PLC 2010 Judgments

2010 PLC 17

[Islamabad High Court]

Before Syed Qalb-i-Hassan, J

SHAUKAT HUSSAIN ABBASI

Versus

ZIM'S SECURITY (PVT.) LTD.

Labour Appeals Nos.4, 6 and 7 of 2006, decided on 12th June, 2009.

Industrial Relations Ordinance (XCI of 2002)---

----Ss.46 & 48---Grievance petition without serving grievance notice on the employer---Appeal---Grievance petitions filed by the employees were dismissed on the ground that no grievance notices were served by the employees on the employer---Employees though had averred in their petitions that the grievance notices were served on the employer through post and that same were not received by the employer, but no iota of evidence was available on record that said notices were dispatched or refused by the employer---Employees were bound to prove the dispatch or delivery of grievance notices to the employer, but they had miserably failed to prove the same---Grievance petition, was rightly dismissed by the Labour Court, in circumstances.

Khushal Khan v. Muslim Commercial Bank Ltd. and others 2002 SCMR 943; Punjab Road Transport Board v. Allah Yar 1984 PLC 660 and Shaheen Khan v. The Presiding Officer I, First Sindh Labour Court, Karachi and another 1994 PLC 616 rel.

M. Kowkab Iqbal for Appellant.

Barrister Jahangir 7adooR for Respondents.

Date of hearing: 3rd June, 2009.

2010 P L C 1

[Karachi High Court]

Before Shahid Anwar Bajwa, J

Mst. NOOR BEGUM

Versus

COMMISSIONER FOR WORKMEN'S COMPENSATION AND AUTHORITY UNDER PAYMENT OF WAGES ACT and 2 others

Constitutional Petition No.S-37 of 2008, decided on 9th October, 2009.

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

----O. XLI, R.27---Production of additional evidence in appellate court---Once the trial had concluded and judgment had been finalized, it was only in very, very limited circumstances as provided in O.XLI, R.27, C.P.C. that evidence could be recorded by the appellate court.

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

----S. 23---Industrial Relations Act (IV of 2008), S.54---Constitution of Pakistan (1973), Art.199---Constitutional petition---Review---Power of Commissioner to review its own order---Scope---Commissioner Workmen's Compensation had no power to review its own order---Power of review was not available, unless it had been specifically conferred by law---Power of review was not available to Labour Court---Powers of Labour Court under S.54 of Industrial Relations Act, 2008 were more extensive and wide compared with Power of Commissioner Workmen's Compensation---If the Labour Court with its wider amplitude of powers, had not power of review, how could Commissioner Workmen's Compensation be asked to review its order---Constitutional petition was dismissed.

Hussain Bakhsh v. Settlement Commissioner, Rawalpindi PLD 1970 SC 1 and Ahmed Food Industries Ltd., Karachi v. Sindh Labour Appellate Tribunal, Karachi and 2 others 1974 PLC 225 ref.

Sardar M. Tariq Khan for Petitioner.

Nemo for Respondents:

Date of hearing: 6th October, 2009.

2010 P L C 8

[Karachi High Court]

Before Sajjad Ali Shah, J

UNITED WORKERS UNION AL-ABBAS SUGAR MILLS LTD. (C.B.A.) through General Secretary

Versus

REGISTRAR OF TRADE UNIONS, GOVERNMENT OF SINDH and 3 others

C.P. No.S-221 of 2008, decided on 13th March, 2009.

(a) Industrial Relations Act (IV of 2008)---

----S. 6---Constitution of Pakistan (1973), Art.199---Constitutional petition---Registration of Trade Union---Petitioner, a Trade Union of workers with the status of Collective Bargaining Agent, had called in question the registration of a union as third Trade Union in the establishment---Petitioner and another union were the Trade Unions in the establishment---Two establishments were merged and after merger new name was given and it was well within the knowledge of Registrar Trade Unions before registering the new Trade Union of workers that there were already Trade Unions of workers and the new union was being registered as third union of workers in the establishment---After merger of the both the units of establishment they formed one establishment, it was in circumstances incumbent upon the Registrar Trade Unions to have satisfied itself as to whether the new union met all the requirements of registration, which the Registrar had failed to conduct---New Union was registered as third Trade Union by the Registrar without conducting any inquiry to see as to whether said union had fulfilled the requirements as envisaged under Industrial Relations Act, 2008, a condition precedent for such registration---Registration of the third Union was in gross violation of clause (b) of subsection (2) of Industrial Relations Act, 2008---Certificate of registration issued to said new union as third Trade Union, was quashed, in circumstances.

Essa Cement Industries Workers' Union v. Registrar of Trade Unions, Hyderabad Region Hyderabad 1998 SCMR 1964; Pakistan Services Limited v. Full Bench National Industrial Relations Commission and others 2006 PLC 288; National Beverage Employees Union v. Registrar, Trade Union Government of Sindh 1986 PLC 533 and S.G. Fibre Employees Union v. Registrar of Trade Union, Government of Sindh 2003 PLC 58 ref.

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

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

Choudhry Ashraf for Petitioner.

Allah Bachayo Soomro, Addl. A.-G., Sindh for Respondent No.1.

Muhammad Saulat Rizvi for Respondent No.2.

Ghulam Sarwar Chandio for Respondent No.3.

Date of hearing: 23rd January, 2009.

2010 P L C 20

[Karachi High Court]

Before Shahid Anwar Bajwa, J

Syed HAIDER IMAM RIZVI

Versus

IVTH SINDH LABOUR COURT, KARACHI and another

C.P. No. S-70 of 2009, decided on 2nd November, 2009.

(a) Industrial Relations Act (IV of 2008)---

----S. 41---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(b) & S.O. 12---Constitution of Pakistan (1973), Art.199---Constitutional petition---Termination of service---Grievance petition---Employment of the petitioner having been terminated, he first sent grievance notice and thereafter filed grievance petition, which was dismissed by the Labour Court on the sole ground that respondent/employer being a club which provided services to its members officers of Civil Aviation Authority, was not an industry; and Industrial Relations Ordinances/Act and Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, were not applicable to the respondent-club---Provisions of S.2(b) of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 had clearly stated that the word `Commercial Establishment' had been defined to mean, inter alia "A Club"; in circumstances, whatever club could be, it could or could not be industry under the Industrial Relations Ordinances of 1969, 2002 and Act, 2008, but since Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 had said that Commercial Establishment would inter alia mean a club, even club 'was included in the definition of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 which was applicable to the respondent/ employer---Letter of termination did not state any reason for termination of employment of the petitioner/employee, It only had said that "your employment was terminated being no more required"-Statement that services were no more required, was not a statement meeting mandatory requirements under Standing Order 12(3) of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968---Impugned order was set aside and High Court ordered that the petitioner be reinstated in service with all back-benefits within specified period.

(b) Industrial Relations Act (IV of 2008)---

----S. 54---Constitution of Pakistan (1973), Art.199---Constitutional petition---Maintainability of---Appeal against order of the Labour Court though was provided under S.54 of Industrial Relations Act, 2008 before Labour Appellate Tribunal, but no Labour Appellate Tribunal had been constituted in the Province of Sindh; in the absence of the Labour Appellate Tribunal in the Province of Sindh, petitioner had no remedy available to him under the law---Petitioner in such a situation had right to invoke constitutional jurisdiction of High Court under Art.199 of the Constitution---Constitutional petition filed by the petitioner, was maintainable, in circumstances.

Aftab A. Chaudhry, Chairman, Managing Committee, The Punjab Club, Lahore v. The Registrar of Trade Unions, Lahore Region, Lahore and another 1996 PLC 87; Rawalpindi club, Rawalpindi v. Registrar of the Trade Unions and 2 others 1989 PLC 760; Lahore Development Authority and others v. Abdul Shafiq and others 1992 PLC 1214; Farooque Ahmed v. Delta Shipping Pvt. Limited 2006 PLC 102 and Ghulam Rasool Tahir v. IV-Sindh Labour Court, Karachi and another 2007 PLC 83 ref.

(c) Industrial Relations Act (IV of 2008)---

----S. 41---Grievance notice---Limitation for---Services of the employee were terminated on 1-2-2002, whereas grievance notice was served by the employee on the employer on 18-3-2002---Employer had alleged that grievance notice being barred by time, grievance petition filed by the employee was not maintainable---Validity---Grievance notice was within time for two reasons, firstly, in the letter of termination it was not stated that services were being terminated with immediate effect---All that was stated was that letter of termination be considered as one month notice---In the presence of such ambiguous statement, petitioner should be justified in presuming that letter took effect on March 1st, 2002; secondly, on 1-2-2002 the employee was governed by the Industrial Relations Ordinance, 1969 and under S.25-A(1) of the Ordinance period for service of grievance notice was three months, unlike S.46(1) of the Industrial Relations Ordinance, 2002, where period prescribed for service of grievance notice was one month---Grievance notice, in circumstance, was within time.

Security Papers Limited v. Sindh Labour Court No.IV and another 1981 PLC 898; Trustees of the Port of Karachi v. Muhammad Saleem and another 1987 PLC 46; National Bank of Pakistan v. Sindh Labour Appellate Tribunal, Karachi and another 1994 PLC 301 and Mustehkum Cement Limited through Managing Director v. Abdul Rasheed and others 1998 PLC 172 rel.

(d) Interpretation of statutes---

----Definition---Scope---Where definition clause would say something mean so and so, one was not to have reference to dictionary or the common meanings or the commonly understood parlance in respect of that word, but was to include that word or that concept in the term which the legislature had chosen to define.

Asad Abbas Zaidi for Petitioner.

Sanaullah Noor Ghouri for Respondents.

Date of hearing: 23rd October, 2009.

2010 P L C 31

[Karachi High Court]

Before Shahid Anwar Bajwa, J

ANEEZA GARMENTS (PRIVATE) LIMITED through Director

Versus

PRESIDING OFFICER, SINDH LABOUR COURT NO.1 and another

Constitutional Petitions Nos.S-316 and S-317 of 2009, decided on 13th November, 2009.

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

----Ss. 46 & 47(3)---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S. Os. 11-A & 12---Constitution of Pakistan (1973), Art.199---Constitutional petition---Termination of service---Appeal---Employee whose services were orally terminated filed grievance petition, which was allowed by the Labour Court---Since at relevant time no Labour Appellate Tribunal had been constituted in the Province of Sindh, petitioner/employer filed constitutional petition against judgment of Labour Court---Order of Labour Court was passed on 25-9-2009 and Industrial Relations Act, 2008 received assent of the President on 6-12-2009---Period of filing appeal under S.47(3) of the Industrial Relations Ordinance, 2002 was 30 days---Petitioner/employer could have filed appeal in High Court under S.47(3) of Industrial Relations Ordinance, 2002 by 21-11-2009, but the petitioner did not avail that remedy of appeal available to him---High Court under its constitutional jurisdiction could come to the aid and succour of the vigilant and not to the indolent---Constitutional petition, was dismissed, in circumstances.

Urdu Academy Sindh v. Sindh Labour Appellate Tribunal and another 1989 PLC 187 ref.

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

----Ss. 46(5) & 47(3)---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.12---Constitution of Pakistan (1973); Art.199---Constitutional. petition---Termination of service---Award of compensation---Claim for back-benefits---Employee whose termination from service was wrongful and was granted compensation under S.46(5) of the Industrial Relations Ordinance, 2002, claimed back-benefits---Grievance of the employer was that Labour Court could not have ordered for the payment of both compensation and back-benefits; back-benefits whenever ordered, were consequent upon reinstatement and there could not be back-benefits without being reinstatement---Validity---Back-benefits would follow reinstatement---If reinstatement was not there, how could back-benefits follow compensation---Order of Labour Court to the extent of back-benefits would not be sustainable---Employee would only be entitled to compensation as ordered by the Labour Court---Constitutional petition of the employer was allowed in terms that the employee was to be paid compensation under S.46(5) of Industrial Relations Ordinance, 2002 by making payment of an amount equivalent to 20 months basic pay last drawn by him and house rent, if admissible in lieu of reinstatement in service.

Shah Murad Sugar Mills Ltd. v. Mir Ali Muhammad and others 2005 PLC 449; 2006 TD (Labour) 471; Sirajuddin v. S.I.T.E. Engineering Works 2006 PLC 462 and Balochistan Engineering Works Ltd. v. Abdul Hameed and others 2007 PLC 426 ref.

Sattar M. Awan for Petitioner.

Rafiullah for Respondents.

Date of hearing: 2nd November, 2009.

2010 P L C 48

[Karachi High Court]

Before Shahid Anwar Bajwa, J

Messrs COCA COLA BEVERAGE PAKISTAN LIMITED through Authorized Officer/Industrial Relations Manager

Versus

REGISTRAR TRADE UNIONS SINDH and 3 others

Constitutional Petition No.297 of 2009, decided on 12th November, 2009.

(a) Interpretation of statutes---

----"Tense used by the statutes"---Effect illustrated.

(b) Industrial Relations Act (IV of 2008)---

----Ss. 2(xxix) & 41---"Workman"---Definition of workman' given in S.2(xxix) of Industrial Relations Act, 2008 had revealed that it included two categories of persons whose employment had come to an, end in the definition of worker; firstly those whose termination of employment had taken place in consequence of an industrial dispute; and secondly those whose termination of employment had led to an industrial dispute---Once a person had ceased to be an employee of establishment he ceased to be a workman unless he could place himself squarely in one of the two categories and that too only for the purposes of proceedings relating to an industrial dispute---Proceedings under S.41 of the Industrial Relations Act, 2008 were not proceedings relating to anindustrial dispute'.

Fatehally Chemical Melmatkash Union (C.B.A.) v. Registrar of Trade Unions, Sindh and 4 others 1989 PLC 191; Trustees of the Port of Karachi v. Muhammad Saleem 1994 SCMR 2213; Board of Governors, Aitcheson College Lahore v. Punjab Labour Appellate Tribunal and others 2001 PLC 589; Mir Alam and others v. Registrar Trade Unions and others 2008 PLC 29; Abdul Salam v. Pakistan Synthetic Ltd. 2007 PLC 528; Muhammad Ali and others v. Presiding Officer, Sindh Labour Court No.1 and others 2000 PSC 633; National Bank of Pakistan v. Sindh Labour Appellate Tribunal and" another 1993 PLC 57; Fauji Sugar Mills Mazdoor Union, Trade Muhammad Khan, through General Secretary and Others v. Muhammad Ramzan, General Secretary, Fauji Sugar Mills Employees Union, Tando Muhammad Khan and others 1993 PLC 199; Pearl Continental Hotel, Karachi v. Muhammad Yasin 2006 PLC 269; Muhammad Ali and others v. Sindh Labour Court No.1, Karachi and others 1984 PLC 1645; Pakistan Steel Peoples Workers' Union v. Registrar of Trade Unions, Karachi and 6 others 1992 PLC 715; Progressive Employees' Union through General Secretary v. Registrar Trade Unions, Hyderabad Region, Hyderabad and another 2000 PLC 6; Mustehkum Cement Limited, through Managing Director v. Abdul Rashid and others 1998 PLC 172; Habib Bank Workers' Union v. Punjab Labour Appellate Tribunal and others 1984 PLC 1667; Syed Mushtaque Hussain Shah v. Riaz Muhammad Hazarvi and another PLD 1978 Karachi 612; 1992 SCMR 505; 1998 PLC 183; 1984 SCMR 925; 2008 SCMR 1377; 1985 PLC 1053; 1994 PLC 301; 1991 PLC 186; Trustees of the Port of Karachi v. Muhammad Saleem and another 1987 PLC 846; Mir Alam and others v. Registrar Trade Unions 2008 PLC 239 and Abdul Salam v. Pakistan Synthetic Ltd. 2007 PLC 528 ref.

(c) Industrial Relations Act (IV of 2008)---

----S. 2(XXIX)---Workman---Worker who had been dismissed, discharged, retrenched, terminated or otherwise removed from employment, no longer would fall in the definition of "workman"---If such dismissal etc. had taken place in consequence of industrial dispute or had led to an industrial dispute, then such person was included in the definition of "workman", but only for the purpose of any proceedings relating to an industrial dispute under the Industrial Relations Act, 2008---Such dismissed etc. workman would come to Labour Court by virtue of specific provisions contained in Standing Order 12(3) and not by virtue of any provision contained in Industrial Relations Act, 2008---Such person, in circumstances was not a workman and was not entitled to participate or vote in any referendum or balloting under S.24 of Industrial Relations Act, 2008---Said workman could not participate in any election of the union except when he fell within the 25% of outsiders who were permitted to be office-bearers of the union---Such outsiders were not permitted to be member of the union---Pendency of grievance petition in a Labour Court or proceedings before N.I.R.C. would not affect status of such a person---However, if interim order had been passed by a court of law and the employer had acquiesced in the order, the employer could not challenge participation by such a workman in such proceedings---Persons who had been removed from employment and whose grievance petitions were pending in the Labour Court or those who had been removed from employment and had not filed grievance petition, both were equally not `workman' as defined in Industrial Relations Act, 2008 and were not entitled to be included in the list of voters to be prepared by the Registrar Trade Unions under S.24(5) of Act, 2005.

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

----Art. 199---Constitutional jurisdiction---Scope---If an objection was raised before the State functionary or information was brought to his notice, it was his duty to attend to the objection and consider the information and thereafter pass such order as he could deem appropriate, but always in accordance with law---State functionary could not be allowed to close his eyes and to bulldoze his way through---Every functionary of a State was a slave of law and law would not only include enacted law but all the judicial principles laid down by the superior judiciary from time to time.

Dawood's case 2007 PLC (C.S.) 1046 rel.

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

----Art. 17---Industrial Relations Act (IV of 2008), Preamble---Denial of fundamental right---Article 17 -of the Constitution enshrined fundament right to form unions and associations---Industrial Relations Act, 2008 was one of the regulating statutes in that regard---If workers were denied right to cast their votes in the referendum by denying them such right that would defeat and jeopardize their fundamental right.

M. Sabir and Zakir H. Alvi for Petitioner.

Nemo for Respondents Nos. 1 and 2.

Ashraf Hussain Rizvi for Respondent No.3.

Rafiullah for Respondent No.4.

Date of hearing: 30th October, 2009.

2010 P L C 62

[Karachi High Court]

Before Shahid Anwar Bajwa, J

Messrs E.M. OIL MILL AND INDUSTRIES PRIVATE LIMITED COMPANY through Managing Director

Versus

COMMISSIONER FOR WORKMEN'S COMPENSATION AND AUTHORITY UNDER PAYMENT OF WAGES ACT and 231 others

C.P. No.S-38 of 2003, decided on 26th October, 2009.

(a) Employees' Cost of Living (Relief) Act (I of 1973)---

---Ss. 3-A & 7--Constitution of Pakistan (1973), Art.199---Constitutional petition---Ad-hoc relief, grant of---Government vide S.R.O.245(I)/97 issued on 25-3-1997 granted an ad hoc relief of Rs.300 per month to employees whose wages did not exceed Rs.4,065 per month---Services of the employees were terminated on 7-10-1997 under a Voluntary Retirement Scheme which allowed gratuity at the rate of 30 days for every completed year of service or part thereof exceeding six months---Employees were paid gratuity accordingly, however, while calculating gratuity, amount under S.R.O. of 25-3-1997 ad hoc relief was not included---Employees in their separate applications filed before authority under the Payment of Wages Act, claimed difference of gratuity on account of inclusion or non-inclusion of said Rs.300---Applications filed by the employees having directly been allowed in the High Court without invoking remedy of appeal provided under S.17 of Payment of Wages Act, 1937---Increase of Rs.300 was granted under a statutory notification which had statutory backing---No internal orders, circulars or office orders, however high could be the pedestal on which the authority issuing those orders or memorandum, be sitting upon, could not have the effect of wiping away to nothingness the rights guaranteed under a statutory notification---Employees were paid increase under notification along with their salaries from the date of the notification till the date they ceased to be employees---Employees were paid gratuity on the basis of basic wages plus Rs.110 which was cumulation of cost of living allowance under clauses (1)(2)(3) of S.3 of Employees' Cost of Living (Relief) Act, 1973---Was not understandable as to why one allowance under that law was included in the payment of gratuity and another allowance under the same law was not included---Under S.7 of Employees' Cost of Living (Relief) Act, 1973, all allowances would form part of wages and said section had provided that cost of living allowance would form part of wages for the purpose of gratuity---Proviso to S.7 of Employees' Cost of Living (Relief) Act, 1973 had provided that cost of living allowances would not form part of wages for the purpose of four statutes specified therein including Industrial Relations Ordinance, 1969; it could not be treated a part of wages for the purpose of any settlement, which was an instrument borne out of crucible of Industrial Relations Ordinance or its successor legislations---Order passed by Authority under Payment of Wages Act was upheld, and constitutional petition was dismissed.?

PLD 1972 Kar. 279; Mubeen-us-Salam's case PLD 2006 SC 6002; Syed Aftab Ahmed v. K.E.S.C. 1999 SCMR 197; 2008 SCMR 826; 1998 PLC 688; 1991 SCMR 1041; 1998 PLC (C.S.) 1371; 1998 PLC 71; Muhammad Idrees v. Agricultural Development Bank of Pakistan and others PLD 2007 SC 681; J.A. Wolf v. Peoples of the State of Colorado (1949) 338 US 25-93; Mapp v. Ohio (1961) 367 US 6; Malik Asad Ali and others v. Federation of Pakistan and others PLD 1998 SC 161; Al-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324; Golak Nath v. State of Punjab AIR 1967 SC 1643 and Kesavanand Bharati v. State of Kerala AIR 1973 SC 1461 ref.

(b) Interpretations of statutes---

----Legislation and interpretation by the court---Distinction---Difference was between legislation on one hand and interpretation by the court on the other hand---Legislation was always prospective, unless either when it was procedural or when the statute itself provided for its prospective operation---Such could not be said in respect of interpretation of legislation by the courts---When a court interprets law, it effectively says, that was intention 'of the legislature on the day when that particular piece of legislation was made---Interpretation had to travel back to wherever in time, the legislation was enacted, however, past and closed transactions would be saved.?

Kesavanand Bharati v. State of Kerala AIR 1973 SC 1461; Federation of Pakistan and others v. Moulvi Tamizuddin Khan PLD 1955 FC 240; Usif Patel and 2 others v. The Crown PLD 1955 FS 387; Imran v. Presiding Officer, Punjab Special Court No.VI, Multan and 2 others PLD 1996 Lah. 542; Mehram Ali and others v. Federation of Pakistan and others PLD 1998 SC 1445; Abid Hussain and 7 others v. Divisional Superintendent, Pakistan Railways, Quetta 2004 PLC 141; Zahirullah and 13 others v. Chairman, WAPDA and other 2000 SCMR 826; Messrs Brewery Co. Ltd. v. Pakistan through the. Secretary to Government of Pakistan, Works Division and 2 others PLD 1972 SC 279; Chairman Central Board of Revenue, Islamabad and others v. Messrs Pak-Saudi Fertilizer Ltd. and another 2001 SCMR 777; Messrs Hafiz Textile Mills Ltd. v. Commissioner for Workmen's Compensation and Authority under Payment of Wages Act, West Division, Amil Colony, Karachi, PLD 1993 Kar. 709; PLD 1982 Kar. 653; Ahmad Spinning Mills Ltd. v. Authority Under Payment of Wages Act and others, 1990 PLC 26; Mechanized Construction of Pakistan (Pvt.) Ltd. v. Commissioner Workmen's Compensation and Authority under Payment of Wages Act and another 1990 PLC 316; Town Committee Chowinda v. Arrora Masih and others 2000 PLC 181; Sarhad Development Authority, N. W . F. P. v. Jahanzeb and another 1999 PLC 377; Syed Match v. Authority under Payment of Wages Act and others 2003 PLC 395 and Mughal Surgical (Pvt.) Ltd., and others v. Presiding Officer Punjab Labour Court No.VII and others 2005 PLC 464 ref.

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

----Art. 199---Constitutional jurisdiction---Scope---Where an authority would pass an order and the law itself provided for remedy of appeal against the order of the authority, the party must avail that remedy of appeal and Art.199 of the Constitution should not be made a mere device for scuttling all the judicial hierarchy and judicial paraphernalia created by the statutes--However, in exceptional situations notwithstanding remedy of appeal, constitutional jurisdiction of High Court could be invoked by the party.?

A.F. Ferguson Co. v. The Fifth Sindh Labour Court, Karachi and another 1974 PLC 98 and Syed Aftab Ahmed and others v. KESC and others 1999 SCMR 197 ref.

