PLC 2005 Judgments

2005 P L C 1

[Karachi High Court]

Before Saiyed Saeed Ashhad, CJ and Syed Zawwar Hussain Jaffery, J

HOUSE BUILDING FINANCE CORPORATION

Versus

MEMBER N.I.R.C. and others

C.P. No.D-1502 of 2003, decided on 22nd September, 2004.

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

----S.49(4)(e)---Service Tribunals Act (LXX of 1973), S.2-A---Unfair labour practice by employer---Jurisdiction of National Industrial Relations Commission---Applicant in his application moved under S.49(4)(e) of Industrial Relations Ordinance, 2002 had challenged his transfer, alleging that he had been victimized for his trade union activities being an active member of workers union which amounted to unfair labour practice on part of employers---National Industrial Relations Commission passed interim order suspending operation of impugned transfer order, without deciding issue relating to his jurisdiction to entertain application of applicant---National Industrial Relations Commission under Proviso to S.49(4)(e) of Industrial Relations Ordinance, 2002 had been prohibited from granting interim relief against any action falling within the scope of S.63 of Industrial Relations Ordinance, 1969---Even otherwise National Industrial Relations Commission could not exercise jurisdiction to adjudicate upon cases of all employees/workers declared as civil servants in view of S.2-A of Service Tribunal Act, 1973---National Industrial Relations Commission who had no jurisdiction to entertain application filed under S.49(4)(e) of Industrial Relations Ordinance, 2002, having assumed jurisdiction which did not vest in it, all proceedings before the Commission, were without jurisdiction and of no legal effect---Proceedings pending before Commission stood dismissed being illegal and without lawful authority.

Malik Nazar Hussain v. National Bank of Pakistan 2003 PLC 405; I.A. Sherwani and others v. Government of Pakistan and others 1991 SCMR 1041 and Multilines Associates v. Ardeshir Cowasjee and others 1995 SCMR 362 ref.

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

----S.2-A---Civil servant---Ouster of jurisdiction---Legislature by incorporating S.2-A in Service Tribunals Act, 1973, had declared all employees/workers of autonomous or semi-autonomous bodies; corporations, establishments and companies controlled, managed or run by Federal Government, as civil servants precluding them from invoking jurisdiction of National Industrial Relations Commission in any matter relating to violation of their terms and conditions of service---Invocation of jurisdiction of the National Industrial Relations Commission by such employees/workers for redress of their grievance relating to violation of terms and conditions for their service coupled with allegation of violation of a fundamental or legal right would render provisions of S.2-A of Service Tribunals Act, 1973 as redundant, surplus, and nugatory---Civil servant would be circumventing and defeating the provision of law, if in addition to grievance relating to terms and conditions of service, he would add an additional ground of violation of a fundamental or legal right so as to take it out of scope of special forum and to agitate issue before normal forum, then he would be resorting to measures rendering provision of statute redundant and surplus.

(c) Interpretation of Statutes---

---- Authority of Legislation---Legislation had full authority to pass any law or to make amendment in any law whereby class of persons could be precluded from having recourse to a particular forum or Tribunal and approach another forum or Tribunal.

Ch. Rasheed Ahmed for Petitioner.

M.A.K. Azmati for Respondents.

Date of hearing: 22nd September, 2004.

2005 P L C 14

[Karachi High Court]

Before Saiyed Saeed Ashhad, CJ and Syed Zawwar Hussain Jaffery, J

MUKARRAM SHAH

Versus

SINDH LABOUR APPELLATE TRIBUNAL and others

C.P, NO.D-2175 of 1996, heard on 4th, June, 2004.

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

----Ss.25-A, 37(3) & 38(3)---West Pakistan Industrial and. Commercial Employment (Standing Orders) Ordinance (VI of 1966), S.O. 15(3)--­Constitution of Pakistan (1973), Art. 199---Constitutional petition--­Dismissal from service---Grievance petition---Employee was dismissed from service after charge-sheeting him and holding inquiry against him on allegation that he along with two other workers had committed theft--­Employee along with others was caught red-handed and sufficient evidence was available against employee to establish charge against him---Labour Court and Appellate Tribunal below had rightly dismissed grievance petition filed by employee against order of his dismissal---In absence of any material irregularity or jurisdictional error, concurrent findings of Labour Court and Appellate Tribunal could not be interfered with.

Gharo Textile Mills v. Muhammad Sultan 1980 PLC 999 ref.

Nasir. M. Mughal, for petitioner.

Choudhry Rasheed Ahmed for Respondents.

Date of hearing: 4th June, 2004.

2005 P L C 24

[Karachi High Court]

Before Shabbir Ahmad and Khilji Arif Hussain, JJ

PRECISION RUBBER PRODUCTS LABOUR UNION

Versus

M/s. PRECISION RUBBER PRODUCTS (PVT.) LTD and others

Civil Petitions Nos. 310 and 629 of 2000, heard 30th March, 2004.

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

----Ss.10 & 11---Constitution of Pakistan (1973), Art. 199--­Constitutional petition---Cancellation of registration of Trade Union--­Registrar of Trade Unions in terms of subsection (3) of S.10 of Industrial Relations Ordinance, 1969 had power to cancel registration of Trade Union after holding such enquiry as he deemed fit, if he found that such Trade Union was dissolved by itself or had ceased to exist---Case of petitioner Trade Union was that it was condemned unheard as no show-cause notice was issued to it before cancellation of its registration---Appeal filed against order of Registrar before Labour Court and thereafter before Appellate Tribunal, having been dismissed, petitioner had filed Constitutional petition before High Court---Right of hearing having not been provided to petitioner, High Court struck down order canceling registration of Trade Union.

(b) Maxim----

----'Audi alteram partem'---Applicability---Maxim `Audi alteram partem' was to be read in' every statute more particularly when the right was affected by impugned order.

Ashraf Hussain Rizvi for Petitioner.

Sher Afghan for Respondents.

Date of hearing; 30th March, 2004.

2005 P L C 31

[Karachi High Court]

Before: Shabbir Ahmed and Gulzar Ahmed, JJ

ABDUL REHMAN BALOCH

Versus

MUHAMMAD AHMED ZUBERI and others

Civil Petition No. D-588 of 2002, decided on 21st August, 2003.

Industrial Relations Ordinance (XXIII of 1969)---

----Ss.25-A, 37(3) & 38(3)---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.12--­Constitution of Pakistan (1973), Art.199---Constitutional petition—­Termination of service---Re-instatement---Non-compliance of order of re-instatement in service---Complaint against---Grievance petition filed by petitioner against order of his termination from service, was dismissed by Labour Court, but appeal against judgment of Labour Court was accepted by Labour Appellate Tribunal with direction to re-instate petitioner in service within one month from the date of order passed by Labour Appellate Tribunal---Order of re-instatement attained finality as appeal of employers was dismissed upto Supreme Court--Employers not only failed to re-instate petitioner; in compliance with order of Labour Appellate Tribunal, but also terminated services of petitioner pending petition already filed by petitioner for re-instatement with back­ benefits---Petitioner had filed complaint under S.25-A(8) of Industrial Relations Ordinance, 1969 against non-implementation of order--­Complaint was withdrawn, but grievance of petitioner was that alleged withdrawal was per force and against mandate given by him to his Advocate---Advocate of petitioner controverted grievances made by petitioner with regard to withdrawal of complaint and maintained that, complaint was allowed to be withdrawn for the reason stated in order itself wherein it was stated that it was brought to the notice of counsel of petitioner that in compliance with order of re-instatement, petitioner was re-instated and he was also paid back-benefits and salary; it was also stated in said order that counsel of petitioner had stated that of course some amount of back-benefits had been paid, but not in full and counsel for petitioner withdrew complaint by his statement in writing and in that way complaint was dismissed as withdrawn---Validity---High Court could not go into controversial question of fact with regard to allegations of pressure for withdrawal---Constitutional petition filed by petitioner was non-maintainable as question of fact could not be brought to High- Court by invoking its Constitutional jurisdiction.

Petitioner in person.

M. L. Shahani, for Respondents Nos. 1 to 4.

Date of hearing: 21st August, 2003.

2005 P L C 45

[Karachi High Court]

Before Sabihuddin Ahmed and Khilji Arif Hussain, JJ

KHAISTA KHAN

Versus

M/S. INDUS DYEING AND MANUFACTURING COMPANY LTD. and 2 others

C.P. No.D-1727 of 1996, decided on 22nd September, 2004.

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

----Ss.22-A(8)(g) & 25-A---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.15--­Constitution of Pakistan (1973), Art. 199---Constitutional petition---Misconduct---Unfair labour practice---Employers had objected that petitioner (Employee) had not approached the High Court with clean hands inasmuch as he had moved National Industrial Relations Commission through an application under S.22-A(8)(g) of Industrial Relations Ordinance, 1969 seeking action to prevent commission of unfair labour practice which application was dismissed on merits and same was not questioned in appeal---Objection of respondent was not of much importance as it was axiomatic that a person approaching High Court must do so with clean hands---Since National Industrial Relations Commission was moved by petitioner one day before his actual dismissal from service, he could not be held liable to the extent that might require his dismissal---Even otherwise jurisdiction of National Industrial Relations Commission under S.22-A(8)(g) and that of Labour Courts under S.25-A of Industrial Relations Ordinance, 1969, were intended to serve different purposes and mere factum of dismissal of petitioner's application for preventive action prior to his actual dismissal from service, could not be treated as res judicata by Labour Court--­ Petitioner, however did refuse to work as an Auto Cone Operator' and instead he insisted that he could only perform the duty ofwinder'--­ Appointment letter of petitioner though was not on record, but it was evident from the title of his first application before Labour Court which was decided in his favour, that petitioner was working only as Auto Cone Operator'---Refusal of petitioner, to work asAuto Cone Operator', in circumstances would amount to misconduct---Constitutional petition filed by petitioner against issuance of show-cause notice against his misconduct, was dismissed, in circumstances as his refusal to work as Auto Cone Operator' amounted to misconduct.

Suleman Habibullah for Petitioner

Mahmood Abdul Ghani for Respondent No.1.

Date of hearing: 22nd September, 2004.

2005 P L C 51

[Karachi High Court]

Before Muhammad Moosa K. Leghari, J

Messrs KARACHI CUSTOMS AGENTS GROUP through President and 3 others

Versus

THE REGISTRAR OF TRADE UNIONS, SINDH

Civil Petition No. S‑83 of 2003, decided on 1st April, 2003.

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

‑‑‑‑Ss. 10 & 34‑‑‑Cancellation of registration of Trade Union, application for‑‑‑Jurisdiction of Labour Court to direct Registrar Trade Union to file such application‑‑‑Scope‑‑‑Such matter was beyond the jurisdiction of Labour Court‑‑‑Party interested in such cancellation might seek his remedy by moving application before Registrar.

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

‑‑‑‑S.10‑‑‑Cancellation of registration of Trade Union‑‑‑Union registered 30 years back enjoying status of CBA, with whom applicant had entered into bilateral negotiations and executed settlement agreements‑‑­Validity‑‑‑Such facts would not by itself extend legality to Trade Union, if same was registered and/or in existence and/or functioning in contravention of the law.

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

‑‑‑‑Ss. 10 & 34‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Cancellation of registration of Trade Union, application for‑‑‑Constitutional jurisdiction of High Court‑‑‑Scope‑‑‑High Court was not divested of ordering Registrar, Trade Union to move such application, if circumstances so warranted.

Essa Cement Industries v. Registrar Trade Union Hyderabad and 4 others, 1998 PLC 500 rel.

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

‑‑‑‑S.10‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Cancellation of registration of Trade Union, application for‑‑­Objections raised in such application were that formation and registration of Trade Union and issuance of C.B.A., certificate were in contravention of law; and that same had ceased to exist‑‑‑Registrar rejected application‑‑‑High Court with consent of parties directed Registrar to, decide application afresh‑‑‑Registrar again rejected application on basis of office note that demand of petitioner under consideration was repetition of its earlier demand already dismissed by competent Courts of law‑‑‑Validity,‑‑‑Despite clear cut directions of High Court, Registrar had not properly dealt with such objections‑‑‑Registrar had failed to perform his functions and had not disposed of matter justly, fairly and properly, which he was legally bound to do‑‑‑High Court accepted Constitutional petition and quashed impugned order to be without lawful authority, resultantly such application would be deemed to be pending before Registrar for its decision afresh through a speaking order within specified time after hearing the parties and considering documents/evidence on record.

(e) Administration of justice‑‑‑--

‑‑‑‑Forums vested with quasi‑judicial authority connected with adjudication or determination of entitlement must be vigilant and cautious while exercising their powers and should avoid passing orders without properly scrutinizing the files.

Obedullah and 2 others v. Inspector General, Frontier Corps, Quetta, 1997 SCMR 1833 fol.

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

‑‑‑‑Preamble‑‑‑Object of Industrial Relations Ordinance, 1969‑‑­Expeditious disposal of labour disputes‑‑‑Requirements stated.

There can hardly by two opinions that labour disputes require to be disposed of with utmost promptitude and all possibilities should be explored to minimize litigation in order to avert dejection, yet it has to be fully ensured that the causes are decided justly and lawfully and the justice must be seen to have been done, so that no party should feel prejudiced.

Muhammad Humayoon for Petitioners.

M.L. Shahani and Choudhry Muhammad Ashraf Khan for Respondents.

Date of hearing: 18th March, 2003.

2005 P L C 64

[Karachi High Court]

Before Sabihuddin Ahmed and Khilji Arif Hussain, JJ

EMPLOYER'S FEDERATION OF PAKISTAN

Versus

GOVERNMENT OF SINDH and others

C. P. D. Nos.1638 of 1991 and 229 of 1992, heard on 11th August, 2004.

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

‑‑‑‑Ss.25‑A & 39‑‑‑Expression "industrial dispute"‑‑‑Scope‑‑‑Settlement between employer and Collective Bargaining Agent‑‑‑Effect‑‑‑Such expression confined to matters not specifically covered by a right available under a law, which were enforceable under S.25‑A of Industrial Relations Ordinance, 1969‑‑‑Binding nature of such settlement under S.39 of Ordinance would not bar beneficial legislation in area of labour welfare‑‑‑Principles.

(b) Sindh Employees Special Allowance (Payment) Act (X of 1986)‑‑‑--

‑‑‑‑Ss.3 & 3‑A [as inserted by Sindh Employee Special Allowance (Payment) (Amendment) Act (V of 1992)]‑‑‑Industrial Relations Ordinance (XXIII of 1969), S.39‑‑‑Employees Costs of Living (Relief) Act, 1973 (I of 1974), S.3‑‑‑Constitution of Pakistan (1973), Arts. 18 & 143 & Sched. IV, Concurrent Legislative List, Item 26‑‑‑Additional special allowance granted by S.3‑A of Sindh Employees Special Allowance (Payment) Act; 1986‑‑‑Purpose and validity‑‑‑Settlement between employer and Collective Bargaining Agent, providing relief to workers .on account of rise in cost of living to be set off against any relief, if provided by Legislature for same reason. during current year of settlement‑‑‑Effect‑‑‑Purpose of statutory relief was not to compensate workers against rise in cost of living but to promote then general welfare and improve their standard of living to some extent‑‑‑Relief granted by employer was only for specific purpose of compensating workers against rise in cost of living, which _ could not set‑off against such statutory relief‑‑‑Employer in order to claim benefit of set‑off could approach competent authority for interpretation of settlement‑‑‑Allowances payable under S.3(1) to (3) and S.3‑A of Act, 1986 would be payable irrespective of any relief granted by employer or available under a settlement, but those under S.3(4) to (7) thereof might be adjustable against terms of settlement‑‑‑Provisions of S.3‑A of Act, 1986 held were, neither unconstitutional nor repugnant to a Federal law nor confiscatory nor disabling employer from carrying on its business‑‑Principles.

Cantonment Board Peshawar v. District Sanitary and Food Inspector 1993 SCMR 941 and Annoor Textile Mill v. Federation of Pakistan 1994 PLC 388 ref.

(c) Sindh Employees Special Allowance (Payment) Act (X of 1986)‑‑‑--

‑‑‑‑S.3‑A [as inserted by Sindh Employees Special Allowance (Payment) (Amendment) Act (V of 1992)]‑‑Minimum Wages Ordinance (XXXIX of 1961), Ss.5, 6 & 7‑‑‑Constitution of Pakistan (1973), Art.143‑‑­Additional special allowance granted by S.3‑A of Sindh Employees Special Allowance (Payment) Act, 1986‑‑‑Validity‑‑‑Minimum Wages Ordinance, 1961 only enabled Provincial Government to notify and enforce payment of a minimum amount as wages, but same could not be treated as a bar on legislative power to enact a law conferring monetary benefits upon workers‑‑‑Plenary powers of Legislature to make laws was regulated by Constitution,, which could under no circumstance be considered dependent on recommendations of a body (Minimum Wages Board) constituted under a sub‑constitutional statute (Minimum Wages Ordinance, 1961).

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

‑‑‑‑Art.18‑‑‑Right guaranteed under Art. 18 of the Constitution is always subject to regulation in public interest.

Abdul Sattar Pingar for Petitioners.

Ahmed Pirzada Addl. A.‑G. Sindh for Respondents.

Date of hearing: 11th August, 2004.

2005 P L C 70

[KarachiHigh Court]

Before S. Ahmed Sarwana, J

MUHAMMAD IQBAL MUNSHI

Versus

KARACHISTOCK EXCHANGE (GUARANTEE) LTD.

L.A. No. 294 of 2003, decided on 18th November, 2003.

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

---------S.23 Check off‑‑‑Provisions of S.23 of Industrial Relations Ordinance, 1969 had clearly indicated that when a request was made by a Collective Bargaining Agent to the employer, employer was bound to deduct the subscription from the salary of specified workman and to deposit deducted amount in the account of Trade Union on whose behalf he had made deduction‑‑‑Not the workman, but Collective Bargaining Agent had to make request to the employer to deduct subscription from the salary of specified workman who had given such approval—­Application by a worker to the employer to deduct his subscription would not be proper‑‑‑If a worker wanted any deduction of his monthly subscription from his salary, he should have asked any officer of Collective Bargaining Agent or had written a letter on behalf of Collective Bargaining Agent to employer to deduct his monthly subscription from his salary and deposit same With union.

(b) Administration of justice‑‑‑-

‑‑‑--When a provision of law required a thing to be done in a particular manner, it should be done in that manner or not at all.

Shoaun Nabi for Appellant.

Muhammad Tasnim for Respondent.

Date of hearing: 18th November, 2003.

2005 P L C 76

[Karachi High Court]

Before Sabihuddin Ahmed, J

ALI ASGHAR TEXTILE MILLS LTD. Through CHIEF EXECUTIVE and others

Versus

DIRECTOR' SIND EMPLOYEES' SOCIAL SECURITY INSTITUTION, KARACHI and others

Constitution Petition Nos.D‑169 of 1996, D‑1878 of 1994 and D‑345 of 1995 decided on 1st December, 2004.

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

‑‑‑S.9 [as amended by Labour Laws (Amendment) Ordinance (XVIII of 1993)], S.3‑‑‑Constitution of Pakistan (1973), Arts. 89 and 199‑‑­Constitutional petition‑‑‑Federal Ordinance, expiry of ‑‑‑Principle‑‑­Repeated promulgation of Ordinance‑‑Effect‑‑‑Vires of Labour Laws (Amendment) Ordinance (XXIII of 1993)‑‑‑Grievance of the petitioner was that contributions in respect of employees drawing wages between Rs.1500 to Rs.2000 could at least not be claimed for period between 13‑1‑1994 when Labour Laws (Amendment) Ordinance, XXIII of 1993, was repealed and 29‑5‑1994 when Act of Parliament was enforced‑‑‑Contention of the petitioner was that an Ordinance promulgated by President of Pakistan under Art.89 of the Constitution was required to be laid down before Houses of Parliament and would stand repealed at the expiration of four months of its promulgation unless earlier disapproved by either House upon a resolution or withdrawn by the President‑‑‑Petitioner further contended that legislative power of Parliament could not be usurped by the President through repealed re‑promulgation of Ordinance‑‑‑Validity‑‑‑Ordinance could only be laid down before Houses of Parliament as required under Art.89 of the Constitution and the same must be done when it was still in force‑‑­Supremacy of the Legislature was recognized by the stipulation that it would cease to have effect upon disapproval by either House‑‑‑In case the Legislature chose to take time in deliberation over its provisions without approving or disapproving it; a vacuum could not be countenanced‑‑‑Under such conditions the power to re‑promulgate an Ordinance ought to be conceded to the President‑‑High Court refused to declare the re‑promulgation of Ordinance as ultra vires‑‑‑Petition was dismissed in circumstances.

Collector of Customs v. New Electronics (Pvt.) Ltd. PLD 1994 SC 363 ref.

Riaz Ahmed v. State 1998 SCMR 1729 and Federation of Pakistan v. M. Nawaz Khokhar PLD 2000 SC 26 fol.

M. Rafat Usmani for petitioner (in C.P. No.D‑169 of 1996).

Khalid Habibullah for Respondents.

M.A.M. Namazi for Respondent No.2 (in C.P. No.D‑345 of 1995).

Faisal Arab Sanding Counsel.

Rafiq Rajori Addl. A.‑G.

2005 P L C 82

[Karachi High Court]

Before Anwar Zaheer Jamali, J

Messrs AGAR TEXTILE MILLS LTD., through General‑Manager

Versus

MUHAMMAD ZAHID

Labour Appeal No.7, C.M.A. No.255 and 45 of 2004, decided on 1st June, 2004.

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

‑‑‑‑Ss.46 & 47(3)‑‑‑Appeal to High Court against judgment of Labour Court‑‑‑Employers had alleged that employee had voluntarily resigned, whereas employee had denied the alleged resignation‑‑‑Labour Court, after hearing arguments of parties; came to conclusion that employee had not resigned, but he was wrongfully dismissed from service by employers‑‑‑Validity‑‑‑When employee had denied the fact that he had tendered/submitted any registration to employer and had also made such statement on oath before the Court, burden of proof that any such resignation was tendered by employee, had squarely shifted on employers which they had to discharge in accordance with law‑‑­Employers did not place on record alleged original resignation letter purportedly bearing signature of employee‑‑‑Even no officer of employers was examined who could depose that employee had handed over such resignation to him‑‑‑Purported resignation letter, ,photo copy whereof had been‑placed on record, was not in handwriting of employee‑‑‑Labour Court, in circumstances had rightly found that tendering of resignation by employee had not been proved by employer.

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

‑‑‑‑Ss. 46(5) & 47(3)‑‑‑Award of compensation‑‑‑Re‑instatement of employee in service‑‑‑Powers of Labour Court‑‑‑Comparative reading of S.46 of Industrial Relations Ordinance, 2002 with corresponding S.25‑A of repealed Industrial Relations Ordinance, 1969, would show that in the repealed Ordinance, 1969, Labour Court, while dealing with grievance application of workman, had two options, either to order re‑instatement of a workman in service with or without back benefits or to dismiss his application and refuse his re‑instatement‑‑‑Under newly enacted Industrial Relations Ordinance, 2002 a third option had also been provided with addition of subsection (5) to S.46 thereof that in a case where Labour Court found termination of service of a workman to be wrongful, still re‑instatement could be refused in appropriate cases and workman could be compensated in terms as specified in the said provision of law‑‑‑Availability of such additional option to Labour Court for awarding compensation in lieu of re‑instatement of a workman in service, however, could not under any circumstances justify an inference. that on insertion of such provisions in newly promulgated Industrial Relations Ordinance, 2002, Labour Court had been stripped of it's power to order re‑instatement of a workman in service‑‑‑Re‑instatement of employee by Labour Court with back benefits, would not require interference in appeal.

Syed Fasahat Hussain Rizvi along with S.M. Saulat Rizvi for Appellant.

Mahmood Hussain Siddiqui for Respondent.

2005 P L C 116

[Karachi High Court]

Before Sabihuddin Ahmed and Khilji Arif Hussain, JJ

Messrs HINOPAK MOTORS LTD. and others

Versus

FEDERATION OF PAKISTAN and others

C.P.D. Nos.169 of 1996, 345 of 1995 and 1878 of 1994 heard on 1st December, 2004.

