PLC 2011 Judgments - Pakistan Legal Archive

Courts in this Volume

Islamabad
Karachi High Court Sindh
Labour Appellant Tribunal Punjab
Labour Appellant Tribunal Quetta
Labour Appellant Tribunal Sindh
Lahore High Court Lahore
National Industrial Relations Commission
Peshawar High Court
Punjab Labour Appellate Tribunal
Quetta High Court Balochistan
Supreme Court

Islamabad

PLC 2011 ISLAMABAD 196 #

2011 PLC 196

[Islamabad High Court]

Before Muhammad Anwar Khan Kasi, J

Messrs WACKENHUT PAKISTAN (PVT.) LTD.

Versus

Malik ZAFAR IQBAL AWAN and another

Writ Petition No.15 of 2011, decided on 7th March, 2011.

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

----Preamble, Ss.3, 10-C & 20---Constitution of Pakistan, Art.199---Constitutional petition---Death of employee---Application for compensation---Locus standi of Commissioner of Workmen's Compensation---Delay in filing application for compensation---Condonation of---Employee having died during duty in a road accident, his widow filed application for getting compensation---Said application was entertained, delay in filing said application was also condoned---Employer-Company, instead of contesting the case before Commissioner, filed constitutional petition before High Court with the prayer of writ of quo warranto and that of mandamus against respondents---Contention of petitioner was that one respondent/Director Industries and Labour had not shown his locus standi to work as Compensation Commissioner---Petitioner had further prayed that orders for condoning the delay in filing the application for compensation be set aside---Validity---Notification dated 1-12-1988 placed on record had stated that Director Labour had been appointed as Commissioner for the purpose of Workmen's Compensation Act, 1923---Section 10(1) of Workmen's Compensation Act, 1923, had empowered the Compensation Commissioner to entertain and decide any claim for compensation in any case---Commissioner, in circumstances, was empowered to entertain any claim filed after time, if he was satisfied that there was sufficient cause---Delay in filing application had been fully explained by the applicant/widow of the deceased---Workmen's Compensation Act, 1923 was a special enactment and intent and purpose of said enactments was to provide speedy relief to the aggrieved persons; and if such practice through constitutional petition was allowed, the poor would never get their rights because they could not afford the expenses of lengthy litigation---Courts could not allow the top notches of the corporation/companies to satisfy their ego by incurring heavy expenses in litigation instead of paying compensation to the poor widows for the services of her late husband---Matters of compensation required special attention for speedy disposal---Commissioner was directed by High Court to dispose of matter as soon as possible.

(b) Administration of justice---

----Purpose of law---Purpose of law was to hold people for redressal of their grievances instead of going through the tortuous lengthy litigation.

Hassan Ilyas Kaifi for Petitioner.

Munir Ellahi Qureshi for Respondent No.1.

Chaudhary Nasarullah Khan for Respondent No.2.

Date of hearing: 14th February, 2011.

PLC 2011 ISLAMABAD 206 #

2011 P L C 206

[Islamabad High Court]

Before Muhammad Anwar Khan Kasi, J

SAJJAD HUSSAIN and 48 others

Versus

ARIF IBRAHIM

Criminal Original No.38/W of 2011 in Writ Petition No.170 of 2011, decided on 28th February, 2011.

Constitution of Pakistan---

----Arts. 199, 204, 4, 14 & 25---Constitutional petition---Contempt of court---Petitioners, employees of Company owned by government through impugned order were restrained to file claim in the company and according to the explanation called from the employees by the company they were charged for approaching the court in that connection---Validity---Knocking at the doors of the court for justice, was the inherent and fundamental right of every citizen/employee; and it was up to the court to decide whether he/she was entitled for the relief claimed---Authorities of the company could not stop the employees to approach the court as it would be an attempt to deprive them of their legal and lawful rights---Employees could not be kept at the mercy of employer's whims and egos---Impugned explanation called from the employees had been issued without any lawful justification and if such type of letters would remain in the field, then no employee anywhere in the country would be able to approach the court---None could be restrained from raising voice against any unjustified decision or observation---None in the company could be stopped from filing of claim; as it would debar them from asking for any relief---Whimsical orders for the satisfaction of egos of the high-ups could not be allowed to remain in field, because every citizen was equal in the eyes of law under Art.25 of the Constitution; and every body was to be dealt with in accordance with law under Art.4 of the Constitution---Dignity of man was inviolable under Art.14 of the Constitution---No contempt of the court's order having been committed, impugned order and letter, calling explanation, were set aside as being illegal and in violation of constitutional guarantees.

Abdur Rehman Siddiqui for Petitioner.

Shabbir Ahmad Abbasi Standing Counsel.

Karachi High Court Sindh

PLC 2011 KARACHI HIGH COURT SINDH 1 #

2011 PLC 1

[Karachi High Court]

Before Sajjad Ali Shah and Shahid Anwar Bajwa, JJ

Messrs AVENTIS LTD., KARACHI

Versus

MINISTRY OF LABOUR, MANPOWER AND OVERSEAS PAKISTANIS LABOUR AND MANPOWER DIVISION, GOVERNMENT OF PAKISTAN and another

Constitutional Petition No.D-1065 of 2005, decided on 20th September, 2010.

(a) Companies' Profits (Workers' Participation) Act (XII of 1968)---

----Preamble, Ss.2(f), 3, 4 & Sched. Cls.1, 4(d)---Companies' Profits (Workers' Participation) Rules, 1971, Rr.3 & 4-A(e)---Industrial Relations Act (XCI of 2002), Ss.2(xxx) & 20(13)(d)-Constitution of Pakistan, Art.199---Constitutional petition---Workers' Profits Participation Fend (WPPF)---Denial of its obligation by company to contribute to WPPF during years 2003-2004 on the ground that due to increase in wages of workers during such period, company in its employment had no worker as defined in S.2(f) of Companies' Profits (Workers' Participation) Act, 1968---Validity---Companies' Profits (Workers' Participation) Act, 1968 would become applicable to Companies engaged in industrial undertaking on fulfilling one of three (and not concurrent) conditions laid down in Cl.1 of Schedule thereof---Purpose of the Act, as stated in its Preamble being to provide for participation of workers in profits of companies---As per scheme of Act, 1968, benefit of profit would be given to employees subject to a maximum amount prescribed by law, and any employee's share beyond such maximum amount would be required to be deposited in WPPF established not for benefit of workers of a particular company, but for benefit of workers in general even across the country---Said plea of company would be of no consequences in respect of creation of its obligation to contribute to WPPF---Words "left out" as used in Cl.4(d) of Schedule of the Act would mean whatever be surplus, which night be 0% or 100% and could not be distributed amongst workers out of allocation, must necessarily be deposited in WPPF---If there was no workers in company, even then Cl.4(d) of Schedule of the Act could not be interpreted to say that workers across country were disentitled to their share of benefits just because part of 5% could not be distributed amongst workers of company due to statutory provisions---In absence of trustees nominated by C.B.A. or elected by workers, Secretary of WPPF was legally obliged to transfer requisite amount to WPPF even when there were no workers---C.B.A. was not entitled to nominate representative of workers on Board of Trustees of WPPF during years 2003-2004 as such workers though not workers for purpose of the Act were workers for purpose of Industrial Relations Ordinance, 1969---High Court dismissed, constitutional petition directing the company to transfer amount of allocation to WPPF in accordance with law.

Kohinoor Chemical Co. Ltd. and another v. Sindh Employees' Social Security Institution and another PLD 1977 SC 197; Muhammad Siddique v. Sindh Labour Appellate Tribunal, Karachi and another PLD 1979 Kar. 560; Messrs Hafiz Textile Mills, Ltd. v. Government of Pakistan 1986 MLD 206; Messrs Mutual Funds Association of Pakistan v. Federation of Pakistan, through Secretary Ministry of Finance, Government of Pakistan and another 2010 PLC 306 and National Tanker Company (Pvt.) Ltd., and another v. Federal Government of Pakistan 2006 SCMR 1052 ref.

(b) Interpretation of statutes---

----Statute must be construed as a whole---Principles.

Legislation must be construed as a whole and it is not available to any person or any court to pick out a part of the legislation and say, rest be damned, this is what this part means.

Syed Qamaruddin Hassan and M.Z. Moin Mohajir, Director Finance for Petitioner.

Choudhry Muhammad Ashraf for Respondent No.2.

Ashiq Raza, D.A.-G. and Jawad Sarwana, Amicus Curiae.

Date of hearing: 18th August, 2010.

PLC 2011 KARACHI HIGH COURT SINDH 24 #

2011 P L C 24

[Karachi High Court]

Before Ahmed Ali Shaikh and Salman Hamid, JJ

MUHAMMAD USMAN RAJAR

Versus

SINDH LABOUR APPELLATE TRIBUNAL and others

Constitutional Petition No. D-502 of 1995, decided on 7th October, 2010.

Industrial Relations Ordinance (XXIII of 1969)---

----Ss. 25-A & 38---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.15(2), (3)(b)---Constitution of Pakistan, Art.199---Constitutional petition---Dismissal from service---Grievance application---Petitioner/employee who was in continuous service for the last about 20 years, met with an accident and fractured his leg and he was referred for treatment---Employee made application to respondent/employer for making payment of his pending bill,---Employer upon verification of the application of the employee found that his bill was paid off earlier, and finding application of the employee to be an act of misconduct, served him with charge-sheet and after inquiry, dismissed the employee from service---Grievance petition filed ,by employee against order of his dismissal from service, was accepted by the Labour Court and employee was ordered to be reinstated in service with all back benefits---Appellate Tribunal however, dismissed judgment of the Labour Court and employee had filed constitutional petition---Merely by making an application for payment and/or reimbursement of pending bill, would not amount to misconduct---Taking said application of employee to stick height smacked all principles of equity and fair play and was reflective of patent mala fide on the part of the employer-Impugned decision was delivered by the Appellate Tribunal in a slipshod manner and no rationale, whatsoever was given as to why and under what circumstances; and what provision of law had been violated by the Labour Court---Order passed by the Appellate Tribunal was set aside and that of Labour Court upheld and the employer was directed to implement order of Labour Court in letter and spirit, in circumstances.

Allied Bank of Pakistan v. Bashir Khan 2006 PLC 39; Pakistan Tobbaco Company Limited v. Channa Khan and others 1980 PLC 981; Pervez Alam v. Pakistan Dairy Products (Pvt.) Limited Karachi and 2 others 2005 SCMR 1840; The Manager Dean's Hot v. Chairman Labour Appellate Tribunal and 2 others, 1986 PLD 537; Qayoom Nawaz and 9 others v. N.-W.F.P. Small Industries Development Peshawar through Managing Director and 4 others 2000 PLC 215; Akhtar Muneer v. General Tyre and Rubber Company of Pakistan 2007 PLC 360 and Nazir Ahmed Pathan and another v. Muslim Commercial Bank Limited and another 2008 SCMR 899 ref.

Petitioner in person.

Muhammad Sabir for Respondent No.3.

Date of hearing: 16th September, 2010.

PLC 2011 KARACHI HIGH COURT SINDH 40 #

2011 P L C 40

[Sindh High Court]

Before Muhammad Athar Saeed and Munib Akhtar, JJ

ABDUL SATTAR

Versus

Messrs S.G.S. PAKISTAN (PVT.) LTD. through Managing Director and another

High Court Appeal No.138 and C.M.A. No.761 of 2009, decided on 29th September, 2010.

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

----Ss. 25-A, 38(3)(a) & 47(2)---Constitution of Pakistan, Art.199---Law Reforms Ordinance (XII of 1972), S.3(2)---Dismissal from service on basis of permission granted to employer by Labour Court---Dismissal of constitutional petition filed against such permission---Intra-Court appeal---Maintainability---Employee's plea that such permission granted under S.47(2) of Industrial Relations Ordinance, 1969 was not an order, 'thus, remedy of revision under S.38(3)(a) thereof was not available to him---Validity---Decision under S.47(2) of Industrial Relations Ordinance, 1969 would fall within term "proceedings", thus, S.38(3)(a) thereof would be attracted to such decision whereagainst remedy of revision would be available to an aggrieved party---After implementation of such decision, remedy of filing grievance petition available to employee had already been exercised---High Court dismissed Intra-court appeal for not being maintainable in circumstances.

Pearl Continental Hotel v. Muhammad Yaseen reported in 2006 PLC 269; SBLR 2006 SC 111; Civil Appeal No.365 of 1993; Smith Kline and French of Pakistan Ltd v. A. Rashid Pai and another reported in 1987 PLC 400 and Muhammad Akram and another v. Second Sindh Labour Court reported in 1987 SCMR 31 ref.

M.A.K. Azmati for Appellant.

Ch. Muhammad Ahsraf Khan for Respondent.

Saifullah, A.A.-G., Sindh.

PLC 2011 KARACHI HIGH COURT SINDH 72 #

2011 P L C 72

[Sindh High Court]

Before S. Zakir Hussain, J

MUHAMMAD ZAKI

Versus

Messrs SINGER PAKISTAN LTD. KARACHI and another

Constitutional Petition No.S-362 and C.M. No.1601 of 2010, decided on 30th September, 2010.

Industrial Relations Act (IV of 2008)---

----S. 65(2)---Constitution of Pakistan, Art.199---Constitutional petition---Seeking permission to proceed against the employee on basis of the charge-sheet---Respondent/employer had sought permission to carry out departmental proceedings against the petitioner/employee and taking final action against him---Application of the employer seeking said permission having been allowed, employee had filed constitutional petition against the order of the Labour Court entertaining the matter of permission to proceed against the employee on the basis of charge-sheet issued by the employer against him on misconduct---Proper course had been adopted by the employer by approaching the Labour Court under S.65 of Industrial Relations Act, 2008, where matter was sub judice and no final order had been passed---Remedy was very much provided even against the order if any, adversely passed against the employee in such recourse of legal process---Constitutional petition filed by the employee was misconceived and merited no consideration---Labour Court, however was directed to decide the matter of the permission in question within 15 days.

Muhammad Zaki v. Messers Singer Pakistan Limited through Chairman and 4 others 2010 PLC 159; Messrs Norwich Union Fire Insurance Society Ltd. v. Muhammad Javed Iqbal and another PLD 1984 Kar. 519; 1986 SCMR 1071; PLD 1979 Kar. 725; 1981 PLC 561; 1985 PLC 754; PLD 1987 Kar. 67; Shah Murad Sugar Mills Limited v. Mir Ali Muhammad and others 2007 UC 14; 1984 PLC 115; 1980 PLC 752 and 1984 PLC 1342 ref.

M.A.K. Azmati for Petitioner.

Mehmood Abdul Ghani for Respondents.

PLC 2011 KARACHI HIGH COURT SINDH 105 #

2011 PLC 105

[Sindh High Court]

Before Shahid Anwar Bajwa and Tufail H. Ibrahim, JJ

SHAHEEN AIRPORT SERVICES

Versus

NATIONAL INDUSTRIAL RELATIONS COMMISSION through Deputy Registrar and 2 others

Constitutional Petition No. D-1796 of 2010, decided on 29th October, 2010.