(d) Interpretation of statutes---

----Labour laws being a welfare legislation, those should be liberally interpreted in favour of the workmen.?

(e) Qanun-e-Shahadat (10 of l984)---

----Arts. 72, 86 & 90---Interpretation of non-statutory documents---If two interpretations were possible, one favouring the writer and. other favouring the other party, the interpretation favouring the other party should be adopted.?

Moin Azhar Siddiqui for Petitioner.

Faiz Ghanghro for Respondents.

Date of hearing: 8th October, 2009.

2010 P L C 80

[Karachi High Court]

Before Shahid Anwar Bajwa, J

Messrs RANYAL TEXTILES through Proprietor/Employer

Versus

SINDH LABOUR COURT NO.3, KARACHI and 3 others

Constitutional Petitions Nos.517, 523, 558, 622, 669 to 674, 694 and C.M.A. No.2520 of 2009, decided on 20th October, 2009.

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

----Art. 175---Judicial powers of court-Concept-Court was a place where justice was judicially administered---"Judicial power" was the legal right, ability and authority to hear and decide, objectively and after allowing opportunity to produce evidence, a justiciable issue, dispute, or controversy; concerning the existing legal rights, duties or interests of persons or party; arising out of relations and dealings, between two or more parties; who bring the same for an authoritative decision; binding on them and could include the authority to execute or get executed its decision and protect rights, prevent and redress wrongs and punish offences through legal process---Further, the judicial power must be conferred by the State under Constitution or law and not the mere consent of parties, on persons who were paid by the State and removable by it only---Authority or body in which that power was vested was generally called Court' and in performing its functions it would declare, construe and apply law or custom or usage, having the force of law---Judicial power' in circumstances was the instrument to be used by the court.

Iftikhar Ahmed v. The Muslim 'Commercial Bank Ltd. and another PLD 1984 Lah. 69 and Bharat Bank Ltd.'s case AIR 1950 SC 188 ref.

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

----Arts. 175, 195(5), 212 & 225---Industrial Relations Act (IV of 2008), Ss.52 & 55---Establishment of courts and tribunals---Under the judicial system as established by the Constitution, there were courts and tribunals---Tribunals, however, were only limited to the tribunals specified in the Constitution, such as, Election Tribunals, Administrative Tribunals and Tribunals relating to Military affairs---Besides those tribunals, whenever judicial power was vested in a forum, whatever be its designation be it called a court, be it called a Tribunal or be it called a Commission, for all legal intends and purposes, it was a court; and had to be manned, controlled and regulated in accordance with the established judicial principles and the law relating to manning, regulation and control of courts in Pakistan---Labour Appellate Tribunal, legally speaking, though denominated as a Tribunal, was a court; nothing more, nothing less.

Mehram Ali and others v. Federation of Pakistan and others PLD 1998 SC 1445 and Imran v. Presiding Officer, Punjab Special Court No.VI, Multan and 2 others PLD 1996 Lah. 542 ref.

(c) Industrial Relations Act (IV of 2008)---

----Ss. 52 & 55---Labour Appellate Tribunal---Labour Appellate Tribunal, legally speaking, though denominated as Tribunal, was a court nothing more, nothing less---Labour Appellate Tribunal and the Labour Court exercise judicial powers and being courts they must be subordinate to respective High Courts in the provinces---Such subordination would include complete administrative and financial control and supervision by the High Court---Such administrative control and supervision could not be achieved, unless complete sway was given to the High Court in matters relating to appointment and other issues relating to Chairman of the Labour Appellate Tribunal and Presiding Officers of the Labour Courts.

Government of Sindh through Chief Secretary to Government of Sindh, Karachi and others v. Sharaf Faridi and others PLD 1994 SC 105; Government of Balochistan through Additional Chief Secretay v. Azizullah Memon and 16 others PLD 1993 SC 341; Shaikh Liaquat Hussain and others v. Federation of Pakistan through Ministry of Law,. Justice and Parliamentary Affairs, Islamabad and others PLD 1999 SC 504; Mehram Ali and others v. Federation of Pakistan and others PLD 1998 SC. 1445; Khan Asfandyar Wali and others v. Federation of Pakistan through Cabinet Division PLD 2001 SC 607; A & B Beverages Shama Labour Union v. Sindh Lahour Court 2000 PLC 389; Pakistan Telecommunication's case 1999 PLC 320; Nishat Group of Industries and another v. Chairman NIRC and others 1997 PLC 622; Shahid Islam's case PLD 1996 Lah. 699; Sindh High Court Bar Association through Secretary and another v. Federation of Pakistan through Secretary, Ministry of Law, Justice and Parliamentary Affairs Islamabad and others PLD 2009 SC 789 and Al-Jehad Trust through Raeesul Mujahideen Habib-ul-Wahab-ul-Khairi and others v. Federation of Pakistan and others PLD 1996 SC 324 ref.

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

----Art. 203---Judicial appointments and supervisory control over subordinate judiciary---All judicial appointments must be subordinate to the High Court and it was only High Court which could and should exercise exclusive administrative and supervisory control over subordinate judiciary---Such supervisory and administrative control could not even begin to exist if a credible and pivotal role was denied to the High Court in appointment of such person---Held, it would be axiomatic to say that a court was subordinate to High Court, but its Presiding Officer was to be decided and appointed by the Provincial Government without consulting High Court---Consultation with the Chief Justice of the High Court was sine qua non, an essential pre-requisite and a condition precedent for all such appointments.

Al-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324 ref.

(e) Industrial Relations Ordinance (IV of 2008)---

----S. 55---Constitution of Pakistan (1973), Art.203---Labour Appellate Tribunal---Qualification for appointment---Mere fact that a person had been a Judge or an Additional Judge of High Court in the past, would not ipso facto qualify him to be a member of the Labour Appellate Tribunal---Reason was not far to seek; only-the Chief Justice of High Court holding office at the relevant time was the most well equipped person to provide meaningful and purposive consultation which was current and relevant---Any past opinion by a past Chief Justice, though should receive highest consideration, could not be said to be sufficient for the purpose of consultation with the Chief Justice holding such office at the time when the concerned appointment was being made---Before appointing any person to be member of the Labour Appellate Tribunal, it was not only required that such person met requirements of subsection (2) of S.55 of Industrial Relations Act, 2008, but it was also essential that such person was appointed only and only after consultation with the Chief Justice of the High Court.

Munawar A. Malik v. Abdul Salam 2006 PLC 122 ref.

Tasawar Ali Hashmi, Sarwar Jehan, M.A.K. Azmati, Muhammad Iqbal Bhatti along with Zakir Hashmi Khaskheli, Sanaullah Noor Ghdri, Khalid Javed, Mehmood Abdul Ghani, Gohar Iqbal, S.M. Yakoob, M.A.K. Azmati, Syed Ghulam Nabi Shah, Secretary Law and Allam Din Baloch, Secrtary Labour.

2010 PLC 104

[Karachi High Court]

Before Shahid Anwar Bajwa, J

AL-KARAM TEXTILE MILLS (PVT.) LTD. through Power of Attorney

Versus

SINDH LABOUR COURT NO.4 and another

Constitutional Petition No.S-526 of 2009, decided on 20th November, 2009.

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

----Ss. 25-A & 65-B---Constitution of Pakistan (1973), Art.199---Constitutional petition---Grievance petition---Delay---Workman who met with accident remained under treatment---Workman, after recovery reported for duty, but employer did not allow him to join duty---Workman served grievance notice for redressal of his grievance and as said notice was not replied, workman filed grievance petition in the Labour Court along with application under S.65-B of Industrial Relations Ordinance, 1969 for condonation of delay---Grievance notice was served by the workman after about one year when he was declared fit for duty by the doctors---Since the grievance notice was barred by time, the grievance petition must also be treated as barred by time---Where the matter was barred by time the court could not go into merits of the controversy---In application for condonation of delay no ground whatsoever had been made for condoning the delay---Mere statement that workman was kept on promises by the employer was not sufficient to condone delay---Order passed by the Labour Court was set aside and grievance petition filed by workman was dismissed.

Tanveer Hussain v. Ravi Ryan Limited through Managing Director and others 2007 SCMR 737=2007 PLC 246; Ghanshamdas v. Presiding Officer, Sindh Labour Court No.VIII Larkana and another 2004 PLC 366; Ghanshamdas v. Presiding Officer, Sindh Labour Court-VIII, Larkana and another 2005 PLC 317; Muhammad Akram Khan v. District and Sessions Judge, Rahim Yar Khan and others, 2008 PLC (C.S.) 219; 2009 SCMR 1256; 2008 SCMR 1384; Secretary, B. & R., Government of West Pakistan and 4 others v. Fazal Ali Khan PLD 1971 Kar.625; Nagina Bakery v. Sui Southern Gas Limited and 3 others 2001 PLC (C.S) 760; Messrs Al-Hadi Textile (Pvt.) Ltd. v. Habibur Rehman 2001 PLC 635; Habib-ur-Rehman v. Sindh Labour Appellate Tribunal and others C.P.No.D-2441 of 2001; Abdul Rashid Malik and others v. General Manager, Pakistan Railways and others, 1992 PLC 1116; Nasir Jamal and 23 others v. Pak Suzuki Motor Company Limited and 3 others 2000 PLC 52; Mian Munir Ahmad v. The State 1985 SCMR 257; Farid Ahmad v. Pakistan Burmah Shell Ltd. and others 1987 SCMR 1463; Seagull Exports (Pvt.) Ltd. v. Sindh Labour Appellate Tribunal and others 2002 PLC 212; Pakistan Tobacco Co. Ltd. v. Punjab Employees' Social Security Institution, Lahore and another PLD 1978 Lah. 704; Punjab Small Industries Corporation v. Punjab Labour Appellate Tribunal, Lahore and others 1988 SCMR 1725; Taj Din and 44 others v. Punjab Labour Court No.3 Lyallpur PLD 1976 Lah. 1169; Collins v. Herts County Council (1947), Hilbery, J.L. Hussainbhai's, case AIR 1978 SC -1410; Harinagar Cane Farm and another v. State of Bihar and others (1963) (1) L.L.J.692; Pakistan Automobile Corporation Limited through Chairman v. Mansoor-ul-Haque and 2 others 2004 PLC (C.S:) 1151;. United Bank Ltd. through Hub Branch Manager v. Athar Ali Mangi 2007 PLC 545; Rakeshwar Dayal v. Labour Court, Kanpur and others (1962)(14 L.L.J 5; State Bank of India v. Ram Chandra Dubey and others' AIR 2000 SC 3734; U.P. State Brassware Corpn. Ltd., and another v. Udai Narain Pandey AIR 2006 SC 586; Malik Dairy Farms v. Their Workers' Union, 37 F.J.R. 412; State of Punjab v. Jagir Singh AIR 2004 SC 4757; U.P. Financial Corporation and others v. V.P. Sharma and another (1999)-III-LLJ 538; Abdul Hafeez Abbasi and others v. Managing Director, Pakistan International Airlines Corporation, Karachi and others 2002 PLC (C.S.) 1083; Fazal Elahi Siddiqui v. Pakistan through Secretary Establishment and 2 others PLD 1990 SC 692; Wali Muhammad Khokhar v. Government of Sindh and others 2001 SCMR 912 and Muhammad Latif v. Assistant Chief of Air Staff (Personal) and others 2005 SCMR 335 ref.

(b) Industrial Relations Act (IV of 2008)---

----S. 84---Limitation Act (IX of 1908), Preamble, Ss.3 & 5---Limitation---Limitation would shut the door and bar the remedy---Statutes of limitation were statutes of repose---It was in the interest of society and the community at large that after a certain lapse of time the citizens and the parties must be allowed ease of relaxation of their vigils---However, since there could be serious risk of justice, it was necessary that provision be made to protect bona fide litigants---Such was why S.84 of the Industrial Relations Act, 2008 made provisions of S.5 of the Limitation Act, 1908 applicable to proceedings and things to be done under said Act.

Mehmood Abdul Ghani for Petitioner.

Nemo for Respondents.

Date of hearing: 2nd November, 2009.

2010 PLC 114

[Karachi High Court]

Before Shahid Anwar Bajwa, J

UNITED BANK LIMITED through Power of Attorney

Versus

SINDH LABOUR COURT NO.5, KARACHI and another

Constitutional Petition No.S-492 of 2009, decided on 21st November, 2009.

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

----S.O. 15---Industrial Relations Act (IV of 2008), Ss.41 & 55---Constitution of Pakistan (1973), Art.199---Constitutional petition---Misconduct---Termination of service---Grievance petition---Services of employee serving in Bank were terminated after issuing him show-cause notice and holding enquiry against him on allegation of misconduct---Grievance petition filed by the employee against his termination was allowed and he was ordered to be reinstated in service without back benefits, with observation that employer would be at liberty to award proper, lenient punishment to the employee according to the circumstances of the case---Labour Appellate Tribunal as required by law under S.55 of Industrial Relations Act, 2008 having not been constituted in the Province of Sindh, employer had filed constitutional petition against judgment of the Labour Court---Charge against the employee was that he on five different occasions received amount, but did not account for the same---Banks operate in a system which was a rigid and documented one---Under Banking system, at the close of each day, if cash was found in excess the employee had to state, similarly if cash was found short, the employee had to state at the close of the day to the Bank---In the present case there was no statement of the employee that when he totalled the scroll, he found cash short---Employee had received the amount, but did not account for it at all---Bank/employer was not at fault ---Labour Court had stated in its order that the punishment was harsh keeping in view the gravity of the offence---Validity---Held, it was sole and absolute discretion of the employer to decide as to what punishment should be awarded to employee---If there was a financial misappropriation or embezzlement, howsoever small the amount could be and howsoever short period of embezzlement could be, the employee would not deserve any leniency---In case of Banks as money in the Bank was public money and even if there was temporary misappropriation, the charge was proved once, misappropriation was established and employee could not be allowed to go grinning by saying that he returned the embezzled amount---Return of embezzled amount would not wipe away the act of embezzlement---Stigma stop and stain remained conspicuous---Constitutional petition, which was maintainable in the absence of constitution of Labour Appellate Tribunal was allowed and impugned order passed by the Labour Court was set aside.

Pakistan Tobacco Co. Ltd. v. Channa Khan and others 1980 PLC 981; Nazir Ahmed Pathan and another v. The Muslim Commercial Bank Ltd. and others 2008 SCMR 899; Water and Power Development Authority through Chairman, WAPDA House, Lahore and 2 others v. Khawaja Abdul Waheed 2005 SCMR 753; Ghulam Mustafa Channa v. Muslim Commercial Bank Ltd. and others 2007 PLC 493; Ghulam Mustafa Channa v. Muslim Commercial Bank Ltd. and others 2008 SCMR 909; Janatha Bazar (South Kanara Central Co-operative Wholesale Stores Ltd., etc. AIR 2000 SC 3129; Mukarram Shah v. Sindh Labour Appellate Tribunal and others 2005 PLC 14; Muslim Commercial Bank Limited through Assistant Vice-President and Attorney v. Abdul Razzak Pathan, 2007 PLC 353; Akhtar Ali Mangi v. United Bank Limited 2008 PLC 94; Shaukat and others v. Allied Bank of Pakistan 2007 PLC 555=2007 SCMR 198 and Sultan Hussain v. National Bank of Pakistan and 2 others 2003 PLC (C.S.) 1247 ref.

Mehmood Abdul Ghani for Petitioner.

Respondent No.2 in Person.

Date of hearing: 21st October, 2009.

2010 P L C 125

[Karachi High Court]

Before Shahid Anwar Bajwa, J

Messrs INTERNATIONAL TEXTILE LIMITED through Factory Manager

Versus

REGISTRAR OF TRADE UNIONS GOVERNMENT OF SINDH and 3 others

Constitutional Petition No. S-75 of 2009, decided on 16th November, 2009.

(a) Industrial Relations Act (IV of 2008)---

----Ss. 3, 9 & 14---Constitution of Pakistan (1973), Art.17---Trade unions and freedom of association---Any role permitted or allowed to any one other than the Registrar of Trade Unions had to be treated with circumspection, because if other (essentially interested in curtailing the existence of such as union) were allowed a role, a say or an interference in the process of registration, at the end of the day, it might amount to shutting the doors in he face of the union itself---Every freedom had to be enjoyed in accordance with the law and every right granted by a statute had to be within the confines, constraints and conditionalities of that law---Statutory functionaries could not be allowed to become mechanical, whimsical and capricious---Path had to be delineated by a court between those too competing pulls.

Essa Cement Industries Workers' Union v. Registrar of Trade Unions, Hyderabad Region, Hyderabad and 4 others 1998 PLC 500; Agriculture Workers' Union, Balochistan v. The Registrar of Trade Unions, Balochistan, Quetta and others 1997 SCMR 66; Hinopak Motors v. Chairman Sindh Labour Appellate Tribunal and others 2008 PLC 89; Karachi Customs Agents Group through President and 3 others v. Registrar of Trade Unions, Sindh 2005 PLC 51; S.G. Fibers Employees Union v. RTU Government of Sindh and 5 others 2003 PLC 58; Union of Civil Aviation Employees, Lahore and another v. Civil Aviation Authority, Islamabad, through its Director General and 3 others PLD 1993 Lah. 306 and National Labour Relations Board v. Truck Drivers Local Union (1956) 353 U.S. 87 ref.

(b) Industrial Relations Act (IV of 2008)---

----Ss. 3, 9 & 14---Constitution of Pakistan (1973), Art.17---Registration of Trade Union---Principles enumerated.

Following are the principles with regard to registration of trade unions:---

(i) Law relating to Trade Unions has to be liberally and beneficially construed. This principle must irrigate every vein of industrial and labour law and much more so in case of laws relating to Trade Unions because Trade Unions are one facet and just one sprout of freedom of association which right is enshrined in Article 17 of our Constitution.

(ii) The Registrar cannot act mechanically and he must first conduct inquiry to satisfy himself as to meeting of various conditions and requirements laid down in respect of Registration by the Industrial Relations Act, 2008.

(iii) The question whether a proper inquiry was held or not is a jurisdictional fact which can be gone into by High Court in exercise of Constitutional jurisdiction and even if it was not possible for the High Court to itself embark upon an enquiry in that regard, the matter could be referred to relevant authority for further inquiry of the matter or to the Registrar for further inquiry. However no hard and fast rule had been laid down in respect of directing the manner in which inquiry is to be conducted by the Registrar.

(iv) Nothing contained in the Industrial Relations Act prevents the Registrar from seeking assistance either from the employer concerned or the Union or Unions formed by the workmen in the same establishment. However, the Registrar is not duty bound to seek assistance either of the employer of such Unions.

(v) Matter of registration is always between the Union applying for registration and the Registrar and others including pre-existing registered trade unions and employers would have not say in the matter.

(vi) Neither the employer nor a trade Union already existing in the same establishment can claim locus standi to challenge the decision of the Registrar merely on the ground that no opportunity of hearing was provided to it or an objection raised, by it before the Registrar was not considered before such decision.

(vii) If a Trade Union is registered there is no immediate .or direct injury caused by the order of registration to the employer or other trade union or unions. Since being an aggrieved party is the pre-requisite and condition precedent for maintaining a constitutional petition under Article 199 of the 'Constitution of Islamic Republic of Pakistan, neither the employer nor any other union or unions can be, at least, in law considered aggrieved person so as to hold them entitled to maintain a grievance petition against mere act of registration of a trade union. However they have a right to bring any contravention of relevant legal provisions to the notice of the Registrar. Apart from that no legal right of the employer or any other union or unions is infringed by the act of registration.

(viii) An Industrial Dispute under the provisions of the Act of 2008 can only be raised by Collective Bargaining Agent. No doubt a registered Trade Union under section 24 of the Act can aspire to become a Collective Bargaining Agent but not without notice to the employer and when that occasion arises, the employer can certainly raise the objection as to the legality of the registration of the Union and mere registration of Trade Union will not preempt employer from raising appropriate objection as to its legality or that its members are not workmen. Thus both the employer as well other union or unions have locus-standi to challenge registration of a Trade Union but at the time Registrar initiates steps for determination of collective bargaining agent. They cannot do so at any earlier stage. At that stage when challenge is raised all legal objections including objection as to applicability of the Act of 1968 as well as to legality of registration of the Trade Union.

Essa Cement Industries Workers' Union v. Registrar of Trade Unions, Hyderabad Region, Hyderabad and 4 others 1998 PLC 500; Abdul Jamil v. Registrar .Trade Unions, West Pakistan, Lahore and another PLD 1971 Lah. 220; Bata Shoe Co. (Pakistan) Ltd., Karachi v. Registrar of Trade Unions of Sindh and 2 others PLD 1978 Kar. 567; National Beverage Employees' Union v. Registrar of Trade Unions, Government of Sindh and 2 others 1986 PLC 533; Messrs Khas Traders v. Registrar Trade Unions and another 1990 PLC 351; Ghee Corporation of Pakistan v. Registrar, Trade Unions and another 1991 PLC 207; National Development Finance Corporation Staff Union (Pakistan) through General Secretary v. Registrar of Trade Unions, Government of Sindh and 3 others 1991 PLC 841; Holiday Inn Workers' Union v. Registrar Trade Unions and 2 others 1992 PLC 23; Government of Balochistan, Livestock Department v. Livestock Employees Union, Balochistan and 2 others 1993 PLC 13; Messrs Pakland Cement Limited, Karachi v. Registrar of Trade Unions, Karachi and 8 others 1994 PLC 177; Burewala Textile Mills Limited, Burewala v. Registrar, Trade Unions, Multan and 3 others 1994 PLC 323; Idara-e-Kissan v. Registrar of Trade Unions Lahore and others 1995 PLC 134; Messrs Ceramics Limited v. Registrar Trade Unions and others 1006 PLC 45; B.S. Magnetic (Pvt.) Ltd., Karachi v. Sindh-Labour Court Nos.5 and 2 others 1997 PLC 556; -Messrs Hakimsons Chemical Industries (Pvt.) Limited, Karachi through General Manager v. Registrar of Trade Unions (West), Government of Sindh, Karachi and another 1997 PLC 746; Messrs Hakim and Sons Chemicals v. Registrar of Trade Marks 1998 PLC 122; Pakistan Engineering Council v. Registrar, Trade Unions and another 1998 PLC 477; Hinopak Motors Limited v. Chairman, Sindh Labour Appellate Tribunal and others 2000 PLC 89; Habib Sugar Mills Ltd., through Manager v. Registrar of Trade Unions, Government of Sindh and another 2001 PLC 441; S.A. Brother (Pvt.) Ltd, through General Manager v. Registrar Trade Unions, Islamabad 2002 PLC 102; S.G. Fibers Employees Union v. RTU Government of Sindh and 5 others 2003 PJ.0 58; Messrs Karachi Customs Agents Group through President and 3 others v. Registrar of Trade Unions, Sindh 2005 PLC 51; Pakistan Services Limited v. Full Bench NIRC 2006 PLC 288; Lucky Textile Mills, through Managing Partner v. Mazdoor Union of Lucky Textile Mills, through General Secretary and 3 others 2007 PLC 366 and Wall's Employees Union, Lever Brothers now Uni-Lever Brothers v. Registrar of Trade Unions, District Kasur and 2 others 2007 PLC 521 ref.

(c) Interpretation of statutes---

----Court interpreting a law, given the cornucopia to facts, should not second guess wisdom of the legislature in enacting the law, rather it should make a sincere attempt to discovering the wisdom beyond the legislative enactment.

Rafiullah for Petitioner.

Khalid Imran for Respondent No.3.

Nemo for Respondents Nos.1, 2 and 4.

Date of hearing: 20th October, 2009.

2010 P L C 148

[Karachi High Court]

Before Shahid Anwar Bajwa, J

Messrs NAVEENA EXPORTS LTD.

versus

DIRECTORATE OF LABOUR, GOVERNMENT OF SINDH EAST DIVISION and 3 others

Constitutional Petition No.S-291 of 2008, decided on 21st December, 2009.

Industrial Relations Ordinance (XCI of 2002)---

----Ss. 12, 20(2) & 24---Constitution of Pakistan (1973), Art.199---Constitutional petition---Registration of Trade Union, cancellation of---Registrar issued notice under S.20(2) of Industrial Relations Ordinance, 2002, for determination of Collective Bargaining Agent---Employer wrote a letter for cancellation of registration of the Trade Union on the ground that it was registered in contravention of law as nine persons were not its employees---Validity---Once Registrar had registered a Trade Union, matter travelled beyond him and he had no power to recall such certificate of registration---If after having registered a Trade Union, Registrar came to the conclusion that registration of Trade Union had been effected in contravention of any of the provisions of law, Registrar could do nothing but file complaint before the. concerned Labour Court under S.12 of Industrial Relations Ordinance, 2002---Till decision by Registrar on the letter written by the employer, proceedings for determination of Collective Bargaining Agent were stayed---Matter was remanded to Registrar Trade Unions for decision on the letter written by employer---Petition was disposed of accordingly.

