PLC 2012 Judgments

2012 P L C 236

[Islamabad High Court]

Before Shaukat Aziz Siddiqui, J

CAPITAL DEVELOPMENT AUTHORITY

Versus

NATIONAL INDUSTRIAL RELATIONS COMMISSION

Writ Petition No.3516 of 2011, decided on 30th December, 2011.

(a) Industrial Relations Ordinance (V of 2011)---

----Ss. 31 & 33---Constitution of Pakistan, Art.199---Constitutional petition---Petitioner Capital Development Authority assailed interim order passed by Member National Industrial Relations Commission (NIRC), under S.31 of the Ordinance, whereby the Development Authority was restrained from dispossessing the respondent who was a retired employee of the Development Authority---- Respondent had earlier filed a suit for permanent injunction for retaining possession which was dismissed concurrently and the contention of the Development Authority was that the respondent was playing with the process of the law and the NIRC lacked jurisdiction as the matter was not one of unfair labour practice---Validity---National Industrial Relations Commission passed first restraining order which was to hold field for 71 days, and such period, itself, showed that the discretion was exercised arbitrarily and without unfolding the sleeves to find out whether jurisdiction was vested with the Member NIRC or not---Respondent's son, who was the petitioner before NIRC, had no right or entitlement to keep the possession----Member NIRC , therefore, showed disrespect to the orders passed by the courts of competent jurisdiction and became privy to frustrating said orders and such act was nothing but an arbitrary exercise of authority, an abuse of the process of law, shocking, perverse, unprecedented and without jurisdiction---Member NIRC failed to adhere to the provisions of the Industrial Relations Ordinance, 2011 itself, as at the most the individual grievance of the petitioner before him could have only been addressed as falling within the provision of S.33 of the Industrial Relations Ordinance, 2011---High Court set aside order of the Member NIRC and allowed the Constitutional petition accordingly.

1986 SCMR 959; 1987 SCMR 396; 1989 SCMR 1892 and PLD 1977 Lah. 368 ref.

Muhammad Zaman Khan's case 1997 SCMR 1508 and Waqar Ali's case PLD 2011 SC 181 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional Jurisdiction of High Court---Scope---High Court, in its constitutional jurisdiction was vested with the power to undo any action, which was result of an arbitrary exercise of authority, or was an order passed without jurisdiction and could quash the proceedings which on their face, were aimed to frustrate judicial proceedings and orders passed thereunder.

Muhammad Zaman Khan's case 1997 SCMR 1508 and Waqar Ali's case PLD 2011 SC 181 rel.

Muhammad Khalid Zaman for Petitioner.

Amjad Hafeez Amjad for Respondent.

Date of hearing: 30th December, 2011.

2012 P L C 451

[Islamabad High Court]

Before Iqbal Hameedur Rahman, C.J.

ABDUL SAMAD

versus

PAKISTAN TELECOMMUNICATION AUTHORITY through Chairman

First Appeal from Order No.53 of 2012, heard on 5th September, 2012.

Pakistan Telecommunication (Re-Organization) Act (XVII of 1996)---

----Ss. 6(b) & 7(1)(3)---Pakistan Telecommunication Authority Entployecs Service Regulations, 2008, Reglns.7, 21(3) & 42---Director General (Co-ordination) (BPS-20) in Pakistan Telecommunication Authority, vacant post of---Order of Chairman to advertise such post for its filling up by direct appointment---Appellant's plea that such post was required to be filled by promotion, for which he being eligible was liable to be considered by Departmental Promotion Committee---Validity---Appellant had not challenged any order or decision of Authority contrary to provisions of Pakistan Telecommunication (Re-Organization) Act, 1996---Question raised in appeal related to terns and conditions of an employee of Authority---Appellant for redressal of his grievance was obliged to adopt procedure laid down in Pakistan Telecommunication Authority Employees Service Regulations, 2008---Appellant could expect his promotion against such post, if same was provided in Pakistan Telecommunication Authority Employees Service Regulations, 2008, thus, impugned order was legal---Appellant had not availed an opportunity to apply and compete for such post through direct appointment---High Court dismissed appeal for being not maintainable in circumstances.

Muhammad Shafqat Jan for Appellant.

Mian Sami-ud-Din along with Zulgarnain Bhatti, Deputy Director Pakistan Telecommunication Authority for Respondent.

Date of hearing: 5th September, 2012.

2012 P L C 460

[Islamabad High Court]

Before Riaz Ahmad Khan, J

PAKISTAN TELECOMMUNICATION COMPANY LIMITED through General Manager

Versus

EMPLOYEES' OLD-AGE BENEFIT INSTITUTION through Chairman and another

Writ Petition No.622 of 2007, decided on 17th May, 2012.

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

----Ss. 9, 9-B & 47---Pakistan Telecommunication (Re-Organization) Act (XVII of 1996), S.34---Constitution of Pakistan, Art.199---Constitutional petition---Pakistan Telecommunication Company Limited---Refusal of such company to pay funds in terms of Ss.9 & 9-B of Employees' Old-Age Benefits Act, 1976 alleging itself to be a statutory body, thus, not falling within definition of an "establishment" or "industrial" concern as such not liable to pay such funds---Validity---Employees' Old-Age Benefits Institution was not a tax, but its object was to protect indigent sections of employees' class---Such company was established under direction of Federal Government issued under S.34 of Pakistan Telecommunication (Re-Organization) Act, 1996, but had not come into existence through a statute, thus, could not be considered as a statutory body; company being limited by shares and incorporated under Companies Ordinance, 1984 was not a statutory body, and would not fall outside ambit of Employees' Old-Age Benefits Act, 1976---Availability of other benefits to workers of such company would not exclude application of the said Act---High Court dismissed constitutional petition in circumstances.

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

----Preamble & S.2---Employees' Old-Age Benefits Institution, establishment of---Object stated.

Contribution to Employees' Old-Age Benefits Institution (EOBI) is not a tax, but its object is to afford employees and workers with a social safety-net by offering them subsistence benefits such as old-age pension, old-age grants and disability and survivor benefits. Its purpose is to protect the indigent sections of Pakistan's employees' class. As such, it cannot be said that Contribution to EOBI is a tax.

Ch. Mushtaq Ahmed Khan for Petitioner.

Tariq Bilal and Babar Sattar for Respondents.

Date of hearing: 7th May, 2012.

2012PLC44

[Sindh High Court]

Before Ahmed Ali M. Shaikh and Nisar Muhammad Shaikh, JJ

HYDERABAD ELECTRIC SUPPLY COMPANY

(HESCO) through Chief Executive and 2 others

Versus

SINDH LAOUR APPELLATE TRIBUNAL through Registrar and 3 others

Constitutional Petition No.D-104 and M.As. Nos.558, 3157 of 2011, decided on 15th October, 2011.

Industrial Relations Ordinance (XCI of 2002)---

--Ss.. 2(xxx) & .46(3)---Constitution of Pakistan, Art.199---Constitutional petition---Dismissal from service---GrOvance petition---Grievance petition of employee was turned down by the Labour Court, and appeal was allowed by , Appellate Tribunal---Contention of the employers that Labour Court had no jurisdiction to entertain grievance petition of the employee as appeal earlier dismissed was not restored and that employee was not a workman' was repelled---Employers had admitted in their preliminary objection/affidavit-in-evidence that employee wasworkman'---No illegality was found in the impugned Labour Appellate Tribunal---Employers were judgment passed by directed to implement the judgment of Appellate Tribunal in its Cetter and spirit, in circumstances

Ansari Abdul Latif for Petitioners. -

Miss Naseem Abbas for RespondentNo.4.

Date of hearing: 15th September, 2011.

2012 PLC53

[Sindh High Court]

Before Mushir Alam, C.J. and Nisar Muhammad Shaikh, J

THATTA CEMENT COMPANY EMPLOYEES' UNION through General Secretary

Versus

REGISTRAR TRADE UNIONS, HYDERABAD REGION and 2 others

High Court Appeal No.205 of 2009 and Constitutional Petitions Nos.S-245 and S-282 of 2008, decided on 29th August, 2011.

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

----Ss. 3, 4, 5, 6, 7, 8 & 9(5)---Law Reforms Ordinance (XII of 1972), S.3, proviso---Intro-court appeal---Maintainability---Registration of trade union---Right of appeal---Order of registration of trade union, was assailed by employer company and the same was maintained by Single Judge of High Court---Plea raised by respondent trade union was that intra-court appeal was incompetent on account of bar contained in proviso to S.3 of Law Reforms Ordinance, 1972, as order under appeal was passed in Constitutional petition under Art.199 of the Constitution, which had arisen out of the proceedings commenced before Registrar, trade unions on application of respondent trade union and order for grant of such certificate of registration of trade union, issued by Registrar in favour of respondent trade union was an original order passed in such proceedings, in which right of appeal was provided under S.9(5) of Industrial Relations Ordinance, 2002---Validity---Bar contained in proviso to S.3 of Law Reforms Ordinance, 1972, was applicable---Intra-court appeal was dismissed I circumstances.

Civil Appeal No.365 of 1993 and Abdul Sattar v. Messrs S.G.S. Pakistan (Pvt.) Ltd. and another PLD 2011 Sindh 40 rel

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

----Ss. 3, 4, 5, 6, 7 & 8---Civil Procedure Code (V of 1908), S.11---Constitution of Pakistan, Art.199---Constitutional petition---Res judicata, principle of---Applicability---Registration of trade union---Petitioner trade union assailed registration of respondent trade union before High Court in exercise of Constitutional jurisdiction---Similar petition filed by employer company had already been dismissed by High Court---Effect---Grant of certificate in issue in respect of respondent trade unions, issued by Registrar, trade unions stood maintained on dismissal of Constitutional petition and appeal filed against such decision had also been dismissed, therefore, grant of the registration could not bt cancelled or set aside by High Court in subsequent petition, especially when there were no exceptional circumstances reasonable ground or justification even to revive/reverse such earlier decision by taking contrary view of giving conflicting finding on the same subject-matter---Proceedings could not commence in Constitutional jurisdiction, as it could happen in exercise of ordinary original jurisdiction, therefore, no fresh inquiry in the matter could be conducted in detail by recording evidence etc.---By way of decision recorded earlier in exercise of Constitutional jurisdiction, the cause had already been determined between the same parties---High Court declined to repeat the same especially when general principle of res judicata was also attracted to the petition---Petition was dismissed in circumstances.

Shahenshah Hussain for Appellant

Syed Aijaz Ali, Assistant Director, Labour for Respondent No.l.

Muhammad Shafique Qureshi for Respondent No.2.

Chaudhry Muhammad Ashraf Khan for Respondent No.3.

Dates of hearing: 1st September, 6th December, 2010 and 15th August, 2011.

2012 P L C 128

[Sindh High Court]

Before Mushir Alam, C.J. and Aqeel Ahmed Abbasi, J

ALL PAKISTAN NEWSPAPERS SOCIETY (APNS) and others

Versus

FEDERATION OF PAKISTAN through Secretary Information and Media Development and others

Constitutional Petitions Nos.D-1391 of 2004, D-1151 of 2007 and D-494 of 2008 decided on 31st May, 2011.

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

----Ss. 9, 11 & 12---Payment of Wages Act (IV of 1936), S.2(h)---Industrial Relations Ordinance (XXIII of 1969), S.51---Constitution of Pakistan, Art.199---Constitutional petition---Seventh Wage Board Award signed and delivered by Chairman of Wage Board and not by all its members---Validity---Newspaper Employees (Conditions of Service) Act, 1973 was intra vices of the Constitution and not violative of owners of newspaper's fundamental rights guaranteed thereunder---Board headed by Chairman consisted of equal number of members representing owners of newspapers and newspaper employees---Role of such members was merely to facilitate and advise Chairman as they were neither arbiter nor adjudicator---Chairman, after considering advise and opinion of such members and applying his judicious mind thereto could render such award as an independent arbiter---Such award by fiction of law would be deemed to be an award by Full Bench of National Industrial Relations Commission (NIRC) for limited purpose in terms of S.12 of Newspaper Employees (Conditions of Service) Act, 1973---Such fiction of law could not be extended to negate or render specific provision under the Act redundant---Duration of such award would be governed in terms of S.11(2) of the Act until same was modified by a later award published in official gazette---Such award would come into operation on date specified in decision, otherwise on date of its publication in official gazette---Existence of industrial dispute would not be necessary for determination of wages of newspaper employee for being special category of employees governed under the Act---Federal Government, whenever considered expedient to determine wage of journalists, might by notification constitute Wage Board---Impugned award was neither coram non judice nor void ab initio---High Court dismissed constitutional petition in circumstances.

