PLC 2007 Judgments - Pakistan Legal Archive

Courts in this Volume

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

Implementation Tribunal For Newspaper Employee

PLC 2007 IMPLEMENTATION TRIBUNAL FOR NEWSPAPER EMPLOYEE 325 #

2007 P L C 325

[Implementation Tribunal for Newspaper Employees]

Before Justice (Retd.) Tanvir Bashir Ansari, Chairman

ANIS AHMED SIDDIQUI and 57 others

Versus

JAVED PRESS AND MODERN GRAPHIC SERVICE (J&S) ENTERPRISES (PVT.) LTD., KARACHI

No.ITNER/S/7-WBA/74/C, decided on 12th February, 2007.

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

---S. 13(4)---Industrial. Relations Ordinance (XCI of 2002), S.62---Object and jurisdiction of Newspaper Employees (Conditions of Service) Act, 1973---Scope---Implementation of Seventh Wage Board, Award---Petition for---Claim of the petitioners was that they were newspaper employees employed with the respondent-establishment in various capacities and were entitled to payment of wages in accordance with the decision of Seventh Wage Board Award which came into effect from 1-7-2002-7-Grievance of petitioners was that despite coming into force of the Seventh Wage Board Award, respondent/newspaper establishment refused to implement the Seventh Wage Board Award and prayed for the necessary direction and action against respondent in accordance with law---Validity---Object of Newspaper Employees (Conditions of Service) Act, 1973 was to constitute a Wage Board for fixing wage rates for journalists as well as non-journalists newspaper employees, provided for effective implementation of the decision of the Wage Board and provided application of Industrial Relations Ordinance, 2002 and West Pakistan Industrial and Commercial Employment (Standing Order) Ordinance, 1968---Implementation Tribunal was obliged under law to issue a direction to implement and recover the arrears of wages as determined by Wage Board Award itself and determination of dues under S.62(2) of Industrial Relations Ordinance, 2002, was not a condition precedent before directing the recovery as arrears of land revenue---Direction as contemplated by S.13(4) of Newspaper Employees (Conditions of Service) Act, 1973, was not derogatory to any action which might be initiated by the Tribunal exercising powers suo motu under S.13(6) of said Act---Objection of respondent-newspaper establishment that as several newspaper establishments had challenged the vires of Newspaper Employees (Conditions of Service) Act, 1973 and relevant Wage Board Award in constitutional petition/I.C.A., before the High Court the proceedings before the Tribunal be kept in abeyance, was not tenable in law---Pendency of a constitutional petition or I.C.A. arising therefrom, challenging the vires of a Legislation or an order, decision or award under it, would not ipso facto affect the pendency of other proceedings---All legal objections raised by respondent/newspaper establishment, justifying non-implementation of Seventh Wage Board Award, were devoid of force and would pose no impediment to the effective implementation of the Seventh Wage Board Award in respect of all petitioners as claimed by them which claim stood unrebutted on the record---Respondent/newspaper Establishment, was directed under S.13(4) of Newspaper Employees (Conditions of Service) Act, 1973, read with S.62 of Industrial Relations Ordinance, 2002 to pay all arrears of wages to petitioners with effect from date of effectiveness of Seventh Wage Board Award accordingly.

Waris Mian v. State PLD 1957 SC (Pak.) 157; Secretary, M/o Defence v. The General Public PLD 1989 SC 6; Messrs Chenab Cement Product (Pvt.) Ltd. and others v. Banking Tribunal, Lahore and others PLD 1996 Lah. 672; Implementation Tribunal for Newspaper Employees v. Matri Publication Ltd. 2001 PLC 662; Messrs Cowas Jee v. Director Sindh Employees Social Security Institution 2000 PLC (Labour) 26 ref.

(b) Interpretation of statutes---

----Law would lean in favour of upholding legislative instrument rather than destroying same particularly when there was nothing to persuade to hold that such law was in derogation of any provision of the Constitution or in violation of principles of natural justice.

Faiz Muhammad Ghanghro for Petitioner.

Muhammad Ali Mazhar for Respondents.

Shafi-ud-Din Ashraf, Chairman, APNFC.

Javed Chaudhry, General Secretary Karachi Union of Journalists (KUJ), Karachi.

Date of hearing: 6th September, 2006.

PLC 2007 KARACHI HIGH COURT SINDH 13 #

2007 P L C 13

[Karachi High Court]

Before Faisal Arab, J

PHARMATEC PAKISTAN (PVT.) LTD.

Versus

GUL ZAMAN KHAN

Labour Appeals Nos.76 and 80 of 2005, decided on 28th August, 2006.

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

----Ss. 46 & 48---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.15---Dismissal from service---Grievance petition---Appeal to High Court---Employee serving as helper was dismissed from service after charge-sheeting him and holding inquiry against him on allegation that he had furnished bogus matriculation certificate---On completion of inquiry, Management concluded that employee had committed misconduct by furnishing bogus certificate---Labour Court accepting grievance petition of employee against his dismissal from service ordered his reinstatement, but denied back-benefits---Validity---Appellant-Company had failed to prove that there existed policy of company which required a helper to be a matriculate---Company also failed to establish that employee had misrepresented company at the time of seeking employment that he was matriculate---Labour Court though had rightly reinstated employee in service, but denied him back benefits without any justification as employee in his grievance petition had clearly stated that on account of his dismissal from service he had been rendered jobless having left with no means of earning---Appeal filed by employee seeking back-benefits, was allowed as prayed for.

1994 PLC 373; 1987 PLC 638; 1983 PLC 620; 1972 PLC 83; 2002 SCMR 943; 206 PLC 39 and 1993 SCMR 105 ref.

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

----S.O. 15---Dismissal from service on ground of misconduct---Acts of misconduct, detailed---Acts and omissions such as insubordination, disobedience, theft, fraud, dishonesty in connection with employer's business or property, wilful damage or loss caused to employer's property, taking or giving bribes or illegal gratification, habitual absence without leave or absence without leave for more than ten days, habitual late coming to work, habitual breach of any law applicable to establishment, riotous or disorderly behaviours or acts of subversion of discipline, habitual negligence or neglect of work, frequent repetition of any act or omission, going on strike or inciting others to strike in contravention of law or rule, having force of law and going slow, were all acts treated as misconduct---Misrepresentation simpliciter which had not caused any harm to the employer and had been committed once, had not been termed as misconduct under provision of clause (3) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968.

Shahid Anwar Bajwa for Appellant.

Shahenshah Hussain for Respondent.

Date of hearing: 9th August, 2006.

PLC 2007 KARACHI HIGH COURT SINDH 29 #

2007 PLC 29

[Karachi High Court]

Before Muhammad Moosa K. Leghari, J

Messrs AL-AMIR PAPERS MILLS through Director and others

Versus

TAHIR ALI and others

Labour Appeals Nos.20 to 30 of 2005, decided on 3rd June, 2006.

Industrial Relations Ordinance (XC1 of 2002)---

----Ss. 46, 48 & 62---Termination of services---Reinstatement with back benefits---Non-compliance of order of reinstatement and payment of back-benefits---Appeal to High Court---Workers whose services were terminated, were directed to be reinstated in service with back benefits by the Labour Court---Orders passed by Labour Court having not been complied with by employers, workers had filed complaints before the Labour Court for seeking compliance of orders of their reinstatement and back benefits---Workers, though subsequently were reinstated in service, but orders with regard to payment of their back benefits were not complied with---Order passed by Labour Court whereby employers were directed to reinstate workers within a period of 15 days from the date of order and to pay full back benefits for the period for which they remained out of service, had attained finality as no appeal was filed by employers against said order---Orders passed by the Labour Court reinstating workers in service was not complied with by the employers within stipulated period of 15 days, but was complied with beyond that period---Contention of employers with regard to payment of back benefits, was that order of the Labour Court in that respect was beyond the jurisdiction of the Labour Court as remedy for recovery of back benefits was provided under S.62 of Industrial Relations Ordinance, 2002 and that workers could adopt such course---Contention of employers was repelled as it was nothing, but an attempt to delay payment---When workers were reinstated by Labour Court with back benefits vide its order which had attained finality, nothing was to be adjudicated by the Labour Court so as to direct workers to approach Labour Court by filing application under S.62, of Industrial Relations Ordinance, 2002---Labour Laws were beneficial and remedial laws, which were to be construed liberally---Impugned order passed by the Labour Court was in accordance with law and was substantiated by valid reasons---No illegality, jurisdictional error or infirmity was pointed out by the counsel for employers---Labour Court having not travelled beyond jurisdiction, impugned order was unexceptionable.

Mehmood Hussain Siddiqui for Appellants.

Respondents in person.

Masood A. Noorani, Addl. A.-G. on Court notice for Respondents.

Date of hearing: 24th May, 2005.

PLC 2007 KARACHI HIGH COURT SINDH 59 #

2007 P L C 59

[Karachi High Court]

Before Mrs. Qaisar Iqbal, J

A.D. ABU BAKR WEAVING

Versus

BANARAS KHAN

Labour Appeal No. 124 of 2006, heard on 1st December, 2006.

Industrial Relations Ordinance (XCI of 2002)---

----Ss. 46(5), 47(3) & 62---Termination of service---Reinstatement---Back-benefits---Entitlement---Appeal to High Court---Employee had urged that employer had terminated his services, whereas' that fact was denied by employer contending that services of employee were not terminated, but employee himself was not interested in employment and he wanted to extract money from the employer ---Grievance petition filed by employee was allowed by Labour Court with direction for reinstatement in terms of S.46(5) of Industrial Relations Ordinance, 2002 and pay him compensation equivalent to 12 months' pay last drawn as well as back-benefits from the date of termination---Employer, in appeal had contended that Labour Court had erred in law by granting two reliefs to the employee simultaneously as under S.46(5) of Industrial Relations Ordinance, 2002, a workman was entitled to compensation in lieu of reinstatement, whereas in the present case services of employee had not been terminated by the employer and employer was ready and willing to accept him as one of his employees and his counsel had conceded to that effect---Employee was directed to join services with the employer as stand of employer was that services of employee were never terminated and employer was ready and willing to accept him in its establishment---Employee, in circumstances, was not entitled to grant of back-benefits---Impugned order was set aside by the High Court with direction to employee to join the establishment.

Muhammad Bashir and others v. Chairman, Punjab Labour Appellate Tribunal, Lahore and others 1991 SCMR 2087; Messrs Ashraf Sugar Mills Ltd. v. Manzoor Ahmed 2006 SCMR 1751 and Messrs Elahi Cotton Mills Limited and others v. Federation of Pakistan through Secretary, Ministry of Finance, Islamabad and 6 others PLD 1997 SC 582 rel.

S.M. Yaqoob for Appellant.

Bacha Fazal Manan for Respondent.

Date of hearing: 1st December, 2006.

PLC 2007 KARACHI HIGH COURT SINDH 75 #

2007 P L C 75

[Karachi High Court]

Before Gulzar Ahmed, J

MUSLIM COMMERCIAL BANK LTD.

Versus

FATEH MUHAMMAD SHAH

Appeal No.L.A.147 of 2004, decided on 15th September, 2006.

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

----Ss. 46, 47(3) & 48(3)-West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.15---Dismissal from service---Grievance petition---Reinstatement in service--Respondent/employee was dismissed from service after charge-sheeting him and holding inquiry against him --Charge against respondent was that he had misappropriated cash deposited for credit in customers' account in connivance with cashier---Grievance petition filed by respondent against order of his dismissal from service was allowed by the Labour Court and respondent was reinstated in service with full back benefits---Evidence on record had proved that respondent was not in league with cashier to cause misappropriation of amount---Allegation of misappropriation of amount in question though had not been proved against respondent, but an element of misconduct existed on his part---Cashier who actually misappropriated amount had been removed from service---Conduct of respondent having not been found to be altogether above-board, keeping in view that appellant was a Banking Company dealing with public money; where a small omission would lead to colossal loss to the appellant Bank and cause serious embarrassment, respondent could not be left unpunished and he could not be reinstated---Impugned order passed by the Labour Court, whereby respondent was reinstated in service with full back benefits, was set aside and in place of dismissal of respondent, imposition of penalty of compulsory retirement would meet the ends of justice as respondent would be able to receive all his retirement and pensionary benefits from the appellant Bank.

Chief Engineer, Irrigation v. Mazhar Hussain PLD 2004 SC 682 and Nazir Ahmed and others v. Muslim Commercial Bank and others 2004 PLC 1 ref.

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

----S. 2(xxx)---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(i)---Workman'---Status of---Determination---Question as to whether the person was a workman or not, was to be considered on the basis of the work which he actually performed and not on the basis of salary or emoluments, paid to him---Authority of signing by the employee would not show that he was doing work of supervisory or managerial nature; when his specific description of working asworkman' was not challenged.

Mehmood Abdul Ghani for Appellant.

Mehmood Hussain Siddiqui for Respondent.

Date of hearing: 28th August, 2006.

PLC 2007 KARACHI HIGH COURT SINDH 83 #

2007 P L C 83

[Karachi High Court]

Before Muhammad Moosa K. Leghari, J

GHULAM RASOOL TAHIR

2007 PLC 353

[Karachi]

Before Zia Perwaz, J

MUSLIM COMMERCIAL BANK LIMITED through Assistant Vice-President and Attorney

Versus

ABDUL RAZZAK PATHAN

Labour Appeals Nos.3 and 4 of 2005, decided on 16th April, 2007.

Industrial Relations Ordinance (XCI of 2002)---

----Ss. 46, 47(3) & 48---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.15(3)(b) & (4)---Dismissal from service on allegation of misconduct---Grievance petition---Appeal to High Court---Employees serving as cashier in the Bank, were dismissed from service after serving with charge-sheet and holding inquiry against them on allegations of misconduct---Employees were alleged to have embezzled amount---Enquiry was conducted in which they had participated---Evidence was duly recorded after providing an opportunity of cross-examination---Employees, who were dismissed from service, filed grievance petitions after serving grievance notices to employer---Labour Court accepted grievance petitions, against dismissal from service and ordered their reinstatement in service---Labbur Court, however awarded penalty of postponement of promotion to one of the employees for a period of three years from the date when his promotion became due---Employees were allowed full opportunity to defend charges against them and their replies to various charge-sheets were duly considered by Enquiry Officer and employees never asked for further personal hearing---Grievance petitions and their affidavits in evidence, did not reveal that they had been dismissed in' connection with any dispute nor they had claimed that their dismissal related to any industrial dispute---Grievance petitions filed by employees in circumstances, were not maintainable---Charge of misappropriation and misconduct, stood established against the employees who misappropriated the amount and used it for their personal gain---Labour Court granted relief to employees on the premises that employer/Bank had not suffered any pecuniary loss as disputed amount was deposited by the employees later on---Validity---Bank act as custodian of the public money and the amount deposited in bank required to be credited in the accounts of customers without any delay, as soon as the trust reposed by customers in the Bank was shaken, Bank would not be in a position to run the business---Merely for the reason that at a subsequent stage embezzled amount was deposited, would not constitute a mitigating circumstance in favour of employees to hold that they were entitled for reinstatement into service---As soon as misappropriation of public motley was established, delinquent would be deemed guilty of embezzlement and no leniency could be shown to him---Judgment of the Trial Court whereby employees were reinstated, was set aside by the High Court.

Trustees of the Port of Karachi v. Muhammad Saleem 1994 SCMR 2213; Board of Governors Aitchison College Lahore v. Punjab Labour Appellate Tribunal and others 2001 SCMR 1928; United Bank Limited v. Raja Ghulam Hussain 1999 PLC 106; Izzat Baig Awan v. Habib Bank Limited 2004 SCMR 98; Shahid Masood Malik v. Habib Bank Ltd. and another 2003 T.A. (Service) 180; Janatha Bazar v. Secretary Shankari Noukarana Sangh AIR 2000 SC 3129; Habib Bakhsh v. Zahur-ul-Hassan PLJ 1986 Karachi 190; Secretary, B&R, Government of West Pakistan and 4 others v. Fazal Ali Khan PLD 1971 Kar. 625; Nagina Bakery v. Sui Southern Gas Limited and 3 others 2001 PLC (C.S.) 760; Khushal Khan v. Muslim Commercial Bank and others 2002 SCMR 943; A.B.L. of Pakistan v. Bashir Khan 2006-PLC 39; United Bank Ltd. and others v. Raja Ghulam Hussain and others 1999 PLC 106; 1985 CLC 1525; Muslim Commercial Bank Ltd. I.I. Chundrigar Road, Karachi v.. Sindh Labour Appellate Tribunal Karachi and others 1984 PLC 1149; U.B.L. v. Iftikhar Hussain and another 2003 PLC (C.S.) 497; Karamat Hussain v. Water and Power Development Authority 1998 SCMR 779; Muhammad Riaz v. Sindh Labour Appellate Tribunal Karachi and others 1993 PLC 301; Muhammad Yousaf Khan v. Habib Bank Limited 2604 SCMR 149; Divisional Collector, KSRTC v. A.T. Mane AIR 2004 SC 4761 and Mukarram Shah v. Sindh Labour Appellate Tribunal and others 2005 PLC 14 ref.

Mahmood Abdul Ghani for Appellants.

Nizamuddin Baloch for Respondents.

Date of hearing: 1st March, 2007.

PLC 2007 KARACHI HIGH COURT SINDH 360 #

2007 PLC 360

[Karachi]

Before Mrs. Qaiser Iqbal, J

AKHTAR MUNEER

Versus

GENERAL TYRE AND RUBBER CO. OF PAKISTAN LTD. through Senior Manager Industrial Relations and Notified Manager

Labour Appeal No.650 of 2003, decided on 9th March, 2007.

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

----Ss. 46 & 47(3)---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.15(3)(h)---Dismissal from service on ground of misconduct---Appeal---Appellant/ employee was dismissed on ground of misconduct after holding inquiry against him---Allegation against appellant was that he entered in the office of Senior Manager, used highly objectionable and un-parliamentary language and tried to physically assault him---Appellant was charge-sheeted and after inquiry was dismissed from service---Nothing had been brought on record to indicate even remotely that Inquiry Officer, in any way, was prejudicial or partisan---Appellant was supplied. copy of inquiry proceedings and he had not filed a written complaint against Inquiry Officer alleging that his statement was not recorded fully or verbatim---Issuance of second show cause notice was not a legal requirement---Material before the Inquiry Officer was sufficient to establish the charge against appellant and such finding of Inquiry Officer could not be substituted without any tangible material---Finding of Inquiry Officer could only be substituted, if it was arrived at due to misreading of the evidence or was perverse---Material questions were allowed to be put by the appellant to the witness---No prejudice, in circumstances, was caused to appellant's case---Labour Court, in circumstances had rightly dismissed grievance application filed by appellant against order of his dismissal from service---No case having been made out, impugned judgment passed by the Labour Court, did not warrant interference.

Lateef Bano v. Messrs Crescent Domestic Garment Industries (Pvt.) Limited 1992 PLC 302; The Vice-President, (Admn.) National Bank of Pakistan and others 1996 SCMR 201; Mujahid Hussain Shah v. K.S.B. Pumps Company Limited 1997 PLC 132; 1997 SCMR 681; 1998 SCMR 1352; PLD 1981 SC 225; Syed Ibrahim v. Sindh Labour Appellate Tribunal C.P. No.D-861 of 2000; 1987 PLC 987; 1984 SCMR 143 and 1999 SCMR 1237 ref.

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

----S.O. 15(4)---Domestic inquiry---Not open for Labour Court to re-examine and re-appreciate evidence recorded in domestic inquiry and come to the conclusion contrary to one reached by Inquiry Officer.

----S. O. 15(3)-Misconduct---Meaning-'Misconduct' would mean improper conduct of an employee, the acts and omissions listed in S.O.15(3), West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 were illustrative because any act which was prejudicial to the good discipline could attract disciplinary action.

1999 SCMR 779 ref.

Shafiq Qureshi for Appellant.

Mehmood Abdul Ghani for Respondent.

Date of hearing: 16th November, 2006.

PLC 2007 KARACHI HIGH COURT SINDH 366 #

2007 P L C 366

[Karachi]

Before Mrs. Qaisar Iqbal, J

LUCKY TEXTILE MILLS through Managing Partner

Versus

MAZDOOR UNION OF LUCKY TEXTILE MILLS through General Secretary and 3 others

Constitutional Petition No.S-259 of 2003, decided on 15th March, 2007.

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

----Ss. 9, 12 & 20---Constitution of Pakistan (1973), Art.199---Constitutional petition---Registration of Trade Union---Cancellation of registration---Collective Bargaining Agent---Determination of---First application filed by respondent Union for registration of Trade Union was rejected by Registrar Trade Unions, after verification of its contents, but second application filed by respondent was allowed by the Registrar---Petitioner had alleged that investigation carried out by the Registrar leading to registration of respondent-Union, was arbitrary, illegal without jurisdiction and that Collective Bargaining Agent proceedings were also in violation of Industrial Relations Ordinance, 2002---Registrar Trade Unions had proceeded to register the Union vide registration as was conveyed by the department to General Secretary of the Union by a slipshod order---No reasoning was attached thereto nor there appeared to be an inquiry conducted by department with 1/5th members of the establishment workers in support of the Union for determination of Collective Bargaining Agent---Grievance of petitioner was that Registrar and the Department did not care to verify the number of workers employed in the establishment nor that requirement was fulfilled by the union in gross violation of the law and that the Union was illegally registered---Validity---Registrar of Trade Unions being statutory Authority, was required to discharge its legal position---No speaking order being available on record, impugned order was set aside with direction to the Registrar to conduct an impartial inquiry into the matter and then proceed to pass a speaking order---Impugned registration awarded to the union was set aside/cancelled, matter was remanded to Registrar Trade Unions to consider application afresh and conduct impartial inquiry in the matter and then proceed to pass appropriate order, accordingly.

Hakim sons Chemical Industries v. RTU 1999 SCMR 2398; Ghee Corporation of Pakistan v. The Registrar Trade Union 1991 PLC 207 and Essa Chemical Industries Workers Union v. Registrar of Trade Unions, Hyderabad Region, Hyderabad and 4 others 1998 PLC 500 ref.

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

----Art. 199---Constitutional jurisdiction---Scope---Constitutional remedies would always be applicable where any statutory or executive functionary entrusted with responsibility for taking certain action in accordance with law, had not done so.

G.S. Fibre Employees Union v. Registrar of Trade Unions 2003 PLC 58 ref.

S.M. Yaqoob for Petitioner.

Ghulam Sarwar Chandio for Respondent.

Date of hearing: 14th November, 2006.

PLC 2007 KARACHI HIGH COURT SINDH 372 #

2007 P L C 372

[Karachi]

Before Sabihuddin Ahmed, CJ

PEARL CONTINENTAL HOTEL, KARACHI through Acting Human Resource Manager and Chief Security Officer

Versus

PEARL CONTINENTAL HOTEL, KARACHI WORKERS UNION through General Secretary

Labour Revision Application No.43 of 2003, decided on 26th February, 2007.

Industrial Relations Ordinance (XCI of 2002)---

----S. 48(3)---Revisional jurisdiction of High Court---Scope---Revisional powers could only be exercised by the Court on its own motion as distinguished from "on the application of an aggrieved party"---Basically the revisional power of the High Court was only exercisable suo motu or on the court's own motion and no party could claim a right to file a revision application or demand its entertainment---Nevertheless, any party could lay appropriate information before the court and only when the court was satisfied that miscarriage of justice had taken place or proceedings in the revision would foster the cause of justice, it could exercise its suo motu powers and issue notice to the other parties---Upon issuance of such notice the parties would be entitled to be heard.

