PLC 2009 Judgments

2009 PLC 324

[High Court (AJ&K)]

Before Ghulam Mustafa Mughal, J

NASEER AHMED

Versus

HABIB BANK LTD. Through President and another

Labour Appeal No.2 of 2008, decided on 11th March, 2009.

Azad Jammu and Kashmir Industrial Relations Ordinance, 1974---

----Ss. 2(6) & 30---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.31---Dismissal from service---Grievance petition---Labour appeal---Legislative competence of Azad Jammu and Kashmir Legislative Assembly and Council- Appellant who was dismissed from service filed grievance application under S.30 of Azad Jammu and Kashmir Industrial Relations Ordinance, 1974 before Labour Court for cancellation of dismissal order---Counsel for the employers/Banks had contended that appellant who was Bank employee was not a "workman" and his, application was not competent and that Azad Jammu and Kashmir Legislative Assembly or the Azad Jammu and Kashmir Council had no legislative competence to enact a law for the employees of the Banks and other Corporations which were neither owned nor controlled by them---Validity---Contention of counsel for the employer/Bank was devoid of, any force as in view of S.31 of Azad Jammu and Kashmir Interim Constitution Act, 1974, both the Azad Jammu arid Kashmir Assembly and Council had the Legislative competence to make law within their allocated spheres---Azad Jammu and Kashmir Industrial. Relations Ordinance, 1974, regulates the formation of Trade Unions, relations between the employer and the employee and the settlement of differences and disputes arising between them---No doubt the Banks working in Azad Jammu and Kashmir were not under the direct control of Azad Jammu and Kashmir Council and the Government, but the company laws had been adopted in the Azad Jammu and Kashmir and for carrying out the purpose of the company laws, these Banks had to get registered themselves---Law under which the Labour Courts and the Appellate Tribunals had been established for redressal of the grievances of the employees and the employers had been enacted competently---Labour Court was vested with the jurisdiction to decide the controversy brought before it under S.30 of Azad Jammu and Kashmir Industrial Relations Ordinance, 1974---Appeal was accepted and impugned order of the Labour Court was set aside and Labour Court was directed to proceed in the matter in accordance with law.

Muhammad Mubeen-us-Salam and others v. Federation of Pakistan through Secretary, Ministry of Defence and others PLD 2006 SC 602 and Mehram Ali v. Federation of Pakistan PLD 1998 SC 1445 ref.

Mujahid Hussain Naqvi for Appellant.

Muhammad Idrees Mughal for Respondents.

2009 P L C 5

[Islamabad High Court]

Before Syed Qalb-i-Hassan, J

MUHAMMAD ASHRAF

Versus

ISLAMABAD CLUB through Secretary

Labour Appeal No.18 of 2007, decided on 6th August, 2008.

Industrial Relations Ordinance (XCI of 2002)---

---Ss. 46 & 47(3)---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.12(3) & 15(4)---Termination of service---Grievance petition---Appeal---Employee whose services were terminated on certain charges of misconduct after issuing him show-cause notice and holding inquiry against him, filed grievance petition, which petition having been dismissed by the Labour Court, employee had filed appeal along with other employees against judgment of the Labour Court---Establishment issued letter to employee narrating entire background of alleged incident and directed employee to appear before the Inquiry Officer---Inquiry Officer issued another notice to employee to take part in the inquiry proceedings and duly provided opportunity of cross-examination to employee---Contention of counsel for employee that neither any charge-sheet/show-cause notice was issued nor any opportunity of hearing was given to the employee, had no force, in circumstances---Counsel for employee had himself produced inquiry report in evidence before the Labour Court and no effort was made to summon the complete record of inquiry report or, Inquiry Officer by the employee---Court below, in circumstances had rightly taken into consideration the inquiry report in evidence---Alleged incident in the premises of the establishment had not been denied and criminal proceedings were also pending in the court---Stand taken by the employee that he had not participated in the said incident occurred in the premises of the establishment, had not been supported by any independent witness on behalf of the employee---Employee had himself admitted in cross-examination that no enmity existed between the witnesses produced by the establishment in inquiry proceedings--Charge-sheet was issued to the employee and consequently an inquiry was conducted on the allegation of misconduct and employee had participated in that inquiry and on the basis of the report of Inquiry Officer the order for termination of service of employee was passed by the establishment---Labour court, in circumstances had properly appreciated the record and passed impugned judgment in accordance with law.

Crescent Jute Products Ltd. v. Muhammad Yaqub and others 1989 PLC 499; Wyeth Laboratories (Pakistan) Ltd. and others v. Rafi-­ud-Din and others 1989 PLC 74; Dawood Cotton Mills Ltd. v. Guftar Shah and another PLD 1981 SC 225 and Sarfraz v. General Manager (Leaf), Pakistan Tobacco Company Ltd. and others 1988 SCMR 1352 ref.

Khawaja Muhammad Arif and Ch. Sadiq Muhammad Waraich for Appellant.

Dr. Muhammad Aslam Khaki and Ghulam Mehboob Khokhar for Respondent.

Date of hearing: 15th July, 2008.

2009 P L C 236

[Islamabad High Court]

Before Muhammad Munir Peracha, J

Mrs. WAHEEDA SAFDAR

Versus

FULL BENCH, NATIONAL INDUSTRIAL RELATIONS COMMISSION, ISLAMABAD and 2 others

Writ Petition No.1663 of 2008, decided on 30th April, 2009.

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

----S. 49---When National Industrial Relations Commission was dealing with the cause of unfair labour practice, one of the option with the Commission was to refer the case to the Labour Court within whose jurisdiction the cause had occurred or was likely to occur, either for report or for disposal---If the case was referred for report, the Labour Court would enquire into the matter and forward its report thereon to the Commission---If the case was referred for disposal to the Labour Court, Labour Court could dispose of the case as if the proceedings had originally commenced before it; and could grant such relief as the Commission had the power to grant---In the present case, the matter was referred by the Commission to the Labour Court for disposal, the Labour Court would dispose of the case as if the Labour Court was dealing with the case of unfair labour practice and it would be the opinion of the Commission to send the case to the Labour Court or to decide it by itself.

Muhammad Ibrahim and another v. Pakistan Miner Development Corporation through General Manager and 2 others 2003 PLC 291 ref.

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

----S. 46---Individual grievance---Jurisdiction of Labour Court---So far as the jurisdiction of the Labour Court to redress the individual grievance of a worker under S.46 of the Industrial Relations Ordinance, 2002 was concerned, the said jurisdiction was altogether different---Labour Court had the power to redress the individual grievance of a worker even if unfair labour practice was not established, if the worker had been deprived from any right guaranteed or secured to him by or under any law or any award or settlement for the time being in force---Commission of unfair labour practice was not a condition precedent for invoking the jurisdiction of the Labour Court.

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

Mushtaq Hussain Bhatti for Petitioner.

Fakhar Mehmood Chanda for Respondents.

Date of hearing: 27th April, 2009.

2009 P L C 3

[Karachi High Court]

Before Arshad Noor Khan, J

SUI SOUTHERN GAS COMPANY LIMITED through Managing Director

Versus

DEEDAR HUSSAIN

Labour Revision Applications Nos. 1 to 25 and 26 to 40 of 2008, decided on 19th September, 2008.

Industrial Relations Ordinance (XCI of 2002)---

----S. 48(3)---Order passed by Registrar, Federal Service Tribunal could not be considered as judicial order; and the Presiding Officer of Service Tribunal could scrutinize each and -every case after affording an opportunity of hearing to the parties and such appeals would be deemed to be pending before the Tribunal---Revision applications were admitted and allowed by High Court and orders passed by Labour Court, were set aside and the appeals before the Service Tribunal would be deemed to be pending and Service Tribunal would adjudicate upon the point as to whether the appeals pending before it were abated or not after hearing of counsel for parties.

Raja Riaz v. Chairman, Pakistan Space and Upper Atmosphere Research Commission, Karachi 2008 SCMR 402 rel.

Asif Ali Abdul Razak Soomro for Applicant (in L.R.As. Nos.1 to 25 of 2008).

Muhammad Humayon Khan for Applicant (in L.R.As. Nos.26 to 40 of 2008).

Respondents in Person.

2009 P L C 10

[Karachi High Court]

Before Arshad Noor Khan, J

AHSANULLAH

Versus

Messrs ARMY WELFARE SUGAR MILLS, BADIN and another

Labour Appeals Nos.66 and 67 of 2005, decided on 6th October, 2008.

Industrial Relations Ordinance (XCI of 2002)---

----Ss. 46, 48 & 62---Grievance application---Resignation--Reinstatement---Back benefits, claim for---Grievance of employees was that their resignations were obtained forcibly by the employers with mala fide intention---Employers denied to have obtained the resignations of the employees forcibly under threat of transfer and stated that employees had voluntarily tendered their resignations, whereupon they were paid all outstanding dues---Grievance application filed by the employees was allowed and employers were directed to reinstate the employees---Back­-benefits, however, having not been allowed to the employees, they filed appeal---Validity---Employees had not led any evidence to show that during the period when their applications were pending trial before the Labour Court, they did not get themselves employed, in any other service of profit earning jobs and remained idle for whole period during the pendency of their applications before the lower forum---Order passed by the Labour Court appeared to be well-reasoned and was passed after appraisal of the whole evidence available on record---In absence of any illegality or irregularity in the impugned order of the Labour Court, same could not be interfered with in appeal by the High Court.

Ghulam Sarwar Chandio for Appellants.

2009 P L C 17

[Karachi High Court]

Before Arshad Noor Khan, J

Messrs MIRPURKHAS SUGAR MILLS LIMITED through Manager Administration

Versus

IKRAMUDDIN

Labour Appeal No.65 of 2005, decided on 6th October, 2008.

Industrial Relations Ordinance (XCI of 2002)---

----Ss. 46 & 48---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.15---Termination of service on allegation of misconduct---Grievance petition---Appeal---Services of employee were terminated after serving him show-cause notice and holding ex parte enquiry against him on allegation that he misbehaved with Shift Engineer and also had beaten him mercilessly---Enquiry Officer served notice on the employee for his appearance before him on appointed date---Employee in pursuance of said notice appeared before the Enquiry Officer and applied for adjournment for two days on the ground that his co-worker was not in attendance and that in his absence he could not participate in the enquiry proceedings---Enquiry Officer, instead of granting two days time as prayed for by the employee, allowed only two hours time and after expiry of said two hours employee did not turn up, and Enquiry Officer proceeded ex parte and after recording statements of the witnesses submitted his report to the employer, who, on basis of said report of Enquiry Officer, terminated services of the employee---Validity---Granting only two hours time to the employee by the Enquiry Officer, in any way was not justified and same was not sufficient to delinquent worker to put forward his defence before the Inquiry Officer---Even otherwise grant of two hours time was not supported with any provisions of law holding the act of Enquiry Officer as lawful---Enquiry Officer proceeded with the enquiry in absence of the employee and recorded the statements of the witnesses; and said act of the Enquiry Officer appeared to be in violation of principles of natural justice---Labour Court, in circumstances, had rightly found that Enquiry Officer did not conduct the enquiry legally and properly---Appeal was dismissed---Employee was reinstated because enquiry was not conducted properly---Employer was at liberty to conduct enquiry against the employee.

Abdul Khaliq Baloch for Appellant.

Ghulam Sarwar Chandio for Respondent.

2009 P L C 24

[Karachi High Court]

Before Arshad Noor Khan, J

GHULAM HYDER

Versus

Messrs INDUS DYEING AND MANUFACTURING COMPANY LIMITED, HYDERABAD through Factory Manager and another

Labour Appeal No.70 of 2005, decided on 6th October, 2008.

Industrial Relations Ordinance (XCI of 2002)---

----Ss. 46 & 48---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.15---Removal from service on ground of misconduct---Grievance petition---Appeal---Employee, who was employed as helper in the employer's factory, was removed from service after serving upon him notice and holding inquiry against him on allegation that he was guilty of misconduct---Enquiry Officer, after evaluation of whole evidence available before him, observed that employee was guilty of misconduct and recommended his removal from service on said recommendations---Full and fair chance was afforded by the Enquiry Officer to the employee to participate in the enquiry proceedings and employee had participated in the enquiry proceedings---Throughout proceedings the employee did not raise any objection on the appointment of the Enquiry Officer nor allege any mala fide, bias and enmity against him---Effect---Employee was afforded full and fair opportunity to rebut the allegations contained in the charge-sheet against him, but he failed to produce any evidence showing reasonable discrepancy in the statements of the witnesses recorded before the Enquiry Officer---Enquiry Officer had produced all the enquiry papers, statements and his recommendations before the employer against the employee, in his enquiry report---Trial Court appraised the whole evidence brought on record regarding allegation of misconduct committed by the employee---Trial Court did not find any material defect in the enquiry conducted by the Enquiry Officer against the employee and had rightly refused the reinstatement of the employee---Order passed by the court below, did not suffer from any illegality or irregularity so as justify interference with it.

Ghulam Sarwar Chandio for Appellant.

2009 P L C 30

[Karachi High Court]

Before Bin Yamin, J

Messrs CUMMINS SALES AND SERVICES PAKISTAN LIMITED formerly Messrs DIESEL POWER SYSTEMS LTD. through Manager

Versus

WAHEEDUZZAMAN and 2 others

Constitutional Petition No.S-357 and C.M.As. Nos.2602 to 2604 of 2008, decided on 19th August, 2008.

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

----Ss. 15 & 17(1)(a), proviso---Constitution of Pakistan (1973), Art.199---Constitutional petition---Appeal---Maintainability---Labour Court dismissed appeal filed by employer on the ground that it had not deposited the amount directed by the authority before filing of appeal--Validity---Legislature had provided S.17 (1)(a) of Payment of Wages Act, 1936, for safeguarding the rights of workmen to which they were entitled at the time of dismissal of appeal filed before Labour Court---Compliance of S.17 (1)(a) of Payment of Wages Act, 1936, by party filing appeal was mandatory and its non-compliance could debar further hearing of appeal---Order passed by Labour Court was correct and legal and did not require any interference of High Court---Constitutional petition was dismissed in circumstances.

Messrs Hafiz Textile Mills Limited v. Commissioner for Workmen's Compensation and Authority under Payment of Wages PLD 1993 Kar. 713 and Messrs Maple Leaf Cement Factory Limited v. The Collector of Central Excise and Sales Tax (Appeals), Lahore 1993 MLD 1645 distinguished.

Syed Abid Hussain Shirazi for Petitioner.

2009 P L C 33

[Karachi High Court]

Before Arshad Noor Khan, J

GHULAM MUHAMMAD

Versus

SHAH MURAD SUGAR MILLS through Factory General Manager and another

Labour Appeal 72 of 2005, decided on 6th October, 2008.