All Pakistan Newspapers Society v. Federation of Pakistan PLD 2004 SC 600; PLD 1986 FSC 29; Pakistan Herald Publications (Pvt.) Limited and 23 others v. Federation of Pakistan and 21 others 1998 CLC 65; Independent Newspaper Corporation (Pvt.) Limited v. Chairman, 4th Wage Board Award and others) and Pakistan 1993 PLC 673 equal to 1993 SCMR-1553; Nabi Bux Khoso v. P.T.V. PLD 1983 Kar. 725 and Implementation Tribunal for Newspaper v. Matri Publications 2001 PLC 662 ref.

Herald Publications (Pvt.) Limited and others v. Federation of Pakistan and others 1998 CLC 65; Express Newspaper (P) Limited and others AIR 1958 SC 578; Muhammad Mubin us Salam v. Federation of Pakistan PLD 2006 SC 602 and Newspaper Employees v. Matri Publication Ltd. 2001 PLC 662 rel.

(b) Words and phrases---

----"Fitment"---Meaning.

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

----S. 9---Payment of Wages Act (IV of 1936), S.2(h)---Seventh Wage Board Award---Fitment formula---Application---Scope.

Ordinary dictionary meaning of "fitment" is "something that suits or fit", and applying it in the context of wages and salary in any establishment, 'fitment formula' is the principle of wage determination taking into consideration few determined factors, prime consideration being the capacity of any establishment/organization to pay. It means the categorization of an employee for the purpose of calculating salary or allowance" Applying fitment formula in the Wage Award means fixing the basic pay of an employee at a specific sum in various scales/grade prevailing in the newspaper industry. Any person, who immediately prior to the appointed date was an employee of newspaper or newspaper establishment upon implementation of wage award will be fitted in new pay scale. The word "fitted" in the definition thus differentiates between person in the service of any establishment and or organization, may it be newspaper or newspaper establishment, immediately prior to the appointed date and those who are subsequently appointed, promoted or transferred from one office/department to another office/department in same station/city or other station/city under different nomenclature.

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

----Ss. 9, 12-A & 13(4)---Implementation Tribunal Newspaper Employees (Procedure and Functions) Rules, 1997, Rr.7 & 8---Industrial Relations Ordinance (XXIII of 1969), S.51(1)---Wage Board Award, implementation/execution of---Jurisdiction of Wage Board and Implementation Tribunal of Newspaper Employees---Scope.

Implementation Tribunal of Newspaper Employees (ITNE) constituted under Section 12-A of Newspaper Employees (Conditions of Service) Act, 1973 exercises jurisdiction only in respect of matter relating to the implementation and execution of Wage Board Award in exercise of power under section 51(1) of the Industrial Relations Ordinance, 1969 as delegated under subsection (4) of section 13 of Newspaper Employees (Conditions of Service) Act, 1973 and has jurisdiction to adjudicate quantum or determination of wages, which falls within the exclusive jurisdiction of Wage Board under the Act. Implementation Tribunal for Newspaper employees can neither modify nor amend the Wage Award nor can adjudicate or implement any other matter relating to terms and conditions of services as may be applicable to newspaper employees under any other enactment and are not covered under the Wage Award.

Tribunal was created by inserting section 12-A of the Act through Newspaper Employees Condition of Service (Amendment) Act, 1975 and Amendment Act of 1976. The Tribunal was created to provide an independent authority to ensure implementation of Wage Award. Very purpose of creating the Tribunal was to create an implementing agency for the Wage Award, which could not have been achieved without conferring or exercising jurisdiction to act suo motu, which jurisdiction is conferred under subsection (6) of section 13 of the Act read with Rules 7 and 8 of the Implementation Tribunal Newspaper Employees (Procedure and Functions) Rules, 1997, whereunder the Tribunal may through notice in Form A require the newspaper establishment to file a declaration in Form B, and even if information is not furnished within the prescribed time of 15 days, Tribunal had jurisdiction to proceed ex parte against the newspapers and pass such orders as may be expedient for the implementation of the Wage Award. Once the declaration in Form B is filed, then any individual newspaper employee whose name is not included in the declaration form may bring his grievance to the notice of the Tribunal by filing an application giving detail of his complaint. Tribunal, after hearing him and providing him an opportunity of being heard and to lead evidence, if any necessary may call for written reply from the management and decide the same as per procedure provided for the implementation of the Wage Board Award.

Implementation Tribunal for Newspaper Employees v. Matri Publication Ltd. 2001 PLC 662 rel.

Abdul Hafeez Pirzada, Abdul Sattar Pirzada, Rana Ikramullah and Muhammad Afazal Siddiqui for Petitioners.

Rasheed A. Riazivi, Shahenshah Hussain, Akhtar Hussain, Faiz Ghangro and Mian Khan Malik, D.A.-G. for Respondents.

Dates of hearing: 23rd August, 2010 and 11th April, 2011.

2012 P L C 258

[Sindh High Court]

Before Faisal Arab and Nadeem Akhtar, JJ

ALL PAKISTAN SECURITY AGENCIES ASSOCIATION (APSAA) through Secretary and 5 others

Versus

FEDERATION OF PAKISTAN through Secretary Human Resources Development and 6 others

Constitutional Petition No.D-267 and Miscellaneous No.1459 of 2012, decided on 24th May, 2012.

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

----Ss. 12(3), 10 & 31---Constitution of Pakistan, Art.199---Constitutional petition---Alternate adequate remedy---Employees' Old-Age Benefits Institution contribution---Failure of employer to maintain records and submit returns---Petitioners (companies) assailed the initiation of recovery proceedings by the Institute and tentative assessments of employees record made under S.12(e) of the Employees' Old-Age Benefits Act, 1976 by the Institute---Contention of the petitioners was that tentative assessment with regard to the number of employees in the petitioner companies was made by the Institute without lawful justification and against commitments made under an agreement between the petitioners and the Institute---Petitioners further contended that there should have been a determination as to the number of employees working for the petitioner companies before initiation of recovery proceedings---Validity---Under agreement between the Institute and the petitioners, it was incumbent upon the petitioner companies to divulge to the Institute the details with regard to the number of employees---Principles of natural justice were met by the Institute when show-cause notices were issued to the petitioners and they were given an opportunity of a hearing---Petitioners chose not to contest the tentative assessment made by the Institute and avoided coming forward with the necessary details---Petitioners had not come to the Court with clean hands and remedy under S.33 of the Employees' Old-Age Benefits Act, 1976 was available to the petitioners which was not availed---Constitutional petition was dismissed in circumstances.

2001 SCMR 209; 1997 SCMR 66; 2009 PLC (C.S.) 917; PLD 1972 SC 279; PLD 1989 Kar. 157 and 2003 SCMR 1547 ref.

Muhammad Nawaz Shaikh for Petitioners.

Muhammad Qasim, Standing Counsel.

Sarfaraz Ali Metlo for Respondents.

2012 PLC 321

[Sindh High Court]

Before Gulzar Ahmad and Salman Hamid, JJ

HABIB BANK LIMITED through Attorneys

Versus

SINDH LABOUR' APPELLATE TRIBUNAL and another

Constitutional Petition No. D-886 of 2011, heard on 11th October, 2011.

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

----Ss. 46 & 48---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.15---Constitution of Pakistan, Art.199---Constitutional petition---Dismissal from service---Grievance petition---Employee was dismissed from service after charge-sheeting him and holding ex parte inquiry against him on allegation that he along with others pasted highly provocative and scandalous posters on the Notice Board and on other places, thereby senior officers/executives of the establishment were maligned---Grievance application filed by the employee against his dismissal order was accepted by the Labour Court and employee was reinstated in service with all back benefits---Appellate Tribunal upheld judgment of the Labour Court---Validity---Employee was repeatedly served on his work and residential addresses, but he either avoided or refused to receive the notices served on him; he for ulterior motives and to prolong the proceedings did not.. participate in inquiry proceedings---Employee, in circumstances, was rightly proceeded against ex pane---Employee in his cross-examination had admitted pasting of scandalous posters---Newspaper clipping appeared in Daily Newspaper attributing such incident with the employee, was neither denied nor disputed or refuted by the employee; in such view of the matter no inquiry into the allegation of misconduct of employee, was necessary---Employee having himself admitted his misconduct of pasting scandalous posters, it was enough for his removal from employment---Courts below, were not justified to reinstate the employee in service---Judgment of courts below, was set aside---Counsel for the employers, had made two offers; one of payment of compensation in lieu of reinstatement without back benefits; other was that employee could agree to treat his dismissal as retirement with payment of his all dues and pensionary benefits--Second offer of employer was more beneficial to employee---High Court treated dismissal of the employee as retirement and payment of his dues and other pensionary benefits in accordance with the Rules.

Mubeen-us-Salam's case PLD 2006 SC 602; Col. (Retd.) Sadiq Hassan Sheikh v. Lt. Col. Farooq Ahmad 1987 SCMR 1887; Bashir Ahmed v. ABL Appeal No.536 of 2010; Brig. (R) Sakhi Marjan, CEO, PESCO, Peshawar v. Managing Director PEPCO, Lahore and others 2009 SCMR 708; Abdul Rashid Qureshi v. The Industrial Court of West Pakistan 1967 PLC 525; Shaukat and others v. Allied Bank of Pakistan 2007 SCMR 198=2007 PLC 555; Muhammad Attique Warsi v. The Managing Director Kakakhail Industries and others 1987 PLC 787; Muhammad Abdul Majid v. Government of Punjab 1972 PLC 83;, The Province of East Pakistan v. Muhammad Sajjad Ali Mazumdar 1962 PLC 528 and Muhammad Younus v. Crescent Pak Industries Civil Appeal No.579 of 2000 rel.

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

----S. 48(3)---Back benefits, grant of---When question for determination of back benefits would arise, asserted facts and circumstances were to be judiciously considered; and not mechanically---Factors which could require attention, could be that the employee had to establish through evidence that he remained unemployed from the date of dismissal from service and was not otherwise engaged in any gainful pursuit; he kind of efforts made by the employee to minimize his loss; the conduct of employee to wilfully and deliberately prolonging the proceedings with mala fide intentions only to obtain back benefits, were also to be looked into---Another aspect could be public interest and that proceedings should be dealt with summarily---If the proceedings were delayed, the employer should not be burdened for the delay with back benefits---Court also should look into the fact of source of livelihood or survival of an employee during pendency of court proceedings---Employee, to claim back-benefits had to establish taking loans, unpaid house rent, non-payment of school fees, non-payment of utility bills etc.

Muhammad Noorul Amin v. The Authority under the Payment of Wages Act 1991 PLC 758; Mrs. Abida Parveen Channar v. High Court of Sindh at Karachi 2009 SCMR 605 and Agha Nisar Ahmed and others v. Zeal Pak Cement Factory Ltd,. 2009 PLC 335 rel.

Mehmood Abdul Ghani for Petitioners.

Mansoor-ul-Haque Solangi for Respondents.

Date of hearing: 11th October, 2011.

2012 PLC 347

[Sindh High Court]

Before Sajjad Ali Shah and Shahid Anwar Bajwa, JJ

ALI MURAD

Versus

NATIONAL BANK OF PAKISTAN through Board of Directors

Constitutional Petition No.D-104 of 2007, decided on 11th October, 2010.

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

----Ss. 2(xxviii) & 25-A---Industrial and . Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(i) & S.0.12(3)---"Workman"-Termination of service---Grievance petition---Person who was "workman ", would cease to be a "workman", when he was removed from employment, except in two categories specified in definition of workman as given in S.2(xxviii) of Industrial Relations Ordinance, 1969---If a person was not workman as defined in the Industrial Relations Ordinance, 1969, after his employment had come to an end, he could not maintain grievance petition under S.25-A of the Ordinance---Dismissed workman would approach Labour Court, not by virtue of any provision contained-in Industrial Relations Ordinance, 1969, but by virtue of Standing Order 12(3) of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968---Definition \of, "workman" under Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 was materially and vastly different and it talked of "person employed" and not one "who was employed"-Even otherwise, if a workman who had ceased to be an employee, could .have approached the Labour Court under S.25-A of Industrial Relations Ordinance, 1969---Grievance that could be taken to the Labour Court under S.25-A of Industrial Relations Ordinance, 1969, were grievances under "any law, any award or settlement"---Any law in any case would include the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968---Legislature was conscious of the fact that in order to come to Labour Court under S.25-A of Industrial Relations Ordinance, 1969, a person must be in employment at the time when he approached the Labour Court--Industrial and Commercial Employment (Standing Orders) Ordinance provided for many other benefits such as bonus, Group Insurance, Status of workman etc., but no where else, but in Standing Order 12(3) such a provision had been made---In all other cases the person was still in employment except in case falling under Standing Order 12(3) of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968---If Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 was applicable, a workman in respect of rights guaranteed to him under Standing Order 12(3) of the Ordinance if violated, could approach the Labour Court; and that could be done by virtue of Standing Order 12(3) and not by virtue of any provision contained in Industrial Relations Ordinance, 1969.

