PLC 2004 Judgments

2004 P L C 1

[Karachi High Court]

Before S. Ahmed Sarwana and Sarmad Jalal Osmany, JJ

NAZIR AHMED and another

Versus

MUSLIM COMMERCIAL BANK LTD. and others

Constitutional Petitions Nos. D-1006 and D-1007 of 1999, decided on 29th July, 2003.

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

----S.25-A---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), Ss. 1(4)(a), 2(b) & S.O.15--­Dismissal from service---Grievance petition, maintainability of--­Employees were dismissed from service on allegation of misconduct after holding inquiry against them---Grievance petitions filed by employees were dismissed being not maintainable on the ground that West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, was not applicable in their case as Branches of concerned Bank in which employees were serving had less than twenty employees each--­Validity---Branch of a Bank was a local division of the Bank and Principal Office, Regional Office and all Branches of the Bank, irrespective of the number of employees working therein were patently parts of one organization---Branches of Bank in business or under the provisions of Banking Ordinance, could not be termed as independent commercial establishment carrying on Banking business independently--­Employees of all the Branches of Bank worked for common object of the Bank or a Banking Company which had been specifically included in definition of a Commercial Establishment under S.2(b) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968---Terms and conditions of service and the benefits of all the employees whether they worked at a big Branch where more than 20 workmen were employed or they worked at Branch where less than 20 persons were employed or had been so employed on any day during the last preceding 12 months, would remain the same irrespective of number of workmen employed at any Branch as long as they were working for the Bank---No Branch of employer Bank was independently a legal entity or an independent Commercial Establishment, but every Branch was an integral and inseparable part and instrumentality of Bank which was Banking Company operating as one institution, irrespective of the number of workmen employed therein---Provisions of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 were applicable to employers---Order dismissing grievance petitions of employees was set aside, in circumstances.

M.C.B. v. Nazir Ahmed 1992 SCMR 505; Rauf Yousuf v. Bahadur Ali 2000 PLC 79; Norwich Union v. Muhammad Javed Iqbal 1986 SCMR 1071; Sami Pharmaceutical v. SLAT, 1985 PLC 754; Government of Punjab v. Prof Mrs. Jamila Malik, PLD 1999 SC 2496; Malik Muhammad Din v. Babu Fazal Karim PLD 1968 Lah, 544; Khiali Khan v. Nazir PLD 1997 SC 304; 1992 PLC 424; 1977 PLC 20; 1990 PLC 643; Zafar and Associates v. S.M. Kazim, 1975 PLC 70; Abdul Razak v. Messrs Ehsan Sons Ltd. and others 1992 PLC 424; Messrs Ihsan Sons Ltd. v. Abdul Razaak and others, 1987 PLC 390 Muhammad Aqil v. Chairman, Sindh Labour Appellate Tribunal and another 1974 PLC 194; Nasir Ahmed v. Royal Exchange Assurance 1993 PLC 386; Abdus Sattar v. Mitsubishi Corporation 1996 PLC 174 and Recha Pakistan Ltd. v. Abdul Ghaffar Virani and Others 1993 PLC 2 ref.

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

-----Preamble, Ss.1(4)(a) & 2(b)(f)---Labour laws were beneficial or remedial statutes enacted for ameliorating the lot of working class and being so should be interpreted liberally---West Pakistan Industrial and Commercial Employment (Standing Orders). Ordinance, 1968 admittedly being a welfare legislation, its provisions must be interpreted liberally in favour of workmen to provide to them maximum privileges and benefits Stated therein---Terms Banking Company' or aBank' used in definition of `Commercial' Establishment' in S.2(b) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 had not been defined---According to established principles of interpretation said two terms were to he construed in the sense in which every one conversant with that trade or business knew and understood. If there was already a statute relating to the subject-matter, then it must be construed according to the law relating to Banking business in Pakistan.

Kohinoor Chemical Company Ltd. v. Sindh Employees' Social Security Institution PLD 1997 SC 197 ref.

(c) Interpretation of statutes-----

----Terms used in a statute relating to banking business---Such terms were to be construed in the sense in which every one conversant with that trade or business knew and understood---If there was already a statute relating to the subject-matter, then it must be construed according to the law relating to Banking business in Pakistan.

Nizamuddin Baloch for Petitioner.

Mehmood Abdul Ghani for Respondents.

G.D. Shahani, Addl. A.-G. Sindh.

Dates of hearing: 23rd and 30th October, 2001.

2004 P L C 23

[Karachi High Court]

Before Muhammad Roshan Essani and Khilji Arif Hussain, JJ

S.S. MUMTAZ ALAM

Versus

S.L.A. TRIBUNAL and others

Constitutional Petition No.632 of 2000, decided on 29th Apri1, 2003.

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

----S.2(i) & S.Os.1(b) & 12---Industrial Relations Ordinance (XXIII of 1969), Ss.25-A & 37(3)---Constitution of Pakistan (1973), Art.199--­Constitutional petition---Termination of service---Status of workman –­Determination of---Petitioner was appointed as Confidential Secretary'---Services of petitioner were terminated within six months of his appointment---Grievance petition filed by petitioner against his termination was dismissed by Labour Court and appeal against judgment of Labour Court was also dismissed by the Appellate Tribunal--­Concurrent judgments of Courts below had been challenged by petitioner in Constitutional petition on ground that petitioner in view of nature of his job was "workman" and termination of his service without assigning any reason was without lawful authority and his termination order was liable to be set aside---Terms of appointment of petitioner revealed that he was appointed on probation for six months and during said period of six months his services could be terminated at any time without notice or any remuneration in lieu thereof and without assigning reason--­Petitioner had accepted all terms and conditions in the appointment letter and had signed the same---Petitioner was terminated within six months period and in termination letter no allegation was leveled. against him so as to make any stigma on his career---Petitioner did not come within definition of "workman" looking to the nature of his job which wasConfidential Secretary'---Post on which petitioner was appointed being not of permanent nature, he could not avail benefit available to "workman" ---No illegality had been committed by employer in terminating services of petitioner.

Gohar Iqbal for Petitioner.

Date of hearing: 29th April, 2003.

2004 P L C 33

[Karachi High Court]

Before Shabbir Ahmed and Gulzar Ahmed, JJ

MUHAMMAD ASLAM KHAN

Versus

TAJ BAKERY through Proprietor and another

Constitutional -Petition No.D-105 of 2002, decided on 5th September, 2003.

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

---Ss.25-A & 37(3)---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(i) & 5.0.12---Constitution of Pakistan (1973), Art.199---Constitutional petition---Termination of service- --Grievance petition, maintainability of---Salesman whether "workman" ---Employee having been terminated by oral order, he filed grievance petition against termination order which was allowed by Labour Court, but on the filing of appeal by employer, order passed by Labour Court was set aside by Labour Appellate Tribunal and employee had filed Constitutional petition against judgment of Labour Appellate Tribunal---Labour Appellate Tribunal in its decision had held that employee being salesman was not "workman" within meaning of cl.(i) of S.2 of West Pakistan Industrial and Commercial Employment (Standing Orders) .Ordinance, 1968 and grievance petition filed by him was not maintainable---Validity---Employee in his grievance petition as well as in his affidavit-in-evidence before Labour Court had admitted himself to be a salesman--Employee being salesman was not "workman" and he could not maintain grievance petition---Decision of Labour Appellate Tribunal being un­exceptionable, Constitutional petition against said decision was dismissed.

Mustehkam Cement Ltd. v. Abdul Rasheed 1998 PLC 172; Forbes Forbes Campbell & Company Ltd., Karachi v. Habibur Rehman 1982 SCMR 651; Syed Matloob Hassan v. Brook Bond Pakistan Ltd 1992 SCMR 227 and Muhammad Yaqoob v. Rooti Corporation Pakistan Ltd. 1980 PLC 746 ref.

Rafiullah for Petitioner.

Khadim Hussain for Respondent No. 1.

Date of hearing: 22nd August, 2003.

2004 P L C 36

[Karachi High Court]

Before Azizullah M. Memon, J

HABIB BANK LIMITED WORKERS UNION (CBA) through General Secretary

Versus

HABIB BANK LIMITED STAFF UNION through General Secretary and 2 others

First Appeal No.27 of 2003, decided on 7th November, 2003.

Industrial Relations Ordinance (XXIII of 1969)---

----Ss. 34 & 36---Final decision of application under S.34 of Industrial Relations Ordinance; 1969 on a date, when only stay application was fixed for hearing----Validity---No order had been passed on stay application on such date---Record did not show as to why the Labour Court had considered necessary not to allow parties to adduce evidence in support of their respective pleadings---Impugned order had been passed without following procedure prescribed for deciding applications filed under S.34 of the Ordinance---High Court accepted appeal, set aside impugned order with direction to Labour Court to first hear parties on stay application and then follow procedure prescribed under S.36 of the Ordinance, for purpose of proceeding with applications filed under S.34 thereof.

Abdul Ghani Khan for Appellant.

Mehmood Hussain Siddiqui and Masood A. Noorani, Addl. A.-G. for Respondents.

Date of hearing: 7th November, 2003.

2004 P LC 42

[Karachi High Court]

Before Shabbir Ahmed and Gulzar Ahmed, JJ

MASHKOOR ALI SUBZWARI

Versus

CHAIRMAN, SINDH LABOUR APPELLATE TRIBUNAL and another

Constitutional Petitions Nos.D-1167, D-1168 of 1999 and D-1205 of 2000, decided on 29th August, 2003.

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

----S.25-A & 37(3)---Constitution of Pakistan (1973), Art.199--­Constitutional petition---Retirement on attaining age of superannuation --­Grievance application, maintainability of---Employees who were retired on attaining age of superannuation, filed grievance application against their retirement, which was accepted by the Labour Court----Judgment of Labour Court was set aside by Labour Appellate Tribunal on appeal--­Employees had assailed decision of Labour Appellate Tribunal in their Constitutional petition---Validity---Employees were retired from service according to agreement arrived at between the Collective Bargaining Agent and employer Bank. which agreement bad provided that age of retirement of employee of Bank would be 60 years---Said agreement being applicable to employees on the date of their retirement, they could not maintain grievance application tinder S.25-A of Industrial Relations Ordinance, 1969 as no right was guaranteed or secured to employees by or under any law settlement or award that they could not be retired on attaining age of 60 years---Grievance applications filed by employees against their retirement were riot maintainable.

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

----S.39---Settlement and awards---Binding force of---Where Collective Bargaining Agent was one of the parties to the dispute, settlement arrived at between Collective Bargaining Agent anal Establishment, would be binding on all workers who were employed in the said establishment or industry to which, industrial dispute related---Employee the present case being in employment of Bank at the time of agreement providing age of retirement of employee to be 60 years, said agreement was binding on him and his retirement in terms of said agreement was in accordance with law.

Muhammad Shafiq Qureshi for Petitioners.

Ch. Rasheed Ahmed for Respondent No. 2 (in C. Ps. Nos. D-1167 and 1168 of 1999 and for Respondent No.3 (in C.P. No.D-1205 of 2000).

Date of hearing: 19th August, 2003.

2004 P L C 54

[Karachi High Court]

Before S. Ahmed Sarwana, J

HABIB SUGAR MILLS LTD.

Versus

COMMISSIONER, WORKMEN'S COMPENSATION AND AUTHORITY UNDER PAYMENT OF WAGES ACT, NAWABSHAH and another

Constitutional Petition No.S-186 of 2001, decided on 2nd May, 2003.

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

----S.15---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Application for claim of unpaid full gratuity benefits was rejected---Employee of the Mill who was dismissed from service for misconduct had received amount in full and final settlement of all his dues---Said employee filed claim of unpaid full gratuity benefit before Commissioner, Workmen's Compensation and Authority under Payment of Wages Act, 1936 to which the Mill filed its reply---Authority, on recording evidence of both the parties, fixed the case for filing of written arguments---Mill instead of filing its arguments, filed Constitutional petition challenging the jurisdiction of the Authority and maintainability of application filed by the employee---Validity---If petitioner (Mill) was aggrieved by proceedings initiated by the Authority, it should have approached the High Court immediately on receipt of notice from Authority, but petitioner (Mill) did not do so for five years and filed Constitutional petition when the case .was finally fixed for arguments--­Authority had the power to decide legal questions raised by petitioner, but petitioner had waited too long to invoke the jurisdiction of High Court under Art.199 of the Constitution---Petitioner (Mill), in circumstances, had not acted in a bona fide manner in coming to the High Court---Would be just and proper for the Authority to proceed with application of employee and pass orders thereon including the legal objection taken by petitioner---Constitutional petition filed by petitioner. being not bona fide, was dismissed.