Messrs International Textile Limited v. Registrar of Trade Unions/Constitutional Petition No. S-75 of 2009 rel.

Khalil Ahmed Siddiqi for Petitioner.

Respondent No.4 in person.

Dates of hearing: 20th and 16th November, 2009.

2010 P L C 166

[Karachi High Court]

Before Shahid Anwar Bajwa, J

Messrs OPTIMUS LIMITED through Manager Human Resources

Versus

REGISTRAR OF TRADE UNION, SINDH through Joint Director Labour South and 2 others

Constitutional Petition No.S-452 of 2009, decided on 23rd December, 2009.

(a) Industrial Relations Act (IV of 2008)---

----Ss. 2(iii), 15, 24 & 30--Collective Bargaining Agent (CBA) and Collective Bargaining Unit (CBU), determination of---Scope---In case of more than one Trade Unions in an establishment, Registrar after holding secret ballot would determine only one Trade Union as CBA and not more than one---Only exception to such rule of one CBA in one establishment being a CBU determined by National Industrial Relations Commission (NIRC) out of one or more CBSs in various establishments--Once NIRC determined CBU in an establishment, thereafter there could be only one CBA in an establishment---In case of a company amongst others, all its offices and branches in Pakistan would constitute one establishment, thus, there could be only one CBA for workmen employed therein---Principles.

Muhammad Aqil's case 1974 PLC 194; Habib Bank Ltd. Employees Union, Multan Zone's case 1992 PLC 289 and Grindlays Bank (Lloyds Branch) Employees' Union v. RTU, Lahore Region, Lahore and others 1980 PLC 8001 ref.

Muslim Commercial Bank Limited v. R.A.T.U. and 2 others 2002 PLC 145 rel.

(b) Industrial Relations Act (IV of 2008)---

----Ss. 5 & 25---Trade Union, determination and registration of---Scope---Trade Union could be registered for whole of an establishment or a group of establishments or industry, but not for a part of an establishment---Trade Union in an establishment, unless determined and certified as Collective Bargaining Agent, could do nothing for its workers---Where membership of a Trade Union extends only within territory of a single Province, then Provincial Registrar of Trade Unions would have powers of registration and determination of Collective Bargaining Agent---Establishment having offices and branches spreading over more than one Provinces would be treated as a single establishment, for which only one Trade Union could be registered by National Industrial Relations Commission and not by Provincial Registrar of Trade Unions---Principles.

?

Muhammad Aqil's case 1974 PLC 194; Habib Bank Ltd. Employees Union, Multan Zone's case 1992 PLC 289 and Grindlays Bank (Lloyds Branch) Employees' Union v. RTU, Lahore Region, Lahore and others 1980 PLC 8001 ref.

Muhammad Sabir for Petitioner.

Nemo for Respondents.

Date of hearing: 16th November, 2009.

2010 P L C 174

[Karachi High Court]

Before Shahid Anwar Bajwa, J

REHMATUDDIN and another

Versus

REGISTRAR OF TRADE UNIONS, GOVERNMENT OF SINDH and 3 others

Constitutional Petition No.S-135 of 2007, decided on 14th January, 2010.

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

----S. 9---Registration of Trade Union---Change of office bearers---Approval of Registrar---Under the law no specific approval for change of office-bearers of Trade Union was required to be given by the Registrar Trade Unions---All that was required was for Trade Union to communicate to the Registrar within IS days of any change in office-bearers of the Trade Union--Registrar could refuse to register a change, however, there was no formal requirement of acceptance of registration---If Registrar would keep quiet on communication sent by Trade Union and did not respond to it within a reasonable period of time, it was to be presumed that Registrar had not refused to register the change; and consequently new office bearers would be within their right to take their new office.

Karachi Warehouse and Carriers Workers' Union v. Pakistan Warehouse Carriers Workers' Union and 3 others PLD 1978 Kar. 417 and Messrs Kohinoor Tea (Pvt.) Ltd. through Managing Director v. Registrar of Trade Unions, Karachi and 2 others 2000 PLC 1 rel.

(b) Industrial Relations Act (IV of 2008)---

----S. 6(1)(J)---Period for holding office by elected office bearers---Scope---Under provisions of S.6(1)(J) of Industrial Relations Act, 2008, the period for which a office-bearer was elected, was a maximum of two years---If said period of two years had passed and an office bearer would continue to hold office without further election, then he would be treated as usurper; and his holding of such office would be without lawful authority and of no legal effect.

MCB Staff Union of Pakistan v. Senior Member, NIRC, Lahore and 2 others 2001 PLC 131 ref.

Abdul Zubaid for Petitioners.

Muhammad Humanyoon for Respondent No.2.

Nemo for Respondents Nos. 1 and 3.

Date of hearing: 21st December, 2009.

2010 P L C 177

[Karachi High Court]

Before Shahid Anwar Bajwa, J

KARACHI CHAMBER OF COMMERCE AND INDUSTRY through President

Versus

SINDH LABOUR COURT NO.V, KARACHI and 2 others

Constitutional Petition No.S-295 of 2005, decided on 1st December, 2009.

(a) Industrial Relations Act (IV of 2008)---

----S. 2(xiv)---Industry'---Constitution ofIndustry'---In order to constitute "Industry" it was necessary that organisation must have profit as one of its motive, holding it otherwise, would mean that every company and every industrialist, would be able to escape the dragnet of Industrial Relations, Act, 2008 by constituting a trust even a Waqf-alal-Aulad Trust, stating that since the purpose was charitable, it was not Industry---Court had to look at the activity and not the motive for such activity in order to arrive at the conclusion, whether the activity fell in definition of Industry' or not---Motive for the activity, was not of much importance---Profit motive, in circumstances, was not an essential ingredient for bringing an organization within the definition ofIndustry'---Profit was not a sine qua non for bringing an activity within the ambit of Industry.

Chamber of Commerce and Industry, Karachi v. Presiding Officer, Sindh Labour Court No.3 Karachi and another PLD 1979 Kar. 189; 1960 PLC 96; Lahore Development Authority and another v. Abdul Shakoor and others 1992 PLC 1214; Rawalpindi Club, Rawalpindi v. Registrar of Trade Unions and 2 others 1989 PLC 760; Bangalore Water Supply and Sewerage Board v. Rajappa and others AIR 1978 SC 548; Federal Municipal and Shire Council Employees of Australia v. Melborne Corporation 26 CLR 508; K.G. Old, Principal, Christian Technical Training Centre, Gujranwala v Presiding Officer, Punjab Labour Court, Northern Zone and 6 others, 19761 PLC 675; Des Raj and others v. State of Punjab and others AIR 1988 SC 1182; Idara-e-Kissan v. Registrar of Trade Unions Lahore and others, 1995 PLC 134; Army Welfare Sugar Mills Workers Union v. Army Welfare Sugar Mills 2009 SCMR 202 = 2009 PLC 132; A.F. Ferguson & Co. v. The Sindh Labour Court and another PLD 1985 SC 429 and Federation of Pakistan, Chamber of Commerce and Industry Progressive Workers' Union (C.B.A) through the General "Secretary, Karachi v. Messrs Federation of Pakistan, Chambers of Commerce and Industry through General Secretary and another, 1997 PLC 741 rel.

(b) Industrial Relations Act (IV of 2008)---

----S. 2(xiv)--- Industry'---Tests to be fulfilled in order to constitute anIndustry '---Stated.

In order to constitute an industry an organization must fulfil the following tests:---

(i) That the words "industry, business, trade, manufacture etc." are not to be given their respective dictionary meanings. These words are of a wide reach and no hard and fast rules can be laid down as to whether an activity or enterprise is industry or not, (ii) It must be a (i) systematic activity, (ii) organized by cooperation between employer and employee (iii) for the production and/or distribution of goods and services calculated to satisfy human wants and wishes;

(iii) That the main object for formation of enterprise or any part thereof should be considered and incidental, ancillary or adjunct purposes are not relevant. Pith and substance test should be as applicable here as it is applicable for determining whether an employee is a workman or not;

(iv) Profit making is not an essential requirement for bringing an activity within the compass of industry.

(v) True test is functional: the activity of an organization. If the activity is or is even analogous to trade and business or service it would be industry. One has to look at the employer -employee interface bears resemblance to what happens in business in industry.

(vi) Activity may not involve an economic activity in which capital is invested.

(vii) Sovereign functions do not fall within definition of industry. But sovereign functions should not be treated to include every function carried on by the State. Sovereign function are limited to only those functions which can only be carried on by the State and no private individual can under take any of these functions.

Employees' Union, Jamia, Karachi v. Registrar of Trade Unions, Sindh and 2 others, 1981 PLC 403; State of Bombay and others v. The Hospital Mazdoor Sabha and others AIR 1960 SC 610; University of Delhi and another v. Ram Nath and another AIR 1962 SC 1080; Pakistan National Centre through its Chairman v. Presiding Officer, Punjab Labour Court No. 2, Lahore and another 1976 PLC 693; Managing Committee, The Punjab Club, Lahore v. The Registrar of Trade Unions, Lahore Region, Lahore and another 1993 PLC 543; Rawalpindi Club, Rawalpindi v. Registrar of Trade Unions and 2 others, 1989 PLC 760; Madras Gymkhana Club Employees' Union v. Management, AIR 1968 SC 554; Lahore Development Authority and others v. Abdul Shakoor and others, 1992 PLC 1214; K.G. Old's case PLD 1976 Lah. 1079; Agriculture Workers' Union, Balochistan v. The Registrar of Trade Unions, Balochistan, Quetta and others 1997 SCMR 66; University of Delhi's case AIR 1963 SC 1873; Corporation of Nagpur's case AIR 1960 SC 675; Superintending Engineer (HQ) Irrigation, Lahore Zone and another v. Punjab Labour Appellate Tribunal and others 1987 PLC 180; Cooperative Model Town Society v. Punjab Labour Appellate Tribunal and 2 others 1995 PLC 655; Lahore Development Authority's case 1992 PLC 1214; Water Sanitation Authority's case 2003 PLC 86; Sarhad Development Authority's case 2006 PLC 538; Ahmedabad Textile Industry's Research Association v. State of Bombay and others 1961 PLC 567; State of Bombay and others v. The Hospital Mazdoor Sabha and others (1960) 17 F.J.R. 423; Management of the Federation of Indian Chamber of Commerce and Industry v. Their Workman R.K. Mittal AIR f972 SC 763; Karachi Chamber of Commerce and Industry v. Karachi Chamber of Commerce and Industry Employees Union, 1960 PLC 96; Iftikhar Ahmed and others v. President National Bank of Pakistan and others PLD 1988 SC 53; Rehmat Ali v. The Security Papers Ltd. and another PLD 1982 Kar. 913 and Brooke Bond (Pakistan) Ltd. v. Conciliator appointed by the Government of Sindh and 6 others 1973 PLC 111 ref.

(c) Industrial Relations Act (IV of 2008)---

----S. 12---Constitution of Pakistan (1973), Art.199---Constitutional petition---Cancellation of registration of Trade Unions---Scope---Registration of Trade Unions would be cancelled if the Labour Court would so direct upon a complaint in writing made by the Registrar of Trade Unions that the Trade Union had contravened or had been registered in contravention of any of the provisions of Industrial Relations Act, 2008 or the Rules; had contravened any of the provisions of its constitution and had made in its constitution any provision which was inconsistent with said Act or the Rules---Registration of Trade Union would be cancelled by the Registrar, if after holding such inquiry as he deemed fit, he found that such Trade Union had dissolved itself or had ceased to exist; however, acting on his own, the Registrar did not have any jurisdiction to cancel registration of Trade Union---Where the Trade Union in question had not dissolved itself and was still alive, act of cancellation of registration by the Registrar of Trade Unions, in circumstances, was without lawful authority and of no legal effect.

Khalid Jawaid for Petitioner.

Rafiullah for Respondents.

Date of hearing: 9th October, 2009.

2010 P L C 207

[Karachi High Court]

Before Ms. Rukhsana Ahmad, J

Messrs INDUS MOTOR COMPANY LTD. through Senior Manager Administration and Security

Versus

COMMISSIONER, SINDH EMPLOYEES SOCIAL SECURITY INSTITUTION and another

Civil Miscellaneous Appeal No.43 of 2009, heard on 9th December, 2009.

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

----Ss. 2(8)(F), 20, 23 & 64---Delayed payment of amount of contribution---Imposition of penalty---Appeal---Appellant though had paid arrears of contribution for two periods, but same was paid late beyond the prescribed time limit for which the increase under S.23(1) of Provincial Employees' Social Security Ordinance, 1965 was leviable---Appellant was liable to pay correct contribution in accordance with law and failure to pay the same within prescribed time, appellant would be liable to pay increased amount under S.23(1) of the Provincial Employees' Social Security Ordinance, 1965, which was mandatory---Appellant having failed to pay due contribution within time limit, impugned order imposing penalty on appellant had rightly been passed against the appellant.

1981 PLC 79; 1980 PLC 1245; 1983 PLC 182; 2000 PLC 26; PLD 1991 SC 308 and 1991 SCMR 2361 ref.

Muhammad Sabir for Appellant.

Javed A. Sarwana for Respondent.

2010 P L C 276

[Karachi High Court]

Before Shahid Anwar Bajwa, J

Messrs PEARL CONTINENTAL HOTEL, KARACHI

Versus

S. ZAMIRUL HAQUE

L.R.A. No.50 of 2003, decided on 3rd March, 2010, (a) Administration of justice---

----Duty of court to fashion a path of justice in accordance with law---Litigation must be decided on basis of merits of each case, rather than on technicalities---Principles.

The principle of jurisprudence in Pakistan is that litigation be decided on the basis of merits of each case, rather than parties be knocked down by scepters of technicalities, which scepters though may seem very attractive to one party, but always look very hideous to the opposite party. The court has to fashion a path of justice, of course in accordance with the law.

(b) Industrial Relations Act (IV of 2008)---

----S. 1---Constitution of Pakistan (1973), Art.75---Commencement date of Industrial Relations Act 2008---Act received assent of the President on 6-12-2008 and published in Gazette of Pakistan on 15-12-2008 after issuance of its notification by Law Ministry on 14-12-2008---Effect---Bill having been passed by Parliament would become law and be called as an Act just after receiving assent of the President---Notification and publication in official gazette being administrative acts could not defeat provision of Art. 75(3) of the Constitution---Industrial Relations Act, 2008 came into operation on 6-12-2008 the day when the President gave assent.

(c) Industrial Relations Act (IV of 2008)---

----Ss. 86 & 87(2)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Revision application pending in High Court on date of commencement of Industrial Relations Act, 2008---High Court instead of transferring such revision to Labour Appellate Tribunal treated same as constitutional petition and decided accordingly---Reasons stated.

Munawwar A. Malik and another v. Abdul Salam, 2006 PLC122; Sindh Road Transport Corporation, Hyderabad v. Saleemuddin, NLR 1981 TD 253; Messrs Utility Stores Corporation of Pakistan Ltd. v. Sindh Labour appellate Tribunal and 2 others, 1990 PLC 268 and Mst. Hajran Bibi and others v. Abdul Ghani 2002 SCMR 1405 ref.

Royal Textiles through Proprietor/Employer v. Sindh Labour Court No.3, Karachi and 3 others, PLD 2010 Kar. 27 and Mehboob Ali Malik v. The Province of West Pakistan and another PLD 1963 Lah. 529 rel.

(d) Industrial Relations Act (IV of 2008)---

----S. 70---Industrial Relations Ordinance (XCI of 2002), S.62---Industrial Relations Ordinance (XXIII of 1969), S.51---Recovery of money due from an employer---Money due from an employer under an award, settlement or decision of arbitrator, Labour Court or High Court could be recovered as arrears of land revenue or as a public demand upon an application of person having clear entitlement thereto---Entitlement in dispute of fundamental nature could not be decided in jurisdiction under S. 62 of Industrial Relations Ordinance, 2002.

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

----Ss. 25-A & 51---Word "award" as used in S.51, of Industrial Relations Ordinance, 1969---Scope---Award would be always on industrial dispute---Decision on application under S.25-A of Industrial Relations Ordinance, 1969 for not being in respect of an industrial dispute would not be an award.

(f) Industrial Relations Act (IV of 2008)---

----S. 51---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.0.8---Reinstatement of employee by Court orders with full back-benefits---Effect---Such employee would be presumed to have never been removed from service and remained on duty throughout intervening period.

Messrs Tobacco International Ltd., Karachi v. Chairman, Sindh Labour Appellate Tribunal, Karachi and 2 others, 1993 PLC 87; Messrs Utility Stores Corporation of Pakistan Ltd. v. Sindh Labour Appellate Tribunal and 2 others, 1990 PLC 268 and Syed Arif Raza Rizvi v. Messrs Pakistan International Airlines through Chairman /M.D. Karachi, PLD 2001 SC 182 ref.

(g) Industrial Relations Act (IV of 2008)---

----S. 51---Conveyance allowance, entitlement to---Scope---Payment of such allowance would enable an employee to come to work and go back home---Employee not caring for work would not be entitled to such allowance.

Syed Arif Raza Rizvi v. Messrs Pakistan International Airlines through Chairman/M.D. Karachi, PLD 2001 SC 182 and Messrs Tobacco International Ltd., Karachi v. Chairman, Sindh Labour Appellate Tribunal, Karachi and 2 others, 1993 PLC 87 ref.

Muhammad Humayoon for Applicant.

Chaudhry Muhammad Latif Saghar for Respondent.

Date of hearing: 25th January, 2010.

2010 P L C 293

[Karachi High Court]

Before Shahid Anwar Bajwa, J

Messrs DREAMWORLD FAMILY RESORT through Secretary

Versus

REGISTRAR OF TRADE UNIONS and another

Constitutional Petition No.S-268 of 2008, decided on 16th December, 2009.

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

----Art. 199---Certiorari, mandamus or prohibition, writ of---Essential requirements for maintainability---Application must be by an aggrieved person.

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

----Ss. 9 & 20---Constitution of Pakistan (1973), Art.199---Trade Union, registration of---Constitutional petition by employer against such registration---Maintainability---Essential requirement for :maintaining writs in nature of certiorari, mandamus or prohibition being that application must be by an aggrieved person---"Person aggrieved" would be one who suffered from injustice or special injury different from that which affected him and public generally---Neither employer nor existing registered Trade Union could be an `aggrieved person' by mere act of registration of a Trade Union---High Court dismissed constitutional petition for being not maintainable.

Managing Committee, Punjab Club, Lahore v. Registrar, Trade Unions, Lahore Region, Lahore and another, 1993 PLC 543, Rawalpindi Club, Rawalpindi v. Registrar of Trade Unions and 2 others 1989 PLC 760; Syed Shahid Abbas and 36 others v. The Chenab Club (Guarantee) Limited, Faisalabad through its President and another, 2008 PLC 58; Aftab A. Chaudhry, Chairman Managing Committee Punjab Club, Lahore v. Registrar of Trade Unions, Lahore Region, Lahore and another, 1996 PLC 87; Islamabad Club v. Punjab Labour Court No.2 and others PLD 1980 SC 307; Atlas Autos Group Labour Union through General Secretary v. Registrar of Industry-Wise Trade Union and another, 2000 PLC 93; Essa Cement Industries Workers Union v. Registrar of Trade Unions, 1998 PLC 500; United Workers Union Al Abbas Sugar Mills Ltd. (CBA) v. Registrar of Trade Union and 3 others, CP No.S-22 of 2008; Islamabad Club v. Punjab Labour Court No.2 and others PLD 1980 SC 207; Secretary Madras Gymkhana Club Employees' Union v. The Management of the Gymkhana Club, AIR 1968 SC 554; Banglore Water Supply's case AIR 1978 SC 548 and Agricultural Workers Union Baluchistan v. The Registrar of Trade Union Quetta and others 1997 SCMR 66 ref.

International Textile Ltd. v. Registrar of Trade Union and 3 others, CP No.S-75 of 2009 and Words and Phrases, Permanent Edition, Volume 6 and Bata Shoe Company (Pakistan) Ltd. v. Registrar of Trade Unions of Sindh and 2 others, PLD 1978 Kar. 567 rel.

(c) Words and phrases---

---"Grievance", "party aggrieved" and "persons aggrieved"-Definition.

Black's Law Dictionary and Words and Phrases, Permanent Edition, Vol.6 ref.

Chaudhry Muhammad Ashraf Khan for Petitioner.

Qazi Wali Muhammad for Respondent No.1.

Ashraf Hussain Rizvi for Respondent No.2.

JUDGEMENT

SHAHID ANWAR BAJWA, J.--- This writ petition has been filed by Messrs Dreamworld Family Resort. Arrayed as Respondent No.2 is Dreamworld Family Resort Peoples Workers Union. It was stated in the petition that petitioner is a project of Dreamworld Limited, which is a company incorporated under the Companies Ordinance, 1984. It was further stated that Dreamworld Family Resort a club and therefore does not fall within the definition of industry as defined in the Industrial Relations Ordinance, 2002. It was stated in the petition that the petitioner employed workers for providing recreational facilities to its members. Some workers were proceeded against for misconduct and they filed a case before the National Industrial Relations Commission, which case is pending as Case No.4A(38) of 2008-K. It was further stated that on 28-5-2008 the workers who had filed petition before the NIRC were dismissed after due disciplinary process. Letters of dismissal are dated 28-5-2008 and they are stated to have been sent through registered post on the same day. An application for registration of Trade Union was filed. When the application was filed, Registrar of Trade Unions wrote letter on 2-6-2008 to the employer requiring the employer to provide information regarding name, parentage, department etc., in respect of each member/Office Bearer of the Union. On 6-6-2008 a letter was written by the petitioner to the Registrar Trade Unions (Respondent No.1) wherein firstly it was stated that the petitioner establishment is not industry as defined in the I.R.O. 2002 and thereafter it was stated that members as well as office-bearers had been proceeded against and were dismissed for misconduct on 28-5-2008. Therefore, formation of the Union was ab inito, void and illegal. It is not out of place to mention that in the letter written on 2-6-2008 it had stated that application for registration of Trade Union was received on 26-5-2008. On 11-6-2008 Registrar wrote to the employer and pointed out to him provisions of section 1(4)(a) to (g) and stated that since name of the club is not stated in the above subsection therefore the petitioner's establishment is "industry" as defined in the Industrial Relations Ordinance, 2002. This letter was replied to and ultimately on 17-6-2008 Registration Certification was issued to the union which registration certificate has been impugned in this petition.

1. Learned counsel for the petitioner made the following submissions:

(1) Learned counsel referred to the definition of establishment' contained in section 2(xi) and definition ofindustry' contained in section 2(xvii) of the I.R.O, 2002 and relying upon Managing Committee, Punjab Club, Lahore v. Registrar, Trade Unions Lahore Region, Lahore and another, 1993 PLC 543, Rawalpindi Club, Rawalpindi v. Registrar of Trade Unions and 2 others, 1989 PLC 760 and Syed Shahid Abbas and 36 others v. The Chenab Club (Guarantee) Limited, Faisalabad through its President and another, 2008 PLC 58 and Aftab A. Chaudhry, Chairman Managing Committee Punjab Club, Lahore v. Registrar of Trade Unions, Lahore Region, Lahore and another, 1996 PLC 87 contended that activity of the club does not fall within the definition of industry.

(2) That even those organization which do not fall within the scope of exempt in section 1(4)(a) to (g) of the I.R.O, 2002 will be covered by the Ordinance only if they fall within the definition of industry and establishment as contained in the Ordinance of 2002.

(3) That under section 6(2)(a) read with section (6)(1)(d) all the members of the union must be in the employment of the establishment and at least 75% of the office-bearers must be in the employment of the establishment. Employment of all the office-bearers who constituted all the membership of the union was terminated vide letters dated 28-5-2006 which were sent by registered post on the same day and therefore, they are no longer employees and therefore no longer workmen and therefore no longer entitled to be member of the union in question.

1. Mr. Muhammad Ashraf Hussain Rizvi, learned counsel for respondent No.2 made the following submissions:---

(1) That the petitioner club is part of a company and is making profit as indicated from its annual accounts for the year 2007 and 2008. It has itself declared that it has received the best business association award.