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

‑‑‑‑S. 9 [as amended by Labour Laws (Amendment) Ordinance, 1993; Labour Laws (Amendment) Ordinance, 1994 and Labour Laws (Amendment) "Act, 1994]‑‑‑Constitution of Pakistan (1973), Art.199‑‑­Constitutional petition‑‑‑Petitioners who were employers and were making contributions in respect of every person drawing wages not exceeding Rs.1500 in their insurable employment at the rate of 5% of their wages under S.9, Employees". Old‑Age Benefits Act,, 1976 assailed the promulgation of Amending Ordinances whereby they became liable to make contributions in respect of all the employees whose wages did not exceed Rs.3000 per month and its passage as an Act of Parliament‑‑­Validity‑‑‑Power to promulgate an Ordinance ought to be conceded to the President in case the legislature chose to take time in deliberations over its provision without approving or disapproving the same; a vacuum could not be countenanced and under such conditions Ordinance which was re promulgated upon expiry of the Ordinance was a valid piece of legislation‑‑‑Constitutional petition was dismissed in circumstances.

Federation of Pakistan v. M. Nawaz Khokhar PLD 2000 SC 26 fol.

Collector of Customs v. New Electronics (Pvt.) Ltd. PLD 1994 SC 363 and Riaz Ahmed v. State 1998 SCMR 1729 ref.

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

‑‑‑‑Art. 89‑‑‑Power of President to promulgate Ordinance‑‑‑Scope‑‑­Article 89 of the Constitution only required an Ordinance laid before the Houses of the Parliament and this must be done when it was still in force‑‑‑Supremacy of the legislature thus was recognized by Art.89 of the Constitution that the Ordinance would cease to have effect upon disapproval by either House‑‑‑If the legislature, however, chose to take time in deliberation over its provisions without approving or disapproving same, a vacuum could not be countenanced and under such conditions the power to promulgate an Ordinance ought to be conceded to the President.

Federation of Pakistan v. M. Nawaz Khokhar PLD 2000 SC 26 ref.

M. Rafat Usmani for Petitioner.

Khalid Habibullah for Respondents.

M.A.M. Namazi for Respondent No.2.

Faisal Arab, Standing Counsel.

Rafiq Rajori, Additional Advocate‑General.

Date of hearing; 1st December, 2004.

2005 P L C 123

[Karachi High Court]

Before Sabihuddin Ahmed and Khilji Arif Hussain, JJ

HABIB BANK EMPLOYEES UNION (C.B.A.) through General Secretary

Versus

FEDERATION OF PAKISTAN THROUGH SECRETARY, FINANCE DIVISION, ISLAMABAD and 2 others

Constitution Petition No. 1307 of 1997, heard on 8th September, 2004.

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

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction of High Court‑‑‑Scope‑‑‑Locus standi‑‑‑Principles‑‑‑Strict legal right need not be established but. a sufficient legal interest is enough for showing locus standi to maintain a petition.

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

‑‑‑‑S. 38‑A‑‑‑Banking Companies Ordinance (LVII of 1962), S.27‑B [as. inserted by Banking Companies (Amendment) Act, (XIV of 1997)]‑‑­Constitution of Pakistan (1973), Arts. 17, 25 & 199‑‑‑Constitutional petition ‑‑‑Vires of S.27‑B of Banking Companies Ordinance, 1962‑‑‑Unreasonable classification‑‑‑Onus to prove‑‑‑Petitioner being registered trade union and collective bargaining agent raised the plea that the restrictions imposed upon bank employees under S.27‑B of Banking Companies Ordinance, ,1962, were violative of fundamental right of freedom of association and the right to form Unions as guaranteed by Art. 17 of the Constitution‑‑‑Petitioner also contended that the bank employees could not be distinguished from the other categories of employees entitled to the benefits of Industrial Relations Ordinance, 1969‑‑‑Validity‑‑‑Provisions of Art. 17 of the Constitution could not be confined to mere formation of trade union but would also include certain necessary concomitants flowing therefrom‑‑‑None of the rights claimed by the petitioner fell within the guarantees envisaged by Art. 17 of the Constitution‑‑‑Bank employees were being treated as a separate class since 1975‑‑‑Wages of bank employees and their other terms and conditions of employment were regulated by awards of Wage Commission constituted under S.38‑A .of Industrial Relations Ordinance, 1969‑‑‑No industrial dispute could be raised in respect of matters regarding which decision, of Wage Commission was operative or which was under consideration of the Commission‑‑­Presumption was always there as to the validity of a statutory provision and there was heavy burden of proof upon the party who challenged its constitutionality on the ground of classification being arbitrary or unreasonable‑‑‑Petitioner failed to show that the classification was arbitrary or unreasonable‑‑‑Petition was dismissed in circumstances.

Democratic Workers Union (C.B.A.) v. State Bank of Pakistan SBLR 2001 Karachi 439; Karachi Pipe Mills v. Sindh Labour Appellate Tribunal PLC 1984 (Labour) 1359; Karachi Pipe Mills Employees Union v. Karachi Pipe Mills 1992 SCMR 36; Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416; PLD 1989 SC 66; Bank of America Employees Union v. Federation of Pakistan PLC 2003 Labour 143 and I.A. Sherwani v. Federation of Pakistan 1991 SCMR 1041 ref.

Suleman Habibullah for Petitioner.

Nadeem Azhar Siddiqui D.A.‑G. for Respondents Nos. 1 and 2.

Shahid Anwar Bajwa for Respondent No.3.

Date of hearing: 8th September, 2004.

2005 P L C 130

[Karachi High Court]

Before Muhammad Moosa K. Leghari, J

DILSHAD KHAN LODHI

Versus

ALLIED BANK OF PAKISTAN through President and 3 others

Labour Appeals Nos. 107 and 202 of 2004, decided on 14th March, 2005.

Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑Ss. 2(xxviii) & 25‑A‑‑‑West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(i) & S.O. 15‑‑‑Dismissal from service‑‑‑Grievance application‑‑‑Maintainability‑‑­Status of workman, determination of‑‑‑Maintainability of grievance application filed by employee against order of his dismissal from service was resisted by employers contending that employee was not "workman" as at, the relevant time employed was posted as Incharge Foreign Exchange Section of the Bank and was holding a duly executed power of attorney‑‑‑Employers denied that applicant was doing any manual or clerical work‑‑‑Real test for determining the status of an employee was as to what constituted the primary duties assigned to the employee in the course of his duties‑‑‑Employee could only be declared to be a workman, if main duties performed by him were of clerical nature and not otherwise‑‑‑Clerical or manual duties must be of primary nature and not of an occasional nature‑‑‑Merely by producing one document would not be sufficient to hold that employee was employed on the job of clerical nature‑‑‑Employers had brought in evidence sufficient material to show that applicant was occupying a responsible position and his primary duties did not constitute manual work‑‑‑In cross‑examination employee had himself admitted that that he was working as Head of Foreign Exchange Department in the Bank‑‑‑Employee admitted that a power of attorney was executed by Bank in his favour‑‑‑Employee had also admitted that five other employees were in the Foreign Exchange Department, some of them were doing clerical and manual work and that he was not doing manual and clerical work and was only signing the cheques and statement slips‑‑‑Labour Court in circumstances had rightly concluded that employee was not a "workman" and that Labour Court had no jurisdiction to entertain grievance application of employee.

Abdul Ghani Khan for Appellant.

Shahid Anwar Bajwa for Respondents.

Date of hearing: 14th March, 2005.

2005 P L C 142

[Karachi High Court]

Before Atta-ur-Rehman, J

KARACHI BY ROAD WORKERS UNION

versus

REGISTRAR, TRADE UNION, SINDH and others

Civil Petition No. S-354 of 2003, decided on 24th December, 2004.

Industrial Relations Ordinance (XXIII of 1969)---

----Ss. 5, 6, 10 & 22---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Registration of Trade Union---Cancellation of---Amendment in constitution of Trade Union---Extension of membership---Claim to become Collective Bargaining Agent for other establishments as well---Requirements---Petitioner union initially was registered for sixteen Jamadars and was certified as Collective Bargaining Agent as such---Subsequently petitioner brought amendment in its Constitution which was approved by the Registrar Trade Union---Petitioner through said amendment extended its membership to other establishment including the respondents---Petitioner while submitting amended Constitution before Registrar Trade Union had not annexed list of extended establishments including the respondents---Petitioner claimed that it should be declared Collective Bargaining Agent for extended establishment also---Validity---Trade Union could only be certified as Collective Bargaining Agent of an establishment for which it was registered and of no one else---Petitioner could not have amended its Constitution extending membership to establishment beyond sixteen Jamadars without first seeking registration of extended establishment under Ss. 5 & 6 of Industrial Relations Ordinance, 1969---Amendment, if any, of the Constitution, was internal working of petitioner and it could not bypass provisions of law---Even if petitioner had annexed with his application for seeking approval of amendment in its Constitution list of additional establishments, Registrar Trade Union was not empowered to approve or accept same in absence of registration of said additional establishment to that effect---If petitioner wanted to be declared as Collective Bargaining Agent for additional establishment, it was incumbent upon it to first get it registered for those establishments and thereafter it could have sought certification of Collective Bargaining Agent in respect thereof.

M.L. Shahani for Petitioner.

Muhammad Humayun for Respondents Nos. 2 to 5.

Ali Anwar Ghanghro, Joint Director Labour and Mir Muhammad Baloch Deputy Director, Labour for Respondent No.1

Date of hearing; 24th December, 2004.

2005 P L C 175

[KarachiHigh Court]

Before Sabihuddin Ahmed and Khilji Arif Hussain, JJ

M/s. OVERSEAS MARINE TRADING AGENCIES (PVT.) LTD. and others

versus

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

Constitution Petitions Nos. 2011, 2012, 2051 and 2289 of 1995, decided on 23rd November, 2004.

(a) Pakistan Merchant Shipping (Seamen’s Employment) Rules, 1961---

----Rr.2(J) & 25---Pakistan Merchant Shipping Act (XXI of 1923), Ss. 2(c) & 24(1)---Companies providing seamen to foreign ship owners---Status---Such companies do not employ seamen for rendering services on foreign vessels---Basically as licensees under Pakistan Merchant Shipping Act, 1923, such companies only facilitate foreign vessels to enter into a contract of employment with Pakistan seamen by providing a list of available seamen whose services can be acquired---Choice to recruit a particular seaman is always that of the ship owner---Indeed at times the companies may be authorized to sign a contract of employment on behalf of ship owners under R.2(j) of Pakistan Merchant Shipping (Seamen’s Employment) Rules, 1961, but in doing so they may be acting as agents for very limited purpose of signing a contract, while fulfilment of its terms would invariably be the obligation of the ship owner---Only the ship owner can be treated as an employer even if the seaman is employed through such companies under S.2(c) of Pakistan Merchant Shipping Act, 1923.

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

----Ss. 11 & 33---Pakistan Merchant Shipping Act (XXI of 1923), Ss.2(c) & 24(1)---Pakistan Merchant Shipping (Seamen’s Employment) Rules, 1961, Rr.2 (j) & 25---Contract Act (IX of 1872), S.182---Constitution of Pakistan (1973), Art.199---Constitutional petition---Contributions on behalf of employees old age benefit---Petitioners were the Companies providing seamen to foreign ship owners---Authorities treating the Companies as employers of seamen, demanded the contribution with regard to the seamen provided by them to ship-owners---Plea raised by the Companies was that the seamen seeking employment through them were neither their employees nor they were the agents of ship-owners providing the employment---Validity---Agent or representative nominated by ship-owners were included in the definition of owners under R.2(j) Pakistan Merchant Shipping (Seamen’s Employment) Rules, 1961---Authorities failed to place on record any agreement between the ship owners and the Companies nominating them as their agents except that in terms of R.2(j) of Pakistan Merchant Shipping (Seamen’s Employment) Rules, 1961, they were to be the agents of ship-owners and the same made them liable for the demand of the contribution under Employees Old Age Benefit Act, 1976---Requirements of an agent as defined under S.182 of Contract Act, 1872, were not attracted in the present case---There was restriction on the employment of seamen directly and only those seamen were eligible to be recruited by ship-owners whose names appeared in the list of licence holders in respect of whom foreign ship-owners made request to the Companies---After following the procedure agreement was executed between the foreign ship-owner or on his behalf by someone and seamen---No extra territorial operation and contributions were payable in respect of industries and establishments within Pakistan, under the provisions of Employees Old Age Benefit Act, 1976---Even if the companies were considered to be the agents of ship-owners of sea going vessel with the flag of another foreign State, such companies would not come within the purview of Employees Old Age Benefit Act, 1976---Companies providing seamen to foreign ship-owners were not liable to the payment of the Contribution as demanded by the Authorities---Petition was allowed in circumstances.

Messrs Caltex Oil (Pakistan) Ltd. Karachi v. Sheikh Rehan-ud-Din, PLD 1958 (W.P) Lah. 63; Adam Limited v. Messrs Mitsuit and Co., 1997 MLD 2713; Abdul Latif v. Gopeswar Chattoraj AIR 1933 Calcutta 204 and State of Mysore and another v. Mysore Spinning and Manufacturing Co. Ltd. and others AIR 1958 SC 1002 ref.

R.F. Virjee for Petitioner (in C.P.No.D-2011 and D-2012 of 1995).

Sher Afgan for Petitioner (in C.P. No.D-2051 of 1995).

Arif Khan for Petitioner (in C.P. No.D-2289 of 1995).

M.A.M. Nimazi for Respondent.

Agha Faquir Muhammad, for Shipping Company.

Date of hearing: 26th August, 2004.

2005 P L C 192

[Karachi High Court]

Before Shabbir Ahmed, J

AQIL RAUF

versus

PRESIDING OFFICER, SINDH LABOUR COURT No.V and others

Civil Petitioner No.S-1133 of 2002, heard on 26th October, 2004.

Industrial Relations Ordinance (XXIII of 1969)---

----S.51--- Constitution of Pakistan (1973), Art. 199---Constitutional petition---Recovery of back-benefits as arrears---Petitioner had assailed legality and propriety of order passed by Labour Court whereby a certain sum as back-benefit was directed to be recovered from him as arrears of land revenue---Application for claim pertained to back-benefits which were not determined in reinstatement order and Presiding Officer of Labour Court, without determining amount of back-benefits, granted application---Order passed by Presiding Officer was not maintainable in law---Impugned order was set aside and case was remanded to Labour Court for decision on merits.

Ghulam Mustafa v. Vth Sindh Labour Court and another 1987 PLC 601 ref.

Ch. Rasheed Ahmed for Petitioner.

Abdul Zubair for Respondent No.2.

Ms. Akhtar Rehana and Abbas Ali A.A.G. for Respondents.

2005 P L C 296

[Sindh High Court]

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

FAUJI FERTILIZERS CO. LTD. Through General Secretary

Versus

THE SECRETARY, MINISTRY OF PRODUCTION GOVERNMENT OF PAKISTAN, ISLAMABAD SECRETARIAT, ISLAMABAD and 3 others

Civil Petitions Nos.(D) 636 and 1303 of 1990, heard oh 11th March, 2004.

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

----S.O. 10-C---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Payment of bonus---Entitlement---Prime Minister of Pakistan, at the occasion of inauguration of Expansion Project of the Corporation, had declared in her speech that two months' wages as bonus be paid to all workers of the Corporation---In pursuance of said speech of Prime Minister, Secretariat of Prime Minister issued directive by reminders to Secretary Production and to Chairman of the Corporation for necessary action---Petitioners could not explain as to what vested rights were created in their favour on basis of said directives issued from Prime Minister's Secretariat---Petitioners could not refer to any statutory provision that any legal right was created in their favour or that respondents were under legal obligation to comply with said directives---There being no substance in petition filed by petitioners, same were disposed of with observation that Corporation could consider at their end case of petitioners for payment of bonus accordingly.

Zaheeruddin Shaikh and others v. Prime Minister of Pakistan and others 2002 CLC 147 ref.

Muhammad Shafique Qureshi for Petitioner.

Ashfaque H. Rizvi, for Respondents Nos.1, 2 and 3.

Sajad Ali Shah, Standing Counsel.

Date of hearing: 11th March, 2004.

2005 P L C 320

[Karachi High Court]

Before: Muhammad Moosa K. Leghari, J

MUSLIM COMMERCIAL BANK LTD. through Attorney

Versus

GHULAM HAIDER and others

Labour Appeal Nos.3 to 6 of 2004, decided on 15th April, 2005.

Industrial Relations Ordinance (XCI of 2002)---

----Ss. 46 & 48---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.Os. 1(c) & 12---Termination of services of probationers---Grievance petition---Appeal to High Court---Appeals had been directed by appellant-Bank against order of Presiding Officer of Labour Court passed on grievance petition whereby termination of respondents/employees was declared by Labour Court to be against the law and respondents were directed to be reinstated in service by Labour Court with all consequential back­ benefits---Validity---Respondents, who were appointed on different dates, had completed successfully their prescribed probation period of three months, but they were abruptly terminated from service on ground that their services were no longer required as they were not found up to the required standard---Respondents having completed probationary period as fixed by law and also as per terms of contract, no justification was available for terminating their services on ground that their work was not upto the mark---When workman had completed his period of probation, it would be deemed that employer was satisfied with his work and conduct---After completion of probationary period, services of a workman could not be terminated on the ground that his work or conduct was not satisfactory---Such termination could neither be termed to be legal nor valid or justified---Labour laws had been promulgated to safeguard the interest of working class in order to provide them protection from arbitrary and unjustified actions of employers---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 was enacted to regulate the terms and conditions of employment of workers; provisions thereof had to be enforced and followed strictly---Reasons were available to believe that orders of termination of service of respondents/employees which were the subject-matter of the appeals were actions constituting malice in law---Order passed by Labour Court revealed that it was quite elaborate and detailed containing sound logic and valid reasons---In absence of any infirmity, illegality, order of Labour Court could not be interfered with in appeal.

Shahid Anwar Bajwa, for Appellant.

S. Soulat Hussain Rizvi for Respondents.

Date of hearing: 15th April, 2005.

2005 P L C 344

[Karachi High Court]

Before Muhammad Sadiq Leghari, J

Messrs EMMAY ZED PUBLICATIONS (PVT.) LTD., through Secretary

Versus

ABDUL RAHMAN BALOCH

Labour Appeal No.227 of 2004, decided on 3rd May, 2005.

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

----Ss. 4 & 17--West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O. 12---Industrial Relations Ordinance (XCI of 2002), S. 48---Termination of service---Appeal to High Court---Respondent whose services were terminated, filed grievance petition against his termination order, which was accepted by Labour Court and respondent was directed to be reinstated in service---Employer had filed appeal against order of Labour Court---Services of respondent were terminated mainly on ground of re-organization of employer/appellant-Establishment---Allegation levelled was that it was difficult for Management to have confidence in respondent---Alleged re-organization of establishment was not visible anywhere; in fact said single termination of respondent was the entire re-organization of appellant-Establishment--Re-organization was not a knee jerk reaction; it had to be fully justified and then its process was to be carried essentially under just and fair scheme, which had not been done in the case--Argument that respondent was not acquainted with new equipment, would not carry any weight; it was not only invalid in circumstances, but was an afterthought too---Nothing about that was °mentioned in notice of termination--Termination of respondent being malicious and outrageous, order passed by Labour Court declaring termination as malicious, would not call for interference in appeal.

United Bank's case PLD 1999 SC 990 and Qamarul Inam Khan, Managing Director Azad and Publication Ltd., v. Abdul Rasheed Basitpuri and another LLC 1967 (DACCA) 641 ref.

Shahid Anwar Bajwa for Appellant.

Shahenshan Hussain for Respondent.

Dates of hearing: 14th, 18th and 19th April, 2005.

2005 P L C 422

[Karachi High Court]

Before: Sabihuddin Ahmed and Khilji Arif Hussain, JJ

MUHAMMAD ALI

Versus

FULL BENCH, NATIONAL INDUSTRIAL RELATIONS COMMISSION and 3 others

Constitutional Petition No.D-813 of 1998, decided on 3rd March, 2005.

Industrial Relations Ordinance (XXIII of 1969)---

----Ss. 22-A(8)(g) & 22-D---National Industrial Relations Commission (Procedure & Functions) Regulations, 1973, Regln. 32(2)---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Unfair labour practice---Appeal to National Industrial Relations Commission---Dismissal in default---Restoration---Effect on interim order---Appeal filed before Full Bench of National Industrial Relations Commission which was dismissed for non-prosecution, was restored on application of petitioner, but before restoration of appeal, Employer had dismissed the petitioner from service---Petitioner had contended that upon restoration of appeal, interim order passed by National Industrial Relations Commission, at time of admitting his appeal for hearing, stood revived with retrospective effect---Validity---Upon restoration of proceedings all interlocutory or incidental orders would also stand revived and as far as possible, but in the present case appeal was restored nearly six months after its dismissal and order of petitioner's dismissal from service was also passed after more than one month of dismissal of appeal---Fundamental change having taken place during interregnum between dismissal and restoration, principle that upon restoration of proceedings, all interlocutory and incidental orders also would stand revived, would not be applicable and would not cover past and closed transactions or situations---Impugned order being unexceptionable, petition was dismissed.

Muhammad Saleh v. Muhammad Shafi 1982 SCMR 33 and Abdul Rehman v. Federation of Pakistan PLD 1955 Sindh 248 ref.

Ashraf Hussain Rizvi for Petitioner.

Sher Afghan for Respondents No.3 and 4.

Mahmood Abdul Ghani and Fazal Arab Amicus Curiae.

Date of hearing: 3rd March, 2005.

2005 P L C 449

[Karachi High Court]

Before Muhammad Moosa K. Leghari, J

SHAH MURAD SUGAR MILLS LTD.

Versus

MIR ALI MUHAMMAD and others

Labour Appeals Nos.S-7 to 14 of 2005, decided on 27th May, 2005.

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

----S.Os. 12 & 13---Industrial Relations Ordinance (XCI of 2002), Ss.46 & 48---Termination of service---Grievance petition---Appeal to High Court---Labour Court accepting grievance petitions of employees against termination of their services, declared same unlawful and directed their reinstatement with full back benefits---Employers had filed appeal against judgment of Labour Court---Employees were employed in employer's establishment on permanent basis and Management had no complaint against their work and conduct---Services of employees were terminated due to retrenchment on account of alleged re-organization---Employers could not substantiate plea of re-organization as no evidence of whatsoever nature had been led by employers in the very letter of termination---Since no evidence could be led beyond pleadings and nothing substantial being in the pleadings to prove contention of Employer Management that retrenchment of employees was justified, no reason was. to take a different view---Inordinate delay in adjudication of disputes, more particularly labour disputes, should be curtailed as far as possible---Labour Laws were beneficial laws and had been enacted with the purpose of resolving grievances of workers as expeditiously as possible---Section 46 of Industrial Relations Ordinance, 2002, had provided that decision of Labour Court would be given within seven days---That by itself had shown anxiety of Law Makers for expeditious redress of grievances of workers---Present cases had taken more than four years for adjudication before Labour Court---Counsel for employers, instead of pointing out any material irregularity or illegality, had raised an objection, which was totally misconceived---Order could not be disturbed on basis of such frivolous and concocted pleas, whereby no prejudice of any kind was caused to parties---Order passed by Labour Court had clearly revealed that it was based on substantial reasons---Said order could not be interfered with, excepting making some modification---Reinstatement of employee in service as was ordered by Labour Court, should not have been made for the reason that since Management was already nursing grudge against them, they would not be acceptable to employers which could result in differences and disputes as by their reinstatement Management would feel more embarrassed---Instead of reinstatement, employees should be compensated by way of awarding then wages---Accordingly, in lieu of reinstatement, employees would be entitled to 24 months wages besides back benefits.

Abbasi Textile Mills v. The Industrial Court, West Pakistan, 1966 P.L.C. 552; Nur Elahi v. The State, PLD 1966 SC 708; United Bank Limited v. Shamim Ahmed Khan, 1999 PLC 1032; Islam­ud-Din v. Ghulam Muhammad PLD 2004 SC 633 and Pakistan Automobile Corporation Limited v. Mansoor-ul-Haque 2004 PLC (CS) 1151. ref

(b) Prejudice---

----Plea whether a party could claim to be prejudiced by mere mentioning incorrect name of a witness, was beyond comprehension and untenable as that fact by itself would not be enough to cause prejudice.

Mehmood Abdul Ghani and Syed Wizarat Hussain Zaidi for Appellant.