Norwich Union Fire Insurance Society Ltd. v. Muhammad Javed Iqbal PLD 1984 Kar. 519 and 1986 SCMR 1071 ref.

Mahmood Abdul Ghani, Chaudhry Rasheed Ahmed, Muhammad Humayun, M.A.K. Azmati, Ashraf Hussain Rizvi, Latif Sagar, Shahid Anwar Bajwa, S.M. Yaqoob, Nasir Mahmood, Qamaruddin Hassan, Gohar Iqbal, Ghulam Sarwar Chandio, Muhammad Abdullah, Muhammad Naveed Salim and Syed Shoa-un-Nabi, Advocates.

PLC 2007 KARACHI HIGH COURT SINDH 375 #

2007 P L C 375

[Karachi]

Before Muhammad Moosa K. Leghari, J

TAUFIQ AHMED and another

Versus

Messrs TAKBEER WEEKLY through General Manager Labour

Appeals Nos.4 and 5 of 2004, decided on 16th April, 2007.

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

----Ss. 46 & 47(3)---Termination of services---Grievance notice and grievance petition---Appeal to High Court---Appellants were "Newspapers Employees"---Consequent upon the Award given by the 7th Wage Board, wages of all categories of workmen including the `Newspapers employees' were increased, but such benefit was not extended to the appellants---On insistence of appellants for awarding such benefit to them, services of appellants were terminated without issuance of any show-cause notice or affording any opportunity of hearing on the ground that the Management was suffering financial losses for last many months---Grievance notice served by appellants on the management having not been responded, appellants filed separate grievance petitions praying therein for reinstatement in service with full back benefits---Management in written statement, raised preliminary legal objections regarding maintainability of grievance petitions on various grounds---Labour Court accepted legal objections of management to the extent that no prayer for. reinstatement was made in the grievance notice and Labour Court summarily dismissed grievance petitions of appellants, who had filed appeal against judgment of the Labour Court---Validity---Management never denied receipt of a document claimed by appellants as grievance notice, but objection of Management was that it could not be termed as grievance notice for reinstatement in service---Contents of the grievance notice, manifestly showed that appellants had stated in categorical terms that they were very much aggrieved by termination of their services---Sole purpose of issuing grievance notice was to bring to the notice of the employer/Management that concerned worker was "aggrieved" by any action on the part of Management---Legislature had not prescribed any pro forma or format of grievance notice---Even in law, no provision had been made for service of grievance notice through a legal practitioner which itself was adequate to assume that the Legislature intended to avoid all kinds of technicalities, so far as dispensation of labour adjudication was concerned---Summary disposal of grievance petitions in a cursory, hasty and slipshod manner was highly deplorable, which would not be in consonance with the object of promulgation of remedial Legislation such as Labour Laws---Labour Court proceeded to pass mindless and perverse order in a most capricious manner, whereby appellants were thrown out of the court for none of their fault---Impugned orders passed by the Labour Court were set aside by the High Court in appeal and it was declared that grievance notices were properly and legally served upon the Management---Cases were remanded for deciding grievance petitions on merits in accordance with law.

(b) Interpretation of statutes---

----Statute should be interpreted in a manner so as to suppress the mischief and advance the remedy---Judicial forums were not only expected, but were always required to keep. in mind that mere technicalities, unless offering any insurmountable hurdle, should not be allowed to defeat the ends of justice---Beneficial laws were to be construed liberally.

----Preamble---Industrial Relations Ordinance, 2002, was basically beneficial Legislation which provided for the protection of the rights of labour class and had to be interpreted to advance the cause of workers---For proper dispensation of justice, effect must be given to the substance and not to the form---Logic of words must yield to the logic of realities.

Faiz Ghangro for Appellant.

Mazhar Hussain for Respondent.

Date of hearing: 5th April, 2007.

PLC 2007 KARACHI HIGH COURT SINDH 381 #

2007 PLC 381

[Karachi]

Before Zia Perwaz, J

MCB BANK LIMITED through Senior Vice-President and General Manager

Versus

GHULAM MUSTAFA CHANNA

Labour Appeals Nos.14 and 15 of 2006, decided on 22nd March, 2007.

Industrial Relations Ordinance (XCI of 2002)---

----Ss. 46, 47(3) & 48---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.15(3)(b) & (4)---Termination of services on allegation of misconduct---Grievance application---Appeal to High Court---Services of employee serving as Assistant in Bank, were terminated after charge-sheeting him and holding inquiry against him on ground of misconduct---Allegation against employee was that he effected bogus balancing of ledgers---Said bogus entries were not denied by the employee in his statement before Enquiry Officer---Labour Court while acting contrary to the evidence available on record based on entries made in the relevant registers and ledgers not denied by the employee, granted relief to employee on the premises that the Bank had not suffered any pecuniary loss and allegedly misappropriated amount was deposited by him later on---Validity---Bank acts as custodian of the public money and the amount whatsoever was deposited, was required to be credited in the accounts of customer without any delay and no sooner the trust reposed by the customer on the Bank was shaken, the Bank would not be in a position to run its business---Merely for the reason that at a subsequent stage the misappropriated amount was deposited, would not constitute a mitigating circumstance in favour of employee to hold that he was entitled for reinstatement into service---As soon as misappropriation of public money was established, delinquent would be deemed guilty of embezzlement---No leniency, in circumstances could be shown to the employee--Employee, in the present case, had been found misappropriating public money from the Bank, which could be temporary, but as far as charge was concerned, it stood established without doubt, leaving no option for employer, except dismissing him from service to meet the ends of justice---Impugned order passed by the Labour Court whereby employee was reinstated, was set aside by the High Court.

Mukarram Shah v. Sindh Labour Appellate Tribunal and others 2005 PLC 14; Divisional Collector, KSRTC v. A.T. Mane AIR 2004 SC 4761; Izzat Baig Awan v. Habib Bank Limited 2004 SCMR 98 and Shahid Masood Malik v. Habib Bank Limited and another 2003 T.A. (Service) 180 ref.

Mahmood Abdul Ghani for Appellant (in Labour Appeal No.14 of 2004).

Nizamuddin Baloch for Respondent (in Labour Appeal No.14 of 2004).

Nizamuddin Baloch for Appellant (in Labour Appeal No.15 of 2006).

Mahmood Abdul Ghani for Respondents (in Labour Appeal No.15 of 2006).

Date of hearing: 26th February, 2007.

PLC 2007 KARACHI HIGH COURT SINDH 393 #

2007 P L C 393

[Karachi]

Before Mushir Alam and Mrs. Yasmin Abbasey, JJ

TRUSTEES OF THE PORT OF KARACHI (KPT) through Manager and 2 others

Versus

NATIONAL INDUSTRIAL RELATIONS COMMISSION through Member and 2 others

Constitutional Petition No.D-2009 of 2006, heard on 25th January, 2007.

Industrial Relations Ordinance (XCI of 2002)---

----Ss. 49(4)(e), (9) & 52---Constitution of Pakistan (1973), Art.199---Constitutional petition---Compulsory retirement---Allegation of unfair labour practice by the employers(Karachi Port Trust)---Employees who were compulsorily retired from service filed application under S.49(4)(e) of Industrial Relations Ordinance, 2002 before National Industrial Relations Commission---Commission through interim order suspended order whereby employees were compulsorily retired and directed employers to treat employees as continuing in the employment and allowed them to resume their duties until the final disposal of their application---Employers in their constitutional petition, had impugned assumption of jurisdiction by National Industrial Relations Commission contending that per S.79-B of Karachi Port Trust Act, 1886, employees of Karachi Port Trust were deemed to be civil servants and as controversy pertained to terms and conditions of service, jurisdiction of National Industrial Relations Commission was barred and only Service Tribunal had exclusive jurisdiction---Employees had opposed constitutional petition as according to them such petition was not maintainable because alternative remedy of appeal which was provided under S.52 of Industrial Relations Ordinance, 2002, had already been availed by employers, which appeal was sub judice---Contention of counsel for employees was that as case of unfair labour practice was made out, National Industrial Relations Commission had jurisdiction to pass order impugned herein---Validity---National Industrial Relations Commission had elaborately dealt with question of its jurisdiction---Employers were not able to make out case of interference in exercise of constitutional jurisdiction---Petition was dismissed along with all pending applications.

Syed Yasin Ali and 2 others v. Messrs Pak News Private Ltd., through Managing Director and 2 others 2003 PLC 240; Malik Nazar Hussain v. National Bank of Pakistan and another 2003 PLC 405; Pak American Fertilizers Ltd. through Senior Manager (IR) v. Employees Union (CBA) Pak American Fertilizers Ltd. through General Secretary and another 2003 PLC 408; Abdul Karim v. PIAC through Chairman, Karachi and 2 others 2001 PLC 79; Mehnatkash Labour Union, Alnoor Sugar Mills Limited through General Secretary v. Al-Noor Sugar Mills Limited through Executive Vice-President and 2 others 2004 PLC 209; Islamuddin and 2 others v. J. Thomas C. Vanopstal, General Secretary and another 2004 PLC 229; Shah Murad Sugar Mills Mehnatkash Union (CBA), through General Secretary v. Shah Murad Sugar Mills Limited PECHS, Karachi through Managing Director and another 2005 PLC 88; Malik Nasim Iqbal v. United Bank Limited through Zonal Chief and 2 others 2005 PLC 407; Sajid Hussain and 4 others v. Sabro Refrigeration and Air-conditioning Equipment Manufacturers S. A. other Private Ltd. through General Manager and another 2004 PLC\ 125; National Engineering Services Pak. and others v. NIRC and others 2003 PLC 106; Muhammad Ashraf and 10 others v. Gharibwal, Cement Limited through General Manager 2003 PLC 455; Syed Shahid Raza v. Oxford University Press 2003 PLC (C.S.) 11; Intizar Ahmed v. MCB and others 2006 PLC 380, (14) Lucky Textiles Mills through General Manager v. Abdul Rashid and 14 others 2006 PLC 108; Mazdoor Union Faran Sugar Mills through General Secretary v. Faran Sugar Mills Limited through Chief Executive and 2 others 2006 PLC 404; Muhammad Mubinulislam v. Federation of Pakistan reported in PLD 2006 SC 602 and Ghakhar Mandl v. Authority under Payment of Wages Act PLD 2002 SC 452 rel.

Syed Hassan Ali Rizvi for Petitioners.

Akhtar Ali Mehmood, D.A.-G. for Respondent No.1.

Abdul Ghaffar for Respondents Nos.2 and 3.

PLC 2007 KARACHI HIGH COURT SINDH 400 #

2007 P L C 400

[Karachi]

Before Mrs. Yasmin Abbasey, J

KHAMISO KHAN

Versus

SECRETARY, DISCIPLINARY ACTION COMMITTEE and another

Labour Appeal No.121 of 2005, decided on 12th March, 2007.

Industrial Relations Ordinance (XCI of 2002)---

----Ss. 2(xxx), 46 & 48---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(i)--Grievance petition---Maintainability---Status of workman, determination of---Appeal to High Court---Appellant who initially was appointed as Assistant in the Bank, subsequently was promoted as Grade-III Officer---Appellant had contended that despite his promotion, he was performing duties as a Clerk and was a workman' within the meaning of S.2(i) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968; and that petition filed by him before the Labour Court was maintainable and he was entitled to relief sought for---Labour Court did not accept claim of appellant and dismissed his grievance petition---Validity---Appellant in the capacity of Grade-III Officer was holding power of attorney of Bank along with different powers of supervisory nature and was also posted as Officer---Being attorney holder of Bank, appellant was entitled to perform a number of managerial and administrative acts on behalf of Bank---Appellant was also drawing salary of Grade-III Officer---Appellant in circumstances, was to prove that despite powers assigned to him in the power of attorney executed in his favour he was doing clerical work, but he could not prove the same---Except raising a plea that he was doing clerical job, nature of work performed by him during the period, was not proved---Burden of proof remained on appellant that he was performing his duties as aworkman' or of supervisory nature, but he could not release that burden---Casual. or ancillary work on a particular post, would not determine the nature of duties of an employee as a whole---Work done by an employee during whole tenure of his services would be the essential and fundamental consideration for determining the question---Questions that whether appellant was doing manual or clerical work, and whether that was incidental to the main work or was a substantial part of it, required satisfactory evidence, which was lacking in the case of appellant---In absence of sufficient ground for setting aside order of Labour Court, appeal filed against said order by appellant was dismissed.

Allied Bank of Pakistan Ltd. v. Muhammad Humayun Khan and 2 others 1983 PLC 498; Ganga R. Madhani v. Standard Bank Ltd. and others 1985 SCMR 1511; Muhammad Ali v. Sindh Labour Appellate Tribunal and 2 others 1985 PLC 403; General Manager, Hotel Intercontinental, Lahore and another v. Bashir A. Malik and others PLD 1986 SC 103 and Allied Bank Limited v. Mujeebur Rehman Qazi and others SBLR 2006 SC 33 rel.

Khadim Hussain for Appellant.

Shahid Anwar Bajwa for Respondents.

Date of hearing: 2nd February, 2007.

PLC 2007 KARACHI HIGH COURT SINDH 405 #

2007 P L C 405

[Karachi High Court]

Before Mrs. Yasmeen Abbasey, J

Malik FATEH KHAN

Versus

MUSLIM COMMERCIAL BANK LTD.

Labour Appeal No.34 of 2003, decided on 15th February, 2007.

Industrial Relations Ordinance (XCI of 2002)---

----Ss. 46, 48 & 49---Limitation Act (IX of 1908), S.14---Removal from service---Grievance petition---Limitation---Appeal to High Court---Employee apprehending that his services would be terminated by employer filed petition before National Industrial Relations Commission---Interim order protecting services of appellant was granted by the Commission but during pendency of case, said stay order granted to appellant was vacated and employer taking benefit of same removed employee from service---Employee withdrew his case from National Industrial Relations Commission with permission to file fresh case---Employee, thereafter, filed grievance petition before Labour Court, which was disposed of on ground of limitation being time barred---Validity---Provision of S.14 of Limitation Act, 1908, had provided that while excluding the period spent in a court having no jurisdiction', certain criteria had to be examined, particularly that both the cases proceeded in the latter court and pending in the former court should be based on same cause of action with the same relief---In the present case, while pursuing his case before National Industrial Relations Commission, relief sought by employee was that employer should be restrained from terminating him from service; meaning thereby that at that particular time employee was in service and due to his Union activities was under the apprehension of his removal, whereas the grievance application subsequently filed before the Labour Court, was absolutely on different footings---Employee, at the time' of presentation of grievance petition, had been removed from service and he had prayed for his reinstatement in service with full back benefits---Reliefs sought in both matters, ex facie, were absolutely different from each other and could not be said to be the part of proceedings for the purpose of taking benefit of S.14 of Limitation Act, 1908---Employee had approached National Industrial Relations Commission for the protection of his service under apprehension that due to Union activities he could be removed from service, whereas in other case filed after about three years, his prayer for reinstatement in service was different from earlier petition filed before National Industrial Relations Commission, as later grievance petition was presented after his removal from service---Both cases, in circumstances were on different footings with different causes of action and the nature of relief sought in both the matters too was different---Employee could not seek benefit of S.14 of Limitation Act, 1908---Grievance petition being time-barred, was rightly dismissed on that ground, especially when no sufficient cause had been brought on record to condone said delay.

House Building Finance Corporation and other v. Syed Muhammad Ali Gohar Zaidi 2004 SCMR 1811; Karsondas Dhunjibhoy v. Surajabhan Ramrijpal and others AIR 1933 Bom. 450; Messrs Chaturbhai Bhailalbhai Patel v. Union of India representing E.R. and W.R. AIR 1961 Pat. 331, Amar Nath and another v. M.T. Ralli and others AIR 1930 Lah. 211; Sumerehand Hukumchand and other v. Ilukumehand Mathurdas and others AIR 1965 M.P. 177; Sri Narayanadoss Mahant and another v. Sri T. Meeladri Rao and another AIR 1959 Andhra Pradesh 148; Mast. Maroof Jan and 2 others v. Yaqoob and 4 others 1990 CLC 19; Sadayatan Pande v. (Firm) Ram Chandra Gopal AIR 1934 All. 688; Fateh Khan v. Sharaaf Khan and others PLD 1984 Lah. 106; Kondaji Dagaji v. Dagadu Gajaba Deokar and another AIR 1935 Bom. 259; Muhanlal Baheti and others v. Moulvi Tabizuddin Ahmed AIR 1939 Cal. 625 and Madhosingh and another v. Jaitpalsingh and others AIR 1954 Rajasthan 46 ref.

Khalid Imran for Appellant.

Shahid Anwar Bajwa for Respondent.

PLC 2007 KARACHI HIGH COURT SINDH 423 #

2007 PLC 423

[Karachi High Court]

Before Muhammad Moosa K. Leghari, J

KHAYAL MUHAMMAD

Versus

Messrs LUCKY TEXTILE MILLS through Managing Director/Occupier

Labour Appeal No.49 of 2006, decided on 7th May, 2007.

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

----S.Os. 12 & 15---Termination of a workman on valid and genuine grounds through an order in writing containing explicit reasons was permissible under the law, however for terminating the service of a permanent workman, on account of certain allegations, could not be sustained unless the workman concerned was afforded an opportunity to rebut such allegations and same were proved in an impartial enquiry.

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

----Ss. 46(5) & 48---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.15---Termination of service---Grievance petition---Appeal---Payment in lieu of reinstatement---Appellant/employee who claimed to have been employed with employer for 15 years, his services were terminated on allegation that his performance was not up to the mark for, considerable period and that he had failed to discharge his duty properly---Grievance petition by appellant against termination of his service having failed, he had filed appeal before the High Court---Letter of termination and the pleadings made by employer, were adequate enough to show that termination of appellant was not simpliciter, but it contained a stigma on his career---Labour Court had utterly failed to correctly apply the law and properly appreciate evidence which had resulted in an infirm and invalid order which necessitated reversal---Order passed by the Labour Court was set aside and consequently grievance petition was allowed---Appellant having been rendered undesirable from point of view of employer, it would be appropriate and proper not to order his reinstatement---High Court directed in circumstances, that in lieu of reinstatement, appellant would be paid 25 months wages as provided under S.46(5) of Industrial Relations Ordinance, 2002---Neither non-employment was pleaded nor proved by the appellant, appellant thus was not entitled to back benefits.

M.A.K. Azmati for Appellant.

Khadim Hussain for Respondent.

Date of hearing: 7th May, 2007.

PLC 2007 KARACHI HIGH COURT SINDH 455 #

2007 P L C 455

[Karachi High Court]

Before Muhammad Moosa K. Leghari, J

SHAHEEN AIRPORT SERVICES

Versus

MUHAMMAD YASIN and another

Labour Appeal No.21 of 2003, decided on 1st June, 2007.

Industrial Relations Ordinance (XCI of 2002)--

---Ss. 46, 47(3) & 48---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.15---Termination of service---Grievance petition---Appeal---Worker was given a letter of termination of service which caused grievance to him and he after service of notice to the employer, filed grievance petition, which was accepted by the Labour Court against which appeal had been filed by employer---Employer had contended that worker was neither having good conduct nor good service record and that he was involved in the theft of 16 costly leather jackets for which he was proceeded against, but for technical reasons and on account of his influence, said proceedings were dropped---Alleged incident of theft of 16. jackets which had been attributed to worker, had taken place as far back as year 1994 and no action was taken against him---Termination of worker was tainted with malice which in no case, could be validated or sustained---Judgment passed by the Labour Court was based on sound and cogent reasons and needed no interference---Judgment of the Labour Court was upheld and appeal against said judgment having no merits, was dismissed.

PLD 1987 SC 47 rel.

S.M. Yakoob for Appellant.

M.A.K. Azmati for Respondent.

Date of hearing: 9th April; 2007.

PLC 2007 KARACHI HIGH COURT SINDH 460 #

2007 P L C 460

[Karachi High Court]

Before Muhammad Moosa K. Leghari, J

MUHAMMAD PARVAIZ

Versus

HUSSAIN SPINNING MILLS UNIT NO.1, LANDHI, KARACHI

Labour Appeals Nos.41, 42, and 43 of 2003 and KAR.No.119 of 2001, decided on 1st June, 2007.

Industrial Relations Ordinance (XCI of 2002)---

----Ss. 46 & 48---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.Os.l1-A & 12---Termination of services---Grievance petition---Appeal--- Services of appellants having been terminated by gate-stop, they filed their grievance petitions against their termination praying for their reinstatement in service---Management took the plea that contractors who were working at Unit No.1 where appellant used to work, had left the Mill abruptly without any notice to the Management as such no work was available to be done by the appellants---Services of other workers were either terminated or on their own option they were shifted to other units---Labour Court having dismissed grievance petitions filed by appellants they had filed appeal---Affidavit submitted by Factory Manager as witness of management, neither had disclosed the' names of the contractors who allegedly had left the Mill, nor the nature of work being done by them; nor the explicit circumstances, under which services of appellants lost their utility and were rendered redundant, whereby employer was constrained to terminate their services were explained---Said witness admitted in his cross-examination that employer had not obtained any permission from the court for closure of the mill---Contention of closure of factory was devoid of force and absolutely unacceptable for the simple reason that employer was prohibited by the law from closing down whole of the Establishment except in case of eventualities specified under Standing Order 11-A of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968---Closure of establishment and termination of workers on that account being in flagrant violation of law, was patently illegal---Labour Court had committed grave error of law as it neither considered, nor disclosed that aspect of the case and rendered an infirm and invalid decision, which could .hardly be sustained---Appeals were accepted and orders passed by the Labour Court were set aside---Appellants were directed to be reinstated in service with back benefits.

Mrs. Sarwar Jehan for Appellants.

Ch. Rasheed Ahmed for Respondent.

Dates of hearing: 16th and 17th of April, 2007.

PLC 2007 KARACHI HIGH COURT SINDH 464 #

2007 PLC 464

[Karachi High Court]

Before Muhammad Moosa K. Leghari, J

SAMIULLAH SHARIF

Versus

FAUJI OIL TERMINAL AND DISTRIBUTION COMPANY LIMITED, PORT BIN QASIM, KARACHI through Secretary GBOD

Labour Appeals Nos.196 and 232 of 2003, decided on 1st June, 2007.

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

----Ss. 2(g), 3 & S.Os.2-A, 12, 15---Regularization by conditions of employment of workman---Termination of service---Employers executed an agreement with the workmen for a period of 89 days and on its expiry then again executed a fresh agreement for a similar period---No concept of execution of agreement between a workman and the employer existed by which statutory rights of a workman could be curtailed or taken away as law did not permit the same---Services of a workman would have to be regulated in accordance with provisions of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and not otherwise---Workman who had been employed on a job of permanent nature, his service could only be terminated by issuing him a letter of termination explicitly stating the reasons therefor, if he was not being removed on account of misconduct--In case of removing an employee on account a stigma on his career/conduct, he was to be issued a show-cause notice and an inquiry had to be conducted into the allegations levelled against him---By executing agreement with the workmen, employers had flagrantly violated provisions of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968---Employees/Workmen, in the present case, had been in the, continuous employment of employers for a number of years, instead of issuing them letters of appointment they were compelled to execute an agreement that too for a period of 89 days, which was purposely done with the intention of circumventing the law---Employing the workmen for considerably long time, but giving them break of one day, was just a fraud on statute which could neither be ignored nor overlooked.