(2) Reliance on Chenab Club's case is misplaced because that case in turn relied upon Islamabad Club v. Punjab Labour Court No.2 and others PLD 1980 SC 307, in which a contrary finding had been given by the Supreme Court. It had been held in that case that a club is a commercial establishment as defined in the Industrial and Commercial Employment (Standing Orders) Ordinance 1968.

(3) That once a Trade Union had been registered its registration cannot be challenged in writ petition.

(4) In any case employer has no role in the process of registration of Trade Union. Learned counsel relied upon a plethora of case-law on this point which I shall refer in due place.

(5) That it is clear that letter dated 28-5-2009 is dismissal letter. This is a question of fact whether letter was sent or not. Even if it is assumed that the letter was sent it does not mean that it was received also on the same day. These are in any case questions of fact which cannot be decided in constitutional jurisdiction.

1. Learned State counsel supported the impugned order. While exercising his right of reply learned counsel for the employer submitted that employer has role in the registration of Trade Union and he also relied upon plethora of case law to which again I shall refer in their due place.

2. I have heard learned counsel and considered such submissions made by the learned counsel and have gone through the record.

3. I will first take up question of maintainability of the petition. As stated above, both the learned counsel relied upon a galaxy of case law. All of them (except two) were considered by this Court in International Textile Ltd. v. Registrar of Trade Union and 3 others C.P. No. S-75 of 2009 decided by this Court on 16-1-2009. In conclusion it was held as under:

(10) The principles that seem deducible from the above case-law appear to be as follows:---

(i) Law relating to Trade Unions to be liberally and beneficially construed. This principle must irrigate every vein of industrial and labour law and much more so in case of laws relating to Trade Unions because Trade Union are one facet and just one sprout of freedom of association which right is enshrined in Article 17 of our Constitution.

(ii) The Registrar cannot act mechanically and he must first conduct inquiry to satisfy himself as to meeting of various conditions and requirements laid down in respect of Registration by the Industrial Relations Act, 2008.

(iii) The question whether a proper inquiry was held or not is a jurisdictional fact which can be gone into by High Court in exercise of Constitutional jurisdiction and even if it was not possible for the High Court to itself embark upon an enquiry in that regard, the matter could be referred to relevant Authority for further inquiry of the matter or to the Registrar for further inquiry. However no hard and fast rule had been laid down in respect of directing the manner in which inquiry is to be conducted by the Registrar.

(iv) Nothing contained in the Industrial Relations Act prevents the registrar from seeking assistance either from the employer concerned or the union or unions formed by the workmen in the same establishment. However, the Registrar is not duty bound to seek assistance either of the employer or such unions.

(v) Matter of registration is always between the union applying for registration and the Registrar and others including pre-existing registered Trade Unions and employers would have no say in the matter.

(vi) Neither the employer nor a Trade Union already existing in the same establishment can claim locus standi to challenge the decision of the Registrar merely on the ground that no opportunity of hearing was provided to it or an objection raised by it before the registrar was not considered before such decision.

(vii) If a Trade Union is registered there is no immediate or direct injury caused by the order of registration to the employer or other Trade Union or unions. Since being an aggrieved party is the pre-requisite and condition precedent for maintaining a constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, neither the employer nor any other union or unions can be, at least, in law considered aggrieved person so as to hold them entitled to maintain a grievance petition against mere act of registration of a Trade Union. However they have a right to bring any contravention of relevant legal provisions to the notice of the Registrar. Apart from that no legal right of the employer or any other union or unions is infringed by the act of registration.

(viii) An Industrial Disputes under the provisions of the Act of 2008 can only be raised by Collective Bargaining Agent. No doubt a registered Trade Union under section 24 of the Act can aspire to become a Collective Bargaining Agent but not without notice to the employer and when that occasion arises, the employer can certainly raise the objection as to the legality of the registration of the Union...and mere registration of Trade Union will not pre-empt employer from raising appropriate objection as to its legality or that its members are not workmen. Thus both the employer as well other union or unions have locus standi to challenge registration of a Trade Union but at the time Registrar initiates steps for determination of collective bargaining agent. They cannot do so at any earlier stage. At that stage when challenge is raised all legal objections including objection as to applicability of the Act of 1968 as well as to legality of registration of the Trade Union.

1. First case not referred in that judgment is Atlas Autos Group Labour Union through General Secretary v. Registrar of Industry-Wise Trade Unions and another, 2000 PLC 93. Facts were that upon application for registration of Trade Union, objections were filed by rival Trade Union. Registrar issued notice to the objector. When the objector did not turn up even during second opportunity, Registration ordered that Union be registered. Entry regarding registration was made and formal certificate was put up to Registrar for signatures. However Registrar instead of signing the certificate observed that an application for adjournment had been received from the objector, set aside ex parte order and ordered that application for registration be listed for hearing. This order was challenged in writ petition. The Division Bench observed that "we are doubtful whether Respondent No.1 after having passed a clear order that a formal certificate be issued still retained the power to recall such an order" and then noted the other contention that " an Authority passing quasi judicial functions had...the power to recall ex­parte orders passed by it" held that in view of Essa Cement Industries Workers Union v. Registrar of Trade Unions, 1998 PLC 500 that rival Trade Union had no locus standi to maintain constitutional petition. Second is unreported case of United Workers Union Al Abbas Sugar Mills Ltd. (CBA) v. Registrar of Trade Union and 3 others C.P. No.S-22 of 2008 decided by this Court. It was a constitutional petition by a Trade Union against registration of third union allegedly in violation of requirements laid down in section 7(2)(b) of the Industrial Relations Ordinance, 2008. On the question of maintainability of petition it was held as under:---

"Coming to the objection raised by the learned counsel for respondent No.3 as to the locus standi of the petitioner to file and maintain the instant petition, no doubt the apex Court in the case of Essa Cement Industries Union (supra) has concluded that neither the employer nor the Trade Union already existing in the same establishment can claim locus standi to challenge the decision of the Registrar, merely on the ground that no opportunity of hearing was provided to it or an objection raised by it before Registrar was not considered before such decision. However, at the same time it was held that registration of a Trade Union may be cancelled in case it has contravened or has been registered in contravention of any of the provisions of the Industrial Relations Ordinance, as it would be beyond the competence of the Registrar to pass such order and such act are not immune from scrutiny of high Court in exercise of its constitutional jurisdiction. It is also by now well settled proposition of law that constitutional remedies are always available where any statutory or executive Authority entrusted with responsibility for taking certain action in accordance with law has not done so."

1. There cannot be any cavil with the proposition of taw propounded in this Authority. But the aspect that was not argued was that how a Trade Union (or for that matter even an employer) can be aggrieved by mere act of registration of a Trade Union. One of the essential requirements for maintenance of writs in the nature of certiorari, mandamus or prohibition is that application (or as is called, petition) must be by an aggrieved person. Grievance has been defined in Black's Law Dictionary as follow: "In Labour law a complaint filed by an employee, or by his or her union representative, regarding working conditions and for resolution of which there is procedural machinery provided in the union contract. An injury, injustice or wrong which gives ground for complaint because it is unjust, discriminatory and oppressive." A grievance has been defined in Words and Phrases, Permanent Edition, Volume 6 as under: "A grievance is an injury or wrong done which gives ground for complaint because it is unjust and oppressive, and a "party aggrieved" is one who suffers from injustice. "Persons aggrieved" are those who suffer from special injury different from that which affects them and the public generally." As has been held by this Court in Bata Shoe Company (Pakistan) Ltd. v. Registrar of Trade Unions of Sindh and 2 others PLD 1978 Kar. 567 and a number of authorities thereafter neither the employer nor a registered Trade Union can be an aggrieved person by mere act of registration of a Trade Union. Therefore this writ petition is held to be not maintainable and is liable to be dismissed.

2. In view of extensive arguments led by the learned Counsel on the point whether club is an industry or not, it may be appropriate to say a few words on this aspect of the controversy. One of the first case in respect of a club is case of Islamabad Club v. Punjab Labour Court No.2 and others, PLD 1980 SC 207. Respondent was employed as a bar Clerk in the Club. After charge sheet for misconduct and inquiry he was dismissed from service on 29-7-1975. His grievance petition was dismissed by the Labour Court and so was the appeal by the Tribunal. However the High Court after holding that employee was not given notice of all the charges found against him by the Inquiry Officer. The Club went to the Supreme Court and question before the Supreme Court was whether the Industrial and Commercial Employment (Standing Orders) Ordinance was applicable to the Club and answer of the Supreme Court was in the affirmative. It is to be noticed that question of applicability of the Industrial Relations Ordinance was not at all raised or involved in this case.

9-A Next in chronological order is the case of Rawalpindi Club, Rawalpindi v. Registrar of Trade Unions and 2 others, 1989 PLC 760 by Single Bench of Lahore High Court. In this case the learned judge first analysed definition of industry without any reference to activities of a club and concluded as under:---

"The following rules emerge laying down the test for determination of a fact whether a human activity or human enterprise is industry or not:

"The following rules emerge laying down the test for determination of a fact whether a human activity or human enterprise is industry or not:

(i) That the word `industry, business, trade, manufacture are not to be given dictionary meanings. These words are of a wide reach and no hard and fast rules can be laid down as to whether an activity or enterprise is industry or not.

(ii) `Industry' is a systematic human activity or enterprise in which labour is employed by the employer for the purpose of conducting business as a mean of livelihood earning profit or for rendering material service to the community with the active participation of the workman. In this activity labour and service is provided by workman while the capital is provided by the employer.

(iii) The human activity must not be casual or for recreation. It must not be for a pleasure. It must be carried out by the workmen and employer for the purpose indicated above.

(vi) The human activity is carried out by the workmen at the behest of their masters who are to undertake the take of organization and are to provide the necessary means for carrying out the activities.

(v) The earning of the profits in this activity is not essential. It may even provide material service to the community in an organized manner."

9-B Thereafter his lordship referred to Memorandum of Association of the club (it is a company incorporated under the Companies Act, 1913) and then constitution of its Executive Committee and then held as under:---

"Club provides recreational facilities. It has tennis courts, cricket ground and provides arrangement for indoor games, billiard room, card room and also some residential facilities. It had a large membership and the activities of the club which related to the facilities for pleasure, and amusement of its members although the outside members can come in order to enjoy these facilities but they can only come at the invitation of the members, therefore, it can be safely said that the activities of the club are neither analogous to trade, business, calling nor they provide any service to the community.

"From examination of the Constitution of the Club, membership and the facilities, it provides to its members, it can be said without any contradiction that it is a member club. The activities of the Club are exclusively for the pleasure and recreation of its own members. It does not undertake any human activity which may fall within the ambit of business, trade, manufacture, calling services, employment or occupation. I am, therefore, of a clear view that it cannot be treated as an `industry' and the Registrar Trade Unions, therefore, had no jurisdiction to entertain this application or register a union of workmen of this Club as a Union under the Ordinance."

9-C Thereafter the Court held that the club is incidental to and connected with the armed forces of Pakistan and therefore the Industrial Relations Ordinance is not applicable to it. This narration, in my view makes it clear that in this case nature of activities of club were brought into focus and no pro and contra arguments on this point were led.

1. The next case is Managing Committee the Punjab Club Lahore v. The Registrar or Trade Unions, Lahore Region, Lahore and another, 1993 PLC 543. It was claimed by the club (which is a society registered under the Societies Registration Act, 1860) they came to know about registration of the Trade Union only when a charter of demands was received by them. It was pleaded that the club does not fall within definition of industry as given in section 2(xiv) of the Industrial Relations Ordinance, 1969. The learned judge referred to definition of club in Blacks Law Dictionary, Ballentine's Law Dictionary, American Jurisprudence, Halsbury's laws of England, Corpus Juris Secundum, Aiyar's Judicial Dictionary, Stroud's Judicial Dictionary and thereafter held as under:---

"On the analysis of the definitions, it will appear that a club' is generally understood not as a commercial or industrial organization but is in the nature of a second home to its members. It is especially so in the case of a private club. The income which the club generates is from contributions of its members and is not outcome of any business activity. The services being rendered by a club are confined to its members and are more in the nature of those which are enjoyed by a person in his own house. No services are rendered by aclub' to the public in general and to the community at large or even a section thereof. It is therefore, difficult to agree with. M. Asghar Malik Advocate that merely because material services are being provided by a club it should be considered as an industry."

1. 1996 PLC 87 is the same judgment as 1993 PLC 543, albeit under a different heading. The last judgment in the series is Syed Shahid Abbas and 36 others v. The Chenab Club (Guarantee) Limited, Faisalabad through its President and another, 2008 PLC 58. This judgment has merely relied upon Punjab Club's case (Supra) and as has been rightly argued by Mr. Rizvi has, it is said with respects, misconstrued dicta of the Supreme Court in Islamabad Club's case (supra).

2. The above narration shows that as far as Pakistani jurisdiction is concerned, the question whether a club falls within definition of `industry' or not has yet been really thrashed out. As far as, Indian jurisdiction is concerned Secretary Madras Gymkhana Club Employees' Union, The Management of the Gymkhana Club, AIR 1968 SC 554 contains as exhaustive discussion on this question. The relevant part is as under:

"(30) This ends discussion of what is an industry. We are not in a position to consider whether the Madras Gymkhana Club fulfills the tests laid down by this Court and accepted here by us. In support of the claim on behalf of the employees Union, our attention was drawn to two decisions of the Calcutta High Court relating to the Bengal Club Ltd. v. Santi Ranjan Somaddar AIR 1958 Cal. 545 and Royal Calcutta Golf Club Manzoor Union v. State of West Bengal, AIR 1956 Cal. 550. Both decisions are by a learned Single Judge. They were cases of incorporated companies running clubs for profit and as business. There are however, observations which are clearly obiter, that even a non-proprietary member's club is an industry. Founding itself on those observations the Union contends that the club in the present case must also be treated as an industry. In fine the claim is based on the following consideration: (a) that the club is organized as an industry is organized on a vast scale with multifarious activities, (b) that facilities of accommodation, catering sale of alcoholic and non-alcoholic beverages, games etc. are provided,(c) that the club runs parties at which guests are freely entertained and (d) that the club has established reciprocal arrangements with other clubs for its members. In our opinion none of these considerations is sufficient to establish that the club is an industry within the Industrial Disputes Act.

(31) We cannot go by the size of the club or the largeness of its membership or the number or extent of these activities. We have to consider the essential character of the Club activity in relation to the definition of industry. As we said before the definition is in two parts. The first part which we called the denotation or the meaning of the word shows what an industry really is and the second part contains the extended connotation to indicate who be considered an integral part of the industry on the side of employees. Beginning with the second part, it may at once be conceded that the activity of the club is conducted with the aid of employees who follow callings or avocations. Therefore if the activity of the employees is within the -realm of industry, the answer must be in favour of the Union. But taking the first part of the definition it may also be said that the club does not follow a trade or business. Its activity cannot be described as manufacture and the running of clubs is not the calling of the members or its managing committee. The only question is, is it an undertaking?

(32) Here the appearances are some what against the club. It is not of any consequence that there is no profit motive because that is considered immaterial. It is also true that the affairs of the club are organized in the way business is organized, and that there is production of material and other services and in a limited way production of material goods mainly in the catering department. But these circumstances are not truly representative in the case of the club because the services are to the members themselves for their own pleasure and amusement and the material goods are for their consumption. In other words, the club exists for its members. No doubt occasionally strangers also take benefit from its services but they can only do so on invitation of members. No one outside the list of members has the advantage of these services as of right. Nor can these privileges be bought. In fact they are available only to members or through members.

(33) If today the club were to stop entry of outsiders, no essential change in its character vis-a-vis the members would take place. In other words, the circumstances that guests are admitted is irrelevant to determine if the club is an industry. Even with the admission of guests being open the club remains the same, that is to say, a member's self-serving institution. No doubt the material needs or wants of a section of the community is catered for but that is not enough. This must be done as part of trade or business or as an undertaking analogues to trade or business. This element is completely missing in a members' club.

(34) It is contended that, although there is no incorporation as such the club has attained an existence distinct from its members. It may be said that members come and members go but the club goes on for ever. That is true in a sense. We are not concerned with members who go out. The club belongs to members for the time being on its list of members and that is what matters. Those members can deal with the club as they like. Therefore, the club is identified with its members at a given point of time. Thus it cannot be said that the club has an existence apart from the members.

(35) It is said that the case of the club is indistinguishable from the Hospital case. That case is one which may be said to be on the verge. There are reasons to think that it took the extreme view of an industry. We need not pause to consider the Hospital case because the case of a members' club is beyond even the confines established by that case. In our judgment the Madras Gymkhana Club being a members' club is not an industry and the Tribunal was right in so declaring.

(36) The appeal fails and is dismissed but we make no order about costs. "

2010 P L C 306

[Karachi High Court]

Before Gulzar Ahmed and Shahid Anwar Bajwa, JJ

Messrs MUTUAL FUNDS ASSOCIATION OF PAKISTAN (MUFAP)

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Finance, Government

of Pakistan and another

Constitutional Petition No.D-2764 of 2009, decided on 12th May, 2010.

(a) Res judicata---

----Essential elements---In order to constitute res judicata, it is essential that order was between the same parties.

(b) Workers' Welfare Fund Ordinance (XXXVI of 1971)---

----S. 2(f)(iv)(a) [Clause (iv)(a) inserted vide S.8 of Finance Act (I of 2008)]---Constitution of Pakistan (1973), Art.199 and Fourth Schedule, Federal Legislative List, Part-I, Item 47---Constitutional petition---Locus standi---Tax or fee---Determination---Vires of newly added cl.(iv)(a) in Workers' Welfare Fund Ordinance, 1971---Petitioner was an organization playing a role in development of capital market by promoting and developing both open ended and closed ended funds, investment advisors and asset management companies---Petitioner assailed amendment made by S.8 of Finance Act, 2008, whereby in S.2(f) of Workers' Welfare Fund Ordinance, 1971, new clause (iv)(a) was inserted---Validity---Mere fact that one of the objects as contained in Memorandum of Association of petitioner was promoting etc. interest of its members, was not sufficient to put petitioner in the shoes of its members and hold it entitled to maintain petition in respect of a cause which could conceivably cause grievance to its members---Petitioner was not an `aggrieved person' in respect of applicability of amendment introduced in Workers' Welfare Fund Ordinance, 1971, by Finance Act, 2008, to its members---Petitioner was not entitled to maintain its petition in respect of grievance, if any and whatsoever it might be of any of its members---High Court declined to hold that Legislature could impose a tax on income only and only through Income Tax Ordinance, 1979---If Legislature through any other piece of law authorized as compulsory exaction for public purpose without making/rendering of his service a condition for a levy, such a levy, by whatever name called, would be a tax on income---Amendment incorporated in Workers' Welfare Fund Ordinance, 1971, by Finance Act, 2008, was also a financial amendment as it imposed a sort of tax on income of establishments including the petitioner---Tax on income, other than agricultural income was within the legislative competence of Parliament under Item 47 of Part-I of Federal Legislative List contained in the Fourth Schedule to the Constitution, therefore, adoption of amendment on a money bill was not ultra vires the Constitution---Amendment by Finance Act, 2008, by which amendment clause (iv)(a) in S.2(f) of Workers' Welfare Fund Ordinance, 1971, was added, was applicable to the establishment of the petitioner---Petition was dismissed in circumstances.

Fazal Dad v. Col (Rtd.) Ghulam Muhammad Malik and others PLD 2007 SC 571; Sindh High Court Bar Association through its Secretary and another v. Federation of Pakistan through Secretary, Ministry of Law and Justice, Islamabad and others PLD 2009 SC 879; Messrs Saif Textile Mills Ltd. v. Pakistan through Secretary, Finance (Finance Division) Islamabad and 3 others PLD 1998 Pesh. 15; Messrs Fatima Enterprises Ltd. v. Federation of Pakistan through Secretary, Education, Ministry of Education, Islamabad and others 1999 MLD 2889; Elahi Cotton Mills Ltd. and others v. Federation of Pakistan through Secretary Ministry of Finance, Islamabad and 6 others PLD 1997 SC 582; Pakistan Burma Shell Ltd. and another v. Federation of Pakistan, through Secretary, Ministry of Finance, Government of Pakistan, Islamabad and 3 others 1998 PTD 1804; Pakistan Steel Re-rolling Mills Association v. Province of West Pakistan 1964 PLC 121; Democratic Workers' Union C.B.A. v. State Bank of Pakistan, 2002 PLC (C.S.) 614; Sindh Alcali's case 1992 SCMR 32; Province of Balochistan through Secretary Excise and Taxation Department, Civil Secretariat, Quetta and 2 others v. Murree Brewery Company Ltd. through Secretary PLD 2007 SC 386 and Muntizma Committee, Al-Mustfa Colony (Regd.) Karachi and 3 others v. Director Katchi Abadies Sindh and 5 others, PLD 1992 Kar. 54 ref.

(c) Workers' Welfare Fund Ordinance (XXXVI of 1971)---

----Preamble---Establishment of Workers' Welfare Fund---Object, purpose and scope---Workers' Welfare Fund was established for providing residential and other facilities for all workers and not for workers of any particular establishment---Separate accounts for benefit of workers are not maintained and amount paid to Workers' Welfare Fund by an establishment is not utilized only for the benefit of workers of that establishment by which a particular amount is collected---Purpose of Workers' Welfare Fund is to collect funds from all industrial establishments (as defined at a given time) and then to utilize them for the benefit of workers employed where-ever they may be.

(d) Workers' Welfare Fund Ordinance (XXXVI of 1971)---

----S.2(f)---West Pakistan Shops and Establishments Ordinance (VIII of 1969), Ss.2(e), 2W & 2(o)---Expression 'establishment'--Connotation-Not only the establishments which carry on any business, trade or profession but also the establishment which carries incidental or ancillary work to any business, trade or profession are included in the definition of establishment.

(e) Workers' Welfare Fund Ordinance, (XXXVI of 1971)---

----S. 2(f)(iv)(a)---Workers' Welfare Fund---Tax or fee---Determina­tion---Imposition under Workers' Welfare Fund Ordinance, 1971, is in the nature of tax and not in the nature of fee because it is not a charge for service rendered or to be rendered and is a compulsory exaction of money by public authority for public purpose enforceable by law and is not payment for services rendered.

Muhammad Ismail and Co. v. Chief Cotton Inspector, PLD 1966 SC 388 rel.

(f) Interpretation of Constitution---

----Entry in Legislative List of the Constitution---Scope---Such entry cannot be construed narrowly or in a pedantic manner but is to be given a liberal construction---It should be as far as possible or permissible, interpreted in a manner so as to sum the legislation rather than in a narrow manner so as to reduce as far as possible power of Parliament to legislate.

(g) Constitution of Pakistan (1973)---

----Arts. 184(3) & 199---Judicial review, power of---Scope---Where Constitution or any statutory instrument excludes jurisdiction of superior Courts, Supreme Court and High Court, in many circumstances have power of judicial review available with them.

Nadeem Akhtar and Akbar Muhammad Khan for Petitioner.

Ashiq Raza, D.A.-G. along with Deputy Director Workers' Welfare Fund, Rashid Latif for Respondents.

Date of Hearing: 27th April, 2010.

2010 P L C 323

[Karachi High Court]

Before Gulzar Ahmed and Shahid Anwar Bajwa, JJ

NASIRUDDIN GHORI

Versus

FEDERATION OF PAKISTAN through Secretary and 4 others

Constitutional Petition No.D-827 of 2007, decided on 3rd June, 2010.

(d) Words and Phrases---

----"Control"-Connotation.

Black's Law Dictionary; Concise Oxford English Dictionary; Ballentine's Law Dictionary and Controlling Interest 18Am J2d Corp and 496 ref.

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

----Art. 199(5)---Word "control" in the context of Art.199 of the Constitution---Interpretation.

Concise Oxford English Dictionary; Ballentine's Law Dictionary and Controlling Interest 18 Am J2d Corp & 496 ref.

Anoosha Shaigan v. Lahore University of Management Sciences PLD 2007 Lah. 568 dissented.

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

----Art. 199---Constitutional jurisdiction of High Court---Scope--Corporation of which Federal Government owned majority shares, either in its own name, or, whether wholly or partially, in the name of any other organization or entity controlled by the government, was and shall continue to be amenable to the jurisdiction of High Court under Art.199 of the Constitution.