Industrial Relations Ordinance (XCI of 2002)---

----Ss. 46, 47(3) & 48---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.15---Dismissal from service on allegation of misconduct---Grievance application---Appeal---Employee was dismissed from service after charge-sheeting him and holding inquiry against him on allegation of misconduct---Grievance application filed by employee against his dismissal having been dismissed by the Labour Court, employee had filed appeal---Employee was afforded full and fair chance to participate in the inquiry proceedings--Employee cross-examined all the witnesses produced before the Enquiry Officer at sufficient length and after recording of the statements of the witnesses the signature of the employee was obtained on each and every page of the enquiry proceedings---Enquiry conducted against the employee did not suffer from any illegality or infirmity and no independent evidence had been brought on record to inflict any dent in the enquiry conducted by the Enquiry Officer against the employee---Dismissal of employee on the basis of recommendation of the Enquiry Officer was not result of bias or mala fide against employee---Employee had also not led any evidence to show that Enquiry Officer had any personal grudge, bias or enmity against him to hold him guilty of committing misconduct---Findings of the Labour Court not suffering from any illegality or infirmity, could not be interfered with by the High Court in appeal.

Ghulam Sarwar Chandio for Appellant.

Nemo for Respondent.

2009 P L C 39

[Karachi High Court]

Before Arshad Noor Khan, J

Messrs KHAS TEXTILE MILLS

Versus

MUHAMMAD ABBAS and another

C.P. No.S-132 of 2006, decided on 15th September, 2008.

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

----S.O. 10-B---Payment of Wages Act (IV of 1936), S.15---Constitution of Pakistan (1973), Art.199---Constitutional petition---Group insurance, entitlement to---Respondent, whose right arm was imputed during the course of his employment/duty, claimed compensation for his becoming incapable to perform his duties, as well as insurance---Petitioner/ employer admitted the status of respondent as workman' and had also admitted incident in which. hand of respondent was imputed, but contended that respondent was not entitled for group insurance as he was notpermanent workman'---Respondent after completion of his probationary period of three months, had become a permanent, workman as per labour laws applicable on petitioner-establishment---Petitioner­-establishment had itself admitted in its petition that respondent was a permanent worker' working in the capacity of "Doffer" since 3-3-2004---No element of doubt remained in the status of respondent beingpermanent workman' within the meaning of S.O.10-B of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968---Respondent being a permanent workman, having sustained serious injury during the course when he was performing his duty with the petitioner, was entitled for group insurance as claimed by him---Court below, in circumstances had rightly found respondent to be entitled for insurance---In absence of any illegality or infirmity in the order passed by the court below, constitutional petition against said order was dismissed.

Karachi Transport Corporation, Karachi v. Kajeer Khan and another 1993 PLC 296; Messrs Fauji Sugar Mills Ltd. v. Sher Muhammad and another 1997 PLC 538 and Muhammad Habib Khan v. Pakistan Tobacco Company Limited and another PLD 1991 SC 183 ref.

Mehmood Hussain Siddiqui for Petitioner.

Miss Naseem Abbasi for Respondent No.1.

Nemo for Respondent No.2.

2009 PLC 47

[Karachi High Court]

Before Ghulam Dastagir A. Shahani, J

ASHRAF ALI SHAIKH

Versus

NATIONAL TRANSMISSION AND DISPATCH CO. through Chief Executive and 2 others

Labour Appeal No.118 of 2007, decided on 22nd August, 2008.

Industrial Relations Ordinance (XCI of 2002)---

----Ss. 46, 48 & 62---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.15---Dismissal from service---Reinstatement---Back-benefits---Entitlement to---Employee serving as Junior Store-Keeper, was dismissed from service on allegation that he was found to be negligent and responsible for shortage of material---Employee though was reinstated in service, but, he was denied back­-benefits---Validity---Once court of competent jurisdiction would come to the conclusion that termination of service of an employee was unlawful, such employee, as a matter of course, should be granted back-benefits, unless employer was able to establish by cogent evidence that said employee had been gainfully employed elsewhere---Initial burden to prove lay upon the employer and not upon the employee to prove that such employee was gainfully employed during the relevant period---No evidence had been brought on record by the employer to establish that employee was gainfully employed elsewhere---Employee, in circumstances, had become entitled for back-benefits for the period for which he had not been found to be gainfully employed elsewhere---Order passed by the Labour Court was modified accordingly.

National Bank of Pakistan v. The Sindh Labour Appellate Tribunal, Karachi and another 1991 PLC 213 and National Bank of Pakistan, Hyderabad v. Sindh Labour Appellate Tribunal and another 1993 PLC 57 ref.

Mehmood Hussain Siddiqui for Appellant.

Muhammad Nawaz for Respondents Nos. 1 and 2.

2009 P L C 61

[Karachi High Court]

Before Salman Ansari, J

Messrs INDUSTRIAL CLOTHINGS (PVT.) LTD. through Notified Factory Manager

Versus

ABDUL REHMAN

Labour Appeal No.165 of 2006, decided on 8th October, 2008.

Industrial Relations Ordinance (XCI of 2002)---

----Ss. 46 & 47(3)---Industrial and Commercial Employment (Standing Orders), Ordinance (VI of 1968), S.O.15(2)(4)---Dismissal from service---Grievance petition---Reinstatement---Appeal---Employee, who was dismissed from service on ground of misconduct, filed grievance petition against dismissal, which was allowed and he was directed to be reinstated in service---Employer filed appeal against such order of the Labour Court, urging that matter be remanded to the Labour Court as Presiding Officer of the Labour Court in his judgment had concluded that no cross-examination of employee's witness was conducted---Cross­-examination of witness of the employee was marked nil as none was found present for the employer---Said error was very apparent on the face of the record of the case---Matter was remanded to the Labour Court to examine afresh the evidence and afford an opportunity to employer for cross-examination of the witness of the employee---If the witness would fail to appear or other side failed to cross-examine without sufficient cause, then the order as deemed fit be passed and the matter he decided accordingly within specified period.

Muhammad Sain v. Muhammad Din 1996 SCMR 1918; Crescent Jute Products Ltd. Jaranwala v. Muhammad Yaqoob and others PLD 1978 SC 207 and Pakistan International Airlines Corporation Karachi v. Junior Labour Court No.IV, Karachi PLD 1978 SC 239 ref.

Gohar Iqbal for Appellants.

Muhammad Shafiq Qureshi for Respondent.

2009 P L C 68

[Karachi High Court]

Before Zia Perwez, J

ARIF KHAN alias BABO

Versus

Messrs HONESTY FURNITURE EMPORIUM

Appeal No.Kar-77 of 2000, decided on 14th November, 2005.

Industrial Relations Ordinance (XCI of 2002)---

----Ss. 2(xxx), 46 & 47(3)---Grievance petition---Workman', status of---Determination---Appeal---Grievance petition filed by employee was dismissed on the ground that he had failed to establish that he was aworkman'---Burden was on employee to prove that he was a 'workman', but he failed to discharge his burden by bringing evidence in support of his claim---Mere fact that employee was a poor man and Could not do so, was not a valid ground for discharging the burden as pleaded in the case---No evidence was available on record to prove that employee was a `workman'---Appeal was dismissed.

Mustehkum Cement Limited v. Abdul Rashid and others 1998 PLC 172; Qaiser Mirza v. A.F.K. Industries 2001 PLC 337; Shabbir Ahmed Khan v. Proprietor Haji Ramzan Weaving Factory and others 2001 PLC 381; Board of Governors Aitchison College, Lahore v. Punjab Labour Appellate Tribunal and others 2001 PLC 589; Kim Silk Factory v. Asghar Ali 1980 PLC 22 and Roche Pakistan Limited v. The Sindh Labour Appellant Tribunal and others 1993 PLC 2 ref.

Nishat Ahmed Warsi for Appellant.

Muhammad Umar for Respondent.

Date of hearing: 14th November, 2005.

2009 P L C 71

[Karachi High Court]

Before Arshad Noor Khan, J

MUHAMMAD KHALIL

Versus

DIVISIONAL SUPERINTENDENT M. S.T.K. DIVISION

Labour Appeal No.17 of 2008, decided on 29th September, 2008.

Industrial Relations Ordinance (XCI of 2002)---

----Ss. 2(xxx), 46, 47(3) & 48---Industrial and Comi1ercial Employment (Standing Orders), Ordinance (VI of 1968), Ss.2(i), S.O. & 12---Labour appeal---Stopping permanent workman from performance of his duties---Grievance petition---Appellant who claimed that he was appointed in 1992 as Porter in BPS-2, had asserted that when he noted some irregularities and illegalities committed by sub-record clerk and complained to authorities, he was victimized by the authorities and was forcibly stopped to perform his duties, without any order in writing---Grievance application filed by the appellant, was dismissed by the Labour Court on ground that he was not a permanent workman', but was working on stop-gap arrangement on daily wages---Validity---Appellant had completely failed to produce any appointment letter showing his permanent employment as porter---Authorities by producing witnesses, had fully established that appellant was temporarily employed on work charge basis as porter as it was a stop-gap arrangement---Status of the service of appellant, in circumstances was not of a permanent employee---Claim of appellant that he waspermanent workman', could not be accepted, in circumstances---No illegality or infirmity was found in the order passed by the court below, appeal was dismissed.

2000 PLC 199 and 2006 PLC 102 rel.

Mehmood Hussain Siddiqui for Appellant.

Nemo for Respondent.

Date of hearing: 12th September, 2008.

2009 P L C 83

[Karachi High Court]

Before Arshad Noor Khan, J

GHULAM MUSTAFA

Versus

Messrs SHAH MURAD SUGAR MILLS LTD. through Factory Manager

Labour Appeal No.64 of 2006, decided on 6th October, 2008.

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

----Ss. 46 & 48---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.1(e)---Termination of seasonal worker---Grievance application--- Appeal---Appellant/worker had challenged in his appeal legality and validity of the order of Labour Court whereunder his grievance application was dismissed---Appellant was the seasonal worker employed by Sugar Mill for a particular season---Appellant, who was employed for crushing season of 2003-2004 and after the end of the season his services were automatically terminated because of nature of his appointment---Appellant did not produce any evidence to show that prior to all said seasons and after the same he was ever appointed by the employer as a seasonal worker---No documentary evidence was available to show that he was continuously working in every crushing season in the Mill---Seasonal worker under the law, had not been given unconditional right of the re-employment before coming crushing season---After the termination of services of seasonal worker, his next employment was always treated as fresh employment instead of re-employment and fresh employment could not be claimed by the worker as a matter of right---Services of the seasonal worker was always hired by the employer keeping in view the nature, substance and demand of the work by the management---Number of the seasonal workers could be increased or decreased by the employer according to their need, demand and requirement of the crushing season, for which no seasonal worker could be allowed to claim fresh employment as a matter of right---Appellant, in circumstances, was not entitled for re-employment and said finding of the Labour Court was well reasoned and no illegality had been pointed out by the counsel for appellant to upset the findings of the Labour Court on factual aspect of the matter.

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

----S. 46---Grievance notice and grievance application---Nature and scope---Grievance notice, according to S.46(1) of Industrial Relations Ordinance, 2002, must be served by the employee on the employer, on his illegal termination from the service within thirty days from the date of termination of his service---After expiry of the said thirty days, if the requisite notice had not been served, the grievance of the worker could not be termed to be lawful and the Labour Court had all powers to non-suit the worker who was guilty of non-service of the requisite notice within prescribed time---Grievance notice in the case was served by the worker on the employer after 20 months from date of his termination from his seasonal work---Grievance application filed by the worker before the Labour Court being hopelessly time barred was rightly dismissed on ground of limitation also.

Ghulam Sarwar Chandio for Appellant.

Nemo for Respondent.

2009 P L C 95

[Karachi High Court]

Before Salman Ansari, J

MUHAMMAD YOUSUF

Versus

Messrs PHARMATEC (PAKISTAN) LTD. through Factory Manager

Labour Appeal No.78 of 2005, decided on 27th October, 2008.

Industrial Relations Ordinance (XCI of 2002)---

----Ss. 48 & 62---Dismissal from service---Reinstatement---Entitlement of back benefits---Appeal---Appellant who was dismissed from service, was reinstated in service, but was not granted back-benefits---Inquiry against appellant was conducted and his dismissal from service was ordered---Reinstatement in the impugned order which was not conditional, nor any further departmental inquiry was to be conducted--Labour Court, in circumstances, was not justified in refusing to reinstate the appellant to which he was entitled from the date of his reinstatement.

National Bank of Pakistan and another v. Punjab Labour Appellate Tribunal and 2 others 1993 SCMR 105 ref.

Shahanshah Hussain for Appellant.

Shahid Hussain Bajwa for Respondent.

2009 P L C 235

[Karachi High Court]

Before Muhammad Moosa K. Leghari, J

Messrs JOURNALIST PUBLICATIONS LIMITED through Manager Administration and Circulation

Versus

MUHAMMAD AFZAL and another

Labour Appeals Nos.252 to 257 of 2003, decided on 21st August, 2007.

Industrial Relations Ordinance (XCI of 2002)---

----Ss. 46, 47(3) & 48---Dismissal from service---Grievance petition---Appellant/employer in appeals had challenged orders passed by the Labour Court whereby grievance petitions filed by the employees/respondents were allowed and they were ordered to be reinstated in service with full back benefits---Appeals were being disposed of with the consent of counsel for parties---By consent, order passed by the Labour Court was set aside and instead of reinstatement respondents/workers were to be paid compensation in a lump sum amount in lieu of 30 months wages/salary as admissible under the law.

Muhammad Humayoon for Appellant.

Faiz Ghangro for Respondents.

Date of hearing: 21st August, 2007.

2009 P L C 308

[Karachi High Court]

Before Mushir Alam, Actg. C.J. and Safdar Ali Bhutto, J

Malik MUHAMMAD RASHEED and others

Versus

REGISTRAR (ITU) AND CHAIRMAN, NIRC and others

Constitutional Petitions Nos.D-1795 of 2007 and D-1268 of 2008, decided on 29th May, 2009.

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

----S. 20---Constitution of Pakistan (1973), Arts.17 & 199---Constitutional petition---Determination of Collective Bargaining Agent---Petitioner labour union having representative status in the establishment, its locus standi to invoke jurisdiction of High Court was not questionable---Seeking enforcement of right to franchise and for determination of Collective Bargaining Agent was fundamental right of the Labour Union, guaranteed under the Constitution---Where even one of the petitioners had locus standi, constitutional petition could not be dismissed merely because some of the parties were not entitled to the relief on technical grounds.