Enmay Zed Publication (Pvt.) v. Sindh Labour Appellate Tribunal and 2 others 2001 SCMR 565 ref.

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

----Ss. 2(xxx), 46 & 48---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(i) & S.O.12---Termination of service---Grievance petition---Appeal---Status of workman', determination of---Appellant whose services were terminated, filed grievance petition, which was dismissed by the Labour Court on the ground that appellant being not workman, was not entitled to invoke jurisdiction of Labour Court---Manager of employers, who appeared in the court as witness had stated that nobody was working under the supervision of appellant; that appellant used to work in shifts in the Operation Department; that drawing/sketches, preparation work was one of the duties of appellant and that water operation and preparation of the sketches, were the main duties of appellant---Arbitrator in his award had clearly stated that irrespective of salary drawn by appellant at the relevant time, he was aworkman' and had no managerial or administrative capacity to perform and that mere designation of a person as supervisor, was of no consequence, unless works performed by him, were such which could show that he was supervising the work of anyone---Held, appellant fell under the category of `workman'---Impugned order passed by the Labour Court was set aside and grievance petition filed by appellant, was allowed.

National Bank of Pakistan v. Sindh Labour Appellate Tribunal, Karachi and 2 others 1992 PLC 94 and PLD 1986 SC 103 ref.

Shafiq Qureshi for Appellant.

S. Qamruddin Hassan for Respondent.

Date of hearing: 12th April, 2007.

PLC 2007 KARACHI HIGH COURT SINDH 472 #

2007 P L C 472

[Karachi High Court]

Before Sarmad Jalal Osmany, J

MUHAMMAD FAROOQ TEXTILE MILLS LTD.

Versus

MUHAMMAD YAQOOB

Labour Appeals Nos.7 and 18 of 2003, decided on 9th April, 2007.

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

----S. 2(i)---Workman'---Determination of---Test for determining the question, whether an employee was aworkman' or not, would be the nature of work being performed by him---If it was manual, or clerical (whether skilled or unskilled) then employee would come within the definition of workman' per S.O.2(i) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968---Whether. manual or clerical work was incidental to the mails work or a substantial part of it was being performed by the employee was also to be examined---Where a person employed in a supervisory capacity, did some manual or clerical work incidentally, he would not come within the definition. of a worker or workman and vice versa---In the present case employee, who was initially appointed asQuality Checker' of the cloth manufactured by the employer company, his duty vas to check the weaving pattern in the cloth produced by the company, which did not involve any specialized or expert technical knowledge---Employee along with others was being supervised in his work by the weaving master'--- Employee, in circumstances could be categorized as aworkman' and all labour laws including West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 would apply with full force in his case.

Zubair Ahmed v. Sindh Labour Appellate Tribunal PLD 1985 Kar. 760; National Bank of Pakistan v. Punjab Labour Court No.V 1993 SCMR 672; Security Papers Limited v. Sindh Labour Appellate Tribunal PLD 1988 SC 180; Zahid Hussain v. Hoechst Pakistan Limited 1989 PLC 309; Itehad Chemical v. Punjab Labour Appellate Tribunal 1990 PLC 227; Central Cotton Mills Ltd. v. Sindh Labour Appellant Tribunal 1985 PLC 511; Mumtaz Hassan Khan v. Sindh Labour Appellate Tribunal 1984 PLC 1353; General Manager Packages Ltd. v. Punjab Labour Appellate Tribunal 1998 SCMR 1250; General Manager, Hotel Intercontinental, Lahore v. Bashir A. Malik PLD 1.986 SC 103; Karachi Shipyard and Engineering Works Limited v. Abdul Ghaffar 1993 SCMR 511; Granulars (Pvt.) Lirnited v. Muhammad Afzal 2002 PLC 1 and Rehmat Ali v. Security Paper Ltd. PLD 1982 Kar. 913 ref.

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

----S. 2(i) & S.O.12(3)---Industrial Relations Ordinance (XXIII of 1969), Ss.2(xxviii) & 25-A---Termination of service---No workman could be terminated, discharged or dismissed- from service, except by an order in writing by the employer under S.O.12(3) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968---Per S.25-A(i) of Industrial Relations Ordinance, 1969, a worker could bring his grievance in respect of any right guaranteed or secured by or under any law or any award or settlement for the time being in force, to the notice of his employer in writing either himself or through his shop steward within three months of the day on which cause of such grievance arose---Standing Order 12(3) of Standing Orders Ordinance, 1968 certainly embodied a right which, as such, was guaranteed to the employee and was certainly amenable to the jurisdiction of Labour Court under S.25-A(i) of Industrial Relations Ordinance, 1969 as all along his case was one of unfair dismissal---Where services of an employee were terminated in breach of Standing Order 12(3) of Standing Orders Ordinance, 1968, then he would fall within ambit of definition given in its S.2(i) and need not fall within the purview of definition of worker' andworkman' provided in S.2(xxviii) of Industrial Relations Ordinance, 1969; however, if an employee wanted to press into service S.25-A of Industrial Relations Ordinance, 1969 for enforcing airy other right guaranteed under West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, other than those, covered under Standing Order 12(3) of said Ordinance, then he should also fall within the definition of worker' andworkman' provided in S.2(xxviii) of Industrial Relations Ordinance, 1969.

----S. 25-A---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.15(3)(e)---Dismissal from service---Grievance petition---Full back-benefits---Entitlement---Person who was employed on permanent basis as Quality Checker, was dismissed from service after issuing him show-cause notice and holding ex parte domestic inquiry against him on ground of remaining absent from duty unauthorisedly without leave---Labour Court, on grievance petition against order of his dismissal from service, vide impugned order partly granted prayer of employee and reinstated him with 50% back-benefits---Employee had filed appeal praying for full luck-benefits---Validity---Held, it had been established that letter of enquiry was received by employee when date of holding enquiry had already passed---Enquiry proceedings were of no value of all as employee was not given any chance to defend himself---Employer company was obliged to have issued employee a fresh letter fixing another date for the domestic enquiry, but that was not done---Impugned dismissal order, in circumstances, could not be sustained as it would amount to 'unfair dismissal as enquiry proceedings had been held in the absence of the employee without notice to him, which was against the principles of natural justice---Employee, in circumstances would be considered to be in service of employer company from the date of his dismissal till the date of his. superannuation---Employee under cross-examination had admitted that after being dismissed from service, he was employed gainfully in the repair of motor vehicles etc.; however, nothing was on record .to establish as to how much employee was earning in that venture for which the burden fell .upon the employer company---Employee would be entitled to 50% of back-benefits in circumstances.

Muhammad Bakhsh v. The State 1989 SCMR 1473; Syed Iftikhar Din Haider Gardezi v. Central Bank of India Ltd. 1996 SCMR 669;. S.W.H. Jafri v. Muhammad Salim Shaikh 1979 PLC 431; Messrs Pakistan Machine Tool Factory v. Sindh Labour Appellate Tribunal and others 1992 PLC 650; Trustees of the Port of Karachi v. Muhammad Saleem 1994 SCMR 2213; Messrs Wah Industries Ltd. v. Punjab Labour Appellate Tribunal 1998 Pi.0 1; .Messrs Associated Consulting Engineers Ltd., Karachi v. Razi Ahmed Farooqui 1975 PLC 147; Aijaz Ahmed Memon v. Muslim Commercial Bank. 1985. PLC 994; Tariq Hussain v. Messrs Pakistan Railways 1997 PLC 736; Peetumal v. Messrs Thatta Cement Company Ltd. Makli 1991 PLC 853; Dawood Cotton Mills Ltd. v. Guffar Shah PLD 1981 SC 225; Rashid Ahmed v. Messrs Friends Match Work PLD 1989 SC 503; Jubilee Spinning and Weaving Mills Ltd. Karachi v. Bladar Khan 1975 PLC 24; Syed Niaz Ali Nasri v. Mushtaq Textile Mills Ltd. 1980 PLC 610; Messrs Crescent Pak Industries Ltd. v. Sindh Labour Appellate Tribunal 2000 PLC 274; Messrs National Cement Industries Limited v. National Industries Relations Commission 1986 PLC 105; National Bank of Pakistan, Hyderabad v. The Sindh Labour Appellate Tribunal 1993 PLC 625; Syed Anwar Ali Shah v: The Agricultural Development Bank of Pakistan NLR 1999 Lah. 127; Muhammad Bashir v. Chairman, Punjab Labour Appellate Tribunal 1991 SCMR 2087; Pakistan Automobile Corporation Ltd. v. Mansoorul Haq 2004 SCMR 1308; Abdul Hafeez Abbasi v. -Managing Director, Pakistan International Airlines Corporation 2002 PLC (C.S.) 1083; Pakistan Tobacco. Co. Ltd. v. Channa Khan and others 1980 PLC 981; Islamabad Club v. Punjab Labour Court No.2 PLD 1980 SC 307; Muslim Commercial Bank Ltd. v. Mahmood Ahmed Butt 1997 PLC SSO; Mahmood Shah v. Dawood Cotton Mills Ltd. and Sindh Labour Appellate Tribunal 1982 PLC 365; The Punjab Provincial Cooperative. Bank v. Muhammad Salim Butt PLD 1996 SC 596; Dost Muhammad Cotton Mills v. Muhammad Abdul Ghani PLJ 1975 Kar. 25; Dost Muhammad Cotton Mills v. Muhammad Abdul Ghani 1979 SCMR 304; Abdul Rasheed v. Chairman Labour Appellate Tribunal 1997 PLC 34; Central Cotton Mills v. Abdul Aziz 1983 PLC 1010; Bashir Ahmed v. Amin Textile Mills Ltd. 2003 PLC 1; Abdul Razzaque v. Messrs Ihsan Sons Ltd. 1992 SCMR 505; Pir Bakhsh v. Chairman Allotment Committee PLD 1987 SC 145; Shahzar. Khan v. Sindh Labour Court No.IV 1977 SCMR 103; Obaidullah v. Messrs Ulbrights (Pakistan) Ltd. 1985 PL,C 665; Hafeez Shah v. U.B.L. 2001 SCMR 931; Crescent Jute Products Ltd: v: Muhammad Yaqub PLD 1978 SC 207; National Bank of Pakistan v. Sindh Labour Appellate Tribunal Karachi 1992 PLC 994; National Bank of Pakistan v. Punjab Labour Appellate Tribunal 1992 PLC 415; Messrs Millat Tractors Ltd. v. Punjab Labour Court Na.3 1.996 PLC 300; Qayyum Nawaz v. N.-W.F.P: Small Industries Development Board, Peshawar 2000 PLC 218 and Messrs Fauji Sugar Mills Khoski District Badin v: Ali Nawaz 1997 PLC 451 ref.

Mehmood Abdul Ghani and Shafiq Qureshi for Appellant.

PLC 2007 KARACHI HIGH COURT SINDH 493 #

2007 P L C 493

[Karachi High Court]

Before Zia Perwez and Syed Zawwar Hussain Jafferi, JJ

GHULAM MUSTAFA CHANNA

Versus

MUSLIM COMMERCIAL BANK LTD. and others

L.A. Nos.14 and 15 of 2006, decided on 22nd March, 2007.

Industrial Relations Ordinance (XCI of 2002)---

----Ss. 46, 47(3) & 48---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.15---Termination of service---grievance petition---appeal---Services of employee serving as Assistant in Bank were terminated after charge-sheeting him and holding inquiry against him on allegation of making bogus entries in the ledgers---Alleged bogus entries were not denied by employee in his statement before Enquiry Officer---Held, business of Banking was based entirely upon trust and confidence and financial transaction called for much higher degree of care in performance of duties by the employees of Bank---Once a fact of misappropriation was proved against an employee of Bank, misconduct alleged against him would stand, irrespective of the quantum of amount involved---Not necessary that only misappropriation of a large amount would attract the prescribed penalty of dismissal, while lesser would not attract such penalty---Bank acts as custodian of the public money and amount whatsoever was deposited, was required to be credited in the accounts of customer without any delay, and no sooner the trust reposed by the customer in the Bank was shaken, the Bank would not be in a position to run its business---Merely for the reason that at a subsequent stage, amount in dispute was deposited by the employee, would not constitute, a mitigating circumstance in his favour to hold that he was entitled for reinstatement into service---As soon as misappropriation of public amount was established, the delinquent would be deemed guilty of embezzlement and no leniency, in circumstances in that behalf could be shown to him---Even if employee had been found misappropriating public money from the Bank temporarily, but as far as charge was concerned, it stood established without doubt leaving no option for employer-Bank, except dismissing him from service to meet the ends of justice---Services of employee, in circumstances, were rightly terminated and said termination order could not be interfered with in appeal.

Mukarram Shah v. Sindh Labour Appellate Tribunal and others 2005 PLC 14; Divisional Collector, KSRTC v. A.T. Maner AIR 2004 SC 4761; Izzat Baig Aware v. Habib Bank Limited 2004 SCMR 98 and Shahid Masood Malik v. Habib Bank Limited and another 2003 T.A. (Service) 180 rel.

Nizamuddin Baloch and Mahmood Abdul Ghani for Appellant.

Date of hearing: 26th February, 2007.

PLC 2007 KARACHI HIGH COURT SINDH 500 #

2007 P L C 500

[Karachi High Court]

Before Mrs. Qaiser Iqbal, J

E.F.U. GENERAL INSURANCE LTD.

Versus

SINDH LABOUR Court No.V and another

Labour Appeal No.171 of 2005, decided on 29th November, 2006.

Industrial Relations Ordinance (XCI of 2002)---

----Ss. 46, 47(3) & 48---West Pakistan Industrial anal Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.15(3)(e)---Dismissal from service---Grievance petition---Appeal---Services of employee were dismissed after charge-sheeting her and holding inquiry against her on charges of misconduct and habitual late attendance---Labour Court, after recording evidence, arrived at the conclusion that dismissal was not warranted under the law---Validity---First charge-sheet served upon employee on charges of her alleged misbehaviour with other Members of the staff and late attendance having been dropped by employer, no justification existed on the part of employer to issue another charge-sheet for late attendance---Employee on account of being pregnant, remained absent for 15 minutes some time with prior permission of Administration Incharge and had applied for maternity leave as admissible under the law, but her application was not granted---Entire record was required to be reviewed for the purpose of determination of her overall performance before issuance of charge-sheet for misconduct 'and being .habitual absentee without leave---No justification was available after the first charge-sheet was dropped to reopen the previous record of the employee---Simple absence without airy habit or deliberate intention, was not misconduct under S.O.15(3)(e) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968---Only wilful and habitual absence from duty without leave, was to be treated as `misconduct'---Adverse finding of Inquiry Officer could not be upheld and adverse action by employer against employee could not be termed as justifiable and sustainable in law and equity---Impugned order passed by the Labour Court, accepting grievance petition of employee against order of her dismissal from service, was upheld and appeal filed by employer against judgment of the Labour Court was dismissed.

Pakistan Petroleum Limited Karachi through Manager Huinan Resources and another v. Javed Iqbal 1988 PLC 273 rel.

Nafees Usmani for Appellant

Gohar Iqbal for Respondent No.2.

Date of hearing: 29th November, 2006.

PLC 2007 KARACHI HIGH COURT SINDH 545 #

2007 P L C 545

[Karachi High Court]

Before Zia Perwez, J

UNITED BANK LIMITED through Hub Branch Manager

Versus

ATHAR ALI MANGI

Labour Appeals Nos.S-16 and 17 of2006, decided on 26th May, 2007.

Industrial Relations Ordinance (XCI of 2002)---

----Ss. 2(xxx), 46, 47(3) & 48---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(i) & S.O.15(3)(e)---Termination of service---Grievance petition---Workman', determination of---Appeal to High Court---Services of employee were terminated after holding inquiry against him on allegation of late coming and unauthorized absence from duty for about six months which amounted to misconduct---Labour Court, accepting grievance petition, reinstated employee in service, but without back-benefits---Employer-Bank had filed appeal against order of reinstatement of employee in service, whereas employee had filed appeal for grant of back-benefits---Bank had challenged findings of the Labour Court on the ground that employee being a Sales Officer was notworkman' as he did not perform manual or clerical work---Contention of Bank was that employee could be doing some manual or clerical work in order to accomplish his functions, but predominant functions and duties of Sales Officer were of specialized nature designed to achieve the end of promoting sales to meet certain target in competitive field with other---Mere designation of an employee, could not be the determining factor as to his status and the nature of job and duty was to be kept in view---Employee was employed as Assistant in the Bank and was assigned the duty of Salesman---Employee by doing such small manual work connected with the sales his status could not be changed nor for that reason alone he could be regarded as workman'---Such was because his main job was in sales for which ho had to use faculty of his mind and wisdom and not only manual or clerical work---Grievance petition by employee on the ground of his being a salesman against his termination, was not maintainable as he was notworkman' within the meaning of S.2(i) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968---Report submitted by Enquiry Officer had confirmed that employed committed acts of misconduct by unauthorised absence/late coming and not performing his duty---Employee fell within the definition of "Salesman", and as such no ground for interfering with the findings of Enquiry Officer followed by letters of termination, had been-made out---Appeal was allowed and judgment of Labour Court was set aside---Employee having failed to place anything on record to establish that he remained jobless and unemployed till his reinstatement, he would not be entitled to back-benefits---Appeal of employee in that respect, was dismissed.

Nasir Jamal Qureshi v. Sindh Labour Appellate Tribunal and others 2005 SCMR 1049; Nasir Jamal Qureshi v. Sindh Labour Appellate Tribunal and others 2003 PLC 424;. Mumtaz Hassan Khan v. Sindh Labour Appellate Tribunal, and others 1984 PLC 1353; Muhammad Shafique v. Messrs Knoll Pharmaceuticals Limited 2003 PLC 226; Naeem Wahid v. Sindh Labour Appellate Tribunal and others 1984 PLC 352; Nasir Jamal Qureshi v. Sindh Labour Appellate Tribunal and another 2004 PLC 288; Muhammad Farooq v. Messrs Iqbal Silk Mills Ltd., Karachi 1969 PLC 439; Manager, Planning, Formation and Control, Novertis (Pakistan) Ltd. and another v. Muhammad Arif NLR 2005 Lahore 90; Ahmed Ali v. Messrs General Tyre and Rubber Company of Pakistan Ltd., Karachi 1984 PLC 122; M. Arunagiri v. Bata India Ltd. and others W.A. No.7574 of 1987 of India High Court; Riaz Ahmed Malik v. Administrator Municipal Corporation, Bahawalpur and another 2004 TD (Lahore) 442; Pakistan Automobile Corporation Ltd. v. Mansoor-ul-Haque and others 2004 PLC (C.S.) 1151; Bibi Khatoon v. Abdul Jalil PLD 1978 SC 212; National and Grindlays Bank Ltd. v. Homi F. Behrana PLD 1979 Kar. 692; Shahzar Khan v. Labour Court No.4, Karachi and others 1977 SCMR 106; Messrs Pakistan Herald Ltd. Karachi v. Victor Sunny and another 1996 PLC 66; Pakistan Herald Workers' Union v. Sindh Labour Appellate Tribunal and others 1996 SCMR 1827, Dost Muhammad Cotton Mills v. Muhammad Abdul Hani PLJ 1975 Kar. 25; Public Works Department Government of Punjab, Lahore v. National Industrial Relations Commission and another 2004 SCMR 27; Shaheen Air Port Services v. Haider Abbas Rizvi 2006 PLC 169, Ch. Masood Ahmed v. Messrs Pakistan Machine Tool Factory and others 2004 PLC 343; Dilkhusha Enterprises Ltd. v. Abdul Rashid and others 1985 SCMR 1982; Pakistan Tobacco Company Ltd. v. Pakistan Tobacco Company. Employees Union Dacca and others PLD 1961 SC 403; Matloob Hassan v. Brook Bond 1992 SCMR 227; Mustehkam Cement v. Abdul Rahim 1998 SCMR 644 and Mukarram Shah v. Sindh Labour Appellate Tribunal and others 2005 PLC 14 ref.

Faisal Mehmood Ghani for Appellant (in Labour Appeal No.16 of 2006).

Muhammad Shafique Qureshi for Respondent (in Labour Appeal No.16 of 2006).

Muhammad Shafique Qureshi for Appellant (in Appeal No.17 of 2006).

Faisal Mehmood Ghani for Respondent (in Appeal No.17 of 2006) .

Date of hearing: 19th April, 2007.

JU DGMENT

ZIA PERWEZ, J.--- These arc two labour appeals arise out of the judgment, (dated 14-6-2006 in Grievance Application No.15 of 2005) of the learned Sindh Labour Court No.VII, Sukkur, whereby the appellant in Labour Appeal No.16 United Bank Ltd. (hereinafter referred to as appellant) was ordered to. reinstate the respondent Athar Ali Mangi (hereinafter referred as the respondent) in service within 30 days of the impugned order without back-benefits while Labour Appeal No.17 of 2006 was filed on the ground of non-award of back-benefits to the respondent.

Brief facts of the case are that the appellant is the employer of the respondent employed as an Assistant posted at United Back Ltd. Nishtar Road Branch, Sukkur. The appellant served a detailed charge-sheet and statement of allegations on 16-7-2004 wherein the respondent was charged with late coming and absence from duty pertaining to the period of January, 2004 to June, 2004 amounting to misconduct under the conditions of services. Thereafter, enquiry was held by the Enquiry Officer. Enquiry report confirmed that the respondent committed acts of misconduct by unauthorized absence/late coming and not performing his duty, therefore, show-cause notice was issued and after due process the competent authority awarded punishment by way of termination of service of respondent. Respondent submitted departmental appeal which was not disposed of within statutory period, therefore, service appeal was filed which was disposed of by the impugned judgment, hence these appeals.

Heard the learned Advocates and perused the record of the case. Learned Advocate for the appellant has challenged the finding of the trial Court that the respondent was a Sales Officer and not a Workman in law as he did not perform the manual or clerical work. He may be doing some manual or clerical work in order to accomplish his functions but the predominant functions and duties of a salesman are of specialized nature designed to achieve the end of promoting sales to meet certain targets in competitive field with other procedures and finding and pursuing best available clients. In support of his contention, he relied upon the case of Nasir Jamal Qureshi v. Sindh Labour Appellate Tribunal and another 2005 SCMR 1049, Nasir Jamal Qureshi v. Sindh Labour Appellate Tribunal and others 2003 PLC 424 and Mumtaz Hassan Khan v. Sindh Labour Appellate Tribunal and others 1984 PLC 1353; May and Baker (India) Ltd. and their Workmen (Civil Appeals Nos.319 and 320 of 1960 of Indian jurisdiction), J.&J. Deehane Distributors and State of Kerala and others (O.P. No.3502-of 1970) of High Court of Judicature, Kerala); Burmah Shell Oil Storage and Distribution Company of India Ltd. v. The Burmah Shell Management Staff Association and others (Civil Appeals Nos.1477 and 1478 of 1970 of Indian Supreme Court), Muhammad Shafique v. Messrs Knoll Pharmaceuticals Limited 2003 PLC 226, Naeem Wahid v. Sindh Labour Appellate Tribunal and others 1984 PLC 352 and Nasir Jamal Qureshi v. Sindh Labour Appellate Tribunal and another 2004 PLC 288, unreported decisions of Honourable Supreme Court in (Dilshad Khan Lodhi v. Allied Bank of Pakistan and others C.P.L.A. No.452-K of 2005 (Talat Faruq v. Messrs Chloride Pakistan Limited and another) Civil Petition No.K-145 of 1976 and (National Bank of Pakistan v. Punjab Labour Court No.5 and others) Civil Appeal No.206 of 1988.

