of unsatisfactory performance‑‑‑Termination of employee being simpliciter and no misconduct of the employee was involved, it was not necessary to hold any enquiry‑‑‑In order to dispense with services of permanent workman, unless there was allegation of misconduct against him it would be enough to give him one month's notice or in lieu thereof, one month's wages calculated on the basis of average wages earned by him during last three months‑‑‑Order terminating services of employee carried endorsement at its end to the effect that he had received his dues in full and final payment‑‑‑Mandatory provision, iv circumstances, was complied with for purpose of dispensing with service of employee‑‑‑For ordering termination of services of employee all requirements of S.O.12 of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, having been complied with there was nothing illegal about order of termination.

S.P. Lodhi, Representative for Appellant.

Muhammad Sadiq Qureshi for Respondent.

Lahore High Court Lahore

PLC 2003 LAHORE HIGH COURT LAHORE 14 #

2003 P L C 14

[Lahore High Court]

Before Maulvi Anwarul Haq, J

SUPERINTENDING ENGINEER HIGHWAY CIRCLE, FAISALABAD and another

Versus

ABDUL RAHIM and another

Writ Petition No. 18288 of 1996. heard on 4th July. 2002.

Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑S.25‑A‑‑‑Buildings and Roads Departments Code Rr.1.107, 1.108 & 1.109‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑Regularizing services of work charge employee‑‑‑Petitioner who was employed as a workcharge employee feeling aggrieved that his services were not being regularized and that he was not being made a permanent employee, filed grievance petition seeking declaration that he was a regular employee‑‑Grievance petition was allowed by Labour Court and appeal against judgment of Labour Court was also dismissed‑‑‑Rules 1.107, 1.108 & 1.109 of Buildings and Roads Departments Code dealing with working conditions of work charged establishment being applicable to the petitioner he could neither be declared permanent under said Rules nor could be granted all benefits available to permanent employees‑‑‑Judgments of Labour Court and Labour Appellate Tribunal, were set aside, by High Court in exercise of its Constitutional petition.

Province of Punjab and others v. Gul Hassan and others 1992 PLC 924 ref.

Ch. Muhammad Ikram with Saifullah Niazi, S.D.O. for Petitioners.

Ch. Irshad Ullah Chattha for Respondents.

Date of hearing: 4th July, 2002.

PLC 2003 LAHORE HIGH COURT LAHORE 41 #

2003 P L C 41

[Lahore High Court]

Before Ijaz Ahmad Chaudhry, J

CRESCENT TEXTILE MILLS LIMITED through Manager Accounts, Sadiq Saleem

Versus

BOARD OF TRUSTEES, EMPLOYEES OLD AGE BENEFITS INSTITUTION and 2 others

Writ Petition No. 4106 of 1996 and Writ Petition No. 1617 of 1995, decided on 11th March, 2002.

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

‑‑‑‑Ss. 2(bb)(c) & 33‑‑‑Liability of employer to pay Employees Old Age Benefits dues‑‑‑Scope‑‑‑Person employed directly or indirectly in connection with affairs of industry/establishment‑‑‑Employer liable to pay dues of such person to Employees Old Age Benefits Institution.

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

‑‑‑‑Ss. 2(bb), 33 & 35‑‑‑Constitution of Pakistan (1973), Art.199‑‑Constitutional petition‑‑‑Demand of Employees Old Age Benefit dues‑‑Petitioner in reply to show‑cause notice demanded certain details from authority to arrive at a mutually acceptable conclusion‑‑‑Petitioner filed petition before Adjudicating Officer, who with the consent of parties appointed a Commission to determine actual dues payable by petitioner‑‑Commission gave its verdict against petitioner, on the basis of which Adjudicating Officer dismissed petition‑‑‑Contention of petitioner was that persons employed by contractor for doing job in its industry/establishment could not be termed employees of petitioner‑‑Validity‑‑‑Petitioner was bound to deposit the amount with the Institution as employee on contract were covered by definition of S.2(bb) of the Act‑‑‑Petitioner had not taken any specific stand before filing petition under S.33 of the Act challenging dues directed to be paid in respect of employees on contract‑‑‑Petitioner had raised such question before Adjudicating Officer without giving details of employees of contractors‑‑‑Finding of fact arrived by Commission appointed with consent of parties and thereafter by Adjudicating Officer and Appellate Authority could not be disturbed in Constitutional jurisdiction‑‑‑Impugned orders were supported, by sufficient material, to which no exception could be taken‑‑‑High Court dismissed Constitutional petition in circumstances.

PLD 1976 Lah. 1169; 1989 PLC 434; 1983 PLC 198; 1990 PLC 21; 1990 PLC 26; 1987 SCMR 1463 and 1989 SCMR 888 ref.

Ch. Abdul Rab, Muhammad Irshad and Raja Muhammad Akram for Petitioners.

Muhammad Shan Gull, for A.‑G. and Rana Amir Ahmad Khan for Respondents.

Date of hearing: 24th January, 2002.

PLC 2003 LAHORE HIGH COURT LAHORE 52 #

2003 P L C 52

[Lahore High Court]

Before Syed Jamshed Ali, J

NATIONAL SAVINGS ORGANIZATION through Director‑General, Central Directorate of National Savings, C.D.A., Islamabad and 5 others

Versus

NATIONAL INDUSTRIAL RELATIONS COMMISSION through Chairman and 6 others

Writ Petition No. 18393 of 1995, heard on 22nd November, 2002.

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

‑‑‑‑Ss.22‑A(8)(g)(9) & 15(1)(c)(d)‑‑‑Service Tribunals Act (LXX of 1973), Ss.2A, 4 & 6‑‑‑Constitution of Pakistan (1973), Art. 212‑‑‑Orders of transfer and reversion of employees of National Savings Organization‑‑‑National Industrial Relations Commission admitted petition filed by employees for regular hearing and granted interim relief‑‑‑Validity‑‑‑Employees of National Savings Organization were civil servants‑‑‑Industrial Relations Commission had no jurisdiction on account of bar of Art. 212 of the Constitution‑‑‑Order of Commission was declared to be without lawful authority.

Faqir Muhammad v. The Director of National Savings, Multan Region, Multan PLD 1992 SC 127; Sindh Employees' Social Security Institution v. Dr. Mumtaz Ali Taj and another PLD 1975 SC 450 and Writ Petition No.6135 of 2000 and Writ Petition No.8517 of 2000 rel.

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

‑‑‑‑Ss.3(7) & 4‑‑‑Appeal, right of‑‑‑Scope‑‑‑Provisions of S.4(1) of the Act only limited to appeals in cases of imposition of penalties on civil servant‑‑Section 4(2) of the Act cannot be read as an exception to S.4(1) of the Act‑‑According to S.4(1), an order in respect of any terms and conditions of service of civil servant is appealable and only exceptions are provided in provisos (a), (b) & (c) to S.4(1) of the Act‑‑‑Expression "in any other case" in S.4(2) of the Act refers to penalty other than a major penalty and not all cases relating to terms and conditions of civil, servant‑‑‑Intention of law is not that in respect of other terms and, conditions, only Tribunal constituted under S.3(7) of the Act would be competent to hear appeals.

Government of Balochistan, through Secretary; Communication and Works Department, Quetta and 2 others v. Shabbir Ahmad and another 1990 SCMR 1233 and C. As. Nos. 148, 160, 161 of 1990 ref.

‑‑‑‑Ss.22‑A(8)(g)(9) & 15(1)(c)(d)‑‑‑Civil Procedure Code (V of 1908), OXXXIX, Rr. 1 & 2‑‑‑Specific Relief Act (I of 1877), S.56(d)‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Petition against transfer order and reversion order‑‑‑Interim injunction, grant of Industrial Relations Commission granted interim relief directing that employees be paid their pay and be allowed to perform their duties‑‑Validity‑‑‑Orders impel before Commission had already been implemented‑‑‑Grant of interim relief after four years of passing of order of transfer and reversion of respondents was arbitrary exercise of discretion as same was against principles governing grant of interim injunction‑‑Impugned order, in fact, amounted to allowing main relief to respondents, which could not have been done as same would. amount to interference in working of Government Department‑‑‑High Court accepted Constitutional petition and declared impugned order, to be without lawful authority.

Islamic Republic of Pakistan through Secretary, Establishment Division, Islambad and others v. Muhammad Zaman Khan and others 1997 SCMR 1508; Executive Engineer, Central Civil Division, Pak. P.W.D., Quetta v. Abdul Aziz and others PLD 1996 SC 610 and Syed Imran Raza Zaidi, Superintending Engineer, Public Health Engineering Circle‑I, Gujranwala v. Government of the Punjab through Services, General Administration and Information Department, Punjab Secretariat, Lahore and 2 others 1996 SCMR 645 ref.

Sher Zaman Khan, Deputy Attorney‑General for Petitioners.

Ch. Ghulam Qadir for Respondents Nos.2 to 7.

Date of hearing: 22nd November, 2002.

PLC 2003 LAHORE HIGH COURT LAHORE 73 #

2003 P L C 73

[Lahore High Court]

Before Ijaz Ahmad Chaudhry, J

JABROO MASIH

Versus

TEHSIL NAZIM, TOWN COMMITTEE CHUNIAN, DISTRICT KASUR and 3 others

Writ Petition No. 14282 of 2002, decided on 28th August, 2002.

(a) Administration of justice‑‑‑

-‑‑Principles of‑‑‑Technicalities should not stand in way of disposal of cases‑‑‑Proper place of procedure in any system of administration of justice was to help and not to thwart the grant to people of their rights‑‑‑All technicalities had to be avoided unless it be essential to comply with them on grounds of public policy‑‑‑Any system which gives effect to the form and not to substance, defeats substantive rights and is defective to that extent‑‑‑Ideal must always be a system that would give every person what was his.

PLD 1993 Lah. 7; PLD 1994 Lah. 3; PLD 1994 Lah. 55; Imtiaz; Ahmad v. Ghulam Ali and others PLD 1963 SC 382; PLD 1975 SC 678; PLD 1990 Lah. 121 and PLD 1990 Lah. 182 ref.

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

‑‑‑‑S.38(3‑a)‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition against revision petition‑‑‑Maintainability of‑‑‑No Constitutional petition was maintainable against revision petition.

Rashid Ahmad Khan and 10 others v. Pakistan Railways through its Chairman, Railway Headquarters Office, Islamabad 1998 PLC 323; Executive Engineer, Public Health Division, Okara v. Taj Muhammad and 23 others 1989 PLC 919; 1991 SCMR 970 and 1991 SCMR 2284 ref.

Ch. Muhammad Bashir for Petitioner.

Muhammad Shan Gul for A.‑G. for Respondents.

PLC 2003 LAHORE HIGH COURT LAHORE 80 #

2003 P L C 80

[Lahore High Court]

Before Jawwad S. Khawaja, J

NESTLE MILK PACK (PVT.) LTD. through Secretary

Versus

VICE‑COMMISSIONER, PESSI, HEAD OFFICE, LAHORE and 3 others

First Appeal from Order No. 16 of 2002, heard on 10th May, 2002.

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

‑‑‑‑Ss. 1(3) & 20(8)‑‑‑Contributions, recovery of‑‑‑Construction contractor‑‑Where an employer whose premises have been notified under S.1(3) of Provincial Employees' Social Ordinance, 1965, engages a construction Contractor to undertake construction work at his premises, such employer is obliged only in a secondary capacity as a guarantor to ensure that social security contribution is paid by the construction contractor in respect of are workers employed by him while undertaking the construction work‑‑‑If employer in such cases is merely a guarantor, the principal obligation for making payment of the social security contribution would fall on the contractor and not on the employer.

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

‑‑‑‑S. 20(8)‑‑‑Construction contractor, liability of ‑‑‑Scope‑‑‑Construction contractors find specific mention in S.20(8) of Provincial Employees' Social Security Ordinance; 1965 and under the provision such contractors are treated as a category apart and distinct from other types of contractors.

‑‑‑‑Ss. 1(3), 20(8) & 64‑‑‑Appeal‑‑‑Social Security Contribution‑‑Construction contractor‑‑‑Liability of employer‑‑‑Demand without notice‑‑Appellant was a notified company and engaged construction contractor for certain construction in its premises‑‑‑Authorities demanded contribution on behalf of the employees engaged by the construction contractor in the premises‑‑‑Plea raised by the appellant was that it was at the most a guarantor but the principal obligation for making Social Security Contribution in respect of the construction work fell on the construction Contractor and not on the appellant‑‑‑Validity‑‑Fact that the construction Contractor had not been notified under S.1(3) of Provincial Employees' Social Security Ordinance, 1965, had no bearing on the present case‑‑Appellant's premises having been so notified, the same was, sufficient to bring within the ambit of Provincial Employees' Social Security Ordinance, 1965, any contractor who undertook construction work at such premises‑‑Social Security Court was not legally justified in holding that the appellant company was the principal obligate in respect of Social Security Dues payable in respect of persons employed by the construction contractor for construction work at the premises of the appellant‑‑‑High Court modified the order passed by the Social Security Court and held the appellant‑company a guarantor in respect of the short‑paid Social Security Contribution and not a principal debtor‑‑‑Where no notice was issued to the construction contractor by the Authorities demanding any aunt from it as contribution under the provisions of Provincial Employees' Social Ordinance, 1965, High Court directed the Authorities that no aunt would be recovered from the construction contractor without affording to it an opportunity of being heard‑‑‑Appeal was allowed accordingly.

Sindh Employees' Social Security Institution v. Consolidated Sugar Mills Limited 1989 SCMR 888 and Messrs Kwong Fah Chinese Restaurant Punjab Employees' Social Security Institution 1990 MLD 235 ref.

Shahid Shabbir for Appellant.

Ruby Hayat Awan for Respondents Nos. 1 to 3.

Ali Masood Haider for Respondent No.4.

Date of hearing: 10th May, 2002.

PLC 2003 LAHORE HIGH COURT LAHORE 106 #

2003 P L C 106

[Lahore High Court]

Before Ijaz Ahmad Chaudhry, J

NATIONAL ENGINEERING SERVICES PAK and others

Versus

N.I.R.C. and others

Constitutional Petition No. 19350 of 1996, decided on 16th January, 2002.

Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑S. 22‑A(8)‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Jurisdiction of National Industrial Relations Commission‑‑Petitioner had contended that National Industrial Relations Commission had no jurisdiction to entertain grievance petition filed by respondents for the reason that if respondents were workers, they could have applied before Labour Court and if they were civil servants they could have gone to the Service Tribunal‑‑‑Respondents had no objection if order passed by National Industrial ‑Relations Commission was set aside and direction was issued to Member, National Industrial Relations Commission to dispose of the main grievance petition of respondents within shortest possible time‑‑‑High Court accepting petition, directed accordingly.

Jawad Hassan for Petitioners.

Qamar Zaman Qureshi for Respondents Nos.2 and 3.

PLC 2003 LAHORE HIGH COURT LAHORE 124 #

2003 P L C 124

[Lahore High Court]

Before Abdul Shakoor Paracha, J

Messrs PAKISTAN SERVICES LIMITED through Managing Director and others

Versus

THE SECRETARY, MINISTRY OF LABOUR, MANPOWER AND OVERSEAS PAKISTANIS and 2 others

Writ Petition No.390 of 1993; decided on 18th December, 2002.

(a) Words and phrases‑‑‑

‑‑‑‑'Industry', 'industrial', and 'undertaking'‑‑‑Meanings.

(b) Companies Profits (Workers' Participation) Act (XII of 1968)‑‑‑-

‑‑‑‑Ss.2(e) & 4‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑", Industrial undertaking", determination of‑‑‑Liability of Company to contribute fund‑‑‑Petitioner Company was engaged in business of hotel accommodating customers for stay for temporary purposes and was not indulging in any process,, undertaking or contributing to substantial change both in appearance of commodity and enhancement of its value‑‑‑Material for cooking was brought to the hotel and was cooked‑‑‑Like items of bakery, material was used in food‑cooking and baking, which was mixed with other items‑‑‑In order to ensure proper quality of food and baking items fit for human consumption, hotel management, subject to purchase of different raw material/items had to go through various process and for that purpose, hotel management had installed its own godown, stores, a number of machines which were operated by electricity and mechanical power‑‑‑By that process food was cooked and bakery items were prepared; substantial amount of labour and experience was involved in those operations, which were undertaken with a view to enhance the value of commodities and for making them acceptable to customers and their price was enhanced‑‑‑By subjecting goods/raw material to such process, its value was increased‑‑‑Renting out rooms of hotel neither required any material nor value of material was increased by any process or use of machinery‑‑‑Petitioner, in circumstances, was indulging in industrial undertaking as far as preparation of food and baking was concerned‑‑‑Petitioner‑Company, to that extent, was liable to contribute to fund established under S.4 of Companies Profits (Workers' Participation) Act, 1968.

Fakhar‑ud‑Din G. Ebrahim for Petitioner.

Ch. Sultan Mansoor, Dy.A‑G. for Respondents.

Date of hearing: 8th November, 2002.

PLC 2003 LAHORE HIGH COURT LAHORE 167 #

2003 P L C 167

[Lahore High Court]

Before Syed Jamshed Ali, J

Mst. PARWEEN AKHTAR

Versus

THE MANAGING DIRECTOR, PUNJAB ROAD TRANSPORT CORPORATION, LAHORE and others

Writ Petitions Nos. 12808 and 12288 to 12290 of 2001, heard on 24th April, 2002.

