PLC 2006 Judgments

2006 P L C 1

[Karachi High Court]

Before Sarmad Jalal Osmany, Anwar Zaheer Jamali and Mushir Alam, JJ

MUHAMMAD ISHAQUE

Versus

ZAHID and others

Civil Petition No. 1062 of 1989, heard on 23rd May, 2005.

Industrial Relations Ordinance (XXIII of 1969)---

----Ss. 25-A(1), (4) & 37(3)---Civil Procedure Code (V of 1908), O.XLI, R.1---Constitution of Pakistan (1973), Art.199---Constitutional petition---Filing of appeal before Labour Appellate Tribunal through counsel---Aggrieved person could bring a grievance notice to employer, himself, through a shop steward or Collective Bargaining Agent under S.25-A(1) of Industrial Relations Ordinance, 1969---Where worker was not satisfied with decision of employer or the employer had failed to communicate decision within stipulated time then worker or shop steward could take matter to Collective Bargaining Agent or Labour Court as provided by S.25-A(4) of Industrial Relations Ordinance, 1969---Word `himself' as mentioned in S.25-A(1) & (4) of Industrial Relations Ordinance, 1969, was missing in S.37(3) of the Ordinance which dealt with appeal before Labour Appellate Tribunal---In absence of any particular provision of Industrial Relations Ordinance, 1969 as to how an appeal could be filed by aggrieved person, Civil Procedure Code, 1908 would be applicable and under O.XLI, R.I, C.P.C., appeal could be filed by aggrieved person himself or through his Advocate---Appeal filed by petitioner through his counsel before Appellate Tribunal, was proper.

Gulistan v. Sindh Labour Appellate Tribunal Karachi 1982 PLC 1007 and Iqbal Muhammad Khan v. Sindh Labour Appellate Tribunal 1992 PLC 549 ref.

Muhammad Khursheed Ahmed for Petitioner.

Anwar Jamal for Respondent No. 1.

Date of hearing: 23rd May, 2005.

2006 P L C 4

[Karachi High Court]

Before Syed Zawwar Hussain Jafry, J

AZAD EMPLOYEES UNION

Versus

REGISTRAR OF TRADE UNIONS SINDH and others

C.P. No. S-243 of 2002 decided on 23rd May, 2005.

Industrial Relations Ordinance (XXIII of 1969)---

--S. 22(1)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Application for issuance of Collective Bargaining Agent Certificate was rejected---Petitioner union which allegedly had more than 1/3rd membership out of total strength of workers of the Establishment, filed application for issuance of Collective Bargaining Agent Certificate under S.22(1) of Industrial Relations Ordinance, 1969 on the ground that High Court appeal filed by another union in the Establishment, was pending adjudication in High Court---Petitioner had admitted in his .petition pendency of said appeal in High Court in which interim relief was granted which was holding field---No direction could be given to Registrar of Trade Union to issue Collective Bargaining Certificate under S.22(1) of Industrial Relations Ordinance, 1969 in favour of petitioner till said High Court appeal was finally decided---Constitutional petition filed by petitioner being pre-mature was dismissed, in circumstances.

Muslim Commercial Bank Ltd. v. Registrar, Industrywise Trade Union 2002 PLC 145 and Rice Export Corporation Labour Union v. Full Bench of the National Industrial Relations Commission 1992 PLC 125 ref.

Muhammad Shafiq Qureshi for Petitioner.

Abbas Ali, A.A-.G for Respondent No.1

Mehmood Abdul' Ghani for Respondent No.2.

Khalid Imran for Respondent No.3.

Chaudhry Ashraf Khan for intervenor.

Date of hearing: 4th March, 20005.

2006 P L C 13

[Karachi High Court]

Before Zia Perwaz, J

TAJ MUHAMMAD

Versus

SIEMENS PAKISTAN and another

Labour Appeal No.235 of 2003, decided on 19th April, 2005.

Industrial Relations Ordinance (XXIII of 1969)---

----Ss. 25-A, 37(3) & 38---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.Os. 12(3) & 15---Dismissal from service---Grievance petition---Appeal to Labour Appellate Tribunal---Appellant who claimed to be a permanent employee, had alleged that he was dismissed from service without any show-cause notice or inquiry, contrary to provisions of Standing Orders 12(3) & 15 of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and claimed reinstatement with full back-benefits---Terms of appointment, letter of extension of service of appellant and evidence on record had shown that appellant was appointed for a specific job on project concerned and on completion of said project services of appellant were terminated in pursuance of terms of his appointment---No necessity existed for issuance of any show-cause notice or inquiry---Where nature of employment was with respect to a particular job or project and services of employee attached to such project were terminated on completion of such project, period of service was not relevant---Impugned order of Labour Court did not suffer from any legal or factual infirmity---Appeal filed by employee being devoid of any merit, was dismissed.

WAPDA and others v. Khanimullah and others 2000 SCMR 879; Pakistan International Airlines v. Sindh Labour Court No.5 and others PLD 1980 SC 323 and Muhammad Yaqoob v. Punjab Labour Court No. 1 and 5 others 1990 SCMR 1539 ref.

Nemo for the Appellant.

Umer Hayat for Respondent.

Date of hearing: 19th April, 2005.

2006 P L C 21

[Karachi High Court]

Before Azizullah M. Memon, J

PAKISTAN NATIONAL SHIPPING CORPORATION STAFF UNION

Versus

REGISTRAR OF TRADE UNIONS and others

Civil Petition No. S-327 of 2005, decided on 29th June, 2005.

Industrial Relations Ordinance (XCI of 2002)---

----S. 2(xxx)---Constitution of Pakistan (1973)., Art. 199---Constitutional petition---Junior Executives whether "workers and workmen"---Determination of---Petitioner through his Constitutional petition, had sought a verdict to declare that "Junior Executives" would come within meaning of "workers and workmen" as defined under S.2(xxx), of Industrial Relations Ordinance, 2002---Such was purely a matter of evidence to arrive at a proper conclusion as to whether or not "Junior Executives" would come within the meaning of "workers and workmen"---Disputed questions of fact could neither be entertained by High Court by means of Constitutional petition nor any evidence could be allowed to be adduced in support or against same under Constitutional jurisdiction of High Court---Petitioners were bound to approach proper forum constituted under relevant provisions of law to first seek a judicial verdict on status of said "Junior Executives"---In absence of such a competent judicial verdict regarding their status, nobody else was competent to say as to whether or not "Junior Executives" were entitled to cast a vote in referendum to elect Collective Bargaining Agent.

Ch. Muhammad Ashraf Khan, for Petitioner.

Ch. Rashid Ahmed for Respondent No.8.

Shafi Muhammad Palijo for Respondent No.1

Asghar Ali, Nawaz Ali Shah, Muhammad Ilyas, Naib Hussain are present on behalf of PNSC Workers Union.

Jalees Ahmed is respondent on behalf of PNSC Workers Alliance.

Date of hearing: 29th June, 2005.

2006 P L C 24

[Karachi High Court]

Before: Syed Zawwar Hussain Jaffery, J

MUJEEBUR REHMAN QAZI

Versus

ALLIED BANK OF PAKISTAN through President and 3 others

Labour Appeal No.38 of 2005 decided on 8th August, 2005.

Industrial Relations Ordinance (XXIII of 1969)---

----Ss. 2(xxviii), 25-A & 37(3)---Industrial Relations Ordinance (XCI of 2002), S.48---Dismissal from service---Grievance petition---Appeal---Employee was served with notice on certain allegations---Employee denied allegations and submitted reply---Enquiry was conducted against employee and at the close of enquiry, lenient view was suggested to be taken against employee, but without hearing him in person and without final show-cause notice, he was dismissed from service---Employee, proved to be a workman although he was promoted to Grade II Officer, but he was not an independent official, but was subordinate and answerable to his officers keeping second position in concerned branch of employer Bank---Employee being a workman, could maintain grievance petition before Labour Court---Labour Court was not justified to dismiss grievance petition of employee holding that he was not workman---All enquiry officers had exonerated employee from allegations/charges---Employee was given dismissal letter instead of letter of warning, though Enquiry Officer had proposed the same---Such was not only an act which had proved that employers were adamant on removal of employee from service, but other acts of employers also proved enmity with employee---Grievance petition filed by employee was within time---Employee was served with explanation after 131 days from knowledge of alleged misconduct of employee, which was clearly time ­barred---Enquiry was conducted against employee, after two years---Proper enquiry was not held against employee before dismissing his grievance petition, whereas employee was. not proved guilty in the inquiry---Circle Executive and Zonal Chief of the Employer Bank having recommended that lenient view might be taken against employee, his dismissal from service, was harsh, especially when no misconduct was proved against him, except some irregularities which were brought to the notice of President of Bank---Employer Bank had not sustained any loss at the hands of employee, but instead had earned Millions of Rupees---Order of dismissal from service passed against employee, was set aside and he was reinstated in service with back­ benefits---Lenient view having been recommended to be taken against employee, further increment was stopped for two years, which would meet the ends of justice.

Dost Muhammad Cotton Mills Ltd. Karachi v. Muhammad Abdul Ghani and another PLD 1975 Kar. 342; Allied Bank of Pakistan Ltd. v. Muhammad Humayum Khan and othersl988 SCMR 1664; National Bank of Pakistan v. Punjab Labour Court No.7 Gujranwala and others 1992 SCMR 1891; Emirates Bank International and another v. Rana Zahid Iqbal and 2 others 1999 CLC 302; National Bank of Pakistan v. Punjab Labour Court No.5 Faislabad and 2 others 1993 PLC 595; Habib Bank Limited, Karachi v. Sindh Labour Appellate Tribunal and another 1993 PLC 278; Muslim Commercial Bank Limited v. Mehmood Hussain Larik 2004 PLC 371; Muslim, Commercial Bank Limited v. Muhammad Khan Abro 2004 PLC 299; Muhammad Ali v. Sindh Labour Appellate Tribunal and 2 others 1985 PLC 403; Ganga R. Madhani v. Standard Bank Ltd. and others 1985 SCMR 1511; Appeal No. 107/2004 Dilshad Khan v. Allied Bank of Pakistan Ltd., and others and President United Bank Ltd. and others v. Iftikhar Hussain Khan and another 2003 PLC (C.S.) 497 ref.

Nadir Hussain Shah and Naseem Qamar for Appellant.

Shahid Anwar Bajwa for Respondents Nos.1 to 3.

Dates of hearing: 20th December, 2004 and 9th May, 2005.

2006 P L C 39

[Karachi High Court]

Before Zia Perwaz, J

ALLIED BANK OF PAKISTAN LIMITED through Attorneys and 2 others

Versus

MUHAMMAD BASHIR KHAN

Labour Appeal No.207 of 2004, decided on 2nd June, 2005.

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

----S. O. 15---Industrial Relations Ordinance (XCI or 2002), Ss.46 & 47(3)---Dismissal from service on ground of misconduct---Conversion of penalty of dismissal from service into postponement of promotion for three years---Shortage of huge amount was found in cash which was under direct supervision of respondent who was serving as cashier in the appellant Bank---Respondent, who was found guilty in inquiry conducted against him, was dismissed from service, but on filing appeal by respondent against order of his dismissal from service before Labour Court, penalty of dismissal from service was converted into postponement of his promotion for three years and respondent was directed to be reinstated in service---Being aggrieved by said order, appellant Bank had filed appeal before the High Court---Respondent who never reported to his superiors of any shortage in cash, had admitted his guilt and respondent, at no point of time raised any objection or contended that confession was obtained from him through undue influence or under duress or coercion---Manner in which respondent tried to deceive his superiors coupled with the amount involved, was not a routine matter it smelt of ulterior motives and dishonesty of the respondent---Act of respondent had confirmed that he misappropriated amount in dispute and then he tried to cover up matter by cheating his superiors---Respondent was not guilty of theft only, but was found guilty of fraud and dishonesty---Mere fact that amount embezzled was returned by respondent to Bank would not absolve him of misconduct committed by him---Employer Bank only had the direction to decide quantum of punishment keeping in view nature of Banking business and maintenance of financial discipline---Labour Court had no jurisdiction to interfere with exercise of such discretion of employer---Appellant Bank having acted in accordance with law and having not exceeded its limit, it was not open to Labour Court to set aside punishment awarded by appellant Bank and to substitute its own judgment---Guilt of respondent having been proved,: conversion of punishment by Labour Court was not tenable---Grievance notice addressed by respondent to Chairman, Review Committee, who was not appointing Authority, was also not valid ---Impugned order was set aside, in circumstances.

A.D.B.P. and another v. Akif Javed 2005 SCMR 752; President, United Bank Limited v. Iftikhar Hussain Khan and another 2003 PLC (C.S.) 497; 2002 SCMR 943; 1984 PLC 89; Sultan Ahmed v. National Bank of Pakistan and others 2003 PLC (C.S.) 1247 and Shamim Ahmed Kazmi v. Pakistan International Airlines Corporation and another 2005 SCMR 638 ref.

Shahid Anwar Bajwa for Appellant.

Islam Hussain for Respondent.

Date of hearing: 12th May, 2005.

2006 P L C 59

[Karachi High Court]

Before: Sarmad Jalal Osmany and Anwar Zaheer Jamali, JJ

ARMY WELFARE SUGAR MILLS, BADIN through General Manager

Versus

ARMY WELFARE SUGAR MILLS WORKERS UNION, BADIN through

General Secretary and 2 others

Constitutional petition No.S-294 of 2004, decided on 27th September, 2005.

Industrial Relations Ordinance (XCI of 2002)---

----Ss. 1(4)(b) & 12---Constitution of Pakistan (1973), Art.199---Constitutional petition---De-registration of Trade Union---Exclusion of establishment from applicability of Industrial Relations Ordinance, 2002---Constitutional petition had impugned order passed by Labour Court whereby complaint filed by Registrar of Trade Unions for de-registration of respondent union in establishment of petitioner Mills, was dismissed---Validity---In order to bring any establishment/installation within the meaning of S.1(4)(b) of Industrial Relations Ordinance, 2002, its objectives would have to be considered along with services/activities with which it was involved---Petitioner Mills was one of the projects of Pakistan Army Welfare Trust whose object as per its Memorandum of Association was to provide for welfare of its beneficiaries and the families of serving and retired Army Personnel including civilian employees of Armed Forces and their dependants---Towards that end additional objectives of the Trust were to open schools, to run schools, to award scholarships, to establish Boarding Houses, Hospitals, Nursing Homes, Libraries, Orphanages, etc.---Where income of petitioner was solely applied for benefit of serving and retired Army Personnel and their dependans, then it could be said that petitioner was an installation exclusively connected with Armed Forces of Pakistan within meaning of S.1(4)(b) of Industrial Relations Ordinance, 2002 which was excluded from its purview---Constitutional petition was allowed, impugned order was set aside and Registrar of Trade Unions, was directed to cancel registration of respondent Trade Union in petitioner Mills.

Canteen Stores Department Employees Welfare Union v. Canteen Stores Department 1983 SCMR 1101; Rehmat Gill v. Quetta Cantonment Board PLD 1983 SC 133; Controller Stationery and Forms v. Registrar of Trade Unions Sindh and others PLD 1991 SC 353; Conteen Stores Department v. Sindh Labour Court No.V 1977 PLC 421; Aman v. Federation of Pakistan, 1993 SCMR 1837; Divisional Superintendent, Pak, Railway v. NIRC 1997 PLC 307; Railways Worker's Union Regd v. Government of Pakistan PLD 1995 Lahore 333; Divisional Superintendent, P.R. v. National Industrial Relations Commission 2000 PLC 667; Manzoor Ahmad v. Commander H.Q. South Zone 1996 PLC 22; Din Muhammad v. Manager Army Stud Farm 1978 PLC 261; Abdul Rasheed v. Muhammad Shafi Bhatti 1979 PLC 148; Zainul Abidin v. Feroze Hussain 1998 PLC 32; Nisar Ahmed v. Federation of Pakistan 1999 SCMR 1338; Lahore Chamber of Commerce and Industry v. Registrar of Trade Unions 1997 PLC 295 and United Builders Associates v. Presiding Officer Punjab Labour Court 1976 PLC 855 ref.

Mahmood Abdul Ghani for Petitioners.

Chaudhry Muhammad Ashraf Khan for Respondent No.1.

Masood A. Noorani, Addl. A.G.

Dates of hearing: 5th & 11th October, 2004.

2006 P L C 71

[Karachi High Court]

Before Zia Perwaz, J

Messrs HINOPAK MOTORS LIMITED

Versus

COMMISSIONER, EMPLOYEES SOCIAL SECURITY INSTITUTION and another

M.A. No.37 of 2002, decided on 24th May, 2005.

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

----Ss. 1 (3), 2(8)(F), 20 & 64---Payment of contribution---Issuance of fresh notification---Appeal against order of Social Security Court---Appellant establishment, remained and continued as notified establishment even after the ownership changed hands---Appellant establishment having already been declared as a notified establishment, there was no need for issuance of a fresh notification under S.1(3) of Provincial Employees' Social Security Ordinance, 1965 as mere change of ownership of an establishment would not affect payment of contribution in respect of employees working therein when all other relevant factors remained unchanged---Subsequent change of ownership of establishment was also duly notified---Contention that since no notification had been issued under S.1(3) of Provincial Employees' Social Security Ordinance, 1965 after change of ownership, establishment was not liable to pay contribution, was repelled, in circumstances.

Agri Auto Industries Limited v. 'Employees' Old-Age Benefits Institution and others 1990 PLC 21; Commissioner, Sindh Employees Social Security Institution and another v. E.M. Oil Mills Industries Limited, Karachi and others 2002 SCMR 39; Jupiter Textile Mills Limited, Karachi v. Director, Hyderabad Directorate and another 1997 PLC 473; Kohinoor Chemical Company Limited and another v. Sindh Employees' Social Security Institution and another PLD 1977 SC 197; Treasurer of Charitable Endowments for Pakistan v. Central Board of Revenue and others PLD 1981 Kar. 357; Pir Muhammad v. Government of Sindh and others 1990 MLD 869; Pak Suzuki Company Limited v. Commissioner, Social Security Institution and another 2003 PLC 129; Pakistan Shipping Corporation v. Sindh Employees' Social Security Institution 1981 PLC 9 and Sindh Employees' Social Security Institution v. M/s. Al-Muhammadi Tiles Industry 1981 PLC 73 ref.

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

--Ss. 20 & 64---Payment of contribution---Appeal against order of Social Security Court---While in case of works executed or undertakings carried on by the contractor or licensee for the State, such contractor or licensee was employer, while in every other case it was the "owner" who was employer---Since appellant fell in the category of "owner", it was responsible for contribution in respect of secured employees, whether employed directly or through any other person---Even for those employees whose services were acquired by contractor and who had been working for the establishment, responsibility for contribution in respect thereof rested with the establishment.

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

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

----Ss. 1(3), 2(8)(F), 20 & 64---West Pakistan Land Revenue Act (XVII of 1967), Ss.80 & 81---Determination of amount of contribution payable---Recovery of amount as land revenue---Issuance of notice---Appeal to High Court---Contention of the establishment was that notice issued under S.81 of West Pakistan Land Revenue Act, 1967 was illegal as amount claimed therein had not been determined or adjudicated upon through any judicial????????? process---Validity---Appellant had acquired assets of previous company and appellant, after said acquisition, paid certain amount and continued making such payments for quite some time but thereafter stopped payment in respect of workers whose salaries exceeded Rs.1500 per month---Amount of contribution, payable by appellant, in circumstances was already determined and there was no need for its fresh determinations---Appellant stopped payment of contribution which it was making and it had not been shown that excess amount was demanded by the Institution.

Pir Muhammad v. Government of Sindh and others 1990 MLD 869 and Treasurer of Charitable Endowments for Pakistan v. Central Board of Revenue and others PLD 1965 SC 357 ref.

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

----Ss. 1(3), 2(8)(F)[As amended by Provincial Employees' Social Security (Amendment) Ordinance (XXIII of 1993)], 20 & 64---Payment of amount of contribution---Increase in salary---Appeal to High Court---If a person was employed initially with a salary exceeding Rs.1500 (the limit then applicable which had since been increased by amendment) employer was not liable to pay contribution in respect of such employee---Employer, however, was liable up to a sum of Rs.1500, when he was covered under net of the Social Security---Thereafter, in view of amendment, whereby wage limit at the relevant time was enhanced to Rs.3000 per month, employer would continue to remain under cover even after his wages exceeded Rs.1,500---Employer in such cases would pay 7% contribution up to maximum limit of wages and not for remaining amount drawn above the maximum limit---It was initial salary at which an employee had been appointed which would determine whether he was covered under Social Security net or not and subsequent increase in his salary would not take him out of Social Security net subject to said restriction.

?

Hinopak Motors Limited v. The Federation of Pakistan and others 2005 PLC 116 = 2005 CLC 452 ref.

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

--S. 64---Appeal to High Court---All questions of law raised by appellant as envisaged under S.64(2) of Provincial Employees' Social Security Ordinance, 1965, having already been decided by Superior Courts and no fresh ground for interference with impugned judgment on a point of law having been made out, appeal was dismissed.

Khalid Imran for Appellant.

Khalid Habibullah for Respondent.

Agha Zaffir for the State.

Date of hearing: 24th May, 2005.

2006 P L C 83

[Karachi High Court]

Before Sabihuddin Ahmad and Rahmat Hussain Jafferi, JJ

MOHAMMAD RASHEED KHAN

Versus

CHAIRMAN, SINDH LABOUR APPELLATE TRIBUNAL and another

Civil Petition No.D-1619 of 1999, heard on 1st April, 2005.

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

----S.O. 13---Industrial Relations Ordinance (XXIII of 1969), S.25-A---Constitution of Pakistan (1973), Art.199---Constitutional petition Retrenchment---Grievance petition---Petitioner along with others initially was appointed as general worker in Production Department in employer company, but subsequently was transferred to other department of the company and his services were duly confirmed as "general worker"---Later on, after about 5 years of service of petitioner, his services were terminated on the ground that company did not wish to retain department to which petitioner was transferred and that petitioner had become surplus---On filing grievance application against order of termination/ retrenchment of the employee, Labour Court set aside order of termination and reinstated petitioner with all back benefits, but Labour Appellate Tribunal, set aside the judgment of Labour Court---Validity---Petitioner belonged to category of `General worker' where initially he was appointed---Mere fact that at relevant time he was working in a department from where he was subsequently transferred, was inconsequential and on transfer he could not be classified as a separate category---Seniority of petitioner would be counted with general workers and not with department where he was transferred---By transfer to another department of the company, petitioner had not become junior and could not be retrenched as junior to others and he could not be retrenched while other general workers were retained---Termination of petitioner being not in accordance with requirement and procedure of Standing Order 13 of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, impugned order of Labour Appellate Tribunal, was set aside and that of Labour Court was restored.

Utility Stores Corporation v. Punjab Appellate Tribunal PLD 1987 SC 447 and Aijaz Hussain v. Hotel Jabees Limited 1990 PLC 643 ref.

M.A.K. Azmati for Petitioner.

Muhammad Humayun for the Respondent No.2.

Date of hearing: 1st April, 2005.

2006 P L C 88

[Karachi High Court]

Before Syed Zawwar Hussain Jafery, J

QASIM INTERNATIONAL CONTAINER TERMINAL AZAD EMPLOYEES UNION. REGD. through President/Joint Secretary

Versus

REGISTRAR OF TRADE UNIONS SINDH, GOVERNMENT OF SINDH, KARACHI and 2 others

Civil Petition (S) No.243 of 2002, decided on 23rd May, 2005.

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

--Ss. 8 & 22(1)---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Issuance of Collective Bargaining Agent Certificate---Petitioner union, being registered Trade Union, applied for Collective Bargaining Agent Certificate under S.22(1) of Industrial Relations Ordinance, 1969 along with membership list, but Registrar Trade Unions refused to issue said certificate on the ground that High Court appeal filed by rival union regarding its Collective Bargaining Agent Status in the Organization was pending adjudication in High Court---Petitioner had admitted pendency of High Court Appeal of the rival union---No direction, in circumstances could be passed for Registrar of Trade Unions to issue Collective Bargaining Agent Certificate under S.22(1) of Industrial Relations Ordinance, 1969 in favour of petitioner union till said High Court Appeal was finally decided---Constitutional petition by petitioner was premature as impugned order was not passed against petitioner---No relief could be granted to petitioner.

Muslim Commercial Bank Ltd. v. Registrar, Industry Wise Trade Union 2002 PLC 145 and Rice Export Corporation Labour Union v. Full Bench of the National Industrial Relations Commission 1992 PLC 125 ref.

Mohammad Shafiq Qureshi for Petitioner.

Abbas Ali, A.A.-G for Respondent No.1.

Mehmood Abdul Ghani for Respondent No.2.

Khalid Imran for Respondent No.3.

Chaudhry Ashraf Khan for Intervenor.

Date of hearing: 4th March, 2005.

2006 P L C 102

[Karachi High Court]

Before Rahmat Hussain Jafferi, J

FAROOQ AHMED

Versus

DELTA SHIPING PVT. LTD.

L.A. No.55 of 2003, decided on 19th October, 2005.

Industrial Relations Ordinance (XXIII of 1969)---

----Ss. 25-A & 37(3)---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.12(3)---Termination of service--Grievance petition---Employee was permanent with employer, but his services were terminated by serving him an order simply showing that services of employee were no longer required---Termination order did not disclose reasons for terminating services of employee and reason "service no longer .required" mentioned in termination letter, did not constitute reason---Termination letter was not in accordance with S.O.12(3) of West Pakistan Industrial and Commercial Employment (Standing orders) Ordinance; 1968 as it had been clearly stipulated therein that services of a workman would not be terminated nor a workman be removed, retrenched or dismissed from service, except by order in writing which would explicitly state reasons for such action---No written order having been produced by employer within the meaning of S.O.12(3) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, services of employee were illegally terminated---Impugned judgment was set aside and employee was reinstated in service with all back-benefits.

Ghulam Ahmed v. Sindh Labour Appellate Tribunal 1990 PLC (C.S.) 385; General Tyre and Rubber Company of Pakistan Limited, Karachi v. Sindh Labour Appellate Tribunal, Karachi 1992 PLC 1028; M/s.' Pakistan Herald Ltd., Karachi v. Victor Sunny 1996 PLC 66; Alley Nabi v. Chairman, Sindh Labour Court 1993 SCMR 322; M/s. Holiday Inn Crown Plaza v. Aftab Ahmed Siddiqui C.P.L.A. No.15-K of 2000, decided on 5-7-2000 and Muhammad Rauf v. M/s Makran Fisheries Ltd. 1981 SCMR 631 ref.

(b) Words and Phrases---

----'Explicit'---Meaning explained.

Nafees Osmani for Appellant.

Mahmood Abdul Ghani for Respondent.

Date of hearing: 27th September, 2005.

2006 P L C 111

[Karachi High Court]

Before Rahmat Hussain Jafferi, J

P.C. HOTEL KARACHI WORKERS UNION

Versus

M/s. PEARL CONTINENTAL HOTEL

C.Ps. Nos.466 of 2003, and 648 of 2004, decided on 19th October, 2005.

(a) Words and phrases---

----'Crime', 'Offence', 'Punish', 'Penal', defined and explained.

Proprietary Asson v. Attorney General AIR 1931 PC 94 and K.P.T. Progressive Workers' Union v. Registrar Trade Unions, 2000 PLC 376 ref.

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

----Ss. 10, 35, 62, 62-A & 64---Penalties and procedure---Cancellation of registration of Trade Union---Contravention of or failure to comply with provisions of Industrial Relations Ordinance, 1969 had been made penal under S.62 of said Ordinance---If penalty was provided under any other provisions for such a violation, then that penalty was required to be imposed and if no penalty was provided for such contravention or failure to comply with provisions, then offence was required to be punished with fine up to Rs.250---Violation or contravention of provisions of Industrial Relations Ordinance, 1969 and constitution of Trade Union etc. by Trade Union, in the present case had been made offence for which a specific penalty or punishment in the shape of cancellation of its registration had been provided---Said penalty or punishment was required to be awarded to Trade Union---Said acts of Trade Union, in circumstances would fall within scope of S. 62 of Industrial Relations Ordinance, 1969---Section 10 of Industrial Relations Ordinance, 1969 only provided penalty or punishment which was required to be awarded to said person---Both Ss.10 & 62 of Industrial Relations Ordinance, 1969 were to be read together---Once case fell under provisions of S.62 of Industrial Relations Ordinance, 1969 then contravention of provisions of said Ordinance, would become a non-cognizable offence as provided under S.62-A of said Ordinance and would be triable by Labour Court as provided under Ss.10, 64-A and 35(5)(c) of said Ordinance.

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

----S. 36---Trial of offence---Procedure and powers of Labour Court---Scope---Under provisions of S.36 of Industrial Relations Ordinance, 1969, for trial of offence, Labour Court was a Court of Magistrate of First Class with S.30, Cr.P.C. powers and was required to follow summary procedure for trial of such offences as provided under Chapter XXII of Cr.P.C.---Parties were not required to pay any court-fee for filing, exhibiting or recording any document in or obtaining any document from the Court---Under subsection (5) of S.36 of Industrial Relations Ordinance, 1969, parties had been allowed to resolve their dispute amicably---Court had been given powers to allow parties to withdraw the case, if it was satisfied that the parties had resolved the matter amicably and sufficient grounds existed for withdrawal of the case.

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

----Ss. 10, 36 & 62---Cancellation of registration of Trade Union---Violation and contravention of provisions of Industrial Relations Ordinance, 1969---Procedure to try offences--Section 10 of Industrial Relations Ordinance, 1969, firstly had provided various types of contravention or violations of provisions of Industrial Relations Ordinance, 1969; secondly had specified the persons i.e. Trade Union who had contravened such provisions; thirdly the penalty for such contraventions; and fourthly the authorities were empowered to punish or impose such penalty---By virtue of S.62 of Industrial Relations Ordinance, 1969, such violations and contraventions had been made punishable---Both Ss.10 & 62 of Industrial Relations Ordinance, 1969 were to be read together---Procedure to try such offence had been mentioned in S.36(1)(3) of Industrial Relations Ordinance, 1969 that was required to be followed to impose penalty provided under S.10 of said Ordinance, for offence punishable under S.62 of the Ordinance---Case could be withdrawn only on the fulfilment of conditions in subsection (5) of S.36 of Industrial Relations Ordinance, 1969.

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

----S. 10---Civil Procedure Code (V of 1908), Preamble---Cancellation of registration of Trade Union---Powers of Registrar Trade Unions and procedure for cancellation of Trade Union---Under provisions of subsection (3) of S.10 of Industrial Relations Ordinance, 1969, Registrar of Trade Unions had also been given powers to cancel registration of a Trade Union, but construction and wordings of said subsection had been couched in such a manner that only executive or administrative powers had been given to him to cancel registration of Trade Union---Registrar had no authority to cancel registration on the ground of violation or contravention of provisions of Industrial Relations Ordinance, 1969 or the constitution of Trade Union---Registrar, however, could exercise such powers only in case if Trade Union had dissolved itself or ceased to exist under its constitution or law---Registrar had not been given powers of trial, but he had been authorized to hold inquiry only---Law, however, permitted Registrar to hold inquiry as he would deem fit which should be conducted fairly, reasonably and in equitable manner fulfilling all formalities, conditions and requirements of natural justice by giving notice and hearing all concerned parties, before passing any order---If during inquiry, the Registrar found that any provisions of Industrial Relations Ordinance, 1969 or rules framed thereunder or the provision of constitution of Trade Union had been contravened or other grounds of S.10 of the Ordinance were attracted, then he would refer the matter to Labour Court by filing a complaint in the manner provided under subsection (1) of S.10 of the Ordinance, because his powers were very limited---Labour Court in the present case had adopted procedure provided under Civil Procedure Code, 1908 which was not authorized by the law to be followed in the proceedings for cancellation of registration of Trade Union---Proceedings conducted by Labour Court, in circumstances were illegal and ultra vires and illegalities committed by Labour Court were such that those could not be cured, and had violated the entire proceedings and trial of the case---All proceedings were set aside including impugned order---Case was remanded to Labour Court to proceed with the case afresh from the very start, i.e. from the stage of filing the complaint by Registrar Trade Unions.

Choudhry Rashid Ahmed for Petitioner (in C.P. No.466 of 2003).

Mehmood Abdul Ghani for Respondent (in C.P. No.466 of 2003).

Mehmood Abdul Ghani for Petitioner (in C.P. No.648 of 2003).

Choudhry Rashid Ahmed for Respondent (in C.P. No.648 of 2003).

Date of hearing: 23rd September, 2005.

2006 P L C 122

[Karachi High Court]

Before Rahmat Hussain Jafferi, J

MUNAWAR A. MALIK and another

Versus

ABDUL SALAM

Labour Revision Application No.22 of 2005, decided on 23rd September, 2005.