Mahmood Abdul Ghani for. Petitioner.

Masood A. Noorani, Addl. A.-G. for Respondent No. 1.

Date of hearing: 2nd May, 2003.

2004 P L C 63

[Karachi High Court]

Before Saiyed Saeed Ashhad, CJ. and Ghulam Rabbani, J

PAKISTAN BURMA SHELL LIMITED

Versus

EMPLOYEES OLD‑AGE BENEFITS INSTITUTION and 2 others

Constitutional Petition No.D‑81 of 1991, decided on 24th October, 2003.

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

‑‑‑‑Ss.9 & 13‑‑‑West Pakistan Land Revenue Act (XVII of 1967), S.81‑‑­Constitution of Pakistan (19.73), Art.199‑‑‑Constitutional petition‑‑­Demand/show‑cause notice‑‑‑Enforcement and implementation of‑‑­Preconditions‑‑‑Ascertained and predetermined sum of money, a legal requirement‑‑‑Methodology for recovery as arrears of land revenue and its prerequisites stated‑‑‑Institution issued demand/show‑cause notice to the petitioner‑establishment demanding payment of its alleged outstanding amount of contribution without holding an inquiry for determination of such amount allegedly due and payable by the petitioner under provisions of Employees' Old‑Age Benefits Act, 1976‑‑‑Principles of natural justice require that petitioner‑establishment should have been given proper opportunity to participate in the inquiry/investigation required to be undertaken by the Authority for determining alleged outstanding dues‑‑‑Notice, of demand under S.81 of Land Revenue Act, 1967 could only be issued if amount was determined as due in proper proceedings and manner‑‑‑Unless amount was legally determined as due and payable and ascertained, said notice could not be issued legally‑‑‑All provisions of law which authorized any statutory Authority recover any amount as appears of land revenue could be invoked only after determination of amount of dues as fixed, ascertained and determined sum of money‑‑‑Authority had not been given absolute power to fix liability of establishment on their own without giving any explanation or disclosing the working thereof‑‑‑Authority did not act in accordance with relevant provisions of law, but had acted arbitrarily, whimsically and illegally in holding that amount was due and payable towards Establishment as arrears of contribution‑‑‑High Court allowing Constitutional petition declared that notices of demand/show ‑cause notices issued to petitioner by Authority were illegal and without lawful authority.

Khalid Mehmood v. Collector of Customs, Customs House, Lahore 1999 SCMR 1881; Gatron (Industries) Limited v. Government of Pakistan and others 1999 SCMR 1072; Agricultural Development Bank of Pakistan v. Sanaullah Khan and others PLD 1988 SC 67 and Abdul Latif v. The Government of West Pakistan and others PLD 1962 SC 384 ref.

(b) West Pakistan Land Revenue Act (XVII of 1967)‑‑‑--

‑‑‑‑S.81‑‑‑Methodology for recovery as arrears of land revenue‑‑­Prerequisite highlighted.

Shahid Anwar Bajwa for Petitioners.

M.A. M. Namazie for Respondents No. 1.

Date of hearing: 4th September, 2003.

2004 P L C 106

[Karachi High Court]

Before Saiyed Saeed Ashhad, C. J. and Ghulam Rabbani, J

ATTOCK CEMENT PAKISTAN COMPANY

versus

THE BOARD OF TRUSTEES, EMPLOYEES' OLD-AGE BENEFITS INSTITUTION and others

Constitutional Petition No. D-363 of 1996 decided on 30th December

Employee's' Old-Age Benefits Act (XIV of 1976)---

----Ss. 2(b) (bb), (c), (h) & 9---Liability of employers to make payment of contribution in respect of persons employed by independent contractors---Workers employed by independent contractors as workers in the employer establishment in connection with affairs of employer establishment, would fall within definition of 'workers' as defined under S.2(bb) of Employees' Old-Age Benefit Act, 1976---Employers, in circumstances, would be responsible and/or liable to make contribution on behalf of employees allegedly engaged through or by independent contractors in employers' establishment.

Sindh Employees Social Security Institution v. Consolidated Sugar Mills Limited, reported in 1988 SCMR 888 and Crescent Textile Mills Limited v. The Board of Trustees, Employees Old-Age Benefits Institution and 2 others reported in PLJ 2002 Lah. 1212. ref.

Sohail Muzaffar for petitioner.

M.A. M. Namazie for Respondent No. 1.

Muhammad Sarwar Khan Addl. A.G.

2004 P L C 121

[Karachi High Court]

Before Sabihuddin Ahmed and S. Ali Aslam Jafri, JJ

HASHOO STEEL INDUSTRIES LIMITED

versus

BOARD OF TRUSTEES, EOBI and others

Constitution Petitions Nos.D-203 of 2000, 2636 of 1993, 601 of 1998 and. 1565 of 1996 decided on 29th April, 2003.

(a) Employees' Old-Age Benefits Act (XIV of 1976)---

----Ss. 2(b), (bb), (c), (h), 9 & 33---Liability of employers to make payment of contribution in respect of persons employed by an independent 'contractor---Employers had claimed that employees ' in respect of whom contribution was demanded being not in insurable employment of employers, as they had been employed by an independent contractor and therefore the said contractor and not the employers was liable to pay contribution in terms of S.9 of Employee's Old-Age Benefits Act, 1976---Validity--- Person employed through a Contractor being covered by defining provisions of expressions "employee" and "employer" under Ss. 2(bb) and 2 (c) of Employees' Old-Age Benefits Act, 1976, charging section 9 of the Act would apply to such persons also.

Sindh Employees Social Security Institution v. Consolidated Sugar Mills Limited 1989 SCMR 888 ref.

(b) Interpretation of statutes---

----- Definition of one expression contained in the Statute could not be imported into another unless two Statutes were in pari-materia.

Muhammad Humayun for petitioners

M.A.M. Namazie for Respondents.

Date of hearing: 29th April, 2003.

2004 P L C 137

[Karachi High Court]

Before Muhammad Roshan Essani and Amir Hani Muslim, JJ

ATTA MUHAMMAD and 16 others

Versus

MODERN TEXTILE MILLS (PVT.) LTD. and 2 others

Constitution Petitions Nos.D-199, D-208 and M.As. Nos.933, 934 and 935 of 2003, decided on 21st August, 2003.

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

----Art. 199---Constitutional jurisdiction of High Court---Scope--­Appreciation of evidence---High Court in exercise of Constitutional jurisdiction could not appreciate evidence led before the Trial Court.

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

----Art.199---Constitutional jurisdiction of High Court---Scope--­Question of fact determined by Court below---High Court in Constitutional jurisdiction would not substitute such view, even if another view was possible.

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

---Preamble & S.2(i)---Provisions of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 would apply only to the employee in service of employer.

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

---Art. 199---Constitutional jurisdiction of High Court---Scope---Law would not come to rescue of those persons, who approach the Court of law with unclean hands.

(e) Constitution of Pakistan (1973)-----

----Art.199---Constitutional jurisdiction of High Court---Scope---Refusal of employee to vacate premises after termination of service ---Validity--­Employee on his appointment had acquired possession of premises from the employer, which he was bound to vacate on termination of his service---High Court in Constitutional jurisdiction would not permit a party to continue possessi6n of a premises, which he had acquired under some arrangement and subject to terms of such arrangement, he was required to vacate same---High Court dismissed Constitutional petition in limine.

Saeeduddin Siddiqui for Petitioners.

2004 P L C 150

[Karachi High Court]

Before S. Ahmed Sarwana, J

MUHAMMAD RAMZAN and another

Versus

Messrs SURRIYA TEXTILE MILLS (PVT.) LIMITED and another

Constitutional Petition No.82 of 2000, heard on 1st December, 2003.

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

----S.O.10-B---Industrial Relations Ordinance (XXIII of 1969), Ss.25-A & 37(3)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Amount of group insurance---Entitlement---Grievance petition by petitioner against his dismissal from service was dismissed by Labour Court, but Labour Appellate Tribunal on appeal set aside order of Labour Court---Subsequently petitioner was declared unfit for further service by a duly constituted Medical Board---Management was directed by the Appellate Tribunal to take necessary steps for retirement of the petitioner and pay him all back benefits as well as additional monetary benefit in the shape of Group Insurance, gratuity and other benefits accruing to petitioner on his retirement---Petitioner was paid all benefits of retirement, except the Group Insurance amount---Validity---Decision of Labour Appellate Tribunal had attained finality as the Management did not file any proceedings against the decision of Labour Appellate Tribunal---Petitioner being a workman at the time of his dismissal, was entitled to all benefits specified in West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and he having been declared unfit for service by the competent Medical Board and consequently Labour Appellate Tribunal, had ordered among others the payment of Group insurance amount---Petitioner being entitled to amount of Group Insurance, High Court allowing his Constitutional petition directed Nazir of the Court to pay petitioner Group Insurance amount deposited with him by the Management together with profit accrued thereon.

Ashraf Hussain Rizvi for Petitioners.

Nemo for Respondents.

2004 P L C 217

[Karachi High Court]

Before Zahid Kurban Alvi and Gulzar Ahmed, JJ

EXPORT PROCESSING ZONES

Versus

REGISTRAR OF TRADE UNIONS and another

C.M.A. No.44 of 1998 in Constitutional Petition No.D‑7 and C.M.A. No.39 of 1998 in Constitutional petition No.D‑8 of 1998, decided on 19th November, 2003.

Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑Ss.7, 8, 9 & 22‑‑‑Export Processing Zones Authority Ordinance (IV of 1980), S.25‑‑‑Constitution of, Pakistan (1973), Art. 199‑‑­Constitutional petition‑‑‑Registration of Trade Union‑‑‑Issuance of certificate for registration of Trade Union and certificate of Collective Bargaining Agent‑‑‑Validity‑‑‑Establishment which was created under Export Processing Zones Authority Ordinance, 1980, had prayed in the petition that, one certificate issued, under S.8 and other issued under S.22(1) of Industrial Relations Ordinance, 1969, being certificate for registration' of Trade Union andCertificate of Collective Bargaining Agent' be declared as issued illegally and as such were void, 'incompetent, without lawful authority and of no legal consequence‑‑­Main ground of petitioner was that formation of Trade Union was illegal and registration of a Collective Bargaining Agent was also illegal, as same was done by Registrar Trade Union without taking into consideration provisions of S.25 of Export Processing Zones Authority Ordinance, 1980 and Notification issued by Federal Government whereby petitioner/Export Processing Zones, was exempted from application of provisions of Industrial Relations Ordinance, 1969 and other Labour Laws enumerated in said Notification‑‑‑Laws relating to workers union being not applicable to petitioner, petition seeking declaration that certificates for registration of Trade Union and certificate of Collective Bargaining Agent should be declared as having been issued illegally, was allowed as prayed for.

Export Processing Zone, Authority, Karachi v. Sindh Labour Appellate Tribunal 1990 CLC 666 and Multiline Associates v. Ardeshir Cowasjee and others 1995 SCMR 362 ref.

Ch. Rasheed Ahmed for Petitioner.

Muhammad Nishat Warsi for Petitioner.

Ch. Muhammad Ashraf Khan for Respondent No.2.

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2004 P L C 182

[Punjab Labour Appellate Tribunal]

Before Justice (Retd.) Iftikhar Ahmad Cheema, Chairman

MUSLIM COMMERCIAL BANK LIMITED KARACHI through Attorneys

Versus

ABDUL MAJEED MIRZA

Appeal No.GA-403 of 1998, decided on 6th June, 2002.