[Case-law discussed]

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

----Art. 199(5)---Constitutional jurisdiction of High Court---Right of employees of corporation controlling shares of which were held by government having no statutory Service Rules and those of privatized organizations having no statutory Service Rules of their own, to file constitutional petition against their employers---Corporation whose controlling shares were owned by the government was amenable to the jurisdiction of High Court under Art.199 of the Constitution if, however, the corporation did not have statutory service rules, constitutional petition of employees of said corporation was liable to be dismissed---Privatized organizations were neither `persons' amenable under Art.199 of the Constitution nor did they have statutory service rules, constitutional petitions of employees of such organization was liable to be dismissed.

[Case-law ref.]

Muhammad Nawaz Shaikh, Moula Bux Khoso, Azizur Rahman Akhund, Shahabuddin, M.M. Aqil Awan, M.A.K. Azmati, Shujauddin, Nihal Hashmi, Nishat Warsi, Masood Ahmad Bhatti, Mushtaq Shaikh, Muhammad Qutabuzaman, Mohsin Imam and Haseeb Rehman for Petitioners.

Haider Waheed, Khurram Rahseed, Ms. Azeema Naseer, Sanaullah Noor Ghori, Mehmood Abdul Ghani and Sakhiullah Chandio for Respondents.

Date of hearing: 3rd June, 2010.

2010 PLC 359

[Karachi High Court]

Before Gulzar Ahmed and Shahid Anwar Bajwa, JJ

INDUSTRIAL RELATIONS ADVISORS' ASSOCIATION through General Secretary

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Labour and Manpower, Islamabad and others

Constitutional Petition No. D-1432 of 2010, decided on 18th June, 2010.

(a) Interpretation of statutes---

----Sunset legislation---Meaning---Sunset legislation requires periodic review of the rationale for continued existence of the particular law or the specific administrative agency or other governmental function---Legislature must take positive steps to allow the law, agency, or functions to continue in existence by a certain date or such will cease to exist.

Black's Law Dictionary; Craies on Statutes Law 7th Edit. and Crawford's Interpretation of Laws, p.103 ref.

(b) Interpretation of statutes---

---Temporary legislation---Law may be temporary because of nature of legislative power---Principles.

A law may be temporary because of nature of Legislative power. For example power to legislate through Ordinances is quasi legislative power: power is legislative but exercise is executive. The Constitution itself fixes life of such enactment.

Understanding Statutes by S.M. Zafar ref.

(c) Industrial Relations Act (IV of 2008)---

----Preamble & S.87(3)---Section 87(3) of Industrial Relations Act, 2008 had clearly stipulated a death knell moment for the Act, notwithstanding the same having been enacted as an Act of Parliament, said Act had to be treated as a temporary law and had to be given effect accordingly.

There may be Acts of Parliament which may be temporary because either the Act itself or any law provides for a terminal moment for the enactment. Since 'section 87(3) of the Act clearly stipulated a death knell moment for the Act, notwithstanding same having been enacted as an Act of Parliament it has to be treated as a temporary law and has to be given effect accordingly.

Commissioner of Income Tax, Karachi v. Ebrahim D. Ahmad and others 1992 PTD 1353; Pir Sabir Shah v. Shad Muhammad Khan, Member Provincial Assembly, N.-W.F.P. and another 1995 SC 66; Federation of Pakistan and others v. Muhammad Nawaz Khokahr and others PLD 2000 SC 26; State v. Muhammad Sharif PLD 1960 Lah. 236; Sargodha Bhera Bus Service Ltd. and others v. Province of West Pakistan and another PLD 1959 SC 127; Gooderham and Worts, Ltd. v. Canadian Broadcasting Corporation AIR 1949 PC 90; State of Orrisa v. Bhupendra Kumar Bose and others AIR 1962 SC 945; Qudrat Ullah v. Municipal Board, Bareilly AIR 1974 SC 396; Ameer-un-Nissa Begum and others v. Mehboob Begum and others AIR 1955 SC 352; Hansraj Moolji v. State of Bombay AIR 1957 SC 597; Abdul Ghani and another v. Province of Balochistan and 2 others PLD 1982 Quetta 63 and Muhammad Arif and another v. State and another 1993 SCMR 1989 ref.

(d) General Clauses Act (X of 1897)---

----S. 6---Scope and application of S.6, General Clauses Act, 1897---Where an Act expires by its own force rather than by being repealed by another piece of legislation, S.6, General Clauses Act, 1897 was not applicable.

Muhammad Arif and another v. State and another 1993 SCMR 1989 and Muhammad Nawaz Khokhar and others PLD 2000 SC 26 ref.

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

----Art. 264---Scope and application of Art.264 of the Constitution---Where an Act expires by its own force rather than by being repealed by another piece of legislation, case of such a .repeal was not under or by virtue of the Constitution---Article 264 of the Constitution therefore, was not applicable to the consequences of such repeal.

(f) Industrial Relations Act (IV of 2008)---

----Preamble & S.87(3)---Constitution of Pakistan (1973), Art.264---General Clauses Act (X of 1897), S.6---Industrial Relations Act, 2008 was a temporary law; it expired of its own force (S.87(3)) on 30-4-2010, it was to be presumed as' if it never existed, except for transactions past and closed; neither S.6, General Clauses Act, 1897 nor Article 264 of the Constitution were applicable and for all legal purposes, except for transaction past and closed, the law returned to the position to which it would have been had the Act never been enacted.

(g) Constitution of Pakistan (1973)---

----Arts. 97 & 137---Extent of executive authority of Federation and Provinces---Parliament and Provincial Assemblies have power to legislate, Federation and Provinces have the executive authority---Legislative power and executive power co-exist.

(h) Constitution of Pakistan (1973)---

----Art.270-AA(8) [as substituted by the Constitution (Eighteenth Amendment) Act (X of 2010)]---Industrial Relations Act, (IV of 2008), S.87(3)---Repeal and savings---Section 87(3) of Industrial Relations Act, 2008 related to legislative power and had no relationship with devolution of executive authority---Article 270-AA(8) of the Constitution therefore, had, no applicability in respect of S.87(3) of Industrial Relations Act, 2008.

(i) Constitution of Pakistan (1973)---

----Art.270-AA(6) [as substituted by the Constitution (Eighteenth Amendment) Act (X of 2010)]---Object and purpose of Art.270-AA(6) of the Constitution--Had there been no Art. 270-AA(6) of the Constitution on 19-4-2010 (date of enforcement of substituted Art. 270-AA(6) of the Constitution) all laws made by the Parliament in respect of items enumerated in the Concurrent Legislative List would have come to an end, such was the mischief which was sought to be cured by Art.270-AA(6) of the Constitution---Article .270-AA(6) of the Constitution starts with the words "notwithstanding omission of Concurrent Legislative List"; word notwithstanding' meansdespite' or spite of' a non obstante clause was used in a provision to indicate that the provision shall prevail despite anything to the contrary in any provision and the same operated so as to set aside as no longer valid anything contained in the relevant existing provision which was inconsistent with what followed the word `notwithstanding'.

M. Durab Yousuf Qureshi v. Punjab Labour Appellate Tribunal and another PLD 1979 Lah. 406 and M. Tayab Khan v. Punjab Labour Appellate Tribunal Lahore and another 1979 PLD 377 ref.

(j) Interpretation of statutes---

----Non obstante clause---Object and purpose---Non obstante clause was used in a provision to indicate that the provision shall prevail despite anything to the contrary in any provision and the same operated so as to set aside as no longer valid anything contained in the relevant existing provision which was inconsistent with what followed the word `notwithstanding'.

M. Durab Yousuf Qureshi v. Punjab Labour Appellate Tribunal and another PLD 1979 Lah. 406 and M. Tayab Khan v. Punjab Labour Appellate Tribunal Lahore and another 1979 PLD 377 ref.

(k) Industrial Relations Act (IV of 2008)---

----Preamble & S.87(3)--- Constitution of Pakistan (1973), Art.270-AA(6) [as substituted by Constitution (Eighteenth Amendment) Act (X of 2020)]---Repeal and savings---Article 270-AA of the Constitution (as substituted by Constitution (Eighteenth Amendment) Act, 2010) on the date of enforcement of the Amending Act (19-4-2010) protected Industrial Relations Act, 2008 including its S.87(3) (repeal and savings) and on 30-4-2010, S.87(3) of the Act did what it was stated to be its purpose i.e. it repealed the Industrial Relations Act, 2008---Such was the intent of Art.270-AA(6) of the Constitution and therefore on 30-4-2010 Industrial Relations Act, 2008 stood repealed in view of its provisions contained in its own S.87(3).

(l) Constitution of Pakistan (1973)---

----Art.270-AA(6) [as substituted by Constitution (Eighteenth Amendment) Act (X of 2010)]---Deletion of Concurrent Legislative List from the Constitution---Effect---Such deletion has transferred legislative authority from Federal Government to Provincial Government; Art.270-AA(6) of the Constitution was aimed at avoiding a consequence of such a transfer which could be that a law made by the Parliament on (now) Provincial Subject shall continue till the competent authority amended, repealed or altered the same.

(m) Industrial Relations Act (IV of 2008)---

----S. 87(3)---Constitution of Pakistan (1973), Art.17---Freedom of Association---Vires of S.87(3) of the Industrial Relations Act, 2008--Section 87(3) of Industrial Relations Act, 2008 which had repealed the Act was not ultra vires of Art.17 of the Constitution---Principles.

Civil Aviation Authority, Islamabad and others v. Union of Civil Aviation Employees and another PLD 1997 SC 781 and Nisar Ahmed and others v. Federation of Pakistan 1999 SCMR 1338 ref.

(n) Interpretation of Constitution---

---Legislative List---Construction---Scope---Legislative List must be most widely constructed.

(o) Industrial Relations Act (IV of 2008)---

----Preamble & S.87(3)---Industrial Relations Ordinance (XXII of 1969), Preamble---Constitution of Pakistan (1973), Art.270-AA(1) [as inserted by Constitution (Seventeenth Amendment) Act (III of 2003)]---Industrial Relations Act, 2008 having ceased to exist on 30-4-2010, Industrial Relations Ordinance, 1969 again came into force and shall continue unless alternated, repealed or amended by the competent authority---Held, Industrial Relations Act, 2008 stood repealed on 30-4-2010 by force of its S.87(3) and with effect from that date, Industrial Relations Ordinance, 1969 came back into operation---Principles.

Chaudhry Muhammad Ashraf Khan for Petitioners.

Ashiq Raza, D.A.-G. and Sarwar Khan, A.A.-G. for Respondents.

Khalid Anwar, Munir A. Malik, Rashid A. Razvi, Khalid Javed Khan as Amici curiae. S. M. Yaqoob, Mahmood Abdul Ghani and Khalid Imran also assisted the Court.

Dates of hearing: 17th, 20th 24th, 27th 28th and 31st May, 2010.

2010 P L C 401

[Karachi High Court]

Before Abdul Hadi Khoso, J

NAKSHBANDI INDUSTRIES LTD. Through Factory Manager

Versus

AUTHORITY UNDER PAYMENT OF WAGES ACT through Presiding Officer and another

Constitutional Petition No.S-955 and C.M.A. No.4304 of 2009, decided on 26th May, 2010.

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

----Ss. 15 & 17---Constitution of Pakistan (1973), Art.199---Constitutional petition---Maintainability---Application by employee under S.15 of Payment of Wages Act, 1936 for payment of wages having been allowed by the Authorities, employer/establishment had filed constitutional petition against order of the Authority---Employee who served in the employer establishment for about 18 years, was terminated suddenly from service without paying his legal dues and he filed application before Authority for the claim of said dues---Employee who was poor retired man of labour class, was suffering from the hardship due to non-payment of his claim of legal dues from the employer---Delay in payment of wages of a poor person could not be allowed---Even otherwise the employer without exhausting the remedy available under S.17 of the Payment of Wages Act, 1936 had directly filed constitutional petition, which was not maintainable---Constitutional petition was dismissed.

Javed Asghar for Petitioner.

Kamran Alam for Respondents.

2010 P L C 427

[Karachi High Court]

Before Gulzar Ahmed and Shahid Anwar Bajwa, JJ

MUHAMMAD USMAN and another

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of Industries and Production and another

C.P. No. D-752 of 2006, decided on 5th April, 2010.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Maintainability---Pakistan Steel Mills, employee of---Employment on retainer basis initially for one year, but refusal of employer to extend same after having extended same for eight years consecutively---Employer Mills did not have statutory rules---High Court dismissed constitutional petition for being not maintainable.

Muhammad Mubinussalam's case PLD 2006 SC 602; Pakistan International Airline v. Tanveer-ur-Rehman CPLA No. 172-K of 2009; S.H.M. Rizvi and 5 others v. Maqsood Ahmed and 6 others PLD 1981 SC 612 and Roopa Syed v. Pakistan International Airlines Corporation 2009 PLC (C. S.) 928 rel.

Mansoor-ul-Haq Solangi for Petitioners.

Date of hearing: 5th April, 2010.

2010 P L C 479

[Karachi High Court]

Before Ms. Rukhsana Ahmad, J

Messrs INDUS MOTOR COMPANY LTD.

Versus

COMMISSIONER, SINDH EMPLOYEES' SOCIAL SECURITY INSTITUTION and another

Miscellaneous Appeal No.43 of 2009, heard on 9th December, 2009

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

----Ss. 2(8)(f), 20 & 23(1)---Social security contribution with penalty, demand of---Authority raised such demand due to payment of arrears of contribution by company in June, 2004 and August, 2004 for periods from November, 2002 to June, 2004 and from July, 2003 to June, 2004 respectively---Validity---Company had failed to pay due contribution within prescribed time limit---Provisions of S.23(1) of Provincial Employees' Social Security Ordinance, 1965 being mandatory, High Court upheld impugned demand for having been raised correctly.

1981 PLC 79; 1980 PLC 1245; 1983 PLC 182; 2000 PLC 26; PLD 1991 SC 308 and 1991 SCMR 2361 ref.

Muhammad Sabir for Appellant.

Javed A. Sarwana for Respondent.

2010 PLC 510

[Karachi High Court]

Before Ahmed Ali M. Shaikh, J

ABDUL RASHID KHAN

Versus

GOVERNMENT OF SINDH through Secretary Labour and 2 others

Constitutional Petition No.S-802 of 2009, decided on 21st May; 2010.

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

----Ss. 15 & 16---Payment of Wages (Procedure) Rules, 1937, R.8(2)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Deduction from wages---Application against---Powers of Commissioner for Workmen's Compensation to entertain application---Petitioner, along with other workers filed joint application under Ss.15/16 of Payment of Wages Act, 1936 before the Commissioner for Workmen's Compensation, which was decided in favour of petitioners and other workers---Employers subsequently filed application under R.8(2) of Payment of Wages (Procedure) Rules, 1937 for recalling said order passed by Commissioner in favour of the petitioner and other workers---Counsel for the petitioner had asserted that impugned order was based on cogent reasons and was passed on merits; and that Commissioner could not entertain the application of employer under R.8(2) of Payment of Wages (Procedure) Rules, 1937 nor the Commissioner could recall the same---Validity---Commissioner, had power to entertain the application filed by employer and decide the same under the provisions of R.8 of Payment of Wages (Procedure) Rules, 1937---Even otherwise no decision was passed on application filed by the employers, but merely notice was issued to the petitioner for filing objection etc., which could not be treated as a final decision---Commissioner was directed by High Court to decide the application filed under R.8(2) of Payment of Wages (Procedure) Rules, 1937 by the employers after providing proper opportunity to the parties.

Yasin Ali for Petitioner.

Muhammad Sabir for Respondent No.3.

Jawwad Sarwana for Amicus Curiae.

2010 P L C 221

[Sindh Labour Appellate Tribunal]

Before Justice (Rtd.) Ali Muhammad Baloch, Chairman

ASGHAR ALI and 2 others

Versus

CHAIRMAN, STATE LIFE INSURANCE CORPORATION OF PAKISTAN, KARACHI and 2 others

Transfer Application No.SUK-1 of 2010, decided on 11th February, 2010.

Industrial Relations Act (IV of 2008)---

----Ss. 41 & 55(8)---Application for transfer of grievance petition---Labour Court wherein grievance petition was filed was lying vacant and it was not known as to when the Presiding Officer of the court would come and take over and decide the case---Case was ordered to be transferred to the next nearest court in the interest of justice.

2002 PLC 258 rel.

Haji Ghulam Muhammad Memon for Applicants.

Nemo for Respondents.

2010 P L C 223

[Sindh Labour Appellate Tribunal]

Before Justice (Rtd.) Ali Muhammad Baloch, Chairman

ADAMJEE INSURANCE COMPANY LTD. through Attorney

Versus

SINDH LABOUR COURT NO.V through Presiding Officer and 5 others

Revision Application No.KAR-4 of 2010, decided on 23rd February, 2010.

Industrial Relations Act (IV of 2008)---

----Ss. 41 & 55(4)---Application for rejection of grievance petition---Removal from service by way of retrenchment---Employer filed application under O. VII, R.11, C.P.C. for rejection of grievance petition of employees, which application was dismissed by the Labour Court and the Appellate Tribunal---Appellate Tribunal remanded case to the Labour Court with direction to decide the entire case under which grievance notice was given and that litigation and application filed by the employees for condonation of delay be decided within specified period.

Shaukat Ali Ch. and Jawed Asghar Awan for Applicant.

Hameedullah Khan and Ghafoor Khan for Respondents Nos.2 to 6.

2010 P L C 225

[Sindh Labour Appellate Tribunal]

Before Justice (Rtd.) Ali Muhammad Baloch, Chairman

SAFDAR JABBAR

Versus

GENERAL TYRE AND RUBBER CO. through Manager

Transfer Application No.KAR-5 of 2010, decided on 18th February, 2010.

Industrial Relations Act (IV of 2008)---

----Ss. 41 & 55(8)---Application for transfer of grievance petition to another court---Applicant's side was over before the Labour Court and the respondent had also started his evidence and the matter was likely to be finally decided, if no further time was wasted---No cogent reason was shown for transferring the case to any other court as on transfer, the parties had to be served with fresh notices and the court could call R & Ps from the original court where it was nearing completion---If any party was aggrieved with the judgment of the original court, he had the right to come in appeal before the Tribunal.

Muhammad Shafiq Qureshi for Applicant.

Nemo for Respondent.

2010 P L C 231

[Sindh Labour Appellate Tribunal]

Before Justice (Retd.) Ali Muhammad Baloch, Chairman

Messrs DADABHOY CEMENT INDUSTRIES LIMITED through Attorney

Versus

PRESIDING OFFICER, SINDH LABOUR COURT NO.V and 2 others

Revision Application No.KAR-2 of 2010, decided on 12th February, 2010.

Industrial Relations Act (IV of 2008)---

----S. 55(4)---Payment of Wages Act (IV of 1936), S.15---Revision application---Counsel for the applicant contended that he was not served with the notice, thus was condemned unheard by the Commissioner for Workmen's Compensation, the Authority and the Labour Court---Contention of counsel for the respondent on the other hand was that the required amount under the law was not deposited by the applicant before the Authorities, counsel for the applicant however, had produced a crossed cheque in the name of Commissioner---Held, in all fairness and justice, case was fit to be remanded for fresh decision before the Authority under Payment of Wages Act, 1936, who would hear the parties by giving them a fair chance of hearing and decide as to what should be the actual dues payable by the applicant to the respondent---If the dues were found within the limit the same would be paid to the respondent and matter could be closed.

PLD 1991 SC 385 ref.

Abdus Salam Baloch and Muhammad Humayun for Informant.

S.M. Sharfuddin for Respondent No.2.

Respondent No.3 in Person.

2010 P L C 233

[Sindh Labour Appellate Tribunal]

Before Justice (Retd.) Ali Muhammad Baloch, Chairman

Messrs UNIVERSAL LEATHER (PVT.) LIMITED through Notified Manager

Versus

SHUMAIL KHAN and 2 others

Transfer Applications Nos.KAR-2, KAR-3, KAR-4 and KAR-5 of 2010, decided on 11th February, 2010.

Industrial Relations Act (IV of 2008)---

----Ss. 41 & 55(8)---Application for transfer of grievance petition---Counsel for the applicant had stated that since Presiding Officer of the Labour Court, had resumed his duties after his leave of two months, counsel did not wish to press the application for transfer of the petition to any other court---Withdrawal applications were accepted and same stood withdrawn.

Farooq Ghani for Applicant.

Nemo for Respondents.

2010 P L C 407

[Sindh Labour Appellate Tribunal]

Before Justice (R.) Ali Muhammad Baloch, (Chairman)

MUSHTAQ AHMED

Versus

Messrs HABIB OIL MILLS (PVT.) LIMITED and another

Revision Application No. KAR-107 and Transfer Application No. 6 of 2010, decided on 29th March, 2010.

Industrial Relations Act (IV of 2008)---

----S. 55(4)(8)---Transfer of grievance petition---Counsel of parties addressed the Tribunal on two matters i.e. revision application and transfer application and they had amicably come to a conclusion which was made part of order of the Tribunal---Counsel for the parties had agreed that applicant be treated having been reinstated, while the earlier orders of the Labour Court could be acted upon and the domestic enquiry be completed within a period of 30 days---Question of back benefits was left open to be decided by the Labour Court---Employer could appoint an officer to conduct the enquiry---Reinstatement of applicant would be made within three days and could be taken on duty, subject to final orders of the Labour Court, deciding the case on merits as early as possible.

Ashraf Hussain Rizvi for Applicants.

Muhammad Sabir for Respondent No.1.

Nemo for Respondent No.2.

2010 P L C 415

[Sindh Labour Appellate Tribunal]

Before Justice (R.) Ali Muhammad Baloch, (Chairman)

AFTAB MEMON, DIVISIONAL SUPERINTENDENT, PAKISTAN RAILWAYS and 2 others

Versus

PRESIDING OFFICER, SINDH LABOUR COURT NO.VI and 11 others

Appeal No. HYD-473 of 2010, decided on 30th March, 2010.

Industrial Relations Act (IV of 2008)---

----Ss. 41 & 55---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.1(b)---Grievance petition---Permanent workman, determination of---Grievance petitions by the employees Gangmen in Railways had been allowed by the Labour Court---Labour Court allowing grievance petitions of the employees ordered Railways to prepare and maintain the Service Books of employees, to pay the annual increments and wages for which the permanent employee was entitled and to pay all back benefits for which a permanent employee was entitled---Employees who were appointed as Gangmen in year 1992, were continuously performing their duties since then, they had been medically examined, but their service books were not maintained by the Railways treating them as temporary employees---When nature of the work for which a person was employed was of a permanent nature, he would become permanent upon expiry of period of nine months as mentioned in S.O.1(b) of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968---Employees were in fact permanent employees, as they were doing the work of Gangmen and without Gangmen, it was not possible to keep the track in use by the Railways---Employees should be treated as permanent employees, entitled to all back benefits---Impugned order passed by the Labour Court was maintained, which should be acted upon and implemented.

Executive Engineer Central Division, Pak P.W.D. Quetta v. Abdul Aziz and others PLD 1996 SC 610 and Muhammad Ahmed Butt v. Ghulam Murtaza Hashmi 1999 SCMR 2301 ref.

Hussain Bux Saryo for Appellants.

Ejaz Ahmed Awan for Respondents.

2010 P L C 13

[Lahore High Court]

Before Muhammad Khalid Alvi, J

ALLIED BANK LTD.

Versus

MUHAMMAD ILYAS

F.A.O. No.102/L of 2008, decided on 15th December, 2008.

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

----S. 46-Civil Procedure Code (V of 1908), O.XLIII, R.1---Grievance petition---Time-barred---Plea of---Validity---Petitioner being an employee of respondent-Bank filed grievance petition in respect of pensionary emoluments in the year 2005---Labour Court allowed grievance petition---Respondent asserted that grievance petition filed by petitioner was barred by time---Order with regard to the pensionary benefits was issued on 21-5-2005 which was intimated to petitioner on 25-5-2005 whereafter on 21-6-2005 petitioner filed his grievance notice within a period of one month from the date of communication which was not responded, therefore, grievance petition filed on 12-8-2005 was well in time---Appeal was allowed by High Court.