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

----Ss. 48(3) & 80(2)(b)---Repeal of Industrial Relations Ordinance, 1969---Effect on pending revision---Revisional powers which were available to Labour Appellate Tribunal under S.38(3-A) of repealed Industrial Relations Ordinance, 1969, had been made available to the High Court under S.48(3) of Industrial Relations Ordinance, 2002---Under S.80(2)(b) of Industrial Relations Ordinance, 2002, if proceedings were commenced under Industrial Relations Ordinance, 1969, then same were deemed to have commenced under Industrial Relations Ordinance, 2002---Once proceedings had commenced, then unless they were terminated or lapsed, would remain pending before the forum where those were commenced or deemed to have commenced---As pending proceedings before Labour Appellate Tribunal were deemed to have been commenced under relevant provision of S.48(3) of Industrial Relations Ordinance, 2002, by virtue of S.80(2)(b) of Slid Ordinance, those would stand commenced before High Court and would be deemed pending before High Court---Revisional powers were supervisory powers of superior authority over inferior authority and officers---Under Industrial Relations Ordinance, 1969 and Industrial Relations Ordinance, 2002, parties had not been provided any right to file revision application, but suo motu powers were given to the Labour Appellate Tribunal and High Court, respectively and such powers could be exercised on information received from any source including the parties---After receiving such information, if the Court found that proceedings were required to be initiated and admitted, the proceedings, then were between the higher forum and lower forum in which parties had nothing to do in the matter, except to point out irregularity, impropriety and illegality in proceedings or order of lower forum---No vested rights, of the parties in circumstances, being involved in initiating such proceedings, question of extinguishing said rights of parties in such proceedings, would not arise.

2004 PLC 400; Municipal Board, Kanpur v. Biharilal AIR 1960 All. 546; Riasat All v. Muhammad Jafar Khan 1991 SCMR 496 and Norwich Union F.I.S. Ltd. v. Muhammad Javed Iqbal 1986 SCMR 1071 ref.

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

----Ss. 48(3) & 80---Repeal of old enactment and promulgation of new enactment---Effect on pending proceedings---Transfer of cases---In several statutes when statutes were repealed, no provision had been made for transferring the cases pending before the Court under repealed enactments to the Courts created under new enactments---New Courts created under new enactment, however, would assume jurisdiction of said cases and try the same in accordance with law---Scheme of Legislature did not always provide a specific provision for transferring all the matters pending before the Courts created under repealed enactment to the newly created Courts established under new law, but intention of Legislature was to be examined in the light of newly created enactment---Intention of Legislature in the present case was not that revision applications pending before Labour Appellate Tribunal under repealed Industrial Relations Ordinance, 1969, should lapse, because it was in the knowledge of Legislature that said repealed Ordinance was not a temporary Statute---Proceedings would lapse or automatically terminate in case of expiry of temporary statutes---Temporary statute was a statute which would expire or lapse by afflux of time or on fulfilment of certain conditions---General rule in case of such statutes was that in the absence of special provisions to the contrary, proceedings which were taken under it would ipso facto terminate on the expiry of statute---Repealed Industrial Relations Ordinance, 1969, being not a temporary statute, would not expire or lapse by afflux of time, but it was replaced through another permanent Statute, namely Industrial Relations Ordinance, 2002---Proceedings which were taken under repealed Ordinance, would neither lapse nor ipso facto terminate, but would be deemed to be pending before High Court---Revision application in the present case, pending before Labour Appellate Tribunal, was deemed to be pending before High Court---Labour Court was not justified in proceeding with the case and such proceedings being illegal were set aside.

Muhammad Arif v. State 1993 SCMR 1589 ref.

(c) Words and phrases---

----"Lapse", defined and explained.

(d) Interpretation of statutes---

----Repeal of old permanent statute and promulgation of such new statute----Effect in pending cases exhaustively examined.

Muhammad Arif v. State 1993 SCMR 1589 ref.

Mehmood Abdul Ghani for Applicants.

M.A.K. Azmati for Respondent.

2006 P L C 135

[Karachi High Court]

Before Rahmat Hussain Jafferi, J

ABDUL RAUF and others

Versus

MUHAMMAD SHAFIQ TANERIES

L.As. Nos.152 and 153 of 2003, decided on 23rd September, 2005.

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

----Ss. 25-A & 65-B---Limitation Act (IX of 1908), S.5---Grievance petition against termination of service---Limitation---Non-service of grievance notice within prescribed period of three months---Delay, condonation of---Sufficient cause---Employees who were terminated from service, were required to serve grievance notices upon employers within three months from date of cause of action, but said notices were served on employers after expiry of said prescribed period---Grievance notices, in circumstances, were time-barred---Delay could be condoned under S.5 of Limitation Act, 1908 which had been made applicable under S.65-B of Industrial Relations Ordinance, 1969, but delay could be condoned only by showing sufficient cause---No evidence was led by employees to prove their assertions that they had delivered grievance notices at the factory gate within specified period of three months, except their own statements---Employees, under the law were required to furnish sufficient cause for condonation of delay---"Sufficient cause" would mean, the situation beyond the control of party, but cause shown by employees for delay was not such which could come within definition of sufficient cause---For filing grievance petition before Labour Court; one of prerequisites was service of grievance notice upon employers---As grievance notices had not been served upon employers within time as provided under S.25-A of Industrial Relations Ordinance, 1969, nor employees had furnished sufficient cause for condoning the delay in sending grievance notices, grievance petitions filed by them before Labour Court, were not maintainable---Grievance petitions, were rightly dismissed by Labour Court holding that grievance notices were not served within time as required by S.25-A of Industrial Relations Ordinance, 1969---In absence of any irregularity or illegality in decision of Labour Court, same could not be interfered with.

Khadija Begum v. Yasmin PLD 2001 SC 355; Prince Glass Works Ltd v. Jafar 1980 PLC 373 and S.W.H. Jafferi v. Muhammad Salim Shaikh 1980 LLC 375 ref.

Muhammad Shakir Qureshi for Appellants.

Sharif Ahmed Malik for Respondent.

Date of hearing: 16th September, 2005.

2006 P L C 140

[Karachi High Court]

Before Rahmat Hussain Jafferi, J

M/S KARACHI MARRIOTT HOTEL

Versus

ATTA HUSSAIN

L.R.A. No.30 of 2004, decided on 21st September, 2005.

Industrial Relations Ordinance (XCI of 2002)---

----S. 48(3)---Revisional jurisdiction of High Court---Scope---High Court had been empowered to exercise revisional powers on its own motion only---Parties had not been given power to invoke revisional jurisdiction of the Court---Parties, in circumstances could not file revision application as a matter of right---Suo motu revisional powers, however, could be exercised on information received from any source---No restriction had been imposed upon the Court to receive information from any person---Information could be supplied by parties or by any third person or through print or electronic media or by examining the orders and related matters of the Labour Court---Revisional powers were very wide powers as the Court had been empowered to pass any order in relation to the matter as it would think fit to meet the ends of justice---No restriction could be imposed upon the Court on the source of information which could be received from anybody including the parties or through any source---Once information was received and the Court found that information was such where correctness, legality or propriety of the order or proceedings of Labour Court could be examined, then information could be entertained to exercise suo motu powers.

Norwich Union F.I.S. Ltd. v. Muhammad Javed Iqbal 1986 SCMR 1071 ref.

Muhammad Humayun for Applicant.

Ashraf Hussain Rizvi for Respondent.

Date of hearing: 12th September, 2005.

2006 P L C 145

[Karachi High Court]

Before Sabihuddin Ahmed CJ and Khilji Arif Hussain, J

PAKISTAN STEEL MILLS CORPORATION through Incharge Law Department

Versus

NATIONAL INDUSTRIAL RELATIONS COMMISSION and another

Constitutional Petition 'No.631 of 2003, decided on 27th September, 2005.

Industrial Relations Ordinance (XCI of 2002)---

----Ss. 49(4-a & e) & 63---Service Tribunal Act (LXX of 1973), S.2-A---Constitution of Pakistan (1973), Art.199---Constitutional petition---Unfair labour practice by employers---Jurisdiction of National Industrial Relations Commission---Scope---Petitioner which was a company owned and controlled by Federal Ministry of Industries and Production, had questioned the order of status quo passed by National Industrial Relations Commission as corum non judice, bad in the eye of law, null and void and without lawful authority---Jurisdiction of National Industrial Relations Commission, could be invoked when from the charge-sheet itself or from any other material on record prima facie it could be established that alleged action had come within the definition of unfair labour practice as defined under S.63 of Industrial Relations Ordinance, 2002---None of the allegations in charge-sheet against employee had satisfied the condition laid down in S.63 of Industrial Relations Ordinance, 2002 to term the same as unfair labour practice---Exercise of jurisdiction by National Industrial Relations Commission in presence of ouster of jurisdiction of Court/Tribunal, other than Service Tribunal under S.2-A of Service Tribunals Act, 1973, should be construed strictly and it was, for National Industrial Relations Commission to first address the issue of jurisdiction and then pass order as deemed fit---High Court allowing constitutional petition set aside impugned order of status quo Passed by National Industrial Relations Commission and proceedings Pending before said Commission were declared to be illegal and without lawful authority---Petitioner employer could proceed with inquiry pending against employee strictly in accordance with law.

H.B.F.C. v. Member NIRC 2005 PLC 1; I.A. Sherwani v. Government of Pakistan and others 1991 SCMR 1041 and Sui Southern Gas Company Ltd. v. NIRC and 5 others PLD (C.S.) 116 ref.

S. Amanullah Agha for Petitioner.

Ch. Rashid Ahmed for Respondent No.2.

Date of hearing: 8th March, 2005.

2006 P L C 169

[Karachi High Court]

Before Rahmat Hussain Jafferi, J

SHAHEEN AIR PORT SERVICES

Versus

HAIDER ABBAS RIZVI

Labour Appeal No.378 of 2004, decided on 10th September, 2005.

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

----S. O. 15(e)---Industrial Relations Ordinance (XCI of 2002), Ss.46 & 48---Termination of service---Grievance petition---Appeal to High Court---Employee, who could not attend his duties for 3 days due to sickness, his service was terminated after issuing him show-cause notice and holding inquiry against him on allegation of misconduct---On filing grievance petition against order of termination of service, Labour Court, accepting grievance petition ordered reinstatement of employee---Employers, dissatisfied with judgment of Labour Court had filed appeal before High Court---Employers considered absence of three days as misconduct--Employers referred to act of employee committed about 10 years back when employee remained absent for some days and on basis of said act, against which no action was taken against employee, employers had alleged that employee had fallen in the definition of `habitual' as given in S.O. 15(e) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and that case of employee did come within scope of 'misconduct'-Clause (e) of Standing Order 15 of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 was divided into two parts: First part dealt with habitual absence and second part dealt with absence of 10 days without leave---Case of employee who remained absent only for three days, did not fall within second clause---Act of employee which took place about 10 years back and for which no action was taken against him by employers, would not form habit of employee and same was out of scope of definition of "habitual"---Case of employee would not come within scope of "misconduct"---Finding of Labour Court, did not require any interference.

(b) Words and phrases---

----`Habitual', meaning and scope---Habit would imply a tendency or capacity resulting from repetition of same acts or indulgence therein---It would imply frequent indulgence in such acts containing depravity of character---"Habitual" in circumstances would imply a frequent practice or use and same is always used in case of persons who were doing persistently same act.

Qamar Abbas for Appellants.

M.A.K. Azmati for Respondent.

Date of hearing: 6th September, 2005.

2006 P L C 186

[Karachi High Court]

Before Ata-ur-Rehman and S. Ali Aslam Jafri, JJ

K.E.S.C. LABOUR UNION through President another

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Law, Justice and Human Rights, Islamabad and 2 others

Constitutional Petition No.D-1301 of 2003, decided on 20th June, 2005.

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

----S. 52---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Scope---Constitutional petition was moved on the ground that against the order of Single Member of National Industrial Relations Commission, an appeal was provided under S.52 of Industrial Relations Ordinance, 2002, but since no such appeal had been filed by petitioners, Constitutional petition was liable to be dismissed on that ground alone---Validity---No doubt, if remedy provided under law was not availed, discretion to exercise under Art. 199 of the Constitution could not be prayed for by aggrieved person, but that rule did not appear to be absolute---High Court, in appropriate cases was not precluded from exercising its jurisdiction and entertaining constitutional petitions directly, even if an alternate remedy despite being available, had not been availed by an aggrieved person---Interference by High Court in a constitutional petition was possible, if impugned order sought to be challenged was, culpable, illegal, mala fide and beyond jurisdiction, irrespective of the fact that alternate statutory remedy was available to aggrieved party---Impugned order, which was based on misconception of law, if allowed to remain in filed on the plea that alternate remedy had not been exhausted by petitioner, would amount to perpetuate a wrong---Impugned order was set aside accordingly.

Collector of Customs v. New Electronic (Pvt.) Ltd. and others PLD 1994 SC 363; Civil Aviation Authority Islamabad and others v. Union of Civil Aviation Employees and another PLD 1997 SC 781; Arif Yousuf v. Bahadur Ali Member NIRC and others 2002 PLC 79; Riaz Ahmed Malik v. Administrator, Municipal Corporation Bahawalpur and others 2004 PLC 126; Karachi Port Trust Labour Union v. Member NIRC 1997 PLC 470; H.M. Saya and Co. v. Wazir Ali Industries Limited PLD 1969 SC 65; Nagina Silk Mills, Lyallpur v. The Incom Tax Officer and another PLD 1963 SC 322; Standard Chartered V. K.F.S.C. PLD 2001 Kar. 344; Water and Power Development Authority and another v. M.N. Steel Re-Rolling Mills and 23 others 1999 SCMR 494; The Murree Brewery Co. Ltd. v. Pakistan and others PLD 1972 SC 279; Adamji Insurance Co. v. Pakistan and other 1993 SCMR 1798; PIAC v. Chairman, Punjab Labour Appellate Tribunal PLD 1979 Lah. 415; Wall Muhammad and others v. Sakhi Muhammad and others PLD 1974 SC 106 ref.

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

----Preamble & S. 80---Repeal of Industrial Relations Ordinance, (XXIII of 1979)---Industrial Relations Ordinance, XXIII of 1969 as amended through amending Industrial Relations (Amendment) Ordinance (VIII of 1999) and Industrial Relations (Second Amendment) Ordinance (XVI of 1999), had shown that it would not apply to any person employed in categories mentioned therein---Despite absence of any specific provision of repeal relating to two amending Ordinances VIII and XVI of 1999, intention of Legislature was clear that after repeal of Ordinance, 1969, new Industrial Relations Ordinance, 2002 had been promulgated, in order to amend, consolidate and rationalize law relating to formation of trade unions, regulation and improvement of relations between employers and workmen and avoidance and settlement of disputes arising between them---By no stretch of imagination it could be presumed that parent Ordinance though repealed, amendments made in 1999 which in fact merged into said parent Ordinance, had survived in isolation.

Idrees Ahmed and others v. Hafiz Fida Ahmed Khan and others PLD 1985 SC 376 ref.

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

----Art.199---Constitutional petition---Scope---Alternate remedy not availed---Effect---High Court, in appropriate cases was not precluded from exercising its jurisdiction and entertaining constitutional petitions directly even if an alternate remedy despite being available, had not been availed by an aggrieved person---Interference by 'High Court in a constitutional petition was possible, if impugned order sought to be challenged was, culpable, illegal, mala fide and beyond jurisdiction, irrespective of the fact that alternate statutory remedy was available to aggrieved party---Impugned order which was based on misconception of law, if allowed to remain in field on the plea that alternate remedy had not been exhausted by petitioner, would amount to perpetuate a wrong.

Rasheed A. Razvi for petitioners.

Faisal Arab, Standing Counsel for Respondents Nos.1 and 3.

Shahid Anwer Bajwa for Respondent No.2.

Dates of hearing: 27th April, 18th and 20th May, 2005.

2006 P L C 239

[Karachi High Court]

Before Zia Perwaz, J

MOONLITE "(PAK)" MAZDOOR UNION, KARACHI

Versus

REGISTRAR OF TRADE UNION, GOVERNEMNT OF SINDH

L.A. No.330 of 2004, decided on 25th May, 2005.

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

----Ss. 47(3) & 48(3)---Appellate and revisional jurisdiction of High Court---Powers conferred on High Court under S.48(3) of Industrial Relations Ordinance, 2002, were distinct from the remedies available to the parties under S.47(3) of said Ordinance, which had provided for an appeal to High Court by any party aggrieved by an award or decision under subsection (1) thereof---Provisions of subsection (3) of S.48 of Industrial Relations Ordinance, 2002 specifically mentioned exercise of suo motu powers.

Messrs General Textile Limited v. Sindh Labour Appellate Tribunal PLD 1979 Kar. 725 ref.

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

-----Ss. 6(a)(iv), 7(2)(b) & 8(1)---Registration of trade union---Requirements---Mandatory requirement was that every application for registration of a trade union would accompany a statement of its total paid membership and that membership must not be less than one-fifth of the total workmen employed in such establishment---Application seeking registration of union in the present case was moved accompanied by a Membership list of 81 workers who also attended general meeting---Total number of workers working in the establishment at relevant time was 453 workers, which did not qualify one-fifth membership as required under provisions of S.7(2)(b) of Industrial Relations Ordinance, 1969---Application for registration of trade union, was rightly rejected, in circumstances---Order rejecting application could not be said to be a non-speaking order---Appeal against said order was dismissed.

S.G. Fibre Employees' Union v. Registrar of Trade Unions and others 2003 PLC 58; National Beverage Employees' Union v. Registrar, Trade Unions and others 1986 PLC 533; Abdul Majid Shaida v. Mst. Noor Jehan and another PLD 1967 SC 221 and Jannat Textile Mills Limited v. Sindh Labour Appellate Tribunal PLD 1979 Kar. 725 ref.

(c) Administration of justice--

--When an act was required to be done in a particular manner under any law, that act should be done in that manner or not at all.

Shoa-un-Nabi for Appellant.

Nemo for Respondent.

Ashraf Hussain Rizvi for Intervenor.

Date of hearing: 5th May, 2005.

2006 P L C 247

[Karachi High Court]

Before Muhammad Moosa K. Leghari, J

MUSLIM COMMERCIAL BANK LTD.

Versus

GHULAM MUSTAFA CHANNA

Appeal No. L.A. 189 of 2004, decided on 3rd May, 2005.

Industrial Relations Ordinance (XXIII of 1969)---

---S. 25-A---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.0.15---Dismissal from service---Grievance petition---Territorial jurisdiction of Labour Court---Employee was dismissed from service after charge-sheeting him and holding inquiry against him on allegation of misconduct---When the alleged misconduct was committed by employee, he was posted at "N"---Charge-sheet was served upon employee by Regional Manager "N" and explanation/reply to charge-sheet was submitted by employee to Regional Manager "N"---Letter of inquiry was issued by Regional Manager at "N" and inquiry was also conducted there---Final dismissal order was also communicated to employee by Regional Manager---Since cause of action arose to employee at "N" and entire proceedings were taken at "N" only the Labour Court having territorial jurisdiction over "H" District, would be competent to adjudicate matter and Labour Court at "N" would have "N" no territorial jurisdiction to adjudicate the matter---Impugned order passed by Labour Court at "H", was set aside--Grievance petition of employee would be returned to employee for presenting same before Labour Court having territorial jurisdiction.

1995 PLC 57 ref.

Mehmood Abdul Ghani for Appellant.

Soulat Rizvi for Respondent.

Masood A. Noorani, A.A.-G. on Court Notice.

Date of hearing: 3rd May, 2005.

2006 P L C 263

[Karachi High Court]

Before Zia Perwaz and Sajjad Ali Shah, JJ

MUSLIM EDUCATIONAL SOCIETY (Regd.) through Treasurer

Versus

GOVERNMENT OF SINDH through Secretary Labour and Corporate, Karachi and 2 others

Constitution No.D-648 of 2005, decided on 19th January, 2006.

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

----Ss. 2(11) & 20---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Demand of amount of contribution---Determination of quantum of amount---`Establishment'---Definition---Petitioner was a registered Society which was running an educational institution---Department called upon the petitioner for demand of amount of contribution---Petitioner had resisted the demand contending that "establishment" as defined under S.2(11) of Provincial Employees' Social Security Ordinance, 1965, did not cover the school being run by the petitioner---Validity---When definition was provided for by a statute, same had to be considered---Question of determination of quantum of amount of contribution, called for determination of facts for which remedy had been provided by .Provincial Employees' Social Security Ordinance, 1965, itself and Authority constituted therein was fully competent to carry on such an exercise---Constitutional petition being not ' maintainable, was dismissed.

Don Bosco High School Empress Road, Lahore v. Director, Social Security 2005 PLC 110; St. Bonaventure's Boys High Schools Tilak Incline and Qasimabad Hyderabad v. Province of Sindh 2004 PLC 381; Multi Line Associates v. Ardeshir Cowasjee and others 1995 SC 423 and Mst. Kaniz Fatima v. Muhammad Salim 2001 SCMR 1493 ref.

Ch. Rasheed Ahmed for Petitioner.

Khalid Habibullah and Muhammad Sarwar Khan, Addl. A,.-G. for Respondents.

Date of hearing: 19th January, 2006.

2006 P L C 269

[Karachi High Court]

Before Rehmat Hussain Jafferi, J

PEARL CONTINENTAL HOTEL, KARACHI

Versus

MUHAMMAD YASIN

Labour Revision Application No.27 of 2005, decided on 30th September, 2005.

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

----S. 48(3)---Suo motu revisional jurisdiction of High Court---Scope---Limitation---High Court had been given suo motu powers under revisional jurisdiction and in exercise of such powers, no time limit had been fixed---Such powers could be exercised at any time and limitation would not come in the way of the Court to examine the proceedings or orders passed by the Labour Court, provided it fostered the cause of justice---Order should not be passed to the detriment of any party without issuing notice or hearing said party.

Government of N.-W.F.P. v. Abdul Malik, 1994 SCMR 833 and Pakistan Engineering Co. Ltd. v. Faisal Baig, 1992 SCMR 2166 ref.

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

----Ss. 2(xiii), 35(5) & 43---Industrial dispute---Jurisdiction of Labour Court---All the terms and conditions of the employment of the workman, including the disciplinary matters comprising removal, dismissal, termination from employment of such workman, were included in the definition of 'industrial dispute'---Industrial dispute could arise; (i) between employers and employer; (ii) between employers and workmen; and (iii) between workmen and workmen---Dispute or difference had to be concerned with the employment or non-employment or the terms of employment or the conditions of work of any person---Such dispute or difference however, would not be in respect of enforcement of any right guaranteed or secured to worker by or under any law, other than Industrial Relations Ordinance, 1969 or any award or settlement for the time being in force---Collective Bargaining Agent did not find any place in the definition of "industrial dispute" under S.2(xiii) of Industrial Relations Ordinance, 1969---Definition of "industrial despute" did not apply to dispute or difference ,between Collective Bargaining Agent and the employer---However, because of deeming provisions of S.43 of Industrial Relations Ordinance, 1969, dispute between Collective Bargaining Agent and employer had been included within definition of 'industrial dispute' provided dispute had been raised in the prescribed manner i.e. by negotiation, conciliation, arbitration and adjudication by Labour Court, etc.---Labour Court, apart from having criminal and other jurisdiction, was required to adjudicate and determine an industrial dispute, which had been referred to or brought before it under Industrial Relations Ordinance, 1969.

1991 SCMR 2027 and 1990 SCMR 790 ref.

(c) Words and phrases---

----'Employment' and 'service', have similar meaning.

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

----S. 2(xiii) & 25-A---Redressal of individual grievance---Provisions of S.25-A of Industrial Relations Ordinance, 1969, were substantive and procedural in nature in respect of redress of grievance of worker concerning any of his right guaranteed or secured to him by or under any law or any award or settlement for the time being in force---Industrial dispute as defined under S.2(xiii) of Industrial Relations Ordinance, 1969, would not include enforcement of any right guaranteed or secured to worker by or under any law, other than Industrial Relations Ordinance, 1969; however a worker under said section, could bring his grievance in respect of any right guaranteed or secured to him by or under any law or award or settlement for the time being in force.

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

----Ss. 2(viii), (xiii), (xxviii) & 25-A---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, (VI of 1968), S.2(c)(i)-S.O.12(3)---Termination of service---Grievance petition---If services of workman as defined in S.2(i) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, were terminated or he was removed, retrenched or discharged or dismissed from service, then he could also take the matter to the Labour Court under S.25-A of Industrial Relations Ordinance, 1969 for redress of his grievance---Two types of workmen, in circumstances could take the grievance to the Labour Court falling within definition of S.O.12(3) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and under S.25-A Industrial Relations Ordinance, 1969---Under S.2(xiii) of Industrial Relations Ordinance, 1969, industrial dispute between the workman and the employer or other persons mentioned therein, could be taken to the Labour Court.

?

1996 PLC 621; 1980 PLC 373; Durga Thathera v. Narain Thathera, 54 A 220, 1931 All 597; R.V. Surry [Northeastern area] Assistant Committee's case (1948) 1 K.B. 29; Director of Public Prosecutions v. Schildkamp. (1969) 3 All ER 1640; Balraj Kunwar v. Jagatpal Singh, ILR 26 Al 1 393; C.I.T. v. Ahmed Bhai Umar Bhai and Co. AIR 1950 SC 134; Emperor v. Sadashiv AIR 1947 PC 82 and Nalinakhya Bysack v. Shyam Sundar Haddar, AIR 1953 SC 148 ref.

(f) Words and phrases---

----'Workman', 'Employer' and 'Worker'---Meaning and connotation defined and explained.

Abdul Razzaq v. Ihsan Sons Ltd. 1992 PLC 424 ref.

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

----S.25-A---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.0.12---Termination of services---Joint grievance petition---Maintainably---Employees who were serving as Security guards, their services were terminated on ground of overall re-organization to improve the effectiveness of their Security Operation---All 97 employees, in the present case, filed joint grievance petitions against termination of their services which were objected to by employers---Labour Court dismissed said grievance petitions holding that joint grievance petitions were not maintainable---Employees, however were allowed to file separate petitions and employees filed separate petitions to which objection were raised on part of employers that said petitions were barred by time---Labour Court rejected said objection and decided case observing that separate petitions were filed in continuation of earlier petitions which were filed within time---Employers had filed revision against said judgment of Labour Court---Separate termination orders were served upon each employee and ground of termination of services was also one and the same---Employees had common grievance on the ground of their termination mentioned in termination letters---Case of employees, in circumstances fell within the scope of subsection (10) of S.25-A of Industrial Relations Ordinance, 1969 and common questions of law and facts were involved in the case---Grievance petition could be filed jointly by several workers for the purpose of S.25-A of Industrial Relations Ordinance, 1969 subject to the condition, that workers would have common grievance arising out of a common cause of action and it was also in the interest of justice that when conditions mentioned in subsection (10) of S.25-A of Industrial Relations Ordinance, 1969, were fulfilled then a joint application would be more beneficial to workers---Order dismissing grievance petitions of employees, was set aside holding same to be illegal with direction that petitions filed by employees individually be returned to them as they had signed joint petitions and their grievances would be decided in joint petitions which were deemed to be pending before Labour Court.

Prince Glassworks Ltd. v. Jaffar, 1980 PLC 373; Azam Khan v. Director, Pakistan Terminal Operators, 1996 PLC 621; 17 C 580 PC; AIR 1951 Pat. 323 and 1985 CLC 747 ref.

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

----O. I, R.8---Parties to suit---Joining of several persons in a matter---Several persons could be joined in a matter if the matter was such that if plaintiffs brought separate suits any common question of law or fact would arise, then all persons could be joined together.

Ghulam Qadir v. Member Board of Revenue 1988 SCMR 1311 ref.

Major Rtd. Amir Gul and Abdul Ghani for Applicant. Choudhary Rasheed Ahmed for Respondents.

Date of hearing: 20th September, 2005.

2006 P L C 288

[Karachi High Court]

Before Sabihuddin Ahmed, CJ and Muhammad Ather Saeed, J

PAKISTAN SERVICES LIMITED

Versus

FULL BENCH, NATIONAL INDUSTRIAL RELATIONS COMMISSION and otters

Civil Petition No.D-1090 of 2005, heard on 25th October, 2005.

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

----Ss. 7 & 8---Registration of Trade Union---Matter of registration of Trade Union was one between Trade Union applying for registration and the Registrar of Trade Unions and employer and others had no concern in the matter---Employer could not claim any locus standi to challenge the decision of the Registrar of Trade, Unions merely on the ground that no opportunity of hearing was provided to it or an objection raised by it before Registrar of Trade Unions was not considered before such decision.

Essa Cement Industries Workers Union v. Registrar of Trade Unions, Hyderabad Region and 4 others 1998 SCMR 1964 ref.

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

----Ss. 7, 8, 22-FF & 22-F---Constitution of Pakistan (1973), Art.199---Constitutional petition---Registration of industry-wise Trade Union---Petitioner/employer, objecting registration of union, had contended that initially order of registration of Trade Union, was granted without issuance of notice to petitioner/employer and order granting such registration was not speaking order, but had been passed by Registrar Trade Unions without applying his mind---Contention of petitioner/ employer regarding alleged non-issuance of notice, could not be sustained, in view of the fact that petitioner had conceded that though a notice was issued to petitioner, but it was at incomplete address and that no separate notices were issued to other organizations of the petitioner---Said Organizations, which were owned by petitioner had not been impleaded as petitioners in the constitutional petition---Even otherwise, question whether a notice was issued to employer was a question of fact and finding on that point had already been given by Appellate authorities that a notice was issued to employer for attending registration proceedings, but employer was called absent and registration proceedings were finalized in its absence---Such being a finding of fact, could not be adjudicated by the High Court in constitutional jurisdiction---Impugned order was a speaking order and `requirements of S.7 of Industrial Relations Ordinance, 1969 were met with when Registrar of Trade Union had deputed his subordinate to hold an inquiry, who had reported that requirements had been met as Registrar after being satisfied had granted registration.

Messrs Forbes Campbell & Co. (Pvt.) Ltd. v. Registrar of Trade Unions and another 1999 PLC 312; Pakistan Engineering Council v. Registrar, Trade Unions and another 1998 PLC 477; The Pakistan Telecom Company Lions Staff Union v. The National Industrial Relations Commission 1999 PLC 320; Ghee Corporation of Pakistan v. Registrar, Trade Unions and another 1991 PLC `207; Idara-e-Kissan v. Registrar of Trade Union, Lahore and another 1995 PLC 134; Habib Sugar Mills Ltd. v. Registrar of Trade Unions, Government of Sindh and another 2001 PLC 441; S.G. Fibre Employees' Union v. Registrar of Trade Unions, Government of Sindh and 5 others 2003 PLC 58; Messrs Hinopak Motors Limited v. Chairman Sindh Labour Appellate Tribunal and others 2000 PLC 89; Messrs Tank Steel and Re-Rolling Mills (Pvt.) Ltd. Dera Ismail Khan and others PLD 1996 SC 77. Ranjha and others v. Mst., Zahrai Begum and others 2004 SCMR 734; Essa Cement Industries Workers' Union v. Registrar of Trade Unions, Hyderabad Region and 4 others 1998 SCMR 1964; Messrs Hakimsons Chemical Industries (Pvt.) Ltd. v. The Registrar of Trade Unions (West) Government of Sindh, Karachi and another 1999 SCMR 235; Telegraph Stores and Workshop Workmen Union, Kotri v. Registrar, Trade Union, Hyderabad Region Hyderabad and 4 others 1995 PLC 47 and Messrs Plasticrafters (Pvt.) Ltd v. Registrar of Trade Unions and 3 others 1999 PLC 263 ref.

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

----Ss. 2(XXIX) & 80(2)(a)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Repeal of Industrial Relations Ordinance, 1969 and promulgation of new Industrial Relations Ordinance, 2002---Registration of Trade Union---Effect on pending appeal---Petitioner/employer had contended that since during the pendency of appeal before National Industrial Relations Commission, Industrial Relations Ordinance, 1969 was repealed and new Industrial Relations Ordinance, 2002 was promulgated in its place, Appellate Authority should have taken notice of promulgation of new Ordinance; and should have considered whether registration of Trade Union fell within ambit of S.2(XXIX) of new Ordinance---Validity---Appeal was a continuation of original proceedings and the Court could take notice of change/amendment in law while deciding the appeals, but in the present case said principle would not be applicable, not only because of provisions of sub-clause (a) of clause (2) of S.80 of Industrial Relations Ordinance, 2002, but also because respondent/Federation Trade Union, had been conclusively registered before coming into force new Industrial Relations Ordinance, 2002 and even restrictive order passed earlier was withdrawn before promulgation of said new Ordinance---Respondent, in circumstances had acquired a vested right, which could not have been taken away by applying provisions of said new Ordinance, retrospectively as no intention had been expressed in the new Ordinance to apply its provisions retrospectively---Registration of respondent Trade Union could not be cancelled on that ground.