Choudhry Muhammad Ashraf for Respondent.

Masood A. Noornai, Add. A.G. for Respondent No. 1

Date of hearing: 17th and 27th May, 2005.

2005 P L C 449

[Karachi High Court]

Before Muhammad Moosa K. Leghari, J

SHAH MURAD SUGAR MILLS LTD.

Versus

MIR ALI MUHAMMAD and others

Labour Appeals Nos.S-7 to 14 of 2005, decided on 27th May, 2005.

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

----S.Os. 12 & 13---Industrial Relations Ordinance (XCI of 2002), Ss.46 & 48---Termination of service---Grievance petition---Appeal to High Court---Labour Court accepting grievance petitions of employees against termination of their services, declared same unlawful and directed their reinstatement with full back benefits---Employers had filed appeal against judgment of Labour Court---Employees were employed in employer's establishment on permanent basis and Management had no complaint against their work and conduct---Services of employees were terminated due to retrenchment on account of alleged re-organization---Employers could not substantiate plea of re-organization as no evidence of whatsoever nature had been led by employers in the very letter of termination---Since no evidence could be led beyond pleadings and nothing substantial being in the pleadings to prove contention of Employer Management that retrenchment of employees was justified, no reason was. to take a different view---Inordinate delay in adjudication of disputes, more particularly labour disputes, should be curtailed as far as possible---Labour Laws were beneficial laws and had been enacted with the purpose of resolving grievances of workers as expeditiously as possible---Section 46 of Industrial Relations Ordinance, 2002, had provided that decision of Labour Court would be given within seven days---That by itself had shown anxiety of Law Makers for expeditious redress of grievances of workers---Present cases had taken more than four years for adjudication before Labour Court---Counsel for employers, instead of pointing out any material irregularity or illegality, had raised an objection, which was totally misconceived---Order could not be disturbed on basis of such frivolous and concocted pleas, whereby no prejudice of any kind was caused to parties---Order passed by Labour Court had clearly revealed that it was based on substantial reasons---Said order could not be interfered with, excepting making some modification---Reinstatement of employee in service as was ordered by Labour Court, should not have been made for the reason that since Management was already nursing grudge against them, they would not be acceptable to employers which could result in differences and disputes as by their reinstatement Management would feel more embarrassed---Instead of reinstatement, employees should be compensated by way of awarding then wages---Accordingly, in lieu of reinstatement, employees would be entitled to 24 months wages besides back benefits.

Abbasi Textile Mills v. The Industrial Court, West Pakistan, 1966 P.L.C. 552; Nur Elahi v. The State, PLD 1966 SC 708; United Bank Limited v. Shamim Ahmed Khan, 1999 PLC 1032; Islam­ud-Din v. Ghulam Muhammad PLD 2004 SC 633 and Pakistan Automobile Corporation Limited v. Mansoor-ul-Haque 2004 PLC (CS) 1151. ref

(b) Prejudice---

----Plea whether a party could claim to be prejudiced by mere mentioning incorrect name of a witness, was beyond comprehension and untenable as that fact by itself would not be enough to cause prejudice.

Mehmood Abdul Ghani and Syed Wizarat Hussain Zaidi for Appellant.

Choudhry Muhammad Ashraf for Respondent.

Masood A. Noornai, Add. A.G. for Respondent No. 1

Date of hearing: 17th and 27th May, 2005.

2005 P L C 458

[Karachi High Court]

Before Zia Perwaz, J

KHAN BROTHERS through General Secretary and another

Versus

REGISTRAR TO TRADE UNIONS, GOVERNMENT OF SJNDH and another

Constitution Petition No.450 of 2003, heard on 27th May, 2005.

Industrial Relations Ordinance (XCI of 2002)---

-------Ss.2(xiii), 6(2)(b) & 80--Constitution of Pakistan (1973), Art.199---Registration of Trade Union---"Group of establishments"---Definition---position prevailing prior to enactment of Industrial Relations Ordinance, 2002, was that "Group of establishment" was defined to mean "Group of establishments owned by one or more employers"; while in the repealed Ordinance i.e. Industrial Relations Ordinance, 1969, no such restriction that in a group of establishments' all establishments were to be owned by one owner existed---Provisions of subsection (c) of S.80 of Industrial Relations Ordinance, 2002 had specifically provided that any document referring to repealed Ordinance, 1969, relating to industrial relations would be construed as referring to corresponding provisions of newly promulgated Ordinance, 2002 and corresponding provision in said Ordinance, was S.2(xiii) which was required to be referred to---Any reference to termGroup of establishments', in circumstances was to be construed in the manner as set forth in amended definition, otherwise same would come in conflict with provisions of S.80(c) of Industrial Relations Ordinance, 2002---Petitioner unions and respondent union would cease to exist by virtue of enactment of law being violative of provisions of S.2(xiii) of Industrial Relations Ordinance, 2002 because a group of establishments owned by different employers was no longer recognized by law and registration of a trade union with respect to such a group, was beyond the scope of powers and jurisdiction of Registrar of Trade Unions.

Sanitation Agency Employees Walfare Union v. Registrar, Trade Unions 2003 PLC 386; Karachi Port. And Dock Workers Union v. Government of Pakistan 2004 PLC 252 and Application of Pakistan Spencers Employees Union 1977 PLC 20 ref.

Ashraf Hussain Rizvi for Petitioners.

Rafiullah for Respondents.

Date of hearing: 27th May, 2005.

2005 P L C 466

[Karachi High Court]

Before Sabihuddin Ahmad and Khilji Arif Hussain, JJ

FAUJI FERTILIZER COMPANY LTD.

Versus

SINDH LABOUR APPELLATE TRIBUNAL and others

C.P. No.754 of 1996, heard on 16th March, 2005.

Industrial Relations Ordinance (XXIII of 1969)---

----Ss. 2(viii), (ix), (xxviii) & 25-A---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Removal from service---Grievance petition---Relationship of employer and employees---Proof of existence---Case of petitioner company was that for execution of work of bagging and loading of urea manufactured in its factory and its connected activities, petitioners entered into contract with independent contractors from time to time and respondents, who used to be engaged by said contractors were not employees of petitioner company---Petitioner in circumstances had denied existence of relationship of employer and employees between . the parties---Labour Court and Appellate Court below concurrently held that respondents were employees of petitioner company and ordered their reinstatement in service with back benefits--Petitioner had questioned said concurrent judgments of Courts below in its Constitutional petition---Validity---Respondents were doing their jobs in petitioner's factory for the last 10 years continuously and during that period of time petitioners had granted contracts to various contractors in respect of work performed by respondents---Direct nexus existed between the work performed by respondents and manufacturing of urea in petitioner's factory and it could not be said that contractor was engaged or doing some work independent of goods manufactured by petitioner in its factory---Filling of urea in bags, putting liner on them, stitching same, and loading them in trucks, could not be termed that respondents were not connected with manufacturing process---Under Factories Act, 1934, packing had been clearly defined as part of manufacturing process---Was not disputed by either party that respondents, though engaged by contractors, were discharging their duties within premises of petitioner's factory under the direct control and supervision of petitioner's employees---Petitioner was to establish that it had entered or awarded a particular work not connected with manufacturing process to an independent contractor, who had been authorized to engage his own labour force as required by him and to supervise them for the purpose of completion of work awarded to him---Letter addressed by petitioner to his contractor, had clearly established that purpose of hiring services of contractor was to provide man power for a particular section of petitioner's factory and it could not be said that contractor was engaged to perform some independent work not connected with manufacturing process carried out in petitioner's factory---Petition against judgment of Labour Court and Appellate Court below having no merits, was dismissed.

The Punjab Religious Book Society v. Mst. Amanat 1974 SCMR 269; M/s. Dawood Catton Mills Ltd. v. Sindh Labour Appellate Tribunal and others 2004 PLC 348; Munir Ahmed v. The State 1985 SCMR 257 and Fareed Ahmed v. Pakistan Barmah Shell Ltd. 1987 SCMR 1463 ref.

Abdul Mujeeb Pirzada for Petitioners.

Shahenshah Hussain for Respondents.

Shafique Qureshi for Respondent No.1.

Date of hearing: 16th March, 2005.

2005 P L C 6

[Lahore High Court]

Before Muhammad Akhtar Shabbir, J

KAWALITY PAPER MILLS (PVT.) LIMITED through Managing Director

Versus

PRESIDING OFFICER, LABOUR COURT NO. 1, LAHORE, and 2 others

W. Ps. Nos. 11015 11016, 11017, 11018, 8740, 8741 and 10827 of 2003, heard on 17th November, 2003.

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

----S. 17---Appeal against direction of Authority before Labour Court--­Procedure---Appeal before Labour Court would be preferred within 30 days of date on which direction was made by Authority, but no appeal would lie unless the memorandum of appeal was accompanied by a certificate of the Authority to the effect that appellant had deposited with the Authority, the amount payable under direction appealed against, such being the requirement of law for filing appeal under S. 17 of Payment of Wages Act, 1936.

M/s. Chenab Cement product (Pvt.) Ltd. v. The Banking Tribunal Lahore PLD 1996 Lah. 672; Syed Match Company Ltd. 2003 SCMR 1493; Ahmad Spinning Mills v. Authority under Payment of Wages Act and others" 1990 PLC 26; Chief Personnel Officer Pakistan Railways Lahore v. Muhammad Ibrahin 1983 PLC 1235 and Divisional Superintendent, Pakistan Railways, Rawalpindi v. Muhammad Aslam 1986 SCMR 1607 ref.

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

----Art. 189---Judgment of Supreme Court---Binding force of---Any decision of Supreme Court, -would, to the extent that it decided a question of law or was based upon or enunciated, a principle of law, be binding on all other Courts in Pakistan---Decisions of the superior judiciary are considered decisions of the Court or an institution instead of decisions of individual Judge or Judges---If a Bench of a High Court was faced with situation where on one side a decision of Full Bench of a High Court was cited and on the other hand a decision of Supreme Court on the same point was cited, in such situation the decision of Supreme Court had to be followed in view of clear provision of Art. 189 of Constitution---Said provision of Constitution had left no scope for Judge of High Court to prefer Full Bench High Court's decision over the decision of Supreme Court on a question of law; it was judicial dignity to follow the decision of Supreme Court of Pakistan.

Sher Muhammad v. Additional Rehabilitation Commissioner Multan 1981 SCMR 520 ref.

H.R. Haider for Petitioner.

Muhammad Bashir Ch. For Respondent No. 1.

Date of hearing: 17th November, 2003.

2005 P L C 11

[Lahore High Court]

Before Muhammad Akram Baitu, J

PUNJAB ROAD TRANSPORT CORPORATION MULTAN through Director Operation; P.R.T.C. Lahore

Versus

HINDUL KHAN, and 2 others

W.P. No.8403 of 2002, decided on 10th June, 2004.

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

----Ss. 1(3), 25-A & 37(3)---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S. 1(c) & S.O. 15---Constitution of Pakistan (1973), Art. 199---Constitutional petition--Dismissal from service---Grievance petition ---Exemption--­Employee who was serving as driver in Punjab Road Transport Corporation was involved in criminal case and was sentenced to imprisonment for two years---While he was in jail he informed the employer Corporation and applied for leave, but Corporation, instead, dismissed the employee from service---Grievance petition filed by employee against his dismissal from service was concurrently allowed by Labour Court and Labour Appellate Tribunal---Employer Corporation filed Constitutional petition claiming that Corporation having been exempted from provisions of Industrial Relations Ordinance, 1969 and Standing Orders Ordinance, 1968 through Notification, orders passed by Labour Court and Labour Appellate Tribunal were liable to be set aside---Validity---Said Notification could not adversely affect case of employee as grievance petition filed by him was pending prior to issuance of said Notification which Notification was promulgated prospectively and not retrospectively---Labour Court as well as Labour Appellate Tribunal were justified to decide case of employee and their concurrent findings not suffering from any illegality, could not be interfered with by High Court in exercise of its Constitutional jurisdiction.

(b) Interpretation of Statutes-----

----Amendment in existing law---Amendment in existing law would be prospective in operation until and unless it was otherwise provided.

Ch. Saghir Ahmed for Petitioner.

Malik Muhammad Tariq Rajwana for Respondents.

2005 P L C 19

[Lahore High Court]

Before Tassaduq Hussain, Jilani, J

NESTLE MILK PAK LIMITED

Versus

BOARD OF TRUSTEES, EOBI, KARACHI and 2 others

Writ Petition No. 12278 of 1999, heard on 15th June, 2004.

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

----Ss.2(bb) and 2(c)---Provincial Employees Social Security Ordinance (X , of 1965), S.20---Constitution of Pakistan (1973), Art. 199--­Constitutional petition---Old age benefits, recovery of---Employees provided by contractor---Findings of fact, non-assailing of---Petitioner denied to be the employer of the persons engaged by contractor--­Adjudicating Authority as well as Appellate Authority both decided the matter against the petitioner and found the petitioner company entitled to payment of the demand raised by the authorities under Employees' Old Age Benefits Act, 1976---Plea raised by the petitioner was that the contractor was given certain tasks who employed workers and the contractor was responsible and the petitioner was not party to the mutual contract between the contractor and employees---Validity---Petitioner had not challenged the finding of fact given by three member Commission, no mala fide or misconduct was alleged against any member of the Commission either---Such finding of fact could not be interfered with in the Constitutional proceedings as the same would entail a factual inquiry and, recording of evidence which exercise under Art. 199 of the Constitution could not be resorted to unless there were exceptional circumstances---In either case, under the provisions of S.20 of Provincial Employees Social Security Ordinance, 1965, emphasis was on a person in industry of establishment whether in the capacity of an owner or contractor, manager, superintendent and secretary etc.---Common element with regard to the nature of role was that of an employer--High Court refused to interfere with the findings by the authorities below--­Petition was dismissed in circumstances.

Sindh Employees Social Security Institution v. Consolidated Sugar Mills Limited 1989 SCMR 888; Farid Ahmad v. Pakistan Burmah Shell Limited and others 1987 SCMR 1463 and Crescent Textile Mills Limited through Manager Accounts, Sadiq Saleem v. Board of Trustees, Employees Old Age Benefits Institution and 2 others 2003 PLC 41 ref.

Ch. Abdul Rab for Petitioner.

Syed Hammad Raza Naqvi for Respondents.

Date of hearing: 15th June, 2004.

2005 P L C 26

[Lahore High Court]

Before Ch. Ijaz Ahmad, J

PUNJAB EMPLOYEES SOCIAL SECURITY through Commissioner

Versus

PRESIDING OFFICER, PUNJAB LABOUR COURT No. 1 LAHORE and another

W.P. No.14650 of 1999, heard on. 21st April, 2004.

(a) Jurisdiction-----

----Submission to jurisdiction of the Court---Effect---Submission to jurisdiction of the Court without objection to lack of jurisdiction in, Court, would disentitle submitting party to challenge order of Court--­Party who had not raised objection at the relevant time before the Court qua the assumption of jurisdiction, would be precluded from doing so after case was decided against party.

Pir Bakhsh represented by his Legal Heirs and others v. The Chairman, Allotment Committee and others PLD 1987 SC 145; Haji Ghulam, Rasool and others v. The Chief Administrator of Auqaf; West Pakistan (PLD 1971 SC 376; Rice Export Corporation of Pakistan (Pvt.) Limited v. Chairman, Sindh Labour Appellate Tribunal and others 1993 PLC 287; Mst. Noor Jahan v. Mst. Roshan Jahan and others 1994 SCMR 2265; Chaudhry Haq Nawaz Chohan v. Chaudhry Tariq Azam and others 1994 CLC 1530; Nawab Din and others v. Muhammad Salim Aamer and others 1994 PCr.LJ 1831; Board of Intermediate and Secondary Education, Lahore through Chairman and another v. M. Massadaq Naseem Sindhoo PLD 1973 Lah. 600 and Syed Azmat All v. The Chief Settlement and Rehabilitation Commissioner, Lahore and others PLD 1964 SC 260 ref.

(b) Constitutional of Pakistan (1973)-----

----Art.199---Constitutional jurisdiction---Scope---Constitutional jurisdiction was discretionary in character---Where substantial justice had been done between the parties, said discretion could not be exercised in favour of petitioner.

Nawab Syed Raunaq Ali and others v Chief Settlement Commissioner and others PLD 1973 SC 236; Rana Muhammad Arshad v. Additional Commissioner (Revenue), Multan Division and others 1998 SCMR 1462; M. Ramizul Haq and others v. The Secretary to the Government of Pakistan, Rawalpindi and others PLD 1992 SC 221; Abdur Rashid v. Pakistan and others 1983 SCMR 196 and Principal, King Edward Medical College, Lahore v. Ghulam Mustafa and others 1969 SCMR 141 ref.

Muhammad Saeed Wariach for Appellant.

M.A. Khadim for Respondents.

Date of hearing: 21st April, 2004.

2005 P L C 47

[LahoreHigh Court]

Before Ch. Ijaz Ahmad, J

MUHAMMAD AKHTAR

Versus

COMMISSIONER COMPENSATION (MINES) KHUSHAB and 3 others

W. P.No.10356 of 2004, decided on 25th June, 2004.

(a) Workman's Compensation Act (VIII of 1923)‑‑‑

‑‑‑‑S. 10‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Accident‑‑‑Compensation‑‑‑Compensation Commissioner had awarded complete disability compensation to the respondent and objection petition filed by the. petitioner "was dismissed ‑‑‑Validity‑‑­Decree was passed after completing all legal formalities by the competent forum‑‑‑Stand taken by the petitioner was belied by the documentary evidence‑‑‑Petitioner had approached the Court with unclean hands‑‑‑Constitutional jurisdiction being discretionary, High Court refused to exercise discretionary power in circumstances and dismissed the Constitutional petition.

Abdul Rashid v. Pakistan and others 1969 SCMR 141; Principal, King Edward Medical College, Lahore v. Ghulam Mustafa and others 1983 SCMR 196 and Central Government of Pakistan and others v. Suleman Khan and others PLD 1992 SC 590 rel.

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

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Laches‑‑‑Objection petition filed by the petitioner having been dismissed‑‑‑Petitioner failed to file Constitutional petition immediately, same was liable to be dismissed on the principle of laches.

Kh. Muhammad Sharif. v. Federation of Pakistan and other PLD 1988 Lah. 725; Federation of Pakistan and others v. Haji M. Saifullah Khan and others PLD 1989 SC 166 and Khiali Khan v. Haji Nazir and 4 others PLD 1977 SC 304 rel.

Rafaqat Ali Kahloon for Petitioner.

Muhammad Hanif Khatana Addl: A.G. Muntazar Mehdi for Respondents on Court's call.

2005 P L C 61

[Lahore High Court]

Before Maulvi Anwarul‑Haq, J

AREA HEAD MUSLIM COMMERCIAL BANK LIMITED, MULTAN and 2 others

Versus

ALLAH BAKHSH and another

F.A.O. Nos. 10 and 6 of 2004, heard on 28th June, 2004.

Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑Ss. 2(xxviii) & 25‑A‑‑‑West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S. O. 15‑‑­Muslim Commercial Bank Staff Service Rules, R. 28(1)‑‑‑Dismissal from service for taking part in Local Government Election‑‑‑Employee who was performing the duties of a Guard at a Bank and admittedly was a workman, was dismissed from service on ground that he contested Local Government Election and was declared returned to a general seat‑‑‑Earlier when employee intended to take part in said election, filed application before Manager of relevant Branch of the Bank to obtain N.O.C. for said purpose‑‑‑Employee having not been informed about fate of his said application by Zonal Office of employer Bank, he took part in election assuming that employers had no objection to his participation in election‑‑‑Employee by participating in non‑party election, had not violated any part of R. 28 of Staff Service Rules, which had provided that no employee would become member of a Political Party and take part in election and could not subscribe, in .any way to any Political activity‑‑‑Record proved that employee did seek permission to contest the election vide application to Manager which was forwarded to Regional Office of employer Bank and leave application for fifteen days was granted by Manager of Bank for contesting the election‑‑‑Act of employee in contesting election, was neither violation of Staff Service Rules nor it could be said that employee had deliberately committed an act of insubordination‑‑‑Employee, in response to show‑cause notice, had stated without any demur that if employer Bank would so order, he would be ready to resign the office in Local Government to which he had returned‑‑‑Order of dismissal passed against employee was set aside subject to undertaking given by employee and he was ordered to be re‑instated in service with back ­benefits.

Ch. Rahim ud Din for Appellants.

Muhammad Anwar Awan for Respondents

Date of hearing: 28th June, 2004.

2005 P L C 74

[Lahore High Court]

Before Ch. Ijaz Ahmad, J

MUHAMMAD ALI. MALIK

Versus

WORKMAN COMMISSIONER/WORKMEN'S COMPENSATION AND AUTHORITY UNDER THE PAYMENT OF WAGES ACT, 1936 arid 2 others

W. Ps. Nos. 14999 to 15012 of 2004, decided on 16th September, 2004.

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

‑‑‑‑S.17‑‑‑Constitution of Pakistan (1973), Art. 199 ‑‑‑ Constitutional petition‑‑‑Maintainability‑‑‑Legislation by reference‑‑‑Alternative remedy‑‑‑Workman Commissioner/Workman's Compensation Authority had accepted the applications of workmen‑‑‑Petitioners filed applications under section 12(2), C.P.C.‑‑‑Which were rejected being barred by time‑‑‑Such order was challenged in Constitutional petitions ‑‑‑Validity‑‑­Constitutional petitions were incompetent as remedy of appeal before the Labour Court by virtue of section 17 of the Payment of Wages Act, 1936 was available even after the repeal of Industrial Relations Ordinance, 1969.

Ch. Muhammad Ismail's case PLD 1996 SC 246 cited.

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

‑‑‑‑Preamble‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Repeal of Industrial Relations Ordinance, 1969‑‑‑Legislation by reference‑‑‑Incorporation of legislation by reference as per law laid down by Superior Court‑‑‑Remedy to file appeal was available. to the petitioners‑‑‑Petitioners were well within their rights to avail the proper remedy before the Appellate Authority on the well known principle of legislation by reference or by incorporation even after repeal of Industrial Relations Ordinance, 1969.

Pakistan International Air Lines Corporation's case PLD 1979 Lah. 415 cited.

Malik Abdul Sattar Dogar for Petitioners.

Muhammad Hanif Khatana, Addl. Advocate‑General entered appearance on Court's call assisted by Syed Faisal Raza for Respondents.

2005 P L C 79

[Lahore High Court]

Before Sh. Hakim Ali, J

MANAGING DIRECTOR, PUNJAB SMALL INDUSTRIES CORPORATION

Versus

NATIONAL INDUSTRIAL RELATIONS COMMISSION, LAHORE and others

Writ Petition No. 1794 of 1996/BWP decided on 30th September, 2003.

Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑S.22‑A(8)(g)‑‑Constitution of Pakistan (1973), Art. 199‑‑­Constitutional petition‑‑‑Unfair labour practice‑‑‑Order whereby application filed under S.22‑A(8)(g) of Industrial Relations Ordinance, 1969 by respondent was entertained by National Industrial Relations Commission had been challenged by petitioner contending that Commission was not competent and same had been entertained without jurisdiction‑‑‑Constitutional petition was hanging for adjudication since 1996 without any commendable progress‑‑‑High Court' observed that purpose would be served if National Industrial Relations Commission was directed to consider the point of jurisdiction before proceeding further with the case filed before it and render its decision with regards to its jurisdiction‑‑‑Petitioner had felt satisfied with such observations of the High Court and did not press his petition requesting that he would repeat it if need would arise in future‑‑‑Constitutional petition was disposed of accordingly.

Shamshir Iqbal Chughtai for petitioner.

2005 P L C 80

[Lahore High Court]

Before Nazir Ahmad Siddiqui, J

GHULAM FAREED

Versus

REGIONAL DIRECTOR, PUNJAB SMALL INDUSTRIES CORPORATION, BAHAWALPUR and others

R.F.A. No.53 of 2003/BWP decided on 19th June, 2003.