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

‑‑‑‑S.O.10‑B‑‑‑Workmen's Compensation Act (VIII of 1923), Ss.2(m) & 3‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Amount for Group Insurance‑‑‑Payment of‑‑‑Amount of Rs. one lac was payable to legal heirs of each deceased employee for Group Insurance on account of their death but only Rs.30,000 were paid to them while balance amount was not paid to them on which they filed Constitutional petitions‑‑‑Employers admitted claim of petitioners/legal heirs with regard to balance amount, but refused to pay the same contending firstly that petitions filed by petition suffered from laches as same were filed after six years of receiving Rs.30,000 and secondly that Constitutional petitions were not maintainable because service of deceased employees was not governed by any statutory rules, and relationship of deceased employees with employers was that of master and servant‑‑‑In as many as 24 cases full amount of Rupees one lac had been paid to legal heirs of deceased employees‑‑‑Liability to pay full amount having not been denied by employers, Constitutional petitions could not be dismissed on ground of laches because dictates .of justice demanded otherwise‑‑‑Employers could not be permitted to take refuge under a technical plea‑‑‑Even otherwise amount which was due to petitioners would continue to remain due so as to provide a recurring cause of action to them‑‑Claim of petitioners was based on provisions of Workmen's Compensation Act, 1923 and S.O.10‑B of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968‑‑‑Right being guaranteed to petitioners under law, could not be defeated on plea based on rule of master and servant‑‑‑High Court allowing Constitutional petitions directed employer to release amount due to petitioners within specified period.

M.H. Mirza v. Federation of Pakistan through Secretary, Cabinet Division, Government of Pakistan, Islamabad and 2 others 1994 SCMR 1024 and Pakistan Post Office v. Settlement Commissioner and others 1987 SCMR 1119 ref.

Ghulam Mustafa Nara for Petitioners.

Zahid Ayyub Sheikh for Respondents Nos. 1 and 2.

Malik Akhtar Hussain Awan, A.A. G. for Respondent No. 3.

Date of hearing: 24th April, 2002.

PLC 2003 LAHORE HIGH COURT LAHORE 184 #

2003 P L C 184

[Lahore High Court]

Before Ch. Ijaz Ahmad, J

Mst NASIM AKHTAR

Versus

MUNICIPAL COMMITTEE, DEPALPUR, through Nazim, Tehsil Municipal

Administration, Depalpur, District Okara and 2 others

Writ Petition No. 18945 of 2002, heard on 4th March, 2003.

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

----S.15---Application for payment of wages---Limitation---Delay, condonation of---Applicant being widow of deceased employee filed application for' payment of amount of salary which her husband could not receive during his lifetime---Application which under S.15(2), proviso 1 of the Act was to be filed within three years, was filed beyond said period--Applicant did not tile any application for condonation of delay alongwith application for payment of amount of salary---Delay, in circumstances, could not be condoned.

Ata Ullah Malik v. The Custodian, Evacuee Property West Pakistan and others PLD 1964 236 ref.

(b) Question of law---

---- Raising of---Question of law could be raised at any stage of proceedings.

Abdullah Khan and others v. Nisar Muhammad Khan and others PLD 1965 SC 690 ref.

----S.15---Punjab Local Government Ordinance (VI of 1979), S.44--Application for payment of wages---Jurisdiction ' of Workman Commissioner--Deceased husband of applicant who was appointed as Building Inspector in the Municipal Committee, being a civil servant by virtue of S.44 of Punjab Local Government Ordinance, 1979, Workman Commissioner had no jurisdiction to entertain application for payment of wages filed under S.15 of Payment of Wages Act, 1936.

Qazi Muhammad Saqib Khan v. Ghulam Abbas 2003 MLD 131; Jafakash Mazdoor Union Town Committee, Sharqpur v. The Chairman, Town Committee, Sharqpur 2001 PLC 38; Syed Niaz Hussain Shah Bukhari, Technician v. Oil and Gas Development Corporation Limited. 2003 PLC 29; Malik Rashid Ahmad v. Member, Board of Revenue 1987 SCMR 721; Syed Imran Raza v. Administrator, Zila Council, Gujranwala and others 1997 SCMR 1460 and WAPDA and another v. Muhammad Arshad Qureshi 1986 SCMR 18 ref.

(d) Constitution of Pakistan (1973)---

----Art.199---Constitutional jurisdiction of High Court ---Scope-- Constitutional petition was not maintainable where substantial justice had been done between the parties.

Malik Ghulam Rasool for Petitioner.

Mian Muhammad Hanif for Respondents.

Date of hearing: 4th March, 2003.

PLC 2003 LAHORE HIGH COURT LAHORE 196 #

2003 P L C 196

[Lahore High Court]

Before Chaudhry Ijaz Ahmad, J

MUHAMMAD RASHEED

Versus

PUNJAB LABOUR APPELLATE TRIBUNAL through Chairman and 6 others

Writ Petition No. 12964 of 1998, heard on 20th June, 2002.

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

----Ss.25-A & 38---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.15(3)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Dismissal from service on ground of misconduct---Grievance petition---Limitation---Employee filed grievance notice and grievance petition after more than eleven years of his dismissal from service---Labour Court accepted grievance petition and decided question of limitation without applying its independent mind and without proper appreciation of record---Labour Appellate Tribunal set aside judgment of Labour Court and dismissed grievance petition being barred by time---Labour Appellate Tribunal after appreciation of evidence found that employee had altered dates in a criminal manner in his departmental appeal--Employee, in circumstances, had not approached the High Court with clean hands---He who seeks equity, must come to Court with clean hands---High Court in circumstances declined to exercise discretion in favour of the employee---Constitutional petition filed by employee against judgment of Labour Appellate Tribunal, having no merit, was dismissed, in circumstances.

F.A. Khan's case PLD 1964 SC 520; Mst. Fauzia Parveen v. Mst. Sahib Khatoon and others 1988 SCMR 552; Naseem Ahmad Ch. v. Chairman, Punjab Labour. Appellate Tribunal. 1995 SCMR 1655; Government of Sindh through A.-G. v. Masood Hussain and others 2002 SCMR 155; Wallayat Ali. v. Punjab Labour Appellate Tribunal 20031 PLC 350; Hafeez Shah and others. v. United Bank Ltd and others 2001 PLC 489; Mst. Fahmida Kausar v. Mst. Farhat and others 1969 SCMR 336; Abdul Karim. v. Muhammad Ibrahim 1976 SCMR 79; Province of Punjab v. Imran & Company 1989 MLD 4087; Agriculture Workers' Union v. The Registrar, Trade Unions, Quetta and others 1997 PLC 57; S. Rifat Ali v. Messrs Me Donald Layton & Co. 1992 PLC 981; Muhammad Saleem Malik v. Agriculture Engineer 1989 PLC 605; Akhtar Ali. v. The University of the Punjab 1979 SCMR 549; Nawab Syed Raunaq Ali v. Chief Settlement Commissioner PLD 1973 SC 236; Rana Muhammad Arshad v. Additional Commissioner and others 1998 SCMR 1462 and Jalal-ud-Din's case PLD 1992 SC 207 ref.

(b) Administration of justice---

----Equity-- -Each and every case was to be decided in its own peculiar circumstances---Duty of applicant---Applicant seeking equity must come to the Court with clean hands.

----Art.199---Constitutional jurisdiction of High Court---Scope---High Court has no jurisdiction to substitute its own findings in place of findings of Tribunals below while exercising powers under Constitutional jurisdiction.

Muhammad Musaddiq's case PLD 1973 Lah. 600 ref.

Ch. Shabbir Ahmad for Appellant.

Muhammad Hanif Khatana, Addl. A.-G. for Respondents.

Date of hearing: 20th June, 2002.

PLC 2003 LAHORE HIGH COURT LAHORE 203 #

2003 P L C 203

[Lahore High Court]

Before Maulvi Anwarul Haq, J

GENERAL MANAGER, FTR (PTCL), FAISALABAD and another

Versus

CHAIRMAN, PUNJAB LABOUR APPELLATE TRIBUNAL and another

Writ Petition No. 19276 of 2000, heard on 19th April, 2002.

Industrial Relations Ordinance (XXIII of 1969)---

----Ss.25-A-& 38---Pakistan Telecommunication Corporation Act (XVIII of 1991), Ss.1 & 9---Constitution of Pakistan (1973), Arts. 2-A & 199--Constitutional petition---Termination of service--Grievance petition, maintainability of---Grievance petition filed by employee against termination of his service was resisted by employer on the plea that being owned by Federal Government, by virtue of S.2-A of Service Tribunals Act, 1973 employee was civil servant and Labour Court had no jurisdiction in the matter ---Grievance petition was dismissed by Labour Court, but Labour Appellate Tribunal set aside judgment of Labour Court holding that employer-Corporation having been privatized, case did not fall within ambit of S.2-A of Service Tribunals Act, 1973---Employer-Corporation was created in 1991 whereas employees was appointed in 1995---Employees who were appointed by the Corporation after date of its inception, would be deemed to be employees of Corporation and their services would be governed in accordance with terms and conditions of their appointment and would not enjoy status of civil servants---Employees who had been employed by the Corporation itself after its inception, were not civil servants and could not avail remedy before Service Tribunal---Labour Appellate Tribunal, in circumstances, had rightly set aside judgment of Labour Court holding that employee appointed 'against permanent post could not be summarily dismissed without being afforded opportunity of hearing.

Sui Northern Gas Company Ltd. v. Engineer Naraindas and others PLD 2001 SC 555; Zahir Ullah and 13 others v. Chairman, WAPDA, Lahore and others 2000 SCMR 826; Syed Aftab Ahmed and others v. K.E.S.C. and others 1999 SCMR 197; G.M., National Bank of Pakistan and others v. Abdul Aziz and others PLD 2002 SC. 346; Divisional Engineer. Phones, Phones Division, Sukkur and another v. Muhammad Shahid and others 1999 SCMR 1526 and General Manager, Optical Fibre System Telecom Company Ltd., PTC Headquarters, Islamabad and 2 others v. Abdul Rasheed Khan, Member, N.I.R.C., Islamabad and another 2000 PLC (C.S.) 180 ref.

Muhammad Alain Chaudhry and Gorsi Muhammad Din Chaudhry for Petitioner.

Munawar Ahmed Javed for Respondent No.2

Date of hearing: 19th April, 2002.

PLC 2003 LAHORE HIGH COURT LAHORE 217 #

2003 P L C 217

[Lahore High Court]

Before Ijaz Ahmad Chaudhry, J

MUHAMMAD SHAFI

Versus

PUNJAB APPELLATE TRIBUNAL and 2 others

Writ Petition No.3118 of 1996, heard on 30th April, 2002.

Industrial Relations Ordinance (XXIH of 1969)---

----Ss.2(xxviii), 25-A & 38---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(i)--Workman', status of-- Determination---Employee, serving as Junior Officer, in earlier two rounds of litigation was found as workman by Labour Court, Labour Appellate Tribunal and High Court---Labour Court, in the third .round of litigation in light of earlier decisions which had attained finality, found the employee as workman, but Labour Appellate Tribunal on the ground that employee was member of Junior Officers Association, found that employee was not workman---Employee even at the time of filing earlier grievance petition in first round of litigation was Junior Officer, but despite that up to level of Labour Appellate Tribunal it was found that job of employee was that of workman and not of officer of supervisory nature--Labour Appellate Tribunal could not set aside earlier decisions of Labour Tribunal and that of High Court which had attained finality especially when status and postings of employee had not at all changed during that period---Even otherwise, employers had themselves treated the employee as, workman by their conduct as they had issued show-cause notice to him cinder Industrial Relations Ordinance; 1969---Where employers had themselves treated the employee as workman by proceeding against him under Labour Laws, it could not be said that employee was not a workman---High Court set aside judgment of Labour Appellate Tribunal holding that employee was workman and remanded case to be decided afresh on merits.

PLD 1992 PLC 1116 ref.

Hafiz Muhammad Saeed for Petitioner.

Muhammad Asadullah Siddiqui for Respondent No. 3.

Date of hearing: 30th April, 2002.

PLC 2003 LAHORE HIGH COURT LAHORE 222 #

2003 P L C 222

[Lahore High Court]

Before Maulvi Anwarul Haq, J

GENERAL MANAGER, BENZ INDUSTRIES LTD., MULTAN ROAD, LAHORE and 2 others

Versus

AKBAR ALI and 2 others

Writ Petitions Nos.23333, 26493, 26491, 26492, 23332, 28451 and 28452 of 1997, 20998, 17706 of 1998, 22319, 14286, 11078, 12814, 12813 18857 of 1999 and 9 of 2000, heard on 6th August, 2002.

Industrial Relations Ordinance (XXIII of 1969)---

----Ss.25-A & 38(8)---Constitution of Pakistan (1973), Art.199--Constitutional petition ---Grievance petition---Appeal against judgment of Labour Court---Suspension of orders of Labour Court---Grievance petitions filed by employees having been allowed by Labour Court, employers filed appeals against the same which were admitted and orders passed by Labour Court were suspended in terms of S.38(8) of Industrial Relations Ordinance, 1969---Employers had contended that as the date of hearing of appeal had been fixed beyond period of twenty days, interim/suspension order stood vacated upon expiry of period of twenty days prescribed under S.38(8) of Industrial Relations Ordinance, 1969 and no efficacious and adequate remedy was available to them and thus they had filed Constitutional petition--Validity---Provisions of S.38(8) of Industrial Relations Ordinance, 1969 had been made with a purpose and for benefit of workers---Intent and purpose of Constitutional petitions was to achieve indirectly what could not be done directly, which was not permissible under law---Constitutional petitions were disposed of With direction to Labour Appellate Tribunal to decide cases as early as possible.

Zahur Textile Mills Ltd. v. Federation of Pakistan and others PLD 1999 SC 880 and Federation of Pakistan through Secretary, Ministry of Finance, Government of Pakistan, Islamabad v. United Sugar Mills Ltd. PLD 1977 SC 397 ref.

Ch. Abdur Rab for Petitioners.

Nemo for Respondents.

Date of hearing: 6th August, 2002.

PLC 2003 LAHORE HIGH COURT LAHORE 225 #

2003 P L C 225

[Lahore High Court]

Before Sayed Zahid Hussain, J

SECRETARY, LOCAL GOVERNMENT AND RURAL DEVELOPMENT

DEPARTMENT, GOVERNMENT OF PUNJAB, LAHOREICHAIRMAN, PUNJAB LOCAL GOVERNMENT BOARD, LAHORE

Versus

NATIONAL INDUSTRIAL RELATIONS COMMISSION, LAHORE BENCH, LAHORE through Bahadar Ali, Member, N.I.R.C. and another

Writ Petition No. 14096 of 1999, decided on 25th June, 2002.

Industrial Relations Ordinance (XXIII of 1969---

----S.22-A---Constitution of Pakistan (1973), Arts.199 & 212(2)--Constitutional petition--Order of repatriation---Jurisdiction of National Industrial Relations Commission---Respondent who was Sub-Engineer in B.P.16, assailed order of his repatriation through a petition under S.22-A of Industrial Relations Ordinance, 1969 by filing petition before National Industrial Relations Commission and order of repatriation was suspended by National Industrial Relations Commission---Subsequently when respondent was relieved by employer for development which took place later on, contempt petition filed by respondent against relieving order was also accepted by National Industrial Relations Commission which suspended the operation of relieving order---Validity---Respondent being a civil servant could not have resorted to any remedy before National Industrial Relations Commission---Assumption of jurisdiction by National Industrial Relations Commission in a matter to which jurisdiction of Service Tribunal extended, stood ousted in terms of Art. 212(2) of Constitution of Pakistan (1973)--Exercise of jurisdiction by National Industrial Relations Commission, in circumstances, was declared illegal and unwarranted by High Court.

Mobeen-ud-Din Qazi for Petitioner. .

Qadir Zaman Shah Taimoori for Respondent.

PLC 2003 LAHORE HIGH COURT LAHORE 226 #

2003 P L C 226

[Lahore High Court]

Before Sayed Zahid Hussain, J

MUHAMMAD SHAFIQUE

Versus

Messrs KNOLL PHARMACEUTICALS LIMITED through Managing Director and 4 others

Writ Petition No.6873 of 2002, heard on 23rd October, 2002.

(a) 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 --- Employee, whether a workman---Determination---Mere designation of an employee may not be the determining factor as to his status---Nature of job and duty is to be kept in view.

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

----S.25-A Constitution of Pakistan (1973), Art. 199---Constiteitional petition---Petitioner was medical representative of pharmaceutical company and was terminated from service---Petitioner being aggrieved of his termination filed grievance petition under S.25-A of Industrial Relations Ordinance, 1969---Labour Court holding the petitioner as "workman", allowed the petition and reinstated him in service with back benefits---Labour Appellate Tribunal reversed tire findings of the Labour Court qua status of the petitioner and allowed the, appeal filed by the employer- --Plea raised by the petitioner was that he used to carry bag containing medicines and used to visit clinics of doctors for sales promotion of medicines, therefore, he was covered under the definition of "workman"---Validity---Mere carrying of few medicines in a bag to introduce it for the promotion of the same to doctors' clinics or hospitals would not change the position and status of the petitioner---Petitioner was a category apart one of the officers in the company and not salesman by any standard---Jurisdiction of Labour Court under S.25-A of Industrial Relations Ordinance, 1969, could not be invoked by the petitioner and the petition was rightly dismissed by the Labour Appellate Tribunal.

Central Manager, Hotel International, Lahore and another v. Bashir A. Malik and others PLD 1986 SC 103; Warner Lambart (Pakistan) Ltd. v. Sindh Labour Court No.3, Karachi and another 1979 PLC 370; Allied Bank of Pakistan Ltd. v. Muhammad Hamayyun Khan, and 2 others 1983 PLC 498; Brooke Bond Pakistan Ltd. v. Conciliator appointed by Government of Sindh and others PLD 1977 SC 237 and National Bank of Pakistan v. Punjab Labour Court No.5, Faisalabad and others 1993 SCMR 672 distinguished.