Industrial Relations Ordinance (XCI of 2002)---

----Ss. 2(xvii), 3, 4 & 9---Charitable Endowment Act (VI of 1890), Ss.2, 4, 5 & 14---Constitution of Pakistan, Art.199---Constitutional petition---Forming and registration of Trade Union---Petitioner was an Establishment and Project of a Foundation, which was established by Pakistan Air Force for charitable purposes---When workers employed in the establishment formed a Trade Union, registration of such Trade Union was objected to by the establishment contending that establishment being a charitable institution, no Trade Union could be formed in any of Foundation's establishment and that same was exempted from the provisions of Industrial Relations Ordinance, 2002---Validity---"Activity" of establishment would determine whether same fell within the ambit of "industry" or not---For the purpose of deciding whether a particular organization fell within the ambit of industry as defined in S.2(xvii) of Industrial Relations Ordinance, 2002, or not, decisive factor was as to what was the nature of its activity---If the activity was trade or business or service, or even analogous to trade or" business or service, same would be an `industry'---One had to look at the employer/employee interface and see whether it was in the nature of business, 'trade or' industry and as to why that industry was being carried on, was not a subject for the purpose of Industrial Relations Laws---Motives could be relevant for other minds, but legal mind would be guided by the nature of activity---Whether the organization was for making profit or for use of profit for charitable purposes, was of no relevance---Industrial Relations Laws looked at the activity of the organization and; it was by looking at that activity that would decide whether organization was amenable to the Industrial Relations Laws or not---Petitioner (an Airport Services Organisation) functioned at various Airports and provides handling services to the incoming and departing Airlines, including passengers briefing and baggage handling for those Airlines---If such activities formed by any other Airline was covered by Industrial Relations Ordinance, the same activity formed by the petitioner should not be immune from the Industrial Relations Law---Industrial Relations Ordinance, 2002 was applicable to petitioner establishment---Fact that the petitioner yields its profit to the Foundation, which in term uses it for charitable purposes, could not make the petitioner a charitable organization.

Swe-Pak Pharmaceuticals Ltd. v. Registrar, Trade Unions, Balochistan and another 1992 PLC 405; K.G. Old, Principal, Christian Technical Training Centre, Gujranwala v. Presiding Officer Punjab Labour Court, Northern Zone and 6 others PLD 1976 Lah. 1097; Commissioner of Income Madras v. Andhra Chamber of Commerce, Madras AIR 1965 SC 1281; Provincial Government N.-W.F.P. Province v Ghulam Sarwar Khan PLD 1960 (W.P.) Pesh. 55; Haji Sheikh Mahboob Ilahi and another v. (Brigadier) K.M. Idris and 2 others PLD 1955 Lah. 242; Army Welfare Food Industries Factory Area, Faisalabad through General Manager v. Punjab Labour Appellate Tribunal and another 1994 PLC 557; Shaheen Airport Services, Karachi v. Sindh Employees' Social Security Institution 1992 PLC 1002; National Radio and Telecommunication Corporation Employees and Workers Union, Haripur, through its General Secretary v. Labour Appellate Tribunal, N.-W.F.P., Peshawar and 3 others 1990 PLC 218; Haji Malik Aman and 3 others v. Federation of Pakistan, through Secretary, Ministry of Law, Justice and Parliamentary Affairs, Islamabad and another 1993 SCMR 1837; State of Bombay and others v. The Hospital Mazdoor Sabha and others AIR 1960 SC 610; Fazlul Rabbi Pardhan and another v. State of Bengal and others AIR 1965 SC 1722; Sidhrajbhai Sabbai and others v. State of Gujarat and others AIR 1963 SC 540; Army Welfare Sugar Mills Workers' Union v. Army Welfare Sugar Mills 2009 SCMR 202; Pakistan Telecommunication Company Limited through General Manager and another v. Muhammad Zahid and 29 others 2010 SCMR 253; Shaheen Airport Services v. Labour Unity Shaheen Airport Services Employees and 2 others Writ Petition No.142 of 1996; Employees' Old Age Benefit Institution v. National Industrial Relations Commission and others 1988 SCMR 765; Agriculture Workers' Union, Balochistan v. Registrar of Trade Unions, Balochistan, Quetta and others 1997 SCMR 66; Bangalore Water Supply and Sewerage Board v. A. Rajappa and others AIR 1978 SC 548; Shaheen Airport Services, Karachi v. Sindh Employees' Social Security Institution through its Commissioner and another 2003 PLC 371; Madras Pinjrapole v. Labour Court (1960) II LLJ 686; Workmen Employed in Madras Pinjrapole v. Madras Pinjrapole AIR 1963 Madras 89; Madras Pinjarapole v. Their Workmen (1967) II LLJ 399; Pinjrapole v. Workmen AIR 1971 SC 2422; Bangalore Water Supply and Sewerage Board v. A. Rajappa AIR 1978 SC 348; Karachi Chamber of Commerce and Industry through President v. Sindh Labour Court No.V, Karachi and 2 others 2010 PLC 177; Federated Municipal and Shire Council Employees of Australia v. Melbourne Corporation 26 CLR 508 and Industrial Relations Advisor Association v. Federation of Pakistan, 2010 PLC 359 ref.

Nisar A. Mujahid for Petitioner.

M.A.K. Azmati for Respondent No.2 (in C.P. No.1796 of 2010) and for Respondent No.4 (in C.P. No.D-2428 of 2010).

Abid S.Zuberi for Respondent No.3 (in C.P. No.1796 of 2010).

Ashiq Raza, D.A.-G.

Date of hearing: 18th October, 2010.

PLC 2011 KARACHI HIGH COURT SINDH 142 #

2011 P L C 142

[Sindh High Court]

Before Shahid Anwar Bajwa and Tufail H. Ebrahim, JJ

M. ASHRAF BULLO and another

Versus

PAKISTAN INTERNATIONAL AIRLINES CORPORATION through Managing Director and 4 others

Constitutional Petition No.D-2652 of 2010, decided on 11th November, 2010.

Industrial Relations Ordinance (XXVIII of 1969)---

----Ss. 2(x) & 14---Constitution of Pakistan, Art.199---Constitutional petition---Institution of proceedings by individual office-bearers in the name of Trade Union---Petitioners who claimed themselves to be General Secretary and Vice President of the Trade Union in the employer Corporation submitted that under the Industrial Relations Ordinance, 1969, even an individual office-bearer could file a petition; and that was to be deemed to be a petition filed on behalf of the Trade Union---Validity---No provision was available in Industrial Relations Ordinance, 1969 for the proposition submitted by the counsel for the petitioners---Counsel for the petitioners was unable to place on record or point out any authority in support of such contention---If individual office-bearers were allowed to institute proceedings in the name of a Trade Union, it would result to total chaos---Every Trade Union has a constitution and matters were regulated by the constitution; and even if no provision was available in the constitution, the affairs of the Trade Union were entrusted to its executive---Affairs could be entrusted only to a body and not to an individual---Collective Bargaining Agent was not entitled to maintain a constitutional petition in respect of any grievance of its member; similarly a member or office-bearer of a Trade Union, could not maintain a constitutional petition for any grievance of the Trade Union---Petition being, not maintainable was dismissed in limine.

Pipe Mills Employees Union Karachi v. Karachi Pipe Mills Ltd., Karachi 1992 SCMR 36 rel.

M.A. Ghani Chaudhry for Petitioner.

Shafquat Ali Masoomi and Sardar Balakh Sher Khosa for Respondents.

Date of hearing: 11th November, 2010.

PLC 2011 KARACHI HIGH COURT SINDH 153 #

2011 P L C 153

[Sindh High Court]

Before Shahid Anwar Bajwa and Tufail H. Ibrahim, JJ

Dr. FARAH NAZ and others

Versus

PROVINCE OF SINDH through Secretary Labour Sindh and others

Constitutional Petitions Nos.D-1557 and D-1700 of 2008, decided on 22nd November, 2010.

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

----Ss. 79 & 80---Constitution of Pakistan, Art. 199---Constitutional petition---Maintainability---Non-statutory rules---Adhoc employees---Regularization---Petitioners were adhoc employees of different organizations registered with Sindh Employees' Social Security Institution and their services were' terminated without issuance of any show cause or inquiry---Plea raised by institution was that under Ss. 79 & 80 of Provincial Employees' Social Security Ordinance, 1965, no power was available with Governing Body to regularize adhoc employees---Institution further raised the plea that adhoc employee could not claim vested right for becoming permanent employee--Validity---If there were no statutory rules, then though an organization was owned and controlled by government and was a `person' within contemplation of Art. 199 (5) of the Constitution but employee of such organization would not be able to maintain a constitutional petition in respect of any matter arising out of terms and conditions of their respective employment---Petitioners were workmen and they had a remedy before concerned Labour Court which they could avail---Constitutional petition was dismissed in circumstances.

Zulfiqar Ali and others v. Director Housing and others 1994 PLC (C.S.) 1442; Pakistan State Oil Company Ltd. v. M. Akram Khan and others 2004 PLC (C.S.) 992; Khan M. Mutiur Rahman and others v. Government of Pakistan through Secretary, Ministry of Finance (Revenue Division), Government of Pakistan, Islamabad and others 2006 PLC (C.S.) 564; Muhammad Ashraf and others v. Federation of Pakistan, through Secretary, Ministry of Railways, Islamabad and 3 others, 1999 SCMR 336; Dr. Zafar Ahmed v. Mst. Shamsa and others PLD 2002 Kar. 524; Pakistan International Airlines Corporation through Chairman and others v. Shahzad Farooq Malik and another 2004 SCMR 158; Hameed Akhtar Niazi v. The Secretary Establishment Division, Government of Pakistan and others 1996 SCMR 1185; Tara Chand and others v. Karachi Water and Sewerage Board, Karachi and others 2005 PLC (C.S.) 368; Tariq Latif Ansari and others v. Federation of Pakistan and others 2010 PLC (C.S.) 569; Muhammad Hadi v. Secretary, Government of Balochistan, Agricultural and Cooperative Department, Quetta and 2 others, 1987 CLC 74; Muhammad Shahbaz Cheema v. Province of Punjab, PLJ 1984 SC 505(sic); Chief Secretary Government of Punjab v. A. Majeed, 2001 SCMR 1971; .Amjad Ali v. Board of Intermediate and Secondary Education and others 2001 SCMR 125; NLR 1999 Labour 56 and Ghulam Sarwar v. Province of Punjab 1982 SCMR 46 ref.

Ghulam Hafeez v. Government of Sindh through Secretary, Labour Sindh and another 1991 PLC (C.S.) 530; Pakistan International Airlines Corporation v. Tanweer-ur-Rehman and others PLD 2010 SC 676; Nasiruddin Ghori v. Federation of Pakistan, 2010 PLC 323; Employees Old Age Benefits Institution v. N.I.R.C. and others 1988 SCMR 765 and Director Punjab Employees Social Security Institution v. Union of Social Security Employees 2002 PLC 705 fol.

Munawar Hussain for Petitioners (in C.Ps. Nos.D-1557 and 1700 of 2008).

M.M. Aqil Awan and Jawad Sarwana for Respondents.

Adnan Karim, A.A.-G.

Date of hearing: 27th October, 2010.

JUDGEMENT

SHAHID ANWAR BAJWA, J.--- Petitioners in these petitions were all employed as adhoc/temporary employees in 2007 by the Sindh Employees Social Security Institution (hereinafter referred to as 'the SESSI). In 129th, meeting of the Governing Body held on January 28, 2008 in respect of subject matter it was decided as under:---

"(7) While considering progress/status of the implementation of the decision taken in the 128th meeting of the, Governing Body, SESSI, Commissioner requested the Governing Body to take a decision as a general policy of the Institution for regularization of the employees appointed on adhoc basis on contract and engaged on daily wages on completion of 3 months satisfactory service. However, the employees so regularized shall remain on probation as per SESSI (Revised) Service Regulations, 2006.

(8)(ii) The Governing Body also decided as a general policy of the Institution that the employees who have been/'are appointed on adhoc basis or engaged on daily wages be regularized subject to completion of 3 months satisfactory service if they fulfill the conditions as required under SESSI (Revised) Service Regulations 2006. However, the employees so regularized shall remain on probation as per SESSI (Revised) Service Regulations 2006."

Consequent upon this on March 26, 2008 Director Administration wrote to various hospitals and circles calling upon them to provide details of employees working with them since 11-7-2007. However, instead of taking them in regular employment, on 23-5-2008/ 22-5-2008 or there about appointment of the petitioners was cancelled. In this situation the Commissioner SESSI wrote a note for reconsideration of action against such adhoc employees. The material part of a note is in the following words:---

"(3) It is further stated that the Governing Body SESSI in its 129th meeting held on 28-1-2008 decided that all employees who have completed 3 months service in SESSI may be regularized (Annexure "B"). As is evident from the list 'provided at Annexure "C", all of these affectees have completed 03 months of service and were not employed in the interim government tenure. However, these could not be regularized because of missing satisfactory performance reports which is no fault on their part.

(4) It is also worth mentioning that these are officials of low grade and the termination of their services has caused them great hardship.

(5) Representatives of the C.B.A. have met the undersigned and have shown resentment on this arbitrarily and unilaterally decision of termination of their service.

(6) It is, therefore, proposed that in the light of above, all such officials who have completed their mandatory 3 months of service as prescribed by G.B. decision and were not appointed in the interim government tenure may immediately be reinstated."

Learned counsel for the petitioner referred to an advertisement placed in newspaper on July 13, 2008 for the same position and submitted that the petitioners have been removed from service without any show-cause or inquiry. Learned counsel relied upon Zulfiqar Ali and others v. Director Housing and others 1994 PLC (C.S.) 1442 and Pakistan State Oil Company Ltd. v. M. Akram Khan and others 2004 PLC (C.S.) 992. Learned counsel further submitted that the petitioners had worked for almost more than a year and therefore the petitioners had legitimate expectancy. Learned counsel relied upon Khan M. Mutiur Rahman and others v. Government of Pakistan through Secretary, Ministry of Finance (Revenue Division), Government of Pakistan, Islamabad and others 2006 PLC (C.S.) 564. Learned counsel submitted that the acts of the respondents are discriminatory. In this regard he relied upon Muhammad Ashraf and others v. Federation of Pakistan, through Secretary, Ministry of Railways, Islamabad and 3 others, 1999 SCMR 336. Learned counsel submitted that no speaking order has been passed and therefore Section 24-A of the General Clauses Act, has been violated. He- relied upon Dr. Zafar Ahmed v. Mst. Shamsa and others PLD 2002 Kar. 524. Learned counsel further submitted that others have been allowed to continue and this constitutes discrimination. He relied upon Pakistan International Airlines Corporation through Chairman and others v. Shahzad Farooq Malik and another, 2004 SCMR 158, Hameed Akhtar Niazi v. The Secretary Establishment Division, Government of Pakistan and others 1996 SCMR 1185, Tara Chand and others v. Karachi Water and Sewerage Board, Karachi and others 2005 PLC (C.S.) 368 and Tariq Latif Ansari and others v. Federation of Pakistan and others 2010 PLC (C.S.) 569.
Mr. M. M. Aqil Awan, learned counsel for the respondents institution referred to sections 79 and 80 of the Ordinance and submitted that no power was available with the Governing Body to regularize the ad hoc employees. Learned counsel further submitted that an ad hoc employee cannot claim vested right for becoming permanent employee. In this regard he relied upon Muhammad Hadi v. Secretary, Government of Balochistan, Agricultural and Cooperative Department, Quetta and 2 others 1987 CLC 74, Muhammad Shahbaz Cheema v. Province of Punjab, PLJ 1984 SC 505(sic), Chief Secretary Government of Punjab v. A. Majeed, 2001 SCMR 1971 and Amjad Ali v. Board of Intermediate and Secondary Education and others 2001 SCMR 125.
Since the reason stated in the termination order is no longer required learned counsel submitted that it may not be good ground for terminating a permanent employee but it is the good ground for terminating employment of an adhoc employee. Learned counsel submitted that adhoc employment is no employment in the eyes of law. In this regard he relied upon NLR 1999 Labour 56 and Ghulam Sarwar v. Province of Punjab 1982 SCMR 46. Regarding rules and regulations framed in pursuance of section 80, learned counsel submitted that the regulations are not statutory regulations. Regarding advertisement placed in the newspaper, learned counsel submitted that it gives an opportunity to the petitioners to compete on merits. Learned counsel referred to Para-19 of the comments to contend that the decision by the competent authority did not have support of law. Learned counsel further submitted that many of the petitioners are workmen and they have remedy of approaching the Labour Court. While concluding learned counsel submitted that if resolution of Governing Body is in accordance with the powers available under the law he has no objection if the petition is allowed.
We have considered the submissions made by the learned counsel and have also gone through the record as well as case-law cited at the bar.
The Provincial Employees Social Security Ordinance was promulgated by the Governor of West Pakistan on May 14th 1965. Section 2(14) defined the "Government" to mean the Federal or a Provincial Government. Section 3 of the Ordinance provided for establishment by notification of an institution to be called Employees Social Security Institution. In the Province of Sindh SESSI was consequently established. Subsection (2) of section 3 provides as under:

"(2) The Institution shall be body corporate having perpetual succession and common seal, with power, subject to the provisions of this Ordinance, to acquire, hold and dispose of property, both movable and immovable, and shall by the aforesaid name sue and be sued."