Industrial Relations Ordinance (XCI of 2002)‑‑‑

‑‑‑S.48‑‑‑Grievance petition‑‑‑Dismissal of‑‑‑Appeal against‑­Limitation‑‑‑Inordinate delay‑‑‑Effect‑‑Appellant/employee was relieved of his duties on account of tendering his resignation which was accepted by competent Authority and employee was deemed to have been retired with effect from said date‑‑‑Grievance petition filed by employee before Presiding Officer of Labour Court against order of his retirement was dismissed on ground of limitation‑‑‑Constitutional petition filed by employee after more than two years of his retirement, having been dismissed, employee filed grievance petition to Labour Court two years after dismissal of his Constitutional petition‑‑‑Employee sought condonation of delay, on ground that he had been agitating matter before a wrong forum in good faith and that would be a good ground for condonation of delay in filing grievance petition‑‑‑Contention of employee was repelled as he was fully aware of impugned departmental order soon after passing of same‑‑‑Employee had filed 'Constitutional petition against departmental order after a period of almost more than two years, without any convincing explanation for said delay‑‑‑Impugned order having been passed on due appreciation of law and fact, would call for no interference in appeal.

Shabbir Ahmad Bhutta for Appellant.

M. Shamshir Iqbal Chughtai for Respondents.

Date of hearing: 19th June, 2003.

2005 P L C 87

[Lahore High Court]

Before Tassaduq Hussain Jilani, J

TOWN COMMITTEE DINGA through Tehsil Nazim, Kharian

Versus

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

Writ Petition No. 11296 of 2003, decided on 5th July, 2004.

Payment of Wages Act (IV of 1936)‑‑‑

‑‑‑‑Ss.2(i) & 15‑‑‑Constitution of Pakistan (1973), Art. 199‑‑­Constitutional petition‑‑‑Town Committee not a "Factory" ‑‑‑Petitioner had submitted that. Town Committee was not a factory in terms of Payment of Wages. Act, 1936 and that its employees could not be treated as employees of factory and that he would like to file revision application before the same Authority‑‑‑Stance taken by petitioner was fair‑‑‑If such an' application was filed by petitioner, same would be decided within six weeks of its representation as mandated in law and in the light of .law laid down in case reported as PLD 2002 SC 452.

Town Committee Gakhar Mandi v. Authority Under the payment of Wages Act and others PLD 2002 SC 452 ref.

Muhammad Zamam Qureshi for Petitioner.

Nemo for Respondent No.2.

Ch. Khurshid Anwar Bhinder for Addl. A.‑G.

2005 P L C 96

[LahoreHigh Court]

Before Muhammad Akhtar Shabbir, J

GULAB KHAN

Versus

MUSLIM COMMERCIAL BANK LIMITED through Executive Vice President, Human Resources Division and 2 others

Labour Appeals Nos.26 to 33 of 2003, heard on 24th November, 2004.

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

‑‑‑‑S.Os. 12, 13 & 15‑‑‑Retrenchment‑‑‑Retrenchment, dismissal, discharge, removal from service‑‑‑Distinction between‑‑‑Retrenchment would mean discharge of surplus labour or staff by employer for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action and it had no application where services of all workmen had been terminated by employer on a real and bona fide closure of business or when services of all workmen had been terminated by employers on the business or undertaking being taken over by another employer‑‑‑Where any workman was to be retrenched and he belonged to a particular category of workmen, employer would retrench the workman, who was the last person in that category‑‑‑Retrenchment, comprised of an act or instance of cutting off, cutting out or .cutting down, in many a case, for consideration of economy, such as discharge of a surplus labour or staff in a continuing 'or running industry‑‑‑As to the grievance of dismissal, removal and discharge of the employee, it was quite distinguishable from the word retrenchment'‑‑‑Dismissal' was the loose equivalent of removal from an office or employment‑‑‑That class of termination, implicitly involved severance of relationship before time on account of some defect in the performance or discharge of duties‑‑‑.`Removal' signified an act of displacement from a post or position as such, which usually would come about for a fault on the part of an employee, but also could be occasioned, in certain circumstances, quite blamelessly‑" Discharge" involved either simple relieving of a charge of any kind or to dismiss, though usually the former‑‑‑Such, could either be without apportionment of blame or on account of commission of an offence or misconduct‑‑‑In either case, it would result in extinguishments of an obligation or termination of an employment.

Hariprasad Shivshanker Shukla and another v. A.D. Divelkar and others AIR 1957 SC 121 ref.

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

‑‑‑‑S.O.14‑‑‑Industrial Relations Ordinance (XXIII of 1969), Ss.25‑A & 37(3)‑‑‑Retrenchment‑‑‑Grievance petition‑‑‑Appeal before Labour Appellate Tribunal‑‑‑Employees, who were employed by employer Bank as drivers, their services were retrenched according to scheme launched whereby it was decided to retrench all. drivers without any exception and after their retrenchment no further recruitment of drivers was made‑‑­Employees challenged said retrenchment in their grievance petition. alleging it baseless, dishonest, mala fide and illegal‑‑‑Employer Bank had challenged maintainability of said grievance petition contending that employees who had been paid substantial amount of money in excess of their legal dues, were estopped from filing grievance petitions‑‑­Employer Bank had further pleaded that all two hundred drivers being not required, their retrenchment was without any discrimination and that there was no question of mala fide because entire cadre of drivers had been abolished and after that no driver was recruited‑‑‑Termination of services of employees as a result of retrenchment carried no stigma‑‑­Bank Management in Retrenchment Scheme having given substantial benefits to retrenched employees, it could not be said that exercise of powers by employer Bank was opposed to Islamic principle of `Adal‑o‑Ihsan'‑‑‑ As termination of employees from service as a result of retrenchment did not carry any stigma, they were not entitled to any notice of hearing before termination, of their employment through retrenchment‑‑‑Contention of employees that they were condemned unheard, was repelled‑‑‑Employee, having rightly been retrenched their appeals having no force, were dismissed.

Messrs Telephone Industries of Pakistan (Pvt.) through Manager, Planning and Installation, Karachi v. Sindh Labour Appellate Tribunal through Chairman, Karachi and 2 others 1998 PLC 221; Zeal Pak Cement Factory Ltd., Hyderabad v. The Chairman, West Pakistan Industrial Court, Lahore PLD 1965 SC 420; Syed Momin v. Rashid Textile Mills Ltd., and 3 others 1987 PCL 852; United Bank Limited v. Shahmim Ahmad Khan PLD 1999 SC 990 and Farasat Hussain and others v. Pakistan National Shipping Corporation through Chairman and others 2004 SCMR 1874 ref.

Ch. Saddique M. Warraich for Appellant.

Shahid Anwar Bajwa for Respondents.

Date of hearing: 24th November, 2004.

2005 P L C 102

[Lahore High Court]

Before Ch. Ijaz Ahmad, Actg. C.J

ABDUL RAHIM ASHRAF TRUST (REGISTERED) through Chairman, Faisalabad

Versus

PUNJAB EMPLOYEES SOCIAL SECURITY INSTITUTION through Commissioner, Lahore and 2 others

Civil Revision No.2621 of 2004, decided on 8th December, 2004.

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

‑‑‑‑Ss. 3(1), 57, 58 & 61‑‑‑Notification No.DEV‑1/PESSI/2‑15/93 (P-III), dated 13‑2‑1999‑‑‑Civil Procedure Code (V of 1908), Ss.9, 115 & O.VII, R.10‑‑‑Return of plaint ‑‑‑Vires of Notification‑‑‑Jurisdiction of Civil Court‑‑‑Scope‑‑‑Authorities in compliance of Notification No.DEV­-1/PESSI/1‑15/93 (P‑III), 13‑2‑1999, demanded contribution of social security from plaintiff school‑‑‑Plaintiff assailed vires of the notification in civil suit‑‑‑Trial Court returned the plaint to be filed before competent Court under the provisions of Provincial Social Security Ordinance, 1965‑‑‑Order passed by the Trial Court was maintained by Appellate Court‑‑‑Validity‑‑‑Civil Court had ultimate jurisdiction by virtue of S.9 C.P.C.‑‑‑Both the Courts below had committed material irregularity‑‑‑High Court in exercise of revisional jurisdiction had ample jurisdiction to disturb the findings of Courts below in such situation‑‑­Judgments of both the Courts below were set aside and the case was remanded to Trial Court for decision afresh‑‑‑Revision was allowed accordingly.

Standard Printing Press v. Sind Employees Social Security Institution 1988 SCMR 91; Rupali Ltd., Sheikhupura through Personnel Manager v. Deputy Director, Punjab Employees Social Security Institution, Sheikhu ura and 2 others 2003 PLC 399 distinguished.

Zafar‑u‑Ahsan's case PLD 1960 SC 113 Knawal Main's case PLD 1983 SC 53 and Saukat Nawaz's case 1988 SCMR 851 rel.

Muhammad Saeed Ahmed for Petitioner.

Muhammad Mujahid Ahmad for Respondents.

2005 P L C 110

[Lahore High Court]

Before Malik Muhammad Qayyum and Ghulam Mahmood Qureshi, JJ

DON BOSCO HIGH SCHOOL EMPRESS ROAD, LAHORE

Versus

DIRECTOR, SOCIAL SECURITY and 2 others

I. C.A. No.609 of .1997 in W.Ps. Nos. 9207 and 9208 of 1995, 10428 and 10430 of 1996 and 11712 of 1996, heard on 2nd December, 1999.

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

‑‑‑‑S.2(II)‑‑‑Employees' Old‑Age Benefits Act (XIV of 1976), S.2(e)‑‑­Establishment‑‑‑Definitions of "Establishment" in Provincial Employees' Social Security Ordinance, 1965 and in the "Employees' Old Age Benefits Act, 1976" were not similar as Act 1976 not only made reference to West Pakistan Shops and Establishment Ordinance, 1969, but also had included various other organizations within its ambit‑‑‑Definition of "Establishment" in Employees' Old‑Age Benefits Act, 1976 was much larger, and more comprehensive and exhaustive than definition of "Establishment" in Provincial Employees' Social Security Ordinance, 1965‑‑‑Precedents under Employees' Old‑Age Benefits Act, 1976 could not form basis of decision under Provincial Employees' Social Security Ordinance, 1965.

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

‑‑‑‑Ss.1(3), 2(11) & 20‑‑‑Law Reforms Ordinance (XII of 1972), S.3‑‑­Intra‑Court Appeal‑‑‑Liability of Schools for payment of contribution‑‑­School was not a place where commercial business or industrial activity was carried out, but was the place of learning where education was imparted to students‑‑‑Even otherwise education was not an industry‑‑­Word. "Establishment" as defined in Provincial. Employees' Social Security Ordinance, 1965 did not cover Educational Institution, especially when it was run on a charitable basis‑‑‑Notification issued by Government under S.1(3) of Provincial Employees' Social Security Ordinance, 1965 and Notice issued to appellant‑school for payment of Social Security Contribution, were illegal and without jurisdiction‑‑­Impugned order holding school liable to pay amount of contribution, was set aside.

K.G. O.T.D. Principal, Christian T.T.C. v. Presiding Officer, V. T. Court and others PLD 1976 Lah.1097 ref.

(c) Words and phrases‑‑‑--

----------"Otherwise" meaning and scope.

The Attorney General v. Seccombe King Bench Division 1911 page 688 and M. Nuryanan Nambior v. State of Kerala AIR 1963 SC 1116 ref.

Syed Asghar Haider for Appellant.

Zahid Farani A.A.‑G. and Syed Muhammad Naqi for Respondents.

Date of hearing: 2nd December, 1999.

2005 P L C 129

[Lahore High Court]

Before Syed Zahid Hussain, J

NATIONAL BANK OF PAKISTAN

versus

PRESIDING OFFICER and others

Writ Petition No.1302 of 2005, decided on 27th January, 2005.

Industrial Relations Ordinance (XCI of 2002)---

----S.46---Constitution of Pakistan (1973), Art.199---Constitutional petition---Grievance application---Non-compliance of order of Labour Court---Employee, who was orally terminated from service filed grievance application against termination order and Labour Court passed injunctive order against the order qua employers and said order remained unchallenged as the same was not assailed by employer before any forum---Said order of Labour Court which had attained finality, having not been complied with by employers, employee filed complaint before the Court against its non-compliance---Order passed by Labour Court, was either to be assailed through proper proceedings by employers at the relevant time or to be complied with, but in no way it could be flouted so long as it was in the field---Employers should realize that they could not with impunity flout orders of Court on their own construction of orders, in so doing they would run the risk of becoming liable to punishment for contempt of Court---Employers, who did not exhibit respect to order passed by Labour Court, could not be granted equitable relief in Constitutional jurisdiction of High Court.

Muhammad Idrish and another v. The East Pakistan Timber Merchants’ Group and another 1968 SCMR 1404 ref.

Ch. Habib-ur-Rehman for petitioner.

Fawad Malik, A.A.-G. on Court’s call.

2005 P L C 138

[Lahore High Court]

Before Syed Sakhi Hussain Bokhari, J

Main MUHAMMAD AKRAM SALEEM

versus

ALLIED BANK LTD

Labour Appeals Nos.69-355 of 2004, 356 & 357 of 2003, decided on 25th June, 2004.

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

----Ss.46 & 48---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.15---Dismissal from service---Grievance petition---Appeal to High Court---Appellants were dismissed from service after charge-sheeting them and holding inquiry against them on charges of fraud and embezzlement---Inquiry proceedings had shown that no prejudice was caused to appellants during inquiry---Bank, after receipt of letter from its client about alleged embezzlement, ordered for audit and then issued charge-sheet and there being serious allegations of embezzlement and fraud against appellants, minor delay, if any in charge-sheet, was immaterial and appellants could not be absolved merely on that technicality---Inquiry held against appellants being not defective and appellants being involved in embezzlement of huge amount, order of dismissal from service passed against them, was proper and there was no justification to set aside the same---Appellant on basis of sheer technicalities could not be exonerated from serious charges of misappropriation and fraud and were disentitled to remain in service of Bank.

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

----S.2(XXX)---Worker/workman---Determination---To determine whether a person was worker or not, what was to be seen was, the nature of his duties---Employees in the present case, were doing clerical job and were not doing supervisory or managerial duties---Held, Employees were workers and Labour Court had jurisdiction to hear their case.

Farooq Zaman Qureshi and Shahid Anwar Bajwa for appellant.

Javed Asghar for Respondent.

Date of hearing: 25th June, 2004.

2005 P L C 147

[Lahore High Court]

Before Syed Jamshed Ali and Umar Atta Bandial, JJ

THE REGIONAL GENERAL MANAGER, ALLIED BANK OF PAKISTAN LTD. and 2 others

versus

MUHAMMAD AAMER RAZA and others

Writ Petition No.11605 of 2003, heard on 13th January 2005.

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

----Ss. 44, 45 & 46---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Dismissal from service---Grievance petition---Territorial Jurisdiction of Labour Court---Determination of---Disciplinary proceedings were initiated and concluded against employee at place ‘J’ where he was posted---Employee thereafter was transferred at place ‘F’ where order of dismissal from service was served on him---Employee filed grievance petition against order of his dismissal from service in Labour Court at place ‘J’ which was objected to by employers on ground of territorial jurisdiction of Labour Court contending that order of dismissal from service having been served upon employee at place ‘F’ where he was transferred, Labour Court at place ‘F’ had jurisdiction in the case---Validity---Charge-sheet was served on employee while he was posted at place ‘J’ and even inquiry was concluded while he was posted there---Order of dismissal from service also was not passed within territorial jurisdiction of Labour Court at place ‘F’ where employee was transferred, but only was conveyed to him when he was posted after transfer at place ‘F’---Since neither impugned order was passed at place ‘F’ nor any proceedings were taken against employee at place ‘F’, Labour Court at place ‘F’ did not have jurisdiction in the matter---Employee had rightly invoked jurisdiction of Labour Court at place ‘J’.

Muhammad Khalil v. The President Bolan Bank Limited 2000 PLC 323; Baz Muhammad v. Chairman, Balochistan Labour Appellate Tribunal, Quetta and others 1998 SCMR 1203; Muhammad Yar Buttar and 4 others v. Board of Governors, Overseas Pakistanis Foundation, Islamabad and another 1999 SCMR 819; Mustehkum Cement Limited through Managing Director v. Abdul Rashid and others 1998 SCMR 644; Trustees of the Port of Karachi v. Muhammad Saleem 1994 SCMR 2213; Sardar Balbir Singh v. Atma Ram Srivastava AIR 1977 Allahabad 211; Messrs Rah-e-Menzil Transport and others v. Muhammad Ameen PLD 1963 (W.P.) Kar. 182; Imdad Ali v. Managing Director, Passco and othes 1997 CLC 686; Syed Muhammad Hussain v. Messrs Pakistan Tobacco Co. Ltd. and another PLD 1980 SC 80; Muhammad Siddiq and another v. Zawar Hussain Abidi and others PLJ 1976 SC 493; Brooke Bond (Pakistan) Ltd. v. Second Sindh Labour Court, Karachi and another 1973 PLC 111; Federal Bank for Cooperatives, Islamabad v. Ehsan Muhammad 2004 SCMR 130; Allied Bank of Pakistan Ltd. v. Punjab Labour Appellate Tribunal and others 1996 PLC (C.S.) 702; Messrs Wah Industries Limited, Wah Cantt, District Rawalpindi v. Punjab Labour Appellate Tribunal Lahore and 2 others 1998 PLC 1 and Lahore Development Authority v,. Abdul Shafique PLD 2000 SC 207 ref.

(b) Words and phrases---

----“Cause of action” and “grievance”, defined and explained.

(c) Interpretation of statutes---

----Special law would override a general law---Such principle, however would only apply when there was an express provision in a special law to the contrary.

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

----S. 45---Procedure and power of Labour Court---Labour Court was deemed to be a Civil Court with all the powers of Civil Court---Filing of lis before a Labour Court was not merely a matter of procedure, it was referable and included power of a Labour Court to take cognizance of a lis brought before it---Nature of jurisdiction of Labour Court was civil and in absence of any specific provision in Industrial Relations Ordinance, 2002, S. 20 of Civil Procedure Code 1908 would apply to determine territorial jurisdiction of Labour Court---Industrial Relations Ordinance, 2002 being a beneficial legislation, had to be interpreted with same object and in case of doubt, provisions of said Ordinance had to be interpreted in favour of the workmen.

(e) Interpretation of statutes---

----Statute should be so interpreted to advance remedy and suppress as mischief.

Munawar Ahmed Javed for Petitioner.

Muhammad Saeed Ahmed for Respondents.

Date of hearing: 13th January, 2005.

2005 P L C 162

[Lahore High Court]

Before Syed Hamid Ali Shah, J

SALAMAT ALI

versus

FAUJI SUGAR MILLS and others

Labour Appeals Nos. 427 to 430 of 2004, decided on 24th January, 2005.

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

----S. 48---Appeal---Maintainability---No bar against appellant to assail an order in appeal as an aggrieved person, despite not being a party to proceedings before the lower forum; only requirement is that he must be aggrieved by such order.

Muhammad Hanif and others v. Lal Khan and others 2000 YLR 469; Mahmood-ur-Rehman v. Atta Ullah Atta and others PLD 1998 SC (AJ&K) 1 and H.M. Saya and Co. v. Wazir Ali Industries Ltd and others PLD 1969 SC 65 ref.

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

----Ss. 46 & 48---Appeal---Factory/Mills was allowed to be closed down by the Labour Court as a result of compromise between the CBA Union and the employer---Individual employees, had the remedy for the redressal of their grievance by invoking the provisions of S. 46, Industrial Relations Ordinance, 2002---Such employees had remained silent and had not agitated the matter within one month as provided under law and appeals before the High Court were also not filed within the period of limitation without giving any representation for such delay---Settlement arrived at between the CBA Union and the employer was binding on the dissenting employees---Record showed that almost all the workers had signed the settlement---Held, settlement so arrived at between the employer and the employees and duly recorded by the Court was not open to any subsequent scrutiny---Appeals were dismissed in circumstances.

1981 Labour Law Journal Vol. II p.429 rel.

Ch. Abdul Karim Kerala Advocate.

2005 P L C 172

[Lahore High Court]

Before Sh. Hakim Ali, J

MUHAMMAD ARIF

versus

THE MANAGER, PLANNING, FORMATION AND CONTROL (PIC) NOVARITS, CIBA GIEGY (PAK) LIMITED and another

F.A.O. No. 68 of 2004 decided on 14th December, 2004.

Industrial Relations Ordinance (XXIII of 1969)---

----Ss. 25-A, 37(3) & 38(3)---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.15---Grievance petition---Dismissal from service---Re-instatement---Entitlement to back-benefits---Employee, who was dismissed from service after charge-sheeting him, was ordered to be re-instated in service by Labour Court with 25% back-benefits---Employee dissatisfied with order of Labour Court had filed appeal contending that he had been jobless after his dismissal and had not joined any service and that he was entitled to be granted full benefits instead of 25% of back-benefits as awarded by Labour Court---If an employee had been held entitled for the back-benefits, subtraction from those full benefits had to be warranted by reasons for such deduction---As no reason was advanced in the judgment for depriving employee of full benefits it could not be sustained---Deduction of 75% of back-benefits had been made without any basis---Appellate Tribunal accepting appeal against judgment of Labour Court modified impugned judgment and awarded full back-benefits to employee.

National Bank of Pakistan v. The Sindh Labour Appellate Tribunal Karachi and others 1991 PLC 213; Muhammad Aslam v. Messrs Hotel Midway House (Pvt.) Ltd., Karachi and others 1996 PLC 4 and Abdul Rashid v. Chairman, Labour Appellate Tribunal, N.-W.F.P. Peshawar and 2 others 1997 PLC 34 ref.

Sh. Muhammad Rafique Goreja for Appellant.

Nemo for Respondents.

2005 P L C 182

[Lahore High Court]

Before Maulvi Anwarul Haq, J

SAKHI BAKHSH and 13 others

versus

PUNJAB LABOUR APPELLATE TRIBUNAL and another

Writ Petition No.6447 of 2001, heard on 25th January, 2005.

Industrial Relations Ordinance (XXIII of 1969)---

----Ss. 25-A & 37(3)---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Grievance petition against termination order---Question of jurisdiction---Appeal to Labour Appellate Tribunal---Grievance petitions filed by petitioners/employees against order of termination of their services, were accepted by Labour Court and against said order of Labour Court, respondent filed appeal before Labour Appellate Tribunal---Respondent raised objection before Labour Appellate Tribunal that in view of insertion of S. 2-A in Service Tribunals Act, 1973 Labour Court had no jurisdiction in the matter---Said objection found favour with Labour Appellate Tribunal who allowed appeals, set aside orders passed by Labour Court with an advice to petitioners to approach Service Tribunal---Validity---Respondent had filed appeals which were pending before Labour Appellate Tribunal at the time when S. 2-A was inserted in Service Tribunals Act, 1973 whereby petitioners were declared to be civil servants---Effect of Service Tribunals Act, 1973 in pending proceedings was dealt with in S. 6 of the said Act whereby appeals filed by respondent stood abated and result was that judgment passed by Labour Court remained intact---Under Proviso to S. 6 of Service Tribunals Act, 1973, it was for the respondent to have filed appeal to competent Service Tribunal within prescribed period---High Court accepting Constitutional petition, set aside impugned order passed by Labour Appellate Tribunal declaring same without lawful authority---Appeals filed by respondents before Labour Appellate Tribunal thus stood abated.

Civil Aviation Authority and 3 others v. Izhar Ahmad and 144 others 2001 SCMR 328 ref.

Ch. M. Ilyas for Petitioners.

Ch. M. Shafique for Respondent No.2.

Date of hearing: 25th January, 2005.

2005 P L C 193

[Lahore High Court]

Before Maulvi Anwarul Haq, J

ZAFAR HUSSAIN

versus

UNITED BANK LIMITED through President and 3 others

F.A.O. No.1-L of 2005, heard on 17th February, 2005.

Industrial Relations Ordinance (XCI of 2002)---

----Ss. 46, 47(3) & 48---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O. 15---Termination of service---Grievance petition---Appeal to High Court---Petitioner/employee serving as driver with the Bank was proceeded against under S. 302, P.P.C. and was convicted and sentenced---On filing appeal against judgment of Trial Court, petitioner was acquitted and released from jail; in the meanwhile services of petitioner were terminated by the Bank---Petitioner filed grievance petition against order of his termination, primarily on compassionate grounds---In reply to grievance petition, it was pleaded by the Bank that it waited till decision of Trial Court when special leave was sanctioned to petitioner---Plea of Bank was that since after conviction of petitioner by Trial Court, post on which petitioner was working, could not be kept vacant, services of petitioner were terminated in terms of Order 15(3) of West Pakistan Industrial and Commercial Employment (Standing Orders), Ordinance 1968---Grievance petition filed by petitioner was dismissed by Labour Court---Bank stated that as post of driver could not be kept vacant indefinitely, it had been decided to terminate services of petitioner simpliciter and that in addition to normal legal dues, petitioner was entitled to one month’s substantive pay in lieu of period of notice---Held, in circumstances, it could not be said that Standing Order 15(3) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 could not be invoked by the Bank---No mala fide of Bank had been proved.