Pakistan Tabacco Company Ltd. v. Pakistan Tobacco Company Employees' Union, Dacca and others PLD 1961 SC 403; Syed Zahid Hussain v. Hoechst (Pakistan) Ltd., Karachi 1980 PLC 380; Messrs Opal Laboratories Ltd., v. Muhammad Moinul Islam 1983 PLC 509: Syed Matloob Hassan v. Brooke Bond Pakistan Ltd., Lahore. 1992 SCMR 227; Rathan Best Foods Limited through Human Resources Manager and Sales Manager and another v. Nasir Jamal Qureshi 2001 PLC 396; Taj Bakery Jackson Bazar v. Muhammad Aslam Khan. and another 2002 PLC 38; Abdul Baqi v. Messrs Muhammad Farooq Ahmad Co. Ltd. 1988 PLC 88: Rehmat Ali v. The Security Papers Ltd. and another PLD 1982 Kar. 913 and Rehmat Ali v. The Security Papers Ltd. and another PLD 1982 Kar. 913 ref.

----S.2(xviii)---West Pakistan industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(i)---'Workman'---Medical representative of pharmaceutical company-Scope---Such medical representative of a company has no manual or clerical work to perform and such a salesman does not fall within the definition "workman".

Syed Zahid Hussain v. Hoechst (Pakistan) Ltd., Karachi 1980 PLC 380; Messrs Opal Laboratories Ltd. v. Muhammad Moinul Islam 1983 PLC 509; Abdul Baqi v. Messrs Muhammad Farooq Ahmad Cc. Ltd. 1988 PLC 88; Rehmat Ali v. The Security Papers Ltd. and another PLD 1982 Kar. 913 ref.

Ch. Ata Ullah for Petitioner.

Syed Qamar-ud-Din Hassan for Respondents Nos. 1 to 4.

Nemo for Respondent No.5.

Date of hearing: 23rd October, 2002.

PLC 2003 LAHORE HIGH COURT LAHORE 231 #

2003 P L C 231

[Lahore High Court]

Before Sayed Zahid Hussain, J

TEHSIL MUNICIPAL ADMINISTRATION through Tehsil Nazim, Kharian, District Gujrat

Versus

AUTHORITY UNDER PAYMENT OF WAGES ACT AND COMMISSIONER

WORKSMEN'S COMPENSATION, GUJRAT and 53 others

Writ Petition No.4391 of 2002, decided on 21st October, 2002.

Punjab Employees Special Allowance (Payment) Act (II of 1989)‑‑‑

‑‑‑‑S.7‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Claim of private person, determination of‑‑‑Authority under Payment of Wages Act, 1936‑‑‑Jurisdiction‑‑‑Judgment passed by Supreme Court in case titled Town Committee, Gakhar Mandi v. Authority under the Payment of Wages Act, Gujranwala and 57 others reported as PLD 2002 SC 452‑‑‑Applicability‑‑‑Grievance of the petitioner was that the Authority had passed the order without deciding the issue of jurisdiction ‑‑‑Validity‑‑Question of jurisdiction was to be decided by the Authority on the basis of material before it and in the light of evidence produced before the Authority ‑‑‑Authority did not make determination as to its jurisdiction in the matter, by giving any reason and simply made a jumping conclusion that the application of the private respondent was maintainable before him‑‑‑Where the Authority was obliged to consider the evidence and the respective contentions of the parties qua its jurisdiction and the same was not done by the Authority, order passed by it was not sustainable in view of judgment passed by the Supreme Court‑‑‑High Court set aside the order passed by the Authority and the matter was remanded to the Authority for decision afresh in light of evidence on record and the law applicable‑‑‑Petition was allowed accordingly.

Town Committee, Gakhar Mandi v. Authority under the Payment of Wages Act, Gujranwala arid 57 others PLD 2002 SC 452 ref.

Muhammad Zaman Qureshi for Petitioner.

Ch. Munawar Javed for Respondents.

PLC 2003 LAHORE HIGH COURT LAHORE 275 #

2003 P L C 275

[Lahore High Court]

Before Muhammad Sayeed Akhtar, J

SHAHEEN LABOUR UNION, AL-GHAZI TRACTORS LTD., D.G.KHAN through General Secretary and another

Versus

PUNJAB LABOUR APPELLATE TRIBUNAL and 4 others

Writ Petition No.24562 of 1999, heard on 13th January, 2003.

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

----S. 38(3a)---Suo motu revisional jurisdiction of Labour Appellate Tribunal---Labour Appellate Tribunal has suo motu jurisdiction under S. 38(3a) of Industrial Relations Ordinance, 1969 to call for the record of any case or proceedings.

1998 PLC (Lab.) 500; 1980 PLC (Lab.) 446; 1999 PLC (Lab.) 312; 2000 PLC (Lab.) 1; 2001 PLC (Lab.) 441 and Messrs Norwich Union Fire Insurance Society Limited v. Muhammad Javed Iqbal and another 1986 SCMR 1071 ref.

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

----Ss. 7(2) & 8(3)---Application for registration of Trade Union---On filing application for registration of trade union, Deputy Director (Labour) Welfare conducted inquiry and found that applicant union did not have the requisite members i.e. 1/5th of the .total number of workmen employed in the establishment/industry---Registrar, Trade Unions on the basis of said inquiry report dismissed application filed for registration of trade union ---Validity--A Trade Union of workmen would not be entitled to registration under Industrial Relations Ordinance, 1969 unless all its members were workmen actually engaged or employed in the industry and that where there were two or more registered trade unions in the establishment, group of establishments or industry with which the trade union was connected, unless it had, as its members not less than 1/5th of the total number of workmen employed in such establishment/industry---Necessary conditions having not been satisfied application for registration of trade union, was rightly dismissed by Registrar, Trade Unions, in circumstances.

Asmat Kamal Khan for Petitioner.

Mushtaq Ahmad Ch. for Respondents.

Ch. Ishtiaq Ahmad (in C.M. No.4 of 2002).

Date of hearing: 13th January, 2003.

PLC 2003 LAHORE HIGH COURT LAHORE 291 #

2003 P L C 291

[Lahore High Court]

Before Muhammad Akhtar Shabbir, J

MUHAMMAD IBRAHIM and another

Versus

PAKISTAN MINERAL DEVELOPMENT CORPORATION through General Manager and 2 others

Writ Petition No.2383 of 2001, decided on 25th March, 2003.

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

----Ss.15, 16, 20-A(8)(g) & 22-A(9)(10)---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Unfair labour practice---National Industrial Relations Commission has exclusive jurisdiction to deal with the cases of unfair labour practice specified in Ss. 15 & 16 of the Industrial Relations Ordinance, 1969, on the part of the employers, workmen. Trade union or either of them or person acting on behalf of them, whether committed individually or collectively.

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

----S.22-A(10)---National Industrial Relations Commission is under legal obligation to refer cases, not falling within its jurisdiction to the Labour Court concerned for adjudication upon the matter.

Manager (Admn.), House Building Finance Corporation, Zonal Office; Multan v. Punjab Labour Court No. 8, Bahawalpur and others 1995 PLC 44 fol.

----Concept---Jurisdiction means power of a Court to ear and determine a cause to adjudicate or exercise any judicial power in relation to it and omission to raise objection, acquiescence, or even consent cannot invest a Court with jurisdiction, which it has not---Question of jurisdiction to be decided before proceeding further with the case and where the Court having no jurisdiction had proceeded with the matter, entire proceedings would be ill and without jurisdiction.

Ramdas v. Mst. Bern:adat PLD 1998 Kar. 42 fol.

(d) Jurisdiction---

----Court had first to determine its jurisdiction even if any party does not raise any objection in this behalf---No person/litigant can be prejudiced by the act of the Court.

Riaz Ahmad. v. Additional District Judge, Sargodha 1999 YLR 336; Sherin and 4 others v. Fazal Muhammad and 4 others 1995 SCMR 584 and Amatullah Begum v. Munawar Akhtar, Advocate 1999 SCMR 1700 fol.

Ch. Sadiq M. Warraich for Petitioners.

Mushtaq Hussain Bhatti for Respondents.

Date of hearing: 7th March, 2003.

PLC 2003 LAHORE HIGH COURT LAHORE 320 #

2003 P L C 320

[Lahore High Court]

Before Muhammad Sayeed Akhtar, J

L.D.A. through Director General and another

Versus

N.I.R.C. through Chairman and 49 others

Writ Petition No. 152 of 2003, decided on 2nd April, 2003.

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

----Ss.22-A(8)(g), 22-B(3), 15 & 25-A---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Concealment of facts---Respondents filed petitions before National Industrial Relations Commission, under Ss.22-A(8)(g) & 22-B(3) of Industrial Relations Ordinance, 1969, alleging unfair labour practice being victimized and discriminated against being members of rival union and prayed for regularization of their services on the basis of formula approved by the then Chairman/Chief Minister---Single Bench of the Commission, accepted the petitions declaring the respondents to be regular and confirmed employees---Appeals were preferred before the Full Bench of the Commission, by employer which were disposed of with certain modifications in the order of Single Bench, such order was neither challenged nor implemented by the employers---Employees filed contempt petition before the Commission---Employers assailed the orders of the Single Bench and Full Bench of the Commission, through Constitutional petitions--Fact that the High Court had already passed orders on Constitutional petitions earlier, directing to implement the impugned order passed by the Full Bench of the Commission, was not disclosed---Such conduct of the employers was a concealment of fact---Fresh Constitutional petitions, in circumstances, would not be maintainable.

(b) Constitution of Pakistan (1973)---

----Art.199---Constitutional petition ---Laches, principle of---Constitutional petitions filed after more than eight months of the passing of the impugned order badly suffered from laches.

Iftikhar Ahmad Mian for Petitioners

Sh. Abdul Hameed and Ch. M. Khalid Farooq for Respondents.

PLC 2003 LAHORE HIGH COURT LAHORE 341 #

2003 P L C 341

[Lahore High Court]

Before Mrs. Fakhar-un-Nisa Khokhar, J

RICE EXPORT CORPORATION OF PAKISTAN through Resident Director, Lahore

Versus

KHALID DASTGIR and 2 others

Writ Petition No. 10691 of 1998, decided on 16th May, 2003.

Industrial dispute---

---- Employee was working as Accountant in. a privatised project ---Golden Handshake Scheme--Record showed that employee was legally entitled for his outstanding dues and back-benefits according to his officer scale in view of the agreement entered into between CBA and the employer under the Golden Handshake Scheme---Contention of the employer that the employee was entitled to payment of his wages for the purpose of retirement and relieving under Golden Handshake Scheme as unionised staff as a clerical worker was repelled in circumstances---High Court thus declined interference in the orders of Workmen's Commission and Authority under the Payment of Wages Act, 1936 to the effect that employer had not made payment to the employee and failed to fulfil his legal obligation.

Mazhar Hakeem for Petitioner.

Javed Bashir for Respondent No. 1.

Nemo for Respondents Nos.2 and 3.

Date of hearing: 13th May, 2003.

PLC 2003 LAHORE HIGH COURT LAHORE 375 #

2003 P L C 375

[Lahore High Court]

Present: Sayed Zahid Hussain, J

ZONAL HEAD, STATE LIFE INSURANCE CORPORATION OF PAKISTAN and 2 others

Versus

MUHAMMAD RAFIQ and another

Writ Petition No. 12139 of 2002, heard on 26th May, 2003.

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

----Ss. 25-A & 37---Service Tribunals Act (LXX of 1973), Ss.2-A & 4(1)(b)---Constitution of Pakistan (1973), Art. 199---Constitutional petition--Grievance petition---Option for retirement from service---Authority declined to accept such option of petitioner due to pendency of enquiry against him--Labour Court returned grievance petition in view of S.2-A of Service Tribunals Act, 1973---Labour Appellate Tribunal remanded mater to Labour Court taking view that same had jurisdiction in the matter ---Validity--Departmental proceedings initiated against petitioner had yet to reach its logical end on completion of inquiry---Acceptance or non-acceptance of petitioner's application for retirement would depend upon fate of such inquiry---If petitioner was of the view that option for retirement had been illegally refused by Authority, then his remedy lay elsewhere, but certainly not before the Labour Court---Exclusion and bar of jurisdiction of all Courts and Authorities by operation of S.2-A of Service Tribunals Act, 1973 was fully attracted---Labour Court had not committed any illegality warranting interference by Labour Appellate Tribunal---High Court accepted Constitutional petition and declared impugned order as non-sustainable in law.

(b) Constitution of Pakistan (1973)---

----Art. 199---Remand order---High Court would be reluctant and loath in interfering with remand orders---Where effect of remand order was to relegate parties to a Court lacking jurisdiction in matter, then High Court could interfere to avoid perpetuation of an illegality.

----Art. 199---Misapplication, non-application or misconstruction of a legal provision would attract jurisdiction of High Court under Art. 199 of the Constitution.

Yawar Ali Khan for Petitioners.

Ch. Muhammad Ahmad Javed for Respondents.

Date of hearing: 26th May, 2003.

PLC 2003 LAHORE HIGH COURT LAHORE 386 #

2003 P L C 386

[Lahore High Court]

Before M. Javed Buttar and Syed Jamshed Ali, JJ

WATER AND SANITATION AGENCY (WASA) EMPLOYEES WELFARE UNION (LDA) through its General Secretary

Versus

THE REGISTRAR OF TRADE UNIONS, LAHORE and 4 others

Intra-Court Appeal No.866 of 2002 in Writ Petition No. 20637 of 2002, heard on 8th July, 2003.

(a) Industrial Relations Ordinance (XCI of 2002)---

----Preamble & S.1---Constitution of Pakistan (1973), Arts. 89 & 270-AA [as inserted on 21-8-2002 by Legal Framework Order (Chief Executive's Order 24 of 2002), which came into force on 16-11-2002 vide S.R.O. 799/(I)/2002, dated 15-11-2002 issued by Chief Executive of Pakistan]--Non-placing Industrial Relations Ordinance, 2002 before National Assembly within four months of its promulgation---Effect---By virtue of Art. 270-AA of the Constitution, all laws made between 12-10-1999 and 16-11-2002 were declared to have been made by Competent Authority notwithstanding anything contained in the Constitution---Ordinance, 2002 having been promulgated on 26-10-2002, thus, stood saved under Art. 270(1)-AA of Constitution.

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

----S.22(10)---Industrial Relations Ordinance (XCI of 2002), Ss.20(11) & 80(2)---General Clauses Act (X of 1897), S.6---Collective Bargaining Agent---Respondent was certified as CBA on 27-10-2000---Period of two years as prescribed under S.22(10) of Industrial Relations Ordinance, 1969 expired on 26-10-2002---Application for determination of new CBA made on 28-10-2002 was dismissed by Registrar on the ground that period of two years stood extended to three years by virtue of Industrial Relations Ordinance, 2002, which came into force on 26-10-2002---Validity---Such CBA would not be deemed to have been formed under Ordinance, 2002 because of S.80(2)(a) thereof, which deals only with registration of trade unions and not certification of CBAs---Order of certification of respondent as CBA would be deemed to have been passed under Ordinance, 2002 by virtue of S.80(2)(b) thereof for having retrospective effect as evident from its wording---Provisions of S.6 of General Clauses Act, 1897 had been saved under S.80(2) of Ordinance, 2002 only to the extent that same were not repugnant to or inconsistent with express provisions of Ordinance, 2002--Section 6 of General Clauses Act, 1897 itself contemplated that its provisions would not apply, if repealing Act provided different intention---According to S.20(11) of Ordinance, 2002 no application for determination of CBA would be entertained within a period of three years from date of such certification--Prohibitory period, thus, stood extended from two years to three years under Ordinance, 2002---Petitioner could move such application only under Ordinance, 2002 after expiry of period of three years of certification of respondent as CBA---High Court dismissed appeal.

Farooq Zaman Qureshi for Appellant.

Shabbar Raza Rizvi, Advocate-General, Punjab for Respondent.

Sher Zaman Khan, Deputy Attorney-General for Pakistan for Respondent No. 1.

Ch. Muhammad Khalid Farooq for Respondent No.2.

Date of hearing: 8th July, 2003.

PLC 2003 LAHORE HIGH COURT LAHORE 399 #

2003 P L C 399

[Lahore High Court]

Before Ch. Ijaz Ahmad, J

Messrs RUPAFIL LIMITED through Personnel Manager

Versus

DEPUTY DIRECTOR, PUNJAB EMPLOYEES' SOCIAL SECURITY INSTITUTION and 2 others

First Appeal Against Order No. 422 of 2002, heard on 9th May, 2003.

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

----Ss. 1(3), 20 & 21-Issuance of notification under S.1(3) of Provincial Employees' Social Security Ordinance, 1965---Effect---Upon issuance of such notification, obligation of employer as spelt out in Ss.20 & 21 of the Ordinance would come into play i.e. to make necessary contribution, keep record and furnish returns---Such obligation would not be dependent upon any action to be taken or initiated by Institution---Failure of Institution to demand contribution would not absolve employer from filing correct return and making payment thereof in time.

Kohinoor Chemical Co. Ltd. and another v. Sindh/Employees' Social Security PLD 1977 SC 197 and Noor Textile's case C. P. No. 1219-L of 1993 ref.

Kohinoor Chemical Co. Ltd. and another v. Sindh Employees' Social Security PLD 1977 SC 197; Sindh Employees' Social Security Institution v. Dawood Cotton Mills Limited PLD 1988 SC 1; Sindh Employees' Social Security Institution v. Rashid Textile Mills Limited 1980 PLC 1245 and Sindh Employees' Social Security Institution v. Silva Industries Limited, Karachi 1979 PLC 1062 rel.

(b) Appeal (civil)---

---- New plea---Plea not taken in grounds of appeal before First Appellate Court could not be taken at the time of hearing of second appeal before High Court---Civil Procedure Code (V of 1908); Ss. 96 & 100)---Provincial Employees' Social Security Ordinance (X of 1965), Ss. 59 & 64.

City Bank N.A. v. Riaz Ahmad 2000 CLC 847 rel.

Mian Asghar Ali for Appellant.

Sarafraz Ali Cheema for Respondents.

Date of hearing: 19th May, 2003.

PLC 2003 LAHORE HIGH COURT LAHORE 416 #

2003 P L C 416

[Lahore High Court]

Before Mian Saqib Nisar and Jawwad S. Khawaja, JJ

Messrs PACKAGES LIMITED through General-Manager

Versus

MUHAMMAD AKBAR and 2 others

Intra-Court-Appeals Nos. 445 and 462 of 2002, heard on 30th April, 2003.