Learned counsel for the appellant went on to argue that chargesheet specifically mentioned that the respondent was absent without leave and the Enquiry Officer rightly found him to be guilty of misconduct. Respondent is guilty of misconduct as he habitually absented himself for the period of about six months. In support of his contentions, he relied upon case of Muhammad Farooq v. Messrs Iqbal Silk Mills Ltd., Karachi 1969 PLC 439, Manager, Planning, Formation and Control, NOVeI't1S (Pakistan) Ltd. and another v. Muhammad Arif NLR 2005 Lahore 90; Ahmad Ali v. Messrs General Tyre &Rubber Company of Pakistan Limited Karachi 1984 PLC 122 and M. Arunagiri v. Bata India Ltd. and others (W.A. No.7574 of 1987 of Indian High Court).

That the respondent has failed to place any material on record to establish his assertion that he remained jobless and unemployed till his reinstatemetl, therefore, he would not be entitled to back-benefits as has been held in case of Riaz Ahmad Malik v. Administrator Municipal Corporation, Bahawalpur and another 2004 TD (Lahore) 442, Pakistan Automobile Corporation Ltd. v. Mansoor-ul-Haque and others 2004 PLC (C.S.) 1151.

Learned counsel has further contended that the charge-sheet was well within tune. The extent and scope of examination of inquiry proceedings has been subject to judicial pronouncement, the consistent view is that it is not open for the Labour court to re-examine and re-appreciate evidence recorded in domestic inquiry to come to a conclusion contrary to that taken by the Inquiry Officer. In this context, reliance is placed on the cases of Bibi Khatoon v. Abdul Jalil PLD 1978 SC 212 and National and Grindlays Baal: ,Ltd, v. Homi F. Behrana PLD 1979 Kar. 692.

It is further contended that the respondent was not performing any manual or clerical duties but performing the work of Salesman hence by virtue of his work, he was not a workman in terms of S.O.O., 1968. In support of his contentious, learned counsel relied on the case of 5hahzar Khan v. Labour Court No.4, Karachi and others 1977 SCMR 1U6, Messrs Pakistan Herald Ltd. Karachi v. Victor Sunny and another 1996 PLC 66, Pakistan Herald Workers' Union v. Sindh Labour Appcelate Tribunal and others 1996 SCMR 1827; Dost Muhammad Cotton Mills v. Muhammad Abdul Hani PLJ 1975 Kar. 25, Public Works Department Government of Punjab, Lahore v. National Industries Relations Commission and another 2004 SCMR 27, Shaheen Air Port Services v. Haider Abbas Rizvi 2006 PLC 169; Ch. Masood Ahmed v. Messrs Pakistan Machine Tool Factory and others 2004 PLC 343, Dilkhusha Enterprises Ltd. v. Abdul Rashid and others 1985 SCMR 1982 and unreported case of Honourable Supreme Court in Messrs Nichimen Corporation Karachi v. Chairman, Sindh Labour Appellate Tribunal and others Civil Petition No.413 of 1992.

Learned counsel for the respondent has contended that the alleged misconduct does not fall within the scope of definition of S.O.15(3)(e) of Ordinance, 1968. The respondent was appointed in the year 1987. There was no charge-sheet/allegations of habitual late coming or absence, right from 1987 to 2002 but the Manager of Nishtar Road Branch, Sukkur became jealous and inimical clue to personal, he got issued a belated and time-barred charge-sheet to the respondent. The respondent has neither remained absent nor late. Thus, the action of the appellant was mala fide, illegal and against natural justice. The respondent, therefore, prayed for back-benefits and dismissal of appeal against reinstatement filed by the appellant.

The only point involved in this petition is whether the finding of the learned trial court holding that the respondent was a workman was legally sustainable. There is no cavil that mere designation of an employee may not be the determining factor as to his status and the nature of job and duty is to be kept in view. The respondent was employed as Assistant in the Bank and was assigned the duty of

Miss page

Newspapers Employees (Conditions of Service) Act, 1973 on 19-6-2004 as well as applications for implementation under section 62, I.R.O. 2002. Comments to the said application were submitted by the management. It was mainly contended. that the vires and legality of the 7th Wage Board Award was under challenge before the Sindh High Court in constitutional petitions filed by various. newspaper establishments; It was also contended that a restraining order was issued by a learned Division Bench of the Sindh High Court in Constitutional Petition No.382 of 2003. No specific ground was however, made out on merits against the implementation of the 7th Wage Board Award. .

It is not denied by Mr. Muhammad Ali Mazhar, Advocate. for the respondent that the stay order issued in Constitution Petition No.382 of 2003 titled Pakistan Herald Publications (Pvt.) Limited and another v. Federation of Pakistan and. others has "since been vacated as the constitution petition itself was dismissed as not pressed by the learned Division Bench of Sindh High Court vide order dated 11-10-2005. It is also not the case of respondent management that any restraint order has been passed in constitution petitions wherein the vires and legality of the 7th Wage Board Award is stated to be under challenge.
Reference at this stage may be made to specific orders passed by this Tribunal wherein the objections of the management of .the implementation of the 7th Wage Board Award were not sustained upon the consideration that despite the pendency of the constitution petitions challenging, the legality of the 7th Wage Board Award, no restraint order has been issued by the Honourable High Court.
Out of the initial 43 petitioners, as many as 25 petitioners as per list attached did not press the petition and as a result only 68 petitioners are left in the filed. In view of the pendency of the constitution petition, challenging the 7th Wage Board Award, the petitioners were directed to place undertakings/affidavits on the record to the effect that in case of any adverse order in the said constitution petitions, the petitioners would refund the dues to respondent establishment. All the 68 petitioners now in the field, have furnished the requisite undertakings/affidavits.
On 16-1-2006, Mr. Muhammad Ali Mazhar, learned counsel for the 'respondent assisted by Mr. Tariq Pervez, Manager (Human Resource) Daily Jang, Rawalpindi submitted that negotiations were being conducted between the parties regarding the implementation of the 7th Wage Board Award. This was controverted by the petitioners. The learned counsel for the respondent establishment sought a short adjournment in order to apprise himself of any conclusive agreement, which might have been arrived at between the parties. Through the same it was emphasized that the implementation of the 7th Wage Board Award in respect of the 68 petitioners/complainants be divided into three categories:--

(a) Period commencing 1st of July; 2000 upto 31st December, 2003.

(b) Period commencing 1st of January, 2004 to 31st December, 2005.

The learned counsel for the respondent has placed on the record an application for adjournment against upon the same assertion that the validity of the 7th Wage. Board Award is under challenge in two constitution petitions before the Sindh High Court. Reference was also made to Intra-Court Appeal No.859 of 1997 as this I.C.A. has challenged the vires of the 6th Wage Board Award.
As earlier observed, there is admittedly no orders restraining proceedings before this Tribunal. It is trite law that mere pendency of proceedings of the nature as submitted by the learned counsel for the respondent shall not operate as an injunctive order. Reliance is placed on Messrs Cowasjee and Sons v. Director Sindh Employees Social Security Institution 2000 PLC (Labour) 26, a Division Bench judgment of Honourable Karachi High Court.
Regarding the implementation of the 7th Wage Board Award, Mr. Sadiq Muhammad Warriach, learned counsel for the petitioners has placed reliance upon section 12 of the Newspaper Employees (Conditions of Services) Act, 1973 to submit that a decision of the Wage Board published under section 11 shall be deemed to be an award of the Full Bench of .the NIRC and all the provisions of the Industrial Relations Ordinance, 2002 (previously IRO 1969) shall be applicable to such an award. The learned counsel further made reference to section 13(4) (ibid) to submit that this Tribunal shall have the same power which a Labour Court has under section 62 of the IRO 2002 (formerly section 51(1) of the repealed IRO, 1969) for implementation of a Wage Board Award.
It is contended by the learned counsel for the petitioners that any money due from an employer under an award, settlement or decision of the arbitrator, Labour Court or High Court may be recovered as arrears of land revenue and after such recovery to be paid to the employee concerned.
Arguments have been heard and record perused. The petitioners have calculated their dues from 1-7-2000 (effective date of the 7th Wage Board Award) upto 31-12-2003: Statement of dues/charts in this respect are marked in case as Mark P/1. The management has not controverted this claim. Correspondingly the management has filed a statement of the dues of as many as 39 petitioners upon the basis of the difference between the salaries being actually paid and the salaries determined for the categories of the petitioners in the 7th Wage Board Award.

The respondents have failed to file a similar statement of dues regarding the remaining 29 petitioners although in their comments, the claim of the said 29 petitioners was not denied.

The uncontroverted claim of the 29 petitioners as made in their petitions along with the acknowledgment of dues of 39 petitioners as admitted by the management have been consolidated in list marked T/1. According to this consolidated list, the dues of each of 68 petitioners have been worked out as in Column No.5 of Mark T/1.

The 7th Wage Board Award came into force on 1-7-2000. It is binding on all the newspaper establishments. The employees of the concerned establishment are under a legal obligation to implement the said award in its letter and spirit. Under section 12 of the Newspaper Employees (Conditions of Service) Act, 1973 the Wage Board award shall be deemed to be an award of the Full Bench of the Commission and all the provisions of the Industrial Relations Ordinance, 1969 (IRO, 2002 presently) shall apply to decision of the Board. Under section 51, IRO, 1969 (now section 62, IRO, 2002) the Labour Court is authorized to recover all money due from an employer under an award, settlement or decision of the arbitrator, Labour Court or High Court as arrears of land revenue or as a public demand. Section 13(4) of the Newspaper Employees (Conditions of Service) Act, 1973 provides that this Tribunal shall have the power to issue a direction which a Labour Court has under section 51(1), IRO 1969 (now section 62, IRO, 2002). This legislation incorporation or reference fully empowers this Tribunal to recover the amount due under the award as arrears of land revenue.

According to the showing of the respondents, themselves, they have failed to pay salaries to the petitioners in accordance with the salaries fixed under the 7th Wage Board Award. The arrears of dues have been admitted and acknowledged by the respondents. The due payable by the respondents to the petitioners from 1-7-2000 to 31-12-2003-are accordingly determined as amount due.

PLC 2007 KARACHI HIGH COURT SINDH 656 #

2011 PLC 656

[Karachi High Court]

Before Sabihuddin Ahmed, C.J. and Ali Sain Dino Metlo, J

THATTA CEMENT EMPLOYEE UNION and others

Versus

SINDH LABOUR APPELLATE TRIBUNAL, KARACHI and another

Constitutional Petition No.D-3005 of 1993, decided on 11th June, 2007.

Employees' Cost of Living (Relief) Act (I of 1978)---

----Ss. 3 '& 8---Constitution of Pakistan (1973), Art.199---Constitutional petition---Increase iri wages granted through settlement---Adjustability against cost of living granted under Employees' Cost of Living (Relief) Act, 1974---Appellate Tribunal found that increase in wages granted through settlement was adjustable under relevant provisions of S.3(6)(7), of Employees' Cost of Living (Relief) Act 1974---Petitioners had called in question said order of Appellate Tribunal---Held, Increase was neither occasioned by incidence of promotion nor by normal increment and related to basic wages and not an "allowance", amount payable was to be adjustable--Financial benefits, in circumstances, conferred by settlement in. question whereby relief was granted due to rise in cost of living, were adjustable against additional cost of living allowance granted by S.3(6)(7) of Employees' Cost of Living (Relief) Act, 1974.

R.B. Industries Limited v. Employees Welfare Union PLD 1983 SC 15 fol.

1976 PLC 43 ref.

Ghulam Rasool Chandio for Petitioners.

Choudhry Rasheed Ahmed for Respondent No.2.

Date of hearing: 1st February, 2006.

PLC 2007 KARACHI HIGH COURT SINDH 686 #

2007 P L C 686

[Karachi High Court]

Before Muhammad Moosa K. Leghari, J

LIAQAT ALI

Versus

CAFE MOMIN

Labour Appeal No.295 of 2003, decided on 23rd April, 2007.

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

---0. VIII, R.1----Written statement- -Such statement, could not be considered as evidence, unless the maker of the statement appeared in the court to testify the same.

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

---Ss. 46 & 48---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.1(4)(a), S.O.1(b) & 12---Termination of service---Grievance petition---Permanent workman--Appeal to High Court---Services of appellant having been terminated, appellant filed grievance petition, which having been dismissed, he had filed appeal before the High Court---Grievance petition was dismissed on the grounds that appellant was not a permanent workman and that West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, was not applicable as number of permanent employees ,in the employer-establishment, was less than 20---Evidence on record had proved that appellant was a permanent worker of the establishment---Appellant in his affidavit in evidence had stated that establishment was employing more than 30 employees---Said assertion of appellant weht unrebutted/unchallenged as the management did not examine any witness to controvert assertion/plea of appellant or to substantiate its own stand regarding number of employees in the establishment---Contention of establishment that provisions of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance were not applicable, was devoid of force---Labour Court had committed an error to observe that for claiming the status of a permanent workman, appellant should have produced his service card for each year as it was neither the requirement of law nor did it appeal to reason---Impugned order passed by the Labour Court was set aside and appellant was reinstated in service with back-benefits.

Khadim Hussain for Respondent.

?Date of hearing: 11th April, 2007.

PLC 2007 KARACHI HIGH COURT SINDH 690 #

[Lahore High Court]

Before Syed Hamid Ali Shah, J

Messrs PAKISTAN DRUMS (PVT.) LIMITED

Versus

BOARD OF TRUSTEES EMPLOYEES' OLD AGE BENEFITS INSTITUTION and others

Writ Petition No.14958 of 1999, decided on 7th February, 2005.

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

---Ss. 4(2), 9-B, 12(3), 33 & 35---Employees' Old Age Benefits (Contribution) Rules, R.2(c)---S.R.O. 1277(I)/81, dated 3-11-1981---Constitution of Pakistan (1973), Art.199---Constitutional petition---Levy and recovery of amount of contribution---Ex parte order for payment of Rs.38,600 from July, 1986 to December, 1991 was passed against petitioner-company and subsequently statutory increase of an amount of Rs.69,300 was levied---Authorities resorted to the recovery of said amount under West Pakistan Land Revenue Act, 1967 as arrears of land revenue---Petitioner had sought setting aside of said order passed against it including warrants of arrest and attachment order---First and second appeals 'filed by petitioner, having been dismissed, it had filed constitutional petition---Scope---Petitioner had alleged that claim of disputed amount by authorities was on the basis of ex parte order and no record was available with the authorities in this regard---Assessment against petitioner was also alleged to be without any inquiry and without examination of record---Petitioner further contended that powers and functions under Employees' Old-Age Benefits Act, 1976 were to be exercised by the institution which for the purpose of said Act was State Life Insurance Corporation and assessment of contribution could only be made or determined under Insurance Act, 1938 that any assessment of levy of contribution by any Authority, except State Life Insurance Corporation was without jurisdiction and not enforceable under law---Validity---Contention of petitioner that State Life Insurance Corporation, was the Authority to exercise powers, had no force; firstly because nomination of State Life Insurance Corporation had been withdrawn through S. R. O.1277(I)/81, dated 3-11-1981; secondly petitioner was paying contribution as assessed and determined by the said Authority from December 1999 onward---Sufficient evidence .was available on record to show that numerous opportunities were provided to petitioner to produce record before concerned officials, which were not availed---Even otherwise assessment under S.12(3) of Employments' Old-Age Benefits Act, 1976 was made on basis of record available and same was conveyed to petitioner through letter---Petitioner having failed to provide record despite various opportunities were afforded to him, no option was left with authorities to proceed and decide the matter on basis of available record---Grounds urged by petitioner were new grounds, which were neither raised before Adjudicating Authority nor before the Board of Trustees and secondly question raised in petition were of factual controversy, which could not be considered in constitutional jurisdiction of High Court.

2004 PLC 63; 1990 PLC 21; PLD 1997 SC 197 and Abdul Hameed Khan v. Mrs. Saeeda Khalid Kamal Khan PLD 2004 Kar. 17 rel.

Umar Mahmud Kasuri for Petitioner.

Kashif Ali Chaudhry for Respondents.

PLC 2007 LAHORE HIGH COURT LAHORE 300 #

2007 PLC 300

[Lahore]

Before Muhammad Jahangir Arshad, J

Sheikh ZIA AKHTAR

Versus

COUNTRY MANAGER COCA COLA BEVERAGES PAKISTAN LTD. and 3 others

F.A.O. No.222-L of 2005, decided on 1st February, 2007.

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

----Ss. 2(xxx), 46 & 47(3)---Dismissal from service---Grievance petition---Maintainability---'Workman', determination of---Principles---Appeal to High Court---Appellant, who was dismissed from service, filed grievance petition against his dismissal from service---Said grievance petition was dismissed by the Labour Court holding that same was not maintainable as appellant was not workman' and could not file grievance petition---Appellant had filed appeal against impugned order of the Trial Court---impugned judgment of the Labour Court suffered from a material set back as it had failed to weigh and consider the evidence of the parties---Findings of the Labour Court appeared to be mainly influenced by designation assigned to appellant in his letter of appointment and confirmation letter, but it failed to deal with other aspects of the case, especially relating to the nature of performance of the duties, his job; including whether appellant had the power of hire and fire; or whether he was performing any supervisory or advisory duty---In absence of any expressed findings to that effect, appellant could not be excluded from definition ofworkman' so as to pass the order of his termination without any show-cause notice and fulfilling the procedure provided under West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968---Allowing appeal against judgment of the Labour Court, impugned judgment was set aside and matter was remanded to the Labour Court for deciding same afresh, within specified period.

Messrs Ihsan Sons Ltd. v. Abdul Razak Habib and 2 others 1987 PLC 390; Pakistan International Airlines v. Sindh Labour Court No.5, and others PLD 1980 SC 323; Shahzar Khan v. Sindh Labour Court No.4., Karachi and 2 others 1977 SCMR 103; Allied Bank of Pakistan Ltd. v. Muhammad Hamayun Khan and others 1998 SCMR 1664; Dost Muhammad Cotton Mills Ltd. v. Muhammad Abdul Ghani and another 1979 SCMR 304; Distribution Officer, Hoechst Pharmaceutical Pakistan Ltd., Faisalabad and another v. Punjab Labour Appellate Tribunal,. Lahore and 2 others 1994 PLC 157; Nasir Jamal Qureshi v. Sindh Labour Appellate Tribunal and another 2005 SCMR 1049 and Syed Matloob Hasan v. Brook Bond Pakistan Limited Lahore 1992 SCMR 227 rel.

Muhammad Anwar Awan for Appellant.

Ch. Abdul Rab for Respondents.

Dates of hearing: 24th & 25th January, 2007.

PLC 2007 LAHORE HIGH COURT LAHORE 385 #

2007 P L C 385

[Lahore]

Before Syed Sakhi Hussain Bokhari, J

ALLIED BANK OF PAKISTAN LIMITED through Attorneys

Versus

Malik REHMATULLAH

Labour Appeal No.284 of 2004, heard on 25th April, 2007.

Industrial Relations Ordinance (XXIII of 1969)---

----Ss. 25-A & 37(3)---Dismissal from service---Grievance petition---Limitation---Appeal---Grievance petition against order of dismissal from service was filed by employee after more than two and a half years from order of his dismissal from service, and as such was time barred---Employee, after serving grievance notice, filed appeal before Service Tribunal, which was returned for presenting before competent forum---Employee thereupon filed appeal before Supreme Court, which was also dismissed---Even after dismissal of his appeal by the Supreme Court employee remained silent for 23 days---Employee did not mention any ground in application for condonation of delay---If time consumed during litigation before other forums was excluded, even then there was unexplained delay of 23 days---Employee was bound to explain each day's delay but he had not given any reason/sufficient cause---Grievance petition being time barred, was liable to be dismissed on that score alone---Impugned order of the Labour Court whereby grievance petition filed by the employee was accepted, was set aside and grievance petition was dismissed.

Dr. Anwar Ali Sahto and others v. Federation of Pakistan and others PLD 2002 SC 101 and Almas Ahmad. Fiaz v. Secretary Government of the Punjab Housing and Physical Planning Development, Lahore and another 2007 PLC 64 rel.

Shahid Anwar Bajwa for-Appellant.

Sheikh Abdul Hameed for Respondent.

Date of hearing: 28th April, 2007.

PLC 2007 LAHORE HIGH COURT LAHORE 398 #

2007 P L C 398

[Lahore]

Before Syed Sakhi Hussain Bokhari, J

ALLIED BANK OF PAKISTAN LTD. through Attorneys and others

Versus

M. IQBAL SIPRA

L.A. No.82 of 2005, heard on 25th April, 2007.

Industrial Relations Ordinance (XXIII of 1969)---

----Ss. 25-A & 37(3)---Dismissal from service---Grievance petition---Maintainability---Appeal---Employee, who was dismissed from service, served grievance notice and then filed grievance petition against his dismissal from service which, was accepted by the Labour Court against which employer. had filed appeal---Validity---Employee did not serve grievance notice upon his employer, but had served upon the Appellate Authority/Board of Directors---Appellate Authority was always considered to be distinct and different from Appointing Authority---No valid grievance notice was given in circumstances and grievance petition by the employee was liable to be dismissed---Impugned order passed by the Labour Court was set aside and grievance petition was dismissed.

Khushal Khan v. Muslim Commercial Bank Ltd. and others 2002 SCMR 943 and Allied Bank of Pakistan Limited through Attorneys and 2 others v. Muhammad Bashir Khan 2006 PLD 39 rel.

Shahid Anwar Bajwa for Appellant.

Mahmood Ahmad Qazi for Respondent.

Date of hearing: 25th April, 2007.

PLC 2007 LAHORE HIGH COURT LAHORE 491 #

2007 P L C 491

[Lahore High Court]

Before Syed Hamid Ali Shah, J

TOWN COMMITTEE, KHARIAN

Versus

YOUNIS MASIH and others

L.A. No.311 of 2005, decided mi 6th October, 2006.

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

----Ss. 1(4), 15 & 17---Industrial Relations Ordinance (XCI of 2002), S.48(3)---Extra wages/double over-time for working on Gazetted holidays---Claim for---Review---Workers, employed in Town Committee, filed joint petition before Authority established under Payment of Wages Act, 1936 claiming wages/double over-time for working on Gazetted holidays---Authority accepted claim of workers and appeal filed by petitioner employers under S.17 of Payment of Wages Act, 1936, against order of Authority having also been rejected by Labour Court, employers had filed revision against order of Labour Court---Workers were employees of Tehsil Municipal Administration, but Payment of Wages Act, 1936 was applicable to persons employed in a factory as defined in S. 2(1) of Factories Act, 1934---Payment of Wages Act, 1936 being not applicable to Municipal Committee or Municipal Administration, impugned decision of Labour Court and that of Authority under Payment of Wages Act, 1936, was without jurisdiction, and legally unsustainable which were set aside by High Court.