Thus, the Institution is a body corporate and is therefore separate and distinct from the government which created it. Section 79 provided for the power to make rules and section 80 provided for the power to make regulations by the Governing Body of the Institution subject to the condition of previous publication, provided the regulations and not inconsistent with the provisions of this Ordinance or the rules. Clause (viii) of subsection (2) of section 80 states that such power would include "powers of the Governing Body, to employ officers and staff for administration of the affairs of the institution". It is no one's case that any statutory regulations have been framed so far. It has been held in Ghulam Hafeez v. Government of Sindh through Secretary, Labour Sindh and another, 1991 PLC (C.S.) 530, by the Division Bench of this Court as under:---

"At the very outset we would like to point out that this petition is not maintainable. Admittedly, the petitioner is not a civil servant nor he is governed by any statutory rules of service. The rules by which the petitioner is governed have been made by the Governing Body of the Sindh Employees' Social Security Institution by virtue of powers vesting in it under section 80 of the Provincial Employees' Social Security Ordinance, 1965 (Ordinance X of 1965). Section of empowers the Governing Body, subject to the condition of previous publication by notification, to make regulations not inconsistent with the provisions of the said Ordinance or the Rifles thereunder and clause (x) of subjection (2) thereof refers to the powers of the commissioner with regard to appointment, transfer, promotion, dismissal and other matters affecting the staff of the Institution. Mr. Muhammad Aslam Butt has invited our attention to the regulations framed by the said Institution in 1976 and Regulation No. XI refers to the matters of termination of service after confirmation. Learned counsel has invited our attention to an office order dated 14-4-1975 whereby the Governing Body of the said Institution in its meeting held on 29-3-1975 approved the application of Sindh Civil Servants (Efficiency and Discipline) Rues, 1973 to the employees of the said Institution.

It would thus be seen that the employees of the Institution, although they are governed by the Civil, Servants (Efficiency & Discipline) Rules which have been adopted by its Governing Body, but notwithstanding the same, the rules under which the petitioner is governed in the matters of service and discipline cannot be equated with statutory rules. The rules have been framed/adopted by the Governing Body of the Institution under the powers vesting in it under section 80 of Ordinance X of 1965. Under such circumstances when there are no statutory rules governing the petitioner the present petition filed by the petitioner would not be maintainable."

Though the situation might have been murky for a long time however, the Supreme Court of Pakistan in Pakistan International Airlines Corporation v. Tanweer-ur-Rehman and others PLD 2010 SC 676, has ,now finally and conclusively laid down that if there are no statutory rules, notwithstanding the fact that an organization is owned and controlled by the Government, and is therefore a person within contemplation of Article 199(5) of the Constitution of the Islamic Republic of Pakistan employee of such an organization would not, be able to maintain a Constitution petition, in respect of any matter arising out of terms and conditions of their respective employment. A Division Bench of this Court has held in the case of Nasiruddin Ghori v. Federation of Pakistan, 2010 PLC 323 that writ petition where there are no statutory rules would not be maintainable.
However, we may note that Mr. M.M. Aqil Awan, contended that many of the petitioners are workmen as defined in the Labour Laws and therefore 'they are entitled to approach the Labour Court in view of pronouncement by the Supreme Court in the case of Employees Old Age Benefits Institution v. N.I.R.C. and others 1988 SCMR 765 and in view of the pronouncement by a Single Judge of Lahore High Court in the case of Director Punjab Employees Social Security Institution v. Union of, Social Security Employees 2002 PLC 705. Mr. Aqil Awan appears to be correct in arguing that as far as those petitioners who are workmen are concerned they have a remedy before the concerned Labour Court. Other can avail remedy of damages in accordance with the law.

PLC 2011 KARACHI HIGH COURT SINDH 167 #

2011 P L C 167

[Sindh High Court]

Before Salman Ansari, J

FAYYAZ ALI

Versus

EMPLOYER/OWNER OF FACTORY

Labour Appeal No.413 of 2004, decided on 23rd October, 2008.

Industrial Relations Ordinance (XCI of 2002)---

----Ss. 46, 47(3) & 48---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.12---Termination of service---Grievance petition---Appeal---Employee had alleged that he had been removed from service without any notice or order in writing in violation of the mandatory provisions of Standing Order 12(3) of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968---Employee had claimed that a grievance notice was sent to the employer by Registered Post, but receiving no response from the employer he filed grievance petition---Labour Court dismissed grievance petition filed by the employee on the ground that no notice of the grievance petition was received by the employer nor employee proved its receipt by the employer---Labour Court found that sending notice by itself was not sufficient compliance; and that as no grievance notice was served upon the employer, grievance petition was not maintainable and dismissed the same---Grievance notice had been served upon the employer considering that the Labour Court had concluded that it was admitted by the employers that employee was the employee of their establishment---Relationship of employee and employer existed and the employee had been removed from his service in violation of the provisions of S.0.12(3) of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968---Impugned order of the Labour Court was set aside and appeal was allowed finding that payment of 25 months of pay last drawn; and house rent, if admissible, was awarded as compensation to the employee in lieu of reinstatement to be paid by the employer within the period of 30 days.

Karachi Shipyard and Engineering Works Ltd. v. Kundan Khan 1982 PLC 676; District Manager, Karachi Transport Corporation, Karachi v. Ghazi Khan and 5 others 1994 PLC 466; Mrs. Parveen Chaudhry v. VIth Senior Civil Judge 1st Class. Karachi and another PLD 1976 Kar. 416; Mst. Nur Jehan Begum v. Syed Mujtaba Ali Naqvi 1991 SCMR 2300 and PLD 1972 SC 25 ref.

Ashraf Hussain Rizvi for Appellant.

Nemo for Respondent.

Date of hearing: 24th September, 2008.

PLC 2011 KARACHI HIGH COURT SINDH 208 #

2011 P L C 208

[Sindh High Court]

Before Shahid Anwar Bajwa and Tufail H. Ebrahim, JJ

Messrs INTERTRADE through Owner

Versus

FAISAL and 2 others

Constitutional Petitions Nos.D-1566 and 1567 of 2009, decided on 2nd March, 2011.

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

----Ss. 15 & 17---Payment of Wages (Procedure) Rules, 1937, R.8---Constitution of Pakistan, Art.199---Constitutional petition---Maintainability---Payment of wages---Ex parte order---Remedy---Petitioner/employee had terminated services of employee---Authorities proceeded ex parte against employer and awarded compensation to worker---Application filed by employer to recall ex parte order was dismissed and proceedings for recovery of compensation were initiated against employer---Validity---Section 17 of Payment of Wages Act, 1936 and Payment of Wages (Procedure) Rules, 1937 did not provide that if an application for recalling order was decided by the Authority, same would be appealable before Labour Court---Legislature had not provided any appeal against allowing or rejecting of application for recalling the order, therefore, if application for recalling was decided by the Authorities under Payment of Wages Act, 1936, such decision could not be challenged in appeal under S.17 of Payment of Wages Act, 1936, because it was not a decision under S.15(3) or S.15(4) of Payment of Wages Act, 1936---As no remedy was provided against such decision on application for recalling the order, petition before High Court under Art.199 of the Constitution was maintainable---Authority under Payment of Wages Act, 1936, should have considered application for recalling the order in accordance with Rule 8 of Payment of Wages (Procedure) Rules, 1937 and thereafter should have decided the application in accordance with law---High Court in exercise of Constitutional jurisdiction, set aside the order passed by the Authority and directed the Authority to treat application for recalling the order as pending and to decide the same in accordance with law---Petition was allowed accordingly.

Ghulam Muhammad and others v. Hafiz Ahmed and others PLD 1960 Lah. 1179 and Mughal Surgical (Pvt) Ltd. and others v. Presiding Officer, Punjab Labour Court No.7 and others 2005 PLC 364 ref.

Muhammad Adnan for Petitioners.

Rafiullah for Respondents.

Date of hearing: 14th December, 2010.

PLC 2011 KARACHI HIGH COURT SINDH 258 #

2011 P L C 258

[Sindh High Court]

Before Amir Hani Muslim and Irfan Saadat Khan, JJ

MEHMOOD-UL-HASSAN and others

Versus

GOVERNMENT OF SINDH and others

Constitutional Petition No.D-673 of 2009, decided on 7th December, 2010.

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

----S. 15---Constitution of Pakistan, Art.199---Constitutional petition---Alternate remedy---Petitioners were employees of respondent organization and during pendency of their applications under S.15 of Payment of Wages Act, 1936, the same was transferred to another city---Plea raised by petitioners was that no opportunity was provided to them before transfer of cases---Validity---Alternate remedy was available to petitioners under relevant provisions of Payment of Wages Act, 1936---All pleas which were taken by petitioner before High Court could be taken before appropriate forum---When there was alternate remedy available to petitioners, constitutional petition was not maintainable and petitioners might avail alternate remedy available to them under the law---Petition was dismissed in circumstances.

PLD 1991 SC 385; 1986 SCMR 959; 1981 PLC 561; PLD 1979 Kar. 725 and PLD 2004 Kar. 620 ref.

Miss Nasim Abbasi for Petitioners.

Allah Bachayo Soomro, Addl A.-G. for Respondents Nos.1 to 3.

Vizarat Hussain Zaidi for Respondent No.4.

PLC 2011 KARACHI HIGH COURT SINDH 265 #

2011 P L C 265

[Sindh High Court]

Before Sarmad Jalal Osmany, C.J. and Ahmed Ali M. Shaikh, J

Messrs PAK GREASE MANUFACTURING COMPANY LIMITED and others

Versus

FEDERATION OF PAKISTAN through Secretary to the Labour Manpower and Overseas

Constitutional Petitions Nos.392 of 2005, 2053 of 2002 and 1546 of 2003 decided on 25th January, 2011.

(a) Companies Profits (Workers' Participation) Act (XII of 1968)---

----S. 2(e) & Sched.---Welfare and benevolence of worker---Criteria---Provisions of Companies Profits (Welfare Participation) Act, 1968, are applicable to companies if they fulfil any of the conditions that the number of workers employed by the company in any shift at any time during a year is 100 or more; that the paid-up capital of the company as on the last day of its accounting year is Rs. 20 Lakh or more and that the value of fixed assets of the company (at cost) is on the last day of accounting year is Rs. 40 Lakh or more.

(b) Companies Profits (Workers' Participation) Act (XII of 1968)---

----S. 2(e) & Sched.---Constitution of Pakistan, Art.199---Constitutional petition---Welfare and benevolence of workers---Liability of company---Term "worker"---Scope---Petitioner company contended that provisions of Companies Profits (Workers' Participation) Act, 1968, were not applicable to its employed workers and company was not liable to pay and deposit as 5 % profit to authorities as contribution to the Fund---Validity---Companies Profits (Workers' Participation) Act, 1968, was a welfare orientated legislation enacted for the benefit and welfare of labour class and the same should be liberally interpreted to advance such cause---If the term "worker" was given any strict and narrow meaning, it would frustrate the very intent of legislature, therefore, in order to achieve aims and objects of the legislature, it must be given a liberal meaning in general sense of the term "worker"---If the term "worker" was interpreted strictly according to its definition given in Companies Profits (Workers' Participation) Act, 1968, same would defeat the legislative intent---To achieve the purpose and object of the statute, it was necessary that the term "worker" be given a general meaning i.e. workers in general or employees in general excluding the management category---To correct drafting error, if the term "worker" was interpreted in such fashion, there would be no problem and two persons could be elected by non-management employees / staff for inclusion in the Board of Trustees---Such was the reasonable interpretation which would not frustrate the object of legislature and on the contrary would advance its purpose and object for the benefit of workers of the entire country---For the purposes of Companies Profits (Workers' Participation) Act, 1968, the term "worker" should be interpreted as "an employee of non-management category"---High Court in exercise of constitutional jurisdiction declined to interfere in the demand raised by authorities from petitioner to participate in Companies Profits Workers Participation Fund---Petition was dismissed in circumstances.

Kohinoor Chemical Co. Ltd. v. SESSI PLD 1077 SC 197; National Embroidery Mills Ltd. vs. Punjab Employees' Social Security Institution 1993 SCMR 1201; Miss Sumaeea Zareen v. Selection Committee, Bolan Medical College Quetta 1991 SCMR 2099 and Messrs Hafiz Textile Mills Ltd. vs. Government of Pakistan 1986 MLD 206 rel.

----Drafting of statute---Errors---Drafting errors can be corrected in appropriate cases.

Interpretation of Statutes, Twelfth Edition by Maxwell page 231 rel.

Muhammad Sabir for Petitioner (in C.P. No.392 of 2005).

S.M. Awan for Petitioner (in C.P. No.2053 of 2002).

Umer Soomro for Petitioner (in C.P. No.1546 of 2003).

Nazar Akbar and Muhammad Ashraf Khan Mughal, D.A.-Gs. for Pakistan.

Jawwad Sarwana, Amicus Curiae.

PLC 2011 KARACHI HIGH COURT SINDH 276 #

2011 P L C (C.S.) 276

[Sindh High Court]

Before Faisal Arab and Muhammad Ali Mazhar, JJ

Mst. DADLI

Versus

FEDERATION OF PAKISTAN through Divisional Superintendent Pakistan Railways, Sukkur and 2 others

Constitutional Petition No.D-449 of 2007, decided on 1st March, 2011.

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

----Ss. 15 & 17---Constitution of Pakistan, Art.199---Constitutional petition---Dues, entitlement of---Payment during proceedings---Parties were legal heirs of deceased worker and dispute between them was with regard to entitlement of service gratuity, group insurance, G.P. fund, monthly pension and staff benevolent fund---During pendency of application under S.15 of Payment of Wages Act, 1936, authorities made some payments to widow of deceased employee---Labour Court allowed appeal under S.17 of Payment of Wages Act, 1936 and set aside the order made by the Authority---Validity---Being an appellate Court, Labour Court ought to give cogent rational findings for its disagreement on the head of dues and amount adjudicated by the Authority under Payment of Wages Act, 1936---Labour Court had also ignored to deal with the effect of making payment by Authorities to the widow of deceased during pendency of application before the Authority under S.15 of Payment of Wages Act, 1936, in which she was arrayed one of the respondents on which, the Authority specifically directed the Authorities to probe into the matter and initiate disciplinary action against the concerned staff---When the matter was sub judice before competent forum having jurisdiction to decide the matter, then there was no justification or logic to make the payment to the widow of deceased---High Court declined to pass order for payment of dues on the basis of calculation shown in petition which involved factual controversy---As the petitioner had adopted appropriate legal remedy by filing application under S.15 of Payment of Wages Act, 1936, and her application was allowed but the order was set aside in appeal without appreciating and examining the claim---High Court set aside the order passed in appeal by Labour Court and remanded the matter to Labour Court to decide the appeal afresh after giving opportunity to the parties---Petition was disposed of accordingly.