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

----S. 20---Determination of Collective Bargaining Agent---Powers and functions of Registrar Trade Unions---Registrar of Trade Unions under S.20 of Industrial Relations Ordinance, 2002, was clothed with authority to certify Collective Bargaining Agent for the establishment, in the manner provided for under said section 20, which was self contained provision and elaborately dealt with the manner---Registrar of the Trade Unions, had to act and perform his functions right from receiving application for certification of Collective Bargaining Agent, inviting and issuance of notices to the Trade Unions desiring to contest election; calling from the Trade Unions list of its. members with all requisite detail; affiliate Trade Unions etc. as provided, for in subsection (3) of S.20 of Industrial Relations Ordinance, 2002---Registrar had also power to direct employers to furnish details of employees/workers in the establishment to facilitate verification of such list furnished both by the Trade Unions and the employer, prepare the list of eligible voters, hold secret ballot and certify the Trade Union securing highest number of votes as Collective Bargaining Agent---Registrar in the matter of certifying Collective Bargaining Agent, could either himself perform all or any functions enumerated in S.20 of Industrial Relations Ordinance, 2002 or delegate his functions in view of the authority conferred on him under S.20(14) of said Ordinance---Authorized officer was directed to hold referendum to determine Collective Bargaining Agent in the establishment.

K.E.S.C. Labour Union and another v. Federation of Pakistan and others 2006 PLC 186; 1971 PLC (LC) 8(sic); Yousuf Ali v. Fazal Muhammad 1970 SCMR 681; 2005 PLC 466; All Pakistan Seamen's Worker's Union v. Pakistan Seamen's Union 2007 SCMR 1380 and United Bank Progressive Employees Union v. Registrar of Trade Union 1986 CLC 2911, ref.

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

----S. 20---Determination of Collective Bargaining Agent---Authority of Registrar Trade Unions---Section 20(14) of Industrial. Relations Ordinance, 2002, did not draw distinction between judicial or administrative/non-judicial function---When law did not draw any distinction or prescribed any limitation, same could not infer or imposed---Authority of Registrar to delegate its functions as contained in S.20(14) of Industrial Relations Ordinance, 2002 was unbridled and unequivocal,-No exception in exercise of such authority could be taken nor any limitation could be imposed---Where the laws conferred authority to delegate, such authority could not be curtailed, curbed or impeded.

United Bank Progressive Employees Union v. Registrar of Trade Unions 1986 CLC 2911 ref. .

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

----S. 3-Constitution of Pakistan (1973), Art.17---Right to form and establish association and union was a fundamental right guaranteed under Art.17 of the Constitution, however, subject to certain restrictions imposed by law in the interest of sovereignty or integrity of Pakistan, public order or morality---Right to form trade union and right to franchise available to the employee and workman, was being regulated under the industrial relation enactments right from Industrial Relations Ordinances, 1969, 2002 and Industrial Relations Act, 2008---All three successive legislations acknowledged and recognized that a "worker without distinction whatsoever had right to form" and subject to constitution or rules of the "trade union, join any trade union of their choice" within the establishment or industry they were employed in---Right to franchise was fundamental right, guaranteed under the Constitution, which could not be impeached or denied on any count---Such rights, however, were subject to reasonable restrictions imposed by law, in the interest of sovereignty or integrity of Pakistan, public order or morality.

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

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

----Ss. 2(xxx), 3 & 20---Determination of Collective Bargaining Agent and forming trade union---All persons not falling within the definition of employee and who were employed in an establishment or industry for remuneration or reward, either directly or through a contractor, whether the terms of employment be express or implied without distinction, whatsoever, had a right to form and join any trade union--However, right to vote was not conferred on a workman employed in the establishment whose period of employment in the establishment was less than three months---Nevertheless, the employer was obliged to forward to the Registrar, Trade Unions or his delegatee list of all such workers--List required to be prepared by the Registrar or his delegatee in terms of S.20(5) of Industrial Relations Ordinance, 2002, was the list of eligible voter workmen who had completed three months of service and who were members of any trade union running for election of Collective Bargaining Agent---Distinction between contractual worker and or otherwise was no more available; now workman without discrimination of any classification, could form a union, likewise workers of all classifications, had a right to franchise, provided they had minimum three months services at their credit---Industrial Relations Ordinance, 2002 did not draw any distinction between employee/workman employed directly and or through contractor---Only limitation that could be read, was that the workman must be member of a contesting trade union and had completed three months before he could be entered as an eligible voter---Workman/employee who was member of contesting trade union, without any discrimination as to classification, whatsoever, who had completed three months of service, could cast vote to elect Collective Bargaining Agent.

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

----Art. 5---Obligation of citizen---Obedience to Constitution and law was the inviolable obligation of every citizen, wherever he could be and of every person for the time being within Pakistan---No one could claim any exception.

Kashif Paracha for Petitioners (in C.P. No.1795 of 2007).

Ashraf Mughal D.A.-G.

Sarwar Khan, Addl. A.-G., Sindh.

Rasheed A. Razvi for Respondent No.5 (in C.P. No.1268- of 2008).

Ch. Muhammad Ashraf Khan.

Shoa-un-Nabi for Respondent No.3 (in C.P. No.1268 of 2008).

Mahmood Abdul Ghani for Respondent No.3 (in C.P. No.1795 of 2007) and for Petitioner (in C.P. No.1268 of 2008).

2009 P L C 331

[Karachi High Court]

Before Munib Ahmed Khan, J

FOUJI FERTILIZERS COMPANY LIMITED

Versus

COMMISSIONER WORKMEN'S COMPENSATION and others

Appeal No.22 of 2006, C.P. No.722 of 2006, decided on 17th February, 2009.

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

----Ss. 20, 22, 23 & 30---Payment of Wages Act (IV of 1936), S.15---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.10-B---Claim for Group Insurance money---Appeal---Employee, who continuously worked for more than a decade with appellant Company having died during the course of employment, his legal heirs filed application before Commissioner Workmen's Compensation and Authority under Payment of Wages Act, 1936 for Group Insurance money---Appellant Company contested said application on the ground that since deceased was contractual employee of Company which had entered with the appellant Company into a contract to supply labour, said Company was liable to pay Group Insurance money to legal heirs of deceased employee and not appellant Company--No one appeared in the proceedings on behalf of said Company and matter was finalized by declaring that legal heirs of deceased were entitled to the compensation---Main beneficiary and employer in the case was appellant, but it shifted its responsibility imposed under some labour laws through some contractual obligations---Deceased employee was working for the appellant Company, liability in respect to the labour laws was to be fulfilled either by the appellant or. contractual Company with which appellant entered into contract, but none having come forward on behalf of said Company, appellant Company was liable to payment of Group insurance money to legal heirs of deceased,' which liability could not be shifted---Contractual obligations entered between appellant and said other Company could be settled without involving employees---Compensation Court having disposed of matter in speaking order, same could not be interfered with---High Court issued directions to the effect that amount of Group Insurance deposited in terms of order of court below, should be distributed amongst the legal heirs of deceased employee within specified period.

SBLR 2005 Sindh 1130 (sic) ref.

Ghulam Sarwar Kurai for Petitioner.

Muhammad Shafiq Qureshi for Respondent No.2.

Liaquat Ali Shar, Addl. A.-G.

2009 P L C 335

[Karachi High Court]

Before Sajjad Ali Shah and Nadeem Azhar Siddiqi, JJ

Agha NISAR AHMED and others

Versus

ZEAL PAK CEMENT FACTORY LTD. and another

C.P. No.D-217 of 2001, decided on 20th March, 2009.

Industrial Relations Ordinance (XXIII of 1969)---

---Ss. 25-A & 37(3)---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.Os.1(b) & 12---Constitution of Pakistan (1973), Art.199---Constitutional petition---Termination of service---Grievance petition---Appeal to Labour Appellate Tribunal---Services of employees were terminated giving them one month's salary in lieu of one month notice---Claim of the employers was that the employees were engaged temporarily on contract and on completion of contract their jobs were dispensed with---Employees filed grievance' petition before Labour Court against termination of their service and Labour Court allowed grievance petition holding that termination of the employees was illegal and unlawful and directed the employers to reinstate the employees within one month with all consequential back­-benefits---Labour Appellate Tribunal, however, set aside judgment of the Labour Court allowing appeal of the employers---Validity---No doubt appointment letter was issued to the employees on contract basis, but it was not stated that appointment of the employees was on a temporary post---Employees had worked with the employers for more than ninety days on posts of permanent nature without any break and in absence of any explanation and evidence to the contrary, employees had attained the status of permanent workmen---Nature of work would determine the status' of the workmen and the period of employment was not the sole determining factor---If the nature of work for which a person was employed was of a permanent nature, he could become permanent upon expiry of probation period---Since the employees at the time of termination was permanent workmen employed on permanent posts, they could not be terminated without assigning any reason and their termination was bad in law and they were entitled to be reinstated in service---Regarding entitlement of the employees to back-benefit, it was unbelievable that employees remained unemployed for a too long period of thirteen years after their termination---Employees, in circumstances, were only entitled to the benefit which they were entitled at the date of termination of service and not the consequential benefits as observed by the Labour Court---Allowing petition, judgment of the Appellate 'Tribunal was set aside and that of Labour Court was upheld---Employees were reinstated in service with all benefits to which they were entitled at the date of termination of their services.

Executive Engineer, Central Civil Division, Pak. P.W.D. Quetta v. Abdul Aziz and others PLD 1996 SC 610; Chief Engineer, Irrigation Department, N.-W.F.P. Peshawar and 2 others v. Mazhar Hussain and 2 others PLD 2004 SC 682; and Dawood Cotton Mills v. Sindh Labour Appellate Tribunal 2004 PLC 348 rel.

.Syed Muhammad Saulat Rizvi for Petitioners.

Rafiq Ahmed for Respondents.

Date of hearing: 3rd March, 2009.

2009 P L C 349

[Karachi High Court]

Before Abdur Rahman Faruq Pirzada, J

MUSLIM COMMERCIAL BANK LTD. through Attorney

Versus

MUHAMMAD RIAZ JATT

Labour Appeal No.6 of 2005, decided on 17th November, 2008.

Industrial Relations Ordinance (XCI of 2002)---

----Ss. 46 & 48---Golden Handshake Scheme---Grievance application---Appeal---Respondent who initially was employed as a Guard in the appellant-Bank, was promoted as Cashier---When a Golden Handshake Scheme was introduced by the appellant-Bank, respondent was alleged to have filed application therein giving option for Golden Handshake Scheme and he was relieved from his job---Respondent disowned said application and moved departmental appeal and subsequently he filed grievance application before the Labour Court, which application was allowed and appellant-Bank was directed to reinstate him in service with payment of full back-benefits--Appellant-Bank had filed appeal against judgment of the Labour Court---At the time of launching the Golden Handshake Scheme and on the date when the respondent allegedly filed application, said scheme was not applicable to cashiers and same was made applicable subsequently to the case of cashiers---Since respondent was a cashier, it would be deemed, that no valid application was filed by the respondent for Golden Handshake Scheme---Subsequent amendment whereby said scheme was made applicable to cashiers, would not imply that earlier application allegedly filed by the respondent was a valid application---Though the respondent had disowned alleged application, but even if same was to be accepted to have been signed by him, even then it would not change the legal position---Once it was considered that the very scheme was not applicable to respondent being cashier on the date when he filed his application, subsequent infrastructure built on the basis of said application would also crumble down, especially when the respondent was not paid amount of Golden Handshake Scheme---No illegality having been found in the impugned judgment passed by the Labour Court, appeal filed against said judgment was dismissed.

Shahid Anwar Bajwa and Shoukat Ali Choudhary for Appellant.

Nizamuddin Balouch for Respondent.

Dates of hearing: 10th and 17th November, 2008.

2009 P L C 1

[Lahore High Court]

Before Hafiz Tariq Nasim, J

MAPLE LEAF

Versus

MUHAMMAD SHAFI

Labour Appeal No.201 of 2005, decided on 9th April, 2008.

Industrial Relations Ordinance (XCI of 2002)---

----Ss. 47(3) & 62---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.12---Termination of service---Reinstatement---Back-benefits---Reinstatement of employee was ordered by the Labour Court on technical grounds---Judgment of the court, however, was implemented by way of reinstating the employee into service---If the reinstatement was made on technical grounds, as in the present case, then the back-benefits of the period from termination to the date of reinstatement, were to be decided by the employer and those emoluments could not be asked as a matter of right---Appeal was disposed of with a direction by the High Court to the employers to calculate the emoluments of employee; and if it was found that after the payment of employee's retirement something was outstanding, then the employee should be paid that amount within the stipulated period---Back­-benefits pertaining to the period from termination to reinstatement would be decided by the employer according to the circumstances of the case.

Muhammad Asadullah Siddiqui for Appellant.

Zahid Hussain Khan for Respondent.

2009 P L C 13

[Lahore High Court]

Before Hafiz Tariq Nasim, J

MUHAMMAD MANWAR MUMTAZ

Versus

PAK ARAB REFINERY LIMITED (PARCO) through Managing Director and 6 others

Labour Appeals Nos.114/L and 115 to 141 of 2008, heard on 8th August, 2008.

Industrial Relations Ordinance (XCI of 2002)---

----Ss. 46 & 47(3)---Grievance petition---Appeal to High Court---Appellants claimed that they were performing their duties as Fire-Fighters, but without taking into consideration their uninterrupted length of service spreading over years and years they were not regularized---Employees, after serving the grievance notices, filed grievance petition under S.46 of Industrial Relations Ordinance, 2002---Appellant had submitted that they were issued duty roster and duty Schedule by employer and after serving more than 15 years they had attained the status of permanent workmen, but due to the inaction of employer they were suffering monetary losses and insecurity in service---Employer had contended that employees were not their employees, however they were performing their duties with it being employees of other departments; and that respondents' four either departments had no concern at all with the employees---In view of said dispute between the employees and employer, controversy could not be resolved until and unless the evidence of both the parties was recorded by the Labour Court---Impugned decision being contrary to law, was set aside by High Court and case was remanded to the Labour Court for decision on merits.

PLD 1996 SC 610; 1999 SCMR 2557; Mobeen Ahmad Siddiqui v. Chairman, Sindh Labour Appellate Tribunal and another 1991 PLC 780; Haji Malik Aman and 5 others v. Federation of Pakistan through Secretary, Ministry of Law, Justice and Parliamentary Affair, Islamabad and 5 others 1993 PLC 961; Collector of Central Excise and Sales Tax v. Rupali Polyester Limited and others 2.002 SCMR 738 and 1999 SCMR 373 ref.

Muhammad Anwar Awan for Appellant.

Muhammad Humayun for Respondents Nos. 1 to 4.

Ch. Altaf Hussain for Respondents Nos.5 and 6.

Date of hearing: 8th August, 2008.

2009 P L C 21

[Lahore High Court]

Before Mazhar Hussain Minhas, J

GENERAL MANAGER (A&P) UTILITY STORE CORPORATION, ISLAMABAD and another

Versus

MUHAMMAD IQBAL and another

Labour Appeals Nos.150 to 166 of 2008, decided on 31st October, 2008.