Industrial Relations Ordinance (XXIII of 1969)---

----S.8(4)(5)(6)(7)---Punjab Industrial Relations Rules, 1973, Rr.11 & 13--Law Reforms Ordinance (XII of 1972), S.3(2), proviso---Constitution of Pakistan (1973), Art. 199---Intra-Court appeal against- acceptance of Constitutional petition filed against order of Registrar of Trade Unions finding the petitioner not a workman during post remand proceedings originally initiated on applications of rival groups of trade union under S. 8(4)(5)(6) of Industrial Relations Ordinance, 1969---Maintainability---Order challenged in Constitutional petition had arisen out-of original proceedings, in which right of appeal was available and had also been exercised by rival groups ---Intra-Court Appeal was, thus, not competent as being hit by proviso to S.3(2) of Law Reforms Ordinance, 1972---High Court dismissed Intra Court appeals.

Syed Arif Raza Rizvi v. Messer Pakistan International Airlines through Chairman/M.D., Karachi PLD 2001 SC 182 ref.

Mst. Karim Bibi and others v. Hussain Bakhsh and another PLD 1984 SC 344 fol.

Maqbool Elahi Malik and Zafar Iqbal Chaudhry for Appellant.

Abid Hassan Minto for Respondents.

Date of hearing: 30th April, 2003.

PLC 2003 LAHORE HIGH COURT LAHORE 424 #

2003 P L C 424

[Lahore High Court]

Before Sabihuddin Ahmad and Zia Pervez, JJ

NASIR JAMAL QURESHI

Versus

SINDH LABOUR APPELLATE TRIBUNAL and others

Constitutional Petition No. D-844 of 2001, decided on 16th January, 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.12--Termination of service ---Greivance petition---Question whether "salesman" was a workman---Determination of---Salesman was not "workman", for purpose of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968.

Brook Bond Pakistan Limited v. Government of Sindh PLD 1977 SC 237; Matloob Hassan v. Brook Bond 1992 SCMR 227; Yousaf Ali v. Quetta Sereena Hotel 2001 SCMR 1813 and Mustehkum Cement v. Abdul Rahim 1998 SCMR 644 ref.

Muhammad Muzaffarul Haq for Petitioner.

Miss Sana Minhas: Amicus curiae

PLC 2003 LAHORE HIGH COURT LAHORE 431 #

2003 P L C 431

[Lahore High Court]

Before M. Javed Buttar, J

MAQBOOL ELAHI

Versus

PUNJAB LABOUR APPELLATE TRIBUNAL through Chairman and 3 others

Writ Petitions Nos. 12846 and 16091 of 1998, heard on 30th April, 2003.

Industrial dispute---

----Dismissal from service---Reinstatement---Full-back benefits---Entitlement ---Employee was dismissed from service, but Labour Court after appreciating evidence on record concluded that employee was wrongly dismissed from service and reinstated him in service with all back-benefits--Labour Appellate Tribunal upheld finding of Labour Court, but awarded reduced award by reducing back benefits to employee to one-half observing that employee having not rendered any practical service to employer he was not entitled to have full back-benefits---Validity---Record, including evidence showed that employee throughout remained jobless---Employee was found innocent in enquiry conducted against him by both Labour Court and Labour Appellate Tribunal---After confirming finding of Labour Court to the effect that employee was ousted from service for no fault on his part and that he deserved reinstatement in service from date of his unjustified dismissal, reduction of back benefits by Labour Appellate Tribunal to one-half, was unjustified---No reasons had been given by Labour Appellate' Tribunal except that employee "had not rendered practical services to employer Establishment "---Order of reduction of back-benefits to one-half, passed by Labour Appellate Tribunal, being not justified, could not sustain---Order of Labour Court was restored, in circumstances.

Divisional Superintendent, N.W.R., Lahore v. Muhammad Sharif, Booking Clerk, N.-W.R., Gujrat PLD 1963 SC 340; Syed Sultan Shah v. Government of Baluchistan and another 1985 SCMR 1394; Wahid Ahmed Kamal v. Punjab Agricultural Development and Supplies Corporation and 4 others 1986 PLC 360; Allied Bank of Pakistan Ltd. v. Tariq Mehmood Qamar 1980 PLC 106; Allied Bank of Pakistan Ltd. v. Punjab Labour Appellate Tribunal and others 1980 PLC 42; Gul Habib v. Federation of Pakistan through Chairman, Pakistan Railways and another 1988 PLC 45; Province of the Punjab through the Secretary, Services and General Administration, Lahore v. Syed Muhammad Ashraf 1973 SCMR 304; General Manager, Layyah Sugar Mills, Layyah v. Saleem Pervaiz Hashmi, Dispenser 1997 PLC 111; Messrs Sethi Straw Board Mills Ltd. v. Punjab Labour Court No.3, Lyallpur and 2 others PLD 1977 Lah. 71 and National Bank of Pakistan and another v. Muhammad Asif Ahmed and 2 others PLD 1985 Quetta 100 ref.

Ghulam Qadir Chaudhary for Petitioner.

Ali Ahmad Awan for Respondents

Date of hearing: 30th April, 2003

PLC 2003 LAHORE HIGH COURT LAHORE 443 #

2003 P L C 443

[Lahore High Court]

Before Tanvir Bashir Ansari, J

Syed NASIR ABBAS NAQVI

Versus

PUNJAB LABOUR APPELATE TRIBUNAL through Chairman and 4 others

Writ Petition No.679 of 2002, decided on 2nd July, 2003.

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

‑‑‑‑Ss.2(xxviii) & 25‑A‑‑‑West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(i)‑‑‑Grievance petition‑‑‑Dismissal from service‑‑‑Workman, determination of‑‑‑Grievance petition filed by employee against his dismissal from service was resisted on ground that employee being Officer Grade III in a Bank, was not "workman "‑‑‑Witness who appeared on behalf of employer had merely stated that employee was performing supervisory duty‑‑‑Said witness did not produce any document prescribing job description of employee‑‑‑Mere oral assertion of the said witness that employee was performing supervisory duty, was not sufficient to prove that employee was in fact performing such function‑‑‑Even otherwise neither designation nor salary were relevant in determining status of employee as a workman‑‑‑Essential nature of work was the factor that a person performed which would include him within pale of the term "workman".

Abdul Razzaq. v. Messrs Ihsan Sons Limited and 2 others 1992 SCMR 505; Muhammad Aqil v. Sindh Labour Appellate Tribunal and another PLD 1978 Kar. 649; Messrs Kashmir Corner v. Sindh Employees' Social Security Institution, Karachi PLD 1975 Kar. 36; Muhammad Hanif and others v. Messrs Utility Store Corporation of Pakistan (Pvt.) Ltd., Hyderabad and others 1996 PLC 170; Messrs Allied. Bank of Pakistan Ltd. v. Aleem Haider and others 1997 PLC 219; Mustahkum Cement Limited. ; . Abdul Rashid and others 1998 PLC 172; Messrs. Wah Industries L:mited, Wah Cantt. m District Rawlapindi v. Punjab Labour Appellate Tribunal Lahore and 2 others 1998 PLC 1; Ganga R. Madhani. v. Standard Bank Ltd. and others 1985 SCMR 1511; Khushal Khan v. Muslim Commercial Bank Ltd. and others 2002 SCMR 943 and Emirates Bank International and another v. Rana Zahid Iqbal and 2 others 1999 PLC 302 ref.

(b) 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(b) & S.Os.12(3), 15(4)(5)‑‑‑Grievance petition,‑‑Treating Branch of Bank as, independent Establishment‑‑‑Applicability of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968‑‑‑Grievance petition filed by employee against his dismissal from service was resisted on the ground that Branch of Bank in which' employee was working as Officer Grade III was an independent Establishment as number, of workers in said Branch being less than 20 workers, West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 was not applicable to the case of employee‑‑‑Various Branches of employer Bank, regardless of places where those were located, were commercial in nature and ‑ would not be treated as separate establishment from one another‑‑‑Almost 900 Branches of employer Bank were in Pakistan, in circumstances, it would be anomalous to consider any of such Branch to be an independent establishment different or apart from Corporate Commercial body for purpose of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968‑‑‑Banking Company or a Bank was a Commercial Establishment notwithstanding its location or strength of its employees in particular Branch‑‑‑Would indeed be discriminatory to hold that Branch of Banking Company if it employed less than 20 persons would, not be covered by provisions of West Pakistan Industrial and Commercial Employment (Standing Orders), Ordinance, 1968‑‑‑Branch of Bank its which employee was working, in circumstances, was not a separate establishment; West Pakistan Industrial and Commercial Employment ‑(Standing Orders) Ordinance, 1968 was applicable in the case of employee and his grievance petition was competent.

Abdul Razzaq v. Messrs Ihsan Sons .Limited and 2 others 1992 SCMR 505; Muhammad Aqil v. Sindh Labour Appellate Tribunal and another PLD 1978 Kar. 649; Messrs Kashmir Corner v. Sindh Employees Social Security Institution, Karachi, PLD 1975 Kar. 36; Muhammad Hanif and others v. Messrs Utility Stores Corporation of Pakistan (Pvt.) Ltd. Hyderabad and others 1996 PLC 170; Messrs Allied Bank of Pakistan Ltd. v. Aleem Haider and others 1997 PLC 219 and Messrs Ihsan Sons Limited v. Abdul Razzaq 1987 PLC 390 ref.

‑‑‑‑S.25‑A‑‑‑Grievance notice, validity of‑‑‑Grievance petition‑‑‑Employer Bank contended that Departmental appeal filed by employee before Authority higher than Appointing Authority, would not constitute a valid grievance notice‑‑‑Contention was devoid of force as nothing was on record to suggest as to who in the case of employee was competent or Appellate Authority‑‑?Grievance notice as contemplated in S.25‑A of Industrial Relations Ordinance, 1969, would imply that a worker could bring his grievance to notice of employer in the manner specified therein‑‑‑Concept of an "Authorised Officer" or "Authority" in "Departmental Appellate Authority" was completely alien to the identity of employer as contemplated in S.25‑A of Industrial Relations Ordinance, 1969‑‑‑Requirement of service of a grievance notice would be fulfilled if such notice or representation was communicated to a person who was responsible for management, control or supervision of establishment whether or not such a person was higher than Appointing Authority of concerned worker.

Khushal Khan v. Muslim Commercial Bank Limited 2002 SCMR 943 ref.

Ch. Afrasiab Khan for Petitioner.

Shahid Anwar Bajwa for Respondents.

Date of hearing: 28th April, 2003.

National Industrial Relations Commission

PLC 2003 NATIONAL INDUSTRIAL RELATIONS COMMISSION 96 #

2003 P L C 96

[National Industrial Relations Commission]

Before Muhammad Zaman Qureshi, Chairman

FAWAD ASLAM

Versus

SUPERINTENDING ENGINEER HIGHWAY CIRCLE, LAHORE and others

Case No.4A(1661) of 1997‑L, decided on 16th April, 1999.

Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑Ss.1(3)(b), 2(xxviii) & 22‑A(8)(g)‑‑‑West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(i) & S. O. 1 (b)‑‑‑Regularization of service‑‑‑Unfair labour practice by employer‑‑-Petition before National Industrial Relations Commission‑‑Maintainability‑‑‑Petitioner was appointed as Highway Inspector on work charged basis and he supervised the road and about 13/14 employees were working under him and he supervised their work‑‑‑Application for regularization of his service having been rejected by the Authority employee had challenged rejection order before National Industrial Relations Commission under S.22‑A(8)(g), Industrial Relations Ordinance, 1969‑‑Validity‑‑‑Petitioner who was appointed in supervisory capacity was a civil servant and his petition which related to the matter of regularization of his service fell within jurisdiction of Service Tribunal‑‑‑Merely because the petitioner was a son of President of the Union that fact alone would not bring the matter within the ambit of unfair labour practice on the part of employer‑‑‑Petition was dismissed being not maintainable.

PLD 1984 Lah. 294 ref.

H.R. Haider for Petitioner.

Rashid Ahmad, S.D.O. for the Department.

Date of hearing: 24th March, 1999.

PLC 2003 NATIONAL INDUSTRIAL RELATIONS COMMISSION 134 #

2003 P L C 134

[National Industrial Relations Commission]

Before Muhammad Zaman Qureshi, Chairman, Alauddin Qureshi and Ch. Riaz Ahmad Members

GENERAL MANAGER, FTR, FAISALABAD and another

Versus

KHALID MAHMOOD, TELEPHONE OPERATOR, BHALWAL

Case No.12(23) of 1998‑L, decided on 17th March, 1999.

Industrial Relations Ordinance (XXIII of 1963)‑‑‑

‑‑‑‑Ss. 22‑A & 22‑D‑‑‑Termination of service‑‑‑Petition to National Industrial Relations Commission‑‑‑Maintainability‑‑‑Petition against order terminating services of employees having been accepted by Single Bench of National Industrial Relations Commission, employer had filed appeal against the said order‑‑‑Employees having been held civil servants after insertion of S.2‑A in Service Tribunal Act, 1973 in respect of their terms and conditions of service the remedy available to them was before Service Tribunal and National Industrial Relations Commission had no jurisdiction in the matter‑‑Order accepting petition of employee against termination of his service passed by Single Member of National Industrial Relations Commission even without recording necessary evidence, was set aside in appeal being without lawful authority.

PLD 1996 SC 222; 1998 SCMR 2129 = 1998 PLC (C.S.) 1371: 1998 PLC (C.S.) 627 and 1998 PLC 227 ref.

Gorsi M.D. Chaudhry for Appellants.

Ghulam Qadir for Respondent.

PLC 2003 NATIONAL INDUSTRIAL RELATIONS COMMISSION 149 #

2003 P L C 149

[National Industrial Relations Commission]

Before Zia Mahmood Mirza, Chairman, Qazi Ahmad Saeed, Member and Raja Muhammad Abbas, Secretary, Labour Sindh, Member

MEHNATKASH LABOUR UNION, ALNOOR SUGAR MILLS LIMITED through General Secretary

Versus

AL‑NOOR SUGAR MILLS LIMITED through Executive Vice‑President and others

Appeal No.12(23) of 2001, decided on 4th October, 2002.

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

‑‑‑‑Ss.15, 22‑A(8)(g) & 22‑D‑‑‑Petition against unfair labour practice by employer‑‑‑Stay application‑‑‑Appeal‑‑‑Office‑bearers of petitioner‑union were served with charge‑sheet by employers for attending/participating in a meeting held inside the factory premises‑‑‑Petitioner‑Union tiled. stay application praying that till disposal of the petition, ad‑interim prohibitory order be issued restraining employers from dismissing, discharging or removing office‑bearers and active members of petitioner‑Union from service‑‑‑Single Member of National Industrial Relations Commission admitted petition for regular hearing and issued ad‑interim prohibitory order as prayed for by petitioner‑union, but employers were allowed to continue with inquiry against. charge‑sheeted office‑bearers, with direction that no order adverse to employment of workers would be passed meanwhile on the basis of charge‑sheets‑‑‑Employers held necessary inquiry and placed inquiry proceedings before Single Member who after hearing parties, recalled ad-interim prohibition order passed earlier by him and rejected stay application holding that members of petitioner‑union were involved in assembling unlawfully inside factory gate in defiance of employers' lawful orders which was an act subversive of discipline constituting misconduct‑‑‑Single Member also noted that its employers had not issued charge‑sheets to workers to victimize them for their trade union activities and no specific instance of unfair labour practice could be spelt out from the record‑‑‑Single Member had found that to conduct disciplinary proceedings for acts of misconduct against delinquent workers, including office‑bearers of union was a right of employers which could not be curbed or taken away merely on general and vague allegations of unfair labour practice‑‑‑After rejection of stay application and recalling ad‑interim order, earlier passed by Single Member, majority of charge‑sheeted workers had been dismissed by employers and so many others were retrenched who could neither claim nor be granted prohibitory relief in appeal‑‑‑Appeal filed by petitioner‑union, having become infructuous and liable to be dismissed, dismissal of workers of union had given them a fresh cause of action and they, if aggrieved, could challenge orders of their dismissal in appropriate proceedings.

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

‑‑‑‑Ss.22‑A(8)(g) & 22‑D‑‑‑Unfair labour practice by employers‑‑‑Appeal against order of rejecting stay application and recalling ad‑interim order earlier granted‑‑‑Single Member of National Industrial Relations Commission rejected stay application filed by appellant‑Union and recalled ad‑interim order earlier granted to appellant‑Union‑‑‑Appeal against orders was liable to be dismissed even on merits as Single Member had given good reasons for recalling interim prohibitory order earlier issued by him‑‑‑Employers had legal/inherent right to initiate disciplinary proceedings against the employees on charge of misconduct and to take such proceedings to their logical end‑‑In absence of any specific instance of unfair labour practice, no interim order in favour of charge‑sheeted workers could be issued nor could any general order be passed restraining employers from exercising their right to take disciplinary action against delinquent workers‑‑‑Single Member of National Industrial Relations Commission in circumstances had rightly held that petitioner‑Union had not been able to make out any prima facie case of unfair labour practice against employers‑‑‑Balance of convenience also did not seem to lie in their favour and they were also not likely to suffer irreparable loss.

‑‑‑‑O.XXXIX, Rr. 1 & 2‑‑‑Interim relief, grant of‑‑‑Principles‑‑‑Court before granting interim relief, must satisfy itself whether there existed prima facie case in favour of person seeking interim relief and also examine concepts of balance of convenience/inconvenience of parties and the irreparable loss likely to be suffered by applicant in case of refusal to grant him interim relief.

Muhammad Nishat Warsi for Appellant.

Faisal Mahmood Ghani for Respondents.