M.A. Hakeem for Petitioner.

Muhammad Imran Khan for Respondent No.1.

Sher Muhammad Shaikh, D.A.-G.

PLC 2011 KARACHI HIGH COURT SINDH 307 #

2011 P L C 307

[Supreme Court of Pakistan]

Present: Zia Perwez, Sabihuddin Ahmed and Sarmad Jalal Osmany, JJ

MAHMOOD HUSSAIN LARIK and 2 others

Versus

MUSLIM COMMERCIAL BANK LIMITED

Civil Appeals Nos.697, 698 and 699 of 2005, decided on 31st March, 2009.

Per Sarmad Jalal Osmany, J.; Zia Perwez, J. agreeing; Sabihuddin Ahmed, J. Contra.

(a) Constitution of Pakistan---

----Art. 185(2)(d)(e) & (3)--- Appeal to Supreme Court---Maintainability---No value could be given to the subject-matter of the appeals involving labour disputes, service cases, cases arising from the rent jurisdiction or family disputes where the main prayer was of restoration in service, eviction of the tenant on various grounds or dissolution of marriage/custody of minors respectively, although it may be that granting or refusing of the main prayer may result in some monetary benefit to any party to the dispute before the court of first instance and in an appeal---No direct appeal as of right could be filed in said matters as the first pre-condition could not be quantified---Appeal would be to the Supreme Court as of right if the matter was covered under Art.185(2)(d) & (e) of the Constitution and if the matter was not so covered then leave to appeal had to be sought from Supreme Court in terms of Art.185(3) of the Constitution---Principles.

An appeal would lie to Supreme Court as of right if matters are covered under Article 185(2) (d) & (e) of the Constitution for which the limitation is 30 days. Obviously if they are not so covered then leave to appeal has to be sought from Supreme Court in terms of Article 185(3) for which limitation is 60 days per the rules.

Upon reading Article 185(2)(d) & (e) of the Constitution it would be seen that essentially Sub-Articles (2)(d) contemplates a monetary claim being the subject-matter of the dispute between the parties in the Court of first instance which should at least be in the sum of Rs.50,000 whereas Sub-Articles (2)(e) contemplates disputes in respect of property of the same value. Of course in both cases, the further requirement is that the High Court must have set aside or varied the judgment etc. of the Court immediately below. It would further be seen that such provisions have been borrowed from sections 109 and 110 of the Civil Prcoedure Code, which previously regulated appeals to Supreme Court from the judgments and decrees of the High Court. Obviously since the Civil Procedure Code essentially dealt with controversies of a civil nature between the litigants the wording of sections 109 and 110 also contemplated civil suits as such. Hence, it would be prudent to conclude that Article 185(2)(d) & (e) is also confined to civil disputes between the litigants respecting money claims or property disputes. The expression used in section 109 i.e. the amount of value of the subject-matter of the suit is identical therefore, interpretation of these provisions of the Civil Procedure Code earlier made would be applicable to the relevant clauses (d) and (e) of Article 185 of the Constitution. In fact the term subject-matter of the dispute meant the market value of the property. In these circumstances, cases involving labour disputes and for that matter service cases, cases arising from the rent jurisdiction or family disputes where the main prayer is of restoration in service, eviction of the tenant on various grounds or dissolution of marriage/custody of minors etc., respectively it cannot be said that any value could be given to the subject-matter of the dispute or for that matter to a claim respecting property, although it may be that granting or refusing of the main prayer may result in some monetary benefit to any party to the dispute before the Court of first instance and in an appeal.

Muhammad Inayat and others v. Fateh Muhammad and others 2003 SCMR 875 and S.M. Rukmani Bai v. Joshi Ram AIR 1950 Allahabad 242 fol.

Allied Bank Limited v. Mujeebur Rehman Qazi and others SBLR 2006 SC 33(sic) findings held to be per incuriam.

Per Sabihuddin Ahmed, J., Contra.

Wajid Ali through L.Rs. v. Syed Sajid Ali through L.Rs. 1985 SCMR 401; Muhammad Inayat and others v. Fateh Muhammad and others 2003 SCMR 875; Noorul Hassan v. Federation of Pakistan PLD 1956 SC 331; Rai Kumar v. Resh Behari Mandal AIR 1931 PC 125; State of Maharashtra v. Mishi Lala Tarachand AIR 1964 SC 457; "The New Property" by Charles A. Reich published in Yale Law Review in 1964; Dwarkadas Shrinivas v. Sholapur Spinning and Weaving Company Ltd. and others AIR 1954 SC 119; The Commissioner Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt AIR 1954 SC 282; Ajiruddin Mondal and others v. Rahman Fakir and others PLD 1961 SC 349; Asma Jehangir v. Province of Punjab PLD 1969 SC 139; Benazir Bhutto v. Federation of Pakistan and another PLD 1988 SC 416; Allied Bank Limited v. Mujeeb-ur-Rehman Qazi and others SBLR 2006 SC 33(sic); Haji Muhammad Saleem v. Khuda Bakhsh PLD 2003 SC 315; Sardar Abdul Rauf Khan and others v. Land Acquisition Collector/Deputy Commissioner, Abbottabad and others 1992 SCMR 1181; Haji Muhammad Nawaz v. Hussain Shah 1990 SCMR 1621; Water and Power Development Authority through Chief Engineer v. Saadullah Khan 1999 SCMR 319; Zafar Iqbal Hameed Khan v. Ashiq Hussain and 2 others 2005 SCMR 1371; Nazar Muhammad and another v. Mst. Shahzada Begum and another PLD 1974 SC 22; Dost Muhammad Cotton Mills Ltd. v. Muhammad Abdul Ghani and another 1979 SCMR 304; Allied Bank of Pakistan v. Muhammad Humayun 1998 SCMR 1664; National Bank of Pakistan v. Punjab Labour Court No.7, Gujranwala and others 1992 SCMR 1891; Yousaf Ali Shah v. Quetta Serena Hotel 1997 SCMR 1630; Karachi Shipyard and Engineering Works Limited v. Abdul Ghaffar and 2 others 1993 SCMR 511 and Managing Director, Shahi Bottlers (Pvt.) Limited v. The Punjab Labour Appellate Tribunal, Lahore and 2 others 1993 SCMR 488 ref.

Per Sarmad Jalal Osmany, J.; Zia Perwez, J. agreeing; Sabihuddin Ahmed, J. Contra.

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

----S. 2(xxx)---Industrial Relations Ordinance (XXIII of 1969), S.2(xxviii)---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(i)---Workman/Worker---Determination---Test---Whether a person is a workman, test to determine is the nature of the work done by him and not the designation or title etc.---Bank employee, who was Accountant of the Branch and was an Officer Grade-III and used to supervise a number of workers, his duties were certainly not manual or clerical in nature---Such employee incorrectly approached to the Labour Appellate Tribunal for relief---Principles.

[Case-law] ref.

----S. 2(xxx)---Industrial Relations Ordinance (XXIII of 1969), S.2(xxviii)---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(i)---Workman/Worker---Determination---Test---Bank employee who was working as officer Grade III in the managerial cadre and performing the functions of signing paying slips, vouchers, debt vouchers, collection of transfer bills, cheque books as well as demand drafts etc; was not member of any trade union or workers' union registered with the NIRC; was not doing any manual or clerical work and such officers were posted as managers of the Branch, held, was not a workman doing any manual or clerical work and his grievance application before Labour Appellate Tribunal was misconceived.

[Case-law] ref.

Per Sabihuddin Ahmed, J., Contra.

Ganga R. Madhani v. Standards Bank Ltd. and others 1985 SCMR 1511; Yousaf Ali Shah v. Quetta Serena Hotel 1997 SCMR 1630 and PLD 1968 (W.P.) Statutes 170 ref.

M.M. Aqil Awan, Advocate Supreme Court for Appellants.

Mehmood Abdul Ghani, Advocate Supreme Court for Respondent.

Date of hearing; 25th November, 2008.

PLC 2011 KARACHI HIGH COURT SINDH 336 #

2011 P L C 336

[Sindh High Court]

Before Shahid Anwar Bajwa and Tufail H. Ebrahim, JJ

E.O.B.I. OFFICERS' ASSOCIATION OF PAKISTAN through President and 2 others

Versus

Messrs EMPLOYEES' OLD AGE BENEFITS INSTITUTION (EOBI) through President and 2 others

Constitutional Petition No.D-3448 of 2010, decided on 30th April, 2011.

Constitution of Pakistan---

----Art. 199---Employees' Old-Age Benefits Institution---Constitutional petition---Civil service---Transfer---Petitioners being employees of Employees' Old-Age Benefits Institution and office-bearers of EOBI Officer's Association aggrieved by their transfer to other places alleging same to be mala fide---Institution did not have statutory rules of service---Relief prayed for was in respect of rights of individual employees and not in respect of any of rights of such Association---Only appropriate forum could determine whether authorities had taken impugned action in accordance with law or not---High Court dismissed constitutional petition in limine for being not maintainable, in circumstances.

Raja Faizul Hassan Faiz and 6 others v. Federation of Pakistan through Secretary to the Government, Finance Division, Islamabad and another 1999 PLC 11; The State v. Zia-ur-Rehman and others PLD 1973 SC 49; The Federation of Pakistan through the Secretary, Establishment Division, Government of Pakistan Rawalpindi v. Saeed Ahmed Khan and others PLD 1974 SC 151; Khawaja Ahmed Hassaan v. Government of Punjab and others 2005 SCMR 186; Pakistan International Airlines Corporation through Chairman and others v. Samina Masood and others PLD 2005 SC 831; Civil Aviation Authority, Islamabad and others v. Union of Civil Aviation Employees and another PLD 1997 SC 781; Pakistan International Airlines Corporation v. Tanweer-ur-Rehman PLD 2010 SC 676; Muhammad Dawood and others v. Federation of Pakistan and others 2007 PLC (C.S.) 1046 and Messrs Mutual Funds Association of Pakistan (MUFAP) v. Federation of Pakistan through Secretary, Ministry of Finance, Government of Pakistan and another 2010 PLC 306 ref.

Nasiruddin Ghori v. Federation of Pakistan through Secretary and 4 others 2010 PLC 323 and Pakistan Telecommunication Co. Ltd. v. Iqbal Nasir and others PLD 2011 SC 132 rel.

Syed Haider Imam Rizvi for Petitioners.

Syed Imtiaz Ali Shah for Respondents.

Ashiq Raza, Deputy Attorney-General on Court notice.

Date of hearing: 24th December, 2010.

PLC 2011 KARACHI HIGH COURT SINDH 344 #

2011 P L C 344

[Sindh High Court]

Before Shahid Anwar Bajwa and Gulzar Ahmed, JJ

[Labour Appellate Tribunal]

Before Justice (Rtd.) Ali Muhammad Baloch, Chairman

STATE LIFE INSURANCE CORPORATION OF PAKISTAN through Chairman and 2 others

Versus

Haji ZAMEER AHMED AKHUND and others

Appeals Nos.HYD-34 of 2010 Old No.L.A.12 of 2008, HYD-373 of 2010 Old No.L.A.13 of 2008, No.HYD-374 of 2010 Old No.LA.14 of 2008, HYD-375 of 2010 Old No.L.A.15 of 2008 and HYD-376 of 2010 Old No.L.A.16 of 2008, decided on 12th March, 2010.

Industrial Relations Act (IV of 2008)---

----Ss. 41, 54 & 55---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.Os.12 & 13--Golden Handshake Scheme---Option for retrenchment/retirement under the Scheme---Withdrawal of option---Grievance petition---Appeal---Services of employees were terminated by the authorities on account of floating of scheme called "Premature retirement of employees by Golden Handshake Scheme" which scheme was floated by Insurance Corporation without approval of Federal Government---Scheme revealed that employees who would not opt for the said scheme, would be retrenched under the "last in first out" basis on payment of only one month's salary---Employees who apprehended that they would be otherwise ousted from service under the scheme moved applications for retrenchment/retirement from service; however, on the same day employees gave another application to the authorities that they should be paid their full and final dues on the same day under the said scheme, otherwise their option could be considered as withdrawn---Employees submitted withdrawal of petitions stating that under misconception, coercion, threat of losing the job they had given the option; and that since it was not a voluntary retrenchment, same could not be considered as their wilful acceptance of the scheme---Ignoring statements of withdrawal by the employees, they were retired from the service and were relieved---Labour Court accepted grievance petition against order passed by Insurance Corporation---Validity---In the present case employees gave option as they were threatened of being removed from service after one month only which could be rightly called misconception, misrepresentation, intimidation pressure and coercion---Judgment of Labour Court was correct---Employees were made to opt for retirement and when they realized that it was not in their favour, they made applications for withdrawing said option and their withdrawal was wrongly disallowed---Insurance Corporation, in circumstances was directed to reinstate the employees in service from the date they were wrongly terminated and with full back-benefits.

G.M. National Radio Tele Communication v. Muhammad Aslam and others reported as 1992 SCMR 2169 ref.

Masood Naqvi for Appellant.

Ghulam Muhammad Memon for Respondents.

Date of hearing: 15th November, 2010.

PLC 2011 LABOUR APPELLANT TRIBUNAL SINDH 203 #

2011 PLC 203

[Sindh Labour Appellate Tribunal]

Before Justice (R.) Ali Muhammad Baloch, Member

Messrs AL-KARAM TEXTILE MILLS (PVT.) LIMITED through Resident Director and Notified Manager

Versus

SINDH LABOUR COURT NO.IV and another

Appeal No.KAR-1628 of 2010(C.P. S-705 of 2009), decided on 3rd March, 2011.

Industrial Relations Act (IV of 2008)---

----Ss. 41 & 55---Grievance petition---Grievance petition filed by employee was accepted by Labour Court and he was reinstated in service without back-benefits---Validity---Employee in his cross-examination had admitted that he was not employee of the employer (appellant)---Grievance petition on that ground against employer wds not maintainable.

2000 PLC 52; Aftab Ali and others v. Woodward Pakistan Limited C.P.L.A. No.809-K to 815-K of 2005; Muhammad Sharif and others v. Punjab Labour Court No.3, Civil Appeal No.39 of 1997; PLD 1978 Lah. 704; PLD 1976 Lah. 1169; 1985 SCMR 239; 1987 SCMR 1463; 2010 PLC 635; Seagul Exports Pakistan Ltd. v. Sind Labour Appellate Tribunal 2002 PLC 212 and 1988 SCMR 1725 ref.

Mehmood Abdul Ghani and S. Vizarat H. Zaidi for Appellant.

Nemo for Respondents.

PLC 2011 LABOUR APPELLANT TRIBUNAL SINDH 362 #

2011 P L C 362

[Sindh Labour Appellate Tribunal]

Before Justice (Rtd.) Ali Muhammad Baloch, Member

Messrs ENGRO FERTILIZERS LIMITED (Formerly Engro Chemical Pakistan Ltd.) through Company Secretary

Versus

RASHEED AHMED KOLACHI

Appeal No.SUK-529 of 2010, decided on 12th May, 2011.