Malik Gul Hassan and Co. and 5 others v. Allied Bank of Pakistan 1996 SCMR 237 and 'Trinity Private School and another v. Mumtaz H. Hidayatullah and others 1997 SCMR 494 ref.

Mehmood A. Ghani for Petitioner.

Choudhry Rasheed Ahmed for Respondent No.3.

Sarwar Khan, Additional A.-G.Sindh. for Respondent.

Syed Tariq Ali, Federal Counsel on Court Notice.

Date of hearing: 25th October, 2005.

2006 P L C 298

[Karachi High Court]

Before Muhammad Moosa K. Leghari, J

Messrs S.G. FIBER LTD.

Versus

AUTHORITY UNDER THE PAYMENT OF WAGES and another

Constitutional Petitions Nos.175 and 176 of 2005, decided on 27th January, 2006.

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

----Ss. 3, 4 & 5---Constitution of Pakistan (1973), Art.199---Constitutional petition---Claims out of deductions from wages or delay in payment of wages---Authority under Payment of Wages Act, 1936 granted claim of employee besides saddling employer with penalty at the rate of 10 times of delayed/deducted wages against which petitioner had filed ,constitutional petition---Remedy of appeal having been provided under S.17 of Payment of Wages Act, 1936, without exhausting such remedy, petitioner could not invoke constitutional jurisdiction of High Court---Petitioner had conceded availability of alternate remedy, but had submitted that as petitioner had directly approached High Court under wrong advice of counsel, such observations be given in the interest of justice which would help petitioner to overcome bar ,of prescribed limitation of appeal before Labour Court---Such observation having not been approved by Supreme Court; petitions were dismissed.

2003 PLC 395 ref.

Choudhry Rasheed Ahmed for Petitioner.

Rafiullah for Respondent No.2.

Date of hearing: 27th January, 2006.

2006 P L C 301

[Karachi High Court]

Before Muhammad Moosa K. Leghari, J

MUSHTAQ AHMED

Versus

HABIB OIL MILLS (PVT.) LTD.

Labour Appeal No.231 of 2003, decided on 25th January, 2006.

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

----Ss. 46 & 48---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.0.15-Dismissal from service---Grievance petition---Appeal to High Court---Appellant, who was dismissed from service, had claimed that he was not served with order of dismissal and that his dismissal order was violative of law---Grievance petition filed by appellant against said order, was dismissed solely on the ground that it was barred by time---Appellant had specifically asserted that he received letter on 19-1-1998, whereby he came to know that he was dismissed from service and that prior to that he did not receive any other order in that regard---Grievance petition in view of such positive pleading on the part of appellant, could not be assumed to have been filed within specified period from the date of his knowledge was prima facie barred by time---Matter was a question of fact which needed proper inquiry and necessitated recording of evidence, but none of the parties was allowed to lead evidence---No justification existed for the Labour Court to conclude that letter of dismissal was in fact, sent or served on appellant---Dismissal of grievance petition by the Labour Court summarily, was violative of law, in circumstances---Allowing appeal order of Labour Court was set aside and case was remanded to be decided afresh in accordance with law.

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

----S. 46---Grievance petition---Grievance petition could not be equated with a civil suit---Neither all the rigours of Code of Civil Procedure, 1908 could be applied to the labour cases, nor all the clauses of Rule 11 of Order VII, C.P.C. could be enforced---Dismissal of grievance petition summarily would be governed by Clause (d) of Order VII, R.11, C.P.C.

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

----O. VII, R.11(d)---Rejection of plaint---Clause (d) of O.VII, R.11, C.P.C.-was a penal provision- -All penal provisions, had to be construed strictly and their scope should not be extended beyond the necessary intendment---Court was bound to reject a plaint where suit appeared to be prima facie, barred by law, from a perusal of the statement in the plaint, wherein no further inquiry was needed.

Ashraf Hussain Rizvi for Appellant.

Muhammad Humayoon for Respondent.

Date of hearing: 25th January, 2006.

2006 P L C 304

[Karachi High Court]

Before Muhammad Moosa K. Laghari, J

MUHAMMAD SALEEM NAGANI

Versus

M.C.B. LTD. and others

Labour Appeal No.87 of 2003, decided on 6th March, 2006.

Industrial Relations Ordinance (XCI of 2002)---

----Ss. 46 & 48---Voluntary retirement under Golden Handshake Scheme---Grievance petition---Appeal to High Court---Appellant Who voluntarily opted for Golden Handshake Scheme, was relieved of his duty---Appellant without first serving grievance notice on the employer, filed grievance petition against impugned order of his retirement from service---Labour Court having dismissed grievance petition being not maintainable, appellant had filed appeal before High Court against said order---Worker could approach Labour Court for redressal of his grievance only in respect of any right guaranteed or secured to him by or under any law or any award or settlement---Even if it was assumed that appellant was given some assurance by Branch Manager of the employer-Bank at his level for grant of additional benefits for opting for retirement, such assurance, by no means, would be transformed into "a right guaranteed or secured to appellant by or under any law or any award or settlement" as manifestly stipulated under the law---Any assurances, either oral or written, given by the agent of any of the parties, would have no overriding effect on provisions of statute---Grievance petition filed by appellant was not maintainable, especially when no grievance notice was served upon the employer before filing grievance petition, which was condition precedent to be complied with before approaching Labour Court for redressal of grievance---Petition otherwise was not filed within period stipulated under law---None of secured or guaranteed rights of appellant, was infringed or violated to entitle him to invoke jurisdiction of Labour Court---Labour Court having rightly dismissed grievance petition of appellant its order needed no interference.

Ch. Rasheed Ahmed for Appellant.

Shahid Anwar Bajwa for Respondents.

Date of hearing: 16th February, 2006.

2006 P L C 312

[Karachi High Court]

Before Muhammad Moosa K. Laghari, J

Formerly UNITED WOOLEN MILLS LTD.

Versus

UNITED WOOLEN MILLS LTD. WORKERS' UNION LABOUR WELFARE

Labour Appeal No.412 of 2004, decided on 24th January, 2006.

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

----S.Os. 11-A & 12---Industrial Relations Ordinance (XCI of 2002), Ss.46 & 48---Closure of Establishment---Termination of services of employees---Grievance petition---Appeal to High Court---Employers were finally allowed to close establishment under S.O.11-A of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and employers, after obtaining order to close down the establishment, terminated services of workmen---Employer under provisions of S.O.12 of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, had unfettered right to terminate services of workmen, but subject to certain conditions---Letter of termination placed on record, had adequately revealed that Management had specified the reasons of closure of establishment for termination of services of workmen---Workmen were granted one month's salary in lieu of notice---Workmen had admitted the factum that Factory was closed after permission of closure and all of them had admitted to have received letter of termination---Once an establishment had been permitted under the law to be closed down, then such establishment would achieve rightful jurisdiction to dispense with services of workmen---Termination of services in circumstances, could not be said to be for ulterior motives or tainted with malice---Impugned order passed by Labour Court whereby grievance petition jointly filed by workmen against termination of their services, was allowed, was set aside in appeal by High Court being contrary to law and against evidence on record.

Syed Qamruddin Hassan for Appellant.

Kashif Paracha, for Respondent.

Date of hearing: 24th January, 2006.

2006 PLC 315

[Karachi High Court]

Before Muhammad Moosa K. Leghari, J

Mst. SADDAT BIBI

Versus

Messrs M.F.M.Y INDUSTRIES LTD.

Constitution Petition No.S.167 of 2001, decided on 1st February, 2006.

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

----S.O. 10-B(5)---Payment of Wages Act (IV of 1936), S.15---Workmen's Compensation Act (VIII of 1923), Preamble---Constitution of Pakistan (1973), Art.199---Constitutional petition---Claim of workman or his heirs for recovery of money---Determination of claim---Employee having died during course of his employment, his widow filed a claim under S.O.10-B of West' Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968---Claim of widow was rejected on ground that Authority appointed under Payment of Wages Act, 1936 could only adjudicate claims of those persons who were drawing wages upto 3000 per month and that since deceased was drawing Rs.4100 as wages per month, Authority was not competent to adjudicate application of widow---View so expressed was totally misconceived and against the law--All claims of workman or his heirs for recovery of money would be settled in the same manner as provided for determination and recovery of compensation under Workmen Compensation Act, 1923---For seeking relief under S.O.10-B of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, either claimant himself should be a `workman' or his legal heirs and provisions of Payment of Wages Act, 1936 would have no applicability in the matter---Dismissal of application of widow of worker by Commissioner, Workmen's Compensation Act, 1923 was unwarranted by law---Impugned order being without lawful authority, was declared void and quashed by High Court accordingly.

Farid Gul Khan for Petitioner.

Chaudhry Muhammad Ashraf Khan for Respondent.

Date of hearing: 1st February, 2006.

2006 P L C 364

[Karachi High Court]

Before Sabihuddin Ahmed, CJ and Muhammad Afzal Soomro, J

LAIQUAT NATIONAL HOSPITAL ASSOCIATION through Secretary

Versus

GOVERNMENT OF SINDH through Secretary and another

Constitutional Petition No.D-915 of 2005, decided on 16th September, 2005.

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

----Ss. 1(3) & 2(11)---Constitution of Pakistan (1973 ), Art.199---Constitutional petition---Hospital---Applicability of provisions of Provincial Employees' Social Security Ordinance, 1965 to employers and employees of hospital---Petitioner (hospital) had assailed the notification issued by Government whereby provisions of Provincial Employees', Social Security Ordinance, 1965 were declared applicable to the employers and employees of the hospital---Contentions of petitioner (hospital) were that hospital could not be treated as "establishment" for the purpose of S.2(11) of Provincial Employees' Social Security Ordinance; 1965 that, the powers to extend its obligations to hospital, did not exist; that even if profits earned by it were being utilized for expanding and modernizing its facilities, hospital had to be treated as a charitable body and a completely different kind of Institution from any industrial, commercial or agricultural establishment; that expression "otherwise" contained in S.2(11) of Provincial Employees' Social Security Ordinance, 1965 being one of general nature, ought to be read 'ejusdem, generis' with earlier specified expression i.e. industrial, commercial or agricultural and that a hospital, could not be equated with those establishment for making profits, such as industrial, commercial or even agricultural---Validity---Held, hospital might not be an industrial or commercial establishment, but it was clearly covered by expression "otherwise" as mentioned in S.2(11) of Provincial Employees' Social Security Ordinance, 1965 and a notification declaring hospital was covered by the Ordinance and was intra vires---Impugned notification and subsequent orders, would not require interference by High Court.

St. Bonaventure's Boys, High Schools Tilak Incline and Qasimabad Hyderabad v. Province of Sindh 2004 PLC 381 fol.

Incorporated Council of Law Reporting for England and Wales v. Attorney-General and Commissioners of Inland Revenue 1971 2 WLR 550 ref.

Abdul Samad for Petitioner.

2006PLC385

[Karachi High Court]

Before Muhammad Moosa K. Laghari, J

MOHAMMAD FAREED

Versus

Messrs KHALEEJ HOTEL through Manager

Labour Appeal No.273 of 2004, heard on 1st February, 2006.

Industrial Relations Ordinance (XCI of 2002)---

----Ss. 46 & 48---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.I.(4)(a), S.O.15(3)(e)---Termination of service on ground of absence from duty---Grievance petition---Applicability of West Pakistan Industrial and Commercial Employment (Standings Orders) Ordinance, 1968---Appeal against judgment of Labour Court---Service of appellant was terminated without issuing him show-cause notice and without holding inquiry against him on ground that he absented from his duty without intimation---Grievance petition filed by appellant against order of his termination was dismissed by Labour Court holding that same was not maintainable as provisions of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and Industrial Relations Ordinance, 2002 were not - applicable to the establishment as it was employing less than twenty workers in it---Evidence on record had undisputedly shown that more than 50 workers were working in the establishment which owned two hotels---Appellant had initially discharged burden to prove applicability of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 so far as number of workers in the establishment, was concerned---Establishment had failed to prove by any documentary evidence that it was employing 4/5 persons---Provisions of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, were applicable to the establishment and grievance petition was maintainable---Evidence on record had proved that appellant did not absent himself or left employment, but establishment had verbally terminated his services which was violative of the law---Order passed by Labour Court was set aside and grievance petition stood allowed---Appellant having been proved to be unemployed and jobless during period of his termination from service, he was entitled to back-benefits.

Rafiullah for Appellant.

Khadim Hussain for Respondent.

Date of hearing: 1st February, 2006.

2006 P L C 391

[Karachi High Court]

Before Muhammad Moosa K. Laghari, J

MUHAMAD HANEEF

versus

SETH HAJI ABDUL RAHEEM

Labour Appeal (L.A.) No.121 of 2003, decided on 9th March, 2006.

Industrial Relations Ordinance (XCI of 2002)---

----Ss. 46 & 47(3)---Dismissal from service---Grievance petition, dismissal of---Appeal---Appellant who was a permanent workman in the establishment and an active trade unionist, was verbally dismissed from service---Grievance petition by appellant against order of his dismissal from service, having been dismissed by Labour Court, appellant had filed appeal against said dismissal--Appellant led evidence in which he corroborated contents of his grievance petition, but establishment neither cross-examined appellant nor adduced any evidence in support of his case---Evidence adduced on oath, if not challenged by way of cross-examination would be deemed to have been accepted in toto by opposite party---Establishment neither having cross-examined appellant nor adduced any evidence on oath in support of his case to controvert evidence brought on record by appellant, Labour Court was required to accept version of appellant which had gone unrebutted and unchallenged---Mere filing of written statement by establishment could not be treated as evidence---Written statement and documents annexed therewith by establishment, having no evidentiary value was of no consequence---Labour Court had not' followed the 'law and proceeded to decide case in contravention of law and against evidence on record---Impugned judgment was liable to be reversed---Allowing appeal judgment of Labour Court was set. aside by the High Court and grievance petition stood allowed as it had fully been proved that appellant after dismissal from service having remained without any alternate employment despite his best efforts; he was granted back-benefits and compensation equivalent to 15 months' wages.

Ashraf Hussain Rizvi for Appellant.

Khadim Hussain for Respondent.

Date of hearing: 1st February, 2006.

2006 P L C 448

[Karachi High Court]

Before Mushir Alam, J

ALLIED BANK LTD through Attorneys

Versus

ASIF AZIZ MEMON

Labour Revision Application No.3 of 2005, decided on 27th January, 2006.

Industrial Relations Ordinance (X'CI of 2002)---

----Ss. 2(xxx), 46 & 48(3)---Grievance petition---Status of workman, determination of---Maintainability of grievance petition by employee was challenged by employer on the ground that employee who was performing his duty as Manager administering affairs of Branch of the Bank, his duty was that of a supervisory and administrative nature and did not fall within the ambit of "workman"---When employee was confronted in order to substantiate claim raised by the employers, he was confronted with certain documents pertaining to the nature of his job---Labour Court disallowed production of such documents on the ground that said documents were not filed along with reply statement by employer---Nature of job of employee being in controversy, in case employer was not allowed to confront witness with said documents, he would not be able to prove its case in evidence and employer would have no opportunity to confront witness of said documents---Labour Court having disallowed the documents at the stage of cross-examination, said order of the Labour Court, could not be sustained---Documents confronted to a witness, could be taken on record and objection as to production thereof could be considered at trial.

Jawaid Asghar Awan for Applicant.

Soulat Hussain Rizvi Syed for Respondent.

2006 P L C 462

[High Court of Sindh]

Before Muhammad Moosa K. Leghari, J

SIRAJUDDIN

Versus

S.I.T.E. ENGINEERING WORKS

Labour Appeal No.652 of 2003, heard on 18th January, 2006.

Industrial Relations Ordinance (XCI of 2002)---

----Ss. 46 & 48---Termination of service---Reinstatement---Grievance petition---Entitlement to back-benefits---Appellant who was a permanent worker, his services were terminated---Labour Court accepted grievance petition by appellant against order of his termination, but declined to reinstate appellant in service and in lieu thereof, awarded him compensation equivalent to wages of 20 months without granting benefit of back-benefits---Nothing had been placed on record to show that appellant had remained in gainful employment during period he remained out of job---Incumbent upon Labour Court to have awarded back-benefits to appellant---Order passed by Labour Court was modified to the extent that appellant would be entitled to back-benefits for the period during which he remained out of job on account of illegal termination.

1993 SCMR 105; Shah Murad Sugar Mills (Ltd.) v. Mir Ali Muhammad and others 2004 SCMR 1892 and 1983 SCMR 105 ref.

Ashraf Hussain Rizvi for Appellant.

Nemo for Respondent.

Date of hearing: 18th January, 2006.

2006 PLC 465

[Karachi High Court]

Before Munib Ahmed Khan, J

UNITED BANK LIMITED through Assistant Vice-President

Versus

REGISTRAR OF TRADE UNIONS, REGIONAL DIRECTORATE OF LABOUR and another

Writ Petition No. S-308 of 2004, decided on 30th May, 2006.

Constitution of Pakistan (1973)---

----Art. 199---Industrial Relations Ordinance (XCI of 2002), Ss.49 & 58---Constitutional petition---Registration of employees union---Matter related to grievance of Bank in respect to registration of employees union on the ground that it was registered by Provincial Registrar, which was not legal and proper---During pendency of petition, matter was heard by National Industrial Relations Commission which disposed of the matter giving certain directions---Counsel for employees union had stated that order of National Industrial Relations Commission was not being disputed nor certificates issued by National Industrial Relations Commission regarding registration of Collective Bargaining Agents, in terms of direction, but that after decision of Commission, he had no contact with union---Union seemed to have lost interest in the matter and it did not want to be enrolled as Collective Bargaining Agent in terms of order of National Industrial Relations Commission---Bank was directed to act in terms of direction contained in the order of National Industrial Relations Commission and to do away with the registration of Union.

PLD 1984 Kar. 292 ref.

Mehmood Abdul Ghani for Petitioner.

Shoukat Ali Jaffery for Respondent No.2.

2006 P L C 475

[Karachi High Court]

Before Mrs. Yasmin Abbasey, J

Messrs DIGRI SUGAR MILLS LTD. through Manager

Versus

AZIZUR REHMAN and another

Ist Appeals Nos.3 and 4 of 2003, decided on 14th April, 2006.

Industrial Relations Ordinance (XCI of 2002)---

---Ss. 46, 47(3) & 48---Appeal before High Court---Grievance application---Restoration of services of employees with full back-­benefits---Employees who were serving in the Mill formed a union in the Mill and applied for its registration---Said act of respondents having annoyed the Management, employees were turned out of office---Matter was contested by employees and finally by one single judgment, services of employees were restored with full back-benefits---Validity---Objection of appellant was that two separate applications were filed by employees, having different facts---Evidence in both matters was also recorded separately, written arguments were also filed by counsel for parties in their respective cases, but for the purpose 'of pronouncement of judgment, they were taken up together without any proper order of consolidation---Impugned judgment had revealed that evidence produced by parties in their respective cases had been discussed in a way as if same were consolidated---Statement was recorded in both matters---Issues framed in two matters had not been discussed in the light of evidence produced by the parties---Impugned judgments were set aside and cases were remanded to Trial Court for deciding same separately on points and grounds raised by the employees on the basis of record already available.

2004 YLR 46 ref.

Mahmood Abdul Ghani for Appellant.

Mahmood Hussain Siddiqui for Respondent No.1.

Date of hearing: 14th April, 2006.

2006 P L C 597

[Karachi High Court]

Before Munib Ahmed Khan, J

AFZAL HUSSAIN

Versus

ZEAL PAK CEMENT FACTORY through Managing Director

Labour Appeals Nos.152 to 162, 164, 165, 166, 168 to 176, 178 to 185, 187 and 188 of 2004, decided on 24th May, 2006.

Industrial Relations Ordinance (XCI of 2002)---

----Ss. 2(xxx), 46 & 48(1)---Payment of Wages Act (IV of 1936), S.2(vi)---Appeal to High Court---Termination of service under Golden Handshake Scheme---Grievance application---Maintainability---Company was not making any profit and was going in loss and it had become difficult for the management of company to effectually carry on the working of the company, it entered a settlement with C.B.A. for termination of services of workers under Golden Handshake Scheme---According to settlement all permanent employees were to submit resignation through C.B.A. and to be paid, besides other dues, additional benefits under Golden Handshake Scheme---Grievance of appellant along with others was that in terms of settlement/agreement, appellant was not paid as provided under Payment of Wages Act, 1936, but was handed over cheque against his outstanding dues which had been bounced---Effect---According to definition of "worker" as given in S.2(xxx) of Industrial Relations Ordinance, 2002, a person who had resigned, was not included in category of 'workman' and appellant admittedly had submitted his resignation and in pursuance to that he obtained clearance from all the Departments of the employer and received certain amounts towards provident fund and other dues, while towards the benefit under the Golden Handshake Scheme, he was paid through cheque which could not be encashed---Non-encashment of the cheque could not rebut all the factual positions which were never agitated and by efflux of time had become fait accompli---Appellant, in circumstances was not 'workman' and could not maintain grievance application before the Labour Court on that ground---Even otherwise appellant could not go to Labour Court as he had no right guaranteed under the law as entire dues were paid to him along with others and additional payment by way of Golden Handshake Scheme, did not fall within the meaning of 'wages' as defined under S.2(vi) of Payment of Wages Act, 1936 as it was an extraordinary type of payment agreed by parties under settlement---Grievance application which was filed after more than three years, was not maintainable on the point of limitation also---Grievance application was rightly dismissed being not maintainable.

1992 SCMR 36; 2002 PLC (C.S.) 614; PLD 2003 SC 724 = 2003 PLC (C.S.) 796; 1980 PLC 655; 1982 PLC 652; 2003 PLC 1841 1981 PLC 878 and PLD 2001 SC 355 ref.

Fasahat Hussain Rizvi for Appellants.

Rafique Ahmed for Respondent.

Date of hearing: 3rd May, 2006.

2006 PLC 614

[Karachi High Court]

Before Mrs. Qaiser Iqbal, J

Messrs ANSARI SUGAR MILLS WORKERS' UNION (C.B.A.) through General Secretary

Versus

REGISTRAR OF TRADE UNIONS and 3 others

Labour Appeal No. 69 of 2006, decided on 15th August, 2006.

Industrial Relations Ordinance (XCI of 2002)---

----Ss. 6, 7, 21, 33 & 48---Appeal---Registration of Trade Union---Application of Collective Bargaining Agent for redressal of grievance---Contentions were that appellant-Union had paid substantial subscription as required under S.21 of Industrial Relations Ordinance, 2002 upto month of May, 2006 and that respondent being a political body malafidely had tried to form a third union on the basis of bogus and false names of the members and that respondent submitted an application to the Registrar of Trade Unions in contravention of Ss.6 & 7 of Industrial Relations Ordinance, 2002 without notice and holding inquiry as required under the law---Appellant, who was allegedly condemned unheard approached competent forum for redressal of his grievance under S.33 of Industrial Relations Ordinance, 2002---On filing written statement by respondents, case was adjourned for hearing of the stay application, but Labour Court, instead of holding inquiry, proceeded to finally dispose of the case through impugned order---Record had shown that mixed questions of fact and law were involved in the case which could only be decided on basis of evidence required to be recorded by the Trial Court for just decision of the case---Appellant was a registered Trade Union, but the Trial Court presumed that it had ceased to exist---Question raised, in circumstances required proper inquiry but the Trial Court passed impugned order without holding inquiry in the matter---Case, in circumstances, was fit warranting remand to the Trial Court for adjudication on merits---Impugned order was set aside and appeal was allowed---Parties were directed to appear before the Trial Court on fixed date.

Engro Chemical Pakistan Ltd. through S.M. Pervez Ghais v. Engro Chemical Pakistan Ltd. Marketing Field Employees Union and another 2000 PLC 333 and B.P. Industries (Pvt.) Ltd. Employees Union, Karachi v. Registrar of Trade Union, Sindh and 3 others 1992 PLC 66 ref.

Abdul Ghani Khan for Appellant.

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

Nemo for Respondents Nos.2 and 3.

2006 P L C 641

[Karachi High Court]

Before Muhammad Moosa K. Leghari, J

PLASTIC CRAFTERS (PVT.) LTD. through Notified and Authorized Manager

Versus

PRESIDING OFFICER 1ST SINDH LABOUR COURT, KARACHI and another

Constitutional Petition No.S-64 of 2005, decided on 4th April, 2006.

Industrial Relations Ordinance (XXIII of 1969)---

----S.51---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Scope---Back-benefits---Respondent/worker who was dismissed from service on ground of misconduct was reinstated in service with back-benefits---Said matter, right from the stage of Labour Court till the apex Court having been decided against petitioner and in favour of respondent worker, present constitutional petition by establishment which was based on same facts and grounds which already stood considered and determined, by superior Courts was nothing, but a method of dragging the poor worker in unwarranted and frivolous litigation---Each and every point including entitlement of respondent worker to the back-benefits had already been elaborately discussed and after assigning cogent reasons, well-reasoned findings were recorded by the Labour Court and the Appellate Court---No perversity, infirmity, error of law, transgression of jurisdiction or lack of jurisdiction had been noticed or pointed out to warrant any interference and/or to declare impugned order illegal, invalid or corum non judice---No justification was available to exercise extraordinary constitutional jurisdiction of High Court---Constitutional petition by establishment being absolutely meritless, was liable to be dismissed---Petition was accordingly dismissed with costs.

Gohar Iqbal for Petitioner.

Rafiullah, for Respondent No.2.

2006 P L C 8

[Lahore High Court]

Before Maulvi Anwarul Haq, J

KHADIM HUSSAIN

Versus

THE SECRETARY, IRRIGATION AND WORKS, LAHORE and 4 others

F.A.O. No. 51 to 55 of 2004 heard on 11th July, 2005.

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

----Ss. 1(4)(e), 10 & S.O.1(e)---Industrial Relations Ordinance (XCI of 2002), S.48---Establishment of Temporary and Work-Charged Regularization Rules of Irrigation Department, Chap. I, R. 1.131---Work ­charged employees of Irrigation Department---Continuing in service of employees for more than eight years and payment of salary on work-charge basis---Dismissal of grievance petition of employees by Labour Court on the ground that notwithstanding length of service, they could not be termed as permanent or regular employees in view of R. 1.131 of Chap. 1 of Establishment of Temporary and Work-Charged Regularization Rules of Irrigation Department---Validity---Nothing on record was available to show that appointment of such employees was against . any specific Project, and whether such Project was still continuing or stood completed---Such employees had earlier challenged their dismissal from service and had been ordered to be reinstated by Labour Court, which judgment was affirmed by Labour Appellate Tribunal---High Court accepted appeals and set aside impugned judgment by holding such employees to be permanent workers with effect from date of institution of grievance petitions.

Province of the Punjab through Secretary, Irrigation and Power Department, Lahore and another v. Punjab Labour Appellate Tribunal through Chairman and others 2002 SCMR 836 fol

Muhammad Bashir and 3 others v. Executive Engineer, Kabirwala Drainage Division, Faisalabad 1989 PLC 349 and Ghulam Muhammad and 12 others v. Executive Engineer, Trimu Barrage Division Irrigation Department and another 1989 PLC 604 ref.

Syed Aqa Asif Jaffari for Appellant.

Nemo for Respondents.

Date of hearing: 11th July, 2005.

2006 P L C 11

[Lahore High Court]

Before Maulvi Anwarul Haq, J

TCS (PVT.) LIMITED through Head of Corporate Affairs, Karachi

Versus

MUHAMMAD AKHTAR ALI and 2 others

Writ Petitions Nos. 3357 to 3359 of 2005, decided on 4th July, 2005.

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

----Ss. 1 (4) [as amended by Labour Laws (Amendment) Ordinance (LIII of 2001) w.e.f. 1-7-2001] & 15---Salary, over-time and leave encashment, claim for---Claim filed before 1-7-2001, when amendment in S.1(4) Payment of Wages Act, 1936 took effect---Maintainability---Application for relief envisaged by S. 15(2) of Payment of Wages Act, 1936 could be filed within three years from the date, when payment of wages was due, while its second proviso provided for admission of application even after three years---Provision of S.1(4) of the Act, was beneficial, which would be liberally construed --Benefits conferred by amendment would be available to persons, who were already in employment before 1-7-2001---Such claim could be competently filed on or after such amendment---Payment of Wages Act, 1936 did not restrict such benefits to be awarded either to a worker or non-worker---Employee would be entitled to such benefits---Claim was maintainable.

National General Insurance Company Ltd. through F.A. Jaffary, General Manager v. Presiding Officer, Punjab Labour Court No.9 Rawalpindi and others 2004 PLC 207 fol.

Raja Shafqat Ahmed for Petitioner.

2006 P L C 19

[Lahore High Court]

Before Maulvi Anwarul Haq, J

APOLLO TEXTILE MILLS LIMITED through Factory Manager

Versus

THE PRESIDING OFFICER, PUNJAB LABOUR COURT NO.9 MULTAN and 2 others

F.A.O. No.45 of 2003, heard on 25th October, 2005.

Industrial Relations Ordinance (XCI of 2002)---

----Ss. 6(2)(i), 8, 9 & 48(3)---Registration of Trade Unions---Appeal to High Court---Registrar, Trade Unions dismissed application of the union filed for its registration but Labour Court allowing appeal against order of Registrar, directed him to register the union---Sole ground on which Labour Court had allowed the appeal was that Registrar had failed to communicate objection within 15 days of filing of application---Provision with regard to such period of time was not mandatory and law required Registrar of Trade Unions to satisfy himself that a trade union had complied with all requirements of Industrial Relations Ordinance, 2002 and it was upon that satisfaction that law bound the Registrar to register trade union---All major office holders of the union stood removed from service and they were no longer in service of the employer Mills---Registrar, in circumstances, could not be said to have satisfied that provisions of Industrial Relations Ordinance, 2002 had been complied with---Even otherwise trade union was not entitled to registration, in absence of existence of conditions mentioned in S.6(2)(i) of Industrial Relations Ordinance, 2002---Impugned order passed by Labour Court, was set aside by High Court in appeal.

Malik M. Tariq Rajwana for Appellant.

Nemo for Respondents.

Date of hearing: 25th October, 2005.

2006 P L C 35

[Lahore High Court]

Before Nasim Sabir, J

MANAGER COLONY TEXTILE MILLS LIMITED, MULTAN

Versus

PRESIDING OFFICER, PUNJAB LABOUR COURT No.9 and 2 others

Writ Petition No.3238 of 1999, decided on 5th May, 2004.

(a) Counsel and client---

----Any action honestly taken by counsel for a party during proceedings without the mandate given, the party would be bound by it---Only remedy available to a party would be to file suit for damages against said counsel.

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

----Ss. 15(2) & 17---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Payment of wages---Remand of case---Authority under Payment of Wages Act, 1936, after hearing arguments, accepted claim of respondent and issued direction for deposit of claimed amount within specified period---Labour Court while accepting appeal against order of Authority, remanded case to Authority for decision afresh after giving opportunity to respondent to appear in Court as his own witness---Petitioner (employer) challenged the order of Labour Court in constitutional petition before High Court---Authority, had not properly scrutinized record of case and had passed order in a slipshod manner---Labour Court, in circumstances had rightly remanded case to Authority to decide same afresh after giving opportunity to respondent to appear in Court---Authority was directed to scrutinize whole record carefully and redress grievance of the workers---Petitioner had failed to point out any material irregularity or illegality committed by Appellate Court while passing impugned order---No arbitrariness or perversity of reasoning was found in impugned order which had been passed in order to safeguard the interest of workers and fair administration of justice---Petition was dismissed being without any merits.

Sohail Iqbal Bhatti for Petitioner.

Rana Jehanzab Khan, for Respondents.

2006 P L C 48

[Lahore High Court]

Before Syed Jamshed Ali and Umar Ata Bandial, JJ

ALLIED BANK OF PAKISTAN LIMITED and others

Versus

MUHAMMAD AAMER RAZA and another

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

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

----Ss. 44, 45 & 46---Constitution of Pakistan (1973), Art.199---Constitutional petition---Grievance petition against order of dismissal from service---Territorial jurisdiction of Labour Court---Determination of---Respondent/employee while posted as Accountant in the Bank at District "J", disciplinary proceedings, including issuance of charge-sheet. and holding of inquiry etc., were initiated and concluded against him at District "J "---Subsequently employee was transferred to another District "F" where order of his dismissal from service was served upon him---Employee, after addressing a grievance notice, filed grievance petition before Labour Court at District "J"---Bank objected territorial jurisdiction of Labour Court at District "J" in its application, which application was dismissed by Labour Court holding that cause of action having arisen within territorial jurisdiction of Labour Court at "J said Court had jurisdiction to decide grievance petition---Impugned dismissal order was not passed within territorial jurisdiction of Labour Court at District "F" where employee subsequently was transferred,, but said order was only conveyed to him there---Since neither impugned order was passed at District "F" nor any proceedings were taken against him at "F", Labour Court at "F" did not have jurisdiction in the matter---Employee, in circumstances had rightly invoked jurisdiction of Labour Court at District "J"---Order of dismissal was the culmination of inquiry against employee and entire proceedings taken against him gave cause of grievance within contemplation of S.46 of Industrial Relations Ordinance, 2002---Contention of Bank that cause of action arose only on of employee, was not acceptable---Definition of "cause of action" and grievance', had connoted a right of action---Accepted meaning of "cause of action" was whole bundle of facts which would entitle a party to sustain action and give him right to seek judicial remedy---Right of action' necessarily would include "cause of action".