National Bank of Pakistan and another v. Punjab Labour Appellate Tribunal and 2 others 1993 SCMR 105; Trustees of the Port of Karachi v. Muhammad Saleem, 1994 SCMR 2213; Superintendent (HQ) Irrigation Lahore Zone v. Punjab Labour Appellate Tribunal and another 1987 PLC 180; Vice-President National Bank of Pakistan, Gujranwala Zone and another v. Punjab Labour Appellate Tribunal and 7 others 1985 PLC 1053; Pakistan Railways v. Junior Labour Court No.V and others 1979 PLC 320; Afzal Hussain v. Zeal Pak Cement Factory 2006 PLC 597; National Bank of Pakistan v. Sindh Labour Appellate Tribunal, Karachi and another 1994 PLC 301; Messrs Coca Cola Beverage Pakistan Ltd. v. Registrar Trade Unions Sindh and 3 others 2010 PLC 48; Zohaib Shaukat and others v. Labour Department and others 2010 PLC 265; Trustees of the Port of Karachi v. Muhammad Saleem and another 1987 PLC 846; Mustehkum Cement Ltd. Through Managing Director v. Abdul Rashid and others 1998 PLC 172; Muhammad Nawaz Bhatti v. President Muslim Commercial Bank Ltd. Karachi and others 2008 PLC 355; Board of Governors Aitcheson College Lahore v. Punjab Labour Appellate Tribunal and others 2001 PLC 589; Pakistan Security Printing Corporation v. Sindh Labour Appellate Tribunal and 2 others 1983 PLC 123; Security Paper Ltd. v. Sindh Labour Court No.IV and another 1981 PLC 898; Mumtaz Ali v. Chairman N.-W.F.P. Labour Appellate Tribunal Peshawar and 2 others 1995 PLC 73 and Pak Arab Refinery Ltd. v. Muhammad Rasheed 1999 SCMR 373 rel.

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

----S. 1(4), Proviso & S.0.12(3)---Industrial Relations Ordinance (XXIII of 1969), S.25-A---Banks (Nationalization) Act (XIX of 1974), S.5---National Bank of Pakistan Ordinance (XIX of 1949), Ss.3 & 12---Applicability of provisions of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 to workman employed in National Bank of Pakistan---Scope---Proviso to S.1(4) of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, would mean that, if there was an industrial and Commercial Establishment "carried on by or under the authority of the Federal or any Provincial Government" and there were Statutory Rules therein, the provisions of Standing Orders Ordinance, 1968 would not be applicable---Banks, after nationalization were being run under the authority of the Federal Government, but respondent (National Bank of Pakistan) which was a Statutory Institution and a corporate body established by a statute, was not nationalized---Workman who had ceased to be an employee, would cease to be a worker for the purpose of Industrial Relations Ordinance, 1969 and could not approach Labour Court under S.25-A of Industrial Relations Ordinance, 1969---However, if the person was a workman as defined in Standing Orders Ordinance, 1968 and claimed violation of his rights under Standing Order 12(3) of the Ordinance, he could approach the Labour Court, not by virtue of S.25-A of Industrial Relations Ordinance, 1969, but by virtue of Standing Order 12(3) of Standing Orders Ordinance, 1968---Even if the Industrial Relations Ordinance, 1969, was not applicable, but the Standing Orders Ordinance, 1968 was applicable, such worker, whose right under Standing Order 12(3) of Ordinance, 1968 had been violated, he could approach the Labour Court---Under first Proviso to S.1(4) of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, if an establishment was being carried on by or under the authority of the Federal Government or any Provincial Government, where Statutory Rules of service were applicable to workmen employed therein, Standing Orders Ordinance, 1968 would not be applicable---If there was corporate entity, whether statutory or incorporated under the provisions of the Companies Ordinance, 1984, then the establishment was carried on by or under the authority of the statute or the corporation and not by any authority of the Government---Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 was applicable to the workmen employed in National Bank of Pakistan---If workman employed in National Bank of Pakistan was dismissed, discharged, retrenched or removed from employment he could approach the Labour Court by virtue of provisions contained in Standing Order 12(3) of Standing Orders Ordinance, 1968---If right under Standing Order 12(3) of Ordinance, 1968 was violated irrespective, whether aggrieved person was working under Industrial Relations Ordinance, 1969 or not, grievance petition under S.25-A of Industrial Relations Ordinance, 1969 would be maintainable---Labour Court was directed to adjudicate upon and decide grievance of the petitioner/ worker pending before it promptly in accordance with law.

Muhammad Mubeen-us-Salam and another v. Federation of Pakistan and others PLD 2006 SC 602; Raja Riaz's case 2008 SCMR 402; Abdul Razzak v. Messrs Ihsan Sons Ltd., and 2 others 1992 SCMR 505 and Vice-President (Admn.), National Bank of Pakistan and others v. Basharat Ali and others 1996 SCMR 201 ref.

Punjab Small Industries Corporation v. Punjab Labour Appellate Tribunal Lahore and others 1988 SCMR 1725; Heavy Engineering Mazdoor Union v. State of Bahar and others- AIR 1970 SC 82; Lahore Development Authority and others v. Abdul Shafiq and others 1992 PLC 1214; Muhammad Aslam v. Director-General Lahore Development Authority, Lahore and others 2007 PLC 585; Employees Old Age Benefit Institution, Government of Pakistan, Karachi v. Punjab Labour Appellate Tribunal Lahore and 2 others 1992 PLC 742; Amir Khan through his legal heirs v. Pakistan Mineral Development Corporation, 1990 SCMR 1206; Investment Corporation of Pakistan (ICP) Employees Front Karachi through its General Secretary v. Presiding Officer 5th Sindh Labour Court, Karachi and another 1997 PLC 154; Agricultural Development Bank of Pakistan (M. Ramzan v. Punjab Labour Appellate Tribunal, Lahore and 4 others 1995 PLC 644; Pakistan Postal Services Corporation (Pakistan Post Office) v. Nadeem Ahmed Khan, 1995 PLC 205; National Bank of IE?akistan v. Punjab Labour Appellate Tribunal 1993 SCMR 105; National Bank of Pakistan v. Punjab, Labour Court No.5, Faisalabad and 2 others, 1993 PLC 595; Syed Irshad Hussain N. Habib Bank Ltd., 1979 PLC 543; National Bank of Pakistan v. Nizamuddin Mehr, 1980 PLC 1118; Vice-President, National Bank of Pakistan Gujranwala Zone and another v. Punjab Labour Appellate Tribunal and 7 others 1985 PLC 1053; Trustees of the Port of Karachi v. Muhammad Saleein 1994 SCMR 2213; Mustehkum Cement Ltd. through Managing Director v. Abdul Rashid and others 1998 PLC 172; Pakistan Security Printing Corporation v. Sindh Labour Appellate Tribunal and 2 others 1983 PLC 123 and Abdul Razzak v. Ihsan Sons Ltd. and 2 others 1992, SCMR 505 rel.

(c) Jurisprudence---

----Precedent---If a particular judgment of the apex court was not brought to the attention, while deciding a matter, then the Court which was faced with both the judgments had to find out the true intent of law while keeping both the judgments before it.

Salmond on Jurisprudence, Twelfth Edition page 151 rel.

Ashraf Hussain Rizvi for Petitioner.

Ch. M. Ashraf Khan for Respondent.

Date of hearing: 27th August, 2010.

2012 P L C 416

[Sindh High Court]

Before Ahmed Ali M. Shaikh, J

SHABBIR TILES AND CERAMICS LABOUR UNION through Registered President

Versus

REGISTRAR OF TRADE UNIONS, SINDH KARACHI and 2 others

Constitutional Petition No.S-342 of 2011 and C.M.As. Nos.2492, 2061 and 1530 of 2011, decided on 4th June, 2012.

Industrial Relations (Sindh) Rules, 1973---

----R. 30---Constitution of Pakistan, Art.199---Constitutional petition---Collective Bargaining Agent---Determination of---Petitioner Union claimed that it was announced successful in referendum orally for determination of Collective Bargaining Agent, but result was changed, altered and rival union was declared successful---Counsel for the petitioner had failed to substantiate his contention that result of referendum was manipulated or altered or changed; and success of the petitioner union was turned into defeat---Petitioner could not pinpoint or refer to any document available on record to prove its allegations---Registrar of Trade Unions who conducted the referendum, had also refuted the allegations levelled by the petitioner---Allegation of rigging, alternation/manipulation of result of referendum required thorough probe, which exercise could not be undertaken in constitutional jurisdiction of High Court---Constitutional petition was dismissed.

Mazdoor Union v. Registrar of Trade Unions 1997 CLC 311 rel.

Khalid Imran and Ms. Farkhunda Mangi for Petitioner.

Munir Ahmed Malik for Respondent No.2.

Muhammad Latif Sagar for Respondent No.3.

Altaf Hussain, Assistant Director for Respondent No.1.

Date of hearing: 18th April, 2012.

2012 P L C 161

[Balochistan Labour Tribunal]

Before Abdul Qadir Mengal, Member

BALOCHISTAN ENGINEERING WORKS LIMITED through Deputy Manager and others

Versus

JALAL KHAN and others

Labour Appeals Nos.46 and 50 of 2008, decided on 10th November, 2010.

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---Services of employee having been terminated by the employer on attaining age of 55 years, employee filed grievance petition against order of his termination---Said petition was dismissed by the Labour Court---Validity---According to terms of appointment which had been accepted by the employee, employee would be retired on attaining age of 55 years---No doubt, that there was no provision in Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 prescribing any period for retirement which could be agitated as a right, but as age of retirement of 55 years fixed at the time of contract of employment had been accepted and acted upon by the employee, he could not change his position and challenge the same---Services of the employee having been terminated according to terms of agreement of employment which were accepted by the employee, grievance petition by the employee was rightly dismissed by the Labour Court---In absence of any illegality, impropriety in judgment of the Labour Court, same could not be interfered with in appeal.

2005 PLC 219; 1999 NLR 46; 2000 PLC 58 and PLD 1977 Kar. 168 ref.

Date of hearing: 10th November, 2010.

2012 P L C 193

[Balochistan Labour Appellate Tribunal]

Before Abdul Ghias Nousherwani, Member

GHULAM ABBAS HAIDARI

Versus

UNITED BANK LIMITED through Regional Chief Executive

Labour Appeal No.8 of 2011, decided on 23td February, 2012.

Balochistan Industrial Relations Ordinance (II of 2010)---

----Ss. 41 & 54(2)---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.15(3)(e) & (4)---Termination of service on ground of absence from duty---Grievance petition---Charge-sheet issued to the employee had reflected that no date/period of alleged absence of the employee was mentioned---Show-cause notice and notice for domestic inquiry, were also silent about alleged period of absence---Neither member of Inquiry Committee nor the original record of inquiry was produced before the Labour Court, which had indicated that no inquiry was conducted; or improper and one-sided inquiry was conducted, which was not according to law and principles of natural justice---Despite a long period of absence from duty, no action had been initiated against the employee, who had received his salary from employer bank for alleged period of absence---Representative of employer/bank had admitted that action against the employee was taken due to submission of charter of demands by the employee being Senior Joint Secretary in the Union which was also Collective Bargaining Agent---Labour Court had not taken into consideration said facts to reach at a just and proper conclusion---Employee who was dismissed from service, was a heart patient and had reached the age of 75 years, though was unable to be reinstated in service, but was entitled for back-benefits from the date, when his salary was stopped---Appeal was partly accepted and judgment under appeal was set aside with said modification.

2006 SCMR 783 and 2002 SCMR 1278 ref.

Mushtaq Ahmed for Appellant.

Ayaz Khan Swati for Respondent.

Date of hearing: 18th February, 2012.

2012 P LC 202

[Balochistan Labour Appellate Tribunal]

Before Abdul Ghias Noursherwani, Member

MATIULLAH and 16 others

Versus

GENERAL MANAGER, PAKISTAN INTERNATIONAL AIRLINE, QUETTA and another

Labour Appeal No.41 of 2011, decided on 24th March, 2012.

Balochistan Industrial Relations Ordinance (II of 2010)---

----Ss. 41 & 54(2)---Regularization of service---Grievance petition---Employees who had served the establishment for more than two to twenty years, were permanent employees, but their services were not regularized while some other employees were regularized---Regularization of services of the employees were denied on the ground that they having been employed by the contractor, were employees of the contractor---Validity---Employees though were appointed by the contractor, but their services were fully under the control of the establishment and despite the contract had expired, the employees were still working satisfactorily in the establishment since 20 years---Impugned order passed by Labour Court was set aside with direction that services of the employees be regularized after the completion of three months' probationary period without back benefits, because according to the employees they were still performing their duties.