Industrial Relations Act (IV of 2008)---

----Ss. 41, 54(3) & 55---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.15---Dismissal from service---Grievance petition---Employee was dismissed from service after serving upon him a charge-sheet and holding inquiry against him on charge of wilful absence from duty for more than ten days and on further allegation of misappropriations and discrepancies in the stocks---Employee, after serving grievance notice filed grievance petition against order of his dismissal from service---Counsel for employer company filed written statement and also cross-examined the employee but thereafter the counsel and the employer, both disappeared from the Labour Court and neither they led any evidence nor advanced arguments---Labour Court decided the matter on the basis of evidence available on record and concluded that employee was entitled for reinstatement in service along with back benefits---Labour Court though had concluded entirely in favour of the employee, but as an abundant caution, the Court had allowed the employers/Management to conduct the enquiry afresh within a period of three months---Impugned order to the extent of reinstatement and enquiry was complied with, but as reinstatement was conditional upon enquiry being held, back benefits were not payable to the employee.

National Bank of Pakistan and another v. Punjab Labour Appellate Tribunal and 2 others 1993 SCMR 105 and Qadeer Ahmed v. Punjab Labour Appellate Tribunal PLD 1990 SC 787 rel.

Mehmood Abdul Ghani for Appellant.

Dad Muhammad Kolachi for Respondent.

Dates of hearing: 17th January, 17th February, 5th March, and 12th May, 2011.

2011 PLC 37

[Lahore High Court]

Before Ijaz Ahmad Chaudhry, J

Messrs LONE CHINA (PVT.) LIMITED, GUJRANWALA through Chief Executive

Versus

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

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

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

----S. 15(2)---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.Os.1(1) & 12---Constitution of Pakistan, Art.199---Constitutional petition---Termination of service---Non-payment of outstanding dues---Respondent/employee, who worked for more than 17 years in the establishment of employers, her services were terminated orally---Employers did not pay outstanding dues of the employee, with regard to notice pay, gratuity compensation of annual leave, bonus and overtime etc. on the ground that the respondent was not a permanent worker, but was daily wager employee---Both Authority under Payment of Wages Act and the Labour Court accepted claim of the employee--Validity---Both the forums below. arrived at a concurrent finding of fact that respondent/employee was not a daily wager as she had continuously worked for more than nine months; and that she was a permanent worker---Impugned orders did not suffer from any illegality or irregularity,' but were supported by the evidence on the record and the right provision of law had been applied, which were not open to any exception by High Court in its constitutional jurisdiction---Employee was rightly held a "permanent worker" and entitled to outstanding dues in circumstances.

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

Abdul Hakeem Awan for Petitioner.

2011 P L C 300

[Lahore High Court]

Before Asad Munir, J

ZIA SHAHID and another

Versus

AUTHORITY UNDER THE PAYMENT OF WAGES ACT, 1936 and another

Writ Petition No.4713 of 2011, decided on 7th June, 2011.

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

----S. 1(4) & Preamble---Entitlement of claim---Scope---Pre-condition---Word "workman" finds no mention in S.1(4) of Payment of Wages Act, 1936, or in any other provision and it is totally alien to the scheme of Payment of Wages Act, 1936--- Any person can file a claim for wages against his employer provided he is or was employed in a factory, industrial establishment or commercial establishment defined in Payment of Wages Act, 1936.

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

----Ss. 1(4) & 2(ia)---Factories Act (XXV of 1934), S.2(i)--- Newspaper establishment---Status---Scope---Newspaper establishment falls within the definition of a factory given in S.2(ia) of Payment of Wages Act, 1936, by reference to S.2(i) of Factories Act, 1934--- Printing of newspaper involves manufacturing process whereby newsprint is converted into newspaper---Even if it is assumed that newspaper establishment is not a factory, even then it is a commercial establishment to which provisions of Payment of Wages Act, 1936, are equally applicable in view of S.1(4) of Payment of Wages Act, 1936, after its amendment in year, 2001---Newspaper establishment is subject to provisions of Payment of Wages Act, 1936.

----Ss. 1(4) & 2(ia)---Constitution of Pakistan, Art. 199---Constitutional petition---Ex parte order, setting aside of---No notice of service---Petitioners were running newspaper establishment and they were not issued any notice of case, either through ordinary mode or publication in press for hearing on the date fixed for hearing when petitioners were proceeded against ex parte---Validity---Petitioners could not be proceeded against ex parte for non-appearance on a date of hearing they had been given no notice of---Service of notice for a previous date of hearing, on which party did not appear, could not be regarded as relevant or valid for proceeding ex parte on a subsequent date of hearing for which no notice had been given to the party proceeded against---High Court, in exercise of Constitutional jurisdiction, set aside the ex parte order passed against petitioners, as the same had been passed without lawful authority---High Court directed the authorities to take decision afresh by adjudicating upon the claim of respondent/employee on merits in accordance with law---Petition was allowed accordingly.

Syed Match Company Ltd. through Managing Director v. Authority under the Payment and Wages Act and others 2003 PLC 395; Lawrancepur Textile Mills Ltd. v. Government of the Punjab and others PLD 2004 SC 416; Nakhshbandi Industries Limited through Factory Manager v. Authority Under the Payment and Wages Act 2010 PLC 401; Ali Akbar Imrani v. Essa Khan 2006 PLC 326 and Municipal Committee Kasur v. Compensation Commissioner 2000 PSC 1144(sic) ref.

Town Committee, Gakhar Mandi v. Authority Under the Payment of Wages Act PLD 2002 SC 452; Messrs Hafiz Textile Mills Limited v. Commissioner for Workmen's Compensation and Authority Under the Payment of Wages Act PLD 1993 Kar. 709 and Muhammad Swaleh and another v. Messrs United Grain and Fodder Agencies Ltd. PLD 1964 SC 97 rel.

University of Health Sciences and others v. Mumtaz Ahmad and others 2010 SCMR 767 distinguished.

Aftab Ahmad Bajwa for Petitioners.

Azam Sultan Soharwardi for Respondents.

Date of hearing: 26th April, 2011.

National Industrial Relations Commission

PLC 2011 NATIONAL INDUSTRIAL RELATIONS COMMISSION 15 #

2011 P L C 15

[National Industrial Relation Commission, Islamabad]

Before Bashir Ahmed Memon, Member

SHAHID ALI

Versus

Messrs ENGRO FOOD LIMITED through Plant Manager/Factory Manager and 3 others

Petition No.4A(91)/2010-K/24(101)/2010-K, decided on 8th July, 2010.

Industrial Relations Act (IV of 2008)---

----S. 25(8)(g)---National Industrial Relations Commission (Practice and Functions) Regulations, 1973, Regln.32(2)(c)---Petition against unfair labour practice by the employers and stay application---Petitioner had alleged that when he, in order to reactivate the union activities in the establishment, arranged a meeting of factory workers, employers were annoyed---Petitioner further alleged that employers directed him to resign from the job and in case he would not submit his resignation he would be removed from service---Employers rejected claim of the petitioner and stated that as the petitioner while getting the job had produced a forged Degree of B.A., he was being proceeded against---Petitioner had not been able to establish that he was office-bearer of the Trade Union and that he was member of Trade Union---Petitioner while getting his job had misstated which, reflected his dishonesty---Present petition was filed by the petitioner only in order to frustrate the disciplinary proceedings initiated against him---Petitioner having failed to establish a case of unfair labour practice, not only the stay application filed under Regln.32(2)(c) of National Industrial Relations Commission (Practice and Functions), Regulations, 1973, but the main petition filed under S.25(8)(g) of Industrial Relations Act, 2008, were dismissed, in circumstances.

Rana Mahmood Ali Khan for Petitioner.

Mahmood Abdul Ghani for Respondents.

2011 PLC 120

[National Industrial Relations Commission]

Before Bashir Ahmed Memon, Member

NIB EMPLOYEES FRONT OF PAKISTAN through President and 2 others

Versus

Messrs NIB BANK LIMITED through President and 4 others

No.4A(142)/2010-K/24(161)2010-K, decided on 29th October, 2010.

Industrial Relations Ordinance (XXVIII of 1969)---

----S. 22-A(8)(g)---National Industrial Relations Commission (Procedure and Functions) Regulations, 1973, Regln.32(2)(c)---Unfair labour practice by the employers---Petition against---Stay application---Petitioner (Union) which claimed to be Collective Bargaining Agent in the establishment had alleged that two employees who were office-bearers of the trade union were being compelled to tender their resignation by the Management, which was act of unfair labour practice by the employer---Validity---Petitioner union was not registered with Registrar Industrial Trade Unions and was not Collective Bargaining Agent---Petition filed by the petitioner/union, in the present form by the non-Collective Bargaining Agent was not maintainable---Even otherwise the union could not espouse the cause of individual worker---Pleadings showed only bald and vague allegations, without any substance and no specific instance of unfair labour practice had been quoted---Petition, in circumstances did not fall within the ambit of unfair labour practice---Petitioner/union having failed to establish a case of unfair labour practice, petition and stay application were dismissed.

Ch. M. Nishat Warsi for Petitioners.

Faisal Mahmood Ghani for Respondents.

PLC 2011 NATIONAL INDUSTRIAL RELATIONS COMMISSION 129 #

2011 PLC 129

[National Industrial Relations Commission]

Before Ch. Shaukat Nawaz Goraya, Member

NASIR QAYYUM

Versus

U.B.L. and others

Case No.4A(20)/10-L, decided on 6th October, 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 employer---Petition against-Stay application---Petitioner who was employed as officer Grade-II in the establishment/Bank and was a member and General Secretary of the Association of Officers had impugned his transfer order and implementation of said order in his petition filed by him under S.28(8)(g) of Industrial Relations Act, 2008 alleging the same as unfair labour practice by the Bank---Plea of Bank was that impugned order was passed due to exigency of service and no mischief or unfair labour practice was committed by the Bank---Validity---National Industrial Relations Commission had no power to grant status quo---Petitioner was performing Managerial nature of duties and did not fall within the category of "workman"; he had not levelled any specific allegation of alleged unfair labour practice committed against .him---Employer had the right to use the services of his employee at best suited places and that right could not be snatched away from him---Petitioner had failed to make out a prima facie case in his favour; his stay application being without any substance, was dismissed and temporary injunction which was granted in his favour was vacated.

1994 PLC 476; 2005 PLC 327; 2003 PLC 344 and 1996 PLC 100 ref.

Ch. Waqar Ahmed for Petitioner.

Faisal Mehmood Ghani for Respondents.

PLC 2011 NATIONAL INDUSTRIAL RELATIONS COMMISSION 133 #

2011 PLC 133

[National Industrial Relations Commission]

Before Bashir Ahmed Memon, Member

MUHAMMAD SHARIF and 46 others

Versus

Messrs KARACHI ELECTRIC SUPPLY COMPANY LIMITED though Chief Executive Officer

No.4A(115)/2010-K/24(134)/2010-K, decided on 30th September, 2010.

Industrial Relations Ordinance (XXVIII of 1969)---

----Ss. 22-A(8)(g) & 15---National Industrial Relations Commission (Procedure and Functions) Regulations, 1973, Regln.32(2)(c)---Unfair labour practice by the employers---Petition against---Stay application---Petitioners were sportsmen engaged by the employers and their engagement was on contract---Terms of appointment showed that appointees were engaged purely on temporary basis and their engagement could be terminated any time without any notice and assigning any reason; and that the petitioner would have no claim for regular appointment; in certain cases it had been mentioned in the engagement orders that their engagement on contract would be from 1-5-2008 to 31-12-2008 and last contract of the petitioners was extended upto 31-12-2010---Employers, in circumstances, were legally as well as morally bound to retain the petitioners with them upto 31-12-2010; and prior to that they were not to be disturbed---Employers were not supposed to discontinue the contract of petitioners and they were entitled to receive all benefits as agreed mutually including their monthly salary/stipend upto 31-12-2010.

Ch. Muhammad Ashraf for Petitioners.

Faisal Mahmood Ghani for Respondent.

PLC 2011 NATIONAL INDUSTRIAL RELATIONS COMMISSION 136 #

2011 PLC 136

[National Industrial Relations Commission]

Before Ch. Shaukat Nawaz Goraya, Member

AZIZ AHMAD SH.

Versus

U.B.L. and others

Case No.4A(101)/10-L, decided on 26th October, 2010.

Industrial Relations Act (IV of 2008)---

----Ss. 25(8)(g) & 17---National Industrial Relations Commission (Procedure and Functions) Regulations, 1973, Regln.32(2)(c)---Unfair labour practice by employer---Petition against---Stay application---Employee by means of petition under S.25(8)(g) read with S.17 of Industrial Relations Act, 2008 had impugned the transfer order and relieving order passed against him by the employers alleging that said order was passed against him as employer had turned against him due to his lawful trade union activities---Employee had contended that place order to victimize him he had been transferred to a far flung where even the post of Assistant did not exist---Employee further alleged that action of the employers was illegal, void, invalid without lawful authority and amounted to committing of unfair labour practice---Application for issuance of temporary injunction was also filed by the employee---Employee had joined his new place of posting and marked his attendance on daily attendance Register---Employee, in circumstances, had failed to make out a prima facie case in his favour---Stay application merited dismissal.

Ch. Waqar Ahmad for Petitioner.

Faisal Mehmood Ghani for Respondents.

PLC 2011 NATIONAL INDUSTRIAL RELATIONS COMMISSION 138 #

2011 PLC 138

[National Industrial Relations Commission]

Before Bashir Ahmed Memon, Member

KESC LABOUR UNION (CBA) through Chairman

Versus

Messrs KARACHI ELECTRIC SUPPLY COMPANY LTD. through Chief Executive Officer

Case No.4A(40)/2010-K124(47)/2010-K, decided on 1st October, 2010.

Industrial Relations Act (IV of 2008)---

----Ss. 25(8)(g), 17(e), (f), 26(3)(b) & 50---National Industrial Relations Commission (Procedure and Functions) Regulations, 1973, Regln.32(2)(c)---Unfair labour practice ,by the employers--Stay application---Petitioner (employees union) had alleged that employer/establishment was intending to transfer the workers to another self-created `Business Office Region' where in fact, no work or job and any operational activities were available to be performed by the workers and that said act of the establishment was not only illegal, mala fide, but was an act of unfair labour practice and was also contemptuous in nature---Validity---Transfer was right and prerogative of the' employer and establishment in the case wanted to introduce certain schemes in better interest---How the employees union had presumed that while transferring the workers of the union, the management would keep them in surplus pool; and thereafter would remove them from employment was not known---Establishment was already running in loss and scheme of "Business Office Region" had been introduced by the employers in order to bring improvement, with the eventual goal of enhancing performance standard---Settlement was arrived at between the parties and while signing the settlement, petitioner union agreed to withdraw all the pending cases filed against the employers---Morally as well as legally the petitioner union had to withdraw the petition as it had no right to proceed further with the petition in view of undertaking of the union.

Ch. M. Latif Saghar for Petitioner.

Faisal Mahmood Ghani for Respondent.

PLC 2011 NATIONAL INDUSTRIAL RELATIONS COMMISSION 176 #

2011 PLC 176

[National Industrial Relations Commission]

Before Bashir Ahmed Memon, Member

SARBULAND KHAN

Versus

TRUSTEES OF PORT OF KARACHI through Chairman and another

No.4A(125)/2010-K/24(144)/2010-K, decided on 26th November, 2010.

Industrial Relations Ordinance (XXIII of 1969)---

----S. 22-A(8)(g)---Unfair labour practice. by the employers---Retirement of employee on wrongly recorded date of birth---Petitioner/employee had alleged that due to his affiliation with trade union, Management was against him and was trying to victimize him on one or the other pretext---Petitioner had further alleged that Management had served him with notice of retirement on attaining age of superannuation on his wrongly recorded date of birth, which was act of unfair labour practice---Management had asserted that at the time of joining the service, the birth date of the petitioner was recorded as 8-7-1950 and that he was certified to be retired on 8-7-2010 on attaining the age of superannuation---Petitioner, who claimed that his date of birth was 13-8-1957, had not submitted any document in proof of his claim---Even after achieving academic qualification petitioner had never produced any document to that effect during his entire period of service; and it was only after service of retirement notice he woke up from deep slumber and claimed that his date of birth was 13-8-1957 and not 8-7-1950---Date of birth once recorded at the time of joining of service was to remain final; and thereafter no change in date of birth was permitted---Petition under S.28-A(8)(g) of Industrial Relations Ordinance, 1969, stood dismissed, in circumstances.