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-Manzil Transport and others v. Muhammad Ameen PLD 1963 (W.P.) Karachi 182; Imdad Ali v. Managing Director, Passco and others 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 PLD 1976 SC 572; Broke Bond (Pakistan) Ltd. v. Second Sindh Labour Court, Karachi and another 1973 PLC 111; Federal Bank for Co-operatives, 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' andgrievance', 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)---

----Preamble, Ss. 45 & 46---Civil Procedure Code (V of 1908), Ss.5.4, 20 & 141---Labour Court---Procedure and powers of Labour Court--- Application of Civil Procedure Code, 1908---Scope---Labour Court, according to S.45 of Industrial Relations Ordinance, 2002, was deemed to be a Civil Court with all powers of Civil Court---Filing of a lis before a Labour Court was not merely a matter of procedure, it was referable and included the power of Labour Court to take cognizance of a' lis brought before it---Section 4 of Civil Procedure Code, 1908 though saved a special or local law, but to exclude Code of Civil Procedure in the matter of determination of territorial jurisdiction, there had to be a special provision in Ordinance, 2002 while according to 5.141, C.P.C., procedure in the Code in regard to suit would be followed as far as it??????????? t could be made applicable, in the proceedings in any Court of civil jurisdiction---Nature of jurisdiction' of Labour Court was civil and in absence of any specific provision in the Ordinance, S.20 of Civil Procedure Code, 1908 would apply to determine territorial jurisdiction of Labour Court---Industrial Relations Ordinance, 2002 was a beneficial Legislation and had to be interpreted with same object and in case of doubt, if any, provisions. of said Ordinance had to be interpreted in favour of workman.

(e) Interpretation of statutes---

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

Munawar Ahmed Javed for Petitioner.

Muhammad Saeed Ahmed for Respondent No. 1.

Date of hearing: 13th January, 2005.

2006 P L C 66

[Lahore High Court]

Before Muhammad Jehangir Arshad, J

FACTORY MANAGER

Versus

IMAM BAKSH

Labour Appeals Nos.85 to 88 of 2005 decided on 28th April, 2005.

Industrial Relations Ordinance (XCI of 2002)---

----S. 46---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S. O. 15---Dismissal from service---Grievance petition---Provision of S.0.15(4) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, provided that before initiation of inquiry of misconduct involving dismissal of an employee, it was mandatory that there should be a direction by competent Authority for holding departmental inquiry---Nothing was on record to show. that before initiation of proceedings any show-cause notice was issued to employee by competent Authority---Only evidence . available on record was the order of dismissal having been issued by Inquiry Officer and not by Employer or Factory Manager---None of the documents was produced on record by employer which indicated that competent Authority had ever directed for initiation of departmental inquiry against employees---Labour Court, in circumstances had rightly held order of dismissal from service passed against employee as wrong and unlawful---Findings of Labour Court were accordingly upheld---Labour Court was correct in treating order of dismissal as one of termination and rightly passed a "direction for payment of compensation, equivalent to 20 months' basic pay with admissible benefits, however, with concurrence of both the parties, order of Labour Court directing payment of compensation equivalent to 20 months' basic pay was modified from 20 months to 14 months' basic pay with all other admissible dues.

Gulzar Ahmad Khan for Appellant.

Mukhtar Ahmad Malik for Respondent.

Date of hearing: 28th April, 2005.

2006 P L C 81

[Lahore High Court]

Before Syed Zahid Hussain and Man Saqib Nisar, JJ

EXECUTIVE DISTRICT OFFICER (REVENUE), DISTRICT GOVERNMENT, SHEIKHUPURA

Versus

SYED RASHID ALI and 5 others

Intra-Court Appeal No.543 of 2004 in Writ Petition No.16152 of 2003, decided on 19th October, 2005.

Law Reforms Ordinance (XII of 1972)---

----S. 3---Intra Court appeal---Recruitment policy of Patwaris---Intra Court Appeal was filed by the appellant, Executive District Officer, against the dismissal of the constitutional petition filed by the respondent in which the appointments of other respondents as Patwaris were assailed on the ground that the former being the son of a retired government employee was entitled to appointment as Patwari but was ignored in violation of the recruitment policy of the government---Contention of the appellant was that certain observations of the High Court were likely to disturb and affect the working of the department---Validity---Observations by the constitutional Court related to the recruitment policy for Patwaris---Government could not have been aggrieved by these observations which merely insisted upon the adherence to the said recruitment policy, particularly, with regard to future appointments---Appeal was dismissed in circumstances.

Ch. Abdul Wadood for Appellant.

2006 P L C 164

[Lahore High Court]

Before Syed Hamid Ali Shah, J

Ms ZAIB-UN-NISA KHAN LODHI

Versus

Messrs AVARI INTERNATIONAL HOTELS through General Manager and 3 others

Labour Appeal No.29 of 2005, decided on 31st October, 2005.

Industrial Relations Ordinance (XCI of 2002)---

----Ss. 46 & 48--West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(b) & S.O.8---Factories Act (XXV of 1934), S.49-B---West Pakistan Shops and Establishments Ordinance (VIII of 1969), S.18---Appeal to High Court---Accumulated leave due---Entitlement to encashment---Extent---Services of employee were terminated, but on filing grievance petition she was reinstated in service---Employee claimed her back-benefits of accumulated leave due at her credit which, according to her claim, was for 150-days unavailed leave---Contention of the employers was that employee was entitled for 56 days at her credit in the light of agreement arrived at between union and management---Grievance petition of the employee having been dismissed, she had filed appeal---Agreement arrived at between union and management showed that, every workman, who completed one year of continuous service, was entitled to 28 days annual leaves and in case it was not availed, it would be subject to accumulation to maximum period of two years---Employee, in circumstance was. entitled to total leave of 56 days---Employer, being a hotel under provisions of S.2(b) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, said Ordinance was applicable to the establishment---Entitlement to encashment of unavailed leave could be granted to an employee on the basis of custom and usage in that respect---Neither such custom prevailed in the establishment nor employee had claimed benefits of unavailed leave on the basis of custom or usage---Section 46 of Industrial Relations Ordinance, 2002 under which present proceedings were initiated before Labour Court, was in respect of any right guaranteed or secured to him by or under any law, any award or settlement for the time being in force---Employee could claim rights available to her under law or settlement; since it was not a case of award, appellant was entitled under law to 14 days leave per year and accumulation of maximum two years or she was entitled to 28 days leave per year and accumulation for two years under settlement---Maximum entitlement of appellant was for 56 days and was not entitled to any accumulation beyond 56 days or any encashment in respect of any other entitlement.

Zamir-ul-Hassan v. Asad Saeed Divisional Superintendent 2000 PLC 351; Sindh Road Transport Corporation v. Abdul Rehman 1983 PLC 892; Pakistan Auto Mobile Corporation Ltd v. Mansoor-ul-Haq 2004 PLC (CS) 1151; Shahzad Baber Khan v. Punjab Agricultural Development and Supply Corporation 1985 PLC 254; Abdul Jabbar Amin v. Seigfried Beacon Pakistan Ltd. 1978 PLC 580; Sindh Road Transport Corporation v. Abdur Rehman 1983 PLC 892 ref.

Appellant in person.

Jawad Hassan for Respondents.

2006 P L C 173

[Lahore High Court]

Before Muhammad Akhtar Shabbir, J

INDEPENDENT NEWSPAPERS CORPORATION (PVT) LTD. through Manager and 2 others

Versus

DAILY JANG & PRESS WORKERS' UNION (CBA) through General Secretary

Labour Appeals Nos.56 and 57 to 63 of 2004, heard on 20th June, 2005.

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

--Ss. 25-A & 33---Grievance petition---Maintainability---Grievance notices were issued by Collective Bargaining Agent and names of workers, on whose behalf the notices were issued, were mentioned in the list annexed with the grievance petition---Validity---By annexing the list of names, condition or limitations provided in S.25-A of Industrial Relations Ordinance, 1969, were complete---Collective Bargaining Agent under S.33 of Industrial Relations Ordinance, 1969, was competent to take the matter to Labour Court---Grievance petition was maintainable in circumstances.

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

----Ss. 25-A, 34 & 40(2)---Industrial Relations Ordinance (XCI of 2002), Ss. 33 & 46---Settlement between the parties---Enforcement---Dispute between the parties was with regard to enforcement of settlement arrived at between them---Workers filed grievance petitions against their employer through Collective Bargaining Agent, which petitions were allowed by Labour Court---Plea raised by employer was that the settlement had expired and was not enforceable---Validity---After the period of notice as contemplated in S.40(2) of Industrial Relations Ordinance, 1969, the terms of settlement became negotiable and the parties to the settlement could enter into a fresh settlement if they so desired---Benefits derived from the settlement would continue till the parties entered into negotiations and reached a conclusion---Where workers receiving contractual bonus entirely free from consideration whether the company was making profit or was incurring loss, such bonus would become part of workers' wages and recoverable as a matter of contractual right---No illegality or perversity was found in the judgment passed by Labour Court---Appeal was dismissed accordingly.

The Workmen of Tando Jam and its Feeders. V. Director, Agricultural Engineer, Sindh and 8 others 1981 PLC 47; Muhammad Hussain and 3 others v. Syed Ahmad Masood and another 1974 PLC 61; Inayatullah and another v. The Telephone Industries of Pakistan 1991 SCMR 13; Pakistan Herald Workers' Union through its General Secretary v. Sindh Labour Appellate Tribunal and 3 others 1995 PLC 554; South Indian Company Limited v. A.R. Chacko AIR 1969 SC 1522; Karachi Pipe Mills Employees Union, Karachi v. Karachi Pipe Mills Ltd., Karachi 1992 SCMR 36; Pakistan Tabacco Co. Ltd., Chittagong v. The Chairman, Second Labour Court of East Pakistan and 18 others 1972 PLC 190; Workers' Union CBA (Regd.) Shakargani Mills Jhang v. Shakaragani Mills Limited, 1990 PLC 686 and Messrs Khyber Tobacco Co. Ltd., Mardan v. Labour Union and another 1976 PLC 98 ref.

(c) Industrial dispute---

----Labour Laws, implementation of---Principals---Technicalities should not be allowed to stand in the way of justice and Labour Laws must be implemented in favour of workmen, especially when employer himself was also guilty in not fulfilling the technicalities.

Riffat Mehmood Establishment Officer for Appellants.

Ch. Sadiq Muhammad Warriach for Respondent.

Date of hearing: 20th June, 2005.

2006 P L C 183

[Lahore High Court]

Before Ali Nawaz Chowhan, J

TEHSIL MUNICIPAL ADMINISTRATION UNIT DINA TEHSIL COUNCIL through Nazim

Versus

AUTHORITY UNDER THE PAYMENT OF WAGES ACT, 1936, JHELUM

Writ Petition No.2649 of 2002, heard on 26th October, 2005.

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

---Ss. 1(4) & 15---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(bb)---Punjab Employees' Special Allowance (Payment) Ordinance (I of 1988), Ss.2(e) & 6---Constitution of Pakistan (1973), Art.199---Constitutional petition---Applicability of Payment of Wages Act, 1936---Contention of petitioner, a construction undertaking was that petitioner not being a factory, Payment of Wages Act, 1936 was not applicable to it---Petitioner though was not factory, but its liability under Payment of Wages Act, 1936 was established by Punjab Employees' Special Allowances (Payment) Ordinance, 1988, which extended provisions of Payment of Wages Act, 1936 to such undertakings which were involved in construction industry---Petitioner being a construction industry as defined in S.2(bb) of West Pakistan Industrial and Commercial Employment (Standing) Orders, Ordinance, 1968, it would come within the ambit of Punjab Employees' Special Allowance (Payment) Ordinance, 1980---Provisions of Payment of Wages Act, 1936 and Rules made thereunder would also be applicable by virtue of S.7(b) of Punjab Employees' Special Allowance (Payment) Ordinance, 1988.

Mehmood Arshad Chaudhry for Petitioner.

Ch. Sadiq Muhammad Warraich and Kh. Muhammad Arif for Respondent.

Date of hearing: 26th October, 2005.

2006 P L C 200

[Lahore High Court]

Before: Syed Hamid Ali Shah, J

GENERAL MANAGER, KASHMIR SUGAR MILLS LIMITED

Versus

COMMISSIONER WORKMEN'S COMPENSATION, JHANG and another

Writ Petition No.3473 of 2005, decided on 30th November, 2005.

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

----S.Os. 1, 10-B & 14---Constitution of Pakistan (1973), Art.199---Constitutional petition---Amount of group insurance---Entitlement---Sugar Mill was a seasonal factory and deceased was employed on 25-11-2002 in the Mill during crushing season 2002-2003 and his services were terminated on 16-4-2003 and he died on 26-9-2003 at the time when he was not in the employment of the Mill---Application moved by father of the deceased employee for payment of amount of group insurance due to the deceased was accepted by the Commissioner Workmen's Compensation with direction to the Mill to pay claim of group insurance---Validity---Deceased being a seasonal workman was offered job at the beginning of crushing season and was relieved at the end of such season and he was not in employment of the Mill at the time of his death---Appointment letter, though was with heading 'permanent stair', but nature of his appointment had been described in said letter as panmate retainee---Clearance certificate which was signed by deceased had shown that deceased was relieved and all his dues were cleared---When deceased was retrenched at the end of relevant crushing season, he ceased to be an employee of petitioner---Deceased, who was not a 'permanent worker' at the time of his death, was not entitled to claim group insurance under West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968---Impugned order passed by Commissioner Workmen's Compensation, was set aside by the High Court.

Shahid Kasim for Petitioner.

Nemo for Respondent No.1.

Malik M. Rashid for Respondent No.2.

Date of hearing: 8th April, 2005.

2006 P L C 206

[Lahore High Court]

Before Maulvi Anwarul Haq, J

MUHAMMAD MAQBOOL ANEES

Versus

PRESIDING OFFICER, PUNJAB LABOUR COURT NO.9, MULTAN and 2 others

W.P. No.2661 and F.A.O. No. 56 of 2003, heard on 13th July, 2005.

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

----Ss. 25-A & 37(3)---Service Tribunals Act (LXX of 1973), Ss.2-A, 4 & 6---Constitution of Pakistan (1973), Arts 199 & 212(3)---Grievance petition---Insertion of S.2-A in Service Tribunals Act, 1973 during pendency of appeals before Labour Appellate Tribunal---Remand of case to Labour Court for its decision afresh---Return of grievance petition by Labour Court for not having jurisdiction to decide matter in view of S.2-A of Service Tribunals Act, 1973---Validity---Statute would take effect, whether or not Court or Tribunal was aware of the same---Appeals of both parties before Labour Tribunal stood abated in terms of S.2-A of Service Tribunals Act, 1973---Order of Labour Tribunal remanding case to Labour Court was without jurisdiction as no proceedings were pending before Tribunal while remanding case---High Court accepted constitutional petition and appeal while declaring order of Tribunal and consequent proceedings and order passed by Labour Court to be without lawful authority and set aside same.

PLD 1991 SC 258; G.M. National Bank of Pakistan and others v. Abdul Aziz and others 2002 PLC (CS) 18; Federation of Pakistan v. Muhammad Siddiq PLD 1981 SC 249 and General Manager Pak Arab Fertilizers Ltd. Khanewal Road, Multan v. Muhammad Ayub son of Fazal Elahi C.A. No.796 of 2000 rel.

(b) Interpretation of statutes---

----Statute would take effect, whether or not Court or Tribunal is aware of the same.

Petitioner in person.

Javed Altaf for Respondent.

Date of hearing: 13th July, 2005.

2006 P L C 317

[Lahore High Court]

Before Muhammad Sair Ali, J

PHARMACIA PAKISTAN (PRIVATE) LIMITED through Finance Director

Versus

SOCIAL SECURITY COURT, JUDGE SOCIAL SECURITY COURT PUNJAB, LAHORE and another

F.A.O. No.179 of 2004, heard on 21st October, 2005.

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

----Ss. 57 & 59---Social Security Contribution---Less paid amount---Notice ,of demand---Limitation---Starting time---Complaint against the demand---Demand was revised in. complaint proceedings by the Institution and was found to be incorrect---Institution was directed to re-work the amount due, although part claims of the Institution were upheld---Appeal against said order was dismissed on the ground that complaint was time-barred---Question was as to whether notice of demand was final to commence the period of limitation for filing the complaint---Validity---Notice wherein Institution demanded the record which had not been checked and required scrutiny to arrive at final figure would amount to admission that notified amount was not the amount due and notice, therefore, could not have been treated as final to commence the period of limitation for purpose of filing complaint---Even proceedings of complaint wherein re-checking of record was ordered and upon re-checking demand was revised and even revised demand was also found by Institution to be incorrect further supported that notice of demand was not final to commence the period of limitation---Judge Social Security Court had not applied his judicial mind to the text of the notice and facts of the case---Appeal, was accepted by High Court and case was remanded for rehearing which would be deemed to be pending before the Judge Social Security Court in circumstances.

M. Akhtar Ali Chaudhry for Appellant.

Rao Khalid Mehmood for Respondents.

Date of hearing: 21st October, 2005.

2006 P L C 335

[Lahore High Court]

Before Maulvi Anwarul Haq, J

MUHAMMAD ABID AKHTAR

Versus

CHAIRMAN, PUNJAB LABOUR APPELLATE TRIBUNAL LAHORE and 4 others

Writ Petition No.4730 of 2002, heard on 2nd February, 2006.

Industrial Relations Ordinance (XXIII of 1969)---

----Ss. 25-A, 38(3) & 51---Constitution of Pakistan (1973), Art.199---Constitutional petition---Dismissal from service---Reinstatement---Back­benefits, entitlement---Petitioner, who was dismissed from service, was reinstated in service, but back-benefits were not allowed to him---Petitioner had pleaded that he remained jobless during the time of his termination and had prayed for grant of back-benefits for the said period---None of the two witnesses examined by the employers had stated that petitioner was employed or did any job during the relevant period---Labour Court had misread evidence on record---Appellate Tribunal had dismissed appeal filed by petitioner against judgment of Labour Court on which petitioner had filed constitutional petition against concurrent judgments of Labour Court and appellate Tribunal---Validity---Where worker had made an oral assertion that he was not gainfully employed elsewhere it was for the employer to prove affirmatively that worker was so employed, but employers, could not 'produce any evidence to prove that employee/petitioner remained employed during period. of his dismissal from service--High Court allowing constitutional petition, declared impugned orders refusing back-benefits to petitioners, as illegal, void and without lawful authority---Resultantly, grievance petition filed by petitioner, would be deemed t o have been allowed with full back-benefits.

Dilkusha Enterprises Ltd v. Abdul Rashid and others 1985 SCMR 1882; Muhammad Bashir and others v. Chairman Punjab Labour Appellate Tribunal, Lahore and others 1991 SCMR 2087 and General Manager, National Road Telecommunication Corporation, Haripur, District Abbotabad v. Muhammad Aslam and 2 others 1992 SCMR 2169 ref.

M. Abdul Wadood for Petitioner

Ch. Rahim-ud-Din for Respondents Nos.3 to 5.

Date of hearing: 2nd February, 2006.

2006 P L C 345

[Lahore High Court]

Before Maulvi Anwarul Haq, J

MANAGER, COLONY TEXTILE MILLS LIMITED, ISMAILABAD, MULTAN

Versus

GULZAR HUSSAIN

F.A.Os Nos.128 and 86 of 2005, heard on 14th February, 2006.

Industrial Relations Ordinance (XCI of 2002)---

----S. 48---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.11-A---Voluntary resignation and closure of establishment---Proof---Grievance petition---Back-benefits, entitlement to---Employee served grievance notice on the employer complaining that gates had been closed on him---Employee had sought his reinstatement stating that he never submitted his resignation as alleged by employer---Employer in its written statement took the plea that employee had voluntarily submitted his resignation and it was also pleaded by employer that weaving section in establishment in which employee was working had been closed---Plea of closure of weaving section was not taken by employer in written statement---Employer could not prove alleged closure of weaving section---Employee had specifically denied submitting his resignation and in view of said denial burden was on employer to prove that employee had voluntarily submitted his resignation but employer .could not discharge said burden by producing cogent evidence---Labour Court, in circumstances, had rightly reinstated employee granting back-benefits---In absence of any ground to interfere with said findings of Labour Court, appeals were dismissed.

M. Suhail Iqbal Bhatti for Appellant.

M. Anwar Awan for Respondent.

Date of hearing: 14th February, 2006.

2006 P L C 354

[Lahore High Court]

Before Maulvi Anwarul Haq, J

WATER AND SANITATION AGENCY (MDA) through Managing Director Wasa, Multan and others

Versus

MUNEER HUSSAIN, and others

F.A.Os., Nos. 124, 134 and 144 of 2004 decided on 31st January, 2005.

Industrial Relations Ordinance (XXIII of 1969)---

----Ss. 25-A, 51, 54 & 55---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.1(A)---Grievance petition---Permanent workman---Regularization of service---Labour Court allowing grievance petition filed by employees found that employees being permanent workmen, should be regularized from the date of their appointments in relevant pay scale---Employees filed complaint alleging that despite their demand, service benefits as being regular and permanent workmen were not being paid to them with effect from the date of their appointment---Judgment of Labour Court, which had attained 'finality, was to take effect from the date of appointment of respective employees in which direction was that regularization was to be made with effect from the date of appointment in relevant pay scale---Contention that for non-compliance of judgment of Labour Court only punishment could be awarded to employers, was repelled, in view of the fact that S.51 of Industrial Relations Ordinance, 1969 had provided that any money due from an employer in the light of decision of Labour Court, could be recoverable as arrears of land revenue.

Syed Shahid Hussain and Muhammad Amin Malik for Appellants.

Syed Asif Raza Gillani for Respondents.

Date of hearing: 31st January, 2005.

2006 P L C 374

[Lahore High Court]

Before Syed Jamshed Ali, J

MUHAMMAD NAEEM and 19 others

versus

PAKISTAN INTERNATIONAL AIRLINES CORPORATION through Chairman and 7 others

Writ Petition No.15197 of 2004, decided on 27th January, 2005.

Pakistan International Airlines Corporation Employees (Service and Discipline) Regulations, 1985---

----Regln.7---Industrial Relations Ordinance (XXIII of 1969), S.2 (xxviii)---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(i) & S.O.1(b)---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Permanent workman---Petitioners, who were performing duties in employer Corporation as daily wagers for last so many years had sought declaration that they be treated as its permanent regular employees but their claim was refuted by the Corporation contending that none of the petitioners had qualified the prescribed criteria and their services had already been dispensed with much earlier before the institution of constitutional petition---Validity---Direction for being considered for regularization could only be claimed by an employee who was already in the employment and in case the grievance was against termination of his service, his remedy would be elsewhere---Regularization of service could not be made without undergoing the process of selection.

Writ Petition No.7455 of 2003; Writ Petitions Nos.1489 of 2000, 22088 of 2000, 22445 of 2000 and 1251 of 2001 distinguishable.

M.A. Ghani for Petitioners.

Umar Sharif for Respondents.

2006 P L C 376

[Labour Appellate Tribunal, Lahore]

Before Justice (Retd.) Mian Ghulam Ahmad, Chairman

SENIOR-VICE PRODUCT AND ZONAL CHIEF, HABIB BANK LIMTIED

Versus

MUHAMMAD YOUSAF KHAN

Appeal No.SL-282 of 1995, decided on 17th June, 1995.

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(3)(4)----Misconduct by Bank-employee---Suspension---Grievance petition--Appeal to Labour Appellate Tribunal---Petitioner/employee was suspended from service as on a surprise inspection he was found having indulged in misappropriation of huge amount---Employee was charge-sheeted on said act of misconduct---Employee filed grievance petition with the request that Bank should refrain from imposing upon him major penalty and that charges against him should be withdrawn, during period of suspension---Presiding Officer of Labour Court, straightaway jumped to the conclusion that grievance petitioner/employee had been successful in establishing his case observing that Rules of Bank being not statutory, employee would be governed by provision of West Pakistan Industrial 'and Commercial Employment (Standing Orders) Ordinance, 1968---Labour Court opined that order of suspension was not lawful as maximum period of suspension could be four weeks, whereas in the present case it had exceeded said statutory limit---Labour Court accepted grievance petition filed by employee as prayed for---Validity---Observations made by Labour Court, did not proceed on valid premises as during inspection or at the time of suspension of employee, Management had become aware of misconduct on part of employee---Employee was placed under suspension so that he could not commit further mischief with the record and could not play havoc with the trust reposed in him---Was not a mandatory requirement that employee should also be charged within 30 days of commission of misconduct---Employee could be placed under suspension prior' to initiation of inquiry against him---Bank Rules did not provide as to what should be the extent of period of suspension and what would be the restrictions with regard to the time that should elapse between order of suspension, service of charge-sheet and the conduct of inquiry---Even otherwise those were only technicalities and ultimate interests of justice should not be frustrated because of any technical flaws .pr non-compliance with strict requirement of rules---Labour Court had not given any opinion on soundness or otherwise of the charges of embezzlement levelled against employee and had proceeded to allow" his grievance petition. by technically holding that charge-sheet was time-barred and suspension period had extended beyond prescribed limit.?

1984 PLC 1291; 1980 PLC 906; Ahaider Karachi Pipe Mills Links Karachi v. Mirza Ahsan Beg 1981 PLC 849; 1982 PLC 184; NLR 1978 Labour 177 and 1997 PLC (C.S) 1 ref

Mian Abdul Rashid for Petitioner.

Ch. M. Khalid Farooq for Respondent.

Date of hearing: 2nd June, 1997.

2006 PLC 421

[Lahore High Court]

Before Maulvi Anwarul Haq, J

BANK OF PUNJAB and 2 others

Versus

GHULAM MUSTAFA and another

F.A.O. No.27 of 2005, heard on 29th March, 2006.

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

----Ss. 1(4)(e), 19 & S.O. 1(e)---Industrial Relations Ordinance (XXIII of 1969), S.25-A---Employee of Bank as Godown Officer---Termination of service by oral order---Grievance petition---Plea of petitioner having served as godown officer for more than four years not denied by Bank---Break in service of petitioner not proved, but Bank used to issue appointment letters/orders one after the other erratically---Witness of Bank stated that Bank had absorbed in regular service several similarly placed Godown Officers---Grievance petition was accepted and petitioner was ordered to be reinstated with full back-benefits.

Ikram Bari and 524 others v. National Bank of Pakistan through President and another 2005 SCMR 100 fol.

Suhail Ahmad Janjua for Appellant.

Muhammad Anwar Awan for Respondent.

Date of hearing: 29th March, 2006.

2006 P L C 429

[Lahore High Court]

Before Syed Sakhi Hussain Bokhari, J

Messrs MITCHEEL'S FRUIT FARMS LIMITED through Manager

Versus

MEHBOOB ALI and another

Labour Appeals Nos.44 and 45 of 2004, heard on 9th March, 2006.

Industrial Relations Ordinance (XXIII of 1969)---

----Ss. 25-A & 37(3)---Dismissal from service---Grievance petition---Reinstatement---Appeal to Appellate Tribunal---Employees were dismissed from service after charge-sheeting them and holding inquiry against them on allegation that they gave beating to a co-employee and abused the watchman---Grievance petition filed by employees against order of their dismissal from service having been accepted by Labour Court, employer had filed appeal against order of Labour Court---Co-­employee who allegedly was beaten by the accused employee and was examined by employees as witness, had clearly deposed that he neither quarreled with the employees nor they had given him beating---Said employee also deposed that allegations levelled against employees were also false---Other witnesses had also made similar statements---Statements made by witnesses produced by employers, which were not convincing and confidence inspiring, could not be,believed---Employers were to prove charges levelled against employees but they had failed to prove same---No justification existed, in circumstances to dismiss employees from service---Grievance petition filed by employees was rightly allowed by Labour Court---Well-reasoned impugned judgment, not suffering from any illegality or infirmity, could not be set aside in appeal---Labour Court, had rightly reinstated employees with back-benefit as nothing was on record to show that they had joined any service during period of their dismissal from service.

Shahid Karim for Appellant.

Khalid Farooq Ch. for Respondent No. l.

Date of hearing: 9th March, 2006.

2006 P L C 477

[Lahore High Court]

Before Maulvi Anwarul Haq, J

SHELL PAKISTAN LTD. through Distribution Manager, Karachi

Versus

ASHIQ MUHAMMAD MALIK

F.A.Os. Nos. 69 and 70 of 2004 and Appeal No.242 of 2001, heard on 13th March, 2006.

Industrial Relations Ordinance (XXIII of 1969)---

----S.25-A---Pakistan Essential Services (Maintenance) Act (LIII of 1952), S.3---Termination of services---Grievance petition before Labour Court---Maintainability---Application of Pakistan Essential Services (Maintenance) Act, 1952 did not debar an employee from seeking remedy in Labour Court---Section 25-A of Industrial Relations Ordinance, 1969 vested a workman with the right to take the grievance to Labour Court in case of dismissal, removal or termination of service, grievance petition before Labour Court was, therefore, maintainable-Grievance notice sent through counsel was valid and it was admitted position that neither charge-sheet was served nor proper inquiry was conducted before removing employee from service---Alleged confessional document relied upon by the employer did not disclose any admitted guilt on the part of employee even the termination letter stated not a single reason as to why the services of employee were . being terminated---Employee's statement that he was jobless since the time of his termination was not cross-examined or rebutted, order of Labour Court for reinstatement with 2Q% back-benefits was, therefore, modified to full back-benefits.

Syed Muhammad Hussain v. Messrs Pakistan Tobacco Co. and others PLD 1980 SC 80; Pakistan Television Corporation v. M. Babar Zaman and others 1989 SCMR 1549 and Pakistan State Oil Company Ltd. v. Punjab Labour Appellate Tribunal and 2 others 1994 PLC 553 ref.

Sh. Zia-ud-Din Ahmad Qamar for Appellant.

Muhammad Anwar Awan for Respondent.

Date of hearing: 13th March, 2006.

2006 P L C 499

[Lahore High Court]

Before Mian Saqib Nisar, J

MEHMOOD AHMAD BUTT

Versus

PRESIDENT, MUSLIM COMMERCIAL BANK LTD.

L.A. No. 391 of 2004, heard on 23rd May, 2005.

Industrial Relations Ordinance (XXIII of 1969)---

----S. 25-A---Dismissal from service---Grievance petition--- Employee, despite availing many opportunities, having failed to produce his evidence, his grievance petition was dismissed by closing his right to produce evidence---Contention of employee was that he was suffering from Hepatitis-C and liver diseases and that in connection with his treatment he had gone abroad---Employee had produced a certificate issued by a foreign Doctor, which envisaged that employee was under treatment for the said disease---Possibility that employee could not produce his evidence due to his sickness and he could not timely inform his counsel in that behalf, could not be ruled out and his counsel kept seeking adjournments in routine---In the interest of justice and following principles of law that the rights of the parties must be determined on merits, rather than knocking them out on technical ground, further opportunity was granted to employee as claimed by his counsel to produce his evidence---Impugned order was set aside and case was remanded, accordingly.

Sardar Qasim Ahmad Ali for Appellant.

Ch. Munawar Ahmad Javaid for Respondent.

Date of hearing: 23rd May, 2005.

2006 P L C 529

[Lahore High Court]

Before Muhammad Jehangir Arshad, J

Messrs ALLAH WASAYA TEXTILE AND FINISHING MILLS LTD. through Factory Manager

Versus

QASWAR ABBAS and another

Writ Petition No.638 of 2006, decided on 16th May, 2006.

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

----Orders 1(b) & 10-B---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Workman, status of---Determination---Group Insurance---Entitlement---Brother of respondent was working with employer company who died during service---Respondent claimed to be the only legal heir of the deceased and sought recovery of group insurance as compensation---Commissioner Workmen's Compensation directed the employer to pay such compensation to the respondent--Plea raised by employer was that the deceased was not a permanent worker as defined under Order 1(b) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, hence not liable to receive Group Insurance---Validity---Findings of the Commissioner on the question whether at the time of death of the workers, he was a permanent employee of petitioner or not were wanting in the order---Without recording such findings, the Commissioner could not have burdened the petitioner for payment of Group Insurance to respondent---Order passed by Commissioner Workmen's Compensation was set aside and matter was remanded to him for decision afresh after recording of evidence to such effect---Petition was allowed accordingly.