Allied Bank of Pakistan Ltd. through Attorney v. Munir Ahmed 2001 PLC 653 ref.

Muhammad Amin Malik for Appellant.

M.Suleman Bhatti for Respondents.

Date of hearing: 17th February, 2005.

2005 P L C 228

[Lahore High Court]

Before Ch. Ijaz Ahmad, J

SABIR HUSSAIN SHAH

Versus

GOVERNMENT OF THE PUNJAB through Secretary Transport and 3 others

Writ Petition No. 9840 on 2003, decided on 5th March, 2004.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art.199‑‑‑Constitutional petition‑‑‑Dismissal from service‑‑‑Petitioner was dismissed from service, his petition before Labour Court failed but Labour Appellate Tribunal in appeal directed to reinstate the petitioner‑‑­Respondents filed Constitutional petition against the judgment of the Labour Appellate Tribunal‑‑‑Petitioner was retired during the pendency of the Constitutional petition‑‑‑Constitutional petition was accepted two months after the retirement of the petitioner‑‑‑Department refused to give pension benefits to the petitioner on the ground that he was dismissed from service‑‑‑Validity‑‑‑Order of dismissal was upheld by High Court which was not challenged before any higher forum‑‑‑Action of respondents was valid as long as judgment of High Court was in the field‑‑‑Constitutional petition was dismissed in circumstances.

Pir Bakhsh v. Chairman Allotment Committee PLD 1987 SC 145 rel.

Asmat Kamal for Petitioner.

Shuja‑ud‑Din Hashmi for Respondents.

Muhammad Hanif Khatana, Addl. Advocate‑General.

2005 P L C 242

[Lahore High Court]

Before Ijaz Ahmad Chaudhry, J

MUHAMMAD FAROOQ KHAN and others

Versus

PUNJAB LABOUR APPELLATE TRIBUNAL, LAHORE through Chairman and others

Writ Petition No. 783 of 2003, decided on 4th November, 2003.

Constitution of Pakistan (1973)‑‑‑

----Art. 199‑‑‑Industrial Relations Ordinance (XXIII of 1969), Ss.25‑A & 37(3)‑‑‑Constitutional petition‑‑‑Grievance petition‑‑‑Withdrawal of grievance petition with permission to file fresh one‑‑‑Services of petitioners having been dispensed with, they filed grievance petition under S.25‑A of Industrial Relations Ordinance, 1969‑‑‑Said petition was dismissed by Labour Court as withdrawn on some technical grounds with permission to file fresh petition‑‑‑On filing appeal against order of Labour Court by employers, Labour Appellate Tribunal accepted appeal with observations that grievance petition "goes" and dismissed the petition‑‑‑Labour Appellate Tribunal had accepted prayer of petitioners for withdrawal of their petition, but had not accepted their prayer for institution of fresh petition in the same Court‑‑‑Impugned order of Labour Appellate Tribunal was against the law whereby prayer of petitioners for withdrawal of petition with permission to file fresh petition could be accepted or rejected in toto, but could not be dismissed as withdrawn by ignoring the prayer of permission to file fresh petition‑‑‑Impugned order was illegal and High Court in its Constitutional jurisdiction could strike down the same‑‑‑Impugned order was set aside and grievance petition was to be deemed pending and was to decided afresh in accordance with law after affording equal opportunity of hearing to both parties.

PLD 1999 SC 597; 1970 SCMR 141; 1996 SCMR 1606=1996 PLC 653; PLD 2001 SC 355; PLD 1956 (W.P.) Lah. 474; 1984 CLC 2886; PLD 1970 SC 1; PLJ 2001 Lah. 1052; Karim Gul and another v. Shahzad Gul and another 1970 SCMR 141; Moula Bakhsh v. Muhammad Zahid and another PLD 1990 SC 596 and Imtiaz Ahmad v. Ghulam Ali and others PLD 1963 SC 382 ref.

Syed Asif Raza Gilani for Petitioners.

Syed Safdar Imran Bukhari for Respondents.

Date of hearing: 4th November, 2003.

2005 P L C 252

[Lahore High Court]

Before Sh. Hakim Ali, J

Syed SHAHID HUSSAIN

Versus

DIRECTOR‑GENERAL, PLANT PROTECTION and others

R.F.A. No.28 of 2003/BWP, decided on 12th March, 2005.

Industrial Relations Ordinance (XCI of 2002)‑‑‑

‑‑‑‑Ss. 2(xxx), 46 & 48‑‑‑Service Tribunal Act (LXX of 1973), S.2‑A‑‑­Removal from service‑‑‑Grievance petition‑‑‑Maintainability‑‑­"Workman", status of‑‑‑Determination‑‑‑ Appeal to High Court‑‑­Grievance petitions against orders of removal from service, were dismissed by Presiding Officer of Labour Court on the ground that appellants being "Civil servants" in accordance with S.2‑A of Service Tribunals Act, 1973, their grievance petitions were not competent before Labour Court as they had the remedy of filing appeals before Service Tribunal‑‑‑A person coming before a Labour Court, had to show that he fell within the definition of "civil servant" or "workman"‑‑‑Section 2‑A of Service Tribunals Act, 1973 could not be considered or construed to have brought a workman within the definition, ambit or in the compass of "civil servant"‑‑‑Person who was a workman as defined in Clause (xxviii) of Sched. II of Workmen's Compensation Act, 1923 and in S.2(h) of Factories Act, 1934, was to be treated workman and for said person appeal before Service Tribunal would not be competent and he would have to file grievance petition under Industrial Relations Ordinance, 2002‑‑‑Appellants who were cleaners admittedly fell within definition of workman as provided in Clause (xxviii) of Sched. II of Workmen's Compensation Act, 1923 and in S.2(h) of Factories Act, 1934‑‑‑Presiding Officer, Labour Court, in circumstances was empowered to entertain their grievance petitions against orders of their removal from service and to pass appropriate orders‑‑‑High Court accepting appeal, set aside judgments of Labour Court with direction that Labour Court would entertain and proceed with grievance petitions of appellants in accordance with law.

Syed Aftab Ahmad and others v. K.E.S.C. and others 1999 SCMR 197; Sharif Hussain v. Punjab Labour Appellate Tribunal Lahore and 4 others 2003 PLC (C.S.) 1335; Chief Mechanical Engineer, Locomotive Factory, Risalpur and 2 others v. Chairman, Labour Appellate Tribunal and another 2003 PLC 118; Zaheer Ullah and 13 others v. Chairman, WAPDA, Lahore and others 2000 SCMR 826 ref.

Shabbir Ahmad Bhutta for Appellant.

Ch. Parmoon Bashir for Respondents.

Date of hearing: 8th March, 2005.

2005 P L C 265

[Lahore High Court]

Before Syed Sakhi Hussain Bokhari, J

MUHAMMAD ASHRAF VIRK

Versus

GENERAL MANAGER (ADMINISTRATION) MILLAT TRACTORS LIMITED.

Labour Appeal No.265 of 2003, heard on 10th March, 2005.

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

----S. 25-A---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.15(2)(ii),(3)(F)---Grievance petition---Dismissal from service on allegations of remaining absent from duty and attending duty late---Employee was dismissed from service after charge sheeting him and conducting inquiry against him on charge of remaining absent from duty and attending duty late---Employee served employer for more than twelve and half years, but during that period no such complaint was made against him---Punishment of dismissal from service awarded to employee, in circumstances was harsh and was not proper---Withholding of increment for one year was proper and it would meet the ends of justice---Accepting appeal, grievance petition brought by employee was accepted and he was reinstated into service without back-benefits because employee had himself relinquished his back-benefits.

Syed Afzal Haider for Appellant.

Abdul Rashid Randhawa for Respondent.

Date of hearing: 10th March, 2005.

2005 P L C 340

[Lahore High Court]

Before Maulvi Anwarul Haq, J

GENERAL MANAGER, MUSLIM COMMERCIAL BANK LTD, and another

Versus

NAZAR HUSSAIN

F.A.O. No.7 of 2004, heard on 29th March, 2005.

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

-------Ss.2(xxviii) & 25-A---West Pakistan Industrial and Commercial

Employment (Standing Orders) Ordinance (VI of 1968), S.2(1) and S.O. 15(4)(6)---Payment of Wages Act (IV of 1936), S.15---Voluntary Retirement Scheme---Respondent on completing 25 years service opted for retirement, but he was paid benefits of Category-II employees instead of Category-I employees---Labour Court accepted grievance petition directing employer to pay respondent benefits under Category-I---Plea of employer was that respondent having resigned would not fall within definition of "worker" and "workman"; that no industrial dispute was in existence, which could he taken to Labour Court; and that dispute regarding such benefits could be taken to Authority under Payment of Wages Act, 1936---Validity---Employees under such scheme were divided into two categories: those having completed 25 years service were placed in Category-I, while those having completed 10 years service were placed in Category-II---As per formula devised by employer for computing length of service or un-expired period of service, broken period exceeding six months would be taken as full one year---Continuous service of respondent was 24 years and 9 months, which per such formula was to be treated as 25 years entitling him to benefits of Category-I employees---Under S.O. 15(4)(6) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, where services of a workman stood terminated for any reason other than misconduct, he would be paid all benefit as per terms of his employment---No allegation of misconduct was, levelled against respondent, who was a workman within the meaning of Ordinance, 1968---Respondent after his retirement for not having been paid benefits of Category-I employees had grievance in terms of Ordnance, 1968, which could be taken to Labour Court under S.25-A of Industrial Relations Ordinance, 1969---High Court dismissed appeal in circumstances.

State Bank of Pakistan v. Khyber Zaman and others 2004 PLC (CS) 1213; Muhammad Ayub Khan and 3 others v. Messrs Muhammad Farooq "Textile Mills Ltd. and 2 others 2004 PLC 250; Trustees of the Port of Karachi v. Muhammad Salem 1994 SCMR 2213; 1994 PLC 193; Shahzar Khan v. Sind Labour Court No.4, Karachi and 2 others 1977 SCMR 103 and Rah Nawaz v. Sindh Labour Appellate Tribunal and 2 others PLD 1987 Kar. 175 ref

Pak Arab Refinery Limited v. Muhammad Rashid 1999 SCMR 373 and Syed Matloob Hassan v. Brooke Bond Pakistan Limited, 1992 SCMR 227 rel

Farooq Zaman Qureshi for Appellants.

Muhammad Anwar Awan for Respondent.

Date of hearing: 29th March, 2005.

2005 P L C 351

[Lahore High Court]

Before Maulvi Anwarul Haq, J

MANAGER, PLANNING, FORMATION AND CONTROL, NOVARTIS, (PAKISTAN) LTD. and another

Versus

MUHAMMAD ARIF

First Appeal Order Nos.67 and 68 of 2004, heard on 2nd May, 2004.

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

----S. 25A---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O. 15(4)---Dismissal from service---Embezzlement, charge---Grievance petition---Plea of employee was that charge-sheet served on 5-11-1996 in relation to misconduct occurring on 20-7-1996 and 22-7-1996 was time-barred---Labour Court after recording evidence of parties accepted grievance petition of employee---Validity---Mandatory under S.O. 15(4) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 to inform workman within one month from the date of misconduct or of the date on which alleged misconduct came into employer's notice---Report dated 20-7-1996 recording embezzlement was received by employer at Karachi Headquarter from its Bahawalpur office---Report prepared after associating employee in preliminary enquiry was filed on 9-10-1996 disclosing commission of embezzlement by him and other accused---Nothing on record to attribute any mala fide to employer in matter of deeming proper to satisfy itself as to correctness of facts reported to Headquarter on 20-7-1996---Guilt of employee stood proved from evidence on record---Such charge-sheet was held, not barred by time within meaning of S.O 15(4) of Ordinance, 1968.

Abdul Rashid v. Chairman Labour Appellate Tribunal N.-W.F.P., Peshawar and 2 others 1997 PLC 34 ref

Muhammad Yousaf Khan v. Habib Bank Limited and others 2004 SCMR 149 rel.

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

----S. 25-A---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O. 15(4)---Dismissal from service---Charge of embezzlement against Accounts Assistant dealing with finances of employer---Employee in his deposition admitted to have custody of cheque book and encashed same from Bank but under coercion of Regional Manager---Employee admitted his signatures on several documents, but never made complaint to higher officer about obtaining his signatures on such documents forcibly by Regional Manager and West House Incharge---Nothing on record to show that employee was coerced into doing such illegal rather criminal acts---Grievance petition of employee was dismissed in circumstances.

Mian Muhammad Saleem for Appellants.

Sh. Muhammad Rafiq Goreja for Respondent.

Date of hearing: 2nd May, 2005.

2005 P L C 379

[Lahore High Court]

Before Ch. Ijaz Ahmad, J

CHIEF POSTMASTER (DELIVERY), LAHROE G.P.O. and 5 others

Versus

Syed AKHTAR NAQI NAQVI, MEMBER NATIONAL INDUSTRIAL RELATIONS COMMISSION, LAHORE and 8 others

Writ Petition No. 84 of 2005, decided on 27th January, 2005.

Industrial Relations Ordinance (XCI of 2002)---

----Ss. 49(4)(e) & 63(1)(a)(b)(c)---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Unfair labour practice by employers---Earlier, employees filed petition under S. 49(4)(e) of Industrial Relations Ordinance, 2002 along with application for ad interim relief before Member, National Industrial Relations Commission who granted restraining order in their favour---Employers filed Constitutional petition against order of Commission and employees having failed to appear despite various notices were issued to them, High Court suspended operation of order of Commission and main Constitutional petition was adjourned---Subsequently employees filed another petition under Ss. 49(4)(e) and 63(1)(a)(b)(c) of Industrial Relations Ordinance, 2002 before a different Member of National Industrial Commission, wherein they did not mention a single word qua filing of Constitutional petition by employers and order passed in said Constitutional petition---Employees secured restraining order from other Member of National Industrial Relations Commission by concealing material facts---Such fact alone was sufficient to show that Employees did not approach Member of Commission with clean hands---Constitutional Petition by employers was accepted and impugned order was set aside.

Islamic Republic of Pakistan and others v. Muhammad Zaman Khan and others 1997 SCMR 1508 ref.

Muhammad Arif Raja for petitioner.

2005 P L C 390

[Lahore High Court]

Before: Syed Hamid Ali Shah, J

Messrs GRAYS OF CAMBRIDGE (PAKISTAN) LTD. through Chief Executive

Versus

BOARD OF EMPLOYEES OLD-AGE BENEFITS and 2 others

Writ Petition No.22902 of 1999, decided on 14th July, 2005.

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

----Ss.2(b)(bb), 17, 33, 35 & 47---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Payment of contribution towards old-age benefit---Appeal to Board of Employees Old-Age Benefits Institution---Adjudication Authority found petitioner liable to pay amount along with statutory increase---Board in appeal filed before it maintained order of Adjudicating Authority to the extent of actual amount to be paid while statutory increase was waived---Validity---Appellate Authority/ Board while passing impugned order, had observed that since employees under contract, converted raw material supplied by establishment into finished goods at agreed rate they, in circumstances, were actually working in connection with the affairs of industry and come within the ambit of S.2(bb) of Employees' Old-age Benefits Act, 1976---Arguments of petitioner that definition of employee as contemplated in S.2(bb) of Employees' Old-age Benefits Act, 1976 was not relevant, had no force---Any person in service of industry or establishment whether employed directly or indirectly would fall within definition of "employee"---Demand raised by the department pertained to employees who did not fall within the category of person who had been excluded under S.47(f) of Employees' Old-age Benefits Act, 1976---Outside employees of establishment, in circumstances, were employees as envisaged by S.2(bb) of Employees' Old-age Benefits Act, 1976---Definition of "employee" as interpreted by establishment was not well-founded---Establishment was not absolved from liability to pay contribution under Employees' Old-age Benefits Act, 1976---Impugned orders not suffering from any legal infirmity, did not call for interference in constitutional jurisdiction of High Court.

Abdul Aziz Noor Muhammad and others v. Employees Old age Benefits Institutions 1983 PLC 198; Muham read Umer and 25 others v. M.M. Isphani Ltd. 1980 PLC 888; State of Kerala v. V.M. Patel 1961 PLC 432, Employees Old-age Benefits Institution v. National Industrial Relations Commission 1988 SCMR 765; Lahore Race Club v. Deputy Director EOBI 1998 SCMR 1571 and Messrs Cawasjee and Sons v. Board of Trustees EOBI 2001 SCMR 949 ref.

Rana Nasrullah Khan for petitioner.

Muhammad Anwar Bhinder and Waseem Anwar Bhinder for Respondents.

Date of hearing: 10th May, 2005.

2005 P L C 396

[Lahore High Court]

Before Maulvi Anwarul Haq, J

MULTAN DEVELOPMENT AUTHORITY, MULTAN through Director-General and others

Versus

MUHAMMAD LATIF and another

F.A.Os. Nos.202 to 228 and C.M. No.1-C 2004, decided on 1st December, 2004.

Industrial Relations Ordinance (XCI of 2002)---

----Ss. 2(xxx), 46, 47(3) & 48---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.1(b) & 12---Termination of service---Status of permanent workman--Determination of---Services of respondents having been terminated by Authority, they challenged their termination in grievance petition---Authority took the plea that respondents being work charge employees, were not workmen and as such did not have any secured or guaranteed right which could be enforced through grievance petitions---Grievance petitions filed by respondents were allowed and they were ordered to be reinstated in service---Said order of Labour Court had been challenged in appeal by the Authority---Validity---Respondents were employed as Baildars, Malics, Mates, Carpenters, Masons/Mistries, Electricians and Chaukidars in Buildings, Parks and Roads Department of the Authority---Said Roads, Buildings and Parks were being regularly maintained ever since the employment of respondents with the Authority---Nothing was wrong with the findings recorded by Labour Court to the effect that respondents fell within the category of permanent workmen---Respondents, in circumstances were to be treated as regular employees---Appellant Authority was directed to complete regularization process within reasonable period.

Muhammad Amin Malik, Advocate.

2005 P L C 405

[Lahore High Court]

Before: Sh. Hakim Ali and Muhammad Khalid Alvi, JJ

MUHAMMAD ASIF

Versus

TEHSIL MUNICIPAL ADMINISTRATION, D.G. KHAN through Tehsil Nazim and others

I.C.A. No. 145 of 2004 in Writ Petition No.1956 of 2003, decided on 5th October, 2004.

Civil service---

----Non-payment of salary---Appellant was serving as, Naib Qasid when his services were terminated by the Authorities---Appeal filed by appellant against order of Administrator, was allowed, but since post of Naib Qasid was not available, Chairman with the consent of appellant appointed him as Baildar and appellant joined duty and worked for about 10 months on said post, but his salary for said period was not paid on the pretext that appointment of appellant was illegal as per the audit report---No order by competent Authority was available with respect to termination of service of appellant after his reinstatement as Baildar---Appellant, in circumstances would be deemed to be continuously in service from date of his reinstatement as Baildar and lie would be paid his due salary from the date of his reinstatement for the period he actually worked---Period during which appellant was not assigned any duty would be deemed to be on leave without pay---Authorities were directed to allow appellant to resume duty within specified period.

Syed Asif Raza Gillani for Appellant.

Jahangir Arshad, A.A-G. along with Muhammad Safdar T.M.O., D. G. Khan for Respondents.

2005 P L C 412

[Lahore High Court]

Before: Muhammad Nawaz Bhatti, J

KASHMIR EDIBLE OILS LIMITED through Manager Administration

Versus

NADEEM BARI and another

Writ Petition No. 4917 of 2004, heard on 25th May, 2005.

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

----Ss. 15, 17, 18 & 22---Civil Procedure Code (V of 1908), S. 151---Constitution of Pakistan (1973), Art.199---Constitutional petition---Maintainability---Interlocutory order---Payment of wages---Powers of Authority as Civil Court under the provisions of Civil Procedure Code 1908---Worker claimed compensation by filing petition under 5.15(2) of Payment of Wages Act, 1936---Employer filed application under S.151 C.P.C. for refection of the petition summarily but its application was dismissed by the Authority---Validity---Employer assailed interlocutory order in Constitutional jurisdiction of High Court---Such order could not be assailed as it could be challenged in appeal---Authority was vested with the powers of a Civil Court under Civil Procedure Code, 1908, for the limited purpose of taking evidence, to enforce attendance of witnesses, compelling production of documents and S.195 Cr.P.C. and of Chapter XXXV of Criminal Procedure Code, 1898---Jurisdiction of Civil Court to entertain any suit for recovery of wages or against any deduction from wages of such an employee was barred by the provisions of S.22 of Payment of Wages Act, 1936---High Court declined to interfere in the order passed by the Authority below---Petition was dismissed in circumstance.

Woollen and Textile Mills v. Government of the Punjab 2004 PLC 170 rel.

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

----Art. 199---Constitutional jurisdiction of High Court---Scope---Interlocutory orders---Interlocutory orders cannot be challenged in Constitutional petition---Exercise of power under Art.199 of the Constitution against interlocutory order would amount to defeating the purpose of law.

Mian Ghulam Dastgir Bari v. Roy Sala ud Din and others PLD 1987 Lah. 39 rel.

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

----Preamble---Object of Payment of Wages Act, 1936, is to regulate payment of wages of certain classes of persons employed in industrial or commercial establishments or by railway administration.

Javed Iqbal Bhatti for Petitioner.

Muhammad Siddique Attique for Respondent No. 1.

Date of hearing: 25th May, 2005.

2005 P L C 438

[Lahore High Court]

Before Mian Saqib Nisar, J

ABDUL QADIR KHAN and 12 others

Versus

MANAGING DIRECTOR, MILLAT TRACTORS PRIVATE LIMITED and another

Labour Appeals Nos.159 to 185 and 237 of 2004, decided on 20th June, 2005.

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

----Ss. 2(x)(b) & 46---Service of grievance notice-'Employer', definition and scope of---Service of grievance notice by employee on employer, was a mandatory requirement of law and. non-compliance thereof would render a grievance petition incompetent--Managing Director of a Company was head of institution, who being Chief Executive of a juristic person, was overall incharge of management and administration of Company, whereas Factory Manager was officer subordinate to him---If under the law; purpose of grievance notice was that a workman, instead of rushing to the Court straightway, should, in the first instance, make an attempt to approach the employer for redressal of his grievance, Chief Executive was the 'right person to whom grievance notice should be sent---Chief Executive, on account of his superior position, could either himself or through Board of Directors, take a conclusive decision, particularly about the policy matter of making the daily wagers as permanent employees or not or he could conveniently refer or send matter to Factory Manager, an officer subordinate to him for an appropriate action---In view of broad spectrum of definition of "Employer" the purpose of law behind the issuance of grievance notice, would be served if same was issued to Chief Executive,' as it could be held to have been issued to an authorized person.

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

----S.O. 1(b)---Industrial Relations Ordinance (XCI of 2002), Ss. 46 & 48---`Permanent workman', determination of---Grievance, petition---Appeal to High Court---If a workman, who was working against a permanent post and performing duties of a permanent nature and had successfully completed his probationary period, but did not promptly press for his permanent employment, could be under the fear to avoid a situation of earning a displeasure of his employer; if employer was not ready and willing to confirm him immediately, rather continued to serve silently with an object to inspire more confidence and trust of employer; would not lose his right to be made permanent, only for the reason that he had been somewhat indolent; because principles of equity regarding delay in enforcing statutory rights, the rules of waiver and estopple etc. would not come in his way, unless it was a case of some express or overt act on part of a workman; which would bring the matter within purview of said doctrine and appropriate defence was set out by employer in that behalf in the written statement and was also able to prove same---Workman, who was either a probationer or a temporary employee and was otherwise qualified for permanent recruitment, undoubtedly, would have a right at any point of time, but during continuity of his service, to ask the employer to make him permanent and if the needful was not done, legal recourse could be adopted without there being any danger of limitations---In the present case, except own statements of appellants or in one or two cases, the statements of Union Leaders, no independent or probable evidence existed to prove that appellants were working on permanent posts and their jobs were permanent in nature---Appellants who had failed to prove their employment on permanent basis against permanent post, were not entitled to claim that respondent should be directed to treat them as permanent workmen and be granted all benefits available to permanent workmen employed in establishment.