2007 SCMR 66 ref.

Abdul Ghaffar for Petitioner.

Ch. Shaukat Ali for Respondents.

2011 P L C 229

[National Industrial Relations Commission]

Before Bashir Ahmed Memon, Member

PAKISTAN TELECOMMUNICATION COMPANY LIMITED through G.M.

Versus

PAKISTAN TELECOMMUNICATION EMPLOYEES' UNION and 4 others

No.4A(153)/2010-K, 24(176)/2010/K, decided on 1st March, 2011.

Industrial Relations Act (IV of 2008)---

----Ss. 25(8)(g) & 50---Petition had been brought by the management against trade unions registered in the establishment---Interim prohibitory order was passed restraining the trade unions from resorting to strike/cessation of work, slogan raising, demonstration, using of abusive language etc.---Service on trade unions was held good, but none appeared and even other unions who were served, remained absent---All unions who remained absent, despite repeated notices, were proceeded ex parte---Management filed affidavit-in-evidence by way of ex parte proof, wherein it reiterated the entire facts of the case, which were mentioned in the petition and also had appended photographs in support of their contention---Since no rebuttal had been received from the unions, petition of management stood allowed.

Faisal Mahmood Ghani for Petitioner.

Nemo for Respondents.

PLC 2011 NATIONAL INDUSTRIAL RELATIONS COMMISSION 235 #

2011 P L C 235

[National Industrial Relations Commission]

Before Ch. Shaukat Nawaz Goraya, Member

M. MAZHAR IQBAL SIAL and others

Versus

UNITED BANK LTD. and others

Cases Nos.4A(252)/09-L, 4A(341)/09-L and 4A(342)/09-L, decided on 28th January, 2010.

Industrial Relations Act (IV of 2008)---

----Ss. 25(8)(g) & 17---National Industrial Relations Commission (Procedure and Functions) Regulations, 1973, Regln.32(2)(c)---Unfair labour practice by employers---Interim stay order---Petitioners/employees had challenged their transfer orders on ground that same were illegal, discriminatory, void, without lawful authority which amounted to committing of unfair labour practice---National Industrial Relations Commission, was empowered under Regln.32(2) of Regulations, 1973 to restrain doing of an act which constituted an unfair labour practice, but it was not vested with such power, if unfair labour practice had already been committed---In the present case, Commission by suspending the operation of the impugned transfer orders preserved the position prevailing on the day of passing of the interim injunctions---Petitioners/employees had not relinquished the charges of their posts, neither they had joined the transferred places---Impugned transfer orders, in circumstances, had not been implemented and it could not be said that unfair labour practice had already been committed---Petitioners had failed to specifically mention the persons who pressurized them or quote any specific instance of lawful trade union activities---Mere wild and bald allegations of unfair labour practice were not sufficient to prove victimization amenable for interference by the Commission, because no exact date and time when the employers had given the threats had been mentioned---Employers had the prerogative to utilize the services of his employees at best suited places and transfer of an employee, was the basic right of the employers, which was always exercised in the better performance and interest of the establishment and same could not be snatched---Commission had the jurisdiction to adjudicate upon the petitions and stay orders, after the election of the union, no ground or cause of action remained available to the petitioners against employers---Petitions having become infructuous, petitions and stay application could not proceed.

2003 PLC 344 and 1996 PLC 100 ref.

Ch. Waqar Ahmed for Petitioner.

Faisal Mehmood Ghani for Respondents.

PLC 2011 NATIONAL INDUSTRIAL RELATIONS COMMISSION 238 #

2011 P L C 238

[National Industrial Relations Commission]

Before Bashir Ahmed Memon, Member

KESC LABOUR UNION (CBA) through Chairman and 11 others

Versus

Messrs KARACHI ELECTRIC SUPPLY COMPANY LTD. through Chief Executive ad another

No.4A(157)/2010-K, 24(180)/2010-K, decided on 22nd February, 2011.

Industrial Relations Act (IV of 2008)---

----Ss. 25, 17, 26 & 32---National Industrial Relations Commission (Procedure and Functions) Regulations, 1973, Regln.32---Unfair labour practice---Interim stay order---Petitioner had challenged the maintainability, propriety and legality of circular titled as "Performance Management System for Non-management Staff", issued by Management contending that said circular had been issued in order to target the unionized staff working in the establishment, which was act of unfair labour practice---Interim stay order was granted in favour of the petitioners---Collective Bargaining Agent, could approach only for the enforcement of right guaranteed and secured to it; and it could not espouse the cause of individual workman---Petitioner had failed to make out a prima facie case for grant of any relief---Not only stay application, but main petition stood dismissed, in circumstances.

2010 PLC (C.S.) 789 ref.

Ch. M. Ashraf Khan for Petitioners.

Faisal Mahmood Ghani for Respondents.

PLC 2011 NATIONAL INDUSTRIAL RELATIONS COMMISSION 242 #

2011 P L C 242

[National Industrial Relations Commission]

Before Bashir Ahmed Memon, Member

KARACHI ELECTRIC SUPPLY CORPORATION LABOUR UNION through Chairman and 4 others

Versus

Messrs KARACHI ELECTRIC SUPPLY COMPANY LIMITED through Chief Executive Officer and another

No.4A(25)2010-K/24(28)/2010-K, decided on 31st January, 2011.

Industrial Relations Act (IV of 2008)---

----Ss. 25, 17, 26 & 32---National Industrial Relations Commission (Procedure and Functions) Regulations, 1973, Regln.32(2)(c)---Unfair labour practice by the employers---Applications for interim stay order---Petitioner union, which was Collective Bargaining Agent in the establishment had alleged that, four employees, who were permanent workmen, who had cast their votes in the last referendum, had been malafidely promoted to Officer Cadre, with intention to keep said workmen away from their trade union activities, which was an act of unfair labour practice on part of employers---On filing said petition, interim stay order was granted in favour of the petitioners---Promotions of said workmen were ordered in the months of June and July, 2009, while petition against alleged unfair labour practice had been filed by the petitioners in the month of March, 2010---Promotion of said petitioners had already taken effect---Bench of Commission, in circumstances, was not competent to grant status quo ante---Promotion was a contractual and legal right of the employers and such managerial function of employers could not be restrained under the garb of petition claiming unfair labour practice---Commission had been empowered under clause (2) of Regln.32 of National Industrial Relations Commission (Procedure and Functions) Regulations, 1973 to prohibit the commission of said act/omission, which constituted an unfair labour practice---Commission had not been vested with such power in respect of an unfair labour practice already committed covered by said clause---Regulation 32(2)(c) of National Industrial Relations Commission (Procedure and Functions) Regulations, 1973 was attracted only when there was apprehension that an unfair labour practice was likely to occur; to prevent for which some interim measures were called for and not in the case where unfair labour practice had already been committed---Petitioners by way of interim relief, seemed to have sought final relief, which could not be granted in the present proceedings---Petitioners had levelled bald and general allegations without any substance as to what activities they performed which were not liked by the management; and management had been compelled to keep them away from the trade union, because none of the said petitioners was an office-bearer of the union---Claim of the petitioners did not fall within the ambit of unfair labour practice---Petition? and? stay? application,? stood? dismissed,? in? circumstances.?

?????? 1994? PLC? 476;? 1984? PLC? 1342;? 1984? PLC? 1480;? 1980 PLC 752; 1986 PLC 985; 1994 PLC 476; PLD 1988 SC 53; 2004 SCMR 28; 2007 PLC 270; 2009 PLC 79 and 2003 PLC 32 and 2001 PLC 103? ref.

?????? Ch. Muhammad Ashraf Khan for Petitioners.

?????? Faisal Mahmood Ghani for Respondents.

PLC 2011 NATIONAL INDUSTRIAL RELATIONS COMMISSION 247 #

2011 P L C 247

[National Industrial Relations Commission]

Before Ch. Shaukat Nawaz Goraya, Member

ZAFAR IQBAL

Versus

U.B.L. and others

Case No.4A(260)/10-L, decided on 19th January, 2011.

Industrial Relations Act (IV of 2008)---

----Ss. 25(8)(g) & 17---National Industrial Relations Commission (Procedure and Functions) Regulations, 1973, Regln.32(2)(c)---Unfair labour practice by the employers---Stay application---Petitioner had alleged that he had been transferred due to his lawful trade union activities in order to victimize him; that by committing further unfair labour practice, employers had withheld his increment; that actions of the employers were illegal, void, invalid without lawful authority, revengeful, which amounted to committing of unfair labour practice and also filed application for issuance of temporary injunction---Wild and general allegations of unfair labour practice had been levelled against employers and no specific incidents or witnesses had been cited in the pleadings---Initiation of disciplinary actions, termination, demotion or transfer e.g. were all statutory and legal rights of the employers---Transfer of the petitioner could not be termed as result of unfair labour practice---Petitioner had made out an arguable case only to the extent that he was entitled to his increment and other allowances, which were withheld by the employers---Stay application was disposed of with the observation that employers were directed to release the increment and other allowances of the petitioner which were withheld due to grievance petition pending before the Labour Court.

Ch. Waqar Ahmad Ch. for Petitioner.

Faisal Mehmood Ghani for Respondents.

PLC 2011 NATIONAL INDUSTRIAL RELATIONS COMMISSION 249 #

2011 P L C 249

[National Industrial Relations Commission]

Before Bashir Ahmed Memon, Member

NIB EMPLOYEES' FRONT OF PAKISTAN through President and another

Versus

Messrs NIB BANK LIMITED through President and 3 others

No.7(21)/2010-K, decided on 5th January, 2011.

Industrial Relations Act (IV of 2008 ---

----[(as revived by Industrial Relations (Revival and Amendment) Act (XV of 2010)], S.27---Complaint against violation of interim order---Complainant who claimed to be Collective Bargaining Agent in the establishment had alleged that Commission had granted interim stay order against employers, but despite service of that interim stay order, they had transferred the officer-bearers of the trade union and had committed contempt of court by violating stay order passed by the Commission---Complainants had failed to point out as to how the employers had violated the status quo order granted by the Commission regarding employment of the complainant---No allegation of removal or termination of the complainant from employment---Complainant had been transferred in routine and that too within the city, which did not amount to contempt of court as transfer was not covered in status quo order granted by the Commission---Complainant had failed to specify as to what contempt of the court had been committed; and he had not given the name of any person who had violated the stay order---Contempt case had arisen out of main case, which petition along with stay application having already been dismissed as not maintainable, on that ground also, complaint was not maintainable.

Ch. M. Nishat Warsi for the Complainants.

Faisal Mahmood Ghani for Respondents.

PLC 2011 NATIONAL INDUSTRIAL RELATIONS COMMISSION 261 #

2011 P L C 261

[National Industrial Relations Commission]

Before Bashir Ahmed Memon, Member

MUSSALI KHAN

Versus

Messrs KARACHI ELECTRIC SUPPLY CO. LTD. through Chief Executive Officer

No.4A(166)/2010-K/24(188)/2010-K, decided on 1st February, 2011.

Industrial Relations Act (IV of 2008)---

----[as revived by Industrial Relations (Revival and Amendment) Act (XV of 2010)], S.25---National Industrial Relations Commission (Procedure and Functions) Regulations, 1973, Regln.32(2)(c)---Unfair labour practice by the employers---Date of birth, determination of---Application for interim stay order---Petitioner/employee had challenged letter from the employers whereby petitioner was informed that he would stand retired on 30-6-2010 on attaining age of superannuation---Petitioner had alleged that he was being retired on the basis of wrongly recorded date of birth by committing unfair labour practice as he was active member of Labour Union in the establishment---Interim stay order was granted in favour of the petitioner---Petitioner in his application for his employment had himself mentioned his date of birth and had mentioned that he was the man of 28 years of age in the year 1979 and that he was born somewhere in year 1950---Pre-employment medical examination also showed same year of birth---Other documents produced on record had also shown said year of birth of the petitioner---Petitioner throughout his service career remained quiet respecting the date of birth recorded by the management in the record---Even on his own showing he came to know about that factum in August, 2010, but he approached the Commission after two months of letter of his retirement---Element of unfair labour practice which was a sine qua non for the exercise of jurisdiction of National Industrial Relations Commission, being missing in the case, petition filed by the petitioner was not maintainable---Petitioner having failed to establish a case of unfair labour practice by the employer, his stay application and petition were dismissed, in circumstances.

Ch. M. Lateef Saghar for Petitioner.

Faisal Mahmood Ghani for Respondents.

PLC 2011 NATIONAL INDUSTRIAL RELATIONS COMMISSION 284 #

Before Abdul Aziz Kundi, J

IZZAT KHAN

Versus

PAKISTAN RAILWAYS and others

Labour Appeal No.4 of 2010, decided on 13th December, 2010.

Industrial Relations Act (IV of 2008)---

----Ss. 41 & 54(3)---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(g) & S.0.15(4)---Discharge from service---Grievance petition---Appeal---Employee was appointed, subject to the condition that his education certificate/conduct would be verified; and in case any irregularity was found, his service would be terminated without any notice---Educational certificates of the employee revealed that he had produced bogus certificates---Employee, in circumstances, was discharged from service with immediate effect---Counsel for the employee had argued that provisions of S.0.15(4) of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, had not been complied with while passing the impugned order---Validity---Employee was charged for an offence which was graver in nature and of moral turpitude--Fact finding inquiry in which employee duly participated, showed that his certificates were bogus, employee, in circumstances was not required to be dealt with under S.O.15(4) of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968---Appointment of employee, based on fraud and bogus documents, was void ab initio---Even otherwise, such a man deserved no leniency and had rightly been dealt with both by the departmental authorities and Labour Court.

Waqar Ahmad Seth for Appellant.

Shakeel Khan Gillani for Respondents.

Date of hearing: 13th December, 2010.

PLC 2011 PESHAWAR HIGH COURT 184 #

2011 PLC 184

[Peshawar High Court]

Before Abdul Aziz Kundi, J

Haji HAFEEZ ULLAH

Versus

PERSONAL OFFICER (SECURITY DIVISION), KARACHI and others

Labour Appeal No.358 of 2010, decided on 12th November, 2010.

Industrial Relations Ordinance (XCI of 2002)0---

-----Ss. 46, 47(3) & 48---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.12-Termination of service---Grievance petition---Appeal---Employee whose service was terminated, filed delayed grievance petition without application for condonation of delay--Not only that the grievance was not brought to the Labour Court within the stipulated period against the original order, but it was agitated with considerable delay and no reason, whatsoever had been put forth for such delay---Labour Court, in circumstances, was perfectly justified to dismiss the grievance petition of the employee being hopelessly barred by time; and no illegality or irregularity having been found therein, appeal was dismissed in circumstances.

Mubeen-us-Salam's case PLD 2006 SC 602 ref.

Shakeel Ahmad for Appellant.

Abdul Zakir Tareen for Respondents on pre-admission notice.