Malik Ghulam Qadir for Petitioner.

Muhammad Qaswar Abbas Respondent No. 1 in person.

2006 P L C 593

[Lahore High Court]

Before Jawwad S. Khawaja, J

NAVEED-ULLAH KHAN BHATTI

Versus

DIRECTOR, PUNJAB EMPLOYEES' SOCIAL SECURITY INSTITUTION and 2 others

Civil Revision No.1059 of 2001, heard on 26th May, 2006.

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

----Ss. 2(8)(f), 57(f) & 82---Civil Procedure Code (V of 1908), O.VII, R.11---Specific Relief Act (I of 1877), Ss. 42 & 44---West Pakistan Land Revenue Act (XVII of 1967, S.81---Constitution of Pakistan (1973), Art.25---Challenge to vires of notification issued under Provincial Employees' Social Security Ordinance, 1965---Plaintiff through declaratory suit challenged notification issued by Social Security Department for making Social Security contribution---Maintainability---Plaintiff asserted that as his business (petrol station) did not attract provisions of Provincial Employees' Social Security Ordinance, 1965 therefore permanent injunctive order could be issued in his favour to restrain the department from adopting coercive measures against him for securing social security contributions---Department filed application under O.VII, R.11, C.P.C. contending that plaintiff's establishment was duly mentioned in the notification issued under Provincial Employees' Social Security Ordinance, 1965 and suit was not maintainable and that plaintiff had been making social security contributions in the past--Trial Court and appellate Court dismissed plaintiff's suit---Validity---Plaintiff had filed civil suit when coercive measures were adopted against him under West Pakistan Land Revenue Act, 1967---Plaintiff's denial that he had been making social security contribution in the past as alleged by department could not take his case beyond pale of S.57 of Provincial Employees' Social Security Ordinance, 1965---Vires of notification issued by defendant department could only be challenged if notification was in excess of authority conferred by Provincial Employees' Social Security Ordinance, 1965 or it was violative of Art.25 of the Constitution---Mere fact that plaintiff's establishment was included in notification issued by Social Security Department was not sufficient to hold that said notification was in excess of authority conferred by Provincial Employees' Social Security Ordinance, 1965---Power to issue notification undeniably vested in the Social Security Department---Plaintiff could agitate his grievance before forums set up under Provincial Employees' Social Security Ordinance, 1965 as remedies by way of appeals had been provided therein---Suit was not maintainable in circumstances.

Sunshine Dairies Ltd., v. Comm. Sindh Employees' Social Security Institution and others (PLD 1976 Kar. 1228 ref.

Messrs Standard Printing Press v. Sindh Employees' Social Security Institution PLD 1978 Kar. 945 distinguished.

Ch. Ihsan-ul-Haq Bhalli for Petitioner.

Zafar Iqbal Malik for Respondents.

Date of hearing: 26th May, 2006.

2006 P L C 604

[Lahore High Court]

Before Sheikh Azmat Saeed, J

JAVED IQBAL and 20 others

Versus

GENERAL MANAGER, PAKISTAN RAILWAYS, HEADQUARTER OFFICE LAHORE and 2 others

Labour Appeal No.306 of 2005, decided on 3rd July, 2006.

Industrial Relations Ordinance (XCI of 2002)---

----Ss. 1(4), 46 & 48---Jurisdiction of Labour Court, objection to---Appeal to High Court---Counsel for the respondents had taken a preliminary objection that Labour Court had no jurisdiction to adjudicate upon the matter as appellants being employed on a Ministry of Defence line, Industrial Relations Ordinance, 2002 did not apply---Impugned order showed that question of jurisdiction had not been adjudicated upon, it was therefore, appropriate, in circumstances to remand the matter to the Labour Court which would decide, same including the question of jurisdiction of Labour Court---Case was remanded accordingly and objection regarding jurisdiction of Labour Court would be decided within specified period accordingly.

Divisional Superintendent Pakistan Railways, D.S. Office, Lahore and 2 others v. National Industrial Relations Commission through Chairman and others 2000 PLC 667; Railway Worker's Union Regd. through Sardar Shaukat Ali, General Secretary v. Government of Pakistan, Ministry of Railways, through Chairman, Railway Board, Lahore and 2 others PLD 1995 Lah, 333 ref.

Zafar Iqbal Chohan for Appellants.

Omer Sharif, for Respondents/Legal Advisor Pakistan Railways.

2006 PLC 606

[Lahore High Court]

Before Syed Hamid Ali Shah, J

Haji SHEIKH NOOR DIN AND SONS (PVT.) LTD. through Managing Director, Versus

MUHAMMAD INTIZAR and others

Writ Petitions Nos. 19671 to 19711, decided on 28th February, 2006.

(a) Interpretation of statutes---

----Mandatory provisions---Test to determine---Language used--Negative word used in a provision would make same mandatory in nature---Principles.

Real intention of the legislature must be gathered from the" language used. When the negative word is used, then Court will presume that the intention of the legislature was that the provisions were mandatory in nature.

PLD 1957 SC Pak 219 rel.

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

-----S. 17(1)(a)---Appeal without annexing certificate of authority as required by proviso to S.17(1)(a) of Payment of Wages Act, 1936---Effect---Provisions couched with negative covenant in proviso to S.17(1)(a) of Payment of Wages Act, 1936 made such condition mandatory---Such condition, if not adhered to or fulfilled, then appeal would become incompetent---After expiry of statutory period for filing appeal, Tribunal could not permit deposit of amount as directed by Authority through order impugned---Principles.

Messrs Citizen Electrical Co. v. The Authority under the Payment of Wages Act and another Writ Petition No.21023 of 2001; State Bank of Pakistan through General Secretary v. The Democratic Workers Union, State Bank of Pakistan through General Secretary and another" 2003 PLC 391; Messrs Chenab Cement Product (Pvt.) Ltd. and others v. The Banking Tribunal Lahore and others PLD 1996 Lah. 672; Messrs Eastern Rice Syndicate v. Central Board of Revenue and others PLD 1959 SC (Pak) 364; Enmay Zed Publications (Pvt.) v. Sindh Labour Appellate Tribunal through Director-General 2001 SCMR 565 ref.

Mughal Surgicals and others v. Presiding Officer Punjab Labour Court-VII and others 2005 PLC 364; PLD 1957 SC Pak 219; Divisional Superintendent, Pakistan Railways, Rawalpindi v. Muhammad Aslam and 25 others 1986 SCMR 1607 rel.

(d) Interpretation of statutes---

----Proviso---Function of a proviso is to limit or otherwise to qualify the provisions to which it follows.

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

----Arts. 189 & 201---Decision on a question of law by Supreme Court and Full Bench of High Court---Binding effect---Decision of Supreme Court based upon a principle of' law would be binding on High Court---Single Bench of High Court would not prefer Full Bench decision of a High Court over decision of Supreme Court on a question of law.

Sher Muhammad v. Additional Rehabilitation Commissioner Multan and others 1981 SCMR 520 fol.

Khawaja Tariq Masood for Petitioner.

Ch. Khadim Hussain Qaiser, Addl Advocate-General for Respondent No.3.

2006 P L C 617

[Lahore High Court]

Before Syed Hamid Ali Shah, J

MUNAWAR HUSSAIN

Versus

MUSLIM COMMERCIAL BANK LIMITED through President Bank Management and 3 others

Labour Appeal No. 126 of 2005, heard on 15th September, 2005.

(a) Words and phrases---

---"Grievance"---Connotation---Grievance relates to a complaint against an injustice done to a party.

National Bank of Pakistan v. Muhammad Javed Khan 1982 PLC 380 and 1992 CLC 920 ref.

(b) Words and phrases-

---"Mercy"-Connotation-Mercy is a request by a guilty person, who in distress seeks reconsideration of his case on compassionate ground rather than on merits.

National Bank of Pakistan v. Muhammad Javed Khan 1982 PLC 380 and 1992 CLC 920 ref.

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

----S.25-A---Grievance notice, non-issuance of---Mercy petition not a substitute---Grievance petition of workman was dismissed by Labour Court for the reason that he did not bring his grievance into the notice of his employer---Plea raised by the workman was that he had filed mercy - petition to the employer which could be termed as grievance petition---Validity---Seeking review of the order of dismissal in a mercy petition on the basis of ailment could .not, in any manner, be equated with grievance notice---Law required a grievance notice to be served on the employer, which had not been served and as such grievance petition was not maintainable in the eyes of law---Labour Court had rightly dismissed the grievance petition---Appeal was dismissed in circumstances.

Asmat Kamal Khan for Appellant.

Ch. Rahim-ud-Din for Respondent.

Date of hearing: 15th September, 2005.

2006 P L C 623

[Lahore High Court]

Before Syed Hamid Ali Shah, J

Haji SHEIKH NOOR DIN & SONS through Managing Director and others

Versus

MUHAMMAD FAYYAZ and 2 others

Writ Petitions Nos.18386 to 18390, 18428, 19322 and 19323 of 2005, decided on 30th December, 2005.

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

----S.17, Proviso---Constitution of Pakistan (1973), Art.199,--Constitutional petition---Proviso to a provision of law---Legal status---Appeal without certificate---Maintainability---Non-furnishing of certificate---Appeals were filed by employers without the certificate as required under S.17(1)(a) of Payment of Wages Act, 1936, hence the appeals were dismissed---Plea raised by employers was that condition of furnishing certificate with appeal was unconstitutional---Validity---To provide relief to workers, Payment of Wages Act, 1936, was enacted and was a beneficial legislation---Such legislation could not be construed otherwise, therefore, interpretation, which directly or indirectly nullified such provision of law, could not sustain in the eyes of law---Constitutional petitions which were filed to defeat the provisions of S.17 of Payment of Wages Act,. 1936, were not competent---Appeals could not proceed, with which no certificate as per the requirement of S.17 of Payment of Wages Act, 1936, was annexed---Labour Court had passed the order on the basis of law laid down by Supreme Court, which had the binding impact, therefore, did not call for any interference---No infirmity or illegality in the order passed by Labour Court having been found petition was dismissed in circumstances.

Messrs Citizen Electrical Co. v. The Authority under the Payment of Wages Act and another Writ Petition No.21923 of 2001; State Bank of Pakistan through General Secretary v. The Democratic Workers Union, State Bank of Pakistan through General Secretary and another 2003 PLC 391; Messrs Chenab Cement Product (Pvt.) Ltd. and others v. The Banking Tribunal Lahore and others PLD 1996 Lah. 672;others Messrs Eastern Rice Syndicate v Central Board of Revenue and PLD 1959 SC (Pak) 364; Enmay Zed Publications (Pvt.) v. Sindh Labour Appellate Tribunal through Director General 2001 SCMR 565; Syed Match Factory through Managing Director v. The Authority under the Payment of Wages Act and others 2003 PLC 395; Mughal Surgicals and others v. Presiding Officer Punjab Labour Court-VII and others 2005 PLC 634 and Divisional Superintendent, Pakistan Railways, Rawalpindi v. Muhammad Aslam and 25 others 1986 SCMR 1607 ref.

(b) Interpretation of statutes---

----Intention of legislature---Negative covenant---Presumption---Proviso to an enactment---Scope---Real intention of legislature must be gathered from the language used---When negative word is used Court presumes that intention of legislature was that the provisions are mandatory in nature---Function of a proviso is to limit or otherwise to qualify the provision which it follows---Natural consequence, which flows out or ensues from the words employed in a proviso with negative covenant or with its opening with non-affirmative words or negative clause, would be nothing except the logical conclusion that such proviso, when occurring would be deemed to impose a condition and restrict the operation of its parent provision---If such condition is not adhered to or not fulfilled, such proviso, pregnant with same positive purpose should be strictly construed.

President of Islamic Republic of Pakistan's case PLD 1957 SC Pak 219 rel.

(c) Interpretation of statutes---

----Proviso, function of---Function of a proviso is to limit or otherwise to qualify the provision which it follows.

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

----Art.189---Judgment of Supreme Court---Binding nature---Scope---Decision of Full Bench of High Court cannot be preferred over the decision of Supreme Court on a question of law.

Sher Muhammad v. Additional Rehabilitation Commissioner Multan and others 981 SCMR 520 rel.

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

----S.17---Appeal---Seeking permission, beyond thirty days---Effect---Employer sought-permission to file appeal, such permission was declined as it was sought after expiry of thirty days---Validity---After the lapse of statutory period of filing appeal, the request was rightly declined by Labour Court and there was no illegality in the order.

2006 PLC 630

[Lahore High Court]

Before Syed Hamid Ali Shah, J

FAUJI SUGAR MILLS through General Manager

Versus

MEHMOOD AHMED

Labour Appeals Nos. 31 to 55 of 2006, Record on 23rd June, 2006.

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

----S.2(f)(ii)---"Industrial establishment"---Meaning---Plea raised by employer was that Fauji Sugar Mills being a charitable organization, did not fall within the definition of "industry"---Validity---Factory was included in an industrial establishment---Fauji Sugar Mills was a factory, where workmen were employed, therefore, under S.2(f)(ii) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, its status was that of an "industrial establishment".

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

----Ss.1 (4), second proviso & 46---Grievance petition---Maintainability---Plea raised by employer was that Fauji Sugar Mills being an organization connected with Armed Forces, did not fall within the purview of provisions of Industrial Relations Ordinance, 2002, therefore, grievance petitions were not maintainable---Validity---Bare reading of second proviso to S.1 (4) of Industrial Relations Ordinance, 2002, showed that provisions of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, did not apply to industrial or commercial establishment carried by or under the authority of Federal or Provincial Government, where statutory rules of service etc. were enforced---Appellant establishment was not carried on by or under the authority of Federal or Provincial Government and there were no statutory rules of service, therefore, provisions of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, were applicable to the establishment---Grievance petitions were maintainable before Labour Court in 'circumstances.

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

----S.14---Retrenched employee---Re-employment---Principles---Right has been conferred upon a retrenched employee for re-employment if any retrenchment is effected within a period of one year---Such right of re-employment is in accordance with the length of service under the employer---Words used by legislature are "shall be given preference" which make the provision mandatory in nature.

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

----Ss.46 & 48---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.14, second proviso---Retrenched seasonal employees---Re-employment---Vested right---Financial position of establishment---Effect---Due to financial strait-jackets, employer sought permission of Labour Court to close their factory but at the beginning of next season, decided to re-start it---Respondents being seasonal employees, were not re-employed by the employer at the start of next season---Labour Court, after recording of evidence, allowed grievance petitions filed by employees and employer was directed to reinstate them---Validity---Authority was given to the Management, if it deemed necessary, might require a workman to call for work, even before the start of work---If the Management thought, it might do so by sending a notice through registered post---Retrenched worker had right to be taken in employment in accordance with his seniority, if retrenchment was made within one year---Seasonal workman had right to be taken in employment if retrenchment was ended at the beginning of the next season---Right of re-employment of seasonal workman could not be declined on the basis of permission granted to employer to close the establishment in view of their financial strait­jackets---For whatever reasons, at the beginning of next reason, if the employer decided to re-start the factory, the retrenched workmen would have a 'vested right under S.14 of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, to be given opportunity of re-employment---Judgment and order passed by Labour Court was devoid of any infirmity or illegality, therefore, High Court declined to interfere in the same---Appeal was dismissed in circumstances.

Fauji Foundation and another v. Shamimur Rehman PLD 1983 SC 457; Army Welfare Sugar Mills Badin through General Manager v. Army Welfare Sugar Mills Workers Union, Badin through General Secretary and 2 others 2006 PLC 59; M/s Hinopak Motors Limited v. Chairman, Sindh Labour Appellate Tribunal and others 2000 PLC 89; Mian Munir Ahmed v. The State 1985 SCMR 257; Farid Ahmed v. Pakistan Burmah-Shell Ltd. 1987 SCMR 483; Taj Din and 44 others v. Punjab Labour Court No.3, and another 1976 PLC 758; Ememsco Industries Ltd. v. S. Irfan Ahmed and another 1983 PLC 981 and Security Papers Limited v. Sindh Labour Court-V and another 1981 PLC 898 ref.

(e) Industrial dispute---

-----Manpower, hiring of---Intervention of Court---Scope---Hiring of manpower is justified on the ground that it is the right of employer to decide how to manage affairs in the establishment---Employer has the right to outsource, however such right must be bona fide exercised and such outsourcing must be genuine outsourcing and not merely a paper arrangement to shut out a worker and to defeat the provisions of Labour Laws---Where a contractual arrangement is merely a paper arrangement then it is duty of Court to go behind the agreement and to see the real transaction.

Hussain Bhai Calicult v. Alath Factory Union AIR 1978 SC 1410; Dawood Cotton Mills Limited v. Sindh Labour Appellate Tribunal 2004 PLC 348; Fauji Fertilizers Company Limited v. Sindh Labour Appellate Tribunal 2005 PLC 466 rel.

(f) Contract Act (IX of 1872)---

----S.23---Contract against public policy---Scope---Agreement which defeats the provisions of law is void and nullity, according to provisions of S.23 of Contract Act, 1872.

(g) Plea---

----Inconsistent pleas--Effect---Party is debarred from taking inconsistent pleas, which amount to prejudice the right of other party specially and is self-destructive in themselves.

Budho and others v. Ghulam Shah PLD 1953 SC 553 and Mumtaz and 3 others v. Mian Khan PLD 1973 Lah. 47 rel.

Ch. Fawad Hussain and Ch. Muhammad Azam Chatha for Appellant.

Ch. Muhammad Arshad Bajwa for Respondent.

Date of hearing: 23rd June, 2006.

2006 P L C 644

[Lahore High Court]

Before Syed Hamid Ali Shah, J

MUHAMMAD JAVED SAJID

Versus

FAUJI SUGAR MILLS SANGLA through General Manager and another

Labour Appeals Nos. 56 and 99 to 120 of 2006, heard on 23rd June, 2006.

Industrial Relations Ordinance (XCI of 2002)---

----Ss. 46, 48 & 62---Grievance petition---Reinstatement in service--Claim for back-benefits---Appeal to High Court---Labour Court allowing grievance petition filed by appellants, directed respondent/employer to reinstate appellants, but declined prayer of appellants qua back­-benefits---Validity---Held, in order to claim back-benefits, a worker was to assert in his grievance petition that he had been unemployed since his termination and he had also to depose same in his examination-in-­chief---Once it was done by the workman, onus would shift on the employer to prove that workman had been adequately employed---Neither in grievance petition nor in examination-in-chief appellants/workmen had asserted that they had been unemployed and were jobless during period of their termination---Appellants had failed to plead in unequivocale terms as to their unemployment during the period of their unemployment---Order of Labour Court declining prayer of appellants for back-benefits, was devoid of any infirmity or illegality---High Court declined to interfere in the impugned judgment.

Ch. Muhammad Arshad Bajwa for Appellant.

Ch. Fawad Hassain and Ch. Muhammad Azam Chatha for Respondent.

Date of hearing: 23rd June, 2006.

2006 P L C 656

[Lahore High Court]

Before Syed Hamid Ali Shah, J

AHMAD TEXTILE (PVT.) LTD. through Manager

Versus

Mst. SADDIQAN BIBI and another

Writ Petition Nos. 617, 1950, 16635, 16934, 16938, 18996 and 19479 of 2005, decided on 27th June, 2006.

(a) Precedent---

----Citation of precedent---Principles---Precedent case should have resemblance and be identical with the circumstances of the case, going to be decided---Court has to see circumstances of cited case, live issues involved in it and principles of law formulated with regard to such issues---Judgment is precedent for what it actually decides---Mere identical facts or circumstances in two cases would not make decision as precedent of the earlier case binding, unless the Court in earlier case had already decided a question.

(b) Words and phrases---

----Ratio decidendi---Connotation---Ratio decidendi is the reason or ground of a judicial decision; it is the ratio decidendi which makes a decision a precedent for future.

Keeton in Elementary Principles of Jurisprudence p. 106; Lord Hoslbury in "Quinn v. Leathern 1091 AC 495; Qualcast "Wolverhampten Ltd. v. Haynes 1959 AC 473; Trustees of the Port of Karachi v. Muhammad Saleem 1994 SCMR 2213 ref.

(c) Precedent---

----Rule of sub silentio---Applicability---Precedent has to be viewed according to the rule of "sub silentio"---When particular point of law involved in a decision is not perceived by Court or present to its mind, the Court may in certain cases consciously decide in favour of a party on a certain point considering that the party is entitled to relief on another point as well---Court might have not decided the earlier question in favour of particular party, if the second point in favour of such party never existed; in such circumstances, logically the existence of second point was outcome of the decision on the earlier question--.-Decision on earlier point is not an authority, as the former question was decided as sub silentio.

Sheikh Muhammad Rafique Goreja v. Islamic Republic of Pakistan and others 2006 SCMR 1317 and Abdul Bari v. Malik Amir Jan and 4 others PLD 1998 SC 50 rel.

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

----Ss. 7(6), 10-B, 11-A & 12(3)---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Industrial dispute---Group insurance benefits---Jurisdiction of Commissioner for Workmen's compensation---Group insurance benefits payable under S.10-B of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, were decided by Commissioner for Workmen's Compensation, in favour of employees---Grievance of employer was that in such matter, it was the Labour Court to decide- the matter and the Commissioner did not have any jurisdiction---Validity---If legislature intended to confer upon Labour Court the jurisdiction under West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, the same should have been conferred in express terms as it was done under Ss.7 (6), 11-A and 12 (3) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968---Intention of Legislature was clear that the claim under S.10-B (5) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, was to be entertained by the Commissioner for Compensation, appointed under Workmen's Compensation Act, 1923---Only Commissioner. Compensation had the jurisdiction to entertain the claim of workmen. or their legal heirs, for the claim of group insurance---Commissioner had decided the matter in accordance with law without any legal infirmity---Evidence of parties had been appraised properly and after viewing the case from various angles the order was passed---High Court did not find any infirmity in the order in closing the right of defence for additional evidence, as various opportunities were granted but employer failed to avail the same---Order passed by Commissioner Compensation, did not call for interference by High Court in constitutional jurisdiction---Petition was dismissed in circumstances.

Amir Khan through his legal heirs v. Pakistan Mineral Development Corporation 1990 SCMR 1206; PLD 1982 Quetta 87; Muhammad Habib Khan v. Pakistan Tobacco Company Ltd. and another PLD 1991 SC 183; M/s. Crescent Textile Mills v. Commissioner for Workmen's Compensation and another 1980 PLC 222; 1990 PLC 880; 1980 PLC 224; Pakistan Engineering Company's case 1980 PLC 752; M/s. Crescent Textile Mills, Karachi v. The Commissioner for Workmen's Compensation West Division, Karachi and another 1980 PLC 239; H. Nizam Din and Son's case 1987 PLC 536; 1987 PLC 538; 1985 PLC 880 ref.

Z.A. Hashmi for Petitioners.

Zia ul Haq Rana for Respondent No.1 (in Writ Petition No.1950 of 2005).

Mian Naseer Ahmad for Respondent No.3 (in Writ Petition Nos.16635 and 16938 of 2005).

2006 P L C 92

[National Industrial Relations Commission]

Before Justice (Ret.) Tanvir Ahmed Khan, Chairman

STATE LIFE EMPLOYEES UNION, MULTAN ZONE, STATE LIFE BUILDING, through President

Versus

ZONAL HEAD, STATE LIFE INSURANCE CORPORATION OF PAKISTAN, MULTAN

Case No. 4A (229) of 2003, decided on 8th February, 2005.

Industrial Relations Ordinance (XCI of 2002)---

----Ss. 33 & 63---Upgradation of employees---Cancellation of up­gradation---Petition against---Respondent-Corporation by an office order upgraded 12 members of petitioner union who were Record Sorters, Naib Qasids and Qasids but subsequently by an order it cancelled earlier order of upgradation and issued direction for recoveries of amount paid to the said employees due to such upgradation---Validity---Clause qua upgradation was initially settled between Federation and Management in agreement firstly in 1997 and thereafter said clause was incorporated in every settlement---Settlements between Federation and Management respecting upgradation were made voluntarily during successive period and same were culminated by issuing upgradation order on recommendation of Committee by competent Authority---Recommendation of Committee and its consequent implementation through upgradation order was an. outcome of settlements reached between parties---Such an order could not be termed as void or illegal---Plea that petitioner-Union threatened Management and because of that said upgradation was made by the Authority did not reflect from the letters written by petitioner-Union to Management---Order of upgradation was passed whereby a valuable right accrued to incumbents/workers and they started getting benefits of same---Admittedly only those workers were upgraded who had requisite qualification of Intermediate and also satisfied the other requirements of Selection Committee---Impugned order of cancellation of upgradation had been passed in a slipshod manner and no reason whatsoever had been advanced for the same and it had simply been stated that order of up-gradation was null and void---Impugned order which had been passed mechanically without advancing any reason and without giving any opportunity of hearing to aggrieved employees, could not be maintained---There being an agreement between parties to create vacancies to implement settlement arrived at between parties, Authorities could not say that there were no vacancies---Since settlement qua the up-gradation of employee after its implementation was cancelled in an arbitrary manner by establishment---Union being constituent of Federation, had got every right to agitate the same---Order canceling upgradation, passed arbitrarily to damage the cause of Union, was set aside in circumstances.

Chairman Election Committee/Principal, King Edward Medical College, Lahore and 2 others v. Wasif Zamir Ahmad and another 1997 SCMR 15; 2003 PLC (C.S.) 1262; Mazdoor Union Neelam Glass Industries Limited v. Neelam Glass Industries Limited 2005 PLC 219; Lahore Development Authority v. Abdul Shafique and others PLD 2000 SC 207; Manzur Qadir v. Amtul Hussain and two others PLD 1971 Lah, 537; Chaudhry Ghulam Ghaus through Legal Heirs v. Saifullah and another 2001 SCMR 159; Muhammad Anwar Khan and five others v. Chaudhry Riaz Ahmed and five others PLD 2002 SC 491; Imtiaz Ali v. Ghulam Ali PLD 1963 SC 382 and Manager Jammu and Kashmir State, Property in Pakistan v. Khuda Yar and another PLD 1975 SC 678 ref.

Ch. Abdul Rab for Petitioner.

Shakeelur Rehman for Respondents.

2006 P L C 108

[National Industrial Relation Commission]

Before Syed Altaf Hussain Shah, Member, Syed Sultan Ahmad, J.S. (Law) / Member

and Fazal-e-Qadir, J.S. Industries/Member

LUCKY TEXTILS MILLS through General-Manager

Versus

ABDUL RASHID and 14 others

Appeal No.12 (35) of 2003, decided on 15th March, 2004.

Industrial Relations Ordinance (XLI of 2002)---

----Ss. 49(4)(e) & 52---Powers of Single Bench of the Commission---Scope---Appeal against order of re-instatement of employees---Order of re-instatement of employees passed by Single Bench of National Industrial Relations Commission, had been challenged in appeal on the ground that Member of the Commission had exercised powers which were not vested in him and that impugned order had been passed without jurisdiction---Employees had specifically prayed in their original grievance petition for restraining employers to pass an adverse order against their employment, but Single Bench notwithstanding such specific prayer of respondents, while admitting respondents' petition for hearing, had restrained appellant only from gate stopping the employees---Single Bench had neither restrained employees from passing any adverse order as to the employment of employees nor had placed any restraint on employer's right to proceed with the inquiry proceedings against alleged charge of misconduct levelled against employees---Since Single Bench was fully aware of issuance of charge-sheet and result of inquiry and had not restrained appellant from proceeding with the inquiry proceedings, said Bench could not pass an order with retrospective effect---Locus poenitentiae in such circumstances was not available to judicial officer nor he was competent to restore the situation which due to his own failure had gone out of his control---Impugned order passed by Single Bench had no basis either in law or reason---Trade union of which employees were members, was unregistered Trade Union and employees not being members of Collective Bargaining Agent, could not claim pendency of industrial dispute which was a necessary prerequisite for grant of stay order---Single Bench of Commission was not competent to grant an interim order within the contemplation of proviso to clause (e) of S. 49(4) of Industrial Relations Ordinance, 2002---Impugned order, in circumstances was illegal and without jurisdiction---National Industrial Relations Commission had to grant interim relief within framework of Industrial Relations Ordinance, 2002 read with Regl. 32(2) of National Industrial Relations Commission (Procedure & Functions) Regulations, 1973---Powers of the Commission in respect of granting interim relief, were very limited and only those actions could be prevented which apart from falling within the purview, of Ss. 63 & 64 of Industrial Relations Ordinance, 2000, had yet to be committed---Single Bench of Commission had no power under Regl. 32(2) of National Industrial Relations Commission (Procedure & Functions) Regulations, 1973 to re-instate dismissed employees while disposing of application for grant of stay order---Order passed by Single Bench being absolutely illegal, void ab initio and being without jurisdiction, was set aside.

Faisal Mahmood Ghani for appellant.

Ghulam Sarwar Chandio for Respondent.

2006 P L C 151

[National Industrial Relations Commission]

Before: Ghulam Nauman Shaikh, Member

HABIB BANK EMPLOYEES UNION through General Secretary

Versus

HABIB BANK LIMITED through President and another

Case No.4A(279)12002-K 24 (280)/2002-K, decided on 10th March, 2005.

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

----Ss. 49(4)(e) & 63---Petition against unfair labour practice---Subsequent events---Evidence---Admissibility---Procedure---Evidence adduced beyond the pleadings was not permissible under the law and subsequent events and facts after filing of petition, if had arisen, petitioner should have made same as part of petition by filing an application to amend petition---Events and facts which had arisen subsequent to filing of petition, could not be made part of affidavit-in ­evidence when same were not stated in petition.

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

----Ss. 49(4)(e) & 63---Unfair labour practice by employers--Ingredients---Jurisdiction of National Industrial Relations Commission---,Scope---National Industrial Relations Commission was empowered to hear the cases where element of unfair labour practice was against employer, the ingredients whereof had been laid down in S. 63 of Industrial Relations Ordinance, 2002---No such ingredients were spelled out from the petition and absolutely no evidence regarding unfair labour practice had been adduced by petitioner union---Since petitioner union had failed to establish a case of unfair labour practice against employers and scope of National Industrial Relations Commission being limited only to the extent where there was element of unfair labour practice, petition was not maintainable.

Iftikhar Ahmad and others v. President, National Bank of Pakistan and others PLD 1988 SC 53; Malik Nazar Hussain v. National Bank of Pakistan and another 2003 PSC 1209; Eastern Pakistan Railway Workshop v. Chairman, East Pakistan Railway Board and another (2) Secretary, East Pakistan Railway Board 1968 PLC 445 and Binyameen and 3 others v. Chaudhry Hakim and another 1996 SCMR 336 ref.

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

----S. 11---Res judicata, principles of---Application---Principles of res judicata enunciated under S.11 of C.P.C., would apply when the matter had been directly and substantially in issue in a former suit between same parties and it had been heard and finally decided by competent Court---Court would be barred to try any such issue subsequently raised in a subsequent suit.

Pakistan Tobacco Co. Ltd., Chittagong v. The Chairman, Second Labour Court of East Pakistan and 18 others 1972 PLC 190; Works Manager, WADPA Electrical and Mechanical Workshop, Lahore v. Labour Union 1977 PLC 6 and Lahore Development Authority v. Labour Court No.1 Lahore and others 1983 PLC 1284 ref.

Abdul Ghafoor Mangi and Kashif Ghafoor Mangi for petitioner.

Shahid Anwar Bajwa for Respondents.

2006 P L C 203

[National Industrial Relation Commission]

Before Justice (Retd.) Tanvir Ahmed Khan, Chairman, Syed Akhtar Naqi Naqvi and M. Shabbir Jamal, Members

TARIQ MEHMOOD

Versus

PAKISTAN RAILWAYS and others

Appeal No.12(34)/2-L of 2004, decided on 23rd October, 2004.