National Bank of Pakistan and another v. Punjab Labour Appellate Tribunal and 2 others 1993 SCMR 105; Syed Nasir Abbas Naqvi. v. Punjab Lahore Appellant Tribunal 2003 PLC 443; United Bank Limited v. Sindh Lahore Appellate Tribunal Karachi and 42 others 1997 PLC 446; M/s. Fauji Sugar Mills, Khoski, District Badin v. Ali Nawaz and 2 others 1997 PLC 451; The Resident Manager FFC v. Punjab Labour Appellant Tribunal, Lahore and 2 others 1991 PLC 908; Forbes Campbell and Co. Ltd and 3 others v. Bs. Habib ur Rehman and 2 others 1982 PLC 20 and Ikram Bari and 524 others v. National Bank of Pakistan through President and others 2005 SCMR 100; Government of Punjab and others v. Punjab Appellate Tribunal, Lahore and others 2002 SCMR 878; Neimat Ali Goraya and 7 others v. Jaffar Abbas, Inspector/Sergeant Traffic 1996 SCMR 826; Muhammad Aqil v. Sind Labour Appellate Tribunal and another PLD 1978 Kar. 649 and Holiday Inn, Crown Plaza Main Shahra-e-Faisal Karachi v. Aftab Ahmed Siddiqui and another 2000 PLC 325 ref.

Farooq Zaman Qureshi and M.A. Hamid Awan for Appellants.

Muhammad Saleem Sehgal and Muhammad Naeem Khan for Respondents.

Date of hearing: 11th May, 2005.

2005 P L C 88

[National Industrial Relations Commission]

Before Ghulam Nauman Shaikh, Member

SHAHMURAD SUGAR MILLS MEHNATKASH UNION (CBA), through General Secretary

Versus

SHAHMURAD SUGAR MILLS LIMITED PECHS, KARACHI through Managing Director and another

Case No. 4A(280)/2000‑K and 24(284)/2000‑K, decided on 18th December, 2000).

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

‑‑‑‑Regln. 32(2)(c)—Application for issuance of prohibitory order‑‑­Collective Bargaining Agent in the Mills had filed application under Regln. 32(2)(c) of National industrial Relations Commission (Procedure and Functions) Regulations, 1973 wherein prohibitory order was soughs to restrain the employers from terminating and dismissing office‑bearers of applicant union including other workers employed by the employers‑‑­Employers had a right to carry out retrenchment bona fidely to manage and reorganize its establishment to run profitably and said right could not be curbed by National Industrial Relations Commission by issuing such prohibitory order.

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

‑‑‑‑Ss.15 & 22‑A(8)(g)‑‑‑West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.0.15(3)(4)‑‑­National Industrial Relations Commission (Procedure and Functions) Regulations, 197, Regln. 32(2)(6)‑‑‑Initiation of disciplinary proceedings‑‑‑Unfair labour practice by employers‑‑‑Prohibitory order‑‑­Application for‑‑‑Initiation of disciplinary proceedings against worker 'was a routine matter of an Industrial and Commercial Establishment and it could not be termed as unfair labour practice under S..15 of Industrial Relations Ordinance, 1969 until it was found tainted with mala fides due to trade union activities of worker‑‑‑Initiation of disciplinary proceedings against worker who acted in subversion of discipline, was right of employer which could not be curbed or taken away merely because worker happened to be, office‑bearer of Union‑‑‑Mere service of charge ­sheet or show‑cause notice on ground of misconduct could not be treated as an act of unfair labour practice of employer as taking part in trade union activities would not give licence to any worker, even if he was office‑bearer of union, to commit an act of misconduct‑‑‑Charge‑sheet issued by employers prima facie did not appear to be mala fide or to have been issued as result of trade union activities of office bearers/members of Collective Bargaining Agent, but were issued on account of misconduct committed by them‑‑‑To confirm ad interim prohibitory order so as to curb right of employers to proceed further on said charge‑sheet was not .appropriate in circumstances‑‑‑National Industrial Relations Commission could not pass any order .to restrain employers generally from taking action against any of the workers, members or office‑bearers of Collective Bargaining Agent, whether it was to be for an act of misconduct on the part of members or office­ bearers of Collective Bargaining Agent‑‑‑Collective Bargaining Agent having not been able to make out a prima facie case for grant of prohibitory order, application filed under Regln.No.32(2)(c) of National Industrial Relations Commission (Procedure and Functions) Regulations, 1973 was dismissed and ad interim prohibitory order passed earlier was recalled.

Iftikhar Ahmed and others v. President, National Bank of Pakistan and others PLD 1988 SC 53; Muhammad Ali Azam v. Pfizer Laboratories Ltd., Karachi 1990 PLC 662 and National Motors Ltd. v. Muhammad Hanif PLC 1987 (Part‑II) 547 ref.

Rana Mehmood Ali Khan for Applicant:

Faisal Mehmood Ghani for Respondents.

2005 P L C 105

[National Industrial Relations Commission]

Before Justice (Retd.) Tanvir Ahmed Khan, Chairman, Saeed Farooq Kham, Member and Nasar Hayat, Secretary Labour, Government of Sindh/Member

PAKISTAN STEEL CORPORATION LIMITED through Incharge Law Department, Karachi

Versus

SHAMSHAD AHMAD QURESHI

Appeal No.12(32) of 2001‑K decided on 1st December, 2004.

Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑Ss.22‑A(8)(g) & 22‑D‑‑‑National Industrial Relations Commission (Procedure and Functions), Regulations, 1973, Regl.32(2)‑‑‑Unfair labour practice by employers‑‑‑Grant of status quo, non‑compliance of‑‑­Back‑benefits, entitlement to‑‑‑Appeal against judgment of Single Bench of National Industrial Relations Commission‑‑‑Respondent/employee was Chairman of Workers Union in the Establishment‑‑‑Workers Union being Collective Bargaining Agent served a charter of demands upon the establishment and referendum proceedings were also underway‑‑­Establishment as a retaliatory measure victimized office‑bearers of Union including employee‑‑‑On filing petition against unfair labour practice of establishment under S.22‑A(8)(g) of Industrial Relations Ordinance, 1969 along with an application under Regl. 32(2) of National Industrial Relations Commission (Procedure & Functions) Regulations, 1973, by employee praying for a direction to the effect that Establishment be restrained from passing any adverse order‑‑‑Single Member of National Industrial Relations Commission, ordered for maintenance of status quo‑‑‑During pendency of proceedings, despite status quo order, employee having not been allowed to enter the premises, he filed application against said attitude of Establishment‑‑‑Single Member accepting such petition under S.22‑A(8)(g) of Industrial Relations Ordinance, 1969 allowed employee to resume his duty with full back­ benefits since date of status quo as employee was not allowed to resume duty‑‑‑Alleged transfer order of employee was also set aside‑‑Validity‑‑­Employee had established beyond doubt that Establishment had blatantly refused to implement order of status quo issued in his favour and that he was not allowed to enter precinct of Establishment .despite status quo‑­Plea of Establishment that status quo order was received in office after passing of relieving order/transfer order of employee, did not get support from evidence brought on record‑‑Employee successfully brought on record that alleged transfer order was not in his knowledge when status quo order was obtained by him‑‑‑Transfer order was rightly set aside and employee was rightly granted back‑benefits for the period he was not allowed to enter the premises of Establishment‑‑‑In absence of any illegality, judgment passed by Single Member, could not be interfered with.

Zahid Hamid for Appellant.

Ch. Muhammad Ashraf for Respondent.

2005 P L C 114

[National Industrial Relations Commission]

Before Tanvir Ahmed Khan Chairman, Muhammad Shabbir Jamal and Syed Akhtar Naqi Naqvi Members, MUHAMMAD BASHIR SULEHRIA

Versus

M.C.L. through Administrator Now District City Government Lahore and others

Cases Nos. 12(86) and 24(238) of 2002‑L decided on 15th September, 2004.

Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑Ss.22‑A(8)(g), 22‑D & 51‑‑‑National Industrial Relations Commission. (Procedure & Functions) Regulations, 1973 Regl. 32‑‑‑Pre‑mature retirement‑‑‑Stay order‑‑‑Withdrawal of, stay order‑‑‑Deduction of benefits gained by appellant‑‑Notice of pre‑mature retirement issued to appellant/employee was challenged by appellant‑‑‑Stay order granted to appellant by Single Member of National Industrial Relations Commission, was withdrawn and petition filed by appellant was also dismissed‑‑‑Subsequent to dismissal of petition, direction was issued to deduct benefits gained by appellant after issuance of notice of retirement‑‑‑Validity‑‑‑Appellant secured certain service benefits after grant of stay order from Single Member of National Industrial Relations Commission‑‑‑Said benefits which appellant got during currency of restraint order passed by the Commission, could not be deducted from his pension‑‑‑Benefits which appellant secured by rendering his service till dismissal of his petition, could not be deducted.

The Engineer‑in‑Chief Branch through Ministry of Defence Rawalpindi and another v. Jalaluddin 1992 PLC 207 ref.

H.R. Haider for appellant.

2005 P L C 119

[National Industrial, Relations Commission]

Before Justice (Retd.) Tanver Ahmed Khan, Chairman

LT. COL. MIAN `MAHMOOD YOUSUF, MANAGER (ADMN.) OF OIL AND GAS DEVELOPMENT COMPANY.LTD.

Versus

ALL PAKISTAN OGDCL MAZDOOR ITTEHAD UNION (CBA)

Case No.13(34) of 2002 and Petition No. M(A)/1373 of 2003, decided on 17th July, 2004.

Industrial Relations Ordinance (XCI of 2002)‑‑‑

‑‑‑‑Ss.1(4)(e) & 49‑‑‑Deletion of names of dispensers from the list of office‑bearers of Union‑‑‑Petition filed by Manager of petitioner company for deletion of names of dispensers from the list of office­ bearers of respondent Union (Collective Bargaining Agent) in view of S.1(4)(e) of Industrial Relations Ordinance, 2002, was resisted by the Union‑‑‑Contention of Union was that petitioner Company was not an establishment or institution solely maintained for treatment or care of sick, infirm etc. as mentioned in cl.(e) of S.1(4) of Industrial Relations Ordinance, 2002‑‑‑Union stated that said exclusion clause would only be attracted to the hospitals which were run on non‑commercial basis‑‑­Dispensaries and hospitals maintained by petitioner were not run on commercial basis, Were to cater not only the emergent situation, but also to look after the treatment of employees‑‑‑If the employees of dispensaries were allowed to participate in trade union activities in an establishment, it would certainly have adverse effect in maintenance of such like activities on a smooth scale‑‑‑Legislature had also used the word "by the Establishment" which denoted that if an establishment had an additional venture for the betterment of its employees and maintained dispensaries so as to take care of health of employees, exclusion clause would be attracted‑‑‑Contention that exclusion clause would only be applicable to hospitals and not to the institution or establishment where employer in order to provide better medical facilities to the employees set up dispensaries of present kind, was devoid of any force‑‑‑Provisions of Industrial Relations Ordinance, 2002 would not be applicable to paramedical staff working in dispensaries and hospitals of petitioner.

The Project Manager, Pakistan Mineral Development Corporation and Goal Keel Colieries, District Mianwali v. Punjab Labour Appellate Tribunal, Lahore and two others 1986 PLC 521 and Mrs. Naseem Sadique v. Sindh Labour Appellate Tribunal and others 1984 PLC 1679 ref.

S.R. Rais Ahmad Jafri for Establishment. of OGDCL.

Malik Mehrban, Labour Representative for Union.

2005 P L C 131

[National Industrial Relation Commission]

Before Justice (Retd.) Tanveer Ahmed Khan, Chairman/RITU

CLARIFICATION REGARDING NUMBER OF OFFICE-BEARERS OF INDUSTRY-WISE TRADE UNIONS IN WAPDA: in re

Dy. No. 2022 of 2002, decided on 3rd January, 2005.

(a) National Industrial Relations Commission (Procedure and Functions) Regulations, 1973---

----Regln. 13---Industrial Relations Ordinance (XCI of 2002), Ss. 2(g)(xi), 12 & 80---Clarification regarding number of office-bearers of an industry-wise trade union---Proviso to Regln. 13 of National Industrial Relations Commission (Procedure and Functions) Regulations, 1973, provided that there would be only one member each in the executive from amongst employees of the different companies and that would certainly streamline the functioning of the establishment on a proper foundation---Section 80(a) of Industrial Relations Ordinance, 2002 though had accorded protection to constitution of Union, definition of Establishment in repealed Industrial Relations Ordinance, 1969, had been materially changed through newly promulgated Industrial Relations Ordinance, 2002 and in present scenario companies which were established in themselves, would be having representation of one member each in the Union in accordance with Proviso to S. 13 of National Industrial Relations Commission (Procedure and Functions), 1973---Both the Unions in WAPDA, by no stretch of imagination could maintain their constitution violating provisions of Industrial Relations Ordinance, 2002 for there would be office-bearers of executives in accordance with Regln. 13 of National Industrial Relations (Procedure and Functions) Regulation, 1973 and each such company would be having only one member representing its establishment in the Union.

(b) Administration of justice---

----Technicalities should not come in the way of dispensation of justice.

United Bank Limited v. Pakistan Industrial Credit and Investment Corporation Ltd and another PLD 2002 SC 1100; Manager, Jammu and Kashmir, State Property in Pakistan v. Khuda Yar and another PLD 1975 SC 678 and Imtiaz Ahmed v. Ghulam Ali PLD 1963 SC 382 ref.

Ch. Shabbir Ahmed, Director Labour and Welfare WAPDA for the applicant.

Asmat Kamal Khan for Pakistan WAPDA Employees Piagham Union.

Mukhtar Ahmed Assistant General Secretary for Pakistan WAPDA Hydro Electric Eentral Labour Union.

2005 P L C 159

[National Industrial Relations Commission]

Before Ghulam Nauman Shaikh, Member

M/s. EMPLOYEES OLD-AGE BENEFITS INSTITUTION

versus

Syed MUBASHIR RAZI JAFRI and others

Case No.7 (13)-K of 2003, decided on 2nd November, 2004.

Industrial Relations Ordinance (XCI of 2002)---

----Ss. 51(a), 49(4)(e) & 1(4)(F)---National Industrial Relations Commission (Procedure and Functions) Regulations, 1973, Regln. 32(2)(c)---Disobedience of interim prohibitory order---Old-age Benefits Institution had alleged that respondent had committed contempt of Court by disobeying interim prohibitory order passed by National Industrial Relations Commission on application filed under Regln. 32(2)(c) of National Industrial Relations Commission (Procedure and Functions) Regulations, 1973, which was filed along with petition under S. 49(4)(e) of Industrial Relations Ordinance, 2002---Validity---No documentary evidence had been filed by applicant to substantiate allegation made in application that persons named in the application as contemners had disobeyed interim prohibitory order passed by National Industrial Relations Commission---Even otherwise by virtue of S. 1(4)(F) of Industrial Relations Ordinance, 2002, provisions of Industrial Relations Ordinance, 2002 did not apply to applicant/Employees Old Age Benefit Institution---Main petition filed by complainant could not have been entertained by National Industrial Relations Commissions and interim prohibitory order passed by the Commission being without jurisdiction, no contempt application could lie alleging disobedience of said order which was deemed to be void---Contempt application was dismissed, in circumstances.

PLD 1966 SC 802; PLD 1992 Pesh. 130 and Irfan Hussain v. Messrs United Lines Agency 1987 PLC 262 ref.

Shakeel Ahmed, Junior and Syed Zaki Muhammad for Applicant.

Syed Haider Imam Rizvi for Respondents Nos.2 to 5.

Syed Mubashir Razi Jafri Respondent in person.

Date of hearing: 2nd October, 2004.

2005 P L C 184

[National Industrial Relations Commission]

Before Justice (Retd.) Tanvir Ahmad Khan Chairman, Raja Abdullah Khan and M. Shabbir Jamal, Members

MUHAMMAD RAMZAN

versus

CHIEF EXECUTIVE and 2 others

Case No.12(17) of 2004-L, decided on 30th September, 2004.

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

----Regln. 32(2)---Industrial Relations Ordinance (XCI of 2002), Ss.45(2), 49(4)(e), 52 & 63---Civil Procedure Code (V of 1908), O.XXXIX---Interim relief, denial of---Appeal---Appellant who was appointed as Helper, was finally promoted as Junior Engineer BPS-17---Appellant had actively participated in union activities and he was not only Provincial Secretary General of his union, but was also Central Senior Vice-President---After promotion of appellant as Junior Engineer BPS-17 appellant having been restrained to participate in activities of union on the ground that he was no more a workman, he filed petition under S.49(4)(e) of Industrial Relations Ordinance, 2002 taking exception to the order of employers whereby he was restrained to participate in activities of union---Appellant had also filed application under Regln.32(2) of National Industrial Relations Commission (Procedure and Functions) Regulations, 1973 for grant of interim relief which application was dismissed by Member National Industrial Relations Commission on the ground that appellant had failed to substantiate three prerequisite/pre-conditions for grant of said relief, which were, prima facie; case of irreparable loss and balance of convenience as enunciated under Order XXXIX, C.P.C.---Plea of appellant was that said three pre-conditions were not attracted as Order XXXIX, C.P.C. was not applicable in the case---Appellant had further contended that his promotion to BPS-17 as Junior Engineer had not materially affected his duties and that nature of work performed by him would not bring his case within ambit of employer as his duties were neither managerial nor administrative in nature and in circumstances he could not have been deprived of status of worker---Validity---Contention that provisions of Order XXXIX, C.P.C. were not attracted to National Industrial Relations Commission while deciding application for interim relief, was repelled in view of the fact that provisions of S.45(2) Industrial Relations Ordinance, 2002 had demonstrated that the Commission had been invested with all powers which a Civil Court enjoyed under C.P.C.---Even otherwise appellant had himself claimed interim relief which by no stretch of imagination could be granted in routine simply at his asking, but certain principles had to be kept in mind to grant or refuse relief claimed and said principles had been provided in Order XXXIX, C.P.C. which could be followed---Appellant who was promoted to Junior Engineer BPS-17 had got authority to take disciplinary action against his juniors and had power of hire and fire---Appellant in circumstances was not workman any more after his promotion as Junior Engineer BPS-17.

Messrs Merck Sharp and Dohme of Pakistan Limited v. Sindh Labour Appellate Tribunal and 2 others 1982 PLC 148 and Syed Imran Raza Zaidi, Superintending Engineer Public Health Engineering Circle-I, Gujranwala v. Government of the Punjab, through Service General Administration and Information Department, Lahore and others 1996 SCMR 645 ref.

Abdul Hafeez Amjad and Ch. Waqar Ahmed for Appellant.

2005 P L C 196

[National Industrial Relations Commission]

Before Justice (Retd.) Tanvir Ahmed Khan, Chairman, Raja Abdullah Khan and Muhammad Shabbir Jamal, Members

UNITED BANK LIMITED through V.P. General Manager

versus

REGISTRAR, INDUSTRYWISE TRADE UNIONS, NATIONAL INDUSTRIAL RELATIONS COMMISSION, ISLAMABADand 3 others

Case No. 12(12) of 2004, decided on 29th December, 2004.

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

----S. 52---Banking Companies Ordinance (LVII of 1962), S. 27-B [as amended by Banking Companies (Amendment) Act (XIV of 1997)]--- Ouster of non-employees and dismissed employees from taking part in activities of unions of the Banks---Section 27-B, Banking Companies Ordinance, 1962 came into force on 2-6-1997 and had been made applicable with immediate effect---Banking Companies Ordinance, 1962 was a special law which had provided working by Banking Institutions ousting the non-employees from taking part in the activities of the Unions of the Banks---Condition precedent to become member of a Union of Bank was that the incumbent must be an employee of the Bank---Employee whose services had been terminated from the Bank had no right whatsoever to join any union of the Bank---Any interference in that matter would amount to frustrating the intention of Legislature which already, through a special law, had restrained the outsiders from participating in the activities of the union in a Bank---Persons claiming to be Chairman of Union and General Secretary of Union, both were terminated and were no more in service of Bank---Being dismissed employees they had no right to participate in the Union activities---Approval accorded by Registrar Industrywise Trade Union to the change of office-bearers of the Union as well as amendment in constitution on application of said persons who were no more in service of Bank at relevant time, being bad in law, was set aside.

National Bank of Pakistan v. Punjab Labour Appellate Tribunal and others 1990 PLC 192; Muslim Commercial Bank Staff Union of Pakistan (CBA) v. Federation of Pakistan through Secretary Finance, and another 1997 PLC 771; Bank of America Employees’ Union v. Federation of Pakistan through Secretary Finance and 2 others 2003 PLC 143 and National Bank of Pakistan v. Punjab Labour Appellate Tribunal and others 1990 PLC 192 ref.

(b) Interpretation of Statutes---

----Court to so construe a statute that no part of same was to be rendered void and nugatory---Effect must be given, if possible, to all the words used in the statutory provisions---Legislature was deemed not to waste its words and same should not be regarded as surplusage.

Faisal Mahmood Ghani for petitioner.

Malik Meharban, Labour Representative for Respondents.

2005 P L C 207

[National Industrial Relations Commission]

Before Justice (Retd.) Tanvir Ahmed Khan, Chairman, Raja Abdullah Khan and Muhammad Shabbir Jamal, Members

UNITED BANK LIMITED through V.P. General Manager

versus

Malik MUHAMMAD HUSSAIN and another

Case No.12(11) of 2004, decided on 29th December, 2004.

(a) Interpretation of Statutes---

----Duty of the Court is to so construe a statute in a manner that no part of the same was rendered void and nugatory---Effect must be given, if possible, to all the words used in the statutory provisions---Legislature was deemed not to waste its words and same should not be regarded as surplusages.

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

----S. 52---Banking Companies Ordinance (LVII of 1962), S. 27-B [as amended by Banking Companies (Amendment) Act (XIV of 1997)]--- Bar on outsider or dismissed employee of a Bank to participate in activities of a Union in Bank---Condition precedent to become member of a Union of a Bank was that he must be an employee of a Bank---Employee whose services had been terminated from the Bank, had no right whatsoever to join Union of the Bank---Respondent who posed himself to be General Secretary of Union in the Bank, was dismissed from service and till date his dismissal was holding the field---By virtue of promulgation of S. 27-B vide Banking Companies (Amendment) Act, 1997, respondent was not eligible to participate in the activities of Union.

Muslim Commercial Bank Staff Union of Pakistan (CBA) through Authorized Representative v. Federation of Pakistan through Secretary Finance, Islamabad and another 1997 PLC 771 and Bank of America Employees’ Union v. Federation of Pakistan through Secretary Finance and 2 others 2003 PLC 143 ref.

Faisal Mahmood Ghani for Appellant.

Malik Meharban, Labour Representative for the Respondents.

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2005 P L C 234

[National Industrial Relations Commission]

Before Syed Akhtar Naqi, Member

M. ASHRAF KHAN

Versus

G.M. PAKISTAN RAILWAYS and others

Case No.4A(101)/03‑L of 2003, decided on 1st September, 2004.

Industrial dispute‑‑‑

‑‑‑‑Premature retirement‑‑‑Request for‑‑‑Employee on account of his domestic circumstances and on ground that he had completed about 39 years of his service applied for his premature requirement w.e.f. 29‑6‑2002‑‑‑Application of employee for his premature retirement was not disposed of arid during pendency of said application a show­-cause notice was issued to him which was accompanied with a statement of certain allegations against him and thereafter he was put under suspension‑‑‑Such suspension order subsequently was withdrawn and period of suspension of employee was treated as on duty‑‑‑Employee thereafter again submitted application for his retirement from 30‑6‑2003 instead of 29‑6‑2002, but employee wad not retired according to his request on said modified date, but retired prior to more than three ‑ninths from date mentioned by employee in his application for his retirement‑‑‑Said order of employers would be treated as an order of compulsory retirement of employee which was not possible without a disciplinary action against him‑‑‑Since allegations against employee were withdrawn by employers, he was reinstated in service and period of his suspension was treated on duty, and he was to be retired according to his request‑‑‑Action of employers in retiring employee according to their own choice, was unwarranted by rules and regulations on the subject‑‑­Employee would be considered having been prematurely retired w.e.f. 30‑6‑2003 which date was mentioned by him in his application for his premature retirement.