Date of hearing: 30th September, 2009

JUDGEMENT

ABDUL HAFEEZ CHEEMA (CHAIRMAN).--- The petitioners have questioned the legality of the orders dated 6-5-2009 and 6-9-2008 passed by the learned Punjab Labour Court No.9, at Multan by means of this Revision Petition. It is claimed that due to various problems/ unavoidable circumstances including crisis of power, price of cotton, old machinery, their factory was running in colossal loss in the last many years. In these circumstances it was not possible for the management of the mills to keep the factory functional. In the year 2004-2005 loss was Rs.2,06,33,951; in the year 2005-2006 it was Rs.3,12,68,412 and in the year 2006-2007 the financial loss swelled to an alarming extent of Rs.8,11,44,278. Even otherwise, cotton textile business in the country in general was in crisis on account of unfavourable trading conditions as reported in the press from time to time: More than 100 Textile Mills had been closed down because the Units were running in losses due to the increasing cost of input and increase in the minimum wage, addition in power tariff etc. Yet another cause was the low productivity on account of the old plant machinery, were some of the other reasons for the less production which was causing loss.

Due to the aforesaid reasons, the management decided that instead of terminating the services of the workers a Voluntary Separation Scheme (VSS) be introduced in the establishment so that some additional payment over and above the actual entitlement be given to the workers of the factory so that when they leave the job they may engage themselves in their own business. For this purpose, the management and the CBA got together and worked out a formula in the shape of a settlement on 14-3-2008 under the provisions of the Industrial Relations Ordinance, 2002.
In pursuance of this settlement handsome financial benefits over and above their legal dues with a minimum of gross 22 monthly wages were decided to be given to the workers who exercised this option as it was not possible in the prevailing circumstances to continue the manufacturing process and the production in the unit had to be suspended. About 687 workers-exercised their option under the said VSS scheme and resigned from the company unit on their free will. 87% workers have so far collected their dues in full and final settlement of account including additional ex gratia amount to the tune of Rs.65 Millions.
In order to close down the Mills an application under Standing Order 11-A of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (hereinafter described as the Ordinance) was filed before the learned Punjab Labour Court No.9, Multan. Respondent No.1 the CBA raised no objection to the acceptance of the application. The learned trial Court passed an order on 6-9-2008 that a notice regarding permission for closure of the Mills be affixed at the gate of the Mills and advertisement be made in the two dailies, daily Jang and daily Nawa-e-Waqat. Accordingly, the said advertisement was published. The petitioner moved an application before the trial Court that the order dated 6-9-2009 was not lawful as such it may be recalled as none except the CBA had the locus standi to be impleaded.
In the wake of the advertisement 40 respondents (out of them some were the officers in the mills establishment and not workers) evinced interest in joining proceedings and the court ordered the establishment to file an amended petition including them as respondents. In these circumstances the petitioner establishment has claimed that the orders dated 6-5-2009 and 6-9-2008 of the court may be declared illegal as according to Standing Order 11-A only the CBA can become a party.
The Petition has been stoutly resisted by the respondents who claimed that under section 41(1) of the Industrial Relations Act, 2008 they have every right to seek redressal of their grievances. The action of the Mills was also claimed to be mala fide.
Arguments have been heard and record has been perused.
The main contention of the learned counsel for the petitioner is that Standing Order 11-A of the Ordinance, 1968 does not envisage that every individual worker has a right to question the closure of Mills and cannot become a party to the proceedings in the Labour Court. The intention behind the law is to ascertain the genuineness of the claim of the management. The CBA was the only authority recognized by the law as a representative of the workers and this exercise was undertaken with the consent and approval of the CBA. As for, the bona fides of the mills management it was claimed that the mills had never been vindictive and had always been according parental treatment to their workers. The VSS scheme envisages 22 salaries plus ex gratia benefits clearly show the benign treatment metted out to the workers. It was further claimed that in case everybody is allowed to challenge the closure of the Mills and become a party before the Labour Court that would frustrate the whole process and would cause chaos and confusion. The order made by the learned lower court is palpably wrong and in case it is implemented the proceedings will continue for ages resultantly neither there will be any Mills nor any worker and the Mills would be declared as insolvent.
On the other hand it is vehemently contended, by the learned counsel for the respondents that the entire exercise is mala fide and the intention appears to be to retrench major part of the workers and to employ new ones according to their own terms and conditions because there is nothing on the record to show that the Mills was going in the losses. Had it been so they would have filed or produced the balance sheets in support of their contention. The workers have been given right under section 41 of the Industrial Relations Act, 2008 to approach the Labour Court for the redressal of their grievance as such any one who has a grievance against the scheme can legitimately voice his grievance in the labour court.
I am afraid the learned counsel for the respondents had not gone through the record of the case. In proof of the losses which the mill management have suffered year wise balance sheets P-1, P-2 and P-3 have been placed on the file which clearly show that the figures of losses shown in these balance sheets tally with those mentioned in their main petition under Standing Order 11-A ibid. As for, their other objection, the learned counsel for Mills management has referred to the judgment of the Sindh High Court reported as 1986 PLC 1052 wherein an exactly identical question was involved and their Lordships dealt with the proposition exhaustively and came to the ,conclusion that individual workers have no right to be impleaded as a .party. I would like to refer to para 12 of the judgment which clearly shows that individual workers have no right to become party in this case:--

"12. In view of such a position, can the petitioners claim any vested right to be made a party in the proceedings before the Labour Court? I have already pointed out, the purpose of inquiry before the Labour Court appears to be only to determine whether the employer has bona fide reasons to close down the establishment or terminate the services of more than fifty per cent of the workmen employed by him. There is therefore no .vested right of - the petitioners which was likely to be affected by the proceedings pending before the Labour Court. Ordinarily, the employer should be at liberty to close down his establishment and terminate the services of his workmen if the exigencies so require. However, it appears that the legislature has imposed certain restrictions on the right of the employer to take such action, making prior permission of the Labour Court necessary in this respect. It is noteworthy that Standing Order 11-A does not provide for giving of notice to the individual workmen concerned or even the CBA, therefore, the object behind joining the CBA as party to the proceedings before the Labour Court appears to be to enable the Labour Court to ascertain true facts so that nothing is concealed therefrom and not that it may espouse the cause of individual workers. No doubt, the employer has sought permission from the Labour Court to terminate the employment of all the workmen working in the establishment, but when such permission is granted as a consequence thereof, the employment of the petitioners is terminated, the petitioners have an appropriate remedy in the for section 25-A of the I.R.O. if they feel aggrieved by the termination of their employment. The observations made by the Supreme Court in 1971 SCMR 681 to which I have just referred, therefore, apply in full force to the facts of the instant petitions."

This view of the High Court has been followed in almost number of cases reported in Law Journals. Reference may be made to 2001 PLC 138 (Reckitt and Colman of Pakistan Limited and another v. The Presiding Officer), Sindh Labour Court No.3, Karachi. In an identical case 1986 PLC 951 the question was whether an individual worker has a right become a party in the proceedings under Standing Order 11-A of Ordinance, 1968 and it was held that an individual workeman is not a necessary party in the application for closure of the establishment under this provision of law. Likewise in 2000 PLC 682 in case titled as Sh. Fazal Rehman and Sons Limited v. Shabbir Ahmed Butt and others, the Chairman Punjab Labour Appellate Tribunal held that an individual worker has no right to seek impleadment in such a petition. As for the relief under section 41 Industrial Relations Act, 2008 it relates to individual grievance of worker regarding his personal grievance and not of nature as conceived under section 11-A.

PLC 2011 PUNJAB LABOUR APPELLATE TRIBUNAL 186 #

2011 PLC 186

[Punjab Labour Appellate Tribunal]

Before Abdul Hafeez Cheema, Chairman

ICI PAKISTAN LIMITED through Corporate Legal Adviser and General Attorney

Versus

ATHAR ALI

Labour Appeal No.LHR-183 of 2009, decided on 27th October, 2009.

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

----Ss. 2(xxx), 46, 47(3) & 48---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(I) & S.O.12---Termination of service---Grievance petition---Determination of status as workman'---Employee originally was appointed as Sales Officer in the establishment and subsequently he was given designation as "Territory Manager"---Later on, services of the employee were terminated and the employee filed grievance petition against that order---Employers controverted the assertions made by the employee in his grievance petition contending that as employee had been appointed in the establishment in the Managerial Staff, he was not a workman and his grievance petition was not maintainable---Labour Court, however declared employee asworkman' and accepted his grievance petition with full back benefits---Employers filed appeal against judgment of the Labour Court chiefly on the ground that employee was not at. all a workman as he was appointed as an Officer in the Managerial staff and his job was of a Territory Manager in the Life Sciences Business; and his main job was to promote the sales of Pharmaceutical products of the establishment---Acid test for the determination as to whether an employee was a workman or not, was the nature of duties performed by him---Employee would be workman, if the duties performed by him were manual or clerical in nature and not otherwise---Sale Promotion Officer/employee was expected to display the quality of initiative, intelligence and correct speculation; and for doing that he was given. some independence in his line; of action---Such employee was expected to use his mental faculties to find new" avenues of sales promotion---Work of salesmen was of different category from manual work or clerical work and thus would not fall within the definition of "workman "---Employee, in circumstances., was not a workman and Labour Court had no jurisdiction to entertain and try the grievance petition---Impugned order passed by the Labour Court, was set aside, in circumstances.

PLD 1961 SC 403; 2005 SCMR 1049; PLD 1975 Kar. 279; PLC(?) 1994 SC 157; PLC(?) 1996 SC 362; 1996 PLC 229; 1999 PLC 38; 2001 PLC 396 and 2003 PLC 226 rel.

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

----S. 63---Unfair labour practice on the part of employers---Record had shown that employers' company had taken recourse to the unfair practice of requiring their employees to tender resignation and then after an artificial break of a day or more, to re-appoint them---Such practice was a fraud on the statute.

2005 SCMR 100 rel.

Khalid Saleem for Appellant.

Asmat Kamal Khan for Respondent.

Date of hearing: 21st October, 2009.

JUDGEMENT

ABDUL HAFEEZ CHEEMA (CHAIRMAN).-- Ather Ali petitioner was originally appointed as Sales Officer in ICI on 15-9-1992.. He continued to serve the department faithfully, honestly and diligently. It was however on 29-5-1999 that all the staff members were required to submit their resignations to the employer and after giving a gap of one day almost all the staff members including the petitioner were re-appointed. This time he was given a new designation as "Territory Manager" and was posted in the Regional Office at 63-Mozang Road, Lahore. His appointment was on regular basis and no period of probation was fixed in his case as he happened to be an experienced hand. The petitioner continued to perform his duties with the best of his abilities and earned a few awards and was also given cash amount in recognition of his excellent services. The, nature of his job was purely of a workman. He had no powers of hire and fire. None was subordinate to him and no helper was provided to him. Due to his best performance and appreciation by the employer there was an atmosphere of grudge and jealousy among his other colleagues and the situation conducive to work was not available to him in the set up. In this state of affairs, he was summoned by the Business Manager, Dr. Amer Jaffery who informed him that his services have been terminated vide order dated 28-3-2002. At the same time he was required to tender his resignation from service and on his refusal to do so he was sent a letter dated 29-3-2002 issued by the Human Resource Manager, PCA Business ICI Limited through TCS on 9-4-2002 intimating him that his resignation has been accepted by the Executive which was shocking for him, as he had never tendered any resignation. The resignation, if any, was forged and a fake document.

After serving grievance notice he filed a grievance petition before the learned Labour Court. The respondent controverted the assertions made in the grievance petition claiming inter alia, that as he had been appointed in the managerial staff he was not a workman; he had to perform neither manual nor clerical duties and his job was to promote the Sales of pharmaceutical products of the company; that during employment he had been admittedly availing various benefits provided to the managerial staff of the company including car loan; that he voluntarily became a member of the management staff Provident Fund and availed benefits therefrom; the petitioner resigned on his own accord and under his own hand on 28-3-2002 and his resignation was duly accepted in the normal course of business vide letter dated 29-3-2002 of the respondent company. The learned Labour Court after hearing the learned counsel for the parties declared him as a workman and accepted his grievance petition with full back-benefits vide order dated 17-3-2003.
The appellant has challenged this judgment chiefly on the ground that he was not at all a workman as he was appointed as an Officer in the managerial staff and his job was of a Territory Manager in the Life Sciences Business of the appellant company. His main job was to promote the sales of pharmaceutical products of the appellant company and this fact has been clearly and unambiguously admitted by the respondent himself in the very first response during his cross examination to the effect that "it is correct that my duty was to convince the doctors to prescribe medicines of my company". It is equally in evidence of R.W. 1 that the job performed by the respondent did not fulfill direct sale of the appellant company but ethical promotion of the sales which inter alia included holding of meetings with doctors and informing them about the merits of the products, of the medicines of the appellant company. This clearly shows that his job involved merely the use of mental faculties and not physical labour. If there was any physical labour that was incidental or ancillary work like handing over the medical literature to the doctors or placing any written promotional material on their tables in their clinics; that the learned trial court has failed to give any finding qua his resignation submitted by the respondent which he is alleged to have submitted under duress and which stood rebutted by the statement of R.W.I.
Arguments have been heard and the record has been carefully gone through.
Acid test for the determination as to whether an employee is a workman or not is the nature of the duties performed by him. An employee will be workman if the duties performed by him are manual or clerical in nature and not otherwise. This is almost a settled proposition.
Sales Promotion Officers/employees are expected to display the quality of initiative and drive, intelligence and correct speculation and for doing that they are given some independence in their line of action. They are excepted to use their mental faculties to find new avenues of sales promotion. This very proposition came up before the honourable Supreme Court of Pakistan wherein after a detailed survey of the Labour Laws their Lordships came to the conclusion:-

"Persons who are engaged exclusively in the field of distribution through proper agencies of the products of the Company are not assimilable either to the group of workers whose manual labour contributes to that product, or those of the clerical establishment who perform the paper work connected with the operation of the Company. The work of salesmen is in a wholly different category from manual work or clerical work. Salesmen do not therefore fall within the definition of "workman (PLD 1961 SC 403)

In another identical situation their Lordships of the honourable Supreme Court of Pakistan held as under:

"Petitioner was serving as Sales Representative; selling required imagination, application of mind and know-how of the things offered for sale to the customers who were expected to buy the products offered for sale---While making sale, Sales Representative could also undertake some incidental manual work, but by doing such small manual work connected with sale of product, his status could not be changed nor for that reason he could be regarded as workman as his job was to sell the products for which he had to use faculty of his mind and wisdom and not only manual or clerical work-Appointment order had spelled out in details of the terms and conditions on which appointment of petitioner was made---If intention was to induct petitioner as a workman, it was not necessary at all to issue such detailed appointment order---Appointment of petitioner being of contractual nature of master and servant, it was necessary to spell out the details of terms and conditions on basis of which the appointment was made-Labour Appellate Tribunal and High Court had rightly held that petitioner was not workman and his grievance petition was not competent-In absence of any legal or factual infirmity, judgment passed by Labour Appellate Tribunal and High Court could not be interfered with by Supreme Court." (2005 SCMR 1049)

Further reference was made to the following judgments which support the arguments of the appellant:

(1) PLD 1975 Kar. 279, (2) PLC 1994 SC 157, (3) PLC(?) 1996 SC 362, (4) 1996 PLC Appellate Tribunal 229, (5) 1999 PLC 38 (Tribunal Decisions), (6) 2001 PLC 396, (7) 2003 PLC 226.

Learned counsel for the respondent has failed to produce any authoritative pronouncement of the honourble Supreme Court of Pakistan to refute this proposition.

PLC 2011 PUNJAB LABOUR APPELLATE TRIBUNAL 351 #

2011 P L C 351

[Punjab Labour Appellate Tribunal]

Before Abdul Hafeez Cheema, Chairman

Syed IJAZ ALI SHAH and another

Versus

EXECUTIVE ENGINEER, PUBLIC HEALTH ENGINEERING DIVISION, JHANG and another

Appeals Nos.SG-2300 and SG-3496 of 2010, decided on 9th March, 2011.