T.M.A. Faisalabad v. Muhammad Saleem and others PLD 2006 SC 166=2006 PLC 226 ref.

Dr. Ehsan-ul-Haq Khan for Appellant.

Nemo for Respondents.

PLC 2007 LAHORE HIGH COURT LAHORE 497 #

2007 P L C 497

[Lahore High Court]

Before Muhammad Khalid Alvi, J

Dr. LIAQAT ALI KHAN

Versus

EMPLOYEES OLD AGE BENEFITS INSTITUTION

Civil Revision No.S8 of 2001, heard on 24th March, 2005.

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

----Ss. 33, 34 & 3S---Civil Procedure Code (V of 1908), S.9---Claims under Employees' Old Age Benefits Act, 1976---Jurisdiction of civil court---Scope---Forums for redressal of such grievance provided under Ss.33, 34 & 35 of Employees Old-Age Benefits Act, 1976 would impliedly bar jurisdiction of civil court.

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

----S. 9---Suit challenging wires of actions of public 'functionaries involving disputed question of fact---Validity---Civil Court could examine such question.

----S. 1(4)---Establishment notified by Federal Government to be amenable to Employees' Old Age Benefits Act, 1976---Validity---Publication of such notification in official gazette would be a sufficient notice to all and judicial notice thereof could be taken---Number of employees in such establishment, if alleged to be less than ten (10) would become irrelevant.

Zahid Hussain Khan for Petitioner.

Kashif Ali Chaudhry for Respondent No.1.

Date of hearing: 24th March, 2005.

PLC 2007 LAHORE HIGH COURT LAHORE 504 #

2007 P L C 504

[Lahore High Court]

Before Maulvi Anwarul Haq, J

MUSLIM COMMERCIAL BANK LIMITED through President and another

Versus

PRESIDING OFFICER, PUNJAB, LABOUR COURT NO.VI and another

Labour Appeal No.6 of 2005, heard on 28th May, 2007.

Industrial Relations Ordinance (XCI of 2002)---

----Ss. 2(xxx), 46 & 48---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(i) & S.O.12---Termination of service---Grievance petition---Maintainability---Appeal to High Court---Services of respondent/worker having been terminated without any reasons, employee filed grievance petition, which was resisted by employer contending, firstly that grievance petition was barred by time as grievance notice was not served within the time prescribed by law; and secondly that employee being not workman', grievance petition filed by him was not maintainable---Labour Court, after recording evidence of parties, having allowed grievance petition of employee, employer had filed appeal before High Court---Validity--Grievance notice was served by employee on appellant after 22 days from receipt of termination order which was very much within the time prescribed by law---Finding of Labour Court that grievance notice was riled within time and consequently- grievance petition was not time barred, was upheld---Nobody, in fact was subordinate to employee and he had no power of hire and fire, he could not grant or refuse leave nor he was authorized to take a penal action---Employee used to sit with the clerical staff in a big hall and he was not provided with a telephone or car, his main duty was to issue R.T. Cs. in his own hand and he also used to maintain relevant. register---Employer had not even suggested to employee that he was acting in any supervisory position---No evidence was led by employer to demonstrate that employee was not a "workman" or "worker"---Labour Court, in circumstances had rightly found employee to be aworker' or a `workman'---Appeal against judgment of Labour Court was dismissed, in circumstances.

Khushal Khali v. Muslim Commercial Bank Ltd, and others 2002 SCMR 943; Sahibzada K.A.K. Afridi v. Allied Engineering and Services Ltd. through Managing Director and 2 others 2004 SCMR 523; Ganga R. Madhani v. Standard Bank Ltd. and others 1985 SCMR 1511; Muslim Commercial Bank Ltd., Karachi v. Shah Nawaz Solangi and 2 others 1993 PLC 651; F.A. Khan v. The Government of Pakistan PLD 1964 SC 520 and Mustekhum Cement Limited through Managing Director v. Abdul Rashid and others 1998 SCMR 644 ref.

Rashid Hafeez for Appellant.

Ch. Sadiq Muhammad Warriach for Respondent.

Date of hearing: 28th May, 2007.

PLC 2007 LAHORE HIGH COURT LAHORE 508 #

2007 P L C 508

[Lahore High Court]

Before Sh. Hakim Ali, J

MUHAMMAD SAEED BHATTI

Versus

PRESIDING OFFICER, PUNJAB LABOUR COURT NO.8, BAHAWALPUR and 3 others

Writ Petition No.2833 of 2006/BWP, heard on 12th February, 2007.

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

----Ss. 1(4), 2(i)(1-a), (ii) & 15---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), Ss.1(4)(a) & 2(b)(f)---Constitution of Pakistan (1973), Art.199-Constitutional petition---Termination of services---Claim for wages---Jurisdiction of Authority under Payment of Wages Act, 1936---Services of petitioners having been terminated, they filed application before Authority under Payment of Wages Act, 1936 in which they claimed payment of their salaries and other wages---Authority allowed claims of petitioners to the extent of payment of their salaries plus three times compensation, while their claims with regard to other wages, were refused---On filing appeal against judgment of Authority before Labour Court, Presiding Officer of Labour Court found that Authority under Payment of Wages Act, 1936 had no jurisdiction to entertain application of petitioners with regard to their claims and dismissed appeal against which petitioners had filed constitutional petition---Validity---Employer, Government Employees Co-operative Housing Societies was not an industry or commercial establishment because twenty or more workmen were not employed therein---Society could not be considered as commercial establishment as its business was not of advertising, commission or forwarding or a commercial agency or including therein a clerical department of a factory or of any industrial or commercial undertaking---Work which the society performed, simply was to obtain a chunk of land from the Government and thereafter to allot same to its members---No job, in circumstances was being done by the Society of mature of factory, industrial or commercial nature---To invoke the provisions of the Payment of Wages Act, 1936, it was necessary according to S.1(4) of Payment of Wages Act, 1936 that employer must be a factory, industrial establishment or commercial establishment---If all said three essentials were not present, employer would not tall within the definition of `employer' and the employees would not be able to file grievance petition against employer---Society being not "factory", "commercial establishment" and "industrial establishment", decision of Presiding Officer of the Labour Court, could not be held illegal or unlawful.

Project Director Cooperative Karkhana, Alat-e-Zari, Bahawalpur v. Presiding Officer, P.B. Labour Court No.4 Multan and 6 others PLD 1979 BJ 1; Islamabad Club v. Muhammad Aslam and others 1982 SCMR 126 and The Cooperative Model Town Society v. Punjab Labour Appellate Tribunal and 3 others 1995 PLC 655 ref.

M. Shamshair Iqbal Chughtai for Petitioner.

Ch. Muhammad Amjad Khan for Respondents Nos.3 and 4.

Date of hearing: 12th February, 2007.

PLC 2007 LAHORE HIGH COURT LAHORE 521 #

2007 P L C 521

[Lahore High Court]

Before Syed Hamid Ali Shah, J

WALL'S EMPLOYEES UNION (LEVER BROTHERS NOW UNI-LEVER BROTHERS)

Versus

REGISTRAR OF TRADE UNIONS, DISTRICT KASUR and 2 others

Writ Petition No.6560 of 2006, decided on 29th September, 2006.

Industrial Relations Ordinance (XCI of 2002)---

----Ss. 3(a), 6(2)(b), 7 & 20---Constitution of Pakistan (1973), Art.199---Constitutional petition---Registration of Trade Union---Petitioners had voiced their grievance against registration of trade union, praying that same be declared as illegal and against provisions of Industrial Relations Ordinance, 2002---When the trade union in question was formed, at time of its registration, Registrar of Trade Unions, held an inquiry and said inquiry had revealed that workers had confirmed that they were members of that union---Employer had also given a letter to the office of the Registrar of Trade Unions stating that factory staff comprised 89 persons---Mere fact that certain persons had formed a union with certain other workers as its office-bearers and the Registrar rejected application for registration, would not prevent such persons and such office-bearers from forming another trade union---Employer and even a Trade Union had no locus standi to maintain a grievance petition merely because objection raised by it had not been attended to by the Registrar or the employer or a Trade Union had not been associated with the process of registration---One Trade Union could not be an aggrieved party by registration of another union because. such action would not violate any of the rights guaranteed to it by Industrial Relations Ordinance, 2002---Once a Trade Union had been registered it was its legal obligation to apply for determination of Collective Bargaining Agent under S.20(2) of Industrial .Relations Ordinance, 2002 within two months of its registration and it was in the referendum that real strength and real test of the members of membership was to be judged.

Essa Cement Industries Workers Union v. Registrar of Trade Unions, Hyderabad Region, Hyderabad 199.8 PLC 500 ref.

Farooq Zaman Qureshi for Petitioner.

Pervez Inayat Malik for Respondent No.2.

PLC 2007 LAHORE HIGH COURT LAHORE 534 #

2007 P L C 534

[Lahore High Court]

Before Syed Hamid Ali Shah, J

MANAGING DIRECTOR PRTC end 8 others

Versus

MEHMOOD AHMAD

Labour Appeal No.217 of 2005, decided on 13th July, 2006.

Industrial Relations Ordinance (XCI of 2002)---

----Ss. 46 & 48---Promotion---Entitlement to---Grievance petition---Appeal to High Court---Case of employee as set out in grievance petition was that he was appointed as Foreman and according to him he was entitled to promotion as Assistant Works Manager under Recruitment of Staff and Promotion Rules, 1976---Validity---Employees who were junior to respondent were promoted but respondent was neither considered for promotion nor reasons for his supersession were communicated to him, despite post of Assistant Works .Manager was lying vacant---Grievance petition by respondent having been accepted by the Labour Court, appeal had been filed against the same---Contention of employer was that employee was not matriculate and for that reason he was not considered for promotion---Employee though was senior most employee in his cadre, but he was under matric, whereas basic qualification for promotion to Assistant Works Manager as per Recruitment of Staff and Promotion Rules, 1976, was Matric---Impugned order of Labour Court, was set aside in circumstances, with the result that grievance petition by employee, was dismissed.

Dr. Muhammad Hussain v. Principal Ayub Medical College and another PLD 2003 SC 143 and Chandrigarh Administration v. Jagit Singh AIR 1995 SC 705 ref.

Muhammad Iqbal Khokhar for Appellants.

Muhammad Khalid Farooq for Respondents.

Date of hearing: 13th July, 2006:

PLC 2007 LAHORE HIGH COURT LAHORE 585 #

2007 P L C 585

[Lahore High Court]

Before Syed Hamid Ali Shah, J

MUHAMMAD ASLAM

Versus

DIRECTOR-GENERAL, LAHORE DEVELOPMENT AUTHORITY, LAHORE and 2 others

Labour Appeal No.75 of 2005, decided on 30th October, 2006.

Industrial Relations Ordinance (XCI of 2002)---

----Ss. 46 & 47(3)---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), Ss.1(4) & 2(i) & S.O.15---Removal from service---Appeal---Appellant, who was found receiving illegal gratification in respect of clearing a plot, was charge-sheeted under Punjab Civil Servants (Efficiency and Discipline) Rules, 1999 and after having been found guilty in inquiry, was removed from service---Appellant filed grievance petition contending that he being `workman', West Pakistan, Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 was applicable to him and that action against him could not have been taken under the Punjab. Civil Servants Efficiency and Discipline Rules, 1999---Labour Court dismissed grievance petition of appellant holding same to be without merits---Validity---West Pakistan Industrial and Commercial Employment (Standing. Orders) Ordinance, 1968 was applicable to appellant, but initiation of action against appellant under Efficiency and Discipline Rules., 1999; had caused no prejudice to the case of appellant---Both the provisions of Punjab Civil Servants Efficiency and Discipline Rules, 1999 as well as under West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 had provided a charge-sheet, holding of inquiry and thereafter a penal action against the employee, if allegations of the charge sheet were found correct---Forum, under both the enactments, for redressal of grievance, pertaining to action was the Labour Court---Forum and procedure in both the provisions of law were the same---No prejudice, in circumstances, was caused to appellant if wrong provision of law had been ascribed---Action against appellant could not be set at naught merely because a wrong provision of law was quoted---Appellant was heard, he was issued a charge-sheet, which was replied by the appellant and in the course of inquiry, appellant had participated in the proceedings---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1958, did not provide for a second show-cause notice or a personal hearing subsequent do the inquiry---Recommendation of Inquiry Officer for higher punishment of removal from service was awarded to appellant providing an opportunity of hearing to him---Appellant could not escape from his liability merely by saying that action was initiated against him at the desire of~ Military Inspection Team---No illegality or infirmity having been found in the impugned order, appeal having no merits, was dismissed.

Muhammad Yousaf v. Labour Appellate Tribunal 1987 PLC 430; Muhammad Younus v. Secretary, Ministry of Communications and others 1993 SCMR 122; Altaf Hussain v. D.W. & C.E. (Army) QMG's Branch G.H.Q. Rawalpindi and others PLC 1990 (C.S.) 40; Lahore Development Authority and others v. Abdul Shafiq and others 1992 PLC 121.4 and Dawood Cotton Mills Ltd. v. Guftar Shah and another PLD 1981 SC 225 ref.

Inspector-General of Police v. Shafqat Mehmood 2003 PLC (C.S.) 7 and Government of the Punjab v. Rao Shamsher Ali Khan and others 1987 SCMR 224 rel.

Sh. Abdul Hameed for Appellant.

Ghazi M.A. Rashid for Respondent.

Date of hearing: 15th September, 2006.

PLC 2007 LAHORE HIGH COURT LAHORE 608 #

2007 P L C 608

[Lahore High Court]

Before Syed Hamid Ali Shah, J

[National Industrial Relations Commission]

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

ALLIED BANK LTD., KARACHI through Attorneys

Versus

A.B.L. WORKERS FEDERATION OF PAKISTAN and 14 others

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

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

----Ss. 2(xxix), 14, 18, 20, 49(4)(c) & 80---Status of Federation of workers as Trade Union and protection to Federation already registered under Industrial Relations Ordinance, 1969---While implementing Industrial Relations Ordinance promulgated in 2002, legislature under S.80 of newly promulgated Ordinance had given protection to Federation of Workers already registered under Industrial Relations Ordinance, 1969---Law would not stop there as it was clearly provided under S.14(1) of Industrial Relations Ordinance, 2002 that a Trade Union was a body corporate and had got perpetual succession---Till date the registration of Federation of Workers with National Industrial Relations Commission, was intact and had not been cancelled---Provisions of S.18 of Industrial Relations Ordinance, 2002, in the present dispensation had also upheld the concept of Federation of Workers, which had provided that any two or more registered Trade Unions belonging to an industry, could constitute an Industry-wise Federation--Provisions of S.49(4)(c) of Industrial Relations Ordinance, 2002 had mandated to National Industrial Relations Commission to determine a Collective Bargaining Agent in any establishment having Federation of Trade Unions and in that back-ground, Federation of Workers, could not be restrained to participate in the referendum which was its legal right---Rights which accrued to the Federation of Workers, under the law could not be interfered with, unless and until registration thereof was cancelled.

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

----Ss. 2(xxix), 6(2)(b), 20(3)(b), 49(4)(a)(b)(c) & 54---Right of Federation of Workers, to participate and contest referendum---Petition before National Industrial Relations Commission---Registrar, in case of referendum would also call upon the Federation of Workers to submit the list of the affiliated Trade Unions together with the list of members of such Trade Unions for the smooth conduct of referendum---Federation of Workers under the present dispensations, had not been debarred from

participating in the referendum---Contention of counsel for petitioner Bank that there was no concept in Industrial Relations Ordinance, 2002 that a Trade Union could contest the referendum through another Trade Union, had no legal force, in circumstances---Duty had been cast upon Federation of Workers as well to associate and co-operate with National Industrial Relations Commission in determination of Collective Bargaining Agent in an establishment---If a Federation of Workers was determined as Collective Bargaining Agent, then in that eventuality the employer would have only to deal with the Federation of workers and not with the federated Trade Unions---Industrial Relations Ordinance, 2002 had also discouraged the tendency of mushroom growth of unions by making restriction under S.6(2)(b) of the Ordinance---Section 54 of Industrial Relations Ordinance, 2002 had also introduced the concept of Collective Bargaining Units which had also discouraged the mushroom growth of the unions---After formation of Federation, only the affiliated Trade Unions would send their delegates to represent in the Federation of Workers and the employer in that eventuality would only have to deal with the Federation and not affiliated Trade Unions---No exception therefore could be taken to the participation of Federation of Workers in the referendum.

Shahid Anwar Bajwa for Petitioner.

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

Malik Meharban, Labour Representative for Respondent No.11.

PLC 2007 NATIONAL INDUSTRIAL RELATIONS COMMISSION 81 #

2007 P L C 81

[National Industrial Relation Commission]

Before Justice (Retd.) Tanvir Ahmed Khan, Chairman

SIDDIQUE MASIH and 18 others

Versus

DISTRICT OFFICER, SOLID WASTE MANAGEMENT C.D.G. JAIN MANDAR, LAHORE and another

Case No.4A(60)/05-L, decided on 31st May, 2005.

Industrial Relations Ordinance (XCI of 2002)---

----Ss. 49(4)(e) & 62---Promotion to higher post---Entitlement to pay of said higher office---Substantive post of petitioners was sanitary worker, but temporarily were allowed to work as Sanitary Supervisor, which was post of higher responsibility---Grievance of petitioners was that despite the fact that they had worked on said higher post for considerable period, neither they were regularized nor were paid salary of said higher post---If an employee was promoted to officiate in a higher post involving higher responsibility, he would be entitled to the minimum pay of the grade of said higher office---Petitioners, in circumstances, could not be denied the extra amount, which they had become entitled to receive for their work, which they had rendered against the post of Sanitary Supervisor---Promotion to the higher post of Sanitary Inspector by the petitioners, could not be claimed as of right---If petitioners satisfied the basic qualification and requirements of law and Rules for the higher post of Sanitary Supervisor, Authorities would be required to confider their cases in accordance with law---Authorities were directed to pay petitioners extra amount taking into consideration the period during which they worked against the post of Sanitary Supervisor.

Islamic Republic of Pakistan through Secretary, Finance Division, Government of Pakistan, Islamabad v. Qazi Abdul Karim, Deputy Accountant-General, N.-W.F.P. Peshawar and another 1983 SCMR 883 ref.

H.R. Haider for Petitioners.

Maj. (R) Aftab Ahmed, Legal Advisor for Respondents.

PLC 2007 NATIONAL INDUSTRIAL RELATIONS COMMISSION 91 #

2007 P L C 91

[National Industrial Relations Commission]

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

REGISTRAR OF INDUSTRYWISE TRADE UNION, NIRC, ISLAMABAD

Versus

SECRETARY-GENERAL, U.B.L. EMPLOYEES FEDERATION OF PAKISTAN and another

Industrial Relations Ordinance (XCI of 2002)---

----Ss. 12, 49(1)(b), (c) & 52---Cancellation of registration of trade union---Appeal to National Industrial Relations Commission---Employees Federation was registered in the year 1974 at national level consisting of locally registered Trade Unions---Federation functioned actively till 1998 when last election was approved for two years, but after expiry of said tenure of two years, no election was conducted, which was violation of its own constitution; in addition to non-holding of election, Federation also failed to submit Annual Returns---Such violation required scrutiny by the Labour Court---After declaration of two C.B.Us. in establishment, all the local registered Trade Unions which were affiliated with the Federation amended their respective constitutions-in accordance with S.54 of Industrial Relations Ordinance, 2002---Federation had no affiliated unit and thus had ceased to exist---Registration of Federation was cancelled in exercise of power under S.12(3)(i) of Industrial Relations Ordinance, 2002, with direction to Deputy Registrar (Registration) to ask the office-bearer, if any, to surrender the original Registration certificate of the said Federation.

Muhammad Naseem Bhatti, O.G.-I along with Faisal Mehmood Ghani for U.B.L.

Nemo for the U.B.L. Employees Federation.

2007 P L C 127

[National Industrial Relations Commission]

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

NATIONAL BANK OF PAKISTAN STAFF UNION through Secretary-General and President

Versus

REGISTRAR TRADE UNIONS (SINDH) KARACHI and 9 others

Case No. 12(26) of 2003, decided on 20th June, 2005.

Industrial Relations Ordinance (XCI of 2002)---

----Ss. 52 & 54---Banking Companies Ordinance (LVII of 1962), S.27-B [as inserted by Banking Company Amendment Act (XIV of 1997)1---Determination of Collective Bargaining Unit---Appeal to National Industrial Relations Commission---Maintainability--Appeal was directed against order of Single Member of National Industrial Relations Commission whereby prayer of appellant union for determining entire Bank as one Collective Bargaining Unit was declined---Said appeal was filed by a practising Advocate as General Secretary of appellant union---Said practising Advocate had no locus standi to file appeal-as in view of section 27-B of Banking Companies Ordinance, 1962, he could not claim himself as General Secretary of the appellant Union---Section 27-B of Banking Companies Ordinance, 1962 had clearly provided that only an employee in the actual service of Bank would be eligible to join the union---Five Collective Bargaining Units had been successfully functioning in the Bank for the last three decades---Neither the management nor any other union had raised a finger against functioning of said five Collective Bargaining Units in the Bank---Even a recent settlement benefiting the workers, was agreed to by five Collective Bargaining Units with the management---Appellant union could not produce any evidence nor quoted a single instance that by determination of five Collective Bargaining Units, functioning of the Bank had suffered in any manner---Relationship of the Collective Bargaining Units with the management, was very cordial and Bank had witnessed industrial peace, harmony and excellent state of affairs throughout all that period between the workers and the management---Appeal by appellant union, having no force was dismissed in circumstances.

Islam Hussain for Appellant.

Faisal Mahmood Ghani for Respondent No.5.

M.K. Khan for Respondents Nos.6 and 7.

Mushtaq Hussain Bhatti for Respondent Nos. 8 to 10.

2007 P L C 155

[National Industrial Relations Commission]

Before Justice (Retd.) Tanvir Ahmed Khan, Chairman, Syed Akhtar Naqi Naqvi, Senior Member and Nasar Hayat, Secretary Labour, Government of Sindh, Member

MUHAMMAD NASIR and others

Versus

Messrs HELEX PHARMA (PVT.) LTD.

Appeals Nos.12(31), 12(32), 12(33) of 2005/K, decided on 13th February, 2006.

Industrial Relations Ordinance (XCI of 2002)---

----Ss. 2(xxx), 10 & 52---National. Industrial Relations Commission (Procedure and Functions), Regulations, 1973, Regln.32(2)---Petition against transfer, discharge, dismissal etc. of-office-bearers of trade union during pendency of application of registration of trade union---Workers formed a trade union and submitted applications for its registration to Registrar Trade Unions---Workers who apprehended their dismissal, termination, lay off and such-like acts of unfair labour practice at the hands of Management during pendency of their application for registration of trade union, had sought protection under S.10 of Industrial Relations Ordinance, 2002 along with application for grant of temporary relief---Management contested petitions of workers on the ground that they were not their employees, but they were appointed by a contracting company---Member/single Bench of National Industrial Relations Commission having dismissed said petitions and applications, workers had filed appeals against that order---Workers having sought protection under S.10 of Industrial Relations Ordinance, 2002 so that their application for registration of their union was disposed of by the Registrar Trade Unions and they were not victimized by Management, merits of the case with regard to status of workers, could not be discussed---Union formed by workers having been registered by the Registrar Trade Unions, relief sought for by workers, had been rendered as infructuous---Any grievance with regard to status of workers as `workmen', could be raised by means of different petition before competent forum.