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

----S.25-A---Grievance petition---Limitation---Employee who was dismissed from service had filed grievance notice and grievance petition after about eleven years of his dismissal and no justification whatsoever was given for condonation of such an inordinate delay---Employee had contended that since dismissal order itself was illegal and void ab initio, no limitation could be imposed on it---Validity---Contention of employee was itself contradictory as on the one hand he had said that no limitation was prescribed to assail an illegal order and on the other hand he himself had requested by submitting an application for condonation of delay--­Even otherwise an employee was not to judge validity and propriety of an order passed by employer---If employee was convinced that order of his dismissal was illegal, he should get the same set aside by competent forum, but as long as that order, even void, remained intact and was riot set aside by a Court of competent jurisdiction, that order was binding on all concerned---Worker aggrieved of an illegal order, should immediately seek Indulgence of proper forum in order to avert consequential harm--­Aggrieved party ought to approach Labour Court within statutory period and no time-barred claim/appeal was competent even against void order-­Obligatory for employee to approach Labour Court by filing grievance petition' within statutory period, but he having sought indulgence of Labour Court after about 11 years of his dismissal, such delay was not condonable, especially when in his application for condonation of delay lie had not alleged that order of his dismissal from service was void and illegal therefore no limitation could be imposed upon it--­Gri6vance petition filed by employee being patently time-barred was liable to be dismissed on that score alone.

1995 PLC 50; 1994 PLC 507; 2001 SCMR 2018; 2001 PLC 149; 1985 SCMR 1511; NLR 1995 T.D. (Labour) 44; 1999 PLC 38; Muhammad Raz Khan v. Government of N.-W.F.P. and another 1997 PLC (C.S.) 600 (603); Muhammad Shaif v. Mushtaque Ahmed 1996 SCMR 865; Hakim Muhammad Buta and another v. Habib Ahmed and others PLD 1985 SC 153; Supreme Court, Province of Punjab and others Muhammad Hussain and others PLD 1993 SC 147; Ali Muhammad and others v. Muhammad Shafi and others PLD 1996 SC 292; Government of Punjab v. Muhammad Saleem PLD 1995 SC 396; Muhammad Feroz Khan v. Khalique Dad Khan and 28 others 1986 SCMR 930; Khadim Hussain Khan v. The State PLD 1982 SC (AJ&K) 13; Sayed Sajid Ali v. Sayed Wajid Ali PLD 1975 Baghdad ul Jadid 19; S. Sharif Ahmad Hashmi v. Chairman, Screening Committee 1978 SCMR 367; 1985 PLC 403, 1994 PLC 46 and 1999 PLC 38 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 `workmen'---Determination---Evidence brought on record which remained - unchallenged, had proved that employee who though was serving as Officer Grade II, but was performing duties which were essentially of clerical and manual nature---Employee in the present case was a workman under provisions of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968; because it was not designation, but nature of duties performed by a person, which determine his status as worker/workman.

PLD 1988 SC 633; PLD 1975 Kar. 312 and 1975 SCMR 505 ref.

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

------S.25-A---Departmental appeal---Departmental appeal was not a grievance notice.

1999 PLC 466; 1983 PLC 389; 1983 PLC 616 and 1982 PLC 920 ref.

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

----S.1(4)---Mandatory requirement for invoking Standing Orders Ordinance; 1968---Each branch of a Bank is a separate establishment and it is for employee to prove that twenty or more workmen were employed in the branch of Bank where he was serving at relevant time, as it was mandatory requirement of law for invoking West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968.

1982 PLC 20; 1980 PLC 800 and Messrs Allied Bank of Pakistan Ltd. v. Aleem Haider and another 1997 PLC 219 ref.

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

----S.O. 15(4)---Charge-sheet and inquiry---Not a requirement of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 that charge-sheet or inquiry be ordered by Competent Authority.

1995 SCMR 1758 ref.

Shahid Anwar Bajwa for Appellant.

Zafar Saleem for Respondent.

2004 P L C 87

[Sindh Labour Appellate Tribunal]

Before Munawar Ali Khan, Chairman

OSMANIA LACE MILLS through Manager

versus

MUKHTIARULLAH

Appeal No. Kar‑112 of 2000, decided on 23rd October, 2001.

Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑S.25‑A‑‑‑West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.0.15(3)‑‑‑Removal from service‑‑‑Grievance petition‑‑‑Employee working as Chowkidar was removed from service on allegation that he committed act of sodomy and thereafter absconded front his duty and when he was called upon to explain his conduct, instead of giving explanation he filed grievance petition‑‑‑Labour Court despite holding that employee was involved in unnatural offence of sodomy and that he absented from his duty without any intimation, reinstated him with back‑benefits‑‑‑Employee was asked to report to employer and face the charges against him, but nothing was heard from him and he neither turned up to report for duty nor he sought his reinstatement‑‑‑Even after filing appeal by employer against judgment of Labour Court, employee did not appear despite notice was directly served upon him‑‑‑Labour Court though had given its own reasoning for holding that act of sodomy was not proved against the employee, but no plausible explanation was supplied for avoiding service of notice on him‑‑‑Decision of Labour Court reinstating employee, could not, be upheld in circumstances.

Faisal Ghani for Appellant.

Nemo for Respondent.

Date of hearing: 17th October, 2001.

2004 P L C 155

[Labour Appellate Tribunal Sindh]

Before S. Ahmed Sarwana, J

Mrs. QAMAR JAHAN

Versus

Messrs UNITED LINER AGENCIES OF PAKISTAN (PRIVATE) LIMITED and another

Appeal No.Kar-161 of 2002, L.A. No.288 and C.M.A No.3904 of 2003, decided on 9th December, 2003.

(a) Limitation Act (IX of 1908)----

----S.5---Limitation---Delay, condonation of---Under provisions of 5:5 of Limitation Act, 1908, if a person who had filed an application or appeal after period of limitation, he had to explain each and every day of delay.

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

----Ss.25-A & 37(3)---Limitation Act (IX of 1908), S.5---Grievance petition---Limitation---Delay, condonation of---Grievance notice and grievance petition against termination of service was filed by employee after more than two years from order terminating his services and he also filed application for condonation of delay alongwith grievance petition under S.5 of Limitation Act, 1908---Grievance petition filed by employee was dismissed being barred by time---Employee having not been able to justify each and every day of delay of more than two years in giving grievance notice and filing grievance petition order of Labour Court in dismissing grievance petition on ground of limitation was in accordance with law.

Mehmood Rehman v. The President National Bank of Pakistan and another 1996 PLC 571 ref.

M.A. Azmati for Appellant.

S.M. Yaqoob for Respondents.

2004 P L C 175

[Sindh Labour Appellate Tribunal]

Before Justice (Retd.) Munawar Ali Khan, Chairman

MUHAMMAD ALI and others

Versus

M/s. BAWANY SUGAR MILLS LIMITED and others

Appeals Nos.Hyd-163 and 164 of 1999, decided on 27th May, 2002.

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

---------S.25-A---Retirement on attaining age of superannuation ---Employee who was to be retired in 1998 on attaining age of superannuation (60 years) was retired in 1996 i.e. two years prior to superannuation--­Grievance petition filed against premature retirement was decided by Labour Court in 1999 holding that employee having attained his age of superannuation in 1998, employer should terminate service of employee after paying his legal dues within a month---Employee having crossed the age of superannuation at time when Labour Court had delivered its judgment, effect of judgment of Labour Court would be that employee stood retired on attaining age of 60 years which he had already passed--­Re-instatement of employee was, not possible in circumstances and only relief that would remain to be decided was quantum of dues which accrued to the employee on his retirement---Employer was to work out such dues and make payment to employee and in case of failure of employer in that regard, employee would be free to enforce payment through legal process admissible to him.

Muhammad Iqbal for Appellants.

Nemo for Respondent.

2004 P L C 18

[Lahore High Court]

Before Ch. Ijaz Ahmad and Bashir A. Mujahid, JJ

LAHORE DEVELOPMENT AUTHORITY and another

Versus

SALAH-UD-DIN

Intro-Court Appeals Nos. 856 to 862 of 2000 in Writ Petitions Nos.25729, 26259, 25159, 24476, 25416, 24949 and 24931 of 1998, heard on 15th September, 2003.

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

----S.O.1(b)---Law. Reforms Ordinance (XII of 1972), S.3---Permanent status of employee---Determination of---Intro-Court appeal--­Respondents in their Constitutional petitions had prayed that they should be treated as confirmed and regular employees of the Authority on completion of satisfactory service of 10 years and that they should be awarded all fringe benefits permissible under the law---Said Constitutional petition having been accepted by High Court, Employer Authority had filed intro-Court appeal against order of High Court contending that respondents were employed by Competent Authority on work-charged basis---Respondents/employees had submitted that they were appointed by Competent Authority in the year 1987 qua the permanent projects on permanent basis and that their services were regularized in 1996---Appellant Authority in its decision had itself decided that respondent employees would be treated as regular work­ charged employees of projects---From decision of Appellant Authority it could be concluded that projects in which respondent employees were appointed were permanent in nature and respondent employees being employees in said projects since last more than 10 years could not be termed to be temporary employees---Judgment of High Court passed in Constitutional petition being in accordance with dictum laid down by Supreme Court in its judgment reported as PLD 1996 SC 610, and not suffering from any infirmity or illegality could not be interfered with in Intra Court Appeal especially when substantial justice had been done and High Court had exercised its discretion in accordance with law.

Executive Engineer, Central Civil Division, Pak P.W.D., Quetta v. Abdul Aziz and others PLD 1996 SC 610; Muhammad Yaqub v. Punjab Labour Court No.1 1990 SCMR 1539; Izhar Ahmad khan v. Punjab Labour Appellate Tribunal 2000 PLC 199 and Jaswant Sugar Mills v. Shri Badri Prasad AIR 1967 SC 513 ref.

Javed Altaf for Appellants.

Iqbal Mehmood Awan and Syed Mumtaz H. Bokhari for Respondent.

Date of hearing: 15th September, 2003.

2004 P L C 26

[Lahore High Court]

Before Maulvi Anwarul Haq, J

ASIF SALEEM

Versus

Messrs HAIDRI BEVERAGES (PVT.) LIMITED, ISLAMABAD through Director and 4 others

Labour Appeal No.2 of 2002, heard on 15th September, 2003

Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑Ss.2(xxviii), 25‑A & 37(3)‑‑‑West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(i) & S.O.12‑‑‑Termination of service‑‑‑Grievance petition‑‑­Workman, determination of‑‑‑Employee was appointed as Sales Officer without issuing appointment letter‑‑‑Employee served the employer for about seven years, but his services were terminated verbally without issuing him any, show‑cause notice or conducting any inquiry or providing any personal hearing to him‑‑‑Grievance petition filed by employee against his termination order having been dismissed by Labour Court, employee had filed appeal against that order‑‑‑Grievance petition filed by .employee was resisted by employer contending that employee did not fall within definition of "workman"‑‑‑Validity‑‑‑Employee had been terminated without a written order and though employers had alleged misconduct against employee, but he had not been proceeded against in accordance with mandatory directions contained in West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968‑‑‑Duty of employee was to check availability of products package‑wise, in the market and he was not responsible for manufacturing process and quality control of product supplied by employers to retailers from their distributors‑‑‑In cross‑examination of employee nothing had been suggested to him regarding performance of his duties‑‑‑Witnesses produced by employer were silent as to the nature of duty of employee‑‑‑Labour Court was not justified to hold that employee was not a workman simply because he was designated as a Sales Officer‑‑‑Such would not derogate from the fact that employee was actually a workman doing manual/clerical work of visiting markets and checking stocks therein‑‑­ High Court, accepting appeal of employee set aside judgment of Labour Court and employee was ordered to be reinstated with full back‑benefit.

Brooke Bond (Pakistan) Ltd. v. Conciliator appointed by Government of Sindh and 6 others PLD 1977 SC 237; Government of Balochistan, Livestock Department v. Livestock Employees' Union, Balochistan and 2 others 1993 PLC 13; Ghulam Muhammad v. Government of Punjab and others 2000 SCMR 30; Muhammad Akram v. Senior Personnel Manager, F.E.C. Ltd., Rawalpindi and another 1988 PLC 490; Pakistan Tobacco Company Ltd. v. Pakistan Tobacco Company Employees' Union, Dacca and others PLD 1961 SC 403 and Ghulam Muhammad v. Government of Punjab 2002 SCMR 30 ref.