Punjab Industrial Relations Act (XIX of 2010)---

----Ss. 33 & 47---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.1(b), S.Os.12(3) & 15---General Clauses Act (X of 1897), S.21---De-regularization of service---Scope---Locus poenitentiae, principle of---Applicability---Employees, in the present case, were initially recruited by Public Health Engineering Department as "work charged employees"---Later on, department transferred relevant scheme and services of the employees to District Council, which through a resolution, regularized the services of the employees and confirmed them---Scheme in question was taken back by Public Health Engineering Department and department on resuming the charge of the scheme, de-regularized the employees and treated them as "work charged employees"---Validity---Employees, after serving for a mandatory period had attained the status of permanent workmen against permanent posts---On reversion of scheme to the Public Health Engineering Department, said department had no right whatsoever to tinker with the orders of regularization passed by the District Council---Regularization of services by District Council appeared to be keeping with legal requirements and had been acted upon for almost a period of 5 years---Principle of Locus Poenitentiae, in circumstances, was fully applicable and Public Health Engineering Department was not vested with the authority to withdraw or cancel the order of regularization, which was passed by their predecessor and stood acted upon.

2009 SCMR 1161; PLD 2000 SC 50; PLD 1979 Lah. 699 and PLD 1998 Kar. 180 rel.

Ch. Munawar Ahmed Javed for Appellants.

Mirza Inayat Muhammad along with Muhammad Javed Akhtar XEN for Respondent No.1.

Syed Asif Ali Shah for Respondent No.2.

Date of hearing: 9th March, 2011.

PLC 2011 PUNJAB LABOUR APPELLATE TRIBUNAL 358 #

2011 P L C 358

[Punjab Labour Appellate Tribunal]

Before Abdul Hafeez Cheema, Chairman

ALLIED BANK OF PAKISTAN LTD. Through Senior Vice-President (Personnel Division), Karachi

Versus

MUHAMMAD ABDULLAH CHAUDHRY

Appeal No.GA-804 of 2009, decided on 9th June, 2011.

Punjab Industrial Relations Act (XIX of 2010)---

----Ss. 2(xxxi), 33 & 47---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(i) & S.O.15---Dismissal from service---Grievance petition---'Workman', status of---Determination---Employee who was promoted as Bank Manager, served at different branches of the bank; he being accused of misconduct was dismissed from service---Employee filed grievance petition which was accepted---Validity---Grievance petition by the employee was objected to on the ground that employee was not "workman" and his grievance petition was not maintainable---Duties performed by the employee, were managerial, administrative, directional and supervisory in nature---Person who was manager of a bank and was working in a supervisory capacity, could not be termed as a "workman"---Employee, in circumstances, was not entitled to invoke the jurisdiction of the Labour Court for seeking relief---Order of Labour Court, whereby grievance petition of the employee was accepted, was set aside.

2001 PLC 614 ref.

Dilshad Khan Lodhi v. Allied Bank of Pakistan and others 2008 SCMR 1530 rel.

Javed Asghar Awan for Appellant.

Khadim Hussain Tahir for Respondent.

Date of hearing: 9th June, 2011.

PLC 2011 PUNJAB LABOUR APPELLATE TRIBUNAL 365 #

2011 P L C 365

[Punjab Labour Appellate Tribunal]

Before Abdul Hafeez Cheema, Chairman

MUHAMMAD RAMZAN

Versus

MULTAN ELECTRIC POWER COMPANY LIMITED through Chief Executive and another

Appeal No.MN-776 of 2009, decided on 14th September, 2010.

Industrial Relations Ordinance (XCI of 2002)---

----S. 46---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.15---Dismissal from service---Grievance petition---Employee joined employer company on contract basis which was extended from time to time---Company did not extend his contract and terminated his service due to certain complaints against him---Grievance petition by the employee against termination of service, was dismissed by the Labour Court mainly on the ground that employee being a contract employee, his work having not been found satisfactory, employer had every justification to refuse extension in his contract---Employee had served the department for more than four years against a post which was of a permanent nature; it was, in circumstances incumbent upon the employer to have conducted a regular enquiry; against the employee, because charge against him was of corruption and misconduct---No enquiry in the case of employee having ever been held, order passed by the Labour Court, was devoid of any merits---Appeal was accepted.

1999 SCMR 2331 and 1997 PLC (C.S.) 873 rel.

Mukhtar Ahmed Malik for Appellant.

Rao Muhammad Iqbal for Respondents.

Date of hearing: 26th August, 2010.

PLC 2011 PUNJAB LABOUR APPELLATE TRIBUNAL 370 #

2011 P L C 370

[Punjab Labour Appellate Tribunal]

Before Abdul Hafeez Cheema, Chairman

GENERAL MANAGER, ADAM SUGAR MILLS LIMITED, CHISHTIAN

Versus

Rana TAHIR PERVAIZ

Appeal No.BR-1518 of 2009, decided on 4th February, 2011.

Punjab Industrial Relations Act (XIX of 2010)---

----Ss. 33, 43, 47, 52 & 57---Dismissal from service during pendency of conciliation proceedings---Employee who was promoted as Senior Clerk, was also the Chairman of Employees' Union/Collective Bargaining Agent---Employee as Chairman raised an individual dispute and conciliation proceedings were pending before the Conciliator---Management had become hostile towards the employee---Employee filed petition before the Labour Court with payer to restrain the management to cause undue harassment to him and other members of the Union---Labour Court granted injunction, but the management in blatant disregard of said injunction, started proceedings against the employee and dismissed him from service during pendency of conciliation proceedings---Labour Court accepting grievance petition of the employee ordered reinstatement of employee---Validity---Record had shown that management's action was mala fide from the day one i.e. from the very issuance of demand and strike notices---Stay orders against the management directing them not to take any adverse action against the employee was operative but the management had been violating the same throughout---Even prior to the charge-sheet, the employee had smelt that the management was out to harass the Union and its office-bearers on account of the demand and strike notices and also with reference to the matter which was pending before the Conciliator---Proceedings of alleged misconduct against the employee, in circumstances, were totally false and actuated by malice---Appellant/management had failed to make out a case for interference by the Labour Appellate Tribunal in the decision of the Labour Court---Appellants were directed to reinstate the employee with full back benefits.

Omer Alvi for Appellant.

Mukhtar Ahmed Malik for Respondent.

Date of hearing: 14th January, 2011.

Quetta High Court Balochistan

PLC 2011 QUETTA HIGH COURT BALOCHISTAN 286 #

2011 P L C 286

[Quetta High Court]

Before Qazi Faez Isa, C.J. and Muhammad Hashim Khan Kakar, J

Messrs ALLIED PRECISION ENGINEERING PRODUCTS (PVT.) LTD. through Notified Factory Manager and others

Versus

J.HANDA KHAN MAREE and others

Constitutional Petitions Nos.691 to 695 of 2010, decided on 20th June, 2011.

Industrial Relations Ordinance (XCI of 2002)---

----Ss. 2(x)(xxx) & 46---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(c)(i) & S.O.12---Constitution of Pakistan, Art.199---Constitutional petition---Termination of service---Grievance petition---Status of worker, determination of---Criteria---Question, in the present case, for consideration was whether the respondents were employees of the petitioner/establishment or that of contractor---To determine the real status of a worker, as to whether he was employee of an establishment or a contractor, the criteria was whether the establishment had administrative control over the worker; whether the establishment was based for the work done by the worker; whether the establishment had the power to reinstate and dismiss the worker; whether the work required to be performed by worker was of a permanent nature and was same related to the process of manufacturing before the finished goods were sent into market; whether payment for the worker's service was made by the establishment; whether the goods, that the worker helped to manufacture, when marketed, brought proceeds to the establishment itself; whether the worker had been performing his duties and providing labour in connection with the manufacturing process and whether the contractor was a genuine person and had not been set up merely to deny the worker of the benefits under the labour laws.

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

----Ss. 2(x)(xxx) & 46---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(c)(i) & S.O.12---Constitution of Pakistan, Art.199---Constitutional petition---Termination of service---Grievance petition---Status of worker, determination of---Grievance petition by the employees against order of their termination of service had concurrently been allowed by the Labour Court and Appellate Tribunal---Validity---Petitioner/employer had claimed that no relationship of employer and employees existed between the parties; that employees and the employer had nothing to do with the employment, contract and wages of the employees; as they were employees of the contractor---Cross-examination of Factory Manager of the petitioner company and Assistant Director Social Security Institution had suggested that employees were the employees of the petitioner establishment and not that of the contractor---Record had further indicated that the respondents, being employees of the petitioner, had no concern whatsoever with the contractor---During employment of the respondents/employees, a number of contractors were changed, but the respondents remained at their jobs in the petitioner's factory---Petitioner/employer appeared to have had administrative control over the respondents with power of hiring and firing---Respondents were also on the pay roll of the petitioner---All the circumstances, individually as well as collectively having led to one conclusion that respondents were the employees of the petitioner, finding of both the Labour Court and Appellate Tribunal, declaring the respondents as employees of the petitioner establishment, did not suffer from any illegality or irregularity, which did not warrant any interference by High Court in exercise of its constitutional jurisdiction.

----S. 12---Industrial Relations Ordinance (XCI of 2002), S.46---Constitution of Pakistan, Art.199---Constitutional petition---Termination of service---Reinstatement---Back-benefits, entitlement to-Services of employees were terminated, but they were reinstated concurrently by Labour Court- and Appellate Tribunal---Employees claimed full back-benefits---Validity---Back-benefits which were to be paid., to a workman, were not to be allowed to him as a punishment to the employer for illegally removing him from service, but only to compensate the worker for his remaining jobless on account of illegal removal from service by the employer---To be, entitled to claim back-benefits, a worker was required to show that he was not gainfully employed during the period he was deprived of service till the date of reinstatement---Employees had failed to prove that they remained jobless during the period of their termination from services till reinstatement---All the employees in their grievance petitions, did not specifically state that they remained jobless and were not engaged in any other gainful venture---Employees were not entitled to receive full back-benefits on the principle of "no work no pay"---High Court observed that it was reasonable to presume that a person who was removed from service, would not be able to get alternate employment immediately or be able to set himself up in any gainful venture and it would take a few months to do so---Employees, in circumstances, would be entitled to receive back-benefits for a period of three months from the date of their removal from service.

Syed Anwar Ali Shah v. The Agricultural Development Bank of Pakistan and others 1999 PLC 223 ref.

Muhammad Ali Khan for Petitioners (in C.Ps. Nos.681 to 695 or 2010).

Muhammad Shafique Qureshi for Respondents (in C.Ps. Nos.681 to 695 of 2010).

Date of hearing: 8th June, 2011.

Supreme Court

PLC 2011 SUPREME COURT 123 #

2011 PLC 123

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C. J., Tariq Parvez and Ghulam Rabbani, JJ

H.R. CASES NOS.16360 OF 2009, 1859-S AND 14292-P OF 2010: In the matter of

H.R. Cases Nos.16360 of 2009, 1859-S and 14292-P of 2010, decided on 4th November, 2010.

(Applications by Lady Health Supervisors/Workers etc.)

West Pakistan Minimum Wages for Unskilled Workers Ordinance (XX of 1969)---

----S. 6---Constitution of Pakistan, Arts.9 & 25---Payment of minimum wages---Government employees---Scope---Equality of citizens---No such agreement/order notification/law/award/contract of service violating the provisions of law with regard to the payment of minimum wages shall be adhered to---Although West Pakistan Minimum Wages for Unskilled Workers Ordinance, 1969 is not applicable on the persons engaged by the Government or any of its organizations but as a State it is bound to follow the same principle, which is applicable to private organizations---If the minimum wages cannot be paid under any agreement then it would be in violation of Arts.9 & 25 of the Constitution---Notwithstanding their relationship either as permanent or contractual employee, whatsoever may be, following the law/policy prevailing in the country for fixing minimum wages, they are entitled for the same on the basis of policy, which is presently prevailing i.e. Rs. 7,000 pm,---Government is duty bound to ensure that discriminatory policies are not applied as far as its employees are concerned, either enjoying permanent status or working on contractual basis---Any agreement which is against the public policy is not enforceable---Supreme Court directed that present judgment shall be considered a guideline for all the executive departments in future while fixing the wages of the employees being engaged by the government organizations on contract basis or under any other programme funded by the government or any other agency.

Ms. Bushra Arain, LHS, Ms. Rukhsana Anwar, LHS and Ms. Saima Rafiq, LHS, Applicants (in person).

Maulvi Anwar ul Haq, Attorney-General for Pakistan.

PLC 2011 SUPREME COURT 295 #

2011 P L C (C.S.) 295

[Supreme Court of Pakistan]

Present: Javed Iqbal, Raja Fayyaz Ahmed and Asif Saeed Khan Khosa, JJ

Messrs PAKISTAN INTERNATIONAL AIRLINES CORPORATION

Versus

BOARD OF TRUSTEES, EMPLOYEES OLD-AGE BENEFITS and others

Civil Appeal No. 95 of 2005, decided on 22nd April, 2011.

(On appeal from the judgment dated 5-12-2003 of the High Court of Sindh, Karachi passed in C.P. No. D-1442 of 1996).

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

----S. 1(4)---Application of Employees' Old-Age Benefits Act, 1976---Scope---Flight Kitchen and Engineering Department of an Airline were got registered by the Airline itself under the Factories Act, 1934---Status as an "establishment" for the purposes of the Employees' Old-Age Benefits Act, 1976, of the said departments, could not be contested by the Airline.

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

---Ss. 46 & 47---Exemption of an 'industry' or 'establishment'---Scope of application of Ss.46 & 47 of the Employees' Old-Age Benefits Act, 1976---Federal Government having not ever exempted Flight Kitchen and Engineering Departments of Airline, reliance upon different clauses of S.47, Employees' Old-Age Benefits Act, 1976 by the Airline was inapt---Principles.

The provisions of section 46 of the Employees' Old-Age Benefits Act, 1976 manifest that an 'industry' and an 'establishment' may be exempted by the Federal Government from all or any of the provisions of that Act but, in the present case, it has been conceded by the counsel for the appellant (Airline) that no such exemption has ever been granted by the Federal Government in favour of the appellant vis-a-vis its Flight Kitchen and Engineering Department. Whole-hearted reliance placed by the counsel for the appellant upon different clauses of section 47 of that Act was inapt and the reasons for that is that the provisions of section 47 deal with non-application of the provisions of the Employees' Old-Age Benefits Act, 1976 to some of the "persons" who are "employed" "in the service of" different departments, institutions or bodies specified in that section and the provisions of that section are not relevant to the "employers" of the relevant "industry" or "establishment". An appropriate example in this respect would be that of an employee required under section 9B of that Act to pay a monthly contribution but by virtue of the provisions of section 47 that requirement of section 9B would not be applicable to his case if he is in the service of or employed in any of the departments, institutions or bodies specified in that section. Upon a plain reading of the various provisions of that Act there was no manner of doubt that whereas section 46 of that Act pertains to exemption to be granted by the Federal Government to an "establishment" or "industry" the provisions of section 47 of the Act do not relate to the employers of any "establishment" or "industry" but they only relate to the "persons" employed who were otherwise to be subjected to the requirements of that Act. As the mainstay of the arguments of the counsel for the appellant (Airline) was different provisions of section 47 of the Employees' Old-Age Benefits Act, 1976 and as the provisions of section 47 of that Act have no application to the case of the appellant, therefore, no further discussion of the matter was required.

Salman Aslam Butt, Advocate Supreme Court for Appellant.

Tariq Bilal, Advocate Supreme Court with Raja Abdul Ghafoor, Advocate-on-Record for Respondents Nos. 1 and 2.

Dil Muhammad Khan Alizai, Deputy Attorney-General on Court's Notice.

Date of hearing: 19th April, 2011.