PLD 1981 SC 172 ref.

Khalid Mehmood for Petitioner.

Irfan Masood Sh. Legal Advisor for Respondents.

2005 P L C 246

[National Industrial Relations Commission]

Before Ali Nawaz A. Channa, Chairman, Dr. Zakir Hussain and Syed Sultan Ahmad, Members/Joint Secretaries

DEPUTY DIRECTOR‑GENERAL (ADMINISTRATION), through Assistant Deputy Director‑General (Law) and another

Versus

NATIONAL ORGANIZATION OF POSTAL EMPLOYEES' UNION through Central President of NOPE Lahore and another

Appeals Nos. 12(16) and 12 (22) of 2002, decided on 25th September, 2003.

Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑Ss. 22‑D & 22‑EE‑--Election for determination of Collective Bargaining Unit‑‑‑Change of office‑bearers‑‑‑Objection to‑‑‑Appeal before National Industrial Relations Commission‑‑‑Panel of respondent Union having won election, respondent submitted change of officer­-bearers to the Registrar of Industry‑wise Trade Union, which submission was accepted‑‑‑Management and other person filed objection against acceptance of said change of office‑bearers‑‑‑Registrar of Industry‑wise Trade Unions having overruled objections of all objectors, Management and one other person/appellant filed appeal against order of Registrar of Industry‑wise Trade Unions before National Industrial Relations Commission‑‑-Objection of Management/appellant was that most of the office‑bearers elected at the election were civil servants who were debarred from either contesting the election or becoming office‑bearers of any Union in view of notification of Federal Government dated 15‑5‑2001‑‑‑Validity‑‑‑Government was competent to issue orders, notifications and instructions which would have force of law ‑‑‑From said notification it was clear that persons not falling within the definition of "workman" as contained in Workmen's Compensation Act, 1923, were not entitled to take part in election or cast any vote‑‑‑Appellant/Management should have been given opportunity to prove its point of view through evidence‑‑‑If there was any controversial point which required evidence, then there was no harm to record evidence even in summary proceedings‑‑‑Point raised by appellant/Management even during the process of election, yeas an important point touching the very root of the case, which should have been dealt with properly, but same had been dealt with in a superfluous manner‑‑‑Order passed by Member/Registrar of Industry‑wise Trade Union was set aside and case was remanded to the Registrar for providing opportunity to appellant Management to prove its point of view by producing evidence.

2002 PLC (C.S.) 1609 ref.

Khalilur Rehman Abbasi and Syed Rais Ahmad Jafri for Appellant.

Abdul Hafeez Amjad for Respondent.

Date of hearing: 14th September, 2003.

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2005 P L C 268

[National Industrial Relations Commission]

Before: Raja Abdullah Khan, Member

MUHAMMAD AJMAL KHAN and another

Versus

ALLIED BANK OF PAKISTAN through E.V.P.

Cases Nos.24(21) and 7-A(12) of 2004, decided on 25th October, 2004.

Industrial Relations Ordinance (XCI of 2002)---

----Ss.33, 40, 46, 49 & 63---National Industrial Relations Commission (Procedure and Functions) Regulations, 1973, Regln.32(2)---Unfair labour practice by employers---Petition against---Stay application---Petitioners in their petitions had challenged Circular issued by respondent-Bank addressed to all Divisional Heads and all Regional General Managers under the subject "statement of ethics and business practices" contending that said `Circular' actually was an affidavit and that there was no law which authorized Bank to obtain affidavit nor any rule of Bank authorized it to obtain such affidavit---Petitions filed by petitioners were objected to by Bank raising certain legal and factual objections---Validity---Disputed Circular was merely a communication of a set of principles and employees were required to read and understand it and thereafter follow them. and it was not an affidavit as alleged by petitioners---If any employee felt that any particular provision of said Circular was against rules or against West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 as alleged by petitioners then they had a right to point out same to Bank Management, but petitioners had not been able to do that---Disputed Circular was almost the reproduction of Rules 26 to 43 of Allied Bank of Pakistan Limited (Staff) Service Rules, 1981 and each employee at the time of entering in employment agreed to abide by said rules---Requiring employees to abide by rules was not violation of fundamental rights---Petitioners neither had any prima facie case nor balance of convenience was in their favour nor they were to suffer irreparable loss if operation of impugned order was not stayed---Impugned Circular did not change service conditions of workers nor constituted unfair labour practice of employer Bank as similar Circular had also been issued by another Commercial Bank---Petition as well as stay application filed by petitioners, being devoid of any merits, were dismissed accordingly---Even otherwise none of the petitioners being Collective Bargaining Agent, their petition under S.33 of Industrial Relations Ordinance, 2002 was not maintainable.

2002 PLC 145; 1973 PLC 407; 1982 PLC 256; 1992 SCMR 36; PLD 1988 SC 53; 2002 TD Labour 223 and Abdul Rehman v. State 1988 PCr.LJ 2357 ref.

S. Rais Ahmed Jafri, for Petitioners.

Shahid Anwar Bajwa for Respondent.

2005 P L C 301

[National Industrial Relations Commission]

Before Ali Nawaz A. Channa, Chairman, Syed Altaf Hussain Shah and Syed Sultan Ahmad, Members

FAISAL ALI and another

Versus

SABRO REFRIGERATION AND AIR-CONDITIONING EQUIPMENT MANUFACTURERS and another

Appeals Nos.12(33) and 12(36) of 2002, decided on 31st July, 2003.

Industrial Relations Ordinance (XXIII of 1969)---

----Ss. 22-A(8)(g), 22-D, 25-A, 34 & 53---Jurisdiction of National Industrial Relations Commission---Functions and jurisdiction of National Industrial Relations Commission was to prevent occurrence of unfair labour practices---Where such acts had already been committed the Commission, would have no jurisdiction and a terminated employee could not approach the Commission for his reinstatement---National Industrial Relations Commission had the jurisdiction to entertain the cases where there were allegations of apprehending unfair labour practice---If any employee challenged his termination on the ground of unfair labour practice, then he could file a complaint under S. 53 of Industrial Relations Ordinance, 1969 and upon trial, if employer was found guilty then simultaneously the employee could be reinstated in service, but in that complaint also, the employee could not be reinstated if the employer was acquitted of the charges---Reinstatement by National Industrial Relations Commission was dependant upon finding an employer guilty of unfair labour practice---National Industrial Relations Commission had no jurisdiction to reinstate terminated employee--Terminated employee had remedy to approach Labour Court for reinstatement under S. 25-A of Industrial Relations Ordinance, 1969 and could not approach National Industrial Relations Commission under S. 22-A(8)(g) of the Ordinance---Employee could approach National Industrial Relations Commission under S. 53 of Industrial Relations Ordinance, 1969, but his reinstatement would be dependant upon employer being found guilty of offence of unfair labour practice.

Dr. Ijaz Hassan Qureshi v. N.I.R.C. 1976 PLC 47; Allied Bank of Pakistan and 3 others v. Chairman N.I.R.C. and 4 others 1984 PLC 1392 and Khuda Bakhsh Baluch v. Matique Ullah 1990 PLC (?) ref.

Mushtaq Hussain Bhatti for Appellants.

Syed Naseer Ahmad for Respondents.

2005 P L C 308

[National Industrial Relations Commission]

Before Ghulam Nauman Shaikh, Member

Mrs. SHABANA AMIR

Versus

Messrs SALFI TEXTILE MILLS LTD.

Case No.4A(62) of 2004-K, decided on 13th June, 2005.

Industrial Relations Ordinance (XCI of 2002)---

----Ss. 49(4)(e) & 63---National Industrial Relations Commission (Procedure and Functions) Regulations, 1973, Regln.32---Unfair labour practice on part' of employers---Petition against---Petitioner had alleged that her husband who was General Secretary of Workers Union in employer establishment, where she was serving as telephone operator, having submitted charter of demands, officers of employers had started harassing and threatening her and asked her husband to withdraw the charter of demands, otherwise her services would be terminated---Petitioner had prayed to restrain the employers from dismissing, discharging, terminating or transferring petitioner and from committing any unfair labour practice---Petitioner had alleged that act of employers amounted to unfair labour practices---Petitioner herself was not an office-bearer of Workers Union and claimed to be an active member of Workers Union, but in support thereof she had not produced any document and she had not produced even her union subscription receipt in support of her contention---Petitioner neither in her petition nor in her affidavit-in-evidence, had mentioned her specific active role in trade union, but she had levelled only general and bald allegations and no time and date of alleged threat had been mentioned by petitioner in the petition---Petitioner had failed to establish case of unfair labour practice against employers in her petition---Mere vague and bald allegation made by petitioner without any specific instance of trade union activities, would not constitute any unfair labour practice on part of employers---No substantial evidence was produced by petitioner that she was being victimized or threatened by employers on account of her any Trade Union activity which could constitute unfair labour practice---National Industrial Relations Commission, could assume jurisdiction only in case when there was element of unfair labour practice as envisaged under S.63 of Industrial Relations Ordinance, 2002---In absence of any element of unfair labour practice, petition by petitioner; was not maintainable.

Messrs Choudhary Brothers Ltd. Sialkot v. The Jaranwala Central Co-operative Bank Ltd. 1968 SCMR 804; Abdul Haque and others v. Shaukat Ali and 2 others 2003 SCMR 74; General Secretary, Port Muhammad Bin Qasim Harbour and Dock Workers Union and others v. C.B.R. and others 2003 PLC 207; Amjad Mahmood v. Zonal Head, United Bank Limited, Zonal Office Jhelum and 2 others 2001 PLC 70Z; Muhammad Shall, UDC, W&S Directorate, CBA v. Capital Development Authority through Chairman, Islamabad 2001 PLC 718; Chief Manager of Planning and Installation, Telephone Industries of Pakistan v. Muhammad Saleem 2003 TD (Labour) 411; 1991 SCMR 2300; Iftikhar Ahmed and others v. President, National Bank of Pakistan and others PLD 1988 SC 53 and Malik Nazar Hussain v. National Bank of Pakistan and another 2004 SCMR 28 ref.

Muhammad Khursheed for Petitioner.

Faisal Mahmood Ghani for Respondents.

2005 P L C 327

[National Industrial Relations Commission]

Before Ghulam Nauman Shaikh, Member

DUR REHMAN

Versus

Messrs SALFI TEXTILE MILLS LTD

Case No.4A (63) of 2004-K decided on 13th June, 2005.

Industrial Relations Ordinance (XCI of 2002)---

----S. 49(4)(e)---National Industrial Relations Commission (Procedure and Functions) Regulations, 1973, Regln.32---Unfair labour practice by employers---Petition against---Petitioners had alleged that after submission of application by them for holding of referendum, officers of employer started victimizing them and threatened them to withdraw referendum application from Registrar of Trade Unions otherwise their services would be terminated---Petitioners had submitted that they apprehended their termination, dismissal from service or their transfer---Petitioners had prayed to restrain officers of employer from terminating, dismissing, transferring or discharging them from services and to restrain employer not to pressurize petitioners to withdraw application in respect of holding referendum through secret ballot---Petitioners in their petition and affidavit-in-evidence had levelled vague, bald and general allegations against employer and no specific role of their trade union activities had been mentioned by petitioners---One of the petitioners in his cross-examination had admitted that he had not specifically mentioned about his victimization---Petitioner had not specifically mentioned name of officers and specific act of victimization on account of his trade union activities in his affidavit-in-evidence but had given general instances of victimization on part of employer---Petitioners, in circumstances had not been able to establish a case of unfair labour practice against employer---Bald allegation would not constitute unfair labour practice---National Industrial Relations Commission, could assume jurisdiction only in a case when there was element of unfair labour practice-In absence of any element of unfair labour practice, petition, was not maintainable.

General Secretary Port of Muhammad Bin Qasim Harbour and Dock Workers Union and others v. C.B.R. and others 2003 PLC 207; Iftikhar Ahmed Bhatti v. Haji Khan Bhatti and 5 others 2001 PLC 165; Muhammad Shafi, UDC, W&S Directorate, C.D.A. v. Capital Development Authority through Chairman, Islamabad 2001 PLC 718; Chief Manager of Planning and Installation. Telephone Industries of Pakistan v. Muhammad Saleem 2003 TD (Labour) 411; Messrs Choudhary Brothers Ltd.. Sialkot v. The Jaranwala Central Co-Operative Bank Ltd. 1968 SCMR 804; Abdul Haque and others v. Shaukat Ali and 2 others reported in 2,003 SCMR 74; Amjad Mehmood v. Zonal Head, United Bank Limited Zonal Officer, Jhelum and 2 others 2001 PLC 702; Iftikhar Ahmed and others v. President, National Bank of Pakistan and others PLD 1988 SC 53 and Malik Nazar Hussain v. National Bank of Pakistan and another 2004 SCMR 28 ref.

Muhammad Khursheed for Petitioners.

Faisal Mahmood Ghani for Respondents.

2005 P L C 357

[National Industrial Relations Commission]

Before Ghulam Nauman Shaikh, Member

UNITED BANK LIMITED through General Secretary

Versus

UNITED BANK LIMITED through SVP/GM-ERD and another

Cases Nos.4A(97) and 24(96) of 2003-K of decided on 20th April, 2005.

Industrial Relations Ordinance (XCI of 2002)---

----Ss. 2(iii), (xxvi) & (xxix), 49(4)(e), 63 & 80(2)(a)---Unfair labour practice by employers---Master and servant, value of---Applicability---Petitioner Association which was combination of officers/employers, had filed grievance petition under S.49(4)(e) of Industrial Relations Ordinance, 2002 against alleged unfair labour practice of the employer-Bank---Only point which required to be determined in petition was whether petitioner Association could maintain petition and that whether their petition was maintainable---Prayer in the petition related to S.63(1)(d) of Industrial Relations Ordinance, 2002 which was to the effect that employer would not dismiss, discharge, remove employment or transfer. workman, which could only be sought by workman or registered trade union of workmen having status of Collective Bargaining Agent and not by registered Welfare Association of Officers of employer Bank---Section 49(4)(e) of Industrial Relations Ordinance, 2002 had enunciated that National Industrial Relations Commission could deal with cases of unfair labour practice against employer, when it was filed by workman or trade union of workmen which was Collective Bargaining Agent as specified in S.63..of said Ordinance---Registration of Trade Union of employers, though was permissible under Industrial Relations Ordinance, 2002, but Statute was addressed to resolution of differences between the employers and workman and it did not provide any machinery for settling differences between employers and different executive cadres, whose terms and conditions were governed by law of contract---Entire Scheme of Industrial Relations Ordinance, 2002 had shown that it had' not been designed to meet with the situation created by disputes between various categories of employers---Terms and conditions of persons falling outside the purview of Labour Laws, were normally governed by simple rule of "Master and Servant" unless there were statutory rules governing such terms and conditions---Petition filed by petitioners being not maintainable, was dismissed, in circumstances.

1999 PLC 240; 1998 PLC 39; 1997 PLC 92; 1997 PLC 653; Zonal Head, UBL Sadar Zone and another v. Mr. Mubarik Ali Mehboobi 1994 PLC 46; Bashir Ahmed v. General Manager, Coordination and others 1997 PLC 246; Rauf Textile and Printing Mills Employees Union and 4 others v. Messrs Rauf Textile and Printing Mills (Pvt.) Ltd. 2002 TD (Labour) 341; Iftikhar Ahmed and others v. President, National Bank of Pakistan and others PLD 1988 Supreme Court 53 and Pakistan Tobacco Company Ltd. v. Pakistan Tobacco Company Employees, Union, Dacca and 2 others PLD 1961 SC. 403 ref.

Ch. Lateef Saghar for Petitioner.

Faisal Mahmood Ghani for Respondents.

2005 P L C 370

[National Industrial Relation Commission]

Before Justice (Retd.) Tanvir Ahmed Khan, Chairman

ABDUL LATIF QURESHI

Versus

MUHAMMAD PERVEZ JALEES ALVI

Appeal No.7A(52) of 2004, decided on 3rd January, 2005.

Industrial Relations Ordinance (XCI of 2002)---

----Ss. 9(9), 20(7)(14) & 49---National Industrial Relations Commission (Procedure and Functions) Regulations, 1973, Regln. 2(g)---Powers of Deputy Registrar to conduct election---Deputy Registrar had got all powers to conduct election---Contention of petitioner that Deputy Registrar was only asked to supervise election and without constitution of Election Commission as required under the union constitution, elections could not be held, was devoid of any force---Since union of National Bank of Pakistan was registered on an industry-wise trade union with the Commission, Commission had got the jurisdiction to perform all such functions and exercise all such powers which were exercised by a Labour Court respecting a locally registered trade union ---Commission, having no funds of its own and establishment could not be asked to provide same, in case of internal election of union, all expenditure of internal election were met from nomination fee---Union funds could not be utilized for holding of internal elections as same could be spent only for the welfare of the workers---Law, thus had provided that employer of. establishment would provide all facilities for the conduct of referendum of Collective Bargaining Agent---No such provision existed for holding of internal election---Expenditure incurred upon internal election of union was always borne by contesting groups---Petitioner having failed to make out a case for interference, petition was dismissed.

United Bank Progressive Employees Union, Quetta Circle Quetta through President v. Registrar of Trade Unions, Baluchistan, Quetta and 2 others 1986 CLC 2911; 2001 PLC 131 and Lahore Improvement Trust, Lahore through its Chairman v. The Custodian, Evacuee Property, West Pakistan, Lahore and 4 others PLD 1971 SC 811 ref.

Petitioner in person along with S. Rais Ahmed Jafri for Appellant.

Respondent in Person.

2005 P L C 382

[National Industrial Relations Commission]

Before Justice (Retd.) Tanvir Ahmed Khan, Chairman, Syed Akhtar Naqi Naqvi and Anwar Hussain, Members

ATHAR TAHIR, SECRETARY TRANSPORT, GOVERNMENT OF PUNJAB and 2 others

Versus

MAHMOOD GHAZNAVI

Appeal No. 12(17) of 2003-L, decided on 3rd January, 2005.

Industrial Relations Ordinance (XXIII of 1969)---

----Ss. 22-A(8)(g) & 20-D---Grievance petition against alleged unfair labour practice by employers---Appeal before Full Bench of Commission---Grievance petition filed by employee against District Manager Road Transport Corporation in which respondents were not made party, was accepted by Single Bench of Commission ex parte as the District Manager remained absent on date of hearing---Respondent employee filed application for implementation of the ex parte order and also for contempt of Court---During pendency of said application, appellants moved an application for dismissal of contempt application before Single Bench contending that they were not party to original grievance petition filed by respondent in which impugned ex parte order was passed and that only District Manager was respondent in said petition---Appellants had contended that application for contempt of Court was neither competent nor maintainable against them---Appellants had also contended that original ex parte order being based on no evidence, same was void and not liable to be implemented---Validity of contentions---Initial grievance petition was filed against District Manager of the Corporation and ex parte order was passed against him---Action, in circumstances, should have been taken against said District Manager and not against appellants, who were not party in said proceedings---It was duty of respondent or his counsel who preferred said grievance petition to have seen whether the District Manager was competent to grant relief to respondent and his two colleagues or not---Even otherwise respondent could not prove any act of unfair labour practice against District Manager, which was essential to invoke jurisdiction of Commission and secondly respondent was not promoted on regular basis and he was working simply for a temporary phase---Such points were not appreciated by Member Single Bench of Commission while passing impugned ex parte order---No evidence was recorded and even no affidavit in evidence was filed in the case---Single Bench having acted illegally without adverting to law and facts of case, impugned order which was absolutely without lawful authority without any reason and based on no evidence, was set aside.

PLD 1995 SC 572; PLD 1997 SC 351; 1999 MLD 2297; 1988 CLC 1370; PLD 1975 Lah. 126; PLD 1970 Lah. 6 ref.

M. Iqbal Khokhar for Appellants.

Ajmal Mehmood for Respondent.

2005 P L C 393

[National Industrial Relation Commission]

Before: Justice (Retd.) Tanvir Ahmed Khan, Chairman, Syed Akhtar Naqi Naqvi and Anwar Hussain, Members

Syed FAYYAZ HAIDER

Versus

PHA and another

Appeal No. 12(35) of 2002-L, decided on 4th October, 2004.

Industrial Relations Ordinance (XXIII of 1969)---

----Ss. 22-A(8)(g) & 22-D---Grievance petition---Rejection of---Appeal---Appellant had specifically claimed that he was promoted as Security Supervisor and that he was working in that capacity for the last about ten . years---Appellant claimed that he was employed in L.D.A. and his services were transferred to the Department after its creation---Authorities had contended that appellant was not promoted, but it was only a stopgap arrangement, therefore it was to be looked into whether a stopgap arrangement could continue for a period of ten years without any regularization of the post and it was to be seen whether services of appellant could have been transferred to a newly created Authority with lesser benefits than he was enjoying in the parent department---All such matters could have been decided only if appellants were allowed to adduce their evidence and Authorities could rebut that evidence---Single Bench of the Commission had presumed the correctness of the documents which were appended with the pleadings, and such presumption was not a proper judicial approach---Even if documents were to be relied upon while disposing of grievance petition, Single Bench was under obligation to have got those documents proved in evidence by tendering them in evidence or getting admission from the contesting side---Single Bench by dismissing grievance petition while disposing of application for stay and without adverting to the evidence to be led by parties, had badly prejudiced the appellants---Appeal against order of Single Bench was accepted by the Commission to the extent of dismissal of grievance petition---Case was remanded to Single Bench with direction to dispose of the same after obtaining evidence from both sides.

H.R. Haider for Appellants.

Syed Mumtaz Hussain Bukhari for Respondents.

2005 P L C 399

[National Industrial Relations Commission]

Before: Muhammad Shabbir Jamal, Member

LIAQUAT ALI

Versus

CDA through Director-General Administration C.D.A. and another

Appeal Case Nos.4A (16) and 24(19) of 1997, decided on 15th March, 2005.

Industrial Relations Ordinance (XXIII of 1969)---

----S. 22-A(8)(g)---National Industrial Relations Commission (Procedure and Functions) Regulation, 1973, Reghns. 32(2) & 35---Pakistan Allocation Rules, 1995---Unfair labour practice by employees---Petitioner had claimed that he having attained the status of a permanent employee was entitled to allotment of same residential quarter which was allotted to his deceased father in his capacity of an employee of the management---Petitioner had alleged that due to his trade union activities, management intended to forcibly disposses him from the quarter in question---Petitioner had also filed stay application under Regln. 32-(2) of National Industrial Relations Commission (Procedure and Functions) Regulations, 1973, which was accepted---Petitioner being son of deceased employee had been residing in the residential quarter in question allotted to his deceased father by the management along with his family---Petitioner continued to retain possession of quarter in question---Claim of petitioner was based on merits as he sought allotment of said quarter under Pakistan Allocation Rules, 1995 which inter alia allowed allotment of residential accommodation to the son of a deceased employee provided he was employed by the Employer and same was allotted to his father---Petitioner, who had attained status of regular employee of the Employer, his case could be decided sympathetically by the Employer/Corporation on the ground of his being son of deceased employee of the .Corporation---Trespass was not proved as contended by the Corporation---Petitioner and his family including his mother continued to live in the quarter in question allotted to his father---Corporation was directed not to dislodge petitioner from quarter in question which was allotted to his father as it would be in the interest of justice as well as on humanitarian grounds that quarter in question be allotted to petitioner.

PLD 1988 SC 38 and 1989 SCMR 455 ref.

Abdul Hafeez Amjad for Petitioner.

Syed Rais Ahmed Jafri for Respondents.

2005 P L C 407

[National Industrial Relations Commission]

Before Raja Abdullah Khan Member

Malik NASIM IQBAL

Versus

UNITED BANK LIMITED through Zonal Chief and 2 others

Case No.4A(76) and Case No.24 (132) 2000, decided on 25th April, 2005.