Industrial Relations Ordinance (KCI of 2002)---

---Ss. 46 & 48---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.13---Retrenchment---Appeal---Employees were retrenched in view of financial crisis being faced by the Corporation---Service benefits, admissible under the rules, were paid to the employees---Employees, however, filed appeals under S.4 read with S.2-A of the Service Tribunals Act, 1973 before Federal Service Tribunal challenging their retrenchment---Pending appeals, Supreme Court, in case (PLD 2006 SC 602) declared S.2-A of Service Tribunals Act, 1973 to be illegal; in pursuance of said judgment, employees filed grievance petitions under S.46 of Industrial Relations Ordinance, 2002 before the Labour Court and same were allowed vide impugned judgment and employees were reinstated with all back-benefits---Registrar, Service Tribunal intimated employees that their appeals had abated in view of the judgment of Supreme Court---Order of abatement of employee's appeals passed by Registrar Service Tribunal, had no legal sanctity---Impugned judgment passed by Labour Court, was also not maintainable, which was set aside---Order passed by the Registrar was also declared null and void---Appeals of employees would be deemed to be pending before Service Tribunal and issue of their abatement would be decided by the Service Tribunal after hearing the parties, in the light of principles laid down in the judgments of the apex Court---Office would remit the record to Service Tribunal.

Muhammad Mubeen-ul-Islam v. Federation of Pakistan PLD 2006 SC 602 and Raja Riaz v. Chairman, Pakistan Space and Upper Atmosphere Research Commission, Karachi 2008 SCMR 402 ref.

Syed Irfan Haider Shamsi for Appellant.

Ch. Muhammad Shafique and Muhammad Ilyas for Respondents.

Date of hearing: 14th October, 2008.

2009 P L C 27

[Lahore High Court]

Before Hafiz Tariq Nasim, J

MUHAMMAD IQBAL

Versus

STATE BANK OF PAKISTAN and another

Labour Appeal No.241 of 2007, decided on 16th July, 2008.

Industrial Relations Ordinance (XCI of 2002)---

----Ss. 46 & 48---Grievance petition---Appeal---Employee, who was dismissed from service, filed grievance petition, but during pendency of said grievance petition section 2-A of the Service Tribunals Act, 1973, having been introduced, grievance petition was returned to the employee---Employee, thereafter approached Service Tribunal, but appeal filed by the employee was dismissed by the Service Tribunal on the point of maintainability---Employee assailed order of Service Tribunal before the Supreme Court, which remanded case to Service Tribunal for decision on merits and the employee could get relief only to the extent of conversion of his penalty of dismissal into compulsory retirement from Service Tribunal---Employee, however, could not get benefit from the judgment of the Service Tribunal, which was in the field---Employee tried his best for pensionary benefits, but with no result whereafter employee rushed to the Labour Court---Validity---Firstly the employees of the respondent/ Bank, were regulated under the statutory rules, but later on those statutory rules were converted into non-statutory rules---Such conversion could not hold the field because statutory rules could not become non-statutory through resolution of Directors of the Bank---Bank's rules and regulations, which were statutory, could not be treated as non-statutory just to satisfy to the whims and moods of the Bank's Authorities, unless and until conversion of the same be in line with law---In the present case whatever be the situation of the employee who was an employee of the Bank, he remained amenable to the jurisdiction of Service Tribunal---Judgment of the Service Tribunal whereby the penalty of dismissal was converted into compulsory retirement would hold the field and it was obligatory on the Bank Authorities to implement the same in letter and spirit---Question was as to how in the appeal which was against the judgment of Labour Court, said direction could be issued to the Bank---High Court had ample powers to issue a direction to a person' as defined under Art.199 of the Constitution, and respondent-Bank fell within said definition ofperson'---Respondent-Bank was directed to grant pensionary benefits to the employee within specified period.

Muhammad Idrees v. Government 2007 PLC (C.S.) 1331; Muhammad Mubeen-ul-Islam v. Federation of Pakistan PLD 2006 SC 602 and Secretary Revenue v. Muhammad Saleem 2008 SCMR 948 rel.

Sardar Muhammad Ramzan for Appellant.

Rehan Bashir for Respondents Nos.1 and 2.

2009 P L C 36

[Lahore High Court]

Before Maulvi Anwarul Haq, J

ICI PAKISTAN LIMITED

Versus

Syed SHABBIR HUSSAIN SHAH and another

Labour Appeal No.77 of 2004, heard on 27th June, 2008.

Industrial Relations Ordinance (XCI of 2002)---

----Ss. 46 & 48---Appeal---Grievance petition---Unfair labour practice---Dismissal from service---Respondent contested election of labour union and he was dismissed from service without any written order---Grievance petition filed by respondent was allowed by Labour Court and he was reinstated in service with back-benefits---Validity---Dismissal order having been passed in violation of the provisions of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, was correctly set aside by Labour Court---Though proceedings were commenced against respondent by the employer, service of charge sheet as well as conduct of inquiry and its proceedings were admitted but the inquiry was allegedly not fair---High Court declined to set aside the judgment passed by Labour Court but allowed the employer to proceed from the admitted stage of proceedings against respondent---Appeal was dismissed accordingly.

Messrs Shell Pakistan Limited through Legal Affairs Advisor and Attorney v. Aurangzeb Khan 2005 PLC 424 ref.

Khurram M. Hashmi for Appellant.

Ch. Sadiq Muhammad Warriach for Respondents.

Date of hearing: 27th June, 2008.

2009 P L C 44

[Lahore High Court]

Before Hafiz Tariq Nasim, J

SHAMIM AHMAD KHAN

Versus

ASSISTANT ENGINEER PHONES, DIGITAL (INTERNAL), DEFENCE EXCHANGE, (PTCL), LAHORE and 5 others

Labour Appeal No.351 of 2007, heard on 1st July, 2008.

Industrial Relations Ordinance (XCI of 2002)---

----Ss. 46 & 47(3)---Grievance notice---Filing grievance petition without serving grievance notice on employer---Appeal---Grievance petition filed by employee was 'dismissed by the Labour Court on the ground that employee had not served the employers a grievance notice which otherwise was a mandatory requirement---Grievance notice would mean "to bring into the notice of employer the very grievances" which the aggrieved party intended to be redressed; irrespective of the fact as to whether it was named as departmental appeal, representation, or review/grievance notice---Employee, having filed departmental appeal, dismissal of his petition by the Labour Court, could not be held to be justified---Aggrieved person could not be non-suited on that hyper-technical objection when he had already brought his grievance into the notice of his employer---Judgment passed by the Labour Court was set aside and case was remanded to the Labour Court for fresh decision on merits.

Muhammad Mubeen-ul-Islam and others v. Federation of Pakistan PLD 2006 SC 602; Mir Jaffar v. Government of N.-W.F.P. Transport Department through Secretary and another 2000 PLC 472; Allied Bank of Pakistan Ltd. through Attorneys v. Syed Nasir Abbas Naqvi 2003 PLC 20; PLD 1985 SC 46; 1998 SCMR 1618; PLD 1995 SC 406; 1995 SCMR 435; PLD 1995 546=1995 PLC (C.S.) 1191 ref.

Asmat Kamal Khan for Appellant.

Umar Sharif for Respondents.

Date of hearing: 1st July, 2008.

2009 PLC 50

[Lahore High Court]

Before Zubda-tul-Hussain, J

M.D. ESCORTS PAKISTAN LTD.

Versus

MUNAWAR KHALIQ

Labour Appeal No.67 of 2008, heard on 16th July, 2008.

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

----Ss. 2(xvi) & 46---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.12(3)---Termination of service---Grievance petition---Maintainability---Raising industrial dispute--Employee whose services were terminated with immediate effect, filed grievance petition against such termination of service, which having been .accepted by the Labour Court, employers had filed appeal against the same---Counsel for employer, during arguments, had tried to make out a case that the grievance of the employee was devoid of any industrial dispute, which was condition precedent for invoking the jurisdiction of the Labour Court under Industrial Relations Ordinance, 2002---Said contention of counsel for the employers was misconceived---Right to seek redress had been made available to the "workman" under the provisions of S.O.12(3) of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968---Services of the employee having not been terminated in connection with or in consequence of an industrial dispute, the right to seek redressal of grievance was available to him under S.O.12(3) of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968.

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

----S. 2(x), (xxx)---Industrial and Commercial. Employment (Standing Orders) Ordinance (VI of 1968), S.2(c), (i)---`Workman', status of---Determination of---Status of "workman" had a direct nexus with the status of an employer because "worker" or "workman" was a person who did not fall with the definition of "employer"---Employer, essentially performed managerial and supervisory functions---Question whether a person was or not a "workman" would depend not upon his designation, but on the nature of his duties mainly performed by him---Nomenclature of the post was not the determining factor in that behalf, definition of "Workman" contained in Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, indicated two categories of persons who could be employed in an Industrial or Commercial establishment for manual or clerical work---Such person could be employed to do skilled or unskilled manual work or skilled or unskilled clerical job according to his assignment---Such was, in circumstances a question of fact to be determined on the basis of the evidence of the parties produced by them in the case.

(c) Evidence---

----Production of evidence---If a party to the litigation, instead of producing his own evidence, -would rely upon the evidence of the other party, then, it had to show that the averments of the oral and documentary evidence produced by the other party were in its favour, otherwise the record would be consisting of only one sided unrebutted evidence.

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

----Ss. 2(xxx), 46 & 48---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(i) & S.O.12(3)---Termination of service---Grievance petition---Status of workman', determination of---Services of the employee having been terminated with immediate effect on the ground that he having become surplus, was no more required, he filed grievance petition, which was objected to by the employer on the ground that employee was notworkman'---Employee who was recruited as a `purchaser', subsequently his post of purchaser was re-designated as a Purchase Manager, but details given by the employee had shown that despite change of nomenclature of the post no difference occurred in the nature and performance of his duties---Manual work which employee had been performing as purchaser, he continued to perform even as Purchase Manager---Stock entries; receipts and dispatch of bills; tabulation of the material, was all part of the duties of the Purchaser and same remained so even among his duties as a Purchase Manager---Even if there was some rise in the pay or status of the employee in terms of the nomenclature of the post, no substantial difference was in the nature of the duties performed by him---In case the Purchase Manager also performed manual and clerical functions, the shifting of the employee from the post of the Purchaser had no effect on his status as a "workman"---Employee enjoyed no administrative privileges nor had any supervisory capacity in his functions; he remained subordinate to the same hierarchy and virtually had the old status of "workman"---Mere fact that some entries in some Registers were not in his hand, could not mean that he had been raised to the status of a Manager or a supervisor---Mere fact that an employee had no power of hire and fire could not mean that he was a "workman"" because in many cases even a supervise 4/administrator, could not have power to hire and fire the subordinates---Re-designation of the post could have a bearing on the determination of the status of a "workman", only when it was followed by substantial change in the nature of the duties---Both in law and fact, re-designation of the post of the employee did not imply his elevation to a higher managerial, administrative or supervisory post---Grievance petition filed by employee, was maintainable, in circumstances.

(e) Words and phrases---

----`Re-designation', meaning and connotation; explained.

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

----Ss. 46 & 48---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.12 & 13---Termination of service on ground of re-organization of the establishment---Grievance petition---Appeal---Services of the employee were terminated with immediate effect on ground that due to re-organization of establishment, employee, who had become surplus, was no more required---In the process of re-organization, the nature of the functions having not undergone any substantial change, employee could not be termed as superfluous---Computerization of the work also had no practical impact on the situation because only one computer was available in the establishment, which was not sufficient to cater its total requirements; had that been the reason for ousting the employee, a large number of employees could have become superfluous, but establishment had failed to produce any evidence to that effect---Despite acclaimed computerization, the manual work was the basic operation source in the establishment--Standing Order 12(3) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 had provided that the services of a "workman" would not be terminated nor would a workman be removed, retrenched, discharged or dismissed from service, except by an order in writing which would explicitly state the reason for the action taken---Impugned order was totally devoid of reasons for termination of the service of the employee---Such was in clear violation of the requirements of the law---By virtue of Standing Order 12(3) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 for the purpose of removal etc., of a workman, there should be an order in writing; order must show the reasons for termination; and the reason for termination must be given explicitly---Reason for termination, if not given clearly and fully, it would not be explicit---Phrase "services were no more required" or "as found being surplus" only would connote decision, but not the reason for such decision---Reason was supposed to imply the statement of the facts and circumstances which might have weighed with the employer for the dispensation of the services of his employee---In case of real re-organization of the administrative set up, the management, no doubt had a right to terminate the services of employees on account of modernization, management, computerization etc., but such modernization etc., must be real and bona fide and if the employees were retrenched or removed etc., only in the name of modernization and technically no substantial reorganization had taken place, such actions were liable to be set at naught by the courts---Employer having not introduced any material or substantial changes or improvement in the organization nor had substantially computerized the establishment, the termination of the employee was totally unjustified--Grievance petition filed by the employee against termination of his service, was rightly accepted by the Labour Court.

Muhammad Rauf v. Messrs Makran Fisheries Ltd. and another 1981 SCMR 631; Farooq Ahmed v. Delta Shipping (Pvt.) Ltd. 2006 PLC 102 and Aley Nabi and others v. Chairman, Sindh Labour Court and another 1993 SCMR 322 ref.

Rao Sami-ud-Din Ahmed for Appellant.

M.A. Hameed Awan for Respondent.

Date of hearing: 16th July, 2008.

2009 P L C 64

[Lahore High Court]

Before Hafiz Tariq Nasim, J

UNITED BANK LIMITED through Attorneys and 3 others

Versus

UMEED ALI

Labour Appeal No.127 of 2008, heard on 22nd July, 2008.

Industrial Relations Ordinance (XCI of 2002)---

----Ss. 46 & 47(3)---Compulsory retirement---Appeal---Respondent/employee while serving as cashier in Bank was charge-sheeted, inquiry was conducted against the employee and Inquiry Committee recommended stoppage of three increments, but the Bank Management disagreeing with the Committee's recommendation, compulsorily retired the employee from service---Employee filed grievance petition against order of compulsory retirement and for his reinstatement in service with back-benefits---Labour Court accepted grievance petition of employee to the extent that punishment of stoppage of three increments would remain intact and employee would be reinstated in service and that as the punishment had remained intact, employee would be entitled to the back- benefits to the tune of 50%---Both employee and Bank filed their respective appeals---Bank requested for upholding the order of compulsory retirement of employee in appeal and for setting aside impugned judgment, whereas employee in his appeal had requested for his reinstatement without any penalty of stoppage of increment and with 100% back-benefits---Validity---Wording of charge-sheet against the employee conveyed a different message than the actual happening and that very situation was minutely dealt with by the Labour Court in its impugned judgment---Finding of the Labour Court was that employee did not embezzle/misappropriate any amount as alleged by the Bank---Some negligence on the part of employee, however was found by the Labour Court and when an employee was found negligent, then major penalty could not be imposed, but minor penalty would be a sufficient one, which was imposed as per recommendations of Inquiry Committee and that was upheld---When reinstatement was made with even a minor penalty, it would not be appropriate to burden that employer for granting the employee all the back-benefits---Judgment of the Labour Court was modified to the extent of 50% back-benefits granted by the Labour Court to employee---Employee would be reinstated into service, but with a minor penalty of stoppage of three increments and without any back-benefits.