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

----S. 46---Civil Procedure Code (V of 1908), O.XLIII, R.1---Issuance of power of attorney---Change in Banks name---Validity---Petitioner being an employee of the respondent-Bank filed grievance petition in respect of pensionary emoluments in the year 2005---Labour Court allowed grievance petition---Petitioner asserted that the power of attorney issued by President of the Bank was not competent as the President was not authorized to delegate powers to the said attorney and further that the same had been issued before change of name of the bank---Name of the bank was changed in the year 2005 whereas the power of attorneys were issued in the years 1993 and 1994 and the said attorney had been performing his duties ever-since---Although power of attorney was issued when the bank was holding previous name but it did not mean that their authorities ceased to exist by change of name---Such would be a hyper-technical objection---Articles of Memorandum of Association also did not debar or restrict authority vested in the attorneys issued in their favour way back in the years 1993 and 1994---Appeal was allowed by High Court.

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

----S. 46-Civil Procedure Code (V of 1908), O.XLIII, R.1---Option to employee to continue with pensionary scheme---Resile from the scheme---Validity---Petitioner being an employee of the respondent-Bank filed grievance petition in respect of pensionary emoluments---Labour Court allowed grievance petition---Respondent asserted that the petitioner having accepted all terms and conditions contained in the circular in the year 2002 was estopped to challenge the same or to challenge its effect on his pensionary benefits---Scheme was launched on 4-9-2002 and a freezing date was fixed as 30-6-2002 for the purposes of calculation of pension at any time when the employee retired but with this disadvantage a major advantage was also given to the employees in shape of major jump in their salary package---Petition on 23-4-2005 in unequivocal terms giving reference to the Scheme of 4-9-2002 gave his option to continue with the pensionary scheme payable in terms of the said Scheme, therefore, he could not be allowed to partly accept the Scheme and partly disown to the portion which was disadvantageous to him although he had taken all the benefits in shape of increased pay---High Court allowed appeal and set aside the order passed by Labour Court and returned bank guarantee furnished by the respondent.

Javed Asghar for Appellant.

Muhammad Anwar Awan for Respondent.

2010 P L C 78

[Lahore High Court]

Before Ch. Naeem Masood, J

HABIB BANK LTD. through its Attorneys

Versus

ZAFAR IQBAL and another

Writ Petition No.3926 of 2007, heard on 8th June, 2009.

Industrial Relations Ordinance (XCI of 2002)---

----S. 46---Industrial and Commercial Employment (Standing Orders) Ordinance' (VI of 1968), S.O.13-Constitution of Pakistan (1973), Art.199--- Constitutional petition--- Retrenchment--- Grievance application---Amendment in grievance application---During pendency of proceedings of the grievance application filed by the respondent/employee against his retrenchment, employee had filed an application for amendment of grievance application, which application having been allowed by the Labour Court, petitioner/Bank had filed constitutional petition against said order of the Labour Court--Contentions of petitioner/employer were; firstly that the amendment sought for by the employee had introduced a new cause of action; and secondly that the amendment sought for was time-barred---Validity---Facts of the case had revealed that the amendment sought for by the employee did not add to any new cause of action, but it remained confined to the retrenchment---Expiry of limitation by itself when considering the question of amendment, was not to be treated as bar, if it was found to be necessary for the purpose of amendment---Delay alone in applying for amendment after expiry of the period of limitation was not a ground for refusing an amendment in the plaint---No jurisdictional error having been demonstrated in the impugned order, constitutional petition was dismissed.

Mst. Ghulam Bibi v. Sarsa Khan PLD 1985 SC 345; Alam Din alias Alam Sher and 3 others v. Alam Din PLD 1990 SC (AJ&K) 1 and Abdul Majeed v. Khalid Yasin 2002 CLC 468 rel.

Javed Akbar with Akhtar Khetran, Litigation Officer, H.B.L. for Petitioners.

Ch. Khalid Mehmood Arain for Respondents.

Date of hearing: 8th June, 2009.

2010 P L C 237

[Lahore High Court]

Before Muhammad Yawar Ali, J

SHAHID IQBAL

Versus

PUNJAB LABOUR APPELLATE TRIBUNAL through Chairman and 2 others

Writ Petition No.2298 of 2010, decided on 24th March, 2010.

Industrial Relations Ordinance (XCI of 2002)---

----Ss. 46 & 48---Constitution of Pakistan (1973), Art.199---Constitutional petition---Grievance petition---Dismissal of grievance petition for non-prosecution-Application for restoration of petition---Grievance petition filed by worker against order of his compulsory retirement, having been dismissed for non prosecution, petitioner filed application for restoration of said petition---Said application had concurrently been dismissed by the Labour Court and Appellate Court---Validity---Petition dismissed for non prosecution, could only be restored, if there existed "sufficient grounds" which would warrant its restoration---Record had shown that no grounds were available for setting aside order of the Labour Court wherein the grievance petition was dismissed for non-prosecution-Petitioner contended that he was ill and thus could not file application for restoration of grievance petition---Petitioner in his application seeking restoration of his grievance petition had neither mentioned the nature of his illness nor appended any medical certificate by a doctor to corroborate the same---Second ground raised by the petitioner that since the Labour Court had shifted its premises, it was not possible for him to have filed an application seeking restoration of his grievance petition in time, was also not tenable in law---Law favoured the vigilant and not the indolent and there were no valid grounds for restoration of the petition---Constitutional petition was dismissed.

Sahib Khan and others v. Ghulam Dastgir and others 1980 SCMR 561(1) and Commissioner of Income Tax, v. Rais Pir Ahmad Khan 1981 SCMR 37 ref.

Tanveer Ahmed Ghumman for Petitioner.

Syed Nayar Abbas Rizvi, Asstt. A.-G. on Court's call.

2010 P L C 255

[Lahore High Court]

Before Iqbal Hameed-ur-Rehman, J

Mst. PERVEEN HUSSAIN

Versus

JUDGE, BANKING COURT

Writ Petition No.9980 of 2009, heard on 7th April, 2010.

Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)---

----Ss. 5 (8) & 9---Constitution of Pakistan (1973), Art. 199 (1) & (5)---Constitutional petition---Maintainability---Private person---Scope---During execution of decree before Banking Court, petitioner filed an application against bank for providing him detailed statement of account showing month-wise entries pertaining to amount of gratuity, provident fund deducted frown his salaries, along with profit/mark-up etc., which application was dismissed---Plea raised by petitioner was that deductions of such amounts should be adjusted towards decretal amount---Validity---In execution petition, adjustment sought for could only be made with the consent of decree-holder, who did not consent the same as civil suit of petitioner with regard to same amount was sub judice before Civil Court---Banking Court had rightly dismissed the application and there was no illegality or irregularity in the order---Constitutional petition was not maintainable in view of Art. 199 (5) of the Constitution because respondent was a private corporate. body and did not fall within the domain of Federal Government or Provincial Government---Petition was dismissed in circumstances.

Shafqat Mahmood Chohan for Petitioner.

Tariq Ahmad Farooqi for Respondent.

Date of hearing: 7th April, 2010.

2010 P L C 265

[Lahore High Court]

Before Sagheer Ahmed Qadri, J

SOHAIB SHAUKAT and others

Versus

LABOUR DEPARTMENT and others

Writ Petitions Nos.2564 and 2920 of 2009, decided on 1st March, 2010.

Industrial Relations Act (IV of 2008)---

----Ss. 2(xxix) & 24---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Application for holding referendum for determination of collective bargaining agent---Issuance of notice by Registrar to contesting Workers Unions and employers for filing lists of their members and lists of employed workers respectively---List of 374 workers submitted by employer was objected to on the ground that 373 workers were not in its active services as their contract had already expired---Order of Registrar refusing to declare such 373 contract workers as eligible voters for absence of proof about continuity of their service---Constitutional petition by such 373 contract workers challenging such order of Registrar---Validity---As per mandate of S.24(4)(a) of Industrial Relations Ordinance, 2008, list provided by employer must also indicate names of workers presently in active services and not having been terminated excluding those whose period of employment being less than three months---Word "is employed" as used in S.2(xxix) of Industrial Relations Act, 2008 would be of much significance for having used present indefinite tense---Eligible voter must be it worker as defined under S.2 (xxix) of the Act and in active service of employer at time of preparation of voters list by Registrar---Period of contract in case of such 373 contract workers was six months, which had already expired before preparation of list of eligible voters by Registrar---Copies of membership of union, social security cards and temporary work cards produced before High Court by petitioners, genuineness whereof challenged by respondents, were not produced before Registrar during inquiry proceedings---Basic document for contract workers was contract itself showing existence of tenure of their service, which was not annexed with constitutional petition---Such factual controversial aspect of case would require thorough inquiry/ recording of evidence, which practice in exercise of constitutional jurisdiction was not possible rather not permissible----High Court dismissed constitutional petition in circumstances.

Mir Aslam and others v. Registrar of Trade Unions and others 2008 PLC 239, Messrs Coca Cola Beverage Pakistan Limited v. The Registrar, Trade Union Sindh and others in Constitution Petition No.S-297 of 2009, Quetta Municipal Corporation-through Administrator and another v. Registrar, Trade Unions, Balochistan, Directorate of Labour and Manpower Quetta and 3 others 1995 PLC 151 and Punjab Small Industries Corporation v. Ahmad Akhtar Cheema 2002 SCMR 549 ref.

Quetta Municipal Corporation through Administrator and another v. Registrar, Trade Unions, Balochistan, Directorate of Labour and Manpower Quetta and 3 others 1995 PLC 151; Shaheen Labour Union, Al-Ghazi Tractors Ltd., D.G. Khan, through its General Secretary and another v. Punjab Labour Appellate Tribunal and 4 others 2003 PLC 275; K.E.S.C. Progressive Workers Union through its Chairman and others v. K.E.S.C. Labour Union through its General Secretary and others (1991 SCMR 888) and Punjab Small Industries Corporation v. Ahmad Akhtar Cheema 2002 SCMR 549 rel.

Muhammad Amjad Ali Malik and Mumtaz Ali Khan for Petitioners.

Ch. Sadiq Mahmud Warraich for Respondent No.4 (in Writ Petition No.2920 of 2009).

Faisal Mehmood Ghani for Respondent No.2.

2010 P L C 460

[Lahore High Court]

Before Syed Akhlaq Ahmad, J

BOARD OF DIRECTORS MEPCO LTD., KHANEWAL ROAD, MULTAN through Chairman/Chief Executive, MEPCO

Versus

ABID SARWAR and 5 others

Writ Petition No.2015 of 2010, heard on 29th April, 2010.

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

----S. 46---Industrial Relations Act (IV of 2008), S.2(xxix)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Petitioner filed grievance petition against employers in the Labour Court on the ground that he was inducted as Assistant Public Relations Officer which fell under the definition of "worker" and his removal from the service was without any authority--Labour Court allowed grievance petition---Employers moved appeal before the High Court, which was transferred to Labour Appellate Tribunal---Labour Appellate Tribunal dismissed the appeal---Contention of the petitioner was that after completion of his one year service, he was retained in the service by employers on regular basis---Petitioner had proved before the Labour Court that he had been performing manual/clerical duties---Employers' witness stated that the petitioner was not enjoying any power of hire and fire and charge sheeting any one---Status of petitioner as `workman' had been established---Continuous performance of duty by petitioner against the Assistant Public Relations Officer negated the contention raised by employers that he was recruited only for one year term---Record revealed that petitioner was accommodated against regular post---Both forums below were right and within their jurisdiction in allowing the grievance petition of the petitioner---Constitutional petition was dismissed by High Court.

PLD 1975 SC 678; 1992 SCMR 1974, 1993 SCMR 363; 1994 SCMR 1555; PLD 1995 SC 406; PLD 1997 SC 823; 2001 SCMR 1320; 2002 PLC 1; 2001 PLC 1; 2002 PLC (C.S) 1, 2005 SCMR 1603; 2005 SCMR 1603; 2007 SCMR 229; 2007 SCMR 229; PLJ 2009 Tr.C. (Services) 169; 1979 SCMR 304; 1986 PLC 1057; 1988 SCMR 1664; 1989 PLC 628; 1992 PLC 86; 1997 SCMR 1128; PLD 1999 SC 2431; 2001 PLC 506; 1994 PLC 610; 1995 SCMR 1655; PLD 2005 Kar. 478; PLJ 2007 SC 706 and 2008 PLC 319 ref.

Dost Muhammad Cotton Mills Ltd v. Muhammad Abdul Ghani and another 1979 SCMR 304; Allied Bank of Pakistan Ltd. v. Muhammad Humayun Khan and others 1988 SCMR 1664; WAPDA v. Muhammad Ashraf Naeem 1997 SCMR 1128; Mustekhum Cement Limited v. Abdul Rashid and others 1998 SCMR 644=1998 PLC 172; Messrs Plasticrafters (Pvt.) Ltd v. Muhammad Farooq and others 2001 PLC 506; Lever Brothers Pakistan Limited, Karachi v. Mrs. Kishwar Sultana Khan 1,994 PLC 610; Naseem Ahmad Chaudhry v. Chairman Punjab Labour Appellate Tribunal Lahore and 4 others 1995 SCMR 1655; 1989 PLC 628; 1992 PLC 86 and PLD 2005 Kar. 478 rel.

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

----S. 46---Industrial Relations Act (IV of 2008), S.2(xxix)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Workman---Status of---Determination---Criteria---Held, in order to determine the status of any employee to be a "workman", his designation and salary was immaterial---True test was not to go by his designation but to see the nature of his duty---Person might be designated as an officer but the nature of his duties could be manual or clerical which would fall within the definition of "worker/workman".

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

----S. 46---Removal from Service (Special Powers) Ordinance (XVII of 2000), Preamble---Constitution of Pakistan (1973), Art.199---Employers, in their written statement before the Labour Court, never took the objection relating to applicability of Removal from Service (Special Powers) Ordinance, 2000---Since the induction of the petitioner into the service till to date, employers had not initiated any action against the petitioner under Removal from Service (Special Powers) Ordinance, 2000---Objection of employers regarding the applicability of the said Ordinance was misconceived.

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

----S. 47(3)---All decisions of the Labour Court were appealable under S.47(3) of the Industrial Relations Ordinance, 2002, the question of applicability of High Court (Lahore) Rules and Orders did not arise.

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

---S. 47(3)---Record revealed that employers had not signed the Labour appeal rather the same was signed by their counsel without any authority from the competent Official---Counsel of the employers also signed the accompanied affidavit himself---Effect---Such type of practice was not allowed---Conduct of the employers in the matter could not be ignored under the garb of "mere technicalities"; it had gone to the very root of appeal and its maintainability---Constitutional petition was dismissed by High Court in circumstances.

1989 PLC 628; 1992 PLC 86 and PLD 2005 Kar. 478 rel.

Syed Murtaza Ali Zaidi for Petitioner.

Muhammad Anwar Awan for Respondents.

Date of hearing: 29th April, 2010.

2010 P L C 513

[Lahore High Court]

Before Muhammad Khalid Mehmood Khan, J

TEHSIL MUNICIPAL ADMINISTRATION through Tehsil Municipal Officer, Wazirabad

Versus

PERVAIZ MASIH and 47 others

Writ Petition No.7701 of 2005, decided on 11th August, 2010.

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

----Ss. 1(4), 3, 15(2), 16 & 17---Factories Act (XXV of 1934), Ss.1, 2(g)(i) & 3---Constitution of Pakistan (1973), Art.199---Constitutional petition---Employees of Municipal Committee claimed payment for working overtime hours---Authority under the Payment of Wages Act, 1936 accepted the claim and directed the Municipal Committee to deposit the claimed amount in the court for disbursement to employees---Municipal Committee contended that the Authority under the Payment of Wages Act, ,1936 had no jurisdiction to decide the matters as the Municipal Committee was not a factory' and that over-time payment could only be claimed by employees of a factory or Railways under S.1(4) of the Payment of Wages Act, 1936---Employees contended that the Municipal Committee was covered by the definition of "factory" under Factories Act, 1934---Validity---Manufacturing process' as defined in S.2(g) of the Factories Act, 1934 was the yardstick to ascertain whether the Municipal Committee was earning profits by converting the garbage, through mechanical process, into fertilizer which was product of raw material collected by employees---Municipal Administration was established under Local Government Act, yet criterion for ascertaining the right of the employees would be determined by the nature of the job performed by them---`Factory' does not necessarily work within closed area; the nature and outcome of the job would determine the scope of jurisdiction of the Authority under the Payment of Wages Act, 1936---Municipal Committee did not file appeal against the order of the Authority under the Payment of Wages Act, 1936 and constitutional petition suffered from laches---Employees' legitimate claim could not be defeated as the same was accepted by the Authority under the Payment of Wages Act, 1936 after recording of evidence and hearing the parties---Constitutional petition was dismissed in circumstances.

Town Committee, Gakhar Mandi v. Authority under the Payment of Wages Act, Gujranwala and 57 others PLD 2002 SC 452 ref.

Muhammad Hanif Niazi for Petitioner.

Siraj-ul-Islam, Addl. A.-G. for Respondents.

Date of hearing: 4th August, 2010.

2010 P L C 519

[Lahore High Court]

Before Syed Mansoor Ali Shah, J

BANK OF PUNJAB, LAHORE

Versus

PUNJAB LABOUR APPELLATE TRIBUNAL, LAHORE and 2 others

Writ Petitions Nos.4736, 4734 to 4744 and 4810 of 2010, decided on 1st June, 2010.

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

----Ss. 45(4) & 47---Industrial Relations Act (IV of 2008), Ss.53(4), 86 & 87(2)(b)---Industrial Relations Ordinance (XXIII of. 1969), S.30(4)---High Court (Lahore) Rules and Orders, Vol. V, Chap. 1, Part-A, Rr.9 & 9-A---Limitation Act (IX of 1908), Ss.5 & 12 ---Constitution of Pakistan (1973), Art.199---Constitutional petition---Appeal to High Court against order of Labour Court filed within time---Return of appeal by Office of High Court for removing objections within three days---Re-filing of appeal after six months and expiry of period of limitation prescribed under S.47 of Industrial Relations Ordinance, 2002 along with application under S.5 of Limitation Act, 1908 for condonation of delay---Objection by Office of High Court that appeal was time-barred---Transfer of appeal from High Court to Labour Appellate Tribunal under S.86 of Industrial Relations Act, 2008 after its promulgation---Acceptance of appeal by Labour Appellate Tribunal after overruling objection of limitation on grounds that objections raised by Office of High Court were unwarranted as objection regarding court fee was not applicable to labour cases under S.34 of Industrial Relations Ordinance, 1969, S.45 of Industrial Relations Ordinance, 2002 and S.53(4) of Industrial Relations Act, 2008---Validity---Return of appeal by Office of High Court would mean that its filing was invalid, thus, appeal could not be considered to have been instituted for purposes of limitation---Time specified by Office of High Court for removing objection would not stop limitation from running---Period from date of raising of objection by Office of High Court till re-filing of appeal would not be excluded under Limitation Act, 1908---Appellant had option to challenge such objections before High Court, but he did not do so at relevant time---Provisions of S.34 of Industrial Relations Ordinance, 1969, S.45 of Industrial Relations Ordinance, 2002 and S.53(4) of Industrial Relations Act, 2008 provided that court fee would not be applicable in a Labour Court and did not extend to a labour appeal. before High Court under S.47 of Industrial Relations Ordinance, 2002 or Appellate Tribunal---Appeal filed before High Court and then transferred to Appellate Tribunal was time barred---Appellant in such application .had not shown any plausible reason for condonation of delay of each and every day---Appellant was not entitled to condonation of delay---High Court set aside impugned judgment and dismissed appeal as time-barred.

?

Naheed Ahmed v. Asif Riaz and 3 others PLD 1996 Lah. 702; Ghulam Hussain and 3 others v. Bahadar and others PLD 1954 Lah. 361; Protein and Fats International (Pvt.) Limited through Chief Executive and 2 others v. Capital Assets Leasing Corporation Limited through Manager 2005 CLD 857; Muhammad Idrees v. Abdul Rehman and another 2001 YLR 2294; Mehr Ghulam Dastgir Khan Lak v. Hayat and 2 others 2000 CLC 781; Elahi Bakhsh and 8 others v. Ahmed Bakhsh and 2 others 1999 YLR 777; Lahore Development Authority v. Muhammad Rashid 1997 SCMR 1224 and Mst. Sabiran Bi v. Ahmed Khan and another 2008 SCMR 847 ref.

Dr. Jehanzaib Rahim v. Dr. Shaukat Pervez, Dr. Hamida Rahim and others PLD 2007 SC 560; Almas Ahmed Fiaz v. Secretary Government of the Punjab Housing and Physical Planning Development Lahore and another 2006 SCMR 783; S.A. Jameel v. Secretary to the Government of the Punjab Cooperative Department and others 2005 SCMR 126 and Sheikh Muhammad Saleem v. Faiz Ahmed PLD 2003 SC 628 rel.

(b) High Court (Lahore) Rules and Orders---

----Vol. V, Chap. 1, Part-A, Rr.9 & 9-A---Constitution of Pakistan (1973), Art.202---Limitation Act (IX of 1908), Ss.5 & 12---Filing of appeal/case in High Court---Return of appeal/case by Deputy Registrar (Judicial) for making up deficiency within specified time and its re-filing by party after removing objection---Effect---Such return would mean that filing of case was invalid and case could not be considered to have been instituted for purposes of limitation---Time specified by Deputy Registrar for removing objection would not stop limitation from running---Period from date of raising of objection by Deputy Registrar till re-filing of case would not be excluded under Limitation Act, 1908---If during process of removing objections raised by office of High Court, irrespective of time specified by Office, appeal or case became time barred, only remedy available to party would be to file application under S. 5 of Limitation Act, 1908 for condonation of delay, which would be taken up on its own merits by Court while hearing main case---Party could challenge such objections before High Court, whose decision thereon would be final---After raising objections by Office, if party failed to receive back his case from Office within 7 days of notice displayed on Notice Board, then his case as objection case would be put up before Court, and if objection was overruled, then Court would take up question of limitation and pass appropriate orders thereon---Principles.

?

Mst. Sabiran Bi v. Ahmed Khan and another 2008 SCMR 847 rel.

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

----S. 5---Delay, condonation of---Scope---Delay of each and every day must be explained.?

Dr. Jehanzaib Rahim v. Dr. Shaukat Pervez Dr. Hamida Rahim and others PLD 2007 SC 560; Almas Ahmed Fiaz v. Secretary Government of the Punjab Housing and Physical Planning Development Lahore and another 2006 SCMR 783; S.A. Jameel v. Secretary to the Government of the Punjab Cooperative Department and others 2005 SCMR 126 and Sheikh Muhammad Saleem v. Faiz Ahmed PLD 2003 SC 628 rel.

Sardar Ahmad Jamal Sukhera for Petitioner.

Sardar Faiz Rasool Khan Jablani for Respondent No.2.

Dates of hearing: 27th May and 1st June, 2010.

2010 P L C 4

[National Industrial Relations Commission]

Before Ghulam Nabi Deeshak, Member

USMAN IQBAL

Versus

UNITED BANK LIMITED through President and 3 others

Case No.4A(43) of 2009, decided on 25th July, 2009.

Industrial Relations Act (IV of 2008)---

----Ss. 17 & 25(8)(g)---National Industrial Relations Commission (Procedure and Functions) Regulations, 1973, Regln.32(2)---Unfair labour practice by the employers---Petition against---Stay application---Petitioner/employee initially was appointed as Collection Officer in the respondent-Bank and thereafter on the basis of his best performance was promoted/appointed as supervisor in Officer Grade III, on probation for six months---Petitioner had alleged that when Trade Union was formed in the respondent-Bank, workers started becoming the members of said union, the employers/Bank got annoyed with the employees and they started giving harsh and openly extended threats to the employees---Petitioner decided to join Trade Union of his choice and became member of union and filed the membership form and handed over to the President of the union---Upon that particular act of the petitioner, it was alleged by the petitioner that employers/Bank neither issued confirmation letter to him nor extended the period of probation for that reason---Petitioner prayed that employers be directed not to commit any act of unfair practice and not to cause injury to the employment of petitioner by way of dismissal from service, discharge, removal, termination or transfer etc.---Stay application filed by the petitioner was accepted and status quo was granted to him and notices were issued to the respondents for filing parawise comments on Main petition and counter-affidavit on stay application---Employers in their parawise comments raised legal objection on the maintainability of the petition and stated that petitioner was under probation period of six months and that performance of petitioner during that probation period having been found unsatisfactory, he was terminated---Petitioner who was terminated from service, letter of termination was served upon him, but he had concealed those facts from the Commission at the time of filing petition for granting status quo order---Petitioner had failed to make out prima facie case for grant of interim relief---Application filed by the petitioner under Regln.32(2) of National Industrial Relations Commission (Procedure and Functions) Regulations, 1973 was dismissed and interim prohibitory order passed by the Bench of the Commission was recalled.?