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

----Ss.22-A(8)(g), 22-D---National Industrial Relations Commission (Procedure and Functions) Regulations, 1973, Reg1.32(2)---Unfair labour practice by employers---Stay application---Appeal against judgment of Single Bench---Employees had alleged that though they were serving in the capacity of Mauwan land on ad hoc basis, but they had been working without any break and that it was decided by employers vide Policy letter to regularize as permanent workers those who were working on ad hoc basis, but employers had dispensed with their services simply to appoint their favourite persons---Employees along with their petition filed under S.22-A(8)(g) of Industrial Relations Ordinance, 1969 had also filed application for temporary relief restraining employers from committing said unfair labour practice---Employers resisted said petition---Single Bench dismissed application for temporary injunction as well as petition of employees---Validity---Single Bench while disposing of application for temporary relief, also disposed of petition filed under S.22-A(8)(g) of Industrial Relations Ordinance, 1969, though there were certain matters to be looked into on merits---Single Bench without providing opportunity of hearing to employees, had observed that prima facie no discrimination being indicated from notification which hit services of employees, question of unfair labour practice by employers or victimization of employees due to Trade Union activities of employees would not arise---Such approach of Single Bench was not justified in view of the fact that if a litigant had asserted something and it was denied and on basis of such assertion if a right was created in his favour, judicial approach would demand that litigant should prove such allegation by some convincing evidence---No such opportunity having been awarded to employees in the present case, verdict of Single Bench could not sustain---Employees having been terminated, no purpose would be served by issuing an order of temporary nature in a mandatory form---Appeal filed by employees was partly accepted to the extent of dismissal of main petition filed under S. 22-A(8)(g) of Industrial Relations Ordinance, 1969---Order under appeal was set aside and matter was remanded back to Single Bench for its decision afresh on merits according to law.

(b) Administration of Justice---

----If a litigant had asserted something which was being denied and on basis of such assertion if a right was created in his favour, judicial approach demanded that litigant should prove that allegation. by way of concrete evidence.

?

H.R. Haider for Appellants.

Ch. Khalilur Rehman for Respondents.

2006 P L C 217

[National Industrial Relations Commission]

Before Qazi Ahmed Saeed, Member

MAZDOOR UNION NEELAM GLASS INDUSTRIES LTD. through General Secretary

Versus

NEELAM GLASS INDUSTRIES LTD. through Managing Director and 2 others

Case Nos.4A (8) and 24 (12) of 2003, decided on 5th June, 2003.

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

----Ss. 49(4)(e), 59, 63(1)(a)(b)(c)(d)---Unfair labour practice by employer---Interim relief---Grant of---Case of petitioner union was that Assistant Director (Labour Conciliation) in connivance with the employers had finalized a settlement for a period of three years, putting illegally a restrictive term regarding retirement of workers at the age of 55 years in said settlement which was neither agreed to by petitioner union nor it was contained in charter of demands served by petitioner union on respondent employers nor any counter charter containing such demand was ever served by the employers---Petitioner-union had further alleged that neither any such demand could be made to reduce the legal rights of workers covered under the law nor a settlement imposing such conditions could be executed---Petitioner union in its petition filed under S. 49(4)(e) of Industrial Relations Ordinance, 2002, had prayed that respondent employers be directed not to refuse to continue to employ members and office-bearers of petitioner union on the basis of restrictive condition regarding retirement of workers at the age of 55 years inserted illegally in Memorandum of Settlement with a view to victimize office-bearers and members of petitioner union---Application for grant of interim stay order was also annexed along with said petition---Employers, had resisted petition and application filed by petitioner-union alleging that in terms of the "Memorandum of Settlement" executed between petitioner-union and employers, age of retirement had been mutually agreed to be fixed as 55 years and said Memorandum was duly signed and executed by President and General Secretary on behalf of petitioner-union and Factory Manager on behalf of employers; it was further contended that petitioner-union had no locus standi to file petition before National Industrial Relations Commission as petitioner-union was excluded by law from espousing the cause of individual workers---Validity---In view of Proviso to cl. (e) of subsection (4) of S. 49 Industrial Relations Ordinance, 2002, National Industrial Relations Commission was barred from granting interim relief against any action mentioned in S. 63(d) of said Ordinance except during pendency of industrial dispute and no said dispute being pending, no ad interim prohibitory order could be issued---Even otherwise ingredients of grant of interim order namely prima facie case, balance of convenience and irreparable loss, were not existing in the case---Application for grant of interim relief, was dismissed, in circumstances---Main petition would be heard in accordance with law.

1992 SCMR 36; 1984 PLC 1359 and 1982 PLC 1 ref.

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

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

Malik Meharban Representative for the Petitioner.

Mushtaq Hussain Bhatti, for Respondents Nos.1 and 2.

Liaquat Ali, Assistant Director Labour for Respondent No.3.

2006 P L C 229

[National Industrial Relations Commission]

Before Ali Nawaz A. Channa, Chairman

JEWAY PAKISTAN WORKERS UNION LTD. (REGD) through General Secretary

Versus

LAKSON TOBACO COMPANY LTD. Through Factory Manager and 3 others

Case No.A (354) of 1997, decided on 20th November, 2003.

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

----S. 22-A(8)(g)---Unfair labour practice by employers---Petition against---Maintainability of petition---Petitioner Union/Collective Bargaining Agent in the Company, had filed petition alleging that as many as 134 workers were working in the Company without appointment letter despite they had service of two to three years at their credit and that their services neither had been regularized nor confirmed and by so doing the Company had committed unfair labour practice---Petitioner had prayed that said workers be regularized, made permanent workers of the company with retrospective effect---Company had raised legal plea that petition filed by petitioner was not maintainable as petitioner being Collective Bargaining Agent had no right to espouse cause of general workers---Validity---Collective Bargaining Agent could raise any industrial dispute on behalf of workers, but it could not get the rights of the individual workers implemented because same being individual right, it was for said individual worker to approach the proper Court---Collective Bargaining Agent could not espouse the causes of workers---If said 134 workers were not issued appointment letters or were not regularized or not confirmed and were not made permanent, it might be an illegality, irregularity or even mala fide act on the part of the Company, but that would not constitute acts of unfair labour, practice---Petition filed by the union was not maintainable in law and was liable to be dismissed.

1992 SCMR 36;1982 PLC 1034; 1988 PLC 91; 1986 PLC 751; PLD 1979 Kar. 473; 1984 PLC 1359 ref.

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

----Ss. 15 & 22-A---Jurisdiction of National Industrial Relations Commission---Scope---National Industrial Relations Commission had jurisdiction to prevent the occurrence of acts of unfair labour practice, but had no jurisdiction to determine the illegality, validity, irregularity or mala fides of any action---Only on proving of ingredients of unfair labour practice, National Industrial Relations Commission could assume jurisdiction---Ingredients of S. 15 of Industrial Relations Ordinance, 1969 dealing with unfair labour practice by employer, were that no employer should prohibit any person from becoming member of any union.

Abdul Hafeez Amjad for Petitioner.

Mushtaq Hussain Bhatti for Respondent No.1.

2006 P L C 258

[National Industrial Relations Commission]

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

SUI SOUTHERN GAS COMPANY

Versus

QURBAN ALI MALIK

Case No. 7A(12) of 2005-K decided on 8th December, 2005.

Industrial Relations Ordinance (XCI of 2002)---

----S. 20(15)---Application seeking permission as required under section 20(15) Industrial Relations Ordinance, 2002---Industrial Relations Commission, while granting permission, had to see whether a prima facie case had been made out for grant of required permission---Charge­sheet, reply thereto and inquiry proceedings against respondent, revealed that prima facie case had been made out for allowing said permission, but interest of justice demanded that a restraint be exercised at the stage when hardly 4/5 days were left in holding secret ballot---If such permission was granted at the stage when referendum was within sight, it could have adverse effect on industrial peace---Said order, however, would be of tentative in nature and applicant company, would be well within its rights to proceed thereafter in the matter in accordance with law particularly so when Single Member of the Industrial Relations Commission had declined to issue a restraint order---Competent Authority, if intended to proceed further in the matter, it would provide full opportunity to respondent and decide same uninfluenced by any observation made in the order.

Faisal Mehmood Ghani for Applicant/Petitioner.

Ch. M. Latif Saghir for Respondent.

2006 P L C 261

[National Industrial Relations Commission]

Before Syed Akhtar Naqi Naqvi, Member

AHMED ALI AYAZ

Versus

LESCO and others

Case Nos.4A (119)/03-L and 24 (129)/03-L decided on 8th September, 2004.

Industrial Relations Ordinance (XCI of 2002)---

------Ss. 49(e) & 63--Unfair Labour practice by employer---Petition against----Show-cause notice served upon petitioner under certain allegations regarding theft of electricity meters and misreading of said meters had been challenged by petitioner under S.49(e) of Industrial Relations Ordinance, 2002 alleging that he had been victimized due to his Trade Union activities---Petitioner had submitted reply to said show-cause notice, but no further action could be taken as petitioner had knocked the door of National Industrial Relations Commission---Irrespective of question of jurisdiction of the Commission, petitioner did not wait for the response of respondents on his reply to show-cause notice and restrained respondents from any further action by obtaining an interim stay order---Nothing was on record to show that respondents had committed any unfair labour practice---Had it been so, some penal action could have been taken against petitioner, but only a show-cause notice was issued to him---Representative of authorities had committed that if reply to show-cause notice issued to petitioner was not found satisfactory, no action would be taken against petitioner without a regular inquiry---Petition filed by petitioner being premature respondents were allowed to proceed further on the reply of show-cause notice submitted by petitioner and if need arose petitioner could move National Industrial Relations Commission, subject to question of jurisdiction.

M. Azeem Muzammal Ch. for petitioner.

Rashid Ahmed, SDO for/Representative/Respondents.

2006 P L C 266

[National Industrial Relations Commission]

Before Syed Akhtar Nazi Naqvi, Member

ALTAF NASIR and others

Versus

MD, BANK OF PUNJAB and others

Case Nos.4A(133)/04-L and 24(135)/04-L, decided on 4th September, 2004.

Industrial Relations Ordinance (XCI of 2002)---

----Ss. 49 (4) (e) & 10---National Industrial Relations Commission (Procedure and Function), Regulations, 1973, Regl. 32(2)---Unfair labour practice by employers---Stay application---Petitioners in their petition had alleged that employers were victimizing petitioners for their lawful trade union activities---Further allegation was that some of them had been sent to far-flung areas and some of them had been dismissed from service without charge-sheeting them---Petition and application filed by petitioners had been contested by employers on the ground that same were not competently filed since Registrar of Trade Unions had dismissed application for registration of union for which appeal was pending---Validity---Admittedly union formed by petitioners and other colleagues had not been registered---Petitioners also were not shown as office-bearers of said union in application for registration of Trade Union---Petitioners prima facie had no case; firstly that they were not office-bearers who had been given protection under S.10 of Industrial Relations Ordinance, 2002 and secondly Union had not been registered so far---So far as balance of convenience was concerned, there would be no question in absence of prima facie case---Alternate remedy being available to petitioners, issuance of a stay order would encourage in the other workers a feeling of possible indiscipline while petitioners could seek their redress under S.10 of Industrial Relations Ordinance, 2002 from the Labour Court where their appeal was pending---Application for interim stay, was dismissed, in circumstances.

Ch. M. Khalid Farooq for Petitioners.

Tafazzul H. Rizvi for Respondents.

2006 P L C 308

[National Industrial Relations Commission]

Before Syed Altaf Hussain Shah, Member/RITU

ALLIED BANK OF PAKISTAN WORKERS UNION through President

Versus

ALLIED BANK LTD. EMPLOYEES' UNION through General Secretary

Case No.19(6) of 2002, decided on 29th April, 2004.

Industrial Relations Ordinance (XXIII of 1969)---

---Ss. 22.EE---Determination of Collective Bargaining Unit---Applicant Union had moved application under S. 22.EE of Industrial Relations Ordinance, 1969 for declaration that whole Allied Bank of Pakistan was one Collective Bargaining Unit---Contention of applicant-Union was that if whole of establishment (Bank) was not declared as one Unit, any Union could apply for such declaration and there could be three or many Collective Bargaining Units in the Bank and thus it was, necessary that whole of the Bank was certified as one Collective Bargaining Unit to keep meaningful interpretation of the term `establishment' Held---Whole Bank could be declared as one Collective Bargaining Unit and that order would remain in field at least for five years---All registered trade unions were directed to amend their constitutions accordingly within specified period.

S. Rais Ahmad Jafri for Petitioner.

Malik Meharban, Labour Representative for respondents Nos.1, 10,11,16 and 17.

Mushtaq Hussain Bhatti for Respondents Nos.8,9,20 and 21.

Shahid Anwar Bajwa for Respondent No.3

Iqbal Ahmed Khan, Labour Officer for RTU Punjab.

2006 P L C 319

[National Industrial Relations Commission]

Before: Ali Nawaz A. Channa, Chairman, Syed Altaf Hussain Shah, Member and Muhammad Iqbal Hussain, Member

AMEER ABDULLAH

Versus

MANAGING DIRECTOR PAK AMERICAN FERTILIZER LTD ISKANDERABAD DISTRICT MIANWALI and another

Appeal No.12 (129) of 2002, decided on 22nd October, 2003.

(a) Practice and procedure---

----Procedure prescribed for the criminal matters was different from the procedure prescribed in civil matters---No law existed by which a criminal complaint could be converted into a civil suit/petition---If the criminal complaint for any reason found defective, or not maintainable, then the proper .course was to withdraw the complaint and file fresh petition---Conversion of criminal case into civil case was not permissible under law.

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

----S.22-A---Civil Procedure Code (V of 1908), Preamble---National Industrial Relations Commission---Functions of---Scope---National Industrial Relations Commission would function under law and it had to pass orders in accordance with law---Civil Procedure Code, 1908 though was not strictly applicable, but the .procedure prescribed by Civil Procedure Code was followed by National Industrial Relations Commission---National Industrial Relations Commission could not work and function in vaccum and it had to follow the law---Conversion of criminal complaint into civil petition by National Industrial Relations Commission, was totally illegal and without jurisdiction because power of the Commission was limited to a particular matter and not general so as to change the whole complexion of the matter.

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

----Ss.22-A & 53---National Industrial Relations Commission (Procedure and Functions) Regulations, 1973, Regln.32---Jurisdiction of National Industrial Relations Commission---Scope---National Industrial Relations Commission had no jurisdiction to reinstate a terminated employee because unfair labour practice, if any, stood already committed---National Industrial Relations Commission had no powers under Regln.32 of National Industrial Relations Commission (Procedure and Functions) Regulations, 1973 to reinstate a terminated employee---National Industrial Relations Commission dealt with two types of unfair labour practices, firstly which was likely to be committed and secondly which had been committed---Unfair labour practice which had already been committed was an offence punishable under S.53 of Industrial Relations Ordinance, 1969 for which a criminal complaint had to be filed and if National Industrial Relations Commission found the employer guilty and awarded him conviction then as a consequential relief the Commission could reinstate terminated employee, but not otherwise---National Industrial Relations Commission without awarding conviction to the employer, had no jurisdiction to reinstate a terminated employee---National Industrial Relations Commission could reinstate a terminated employee only in a criminal complaint and that too subject to finding the employer guilty and not otherwise.

2000 SCMR 826; 1994 SCMR 2213; 1980 PLC 800; 1980 PLC 1191; 1987 PLC 674; 1984 PLC 1342; PLD 1976 Lah. 611; 1984 PLC 397; 1984 PLC 1645; 1994 PLC 1480 and 1990 PLC 599 ref.

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

----Ss.10, 15, 22-A(9)(a), 22-B(3), 37(3) & 53---Unfair labour practice by employer---Dismissal of complaint---Appeal---Employers had initiated legal and proper enquiry against appellant/employee and gave sufficient opportunity to him to put up his defence---Enquiry Officer finding employee guilty, submitted his report and in accordance with that report, employers removed employee from service---Such action of employers could not be said to be an act of unfair labour practice---By initiating and holding inquiry, employers could not be said to be committing acts of unfair labour practice.

Mushtaq Hussain Bhatti for appellant.

Mian Mahmood Hussain for Respondents.

2006 P L C 331

[National Industrial Relations Commission]

Before Syed Altaf Hussain Shah, Member/RITU

In the matter of: DETERMINATION OF CBA IN THE ESTABLISHMENT OF KESC

No. 2(03) of 2003, decided on 26th August, 2003.

Industrial Relations Ordinance (XCI of 2002)---

----Ss. 1, 20(2), 80 & 81---General Clauses Act (X of 1897), Ss. 6 & 24---Application for certification of Collective Bargaining Agent in the establishment---Applicant labour union continued to function as an industry-wise trade union in respondent-establishment till coming into force Industrial Relations (Amendment) Ordinance 1999---On coming into force the said Amending Ordinance, respondent-establishment by insertion of cl(1) to S. 1 of Industrial Relations Ordinance, 1969 was excluded from purview of Industrial Relations Ordinance and Trade Union activities in respondent-establishment stood abolished---After coming into force Industrial Relations Ordinance, 2002, Industrial Relations Ordinance, 1969 stood repealed---Applicant labour union after repeal of Industrial Relations Ordinance 1969, finding itself free from embargo contained in the repealed Ordinance, filed application under S. 20(2) of Industrial Relations Ordinance, 2002 for certification of Collective Bargaining Agent in respondent-establishment---Contention of applicant labour union was that though trade unions in respondent-establishment by operation of amended Ordinance, 1999 were put in abeyance, but after repeal of old Industrial Relations Ordinances by operation of newly-promulgated Industrial Relations Ordinance, 2002, Trade Union activities in respondent-establishment stood revived---Validity---Under provision of S. 6 of General Clauses Act, 1897, unless a different intention appeared, the repeal of any enactment, would not revive anything not in force or existing at the time repeal took place---In absence of any express and specific mention of respondent-establishment in S. 1 of newly-promulgated Industrial Relations Ordinance, 2002, the exclusion of respondent-establishment and its employees from the purview of Industrial Relations Ordinance, 2002 would remain intact---Applicant trade union would still remain inoperative in the premises of respondent-establishment.

PLD 1997 SC 781; PLD 1967 SC 241 ad 1970 SCMR 105 ref.

S. Rais Ahmed Jafri for Petitioner.

Shahid Anwar Bajwa for the KESC Respondent.

2006 P L C 339

[National Industrial Relations Commission]

Before Syed Akhtar Naqi Naqvi, Member

Haji ASHIQ HUSSAIN

Versus

SVP/HABIB BANK LIMITED

Case No.4A(39)/04-L & 24(44)/04-L of 2004 decided on 8th October, 2004.

Industrial Relations Ordinance (XCI of 2002)---

----Ss. 49(4)(e) & 63---Unfair labour practice by employers---Petition against---Maintainability---Jurisdiction of National Industrial Relations Commission---Counsel for respondent-Bank had assailed competency of petition and jurisdiction of National Industrial Relations Commission on the ground that respondent-Bank was in ownership of Federal Government having more than 51% shares therein, employees of the Bank thus fell under S.2-A of Service Tribunals Act, 1973 as they had been declared civil servants---Validity---Bank in question vide Notification No. F-S(8) BKg-III/2002-381, dated 26-2-2004, had been privatized and had been sold out and a Board had been constituted consisting of 8 members including five members as nominees of purchaser while three members as nominees of Government---Bank, in circumstances was no more a property of Government---Bank having been privatized during pendency of case, National Industrial Relations Commission had jurisdiction to entertain petition on allegation of discrimination and victimization of petitioner at the hands of the Bank on account of his trade union activities---Petition, held was maintainable and National Industrial Relations Commission had jurisdiction to adjudicate upon said petition.

1998 SCMR 8220 and 2129; PLD 2003 SC 724 and PLD 1975 Lah. 841 ref

Ch. Ghulam Qadir for Petitioner.

Mian Abdur Rashid for Respondent.

2006 P L C 342

[National Industrial Relations Commission]

Before Syed Akhtar Naqi Naqvi, Senior Member

UBL EMPLOYEES FEDERATION

Versus

UBL and others

Case No.4A (152)/05-L 24(172)/05-L decided on 5th October, 2005.

Industrial Relations Ordinance (XCI of 2002)---

----S. 49(4)(e)---National Industrial Relations Commission (Procedure and Functions) Regulations, 1973, Regln.32(2)---Unfair labour practices on part of employers---Petition against---Grant of interim relief---Application for---Any worker or office-bearer of the Labour Federation, if was under' any apprehension of any hostile act on part of employer against him, could approach appropriate forum under S.49(4)(e) of Industrial Relations Ordinance, 2002, which enabled a worker, C.B.A. Unions, Industry-wise Trade Union or either of them or persons acting on behalf of any of them to get their grievance redressed---Federation was under apprehension of employers' act of exercising legal right against its Federation---Exercise of a legal right could not be termed as an act of unfair labour practice---Apprehension of petitioner seemed to be self-styled---Petitioner ought to have contested petitions in a legal manner and same could not be used as a basis of their apprehension of unfair labour practice against workers/office-bearers of the Federation---Labour Federation in circumstances, had no prima facie case for such a general type of stay order---Labour Federation had equally no balance of convenience in favour of its members or office-bearers since alternate remedies were available to them under appropriate provisions of law, and they would also not suffer any irreparable loss---On the contrary interim relief. as sought by petitioner through application under Regln. 32(2) of National Industrial Relations Commission (Procedure and Functions) Regulations, 1973 would create confusion among respondents and give a licence to the workers of petitioner-federation for office indiscipline---Application for grant of interim relief was dismissed, in circumstances.

Asmat Kamal Khan for Petitioner.

Faisal Mehmood Ghani for Respondents.

2006 P L C 348

[National Industrial Relations Commission]

Before Justice (Rtd.) Tanvir Ahmed Khan, Chairman/RITU

ALLIED BANK LTD. through Attorneys

Versus

ABL WORKERS FEDERATION OF PAKISTAN and 14 others

Case No.7A (16) of 2005, decided on 6th July, 2005.

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

----Ss. 18 (5), 20 (2), 20 (3)(b) & 49 (4)(e)---Federation of trade

unions---Collective Bargaining Agent---Determination---Petitioner being employer sought restraining of respondent, a federation of trade unions, from participating in referendum---Validity---National Industrial Relations Commission was mandated under S.49(4)(e) of Industrial Relations Ordinance, 2002, to determine a Collective Bargaining Agent in any establishment having Federation of Trade Unions---Respondent trade union could not be restrained to participate in the referendum, which was a legal right---All rights which accrued to Federation under the law could be interfered with, unless and until the registration thereof was cancelled---Duty was cast under the provisions of Industrial Relations Ordinance, 2002, upon Federation to associate and cooperate with National Industrial Relations Commission in determination of Collective Bargaining Agent in an establishment---Such practice, if approved would promote healthy trade union activities in the country and would discourage mushroom growth of unions---In case Federation of trade unions was determined as Collective Bargaining Agent, then in that eventuality, the employer would have only to deal with the Federation and not with the federated trade unions---Office­-bearers of the affiliated trade unions would only be promoting their cause through Federation---National Industrial Relations Commission declined to take any -exception to the participation of the respondent-Federation in the referendum---Petition was dismissed in circumstances.

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

----Ss. 6 (2)(b), 20(3)(b) & 54---Federation of Trade Unions---Object and scope---Mushroom growth of trade unions---Measures---Tendency of mushroom growth of trade unions has been discouraged by the provisions of S.6 (2)(b) of Industrial Relations Ordinance, 2002, wherein it has been provided that where there are two or more registered trade unions in an establishment, the third union for its registration would require support of one fourth workers of the total number---Similarly concept of Collective Bargaining Units introduced under S.54 of Industrial Relations Ordinance, 2002, also discourage the mushroom growth of the unions---Concept of federation of trade unions is also a step further in the same direction to discourage the tendency of mushroom growth of trade unions---After formation of federation, the affiliated trade unions would only send their delegates to represent the federation and the employer in that eventuality would only have to deal with the federation and not affiliated trade unions.

Shahid Anwar Bajwa for Petitioner.

S. Rais Ahmed Jafri for Respondents Nos. 2 to 4, 6, 8, 12, 13 and 15.

Malik Meharban Labour Representative for Respondent No. 11.

2006 P L C 357

[National Industrial Relations Commission]

Before: Raja Abdullah Khan, Member

RAJA ABDUL GHAFFAR

Versus

PAKISTAN POST OFFICE, DEPARTMENT through Post Master General Office and another

Case No.4A(43) of 2002, decided on 27th June, 2005.

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

----S.15---Unfair labour practice---Dismissal of workman---Petitioner alleged that the authorities wanted to dismiss him from service and the act was unfair labour practice---Validity---Petitioner was a workman being sorter and was general secretary of the union which was registered with National Industrial Relations Commission---It was not open to authorities to disown him as general secretary of the union till next elections were held and petitioner was not successful in the election---Record showed that petitioner had not violated any rules of conduct by addressing a letter to President of Pakistan regarding Presidential Referendum but he had done so in his capacity as general secretary of the union---As petitioner had already been exonerated of all the charges by the officer who conducted departmental inquiry, the authorities were committing unfair labour practice as alleged by petitioner, which they could not be allowed---National Industrial Relations Commission directed the authorities not to dismiss, discharge or terminate the petitioner from service or otherwise pass any adverse order against him on the basis of such charge-sheet=--Petition was allowed accordingly.

M.K. Khan for Petitioner.

Mrs. Sitwat Jehangir for Respondents.

2006 P L C 367

[National Industrial Relations Commission]

Before: Ghulam Nauman Shaikh, Member

MAZDOOR UNION FARAN SUGAR MILLS LIMITED through General Secretary

Versus

FARAN SUGAR MILLS LIMITED through Chief Executive/Managing Director and 2 others

Case No.4A(183)/2001-K. 24(182)/2001-K, decided on 26th January, 2005.

Industrial Relations Ordinance (XXIII of 1969)---

----Ss. 10, 14 & 22-A(8)(g)---Cancellation of registration of Trade Union---Petitioner-Union had challenged order cancelling registration of Trade Union in petition filed under S. 22-A(8)(g) of Industrial Relations Ordinance, 1969---Petition was resisted by employer on grounds firstly that petitioner-Union being not body corporate under provisions of S.14 of Industrial Relations Ordinance, 1969, said petition had become infructuous and secondly that petition was confined only to office-bearers of Union who were no more in employment of employers---Nothing was available on record to show that petitioner, who claimed to be General Secretary of petitioner-Union, still continued to be General Secretary of the Union---Petitioner-Union registration of which had been cancelled being non-existent, was not a body corporate and petitioner, who claimed to be General Secretary of petitioner-Union, had finally been dismissed from service---No specific instance was therefore, given of any unfair labour practice by respondent employer against workers.

Rana Mahmood Ali Khan Labour Representative for Petitioner.

Faisal Mahmood Ghani for Respondents.

2006 P L C 380

[National Industrial Relations Commission]

Before Justice (Retd.) Tanvir Ahmed Khan, Chairman, Syed Akhtar Naqi Naqvi, Member and Major (Retd.) Shahnawaz Badar, Secy. Labour Punjab/Member

INTIZAR AHMED

Versus

MCB and others

Appeal No.12(53) of 2002-L decided on 28th February, 2005.

Industrial Relations Ordinance (XXIII of 1969)---

----Ss. 22-A(8)(g) & 22-D---Removal from service---Unfair labour practice by employer---Appeal to Full Bench of National Industrial Relations Commission---Appellant was removed from service. after charge-sheeting him and holding inquiry against him on allegation of absence from duty---Member of NIRC in Single Bench having dismissed grievance petition of appellant against order of his removal from service, he had filed appeal before Full Bench of National Industrial Relations Commission under S. 22-D of Industrial Relations Ordinance, 1969---Validity---Inquiry was held against appellant on allegation of misconduct for remaining absent from duty and not on account of alleged Trade Union activities due to unfair labour practice---Requests of appellant were heard and granted during inquiry proceedings, but despite that appellant did not abide by that and absented himself from inquiry proceedings without any justification---Appellant had filed grievance petition after three months of his dismissal from service when he was no more a workman of employer/Management---No unfair labour practice was found on the part of Management---Appellant should have invoked jurisdiction of National Industrial Relations Commission, when alleged acts of unfair labour practice were initiated against him by way of show-cause notice or inquiry proceedings---After action taken, appellant should have moved Labour Court concerned---Grievance petition before Member Single Bench of the Commission, itself was not competent, in circumstances-Neither there was any evidence of victimization nor discrimination on account of trade union activities of appellant---Single Bench of Commission, in circumstances had not committed any illegality of misreading or non-reading of evidence on record or appreciation of law---Appeal being meritless was dismissed.

Malik Ghulam Rasul for Appellant.

Javed Asghar for Respondent.

2006 P L C 394

[National Industrial Relations Commission]

Before Raja Abdullah Khan and Muhammad Shabbir Jamal, Members.

REGISTRAR OF INDUSTRY-WISE TRADE UNIONS, NATIONAL INDUSTRIALRELATIONS COMMISSION, ISLAMABAD

Versus

MUSLIM COMMERCIAL BANK EMPLOYEES TRADE UNION OF PAKISTAN and another

Case No.20(11) of 2004, decided on 6th January, 2006.

Industrial Relations Ordinance (XCI of 2002)---

----Ss. 3(i)(d) & 12(1)(2)---Banking Companies Ordinance (LVII of 1962), S.27-B---Cancellation of registration of " Trade Union---Deputy Registrar (Registration) National Industrial Relations Commission had filed complaint for cancellation of registration of Trade Union in employer Bank on grounds; firstly that Trade Union had never filed its Annual Returns since 1997; that the Trade Union had filed no change of its office-bearers after expiry of last term of its office-bearers and that the Trade Union was illegally constituted body because person who claimed to be the President of said Union was outsider as he had finally been dismissed from service---Validity---Held, Trade Union had failed to submit its Annual Returns to Registrar Trade Union and also failed to communicate change by holding internal elections of the union as required by law---Contention of Trade Union that copies of Annual Returns had been provided to Registrar of Industry-wise Trade Union, had not been confirmed by Deputy Registrar---No valid proof in circumstances was available with regard to submission of Annual Returns and holding of internal elections of the union---Both the said conditions were legal requirements, that had not been fulfilled by Trade Union and was continuously violating law in that regard---Person who claimed to be President of Trade Union had ceased to be employee of employer Bank and being so he was an outsider who had no justification to claim to be President of Trade Union in employer Bank and could not hold office in the Executives of Trade Union in view of S.27-B of Banking Companies Ordinance, 1962 which was applicable in the case---Holding of an office by said outsider in Trade Union in employer Bank, would render it against law and would not legitimize a Trade Union of Bank to carry its activities as a registered body---Registration of Trade Union, in circumstances was liable to cancellation in view of S.12(1)(2) of Industrial Relations Ordinance, 2002---Order of Member of Registrar Industry-wise Trade Unions, directing Deputy Registrar to file instant complaint," was validly made and cancellation of registration of Trade Union, was allowed as prayed in said complaint.

Bank of America Employees Union through General Secretary v. Federation of Pakistan through Secretary Finance Division and 2 others 2003 PLC 143; Habib Bank Employees Union (CBA) through General Secretary v. Federation of Pakistan through Secretary Finance Division, Islamabad and 2 others 2005 PLC 123; United Bank Limited v. Malik Muhammad Hussain and another in Appeals Nos.12(11) of 2004 and 12(12) 2005; Muslim Commercial Bank Ltd. v. Malik Muhammad Ehteshamul Hassan and MCB Employees Trade Union of Pakistan Appeal No.12(176)/99; Idara-e-Kissan v. Registrar of Trade Unions Lahore and others 1995 PLC 134; Habib Sugar Mills Ltd. through Manager v. Registrar of Trade Unions, Government of Sindh and another 2001 P L C 441; General Secretary Port Muhammad Bin Qasim Harbour and Dock Workers Union and others v. C.B.R. and others 2004 T.D. (Labour) 87; Pakistan Engineering Council v. Registrar of .Trade Unions and another 1998 PLC 477; General Tyre and Rubber Company of Pakistan Limited Karachi v. General Tyre and Rubber Employees Union and 2 others Appeal No.12 (174/99; E.O.B.I. Employees Federation v. Messrs Employees Old-Age Benefits Institution 1985 PLC 891 and 1997 PLC 771 ref.

Zakaullah Khan Khalil, Deputy Registrar (R)/Complainant.

Malik Ehteshamul Hassan for Respondent No. l .

Faisal Mehmood Ghani, for Respondent No.2.

2006 P L C 400

[National Industrial Relation Commission]

Before Justice (Retd.) Tanvir Bashir Ansari, Chairman

Syed TASEER MUSTAFA and 52 others

versus

INDEPENDENT NEWSPAPERS CORPORATION

(PVT) LIMITED, KARACHI

Case No. IT(P)/98/05/C/2004, decided on 6th February, 2006.

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

----S. 13(4)---Implementation Tribunal for Newspaper Employees (Procedure and Functions) Rules, 1977, Rr.16 & 17---Applications for payment of difference of admissible increment---Limitation---Applicants had pressed their claim for recovery of arrears of increment according to Fifth Wage Board Award---Factum of employment and respective grades/pay scales of each applicant, was not specifically denied---Such being the position, it was a simple question of calculation of difference of increment as had been given to applicant under Fifth Wage Board Award and the increment as per pay scale determined by Fifth Wage Board Award with effect from its enforcement---All applicants were found to be entitled to recovery of difference of increment between the Fourth Wage Board Award and Fifth Wage Board Award---Said arrears would be paid with effect from effective date of Fifth Wage Board Award---Keeping principle of consistency in view, management would pay 50% of total arrears to each applicant within specified period---Legal objection that applications were barred by limitation, had no force, in view of the fact that no specific period of limitation was provided for filing of application for implementation before the Tribunal---Applications could not be defeated on the ground of laches as non-payment of increment as per Fifth Wage Board Award, was a continuing and recurring cause of grievance and no question of laches in such case would arise, that was particularly so as it was legal obligation of the Management to implement by itself the conditions of prevailing Wage Board Award.