Abdul Rasheed Awan for Appellant.

Malik Qamar Afzal for Respondents.

Date of hearing: 15th September, 2003.

2004 P L C 69

[Lahore High Court]

Before Mian Saqib Nisar, J

ABN‑AMRO BANK through Vice‑President/Branch Manager

versus

WASIM DAR

Civil Revision No.594 of 2001, heard on 25th June, 2003.

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

‑‑‑‑O. VII, R.11 ‑‑‑Rejection of plaint‑‑‑Suit by servant for damages for termination of his service‑‑‑Refusal of Trial Court to reject plaint for not disclosing cause of action‑‑‑Validity‑‑‑Defendant (employer) being a corporate body had neither statutory status nor was State‑owned managed concern, but was a private person in eye of law‑‑‑Plaintiff‑servant had same status‑‑‑Terms and conditions of employment between parties were not governed by any statutory rules‑‑‑Parties out of their free consent and will had entered into a valid contract of employment settling down terms and conditions of employment terminable by one month notice from either side‑‑‑Plaintiff in the plaint had admitted his employment to be contractual‑‑‑Contents of plaint read with contract documents filed by plaintiff revealed that defendant had exercised its right of termination within four corners of the contract‑‑‑Such admitted facts had never required evidence‑‑‑Defendant could sever employment of plaintiff without assigning any reason‑‑‑High Court accepted revision petition and. set aside impugned order, resulting in rejection of plaint under O. VII, R.11, C.P.C.

(b) Master and servant‑‑‑

‑‑‑‑ Termination of service in violation of contract or without notice or without assigning reason‑‑‑Cause of action‑‑‑Remedy of servant‑‑‑Neither unwilling master can be forced to keep servant into his service nor unwilling servant can be forced to serve his master‑‑‑Court cannot annul termination of service, even if the same be in violation of contract‑‑­Remedy of servant in case of wrongful termination of his service would be to claim damages from master. ‑‑Where contract contains provisions for termination of service of servant, then employer is not required to assign any reason therefor‑‑‑Premature termination without mentioning reason or in absence of reason would not give cause of action to the servant to claim damages from employer except to claim salary, in lieu of notice period‑‑‑Principles.

There are no fetters and checks upon the rights of a master to terminate the services of his servant according to his own evaluation, decision and wisdom. Even if the termination is in violation of the contract, such action shall not be annulled by the Court, thus compelling the master to keep intact the services of his employee. Likewise, a servant cannot be forced to serve his master, if he is not willing to do so. However, where the employer terminates the services of his employee in violation of .the contract, the only remedy available to the aggrieved servant shall be to sue his master for damages on account of wrongful termination.

Wrongful termination is sine qua non for maintaining the right of the servant to claim the damages, otherwise he would have no cause of action.

Where contract clearly stipulates that employment can be terminated by one‑month notice in writing from either side, the parties enjoyed the absolute, unbridled and unfettred right to put an end to the employment, but upon service of requisite notice. The object of notice seems to be that if employee is giving up the job, the employer should be enabled to make some alternate arrangement and if the services of employee are being terminated, then he must explore some other job during that period. In absence of notice, the termination in view of such clear stipulation of the contract, cannot be said to be in breach thereof and‑ thus wrongful. The only entitlement of the employee would be to claim salary for the month he is terminated without notice and also the other dues, which he has earned as of right.

If employee has been inducted as a permanent employee, yet according to said clause of contract that services can be put to an end by one month notice which would mean that permanent employment of employee is subject to this fundamental condition.

When there is a provision in the contract for termination of services of employee, then employer is not required to assign any reason and can simply dispense with the service of his servant as per his own decision and wisdom. For non‑mentioning of the, reason or there being no reason at all, the employee would have no cause of action to claim damages from employer on account of his premature or earlier termination. Employee at the most would be entitled to one month salary in lieu of notice.

Shafi Ahmed Zaidi v. Malik Hassan Ali Khan 2002 SCMR 338; Messrs Al‑Riaz Agencies v. Chamber of Commerce and Industries, Karachi 2001 CLC 1966; Ghous Bux v. Muhammad Suleman and others 2001 MLD 1159; Hidayat Ullah v. Iqbal and others 1999 YLR 2001; Messrs Standard Hotel (Pvt.) Ltd. v. Messrs Riocenter and others 1994 CLC 2413; Muhammad Yaqub and others v. The Province of the Punjab through Home Secretary and others 1993 MLD 2419; Jowan and others v. Federation of Pakistan through Secretary, Home Affairs and others 1992 MLD 225; Messrs Abdul Hamid v. Board of Intermediate and Secondary Education 1991 MLD 672; Ghulam Ahmed and others v. Ghulam Mehdi and others 1989 MLD 4873; Nazar, Ahmed and others v. Gbulam Mehdi and others 1989 SCMR 824; Muhammad Akhtar and others v. Abdul Hadi 1981 SCMR 878; Burma Eastern Ltd. v. Burma Eastern Employees' Union and others PLD 1967 Dacca 190; Mst. Iqbal Begum v. Farooq Inayat and others PLD 1993 Lah. 183; Elis D. Silva v. Salahuddin and others 1984 CLC 1120; Mst. Sharifan Begum and others v. Muhammad Shahbaz and others 2000 CLC 63; Sahib Sultan and others v. Moula Muhammad Ramzan PLD 2000 Quetta 61; Gul Muhammad Mir Bahar v. National Logistic Cell, Ministry of Defencc 1999 CLC 2032; Naya Daur Motor (Pvt.) Limited v. Pakistan Banking Council through Chairman, Habib Bank Plaza, Karachi PLD 1997 Kar 208, Messrs Malik and Haq and others v. Muhammad Shamsul Islam Choudhury and others PLD 1961 SC 531; Habib Bank Ltd. v. , Syed Zia Hassan Kazmi 1998 SCMR '60; Mrs. Anisa Rehman v. P.I.A.C. 1994 SCMR 2232; Dr. Iqtidar Hussain Zaidi v. University of the Punjab PLD 1978 Lah. 298; Gulf Steamship Co. Ltd. v. Dilwash Balooch PLD 1962 (W.P.) Kar. 899; Sufi Muhammad Ishaque v. The Metropolitan Corporation, Lahore PLD 1996 SC 737; National Shipping Corporation's case PLD 1974 SC 146;. J.J. Miranda v. Fishermen's Cooperative Society Ltd., Karachi PLD 1978 Kar. 990; United Bank Limited v. Ahsan Akhtar and others 1998 SCMR 68; Halsbury's Laws of England, 4th Edn., Vol. 16, 439; C. Kameshwara Rao's Treatise on Law of Damages and Compensation, 5th Edn., VOI.II, p. 978 and Vol. III, 164 and Mcgredoron on. damages, 15th Edn., p. 347 ref.

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

‑‑‑‑‑O.VII, R.11(a)‑‑‑Rejection of plaint‑‑‑Judicial record/order produced in defence or facts admitted in Court‑‑‑Considerations‑‑‑Contents of plaint coupled with documents attached thereto are most important material .to be considered by Court‑‑‑Judicial record or order produced in defence, which are not rebutable by plaintiff or facts admitted in Court can always be taken into consideration, while determining question, whether plaint discloses a cause of action or not.

Raza Farooq for Petitioner.

Syed Hamid Ali Shah for Respondent.

Date of hearing: 25th June, 2003.

2004 P L C 78

[Lahore High Court]

Before Mrs. Fakhar‑un‑Nisa Khokhar, J

THE PUNJAB EMPLOYEES SOCIAL SECURITY INSTITUTION through Commissioner, Punjab Employees' Social Security Institution

versus

Messrs GULSHAN SPINNING MILLS LIMITED and another

First Appeal from Order No.44 of 1993, heard on 9th December, 2003.

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

‑‑‑‑Ss.23, 57, 58, 61 & 62‑‑‑Provincial Employees' Social Security Contribution Rules, 1966, Rr.5 . & 6‑‑‑Default in payment of contribution‑‑‑Penalty of increase for such default was reduced by Social Security Court‑‑‑Validity‑‑‑Social Security Court being a Civil Court was competent to adjudicate upon such matter in view of Ss. 60, 61 & 62 of Provincial Employees' Social Security Ordinance, 1965‑‑‑No bar for Court to reduce amount of penalty,‑if deemed fit in circumstances of a case‑‑‑High Court dismissed appeal.

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

Sarfraz Ali Cheema for Appellant.

Rana Abdul Hameed Talib and Akhtar Ali Qureshi, A.A.‑G. for Respondents.

Date‑of hearing: 9th December, 2003

2004 P L C 100

[Lahore High Court]

Before Maulvi Anwarul Haq, J

IFTIKHAR AHMED and others

versus

PUNJAB LABOUR APPELLATE TRIBUNAL and 2 others

Writ Petitions Nos.627 and 1168 of 2002, heard on 18th December, 2003.

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

----Ss. 2(c)(iii) & 12---Industrial Relations Ordinance (XXIII of 1969), S. 25-A---Constitution of Pakistan (1973), Art. 199---Constitutional petition--- Misconduct--- Dismissal from service---Grievance petition--­Plea of workman was that neither there was charge-sheet nor inquiry .had taken place; that order appointing Inquiry Officer was issued by Personnel Manger, who was not employer within meaning of S.2(c)(iii) of West Pakistan Industrial and Commercial Establishment (Standing Orders) Ordinance, 1968; and that signatures of Inquiry Officer in inquiry report were forged---Grievance petition was dismissed by Labour Court, which order was upheld by the Appellate Court ---Validity--­Courts below had concurrently found that charge-sheet had been served and replied; and inquiry had been conducted and charges had been proved---Record showed that Personnel Manager was subordinate to General Manager, who was answerable to owner of the establishment--­Dismissal order showed that same had .been passed by Personnel Manager with approval of General Manager having reference to charge-sheet, appointment of Inquiry Officer and proceedings taken by latter---Appellate Court on comparison had found signatures on inquiry report to' be that of Inquiry Officer---High Court while hearing Constitutional petition would not hold to the contrary being a question of fact---High Court dismissed Constitutional petition.

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

----Art.84---Constitution of Pakistan (1973), Art.199---Constitutional petition--- Comparison of questioned signatures on a document with admitted signatures of its author--- Court below found questioned signatures not to be forged---Validity---High Court while hearing ` Constitutional petition would not hold to the contrary.

Ch. Sadiq Muhammad Warraich for Petitioners.

Atta-ur-Rehman for Respondents.

Date of hearing: 18th December, 2003.

2004 P L C 104

[Lahore High Court]

Before Muhammad Akhtar Shabbir, J

ASHRAF SUGAR MILS LTD

versus

COMMISSIONER FOR WORKMEN'S COMPENSATION, BAHAWALPUR and another

Writ Petition No.4160 of 2002/B.W.P. decided on 12th December, 2002.

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

-----Ss. 10(c) & 32(1''1---West Pakistan Workmen's Compensation Rules 1961; R.14---Constituuon of Pakistan (1973), Art. 159---Constitutional petition---Competency of Labour Officer to `forward reference to Commissioner---Labour Commissioner, Labour Officer and Labour Inspector, being fully competent to refer the matter to Commissioner for Workmen Compensation as provided under S.10(c) of Workmen's Compensations Act, 1923 and R.14 of West Pakistan Workmen's Compensation Rules, 1961---Labour Officer had competently forwarded reference to Commissioner after adopting prescribed procedure---In absence of any illegality or violation of any law and Rules, High Court could not interfere with the order of reference in exercise of its Constitutional jurisdiction.