2008 SCMR 899 and 2001 SCMR 921 ref.

Sayed Fazal Mahmood for Appellants.

Abdul Hakeem Awan for Respondent.

Date of hearing: 22nd July, 2008.

2009 P L C 75

[Lahore High Court]

Before Sh. Azmat Saeed, J

MCB BANK LTD. through Attorney

Versus

SAAD AKHTAR QURESHI

Labour Appeal No.417 of 2005, decided on 28th February, 2006.

Industrial Relations Ordinance (XCI of 2002)---

----Ss. 2(xxx), 46 & 48---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(i) & S.O..15(3)---Dismissal from service---Grievance petition---Status of workman---Determination of---Labour appeal---Employee, who was posted as Branch Manager in the Bank, was dismissed from service after charge-sheeting him on absence from duty and processing of false inward remittance/advance payment---Employee filed grievance petition against order of his dismissal from service, which was accepted by the Labour Court and impugned order was set aside and employee was reinstated in service along with all back-benefits---Bank filed appeal against judgment of Labour Court contending that Labour Court had no jurisdiction upon the matter as employee was not a 'workman' in view of the duties performed by him---Bank had contended that employee was a power of attorney holder on behalf of the Bank, which fact alone was sufficient to establish that he was not a `workman'---Bank alleged that evidence produced by it had been ignored by the Labour Court and the impugned judgment suffered from obvious non-reading of evidence---In order to determine the status of the employee, it was necessary to identify the nature of duties and authorities entrusted to and exercised by him and to prove the respective point of view, both parties in addition to oral evidence produced a host of documents---Most crucial piece of evidence. on the record was the alleged power of attorney executed by the Bank in favour of employee, which had been ignored by the Labour Court on the ground that Bank had not produced any witness in whose presence said power-of-attorney was signed by the employee---Labour Court had ignored the fact that the said document did not require any signature on behalf of the employee, when its existence had been admitted by him during the course of his cross-examination---Objection to its admissibility had not been adjudicated upon in' its true perspective---Documents produced by the Bank had not been taken into consideration by the Labour Court, whereas adjudication of the' same was relevant and vital for the resolution of the controversy before the Labour Court as well as the High Court as to identify the nature of the duties performed by the employee---Power of attorney was of vital importance and of great relevance and ignoring the same would obviously tantamount to non-reading of the evidence on the record---Impugned judgment was set aside and case was remanded to the Labour Court for fresh decision after adjudicating upon each and every objection to the documents produced by the Bank keeping in view the statement of the employee and the law applicable.

National Bank of Pakistan v. Punjab Labour Court No.5; Faisalabad and 2 others 1993 SCMR 672; Ganga R. Madhani v. Standard Bank Ltd. and others 1985 SCMR 1511; Hitachi Ltd. and another v. Rupali Polyester and others 1998 SCMR 1618; National Bank of Pakistan v. Punjab Labour Court No.7, Gujranwala and others 1992 SCMR 1891; Dost Muhammad Cotton Mills Ltd. v. Muhammad Abdul Ghani and another 1979 SCMR 304; Muslim Commercial Bank Ltd. and others v. Mahmood Ahmad Butt and others 1997 SCMR 1261 and Executive Engineer and Highway Division; Thatta v. Muhammad Yamin and 2 others 2000 PLC 32 ref.

Javed Akbar for Appellant.

Rana Abdul Majid Khan and Sh. Tariq Mahmood for Respondent.

2009 P L C 259

[Lahore High Court]

Before Syed Shaheen Masud Rizvi, J

EXECUTIVE ENGINEER

Versus

AKHTAR ABBAS

F.A.O. No.26/L of 2006, decided on 7th May, 2008.

Industrial Relations Ordinance (XCI of 2002)---

----Ss. 46 & 48--Appeal against order of Labour Court---Limitation---Delay in filing appeal---Condonation of delay---Employer in the appeal had challenged order passed by the Labour Court wherein grievance petition of employee was accepted and he was reinstated in service---Appeal was 65 days beyond limitation prescribed under the law, though appellant had tried its best to explain the delay---Administrative grounds could not be made basis for condoning the delay---Appeal was dismissed as being time barred.

Malik Muhammad Qasim Khan, A.A.-G for Appellant.

Muhammad Abdul Wadood for Respondents.

2009 P L C 288

[Lahore High Court]

Before Hafiz Tariq Nasim, J

FESCO (WAPDA) and others

Versus

ARSHAD MAHMOOD MIR

Labour Appeal No.148 of 2007, decided on 3rd December, 2008.

Industrial Relations Ordinance (XCI of 2002)---

----Ss. 46 & 48---Labour appeal, competency of---Only point involved in case was whether the respondent/employee, who was proceeded against under the Removal from Service (Special Powers) Ordinance, 2000, could invoke the jurisdiction of Labour Court or not---Respondent's appeal before the Service Tribunal was held to be abated through a notice issued by the Registrar of the Tribunal, meaning thereby that same was not decided through a judicial order despite the fact that respondent approached the Labour Court; but the fact remained that if an employee was proceeded under the provisions of Removal from Service (Special Powers) Ordinance, 2000, the forum for the redressal of his grievances was Service Tribunal---As both the parties had admitted that respondent/employee's appeal was pending before the Service Tribunal, which was not decided on merits, it would be appropriate to set aside the impugned judgment passed by the Labour Court on the point of jurisdiction.

Muhammad Mubeen-us-Salam and others v. Federation of Pakistan through Secretary, Ministry of Defence and others PLD 2006 SC 602 and Raja Riaz v. Chairman Pakistan Space and Upper Atmosphere Research Commission, Karachi 2008 SCMR 402 ref.

Aurangzeb Mirza for Appellant.

Syed Ejaz Qutab for Respondent.

2009 P L C 290

[Lahore High Court]

Before Hafiz Tariq Nasim, J

MASOOD AKHTAR

Versus

WATER AND POWER DEVELOPMENT AUTHORITY Labour

Appeal No.404 of 2007, decided on 12th September, 2008.

Industrial Relations Ordinance (XCI of 2002)---

----Ss. 46 & 48---Dismissal of grievance petition---Labour appeal---Abatement of appeal---Only point involved in the case was whether the Labour Court was justified in dismissing the appellant's grievance petition or not---Supreme Court had once for all resolved the issue holding that Registrar/Deputy Registrar of the Tribunal had no authority to pass an abatement order in any appeal, whereas it should have been presented before a Bench of the Tribunal---In the present case, appellant approached the Service Tribunal, his appeal was ordered to be abated by the Registrar of the Tribunal, which could not have been done as per terms of the judgment of Supreme Court---Labour Court did not commit any illegality while passing impugned order.

Mian Mahmood Hussain for Appellant.

Muhammad Iqbal Khokhar for Respondent.

Date of hearing: 12th September, 2008.

2009 P L C 294

[Lahore High Court]

Before Hafiz Tariq Nasim, J

MUHAMMAD ASHRAF (DRIVER)

Versus

CHIEF ENGINEER (IRRIGATION), SARGODHA ZONE SARGODHA and another

Writ Petition No.8027 of 2009, heard on 26th May, 2009.

Industrial Relations Ordinance (XCI of 2002)---

----Ss. 46 & 48---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.15---Constitution of Pakistan (1973), Art.199---Constitutional petition--Dismissal from service---Non-­implementation of order of reinstatement passed by High Court in appeal---Petitioner who was dismissed from .service, filed grievance petition before labour court against dismissal order, which petition having been dismissed by the labour court, petitioner had filed labour appeal before High Court---High Court allowing appeal ordered reinstatement of petitioner into service---Order passed by the High Court in appeal for_ reinstatement of the petitioner, having not been implemented he had filed constitutional petition against such non­-implementation---Contention of the counsel for the authorities was that as the judgment of the High Court passed in appeal had been challenged before the Supreme Court and the matter was pending for final adjudication, High Court should lay its hands off the matter---Validity---If the High Court would lay its hands off the matter after a petition for leave to appeal before the Supreme Court had been filed, that would not only infringe the rights of an aggrieved party, but would also open a door for wilful abuse of the High Court's order---If High Court would lay its hand off the matter after the petition for leave to appeal was filed (provided no stay had been granted), it would literally mean that the parties were now free to implement the order of the High Court at their own will which would not only further inflict injustice upon the party in whose favour High Court had passed the judgment, but would also leave the High Court totally and practically incapacitated of its powers to require the implementation of its order--No stay order restraining or suspending the opinion of the judgment of the High Court was passed by the Supreme Court---Constitutional petition was accepted with the direction to the authorities to fully implement the decision of High Court, within specified period.

WAPDA and others v. Qari Muhammad Feroze and others 2009 SCMR 396 ref.

Ch. Muhammad Arshad Ramay for Petitioner.

Naeem Qureshi, Legal Advisor for Respondent No.1.

Akhtar Ali Kureshi, A.A.-G. with Tahir Saleem, S.E. for Respondent.

Date of hearing: 26th May, 2009.

2009 P L C 304

[Lahore High Court]

Before Ijaz Ahmad Chaudhry, J

Messrs LONE CHINA (PVT.) LIMITED through Chief Executive

Versus

PRESIDING OFFICER, PUNJAB LABOUR COURT NO.7, GUJRANWALA and 2 others

Writ Petition No.10847 of 2009, decided on 3rd June, 2009.

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

----S. 15(2)---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1958), S.Os.8, 10-C & 12(1)(6)---Constitution of Pakistan (1973), Art.199---Termination of service---Claim for outstanding dues---Respondent/employee who was terminated from service, having not been paid his outstanding dues with regard to notice, pay, gratuity, compensation of annual leave, bonus and overtime, filed application for payment of said outstanding dues, which was accepted by the Authority under the Payment of Wages Act, .1936---Said order of Authority having been upheld by the Labour Court, employers had filed constitutional petition---Contention of petitioner employers was that employee was not permanent employee, but was daily wager and impugned order could not be passed, only by Authority as it had no power to pass such order and said order could be passed only by the Labour Court---Employee who worked for more than 17 years with the employers, was permanent employee---Both the forums below had arrived at a concurrent finding of fact that employee was not a daily wager as she had continuously worked for more than nine months and she was a permanent worker after expiry of period of nine months in terms of clause (b) of paragraph (1) of the Schedule to Industrial and Commercial Employment (Standing Orders) Ordinance, 1968---Both orders impugned in the constitutional petition did not suffer from any illegality or irregularity, but were supported by the evidence on the record and the right provisions of law had been applied, which were not open to any exception by the High Court in exercise of its constitutional jurisdiction.

Abdul Sattar and another v. Sui Northern Gas Pipelines Limited and others 2001 PLC 583 and Sui Northern Gas Pipelines Ltd: v. Abdul Sattar and 2 others 1996 PLC 162 ref.

Abdul Hakeem Awan for Petitioner.

2009 P L C 340

[Lahore High Court]

Before Hafiz Tariq Nasim, J

MASOOD AKHTAR

Versus

WATER AND POWER DEVELOPMENT AUTHORITY (WAPDA) and others

Review Petition No.7 of 2008 (in Labour Appeal No.404 of 2007), decided on 21-11-2008.

Industrial Relations Ordinance (XCI of 2002)---

----Ss. 46 & 48---Grievance petition---Abatement of appeal---Review---Earlier, petitioner filed appeal before Federal Service Tribunal, but Registrar of the Tribunal intimated him that in view of judgment (PLD 2006 SC 602) his appeal stood abated---Petitioner promptly served grievance notice and then filed grievance petition before the Labour Court---Respondents raised an objection in respect of competency of grievance petition on the ground that in view of Supreme Court judgment reported as 2008 SCMR 402, judicial order should have been passed by the Service Tribunal with regard to abatement of appeal, whereas no such judicial .order was passed; and only a notice by the Registrar of Service Tribunal was issued---Contention was that without having judicial order of the Service Tribunal, grievance petition before the Labour Court could not have been processed---Labour Court dismissed the grievance petition filed by the petitioner on that score-only, which was assailed in the High Court in appeal, and same was dismissed, which was sought to be reviewed---Validity---Labour Court instead of dismissing grievance petition, should have adjourned the case till passing of judicial order by the Service Tribunal, whereas Labour Court decided the matter in haste and did not wait judicial order of Service Tribunal in respect of abatement of the petitioner's appeal resulting into miseries faced by the petitioner---Order passed by the Labour Court was nullity in the eye of law---Judgment passed in appeal was reviewed and case was remanded to the Labour Court with the direction to decide same afresh on merits.

Muhammad Mubeen-us-Salam and others v. Federation of Pakistan through 'Secretary, Ministry of Defence and others PLD 2006 SC 602; Raja Riaz v. Chairman Pakistan Space and Upper Atmosphere Research Commission, Karachi 2008 SCMR 402; Muhammad Idrees v. Agricultural Development Bank of Pakistan and others 2007 PLC (C.S.) 1332; Muhammad Asghar v. Federal Service Tribunal and 3 others PLD 1996 SC 195; Pakistan through General Manager, PAFI, Lahore v. Messrs Agro Marketing Corporation and others 1981 CLC 443 and Mrs. Munawar Sani v. Director Army Education 1991 SCMR 135 ref.

Mian Mahmood Hussain for Petitioner.

Muhammad Iqbal Khokhar for Respondents.

2009 P L C 357

[Lahore High Court]

Before Raja Muhammad Shafqat Khan Abbasi, J

BAYRAM AVARI

Versus

PRESIDING OFFICER, PUNJAB LABOUR COURT NO.9, MULTAN and another

First Appeal from Order No.33 of 2008, decided on 16th June, 2009.

Industrial Relations Ordinance (XCI of 2002)---

----S. 48---Appeal to High Court---Employer had called in question order passed by Labour Court, whereby petition by employee had been allowed---Labour Appellate Tribunal having been constituted in terms of S.55 of Industrial Relations Act, 2008, it was appropriate that employer should approach the relevant forum---High Court, instead of adjourning the case, disposed of the same-with the direction to the employer to file an appeal before Labour Appellate Tribunal within specified period---Operation of the impugned order would remain suspended to enable the employer to approach relevant forum.

Malik Muhammad Tariq Rajwana for Appellant.

2009 P L C 79

[National Industrial Relations Commission]

Before Justice (Retd.) Tanvir Ahmed Khan, Chairman, Raja Abdullah Khan, Member and Muhammad Ali Gardezi, Secretary Labour Punjab/Member

LIAQUAT ALI

Versus

MANAGING DIRECTOR, SUI NORTHERN GAS PIPELINES LTD. and 2 others

Case No.12(84) of 2006-L, decided on 23rd April, 2007.