1990 PLC 23; PLD 1969 (?) 349; 1991 MLD 1608; PLD 1996 (?) 610; 1980 SCMR 89; PLD 2000 (?) 387; 1998 PLC 390; 2004 PLC 182; 1985 SCMR 257; 2002 PLC 212; 2008 PLC 147; 2002 TDL 330; 1996 PLC 687; 2001 PLC 310; 1998 SCMR 53-66 and 1999 PLC 447 ref.

Abdul Hafeez Amjad for Applicants.

Faisal Mahmood Ghani for Respondents.

Mushtar Hussain Bhatti for Respondent No.4.

2010 P L C 27

[National Industrial Relations Commission]

Before Ghulam Nabi Deeshak, Member

TAHIRA SHABIR and others

Versus

UNITED BANK LIMITED through President and others

Appeals Nos.4A(42) of 2009/24(49) of 2009, 4A(52) of 2009/24(60) of 2009, 4A(55) of 2009/24(63) of 2009, decided on 25th July, 2009.

Industrial Relations Act (IV of 2008)---

----S. 25(8)(g)---National Industrial Relations Commission (Procedure and Functions) Regulations, 1973, Reglns.32(2) & 35---Unfair labour practice by the employer---Petition against---Stay applications---Petitioners/employees had not mentioned any specific instance of their alleged victimization on account of trade union activities by the employers; and had only stated that due to becoming members of Trade Union, they were issued threats by the employers for dismissal or termination from service on account of trade union activities---Such would not make a case of unfair labour practice by the employers---Petitioners having failed to make out prima facie case for grant of interim relief, stay application filed by the employees under Regln.32(2) of National Industrial Relations Commission (Procedure and Functions) Regulations, 1973, were dismissed and interim prohibitory order passed by the Bench, stood recalled.

1990 PLC 83, 1969 PLD 349, 1991 MLD 1608, 1996 PLD 610, 1980 SCMR 89, 2000 PLD 387, 1998 PLC 390, 2004 PLC 182; 1985 SCMR 257; 2002 PLC 212; 2002 PLC 147; 2002 TDL 330; 1996 TDL 331; 2001 PLC 310; 1998 SCMR 53-66 and 1999 PLC 447 ref.

Abdul Hafeez Amjad for Applicants.

Faisal Mahmood Ghani for Respondents.

Mushtar Hussain Bhatti for Respondent No.4.

2010 P L C 40

[National Industrial Relations Commission]

Before Justice (Rtd.) Rashid Aziz Khan, Chairman, Ch. Asad Raza and Ghulam Nabi Deeshak, Members

UNITED BANK LIMITED through Power of Attorney

Versus

MUHAMMAD IQBAL

Appeal No.12(03) of 2009-L/24(150) of 2009-L, decided on 31st August, 2009.

Industrial Relations Act (IV of 2008)---

----Ss. 17 & 25(8)(g)---National Industrial Relations Commission (Procedure and Functions) Regulations, 1973, Regln.32(2)---Unfair labour practice by the employers---Petition against---Application for interim injunction---Acceptance of- applications---Appeal against---Respondent, who was Officer Grade III, in appellant-Bank and was serving as Branch Manager, claimed to be a workman, had knocked at the door of National Industrial Relations Commission for redressal of his grievance alleging that he being an active member of Trade Union in the appellant-Bank, was being victimized for his lawful trade union activities---Respondent employee had claimed that appellant-Bank by so doing was committing acts of unfair labour practice by violating the provisions of S.17 of Industrial Relations Act, 2008---Employee had also filed application for interim injunction simultaneously with the main petition---Petition and application filed by the employee were resisted by the employer Bank on the ground that employee, who was Officer Grade-III, was not a workman as he was not performing any manual or clerical nature of duties and that his application and petition were not maintainable---Member National Industrial Relations Commission found that employee being active member and office bearer of a Trade Union could invoke the jurisdiction of the Commission under S.17(d) of Industrial Relations Act, 2008 and accepted application of employee for interim injunction holding that he had made out a prima facie case in his favour, and other ingredients for grant of temporary injunction, inconvenience and irreparable loss were also in his favour---Appellant-Bank was directed not to transfer or pass any adverse final order against the employee till final adjudication of main petition---Validity---Employee not only was designated as Officer Grade III, but also was working as a Branch Manager; he was enjoying the status of full fledged Bank Manager; he could not be termed as a workman as he was supervising the whole business; and he was not possessed with the qualification to act as a trade unionist and seek permission to enjoy the benefits therefrom under the cover of claimed trade union activities, as the law of the land and rules of business were going against him---Impugned order of the member of the Commission legally being not sustainable, was set aside.

?

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

Faisal Mahmood Ghani for Appellant.

Abdul Hafeez Amjad for Respondent.

2010 P L C 145

[National Industrial Relations Commission]

Before Bashir Ahmed Memon, Member

AMJAD NEHAL

Versus

MCB BANK LIMITED through SVP/General Manager and 2 others

Case No.4A(103/24(130) of 2009-K, decided on 22nd October, 2009.

Industrial Relations Act (IV of 2008)---

----Ss. 2(xxix) & 25(8)(g)---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(i), & S.O. 15(3)(e)---National Industrial Relations Commission (Procedure and Functions) Regulations, 1973, Regln.32(2)(c)---Unfair labour practice by the employer---Interim prohibitory order---Application for---Petitioner/ employee of a Bank, was proceeded against on allegations of being absent from duty without prior intimation and misbehaving with his Branch Manager---Employee who was officer Grade-III being not a workman/worker, he was debarred from invoking the jurisdiction of National Industrial Relations Commission---Employee who alleged that he had been victimized for his trade union activities, had failed to produce any proof regarding his membership in the shape of union subscription---Employee had produced photostat copy of leave application, which he had submitted to the Branch Manager---Allegation regarding absence of petitioner from duty,. in circumstances was finished---Regarding allegation that employee had misbehaved with his Branch Manager in presence of Bank Staff, customers as well as security staff and Police Staff available in the Branch, Management of Bank was required to afford full opportunity of inquiry to the employee and the matter was to be decided on merits---Employee had failed to make out a case of unfair labour practice by employers---Petition filed by the employee under S.25(8)(e) of Industrial Relations Act, 2008 was not maintainable---Petition along with stay application filed under Regln.32(2)(c) of National Industrial Relations Commission (Procedure and Functions) Regulations, 1973, was dismissed in circumstances.

Ch. Latif Saghar for Petitioner.

Faisal Mahmood Ghani for Respondents.

2010 PLC 153

[National Industrial Relations Commission]

Before Ch. Asad Raza, Muhammad Iqbal, Members and Raja Abdullah Khan, Sr. J.S. (Law)/Member

Syed NAZAR ABBAS

Versus

CHAIRMAN/RITU, NIRC

Appeal No.12(50) of 2009, decided on 24th November, 2009.

Industrial Relations Act (IV of 2008)---

---Ss. 2(xxix) & 28---'Workman', determination of---Appeal---Appellants who were working in Bank as Officers Grade-II and III claimed to be `workmen' and they filed their applications for a permission to participate in proceedings of election of Bank employees and workers union before the Registrar Trade Unions---Said application was rejected and the names of the employees were removed from the list of the voters on the ground that appellants were not workmen and had appealed against that order---One appellant was Branch Operational Manager and his job description was given---Other appellant was officer Grade-III and holding a power of attorney of the Bank Branch wherein he was posted---Yet another appellant was equally Branch Operational Manager---Same was for the other appellant who was Branch Operational Manager---Officer Grade-II, another appellant, was equally with a power of attorney and the incharge of ATM Cards and Customer Remittances responsible for managing cash and time deposit---All the appellants, in circumstances fell out of the category of the workmen and they were not eligible to be a member of workers trade union and participate in proposed election for Collective Bargaining Agent.

Qazi Ahmad Naeem Qureshi for Appellants.

2010 P L C 159

[National Industrial Relations Commission]

Before Bashir Ahmed Memon, Member NIRC

MUHAMMAD ZAKI

Versus

Messrs SINGER PAKISTAN LIMITED through Chairman and 4 others

Appeal No.7(23) of 2009/K, decided on 6th November, 2009.

Industrial Relations Act (IV of 2008)---

---Ss. 25(8)(g), 26, 27 & 28---National Industrial Relations Commission (Procedure and Functions) Regulations, 1973, Regln.32(2)---Unfair labour practice by employers---Complaint---Interim order---Appeal to Commission---Complainant filed petition along with stay application alleging certain acts of unfair labour practice on the part of employers---While admitting said petition interim prohibitory order was passed which order later on was confirmed---Complainant in his complaint had asserted that employers had filed an application before Labour Court for permission to dismiss complaint and that by filing said application, employers had committed contempt of the court---Main petition was pending before the Bench of Commission and vires of unfair labour practice was to be examined at trial---Law, however, provided that an employee even an office-bearer of Collective Bargaining Agent could be terminated or dismissed with prior permission of the Labour Court concerned---While confirming the interim stay order in earlier petition, the observation given was tentative and was not final---While approaching the Labour Court for getting permission for dismissing the complainant, the employers had adopted a legal course and their said act did not fall within the ambit of unfair labour practice---Complaint meriting no consideration, was dismissed.

M.A.K. Azmati for the Complainant.

Faisal Mahmood Ghani for Respondents.

2010 P L C 163

[National Industrial Relations Commission]

Before Ch. Asad Raza, Ch. Muhammad Iqbal, Members and Raja Abdullah Khan, Senior J. S. (Law)/Member

Syed NAZAR ABBAS

Versus

CHAIRMAN/RITU, NIRC and others

Appeal No.12(44) of 2009/24(118) of 2009, decided on 19th November, 2009.

Industrial Relations Act (IV of 2008)---

----Ss. 2(xxix), 25, 26 & 28---Workman---Determination of status of workman---Appeal---Appellants who were officers of Grade-III and II respectively in Bank, claimed that nature of their duties was manual and clerical---Applicants filed application for allowing them to participate in election proceedings of employees and workers of union---Registrar/Authorized Officer rejected application summarily and removed the names of the appellants from the list of voters---Appellants being aggrieved of the order of Registrar, filed application before Chairman/RITU of the Commission---Chairman of the Commission declined to stay the election proceedings---Chairman of Commission vide impugned order in order to resolve the issue issued notice to the employer Bank to provide a list of duties assigned to each of the appellant so that it could be determined whether they were `workmen' or not---Chairman adjourned the matter and request of stay-of election proceeding was declined---On adjourned date of hearing application of the appellants for a declaration of their status as workmen and their entitlement to participate in the election was turned down in totality---For the legal aspect, record to the file of the appeal had gone infructuous---Further proceedings in hearing of appeal or an adjournment would be nothing but a futile exercise and wastage of public time.

Qazi Ahmed Nadeem Qureshi for Appellants.

Faisal Mehmood Ghani for UBL.

2010 P L C 226

[National Industrial Relation Commission]

Before Ch. Asad Raza, Member

MUHAMMAD ASHFAQ

Versus

Messrs PEARL CONTINENTAL HOTEL, KARACHI through General Manager

No.4A(53) of 2007-K/24(69) of 2007-K, decided on 22nd February, 2010.

Industrial Relations Ordinance (XCI of 2002)---

----Ss. 49(4)(e) & 63---Unfair labour practice by the employers---Petition against---Petitioner who claimed to be elected Vice Propaganda Secretary of the workers Union in the employer Hotel, had alleged that due to his trade union activities he was victimized; charge-sheet was issued to him and inquiry was ordered to be initiated with an appointment of the Inquiry Officer of the choice of the employers/management---Petitioner who apprehended his dismissal, discharge, compulsory retirement, transfer or. passing any adverse order, filed petition before National Industrial Relations Commission for a relief in terms of restraining the management not to commit any act of unfair labour practice---Written statement was filed by the employers raising legal and factual objections---In charge-sheet issued to the petitioner very serious charges were levelled against the petitioner---Petitioner who objected to the appointment of the Inquiry Officer, was accommodated and the Inquiry Officer was changed and thereafter the internal inquiry at administrative level had taken its course to the ultimate end and concluded finally---Petitioner participated in the said proceedings throughout---While holding that the dispute between the parties revolved around the facts allegedly constituting misconduct claimed by the management, any interference by the Commission in proceedings of an internal inquiry, was legally not justified, as assuming of jurisdiction by the Commission and adjudicating upon the legal vires of internal inquiry between an employee and management, was out of the jurisdiction of Commission---Exercise of legal rights by management, could not be said as unfair labour practice; and any irregularity, if allegedly committed even in holding inquiry, also did not fall within the ambit of `unfair labour practice' amenable to jurisdiction of the Commission---Petition filed by the petitioner/employee merited failure and was dismissed.

2004 SCMR 28 and 2004 PLC 209 rel.

Ch. Lateef Saghar for Petitioner.

Faisal Mahmood Ghani for Respondent.

2010 P L C 239

[National Industrial Relations Commission]

Before Ch. Asad Raza, Member

OBAIDUR REHMAN

Versus

Messrs PEARL CONTINENTAL HOTEL, KARACHI through General Manager

No.4A(91) of 2003-K/24(90) of 2003-K, decided on 22nd February, 2010.

Industrial Relations Ordinance (XCI of 2002)---

----Ss. 49(4)(e), 46, 63 & 64---National Industrial Relations Commission (Procedure and Functions) Regulations, 1973, Regln.32(2)(c)---Allegation of unfair labour practice by the employers---Petitioner who claimed to be the Vice President of Workers Union (CBA) in the employer Hotel, was charge-sheeted and was suspended on various allegations, mainly that he misbehaved with Chief Telephone Operator by threatening him to face with dire consequences at his hands---Reply to the charge-sheet being unsatisfactory, the petitioner was issued a letter for enquiry---Petitioner had been allowed full opportunity during inquiry, but he had shown adamancy in participation of enquiry---Inquiry Officer had allowed him assistance of co-worker in enquiry---Witness was allowed to cross-examine the complainant and he got recorded his statement and his four witnesses in the inquiry---Facts acknowledged and admitted by the petitioner himself as his witness, were sufficiently enough to resolve, whether an unfair labour practice was likely to be or had been committed against the petitioner; and also, if the charge-sheet served upon him was an outcome of victimization under the relevant law---Charge-sheet was followed by a complaint lodged by a senior officer of the management and that resulted into initiating an inquiry---Petitioner and the management at both the ends had been comfortable with each other in a period of about 18 years and it was the first occasion that there was an allegation of indisciplined behaviour of the petitioner and the inquiry was set in motion in which the petitioner participated---For the alleged misconduct and indisciplined behaviour attributed by the employer towards the petitioner, it was the legal vested right of the employer to proceed against a defaulter and for that the law and rules of business had duly settled the course---Petitioner was served upon with a charge-sheet of which he submitted a reply and then joined the inquiry proceedings before conducting officer---Present was not a case in which the jurisdiction of N.I.R.C. could be exercised---Proceedings initiated by the Management for taking any disciplinary action against an employee allegedly committing a misconduct, could not be taken into account.

2004 SCMR 28; 2004 PLC 209 and 1987 PLC 547 ref.

Ch. Lateef Saghar for Petitioner.

Faisal Mahmood Ghani for Respondent.

2010 P L C 421

[National Industrial Relations Commission Karachi]

Before Bashir Ahmed Memon, Member

MUHAMMAD FAREED

Versus

Messrs KARACHI ELECTRIC SUPPLY CORPORATION LTD. through its Chief Executive Officer

Petitions Nos.4A(02)2010-K, 24(02)/2010-K of 2010, decided on 12th January, 2010.

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, petition against---Petitioner had alleged that his date of birth as recorded by the Management in their record had wrongly been entered by way of unfair labour practice---Petitioner at the time of his appointment, had produced Matriculation certificate issued by the concerned Board of Intermediate and Secondary Education in which his date of birth was recorded as 13-1-1950---Even in the Staff record, the same date of birth was recorded which was signed by the petitioner himself without raising any objection---Petitioner had served with the company for 37 years---At the time of joining his service he being not member of any Trade Union, he could not come forward with the claim that due to his Trade Union activities his date of birth had been wrongly recorded by the Management---According to Matriculation certificate, petitioner passed his Matriculation Examination at the age of 16 years and if believed that petitioner was not born on 13-1-1950, but was born on 13-1-1953, in that case it could not be believed that he passed matriculation examination at the age of 13 years---Petitioner having failed to establish a case of unfair labour practice, petition and stay application filed under Regln.32(2)(c) of National Industrial Relations Commission (Procedure and Functions) Regulations, 1973 stood dismissed.

1998 SCMR 1494 and 2003 SCMR 1105 ref.

Ch. Latif Saghar for Petitioner.

Faisal Mahmood Ghani for Respondents.

2010 P L C 434

[National Industrial Relations Commission]

Before Ch. Asad Raza, (Member)

MUHAMMAD NASIR

Versus

Messrs PEARL CONTINENTAL HOTEL KARACHI through General Manager

Appeals Nos.4A(27)/2002-K and 24(26)/2002-K, decided on 22nd February, 2010.

Industrial Relations Act (IV of 2008)---

----S. 25(8)(g)---National Industrial Relations Commission (Procedure and Functions) Regulations, 1973, Regln.32(2)---Unfair labour practice by the employers, petition against---Employee was dismissed from service after charge-sheeting him and holding inquiry against him on the charge of absence from duty without permission for a period of twelve days---Employee had participated in enquiry proceedings and he acknowledged his signature on the inquiry proceedings---Employee had failed to produce any document to show that the Management had got him arrested in criminal case---For the alleged period of absence of employee from duty as claimed by the Management, it was for the employee to prove that absence so caused was beyond his means and control, but he failed to do so---For the claimed misconduct and indisciplined behaviour attributed by the employers towards the employee, it was the legal vested right of the employers to proceed against employee and for that the law and rules of business had duly settled the course and law on the issue of disciplinary action and role of National Industrial Relations Commission, was well settled---Present was not a case in which the jurisdiction of National Industrial Relations Commission could be exercised---Proceedings initiated by the Management from taking any disciplinary action against an employee, allegedly committing a misconduct, could not be taken into account and put to judicial evaluation by means of petition under S.25(8)(g) of Industrial Relations Act, 2008 on both the scores of jurisdiction and the merits.

Ch. Lateef Saghar along with Bashir Hussain for Petitioner.

Faisal Mahmood Ghani for Respondent.

2010 P L C 439

[National Industrial Relations Commission]

Before Bashir Ahmed Memon, (Member)

HUSSAIN BUX MALLAH

Versus

UNITED BANK LIMITED through its Group Executive HR & 4 others

Petition Nos.4A(140)2009-K and 24(204)/2009-K, decided on 31st December, 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---Petition against---Respondent/employers had asserted that prior to filing of petition by the petitioner/employee against alleged unfair labour practice by the employers, employee was dismissed from service vide dismissal order which was received by the employee---Copy of dismissal order produced by the employers had shown that same was received by the employee through courier service---Employee, at the time of filing of petition being not in the employment of the employers, relief sought by the employee on the ground that during election proceedings of the union, the Management had threatened, for victimization of the employee due to his involvement in trade union activities and election of the union having been held by the Industrial Relations Commission, there remained no cause of action to the employee---On that ground also the petition had become infructuous and was not maintainable.

1990 PLC 599 and 1984 PLC 1342 ref.

Mushtaq A. Shaikh for Petitioner.

Faisal Mahmood Ghani for Respondents.

2010 P L C 445

[National Industrial Relations Commission]

Before Bashir Ahmed Memon, Member

FAWAD ARMED

Versus

Messrs PEARL CONTINENTAL HOTEL KARACHI through General Manager and another

Petitions Nos. 4A(159)/2009-K and 24(225)/2009-K, decided on 22nd December, 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, petition against---Petitioner had impugned his transfer from one department of the establishment to another, allegedly that such transfer was due to mala fide and bad intention of employers to curb his Trade Union activities and such act of the employers fell within the ambit of unfair labour practice---Petitioner had been transferred from Engineering Department to Grocery Department within the very same building and premises---Grocery store was easier to handle as against Engineering Store---While transferring, the petitioner, there had been no change in terms of conditions of service of the petitioner---Entire ingredients of unfair labour practice were missing as no specific instance of unfair labour practice had been mentioned in the petition---To transfer an employee was the right and prerogative of the employer, if such transfer was not tainted with any act of unfair labour practice---Petitioner had failed to prove that he had been transferred by way of unfair labour practice due to trade union activities---Petitioner had failed to make out a case for grant of stay---Balance of convenience was not in his favour and he would not suffer any irreparable loss or injury, if the stay order was not granted---Accordingly not only the application under Regln.32(2)(c) of National Industrial Relations Commission (Procedure and Functions) Regulations, 1973, but main petition was also dismissed.

Latif Saghar for Petitioner.

Faisal Mahmood Ghani for Respondents.

2010 P L C 474

[National Industrial Relations Commission]

Before Bashir Ahmed Memon, Member

BASHIR AHMED and 3 others

Versus

Messrs ENGRO FERTILIZERS LIMITED through General Manager and 2 others

No.4A(15/2010-K/24(16)/2010-K, decided on 9th June, 2010.

Industrial Relations Act (IV of 2008)---

----S. 25(8)(g)---National Industrial Relations Commission (Procedure and Functions) Regulations, 1973, Regln.32(2)(c)---Petition against unfair labour practice by the employers---Application for grant of interim relief---Petitioners/employees had alleged that they were not being treated as permanent employees on account of contract system in the organization; that neither they were given appointment letters nor any other document; and that they were being threatened for removal from service and were asked to leave the affiliation of union in the establishment---Assertion of the employers was that employees were employees of canteen contractor in the establishment and had nothing to do with services of the establishment---Canteen contractor had admitted that petitioners were his employees and not of the establishment---Petitioners on basis of evidence on record could not claim that they were employees of establishment and question of any threats by employers of removal from employment did not arise---Even otherwise general and bald allegations were against the employers and no specific instance of unfair labour practice on part of the employers had been shown either in the petition or in affidavit filed by the petitioners in support of their stay application so as to establish a case of unfair labour practice---Petitioners having failed to make out a case of unfair labour practice, it would be futile exercise to proceed further with the petition---Main petition and stay application, were dismissed, in circumstances.

Rana Mahmood Ali Khan for Petitioners.

Faisal Mahmood Ghani for Respondents Nos.1 and 2.

Ch. Latif Saghar for Respondent No.3.

2010 P L C 484

[National Industrial Relations Commission]

Before Bashir Ahmed Memon, Member

TUFAIL AHMED

Versus

Mir AKBAR ALI KHAN and others

No.4A(93)/2009-K/24(102)/2009-K, decided on 9th June, 2010.

Industrial Relations Act (IV of 2008)---

---S. 25(8)(g)---National Industrial Relations Commission (Procedure and Functions) Regulations, 1973, Regln.32(2)(c)---Petition against unfair labour practice by the employers---Application for grant of interim relief---Petitioner/employee had alleged that on account of his participation in the union in the establishment and pressing hard the demand of frozen salary of the retired workers, the management was annoyed with him and had been pressurizing and victimizing him to give up his Trade Union activities---Along with main petition filed by the employee against alleged misconduct of the employers under S.25(8)(g) of Industrial Relations Act, 2008, employee had filed application for interim relief-After holding of fresh election of the Union, not a single incident regarding unfair labour practice had been reported and there was no apprehension of commission of any unfair labour practice against the employee---General and bald allegations had been levelled against the employers and no specific instance of unfair labour practice had been shown---Petitioner having failed to make out a case of unfair labour practice, petition filed by the employee, was not maintainable---Stay application and main petition, stood dismissed, in circumstances.

Mushtaq Ahmed Shaikh for Petitioner.

Faisal Mahmood Ghani for Respondents.

2010 P L C 487

[National Industrial Relation Commission]

Before Bashir Ahmed Memon, Member

SHAHEEN AIRPORT SERVICES HARD WORKERS' UNION through General Secretary

Versus

Messrs SHAHEEN AIRPORT SERVICES through Executive Director and another

No.4A(23)/2009-K/24(30) of 2009-K, decided on 8th July, 2010.