M. Shamshir Iqbal Chughtai for Petitioner.

2004 P L C 116

[Lahore High Court]

Before M. Javed Buttar, J

PATTOKI SUGAR MILLS

versus

LABOUR COURT and others

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

Industrial Relations Ordinance (XXIII of 1969)

-----Ss. 25-A, 38(3) & 51---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O..15--­Constitution of Pakistan (1973), Art. 199---Constitution petition--­Dismissal from service---Re-instatement---Entitlement to full back benefits---Person who had committed fraud, breach of trust, embezzlement, misappropriation and dishonesty in the performance of duty, was proceeded against and was dismissed from service and a criminal case was also registered against him---Employee was simply suspected of having not made the Management aware of what had happened and after serving him show-cause notice, charge-sheeting him and after holding inquiry against him employer dismissed him from service---Labour Court, on grievance petition by employee under S.25-A of Industrial. Relations Ordinance, 1969 set aside dismissal order against employee and he was ordered to be reinstated in service with full back­-benefits---Labour Appellate Tribunal though upheld order of Labour Court reinstating the employee, but reduced award of back-benefit to employee to one-half observing that employee having not rendered practical service to employer establishment, he was not entitled to have back-benefits---Validity---Employee was not to be blamed for foul play in any manner after recording finding by Labour Appellate Tribunal and that he was ousted from service for no fault on his part and than employee deserved reinstatement in service from date of his unjustified dismissal from service, reduction of back-benefits to one-half was unjustified especially when it stood established on record through evidence that employee remained jobless, throughout intervening period---Order reducing back-benefits to one-half passed by Labour Appellate Tribunal, was declared to be illegal and employee was had entitled to full back-benefits from date of his dismissal from service.

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. The 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 645; The Province of Punjab through The Secretary, Services and General Administration, Lahore v. Syed Muhammad Ashraf 1.973 SCMR 304; General Manager Lay yah Sugar Mills, Layyah v. Saleem Pervaiz Hashmi, Dispenser 19971 PLC 111; Messrs Sethi Straw - Board Mills Ltd. v. Punjab Labour Court No.3 Lyalpur 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 Chaudhry for petitioner

Ali Ahmad Awan for Respondent No. 1.

Date of hearing: 30th April, 2003.

2004 P L C 157

[Lahore High Court]

Before Ch. Ijaz Ahmad, J

Khawaja SAJJAD MEHMOOD

Versus

PUNJAB LABOR APPELLATE TRIBUNAL LAHORE through Hon'ble Chairman and 4 others

Writ Petition No. 19395 of 2002, heard on 28th January, 2004.

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

----Ss.25-A, 37 & 38---Constitution of Pakistan (1973), Art.199--­Constitutional petition---Termination of service---Remand of case---­Grievance petition---Grievance petition by employee against his termination from service was accepted by Labour Court, but on appeal by employer (Bank) order passed by Labour Court was set aside by the Appellate Tribunal and case was remanded for fresh decision---Remand order had been challenged by employee in Constitutional petition--­Employee had alleged that neither charge-sheet was issued to him nor dismissal order was passed by the Competent Authority under Rules and Regulations and that Labour Appellate Tribunal was not justified to remand the case---Authorities had dismissed employee from service after the case was remanded by the Labour Appellate Tribunal--­Petitioner/employee had filed Constitutional petition without mentioning that he had already filed a grievance petition---Petitioner, in circumstances, had concealed material facts from the Court---He who seeks equity must come to the Court with clean hands---Petitioner having concealed material facts, High Court declined to exercise its discretion in his favour---Labour Court, however, in the interest of justice and fair play, was directed by the High Court to decide grievance petition of petitioner as early as possible in view of special circumstances of the case.

Chairman WAPDA Lahore and others v. Ghulbat Khan 1996 SCMR 230; Muhammad Habib Khan v. Pakistan Tobbaco Co. and others PLD 1991 SC 183; M.C.B. Karachi and others v. Punjab Labour Appellate Tribunal and others 1994 PLC Lah. 38; Abdur Rashid v. Pakistan and others 1969 SCMR 141 and Principal, K.E.M. College v Ghulam Mustafa and others 1983 SCMR 196 ref.

Ch. Ghulam Qadar for Petitioner

Shahid Anwar for Respondents.

Date of hearing: 28th January, 2004.

2004 P L C 224

[Lahore High Court]

Before Ch. Ijaz Ahmad, J

DIRECTOR GENERAL, LDA and 2 others

Versus

AMJAD ALI

Writ Petition No. 10141 of 1999, decided on 13th April, 2004.

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

‑‑‑‑S.25‑A‑‑‑Constitution of Pakistan (1973), Arts.25 & 199‑‑‑Constitutional petition‑‑‑Employment, nature of‑‑‑Contractual employment for a long period‑‑‑Termination of service‑‑‑Reinstatement in service‑‑‑Principle of last come first‑ ‑Authorities terminated the service of respondent on the ground that he was employed in a Project on contract basis for a fixed period and there was no budgetary pose against which the respondent was appointed‑‑‑Post against which the respondent had been employed still existed and another person was appointed in hi` place and many other persons were also employed in the same category‑‑‑Grievance petition flied by the respondent was dismissed by Labour Court but Labour Appellate Tribunal reinstated the respondent in service without back benefits‑‑‑Validity‑‑‑Authorities failed to establish before Labour Appellate Tribunal that the respondent was the junior most at the time his ouster from service was ordered‑‑‑Respondent was getting salary on monthly basis without any deduction in respect of weekly holidays‑‑‑Authorities could only terminate the services of the respondent with reasons as was envisaged under the provisions of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968‑‑‑By virtue of legal consequences, such type of appointments had permanent character by performing duties against a post for such a long period‑‑‑Action of the authorities was without lawful authority and was hit by Art.25 of the Constitution‑‑‑Labour Appellate Tribunal had rightly held that the services of respondent were of permanent nature and the Tribunal had rightly, reinstated the respondent in service‑‑‑High Court in exercise of Constitutional jurisdiction declined to interfere with the judgment passed by the Labour Appellate Tribunal‑‑‑Petition was dismissed in circumstances.

I. A. Shervani's case 1991 SCMR 1041; Abdul Majeed Sheikh's case PLD 1965 SC 208; Races Khan's case 1993 SCMR 609; Faisalabad Development Authority's case 1986 PLC 705; Jan Muhammad Chowkidar's case 1986 PLC 596; Rice Export Corporation's case 1990 PLC 93; XEN Central Civil Division v. Abdul Aziz PLD 1996 SC 610 and Punjab Seed Corporation v. PLAT 1995 PLC 539 ref.

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

‑‑‑‑S.O. 1(c)‑‑‑Contractual employment‑‑‑Re‑employment after every 89 days‑‑‑Effect‑‑‑Intention and spirit of law cannot be permitted to be offended against, by keeping an employee on road just for 89 days (a day less than probationary span) which is mala fide and is illegal device against the provisions of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968.

Races Khan's case 1993 SCMR 609; Agha Shorash Kashmiri's case PLD 1969 SC 14; XEN Central Civil Division v. Abdul Aziz PLD 1996 SC 610 and Punjab Seed Corporation v 1995 PLC 539 rel.

(c) Mala fides‑‑‑

‑‑‑‑ When action is based on mala fides then the same is not sustainable in the eyes of law.

Zia‑ur‑Rehman Farooqi's case PLD 1973 SC 49; Saeed Ahmad Khan's case PLD 1974 SC 151 and Ghulam Mustafa Khan's case PLD 1989 SC 26 rel.

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

‑‑‑‑Art.4‑‑‑General Clauses Act (X of 1897), S.24‑A‑‑‑Public functionaries, acts of‑‑‑Principle‑‑‑Public functionaries are duty bound to act in accordance with law in view of Art.4 of the Constitution and under S.24‑A, General Clauses Act, 1897, it is duty and obligation of public functionaries to pass orders with reasons‑‑‑Order without reasons is not sustainable in the eyes of law under S.24‑A, General Clauses Act, 1897 which is procedural in nature and has retrospective effect.

Utility Stores Corporation's case PLD 1987 SC 447; Messrs Airport Support Services v. The Airport Manager 1998 SCMR 2268 and Zian Yar Khan v. The Chief Engineer 1998 SCMR 2419 rel.

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

‑‑‑‑Art.199‑‑‑Constitutional jurisdiction of High Court‑‑‑Scope‑‑‑Such jurisdiction is discretionary in character and where substantial justice has been done, High Court can refuse to exercise such discretionary jurisdiction.

Nawab Syed Raunaq Ali's case PLD 1973 SC 236 and Rana Muhammad Arshad's case 1998 SCMR 1462 rel.

Muhammad Rashid Ahmad for Petitioners.

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2004 P L C 38

[National Industrial Relations Commission]

Before S. Altaf Hussain Shah, Member

UNITED BANK EMPLOYEE FEDERATION through Provincial Secretary and 15 others

Versus

PRESIDENT, UNITED BANK LIMITED and 4 others

Case No.4A(27) of 2003-L and 24 (30)/2003-L, decided on 5th June, 2003.

Industrial Relations Ordinance (XCI of 2002)---

----Ss.49(4)(e) & 64---Unfair labour practice by employer---Person claiming himself to be representative of petitioners' Employees'. Federation and also of locally registered Trade Union, had filed petition, under S.49(4)(e) .of Industrial Relations Ordinance, 2002 against Bank to espouse cause of workers---Said workers had never appeared before National Industrial Relations Commission nor they had signed any documents nor had verified petition filed by said person nor had annexed their affidavits---Person who had claimed to be representative of both Trade Unions, was also stated to have left the employment of Bank---No provision existed in Industrial Relations Ordinance, 2002 entitling a Trade Union to file a grievance petition in respect of individual grievance of a worker or even to represent one or more workers in a joint grievance petition unless it was a Collective Baigaining Agent--­Petitioners Employees' Federation against which complaint for its cancellation was filed before Labour Court, had otherwise lost its locus standi to act as a Trade Union espousing the cause of workers; as regards locally registered Trade Union, no convincing documents showing it to be a certified Collective Bargaining Agent, had been produced by petitioners---Neither of the two petitioners/Trade Unions, in circumstances, was legally competent to espouse the cause of workers either in respect of their individual or collective grievance--­Even otherwise S.49(4)(e) of Industrial Relations Ordinance, 2002 whereunder petition had been filed, did not contemplate any such remedy competently to be sought by filing a petition in a representative capacity---Since neither of petitioner Trade Unions was a certified Collective Bargaining Agent, self-styled representative of petitioners' Unions, had no locus standi to institute petition under S.49(4)(e) of Industrial Relations Ordinance,, 2002.

Ch. Waqar Ahmed for Petitioners.

Faisal Mehmood Chani for Respondents.

2004 P L C 47

[National Industrial Relations Commission]

Before Qazi Ahmed Saeed, Member

MUHAMMAD AKRAM, OPERATOR and 17 others

Versus

FAUJI METAL, NEW LALAZAR, RAWALPINDI and another

Case Nos. 4A(38), 4A(39) and 4A(40) of 2001, decided on 11th August, 2003.

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

----Ss .15 & 22-A(8)(g)---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), Ss. 1(3)(a), 2(f)(ii) & S.Os. 11-A and 12---Unfair labour practice by employers, proof of----Closing of Establishment and termination of services--­Employees has alleged that employers declaring a nominal closure of their Establishment in papers, had terminated their services, though establishment had been continuously working---Further allegation by employees was that when they decided to form a Trade Union in the Establishment they were threatened by employers that they would not be allowed to form such trade union and if they tried to form the same they would be unemployed, which according to employees was an act of unfair labour-practice by the employers---Validity---Case of employees rested on bald allegation of unfair labour practice---Employees had themselves admitted that Establishment concerned was a charitable institution which was being. run by a Committee of Administration consisting of Serving Military Generals---Employees had not challenged closure order in respect of Establishment before the Labour Court--­Employees had failed to prove that their services were terminated on account of their alleged trade union activities by way of unfair labour practice as defined under S.15 of Industrial Relations Ordinance, 1969--­Employees even failed to prove the existence of any trade union or formation of such trade union in the Establishment- --Record showed that Establishment was already closed and none of the employees even on daily wages basis, was in the employment of Establishment---Employees had failed to quote any specific instance of lawful trade union activities­--Mere bald allegations of unfair labour practice were not sufficient to prove victimization of, employees for their alleged Trade Union activities---Petitions by employees under S.22-A(8)(g) of Industrial Relations Ordinance, 1969, were, dismissed holding that National Industrial Relations Commission had no jurisdiction to deal with the petitions.

1992 PLC 405; NLR 20,00 18; PLD 1983 SC 457; 2000 PLC 613; 2002 PLC 133 and 2001 PLC 583 ref.

Malik Meharban for Petitioners.