2011 PLC 286; 2000 PLC 336 and 1995 PLC 194 rel.

Azam Jan Zarkoon for Appellants.

Mian Badar Munir for Respondents.

Date of hearing: 12th March, 2012.

2012 P L C 210

[Balochistan Labour Appellate Tribunal]

Before Abdul Ghias Nousherwani, Member

PRINCIPLE HELPERS PUBLIC SCHOOL/COLLEGE, QUETTA and another

Versus

Moulana SANZAR SAEED, ARABIC TEACHER and another

Labour Appeals Nos.54 and 57 of 2011, decided on 5th March, 2012.

(a) Balochistan Industrial Relations Ordinance (II of 2010)---

----S. 41---Grievance notice---Scope---Representation or appeal addressed to appellate authority, could be treated as grievance notice.

(b) Balochistan Industrial Relations Ordinance (II of 2010)---

----Ss. 41 & 54(2)---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.15---Termination of service---Grievance petition---Employee serving as Arabic teacher in employer/school was terminated on allegation that he had propagated an unhappy incident that happened in the school---Grievance petition filed by the employee against termination of service, was allowed by the Labour Court---Validity---Employee was terminated without following the mandatory requirements before termination, as he was only served with an explanation and thereafter without any inquiry and personal hearing he was terminated from service---Employee having been terminated illegally, Labour Court had rightly accepted his grievance petition---In absence of any illegality/irregularity in the judgment of Labour Court, appeal against judgment of the Labour Court filed by the employers was dismissed---Nothing came on record that during termination of the employee he was jobless; in such a situation back benefits had rightly been denied to the employee---Appeal of the employee to that extent was dismissed.

1994 SCMR 2213 and 1996 SCMR 1606=1996 PLC (C.S.) 653 distinguished.

1990 PLC 675; Security Paper Limited v. The Sindh Labour Appellate Tribunal PLD 1988 SC 180; Abdul Wahid v. Messrs Bombay Silk Mills 1988 PLC 221; Employees Union, Jamia, Karachi v. Registrar of Trade Unions, Sindh and 2 others 1981 PLC 403; Ghulam Sarwar v. Principal, Government Teachers Training College, Khairpur 1982 PLC 771; Muhammad Manshah v. Ali Industrial Technical Institute 1985 PLC 604; Anjuman Faizul Islam v. Pakistan and others 1988 PLC 937 and 1989 PLC 836 rel.

Jahangir Shah Kakar for Appellants (in Labour Appeal No.54 of 2011).

Bashir Ahmed Qazi for Respondents (in Labour Appeal No.54 of 2011).

Bashir Ahmed Qazi for Appellants (in Labour Appeal No.57 of 2011).

Jahangir Shah Kakar for Respondents (in Labour Appeal No.57 of 2011).

Date of hearing: 22nd February, 2012.

2012 P L C 262

[Balochistan Labour Appellate Tribunal]

Before Abdul Ghias Nousherwani, Member

MUHAMMAD IMRAN

Versus

REGISTRAR MANAGER, UTILITY STORE CORPORATION OF PAKISTAN (PVT.) LTD., QUETTA and another

Labour Appeal No.40 of 2011, decided on 4th May, 2012.

Industrial Relations Ordinance (XCI of 2002)---

----Ss. 46 & 48---Termination of service---Grievance petition---Contract of employment of employee having been terminated contrary to the facts and law, employee filed appeal before Service Tribunal, which appeal was abated in view of judgment of Supreme Court dated 27-6-2006---Employee, after abatement of appeal, filed grievance application which was dismissed by the Labour Court after discussing two issues i.e., first the maintainability of application as per provisions of Industrial Relations Ordinance, 2002 that employee did not fall within the definition of "worker" or "workman", which was decided in favour of the employee; second issue about the non-service of grievance was decided against the employee---Once a legal objection/point had been decided by the same forum, against which no appeal/revision had been filed, and which had attained its finality, same legal point/objection could not be decided by the same forum without review of the previous order---Impugned order wherein two legal issues had been decided in favour of employee/applicant, whereafter one of those issues decided against the employee, whereof his application was dismissed, Labour Court had wrongly dismissed application of the employee on the point of non-service of the grievance notice---Case was remanded to the Labour Court for decision on merit, for the reason that Supreme Court had always encouraged decision of case on merits instead of non-suiting litigants on technical reasons including the ground of limitation.

C.P. No.54 of 2011; Nadeem Ahmed Qureshi v. Habib Bank Limited NLR 2009 Labour 39; PLD 1991 SC 258; and 1997 PLC 488 ref.

2007 PLC (C.S.) 849 distinguished.

Azam Jan Zarkoon for Appellant.

Abdul Sattar Khan for Respondent.

Date of hearing: 13th April, 2012.

2012 P L C 368

[Balochistan Labour Appellate Tribunal]

Before Abdul Ghias Nousherwani, Member

ZAHOOR AHMED and 10 others

versus

MERCK (PVT.) LIMITED through Director and 2 others

Labour Appeals Nos.44 and 45 of 2011, decided on 24th May, 2012.

Balochistan Industrial Relations Act (XIII of 2010)---

----Ss. 2(dd), 41 & 55---Termination of service---Grievance application---Applicants initially were appointed by the company on permanent posts between 2002 to 2008, whereafter through an agreement, company asked the said employees to work under "Consultant" to accomplish the company work---Company while appointing the employees did not issue appointment letter and thereafter terminated their services without issuing them any notice on the ground that company had cancelled the contract of said Consultant; and that said Consultant terminated the services of the applicants who were working with the Consultant under his control---Labour Court rejected grievance application of the employees against termination order---Validity---Employees had claimed that they were employed by the company and they were working there since last many years---Claim of the employees was that contractor namely 'Consultant' was the agent of company and the agreement was a fictitious document---Contract labour was resorted by the employer to escape from the application of Labour Laws and deprive workers of their legitimate rights---Law makers did not make any distinction between workers employed directly or through a contractor---"Worker" and "workman" in S.2(dd) of Balochistan Industrial Relations Act, 2010, would mean person not falling within the definition of employee who was employed in an establishment or industry for hire or reward, either directly or through contractor---Workmen, whether employed directly or through an Agency who were engaged to do any of the job listed in the manufacturing process, were covered as "workmen"; and it was employer's liability to provide their rights and benefits under the law, which did not draw any distinction between workers directly employed and workers employed through an agency or contractor---Employer company could not establish non-relationship of the applicants with it---Employees having been terminated illegally, impugned judgment of the Labour Court was set aside with the direction that employees be reinstated by means of permanent appointment letters.

General Sectary v. Pakistan Fertilizer Limited 1989 PLC 81; 1987 PLC 397; AIR 1964 SC 355; 2006 PLC 450 and Task force on Labour published by Ministry of Labour, Man Power and Overseas Pakistanis on 17th October, 1994 rel.

Iftikhar Ahmed Sawati for Applicants.

Muhammad Ali Khan for Respondents.

Date of hearing: 9th May, 2012.

2012 P L C 381

[Balochistan Labour Appellate Tribunal]

Before Abdul Ghias Nousherwani, Member

Messrs TETHYAN COPPER COMPANY and others

versus

NAZEER AHMED BALOCH and 3 others

Labour Appeal No.53 of 2011, decided on 5th June, 2012.

Balochistan Industrial Relations Act (XIII of 2010)---

----Ss. 41 & 55---Grievance notice issued by counsel---Validity---Under provisions of S.41 of Balochistan Industrial Relations Act, 2010, grievance notice was to be served by the employee himself, or Shop Steward or Collective Bargaining Agent, but in the present case, said notice was issued by the Advocate of the employee, which was not a legal "grievance notice"---Grievance notice having not been served according to mandatory provisions of law, grievance petition was not entertainable before the Labour Court.

PLD 1980 SC 80; 1996 PLC 280, 1988 PLC 939; 1993 PLC 450; PLD 1961 SC 57 ref.

Abdul Sattar Khan for Appellants.

Nasir Khan Yousafzai for Respondents.

Date of hearing: 22nd May, 2012.

2012 P L C 395

[Balochistan Labour Appellate Tribunal]

Before Abdul Ghias Nousherwani, Member

DIRECTOR-GENERAL GOVERNMENT OF BALOCHISTAN LIVESTOCK AND DAIRY DEVELOPMENT DEPARTMENT, QUETTA

versus

LIVESTOCK PEOPLES WORKERS UNION, BALOCHISTAN and another

Revision Petition No.1 of 2011, decided on 7th June, 2012.

Balochistan Industrial Relations Act (XIII of 2010)---

----Ss. 4, 9, 11, 12 & 55(4)---Registration of Trade Union in the Establishment had been sought to be cancelled by the Department contending that persons performing functions in connection with the administration of the State employed in Government Department were not entitled for forming union and its registration---Validity---Expression "administration of the State" should be interpreted in limited and narrow sense of the practical management; and direction of the executive machinery, or the operation of the various organs of the sovereign, or conducting or carrying on the details of the Government---Said expression did not extend to those employees of the State who were workers and performing duties in administration of State, like Malis, Chowkidars, Budders, Beldars, Tubewell Machines, Drivers etc.---Nature of the work of the employees was the basic element to distinguish the employees performing functions in connection with the administration of the State and other categories---Registrar Trade Union, conducted an inquiry and after satisfaction that Trade Union fulfilled all legal requirements to be registered, registration of Trade Union could not be cancelled.

Agriculture Workers Union Balochistan v. The Registrar Trade Union of Balochistan 1997 SCMR 66 and PLD 1992 SC 17 rel.

Abdul Sattar Khan for Petitioner.

Nasir Khan Yousafzai for Respondent No.1.

Akhtar Muhammad Representative of Respondent No.2.

Date of hearing: 22nd May, 2012.

2012 P L C 401

[Balochistan Labour Appellate Tribunal]

Before Abdul Ghias Nausherwani, Member

Messrs HABIB BANK LIMITED through President and others

versus

AZIZULLAH LAGHARI

Labour Appeal No.12 of 2012, decided on 22nd June, 2012.

(a) Approver---

----Meaning.

Black's Law Dictionary rel.

(b) Confession---

----Meaning.

Black's Law Dictionary rel.

(c) Conviction---

----Meaning.

Black's Law Dictionary rel.

(d) Pardon---

----Meaning.

Black's Law Dictionary rel.

(e) Balochistan Industrial Relations Act (X of 2012)---

----S. 2(dd)---Workman---Bank employees of Grade-I, Grade-II or Grade-III, fell within the definition of "workmen".

PLD 2002 SC 84; 2005 YLR 2007; 1998 SCMR 1993; 2001 SCMR 274; PLD

1979 SC 53; 2004 YLR 531; 1993 PCr.LJ 672 and 1998 PLC 390 ref.

Muhammad Riaz Ahmed for Appellants.

W.N. Kohli for Respondent.

Dates of hearing: 31st May and 8th June, 2012.

2012 P L C 412

[Balochistan Labour Appellate Tribunal]

Before Abdul Ghias Nousherwani, Member

Sheikh ABDUL AZIA

versus

SIRAJ GUL and 19 others

Labour Appeal No.11 of 2012, decided on 14th June, 2012.

Balochistan Industrial Relations Act (X of 2012)---

----S. 41---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.11-A---Termination of services on ground of closure of employer-establishment---Grievances application---Grievance of the employees was that they being permanent employees, were performing their duties, but their services were terminated by means of a publication in the Newspaper---Counsel for the employers had stated that the establishment had been closed and employees were terminated due to said closure---No permission for closing the establishment was obtained by the employers from the Labour Court and the establishment was in existence---Labour Court accepting grievance application of the employees ordered their reinstatement in service---Order/judgment of the Labour Court, neither being arbitrary nor perverse to invite interference of the Tribunal in appeal, impugned order, was upheld, in circumstances.

2001 PLC 312 distinguished.

Miss Syeda Tehmina Samad along with Miss Sarwar Sultan for Appellant.

Riaz Ahmed Tareen for Respondents.

Date of hearing: 5th June, 2012.

2012 P L C 428

[Balochistan Labour Appellate Tribunal]

Before Abdul Ghias Nousherwani, Member

Messrs HABIB BANK LIMITED through President and another

versus

NASEEBULLAH KHAN

Labour Appeal No.4 of 2012, decided on 14th March, 2012.