Industrial Relations Ordinance (XCI of 2002)---

----Ss. 46(4)(e) & 52---Unfair labour practice by the employer---Appeal---Appellant/employee had alleged that when a post of Assistant Record Officer fell vacant, his name was recommended for promotion to said post being eligible on account of seniority and experience, but instead of appellant another employee was promoted to that post---Appellant had alleged that he was ignored due to his lawful trade union activities---Appellant had contended that impugned order was liable to be set aside as same had been passed by the Member of National Industrial Relations Commission on surmises and conjectures and was not based on record and that appellant had been discriminated in the matter of promotion due to his lawful trade union activities---Validity---Impugned order had been passed by Member of the Commission after carefully considering the evidence on record which fully supported his view point---Counsel for appellant had admitted that appellant was considered for promotion by the authorities along with 60 others, but appellant was not found fit for promotion---Promotion was not a right of the employee, but his consideration for promotion was a must---Appellant, in circumstances was not discriminated in matter of promotion due to any of his alleged lawful trade union activities on his part---Appeal was dismissed.

Farooq Zaman Qureshi for Appellant.

2009 PLC 87

[National Industrial Relations Commission]

Before Syed Akhtar Naqi Naqvi, Senior Member

MAQSOOD IQBAL

Versus

S. N. G. P. L. and Others

Cases Nos.4A(124 of 2005-L and 24(141) of 2005-L, decided on 26th March, 2008.

Industrial Relations Ordinance (XCI of 2002)---

----S. 49(4)(e)---Unfair labour practice by the employers---Petitioner/employee in his petition had assailed impugned order whereby respondents were promoted, while he was ignored---Petitioner had alleged that he was ignored due to his lawful trade union activities---No convincing evidence was on record to the effect that petitioner was a trade unionist in a manner that his trade union activities had annoyed the employers so much that they were out and out to keep him away from promotion---Neither any office-bearer of his trade union had been produced to verify his trade union activities nor he himself proved any such exercise by way of trade union activities, which could justify his claim that he had been ignored due to those trade union activities---Evidence on record had fully established that petitioner was not an active trade unionist and his activities, as such were not the ground for ignoring him for promotion---Provisions of Industrial Relations Ordinance, 2002, did not confer general jurisdiction upon the National Industrial Relations Commission to entertain all kinds of grievance petitions though those could not be relatable to unfair labour practice, but interference could be made in matters of victimization of a worker on account of his trade union activities---Solitary statement of petitioner that he had been victimized for his trade union activities, was not enough to hold that he was involved in any such trade union activities---Since the petitioner had not been able to establish any mala fide due to acts of unfair labour practice on part of the employers for ignoring the petitioner due to his trade union activities, his petition was dismissed.

PLD 1988 SC 53; 2001; 2001 PSC 17Q8 and 2004 PLC (C.S.) 724 rel.

Asif Iqbal for Petitioner.

Salim Baig for Respondents Nos.1 to 3.

Ch. Umer Hayat for Respondents Nos.4 to 10.

2009 P L C 232

[National Industrial Relations Commission]

Before Bashir Ahmed Memon, Member

SINGER PAKISTAN LIMITED through Director Personnel and Administration

Versus

SINGER INDUSTRIES LABOUR UNION and others

Petitions Nos.4A(30) of 2007/K/24(42) of 2007/K, decided on 27th April, 2009.

Industrial Relations Ordinance (XCI of 2002)---

----Ss. 49(4)(e) & 64---National Industrial Relations Commission (Procedure and Functions) Regulations, 1973, Regln.32(2)(c)---Unfair labour practice---Petition against---Interim prohibitory order---Confirmation of---Petitioners/employers had alleged in their petition filed under S.49(4)(e) of Industrial Relations Ordinance, 2002 that during pendency of conciliation proceedings, Union and its office-bearers members started committing acts of unfair labour practice in order to pressurize and compel the management to accept their demands---Employers had asserted that employees displayed the banner outside the factory levelling some allegations against the management---Acts of the employees in circumstances were in violation of S.64(1)(d) & (f) of Industrial Relations Ordinance, 2002, which were acts of unfair labour practice---Employer had prayed to deal with the employees and requested for restraining order in respect of displaying the banners, playcards, posters, wall chalking etc. near the factory and head office and Commission should also pass restraint order restraining the union and its workers not to raise slogans, demonstration and acts aimed to pressurize the management for the purpose of acceptance of their demands---Validity---Employees were resorting to acts of unfair labour practice---When the matter regarding conciliation was already pending before the area Conciliator, then there was no justification to display the banners which would amount to acts of creating pressure upon the management for acceptance of their demands---Employers had made out a prima facie case for grant of relief---Interim prohibitory order passed by Bench of Commission was confirmed, in circumstances and parties were directed to adduce their evidence in respect of their contentions.

Faisal Mahmood Ghani for Petitioner.

M.A.K. Azmati for Respondents.

2009 P L C 241

[National Industrial Relations Commission]

Before Bashir Ahmed Memon, Member

K.E.S.C. DEMOCRATIC MAZDOOR UNION through General Secretary

Versus

K.E.S.C. through CEO and 4 others

Petition Nos.4A(73) of 2006/K/24(87) of 2006/K, decided on 7th April, 2009.

Industrial Relations Ordinance (XCI of 2002)---

----Ss. 20 & 49(4)(e)---National Industrial Relations Commission (Procedure and Functions) Regulations, 1973, Regln.32(2)(c)---Petition for issuance of direction to recognize the status of Collective Bargaining Agent of the union---Application for grant of stay order---National Industrial Relations Commission, was vested under S.49(4)(e) with the powers to deal with the cases specified under Ss.63 & 64 of National Industrial Relations Ordinance, 2002---Petition to issue direction to recognize the status of Collective Bargaining Agent of the union, did not fall within the jurisdiction of the Bench of the Commission---Petition was not maintainable on that score----Even on merits no case had been made out in said petition as only vague and bald allegations were made without specifically mentioning any act of unfair labour practice---Collective Bargaining certificate in favour of the petitioner union was issued for the period of two years i.e. 24-2-1999 to 23-2-2001; whereas the petitioner on 31-10-2006 claimed that it was Collective Bargaining Agent---At the time of filing of petition, the referendum proceedings were already ordered to be held by the National Industrial Relations Commission---Petition in circumstances was not maintainable and the prayer sought by it could not be granted---While dismissing stay application filed under Regln.32(2)(c) of National Industrial Relations Commission (Procedure and Functions) Regulations, 1973, said petition was also dismissed being not maintainable.

2007 PLC 250 ref.

S.M. Ishaque, General Secretary for Petitioner.

Faisal Mahmood Ghani for Respondents.

2009 P L C 249

[National Industrial Relations Commission]

Before Bashir Ahmed Memon, Member

ABDUL SATTAR and others

Versus

MUSLIM COMMERCIAL BANK LTD. through President

Petition No.4A(13) of 2009/K/24(20) of 2009/K, decided on 29th April, 2009.

Industrial Relations Ordinance (XCI of 2002)---

----S. 49(4)(e)---National Industrial Relations Commission (Procedure and Functions) Regulations, 1973, Regln.32(2)(c)---Unfair labour practice by the employers---Petition against---Interim prohibitory order---Application for---Petition under S.49(4)(e) of Industrial Relations Ordinance, 2002 against alleged unfair labour practice, had been filed by three employees in their individual capacity and it had not been filed by the union; and said three employees in their application under Regln.32(2)(c) of National Industrial Relations Commission (Procedure and Functions) Regulations, 1973 had sought prohibitory order in respect of members of the union---If any stay order was granted as prayed by the said three employees, in that way same would stop the entire working of the employers/Bank throughout the country---Such type of relief would not be appropriate and legal---Dispute was between two sets of office-bearers of the union and the management was not the party---Petitioners, in circumstances, unnecessarily trying to drag the employers in the litigation which was not justified---Petitioners at the most had made out a prima facie case in their favour to the extent of their grievance---Interim prohibitory order passed by the Bench of the Commission was confirmed only to the extent of the petitioners and the interim prohibitory order granted for the entire members of the union was vacated.

2005 PLC 88; 2002 PLC 614; PLD 1961 Dacca 389 and 2006 SCMR 562 ref.

Ch. Lateef Saghar for Petitioners.

Faisal Mehmood Ghani for Respondents.

2009 P L C 298

[National Industrial Relations Commission]

Before Bashir Ahmed Memon, Member

ABDUL AZIZ BALOCH and others

Versus

Messrs ADAMJEE INSURACNE COMPANY LTD. through Managing Director and others

Petitions Nos.4A(1), 24(1), 4A(2), 24(2), 4A(3), 24(3), 4A(4), 24(4), 4A(5), 24(5) of 2009/K, decided on 16th January, 2009.

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

----Regln. 32(2)(c)---Application for suspension of operation of retrenchment order and to restrain the management from committing act of unfair labour practice---Regulation 32(2)(c) of National Industrial Relations Commission (Procedure and Functions) Regulations, 1973, deals with the situation when an act of unfair labour practice was likely to be committed, but in the instant case said Regulation was not attracted as the management had already issued retrenchment orders of the applicants and the same had been received and implemented---Where a case of unfair labour practice was likely to occur the Commission had the jurisdiction to pass prohibitory order but in the present case applicants had themselves produced their retrenchment letter along with application, which meant that they were no more workmen of the employer company---No question of commission of unfair labour practice against them---After the action was taken the applicants should have moved the labour court concerned---Counsel for applicants had not been able to produce law where the grant of stay in similar circumstances was admissible---Applicants had been removed from service and in the said situation, if the retrenchment orders were suspended, it would amount to status quo ante or issuing a mandatory relief, which could not be granted under provisions of Regln.32(2)(c) of National Industrial Relations Commission (Procedure and Functions) Regulations, 1973---Applicants having no case for interim relief, their applications, were dismissed.

PLD 1978 SC 220; 1997 SCMR 1508; 1970 PLC 671; 1970 SCMR 491; Corn Pak Ltd. v. Corn Pak Employees Union 1998 PLC 403 and Intizar Ahmed v. M.C.B. and others 2006 PLC 380 ref.

M.A.K. Azmati for Petitioner.

Shahid Anwar Bajwa for Respondents.

2009 P L C 343

[National Industrial Relations Commission]

Before Saeed Farooq Khan, Member

HABIB BANK EMPLOYEES' FEDERATION through Senior Vice-President

Versus

HABIB BANK LTD. through President and another

Case No.4A(56)/07-Q/24(49)/07-Q, decided on 29th May, 2008.

Industrial Relations Ordinance (XCI of 2002)---

----S. 49(4)(e)---National Industrial Relations Commission (Procedure and Functions) Regulations, 1973, Regln.32(2)(c)---Unfair labour practice by the employer---Application for confirmation of status quo---Applicant/Employees' Federation which was granted status quo had filed application for confirmation of said status quo---Submission of counsel for applicant was that certain measures had been taken and were being taken by the management, which were "unfair labour practice" and victimization and argued that one window operation, was introduced by the management which was also unfair labour practice as said scheme was just to crush the applicant Federation---Counsel for the Employees' Federation/applicant -requested that status quo' order granted to applicant be confirmed for the sake of justice and equity---Counsel for management/Bank on the other hand had contended that assignment of duty and job arrangement being exclusive prerogative of the management, Collective Bargaining Agent had no right whatsoever to interfere in the affairs of the management and that introduction of one window operations, was the right of the management 'to enable employees to acquire such skill as could be required by the new emerging technical realities---Contentions of the counsel for the management, were tenable and record submitted by him in support of his view point merited consideration, while contentions of counsel for the applicant/Federation were not tenable---Arguments/records presented by counsel for the applicant were distinguishable from the facts of the case---Employees' Federation had got no prima facie case of "unfair labour practice" and other two essential elements, i.e. balance of convenience and inconvenience and irreparable loss/injury, also were lacking in favour of applicant for confirmingstatus quo' already granted to the applicant by the Commission---There being no reason to confirm the `status quo' order, same was recalled and management was allowed to proceed in the matter according to the exigency of the service of the establishment.

Azam Jan Zarkoon for Petitioner.

Shaukat Ali for Respondent.

2009 P L C 354

[National Industrial Relations Commission]

Before Basher Ahmed Memon, Member

OPTIMUS LTD. EMPLOYEES' UNION and 2 others

Versus

Messrs OPTIMUS LIMITED and 3 others

No.4A(92)/2009-K/24(101)/2009-K, decided on 1st August, 2009.

Industrial Relations Act (IV of 2008)---

---S. 25(8)(g)---National Industrial Relations Commission (Procedure and Functions) Regulations, 1973, Regln.32(2)(c)-Unfair labour practice by the employers---Stay application---Petitioners claimed that employees union raised industrial dispute through charter of demand, but employer was adopting tactics to curb, check and stifle the bona fide Trade Union activities and claimed that the other Union (illegally constituted) had also submitted charter of demand on which negotiations were going on---Petitioners had alleged that employers had been entertaining said illegally constituted Trade Union and were adopting delaying tactics towards charter of demand submitted by their trade union---Further allegation was that employers had issued letters of warning to petitioners on the false and concocted allegations which amounted to unfair labour practice on the part of employers---Petitioners, in circumstances had prayed to restrain the employers from committing acts of unfair labour practice---While admitting the petition, an interim prohibitory order was passed restraining the employers from taking any adverse action in respect of employment of petitioners---Petitioners, no doubt were office-bearers of the union, but under the cover of Trade Union activities they were not supposed to misbehave with the management officials or to use vehicle of management without obtaining the permission---One of the petitioners forcibly entered in the office of Admin Officer when he was busy and misbehaved with him by shouting at him and used abusive language---Petitioners on that account were served warning letters, which was requirement of smooth running of the establishment, which could not be termed as unfair labour practice---Stay application as well as main petition, stood disposed 'of, accordingly.

Ashraf Hussain Rizvi for Petitioners.

Masood A. Khan for Respondent No.1.

Nemo for Respondents Nos.2 and 3.

Arshad Mahmood for Respondent No.4.

2009 P L C 358

[National Industrial Relations Commission]

Before Bashir Ahmed Memon, Member

MUHAMMAD RIZWAN and 4 others

Versus

Messrs CHINA YUNCHENG PLATE MAKING CO. (PVT) LTD. through Notified Manager and another

No.4A(15)/2009-K/24(22)/2009-K, decided on 22nd June, 2009.

Industrial Relations Act (IV of 2008)---

---Ss. 10 & 25(8)(g)---National Industrial Relations Commission (Procedure and Functions) Regulations, 1973, Regln.32(2)(c)---Unfair labour practice by employers---Stay application---Workers had alleged that when they formed a Trade Union of workers, employer management had turned up hostile against them and started victimizing them---Workers had contended that they were apprehending acts of unfair labour practice in the shape of transfers, gate stops etc. by the employers, which were acts of unfair labour practice---Workers had prayed for restraining the employers from taking adverse action in respect of employment of the workers---Validity---Workers' Union had not been registered and petition had been filed by workers in their individual capacity, because Union had not been made party---Even otherwise only general and bald allegations had been made without any substance; and no specific instance of unfair labour practice had been quoted--Workers had failed to prove their apprehension that they were being removed or terminated from service due to formation of the Trade Union and could not make out a case of unfair labour practice---Even balance of convenience was not in favour of the workers---Stay application and grievance petition were dismissed, in circumstances.