Industrial Relations Act (IV of 2008)---

----S. 25(8)(g)---National Industrial Relations Commission (Procedure and Functions) Regulations, 1973, Regln.32---Unfair labour practice by the employers---Petition against---Application for interim stay order---Union who claimed to be Collective Bargaining Agent in the establishment, alleged that from the day of formation/registration/ C.B.A. ship of the union, the employers had created hurdles in the way of petitioner-Union for getting it deregistered on the ground that the provisions of Industrial Relations Act, 2008 were not applicable to the establishment---Union had shown its apprehension and had apprehended adverse action against the members and office bearers of the union---No specific instance of unfair labour practice had been alleged by the union, which was mandatory requirement regarding case of unfair labour practice, however, it was admitted position that referendum proceedings were under process; and in that situation, if the office-bearers or active workers of the petitioner union were disturbed, the union would lose its strength---Employers were directed not to disturb the services of office-bearers and members of the union till the referendum was held in the establishment.

M.A.K. Azmati for Petitioner.

S.M. Yaqoob for Respondents.

2010 P L C 156

[Punjab Labour Appellate Tribunal]

Before Abdul Hafeez Cheema, Appellate Tribunal

MUHAMMAD RASHID-UR-REHMAN and another

Versus

MULTAN ELEOTRIC POWER COMPANY, MULTAN through Chief Executive and another

Labour Appeals Nos.MN-164 and MN-165 of 2009, decided on 7th September, 2009.

Industrial Relations Act (IV of 2008)---

----Ss. 41 & 55---Appeal to Labour Appellate Tribunal---In the present case lower court appeared to have proceeded in an unholy haste---Grievance petition was filed in the case on 20-4-2009, the respondents were directed to file the reply on the very next date---Without properly considering their objections, which could have been decided only after recording of evidence, Labour Court rushed to grant the relief on the same day---Such undue haste coupled with circumvention of the procedure appeared to have vitiated the whole process---All the matters had been treated casually and the record did not show that the lower court judiciously exercised its discretion in coming to the proper conclusion to resolve the issues---Appellant had asserted that they were kept in dark about the filing of the grievance petitions and coming to know the adverse decisions, they had hurried to file appeals---Without digging deep into the merits of the case, it appeared fair, just and proper to remand the case to the lower court with a direction to decide the matters afresh after taking into consideration all the points/objections raised by the respondent-department---Lower Court would provide fair opportunity to all the parties to lead their evidence in support of their respective contentions and to decide the matter in accordance with law---Cases were remanded accordingly.

Ms. Farzana Bilqees Chaudhry for Appellants.

Muhammad Iqbal Khokhar for MEPCO.

Farooq Zaman Qureshi for remaining Respondents.

Sh. Muhammad Sadiq for Applicant.

Date of hearing: 24th August, 2009.

2010 P L C 210

[Punjab Labour Appellate Tribunal]

Before Justice (Rtd.) Abdul Hafeez Cheema, Chairman

MAZDOOR UNION, COCA COLA BEVERAGES PAKISTAN LIMITED through General Secretary

Versus

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

Revision Petition No.166 of 2009, decided on 15th December, 2009.

Industrial Relations Act (IV of 2008)---

----Ss. 9 & 55---Registration of Trade Union---Revision petition---Respondent-Employees Union in the establishment applied for registration of their union, but the Registrar of the Trade Unions rejected that application---Appeal by respondent-Trade Union under S.9(5) of the Industrial Relations Act, 2008 before the Punjab Labour Court had been accepted and Registrar was directed to register the said trade union within a given period---Petitioner trade union which was party before the Labour Court had assailed order passed by the Labour Court in revision---Law required that 20% membership was to be seen by the Registrar only when there were already two registered Trade Unions in the establishment, but in the present case, there was only one registered trade union; and the decision of the second Trade Union was to be taken by the Registrar---Formation date of respondent-trade union was prior to the date of the petitioner union---In the present situation, it was obvious that the remedy lay by holding a fresh enquiry by the Registrar in respect of the Employees Union whose date of formation was prior to that of the petitioner union---Registrar was to decide the registration or otherwise of the petitioner-union---If the respondent-trade union was not registered, then the Registrar would proceed with the enquiry in respect of said union---Impugned order was ' set aside and the Registrar of the Trade Unions was directed to proceed in the matter as required with all possible expedition.

Nadeem Parwaz Choudhary for Petitioner.

Ashfaq Ahmed Khan representative for Respondent No.2.

Respondent No.3 in person.

Date of hearing: 15th December, 2009.

2010 P L C 213

[Punjab Labour Appellate Tribunal]

Before Justice (Rtd.) Abdul Hafeez Cheema, Chairman

JEWAY PAKISTAN WORKERS' UNION LAKSON TOBACCO COMPANY LTD. Through General Secretary

Versus

LAKSON TOBACCO COMPANY LTD. through Notified Manager and others

Appeal No.RI-1348 of 2009, decided on 25th January, 2010.

Industrial Relations Act (IV of 2008)---

----Ss. 55; 56 & 57---Effective date of settlement arrived at between Collective Bargaining Agent and Management---Predecessor Collective Bargaining Agent entered into a settlement with the management on 26-2-2008 and period of operation of said settlement was 3 years w.e.f. 1-4-2007 to 31-3-2010 in terms of S.60(2) of Industrial Relations Ordinance, 2002---Life of Collective Bargaining Agent which was three years, was reduced to two years under Industrial Relations Act, 2008---Appellant union contended that period of settlement would be reduced to two years by force of law; and settlement would cease to be operative after expiry of two years and claimed that they had every right to issue fresh demands because the earlier settlement had come to an end---Validity---Period of the settlement which had been provided under S.57 of the Industrial Relations Act, 2008 could not be construed to be operative retrospectively---Earlier agreement entered into between the parties before the enforcement of Industrial Relations Act, 2008 would be governed by the provisions of Industrial Relations Ordinance, 2002---Section 56(1)(d) of Industrial Relations Act, 2008 laid down that a settlement or an award according to its section 56 would be binding on all the parties to the industrial disputes and clause (c) thereof had postulated that it would be binding on the heirs, successors or assignees of the employer in respect of the establishment to which the industrial dispute related where an employer was one of the parties to the dispute---Collective Bargaining Agent was entitled to enter into an agreement/settlement with the management for any period agreed to between the parties much beyond the Collective Bargaining Agent's own life.

Ch. Muhammad Khalid Farooq for Appellant.

Mahmood Abdul Ghani for Respondent.

Date of hearing: 21st January, 2010.

2010 P L C 350

[Punjab Labour Appellate Tribunal]

Before Justice (R.) Abdul Hafeez Cheema (Chairman)

SHOAIB AHMAD and others

Versus

MANAGING DIRECTOR, THE BANK OF PUNJAB and others

Appeals Nos. LHR-370, 373, 811, 812, 813, 366, 367, 371, 374, 386, 387 and 388 of 2009, decided on 16th December, 2009.

Industrial Relations Act (IV of 2008)---

----Ss. 41, 54 & 55---General Clauses Act (X of 1897), S. 24-A---Grievance petition---Grievance petition filed by the employees was dismissed by the Labour Court by a non-speaking order---No ground and reasons whatsoever had been given by the Labour Court in support of the conclusion that as to why Judge Labour Court was inclined to dismiss the grievance petition---Law required that where, by or under any enactment a power to make any order or give any direction was conferred on any authority, office or person, such power would be exercised reasonably, fairly, justly and for the. advancement of the purpose of the enactment---Law also required the authority, office or person making any such order under the powers conferred by the law, would, so far as necessary or appropriate, give reasons for making the order---Scheme of Labour laws was that while interpreting and applying those laws, the courts were required to construe the law beneficially so as to advance the remedy and to suppress the mischief---Impugned non-speaking orders passed by the Labour Court, were set aside and case was remanded to the Labour Court for its decision in accordance with law with a clear order on the issues raised by the parties.

2009 SCMR 767; 2009 SCMR 769; 1997 SCMR 1224; 2006 SCMR 783 ref.

Tanveer Ahmed Ghumman for Appellants.

Sardar Ahmed Jamal Sukhera for Respondents.

Date of hearing: 14th December 2009.

2010 P L C 354

[Punjab Labour Appellate Tribunal]

Before Justice (R.) Abdul Hafeez Cheema (Chairman)

PAKISTAN TELECOMMUNICATION COMPANY LIMITED, through General Manager

Versus

ANEESA KHATOON

Labour Appeal No. RI-602 of 2009, decided on 18th November, 2009.

Industrial Relations Act (IV of 2008)---

----Ss. 41 & 55---Grievance petition---Retirement under Voluntary Separation Scheme-Calculation of dues---Claim for pension and medical facilities---Employee opted to be retired under Voluntary Separation Scheme introduced by employer company---Initially period of length of service of the employee was calculated as 27 years and her monetary entitlement was declared accordingly---Subsequently her regular service was reduced from 27 years to 15 years, 5 months and 24 days and amount was also reduced accordingly and employee was also denied pension and medical facilities---Employee filed grievance petition in which she requested for payment of balance amount, monthly pension along with medical facilities---Labour Court after hearing the parties, having allowed grievance petition, employer company had filed Labour appeal before Appellate Tribunal---Validity--When an employee was regularized his total length of service, was to be computed from the day he joined the service that could be temporary or otherwise---Even period of an employee of daily wages would be counted for the purpose of computing pensionary benefits---Pension was in fact a deferred part of the pay of an employee while he/she was putting his/her best efforts in rendering service to employer during hay days and that part was deferred to be paid periodically or otherwise to meet employee's old age needs---Such was neither bounty nor a concession from any-one---Pension' having been declared as part of pay, that was a continuing recurring cause of action---No limitation was involved in such cases---Grievance petition filed by the employee, in circumstances, was competent in every respect and employer remained within the confines of technicalities---Court's primary duty was to do substantial justice within the framework of law---Employer could not say that calculation was wrongly made and in fact it should have been from the day when employee cleared the competitive examination---Pensionary benefits including medical facilities having been given to a colleague of the employee, same benefits could not be disallowed to the employee---No discrimination could be made between them, especially when both the employees were placed in similar situation---Order accordingly.

2006 PLC CS 237; Ikram Bari and others v. National Bank of Pakistan 2005 SCMR 100; I. A. Sharwani and others v. Government of Pakistan through Secretary Finance Division Islamabad and others 1991 SCMR 1041; D: S. Nakara and others v. Union of India AIR 1983 SC 130 and People's Union for Democratic Rights and others v. Union of India and others AIR 1982 SC 1473 ref.

Syed Naeem Bokhari for Appellant.

Malik Ghulam Rasool for Respondent.

Date of hearing: 17th November, 2009

2010 P L C 403

[Punjab Labour Appellate Tribunal]

Before Justice (R.) Abdul Hafeez Cheema, (Chairman)

ARMY WELFARE TRUST through Managing Director and another

Versus

Sub (Retd.) MUHAMMAD ASHRAF and another

Labour Appeals Nos. RI-312 and RI-313 of 2009, decided on 25th September, 2009.

Industrial Relations Act (IV of 2008)---

----Ss. 41 & 55(3)---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.12(3)---Termination of service---Grievance petition---Employee who joined services of employer, a trust organization, his services were transferred to subsidiary organization---While serving in transferee organization employee earned promotion as Senior Assistant/Head Clerk, but later on his services were abruptly terminated considering his appointment as contractual one---Grievance petition against termination of service was allowed and he was ordered to be reinstated in service with back benefits---Validity---Employee was employed by the master organization, which had all the trappings of a permanent employment with a right to transfer his services to any of their subsidiary and subordinate organizations anywhere---Appointment of employee in master organization was not a contractual appointment and the right of termination of services had been retained by the master organization as mentioned in the appointment letter---Employee had never accepted new rules imposed by the transferee organization arbitrarily, which were visibly repugnant to the terms and conditions of service settled between the master organization and the employee---At the time of issuance of appointment of employee, no service rules made by the transferee organization were in field regulating terms and conditions of service and only rules of master organization were in field---Transferee organization formed its service rules after more than six years of the induction of employee in master organization---Employee had never accepted that his service was of contractual nature as declared by the transferee organization---In absence of any flaw or infirmity in order of the Labour Court, impugned judgment of the Labour Court was upheld.

Habib Bank Limited's Case 1985 PLC 1100 ref.

Rafey Altaf for Appellants.

Muhammad Nouman Shams Qazi for Respondent No. 1.

Date of hearing: 4th September, 2009.

2010 P L C 409

[Punjab Labour Appellate Tribunal]

Before Justice (R.) Abdul Hafeez Cheema, (Chairman)

DIRECTOR ADMIN. AND FINANCE, WASA and others

Versus

ALLAH YAR and others

Appeals Nos.MN-662, 749 to 753, 755 to 764, 1481 to 1510 of 2009 and Cross Appeals Nos. MN-1352 to 1381, 1459 to 1462 of 2009, decided on 30th January, 2010.

Industrial Relations Act (IV of 2008)---

----Ss. 41 & 55---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.1(1)(b)---Grievance petition--Regularization of service---Status of workmen, determination of---Appeal to Labour Appellate Tribunal---Employees were appointed as work charged/daily wagers from time to time and their services ranged from two to five and a half years---Employees in their grievance petitions had claimed that they had rendered service under the Department regularly without any break or blemish and as they had been doing manual work, they had come within the ambit of "workmen" and had right to invoke the jurisdiction of the Labour Court and that they having attained the status of permanent workmen as provided in S.O.1(1)(b) of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 they were entitled to regularization---Labour Court accepted grievance petitions and found them entitled to be regularized without back benefits---Validity---Employees fulfilled the standard as laid down in S. 0.1(1)(b) of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 for permanent workmen---Employees had produced on record certain letters showing that employers had themselves approved work charged and daily wages employees for regularization and accorded said approval---Employers should have conceded to the claim of employees and should have themselves accorded them regularization--Appeals filed by employers were dismissed and order passed by the Labour Court was upheld, however, appeals filed by the employees claiming back benefits, were dismissed and employees should feel content about the relief which had been provided to them, when no sufficient cause had been shown by them for the grant of back benefits.

PLD 2000 SC 207; Executive Engineer Central Civil Division Pak PWD Quetta versus Abdul Aziz and others PLD 1996 SC 610 and Hameed Akhtar Niazi's case 1996 SCMR 1185 ref.

Sheikh Muhammad Ali for Appellants.

Ashfaq Ahmad Khan for Respondents.

Date of hearing: 22nd December, 2009.

2010 P L C 418

[Punjab Labour Appellate Tribunal]

Before Justice (R.) Abdul Hafeez Cheema, (Chairman)

MUHAMMAD YASIN, and another

Versus

MUHAMMAD ARIF

Revision Petition No. FD-366 of 2010, decided on 4th May, 2010.

(a) Industrial Relations Act (IV of 2008)---

----Ss. 55(3) & 87(3)---Constitution of Pakistan (1973), Art.270-AA(6) & (8)---Repeal of Industrial Relations Act, 2008---Omission of the Concurrent Legislative List by Constitution (Eighteenth Amendment) Act, 2010---Effect---Employers had sought admission of the revision petition and also suspension of impugned order passed by the Labour Court and contended that before any order was passed, it would be appropriate to clarify as to the existence of the Tribunal as well as the Labour Courts' working throughout the Province in view of S.87(3) of the Industrial Relations Act, 2008---Validity---Held, life of Industrial Relations Act, 2008 had come to an end on 30th April, 2010, however on 19th April, 2010 Constitution (Eighteenth Amendment) Act, 2010 was given assent to by the President of Pakistan when the constitutional amendment came into force on 19-4-2010 the Industrial Relations Act, 2008 was very much in force, in circumstances, its life, by virtue of Article 270-AA(6) & (8) of the Constitution had been extended till 30-6-2011, unless, sooner amended, modified or repealed by the competent Authority which was Provincial Legislature---Tribunal as well as the Labour Courts had lawful authority to function and exercise their jurisdiction, in circumstances.

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

----Preamble---Constitution is a living document which portrays the aspirations and genius of the people and aims at creating progress, peace, welfare, unity amongst the citizens---Constitution is a basic structure upon which the entire edifice is built; it has to be interpreted in a manner which may keep it alive and blossoming under all circumstances and in every situation.

(c) Interpretation of statutes---

----Law should be interpreted in a manner which would suppress the mischief and advance the remedy.

Z.A. Hashmi for Petitioners.

2010 P L C 430

[Punjab Labour Appellate Tribunal]

Before Justice (R.) Abdul Hafeez Cheema, (Chairman)

ADMINISTRATOR, TOWN COMMITTEE, WARBURTON and another

Versus

MUHAMMAD ASLAM

Appeal No. SA-907 of 2009, decided on 21st June, 2010.

Industrial Relations Act (IV of 2008)---

----Ss. 41 & 55(3)---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.Os.1(1)(A) & 12---Termination of service---Grievance petition---Permanent workman---Determination of---Service of employee had orally been terminated---Grievance petition by employee was allowed---Claim of the employers that it was a contractual assignment and when the contract expired, employee ceased to be a daily wager and he never attained status of a regular employee---Employee served the department beyond nine months and break if any in the service, was only artificial with a view to frustrate the provisions of law, which was a fraud on the statute---After employee succeeded in getting relief from the Labour Court, he was allowed to join and he was continuing in service since many years---Employee would be deemed to be a permanent employee---Judgment passed by the Labour Court which was flawless and was based on proper reasoning, was upheld, however, employers being in great financial constraint were unable to pay huge back benefits, employee was allowed 30% back benefits as a regular employee.

Muhammad Rashid Chaudhry for Appellants.

Mirza Aamir Baig for Respondent.

Date of hearing: 21st June, 2010.

2010 P L C 441

[Punjab Labour Appellate Tribunal]

Before Justice (R.) Abdul Hafeez Cheema, (Chairman)

AWAMI LABOUR UNION SUPPER GAS, PEARL GAS, DHURNAL FILLING PLANT, SHV, ENERGY PAKISTAN PVT. LIMITED through General Secretary

Versus

CHIEF EXECUTIVE, SHV ENERGY PAKISTAN PVT. LIMITED and 2 others

Labour Appeal No. RI-516 of 2009, decided on 2nd November, 2009.

Industrial Relations Act (IV of 2008)---

---Ss. 41 & 55---Transfer of employees from one place of working to another---Grievance petition---Appeal to Appellate Tribunal---Employees who were transferred from place of work at place I' to place filed grievance petition against their such transfer, which was dismissed by the Labour Court---Validity---Employers by producing the annual audit reports/financial statements in respect of relevant years had proved that their company at placeI' had suffered financial loss during said period due to decrease in demand of their products owing to the prevalent situation in the area concerned which had necessitated to make certain reorganization---Such fact was also admitted by General Secretary of the trade union---Said fact alone was enough to establish that transferred employees were surplus at place I', in such a situation only employer could determine as to what was its financial position and had the right to reorganize the Institution and to retrench its employees---Employers appeared to be quite upright in its dealing, they appeared to have been fair to each and every employee and in the transfer orders they had expressed their inability to continue the functioning of the company at placeI' and offered generous terms to the employees in case they would comply with their transfer orders and perform their duties at place `K'---Entire stand of the employees was false and unfounded, whereas employers' stance was genuine and fair---Employees should have complied with the transfer orders and their defence had no justification whatsoever---Judgment of the Labour Court was well reasoned and no flaw or infirmity having been found therein, same could not be interfered with in appeal.

Raja Ghulam Hassan Khan for Appellant.

Anees Jillani for Respondents.

Date of hearing: 2nd November, 2009.

2010 P L C 448

[Punjab Labour Appellate Tribunal]

Before Justice (R.) Abdul Hafeez Cheema, (Chairman)

FACTORY MANAGER, APPOLLO TEXTILE MILLS LIMITED, MUZAFFARGARH and others

Versus

Syed MUJAHID HUSSAIN KAZMI and others

Appeals Nos. MN-1767, 1768 of 2010 and Revision Petition No. MN-226 of 2010, decided on 12th March, 2010.

Industrial Relations Act (IV of 2008)---

----Ss. 41 & 55(3)(4)---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S. O.15(2)(3)(e)-Dismissal from service---Grievance petition---Appeal/revision before Labour Appellate Tribunal---Employee who was time keeper in the establishment was dismissed from service on two charges, firstly that he made wrong entries in the leave ledger wherein he marked attendance of 6 workers; and secondly that he absented unauthorizedly from duty beyond 10 days---On filing grievance petition by the employee against his dismissal from service, Labour Court accepted grievance petition, set aside dismissal order and reinstated him with half of the back benefits---Labour Court on basis of evidence on record had concluded that charge of wrong entries was not based on solid proof and that employee had not done anything intentionally, even otherwise, that could only lye an attempt to make a wrong entry, which was not culpable under Industrial Relations Act, 2008---Absence of employee .could only be said to be for two days which did not come within the mischief of misconduct in terms of S.O.15(3) of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968---Documents produced on record had proved that employers were extremely annoyed with the employee and wanted to get rid of him---Entire proceedings against employee appeared to be actuated by malice---Enquiry in the case was held by the Officer who could not have defied the wishes of the employers---Labour Court had taken pains to arrive at a correct and just conclusion and its appraisal of evidence, scanning of the record and appreciation of arguments was perfectly valid and legal---Appeal of the employers against judgment of the Labour Court was dismissed in circumstances---Case was very old; and even otherwise in view of recession in the business, number of mills had been closed, therefore, 50% back benefits were rightly granted to the employee.

Rustam Khan Pudhiar for Appellant.

Syed Hammad Raza Naqvi for Respondent.

Date of hearing: 11th March, 2010.

2010 P L C 477

[Labour Appellate Tribunal, Punjab]

Before Abdul Hafeez Cheema, Member

FACTORY MANAGER, RUSTAM SOHRAB CYCLE FACTORY, LAHORE

Versus

REGISTRAR OF TRADE UNIONS and another

Appeal No.LHR-343 of 2010, decided on 11th June, 2010.

Industrial Relations Act (IV of 2008)---

----Ss. 7, 9, 12(2), 50 & 55---Registration of Trade Union---Disqualified person taking part in referendum---Appeal to Labour Appellate Tribunal---Appellant filed application under S.50 of Industrial Relations Act, 2008 with an application for grant of stay and another similar application for summoning of the record of the Registrar of Trade Unions---Labour Court issued notices to the respondents, but declined to give stay order---Said order of the Labour Court had been challenged on the ground that Labour Court had failed to appreciate that Registrar had no mandate to approve the office-bearers of the Trade Union which was headed by a person who was a convicted person---Counsel for the respondents had stated that said disqualified person had already resigned from the office and was no more concerned with the referendum or any election whatsoever; he had specifically stated that if said disqualified person would participate in the said referendum, then the referendum could be termed as nullity in the eyes of law---Respondents in circumstances, were bound to make arrangements in such a way that said convicted/disqualified person would not take part in the referendum, directly or indirectly.

Umar Abdullah for Petitioner.

Muhammad Anjum, Representative for Respondent No.1.

Akhtar Rasul Joiya for Respondent No.2.

2010 P L C 1424

[Punjab Labour Appellate Tribunal]

Before Justice (R.) Abdul Hafeez Cheema, (Chairman)

FACTORY MANAGER, RUSTAM SOHRAB CYCLE FACTORY

Versus

REGISTRAR OF TRADE UNIONS and another

Appeal No. LHR-343 of 2010, decided on 11th June, 2010.

Industrial Relations Act (IV of 2008)---

----Ss. 7, 12(2), 50 & 55(3)---Disqualification for being an officer of trade union---Application to summon record of Registrar of Trade Unions and issuance of stay order---Dismissal of application---Labour Court declined to summon the record of the Registrar of Trade Unions and also refused to issue stay order against employees in the application under S.50 of Industrial Relations Act, 2008---Validity---Trade union applied to Registrar of Trade Unions for holding a referendum to determine Collective Bargaining Agent in the establishment---Labour Court on said application, that the matter having already been settled in constitutional petition filed by the employers, interference of Labour Court in the matter would be in contravention of order of the High Court---Employers had challenged said order of Labour Court on the ground that Labour Court had failed to appreciate that Registrar of Trade Unions had no mandate to approve the office bearers of the Union which was headed by a person who was a convicted person in view of the bar contained in Ss.7 & 12(2) of Industrial Relations Act, 2008 and secondly that the union had inducted two workers of another establishment into Executive Body which was patently illegal as said establishment was an independent one---Union gave undertaking that said convicted person would not take part in the referendum and that if he would do that, the entire process would be a nullity---In view of said assurance, it was bounden duty of the trade union and the Registrar of Trade unions that arrangements could be made in such a way that said convicted persons would not take part in the referendum---Order accordingly.

Umar Abdullah for the Petitioner.

Muhammad Anjum for Respondent No. 1.

Akhtar Rasul Joiya for Respondent No. 2.

Date of hearing: 7th June, 2010.

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