Balochistan Industrial Relations Ordinance (II of 2010)---

----Ss. 2(dd), 41 & 54(2)---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.Os. 12 & 15---Termination of service---Grievance application---Bank employee---Determination of status of workman---Employee was appointed as cashier and was declared a management cadre officer, (Assistant Manager and Manager operations) and was also given power of attorney, whereby he was authorized to do all transactions on behalf of the Bank; and such power/authority had not to be given to a "worker" or "workman"---Grievance application under S.41 of Balochistan Industrial Relations Ordinance, 2010, was mandatorily to be issued by the employee himself or through shop steward, or trade union, was issued by his counsel which was in violation of S.41 of the Ordinance---Grievance application filed by the employee, was not maintainable, in circumstances---Contention of the employee was that as no provision having been mentioned in memo. of appeal filed by the employers, was not competent---Validity---Omission to mention the provision under which appeal had been filed or wrong mentioning of provision was not an illegality, whereof the appeal be dismissed---Contention was repelled, in circumstances---Appeal was allowed, impugned order passed by Lower Court, was set aside, in circumstances.

NLR 1997 Labour 60; PLD 1980 SC 80 and C.P. No.42 of 2011 rel.

Muhammad Riaz Ahmed for Appellant.

Azam Jan Zarkoon for Respondent.

Date of hearing: 3rd March, 2012.

2012 P L C 5

[Punjab Labour Appellate Tribunal]

Before Abdul Hafeez Cheema, Chairman

REGIONAL MANAGER, MCB BANK LIMITED COMMERCIAL REGION, CIRCULAR ROAD, FAISALABAD and another

Versus

NAZIR AHMED

Appeal No.FD-836 of 2009, decided on 4th October, 2010.

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

----S. 2(i) & S.O.12---Punjab Industrial Relations Act (XIX of 2010), Ss.33 & 47---Termination of service---Status of workman---Grievance petition---Employee, a Security Guard in the bank, was arrested in alleged theft case and sent to jail---During period of detention of the employee, he was charge-sheeted and was terminated from service---Grievance petition by employee was accepted by the Trial Court and the employers had filed appeal against order of the Labour Court---Misconception that if one was acquitted of a criminal charge, that would also affect departmental enquiry---Both the remedies were independent of each other and the acquittal from the criminal charge would not affect the departmental proceedings---Penalizing an official of a charge of theft without holding regular inquiry, did not appear to be in consonance with the provisions of Standing Orders Ordinance, 1968---Matter could have been deferred for some time and a regular enquiry ought to have been held---Non-holding of the enquiry surely vitiated the order passed by the employer/bank, which on the face of it was arbitrary---Matter being that of stigmatic ouster, law required a regular enquiry, the dispensation of regular enquiry in the case was not a lawful exercise of the authority by the bank---Case was not that of termination; in the given situation, if employee was retired compulsorily, that would meet the ends of justice and he would be able to seek another service from any other institution---Order passed by the Labour Court was modified and termination order passed by the bank was converted into compulsory retirement without back benefits.

PLD 1985 SC 134 and 1996 SCMR 315 ref.

Mushtaq Ahmed Khan for Appellants.

Muhammad Arshad Khan for Respondent.

Date of hearing: 29th September, 2010.

2012 P L C 16

[Punjab Labour Appellate Tribunal]

Before Abdul Hafeez Cheema, Chairman

NATIONAL BANK OF PAKISTAN through President and others

Versus

ZAHID HUSSAIN and another

Appeals Nos.MN-2000 and 1999 of 2010, decided on 23rd September, 2010.

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.Os.1(b) & 12---Termination of service---Grievance petition---"Workman"---Status of workman---Determination---Employee who was graduate was appointed as Godown Keeper in the Bank; he continued to perform his duties without any break, though Bank after every six months issued a fresh appointment order---Service of the employee were terminated after about 4 years arbitrarily without any show-cause notice, personal hearing or any enquiry---Grievance petition by the employee against order of his termination was accepted by the Labour Court and the employee was reinstated in service, but without back benefits---Breaks in service of employee shown by the bank in issuing periodical orders, were clearly designed to deny permanent status to the employee, which could not be appreciated---Employee was a permanent employee due to length of his service, his ouster was arbitrary, unjust without lawful authority and misconceived---Labour Court, in circumstances, had rightly reinstated him---Appeal by the employer/bank against judgment of the Labour Court was dismissed---Employee having himself stated that during period of his termination he had been operating public call office for earning his livelihood, order passed by the Labour Court for not granting him back benefits, appeared to be fair and just and same was upheld.

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

Ikram Bari and others v. NBP 2005 SCMR 100 rel.

Ch. Altaf Hussain for Appellant.

Muhammad Anwar Awan for Respondent.

Date of hearing: 17th September, 2010.

2012 P L C 24

[Punjab Labour Appellate Tribunal]

Before Abdul Hafeez Cheema, Chairman

MUSLIM COMMERCIAL BANK LIMITED through President and others

Versus

ASHRAF HUSSAIN

Appeal No.SG-2316 of 2010, decided on 11th April, 2011.

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

----S.O. 15---Punjab Industrial Relations Act (XIX of 2010), Ss.33 & 47---Dismissal from service---Grievance petition---Employee working in a Bank was dismissed from service after charge-sheeting and holding enquiry against him on allegation of embezzlement, parallel banking and other grave irregularities---Grievance petition filed by the employee against order of his dismissal from service was accepted by the Labour Court and he was reinstated with back benefits---Validity---Enquiry proceedings were initiated, conducted and concluded, fairly and after affording full chance of hearing to the parties---Enquiry Officer had placed both the versions in juxta position coupled with documentary evidence---Enquiry Officer had harbourd no grudge, bias or ill-will against the employee---Every page of the proceedings had duly been signed by the Enquiry Officer, employee and the prosecutor---Employee, in such state of affairs could not say that he was not provided adequate opportunity of putting up his defence---Charges against the employee had fully been proved---Labour Court appeared to have remained only in the confines of technicalities and had not taken the trouble of realizing/visualizing the ample evidence before the enquiry officer; as well as in the court that employee was in the habit of misappropriating the amounts of the clients of the bank by applying fraudulent methods---No substance was available in the allegation that the officer who passed the dismissal order was not competent in accordance with the rules of the bank---Prosecution had proved the case against the employee taking into consideration all the aspects of the matter---Bank though had suffered in reputation on account of technical jugglery of the employee, but no financial loss had occurred to the bank---Employee, in circumstances, was awarded penalty of compulsory retirement, instead of extreme penalty of dismissal from service, which would meet the ends of justice---Order of the Labour Court was modified accordingly.

2004 SCMR 149 rel.

Frooq Zaman Qureshi for Appellants.

Mian Rab Nawaz Khan Wattoo for Respondent.

Date 23rd February, 2011.

2012 P L C 70

[Punjab Labour Appellate Tribunal]

Before Abdul Hafeez Cheema, Chairman

Messrs INSAAF TEXTILE PRINTING MILLS (PVT.) LTD., FAISALABAD through Managing Director

Versus

LABOUR UNION (CBA) INSAAF TEXTILE PRINTING MILLS, FAISALABAD through President/Secretary

Revision Petition No. FD-575 of 2010, decided on 6th April, 2011.

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

----Ss. 33, 37 & 44---Grievance petition---Maintainability---Employers had challenged the very maintainability of the grievance petition on the ground that the Labour Union (CBA) had no locus standi to file the sane---Validity---Labour Union (CBA) could represent an individual worker or a group of workers to seek relief under S.37 of the Punjab Industrial Relations Ordinance, 2010 and not otherwise--If the Labour Union (CBA) had raised certain demands and on the refusal of the establishment to meet those demands, the matter was to be taken up by the conciliator---When the conciliator failed, the matter was not referred to the arbitration and Labour Union (CBA) filed petition under S.44(2) of Punjab Industrial Relations Act, 2010---Law had envisaged complete procedure for the resolution of the dispute between the Labour Union (CBA) and the employer through mechanism provided in Ss.38 to 45 of Punjab Industrial Relations Act, 2010---No defect, infirmity or flaw having been found in the impugned order, same was upheld by the Tribunal accordingly.

1975 PLC 878 and 1982 PLC 84 rel.

Z.A. Hashmi for Petitioner.

Sheikh Rashid Ali for Respondent.

Date of hearing: 6th April, 2011.

2012 P L C 73

[Punjab Labour Appellate Tribunal]

Before Abdul Hafeez Cheema, Chairman

SIALKOT CHAMBER OF COMMERCE AND INDUSTRY, SIALKOT through President

Versus

KHAWAR MEHMOOD

Appeal No.GUJ-2396 of 2010, decided on 6th April, 2011.

(a) 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.Os. 12 & 15---Termination of service---Grievance petition---"Workman"---Determination---Appellant/establishment had assailed the judgment passed by Labour Court, whereby the grievance petition filed by the employee was allowed and he was ordered to be reinstated with back benefits---Contention of the appellant that employee, not being a 'workman', was not entitled to invoke the jurisdiction of the Labour Court and that grievance notice having not been served upon the employer, grievance petition filed by employee was incompetent---Affidavit sworn by the employee, did not describe the nature of his duties---No description of the nature of the duties of the employee were provided which could have determined his status as a 'workman' or otherwise---Labour Court was not justified in finding that employee had proved himself to be a 'workman'---Question of 'workman' was a fundamental question and was of far reaching effect---If employee was not found to be 'workman', the Labour Court would stand denuded of the power to dispose of the matter---No description of the nature of the duties of the employee having been provided which could have determined his status as 'workman' or otherwise, case was sent back to the Labour Court to record evidence of the parties afresh and to decide that vital issue.

(b) Qanun-e-Shahadat (10 of 1984)---

----Arts. 117 & 118---Burden of proof---Onus---Onus would be on the one who asserted the fact and not the other side who refused or contradicted the assertion.

Nazir Ahmad Chaudhry for Appellant.

Syed Abdul Waheed Bukhari for Respondent.

Date of hearing: 6th April, 2011.

2012 P L C 76

[Punjab Labour Appellate Tribunal]

Before Abdul Hafeez Cheema, Chairman

ALLIED BANK OF PAKISTAN CENTRAL OFFICE through Attorneys

Versus

MUSHTAQ HUSSAIN MIR

Appeal No.LHR-131 of 2009, decided on 4th March, 2011.

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

----S. 2(i) & S.O.15---Industrial Relations Ordinance (XCI of 2002), S.46---Dismissal from service---Grievance petition---Employee who was employed as Officer Grade-I, by the Bank was dismissed from service after charge-sheeting and holding inquiry against him on charge of misconduct---Being aggrieved of his dismissal from service, the employee challenged his dismissal order before the Federal Service Tribunal by means of an appeal---Employee withdrew the appeal from Service Tribunal which was allowed as dismissal of appeal as having been withdrawn without any permission to institute fresh petition/appeal---Employee after about one year of his dismissal from service, filed grievance petition before the Labour Court---Employee was an Officer Grade-I, officer holding an Inter Branch authorization signatory and was also head of Foreign Exchange Department---Employee, in circumstances, was not the "workman" and was not entitled to seek remedy from the Labour Court---Employee had withdrawn appeal from Federal Service Tribunal without permission of the Tribunal and had failed to establish that it had done by him on the basis of any undertaking or a compromise between the Bank and himself---Employee, in the present case, could not avoid consequences of such an unreserved right and without permission of the Tribunal---Employee was precluded from bringing any claim on the basis of same cause of action---Employee being an officer was holding a managerial and supervisory post in the Bank and it stood established that employee was not a "workman" and was not entitled to maintain the grievance petition in the Labour Court, his grievance petition was dismissed.

2007 PLC 41 and PLD 2010 SC 913 rel.

Asghar Javed Awan for Appellants.

Nazir Ahmed Qureshi for Respondent.

Date of hearing: 22nd February, 2011.

2012 P L C 86

[Punjab Labour Appellate Tribunal]

Before Abdul Hafeez Cheema, Chairman

TALIB HUSSAIN

Versus

SUPERINTENDENT, GOVERNMENT PRINTING PRESS, PUNJAB, LAHORE

Appeal No.LHR-3248 of 2010, decided on 7th April, 2011.

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

----S. 33---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.Os.15(3)(e) & 55---Removal from service on ground of absence from duty---Grievance petition---Dismissal of grievance petition---Employee was removed from service after issuing him show-cause notice and holding enquiry against him on ground of absence from duty for more than one year and ten months---Record had clearly shown that employee remained absent from duty---Enquiry Officer had made it clear that all processes required by law before imposing the penalty on the employee were completed---Employee had taken contradictory explanations for his absence from duty, firstly he had taken the plea that on account of his mental disturbance, he was unable to attend the duties, in a letter he had clearly mentioned that due to the ailment of his mother and not of his own he went to his village, and that he remained absent to look after his mother who was seriously ill---Explanation of the employee for his absence from duty was not confidence inspiring---Even otherwise, he had failed to explain the delay in filing the grievance petition---No flaw or infirmity was found in the impugned decision of the Labour Court, whereby he was removed from service---Appeal was dismissed.