Implementation Tribunal for Newspaper Employees v. Matri Publications Ltd. 2001 PLC (Labour 662) ref.

Sadiq Muhammad Warriach for Petitioners.

Tariq Pervez, Manager (Human Resources), Daily Jang Rawalpindi along with and Muhammad Ali Mazhar for Respondents.

2006 PLC 404

[National Industrial Relations Commission]

Before Ali Nawaz A. Channa, Member

MAZDOOR UNION FARAN SUGAR MILLS through General Secretary

Versus

FARAN SUGAR MILLS LIMITED through Chief Executive and 2 others

Case No.4A(51) of 2003-K, 24(51)/2003-K, decided on 24th July, 2003.

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

----Ss.49(4)(e) & 63---Petition for unfair labour practice by employer---Maintainability---General type of vague allegations were levelled by petitioner-Union against employer which allegations were past transactions---Whatever had happened in the past was condoned or waived by both the parties, because subsequent to those disputes between them, a settlement was arrived at and all allegations of the petitioner-Union stood validated and settled---Said past transactions and past allegations, which had amicably been settled by both the parties, could not be made basis for ground of unfair labour practice in the present petition---Petition by Union being devoid of material grounds and instances of unfair labour practice, was not maintainable.

PLD 1988 SC 53 ref.

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

----S.O. 11-A---Industrial Relations Ordinance (XCI of 2002), Ss.49(a)(e) & 63---Petition against unfair labour practice by employer---Standing Order 11-A of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 dealt with two situations, one was that employer could not terminate the services of more than 50% of employees while other part of it had stipulated that employer could not close down the whole of establishment---Both said situations were subject to permission of concerned Labour Court---Second part of S.O.11-A of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 had made the closure of whole establishment, an unfair labour practice on part of employer---If whole establishment was closed without permission of Labour Court, then it would be an act of unfair labour practice by employer, but if more than 50% employees were terminated, it had not been made act of unfair labour practice under S.63 of Industrial Relations Ordinance, 2002---Act of terminating more than 50% of employees might be an illegal act which could be cognizable by Labour Court and appeal could be heard by Labour Tribunal, but it could not be construed to be an act of unfair labour practice by employer.

1983 PLC 74, 1991 PLC 305; NLR 1981 T.D. 245; 1998 PLC 490 and NLR 1997 T.D. 507 ref.

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

----S. 49(4)(e)---National Industrial Relations Commission (Procedure and Functions) Regulations, 1979, Regln.32---Reinstatement of terminated employees---Jurisdiction of National Industrial Relations Commission---Scope---Services of employees were terminated and letters of termination were sent to all of them by post and through courier service and some of employees had received their termination letters---Petition under S.49(4)(e) of Industrial Relations Ordinance, 2002 was filed by employees after about one and half month from their termination---By the time of filing of said petition, unfair labour practice, if any, had already been committed and completed---National Industrial Relations Commission, in circumstances, had no jurisdiction to grant relief claimed by employees in their petition and such relief could be granted to them by Labour Court---Right and correct remedy for terminated employees, was to approach Labour Court as the National Industrial Relations Commission had no jurisdiction to entertain such petition of terminated employees and had no jurisdiction to reinstate them.

PLD 1976 Lah. 611; 1984 PLC 1480; 1990 PLC 599; 1994 PLC 476; Judgment of Hon'ble Court of Sindh in C.P. No.D-1197/97 decided on 19-9-1997; C.P. No.D-1348/80 decided on 1-10-1980; C.P. No.D-1567/97 decided on 3-12-1997; PLD 1976 Lah. 641 and 1984 PLC 1342 ref.

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

----Ss.33 & 49(4)(e)---Authority of Collective Bargaining Agent---Collective Bargaining Agent had no right to espouse the causes of workers and could not approach National Industrial Relations Commission for redressal of individual grievances of workers.

1984 PLC 1359; PLD 1979 Kar. 473; 1992 SCMR 36; 1995 PLC 414; 1981 PLC 805; 2001 PLC 543; 1991 PLC 44; 2001 PLC 503; 1992 SCMR 36 and 1986 PLC 751 ref.

M.A.K. Azmati for Petitioners.

Faisal Mahmood Ghani for Respondents.

2006 P L C 436

[National! Industrial Relations Commission]

Before Raja Abdullah Khan and Muhammad Shabbir Jamal, Members

REGISTRAR OF INDUSTRY-WISE TRADE UNIONS, N.I.R.C., ISLAMABAD

Versus

PAKISTAN TELECOMMUNICATION LIONS STAFF UNION

through President/General Secretary, Karachi and another

Case No.20 (8) of 2002!, decided on 30th December, 2004.

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

----Ss. 9, 12 & 15---Registration of Trade Union---Deregistration and cancellation of Trade Union---Registration of a ' Trade Union was a phenomenon that would come into being on satisfactory fulfilment of certain formalities under the law---Process of registration was a time consuming and resource utilization activity---Trade union, as a registered body, exercised immunity from certain civil suits and in respect thereof law of.criminal conspiracy as laid down in Pakistan Penal Code, .1860, was also limited in application---Registration of Trade Union was a privilege and sanctity attached to it made it functional to strive for protecting rights and furtherance of interests of workers albeit prior permission or authorization was needed for formation of trade union---Any measure directed towards cancellation of registration of a Trade Union, needed to be taken with full care and caution---Deregistration of a Trade Union, in fact was a harsh step which would deprive it from privilege to work lawfully for the betterment of workers and also would have serious repercussions on lives of workers---As far as possible its deregistration should be avoided in the interest of good industrial relations---Registration of trade union should not be cancelled on basis of certain legal technicalities.

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

----Ss. 9 & 12---Right to form Trade Union---Scheme of Industrial Relations Ordinance 2002 and International Labour Organisation--Cancellation of Trade Union---Right to form union had been guaranteed under the Constitution and under Public Policy announced by Government from time to time---Said right had allowed workers to negotiate collectively in accordance with law and also under International Labour Convention, 1998 (Collective Bargaining) ratified by Pakistan---Non-registration of a Trade Union, in fact disallowed it to carry out its legal activities within meaning of said instruments of public importance---Scheme of Industrial Relations Ordinance 2002, based largely and conceptually on 'ILO's' said instruments, was such that workers and employers bodies, that were freely established, could not interfere in each other's affairs---Such essence of law would go to strengthen the paradigm of non-interference and would substantiate arguments that employer or management had no locus standi to file complaint with Registrar Industrial Trade Unions for cancellation of registration of Trade Union---Employer in the present case filed complaint against Trade Union for its deregistration almost after four years of its registration---Employer's own action, in circumstances was fully circumvented by principle of estoppels in terms of law and fact---Trade union which had many years of service to the workers to its credit as a legitimate registered body, could not be deprived of privilege of registration merely by a stroke of pen at the instance of a party who had no locus standi to challenge it---Non-filing of Annual Returns in time, was a rectifiable matter and if rectified, it should not constitute any basis for deregistration---In absence of any just cause to concede request of Deputy Registrar for cancellation of registration of Trade Union, same could not be accepted---Complaint was dismissed.

Zakaullah Khan Khalil for Appellant.

?Haji Khan Bhatti for Respondent No. 1.

?Naeem Bokhari for Respondent No.2.

2006 P L C 450

[National Industrial Relations Commission]

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

FRONTIER LABOUR CONTRACTOR through Proprietor

Versus

MUHAMMAD YOUNAS and others

Appeal Nos.12 (22) and 12(23) of 2004-L decided on 8th, December, 2004.

Industrial Relations Ordinance (XCI of 2002)---

----Ss. 2(xxx) & 52---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S. 0.20---Factories Act (XXV of 1934), S.2(g)(h)---Appeals against judgment of Single Bench of Commission before Full Bench---Status of respondents as permanent employees---Determination of-Contract Labour Single Bench in its judgment, had found that certain respondent/employees were permanent employees of employer corporation as they were constantly working in the corporation and Social Security contribution was also paid to the Department by the Corporation---Both Contractor and the Corporation had nullified claim of respondent employees that they were employees of Corporation and that they had attained permanent status and had assailed impugned order of Single Bench in the same tone and on same grounds---Main contention of Corporation was that employees were not employees of , the Corporation, but were employees of the contractor---Judgment of, Single Bench was also assailed on the ground that judgment was not announced in open Court, but was orally announced in Chamber without having been made in writing---Objections of Corporation and the Contractors were not tenable firstly because employees were working, constantly in the concern of Corporation which was an industry and secondly that contribution towards Social Security Institution on behalf of said employees was paid by the Corporation and not by the contractors---All workmen whether employed directly or through an agency/contractor who were engaged to do any job in manufacturing process, were covered as `workmen' and it was employer's liability to provide their rights and benefits under the law, which did not draw any distinction between workers directly employed or workers employed through an agency or contractor---Regarding objection of Corporation that Single Member had pronounced oral judgment in his Chamber without writing and not in open Court, Single Member had recorded same in presence of parties in his order that he remained busy in shifting of his residence and so he could not find time to peruse lengthy case---Single Member adjourned case and on adjourned date Single Member in presence of employees and one of the appellants announced that by means of his separate order, petition had been accepted---By such an order Single Member had committed no mistake of law--In absence of any error or omission in impugned order of Single Bench, same could not be interfered with in appeal by Full Bench.

Sind Employees Social Security Institution v. Pakistan National Product 1989 PLC 81; Hussainbhal, Chalicut and Alath Factory Thozhilall Union, Calicut and others 1978 PLD 397 and M/s. Basti Sugar Mills Ltd. v. Ram Ujagar and others AIR 1964 Sc 355 ref.

Omar Alvi for Appellant (in Appeal No.12(22) 2004-L)

Ch. Abdul Rab for Appellant (in Appeal No.12(23) 2004-L)

2006 P L C 481

[National Industrial Relations Commission]

Ali Nawaz A. Channa, Member, NIRC

MUSLIM COMMERCIAL BANK LTD. through Head of Human Resources Division

Versus

M.C.B. STAFF UNION OF PAKISTAN through President and 2 others

Case Nos.4A (224)/2001-K of 24(223)/2001-K, decided on 13th October, 2003.

Industrial Relations Ordinance (XXIII of 1969)---

----S. 22-A(8)(g)---National Industrial Relations Commission (Procedure and Functions) Regulations, 1973, Regln. 32(2)(c)---Banking Companies Ordinance (LVII of 1962), S. 27-B---Unfair labour practice---Case of petitioner-Bank was that two of its dismissed employees who after dismissal from service of the Bank had become outsider, not only were posing themselves to be the President and Patron of Trade Union, but also were doing such activities which were prejudicial to smooth running of the Bank---Further allegation was that said two dismissed employees were publishing and distributing pamphlets thereby inciting employees of the Bank to disturb the peace, tranquility and smooth running of the Bank---Bank had prayed that said two dismissed employees should be restrained from posing themselves to be President and Patron of the Trade Union---Under provisions of S. 27-B of Banking Companies Ordinance, 1962, specific prohibition was provided that one who was not an employee of the Bank, could not become member of the Trade Union---Dismissed employees of the Bank were debarred from claiming office-bearership from outside quota---Accepting petition tiled by the Bank it was directed that two dismissed employees should not pose themselves as President or Patron of the Union nor should claim themselves to be affiliated with Union in any capacity.

Bank of America Employees' Union v. Federation of Pakistan 2003 PLC 143 ref.

Faisal Mahmood Ghani for Petitioner.

Respondents ex parte.

2006 P L C 483

[National Industrial Relations Commission]

Before Qazi Ahmed Saeed, Member

SAQIB ZUBAIR LODHI

Versus

PAKISTAN TELECOMMUNICATION COMPANY LIMITED through General Manager

Case No.4A(95)/2000, 24(170)/2000, decided on 28th May, 2003.

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

----Ss.15 & 22-A(8)(g)---Issuance of show-cause notice---Allegation of unfair labour practice by employer---Proof---Show-cause notice was issued to the employee on allegations against him which included gross-misconduct, corruption, misusing his position, irregularities in his duty and misbehaviour with general public---Issuance of show-cause notice, had been challenged by employee in his petition filed under S.22=A(8)(g) of Industrial Relations Ordinance, 1969 alleging that he had been victimized due to his active participation in activities of Staff Union of which he was Regional Deputy General Secretary, which amounted to unfair labour practice on the part of employers---Employee, though had claimed to be member and office-bearer of respective Staff Union, but he had failed to establish a single trade union activity which could annoy the employers to such an 'extent that they would go out of their way to victimize him---In absence of any cogent evidence, it could not be believed that employee was victimized by the employers---Issuance of show-cause notice by employers to the employee, in circumstances, could not form basis for holding that employers had committed an act of unfair labour practice---Show-cause notice having been issued to the employee on allegations of misconduct, corruption and misusing of his position, etc., National Industrial Relations Commission, had no jurisdiction to interfere with the matter because jurisdiction of said commission was restricted and limited only to cases based on allegation of unfair labour practice---Employee had failed to quote any specific instance of unfair labour practice on the part of employers---Mere bold allegation of unfair labour practice, was not sufficient to prove victimization of employee and to make his case amenable to interference by National Industrial Relations Commission---Relief prayed for by employee, could not be granted to him---Petition filed by employee was dismissed, in circumstances.

2000 PLC (C.S.) 796; 1999 PLC 57; 1999 PLC (C.S.) 208; 2002 PLC (C.S.) 526; 2002 PLC (C.S.) 1106; 1994 SCMR 2232; 1984 PLC 1203; 1999 PLC 93; Iftikhar Ahmed's case PLD 1988 SC 53; 1991 PLC 876; 1988 PLC 923; 1988 PLC 419 and 1994 PLC 31 ref.

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

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

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

----Ss.15 & 22-A---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.0.15---Disciplinary proceedings against employee---Powers of employers---Allegation of unfair labour practice---Jurisdiction of National Industrial Relations Commission---Scope---To proceed with disciplinary proceedings, was an exclusive domain of employer and unless there was a streak of unfair labour practice showing that disciplinary proceedings were being used as a cover for an unjustified action, victimization and unfair labour practice, National Industrial Relations Commission would have no jurisdiction to. go into regulating or otherwise of disciplinary proceedings---To take disciplinary proceedings against any employee was vested right of employer and National Industrial Relations Commission had no jurisdiction to interfere----If, however, an action of Management was found to have been initiated by way of victimization or unfair labour practice the Commission would then have jurisdiction to interfere with proposed action otherwise jurisdiction of Commission was completely ousted, because assumption of jurisdiction by Commission depended upon prima facie element of unfair labour practice.

Mushtaq Hussain Bhatti for Petitioner.

Ch. Muhammad Ashraf Gujjar for Respondents.

2006 P L C 494

[National Industrial Relations Commission]

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

Saeed, Members

JAVED IQBAL

Versus

DIVISIONAL ENGINEER (PHONES) IQBAL TOWN, SARGODHA and another

Appeal No.12(12) of 2002-L, decided on 24th June, 2003.

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

----Ss.22-A(8)(g) & 22-D---Termination of service---Petition against unfair labour practice by employer---Employee was appointed as Telephone Operator on temporary basis and he was terminated after period of three and half years---Employee had claimed that though he was appointed on temporary basis, but as he had worked on the post for a period of about three and half years, he was entitled to be absorbed and confirmed in the post, but employers, as an act of unfair labour practice, not only had refused to absorb him on that post, but had terminated his service---Validity---Employee was .appointed against temporary leave vacancy and it was made clear in his appointment order that his appointment was on a purely temporary post and that employee would have no right to be confirmed on the said post---Even otherwise by policy framed by employer, qualification for the post of Telephone Operator was fixed to be Intermediate, but employee did not conform to said qualification as he was Matriculate---Contention of employee that alleged policy having been made long after his appointment, could not be given retrospective effect, was repelled because said policy though was not to be given retrospective effect, but it was particularly applicable to the persons who were holding temporary job and employee admittedly was holding a temporary job---Said policy was applicable to employee and he being not in conformity with said policy, was not entitled to be confirmed or absorbed in service---Petition under S.22-A(8)(g) of Industrial Relations Ordinance, 1969 having been filed against employer after about two months of termination of service of employee, alleged unfair labour practice, if any, was already committed and completed---National Industrial Relations Commission, in circumstances had no jurisdiction to entertain the petition---Petition being not maintainable, was rightly dismissed by Member National Industrial Relations Commission and order of the Member not suffering from any infirmity, misreading or non-reading of evidence, could not be interfered with in appeal.

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

----S.22-A(8)(g)---Petition against unfair labour practice by employer--Jurisdiction of National Industrial Relations Commission---Scope---Jurisdiction of National Industrial Relations Commission would extend to prevention of acts of unfair labour practice, but where acts of unfair labour practice had already been committed, then the Commission had no jurisdiction under S.22-A(8)(g) of Industrial Relations Ordinance, 1969 to entertain such petition---If employee was aggrieved that he was terminated from service on account of his trade union activities, then remedy for him was either to file a complaint under S.53 of Industrial Relations Ordinance, 1969 or to approach Federal Service Tribunal for redressal of his grievance---Since alleged unfair labour practice was already committed and completed, petition filed by employee was not maintainable, particularly when employee had failed to give instances of unfair labour practice committed by employer---Merely being a member of a Union, would neither furnish instances of unfair labour practice nor would be sufficient for holding that employee was indulging in trade union activities due to which employers were annoyed with him---Employee having failed to quote instances as to what trade union activities he was doing which annoyed the employer; petition filed by employee was declared to be devoid of substance.

1976 PLC 47; 1990 PLC 599 and 1984 PLC 1342 ref.

Malik Mehrban, Labour Representative for Appellant.

M.D. Chaudhry for Respondents.

2006 P L C 501

[National Industrial Relations Commission]

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

Saeed, Members

CHIEF MANAGER OF PLANNING AND INSTALLATION, TELEPHONE

INDUSTRIES OF PAKISTAN,ISLAMABAD and another

Versus

MUHAMMAD SALEEM and 5 others

Appeal No.12(128) of 1999, decided on 24th June, 2003.

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

---Ss. 15, 22-A(8)(g) & 22-D---Termination of service---Reinstatement---Appeal---Allegation of unfair labour practice by the employer---Employees filed petition before Member National Industrial Relations Commission under S.22-A(8)(g) of Industrial Relations Ordinance, 1969 with a prayer that they be reinstated in service; that they be declared as permanent employees and that their termination by employer, was illegal and an act of unfair labour practice---Employees were employed by employer on contract basis for a limited period and after every contract employment there was a gap---Gap of about three and a half years was found which would mean that no continuity of service of employees existed---Employees, in circumstances, neither were permanent employees nor employees were performing their duties continuously---Appointment letters had also revealed that employees were being appointed purely on contract basis and facilities available to permanent employees were not being extended to them---Employees, in circumstances, could not be treated as permanent or regular employees---Appointment orders of employees had also revealed that they were not working on the same posts, but they were being appointed at places where some work was to be started and was being done at different places---Employees, in circumstances, could not be said to be working on same posts for a continuous period---Employers thus had the competence to terminate contract of service at any time and it was not necessary that written order should have been issued for termination of employees on the expiry of contracts as their services would automatically come to an end---Services of employees, in circumstances were rightly terminated orally and order reinstating them passed by Member National Industrial Relations Commission, being without jurisdiction, could not sustain.

PLD 2000 SC 50; 2002 PLC 67 and Dr. Anwar Sehto and 339 others v. Federation of Pakistan and others PLD 2002 SC 201 ref.

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

----Ss. 15 & 22-A(8)(g) & 22-D---Petition against unfair labour practice by employer---Merely submission of charter of demands with the employer by Collective Bargaining Agent would not spell out instances of unfair labour practice---If employer had any reason for annoyance, that could have been against office-bearers of Collective Bargaining Agent Union who submitted the charter of demands and not against employees---Employer and Collective Bargaining Agent could have held negotiations and chances existed that employer might not have acceded to demands of Collective Bargaining Agent for declaring temporary employees as permanent---Such conduct would not furnish instances of unfair labour practice on part of employer to terminate services of employees---Petition of employees before Member National Industrial Relations Commission was without instances of unfair labour practice---Employees, in the present case had not mentioned their own actions towards activities of trade union which prompted employers to take action against them---Merely becoming a member of any union or merely submission of charter of demands by Collective Bargaining Agent, would not furnish grounds which might annoy or motivate employers to take action against employees.

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

---Ss.15, 22-A(8)(g) & 53---Jurisdiction of National Industrial Relations Commission---Employees whose services were terminated, had approached National Industrial Relations Commission by filing petition under S.22-A(8)(g) of Industrial Relations Ordinance, 1969 after five days of their termination---Alleged unfair labour practice, if any, having stood already committed, National Industrial Relations Commission, had no jurisdiction to entertain petition of employees under S.22-A(8)(g) of Industrial Relations Ordinance, 1969---Powers of National Industrial Relations Commission were to prevent the occurrence of acts of unfair labour practice, but if the acts of unfair labour practice had already been committed and completed then National Industrial Relations Commission would have no jurisdiction---Terminated employees could not approach National Industrial Relations Commission under S.22-A(8)(g) of Industrial Relations Ordinance, 1969, but if they wanted their re-instatement in service on ground of unfair labour practice of employer, they had to tile complaint under S.53 of Industrial Relations Ordinance, 1969 and upon conviction of employer, employees could be reinstated in service and not otherwise---In exercise of power under S.22-A(8)(g) of Industrial Relations Ordinance, 1969, a terminated employee could not be reinstated in service.

1976 PLC 47 and 1990 PLC 599 ref.

Syed Rais Ahmad Jafri for Appellants.

Mushtaq Hussain Bhatti for Respondents.

2006 P L C 509

[National Industrial Relations Commission]

Before Ali Nawaz A. Channa, Member

MUHAMMAD ILYAS BABAR and others

Versus

Messrs PEARL CONTINENTAL HOTEL, KARACHI through General Manager and

others

Cases Nos.4A(136) to 4A(138), 4A/140 and 4A(146) of 2003-K, decided on 20th January, 2004.

Industrial Relations Ordinance (XLI of 2002)---

----S. 49(4)(e)---Unfair labour practice by employers---Petition against---Petitioners had alleged that they were working in the hotel as Front Office Cashier, but employer by their circular combined the job of Receptionist/Front Office Cashier and by changing nomenclature, petitioners were designated as `Officers' with mala fide motive that petitioners would cease to be workers and thereby discontinue their Trade Union activities---Petitioners had alleged that with new assignment they would become officers and would cease to be workers and would be deprived of many facilities and incentives which they used to get as workers---Petitioners had prayed that said circular be declared as an act of unfair labour practice of employers and that employers be restrained from giving effect to the said circular---Plea of employers was that said circular had been issued as uniform policy which had been successfully implemented at other Hotels owned by the employer, it could not, in circumstances, be said that the Circular was a discriminatory act of employer aimed at only targeting the petitioners as alleged by petitioners and if Front Office Cashiers of their other hotels had accepted said arrangement then petitioners had no valid reason to challenge it on ground of unfair labour practice by employers and on ground of mala fides---Petitioners had not controverted the fact that such type of arrangement was in vogue throughout the world---Petitioners were not office-bearers of any Trade Union, but were only active members of Trade Union---Merely being active member was no ground for depriving of Trade Union activities---Petitioners as ordinary members, could not be taking any active part in the Trade Union activities, whereas it would be the function of office-bearers-Version of petitioners that by said change they would be deprived of their Trade Union activities, had no force, in circumstances---After combination of both the posts, petitioners would be given many incentives such as they would be promoted and they would be given raised salary thereby they would be adequately compensated---With the change of nomenclature, petitioners could not be said to be deprived of facilities---Petitions filed by petitioners being devoid of any instance of unfair labour practice, were not maintainable in law.

Ch. Latif Saghar for Petitioners.

Faisal Mahmood Ghani for Respondents.

2006 P L C 513

[National Industrial Relations Commission]

Before Qazi Ahmed Saeed, Member

Syed IKRAM MUSTAFA BOKHARI, SENIOR SUB-EDITOR ASSAS PUBLICATION and 44 others

Versus

ASSAS PUBLICATIONS, through Editor-in-Chief and 2 others

Case No.4A(44) of 1999, decided on 20th June, 2003.

Industrial Relations Ordinance (XXIII of 1969)---

----Ss. 15 & 22-A(8)(g)---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.Os. 12 & 13---Termination 6f service---Allegation of unfair labour practice by the employer---Order terminating services of employees did not show that any notice was given or wages paid in lieu of notice to employees---No cogent reason had been assigned for terminating services of employees, except that "due to financial constraints being faced by the newspapers and non-availability of required working capital, employers were compelled to discontinue publishing of dak-edlitions"---Services of employees, in circumstances, had been terminated in gross violation of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, especially when employers had failed to prove that employees were employed for a particular Edition of Newspaper which allegedly were closed or that doctrine of first come last go was adopted---Witness of employers had admitted in his cross-examination that after termination of services of employees, employers had given advertisement for appointment of new employees and that alleged closed Edition of Newspapers were restarted in colourful pages and also number of pages had been increased in the said Edition---Record had also confirmed that employees had been terminated in utter disregard and contravention of undertaking earlier given in the case whereby employers had assured that services of employees would not be terminated---Employees who were active members and office-bearers of Collective Bargaining Agent Union in employer's establishment, had succeeded in proving that they had been targeted and victimized due to their legitimate trade union activities---Employees had proved unfair labour practice of employers in terminating their services---One of employees had accepted his termination and had received his termination dues from employers and another one was a trainee and not worker--Petition filed by employees was accepted excluding said two employees and others were ordered to be reinstated in service with full back-benefits.

Sethi Straw Board Mills Ltd., Rawalpindi v. Punjab Labour Court Lahore and 2 others 1977 PLC 402 ref.

Muhammad Kashtoonish Khan for Petitioners.

Syed Kazim Hussain Kazmi for Respondents.

2006 P L C 533

[National Industrial Relations Commission]

Before Ali Nawaz A. Channa, Member

SAADAT BABAR KHATAK and 26 others

Versus

Messrs HOTEL AL-MASHRIQ AND QABAIL RESTAURANT through Managing Director/Manager/Occupiers

Case No.4A(30) of 2002-K, and 24(2(9) 2002-K decided on 28th September, 2002.

Industrial Relations Ordinance (XXIII of 1969)---

---- Ss.2(viii)(xxviii) & 22-A(8)(g)---Allegation of unfair labour practice by the employers---Relationship of employers and employees, proof of---Petitioners, who claimed to be employees of the respondents had filed petition under S.22-A(8)(g) of Industrial Relations Ordinance, 1969---Petitioners in' their said petition had alleged that when they filed application for registration of trade union, before Registrar of Trade Unions, respondent became hostile and threatened petitioners to withdraw their application for registration of trade union otherwise they would be dismissed from service---Respondent denied relationship of employers and employees between the parties contending that name of the respondent establishment was the one which had nothing to do with the establishment the employees were agitating against and it was a separate entity---Respondent had produced registration certificate issued by the concerned Department which had clearly shown the respondent as the one respondent had claimed and the establishment which was made respondent in the case was not mentioned in the certificate---Employees could not prove that they were employees of the respondent as they neither could produce their appointment orders nor any payrole and they also could not produce any other documents to show that they were employees of the respondent---Petitioners, in circumstances had no nexus with respondent---Since there was no relationship of employers and employees between the parties, petitioners had no right to invoke jurisdiction of National Industrial Relations Commission by filing petition under S.22-A(8)(g) of Industrial Relations Ordinance, 1969---Petition filed by petitioners being false and frivolous, was not maintainable and was liable to be dismissed.

Nemo for Petitioners.

Ch. Latif Saghar for Respondents.

2006 P L C 543

[National Industrial Relations Commission]

Before Qazi Ahmed Saeed, Member

NATIONAL BANK OF PAKISTAN STAFF UNION (HEAD OFFICE) through Secretary General

Versus

REGISTRAR INDUSTRYWISE TRADE UNIONS NATIONAL INDUSTRIAL RELATIONS COMMISSION, ISLAMABAD and 19 others

Case Nos. 19(01) and 24(02) of 2003, decided on 25th July, 2003.

Industrial Relations Ordinance (XCI of 2002)---

----S.54---Collective Bargaining Unit, determination of---Petitioner which was a registered industry-wise trade union had filed petition through its Secretary General with the prayer that all establishments of Employer National Bank of Pakistan be determined and declared as one Collective Bargaining Unit as envisaged under , S.54 of Industrial Relations Ordinance, 2002---Earlier, in 1976 National Industrial Relations Commission had determined five Collective Bargaining Units in the employer Bank and since then said five Units had successfully discharged their functions---Petitioner had failed to point out even a single instance showing that due to determination of said five units, relationship in respect of Collective Bargaining between the Unions and the Management of Bank had been damaged on the other hand it was proved beyond any doubt that after creation of said five units, Bank had enjoyed industrial peace, harmony and an excellent state of interaction of Unions with the Management---No cogent reason whatsoever had been advanced by the petitioner that there should be one Collective Bargaining Unit for the workmen employed is the Bank---Existing five Collective Bargaining Units were working satisfactorily for the last 27 years and there was no need for change in said five units and said units would be retained---Petition incompetently filed by unauthorized person, was dismissed, in circumstances.

Islam Hussain for Petitioner Union and Respondents Nos. 7, 8 and 11.

Syed Nasir Ahmed along with Bahadar Khan, SVP for National Bank of Pakistan for Respondent No.6.

Zaheer Abid Hussain Rizvi along with Mushtaq Hussain Bhatti for Respondents Nos.8 to 10.

Nemo for Respondents Nos.1 to 5.

2006 P L C 556

[National Industrial Relations Commission]

Before Ali Nawaz A. Channa, Member

RAUF TEXTILE AND PRINTING MILLS EMPLOYEES' UNION and 4 others

Versus

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

Cases Nos.4A(101) and 24(102)/2002-K, decided on 6th June, 2002.

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

----S.22-A(8)(g)---National Industrial Relations Commission (Procedure and Functions) Regulations, 1973, Regln. 32(2)(c)---Unfair labour practice by employer---Petitioners, employees' Union along with four employees had filed petitions against Management alleging therein that Management had committed various acts of unfair labour practice to render their union redressed and ineffective and had violated different labour laws---Petitioners had not mentioned acts on which Management was annoyed with them and which had prompted it to take disciplinary action against them---Charge-sheets and show-cause notices issued to four employees had shown that they had refused to abide by fresh timings fixed by the management---Had management any ill-will or any grudge against petitioner-union, action should have been taken against office-bearers of union and not against those persons who were neither its office holders nor had any concern with the Union---Management had not committed any act of unfair labour practice in circumstances---Mere general type of allegations without any instance, would not constitute acts of unfair labour practice---Petition filed against Management was not maintainable, in circumstances---Main petition being not maintainable, petitioners were not entitled to any stay order---Both petition and stay application were dismissed.

PLD 1988 SC 53 and 2001 PLC 156 ref.

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

----Ss.15, 25-A, 22-A(8)(c) & 34---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.15(3)(4)---Unfair labour practice by employer---Proof---Violation of law---Initiation of enquiry against employees---Violation of any law by employer would not fall within any clause of S.15 of Industrial Relations Ordinance, 1969 constituting unfair labour practice by employer---If there was any violation of law, Trade Union or Workers had right to approach Labour Court individually under S.25-A or through Trade Union under S.34 of Industrial Relations Ordinance, 1969---Employer had statutory right to initiate enquiry against any worker for alleged misconduct---National Industrial Relations Commission could not sit in appeal against employer to hold that enquiry conducted was illegal, in violation of any law or that charge-sheet was false and would also not act as Enquiry Officer to give finding that charge framed against worker was false but it was function of employer to hold such enquiry and follow opinion of Enquiry Officer---Enquiry Officer was to hold enquiry and give finding whether charge was proved or not---National Industrial Relations Commission was not in any way concerned with internal enquiry being conducted by employers.

2001 PLC 190 ref.

Ashraf Hussain Rizvi for Petitioners.

S.M. Yaqoob for Respondents.

2006 P L C 562

[National Industrial Relations Commission]

Before Qazi Ahmed Saeed, Member

UNITED MUNICIPAL WORKERS UNION (REGD.) CITY DISTRICT & TOWN PESHAWAR through Deputy General Secretary

Versus

DISTRICT GOVERNMENT OF PESHAWAR through Director Coordination Office, Peshawar and 3 others

Case No. 19(4) of 2002, decided on 14th April, 2003.