PLC 2003 NATIONAL INDUSTRIAL RELATIONS COMMISSION 234 #

2003 P L C 234

[National Industrial Relations Commission]

Before Qazi Ahmed Saeed, Member

MAHBOOB SHAH, GENERAL SECRETARY, ITTEHAD EMPLOYEES' UNION V.A. TECH VOEST (MCE GMBH) BROTHA ATTOCK and 10 others

Versus

THE SENIOR PROJECT MANAGER, V.A. TECH. VOEST (MCE GMBH), MAIN OFFICE BROTHA, ATTOCK

Applications Nos.4A(74), 24(102) of 2001 and 7A(76) of 2002, decided on 12th October, 2002.

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

----S.22-A(8)(g)---Petition filed by employees under S.22-A(8)(g) of Industrial Relations Ordinance, 1969 against unfair labour practice by employers---Employers in their application for rejection of such petition had contended that employees vide authority letter had authorized General Secretary of the Union to file petition under S.22-A(8)(g). of Industrial Relations Ordinance, 1969 but said petition alongwith all documents i.e. stay application, affidavit and Vakalatnama etc. was signed by a different person; that authority letter was not attested by two witnesses and that said authority letter having legal defects, was of no legal effect---Employees had produced copy of National Identity Card of General Secretary of Union to prove that name of authorised person as mentioned in the authority letter was his nick name---Validity---Objection of employer was without any substance and was liable to be rejected---Vakalantnama in favour of Advocate, was not signed only by the General Secretary of Union, but by all employees and petition under S.22-A(8)(g) of Industrial Relations Ordinance, 1969 was also so signed---Objections raised by employers with regard to omissions/errors in letter of authority, were not fatal defects and could be removed/cured at any stage---Provisions with regard to signing and verification of petition were mere matters of procedure---Even if petition was not signed by employees or by a person authorized by them in that behalf and said defect was discovered before final order employees could be allowed to amend petition by signing the same.

PLD 1985 SC 153; 1987 PLC 358; 1975 PLC 24; 1975 PLC 56; PLD 1996 Lah. 367; PLD 1974 SC 151; 1985 PLC 730; 1980 PLC 105; 1984 PLC 1342 and 2000 SCMR 879 ref.

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

----S.22-A(8)(g)---Petition. against unfair labour practice by employers---Law not only would permit joinder of several persons as co-petitioners in one petition, but also would allow the petitioners to remove/correct the defects with regard to signatures and verification ox petition at any stage--Omission/error :n letter of authority or omission of signatures of the petitioners was riot a fatal defect, but could be cured/removed at any stage as it would not change the nature of petition.

----- Rules of procedure were meant to advance justice and to preserve rights of litigants and were not meant to frustrate the purpose of law and justice--All technicalities had to be, avoided.

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

----Ss.15 & 22-A(8)(g)---Petition against unfair labour practice by employers---Maintainability---Issue of unfair labour practice was a mixed question of law and fact which could be scanned after recording evidence of the parties and would be premature to give any finding regarding maintainability or otherwise of the petition at earlier stage.

Syed Nasir Ahmad for Petitioners.

Mahmood Akhter for Respondent.

PLC 2003 NATIONAL INDUSTRIAL RELATIONS COMMISSION 240 #

2003 P L C 240

[National Industrial Relations Commission]

Before Ali Nawaz A. Channa, Member

Syed YASIN ALI and 2 others

Versus

Messrs PAK NEWS PRIVATE LTD, through Managing Director and 2 others

Cases Nos.4A(125) and 24(126) of 2002-Kdecided n 29th August, 2002.

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

----Ss.22-A(8)(g) & 22-C---Termination of service---Contempt of Court--Proof---Petitioners/employees had alleged that on filing petition under S.22-A(8)(g) of Industrial Relations Ordinance, 1969, stay order was passed in their favour which was served upon employers and that after receipt 'of stay order, employers had terminated the services of the employees so as to nullify stay order issued by the Court---Evidence on record had established that orders terminating services of employees were passed and dispatched by employers in the morning on the relevant date whereas stay order passed in favour of employees, was received by the employers from Court in the afternoon--Termination orders were not passed by employers after receipt of stay order, in circumstances---Petition of employees was not maintainable as they were terminated employees who could not be reinstated by National Industrial Relations Commission, but remedy of petitioners lay with other forum.

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

----S.O.12---Termination of service---Effective date of termination orders--Effective date of termination orders would be the date when same were signed and not date of receipt by the employee.

2001 PLC 79; 1995 SCMR 1178 and AIR 1960 Pat. 283 ref.

Gohar Iqbal for Petitioners.

Mahboob Rizvi for Respondents.

PLC 2003 NATIONAL INDUSTRIAL RELATIONS COMMISSION 244 #

2003 P L C 244

[National Industrial Relations Commission]

Before Qazi Ahmed Saeed, Member

FAISAL ALI

Versus

Messrs SABRO REFRIGERATION AND AIR-CONDITIONING EQUIPMENT, S.A. BROTHERS (PRIVATE) LIMITED through its Managing Director and another

Case No.4A(348) of 1998, decided on 16th October, 2002.

Industrial Relations Ordinance (XXIII of 1969)---

----Ss.15 & 22-A(8)(g)---National Industrial Relations, Commission (Procedure and Functions) Regulations, 1973, Regln. 32(2)---Dismissal from service---Unfair labour practice by employers---Petition against---Stay order---Petitioner was dismissed from service after charge-sheeting and holding inquiry against him on allegation that he had beaten Admin. Manager at factory gate---Inquiry against petitioner was conducted in a fair manner and conduct of Inquiry Officer was above board---No reason was to disbelieve testimony of-witnesses produced before Inquiry Officer and also no reason was to disagree with finding of Inquiry Officer because petitioner himself did not cross-examine eye-witnesses of the incident---Petitioner did not produce his witness before Inquiry Officer despite he was given full opportunity to prove his innocence- Petitioner had contended that he had been victimized due to his trade union activities---Petitioner though was elected President of Union, but he could not quote any specific instance of unfair labour practice on part of employers and he had failed to produce any witness in support of his assertion---Petitioner had failed to mention name of any officer who allegedly had pressurized/persuaded him to quit his trade union activities---Could not be said in circumstances that petitioner was victimized by employers---Irregularity cited by petitioner in disciplinary proceedings against him was pointless because National Industrial Relations Commission would acquire jurisdiction only if it was shown that an unfair labour practice had been committed---While determining whether an unfair labour practice had been committed or not, allegation that disciplinary proceedings/actions violated the most basic tenets of a fair trial would be foreign for consideration by Bench of National Industrial Relations Commission, unless element of unfair labour practice was first proved to be present---Petitioner had failed to prove that he was dismissed from service on account of his trade union activities---Mere bold allegations of unfair labour practice, were not sufficient to prove victimization and make the case amenable to interference by National Industrial Relations Commission--- Petition filed by petitioner, was dismissed, in circumstances.

1979 SCMR 304; 1984 PLC 408; 1988 SCMR 1664; 1989 PLC 206; 1990 PLC 96; 1992 SCMR 505; 1973 SCMR 672; 1979 TR(C) Labour 98; 1985 PLC 112; 1974 PLC 306; 1987 PLC 547; 1988 PLC 923; PLD 1970 (BL) 5; 1970 SCMR 491; 1992 CLC 235; 2001 PLC 79; 1996 PLC 107 and 1997 PLC 246 ref.

Malik Meharban for Petitioner.

Syed Nazir Ahmad for Respondents.

PLC 2003 NATIONAL INDUSTRIAL RELATIONS COMMISSION 257 #

2003 P L C 257

[National Industrial Relations Commission]

Before Qazi Ahmed Saeed, Member

NATIONAL BANK OF PAKISTAN EMPLOYEES UNION MALAKAND DIVISION (MARDAN DIVISION), REGIONAL OFFICE, MARDAN through General Secretary

Versus

NATIONAL BANK OF PAKISTAN, I, I, CHUNDRIGAR ROAD, HEAD OFFICE KARACHI through President and others

Case No. 19(5) of 2002, decided on 17th January, 2003.

Industrial Relations Ordinance (XXIII of 1969)---

----Ss.2(xxvi), 3, 10 & 22-EE---Determination of Collective Bargaining Units in establishment---Petition for---Petitioner claiming to be registered trade' union in its petition filed through its General Secretary, had prayed for determination of Collective Bargaining Units for the workmen employed to establishments of National Bank of Pakistan in Province of North-West Frontier Province---Claim of petitioner was that since Regional Office of respondent-Bank in Province was no longer in existence as Bank had restructured its. administrative units, a need was to determine fresh Collective Bargaining Units in the establishments of Bank---Petition was resisted alleging that petitioner had got Registration Certificate by illegal means and that a petition against registration of petitioner-union was pending adjudication before Bench of National Industrial Relations Commission and that National Industrial. Relations Commission had no jurisdiction to entertain petition filed by petitioner---Even if petition was registered in violation of order, but its registration had not yet been cancelled and even if registration of petitioner was cancelled, petitioner-union would retain character of an unregistered trade union as defined under S.2(xxvi) of Industrial Relations of Ordinance, 1969 and would be competent to move petition for determination of Collective Bargaining Units---Objection raised by respondents with regard to competency of petition filed by petitioner-Union, was rejected holding that petition was competently filed under S.22-EE of Industrial Relations Ordinance, 1969.

S. Rais Ahmed Jafri for Petitioner.

Syed Nasir Ahmed for Respondent No. 1.

Malik Meharban, Representative for Respondent No.2.

Nadeem Aziz Khan for Respondent No.3.

Liaquat Ali, Senior Clerk for Respondent No.4.

Nemo for Respondents Nos.5, 6 and 7.

Zakaullah Khan Khalil, Deputy Registrar for Respondent No.8.

PLC 2003 NATIONAL INDUSTRIAL RELATIONS COMMISSION 264 #

2003 P L C 264

[National Industrial Relations Commission]

Before Ali Nawaz A. Channa, Member

Syed YASIN ALI and 2 others

Versus

Messrs PAK NEWS (PVT.) LTD. through Managing Director Inqlab Matri and another

Case No.7(46) of 2002-K, decided on 29th August, 2002.

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

----S. 22-C---Complainants/employees had alleged that despite service of stay order, on employers, they in violation of stay order had terminated services of the complainants---Complainants had contended that employers who had committed contempt of Court were liable to be punished accordingly--Validity---Complainants on the relevant date were absent from duty and employers, were compelled to send termination orders through post--Evidence on record had established that termination orders were posted in the morning on the relevant date, whereas stay order from the Court was received by the employers through TCS in the afternoon---Complainant, in circumstances, could not claim that termination orders were passed by employers after receipt of stay orders and that employers had dispatched the orders of termination after receipt of stay order.

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

----S.22-C---Joint complaint---No concept of filing a joint complaint being unwarranted in law.

Gohar Iqbal for Petitioner.

Mahboob Rizvi for Respondents.

PLC 2003 NATIONAL INDUSTRIAL RELATIONS COMMISSION 267 #

2003 P L C 267

[National Industrial Relations Commission]

Before Qazi Ahmed Saeed, Member

SAJID HUSSAIN, GENERAL SECRETARY, SABRO AIR CONDITIONED (PVT.) LTD. EMPLOYEES' UNION, ISLAMABAD and 7 others

Versus

SABRO/S.A. BROTHERS AIR-CONDITIONED PRIVATE LIMITED, I-9, ISLAMABAD through Managing Director and 4 others

Cases Nos.4A(25) of 1998, 24(41) and 7A(20) of 2002; decided on 16th September, 2002.

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

----S.153 & O. VI, R.17---AmendB~m~ent of pleadings---Court was empowered under S.153, C.P.C. to accord permission to amend/cure/correct any defect or error in any proceedings/application at any stage---Leave to amend petition in terms of O.VI, R.17, C.P.C. could be granted at any stage so as t6 determine the real question in issue between the parties, provided it did not convert petition into another different and inconsistent character---Mere delay could not be made the ground for refusing an amendment.

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

----Ss.15 & 22-A(8)(g)---National Industrial Relations Commission (Procedure and Functions) Regulations, 1973, Regln 32(2)---Petition against unfair labour practice of employers---Amendment in. petition---National Industrial Relations Commission though had ordered to maintain status quo, but respondents/employers had dismissed from service all the petitioners except one---Petitioners by an application had sought amendment in prayer clause of their petition filed under S.22-A(8)(g) of Industrial Relations Ordinance, 1969 on account of apprehension of unfair labour practice on part of employers with the prayer to prevent employers from committing the acts of unfair labour practice and direct them not to dismiss, discharge, terminate or remove the petitioners from service---Employers, however, during pendency of petition, dismissed all petitioners except one---Validity--Amendment in prayer clause of petition sought by petitioners, was necessary for the purpose of determining the real question in issue---Would not even matter if said application had been put in after delay provided same was bona fide---Rules of procedure were meant to adduce justice and to preserve rights of litigants and not meant to entrap them into blind corner so as to frustrate purpose of law and justice and thus all technicalities had to be avoided---Application for amendment in prayer clause of petition was allowed in circumstances.

1988 SCMR 322 and 1985 SCMR 824 ref.

---- Rules of procedure were meant to adduce justice and to preserve rights of litigants and were not meant to entrap them into blind corner so as to frustrate the purpose of law and justice---All technicalities had to be avoided.

Mahmood Akhter for Petitioner.

Syed Nasir Ahmad for Respondents.

PLC 2003 NATIONAL INDUSTRIAL RELATIONS COMMISSION 279 #

2003 P L C 279

[National Industrial Relations Commission]

Before Aijaz Ahmed K. Sheikh, Member

MUHAMMAD MOOSA SOOMRO

Versus

CHAIRMAN, PAKISTAN NATIONAL SHIPPING CORPORATION and others

Case No.4A(263)/96-K, decided on 6th November, 1999.

(a) Qanun-e-Shahadat (10 of 1984)-----

----Arts. 117 & 118---Burden of proof---For establishing a fact alleged in the case or for proving the same, the party which was contending or alleging the same must prove his contention through some oral or documentary evidence and should not try to get benefit of weakness of the opposite-party if there was any such weakness.

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

----S.O.15---Pakistan National Shipping Corporation (Service) Regulations, 1965, Regln. 59(5)---Removal from service---Show-cause notice, issuance of---Show-cause notice was issued to employee by General Manager for action under Regln. 59(5) of Pakistan National Shipping Corporation (Service) Regulations, 1965 without the prior approval of Competent Authority---Notice, in such circumstances was held void and subsequent proceedings declared without jurisdiction.

PLD 1966 SC 253; PLD 1996 Quetta 31; 1994 SCMR 2232; PLD 1958 SC (Pak.) 104; AIR 1942 FC 3; PLD 1973 Lah. 188; PLD 1974 :SC 139 and 1971 Law Notes Lahore 395 ref.

---- No limitation would run against the void order.

PLD 1958 SC (Pak.) 104 and 1997 MLD 2473 ref.

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

----Ss.15 & 22-A(8)(g)---Unfair labour practice by employers---Jurisdiction of National Industrial Relations Commission---Case having been based on allegation of unfair labour practice falling within ambit of S.15 of Industrial 1969, National Industrial Relations Commission had exclusive jurisdiction---Section 2-A of Service Tribunals Act, 1973 was only applicable to employees of Government Controlled Corporations with regards to the terms and conditions of service---National Industrial Relations Commission would continue toe exercise its jurisdiction under Industrial Relations Ordinance, 1969 as allegations of unfair labour practice had been alleged m the case.

PLD 1988 SC 53; 1999 PLC 57; PLD 1976 Lah. 611; 1993 SCMR 1837 and 1999 PLC 187 ref.

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

----S.O.15---Major penalty of removal from service-- Employee was removed from service on allegation that he spent more amount on medical treatment---Allegation which remained unproved, otherwise found to be frivolous and without force because medical treatment was taken on prescription of the doctor---Employers had failed to mention what action had been taken against the doctor who had prescribed the medicine as access to medical treatment responsibility lay on the shoulders of the doctor and not on the workman---If any action at all was to be taken against the workman if any, and permitted by rules could be deducted from the wages of the workman, but not a major penalty of removal from service could be imposed on him especially when neither a proper show-cause notice was issued to the workman nor inquiry was conducted against him and no opportunity of personal hearing was given to workman which was contrary to principle of natural justice.

1994 SCMR 2232; PLD 1964 SC 64; 1971 CLC 201; 1997 CLC 1475, 1993 SCMR 455; PLD 1966 SC 536; PLD 1979 Kar. 257; PLD 1965 SC 90 and PLD 1977 Lah. 234 ref.

Syed Ashfaque Hussain Rizvi for Petitioner.

Faisal Arab for Respondents.

Date of hearing: 6th November, 1999.

PLC 2003 NATIONAL INDUSTRIAL RELATIONS COMMISSION 301 #

2003 P L C 301

[National Industrial Relations Commission]

Before Qazi Ahmed Saeed, Member

IBADAT KHAN and 6 others

Versus

NORTHERN AREAS TRANSPORT CORPORATION (NATCO) through Deputy Manager, Islamabad and others

Cases Nos.4A(443) and 24(547) of 1997, decided on 21st September, 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)---Termination of services---Unfair labour practice by employers, proof of---Employees in their petition filed after more than one year from termination of their services had alleged that their services had been-terminated due to their lawful trade union activities which amounted to unfair labour practice on the part of employers---Employees had failed to cite any specific instance of alleged lawful trade union activities in their petition or in their affidavits in evidence which could annoy employers to such an extent that they would go out of their way to victimize employees, particularly when petitioners-Union was not a Collective Bargaining Agent which was supposed to be dormant till such time when same was elected as a Collective Bargaining Agent---Mere allegation that employees were office-bearers and members of union and they had been terminated due to their trade union activities, would not prove the case of employees---Employers had proved that services of employees were terminated due to closure of workshop as per decision of their Board of Directors---National Industrial Relations Commission, in circumstances, had no jurisdiction to interfere with the matter, because jurisdiction of the Commission was restricted to .cases based on allegation of unfair labour practice.