Farzana Bilqees Chaudhry for Appellant.

Afzaal Ahmed Qureshi for Respondent.

Date of hearing: 7th April, 2011.

2012 P L C 199

[Punjab Labour Appellate Tribunal]

Before Abdul Hafeez Cheema, Chairman

TARIQ MASOOD KHAN

Versus

PRESIDENT, ALLIED BANK OF PAKISTAN LIMITED and 2 others

Appeal No.SG-2320 of 2010, decided on 6th June, 2011.

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

----S. 2(1) & S.O.15---Industrial Relations Act (IV of 2008), Ss.41 & 47---Dismissal from service---Grievance petition---Status of "workman", determination of---Employee serving as Branch Manager of Bank, was removed from service after charge-sheeting and holding of enquiry of allegation of embezzlement against him---Grievance petition by the employee against order of his dismissal from service, had been dismissed by Labour Court---Validity---Employee, at the relevant time was Manager of the Branch, though it was a very small branch, but he held a supervisory, managerial and directional post, and was not 'workman' and was not entitled to invoke the jurisdiction of Labour Court---Appeal filed against judgment of the Labour Court, was dismissed, in circumstances.

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

Rana Asif Iqbal for Appellant.

Pervez I. Mir for Respondents.

Date of hearing: 1st June, 2011.

2012 P L C 207

[Punjab Labour Appellate Tribunal]

Before Abdul Hafeez Cheema, Chairman

ALLIED BANK OF PAKISTAN LIMITED through Attorneys

Versus

KARAMAT HUSSAIN CHEEMA

Appeal No.Guj-1024 of 2009, decided on 11th August, 2010.

Industrial Relations Act (IV of 2008)---

----Ss. 2(xxix) & 41---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(i) & S.O.10---Non-payment of benefits of benevolent grant and medical facility---Grievance petition, maintainability of---Employee who was serving as officer Grade-I in a Bank, was denied the benefits of benevolent grant and that of the medical facility on his retirement---Validity---Bank had alleged that employee being not a 'workman', he could not invoke the jurisdiction of the Labour Court---Employee had himself recorded statement before the Labour Court that he was a full-fledged Manager and had the supervisory authority over his subordinates---Employee, in view of his said admission had established that he was not a 'workman', but his claim for benevolent grant and medical facility was genuine and on very solid basis---Even the Bank during the proceedings of the case had not clearly denied said claims of the employee and defended the case on mere technicalities---Labour Court, in circumstances, had no jurisdiction to entertain the grievance petition---Appeal filed by employer Bank was accepted and grievance petition filed by the employee, was dismissed, in circumstances.

Javed Asghar Awan for Appellant.

Abdul Hakeem Awan for Respondent.

Date of hearing: 14th June, 2010.

2012 P L C 216

[Punjab Labour Appellate Tribunal]

Before Abdul Hafeez Cheema, Chairman

FACTORY MANAGER/INDUSTRIAL RELATIONS AND ADMINISTRATION, GLAXO SMITHKLINE LTD. PAKISTAN, LAHORE

Versus

MUHAMMAD NASEER KHAN MIRZA

Revision Petition No.LHR-54 of 2011, decided on 23rd February, 2011.

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

----Ss. 17, 33 & 47(5)---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.12(3)---Termination of service---Second grievance petition, maintainability of---Earlier petition filed by employee was a complaint of unfair labour practice of the employer, whereas the second one was under S.33 of Punjab Industrial Relations Act, 2010 against termination of service of the employee as well as the complaint for unfair labour practice---Relief sought by the employee in the earlier petition/complaint had been included in the latest grievance petition---Labour Court indeed had jurisdiction to entertain and try the case on the grounds taken in the both petitions, but not through two different and independent petitions---Both the petitions, one on the basis of unfair labour practice and the other seeking relief on the basis of individual grievance, were not proceedable simultaneously---Law prohibited multiplicity of claims based on the same cause of action in order to avoid conflict of decisions---Earlier petition was not maintainable and only the second petition could proceed.

Umer Abdullah for petitioner.

Khalid Mahmood Wattoo for Respondent.

Date of hearing: 23rd February, 2010.

2012 P L C 228

[Punjab Labour Appellate Tribunal]

Before Abdul Hafeez Cheema, Chairman

MUHAMMAD YOUSAF

Versus

PRESIDENT, HABIB BANK LIMITED

Appeal No.LHR-384 of 2010, decided on 24th September, 2010.

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

----S.O. 15---Punjab Industrial Relations Act (XIX of 2010), Ss.33 & 47---Removal from service---Grievance petition---Employee was removed from service on account of embezzlement and absence from duty without permission---Departmental appeal filed by the employee having not been responded to, he filed appeal before Service Tribunal, which stood abated in pursuance of Supreme Court decision; whereafter he approached the Labour Court by filing grievance petition---Grievance petition was dismissed by the Labour Court on two grounds, firstly being patently barred by time and secondly that employee having availed his remedy at the relevant forum according to law, was debarred to again agitate the same matter at another forum---Employee, after decision of Service Tribunal remained silent and filed grievance petition before the Labour Court after 19 years of his dismissal/removal from service---Labour Court, in circumstances had rightly dismissed grievance petition being grossly time-barred.

(b) "Obiter dictum"---

----Defined and explained.

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

Asmat Kamal Khan for Appellant.

Shahid Shabbir for Respondents.

Date of hearing: 9th August, 2010.

2012 P L C 434

[Punjab Labour Appellate Tribunal]

Before Hafiz Abdur Rehman Ansari, Chairman

EXECUTIVE ENGINEER, SHUJABAD CANAL DIVISION, MULTAN

Versus

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

Appeal No.MN-1515 of 2009, heard on 24th February, 2012.

Industrial Relations Ordinance (XCI of 2002)---

----S. 46---Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, R.17-A---Grievance petition for regularization of service---Death of petitioner---Claim for appointment of adult son of the petitioner---Petitioner, who was working in Irrigation Department as Beldar/Chowkidar on work charge basis, filed petition for regularization of his service---During the trial of grievance petition, petitioner expired leaving behind four sons and two daughters---Counsel for the petitioner had prayed that grievance petition be disposed of with the issuance of direction to the authorities to make appointment of adult son of deceased as Beldar/Chowkidar---Labour Court disposed of grievance petition with direction to the authorities to consider the application of adult son of deceased under humanitarian ground under R.17-A of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974---Department assailed said order by filing appeal, which was time-barred---Employee on work-charge basis having been excluded from the definition of "civil servant", under R.17-A of Civil Servant (Appointment and Conditions of Service) Rules, 1974; son of deceased employee could not be benefited from the provisions of said R.17-A and powers exercised by the Labour Court under R.17-A, was without jurisdiction---Impugned order of the Labour Court on humanitarian ground was nullity in the eyes of law---Labour Court was bound to decide and adjudicate the matter within parameters prescribed by law---Limitation would not run against void order---If there was any delay in filing appeal against the impugned void order, that would not hit the appeal---Appeal against order of Labour Court was allowed and impugned order was struck down, in circumstances.

Moulana Atta-ur-Rehman v. Al-Haji Sardar Umar Farooq and others PLD 2008 SC 663; Province of the Punjab through Secretary Settlement and Rehabilitation Department, Lahore v. Akhtar Ali Khan

2007 SCMR 459; Land Acquisition Collector, Nowshera and others v. Sarfraz Khan and others PLD 2001 SC 514; Evacuee Trust Property Board and others v. Mst. Sakina Bibi and others 2007 SCMR 262; Syed Nazir Hassan v. Settlement Commissioner, Lyallpur PLD 1974 Lah. 434 and Mst. Rehmat Bibi and others v. Punnu Khan and others 1986 SCMR 962 rel.

Muhammad Ayoub D.D.A. for Appellant.

Syed Hamid Hassan Pirzada for Respondent.

Date of hearing: 24th February, 2012.

2012 P L C 439

[Punjab Labour Appellate Tribunal]

Before Abdul Hafeez Cheema, Chairman

CHIEF MANAGER, EMIRATES BANK INTERNATIONAL LTD.

versus

ABDUL QADIR

Labour Appeal No.LHR-2585 of 2010, decided on 17th October, 2011.

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

----Ss. 33 & 47---Resignation---Withdrawal of---Grievance petition---Employee was allegedly coerced into resigning---Employee continued to request the employer/bank not to accept his resignation; and he could be allowed to continue his service, but management put him off on false promises that they would consider his request---Employee withdrew his resignation vide a letter before the same was accepted by the employer---Employee requested Bank authorities to allow him joining as he had withdrawn his resignation well before its acceptance; but the Bank refused, which obliged the employee to file grievance petition which was accepted by the Labour Court---Validity---Resignation having been .withdrawn prior to its acceptance, the subsequent order accepting the resignation after about 6/7 days had no legal validity---Labour Court appeared to have examined and analyzed the evidence properly and had come to a right conclusion---Even otherwise bank had not been dealing with the employee in a becoming manner---Grievance petition which was filed by the employee in 1992, was dragged up to 1998---Bank's attitude throughout had been deplorable---Banks were respectable institutions and were expected to display fair and decent attitude not only towards their clients, but also to their employees---Appeal filed by the bank having no merits, was dismissed, in circumstances.

Mian Muharnmad Saleem for Appellant.

Khalid Aseer Chaudhry for Respondent.

Date of hearing: 10th October, 2011.

2012 P L C 442

[Punjab Labour Appellate Tribunal]

Before Hafiz Abdur Rehman Ansari, Chairman

WATER AND POWER DEVELOPMENT AUTHORITY through Chairman WAPDA and 2 others

versus

ABDUL REHMAN and another

Appeal No.MN-272 of 2011, decided on 6th March, 2012.

Industrial Relations Ordinance (XCI of 2002)---

----S. 46---Compulsory retirement on allegation of embezzlement---Grievance petition---Petitioner, was working as Account Assistant, and compulsorily retired from service on allegation of embezzlement after holding inquiry against him---After issuance of show-cause notice to the petitioner, Deputy Manager of the employer department sought report of Assistant Manager about the detail of cash embezzlement allegedly committed by the petitioner/employee---Assistant Manager in his report had stated that the employee was not involved in the commission of alleged embezzlement; and Assistant Manager recommended for exoneration of the employee from the charges/allegations levelled against him---Said recommendation was made in the inquiry report and nothing was on record as to how much embezzlement was made by the employee---Mere assertion on the part of officials of the department alleging that employee had made embezzlement of huge amount, was not sufficient, unless same was proved and produced through some substantial evidence---Employer department had failed to prove the allegation of embezzlement through substantial evidence---Employer department had no statutory rules to deal with the service disciplinary matters of its employees, nor proceedings could be initiated against the employee under the Removal from Service (Special Powers) Ordinance, 2000---Appeal filed by employer department was dismissed and judgment passed by Presiding Officer of Labour Court was upheld, in circumstances.

Rao Muhammad Iqbal for Appellants.

Saeed Shahzad Jaffri for Respondents.

Date of hearing: 6th March, 2012.

2012 P L C 447

[Punjab Labour Appellate Tribunal]

Before Abdul Hafeez Cheema, Chairman

FACTORY MANAGER, SURAJ COTTON MILLS LTD.

Versus

MUHAMMAD ASLAM

Revision Petition No.LHR-430 of 2011, decided on 30th November, 2011.

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

----Ss. 33 & 47(5)---Grievance petition---Employers/Establishment filed application seeking dismissal of grievance petition filed by the employee, on two grounds, firstly that grievance notice was dispatched by the employee after more than two months from passing dismissal order by the Labour Court; secondly that employee had filed joint grievance petition, which was disallowed by the court with the direction to file separate grievance petitions, which had not been filed in terms and there seemed to be no justification for condonation of delay if any---Labour Court dismissed application of Establishment---Validity---Note from the postal authorities clarified that in fact the notice was dispatched on 1-6-2009 and not on 11-6-2009 as claimed by the Establishment---Question that joint grievance petition was disallowed and the subsequent, independent and individual grievance petitions were time barred, was yet to be decided by the Labour Court after recording of the evidence---Both the pleas/objections, raised by the counsel for the petitioner Establishment pertained to factual controversy which could not be decided without recording of evidence on the basis of hypertechnicalities---Order of the Labour Court appeared to be proper and valid---Appellate Tribunal dismissed the petition and issued direction to the Labour Court to decide the matter expeditiously after recording of evidence of the parties.

S.A. Naeem for Petitioner.

Safdar Hussain Sindtiu for Respondent.

Date of hearing: 29th November, 2011. .