Industrial Relations Ordinance (XXIII of 1969)---

----Ss. 22-A(8)(g) & 22-D.---National Industrial Relations Commission (Procedure & Functions) Regulations, 1973, Regln. 32(2)---Termination of service---Petition against---Stay application---Unfair labour practice on part of employers, proof of---Services of petitioner were terminated after charge-sheeting him and holding inquiry against him on charge of misconduct---Charge against petitioner who was serving as Gunman, was that he physically assaulted Manager of concerned Branch of employer Bank---Inquiry proceedings had clearly shown that inquiry against petitioner was conducted in presence of petitioner and he signed each page of inquiry report accepting correctness of the same---Statement of petitioner that lie was not given opportunity of making statement and to produce his defence, was falsified by inquiry proceedings---Petitioner had also admitted that he was served with two show-cause notices in regard to his inquiry---Inquiry Officer in his report had found that charges against petitioner/accused regarding assaulting tlhe Manager had stood proved---Admission on the part of petitioner that lie was charge-sheeted and inquiry was held against him and lie was issued show-cause notices, had supported case of the Bank regarding misbehaviour and assaulting Manager by petitioner and inquiry had been proved against him---No unfair labour practice on part of employer Bank had been proved by petitioner by any evidence---Petitioner had not said a word of alleged unfair tabour practice on part of Bank in his explanation to charge-sheet---Allegations of unfair labour practice without giving specific instance, were an afterthought and could not be accepted---Non­supply of inquiry report to petitioner would not vitiate action taken by respondents in terminating him from service---No enmity whatsoever was alleged by petitioner against Inquiry Officer---Conduct of petitioner had shown that he was in the habit of misbehaving with his superiors---Petition filed by petitioner otherwise was liable to be dismissed on ground that it suffered from tactics---Petitioner having rightly been terminated from service, petition and application for stay of proceeding, were not maintainable and, were dismissed.

1990 PLC 192; PLD 1996 SC 787; 1999 SCMR 1237; 1983 PLC 273; 1982 PLC 228 and 635 and 1976 PLC 631 ref.

Malik Mehrban, Labour Representative for Petitioner.

Mushtaq Hussain Bhatti for Respondents.

2005 P L C 418

[National Industrial Relations Commission]

Before: Justice (Retd.) Tanvir Ahmad Khan, Chairman

MUHAMMAD JAWAD HUSSAIN

Versus

MUHAMMAD PERVAIZ JALEES ALVI

No. 12(26) of 2004, decided on 3rd January, 2005.

Industrial Relations Ordinance (XCI of 2002)---

----Ss. 49, 50 &. 52---Appeal to National Industrial Relations Commission---Conversion into petition---Appeal had been filed against order of Deputy Registrar National Industrial Relations Commission whereby application of appellant for contesting election upon seat of Secretary General of Employees Union as an independent candidate was rejected holding that after promotion of appellant as an Officer of Grade III, he was no more a worker---Impugned order being administrative in nature, appeal was treated as a petition---Even otherwise appeals under S.52 of Industrial Relations Ordinance, 2002 were provided before Full Bench against decision of Bench of the Commission and impugned order being administrative in nature and having not been passed by any Bench of the Commission, it had to be treated as petition---Deputy Registrar immediately on receipt of application of appellant/petitioner, took up matter and found out that petitioner's name was not included in list of members of the Union secured by him from Secretary General of Union---Petitioner, who was promoted as an officer Grade-III, was no more a workman; he had to substantiate his stance through production of evidence that despite his promotion, to the post of Officer Grade III and change of duties, he still would come within definition of "workman"---If petitioner was aggrieved of exclusion of his name from union membership by virtue of his promotion, lie had to avail appropriate remedy---Plea of stay of election proceedings could not be entertained---Application of petitioner, in circumstances, was rightly rejected by Deputy Registrar.

S. Rais Ahmad Jafri for petitioner.

Muhammad Pervaiz Jalees Alvi, Deputy Registrar in person.

2005 P L C 431

[National Industrial Relations Commission]

Before Syed Akhter Naqi Naqvi, Ghalam Nauman Shaikh and Nasar Hayat Members

PAKISTAN STEEL MILLS through Incharge Law Department

Versus

ALI AKBAR

Appeal No. 12 (57) of 2003-K, decided on 11th April, 2005.

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

----Arts. 71 & 134---Affidavit-in-evidence by witness, filing of---Witness in cross-examination deposed that Law Department of appellant had nominated him to file such affidavit---Held: Witness had neither applied his mind nor he had first hand knowledge about allegations contained in such affidavit against respondent.

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

----Arts. 31 & 71---Admission of respondent about his absence from duty made before Enquiry Officer---Proof---Such admission could be proved only by producing Enquiry Officer in witness-box.

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

----Ss. 2(XVIII), 15, 22-A(8)(g), 25-A & 63---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1.968), S.2(i) & S.O. 15(3)(1)---Service Tribunals Act (LXX of 1973), Ss.2-A & 4---Appeal against acceptance of grievance petition of respondent---Unfair labour practice---Plea of appellant-Corporation being controlled by Federal Government was that respondent would be deemed to be a civil servant by virtue of S.2-A of Service Tribunals Act, 1973, thus, jurisdiction of National Industrial Relations Ordinance was barred---Validity---Appellant by initiating disciplinary proceedings against respondent on the basis of show-cause notice issued under S. 13(3)(h) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968) had accepted him as workman---Respondent was being victimized and discriminated by appellants for his refusal to leave his Labour Union and join another Union, which being an act of unfair labour practice fell within ambit of S.63 of Industrial Relations Ordinance, 1969---National Industrial Relations Commission would have jurisdiction to deal with such petition based on unfair labour practice---Appeal was dismissed in circumstances.

Zahid Hamid for Appellant.

Ch. Muhammad Ashraf Khan for Respondent.

2005 P L C 166

[Peshawar High Court]

Before Talaat Qayum Qureshi, J

MUKHTAR ALI

versus

PAKISTAN RAILWAYS and others

Labour Appeal No.20 of 2004, heard on 11th January, 2005.

Industrial Relations Ordinance (XCI of 2002)---

----Ss. 46 & 48---Service Tribunal Act (LXX of 1973), S.2-A---Compulsory retirement---Grievance petition---Maintainability---Appeal to High Court---Appellant while serving as Assistant Electrical Examiner (BPS-4) having been compulsorily retired from service, filed grievance petition before Labour Court, but same was dismissed being not maintainable and appellant filed appeal against judgment of Labour Court---Appellant being Assistant Electrical Examiner of Railway Trains though fell under category of “Workmen”, but after insertion of S. 2-A in Service Tribunals Act, 1973 those employees who would fall under definition of ‘Workmen’ were also to approach Service Tribunal for redressal of their grievance---Appellant being one of those employees should have approached the Service Tribunal, but he failed to do so---Appellant under bona fide belief having approached Labour Court for redressal of his grievance, it was the duty of Labour Court to have decided question of jurisdiction first, which it failed to decide---Had the question of jurisdiction been taken first and Trial/Labour Court was of the view that it had no jurisdiction to entertain grievance petition, petition should have been returned for filing the same before the proper forum; Instead case was kept pending for unduly long period---High Court accepting appeal, set aside impugned judgment and order and sent the case back to Labour Court for returning the same to appellant for filing it before appropriate forum.

Said Wahab and others v. Chief Mechanical Engineer Locomotive Factory Risalpur 2000 PLC 322; Ijaz Ahmed Waraich v. President UBL 2003 SCMR 1264; Zakirullah and others v. Chairman WAPDA 2000 SCMR 826; M.D. Sui Northern Gas Company v. Ghulam Abbas PLD 2003 SC 724; Muhammad Yousaf v. Pakistan Railways 2003 PLC (C.S.) 344; G.M. National Bank of Pakistan and others v. Abdul Aziz and others 2002 PLC (C.S.) 18; Divisional Accounts Officer, Pakistan Railways and another v. Fariduddin UDC Divisional Accounts Officer, Pakistan Railways, Quetta and 2 others PLD 1985 Quetta 234; Akbar Ali and others v. Senior Administrative Officer Pakistan Railways and another 1992 SCMR 1341; Divisional Superintendent, Pakistan Railways, Lahore and 3 others v. Pervez Akhtar 1995 PLC 574; 2003 PLC (Labour) 118; Syed Aftab Ahmad and others v. KESE and others 1999 SCMR 197; Malik Mumtaz Ahad and others v. Federal Service Tribunal and others 2000 SCMR 832 and Muhammad Hanif Bukhari and others v. President National Bank of Pakistan Head Office Karachi and others 2004 OPLC (C.S.) 1014 ref.

Waqar Ahmed Seth for Appellant.

Hashim Raza for Respondent.

Date of hearing: 11th January, 2005.

2005 P L C 202

[Balochistan Social Security Court]

Before Nazir Ahmed Langove, Presiding Officer

GATRON (INDUSTRIES) LTD.

versus

BALOCHISTAN EMPLOYEES’ SOCIAL SECURITY INSTITUTION through Commissioner Labour Complex and 2 others

Case No.1 of 2002, decided on 3rd February, 2005.

(a) Provincial Employee’s Social Security Ordinance (X of 1965)---

----Ss. 45, 57, 58 & 62---Complaint seeking payment/reimbursement of amount incurred for treatment of workers---Appeal to Social Security Court---Claim of appellant company was that its workers after performing their duties were waiting for Bus to their houses under a tree outside the Factory gate, a Taxi ran over them causing injuries to workers and said injured workers had to be admitted in hospital, for want of facilities in the Institution and that huge amount had to be spent by appellant company on medical expenses---Appellant sought re-payment/reimbursement of said amount---Claim of appellant having been declined by the Commissioner Social Security, appellant had filed appeal against judgment of Commissioner Social Security---Claim of appellant was declined on ground that incident had occurred outside the place of work of injured workers and not in premises of factory---Validity---Accident in question fell within the definition of “accidents” provided under Provincial Employees’ Social Security Ordinance, 1965 and theory of notional extension was very much applicable as workers certainly were in the course of their employment waiting for conveyance at a point though outside the factory---Injured workers at relevant time definitely being not on independent and un-connected private activity were entitled to get their compensation under Workmen’s Compensation Act---Employer admittedly had only a dispensary having no hospital or medical officer or professional Doctor as provided under S. 45(1)(b) of Provincial Employees’ Social Security Ordinance, 1965 and for want of said facilities injured workers were taken to hospitals---Matter was duly intimated to Social Security Institution who did not raise any objection rather advised the appellant company for continuance of treatment there, meaning thereby that treatment to workers in hospitals remained continued with consent and advice of the department---Appellant who succeeded to prove its claim in respect of amount claimed by it which was incurred for treatment of its workers in hospitals, was entitled for relief claimed for---Order of Commissioner Social Security whereby claim of appellant was declined, was set aside in appeal with direction for payment of amount to appellant for medical expenses incurred by it.

(b) Administration of justice---

----Justice should not be denied only on the basis of technicalities if it had otherwise been proved through reliable and unimpeachable evidence.

2005 P L C 214

[Peshawar High Court]

Before Ejaz Afzal Khan, J

DILAWAR KHAN

versus

Messrs FEROZ SONS LABORATORIES LTD.

Labour Appeal No.6 of 2004, decided on 21st February, 2005.

Industrial Relations Ordinance (XCI of 2002)---

----S. 47(3)---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O. 15---Dismissal from service on allegation of misconduct---Appeal---Appellant was dismissed from service after serving him with show-cause notice and holding inquiry against him on allegation that he was found in possession of .30 bore pistol---Carrying arm by an employee in the premises of employer was not mentioned in relevant Standing Order 15 of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 as an act, commission or omission constituting a misconduct so as to justify punishment of dismissal from service; as a matter of fact it being an act of disobedience simpliciter would fall within purview of Standing Order 15(1)(ii)(a) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 which could only be punished with a reprimand or a fine---Contention of employer that gravity of act committed by appellant had brought his case within pale of S.O.15(2)(3) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, was repelled as act committed by appellant did not fall within the pale of act or omission listed in S.O. 15(3) of the Ordinance---Reprimand in circumstances of case would by all means be sufficient to meet the ends of justice particularly when appellant had already suffered for more than four years after his dismissal from service---Appellant was ordered to be reinstated in service, but he would not be entitled to previous benefits.

Pakistan Tobacco Company v. Chana Khan and others 1980 PLC 981; Muhammad Riaz v. Sindh Appellate Tribunal, Karachi and 2 others 1993 PLC 301 ref.

Waqar Ahmad Seth for Appellant.

Ch. Abdul Rab for Respondent.

Date of hearing: 21st February, 2005.

2005 P L C 286

[Peshawar High Court]

Before: Nasir-ul-Mulk, C J

MUSLIM COMMERCIAL BANK LTD. Through General Manager Circle Office, Peshawar

Versus

SHAMSUL AULIA

Labour Appeal No.35 of 2004, decided on 14th March, 2005.

Industrial Relations Ordinance (XCI of 2002)---

---Ss. 46, 47(3) & 48---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S. O. 15---Dismissal from service---Grievance petition--Appeal to High Court--Action against employee/respondent arose from a case of misappropriation of amount encashed from concerned branch of appellant-Bank---Main charge was against the Manager of concerned branch of Bank who was directly charged for misappropriation of amount, whereas respondent being a cashier was alleged to have been aware of alleged embezzlement and had concealed that fact from Management of appellant-Bank---Only serious allegation against respondent was that he had violated Bank's instructions regarding obtaining signatures from presenter of cheque before making payment---Respondent had stated before Inquiry Officer that he did not obtain said signatures as already there were two signatures affixed on cheque---Appellant Bank, though had been able to establish that respondent had not followed instructions regarding obtaining of signatures of presenter of cheque, but had failed to show as to how such failure had facilitated the misappropriation by Manager, who was real culprit---Even otherwise violation of rule would not, by itself, amount to misconduct---Inquiry Officer found respondent guilty for facilitating misappropriation on the ground that he was local and account holder was personally known to him---Conclusion of Inquiry Officer was based on surmises and conjectures and not on any evidence-It had not been proved as a fact that any of the customers was known to respondent and that payments were made to customer---Impugned judgment of Labour Court whereby respondent was reinstated in service, was upheld and appeal against said judgment was dismissed.

Raja Javed Akhtar v. Executive Vice-President UBL 1998 SCMR 212; Muhammad Shamim v. Pakistan Tobacco Company 1975 SCMR 46; Allied Bank of Pakistan v. M. Zaherul Hassan 1990 PLC 238 and Cresent Jute Products Ltd v. Muhammad Yaqub and others PLD 1978 SC 207 ref.

Qazi Muhammad Anwar for Appellant.

Ejaz Anwar for Respondent.

Dates of hearing: 14th and 18th February, 2005.

2005 P L C 36

[Quetta High Court]

Before Amanullah Khan Yasinzai and Akhtar Zaman Malghani, JJ

INTERNATIONAL BISCUITS LIMITED

Versus

BALOCHISTAN LABOUR APPELLATE TRIBUNAL, QUETTA, and others

Civil Petition No.9 of 2002, decided on 30th May, 2003.

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

----S.Os. 11-A & 12(4)---Industrial Relations Ordinance (XXIII of 1969), S.38(3-A)---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Closing of establishment---Payment of legal dues to employees­--Application filed by the company for closing of business for certain, reasons, was accepted by Labour Court subject to payment of legal -dues to terminated workers---Petitioner company feeling aggrieved by condition imposed in the order of closing the business whereby petitioner was to pay legal dues to workers challenged same by filing revision before Labour Appellate Tribunal under S.38(3-A) of Industrial Relations Ordinance, 1969---Validity---Labour Appellate Tribunal dismissed revision holding that same was not competent against an order passed under. West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1969---Held, there was no illegality or infirmity in conclusion drawn by Labour Appellate Tribunal which had been arrived at after taking into consideration relevant provisions of law and case-law on the point.

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

----S.Os. 11-A & 12(4)---Constitution of Pakistan (1973), Art.199--­Constitutional petition---Closing of establishment conditionally—Labour Laws, object of---Labour Court accepting application filed by company, for closing of company, granted closing of company subject to payment of legal dues to terminated workers---Contention of petitioner company was that Labour, Court had no jurisdiction to impose any condition while according permission for closure of company under Standing Order 11-A of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968---Validity---Labour Laws had been promulgated to protect rights and privileges of workers and were to be construed liberally in favour of workers---Under Scheme of West Pakistan .Industrial and Commercial Employment (Standing Orders) Ordinance; 1968, employer was debarred from terminating services of more than 50% or close down whole of establishment without prior permission of Labour Court---Termination of 100% a workmen by petitioner prior to permission by Labour Court was illegal and without any effect and such workers would be deemed to be in employment of petitioner notwithstanding any order of termination issued by petitioner establishment in violation of provisions of law, especially when National Industrial Relations Commission had already issued injunction restraining petitioner from removing workers---Any order of termination of workers in violation of said injunction had no legal sanctity---Under Standing Order 12(4) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, employer being under legal obligation to pay dues to workers on the next day of termination, petitioner company was legally bound to pay legal dues to workers on termination of their services ,due to closure of company---Order imposing condition of payment of legal dues to workers who were terminated on closure of company, having been passed to foster justice, was not liable to be interfered with by High Court in exercise of its Constitutional jurisdiction, even if it was assumed that Labour Court had no jurisdiction to pass such order.

1986 SCMR 107; 1994 PLC 202; 1996 PLC 300; 2001 PLC 124; 2001 PLC 312; 1993 PLC 308; 2001 PLC 73; 1992 PLC 136; 1998 PLC 490; 1992 PLC 75 (Kar.); 1987 PLC 715; NLR 2001 (Lab.) 177; 1975 SCMR 49; 1991 PLC 305; 1992 PLC 75; 1967 PLD SC 367; 1971 PLD SC 61; 2001 PLC 672; 1974 PLD SC 149; 1963 PLD SC 236; 1985 PLD QTA 74; 1987 PLC,692 (Kar.); 1992 SCMR 1290;1971 PLD SC 370; 2000 YLR (Lah) 632; 2001 PLC 680; 2002 PLC 67; NLR 2001 (Lab.) 101; 1999 PLC 635; 2001 PLC 39; 2002 PLC 201; 2001 PLC 13; 1986 SCMR 1071; 1994 PLC 202 and 1998 PLC 490 ref.

(c) Constitutional of Pakistan (1973)-----

----Art. 199----Constitutional petition---Maintainability---Aggrieved party---Order of Labour Court directing payment of dues and wages to workers having been passed against the petitioner, it was an aggrieved party within meaning of Art 199 of the Constitution---Constitution petition filed by petitioner, was maintainable.

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

----Art.199---Constitutional jurisdiction---Scope---Constitutional jurisdiction, which was discretionary in its nature and its object was to foster justice and right a wrong, could be invoked only in aid of justice and not to perpetuate injustice.

H. Shakeel Ahmed, for Appellant.

Muhammad Shafiq Qureshi for Respondents.

Date of hearing; 23rd April, 2003.

2005 P L C 317

[Supreme Court of Pakistan]

Present: Rana Bhagwandas, Hamid Ali Mirza and Saiyed Saeed Ashhad, JJ

GHANSHAMDAS

Versus

PRESIDING OFFICER, SINDH LABOUR COURT-VIII, LARKANA and another

Civil Petition No.920-K of 2003 decided on 18th April, 2005.

(On appeal from the judgment dated 21-10-2003 in C.M.A. No.1 of 2003 passed by the High Court of Sindh, Circuit Court, Larkana).

Industrial Relations Ordinance (XCI of 2002)---

----S.48---Constitution of Pakistan (1973), Art.185(3)---Restoration of grievance petition---Non-compliance of condition imposed for restoration---Raising of new plea---Petition dismissed for non-prosecution was restored subject to deposit of costs but workman failed to deposit the costs---Petition, therefore was dismissed and High Court refused to set aside the order passed by Labour Court---Validity---Plea raised before Supreme Court was not pleaded before Labour Court and high Court, therefore, same could not be permitted to be agitated before Supreme Court---High Court, after going through the evidence on record had given cogent reasons with which Supreme Court did not find any legal infirmity-As the workman failed to deposit the costs, therefore, he was not entitled to the exercise of discretionary relief in his favour from Supreme Court, having not come with clean hands---Leave to appeal was refused.

Muhammad Swaleh v. Settlement Commissioner PLD 1964 SC 97 and Yusuf Ali Shah v. Quetta Serena Hotel and 2 others 2001 PLC 533 ref.

N.C. Motiani, Advocate Supreme Court/Advocate-or-Record for Petitioner.

Mehmood A. Ghani, Advocate Supreme Court and K.A. Wahab, Advocate-on-Record for Respondent No.2.

Date of hearing: 18th April, 2005.

2005 P L C 364

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Ramday and Falak Sher, JJ

MUGHAL SURGICAL (PVT.) LTD. and others

Versus

PRESIDING OFFICER, PUNJAB LABOUR COURT NO.7 and others

Civil Petitions Nos.2898-L to 2901-L of 2003, 279-L, 493-L, 68-L and 99-L to 102-L of 2004, decided on 23rd December, 2004.

(On appeal from the judgments/orders dated 16-9-2003 and 17-11-2003 of the Lahore High Court, Lahore passed in Writ Petitions Nos.5072, 5074, 5603, 4835, 8740, 11016, 11015, 11017, 11018 and 1027 of 2003, respectively).

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

----Preamble---Object of Payment of Wages Act, 1936---Payment of Wages Act had been enacted for benefit of workmen, which would be interpreted and applied in the spirit leading to its enactment.

Syed Match Company Limited's case 2003 SCMR 1493 ref.

(b) Appeal (Civil)-

----Right of appeal---Nature of---Such right is not a natural or an inherent right of litigants, but is a statutory right granted by different laws under different enactments---Such right must be considered and examined in the light of conditions prescribed by law granting such right---Every order and decision is not appealable under C.P.C. and Cr.P.C.---Granting of interim order without deposit of decretal amount is prohibited under some provisions of C.P.C.

Mian Abdul Quddoos Advocate Supreme Court with Mahmud­ul-Islam Advocate-on-Record for Petitioners (in C.Ps. Nos.2898 to 2901-L of 2003).

Rana Nasrullah Khan, Advocate Supreme Court with Haji Muhammad Rafi Siddiqui, Advocate-on-Record for' Petitioner (in C.P. No.279-L of 2004).

Mahmud-ul-Islam Advocate-on-Record for Petitioner (in C.P. No.493-L of 2004).

M. Saleem Sahgal, Advocate Supreme Court with Tanvir Ahmed, Advocate-on-Record for Petitioners (in C.Ps. Nos.68 and 99 to 102-L of 2004).

Nemo for Respondents.

Date of hearing: 23rd December, 2004.

2005 P L C 366

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Rana Bhagwandas and Syed Deedar Hussain Shah, JJ

PERVEZ ALAM

Versus

PAKISTAN DAIRY PRODUCTS (PVT.), LIMITED, KARACHI and 2 others

Civil Appeal No.1914 of 1996, decided on 30th June, 2004.

(On appeal from the judgment of the High Court of Sindh, Karachi, dated 19-9-1995, in C.P. No.D-3126 of 1992).

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

----S. 25-A---Constitution of Pakistan (1973), Art.199- Dismissal from service---Absence from duty---Worker pleaded his absence from duty on account of illness and produced medical certificate of a private practitioner---Employer imposed penalty on worker while disbelieving his plea on the ground that he was not treated in a Social Security Hospital---Labour Court dismissed grievance petition of worker, but Tribunal accepted his appeal finding his plea to be valid---High Court in Constitutional jurisdiction set aside order of Tribunal---Validity---Employer had challenged the validity of medical certificate---Tribunal while exercising jurisdiction according to law had accepted plea of worker---High Court ought not to have issued writ in favour of employer as Tribunal had passed order with jurisdiction and there was no misreading and non-reading of evidence---Supreme Court accepted appeal, set aside order of High Court and restored order of Tribunal.

Factory Manager, General Manager, Okara Textile Mills v. Muhammad Yaseen 1988 PLC 794 ref.

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

----Art. 199---Factual controversy between parties---Constitutional jurisdiction of High Court---Scope---High Court would normally abstain to exercise such jurisdiction and remain slow in interfering in such factual controversy and would exercise same reluctantly only in exceptional cases.

Muhammad Aslam Butt Advocate Supreme Court with Akhlaq Ahmad Siddiqui, Advocate-on-Record for Appellant.

Raja Shamsuzzaman, Advocate Supreme Court with M.S. Ghaury, Advocate-on-Record for Respondent No.1.

Respondents Nos.2-3: Ex parte.

Date of hearing: 30th June, 2004.