M. Siddique Malik, Labour Representative for Appellants.

Faisal Mahmood Ghani for Respondents.

PLC 2007 NATIONAL INDUSTRIAL RELATIONS COMMISSION 158 #

2007 PLC 158

[National Industrial Relations Commission]

Before Ghulam Nauman Shaikh, Member

MUHAMMAD NASIR and others

Versus

Messrs HELIX PHARMA (PVT.) LTD. Through Notified Factory Manager and others

Nos.4A(32), 4A(38) and 4A(45) of 2005/K, decided on 29th August, 2005.

Industrial Relations Ordinance (XCI of 2002)---

----Ss. 10, 49(4)(e) & 63---National Industrial Relations Commission (Procedure and Functions) Regulations, 1973, Regln.32(2)---Petition against unfair labour practice by employers---Claim for interim relief---Petitioners, who claimed to be permanent workers in the establishment had alleged that they had formed a trade union and had submitted application for its registration to Registrar Trade Unions; but management which was against healthy trade union activities was victimizing them and had threatened them of their termination of services---National Industrial Relations Commission under provisions of S.49(4)(e) of Industrial Relations Ordinance, 2002, could deal with cases of unfair labour practice, specified under S.63 of the Ordinance on part of employer, if workmen filing petition in that respect would show that they were employed by the employer---Workmen would also mention specific instance of their alleged victimization on account of their trade union activities by the employers---Petitioners had not stated the date, month and year of their appointment with establishment, either in their petition or in affidavits in that regard---Petitioners had also not shown their designation or Department where they were working---In absence of any document showing appointment of petitioners, on mere oral assertion, they could not be said to have prima facie established their employment with the establishment to maintain their petition before the Commission---Petitioners had not mentioned or specified instance of their victimization on account of their trade union activities by the establishment---Except showing their apprehension of dismissal from service, petitioners had not even alleged that any of the officers of establishment on any date or time, had called them at any place and issued them threat of dismissal or termination of their services---Mere apprehension would not make out a case of unfair labour practice against employers---Allegations against employers which were general, bald, vague and not specific, would not constitute unfair labour practice---Grant of interim relief against any of the actions mentioned in S.63(1)(d) of Industrial Relations Ordinance, 2002 was subject to pendency of industrial dispute, but, in the present case, no industrial dispute was pending---Even otherwise grant of any such interim relief when petitioners had no prima facie proof that they had been employed by the employer, would amount to induct petitioners in the employment of establishment, which would not be justified and proper.

1997 PLC 628; 2004 PLC 348; C.P. No.D-754 of 1996; 1997 PLC 746; 1998 PLC 122; 1999 SCMR 234; PLD 1975 SC 463 and PLD 1982 SC 46 rel.

M. Siddique Malik, Labour Representative for Petitioners.

Mahboob Rizvi for Respondents.

PLC 2007 NATIONAL INDUSTRIAL RELATIONS COMMISSION 169 #

2007 PLC 169

[National Industrial Relations Commission]

Before Syed Akhtar Naqi Naqvi, Senior Member Raja Abdullah Khan, Member and Hassan Nawaz Tarar, Secretary, Labour Punjab/Member

RUSTAM SOHRAB CYCLE FACTORY through Factory Manager and 2 others

Versus

MUHAMMAD YOUSUF

Appeal No.12(08) of 2006/L, decided on 26th June, 2006.

Industrial Relations Ordinance (XCI of 2002)---

----S. 52---Appeal against order of Single Bench of Commission---Maintainability---Appeal had been directed against order passed by the Chairman, as Member Single Bench of Commission, whereby impugned termination order passed against employee by establishment, during currency of restraint order of Commission, was set aside---Order terminating service, was not only passed during currency of restraint order of the Commission, but was passed in clear violation of principle of natural justice---Order passed by Single Bench was unexceptionable and suffered from no illegality or misreading or non-reading of evidence and it did not suffer from any legal infirmity---National Industrial Relations Commission, declined to admit appeal for regular hearing.

Ch. Abdul Rab for Appellants.

2007 PLC 263

[National Industrial Relations Commission]

Before Justice (Retd.) Tanvir Ahmed Khan, Chairman, Ghulam Nauman Shaikh and Nasar Hayat, Secretary Labour Sindh, Members

ABDUL SATTAR

Versus

FARRUKH MAZHAR and 6 others

Appeal No.12(02) of 2001-K, decided on 21st July, 2005.

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

----S. 22-D---Appeal against order dismissing complaint-,-Appeal---Maintainability of---Appellant who claimed to be General Secretary of Workers Union in the establishment, had filed complaint, alleging that employers were pressurizing office-bearers and workers of the union to refrain from trade union activities---Appellant/complainant also alleged that employers suspended him from his duties for a period of four days and after expiry of said period when he went to attend office, he was not allowed to enter the premises and was manhandled and also was confined for some time in a secret cabin---Member National Industrial Relations Commission conducted preliminary inquiry and after scanning same, dismissed complaint lodged by appellant---Appellant had filed appeal against order dismissing complaint---Under S.22-D of Industrial Relations Ordinance, 1969 appeal was provided against award; decision; sentence and against order of determination of collective bargaining unit---Conviction or acquittal could only be recorded after framing of charge and collection of evidence---Order of dismissal of complaint was neither an acquittal nor discharge, but was simply a dismissal order of complaint, which was not a decision or acquittal order---Member of National Industrial Relations Commission, never issued any process against employers nor called them---Order dismissing complaint neither being decision' noracquittal order', appeal filed against order simply dismissing complaint, was not maintainable.

Cap. (Retd.) Abdul Wajid and 2 others v. Sher Muhammad and others 1980 PLC 800; PLD 1960 (AJ&K) 24; Muslim Miah v. Munsar Ali Haji and 6 others 1969 PCr.LJ 849; Atta Muhammad and others v. Iqrar Ahmed and another 1991 PCr.LJ 274; Abdul Majid Khan v. Pakistan Railways, Lahore 1987 PLC 335 and General Secretary, Karachi Electric Supply Limited Corporation Labour Union v. Registrar, National Industrial Relations Commission, Islamabad and 2 others 1987 PLC 340 rel.

(b) Words and Phrases---

----`Decision', defined and explained.

Pakistan Telecom Company Lions Staff Union Lahore through President v. The National Industrial Relations Commission through Chairman-cum-Registrar and 2 others 1999 PLC 320; Islamic Republic of Pakistan v. Abdul Wali Khan M.N.A. PLD 1976 SC 57 and Mian Zahid Sarfraz v. Raja Nadir Pervaiz Khan 1987 SCMR 1107 rel.

M.A.K. Azamati for Appellant.

Faisal Mahmood Ghani for Respondents.

Shahid Anwar Bajwa, Amicus Curiae.

PLC 2007 NATIONAL INDUSTRIAL RELATIONS COMMISSION 270 #

2007 PLC 270

[National Industrial Relations Commission]

Before Ghulam Nauman Shaikh, Member

MUHAMMAD ILYAS BABER and others

Versus

PEARL CONTINENTAL HOTEL KARACHI, through General Manager and others

Petition No.4A(12), 4A(13), 4A(14), 4A(15) and 4A(16) of 2005/K, decided on 13th September, 2005.

Industrial Relations Ordinance (XCI of 2002)---

----Ss. 49(4)(e) & 63---National Industrial Relations Commission (Procedure and Functions) Regulations, 1973, Regln.32(2)(c)---Unfair labour practice by employers---Petition against---Interim prohibitory order---Application for---Petitioners were working as Front office cashiers' in the establishment---Subsequently when establishment proposed to promote petitioners asGuest Service Officers', petitioners filed their individual petitions before the Bench of National Industrial Relations Commission, which were dismissed by common order with the observation that by re-designating petitioners as Guest Service Officers' they would not become officers to be deprived of their trade union activities---Petitioners filed present petitions with the prayer to declare said act of establishment as unfair labour practice and to restrain establishment from dismissing/terminating petitioners---Petitioners had also filed applications under Regln.32(2)(c) of National Industrial Relations Commission (Procedure and Functions) Regulations, 1973 for grant of interim prohibition order, which applications were allowed and interim prohibitory orders were granted---Petition revealed that except the allegations that petitioners were called by establishment to consider the suggestion of the Management to disassociate from C.B.A. Union and to join pocket union, no other specific instance had been mentioned to establish whether petitioners were or were not likely to be victimized by establishment on account of their trade union activities so as to constitute unfair labour practice---Jurisdiction of National Industrial Relations Commission, was confined to the cases, where there was likelihood of commission of acts of unfair labour practice and Commission was not conferred with general jurisdiction to entertain all kinds of grievance petitions---For the reasons, other than unfair labour practice, grievances were to be entertained,4nd determined by the Labour Court, which could also determine whether petitioners, after their promotion asGuest Service Officers', still continued to perform any manual or clerical work and would have status of workmen irrespective of their promotion as `Guest Service Officers'---Since subsequent to filing of present petitions, petitioners had filed petitions under S.46 of Industrial Relations Ordinance, 2002 before Labour. Court, it would be futile exercise to proceed further in the present petitions, when from said petitions no ingredients of elements of unfair labour practice as enunciated under S.63 of Industrial Relations Ordinance, 2002, was made out---Petitions were dismissed and interim prohibitory order granted to petitioners was recalled by the Commission.

1988 PLC 923; 1991 PLC 193; Appeal No.12(12) of 1999; 2002 TD (Lab.) 341; Appeal No.12(24) of 2001; 2003 PLC 52; 1997 PLC 246; 1993 PLC 168; 1994 PLC 46; Appeal No.12(72) of 1998; Appeal No.12(133) of 1992; 2000 SCMR 1172; 2002 PLC 59; PLD 2001 Lah 194; Case No.4A(97) of 2003-K and Iftikhar Ahmed and others v. President National Bank of Pakistan and others PLD 1988 SC 53 rel.

Ch. Latif Saghar for Petitioners.

Faisal Mahmood Ghani for Respondents.

PLC 2007 NATIONAL INDUSTRIAL RELATIONS COMMISSION 279 #

2007 P L C 279

[National Industrial Relations Commission]

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

Reference of the FEDERAL GOVERNMENT FOR DETERMINATION OF ONE COLLECTIVE BARGAINING UNIT IN THE ESTABLISHMENT OF UNITED BANK LIMITED (UBL): In Re

Case No. 19(7) of 2002, decided on 6th April, 2006.

Industrial Relations Ordinance (XCI of 2002)---

----S. 54---Reference to Commission for declaration and determination of establishment as one Collective Bargaining Unit---Applicant Bank while praying for single Collective Bargaining Unit, had contended that Seven Wage Commissions were constituted and awards were given and Government had no intention further to constitute Wage Commission--Bank contended firstly that in absence of Wage Commission each of nationalized Bank could enter into negotiation and conclude settlement in view of their financial position with the C.B.A., secondly that at present there being uniform terms and conditions of services in the Bank throughout the country, if there would be large number of local registered Unions, each claiming to be C.B.A. in its own area, that would mean serving different charter of demands and Bank in that eventuality would have to negotiate separate terms and conditions of service for each C.B.A.; in that manner the terms and conditions of service of the Bank would be disturbed---Such course of action would create heart burning and industrial discontentment which would not be helpful for the welfare of the workers and establishment---Applicant Bank, has further contended that S.54 of Industrial Relations Ordinance, 2002 was enacted in the Ordinance to arrest mushroom growth of trade unions by declaring establishment as one Collective Bargaining Unit or more units by the Commission on an inquiry and on being satisfied with the arrangements to safeguard the interest of workers employed in the establishment or group of establishment belonging to same employer---Arguments of applicant Bank with the proposal of two Collective Bargaining Units where trade unions flourish having no shortcoming due to their small nature, had force--Commission, in circumstances declared and certified all the establishments of applicant Bank in the Provinces of Sindh and Balochistan, as one Collective Bargaining Unit, and Province of Punjab, N.-W.F.P. and Federal Capital territory the other Collective Bargaining Unit and directed all the registered trade unions registered with the Provincial Registrars or with the N.I.R.C., to amend their constitution through opening their membership to the workers employed in the respective Collective Bargaining Units, within specified period, accordingly.

Faisal Mahmood Ghani for UBL.

Ch. Waqar Ahmed for Respondents Nos. 13, 17, 26, 28, 29, 33, 34, 35, 36 and 37.

Asmat Kamal Khan for Respondents Nos. 26, 29, 36 and 37.

PLC 2007 NATIONAL INDUSTRIAL RELATIONS COMMISSION 287 #

2007 P L C 287

[National Industrial Relations Commission]

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

HOUSE BUILDING FINANCE CORPORATION through Chief Manager

Versus

UZAIR LATIF KHAN and others

Appeals Nos.12(20) and 24(123) of 2005-L, decided on 29th May, 2006.

Industrial Relations Ordinance (XCI of 2002)---

---Ss. 2(xxx), 49(4)(e) & 52---Workman'---Determination---Unfair labour practice by employers---Appeal,. maintainability of---Appeal had been directed against order passed by Single Bench of the Commission, whereby grievance petition of employees was accepted---Contention of employees was that employer vide administrative circular had upgraded all Grade 7 posts as Assistant Manager without there being any change in the nature of their duties and employee continued to perform duties as he was performing prior to his so-called promotion and as such he was a workman under the law---Employees also contended that persons upto the status of Superintendent retained their position as workmen even after their said upgradation---Said averments were opposed by employer on the plea that jurisdiction of Commission was hit by S.2--A of Service Tribunals Act, 1973, read with Art.212 of the Constitution---Contention of employer was that employee claiming status of workman, was to lead positive evidence, oral or documentary to establish that his main and primary duties were manual or clerical, but in the present case none of the five witnesses had done anything to establish the employee's status as workman---Counsel for employees had still reiterated his contentions that employee's 'status as workman had not changed and he continued to retain his position as workman---Main issue involved in the case was to ascertain as to whether the employee and others of his status were officers falling out of the ambit of the definition of "workman" and had been really vested with managerial powers or they fell in the category ofworkmen', within the meaning of Industrial Relations Ordinance, 2002---Appeal ant had raised issue of estoppel, because the employee and his other colleagues of his status, after promotion, had availed financial benefits and after three years had come up with mala fide petition---Employer had also challenged the locus standi of employees Union as no evidence had been led by it---Said points needed consideration according to law---Case was remitted to Single Member of the Commission, for examination of additional affidavit in the evidence and counter affidavit filed by both the parties and determine the petitions in the light of examination to be conducted.

Managing Director Shahi Bottlers (Pvt.) Ltd. v. Punjab Labour Appellate Tribunal 1993 SCMR 488; National Bank of Pakistan v. Punjab labour Court No.5 Faisalabad and 2 others 1993 SCMR 672; Zubair Ahmad v. Sindh Labour Appellate Tribunal Karachi PLD 1985 Kara 760; 1985 SCMR 151 1; General Manager, Hotel International, Lahore and another v. Bashir A. Malik and others PLD 1986 SC 103; Dilshad Khan Lodhi v. Allied Bank of Pakistan 2005 PLC 130; Pakistan Steel Re-rolling Mills Association v. Province of West Pakistan PLD 1964 (W.P) Lah. 138; HBFC v. Member, NIRC 2005 PLC 1; Trustees of Board v. Member NIRC 2005 PLC (C.S.) 112; 2002 PLC (C.S.) 1650; Civil Petitions Nos.481-K, 483-K of 1969; Sui Northern Gas Company Limited v. Member NIRC and another 20023 PLC 80; 1888 PLC 145; 1998 PLC 268; 2000 PLC (C.S.) 1135; 1999 SCMR 197; 1999 SCMR 1992 and 1999 SCMR 1526 rel.

Mehmood Abdul Ghani for Appellant.

M.A. Ghani for Respondents.

PLC 2007 NATIONAL INDUSTRIAL RELATIONS COMMISSION 305 #

2007 P L C 305

[National Industrial Relations Commission]

Before Justice (Retd.) Tanvir Ahmed Khan, Chairman, Syed Akhtar Naqi Naqvi, Senior Member and Raja Abdullah Khan, Member

MUSLIM COMMERCIAL BANK

Versus

IJAZ AHMED KHAN

Appeal No.12(195) of 1997-L, decided on 15h December, 2005.

Industrial Relations Ordinance (XCI of 2002)---

----Ss. 49(4)(e) & 52---Unfair labour practice by employers---Petition against---Appeal---Employee who was appointed as cashier in the Bank and by nature of his duties was a `workman', was dismissed from service after issuing him show-cause notice and holding inquiry against him on allegation of his habitual absence from duty without sanctioned leave---Employee filed grievance petition under S.49(4)(e) of Industrial Relations Ordinance, 2002 after more than three and half years from his dismissal from service alleging that he had been victimized on account of his trade union activities---Single Member of National Industrial Relations Commission having accepted said petition; Bank had filed present appeal---Validity---Employee who could not explain inordinate delay of more than three and a half years in filing petition, was not entitled to equitable relief and Single Member of Commission did not advert to that aspect of the matter---Even otherwise employee could not support his claim by producing any evidence on record---Employee had not uttered a single word about his trade union activities, which allegedly became source of annoyance to the officers of Bank who were compelled to commit unfair labour practice---Solitary statement of employee was not enough, as he should have produced in evidence his colleagues to corroborate his version---Bald allegation of unfair labour practice had could not be allowed to sustain---Employee did not even produce a certificate about his association with any registered Trade Union and could not prove that during period of his absence from duties he was lying sick---Accepting appeal, order under appeal was set aside and grievance petition by employee against order of his dismissal from service, was dismissed.

PLD 1972 SC 25; PLD 1991 Lah. 282; 1993 MLD 2450; 1992 CLC 152; Pakistan Telecom Company Lions Staff Union Lahore through President v. The National Industrial Relations Commission through Chairman-cum Registrar and 2 others 1999 PLC 320 and Nishat Group of Industries and another v. Chairman NIRC and others 1997 PLC 622 ref.

Pervez I. Mir for Appellant.

M. Ayub for Respondent.

PLC 2007 NATIONAL INDUSTRIAL RELATIONS COMMISSION 314 #

2007 P L C 314

[National Industrial Relations Commission]

Before Justice (Retd.) Tanvir Ahmed Khan, Chairman

Ch. MUHAMMAD YOUSAF

Versus

RUSTAM SOHRAB CYCLE FACTORY SHAHDRA, LAHORE and others

No.7A(15) of 2005-L, decided on 3rd February, 2006.

Industrial Relations Ordinance (XCI of 2002)---

----S. 49(4)(e)---Unfair labour practice by the employers---Petition against---Petitioner serving as Assistant Accountant in the establishment was to be retired on 14-6-1998 on attaining superannuation age of 60 years, but before the date of his retirement, establishment after evaluation of past working of petitioner, granted promotion to petitioner to the post of Accountant along with extension of his service for a period of further one year---Consequently, petitioner was now to retire on 13-6-1999---As for the post of Accountant to which petitioner was promoted, superannuation age was 65 years instead of 60 years, petitioner was to be retired on 13-6-2003---During period of his extended period of service, petitioner, who was President of Trade Union in the establishment, apprehending adverse action against the office-bearers of said union, filed petition against establishment---Said petition was admitted for hearing by Chairman, National Industrial Relations Commission with interim order whereby establishment was restrained to pass adverse order against the petitioner---Despite said restraint order, establishment abruptly terminated service of petitioner without giving any reason---Establishment, in circumstances had flouted interim order of the Chairman, whereby it was restrained from any adverse order against the petitioner---Even otherwise petitioner could not be terminated/retired on ground of superannuation on reaching age of 60 years, when prior to 8 years of his said superannuation, management had itself promoted petitioner as Accountant, superannuation age of which was 65 years---Establishment had passed impugned order abruptly in a mechanical manner simply to keep away petitioner from his trade union activities---No opportunity of hearing having been provided to petitioner before issuance of impugned order, same was set aside.

H.R. Haider for Petitioner.

2007 P L C 590

[National Industrial Relations Commission]

Before Muhammad Shabbir Jamal, Member

Ch. ABDUL KHALIQ and others

Versus

HABIB BANK LIMITED through President and others

Appeals Nos.4A(04), 4A(08), 4A(10), 4A(09), 4A(14) of 2006 and 4A(30) of 2006-Q, decided on 6th February, 2007.

Industrial Relations Ordinance (XCI of 2002)---

----Ss. 49(4)(e) & 63---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.13---National Industrial Relations Commission (Procedure and Functions) Regulations, 1973, Regln.32(2)---Retrenchment---Petition against unfair labour practice by employers---Petitioners/employees in their petitions had assailed retrenchment order whereby services of 2300 employees working in Bank as Security Guards, Drivers and other manual workers were dispensed with, which according to petitioners was act of mala fide and unfair labour practice by Bank---No apprehension of any specific unfair labour practice as contained in S.63 of Industrial Relations Ordinance, 2002 which could likely to occur had been pleaded in all or airy of said petitions---Bench of National Industrial Relations Commission thus, could not proceed with petitions under Regln. 32(2) of National Industrial Relations Commission (Procedure and Functions) Regulations, 1973---No allegation of specific unfair labour practice likely to be committed having been made, said Bench lacked jurisdiction to determine same---Petitions were dismissed for lack of jurisdiction.

1990 PLC 62; 2002 MLD 975; 1999 SCMR 2215; 2004 PLC 343; PLD 1981 SC. 225; 2002 PLC (C.S.) 956; 1980 PLC 514; 1980 PLC 655; 1988 PLC 573; 1987 PLC 846; 1992 PLC 58; 1983 SCMR 769; 1914 SCMR 2213; 2001 PLC 589; 1985 PLC 1053; 1979 PLC 320; 1998 PLC 182; 1994 PLC 301; 1996 PLC 702; 1998 PLC 1; 1997 PLC 697; 2006 PLC 597; PLD 1976 Lah. 611; 1990 PLC 599; 1987 PLC 129; 1984 PLC 1645; PLD 1986 Lah. 90; 1997 PLC 622; 198.6 PLC 985; 1998 PLC 403; 2006 PLC 380; 2006 PLC 404; 1997 SCMR 1508; 1970 PLC 617; 1970 SCMR 491; AIR 1959 SC 1342; AIR 1961 SC 689; 1971 SCMR 569; 1998 SCMR 68; 1997 SCMR 1508; 2003 PLC 244; 2004 PLC 38; PLD 1999 SC 990; AIR 1958 SC 1012 and PLD 1965 SC 420 ref.

Abdul Hafeez Amjad and Azam Jan Zarkoon for Petitioners.

Shahid Anwar Bajwa for Respondent.

PLC 2007 NATIONAL INDUSTRIAL RELATIONS COMMISSION 615 #

2007 P L C 615

[National Industrial Relations Commission]

Before Ghulam Nauman Shaikh, Member

ANWER SYED BADSHAH and others

Versus

Messrs YOUNUS TEXTILE through Factory Manager and others

Appeals Nos.4A(88), 24(102) of 2006/K 4A(92), 24(106) of 2006/x, 4A(02), 24(05) of 2007/K decided on 7th March, 2007.