Muhammad Azam Chatta for Respondents.

2004 P L C 57

[National Industrial Relations Commission]

Before Qazi Ahmad Saeed, Member

ARMY WELFARE TRUST NIZAMPUR CEMENT PLANT through Manager Administration

Versus

SHAHID TANVEER and 9 others

Case No.7 (2) of 2003, decided on 12th August, 2003.

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

-----S.51---Complaint against employees for violating order passed by National Industrial Relations Commission---Maintainability---National Industrial Relations Commission on petition by Establishment/ complainant, passed' order to the effect that Establishment being an institution connected with and incidental to the Armed Forces of Pakistan, was covered by exemption prescribed under S.1(3)(a) of Industrial Relations Ordinance, 1969 and employees of Establishment were excluded from application of the Ordinance and direction was issued that employees of Establishment would not involve themselves in formation of any Trade Union in the Establishment---Establishment in- its complaint had alleged that since its employees were excluded from the application of Industrial Relations Ordinance, 1969, act of employees forming and registration of Awami Labour Union in the Establishment was against law and in violation of order of National Industrial Relations Commission---Complainant had prayed that accused employees be summoned and punished for committing contempt of National Industrial Relations Commission---Complaint filed by Establishment was resisted by employees contending that provisions of S.51 of Industrial Ordinance, 2002 were not attracted in the case and the National Industrials Relations Commission had no jurisdiction to entertain complaint of Establishment because Commission being a creation of Industrial Relations Ordinance, 1969 after giving finding that employees of Establishment were excluded from application of Industrial Relations Ordinance, 1969, Commission had no jurisdiction to entertain the complaint---Contention was repelled because S.51 of Industrial Relations Ordinance, 2002 had clearly provided that the Commission had power to punish any person who would obstruct or abuse its process or would disobey any of its order or directions---Complaint/petition by complainant/Establishment being based on alleged disobedience and violation of order of National Industrial Relations Commission, complaint was maintainable before National Industrial Relations Commission---Objection of accused employees with regard to maintainability of complaint was rejected and competent was held to be maintainable---Mixed questions of law and fact being involved in the matter, same would be examined and determined after recording evidence of the parties.

Mumtaz Hussain Malik for Petitioner.

Malik Meharban for Respondents

2004 P L C 91

[National Industrial Relations Commission]

Before Qazi Ahmed Saeed, Member

MUNAWAR HUSSAIN

versus

ZAHID MALIK, EDITOR‑IN‑CHIEF, PAKISTAN OBSERVER

Cases Nos.4A(263) and 24(352) of 1998, decided /on 26th September, 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)‑‑‑Termination of service‑‑‑Petition against unfair labour practice by employers‑‑‑Stay order‑‑‑Employee whose services were terminated had alleged that he had been victimized due to his trade union activities which amounted to unfair labour practice by employers‑‑‑Employee though was member of trade union concerned, but he failed to establish a single trade union activity which would annoy the employers to such an extent that they would go out of their way to victimize. the employee‑‑‑In absence of any cogent evidence it could not be believed that employee was victimized by employers‑‑‑Mere wild and bald allegation of unfair labour practice was not sufficient to prove victimization and make the matter amenable for interference by National Industrial Relations Commission‑‑‑Act of termination of service of employee, in circumstances, could not form basis for holding that employers had committed an act of unfair labour practice‑‑‑Basic issue in the present case against which employee felt aggrieved being his termination from service, National Industrial Relations Commission had no jurisdiction. to interfere with the matter because jurisdiction of the Commission. was restricted and limited only to cases based on allegations of unfair labour practice‑‑‑Petition was dismissed and stay order issued in favour of petitioner was recalled .

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

Abdul Hafeez Amjad for Petitioner.

Nadeem Mukhtar Chaudhry for Respondents

Date of hearing: 26th September, 2002.

2004 P L C 110

[National Industrial Relations Commission]

Before Qazi Ahmed Saeed, Member

S.B. FEED MILLS I'ATIFABALD MANDRA DISTRICT RAWALPINDI through Manager

versus

RAJA FAROOQ and another

Case Nos.4A(45) and 24(53) of 2002, decided on 15th August, 2002.

Industrial Relations Ordinance (XXIII of 1969)---

----S.22-A(8)(g)---National Industrial Relations Commission (Procedure and Functions) Regulation, 1973, Regln.32(2)---Ad interim order, grant of---Management had alleged that Trade Union after its registration. instead of maintaining industrial harmony and orderly relationship with Management, displayed disorderly behaviour incompatible with concept of trade union activities and that union threatened Manager that unless so-called demands of workers were conceded by Management, union would hold meeting during working hours and would raise voice against Management---Management filed petition under S.22-A(8)(g) of Industrial Relations Ordinance, 1969 with application for grant of ad interim order praying that prohibitory order be issued directing the union and all others connected with it not to commit acts of unfair labour practice and restrain union from holding illegal gathering at the premises so as to avert disruption in production of Mills---Charter of demands given by union was pending settlement and Management strongly apprehended that union would resort to illegal activities to pressurize Management to accept demands---Main aim of Management was to prevent commission of acts of unfair labour practice as on the basis of evidence on record, strong apprehension existed that union would resort to illegal activities to pressurize Management to accept their demands---Allegations of unfair labour practice could only be decided by recording of evidence of parties---Objection regarding unfair labour practice raised by union could not be decided at stay stage---Management had made out a good prima facie arguable case and all other ingredients for. issuance of interim injunction were also in its favour---Management would suffer irreparable loss and injury if interim relief sought by it was not granted---Application for grant of ad interim order was accepted with direction to union not to commit any act of unfair labour practice and not to disturb production of Mills which was of continuous nature---Union was also directed not to hold illegal meeting at Mills premises.

1987 PLC 298 and 190 PLC 662 ref.

Mushtaq Hussain Bhatti for Petitioner.

Malik Mehrban, Representative for the Respondents.

2004 P L C 125

[National Industrial Relations Commission]

Before Qazi Ahmed Saeed, Member

SAJID HUSSAIN and 4 others

versus

SABRO REFRIGERATION AND AIRCONDITIONING EQUIPMENT MANUFACTURERS, S.A. BROTHER PRIVATE LTD. through General Manager and another

Case Nos.4A(286) and 24(391) of 1998, decided on 28th 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(22) ‑‑‑ Petition against unfair labour practice by employers‑‑‑Employees had alleged that their services had been terminated on account of their trade union activities which amounted to an act of unfair labour practice of employers as envisaged tinder S.15 of Industrial Relations Ordinance, 1969‑‑‑Petitioners who had made allegation of their victimization on account of their trade union activities, had failed to point out any specific trade union activity on basis of which they were allegedly dismissed from service‑‑‑Mere wild and bald allegation of unfair labour practice was not sufficient to prove victimization and make the case amenable for interference by National Industrial Relations Commission‑‑‑Employers had established that services of employees were terminated as Management had decided to re‑organize and rationalize load‑work and that General Service Department had been abolished and all employees including petitioners were declared surplus‑‑‑Petitioners having failed in proving unfair labour practice on part of employers, National Industrial Relations Commission had no jurisdiction to deal with the petition filed by petitioners under S.22‑A(8)(g), of Industrial Relations Ordinance, 1969‑‑‑Petition was dismissed in circumstances.

1974 PLC 225; 1990 LC 385; PLC 1987 (S.C.) 447; 1996 PLC 86; PLD 1988 S.C. 53; 1991 PLC 876; 1988 PLC 923; 1988 PLC 419 and 1994 PLC 31 ref.

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

‑‑‑‑Ss.15 & 22‑A(8)(g)‑‑‑Jurisdiction of National Industrial Relations Commission‑‑‑ Scope‑‑‑ National Industrial Relations Commission had jurisdiction to interfere only if a case fell within ambit of S.15 of Industrial Relations Ordinance, 1969‑‑‑No other victimization, even if proved, was actionable by National Industrial Relations Commission in exercise of jurisdiction under S.22‑A(8)(g) of Industrial Relations Ordinance, 1969.

Nazir Muhammad General Manager T.I.P. Haripur and another v. Ghulam Asghar and 4 others 1988 PLC 923; 1988 SC 53 and National Motors Ltd. v. Muhammad Hanif 1987 PLC 547 ref.

Malik Meharban Representative for Petitioners.

Syed Nazir Ahmad for Respondents.

2004 P L C 160

[National Industrial Relations Commission]

Before Ali Nawaz A. Channa, Chairman; Muhammad Iqbal Hussain and Syed Sultan Ahmad Members

SHAHEEN AIRPORT SERVICES HARD WORKERS UNION, through General Secretary

Versus

THE REGISTRAR INDUSTRY‑WISE TRADE UNIONS and another

Appeals Nos. 12(22) and 24(50) of 2003, decided on, 23rd October 2003.

Industrial Relations Ordinance (XCI of 2002)‑‑‑

‑‑‑‑Ss. 2(xvii) & 10‑‑‑West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(b)‑‑­Cancellation of registration of Workers Union‑‑‑Filing of complaint‑‑­Applicability of Industrial Relations Ordinance, 2002‑‑‑Scope‑‑‑Order of Registrar Industry‑Wise Trade Unions whereby Deputy Registrar was directed to file complaint under S.10 of Industrial Relations Ordinance, 2002, had been challenged by the Union‑‑‑Employer establishment was a subsidiary arid 'branch of a Foundation which was created by the Government under a notification‑‑‑Foundation was a charitable Institution created under Charitable Endowment Act for welfare of the retired and serving personnel of the Armed Forces and to establish the handicapped persons and to establish hospitals, Schools, etc.‑‑‑Employer being an integral part of said Foundation, could not be said to be separate or different entity‑‑‑Appellant union could not produce a single document to show that employer was not the subsidiary of the Foundation‑‑‑Mere asserting that it was different entity was not sufficient to hold that employer was a separate and different entity‑‑‑Employer being integral part of the Foundation, it was excluded from provisions of Industrial Relations Ordinance, 2002 which were not applicable to it‑‑‑No Union could legally be registered in the employer's establishment‑‑‑Order of Member/Registrar Industry‑wise Trade Unions by which he gave direction to Deputy Registrar to file complaint before Labour Court against the registration of trade union in the employer's establishment, was perfectly correct and could not be interfered with.

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

M.A.K. Azmati for Appellant

F.K. Butt for Respondents.

2004 P L C 194

[National Industrial Relations Commission]

Before Qazi Ahmed Saeed, Member, DILBER KHAN

Versus

GHAZI BAROTHA CONTRACTORS through Administration and Finance Manager, Tarbela

Case No.4A(25) of 2000, decided on 6th July, 2002.

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

‑‑‑‑Ss.15 & 22‑A(8)(g)‑‑‑Allegation of unfair labour practice by employer‑‑‑Petitioner had alleged that his termination from service was result of victimization on account of his trade union activities which had constituted unfair labour practice on part of the employer‑‑‑Petitioner who was terminated according to terms of his appointment letter which were binding on him had himself admitted during his cross‑examination that he was not a office‑bearer of the Union and had not made any specific allegation of unfair labour practice against the employer Petitioner had failed to establish a single trade union activity which would annoy employer to such an extent that it would go out of way to victimize petitioner‑‑‑National Industrial Relations Commission would acquire jurisdiction only if it was shown that unfair labour practice had been committed‑‑‑Provision of S.15 of Industrial Relations Ordinance, 1969 had provided redress of grievance as 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 jurisdiction under S.22‑A(8)(g) of Industrial Relations Ordinance, 1969‑‑‑Mere bald allegations of unfair labour practice were not sufficient to prove victimization to justify interference by Industrial Relations Commission‑‑‑Petitioner who was neither office ­bearer of Union nor had made any specific allegation of unfair practice against employer, could not be granted relief prayed for nor the National Industrial Relations Commission would have jurisdiction to deal with his case.