Iftikhar Ahmed's case PLD 1988 SC 53; 1991 PLC 876; 1988 PLC 923; 1988 PLC 419 and 1994 PLC 31 ref.

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

----S.15---Unfair labour practice by employers---Factors---Malice or mala fide action though would constitute a very strong ingredient of unfair labour practice, but malice only would not constitute unfair labour practice.

----Ss.15 & 22-A(8)(g)---Jurisdiction of National Industrial Relations Commission---National Industrial Relations Commission had jurisdiction to interfere only if a case would fall within ambit of S.15 of Industrial Relations Ordinance, 1969 and nothing beyond that---Said provision of law had provided redress of grievance arising out of victimization on account of trade union activities and no other victimization even if proved was actionable by National Industrial Relations Commission in exercise of its jurisdiction under S.22-A(8)(g) of Industrial Relations Ordinance, 1969.

Malik Meharban for Petitioners.

Abdul Hafeez Amjad for Respondents.

PLC 2003 NATIONAL INDUSTRIAL RELATIONS COMMISSION 344 #

2003 P L C 344

[National Industrial Relations Commission]

Before Qazi Ahmed Sdeed, Member

Syed AZFAR ALI RIZVI and 5 others

Versus

PRINTING CORPORATION OF PAKISTAN (PVT.) LTD., ISLAMABAD through Managing Director and another

Cases Nos.4A(50) and 24(87) of 2000, decided on 27th September, 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)---Termination of service---Unfair labour practice by employers---Petition against stay order--Petitioner's/employees in their petition filed under S.22-A(8)(g) of Industrial Relations Ordinance, 1969 had challenged orders/notices of termination of their services issued by respondents/employers, alleging that they had been victimized on account of their trade union activities which amounted to unfair labour practice by employers---Petitioners had miserably failed to make out a case of unfair labour practice against employers because they had not cited any specific instance of lawful trade union activity which would annoy employers to such an extent that they would go out of the way to victimize them---Mere allegation that petitioners were active members of Trade Union and were persuaded by respondents/employers to quit their lawful trade union activities and when petitioners refused to do so they were victimized by respondents, did not prove the case of petitioners, particularly when they failed to mention the name of person who pressurized them or to quote any specific instance of lawful trade union activity---Mere wild and bald allegation of unfair labour practice was not sufficient to prove victimization and make their case amenable to interference by National Industrial Relations Commission---Respondents had rightly contended that alleged orders/notices of termination of services were issued in compliance with decision and order of Federal Government on the ground that petitioners were employed on political grounds in violation of prescribed procedure---National Industrial Relations Commission having no jurisdiction to deal with the petition, same was dismissed and stay order issued in favour of petitioners, was recalled.

1996 SCMR 413; 1999 SCMR 1009 and 1999 PLC 57 ref.

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

----Ss.15 & 22-A(8)(g)---Unfair labour practice by employers---Jurisdiction of National Industrial Relations Commission---National Industrial Relations Commission had jurisdiction to interfere only if a case would fall within ambit of S.15 of Industrial Relations Ordinance, 1969 and not beyond--Provision of S.15 of Industrial Relations Ordinance, 1969 had provided redress of grievance arising out of victimization on account of trade union activities only---No other victimization even if proved, was actionable by National Industrial Relations Commission in exercise. of jurisdiction provided by S.22-A(8)(g) of Industrial Relations Ordinance 1969.

Iftikhar Ahmed's case PLD 1988 SC 53; 1991 PLC 876; 1988 PLC 923; 1988 PLC 419 and 1994 PLC 31 ref.

Malik Meharban, Representative for Petitioners.

Mian Muhammad Yousaf for Respondents.

PLC 2003 NATIONAL INDUSTRIAL RELATIONS COMMISSION 352 #

2003 P L C 352

[National Industrial Relations Commission]

Before Qazi Ahmed Saeed, Member

SAJID MEHMOOD, RADIO OPERATOR, OIL AND GAS DEVELOPMENT COMPANY LTD., ISLAMABAD and 18 others

Versus

MANAGING DIRECTOR, OIL AND GAS DEVELOPMENT COMPANY LTD. and another

Case No.4A(62) of 2001, decided on 30th December, 2002.

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

----Ss.15 & 22-A(8)(g)---Appointment on regular basis---Unfair labour practice by employers---Petition against---Respondent-Company (employers) advertised 15 posts of Radio Operators prescribing maximum age limit of 30 years among other qualifications---Petitioners who were ex-servicemen and were already working in respondent-Company as Radio Operators on work-charge basis for the last 5 to 10 years, had claimed that they were entitled to be considered for appointment against posts advertised by respondent-Company---Petitioners in their petition filed under S.22-A(8)(g) of Industrial Relations Ordinance, 1969 had prayed that respondent-Company be directed not to commit unfair labour practice and not to recruit outsiders against existing. vacancies of Radio Operators---At time of appointment of petitioners upper age limit was fixed 35 years, but for the posts of Radio Operators so advertised, tipper age limit had been prescribed as 30 years which according to petitioners was deliberate act on part of respondent-Company to deprive petitioners from applying for newly created posts---In terms of statutory notification issued by Establishment Division subsequently, relaxation in upper age limit in case of ex-servicemen for initial appointment in respondent-Company had been raised from 10 to 15 years ---Respondent-Company would not he adversely affected if petitioners were allowed the benefit of said statutory notification and were considered for appointment against advertised posts especially when such posts had not yet been filled up---Upper age limit of 30 years shown in advertisement was not bona fide as previously upper age limit was 35 years and period .of service already served by petitioners had been ignored---Petitioners, in circumstances, had succeeded in proving unfair labour practice on the part of respondentCompany---Respondent-Company was directed not to prepare, sign or issue any appointment letter-order to any outsider against posts of Radio Operators for which petitioners had submitted their applications and that petitioners be considered for appointment on regular basis against said posts.

PLD 1961 SC 479: PLD 1965 SC 420; 2000 PLC (C.S.) 796; 1991 SCMR 2216: 1998 SCMR 882; 1990 SCMR 1539: 2000 SCMR 879; 1998 PLC (C.S.) 53: 1987 PLC 358; AIR 1976 SC 98; 1994 PLC 747; 199,9 PLC 57: 1998 SCMR 2129 and 1993 PLC 1626 ref.

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

----S. 22-A(8)(g)---Jurisdiction of National Industrial Relations Commission---Despite insertion of S.2-A in Service Tribunals Act, 1973, jurisdiction of National Industrial Relations Commission would remain intact under S.22-A(8)(g) of Industrial Relations Ordinance, 1969---Provision of S. 2-A of Service Tribunals Act, 1973 being not applicable to the facts of the case. assumption of jurisdiction by National Industrial Relations Commission, was valid.

Ch. Sadiq Muhammad Warraich for Petitioners.

Mushtaq Hussain Bhatti for Respondents

PLC 2003 NATIONAL INDUSTRIAL RELATIONS COMMISSION 361 #

2003 P L C 361

[National Industrial Relations Commission]

Before Qazi Ahmed Saeed, Member

NATIONAL BANK OF PAKISTAN EMPLOYEES' UNION (REGD.), PESHAWAR through Secretary-General

Versus

NATIONAL BANK OF PAKISTAN EMPLOYEES' UNION, MALAKAND DIVISION (MARDAN REGION), REGIONAL OFFICER MARDAN through General Secretary and 2 others

Cases Nos. 19(3) and 24(75) of 2002, decided on 17th January, 2003.

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

----S.10---Cancellation of registration of Trade Union---Trade Union having been registered by Registrar of Trade Unions concerned, power of cancellation of registration of Trade Unions, would be with said Registrar of Trade Unions or concerned Labour Court as laid down under' S.10 of Industrial Relations Ordinance, 1969.

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

----Ss.10 & 22-EE---Determination of Collective Bargaining Units in establishment-- National Industrial Relations Commission had determined/certified five Collective Bargaining Units in National Bank of Pakistan and said arrangements were allowed to be continued different orders---Registration/certification of another Collective Bargaining Agent and approval of elections of officers thereof by Registrar of Trade Unions subsequently, was violative of order determining said five Collective Bargaining Units in National Bank which would contravene provision of S.22-EE(3) of Industrial Relations Ordinance, 1969, as Registrar of Trade Unions had no power to register other Collective Bargaining Agent for a part of said five, units---Registrar of Trade Unions, in circumstances had contravened provisions of S.22-EE(3) of Industrial Relations Ordinance, 1969---Registrar of Trade Unions was directed to move a complaint under S.10 of Industrial Relations Ordinance, 1969 before Labour Court concerned for cancellation of registration of said other Collective Bargaining Agent.

Messrs Jang Publication Ltd. v. Registrar of Trade Unions and another PLD 1984 Kar. 292 ref.

Mailk Meharban, Representative for Applicant.

S. Rais Ahmed Jafri for Respondent No. 1.

Liaquat Ali, Senior Clerk for Respondent No.2.

Syed Nasir Ahmed for Respondent No.3.

PLC 2003 NATIONAL INDUSTRIAL RELATIONS COMMISSION 368 #

2003 P L C 368

[National Industrial Relations Commission]

Before Ali Nawaz A. Channa, Member

SHUJAUDDIN

Versus

TRUSTEES OF PORT OF KARACHI through Secretary, Board of Trustees

Cases Nos.4A(52) and 24(50) of 2001‑K, decided on 27th March, 2003.

Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑Ss. 15 & 22‑A(8)(g)‑‑‑National Industrial Relations Commission (Procedure and Functions), Regulations. 1973, Regin. 32(2)(c)‑‑‑Petition against unfair labour practice‑‑‑Charge‑sheet was served upon employee on allegation that he obtained two advance increments by producing bogus Matriculation Certificate‑‑‑Employee, in his petition filed under S. 22‑A(8)(g) of Industrial Relations Ordinance, 1969, had challenged issuance of said charge‑sheet alleging that lie had been victimized for his trade union activities and employee had prayed that action of employers be declared act of unfair labour practice and that employee should not be punished on faire charge against him‑‑‑Evidence on record had proved that employee had produced bogus certificate on basis of which he had obtained two advance increments which amount he had neither refunded to the employers nor he offered to refund same which certainly was misconduct on part of employee‑‑‑Employers, in circumstances, were within their rights to hold inquiry against employee and take appropriate action against him according to law‑‑‑Even otherwise employee had not given instances of alleged unfair labour practice on part of employers‑‑‑Employee had also failed to quote activities which he performed for the trade union which specifically annoyed the employers‑‑‑In absence of said particulars, employee could not maintain his petition on ground of unfair labour practice by the employers.

Ch. Muhammad Ashraf Khan for Petitioner.

Faisal Mahmood Ghani for Respondents.

PLC 2003 NATIONAL INDUSTRIAL RELATIONS COMMISSION 378 #

2003 P L C 378

[National Industrial Relations Commission]

Before Riaz-ul-Hassan Alvi, Member

MUSLIM COMMERCIAL BANK LIMITED through Executive Vice-President and Divisional Head

Versus

MAHMOOD ALAM NIAZI

Cases Nos.4A (67) of 2000 and 24 (112) of 2000, decided on 11th February, 2002.

Industrial Relations Ordinance (XXIII of 1969)---

----Ss.22-A(8)(g)---Banking Companies Ordinance (LVII of 1962), S.27(b)--Petition against unfair labour practice---Disciplinary proceedings were initiated against respondent who was working as an Assistant in the Bank and he was dismissed from service after charge-sheeting him--Employee challenged validity of his dismissal order before Labour Court where matter was sub judice---Employee had alleged that he had been falsely implicated in the case only to kick him out of servicebecause of his trade union activities and had claimed that under S.7 of Industrial Relations Ordinance, 1969 he was legally competent to remain as office-bearer of trade union---Validity---Tenure of Trade Union had already expired and it was not the case of employee that he had been elected again as office-bearer of the union---Employee had been dismissed from service of the Bank and under S.27(b) of Banking Companies Ordinance, 1962 as amended by Banking Companies (Amendment) Act, 1997 he being the outsider could not become member or office-bearer of trade union of the Bank---Employee being an outsider, National Industrial Relations Commission neither needed to probe farther into merits of case nor to record evidence---Request of---Bank being genuine was allowed.

PLC 2003 NATIONAL INDUSTRIAL RELATIONS COMMISSION 391 #

2003 P L C 391

[National Industrial Relations Commission]

Before Muhammad Zaman Qureshi, Chairman, Abdul Rashid Khan and Nabi Bakhsh Bhatti, Members

STATE BANK OF PAKISTAN through General Secretary

Versus

THE DEMOCRATIC WORKERS' UNION, STATE BANK OF PAKISTAN through General Secretary and another

Appeal No.12(167) of 1997/L, decided on 10th June, 1998.

Industrial Relations Ordinance (XXIII of 1969)---

----Ss. 22-D & 22-EE---Collective Bargaining Unit---Procedural requirements---Appeal before National Industrial Relations Commission--Requirement of provisions of S.22-EE of Industrial Relations Ordinance, 1969, were that National Relations Commission should satisfy itself as to the necessity and feasibility of determining one or more Collective Bargaining Units after holding such inquiry as it deemed fit---Provisions of S.22-EE of the Ordinance did not at all impose any procedural requirements for the purpose of recording of evidence and had excluded by implication the application of the principles of natural justice---Enquiry contemplated under S.22-EE was not to be equated with a trial involving framing of issues and recording of evidence---In proceedings under said S.22-EE of Industrial Relations Ordinance, 1969, although the employer was impleaded as pro forma respondent, but the employer could not be allowed to object to the determination of one or more Collective Bargaining Units because it was a matter purely between the union who represented the workers.

1976 CLC 585 and 1988 PLC 894 ref.

Ch. Shabbir Ahmad for Appellant.

Sh. Abdul Hamid for Respondent No. 1.

Rehan Nawaz for Respondent No.2.

Date of hearing: 12th May, 1998.

PLC 2003 NATIONAL INDUSTRIAL RELATIONS COMMISSION 408 #

2003 P L C 408

[National Industrial Relation Commission]

Before Muhammad Zaman Qureshi, Chairman

PAK AMERICAN FERTILIZERS LTD. through Senior Manager (IR)

Versus

EMPLOYEES UNION (CBA) PAK AMERICAN FERTILIZERS LTD. Through General Secretary and another

Case No.4A(2593)/96-L, decided on 15th April, 1999.

Industrial Relations Ordinance (XXIII of 1969)---

----S.16.22-A(8)(g), 22-C & 53(2)(3)(4)---Unfair labour practice of office bearers of union and other employees---Petition before National Industrial Relations Commission---Settlement was signed by management and Collective Bargaining Agent for a period of two years whereby it was agreed that no financial demand would be raised by employees during. the currency of said agreement---Employees despite said agreement raised certain demands and in order to press their demands held meeting of the union within factory premises and incited the workers to compel the management for acceptance of their demands---Employees during working hours held strike besides bringing procession, extended threats to the officers of the management that if their demands were not accepted they would be physically injured--Employees had also hurled abuses at Managing Director---Allegations against employees had fully been proved by witnesses whose evidence was not shaken in cross-examination---Employee having been found committing acts of unfair labour practice and were punished accordingly.

Ijaz Rahim for Petitioner.

H.R. Haider for Respondents.

Date of hearing: 25th March, 1999.

PLC 2003 NATIONAL INDUSTRIAL RELATIONS COMMISSION 418 #

2003 P L C 418

[National Industrial Relations Commission]

Before Qazi Ahmad Saeed, Member

MUHAMMAD JAVED KHAN, MANAGER (ADMIN), ARMY WELFARE TRUST

Versus

SHAHID TANVEER and 8 others

Case No. 7 (15) of 2002, decided on 18th April, 2003.

Industrial Relations Ordinance (XCI of 2002)---

----S.51---Industrial Relations Ordinance (XXIII of 1969), S.1(3)(a)--Petition/complaint---Maintainability---National Industrial Relations Commission, in its order passed under S.22-A(8)(g) of Industrial Relations Ordinance, 1969 had found that establishment being connected with and incidental to Armed Forces, was covered by exemption prescribed in S.1(3)(a) of Industrial Relations Ordinance, 1969 and its employees were excluded from the application of said Ordinance and that act of employees of forming and registration of Labour Union in the establishment was against law and violative of said Ordinance---Employees having violated said order passed by National Industrial Relations Commission, Manager of the establishment had filed petition/complaint---Maintainability of said complaint was challenged by employees contending that in terms of order passed by National Industrial Relations Commission, employees of the complainant establishment having been excluded from provisions of Industrial Relations Ordinance, 1969, National Industrial Relations Commission had no jurisdiction to entertain said petition/complaint---Establishment had challenged applicability of Industrial Relations Ordinance, 1969 to its employees and not the functions or power of National Industrial Relations Commission---Commission had the jurisdiction to entertain petition/complaint and it was for the Commission alone to initiate contempt proceedings against respondents for violating and disobeying its orders--Petition/complaint for contempt of Court filed by petitioner was based on allegation of disobedience and violation of order/judgment of National Industrial Relations Commission---Petition was maintainable/competent before. National Industrial Relations Commission---Objection with regard to maintainability and competency of petition/complaint, was rejected.

Mumtaz Hussain Malik for the Complainant.

Malik Meharban for Respondents.

PLC 2003 NATIONAL INDUSTRIAL RELATIONS COMMISSION 426 #

2003 P L C 426

[National Industrial Relations Commission]

Before Ali Nawaz A. Channa, Member

HASHMI CAN COMPANY EMPLOYEES' UNION through General Secretary

Versus

HASHMI CAN COMPANY LTD. through Managing Director and 2 others

Cases Nos. 4A(235)/2000-K and 24(238)/2000-K, decided on 23rd May 2003.