Industrial Relations Ordinance (XXIII of 1969)---

----S.22-EE---Industrial Relations Ordinance (XCI of 2002), S.54---North-West Frontier Province Local Government Ordinance (XIV of 2001), Ss.8, 9, 27, 28 & 36--Petition for determination of Collective Bargaining Union---Petitioner union which was duly registered with Registrar, Trade Unions, had prayed in its petition that all establishments of City Municipal Development under the City District Nazim and Towns of Municipal Administration, be declared as one Collective Bargaining Unit as envisaged under S.22-EE of Industrial Relations Ordinance, 1969---Contention of petitioner was that after promulgation of North-West Frontier Province Local Government Ordinance, 2001, establishments of Municipal Corporation had been merged into City District and Town and employees of Municipal Corporation had been absorbed into City District and Town with same terms and conditions of employment which they had previously enjoyed in Municipal Corporation---Further contention was that services of workmen were transferable within establishment of City, District and Town if controlled by same employer---Petitioner also contended that Collective Bargaining Unit could effectively be made through one Collective Bargaining Agent as all workmen were employed in same industry/establishment having similarity of economic activities as all funds were distributed/released by City District to respective Towns---Evidence on record in the light of relevant provisions of North West Frontier Province Local Government Ordinance, 2001, had shown that not only salary structure in respect of workers employed in establishments of City Municipal Development Department (Municipal Wing) under City District Nazim and Town of Municipal Administration was the same, but also the terms and conditions of service of all unionized staff were same and there was similarity of economic activities---For safeguarding the interest of workers employed in establishments of City Municipal Development Department (Municipal Wing) under City District Nazim, and Towns of Municipal Administration in relation to Collective Bargaining, it would be just and feasible to determine and declare one Collective Bargaining Unit for all workmen employed in establishments of City Municipal Development Department (Municipal Wing) under City District Nazim and Town of Municipal Administration---Petition was allowed and ordered accordingly.?

Malik Mehrban Representative of Petitioner.

Nemo for Respondents Nos.1 and 2. (Already proceeded ex parte vide order dated 27-3-2003).

Ishaq Sabri for Respondent No.3.

Liaquat Ali, Senior Clerk for Respondent.

2006 P L C 572

[National Industrial Relations Commission]

Before Qazi Ahmed Saeed, Member

COL. (RETD) FEROZE HUSSAN, SENIOR MANAGER (ADMN.) ARMY WELFARE TRUST, CEMENT PLANT, NIZAMPUR

Versus

ZAIN-UL-ABIDIN, HEAVY MECHANIC ARMY WELFARE TRUST, CEMENT PLANT, NIZAMPUR and 2 others

Cases Nos.4A(350) and 24 (464) of 1996, decided on 3rd July, 2002.

Industrial Relations Ordinance (XXIII of 1969)---

----Ss. 1(3)(a), 16 & 22-A(8)(g)---National Industrial Relations Commission (Procedure and Functions) Regulations, 1973, Regln.32(2)---Allegation of unfair labour practice by establishment---Establishment had claimed to be a Trust registered under the Societies Registration Act, 1860 and according to its Memorandum and Articles of Association its objects were to provide for welfare of beneficiaries and then' families namely personnel who were serving or had served in Pakistan Army and the establishment being directly connected with an incidental to Armed Forces of Pakistan, in view of S.1(3)(a) of Industrial Relations Ordinance, 1969 provisions of said Ordinance were not applicable to the establishment and in circumstances employees were not entitled to form a Trade Union and apply for its registration---Establishment in its petition had prayed that as employees had committed various acts of unfair labour practice as defined under S.16 of Industrial Relations Ordinance, 1969, they be restrained from committing unfair labour practice and Registrar, Trade Unions also be restrained from issuing certificate of registration of Trade Union---Validity---Word "beneficiaries° as defined in Memorandum and Articles of Association of establishment, object and purpose of establishment and its units was shown to be connected with or incidental to Armed Forces within meaning of S. 1(3)(a) of Industrial Relations Ordinance, 1969---Evidence on record had proved that establishment was supplying special cement to Aimed Forces for its defence projects---Supplying of special cement to Defence Projects would make establishment to be an organization connected with Armed Forces covered by exemption prescribed in S. 1(3)(a) of Industrial Relations Ordinance, 1969 and its employees would also be excluded from application of said Ordinance---Act of forming and registration of Trade Union in the establishment, in circumstances, was against law and violative of Industrial Relations Ordinance, 1969---Employees were directed not to involve themselves in formation of any trade union in the establishment and workers were permanently restrained from committing any act of unfair labour practice.

United Builders Association v. Presiding Officer Punjab Labour Court and others 1976 PLC 855; Controller Stationery and Forms Government of Pakistan v. The Registrar of Trade Unions Sindh and others PLD 1991 SC 353; Din Muhammad alias Dona v. Manager Army Stud Farm Dipalpur District Sahiwal 1978 PLC 261; Abdul Jabbar Khan v. M/s. Fauji Foundation and another 1990 PLC 580; Canteen Stores Department Employees Welfare Union Karachi v. Canteen Stores Department and others 1983 SCMR 1101; Haji Malik Aman and 3 others v. Federation of Pakistan through Secretary Ministry of Law. Justice and Parliamentary Affairs Islamabad 1993 SCMR 1837; National Radio and Telecommunication Corporation Employees and Workers Union Haripur v. Labour Appellate Tribunal N.-W.F.P. and others 1990 PLC 218, Rehmat Gill and others v. Quetta Cantonment Board PLD 1983 SC 133; SWE-Pak Pharmaceuticals Ltd. v. Registrar Trade Unions, Balochistan and another 1992 PLC 405; 1988 SCMR 765, 1991 NLR 707; PLD 1965 (SC) 338; PLD 1986 (SC) 169; PLD 1975 (SC) 331; Wah Bofors Workers Trade Unions v. Registrar Trade Union, Rawalpindi Region, Rawalpindi 1980 PLC 828; Gamon (Pakistan)Ltd. Rawalpindi v. Muzaffar Khan and 7 others 1974 PLC 10; Workers Union v. Registrar Trade Union 1976 PLC 322; Abdul Rashid v. Muhammad Shafi Bhatti, Manager Military Dairy Farm, Malir Cantt. Karachi 1979 PLC 148; Pakistan Sports Board v. Pakistan Sports Board Employees Union; PLD 1978 Karachi 612; 1993 SCMR 1533 and 1998 SCMR 1964 ref.

Mumtaz Hussain Malik for Petitioner.

Abdul Hafeez Amjad for Respondents Nos. 1 and 2.

Abdul Hafeez Joint Director/RTU for Respondent No.3.

2006 P L C 619

[National Industrial Relation Commission]

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

CHIEF EXECUTIVE OFFICER, KARACHI ELECTRIC SUPPLY CORPORATION LTD., KARACHI

Versus

KESC LABOUR UNION LTD.

Case No.7A(4) of 2006-K. decided on 27th July, 2006.

Industrial Relations Ordinance (XCI of 2002)---

----S. 20(2)---Holding referendum in the establishment---Chief Executive of the Corporation in his petition had prayed that referendum in the establishment which was ordered to be held in May, 2006, be postponed till December, 2006--After arguing matter by both the sides for quite some time, issue had been resolved amicably by the both sides---Counsel appearing for Labour Union had stated that Union would not have any grouse if date of referendum was fixed by Deputy Registrar between 20th of November, 2006 to 27th of November, 2006 by which time summer/hot season would be over; he had also undertaken that members would not indulge in any activity which would cause any grievance to the petitioner---Deputy Registrar was directed to hold referendum in establishment accordingly.

Faisal Mahmood Ghani along with Syed Saleem Ahmed, Senior Deputy Chief Law Officer and Abid Ali, Manager (Labour) KESC for Petitioner.

Ch. Muhammad Ashraf along with Muhammad Ikhlaq, General Secretary for KESC Labour Union.

Ehteshamuddin Siddiqui, Acting General Secretary KESC Democratic Mazdoor Union along with Mirza Saleem Baig, Labour Representative.

Latif Mughal, General Secretary Peoples Workers Union KESC.

Mirza Baqar Hussain, General Secretary United Workers Front of KESC.

2006 PLC 646

[Implementation Tribunal for Newspaper Employees]

Before Justice (Retd.) Tanvir Bashir Ansari, Chairman

THE STATE

Versus

DAILY DAWN, ISLAMABAD

For orders on Miscellaneous Application Dy. No.451, dated 7-6-2006, decided on 27th June, 2006.

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

----Ss. 11, 12, 12-A & 13---Implementation Tribunal for Newspaper Employees (Procedure and Functions) Rules, 1977, Rr.7, 8, 15, 16 & 18---Decision of Wage Board---Implementation of---Powers of Tribunal---Tribunal had the primary function to implement the decision of the Wage Board acting suo motu in the manner provided by S.13(6) of Newspaper Employees (Conditions of Service) Act, 1973 and Rules 7 & 8 of Implementation Tribunal for Newspaper Employees (Procedure and Functions) Rules, 1977---Cause for filing an individual grievance under R.15 of Implementation Tribunal for Newspaper Employees (Procedure and Functions) Rules, 1977, would only arise after filing of the declaration upon a notice issued suo motu by the Tribunal---Individual grievance was not a precondition for initiating action for implementation---Remedy provided under R.16 of Implementation Tribunal for Newspaper Employees (Procedure and Functions) Rules, 1977 empowering an employee to file a complaint against a defaulting employer was in addition to the suo motu powers of Tribunal for implementation and was not in derogation of such exercise of powers---Provisions of S.13(6) of Newspaper Employees (Conditions of Service) Act, 1973 were independent of and not controlled by its subsections (1) to (5) & (6)---Contention that exercise of suo motu powers for implementation of decision of the Wage Board was invalid, was repelled, in circumstances---No substance was found in the submission that only suo motu powers available to the Tribunal were regarding the summoning of witnesses and the record as suo motu power was expressly conferred for that limited purpose only---Primary function of the Tribunal was to oversee and ensure the implementation of the Award---Submission that Wage Board Award was not legal and valid as it was not signed by all the members of the Wage Board had no force as no such defect was pointed out from the Award---Tribunal had been specifically constituted to implement the Award which had duly been published as per S.11 of Newspaper Employees (Conditions of Service) Act, 1973 and which became binding on the employees---Tribunal had no jurisdiction to go beyond the Award, the validity of which upon publication in the official Gazette was vouchsafed by the statute itself---Contention that present proceedings were criminal in nature and could neither be initiated without a complaint nor any declaration, could be called from the respondent, was misconceived and devoid of force---Present proceedings were not criminal in nature and were set afoot suo motu for implementation of Wage Board Award as per law.

Implementation Tribunal for Newspaper Employees v. Matri Publications (Pvt.) Limited, 2001 PLC 662 ref.

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

----S.11---Publication of the decision of the Board---Decision of Wage Board, published under S.11(1) of Newspaper Employees (Conditions of Service) Act, 1973, would come into force on the date specified therein or from the date of its publication and would continue to remain in force until it was modified or varied by later Award.

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

----Art. 199---Challenging the vires of a Legislation or an order--Pendency of constitutional petition---Effect---Pendency of a constitutional petition challenging the vires of legislation or an order, decision or award under it would not ipso facto affect the pendency of proceedings.

Mts. Cowasjee and Sons v. Director Sindh Employees Social Security Institution, 2000 PLC (Labour) 26 ref.

Muhammad Afzal Siddiqui along with Khurshid Aizid, Manager Human Resource, Daily Dawn, Karachi for Respondent.

Sadiq Muhammad Warraich along with Shaukat Pervez, Chairman, APNEC, Rawalpindi representing Newspaper Employees.

2006 P L C 653

[National Industrial Relations Commission]

Before Justice (Retd.) Tanvir Ahmed Khan, Chairman

KESC LABOUR UNION

Versus

K.E.S.C.

Case No.2(3) of 2003 decided on 3rd May, 2006.

Industrial Relations Ordinance (XCI of 2002)---

----S. 20(2)---Collective Bargaining Agent, determination of---President of petitioner union filed application on 4-2-2003 under S.20(2) of Industrial Relations Ordinance, 2002 for determination of Collective Bargaining Agent in the Establishment---Said application was rejected on 26-8-2003 on the ground that Industrial Relations Ordinance, 2002 was not attracted to the said Establishment---Validity---Last referendum in the establishment was held as far back as year 1999---Seven years had passed and all workers who were thousands in number, could not be deprived of their right to vote---Application filed by petitioner was accepted with direction that Deputy Registrar would hold secret ballot for the determination of Collective Bargaining Agent under his supervision in a transparent manner by associating all the parties.

Ch. Muhammad Latif Saghar for Petitioner.

Shahid Anwar Bajwa for the Respondent.

M.A.K. Azmati and Faisal Mahmood Ghani as Amicus Curiae.

2006 PLC 538

[Peshawar High Court]

Before Salim Khan, J

GHULAM HABIB

Versus

SARHAD DEVELOPMENT AUTHORITY, N.-W.F.P., PESHAWAR through Chairman and 2 others

F.A.L. No.2 of 2003, decided on 30th June, 2006.

Industrial Relations Ordinance (XCI of 2002)---

----Ss.2(xi), (xvii), (xxx), 46 & 48---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(i) & S.O.13---Dismissal from service on being surplus---Grievance petition---Determination of status of 'workman'---Appeal to High Court---Main grievance of appellants was that they were declared surplus and were dismissed from service without providing them a chance of hearing---Presiding Officer of Labour Court returned grievance petitions of appellants for their presentation to proper forum, holding that appellants did not fall under definition of 'workman' and employers establishment was not commercial establishment---'Validity'---Appellants were performing manual work under the Development Authority which was engaged in commercial activities of preparing and selling plots and providing services to industries established in industrial estate---Appellants were not the servants or the respondent-Authority for normal administrative official business related to the administration of the main offices of said authority but were directly related to services provided by authority concerning its commercial concerns---Each of the appellants was covered by definition of workman and thus Labour Court was the proper forum for submission of their grievance petitions which had jurisdiction to entertain their grievance petitions and decide same on merits---Impugned judgment of Labour Court, was set aside, directing the Labour Court to entertain petitions and decide same on merits After providing full opportunity of proper hearing, to parties.

PLD 2000 SC 207; 1988 PLD 467; 1989 PLC 106; 1990 PLC 689; 1989 PLC 490; 1990 PLC 227; 2005 PLC 138; PLD 1974 SC 1462; PLD 1977 Lah. 234; PLD 1931 SC 224; 1983 SCMR 1275; PLD 1984 SC 170; 2005 SCMR 1049 and 2004 CLC 1587 ref.

Abdul Shakoor Khan for Appellant.

Muhammad Ullah Khan for Respondents.

Date of hearing: 13th June, 2006.

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2006 P L C 569

[Balochistan High Court]

Before Amanullah Khan Yasinzai, CJ and Muhammad Nadir Khan, J

INTERNATIONAL POWER GLOBAL DEVELOPMENTS LIMITED through Attorney

Versus

MUHAMMAD EJAZ AHMED and 2 others

Civil Petition No. 168 of 2005, decided on 6th April, 2006.

Industrial Relations Ordinance (XCI of 2002)---

----S.46---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Grievance application---Final payment of dues on retirement---Employee in his application had sought redressal of his grievance about final payment of his dues on his retirement---Employer in response to notice of grievance application filed application under O.VII, R. 11(d) of Civil Procedure Code, 1908 for rejection of grievance application on two grounds; firstly that grievance notice sent by employee through his Advocate being illegal, his grievance application was not competent and secondly that he was not employee of the employer company as his services were provided to the company by the contractor of whom he was employee---Labour Court dismissed application for rejection of grievance application filed by the employee---Both grounds raised by employer had gone to the very root of the matter as filing of grievance application on the basis of grievance notice issued by Advocate was apparently not in accordance with provisions of S.46 of Industrial Relations Ordinance, 2002---Plea of employer that applicant employee was employee with the contractor and that he was never employed by employer company, required enquiry---Impugned order whereby application filed by employer company under O.VII, R.11(d), C.P.C. for rejection of grievance application was rejected, was set aside and case was remanded to Labour Court to first decide legal objections going to the very root of the matter, which required no evidence and thereafter if the applicant employee would cross said hurdle, employer could be called upon to file his-rejoinder to grievance application and decide the matter on merits.

1998 CLC 1738 ref.

Jawad Sarwana for Petitioner.

Abdul Ghani for Respondents.

Date of hearing: 21st March, 2006.

2006 P L C 131

[Quetta High Court]

Before Amanullah Khan, CJ

BALOCHISTAN EMPLOYEES' SOCIAL SECURITY INSTITUTION Through Commissioner and 2 others

Versus

GATRON INDUSTRIES LTD.

Civil Miscellaneous Appeal No.4 of'2005, decided on 11th November, 2005.

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

----Ss. 2(10), 55, 57, 59 & 64---Employment injury---Theory of "Notional Extension"---Applicability---Reimbursement of amount spent on medical treatment of employees---Appellants had assailed the judgment of Social Security Court whereby the Institution was directed to make payment to the establishment for medical expenses incurred on their employees---Employees of establishment who, after performing their duties, were waiting for a Bus outside factory premises, were run over by Taxi causing injuries to them and one of them died at the spot---Injured were taken to a hospital for treatment and establishment paid certain amount as medical expenses---Establishment claimed re­imbursement of said amount which was refused on the ground that incident having occurred outside the factory premises, establishment was not entitled for any compensation/reimbursement---Workers/employees at the relevant time, were not independent .and not connected with any private activities, but after working hours, were waiting for a bus---Theory of "Notional Extension", in circumstances was very much attracted as pick and drop of employees also fell within service hours---Injured employees were waiting for a bus after working hours to go to their homes---Theory of "Notional Extension", in circumstances, could be extended as soon after the working hours, injured persons/Employees were waiting for transport when they met with the accident---When the incident took place, although employees were on public road, but were not standing for another purpose and it was very much during course of employment waiting for conveyance after working hours---Dispensary, though was established by the Institution, but no facility for curing such fatal accident was available there---Injured employees were shifted soon after incident on recommendation and approval of Senior Medical Officer present in the Institution---Establishment, otherwise was entitled to reimbursement of the amount as during course of treatment of injured employee a letter was written to the Institution for reimbursement of medical expenses incurred on injured employees, but no reply was received and it was deemed to have been approved/sanctioned.

Mushtaq Ahmed Anjum for Appellants.

S.M. Yaqoob for Respondent.

Date of hearing: 19th August, 2005.

2006 P L C 250

[Quetta High Court]

Before Muhammad Nadir Khan, J

PIONEER CABLES LTD.

Versus

WALI MUHAMMAD

Labour Appeal No.4 of 2005, decided on 5th December, 2005.

Industrial Relations Ordinance (XXIII of 1969)---

----S. 25-A---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.13---Grievance petition---Employee serving as helper in employers' company was removed from service vide retrenchment order on ground that employers had decided to, re-organize their operations and retrench workers surplus to their requirement because their company was facing financial losses due to lack of demand of their products---Out of 11 workers including employee, who were retrenched, 10 workers accepted their termination order and collected their dues and their termination was neither stated to be mala fide nor on account of any trade union activities---Employers by producing Annual reports in respect of relevant years had shown that their company had suffered financial loss during said period and that fact was supported by statement of Admin. Officer of Company who in his cross-examination admitted that company had suffered a loss due to certain re-organization---Statement of said officer of company and documents filed by him had supported plea of company about suffering of financial. loss---Number of workers was also reduced from 170 to 70, which fact by itself was enough to prove that workers in large numbers were unnecessary/surplus, whereas amount spent towards improvement of establishment and that too by obtaining loan from Bank, could not convert loss into profit nor it could be considered unnecessary expenditure---Employee had not challenged the plea of company about his being among the junior most workers who had been removed from service through retrenchment---Removal of employee, in circumstances could not be termed to be in violation of provisions of S.O.13 of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968---Order of removal of employee was not open to any interference.

Abdul Ghani for Appellant.

Sundar Das for Respondent.

Date of hearing: 22nd November, 2005.

2006 P L C 326

[Quetta High Court]

Before Amanullah Khan, CJ and Mehta Kailash Nath Kohli, J

ALI AKBAR UMRANI

Versus

ESSA KHAN and 2 others

Constitutional Petition No. 839 of 2005, decided on 3rd January, 2006.

Constitution of Pakistan (1973)---

----Art. 199---Payment of Wages Act (IV of 1936), Ss.2 & 17---Constitutional jurisdiction---Scope---Rule of alternate remedy---Rule of alternate remedy, was not inflexible, but where the statute itself had provided remedy with certain rights and liabilities, then without discharging said liabilities, it would not be proper for Court to exercise jurisdiction---High Court had jurisdiction td exercise, where order was shown to be .patently illegal and void, and efficacious remedy was not found to be available---Constitutional jurisdiction could be exercised in presence of alternate remedy, if impugned order was shown to be without jurisdiction and void ab initio---High Court in constitutional jurisdiction, could not interfere in the factual controversy as to whether respondent did fall within definition of `workman'---Petitioner having alternate and adequate remedy available to him, High Court refrained to entertain constitutional petition.

PLD 2002 SC 452 and Farzand Raza Naqvi and 5 others v. Muhammad Din through legal heirs and others 2004 SCMR 400 ref.

Azam Jan Zarkoon for Petitioner.

Nemo for Respondents.

Date of hearing: 26th December, 2006.

2006 P L C 467

[Quetta High Court]

Before Muhammad Nadir Khan, J

TAUSEEF AHMED DAR

Versus

QUETTA SERENA HOTEL through General-Manager and another

Labour Appeal No.2 of 2001, decided on 22nd July, 2005.

Industrial Relations Ordinance (XXIII of 1969)---

----Ss. 25-A & 37(3)---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1969), S.O.15---Dismissal from service---Grievance petition---Employee was dismissed from service after charge-sheeting him and holding inquiry against him on allegation of misconduct---Allegation against hotel-employee was that he used filthy language against General Manger of the Hotel in the meeting---Inquiry report had fully proved the allegation against employee---Record had reflected that prior to incident in the meeting, employee was alleged to have committed omissions and misconduct as he was allegedly found entering the room occupied - by female guests in violation of Hotel Rules and he also allegedly tampered with telephone vouchers---Employee was suspended from service and was issued warnings on different occasions---Employee could not negate any of the documents produced by employer about his previous conduct and evidence available on record had proved that on relevant day employee used abusive/filthy language against General Manager---Behaviour of employee was improper and he frequently repeated acts of omission for which he was warned, but instead of mending his behaviour, he acted in disorderly manner---Acts of employee were found misconduct in terms of Standing Order 15 of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968---Action taken by employer hotel against employee, could not be said to be against law or in violation of procedure laid down in S.0.15 of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968---Order of dismissal passed against employee, being unexceptional, could not be interfered with, in circumstances.

Kamran Murtaza for Appellant.

Abdul Sattar for Respondents.

Date of hearing: 21st June, 2005.

2006 P L C 389

[Implementation Tribunal for Newspaper Employees]

Before Justice (Retd.) Tanvir Bashir Ansari, Chairman, THE STATE

Versus

DAILY "DOPAHR", ISLAMABAD

Case No.ITNE(P)/151/05/C. decided on 28th November, 2005

Implementation Tribunal for Newspaper Employees (Procedure and Function) Rules, 1977-

.

15(1)(i)(ii)---Petition for payment of arrears of pay---Petitioner who claimed to have been employed by establishment through a verbal order, had filed petition for payment of amount as arrears of his pay---Claim of petitioner had been denied by employer---Petitioner had failed to produce either his appointment letter or any other tangible documentary evidence to establish his claimed employment with the establishment---Petition did not relate to "individual grievance" within the purview of Implementation Tribunal for Newspaper Employees (Procedure and Function) Rules, 1977, same did not fall within jurisdiction of the Tribunal---Petition was dismissed, in circumstances.

Syed Mubarak Office Assistant/Translator, Daily Dopahr, Islamabad for Petitioner.

Nemo for Respondent.

2006 P L C 424

[Implementation Tribunal for Newspaper Employees]

Before Justice (Retd.) Tanvir Bashir Ansari, Chairman.

ILYAS CHAUDHRY and 67 others

versus

INDEPENDENT NEWSPAPERS CORPORATION (PVT.) LIMITED KARACHI

Case No.IT/P/7-WBA/1/C/ of 2002, decided on 27th February, 2006.

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

----Ss. 11, 12, 13(4) & 16-A---Industrial Relations Ordinance (XCI of 2002), S.62---Implementation of Wage Board Award---Petitions for---Establishment, having failed to implement 7th Wage Board Award which was made effective w.e.f. Ist July, 2000, employees filed application under S.16-A of Newspaper Employees (Conditions of Service) Act, 1973 and under S.62 of Industrial Relations Ordinance, 2002 for implementation of said Award---Said Award which had attained finality, was binding on all newspaper establishments and those were under a legal obligation to implement the Award in its letter and spirit---Labour Court under S.62 of Industrial Relations Ordinance, 2002, was authorized to recover all money due from an employer under award as arrears of land revenue or as a public demand---Under provisions of S.13(4) of Newspaper Employees (Conditions of Service) Act, 1973 also Tribunal had power to issue a direction which a Labour Court had under S.62 of Industrial Relations Ordinance, 2002---Petitions for implementation of Award, were accepted with direction that amount of arrears found due, would be recovered from the establishment as arrears of land revenue and after its recovery same would be paid to respective petitioners.

2001 PLC 662 ref.

(b) Injunction---

----Injunctive order---Mere pendency of proceedings, would not operate as an injunctive order.

Cowasjee and Sons v. Director Sindh Employees Social Security

Institution 2000 PLC (Labour) 26 ref.

Sadiq Muhammad Warriach Counsel for the Petitioner along with Mr. Nasir Mahmood Chishti, President, Khalid Mahmood, General Secretary, Daily Jang and Press Workers Union (CBA) and Mr. Pervez, Shaukat, Chairman, APNEC.

Muhammad Ali Mazhar for Respondent.

2006 P L C 433

[Peshawar High Court]

Before Ijaz-ul-Hassan Khan, J

ABDUL AZ1Z

Versus

Messrs FEROZSONS LABORATORIES LTD.

Labour Appeal No.19 of 2004, decided on 24th April, 2006.

Industrial Relations Ordinance (XCI of 2002)---

----Ss, 46 & 48---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.15(3)(i)---Dismissal from service---Grievance petition---Appeal to High Court---Appellant serving as Pump Operator was charge-sheeted for misconduct and was dismissed from service after holding inquiry against him---Grievance petition by employee against order of his dismissal from service, was dismissed by Labour Court, however, his dismissal from service was converted into termination of his service---Appellant had filed appeal against order of Labour Court before High Court---Appellant and his representative had participated in inquiry proceedings, cross-examined witnesses produced by employer and appellant examined five witnesses in his defence---Matter was thoroughly probed and appellant was rightly found guilty of negligence in performing his duty---Law did not provide for supply of copy of inquiry report/proceedings to the workers---Appellant had been removed from service after fulfilling all codal formalities and no prejudice seemed to have been caused to appellant---Earlier, appellant had also committed similar misconduct for which he was given warning, but he could not mend his ways---Charge was duly served upon appellant within stipulated .period---Impugned order which had been passed by a duly authorized officer after completing all formalities, did not call for interference by High Court in its appellate jurisdiction.

Habib Bank Limited v. Musaddiq Hussain and 2 others, 1992 PLC 1109; Niaz Ali, v. Punjab Urban Transport Authority, Lahore and 3 others PLD 1983 Lahore 661; Messrs Searle (Pakistan) Ltd. v. Muhammad Arif and another 1987 PLC 241; Khawaja Sathi Muhammad Moinuddin v. United Bank Limited 1987 PLC 248; Qadeer Ahmad v. Punjab Labour Appellate Tribunal Lahore and another PLD 1990 SC 787 and Pakistan Tabacco Co. Ltd. v. Channan Khan and others 1980 PLC 981 ref.

Abdul Qayum Sarwar for Appellant.

Nisat Ahmad Khan for Respondent.

Date of hearing: 17th March, 2006.

2006 P L C 211

[Supreme Court of Pakistan]

Present: Muhammad Nawaz Abbasi and M. Javed Buttar, JJ

SINDH EMPLOYEES' SOCIAL SECURITY INSTITUTION, KARACHI

Versus

Messrs PEARL CONTINENTAL HOTEL, KARACHI Civil Appeal No.420 of 2002, decided on 13th January, 2006.

(On appeal from the judgment of Sindh. High Court Karachi dated 16-3-2001 passed in Miscellaneous Appeal No.35 of 1990)

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

----S. 2(30)-Leave to appeal was granted by Supreme Court to examine whether guaranteed payment made by employer to its employees being uniform and regular in character would not fall within the ambit of expression `wages' in terms of S.2(30) of Provincial Employees' Social Security Ordinance, 1965.

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

---Preamble, S.2(30)---Expression wages' andremunerations'---Scope---Guaranteed payment---Mutual understanding of employee and employer---Effect---Dispute between employer and authorities was with regard to payment of contribution of guaranteed payment---High Court had found that such payment was not part of wages of employees--Validity-hi plain words wages meant all kinds of payments which might be covered by definition of remuneration for services rendered by a person and word remuneration' had greater significance than.wages' which might include payments in respect of allowances or services rendered and such other payments---Definition of term "wages" in S.2(30) of Provincial Employees' Social Security Ordinance, 1965, was comprehensive and exhaustive and except occasional payment which was not considered as part of wages, all payments which were made under any rule or instrument, contract or settlement either as a statutory or contractual obligation must be treated as part of, wages, unless specifically excluded from definition of wages under the law---Concept of social security contribution was to promote welfare of working class---Payments made and expenses incurred by employer on welfare and well-being of his employees as. his obligation were included in the definition of wages, therefore, provisions of Provincial Employees' Social Security Ordinance, 1965, could not be construed in a manner which could destroy the purpose and defeat its object---If employer in discharge of his contractual or statutory obligation had paid amount to an employee for service rendered by him, such amount would be treated as part of wages in terms of S.2(30) of Provincial Employees' Social Security Ordinance, 1965---Notwithstanding the mutual understanding between employer and employee that any payment would not be considered as part of wages., the same would remain part of wages unless excluded from the definition of wages under the statute---Payments which were made by employer occasionally without any statutory or contractual obligation for well-being of his employees, could not be treated as part of wages but if similar category of payment was made as contractual or statutory obligation, it would become part of wages under the law---Judgment passed by High Court was set aside and guaranteed payment was declared as part of wages---Appeal was allowed.

Brooke Bond Pakistan Ltd. v. Sindh Employees' S.S.I. 1990 SCMR 175 and Consolidated Sugar Mills v. Sindh Employees' Social Security Institution PLD 1991 SC 862 rel.

National Embroidery Mills Ltd. v. Punjab Employees' Social Security Institution 1993 SCMR 1201 and PLD 1978 Kar. 744 ref.

Khalid Habibullah, Advocate Supreme Court for Appellant.

Muhammad Hamayun, Advocate Supreme Court for Respondent.

Date of hearing: 19th October, 2005.

2006 PLC 459

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J. and M. Javed Buttar, J

LIAQUAT MUHAMMAD and others

Versus

Messrs HASHMI CAN COMPANY LTD. and others

C.Ps. Nos.741 and 746-K, 784-K, 779-K, 781 to 785-K of 2005, decided on 25th November, 2005.

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

----S.O. 11-A---Industrial Relations Ordinance (XXIII of 1969), S,.25-A---Constitution of Pakistan (1973), Art.185(3)---Closure of establishment---Retrenchment of employees---Company having obtained order of retrenchment from Labour Court, employees agitated matter before Labour Department which, under the direction of Minister for Labour, carried out inspection of the factory; and vide letter concluded that Tin Manufacturing Department in the company was working with strength of 150 workers---Petitioners, in circumstances preferred application under S.25-A of Industrial Relations Ordinance, 1969 before Labour Court and succeeded in getting order of compensation---Against said order of Labour Court, Company filed appeal before High Court mainly on ground that letter in dispute which was being relied upon was not admissible as its original was not produced and that photostat thereof was not sufficient to grant relief to petitioners---High Court, while agreeing with contention of respondent, set aside order of Labour Court---Validity---Disputed letter of Labour Department relied upon by petitioners being genuine document was acceptable and High Court was not justified in law to refuse accepting same---If genuineness of said letter was doubtful, it could have referred the matter to Labour Court for taking evidence from Labour Directorate to prove genuineness of said letter---High Court could have decided case on merits instead of non-suiting petitioners on technical ground---Supreme Court remanded the case to High Court for deciding the same on merits after taking into consideration the contents of said letter---Impugned judgment was set aside after converting petition for leave to appeal into appeal.

Petitioners in person.

Raja Shams-uz-Zaman, Advocate Supreme Court for Respondents.

Date of hearing: 25th November, 2005.