M. Siddique Malik, Representative for the Petitioners.

S.M. Yaqoob for Respondents.

2009 P L C 369

[National Industrial Relations Commission]

Before Syed Akhtar Naqi Naqvi, Senior Member

KHALID PERVEZ SH.

Versus

ARIF KHAN, D.-G. L.D.A. and others

Case No.(31)/07-L, decided on 19th July, 2008.

Industrial Relations Ordinance (XCI of 2002)---

----Ss. 22-A(8)(g) & 51---Unfair labour practice by the employers---Petition against---Application for contempt of court---Petitioner had contended that he remained suspended for indefinite period and was not given any benefit in the shape of salaries and allowances, despite the fact that his suspension was set aside and he was reinstated with full back benefits---On the other hand contention of the respondents was two fold; firstly that petitioner absented himself from the office and he had joined the legal profession, with the result that a notice for his attendance in the office was got published in the newspaper; secondly that back benefits could not be claimed through contempt proceedings---In order to establish respondent's version regarding absence of the petitioner, respondents had produced Admin Officer who stated that the petitioner absented himself from office after his suspension and that he never made a complaint that he was not being paid any suspension allowance---Petitioner neither had produced any positive evidence in proof of his claim, in documentary or oral form nor he produced any body in support of his claim---So much so that he himself did not utter a single word that he had been attending the office---Petitioner had not been able to establish by means of a convincing evidence that he remained present on duty during his suspension period and was declined by the respondent authority in matter of compliance of order of Bench---Petitioner, in circumstances, could not establish that any act of contempt of court was committed by the respondent authority---Petition was dismissed, in circumstances.

PLD 1959 SC 147; 1974 SCMR 137; 1968-II LLJ 98 and 1980 PLC 752(c) ref.

Asmat Kamal Khan for Petitioner.

Ghazi M.A. Rashid for Respondents.

2009 PLC 375

[National Industrial Relations Commission]

Before Bashir Ahmed Memon, Member

FALAK NAZ and 16 others

Versus

Messrs HERTZ OPTIMUS LIMITED

No.4A(74)/2008-K/24(81)/2008-K, decided on 1st August, 2009.

Industrial Relations Act (IV of 2008)---

----Ss.10 & 25(8)(g)---National Industrial Relations Commission (Procedure and Functions) Regulations, 1973, Regln.32(2)(c)---Unfair labour practice by employers---Stay application---Workers had alleged that employers were paying overtime payments less than what was provided in Factories Act, 1934 and did not follow labour laws---Further allegation was that when, after formation of the Trade Union, an application for its registration was submitted to the Registrar of Trade Unions, employers became hostile toward the workers; and were threatening them of dire consequences if they did not withdraw their application---Employers denied said allegation---No document had been placed on record showing that any intimation of formation of the Trade Union was received by the employers---Only vague and general allegations were made by the workers in their petition about alleged commission of unfair labour practice by the employers and there was no such apprehension of commission of unfair labour practice by the employers---In the absence of any specific instance of unfair labour practice, the petition appeared to be misconceived and pre-mature and was liable to be dismissed---Petitioners having failed to establish a case of unfair labour practice, petition along with stay application was disposed of accordingly.

Arshad Mahmood for Petitioners.

Masood A. Khan for Respondents.

2009 P L C 378

[National Industrial Relations Commission]

Before Justice (Retd.) Rashid Aziz Khan, Chairman, Ch. Asad Raza, Member and Wamiq Javed, Joint Secretary (Law)/Member

ABDUL AZIZ BALOCH and others

Versus

ADAMJEE INSURANCECOMPANY LTD. and others

Appeals Nos.12(03), 12(04), 12(05), 12(06), 12(07) of 2009-K, decided on 24th February, 2009.

Industrial Relations Act (IV of 2008)---

---S. 25-A(8)(g)---National Industrial Relations Commission (Procedure and Functions) Regulations, 1973, Regln.32(2)---Unfair labour practice by the employers---Petition against---Application, for grant of interim injunction---Appeals against order of dismissal of application---Application for grant of interim injunction was dismissed on the ground that applicants had ceased to be the employees of the employer---Grant of interim injunction was a discretionary matter, which had to be decided in a manner so warranted by the law and the rule of business on the subject prescribed from time to time---Each case had its own facts, merits and de-merits and required' to be disposed of accordingly---Appellants themselves, through their counsel, had placed on record the very order of their retrenchment on file and it could be conveniently said that for the alleged unfair labour practice which the appellants had preferred to challenge, the mischief was not only in their knowledge, but also conveyed to them in writing; and by the time they presented their petitions under S.25(8)(g) of Industrial Relations Act, 2008 they had ceased to be the employees of the employer---Such was hardly a case of grant of interim injunction, seeking suspension of the retrenchment order already conveyed to the appellants---From each angle, whether that be legal or factual, the stance of the appellants, nowhere showed that a case of interim injunction was made out---Nothing wrong having been found with impugned order whereby application for grant of interim injunction was dismissed, appeals against said orders, were dismissed.

M.A.K. Azmati for Appellants.

Shahid Anwar Bajwa for Respondents.

2009 P L C 383

[National Industrial Relations Commission]

Before Justice (Rtd.) Rashid Aziz Khan, Chairman

LUCKY TEXTILE MILLS BAHBOOD MAZDOOR UNION, KARACHI through President and General Secretary

Versus

LUCKY TEXTILE MILLS

Case No.19(05) of 2009, decided on 7th May, 2009.

Industrial Relations Act (IV of 2008)---

----S. 25(8)(e)---Determination of Collective Bargaining Unit---Powers-of National Industrial Relations Commission---Application to Commission---Applicant Union through its' President and General Secretary filed application for determination of entire establishment of employers as one Collective Bargaining Unit---Counsel for the employers had fully supported the application---Counsel for applicant had submitted that establishment, had its business at Sindh and N.-W.F.P. and there was no local union or industrywise Trade Union registered for the establishment except applicant's one---Employers had five textile units in Sindh and one in N.-W.F.P.---For safeguarding the interest of workmen, it was necessary, just and feasible that there were one uniform terms and conditions of employment in the entire establishment of employers---Establishment at Sindh and N.-W.F.P, were declared to be Collective Bargaining Unit as laid down in S.30(1) of Industrial Relations Act, 2008.

Syed Nazir Ahmed for Petitioner.

Faisal Mahmood Ghani for Respondent.

2009 PLC 361

[Quetta High Court]

Before Muhammad Nadir Khan, J

HABIB BANK LIMITED and others

Versus

MUHAMMAD ASLAM KAKAR and others

Revision Petition No.5 of 2007, decided on 21st October, 2008.

Industrial Relations Ordinance (XCI of 2002)---

----Ss. 45(2), 46, 48(3) & 49(4)(e)---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.13---Retrenchment---Grievance application---Application for rejection of grievance application---Revision petition---Respondents/employees who were removed under the retrenchment scheme, approached National Industrial Relations Commission by filing petition under S.49(4)(e) of Industrial Relations Ordinance, 2002, which petition was rejected with observation that the respondents/employees could seek remedy available under the law; thereafter employees approached Labour Court after seven months by filing grievance application under S.46 of Industrial Relations Ordinance, 2002---Appellants/Employers filed application under S.45(2) of Industrial Relations ordinance, 2002 for rejection of grievance application of the employees on ground of being barred by time---Period spent in pursuing the matter before National Industrial Relations Commission needed to be condoned as the remedy before said Commission was somewhat parallel with remedy provided before the Labour Court; and it was very difficult to draw line of distinction by the workers for seeking remedy of their grievance before either of the two forums---In the present case, taking of cognizance by National Industrial Relations Commission and grant of temporary injunction by the Commission had reflected that prima facie case of unfair labour practice by the appellants/employers was made out, which later on after due consideration, was rejected by the Commission with observation to seek remedy available under the law---Approaching National Industrial Relations Commission by the employees, could not be said to be for any other reason, but considering the action of the appellants employer as unfair labour practice and their bona fides could not be doubted--Labour Court, in circumstances, had rightly rejected application of appellants/employers filed for rejection of grievance application on ground of being barred by time.

2007 PLC 64; AIR 1958 M.P. 91; AIR 1934 All. 688; 1984 CLC 1258; PLD 1959 SC 287; PLD 2008 SC 462; AIR 1928 Cal. 46; 2007 PLC 340; 2007 PLC 246; 2004 PLC 1014 and 1994 PLC (C.S.) 305 rel.

Shahid Anwar Bajwa for Petitioner.

Azam Jan Zarkoon for Respondent.

Date of hearing: 2nd September, 2008.

2009 P L C 246

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar, Syed Sakhi Hussain Bokhari and Sheikh Hakim Ali, JJ

SECRETARY, IRRIGATION AND POWER DEPARTMENT GOVERNMENT OF PUNJAB, LAHORE and others

Versus

MUHAMMAD AKHTAR and others

Civil Petitions Nos.367-L to 370-L, 386-L to 388-L and 404-L of 2008, decided on 22nd October, 2008.

(On appeal from the order, dated 12-3-2008 of the Lahore High Court, Multan Bench passed in F.A.Os. Nos.18-L to 25-L of 2007).

Industrial Relations Ordinance (XCI of 2002)---

----Ss. 2(xxx), 46 & 48---Punjab Civil Servants Act (VIII of 1974), S.2---Constitution of Pakistan (1973), Art.212(3)---Regularization of service---Grievance petition---"Workman", determination of---Grievance petition filed by employees before the Labour Court for regularization of their services, having been allowed by the Labour Court, Department preferred appeal, which was dismissed by the High Court---Labour Court had recorded its findings on the basis of the evidence adduced by the parties and came to the conclusion that in view of the nature of duties performed by employees and their length of continuous service, they were entitled to be regularized in service---Validity---Ordinarily, the Supreme Court was not expected to substitute findings of fact recorded by the competent forum---Question whether employees were to be treated to be civil servants, was not seriously agitated by the Department at the appropriate stage---Prima facie, in view of the definition contained in S.2 of Punjab Civil Servants Act, 1974, the work-charged employees did not fall within the category of civil servants---Such point, however needed to be examined further in some other appropriate case---Impugned judgment of the High Court was plainly correct---Cases were not fit warranting interference by the Supreme Court---Petition for leave to appeal was dismissed, in circumstances.

Ikram Bari v. National Bank of Pakistan 2005 SCMR 100 and Muhammad Asim v. Telecommunication and others 1997 PLC (C.S.) 1131 ref.

Mian Tariq Ahmed, Additional Advocate-General, Punjab for Petitioners.

Sher Nawaz Shah, Advocate Supreme Court for Respondents (in C.Ps. Nos.367-L to 370-L, 387-L, 388-L and No.404-L of 2008).

Nemo for Respondents (in C.P. No.386-L of 2008).

2009 P L C 254

[Supreme Court of Pakistan]

Present: Mian Hamid Farooq, Syed Zawwar Hussain Jaffery and Sarmad Jalal Osmany, JJ

IQBAL AHMED

Versus

MUSLIM COMMERCIAL BANK LTD.

Civil Appeal No.1302 of 2005, decided on 30th October, 2008.

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

----S.O. 15(3)(i)---Constitution of Pakistan (1973), Art.185---Dismissal from service---Appellant serving as cashier' in Bank, was dismissed from service after charge-sheeting him and holding enquiry against him on charges of gross negligence/defalcation of Bank's monies---Charge against appellant was that he had received an amount of Rs.35 million, but could not account for Rs.2 million for which he could not offer any cogent or satisfactory explanation and, in circumstances, had embezzled the same---Counsel for appellant had contended that as appellant was acquitted by the Special Court under S.249-A, Cr.P.C., he could not be terminated/dismissed from service---Validity---Each case was to be decided on its own facts---Two proceedings were independent in nature---Facts of the present case would disclose that charges against appellant in departmental proceedings were that due to his negligence the huge amount of Rs.2 million had disappeared and that he had misappropriated the same---Appellant could certainly be held accountable for that act of gross negligence amounting to misconduct due to which Bank suffered a loss of 2 million---Appellant, though, could have been acquitted on the criminal charges filed against him vis-a-vis defalcation of the amount in question, however he could still be proceeded in departmental proceedings on account of misconduct/negligence on his part which resulted in said defalcation and which precisely were the charges against him---Judgment of the High Court was upheld, in circumstances and appeal was dismissed.

Attaullah Shaikh v. WAPDA and others 2001 SCMR 269; Khushal Khan v. Muslim Commercial Bank Ltd. and others 2002 SCMR 943; Khalid Saeed v. Shamim Rizvan and others 2003 SCMR 1505; Muslim Commercial Bank Limited v. Abdul Jabbar 2001 PLC 721 and H.M. Saya & Co. Karachi v. Wazir Ali Industries Ltd., Karachi and another PLD 1969 SC 65 rel.

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

----S.O. 15(3)---Negligence/misconduct---Scope---Punishment given in Standing Order 15(3) of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, were not exhaustive; and there could be many others, which was gross negligence.

Shabbir Ahmed Awan, Advocate Supreme Court and Akhlaq Ahmed Siddiqui, Advocate-on-Record for Appellant.

Shahid Anwar Bajwa, Advocate Supreme Court and Ahmedullah Farooqui, Advocate-on-Record for Respondent.

Date of hearing: 29th October, 2008.

2009 P L C 260

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan and M. Javed Buttar, JJ

JAVAID HUSSAIN NAQI

Versus

MEMBER BAORD OF DIRECTORS, MCB and others

C.P.L.A. No.1069 of 2008, decided on 16th February, 2009.

(On Appeal from judgment, dated 30-5-2008 passed by Lahore High Court, Multan Bench, Multan in F.A.O. No.129-L of 2007).

Industrial Relations Ordinance (XXIII of 1969)---

----Ss. 2(xxviii) & 25-A---Dismissal from service---Branch Manager of Bank---Grievance petition---Maintainability---Duties of such Manager was of managerial and supervisory nature---Size of Branch of Bank either small or large had no nexus with nature of duties of its Manager---Such Manager was not a "workman", thus, Labour Court had no jurisdiction to entertain such petition.

Dilshad Khan Lodhi v. Allied Bank of Pakistan 2007 PLC 41 ref.

Muhammad Saleem Khan, Advocate Supreme Court for Petitioner.

Farooq Zaman Qureshi, Advocate Supreme Court for Respondents.

Date of hearing: 16th February, 2009.

2009 P L C 262

[Supreme Court of Pakistan]

Present: Sabihuddin Ahmed and Sarmad Jalal Osmany, JJ

BOARD OF TRUSTEES, KARACHI PORT TRUST

Versus

ORGANIZATION OF K.P.T. WORKERS and 2 others

Civil Petition No.258-K of 2008, decided on 29th December, 2008.