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

----S. 49(4)(e)---Unfair labour practice by employers---Petition against---Petitioners/ employees had alleged that they had been victimized on account of trade union activities---No specific instance of alleged victimization in the past on account of trade union activities had been mentioned by petitioners in their petitions.---Regarding present allegation of victimization and threats by employers, petitioners had yet to establish same by producing evidence---Employers had right to conduct enquiries on the charge-sheet issued against employees and that right could not be curbed or curtailed---Mere issuance of .charge-sheet and holding of enquiry, even if the employee happened to be an office-bearer of the union, was not in itself an act of unfair labour practice on the part of employer---Employer had inherent right to initiate disciplinary proceedings against. alleged delinquent employee and to decide whether the charge levelled against him was correct or not---Ordinarily it did not lie-with National Industrial Relations Commission to intervene while the proceedings were still in progress and to quash such proceedings on the plea of unfair labour practice.

PLD 1961 Dacca 389; Iftikhar Ahmad and others v. President, National Bank of Pakistan and another PLD 1988 SC 53; M. Muzaffar Ali v. Chairman, N. I. R. C. and others 1991 PLC 876; 1991 PLC 879; Ali Gohar and Company (Pvt.) v. Saeed Ahmed and 15 others 2001 PLC 86; 2001 TD (Labour) 329; Searle Pakistan. Limited through Deputy Director v. Full Bench, 1ational Industrial Relations Commission, Islamabad and 2 others 2002 PLC 87; 1980 PLC 256; United Bank Employees Federation of Pakistan v. Messrs United Bank Limited 2007 PLC -133; 1980 PLC 752; Messrs Alwin Engineer Industries Ltd. v. National Industrial Relations Commission and another Constitutional Petition No'.235 of 2005; Sindh Alkali Limited and 3 others v. Senior Member National Industrial Relations Commission and another Constitutional Petition No.D-1358 of 1980; Sandoz (Pakistan) Ltd. Karachi v. Sindh Labour Appellate Tribunal and another Civil Appeal No.335-K of 1986 and Pakistan Machine Tool Factory (Pvt.) Ltd. v. Muhammad Siddique 2001 PLC 149 ref.

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

----Regln. No.32(2)(c)---Industrial Relations Ordinance (XCI of 2002), S.49(4)(e)---Interim relief---Application for---Unfair labour practice by employers, petition against---For grant of interim relief, besides showing that an industrial dispute was pending, employees were also to show, at least prima facie, that allegations made in the petition filed under S.49(4)(e) of Industrial Relations Ordinance, 2002 coupled with some other material, if any, placed on record, disclosed commission of an unfair labour practice on the part of employers, because on such a finding depended exercise of jurisdiction by National Industrial Relations Commission---Concepts of balance of convenience/inconvenience and irreparable loss also would be present in the case of petitioners for grant of interim. relief, which, in the case of petitioners, did not appear to be present in favour of petitioners/applicants---Member, National Industrial Relations Commission, was not shown to have examined question of interim relief with reference to the provisions of Regln.32(2) of National Industrial Relations Commission (Procedure and Functions) Regulations, 1973, which were attracted only when there was some apprehension that an unfair labour practice, was likely to occur to prevent which some interim measure was called for---Member, before passing impugned order, did not keep in view relevant considerations and legal/statutory requirements governing grant of interim relief---Petitioners had neither prima facie case nor concepts of balance of convenience/inconvenience and irreparable loss were in their favour---Applications for interim relief filed by petitioners under Regln.32(2)(c) of National Industrial Relations Commission (Procedure and Functions) Regulations, 1973, were dismissed in circumstances.

Muhammad Khursheed, Labour Representative for Petitioners.

Faisal Mahmood Ghani for Respondents.

PLC 2007 NATIONAL INDUSTRIAL RELATIONS COMMISSION 628 #

2007 P L C 628

[National Industrial Relations Commission]

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

PAKISTAN TELECOMMUNICATION LIONS UNITY

Versus

RITU and others

Appeals Nos.12(5) of 2004 and 12(7) of 2004, decided on 26th October, 2005.

Industrial Relations Ordinance (XCI of 2002)---

----S. 20---Collective Bargaining Agent, determination of---Procedure as laid down in S.20 of Industrial Relations Ordinance, 2002 for determination of Collective Bargaining Agent, was not followed in preparing the list of .members---Even the total number of workers were not brought on record---Management informed the Deputy Registrar that the number of workers would be 70,000, if Engineering Supervisors and Daily Wagers were allowed to cast their votes; but referendum was got conducted with a list of 50,000 of regular employees without participation of Engineering Supervisors and Daily Wagers---Such act on the part of the Member of Commission had deprived Engineering Supervisors and Daily Wagers of their fundamental right to vote---Voters list was not prepared by comparing/verifying the list of members provided by the contesting. trade unions and the management---Incomplete list provided by the management was made basis for referendum---Management was only provided three days to submit the list of the workers and in that short span of time the Daily Wagers and Engineering Supervisors were totally excluded---Certificate of Collective Bargaining Agent was issued without noticing that the union did not secure/1/3rd votes of the workmen employed in the establishment as required under the law---Result of referendum was announced in hasty manner---High Courts, also took notice of said illegalities committed in holding of secret ballot and suspended Collective Bargaining Agent Certificate at the very preliminary hearing and ordered same to remain suspended till the matter was decided by the Bench---Referendum so held was thus without jurisdiction and was not conducted in accordance with provisions of Industrial Relations Ordinance, 2002---Same was set aside with a direction to Registrar Industry-wise Trade Union to hold referendum as per law within two months.

1989 MLD 3745; Town Committee, Gakhar Mandi v. Authority under the Payment of Wages. Act, Gujranwala and 57 others PLD 2002 SC 452; Yousaf Ali v. Muhammad Aslam Zia and 2 others PLD 1958 SC (Pak.), 104; PLC 1964 C.S 536; PLD 2003 Pesh. 77; PLD 1994 Pesh. 48; 1979 PLC 416; PLD 1995 (sic) 53; .PLD 1971 Lah. 217; Karachi Warehouse and Carriers Workers Union v. Pakistan Warehouse Carriers Workers Union and 3 others PLD 1978 Kar. 417 and Manzoor Qadir v. Mst. Annul Hussain and others PLD 1971 Lah. 537 ref.

Raja Muhammad Ibrahim Satti for Appellant.

Tariq Mahmood Khan and Sheikh Abdul Hameed for Respondent.

S. Naeem Bokhari for-the P.T.C.L.

PLC 2007 NATIONAL INDUSTRIAL RELATIONS COMMISSION 640 #

2007 P L C 640

[National Industrial Relations Commission]

Before Ghulam Nauman Shaikh, Member

MUJEEBUR REHMAN and 13 others

Versus

Messrs SHELL PAKISTAN LTD. through Managing Director and others

Case Nos.4A(79) of 2005/K, 24(93) of 2005/K, decided on 17th January, 2006.

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

----Regln. 32(2)(c)---Industrial Relations Ordinance (XCI of 2002), Ss.45(2), 49(4)(e) & 50(3)(a)---West Pakistan Industrial Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.13---Interim order---Grant, clarification and confirmation of---Retrenchment---Unfair labour practice by employers---Petition against---Services of petitioners having been terminated by way of retrenchment, petitioners filed petitions under S.49(4)(e) of Industrial Relations Ordinance, 2002---Petitioners along with said petitions, filed application under Regln.32(2)(c) of National Industrial Relations Commission (Procedure and Functions) Regulations, 1973 for grant of interim injunction, which application was accepted and interim order was passed---Employers moved an application under S.50(3)(a) read with S.45(2) of Industrial Relations Ordinance, 2002 seeking clarification of interim order---Interim order sought to be clarified was to the effect, "meanwhile the respondents, if had issued letters of termination by way of retrenchment in respect of petitioners, were directed not to give effect to such termination letters till the next date"---Said interim order which was being extended from date to date and continued to operate, was very .clear, unambiguous, unequivocal, very simple, easy to understand and required no further clarification by Bench of National Industrial Relations Commission---Employers had acted on their wrong assumption and had defied to give effect to interim order at their own whim and had cleverly tried to absolve themselves by filing .application seeking clarification of interim order---Court, which possessed jurisdiction to deal with or try the case could pass an interim order, which later on could be held as right or wrong, but the legal course for the other party was to obey and comply with it---If party was aggrieved by said interim order, it could either make submission to the court dealing with the case that same be recalled or vacated or to file an appeal to challenge. its legality, but not to make its own interpretation and disobey same--For grant of interim injunction, besides prima facie case, balance of inconvenience and irreparable loss was to be present in favour of person who sought interim injunction--If interim order in question was not confirmed, it would neither cause any inconvenience nor irreparable loss or injury to petitioners as .later two ingredients did not lie in favour of petitioners, but leaned to the side of employers---Interim order, however, could not-be confirmed as same could only be determined after evidence was recorded, considering whether letters of termination by way of retrenchment of petitioners were act of victimization on account of their trade union activities, arid as such wart acts of unfair labour practice--- Application under Regln.32(2)(c) of National Industrial .Relations Commission, (Procedure and Functions) Regulations, 1973, was dismissed and interim order was recalled.

1961 PLC 95 (SC India); 1962 PLC 435; 1996 PLC 18; 1998 PLC 80; 2001 PLC 543; 1963 PLC 131; 1968 PLC 244; 1984 PLC 115; 2004 PLC 343; PLD 1979 Kar. 493; 2001 PLC 79; 2000 PLC 430; 2003 PLC 240; 2002 PLC (C.S.) 956; 2003 PLC 244; 2004 PLC 38; PLD 2004 Lah. 65; 1998 PLC 403; 1970 SCMR 491; 1970 PLC 671; PLD 1976 Lah. 611; 1984 PLC 1645; PLD 1986 Lah. 90; 1986 PLC 985; 1990 PLC 599; 1991 PLC 32; 1997 SCMR 1508; 1998 SCMR 68; 2006 PLC 380; 2005 PLC 301; 2002 PLC 52; 1985 SCMR 257; 1983 PLC 477; 1980 PLC 1224; .1980 PLC 888; PLD 1977 Kar. 250; PLD 1976 Lah. 1169; Allah Ditta v. The Punjab Labour Appellate Tribunal PLD 1.985 Lah. 407; Iftikhar Ali v. Jvvid Dastgir Mirza PLD 1975 Lah. 126 and A.N.M. Mehmood v. M.O. Ghani Vice-Chancellor PLD 1967 Dacca 67 ref.

M.A.K. Azmati for Petitioners.

Shahid Anwar Bajwa for Respondents.

Date of hearing: 17th March, 2006.

PLC 2007 PESHAWAR HIGH COURT 138 #

2007 P L C 138

[Peshawar High Court]

Before Ijaz-ul-Hassan Khan, J

UNITED BANK LTD. and others

Versus

MUKHTIAR HUSSAIN

Labour Appeal No.23 of 2005, decided on 10th August, 2006.

Industrial Relations Ordinance (XCI of 2002)---

----Ss. 46 & 48---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.12-Termination of service---Grievance petition---Appeal to High Court---Employee initially was appointed as Godown Keeper in the Bank and later on was designated as Assistant and Data Supervisor---Employee, in due course was transferred to Computer Centre of the Bank, from where by verbal termination order he was relieved due to closure of said Centre---Labour Court accepting grievance petition filed by employee against termination of his service, declared order of his termination illegal and directed his reinstatement in service with back benefits and wages---Bank, had filed appeal against judgment of the Labour Court, alleging that the,employce was not in service of the Bank, but his wages were paid by a borrower of the Bank on whose Godown he was posted as Chowkidar and that he never worked against a permanent post at any time nor did he prove that he was a permanent employee of the Bank---Validity---Record had revealed that employee was duly recruited by the Bank as Godown Keeper and later on he was designated as Assistant and Data Supervisor---Employee having served the Bank for more than 22 years, Bank had no reason to do away with his services without any justifiable reason---Material available on the record had been appreciated by the Labour Court in its true perspective and findings of the court below did not appear to be the outcome of misreading and non-reading of evidence---Appeal against judgment of Labour Court, was dismissed.

Mir Muhammad Khan v. Secretary to Government and others 1997 SCMR 1477; Dr. Anwar Ali Sahto and others v. Federation of Pakistan and others PLD 2002 SC 101 and Abdul Sattar and another v. Sui Northern Gas Pipelines Limited and others 2001 SCMR 1935 rel.

Nisar Ahmad Khan for Appellants.

Waqas Ahmed for Respondent.

Date of hearing: 7th July, 2006.

PLC 2007 PESHAWAR HIGH COURT 388 #

2007 PLC 388

[Peshawar]

Before Ijaz-ul-Hassan Khan, J

Messrs SERVIER RESEARCH AND PHARMACEUTICALS, PAKISTAN (PVT.) LIMITED through Chief Executive and another

Versus

AAMIR SULTAN

Labour Appeal No.19 of 2005, decided on 13th February, 2007.

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

----Ss. 2(xxx), 46 & 48---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(i) & S.O.12---Termination of service---Status of workman', determination of---Appeal to High Court---Employee was appointed as Medical Information Officer---After completion of three months' probationary period, his services were confirmed---Subsequently services of employee were dispensed with simply on the ground of "no more required"---Neither any show-cause notice had been issued to him nor proper inquiry had been conducted---Employee feeling aggrieved, challenged action of management by filing grievance petition under S.46 of Industrial Relations Ordinance, 2002, alleging that no proper procedure was adopted by management in terminating services of employee---Labour Court, allowed grievance petition of employee, directing the management to reinstate him in service with full back benefits and wages---Labour Court on proper consideration of material on record, delivered a reasonable judgment and its findings recorded by the Labour Court, were not only in accordance with the record of the case, but also were in consonance with the law on the subject---Management appeared to have acted in a mechanical manner and terminated the services of a permanent employee, without giving him a right of hearing---As to question whether a person was or was not a workman, would depend not upon his designation, but on the nature of duties performed by him---Employee though was designated as Medical Information Officer, but he did not exercise any power of hire or fire---Such duties, clearly fell within ambit ofmanual' or clerical' work---Nature of duties of employee had indicated that he belonged to the category ofworkman' as defined in cl.(1) of S.2 of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968---Labour Court had valid reasons to accept grievance petition of the employee---Finding of Labour Court could not be interfered with in appeal.

Syed Matloob Hassan v. Brooke Bond Pakistan Limited Lahore 1992 SCMR 227; Mustakhum Cement Limited through Managing Director v. Abdul Rashid and others 1998 SCMR 644 and Yusuf Ali Shah v. Quetta Serena Hotel through General Manager and 2 others 2001 SCMR 1813 rel.

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

----S. 2(i)---Workman'---Definition ofworkman' contained in West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, was a simple definition indicating two categories of persons who could be employed in an Industrial or commercial establishment to do either manual or clerical work---Words skilled' orunskilled' appearing in the definition further indicated that a person could either be employed to do skilled or unskilled manual work or skilled or unskilled clerical work, as the case may be---Definition of workman given in West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 need not be construed narrowly so as to destroy the purpose of the beneficial legislation---Said definition appeared to exclude those who do intellectual or managerial work and not other employees.

Yahya Afridi for Appellants.

Khurshid Ahmad Shahan for Respondent.

Date of hearing: 20th December, 2006.

Punjab Labour Appellate Tribunal

PLC 2007 PUNJAB LABOUR APPELLATE TRIBUNAL 323 #

2007 PLC 323

[Punjab Labour Appellate Tribunal]

Before Mian Saqib Nisar, Chairman

MUHAMMAD HANIF

Versus

EXECUTIVE DIRECTOR (O.P.S.) HOUSE BUILDING FINANCE CORPORATION, ISLAMABAD and 2 others

L. Appeal No.102 of 2005/BWP, heard on 24th January, 2007.

Industrial Relations Ordinance (XXIII of 1969)---

----Ss. 25-A, 37 & 38---Termination of service---Grievance petition---Appeal to Labour Appellate Tribunal---Grievance petition filed by appellant against order of termination of his service was dismissed by the Labour Court on the ground that it was barred by time---Order passed by Labour Court on the face of it was erroneous, because even if appellant earlier approached Service Tribunal erroneously, and did not approach the Labour Court, but appellant thereafter served the grievance notice and filed grievance petition within two months---Appellant had to comply with the statutory provisions, time spent in that regard could not render grievance petition barred by time--Order dismissing grievance petition, being illegal, was set aside by the Tribunal and matter was remanded to Labour Court with direction to decide case on merits.

Mukhtar Ahmed Malik for Appellant.

M. Shamshir Iqbal Chughtai for Respondents.

Date of hearing: 24th January, 2007.

Quetta High Court Balochistan

PLC 2007 QUETTA HIGH COURT BALOCHISTAN 340 #

2007 P L C 340

[High Court Quetta]

Before Muhammad Nadir Khan, J

ATTAULLAH

Versus

HABIB BANK LIMITED

Labour Appeal No.25 of 2006.

Industrial Relations Ordinance (XCI of 2002)---

----Ss. 46 & 48---Termination of service---Grievance application---Limitation---Application to condone delay---Appeal to High Court---Appellant/employee whose service were verbally terminated, served grievance notice on respondent/employer after more than six months from termination of his services, whereas under provisions of S.46(1) of Industrial Relations Ordinance, 2002, appellant could bring his grievance to the notice of his employer within one month of his termination---Total period available to appellant for approaching the Labour Court was three months and fifteen days, but he filed grievance application after eight months and eleven days---Appellant made an attempt to get delay condoned on the ground that verbal termination order was void and no limitation would run against void order---Appellant having not adopted procedure provided by S.46 of Industrial Relations Ordinance, 2002 for redressal of his grievance, delay which had occurred on account of his negligence could not be condoned---Dismissal of grievance application of appellant/employee on ground that it was time-barred, was unexceptionable calling for no interference---Appeal against judgment of Labour Court being without' any merits, was dismissed, in circumstances.

Azam Jan Zarkoon for Appellant.

Shahid Anwar Bajwa for Respondent.

PLC 2007 QUETTA HIGH COURT BALOCHISTAN 435 #

2007 PLC 435

[Quetta High Court]

Before Muhammad Nadir Khan, J

Messrs GEARS HOBBING LTD. through Factory Manager and others

Versus

ABDUL HAMEED and others

C.M.A. No.1 of 200 in L.A. No.14 of 2005, C.M.A. No.2 of 2005 in L.A. No.15 of 2005, C.M.A. No.3 of 2005 in L.A. No.16 of 2005, C.M.A. No.4 of 2005 in L.A. No.17 of 2005, L.As. Nos.2 to 9 of 2006, decided on 25th April, 2006.

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

----Ss. 46 & 48---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.15(3)(e) & (4)---Termination of service---Grievance petition---Appeal to High -Court--Services of employees were terminated after issuing them show-cause notice on allegations of misconduct, but High Court set aside termination order and employees were ordered to be reinstated in service with back benefits from the date they were terminated---Employer company, however was allowed to hold enquiry about allegations made against employees in show-cause notice---Employer company before initiating enquiry about allegations, issued second show-cause notice to employees wherein employees were alleged to have remained absent from duty for more than 10 days and they had not joined duty---Validity---Employees, after their reinstatement in service with back benefits, filed application for their reinstatement, but company vide its letter had taken employees into employment from the date of their reporting for duty and not from the date of their termination and they were also posted at different stations---Said order could not be in terms of order of reinstatement and it could be said that employees were not reinstated as directed by the Court---Employees, in circumstances could not be said to have failed to join their duties after having been reinstated---Action taken against employees on the ground that they did not join their duties and remained absent for more than 10 days after their reinstatement order in circumstances, could not be validated---Dismissal of employees on the ground that they remained absent for more than 10 days, was without any foundation and said order on that ground was illegal.

AIR 1986 SC 995; SBLR 2004 Balochistan 960; NLR 1996 Service 11; L.A No.227 of 2004 Karachi High Court PLD 1967 SC 367-372; SBLR 2006 Sindh 243; 1996 SCMR 201-213; 2001 SCMR 931; PLD 1987 SC 207; 1982 SCMR 651; 1992 PLC 415; 1992 SCMR 2169; 1982 PLC 365; 1990 PLC 643; 1987 PLC 23; 1962 PLC 528; 1993 PLC 304; 1972 PLC 83; 1986 PLC 1158; 2004 TD Lah. 180; .PLD 1982 SC 460; PLD 1981 SC 225; 1981 SCMR 631; 1988 SCMR 1352; 1997 PLC 132; 1999 SCMR 734; PLD 2003 SC 952; NLR 2000 Labour 952; 2005 PLC 14; 1978 SCMR 212; 2004 PLC 293; 1995 PLC 67.5; PLD 1986 Kar. (sic); 1988 P.Cr.L.J. 2347; 2004 CLC 77; AIR 2004 Delhi 64; 2004 SCMR 1308; 2004 TD Labour 442; PLD 1990 SC 1; PLC 19920 45; 2002 PLC 254; 1960 PLC 201; 1990 PLC 80; AIR 1986 SC 995; 2005 PLC 36; PLD 1967 SC 367; 2005 PLC 449; 1996 SCMR 201; PLD 1978 SC 927 and 1982 SCMR 651 ref.

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

----S. O. 15(4)---Inquiry proceedings---Normally the Labour Court and Appellate Court could not substitute the findings of Enquiry Officer by reappraisal of evidence recorded during enquiry merely on the ground that a view contrary to one taken by Enquiry Officer could be arrived at, but if the finding of Enquiry Officer was found to be on account of misreading and the Enquiry Officer had misconducted; or the findings were contrary to record, same could be substituted by the Labour Court or the Appellate Court---In the present case, at first instance no finding had been recorded and Enquiry Officer, after giving substance of evidence, directly recorded his opinion without supporting it by any reason---Such opinion, in view of the evidence on record could neither be agreed nor acted upon---Employees were not provided proper opportunity to cross-examine the witnesses---Such conduct of Enquiry Officer and the witnesses seemed to be the reason for refusal of employees to participate in the enquiry proceedings.

1999 SCMR 734 and NLR 2000 Labour 114 ref.

----Ss. 46 & 49(9)---Grievance notice and petition---Maintainability---Counsel for employer company made an attempt to challenge the maintainability of grievance notice and petition contending that employees being office-bearers of trade union who alleged that their termination was mala fide and that employer was involved in unfair labour practice, were required to approach National Industrial Relations Commission under S.49(e) of Industrial Relations Ordinance, 2002 and that their application under S.46(3) of the Ordinance, was not maintainable---Validity---Said plea of counsel for employer was found to have no substance as in S.49(9) of Industrial Relations Ordinance, 2002 had expressly stated that jurisdiction of Labour Court to entertain cases of unfair labour practice on the part of employees or workmen, whether individually or collectively, was not excluded.

2004 CLC 77 and 1988 PCr.LJ 2347 ref.

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

----Ss. 46(5) & 62---Arrears of back benefits---Entitlement---Employees who were reinstated in service with back benefits, in their affidavits in the evidence, had categorically stated that they remained jobless after being dismissed from service, which fact could not be controverted by the employer who failed to produce any evidence about employees being in any gainful service during the period they remained out of service--Employees were found to have discharged the onus about their being unemployed after their dismissal and the employer was unable to rebut the same---Employees, in circumstances, could not be refused back benefits---Order of reinstatement with back benefits was found to be unexceptionable by the High Court calling for no interference--Relationship between the employer and the employees had become strained and there existed serious differences between the parties making it difficult, if not impossible, for them to work in harmonious manner---Remedy, in such circumstances, had been provided under S.46(5) of Industrial Relations Ordinance, 2002, whereby the employees could be compensated in lieu of their reinstatement---Counsel for employees had impliedly accepted said position by raising alternate plea for awarding compensation to employees in lieu of their reinstatement in service---High Court observed that it was appropriate to amend the order or reinstatement of the employees by granting them compensation of 15 months pay and allowance in lieu of their reinstatement in addition to the back benefits for the period they remained out of service till passing of that order.