1994 PLC 306; Muhammad Yaqoob v. The Punjab Labour Court No.1 and 5 others 1990 SCMR 1539; Board of Governors Aitchison College Lahore v. Punjab Labour Appellate Tribunal and others 2001 PLC 589; Ahmad Sadiq v. Chief Settlement Commissioner PLD 1974 SC 368; University of Delhi and another v. Ram Nath and others AIR 1963 SC 1873; 1992 PLC 665; K.D. Old Principal Christian Technical Training Centre Gujranwala v. Punjab Labour Court, Northern Zone and 6 others PLD 1976 Lah. 1097; S.M. Gill v. M/s. Tarbela Joint Venture 1977 PLC 133; 1992 PLC 1090; PLD 1988 SC 53; 1991 PLC 876; 1988 PLC 419;1994 PLC 31; Nazar Muhammad General Manager T.I.P. Haripur and another v. Ghulam Asghar and 4 others 1988 PLC 923 and National Motors Limited v. Muhammad Hanif 1987 PLC 547 ref.

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

‑‑‑‑Ss. 2(xiv), 9(xxviii) & 22‑A(8)(g)‑‑‑West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(b)(i)‑‑‑Educational Institution not an industry‑‑‑Any institution where education was imparted would not be covered by labour laws‑‑‑‑Petitioner who was employed as Physical Training Instructor in a School would not fall within definition of `worker' as defined under S.2(xxviii) of Industrial Relations Ordinance, 1969, or under S.2(i) of West Pakistan. Industrial and Commercial Employment (Standing Orders) Ordinance 1968.

Board of Governors Attchtsan College Lahore v. Punjab Labou­r Appellate Tribunal and others 2001 PLC 589 ref.

Mushtaq Hussain Bhatti for Petitioner.

Nuh Nabi Butt Senior Legal Officer alongwith F.K. Butt for Respondent.

2004 P L C 209

[National Industrial Relation Commission]

Before Ghulam Nauman Shaikh, Member

MEHNATKASH LABOUR UNION, ALNOOR SUGAR MILLS LIMITED through General Secretary

Versus

AL‑NOOR SURGAR MILLS LIMITED through Executive Vice‑President and 2 others

Case No.4A(159) of 2001‑K, decided on 18th August, 2001.

Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑S.22‑A(8)(g)‑‑‑National Industrial Relations Commission (Procedure and Functions) Regulations, 1973, Regln.32‑‑‑Unfair labour practice by employer‑‑‑Stay application, confirmation of‑‑‑Petitioner union in its stay application had prayed that since charge sheet had been issued to 20 workers and inquiry had also been held against them, an apprehension existed that they alongwith other office‑bearers of union and other members of union would be terminated from service by the management/­committing unfair labour practice, therefore, interim order already passed in its favour be confirmed‑‑‑Charge‑sheet was issued to workers for defiance of lawful orders of management and for forming unlawful assembly and holding gate meetings inside factory for which inquiry had been held by management against workers who had participated in the inquiry‑‑‑Nothing was 'on record to show that charge‑sheet was issued to workers as an act of victimization on account of their lawful trade union. activities‑‑‑No reason existed to curb right of management to pass orders on disciplinary proceedings held against workers‑‑‑If any irregularity was found in inquiry, it would not by itself constitute an act of unfair labour practice‑‑‑To conduct disciplinary proceedings on act of misconduct against workers, 'even if they were office bearers of Collective Bargaining Agent was the right of management which could not be curbed or taken away merely on general and vague allegations of unfair labour practice by employer‑‑‑Office bearer of union was not immune from disciplinary proceedings on account of misconduct‑‑­Petitioner union having not been able to make out a prima facie case of unfair labour practice likely to be committed by management, application for stay order was rejected anti ad‑interim order already passed in favour of petitioner union was recalled.

Nishat Warsi for Petitioner.

Faisal Mehmood Ghani for Respondents.

2004 P L C 215

[National Industrial Relations Commission]

Before Ali Nawaz A. Channa, Member

RAUF TEXTILE AND PRINTING MILLS EMPLOYEES UNION, KARACHI and 4 others

Versus

Messrs RAUF TEXTILE AND PRINTING MILLS (PVT.) LTD., KARACHI

Cases Nos.4A(101)‑K and 24(102)‑K of 2002, decided on 11th June, 2002.

Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑S.22‑A(8)(g)‑‑‑National Industrial Relations Commission (Procedure and Functions) Regulations 1973 Regln.32‑‑‑Dismissal of stay application and main petition‑‑‑Application praying to keep operation of order in abeyance and to continue interim order of stay‑‑‑Applicant, after dismissal of stay application as well as main petition filed under S.22‑A(8)(g) of Industrial Relations Ordinance 1969, had filed application under S.151 C.P. C. praying therein to keep operation of order in abeyance and to continue interim order of stay till hearing of appeal by Full Bench of National Industrial Relations Commission‑‑­Whether applicant actually wanted to file appeal or not was not known as no affidavit was filed by applicant alongwith the application‑‑­Provisions of C.P.C. were not strictly applicable to proceedings before National Industrial Relations Commission‑‑‑Once order was passed by National Industrial Relations Commission, it could not review, revise or suspend operation of its order as after passing order National Industrial Relations Commission would become functus officio and it was for the, Appellate Court to stay or suspend operation of, judgment of National Industrial Relations Commission‑‑‑When stay application was dismissed by judgment on merits, to continue stay on application would amount to its confirmation which would be a conflicting order and no such prayer could be granted in a miscellaneous application‑‑‑Application was dismissed in circumstances.

Ashraf Hussain Rizvi for Petitioners.

S.M. Yaqoob for Respondents.

2004 P L C 222

[National Industrial Relations Commission]

Before Ali Nawaz A. Channa, Member

MUHAMMAD NAWAZ and others

Versus

Messrs SINGER PAKISTAN LIMITED through Managing Director

Cases Nos.4A(259)‑K, 24(258)‑K, 4A(260)‑K and 24(259)‑K of 2001, decided on 21st January, 2002.

Industrial Relation's Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑S. 22‑A(8)(g)‑‑‑Retirement on attaining age of superannuation‑‑­Allegation of unfair labour practice by employer‑‑‑Petitioners had challenged their retirement from service alleging that they had been retired prior to the age of superannuation which was 60 years; in violation of law and that by so doing the employer had committed unfair labour practice‑‑‑Petitioners had been retired on attaining age of 57 years which age of retirement was fixed in the agreement arrived at between employer and Collective Bargaining Agent‑‑‑Employer by retiring the petitioners on attaining age of 57 years after giving one month's prior notice according to terms and conditions of agreement, had not committed unfair labour practice as alleged by petitioners.

Shoa‑un‑Nabi for Petitioners.

Faisal Mahmood Ghani for Respondents.

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2004 P LC 82

[Quetta High Court]

Before Muhammad Nadir Khan, J

PIONEER CABLES LIMITED

Versus

PRESIDING OFFICER, BALOCHISTAN LABOUR COURT No.3 and another

Labour Appeal No.2 of 1998, decided on 7th October, 2003.

Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑S.25‑A‑‑‑West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O. 13‑‑‑Termination of service‑‑‑Grievance petition‑‑‑Charge of wilful absence from duty‑‑­Labour Court accepted petition of employee and reinstated him in service, which judgment was upheld by Appellate Tribunal‑‑‑High Court accepted Constitutional petition of employer and remanded case to Tribunal‑‑‑Employer filed amended memo. of appeal incorporating additional grounds with regard to financial losses incurred by Organization resulting into retrenchment of several employees‑‑‑Plea of employee was that his services had been terminated on account of mala fide as he was active member of Labour Union‑‑‑Employee could not support such plea as he had resigned from such position prior to his removal from service‑‑‑Duty of employee was to make out a case as to how his services were terminated for any other reason‑‑‑Labour Court had not considered such aspect of the case‑‑‑Controversy between parties required detailed probe, which could only be done , by providing opportunity to both parties to establish their respective pleas by adducing evidence‑‑‑High Court set aside impugned judgment and remanded case to Labour Court for its decision afresh in the light of above observations.

PLD 1965 SC 690 rel.

Mehmood Abdul Ghani for Appellant

K.N. Kohli for Respondents.

Date of hearing: 3rd June, 2003.

2004 P L C 103

[Quetta High Court]

Before Muhammad Nadir Khan, J

QUETTA DISTILERY WORKERS UNION, QUETTA, and others

Versus

REGISTRAR TRADE UNION, BALOCHISTAN, LABOUR DIRECTORATE, QUETTA and another

Revision Petition No.4 of 2002 decided of on 20th August, 2003.

Industrial Relations Ordinance (XCI of 2002)---

----S.9---Rejection of application without serving notice---Respondents in reply to contention raised ,by petitioner, had fairly conceded that application could not be rejected without serving of notice under S.9 of Industrial Relations Ordinance, 2002---With consent of parties matter was remanded to Registrar, Trade Union who would decide same after complying legal requirements/formalities.

Nusrat Afghani for petitioners.

A. Sattar for Respondent No.2.

Representative of respondent No. l present.

2004 P L C 141

[Quetta High Court]

Before Muhammad Nadir Khan, J

ABID HUSSAIN and others

Versus

THE DIVISIONAL SUPERINTENDENT PAKISTAN RAILWAYS, QUETTA and others

Labour Appeals Nos. 19 and 43 of 2002, decided on 20th October, 2003.

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

----S.25-A---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(i)---Service Tribunals Act (LXX of 1973), S.2A---Grievance application---Maintainability Pakistan Railways being organization which had been established and was controlled by Federal Government, its employees in view of newly inserted S.2-A in Service Tribunals Act, 1973, were found to be civil servants---Employees of any Authority, Corporation, Body or Organization established by or under a Federal Law or which was owned or controlled by Federal Government or in which Federal Government had a controlling share or, interest, were civil servants for the purposes of Service Tribunals Act, 1973---Status of employees of Pakistan Railways was that of civil servants irrespective of nature of work being assigned to them which could be of the nature as defined in S.2(i) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance., 1968---Both orders impugned in grievance application filed by employees under S.25-A of Industrial Relations Ordinance, 1969 had been issued after insertion of S.2-A in the Service Tribunals Act, 1973--­Grievance of employees, in circumstances, pertained to the period when employees were already declared civil servants---Even otherwise applicability of newly inserted S.2-A in Service Tribunals Act, 1973 being procedural in nature same would be applicable retrospectively---Employees were required to have approached Service Tribunal---Grievance application, in circumstances was rightly dismissed by Labour Court being not maintainable---Order dismissing grievance application could not be interfered with, in circumstances.

1995 SCMR 584; PLD 2000 SC 94; 2000 PLC (C.S.) 1049; PLD 2003 SC 724; PLD 1969 SC 187; Syed Aftab Ahmed and others v. K.E.S.C. and others 1999 SC MR 197 and Pir Nazir Ahmed Shah v. Government of Pakistan and 2 others 2002 PLC (C.S.) 953 ref.

S.A.M. Quadri for Petitioners.

H. Shakeel Ahmed and Ayaz Sawati for Respondents.

Date of hearing: 19th May, 2003.

2004 P L C 139

[Supreme Court of Pakistan]

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

HABIB JUTE MILLS LIMITED

Versus

COMMISSIONER (WORKMEN'S COMPENSATION) SARGODHA and others

Civil Petitions for Leave to Appeals Nos. 93/L, to 94/L, of 2000 and 1606/L to 1607/L of 2000, decided 16th January, 2003.

(On appeal from the orders, dated 20-10-1999 and 2-2-2000 of the Lahore High Court, Lahore, passed upon C.M. Nos. 2-C and 3-C and Writ Petitions No.18303 of 1998 and 18318 of 1998).

Workmens Compensation Act (VIII of 1923)-----

----S. 3---Constitution of Pakistan (1973), Art. 185(3)---Award of compensations to respondents---Dismissal of Constitutional petition by High Court for non-prosecution---Restoration of Constitutional petition subject to payment of costs of Rs.15,000 to the respondents---Petitioner (employer) assailed such order before Supreme Court---Constitutional petition came up for hearing in the meanwhile, which was dismissed by High Court for non-payment of costs in absence of restraint order from the Supreme Court---Validity---Respondents had been striving hard for their relief for last seven years for their sons, who had expired during course of their employment with petitioner---Respondents were being dragged by petitioner unnecessarily to different forums ---Non­ compliance of order of High Court by petitioner in giving costs to respondents could not be taken exception particularly when attitude of petitioner was of non-cooperation. Impugned order did not warrant interference---Supreme Court dismissed petition and refused leave to appeal.