Industrial Relations Ordinance (XXIII of 1969)---

----S.22-A(8)(g)---National Industrial Relations Commission (Procedure and Functions) Regulations, 1973, Regln.32(2)(c)---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.11-A---Closing down the establishment---Petition against unfair labour practice by employer---Order closing establishment passed by Labour Court on application of employer after hearing the parties had been challenged by union alleging that order of closure of establishment was passed by Labour Court with a view to get rid of union---Directions sought by petitioner-union were in nature of declaration, which was beyond scope of jurisdiction of National Industrial Relations Commission as the Commission for it had no jurisdiction to give directions to employer to re-employ retrenched employees or not to employ fresh employees---Retrenched employees had to approach the Labour Court which had granted permission to close down the establishment---Employees either should have approached Labour Court concerned for contempt of Court or for criminal offence or should approach the proper Labour Court for reinstatement. in service on ground of re-employment---Union having not given any instance of alleged unfair labour practice on part of the establishment, petition under S.22 A(8)(g) of Industrial Relations Ordinance, 1969 was not maintainable---If after closure of establishment it had re-employed the employees, the remedy for petitioners was to file contempt application or any other proceedings permissible by law before Labour Court which had granted permission to close down establishment, but on basis of such prayer petition under S.22-A(8)(g), Industrial Relations Ordinance, 1969 could not be filed.

M.A.K. Azmati for Petitioner.

Faisal Mahmood Ghani for Respondents.

PLC 2003 NATIONAL INDUSTRIAL RELATIONS COMMISSION 455 #

2003 P L C 455

[National Industrial Relations Commission]

Before Qazi Ahmed Saeed, Member

MUHAMMAD ASHRAF and 10 others

Versus

GHARIBWAL CEMENT LIMITED through General‑Manager

Cases Nos. 4A(1) of 2003 and 24(1) of 2003, decided on 30th May, 2.003

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

‑‑‑‑O.XXXIX, Rr.1 & 2‑‑‑Interim relief, grant of‑‑‑ingredients‑‑‑Court before granting interim relief, must satisfy itself whether there existed any prima facie case in favour of person seeking interim relief‑‑‑Court must also examine the concept of convenience/inconvenience of parties and irreparable loss likely to be suffered by applicants in case of refusal to grant interim relief.

(b) Industrial Relations Ordinance (XCI of 2002)‑‑‑--

--‑‑‑Ss.49(4)(e) & 63(b),(c)‑‑‑Unfair labour practice by employers‑‑‑Interim relief, grant of‑‑‑Present case being based on allegations of unfair labour practice, it had to he seen whether allegations made by petitioners, coupled with other material available on record, prima facie disclosed commission of any unfair labour practice on the part o: employer, because exercise of jurisdiction of National Industrial Relations Commission, depended only on such finding‑‑‑Case of petitioners rested on bald allegation that impugned action of respondent‑Management was result of trade union activities‑‑‑No prima facie case of commission of alleged unfair labour practice existed in favour of petitioners as it could not be said on the basis of record and attending circumstances that impugned action of the Management was motivated due to trade union activities or that it was intended to prevent petitioners from performing their said activities‑‑‑No prima facie case of commission of any unfair labour practice existed in circumstances‑‑‑Balance of convenience also did not seem to lie in favour of petitioners insofar as it w ac the terms and conditions of workers employed in establishment that they could be transferred and posted anywhere in the factory‑‑‑Employer had an inherent right to transfer his employees from one place of working to another keeping in view administrative requirements‑‑‑Employer in written statement had categorically assured that it did not intend to demote or remove from service any of its employees‑‑‑Stay application filed by petitioners was also hit by provisions of S.49(4)(e) of Industrial Relations Ordinance, 2002 which provided that no interim relief could be granted unless there was a pendency of an industrial dispute‑‑‑Assertion that Management had gone to seek permission for closure of factory, would not amount to raising of industrial dispute‑‑‑Petitioners having failed to make out any prima facie case of unfair labour practice and other necessary ingredients of balance of convenience/inconvenience and likelihood of irreparable loss also going against petitioners their application for grant of interim relief was dismissed and ad interim status quo order earlier issued was recalled.

Abdul Hafeez Amjad for Petitioners.

Syed Kazim Hussain Kazmi for Respondent.

Peshawar High Court

PLC 2003 PESHAWAR HIGH COURT 118 #

2003 P L C 118

[Peshawar High Court]

Before Nasir‑ul‑Mulk and Tariq Parvez, JJ

CHIEF MECHANICAL ENGINEER, LOCOMOTIVE FACTORY, RISALAPUR and 2 others

Versus

CHAIRMAN, LABOUR APPELLATE TRIBUNAL, N.‑W.F.P., PESHAWAR and another

Writ Petitions Nos.87d to 873 of 2000, decided on 16th May, 2002.

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

‑‑‑‑S.2‑A‑‑‑Civil Servants Act (LXXI of 1973), Ss.2(1)(b) & 2(1)(b)(iii)‑‑Federal Government Employees‑‑‑Application of S.2‑A of Service Tribunals Act, 1973‑‑‑Scope‑‑‑Employees of Federal Government if not falling within scope of S.2‑A of Service Tribunals Act, 1973 and definition of civil servant in S.2 of Civil Servants Act, 1973, then exception thereto would still be valid‑‑‑Such employees being workmen as defined in S.2(1)(b) of civil servants Act, 1973, would not be considered as civil servant for purposes of Service Tribunals Act, 1973.

Syed Aftab Ahmad v. K.S.C.E. 1999 SCMR 197 and S. Zafar Ijaz v. Chairman, Steel Mills Corporation 1998 PLC (C.S.) 777 ref.

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

‑‑‑‑S.25‑A‑‑‑Railways Act (IX ‑of 1890), S.3‑‑‑Province of West Pakistan (Dissolution) Order (1 of 1970), Art. 7(a)(3)‑‑‑Grievance petition by employee of Pakistan Railways‑‑‑Maintainability‑‑‑Pakistan Railways is a Department of Federal Government, as such its employees hold posts in connection with affairs of Federation‑‑‑Pakistan Railways not an Authority, Corporation, Body or Organization within meaning of S.2‑A of Service Tribunals Act, 1973‑‑‑Employees of Pakistan Railways are either civil servants within meaning of S.2(1)(b) of Civil Servants Act, 1973 or fall within exception, thereto including S.2(1)(b)(iii)‑‑‑Employees of Pakistan Railways being employees of Federal Government for purpose of redressal of grievance regarding terms and conditions of service would be unaffected by addition of S.2‑A in Service Tribunals Act, 1973‑‑‑Contested employee, if found to be workman, then Labour Court would have jurisdiction to entertain grievance petition.

S. Zafar Ijaz v. Chairman, Steel Mills Corporation 1998 PLC (C.S.) 777; Zaheerullah v. Chairman, WAPDA 2000 SCMR 826 and Dr. Muhammad Arsala v. Chancellor, Quaid‑e‑Azam University 2000 SCMR 181 ref.

Ejaz Anwar for Appellants.

Date of hearing: 11th March, 2002.

PLC 2003 PESHAWAR HIGH COURT 272 #

2003 P L C 272

[Peshawar High Court]

Before Qazi Ehsanullah Qureshi, J

SARFARAZ KHAN

Versus

GENERAL MANAGER, ENGLISH SOAP AND COSMETIC COMPANY, SWAT

Appeal No. 102 of 1999, decided on 4th April, 2003.

Industrial Relations Ordinance (XXIII of 1969)‑--

‑‑‑‑S. 25‑A‑‑‑Industrial Relations Ordinance (XCI of 2002), S. 80(2), (a), (b), (c) & (d)‑‑‑General Clauses Act (X of 1897), Ss. 6 & 24‑‑‑Constitution of Pakistan (1973), Art.247(3)‑‑‑Forum of appeal‑‑‑Industrial Relation Ordinance, 1969 having been repealed new Industrial Relations Ordinance 2002 had been promulgated but had not been extended to the Provincially Administered .Tribal Areas as per requirement of Art. 247(3) of the Constitution‑‑‑In absence of extension of Ordinance of 2002 to the Provincially Administered Tribal Areas presumption would be that the extension of the Industrial Relations Ordinance, 1969 to the Provincially Administered Tribal Areas had not been repealed and was still in the field‑‑Appeal on the subject pertaining to Provincially Administered Tribal Area would lie to the Labour Appellate Tribunal till extension of the new enactment to the Provincially Administered Tribal Areas.

Gul Zamin v. Sarfaraz Khan 1984 SCMR 374 fol.

PLC 2003 PESHAWAR HIGH COURT 287 #

2003 P L C 287

[Peshawar High Court]

Before Shahzad Akbar Khan, J

GENERAL MANAGER, PEARL CONTINENTAL HOTEL, PESHAWAR

Versus

Raja GHAZANFAR ALI

Appeal No.2 of 2000, decided on 17th March, 2003.

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

----S.25-A---Ex parte proceedings---Employee aggrieved of his dismissal from service filed grievance petition before the Labour Court who ordered his re-instatement in service after observing that the ex parte inquiry conducted against him was improper---Validity---Employee did not appear on the adjourned date in the inquiry proceedings---Inquiry Officer, on failure to appear was required to have issued a notice to the employee for the next date fixed for inquiry---Ex parte proceedings were not justified and the Labour Court had rightly rejected the inquiry conducted against the employee.

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

----S.25-A---Inquiry Officer, status of---Admission by the Inquiry Officer in his statement that he had personally seen the employee shouting, calling names and raising slogans against the management made him an eyewitness---By no canon of fairness it could be accepted that an eye-witness should be appointed as Inquiry Officer---Inquiry, in circumstances, was not legal and had cause prejudice to the employee---Impugned order of dismissal from service was set aside.

1967 PLC 446; 1979 PLC 118; 1976 PLC 8 and 1976 PLC 779 ref.

----S.25-A---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.15(3)---"Workman"--Connotation---Conduct of employer---Employee was proceeded against under Labour Laws within the purview of S.O.15(3) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 by the employer who adjudged him of guilty of misconduct and dismissed him from service with immediate effect---Validity---Employer/appellant having failed to bring on record any evidence that it had the authority to proceed against any worker, dismissal was not justified.

Swissair Transport Co. Ltd., Karachi v. Malik Ghulam Hussain and 2 others 1980 PLC 312 and Dost Muhammad Cotton Mills Ltd., Karachi v. Muhammad Abdul Ghani and another PLD 1975 Kar. 342 rel.

Shamail Ahmad Butt for Appellant.

Waqar Ahmad Seth for Respondent.

Date of hearing: 17th March, 2003.

PLC 2003 PESHAWAR HIGH COURT 297 #

2003 P L C 297

[Peshawar High Court]

Before Shehzad Akbar Khan, J

ABDUL LATIF and 103 others

Versus

GENERAL MANAGER, PAKISTAN RAILWAYS and 2 others

Labour Appeal No.35 of 2000, decided on 28th April, 2003.

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

----S.25-A---Payment of Wages Act (IV of 1936), Ss.2(vi) & 15---Factories Act (XXV of 1934), S.47---Grievance petition, maintainability of--Employees in their grievance petition had alleged that they were doing the job of removing electric faults in moving train and had to remain on duty with train and perform their duties beyond eight hours, but they were not paid any overtime to which they were entitled---Labour Court returned grievance petition to employees holding that as claim of employees had bearing/nexus with wages as defined, in S.2(vi) of Payment of Wages Act, 1936, it was for the Commissioner of Payment of Wages to give his verdict in the matter---Validity---Powers of Commissioner under S.15 of Payment of Wages Act, 1936 were limited only to the claims out of deduction from wages or delay in payment of wages and penalty for malicious or vexatious claims and Commissioner could only decide matter when employers were earlier paying the overtime to employees and subsequently it was either deducted or delayed---Employees, in the present case having never been given extra allowance, it was within jurisdiction of Labour Court to determine claim of employees which was their guaranteed right within meaning of S.47 of Factories Act, 1934---Labour Court, in circumstances, had jurisdiction to resolve controversy between the parties and Commissioner being possessed of very limited powers enumerated in S.15(1) of Payment of Wages Act, 1936, had no jurisdiction to decide the matter in dispute---Labour Appellate Tribunal allowing appeal against judgment of Labour Court, remanded case to it with direction to proceed with matter in accordance with law to decide afresh on merits.

Waqar Ahmad Seth for Appellants.

Zafar Javaid Durrani for Respondents.

Date of hearing: 28th April, 2003.

PLC 2003 PESHAWAR HIGH COURT 316 #

2003 P L C 316

[Peshawer High Court]

Present: Mian Shakirullah Jan, CJ

MUHIB ALI

Versus

CHAIRMAN, STATE LIFE INSURANCE CORPORATION OF PAKISTAN and 6 others

Labour Appeals Nos.50 to 53 of 2001, decided on 17th March, 2003.

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

----S.25-A---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S. O. 12 --- Termination of services---Reinstatement---Back-benefits, entitlement to---Services of employees were terminated straightaway on ground that they were recommended by Prime Minister's Secretariat and they were termed as "political appointees'---On tiling grievance petition by employees against said termination, Labour Court declared termination Order as illegal and reinstated employees in service, but without any order with regard to back benefits at employees---Labour Court had declared order of termination of employees as illegal because in terminating employees, legal formalities in term of show-cause notice and enquiry into matter, were not observed by employers---When the Labour Court had declared termination of employees as illegal, void, ab initio, it was incumbent upon it to have allowed back benefits to employees as a natural corollary because employees remained out of service/job during period of their termination without any fault on their part---No evidence was on record to the effect that employees joined any service of other Firms/Establishments during period of their termination from service---Employees were granted full back-benefits, in circumstances.

Ijaz Anwar for Appellant.

Muhammad Ali Khan for Respondents.

Date of hearing: 17th March, 2003.

Quetta High Court Balochistan

PLC 2003 QUETTA HIGH COURT BALOCHISTAN 330 #

2003 P L C 330

[Quetta High Court]

Before Muhammad Nadir Khan, J

Messrs BALOCHISTAN ENGINEERING WORKS LTD. through Notified Factory Manager

Versus

MUHAMMAD SALMAN and others

Labour Appeals Nos.28 to 39 of 2002, decided on 25th March, 2003.

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

----S.25-A---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.13---Grievance petition--Retrenchment of employees on ground of re-organization---Services of employees having been terminated on ground of re-organization by way of retrenchment, employees filed grievance petitions against their termination and Labour Court accepting the same declared the termination orders as illegal, bad in law-and employees were ordered to be re-instated in service with back-benefits---Case of employer establishment was that establishment was facing 'acute financial crises and economic recession dye to surplus manpower and for that reason Collective Bargaining Agent and establishment had entered into agreement introducing Golden Handshake Scheme whereby 42 employees were to be relieved---Establishment stated that 30 employees voluntarily opted for Golden Handshake Scheme and others who were not willing to leave under said scheme, were removed in accordance with relevant clause of Settlement---Only document which had been produced by the establishment in support of alleged re-organization was a table showing department-wise reorganization---Neither table of re-organization nor alleged agreement arrived at between Collective Bargaining Agent and establishment, had provided any justification for reduction of workers as both were silent about actual requirement of workers in different Departments--Establishment was required to prove that quantum of works in each Department justified reduction of workers as per tale and surplus staff/workers were to be removed, but no such evidence could be placed on record---Even otherwise establishment wherein employees were employed was one of the four companies managed by one and same group and appointment letter issued to each employee had specifically stated that his services were transferable to any company of the group and it had shown that all companies were part and parcel of one and same establishment and services of employees were transferable to other companies of the group---Nothing was on record to show that there was no room in other companies to adjust these employees---Establishment could not prove that it was facing financial crises and economic recession justifying retrenchment/removal of employees from service---Only reason for removal of employees being mala fides on part of establishment, Labour Court had rightly declared termination orders to be illegal and bad in law---Employees were rightly reinstated in service with full back-benefits.

M. Siddique Zahid v. Pakistan Environmental Planning and Architectural Consultants Ltd. 1983 PLC 302 ref.

(b) Industrial Relations Ordinance (XXIII of1969)---

----S.22---Collective Bargaining Agent, function of---Prime duty of Collective Bargaining Agent Union was to safeguard the terms and conditions of workmen and to make all efforts for their welfare and betterment but not to deprive them of their basic right of employment.

District Manager, Karachi Transport Corporation v. Ghulam Younis and others 1992 PLC 761 ref.

----S.O.13---Retrenchment---Removal of permanent worker and at the same time confirmation of temporary worker, was against the very spirit of S. O. 13 of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 as by no stretch of imagination a temporary employee could be considered to be having preferential right over a permanent employee.

Shakeel Ahmed for Appellant.

Azam Jan Zarkoon for Respondents.

Date of hearing: 21st March, 2003.

Supreme Court

PLC 2003 SUPREME COURT 163 #

2003 P L C 163

[Supreme Court of Pakistan]

Present: Ajmal Mian, Sh. Ijaz Nisar and Sh. Riaz Ahmed, JJ

SHAHEEN AIRPORTS SERVICES

Versus

SINDH EMPLOYEES' SOCIAL SECURITY INSTITUTIONS and others

Civil Petition Nos.194‑K and 195‑K of 1997, decided on 17th November, 1997.

(On appeal from the common judgment dated 29‑4‑1997 of the High Court of Sindh, Karachi, passed in Miscellaneous Appeals Nos.46 and 47 of 1995).

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

‑‑‑‑Ss.20(1) & 23‑‑‑Provincial Employees' Social Security (Contribution) Rules, 1968, R.6‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑Contribution, increase in‑‑‑Petitioner employer contended that demand for increase of 50% amount under S.23 of Provincial Employees' Social Security Ordinance, 1965, read with R.6 of Provincial Employees' Social Security (Contribution) Rules, 1968, was not warranted by law as it could not be concluded that the petitioners failed to pay on the due date the contribution payable under S.20(1) of Provincial Employees' Social Security Ordinance, 1965‑‑‑Validity‑‑‑Leave to appeal was granted by Supreme Court to consider; whether the facts of the present case attracted the ratio decidendi of the judgment of Supreme Court in case titled M. Imamuddin v. Mst. Surriya Khanum through Legal Heirs, reported as PLD 1991 SC 317.