2012 P L C 449

[Punjab Labour Appellate Tribunal]

Before Hafiz Abdur Rehman Ansari, Chairman

TANVIR MUNIR

Versus

POSTMASTER GENERAL SOUTHERN PUNJAB CIRCLE-4 MULTAN CANTT. and 2 others

Application No.DGK-18 of 2012, decided on 27th January, 2012.

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

----Ss. 33 & 47(10)---Transfer of grievance petition---Jurisdiction in Court/Tribunal---Scope---Employee had sought transfer of his grievance petition from Labour Court at place to Labour Court at place M'---Counsel for employee had submitted that counsel for employers had no objection on such transfer---No doubt case was filed in Labour Court at place at the time when there was no Labour Court at place and when a Labour Court was established 'there, the grievance petition of the employee was transferred there as it pertained to the jurisdiction ofD. G. K.'---Labour Court at D.G.K.' had only jurisdiction to grant relief sought by the employee in his grievance petition---No allegation of any sort was levelled by the employee against the Labour Court at and no prejudice was alleged against Labour Court at D.G.K.'---Mere consent of both the parties and convenience of both the parties could not vest jurisdiction in the Labour Court at placeM'---Jurisdiction of court or Tribunal would be conferred by law and not by consent of parties, express or implied---Consent could not confer or take away such jurisdiction---Transfer application having no legal force was dismissed, in circumstances.

Multan Electric Power Company Ltd. through Chief Executive and another v. Muhammad Ashiq and others PLD 2006 SC 328 rel.

Syed Hamid Hassan Pirzada for Petitioner.

Date of hearing: 27th January, 2012.

2012 P L C 458

[Punjab Labour Appellate Tribunal]

Before Abdul Hafeez Cheema, Chairman

SHAHID AKHTAR BAIG

versus

CHIEF EXECUTIVE, ITTEHAD CHEMICALS LTD.

Appeal No.LHR-2843 of 2010, decided on 10th March, 2011.

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

---Ss. 33 & 47---Grievance notice through advocate---Legality---Appellant, employee, in his appeal had called in question the validity of order passed by Labour Court, whereby his grievance petition was dismissed in view of grievance notice having been given through advocate---Law required that the workman himself was to issue the grievance notice and agency of advocate, had been disallowed for the sane---Notice issued by the employee through advocate was not in accordance with law, and the proceedings based on such grievance notice, were invalid---Appeal filed by the employee having no merits, was dismissed, in circumstances.

PLD 1980 SC 80 rel.

Muhammad Akram Shahid for Appellant.

S.A. Naeem for Respondent.

Date of hearing: 4th March, 2011.

2012 P L C 466

[Punjab Labour Appellate Tribunal]

Before Abdul Hafeez Cheema, Chairman

MANAGING DIRECTOR, WATER AND SANITATION AGENCY, GUJRANWALA

versus

IRSHAD AHMED and others

Revision Petition No. GA-474 of 2011, decided on 17th November, 2011.

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

----S. 17---Punjab Industrial Relations Act (XIX of 2010), S.47(S)---Revision---Limitation---Delay, condonation of---Appeal filed by petitioner under S.17 of the Payment of Wages Act, 1936 having been dismissed, petitioner filed revision, which was barred by time, and petitioner had not filed any application for condonation of delay---Effect---Petitioner had to explain each day's delay---Court was to first determine the point of limitation and then to proceed on merits---Nobody could be allowed to circumvent the provisions of statute of limitation---Party approaching the court of competent jurisdiction for relief beyond the specified period of limitation, was bound to explain each day's delay to the satisfaction of the respective forum, because valuable rights had accrued to the other party---Appeal before the Labour Court under S.17 of the Payment of Wages Act, 1936 was equally time barred for more than three months, which had shown the indifference of the petitioner department towards the government cases---To condone such a lengthy delay, no confidence inspiring cogent or plausible explanation had been rendered by the counsel for the petitioner---Petition was dismissed.

1989 SCMR 864 and 2006 SCMR 783 rel.

Muhammad Din Ch. for Petitioner.

Date of hearing: 17th November, 2011.

2012 P L C 467

[Punjab Labour Appellate Tribunal]

Before Hafiz Abdur Rehman Ansari, Chairman

DIVISIONAL SUPERINTENDENT, POST OFFICE BAHAWALPUR

Versus

MUHAMMAD RAFIQUE

Appeal No.MN-37 of 2012, decided on 21st May, 2012.

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

----S. 33--Compulsory retirement on allegation of misappropriation of amount---Grievance petition---Employee was compulsorily retired from service on allegation of misappropriation---Presiding Officer of Labour Court after thorough appraisal of the evidence on record allowed grievance petition filed by the employee against order of his compulsory retirement---No written complaint was on record against the employee set out by aggrieved beneficiaries of Benazir Income Support Programme---Affidavits were sworn in favour of the employee exonerating him from the charges levelled against him---Even the witness of employer department favoured the employee in his statement, whom stated that enquiry was initiated against a person other than the employee, and in that enquiry, some complaints were revealed against the employee---Said other person was reinstated by the department against whom similar allegations were levelled---Law did not permit discrimination---Employee was entitled for the same relief---Major penalty of compulsory retirement against the employee was harsh one---Ample evidence was available on record to exonerate the employee from the charges---Counsel for department had failed to point out any misreading or non-reading or any piece of evidence which would favour the department for setting aside the impugned judgment passed in favour of the department---Enquiry report was with regard to the complaint against said other person and not against the employee---Appeal filed by the department against the judgment of the Labour Court was dismissed and the judgment of the Labour Court was upheld which would be implemented in letter and spirit.

Malik Javaid Iqbal Wains for Appellant.

Muhammad Atif Qureshi for Respondent.

Date of hearing: 21st May, 2012.

2012PLC471

[Punjab Labour Appellate Tribunal]

Before Abdul Hafeez Cheema, Chairman

DIVISIONAL SUPERINTENDENT POSTAL SERVICES RAWALPINDI DIVISION, RAWALPINDI

versus

AHMAD HUSSAIN and another

Labour Appeals Nos.RI-725 and RI-726 of 2011, decided on 25th November, 2011.

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

----Ss. 33 & 47---Dismissal from service---Grievance petition---Delay in filing appeal---Condonation of delay---Grievance petition filed by the employees against order of their dismissal from service, was allowed by the Labour Court and they were reinstated in service, with stoppage of three increments with all back benefits---Employer department filed appeal against judgment of Labour Court which was time barred for about two months---Department had failed to explain satisfactorily the delay caused after obtaining the copies of judgment of the Labour Court---Effect---No preference could be given to the Government department in condonation of delay as compared to the other Establishments---Court was first to determine the point of limitation and then to proceed on merits---No body could be allowed to circumvent the provisions of statute of limitation---Party approaching the court of competent jurisdiction for relief beyond the specified period of limitation, was bound to explain each day's delay to the satisfaction of respective forum, because valuable rights had accrued to the other side---No case having been made out for condonation of delay, appeals, were dismissed, in circumstances.

1989 SCMR 864 and 2006 SCMR 783 rel.

Zahid Qayyum vice Muhammad Umar Awan along with Zargham Abbas, Divisional Superintendent for Appellants.

Ms. Ambreen Nawaz for Respondents.

Date of hearing: 25th November, 2011.

2012PLC474

[Punjab Labour Appellate Tribunal]

Before Hafiz Abdur Rehman Ansari, Chairman

PUNJAB SEED CORPORATION through Director Admn.

versus

SALMA BIBI

Compensation Appeal No.SWL-129 of 2011, decided on 14th June, 2012.

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

----S. 47---Industrial and Commercial Employment (Standing Orders) Ordinance (IV of 1968), S.Os.10-B & 12---Workmen's Compensation Act (VIII of 1923), Ss.19, 21, 23 & 30---Claim in respect of group insurance and gratuity by widow of deceased employee before the Commissioner, Workmen's Compensation which claim was accepted by the Commissioner---Employer-(appellant) corporation contended that deceased was never appointed as a driver in the corporation, neither on casual nor on daily wages and that all the permanent employees of the corporation were insured, but the deceased was not a permanent employee of the corporation---Evidence on record had fully established that deceased was employee of the corporation---Even witnesses appeared ' on behalf of the corporation in his cross-examination admitted that deceased was the employee of the corporation---Deceased, had filed grievance petition for regularization of his service, which abated when he died---Evidence produced by the corporation, was shaking and not confidence inspiring, while oral as well as documentary evidence of widow of deceased was confidence inspiring---Minor discrepancies from the mouth of an illiterate lady, could be ignored---Deceased served the department as a driver beyond period of 9 months, in circumstances had attained the status of permanent workman---Commissioner, in circumstances, had rightly accepted claim of widow of deceased employee---Appeal filed by employer-corporation, was dismissed, in circumstances.

Mehar Imtiaz Younis Tullah for Appellant.

Ch. Muhammad Siddique Atique for Respondent.

Date of hearing: 14th June, 2012.

JUGMENT

HAFIZ ABDUR REHMAN ANSARI (CHAIRMAN).--- Theappellant-Punjab Seed Corporation has filed this appeal under section 30 of Workmen's Compensation Act, 1923 against the award/decision dated 24-9-2011 passed by the Commissioner Workmen's Compensation, Sahiwal whereby he accepted the claim in respect of group insurance and gratuity with one time penalty allegedly against the law and facts of the case.

1. The brief facts of the instant case are that respondent filed claim of her husband's group insurance and gratuity against the Punjab Seed Corporation before the learned Commissioner Workmen's Compensation, Sahiwal, which reveals that her husband one Ali Sher son of Muhammad Sharif started working as driver in Punjab Seed Corporation, Sahiwal since 1992, his post was of permanent nature and he received salary on monthly basis.

2. Salma Bibi submitted an application Under Standing Orders 10-B and 12 of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 before the Commissioner Workmen's Compensations, Sahiwal for grant of group insurance amounting to Rs.2,00,000 and gratuity amounting Rs.35000 along with one time compensation Rs.35000/-; total claim of Rs.2,70,000. Mst. Salma Bibi filed grievance petition before Labour Court No.9, Multan alleging therein that her husband Ali Sher was appointed as driver in appellant-department in 1992. He worked diligently and honestly. She alleged that her husband filed grievance petition before Punjab Labour Court No.9, Multan for regularization of his service. Her husband expired on 23-6-2006, so the grievance petition abated from the Labour Court. She claimed that she is only widow of Ali Sher. At the time of filling, application, she claimed minors i.e. Jamshed, Ali Afnan, Ali Shan, Khalida Parveen, Adeeba Parveen and Sadia Parveen were born out of her wed-lock with Ali Sher.

3. The department filed written statement and denied the contents of the claim of Salma Bibi widow of Ali Sher. Appellant-department raised some preliminary objections that applicant's husband was never appointed/employee as a 'driver in Punjab Seed Corporation, neither on causal nor on daily wages basis. It was further contended in the written statement that all the permanent employees of Punjab Seed Corporation are insured and husband of the applicant was not insured as he was not a permanent employee of Punjab Seed Corporation. That the application submitted is vague, frivolous and baseless. On facts, all the contentions were denied. In the light of divergent pleadings of the parties, the following issues were framed:---

(i) Whether Ali Sher son of Muhammad Sharif was a regular employee of Punjab Seed Corporation since 1992?

(ii) Whether widow of Ali Sher is entitled for gratuity and group insurance?

(iii) Whether the applicant is entitled to get the dues of the deceased, Ali Sher and up-to what extent?

(iv) Relief.

Both the parties produced their evidence in support of their contentions. Salma Bibi-applicant appeared herself as PW-1 and recorded her statement. Thereafter she again got recorded her statement as additional evidence as PW-1 on 28-10-2010. She produced same document in evidence which are marked P-1 to P-6. Respondent Mian Manzar Mehmood, Admn. Officer appeared as RW. Mian Zafar Igbal also appeared as Department's witness. Official record of Punjab Seed Corporation was produced in support of written statement which is Exh.R-1 to Exh.R-25.

1. The department resisted claim of the applicant/respondent-lady alleging that her husband was never appointed as a driver in the Punjab Seed Corporation. The claim of the widow of Ali Sher is false and frivolous, she is not entitled for any claim made in application. Commissioner Workmen's Compensation, Sahiwal accepted claim of the respondent-lady vide order dated 24-9-2011 and allowed group insurance of Rs.200000. Moreover; she is also entitled for the gratuity which is 1 Rs.35000 with one time penalty for causing illegal delay and unnecessary hindrance in the way of the widow who filed an application to get the amount (35000 + 35000=70,000) the total payable amount by the Punjab Seed Corporation amounted to Rs.2,70,000.

2. The department has filed instant appeal for setting aside order dated 24-9-2011 passed in favour of respondent-lady widow of Ali Sher.