Mian Ghulam Hussain, Advocate Supreme Court for Petitioners (in all petitions).

Muhammad Farooq Qureshi; Advocate Supreme C6urt for Respondents Nos.3 and 4 (in Civil Petitions Nos.1606/L and 1607/L of 2000).

Date of hearing: 16th January, 2003.

2004 P L C 153

[Supreme Court of Pakistan]

Present: Falak Sher and Karamat Nazir Bhandari, JJ

DEPUTY DIRECTOR PESSI and others

Versus

Messrs GHAZI FABRICS, INTERNATIONAL LTD. and others

Civil Petitions Nos.905/L to 913-L of 2002, decided on 4th February, 2003.

(On appeal from the judgment dated 14-1-2002 passed by the Lahore High Court Lahore in FAOs Nos.384, 387, 388, 389, 390, 391 and 394 of 2001).

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

----S.23(1)---Punjab Employees Special Allowances (Payment) Act (II of 1989), S.8---Constitution of Pakistan (1973), Arts. 25 & 185(3)--Increased demand for failing to pay contribution on payments made under Punjab Employees Special Allowances (Payment) Act, 1989--­Employer in his complaint alleged such demand being discriminatory for having exempted from penalty those, who had availed of judicial remedy---Order of Social Security Court dismissing such complaint was set aside, by High Court in appeal---Validity--Such criteria would hardly constitute reasonable classification permissible under Art. 25 of the Constitution---Supreme Court dismissed petition and refused leave to appeal.

Shamas Textile Mills Ltd. and others v. The Province of Punjab and 2 others 1999 SCMR 1477 ref.

Muhammad Mujahid Ahmad, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on-Record for Petitioners in Civil Petitions Nos.905/L to 907/L, 912/L and 913/L of 2002.

Imtiaz Rashid Siddiqui, Advocate Supreme Court for Respondent No. 1 (in Civil Petitions Nos.905/L to 907/L 912/L and 913­/L of 2002).

Date of hearing: 4th February, 2003.

2004 P L C 170

[Supreme Court of Pakistan]

Present: Syed Deedar Hussain Shah and Faqir Muhammad Khokhar, JJ

LAWRENCEPUR WOOLLEN AND TAXTILE MILLS LTD.

Versus

GOVERNMENT OF THE PUNJAB and others

Civil Petitions Nos.2754, 2764 & 2765 of 2001, decided on, 28th January, 2004.

(On appeal from judgment dated 20-8-2001 of the Lahore High Court, Rawalpindi Bench, passed in W.Ps. Nos. 1240, 1241 and 1243 of 2001)

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

----S. 15---Authority, jurisdiction of---Deciding claims ---Procedure--­Power of Authority---Scope and limitations---Authority appointed under S.15 of Payment of Wages Act, 1936,is not required to follow definite rules with regard to procedure and evidence---Authority is free to hold such inquiry as may be necessary for adjudicating claims of certain classes of employees ---Procedure of adjudication by the Authority is not provided by law---Authority may decide the claim by providing an opportunity of hearing to the parties, keeping in view the rules of reason, justice and fair play---Authority is free in the matter of deciding disputes, without there being any guidance of procedural laws as to the conduct of proceedings as well as evidence---Authority is empowered to exercise certain powers and to take judicial proceeding as are vested in a Civil Court under the Civil Procedure Code, 1908, but only for a very limited purpose---Authority does not have any 'inherent powers which are available to, a Court of justice---Authority cannot render binding judgments on complicated questions of law---Process of investigating or adjudicating the claim of certain employees for giving a direction for payment of wages is not a trial of suit at law-=-Normal Court procedure is not applicable to the Authority---All necessary attributes and trappings of a Court of law are not attached to the Authority.

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

----S. 15---Constitution of Pakistan (1973), Arts. 175 & 185(3)--­Recovery of wages---Authority, jurisdiction of---Employees filed applications before the Commissioner for Workmen's Compensation As the Authority under S.15 of Payment of Wages Act, 1936---Employer raised objection to the jurisdiction of the. Authority which objection was set aside by the High Court--Validity---Authority/Tribunal had been established through a valid legislation which did not offend or violate the concept of independence of judiciary as contemplated by Art.175 of the Constitution---Judgment of High Court was based on sound reasons and was plainly correct and the same did not warrant any interference by Supreme Court---Leave to appeal was refused.

Works Manager, Carriage and Wagon Shops, Mughalpura v. K.G. Hashmat AIR 1946 Lah. 316; A. Hasan v. Muhammad Sharnsuddin and another AIR 1951 Pat. 14; Government of Sindh through Chief Secretary and others v. Sharaf Faridi and others PLD 1994 SC 105; Government of Balochistan through Additional Chief Secretary v. Azizullah and 16 others PLD 1993 SC 341 and Sh. Liaquat Hussain and others v Federation of Pakistan through Ministry of Law, Justice and Parliamentary Affairs, Islamabad and others PLD 1999 SC 504 distinguished.

Motabar and 14 others v. Messrs S.M Rehman and Company, Quetta and others PLD 1971 Quetta 47; Messrs S.M. Rehman and Company, Quetta v. Motabar and 14 others PLU 1981 SC 282; A.V.D. Costa Divisional Engineer GIP Railway v. BC Patel and another AIR 1955 SG 412; Sawat Ram Pareshad Mills Company Ltd. v. Vishnu Pandurang Hingnekar AIR 1950 Nag. 14; Mewr Textile Mills Ltd. Bhilwara v. Girdharishing and others AIR 1957 Raj. 115; Labangalata Dei v. SK Aztzullah AIR 1958 Orissa 123; Turabali v. Sorabji AIR 1944 Nag. 288; Charan Singh v Birla Textiles AIR 1988 SC 2022; Khadim Mohyuddin and another v. Ch. Rehmat Ali Nagra PLD 1965 SC 45,t and Ghulam Mustafa and another v. Pakistan Industrial Gases Ltd. and others 2002 PLC 52 rel.

Ch. Mushtaq Ahmad Khan, Senior Advocate Supreme Court for Petitioner.

Nemo of Respondents

Date of nearing: 28th January, 2004.

2004 P L C 178

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmad, C.J., Qazi Muhammad Farooq and Abdul Hameed Dogar, JJ

Sahibzada K.A.K. AFRIDI

Versus

ALLIED ENGINEERING & SERVICES LTD. through Managing Director and 2 others

Civil Appeal No.434 of 1998, decided on 20th November, 2003.

(On appeal from the judgment dated 3-3-1996 of the Peshawar High Court, Peshawar, passed in Writ Petition No. 185 of 1996).

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

----S.25-A---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(i)---Constitution of Pakistan (1973), Art. 185(3)---Leave to appeal was granted by Supreme Court to consider whether definition of 'workman' as given in S.2(i) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, was applicable in the case of appellant, an Office Sales Manager and not the definition of "workman" as given in Industrial Relations Ordinance, 1969.

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

----S.25-A---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(i)---Grievance petition-­Term 'workman'---Applicability---Concurrent findings of fact by the Courts below-- -Services of the appellant were terminated, who was working as Office Sales Manager with the respondent---Record had established that the appellant was appointed as office Sales Manager for entire Province and Tribal Areas and was allowed house rent, conveyance allowance and entertainment allowance---Appellant was also provided a car for the official use---Even one employee used to come to the office of the appellant to help him like a subordinate as Sales Representative---Grievance petition filed by the appellant was dismissed by Labour Court on the ground that the appellant was not a "workman" as defined under the law---Order passed by the Labour Court was maintained by the Labour Appellate Tribunal as well as by the High Court---Plea raised by the appellant was that he was a workman as defined under S.2(i) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968---Validity---Designation of the appellant showed that he was more in supervisory position than even a salesman---Main job of the appellant was to contact potential customers of respondent's products in the market and supply thereof--­All the Courts below had considered and appreciated the evidence properly in its true perspective and had rightly arrived at the conclusion that the appellant was not a "workman" as defined in S.2(i) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968---Supreme Court declined to interfere with the orders passed by the Courts below---Appeal was dismissed.

Pakistan Tobacco Company Ltd. v. Pakistan Tobacco Company Employees' Union, Dacca and 2 others PLD 1961 SC 403 rel.

Appellant in person.

Qalb-e-Hasan, Advocate Supreme Court and M. A. Zaidi, Advocate-on-Record for Respondent No.1.

Respondents Nos.2 and 3: Ex parte.

Date of hearing: 20th November, 2003.

2004 P L C 207

[Supreme Court of Pakistan]

Present: Syed Deedar Hussain Shah and Faqir Muhammad Khokhar, JJ

NATIONAL GENERAL INSURANCE COMPANY LTD through F.A. Jaffary, General‑Manager

Versus

PRESIDING OFFICER, PUNJAB LABOUR COURT No.6, RAWALPINDI and others

Civil Petition No.3002 of 2003, decided on 28th January, 2004.

(On appeal from order dated 9‑10‑2003 of the Lahore High Court, Rawalpindi Bench, passed in Writ Petition No. 1225 of 2003).

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

‑‑‑‑Ss. 1(4) (as amended by Labour Laws (Amendment) Ordinance (LIII of 2001) w.e.f. 1‑7‑2001) & 15(2)‑‑‑Gratuity amount for year 1989 claimed in year 2002 by employee of Insurance Company (a commercial establishment)‑‑‑Validity‑‑‑Operation of Payment of Wages Act, 1936 initially applicable to employees of factory or railway administration had been extended by virtue of Labour Laws (Amendment) Ordinance, 2001 to employees of industrial or commercial establishment w.e.f. 1‑7‑2001‑‑‑Payment of Wages Act, 1936 was a social, beneficial and remedial statute in nature, object of which was to regulate payment of wages to certain class of persons employed in factory, railways, industrial or commercial establishment‑‑‑Purpose of such amendment was to provide remedy to persons employed in industrial or commercial establishment‑‑‑Benefit of such amended provisions would not be restricted only to employees appointed or employed on or after 1‑7‑2001, but earlier employees would also be governed, by Payment of Wages Act, 1936‑‑‑Employer‑company was, amenable to provisions of Payment of Wages Act, 1936, when employee had made application.

Ex‑Lt. Col. Anwar Aziz v. Federation of Pakistan and 2 others PLD 2001 SC 549 ref.

(b) Jurisdiction‑‑‑

‑‑‑‑Determinate of‑‑‑Jurisdiction of a Tribunal is determinable at the commencement of proceedings, unless contrary intention is expressed or implied in relevant statute.

Settlement and Rehabilitation Commissioner, Hyderabad Division, Karachi and another v. Mannu Khan and 3 others 1973 SCMR 62 rel.

Abbas Naqvi, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 28th January, 2004.

2004 P L C 213

[Supreme Court of Pakistan]

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

RIAZ AHMED MALIK

Versus

ADMINISTRATOR, MUNICIPAL CORPORATION BAHAWALPUR and another

Civil Petition No.778‑L of 2000, decided on 23rd April, 2003.

(On appeal from the orders of the Lahore High Court, Bahawalpur Bench, Bahawalpur, dated 9‑2‑2000 passed in Writ Petition No. 136 of 1998/BWP).

Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑S.25‑A‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Reinstatement in service‑‑‑Back benefits, entitlement to‑‑‑Pre‑conditions‑‑‑Factual controversy‑‑ Jurisdiction of Supreme Court‑‑‑Petitioner was reinstated in service by National Industrial Relations Commission without back benefits‑‑‑Petitioner sought recovery of the benefits through Constitutional petition but High Court declined to interfere with the judgment passed by National Industrial Relations Commission‑‑­Validity ‑‑‑High Court while dismissing the petition had rightly observed that the petitioner had not placed any material on record to establish his assertion that he remained un‑employed and jobless till his re‑instatement by the National Industrial Relations Commission‑‑‑Plea raised by the petitioner involved factual controversy and the same could not be resolved in the Constitutional jurisdiction‑‑‑Petitioner failed to point out any illegality or legal infirmity in the judgment passed by High Court‑‑­Leave to appeal was refused.

Petitioner in person.

Nemo for Respondents.

Date of hearing: 23rd April, 2003.

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