(On appeal from the judgment, dated 25-2-2008 passed by High Court of Sindh, Karachi in I.R.A. No.6 of 2006).

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

----Ss. 61 & 59---Interpretation of awards and settlements---Locus standi to invoke jurisdiction of High Court---Scope---Expression "parties" occurring in S.61(2), Industrial Relations Ordinance, 2002 is referable to all parties bound by the terms thereof in terms of S.59 of the Ordinance---Worker could always approach the High Court under S.61 in cases of difficulty or doubts as to terms of a settlement to avoid fruitless litigation before a lower forum and in such proceedings the High Court is only required to interpret ambiguous terms and could not import its own concept of fairness and equity---Principles.

The statutory provision of section 61, Industrial Relations Ordinance, 2002 does not provide as to how and by whom the jurisdiction of the High Court is to be invoked. Apparently even a Labour Court adjudicating proceedings where a right arising out of a settlement is claimed, could also through a Reference seek interpretation of the terms of settlement in the event of genuine difficulty or doubt. Similarly any affected party could also move the High Court. Such view appears to be consistent with the scheme of the special law, which is intended to provide for early settlement of disputes between workers and employers and for adjudication of disputes by the Labour Court within a limited time-frame. In such cases the High Court could, in the event of ambiguous provisions, undertake the process of interpretation to which the law attributes finality and thus, obviate the occasions of fruitless litigation before Labour Courts whose findings in, any event would be amenable to the Appellate Jurisdiction of the High Court. Under the Industrial Relations Ordinance, 1969 a similar power was conferred upon the Labour Appellate Court, which was otherwise an Appellate Forum against decisions of Labour Courts. Moreover a restricted scope of the expression "parties" appears to be inconsistent with the principles' of natural justice which are required to be read in all statutory provisions as well as the overall scheme of the Industrial Relations Ordinance which is required to be taken into consideration while interpreting a particular provision.

Section 59(1)(b) of Industrial Relations Ordinance,. 2002 requires that a settlement entered into by the C.B.A. is binding on all workers employed in the establishment. It would be highly incongruous to assume that while the terms of a settlement bind any worker he has no right to present his view point before a Court interpreting such terms. Indeed there may be cases when the C.B.A. entering into the settlement loses its status as such and is no longer interested in pursuing the cause of the beneficiaries of the settlement.

It is entirely incomprehensible that while a worker is a party to an industrial dispute (though represented by C.B.A.) he would be completely debarred from presenting his, view point in proceeding where the terms of such settlement are being interpreted by a Court. There seems no justification for assuming that a worker who is party to an industrial dispute and on whose behalf the C.B.A. (as his representative) has entered a settlement should be excluded from the purview of the expression "parties" occurring in section 61(2).

Section 61 is to be read together with section 59 and the expression "parties" occurring in section 61(2) is referable to all parties bound by the terms thereof in terms of section 59. When a registered trade union (which is an entity itself) enters into a settlement with the employer in the capacity of a collective bargaining agent, it does so only in its representative capacity duly acknowledged by law on behalf of workmen whom it represents and who are parties to the dispute in terms of section 43. The position is further clarified by section 59(2) which stipulates that any settlement between an employer and a trade union otherwise than in the course of conciliation proceedings, will only be binding on the parties thereto i.e. the employer and the union but not the workers. Every worker bound by the terms of the settlement is, strictly speaking, a party to proceedings relating to interpretation of such settlement under section 61. Nevertheless it needs to be clarified that in case the employer approaches the High Court for such interpretation a notice to the C.B.A. representing the workers at the time of hearing might be treated as sufficient notice to all workers. However, this would not preclude any individual worker to approach the High Court on his own in his capacity as a party to industrial dispute leading to the settlement or being otherwise bound by its terms.

Organisation of workers being neither a party to the settlement nor enjoying the status of a C.B.A. to represent workers had no locus standi to move the High Court. However, the right of the worker, who opted for the Golden Hand Shake, to do so could not be questioned and the application on his behalf was clearly maintainable. Indeed when a worker claimed a right arising out of the terms of the settlement which is contested by the employer some process of interpretation of such terms would always be involved even while deciding the application under section 46 of Industrial Relations Ordinance, 2002 and the decision would be amenable to the Appellate Jurisdiction of the High Court under section 48. Keeping in view the dominant intent of the legislature requiring early settlement of disputes a worker could always approach the High Court under section 61 in cases of difficulty or doubts as to terms of a settlement to avoid fruitless litigation before a lower forum. In such proceedings the High Court is only required to interpret ambiguous terms and could not import its own concept of fairness and equity.

In the settlement, in the present case, with reference to demand it was expressly stipulated that the benefits under the settlement would be available to those employees who had "normally" retired after 1-4-2004 and not to those who had been relieved under the Golden Hand Shake Scheme. The settlement was entered into on 25-6-2005 and retrospective effect was given only for the benefit of those who had "normally" retired. The addendum extended the benefit to ad hoc and casual workers but once again those having received golden handshake were excluded. It was made explicitly clear that those retiring in normal course constituted a category separate from those relieved under the Golden Handshake Scheme.

The Golden Handshake Scheme, in the present case, showed that several additional financial benefits were granted to those having opted for voluntary retirement. Evidently, the settlement drew a clear distinction between those retired normally (without the benefit of the scheme) and those opting for retirement under the aforesaid scheme. The benefits under the settlement were only made available to the former category, because the latter had already become entitled to additional financial benefits under the scheme.

No discrimination was invalid. Reasonable classification is always permissible in terms of Article 25 of the Constitution which guarantees equality and equal protection of law. The classification made in the settlement appears to be perfectly rational inasmuch as only those employees have been excluded from its benefit who became entitled to substantial benefits under the scheme. On the other hand a discrimination premised merely on the date of actual release of employee from service could have been 'less reasonable.

An agreement to deprive employees of their lawful rights contradictory to the mandatory provision of law was not valid. Guaranteed rights of workers could not be taken away through a settlement. In the present case existing rights were not disturbed and merely some additional benefits were being conferred. The optees of voluntary retirement scheme were excluded for 'good and proper reasons, in view of their having availed substantial benefits under the scheme, which were pot available to those retiring in normal course.

Each and every financial benefit under a settlement must invariably be extended to every workman employed in the establishment on the date of the execution of the settlement. It is always permissible to C.B.A. to raise demands with respect to certain categories of workmen. Indeed some benefits could be claimed for a category of workers i.e. those undertaking work of hazardous nature or suffering some disadvantage but the settlement could not be set aside unless it was found to be contrary to law. Indeed a settlement causing invidious discrimination amongst workmen may offend Article 25 of the Constitution and hence unlawful, but when the classification is perfectly fair and rational, no illegality can be attributed.

The application on behalf of the employee who had opted for Golden Hand Shake was maintainable, there seems no reason to hold him entitled to financial benefits arising from the settlement.

Muhammad Rashid v. Balochistan Labour Appellate Tribunal 1995 PLC 242 overruled.

Muhammad Rasheed and 13 others v. Chairman, Balochistan Labour Appellate Tribunal and 3 others 1995 PLC 242; Khyber Zaman and others v. Governor, State Bank of Pakistan, Karachi and others 2005 SCMR 235 and Qayum Nawaz v. N.-W.F.P. Small Industries Development Board 1999 SCMR 2331 ref.

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

----Ss. 59, 60 & 61---Constitution of Pakistan (1973), Art.25---Entitlement of workers to benefits under settlement---Reasonable classification---Permissibility---Principles.

Shahid Anwar Bajwa, Advocate Supreme Court and M.S. Ghaury, Advocate-on-Record for Petitioner.

Abdul Mujib Pirzada, Senior Advocate Supreme Court and Suleman Habibullah, Advocate-on-Record for Respondent No.1.

Malik Haq Nawaz, President, Worker Union, K.P.T. Respondent No.2.

Jalil Shah, General Secretary, Labour Union, K.P.T. Respondent No.3.

Date of hearing: 26th November, 2008.

2009 P L C 273

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Syed Sakhi Hussain Bokhari, JJ

TEHSIL MUNICIPAL ADMINISTRATION

Versus

MUHAMMAD AMIR

Civil Petition No.1469-L of 2008, decided on 22nd April, 2009.

(Against the judgment of the Lahore High Court, Lahore, dated 11-8-2008 passed in Labour Appeal No.77 of 2007).

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

----Schd. S.Os.12, 1 & S.2(bb)---Constitution of Pakistan (1973), Art.185(3)---Termination of employment---Work being performed by the employee as "tube-well operator" was connected with "water work", "well" within the meaning of "construction industry" as defined in S.2(bb) of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968---Nothing was on record to indicate that he was being paid salary only for those days of week during which he worked---Record also showed that employee was engaged on a work of permanent nature within the meaning of clause (b) of S.O. 1 of the Schedule to the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968---Employee being a permanent workman in terms of the provisions of the Ordinance, he could not have been summarily dismissed and that too without a written order---Procedure adopted by the employer, in dismissing the employee, was violative of S.O. 12 of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968---Petition for leave to appeal was dismissed in circumstances.

Mian Ghulam Rasool, Advocate Supreme Court for Petitioner.

Ch. Muhammad Ikram Zahid, Advocate Supreme Court on Court's call.

Nemo for Respondent.

2009 P L C 281

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk, Zia Perwez, and Syed Zawwar Hussain Jaffery, JJ

MUSLIM COMMERCIAL BANK LTD. and others

Versus

MUHAMMAD SHAHID MUMTAZ and another

Civil Appeal No.1673 of 2007, decided on 16th April, 2009.

(On appeal from the judgment of the Lahore High Court, Lahore, dated 14-12-2006 passed in Labour Appeal No.408 of 2003).

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

----Ss. 2(xxviii) & 25-A---Constitution of Pakistan (1973), Art.185(3)---Dismissal from service---Officer Grade-II posted as Branch Manager of Bank---Grievance petition---Maintainability---Order of Labour Court reinstating such Manager in service with back-benefits upheld by High Court in appeal filed by Bank---Banks' plea that such Manager was not a workman for he as its duly constituted attorney could engage, employ, control and dismiss employees whether engaged by him or Bank or otherwise---Validity---Supreme Court granted leave to appeal to consider 'the issue by reappraising entire evidence.

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

----Ss. 2(xxviii) & 25-A---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), Ss.2(h)(i) & 12(3)---Dismissal from service---Remedy---Status of employee, determination of---Scope---If such dismissal of employee did not arise out of an industrial dispute, then his status as to whether or not he was a workman, would be determined under provisions of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968.

Mustehkum Cement Limited v. Abdul Rashid 1998 SCMR 644 rel.

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

----Ss. 2(xxviii) & 25-A---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), Ss.2(h)(i) & 12(3)---Constitution of Pakistan (1973), Art.185(3)---Dismissal from service---Officer Grade-II posted as Branch Manager of Bank---Charge of misappropriation of amount deposited by customers in Bank---Grievance petition---Maintainability---Order of Labour, Court accepting grievance petition upheld by High Court in appeal filed by Bank---Validity---Dismissal of respondent had not arisen out of an industrial dispute, thus, his status as to whether or not he was a workman, had to be determined under provisions of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968---Bank, much prior to present incident, had executed power of attorney in favour of respondent giving him all administrative control of its Branch with powers to hire and fire---Authenticity of such power of attorney could not be, doubted for having been signed by President of Bank, attested by its two Vice-Presidents and notarized by Notary public---Powers contained in such power of attorney showed that nature of duties and functions of respondent was managerial and supervisory and not clerical---Transfer of respondent after present incident to another Branch not in a managerial capacity had been done to facilitate process of inquiry---Status of respondent at relevant time being that of Branch Manager of Bank was relevant for determining his remedy to approach Labour Court---Courts below had erred in law to place burden on Bank to prove that respondent was not a workman---Labour Court had no jurisdiction to entertain grievance petition of respondent--Supreme Court set aside impugned judgments of courts below and dismissed grievance petition in circumstances.

Allied Bank of Pakistan Ltd. v. Muhammad Humayun Khan and others 1988 SCMR 1664; Dilkusha Enterprises Ltd. v. Abdul Rashid and others 1985 SCMR 1882; National Bank of Pakistan v. Punjab Labour Court No.5 Faisalabad 1993 SCMR 672; National Bank of Pakistan v. Muhammad Aslam Dar 1999 SCMR 157 and National Bank of Pakistan v. Punjab Labour Court No.7, Gujranwala 1992 SCMR 1891 ref.

Mustehkum Cement Limited v. Abdul Rashid 1998 SCMR 644; General Manager, Hotel Intercontinental v. Bashir A. Malik PLD 1986 SC 103 and National Bank of Pakistan v. Punjab Labour Court No.5 Faisalabad 1993 SCMR 672 rel.

Farooq Zaman Qureshi, Advocate Supreme Court for Appellants.

Abdul Rehman Siddiqui, Advocate Supreme Court for Respondents.

Date of hearing: 6th March, 2009.

2009 PLC 292

[Supreme Court of Pakistan]

Present: Muhammad Moosa K. Leghari, Syed Zawwar Hussain Jaffery and Sarmad Jalal Osmany, JJ

CITIZENS FOUNDATION

Versus

GOVERNMENT OF SINDH and others

Civil Petitions Nos.328-K and 334-K of 2008, decided on 24th September, 2008.

(On appeal from the judgment, dated 25-4-2008 passed by the High Court of Sindh, Karachi in C.P. Nos.D-165 of 2006, D-1478 of 2003 and D-2108 of 1996).

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

----Ss. 2(11) & 3---Constitution of Pakistan (1973) Art.185(3)---Registration of employees with the institution-Petitioner had impugned direction of High Court, whereby it was directed to get its employees registered with the institution---Contention of the petitioner was that as the petitioner was a charitable organization rendering exemplary services in the educational sector by providing free education it was not "establishment" and provisions of Provincial Employees' Social Security Ordinance, 1965 were not applicable to it---Respondent had supported impugned judgment of the High Court contending that provisions of Provincial Employees' Social Security Ordinance, 1965 were applicable in the case of the petitioner as it was "establishment" as defined in S.2(11) of the Ordinance---Leave to appeal was granted to consider that important issue.

Don Bosco High School, Empress Road, Lahore v. Director, Social Security and 2 others 2005 PLC 110 and Don Bosco High School v. Assistant Director, E.O.B.I. and others PLD 1989 SC 128 ref.

Qazi Faez Isa, Advocate Supreme Court for Petitioner (in C.P. No.328-K of 2008).

S.A. Sarwana, Advocate Supreme Court and K.A. Wahab, Advocate-on-Record for Respondent No.3 (in C.P. No.328-K of 2008).

Shahid Anwar Bajwa, Advocate Supreme Court and Suleman

Habibullah, Advocate-on-Record for Petitioner (in C.P. No.334-K of 2008).

S.A. Sarwana, Advocate Supreme Court and K.A. Wahab, Advocate-on-Record for Respondent No.1 (in C.P. No:334-K of 2008).

Date of hearing: 24th September, 2008.