Abdul Ghani for Appellants.

Muhammad Shafiq Qureshi for Respondents.

Date of hearing: 4th April, 2006.

PLC 2007 QUETTA HIGH COURT BALOCHISTAN 580 #

2007 P L C 580

[Balochistan High Court]

[Supreme Court of Pakistan]

Present: Rana Bhagwandas, Abdul Hameed Dogar and Faqir Muhammad Khokhar, JJ

ALLIED BANK OF PAKISTAN LTD.

Versus

Syed NASIR ABBAS NAQVI and others

Civil Petitions Nos.1859 and 2617 of 2003, decided on 22nd September, 2005.

(On appeal from judgment, dated 2-7-2003 of the Lahore High Court, Rawalpindi Bench passed in Writ Petition No.679 of 2002).

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

----S. 7---Industrial Relations Ordinance (XXIII of 1969), S.25-A---Constitution of Pakistan (1973), Arts.185(3) & 199---Constitutional petition---Dismissal from service---Dismissal of grievance petition and appeal by Labour Court and Appellate Tribunal respectively---High Court, in constitutional jurisdiction, directed reinstatement of employee after substituting penalty of dismissal from service to withholding of two increments---Validity---Supreme Court granted leave to appeal to examine, inter alia, question of jurisdiction of High Court in matter of alteration of penalty in its writ jurisdiction.

Pakistan Tobacco Company v. Channa Khan 1980 PLC 981 and Brig. (Retd.) F.B. Ali v. The State PLD 1975 SC 506 ref.

Shahid Anwar Bajwa, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Petitioner (in Civil Petition No.1859 of 2003).

Respondent in person (in Civil Petition No.1859 of 2003).

Petitioner in person (in Civil Petition No.2617 of 2003).

Shahid Anwar Bajwa, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondent No.1 (in Civil Petition No.2617 of 2003).

PLC 2007 SUPREME COURT 41 #

2007 P L C 41

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Hamid Ali Mirza, JJ

DILSHAD KHAN LODHI

Versus

ALLIED BANK OF PAKISTAN and others

C.P.L.A. No.452-K of 2005, decided on 2nd November, 2005.

(On appeal from order of Sindh High Court, Hyderabad Circuit, dated 14-3-2005 passed in Labour Appeal No.107 of 2004).

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

----S. 2(i)-Status of employee, whether workman or officer---Determination---Mere designation of a person, amount of emoluments drawn by him or holding a power of attorney on behalf of employer, by itself, would not be the sole criteria for determining his status.

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

----S. 2(i)---Status of employee of Bank, whether workman or officer---Determination---Employee of Bank being an Officer Grade-II heading a department of Bank independently and supervising work of five persons had no power of hire and fire---Employee preliminary was not employed as workman for doing manual or clerical or skilled or unskilled work---Nature and duties performed by such employee primarily and essentially appearing to be of managerial and supervisory nature---Such employee would fall beyond the ambit and purview of the term "workman".

----S. 2(i)---"Workman"---Misconduct---Legal duty of employer would be to hold an enquiry in order to arrive at truth of allegation and afford an opportunity of reasonable defence to person concerned.

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

----Art. 185(3)---Petition for leave to appeal---Concurrent findings of fact by Courts below---Such findings not suffering from misreading or non-reading of record or omission to consider a material document having bearing on the facts of case---Supreme Court dismissed petition in circumstances.

Suleman Habibullah, Advocate-on-Record/Advocate Supreme Court for Petitioner.

Shahid Anwar Bajwa, Advocate Supreme Court and Ahmadullah Farooqi, Advocate-on-Record for Respondents Nos.1 to 3.

Nemo for Respondent No.4.

Date of hearing: 31st October, 2005.

PLC 2007 SUPREME COURT 46 #

2007 PLC 46

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan and Muhammad Nawaz Abbasi, JJ

MUHAMMAD ASLAM JAVED

Versus

UNITED BANK LTD. CIRCLE OFFICE, FAISALABAD through Circle Executive

Civil Petition No.1737 of 2005, decided on 14th December, 2005.

Industrial Relations Ordinance (XXIII of 1969)---

----S. 25-A---Service Tribunals Act (LXX of 1973), Ss.2-A & 6---Appeal before wrong forum---Abated appeal, decision of---Employee of bank was reinstated by Labour Court--Bank tiled appeal before Labour Appellate Tribunal but on abolition of Tribunal, appeal was transferred to High Court, which was allowed in favour of bank on 8.4.2005---Plea raised by the employee was that during pendency of appeal before High Court S.2-A was inserted in Service Tribunals Act, 1973, and jurisdiction to hear appeal vested only with Service Tribunal thus all appeals before other forums stood abated---Validity---Remedy provided to parties concerned was available in proviso to S.6 (2) of Service Tribunals Act, 1973, which allowed a period of 90 days to a party concerned to tile appeal before Service Tribunal---Bank being appellant, did not invoke jurisdiction of Service Tribunal within 90 days and even long thereafter---High Court decided appeal which was never in existence before it and which had abated long ago--No cause was deemed to have been pending before High Court due to the operation of abatement---High Court had neither the jurisdiction to adjudicate upon the matter nor any matter was pending before it---Supreme Court converted petition for leave to appeal into appeal and set aside the judgment passed by High Court---Appeal was allowed.

Hafiz S.A. Rehman, Senior Advocate Supreme Court with Mehr Khan Malik, Advocate-on-Record for Petitioner.

Mian Mahmood Saleem, Advocate Supreme Court for Respondent.

Date of hearing: 14th December, 2005.

PLC 2007 SUPREME COURT 55 #

2007 P L C 55

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Ch. Ijaz Ahmed, JJ

SHAUKAT ALI and others

Versus

ALLIED BANK OF PAKISTAN LTD. and others

Civil Petitions Nos.2636-L, 2638-L 2844-L and 2885-L of 2004, decided on 6th January, 2006.

(On appeal from the order, dated 25-6-2004 passed by the Lahore High Court, Lahore, in L.A. No.69 of 2004)

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

----S.O. 12---Industrial Relations Ordinance (XXIII of 1969), S.25-A---Dismissal from service---Bank employee---Charge of embezzlement of huge amount of Bank's account-holders---Holding of regular inquiry by Bank---Imposition of such penalty after such charge proved against employee---Business of Bank depended upon its good-will/reputation, and due to such incident/fraud, Bank suffered irreparable loss as many people closed their accounts with Bank---Employee by not observing rules and regulations had committed misconduct disentitling him to remain in service of Bank---Charge levelled against employee having been proved, grievance petition of employee was dismissed in circumstances.

Syed Hasham Ali Shah & Sons v. The Federation of Pakistan PLD 1951 Lah. 425; T. Muthaya Pillayan v. Commissioner Madras Hindu Religious and Charitable Endowments, Madras AIR 1955 Madh. B. 70; M.V. Ittycheria v. State of Kerala AIR 1958 Ker. 374; Opal Laboratories Ltd. v. Workers' Union 1972 PLC 83; Board of Secondary Education, Sargodha v. Abdul Rehman 1988 SCMR 1711; Naeem-ur-Rehman v. Abdul Aziz 1986 SCMR 1961; Ghulam Rasool Khan v. Mst. Jindan 1986 SCMR 775 and Abdul Hameed v. Ali Ahmad Khan 1979 SCMR 503 rel.

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

----Art. 185(3)---Concurrent findings of Courts below---Supreme Court seldom interferes in such findings.

Petitioners in Person (in C.Ps. Nos.2636, 2638 and 2844 of 2004).

Farooq Zaman Qureshi, Advocate Supreme Court with Haji Muhammad Rafi Siddiqui, Advocate-on-Record for Petitioners.

Nemo for Respondents.

PLC 2007 SUPREME COURT 64 #

2007 PLC 64

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan and Ch. Ijaz Ahmed, JJ

ALMAS AHMAD FIAZ

Versus

SECRETARY GOVERNMENT OF THE PUNJAB HOUSING AND PHYSICAL PLANNING DEVELOPMENT, LAHORE and another

C.P. No.2401-L of 2005, decided on 27th February, 2006.

(On appeal from the order, dated 13-12-2005 passed by the Lahore High Court in L.A. No.258 of 2004).

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

----S. 46(1)---Constitution of Pakistan (1973), Art.185(3)---Grievance petition---Limitation---Petitioner was employed on work charge basis in year 1988. later on he was employed on ad hoc basis against a permanent post---In year, 1998 the post was again converted into work charge basis---Constitutional petition as well as Intra-Court Appeal, filed by petitioner against such conversion, were dismissed by High Court, as he did not file any grievance notice under S.46(1) of Industrial Relations Ordinance, 2002---After dismissal of Intra-Court Appeal, the petitioner gave grievance notice and then filed petition---Labour Court allowed the petition but High Court dismissed the same as grievance notice was time-barred---Validity---Petitioner had served grievance notice on 7-11-2002, after 3 years and 4-1/2 months---In case cause of action accrued after dismissal of his Infra-Court Appeal by High Court, even then he had not served grievance notice to the. employer in terms of S.46(1) of Industrial Relations Ordinance, 2002, within specified period of one month---Question of limitation under S.46 of Industrial Relations Ordinance, 2002, had to be rigidly construed on the well-known maxim that no party was allowed to circumvent the provisions of statute of limitation---Party approaching Court of competent jurisdiction for redress of grievance beyond specified period of limitation was bound to explain each day's delay to the satisfaction of respective forum because valuable right had accrued to the other side---Supreme Court declined to interfere with the judgment passed by High Court in exercise of labour appellate jurisdiction---Leave to appeal was refused.

Government of Punjab v. Muhammad Salim PLD 1995 SC 396=1995 SCMR 546; Rehmat Ullah and others v. Ulyas Khan 1968 SCMR 975 and Pakistan Railway v. Ghulam Sarwar 1989 SCMR 864 rel.

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

----S. 3---Limitation---Duty of Court---Scope---Duty of Court is to determine question of limitation irrespective of the fact whether such plea was raised or not by virtue of S.3 of Limitation Act, 1908.

Haji Muhammad Shah v. Sher Khan PLD 1994 SC 294 and Province of Punjab and others v. Muhammad Hussain PLD 1993 SC 147 rel.

----Pure question of law can be raised at any stage of proceedings.

Haji Abdullah Khan's case PLD 1965 SC 90 rel.

(d) Jurisdiction---

----Exercise of jurisdiction---Mandatory condition, non-fulfilment of---Effect---If a mandatory condition for exercise of jurisdiction by a Court is not fulfilled, then entire proceedings which follow become illegal and suffer from want of jurisdiction.

Mansib Ali's case PLD 1971 SC 124 rel.

(e) Administration of justice---

----Improper advice by counsel---Effect---Judge must wear all laws of country on the sleeves of his robes and failure of counsel to properly advice him is not complete excuse in the matter.

Muhammad Sarwar v. The State PLD 1969 SC 278 ref.

Muhammad Zaman Qureshi, Advocate Supreme Court with Mahmudul Islam, Advocate-on-Record for Petitioner.

Nemo for Respondents.

PLC 2007 SUPREME COURT 246 #

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PLC 2007 SUPREME COURT 410 #

2007 P L C 410

[Supreme Court of Pakistan]

Present: Muhammad Nawaz Abbasi and Hamid Ali Mirza, JJ

FAUJI FOUNDATION (HEADQUARTERS) through Manager Administration

Versus

PUNJAB LABOUR APPELLATE TRIBUNAL and 2 others

Civil Appeal No.1621 of 2005, decided on 13th March, 2007.

(On appeal from the judgment, dated 10-10-2003 passed by Lahore High, Rawalpindi Bench in Writ Petition No.2916 of 2000).

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

----S. 2(ix)---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(b)(f)---Charitable Endowments Act (VI of 1890), S.4---Fauji Foundation (a charitable organization registered under Charitable Endowments Act, 1890)---Whether or not such organization covered by definition of "establishment" in Industrial Relations Ordinance, 1969 and West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968.

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

----S. 2(f)---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(xxviii)---`Workman'---Definition---Superintendent, designation of---Neither mere supervisory designation nor doing some manual work in supervisory capacity would bring a person in or out of the category of "workman"---Principles.

The expression "Superintendent" in plain words means a person, who exercises the power of superintending in supervisory jurisdiction with some authority or control in certain matters.

The expression "Superintendent" in general is used in a supervisory meanings and a person in such capacity by doing some manual work may not acquire the status of "workman" in terms of IRO, 1969 and Standing Orders Ordinance, 1968. The mere fact that a person in supervisory capacity was also doing some manual work is not sufficient to hold that he is a workman and similarly mere supervisory designation may not bring a person out of the category of "workman".

In public and private organizations, the managerial staff usually does the manual work and probably all persons in supervisory capacity in one way or the other do manual work in discharge of their duty, therefore, it may not be the true test to determine the status of a person, who undertakes any sort of manual work or perform duty in supervisory capacity involving some manual work as a workman.

Abdul Ghafoor v. Karachi Shipyard and Engineering Works Ltd. and others PLC 1987 Labour 697; Abdul Razzaq v. Ihsan Sons Ltd. 1992 SCMR 505; Rehmat Ali v. Security Papers Ltd. PLD 1982 Kar. 912; Pakistan Arab Refinery Ltd. v. Muhammad Rashid 1999 SCMR 373 and Mustehkum Cement Limited v. Abdul Rashid 1998 SCMR 644 ref.

Hotel International v. Bashir A. Malik PLD 1986 SC 103 rel.

----S. 2(f)---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(xxviii)---`Workman'---Question, whether a person is a "workman" or not---Such question being mixed question of law and facts must be decided in the light of facts of each case.

Syed Sharifuddin Pirzada, Senior Advocate Supreme Court and Mehr Khan Malik Advocate-on-Record for Appellant.

Tariq Mehmood, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Respondent No.3.

Date of hearing: 28th February, 2007.

PLC 2007 SUPREME COURT 421 #

2007 PLC 421

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Muhammad Nawaz Abbasi, JJ

ALL PAKISTAN SEAMEN'S WORKERS UNION through General Secretary

Versus

PAKISTAN SEAMEN'S UNION through Secretary and others

C.P.L.A. No.460-K of 2006, decided on 13th November, 2006.

(On appeal from order of High Court of Sindh Karachi, dated 24-8-2006 passed in C.P. No.D-486 of 2000).

Industrial Relations Ordinance (XXIII of 1969)---

----Ss. 22-A(4), (8)(d) & 22-B(2)(b), (3)(b)---Registration of Industry-wise Trade Union---Entrustment of application for registration by Chairman to Deputy Registrar of National Industrial Relations Commission-Report of Deputy Registrar favouring registration---Chairman of Commission approving such report' without applying mind---Validity---Registration of such Union was a function to be performed by Commission, which would include its Chairman and Members appointed under S.22-A(4) of Industrial Relations Ordinance, 1969---Powers vested in Commission exercisable by its Chairman or its Bench could not be delegated or entrusted to its officer including the Registrar---Supreme Court upheld order of High Court declaring such registration to be illegal and without lawful authority---Principles.

Essa Cement Industries Workers' Union v. Registrar of Trade Unions 1998 SCMR 1.964 distinguished.

Syed Shahenshah Hussain, Advocate Supreme Court and Akhlaq Ahmed Siddiqui, Advocate-on-Record for Petitioner.

Muhammad Tasneem, Advocate Supreme Court and Suleman Habibullah, Advocate-on-Record for Respondent No.1.

Ghulam Nabi Dareshak, Deputy Registrar, NIRC for Respondent No.2.

Masood Ahmad, Shipping Master for Respondent No.3.

Agha Faqir Muhammad, Advocate Supreme Court and Raja Sher Muhammad Khan, Advocate-on-Record for Respondent No.7.

Nemo for Respondents Nos.4 to 6 and 8 to 10.

Date of hearing: 13th November, 2006.

PLC 2007 SUPREME COURT 426 #

2007 P L C 426

[Supreme Court of Pakistan]

Present: Javed Iqbal and Raja Fayyaz Ahmad, JJ

BALOCHISTAN ENGINEERING WORKS LTD.

Versus

ABDUL HAMEED and others

Civil Petitions Nos.59.to 70-Q of 2006.

Industrial Relations Ordinance (XCI of 2002)---

----Ss. 46(5) & 48---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.15---Constitution of Pakistan (1973), Art.185(3)--- Termination of service on allegation of misconduct---Reinstatement---Claim for both back-benefits and compensation in lieu of reinstatement---Services of workers were terminated on allegation of misconduct---Grievance petitions filed by workers against order of their termination of services, had been dismissed by Labour Court---High Court accepted appeals resulting in reinstatement of workers---Employer took workers in service from the date of their reporting for duty 'on the same terms and conditions as contained in their appointment letters---Said reinstatement order was not accepted by the workers and they filed grievance petitions, which were partly accepted directing employer to pay to workers their wages along with benefits and other privileges from the date of their removal from service---High. Court while concluding with the matter finally had observed that as relations between employer and workers had become strained, workers could be awarded remedy as provided by S.46(5) of Industrial 'Relations Ordinance, 2002 whereunder workers could be awarded compensation in lieu of their reinstatement in service---Workers accepted award of compensation to them in lieu of their reinstatement in service---Workers, who under provisions of S.46(5) of Industrial Relations Ordinance, 2002, were entitled to get compensation not less than twelve months and no more 'than thirty months' basic pay, would not be entitled for back-benefits for the period for which they remained out of service---Both reliefs i.e. compensation in lieu of reinstatement and back-benefits for the period for which they remained out of service, were not permissible under the law.

Hadi Shakeel Ahmed, Advocate Supreme Court for Petitioner.

Muhammad Anwar Khan Durrani, Advocate-on-Record.

PLC 2007 SUPREME COURT 660 #

2007 P L C 660

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan and Muhammad Nawaz Abbasi, JJ

ALLIED BANK LIMITED through Attorney and others----Appellants

Versus

Syed NASIR ABBAS NAQVI and others----Respondents

Civil Appeals Nos.1096 and 1097 of 2005, decided on 12th April, 2006.

(On appeal from the judgment, passed by the Lahore High Court, Rawalpindi Bench in Writ Petition No.679 of 2002, dated 2-7-2003 in both cases).

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

----S. 25-A---Constitution of Pakistan (1973), Arts.185(3) & 199---Penalty imposed upon an employee by Appellate forum---Alternation of such penalty by High Court in constitutional jurisdiction of High Court---Scope---Supreme Court granted leave to appeal to examine such question.

Pakistan Tobacco Company v. Channa Khan 1980 PLC 981 and Brig. (Retd.) F.B. Ali v. The State PLD 1975 SC 506 ref.

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

---S. 25-A---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.0.15(4)-Grievance petition by employee of Bank---Misconduct, charge of---Dismissal from service---Reinstatement in service by Labour Court without granting back-benefits to employee---Dismissal of grievance petition by Appellate Tribunal---High Court awarded penalty of stoppage of two increments in view of admission of employee regarding charge of misconduct--Validity---Impugned penalty would be inadequate in view of such admission---Supreme Court, without disturbing reinstatement of employee in service, modified impugned penalty into withholding his promotion for seven years from date of passing of order of his dismissal from service by authority.

---Art. 199---Disciplinary matters and administrative functions of public organizations---Interference in such matter by High Court in exercise of its constitutional jurisdiction---Scope---Unless order passed by an authority in its discretion was capricious, arbitrary or illegal, High Court would not interfere in such matters---Departmental authority had exclusive jurisdiction to determine quantum of punishment in the light of charge and court might not substitute its decision in such matter---High Court in suitable cases might look into question of legality or otherwise of an order passed by public functionaries affecting right of a person---Principles.

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

---S. 25-A---Expression "just and proper" as used in S.25-A(4), proviso, cl.(b) of Industrial Relations Ordinance, 1969---Meaning and scope stated.

The expression "just and proper" used in Clause (b) to the proviso to subsection (4) of S.25-A(4), Industrial Relations Ordinance, 1969 in the legislative wisdom reflects the meaning that there must be some control on the exercise of power of the employer in the matter of determining the degree of punishment and Labour Court in a proper case may wholly or partially allow a grievance petition and modify the penalty awarded to an employee by the employer with any other sort of penalty prescribed under the law.

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

---Ss. 45 & 47(3)---Remedy of appeal before Appellate Tribunal against order of Labour Court---Continuation of proceedings before Labour Court.

(f) Constitution of Pakistan (1973)---

---Arts. 185(3) & 199 Interference by Supreme Court in order passed, by High Court in its discretionary jurisdiction---Scope stated.

Supreme Court is always reluctant to interfere in the order of High Court passed in its discretionary jurisdiction under the Constitution, unless there is serious question of law of public importance.

Shahid Anwar Bajwa, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Appellant (in C.A. No.1096 of 2005).

Ch. Afrasiab Khan, Advocate Supreme Court for Respondent (in C.A. No.1096 of 2005).

Ch. Afrasiab Khan, Advocate Supreme Court and Ch. Muhammad Akram, Advocate-on-Record for Appellant (in C.P. No.1097 of 2005).

Shahid Anwar Bajwa, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondents (in C.P. No.1097 of 2005).

Date of hearing: 12th April, 2006.

PLC 2007 SUPREME COURT 671 #

2007 PLC 671

[Supreme Court of Pakistan]

Present: Muhammad Nawaz Abbasi and Hamid Ali Mirza, JJ

MUSLIM COMMERCIAL BANK----Petitioner

Versus

SHAMSUL AULIA----Respondent

Civil Petition No.1500 of 2005, decided on 27th February, 2007.

(On appeal against the judgment, dated 14-3-2005 passed by Peshawar High Court, Peshawar, in Labour Appeal No.35 of 2005).

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

----Art. 185---Question of fact or mixed question of law and fact based on evidence---Concurrent findings of Courts on such question---Interference in such findings by Supreme Court---Scope stated.

Usually Supreme Court is reluctant to interfere in the concurrent findings of the courts on a question of fact or a mixed question of law and fact based on evidence and mere fact that another view of the evidence was also possible or a wrong view of the evidence was taken by the concerned forum may not be valid ground for interference of Supreme Court.

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

----Ss. 25-A, 46, 47(3) & 48---Grievance petition---Cashier in Bank---Dismissal from service---Wilful negligence, charge of---Encashment of cheques allowed by Cashier without obtaining signatures and verifying identity of person, who presented cheque---Loss caused to bank in terms of money and reputation by such acts of Cashier---Dismissal of grievance petition by Labour Court affirmed by Labour Appellate Tribunal for Bank having proved such charge against Cashier---Reinstatement in service of Cashier with back-benefits by High Court---Validity---Tribunal instead of dismissing appeal should have proposed minor penalty commensurating with the nature of charge---Minor penalty of stoppage of two increments for two years without accumulative effect would be sufficient to meet the ends of justice---Supreme Court partly accepted appeal and modified judgment of Tribunal in such terms.

Qazi Muhammad Anwar, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Petitioner.

Raja M. Ibrahim Satti, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondent.

Date of hearing: 27th February, 2007.