Shaheen Airport Services v. Sindh Employees' Social Security Institution 1994 SCMR 881 and M. Imamuddin v. Mst. Surriya Khanum through Legal Heirs PLD 1991 SC 317 ref.

Siddique Mirza, Advocate Supreme Court and Akhlaq Ahmed Siddiqui, Advocate‑on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing: 17th November, 1997.

PLC 2003 SUPREME COURT 164 #

2003 P L C 164

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Tanvir Ahmed Khan and Khalil‑ur‑Rehman Ramday, JJ

Messrs PACKAGES LIMITED

Versus

MUHAMMAD AKBAR and others

Civil Miscellaneous Application No.637‑L and Civil Petition No. 1810‑L of 2002, decided on 4th June, 2002.

(On appeal from the judgment/order dated 29‑5‑2002 passed by Lahore High Court, Lahore in I.C.A. No.445 of 2002).

Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑Ss. 2 (xxviii) & 15(2)‑‑‑Law Reforms Ordinance (XII of 1972), S.3 ‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Interim relief grant of‑‑Elections of trade union‑‑‑Candidate, whether a workman ‑‑‑Determination‑‑Findings of fact recorded by Registrar Trade Unions ‑‑‑Intra‑Court Appeal admitted for hearing but interim relief denied‑‑‑Candidature of the candidate was disputed on the ground that he was not a workman and fell within the category of junior executive‑‑‑After having recorded the evidence, the Registrar found that the candidate was capable to recommend to the Senior Store Officer disciplinary action against driver or worker etc. and besides he also performed all other duties which fell within the category of managerial type of assignments‑‑‑Registrar Trade Unions after hearing the parties and recording the evidence concluded that the candidate being junior executive was not workman and was not eligible to contest the election‑‑‑High Court allowed Constitutional petition tiled by the candidate and the findings of fact recorded by the Registrar were reversed‑‑‑Order passed by the High Court was assailed by filing Intra‑Court Appeal‑‑‑High Court admitted the Intra--Court Appeal for regular hearing but declined to suspend the impugned order‑‑‑Plea of the petitioner was that as the schedule of election had been announced by the Registrar, therefore, after the elections the Intra‑Court Appeal would become infructuous‑‑Validity‑‑‑Candidate was prima facie not a workman and High Court might not have substituted the findings of fact recorded by the Registrar Trade Unions‑‑‑Once the High Court had admitted the Intra‑Court Appeal it might have also suspended the order in the Constitutional petition after issuing notice for short date to the candidate‑‑High Court in Intra‑Court appeal by adjourning the case for a longer time had in fact denied grant of interim relief to the petitioner with the result that ultimately when the Intra‑Court Appeal would come up for hearing, it would become infructuous as in the meanwhile the election of the union would take place‑‑‑Supreme Court suspended the order passed by High Court in Constitutional jurisdiction‑‑‑Interim relief was granted.

Dilawar Jan v. Gul Rehman and 5 others PLD 2001 SC 149 ref.

Maqbool Ellahi Malik, Senior Advocate Supreme Court and Tanvir Ahmed, Advocate‑on‑Record for Petitioner.

Respondent No. 1 in person.

Date of hearing: 4th June, 2002.

PLC 2003 SUPREME COURT 324 #

2003 P L C 324

[Supreme Court of Pakistan]

Present: Mian Muhammad Ajmal, Muhammad Nawaz Abbasi and Karamat Nazir Bhandari, JJ

DILAWAR HUSSAIN

Versus

SENIOR RESEARCH OFFICER (DISEASES) and another

Civil Petition No. 1875 of 2001, decided on 4th October, 2002.

(On appeal from the judgment of Punjab Service Tribunal, Lahore, dated 10-5-2001 passed in Appeal No.2381/2000).

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

----S.15---Penal Code (XLV of 1860), Ss.191 & 193---Criminal Procedure Code (V of 1898), S.195(1)(b)---False evidence---Proof--Proceedings against such witness-- Procedure---Failure to establish ground of unfair labour practice taken by petitioner in support of his application before National Industrial Relations Commission would not be a valid ground to charge him for making false statement in judicial proceedings unless the petitioner would have been found guilty of such act by the concerned judicial authority.

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

----S.15---Punjab Civil Servants (Efficiency and Discipline) Rules, 1999, R.2(e)---Constitution of Pakistan (1973), Art.212(3)---Unfair labour practice---Failure to prove allegations before National Industrial Relations Commission---Misconduct committed by civil servant---On the allegation of unfair labour practice, the civil servant filed petition before National Industrial Relations Commission but the same was dismissed being not proved---Authorities proceeded against the petitioner under the provisions of Punjab Civil Servants (Efficiency and Discipline) Rules, 1999, for being guilty of misconduct and penalty of one step reduction was imposed upon him---Service Tribunal maintained the penalty imposed by the Authorities--Plea raised by the civil servant was that the Authorities found him guilty of misconduct without ascertaining correctness of affidavit filed by witness against the civil servant---Validity--Non-reading of statement of the witness by Inquiry Officer would amount to deprive the civil servant from fair chance of defence---Correctness or otherwise of affidavit was not ascertained either in judicial proceedings before National Industrial Relations Commission nor by Inquiry Officer to be used as .evidence in proof of charge which remained unproved---Supreme Court set aside the judgment passed by Service Tribunal and converted the petition for leave to appeal into appeal--Appeal was allowed.

Shah Abdur Rashid, Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for Petitioner.

Ch. Arshad Ali, Advocate Supreme Court and Rao Muhammad Yousaf, Advocate-on-Record (absent) for Respondents.

Date of hearing: 4th October, 2002.

PLC 2003 SUPREME COURT 327 #

2003 P L C 327

[Supreme Court of Pakistan]

Present: Irshad Hasan Khan, C.J., Ch. Muhammad Arif and Munir A. Sheikh, JJ

KARACHI HARBOUR SHIP'S CLEANING WORKERS' UNION

Versus

REGISTRAR OF TRADE UNIONS, GOVERNMENT OF SINDH

Civil Petition No.408-K of 2001, decided on 31st July, 2001.

(On appeal from judgment dated 18-7-2001 passed by the High Court of Sindh, Karachi in Constitution Petition No.236 of 2001).

Industrial Relations Ordinance (XXIII of 1969)---

----S.8---Constitution of Pakistan (1973), Art. 185(3)---Election change of trade union---Application for election change was moved 11 years after elections and the application established that the election change had been brought about by show of hands in general body meeting without following constitution of the trade union---Registrar Trade Unions, declined to register the election change and the order was maintained by High Court in exercise of Constitutional jurisdiction---Validity---High Court was right in observing that the request for election change could be refused by Registrar of Trade Unions itself---Supreme Court declined to interfere with the order passed by the High Court---Leave to appeal was refused.

Akhlaq Ahmed Siddiqui, Advocate-on-Record for Petitioner.

Nemo for Respondent

Date of hearing: 31st July, 2001.

PLC 2003 SUPREME COURT 371 #

2003 P L C 371

[Supreme Court of Pakistan]

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

SHAHEEN AIRPORT SERVICES, KARACHI

Versus

SINDH EMPLOYEES' SOCIAL SECURITY INSTITUTION through its Commissioner and another

Civil Appeals Nos. 1707 and 1708 of 1997, decided on 4th November, 2002.

(On appeal from judgment dated 29-4-1997, passed by the High Court of Sindh, Karachi, in Miscellaneous Appeals Nos.46 and 47 of 1995).

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

----Ss.20, 23, 57, 64 & 65---Constitution of Pakistan (1973), Art. 185(3)--Leave to appeal was granted by Supreme Court to consider, whether the facts of the instant case attracted the ratio decidendi of the judgment of Supreme Court passed in case titled Messrs R.C.D. Ball Bearing Limited v. Sindh Employees' Social Security Institution, Karachi, reported as PLD 1991 SC 308.

Messrs R.C.D. Ball Bearing Limited v. Sindh Employees' Social Security Institution Karachi PLD 1991 SC 308 ref.

(b) Provincial-Employees' Social Security Ordinance (X of 1965)---

----Ss. 20, 23, 57, 64 & 65---Increase in social security contribution--Demand during stay issued by Court---Grievance of employer was that during pendency of proceedings before lower forums and High Court the stay was in operation in favour of the employer and increase of 50% on principal demand made by the Authorities was against the law---Matter was decided against the employer by High Court---Plea raised by the employer was that the ratio decidendi of the judgment of Supreme Court passed in case titled Messrs R.C.D. Ball Bearing Limited v. Sindh Employees' Social Security Institution, Karachi, reported as PLD 1991 SC 308, was attracted in the present case---Validity---Employer in any case was not supposed to pay increase of 50% on original demand of the Authorities when litigation between the parties was pending and stay in favour of the employer was in operation---High Court did not consider such aspect of the matter and the same resulted in miscarriage of justice---Judgment passed by High Court and the order of the lower forums allowing increase of 50% on the principal demand were set aside---Appeal was allowed.

Messrs R.C.D. Ball Bearing Limited v. Sindh Employees' Social Security Institution, Karachi PLD 1991 SC 308 ref.

Sind Employees' Social Security Institution v. Dawood Cotton Mills Ltd. PLD 1977 SC 177 and Shaheen Airport Services v. Sindh Employees' Social Security Institution 1994 SCMR 881 ref.

Haji Ibrahim v. S. Rehmatullah 1995 SCMR 241 distinguished.

S.M. Yaqoob, Advocate Supreme Court and Akhlaq A. Siddiqui, Advocate-on-Record (absent) for Appellant.

Khalid Habibullah, Advocate Supreme Court and Ali Akhtar, Advocate-on-Record (absent) for Respondents.

Date of hearing: 29th October, 2002.

PLC 2003 SUPREME COURT 395 #

2003 P L C 395

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui and Sardar Muhammad Raza Khan, JJ

Syed MATCH COMPANY LTD. through Managing Director

Versus

AUTHORITY UNDER PAYMENT OF WAGES ACT and others

Civil Petitions Nos.455 to 463 of 2002, decided on 7th April, 2003.

(On appeal from the judgment, dated 13-2-2002 Peshawar High Court, Peshawar passed in W.Ps. Nos.43 to 51 of 2001).

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

----Ss. 15 & 17---Constitution of Pakistan (1973), Arts. 185(3) & 199--Delay in payment of wages---Authority determined amount payable by petitioner (employer)---Petitioner filed Constitutional petition against such order instead of appeal---High Court dismissed Constitutional petition--Validity----Such was not the case of complete lack of jurisdiction nor could be termed as mala fide---Lack of jurisdiction could not be attributed to Authority even after assuring claim of respondents (employees) to be on higher side---Party had no discretion to ignore provisions of appeal and file Constitutional petition instead---Nothing material was available on record for ignoring remedy provided under S.17 of the Payment of Wages Act, 1936--Constitutional jurisdiction of High Court had been invoked in order to nullify effect of S.17(1)(a) of Payment of Wages Act, 1936, which was mala fide---Supreme Court dismissed petition and refused leave to appeal.

(b) Appeal (civil)---

---- First appeal is a continuation of suit---Factual controversy could only be resolved by sifting evidence on record.

----Art. 199---Party had no discretion to ignore provisions of appeal and file Constitutional petition instead.

(d) Constitution of Pakistan (1973)---

----Art. 199---Constitutional jurisdiction of High Court---Scope---By passing remedy provided under relevant statute arid press Constitutional petition--Supreme Court disapproved such tendency with exception of certain cases.

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

----Preamble---Object of Payment of Wages of Act, 1936---Act primarily is a beneficial legislation enacted to provide relief to workers---Construction of the Act which may tend to nullify the object of its legislation cannot be placed upon its provisions.

(f) Interpretation of statutes---

---- Remedial statutes shall always be construed in a manner to advance the remedy as provided in the statute and not in a manner as to defeat legislative intendment.

(g) Payment of Wages Act (IV of 1936)---

----Ss. 15 & 17---Constitution of Pakistan (1973), Art. 199---Delay in payment of wages---Authority determined amount---Petitioner instead of appeal filed Constitutional petition before the High Court against such order---High Court dismissed Constitutional petition with observations that petitioner would be at liberty to file appeal in appropriate forum, which would exclude time spent in the High Court from computing period of limitation prescribed in law---Validity---Petitioner had not deposited amount determined by Authority---High Court had no jurisdiction to pre-empt decision of First Appellate Court on point of limitation---Supreme Court set aside such observations of High Court leaving matter to Appellate Authority to decide issue of limitation on merits after taking into consideration all circumstances of case.

Kh. Muhammad Farooq, Advocate Supreme Court and M.A. Zaidi, Advocate Supreme Court for Petitioner (in all Petitions).

Nemo for Respondents.

Date of hearing: 7th April, 2003.

PLC 2003 SUPREME COURT 405 #

2003 P L C 405

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and Faqir Muhammad Khokhar, JJ

Malik NAZAR HUSSAIN

Versus

NATIONAL BANK OF PAKISTAN and another

Civil Petition No.461-L of 2000, decided on 20th February, 2003.

(On appeal from the judgment/order dated 7-12-1999 passed by Lahore High Court, Lahore in Writ Petition No. 12466 of 1996).

Industrial Relations Ordinance (XXIII of 1969)---

----Ss.15 & 22(8)(g)---Constitution of Pakistan (1973), Arts. 185(3) & 199--Unfair labour practice---National Industrial Relations Commission, jurisdiction of---Jurisdiction of High Court under Art. 199 of the Constitution---Filing of Constitutional petition during the pendency of appeal before National Industrial Relations Commission---Employee was terminated from service on the charges of fraud and forgery---Employee alleged unfair labour practice and National Industrial Relations Commission, set aside the order passed by the employer---High Court in exercise of Constitutional jurisdiction restored the termination order and set aside the order passed by National Industrial Relations Commission on the ground that the case was of individual nature which was not covered under S.15 of Industrial Relations Ordinance, 1969---Plea raised by the employee was that the Constitutional petition was filed during the pendency of appeal before National Industrial Relations Commission, thus High Court could not exercise jurisdiction under Art. 199 of the Constitution---Validity---National Industrial Relations Commission had no jurisdiction to entertain the petition on behalf of the employee without examining whether he had been made victim of unfair labour practice in accordance with the provisions of S.15 of Industrial Relations Ordinance, 1969---Assumption of jurisdiction by National Industrial Relations Commission was illegal, therefore, High Court was competent to entertain Constitutional petition filed by the employer--Although the Constitutional petition was filed during the pendency of appeal before the National Industrial Relations Commission, yet the same had been withdrawn by the employer---If order or proceedings were patently without jurisdiction, High Court could issue writ in exercise of its jurisdiction under Art. 199 of the Constitution---Supreme Court declined to interfere with the judgment passed by High Court---Leave to appeal was refused.

Chairman Central Board of Revenue v. Pak. Saudi Fertilizer Ltd. 2001 SCMR 777 rel.

M. Anwar Ghumman, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on-Record for Petitioner.

Kh. Muhammad Farooq, Advocate Supreme Court and Tanvir Ahmed, Advocate-on-Record for Respondents.

Date of hearing: 20th February, 2003.

PLC 2003 SUPREME COURT 413 #

2003 P L C 413

[Supreme Court of Pakistan]

Present: Javed Iqbal and Faqir Muhammad Khokhar, JJ

TEHSIL MUNICIPAL, ADMINISTRATION FAISALABAD CITY

Versus

MUHAMMAD SALEEM and another

Civil Petitions Nos.4162-L and 4163-L of 2002, decided on 2nd January, 2003.

(On appeal from the judgment dated t4-10-2002 passed by the Lahore High Court, Lahore, in Writ Petition. No. 18452 of 2002).

Factories Act (XXV of 1934)---

-----S.2(i)---Constitution of Pakistan (1973), Art. 212 (3)---Contentions of petitioners were that impugned judgment was in violation of principles as laid down by Supreme Court in its judgment reported as PLD 2002 SC 452 and that petitioner being not involved in making, altering and preparing any article or substance with a view to its sale and transaction, provisions as contained in Cl. (i) in S.2 of Factories Act, 1934 were not applicable in his case---Respondent had controverted such contention of the petitioner and had submitted that controversy could not be resolved unless and until evidence was recorded---Dictum as laid down in case reported as PLD 2002 SC 452 appeared to have been ignored in the case---Contentions agitated by parties needing consideration, leave to appeal was granted and status quo was directed to be maintained.

Town Committee Ghakhar Mandi v. Authority under the Payment of Wages Act, Gujranwala and 57 others PLD 2002 SC 452 ref.

Syed Farooq Hassan Naqvi, Advocate Supreme Court for petitioner.

N.A. Butt. Advocate Supreme Court for Respondents.

Date of hearing: 2nd January, 2003.

PLC 2003 SUPREME COURT 414 #

2003 P L C 414

[Supreme Court of Pakistan]

Present: Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ

PUBLIC WORKS DEPARTMENT GOVERNMENT OF PUNJAB, LAHORE and others

Versus

NATIONAL INDUSTRIAL RELATIONS COMMISSION and another

Civil Petition for Leave to Appe91 No.3403-L of 2002, decided on 10th April, 2003.

(On appeal from the judgment dated 28-8-2002 of the Lahore High Court, Lahore passed in Writ Petition No. 19800 of 2002).

Industrial Relations Ordinance (XXIII of 1969)---

----S.22---Constitution of Pakistan (1973), Art. 185(3)---Termination from service---Failure to provide opportunity of hearing---Reason given for termination of the employee was his absence from duty---No opportunity of hearing was provided to the employee to substantiate his case regarding his absence---National Industrial Relations Commission set aside the order of termination of the employee and the order was maintained by High Court in exercise of Constitutional jurisdiction---Validity---No illegality had been committed by High Court in maintaining the order passed by the National Industrial Relations Commission, warranting interference by Supreme Court---Leave to appeal was refused.

Muhammad Riaz Lone, Advocate Supreme Court for petitioners.

M.A. Zafar, Advocate Supreme Court and Ozair Chughtai, Advocate-on-Record for Respondent No.2.

Date of hearing: 10th April, 2003.