3. The learned counsel for appellant contended that decision of the learned Commissioner Workman's Compensation, Sahiwal is against law and facts of the case. Respondent had no legal right to file instant claim against Punjab Seed Corporation. That respondent-lady could not prove that her husband Ali Sher was appointed as a Driver in the appellant-department, when he expired he was in the employment of the department. That the learned Commissioner has wrongly given findings on Issues Nos.l and 2 in favour of respondent with regard to group insurance and gratuity and employment of Ali Sher as a driver in the department. The judgment is illegal which is arbitrary, unlawful should be set aside.

4. Conversely, the learned counsel for respondent vehementlysupported judgment delivered by the Commissioner Workmen's Compensation Sahiwal. Learned counsel submitted that there is ample evidence on record which establishes that Ali Sher was appointed as a Driver in the appellant-department. He filed petition before Labour Court No.9, Multan for regularization of his service when Ali Sher died in 2006, the grievance petition was abated. Learned counsel drew attention of this Court, the witness appeared before Commissioner Workmen's Compensation Sahiwal did not specifically denied that Ali Sher was not employed with PSC. There is evasive denial in the statement 'of witnesses of the department. Learned counsel submitted that respondent-lady through her oral as well as documentary evidence has proved that her husband was employed in Punjab Seed Corporation department. In the light of evidence on record, the learned Commissioner Workmen's Compensation Sahiwal rightly accepted claim of gratuity and group insurance, along with one time penalty for widow of Ali Sher. Instant appeal is frivolous and should be dismissed with special costs as widow has been deprived from her legal rights from the last so many years.

5. I have heard the parties at length and perused the record of the Lower Court.

6. The department's witness Manzar Mehmood in cross-examination replied in the following words when question was put to him regarding the employment of Ali Sher in Punjab Seed Corporation. He replied

This reply of department witness established that Ali Sher was an employee in Punjab Seed Corporation at Sahiwal Farm. From the mouth of Department's witness, specific denial should have come. Further, AliSher filed grievance petition before Labour Court for regularization of his service which abated when the petitioner died. Evidence on record produced by appellant-department is shaky and not confidence inspiring. While oral as well as documentary evidence of respondent-lady is confidence inspiring. Minor discrepancies from the mouth of illiterate lady can be ignored. Further another department's witness Muhammad Zafar lqbal who appeared as RW in cross-examination, he also made evasive denial. In cross-examination, he replied:

2012 P L C 20

[Sindh Labour Appellate Tribunal]

Before Ali Muhammad Baloch, Member

Messrs TEXTILE SERVICES through Senior Sales Executive

Versus

Syed FAISAL AZIZ and another

Appeal No.KAR-704/2010 (L.A.240/2004), decided on 26th May, 2011.

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

----S. 1(4)(a) & S.O.12---Industrial Relations Ordinance (XXII of 1969), S.25-A---Termination of service---Grievance petition---Grievance petition, was objected to by the employer, that same was not maintainable as only 15 persons were employed in the establishment and Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 was not applicable to the case---Employee initially having asserted that provisions of Standing Orders Ordinance, 1968 were applicable to the employers establishment, burden heavily lay upon the employee, but he had not fully discharged the burden as he had failed to produce the complete list of the workers employed with the establishment---Employee though had given some names of the workers but had not given the names of complete work force or at least 20 workers, which was the mandatory requirement of law---Establishment being not covered by Standing Orders Ordinance, 1968, grievance petition against the employer was not maintainable and Labour Court had no jurisdiction to proceed with the same---Impugned order passed by the Labour Court, was declared to be without jurisdiction and lawful authority and was set aside.

Mehmood Abdul Ghani for Appellant.

S. Ali Mehdi for Respondent No.1.

Date of hearing: 4th March, 2011.

2012 P L C 82

[Sindh Labour Appellate Tribunal]

Before Ali Muhammad Baloch, Member

Messrs TOP CAN INDUSTRIES (PVT.) LTD. through Director and Chairman

Versus

IQBAL KHAN

Appeal No.KAR-484 of 2010, decided on 2nd June, 2011.

Industrial Relations Act (IV of 2008)---

----Ss. 41 & 55(3)---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.15---Dismissal from service---Grievance petition---Employee was dismissed from service after charge-sheeting him and holding inquiry against him on the allegations of misconduct and negligence---Labour Court allowed grievance petition filed by the employee against order of his dismissal from service, and ordered his reinstatement---Validity---In enquiry proceedings against the employee neither the statement of complainant was recorded, neither the presence of accused/employee was mentioned, nor the signatures of the employee were obtained on each and every page; it was an ex parte enquiry---Enquiry Officer should have mentioned that fact, but there was no endorsement of the like nature---No proper chance of defence was provided to the employee---Allegations of misconduct and negligence, levelled against the employee were not discussed in the enquiry properly---Problem which had caused loss to the Management was not on the part of the employee, as he had time and again and continuously pointed out the defects, but no one had taken the same seriously---Management had not considered opinion of the employee, which resulted into loss---Employee could not be blamed for such misconduct, because he was a worker and a subordinate who could not go beyond its authority---Suspension letter, show-cause notice, order of enquiry, and dismissal order were issued by incompetent Authority---Findings of the Presiding Officer of the Labour Court, were in accordance with law, based on proper appreciation of evidence, which did not require any interference by Appellate Tribunal---Interim relief as granted earlier, was also recalled.

Yasin Ali for Appellant.

Rafiullah for Respondent.

Dates of hearing: 25th March and 23rd May, 2011.

2012 P L C 171

[Sindh Labour Tribunal]

Before Ali Muhammad Baloch, Member

IBRAHIM KHAN

Versus

Messrs SAIF INDUSTRIES (PVT.) LIMITED, KARACHI

Revision Application No.KAR-152 of 2010, decided on 16th February, 2012.

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

----S. 15---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), Proviso to S.1(4)(c)---Industrial Relations Ordinance (XCI of 2002), S.48(3)---Claim for payment of gratuity---Authority under Payment of Wages Act, 1936 allowed the claim of employee with regard to payment of gratuity, but Labour Court rejected claim of the applicant---Validity---Evidence on record had established that the Establishment at the relevant time, had employed less than 49 persons---Applicant, in circumstances, was not entitled for gratuity according to law as Industrial and Commercial Employment (Standing Orders) Ordinance, was not applicable to the case of the applicant.

Bacha Fazal Mannan for Applicant.

S.M. Yaqoob and S.M. Iqbal for Respondents.

2012 P L C 175

[Sindh Labour Tribunal]

Before Ali Muhammad Baloch, Member

Messrs SYNGENTA PAKISTAN LIMITED through Authorized Officer and Manager Compensation

Versus

MUHAMMAD QADEER and others

Appeals Nos.KAR-72 to KAR-85 of 2011, decided on 20th March, 2012.

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

----S.Os. 1(b), 2 & 12(3)---Termination of service---Permanent status of workman, determination of---Workers had claimed that they were appointed in the year 2004 without any order in writing---Worker remained firm in their stand that no appointment letter was issued to them and their employment was permanent---Cross-examination of the employer's witness had shaken the case of employer before the Labour Court---Employer had signed some papers at the time of appointment of the workers, without supplying copy of the same to them---Employer, tried to use the said papers at the time of termination of services of the workers, which was not warranted by law---Under Standing Order 2 of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 the employer was bound to issue tickets to every workman employed in the Establishment according to their status---Once it was established that the employer had not issued such tickets, effect of such non-issuance would be borne by the employer; as it was the duty to issue such tickets imposed on the employer by law---Social Security Contribution paid by the employer for more than a period of two years had clearly and unambiguously established that the job on which workers were appointed, was a permanent job and lasted for more than two years---Workers, in view of the definition of "Permanent Workman" as given by Standing Order 1 of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, were permanent workman; and were entitled for termination letter with explicit reason as provided under Standing Order 12(3) of Order, 1968.

District Manager SRTC v. Nooruddin 1999 PLC 493; Messrs Samkar Tamiraat (Pvt.) Ltd. v. Muhammad Hussain 2008 PLC 72; Nooruddin and 11 others v. Abdul Waheed PLD 1997 Kar. 6; Haji Riyaz Ahmed Mir v. Brig. Retd. Ch. Muhammad Sharif PLD 2003 Kar. 45; Pakistan v. Public-at-Large PLD 1987 SC 304; 1993 PLC 192; 1979 PLC 207; 2000 YLR 1669; 2011 PLC 623 and 2005 SCMR 100 distinguished.

Executive Engineer Central Civil Division Pak PWD Quetta v. Abdul Aziz and others PLD 1996 SC 610; Secretary Irrigation and Power Department, Government of Punjab Lahore and others v. Muhammad Akhtar and others 2009 SCMR 320; Tehsil Municipal Administration Rahimyar Khan and others v. Hanif Masih and others 2008 SCMR 1058 and Farooq Ahmed v. Delta Shipping (Pvt.) Limited 2006 PLC 102 ref.

M. Sabir and Shaukat Ali for Appellant.

Abdul Ghaffar for Respondents.

Date of hearing: 20th February, 2012.

2012 P L C 244

[Sindh Labour Appellate Tribunal]

Before Ali Muhammad Baloch, Member

BUDHAL KHAN

Versus

Messrs ALLIED BANK OF PAKISTAN LTD. through President and 2 others

Appeal No. LRK-503/2010 (L.A.1 of 2007), decided on 5th April, 2012.

Industrial Relations Ordinance (XCI of 2002)---

----Ss. 2(xxx), 46 & 48---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(i) & S.O.15---Dismissal from service---Status of "workman"---Determination---Employees being Manager in Officer Grade-III having been dismissed from service after charge-sheeting him and holding inquiry against him on charge of misconduct, filed grievance petition against his dismissal order---Grievance petition was dismissed by Labour Court being not maintainable holding that employee was not "workman"---Employee in his cross-examination had admitted that being Manager, his exclusive duty was managerial and administrative---Employee being not "workman", his grievance petition was rightly dismissed by the Labour Court, in circumstances.

Ch. Muhammad Latif Saghar for Appellant.

Muhammad Sabir and Shaukat Ali Chaudhry for Respondents.

Date of hearing: 14th March, 2012.

2012 P L C 281

[Sindh Labour Appellate Tribunal]

Before Ali Muhammad Baloch, Member

ABDUL WAHAB

Versus

ALLIED BANK LIMITED through President and 3 others

Appeal No.HYD-11 of 2010, decided on 24th May, 2012.

Industrial Relations Ordinance (XCI of 2002)---

----Ss. 46 & 48---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.15---Compulsory retirement from service on allegation of misconduct---Grievance petition of employee was dismissed being barred by time---Validity---Section 46 of Industrial Relations Ordinance, 2002 had provided specific time limitation for service of grievance notice, its reply and for filing grievance petition---Limitation provided for reply and waiting for reply was only 15 days; and in case reply received or not received, employee was bound to approach the Labour Court after expiry of 15 days or after receiving the reply, or whichever was earlier, would go the Labour Court within 60 days---In the present case, the employee had not approached the Labour Court within the stipulated time and waited for reply for more than one year---Grievance petition had rightly been dismissed being time barred, in circumstances.

Miss Nasim Abbasi for Appellant.

Muhammad Sabir and Shaukat Ali Chaudhry for Respondents.

Date of hearing: 25th April, 2012.

2012 PLC 309

[Sindh Labour Appellate Tribunal]

Before Ali Muhammad Baloch, Member

ALLIED BANK LIMITED through Attorneys and others

Versus

SHOUKAT ALI SHAIKH and others

Appeals Nos.KAR-1687 and KAR-1688 of 2010, decided on 13th October, 2011.

Industrial Relations Act (IV of 2008)---

----Ss. 2(xxix), 41 & 55---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(i) & S.0.15---"Workman"-Determination-Factors--Imposition of punishment of reduction in basic pay on allegation of absence from duty---Grievance application---Punishment of reduction in basic pay was imposed on the employee after charge-sheeting him and holding enquiry against him of allegation of absence from duty for more than 10 days---Grievance application filed by the employee against said punishment had been accepted by the Labour Court---Maintainability of grievance application was objected to by the employer contending that the employee being Auditor, was not "workman"---Job of "Auditor", could not be considered as job of a person other than a "Workman "---Designation and salary of an employee, could not be a touchstone for determination of his status of workman; it was the nature of duties which could decide his status---In the present case, no job description had been filed before the Labour Court, and no question had been put to the employee regarding his nature of job/duties---Evidence of the employer was silent about the status of the employee---Evidence on record had reflected that employee was a "workman" and his grievance application filed before the Labour Court, was much maintainable---Enquiry conducted against the employee, was objectionable as he was on duty and the management deliberately transferred him from one place to another place, and during said period no notice of enquiry was served directly on him---Once a workman was in employment of any establishment, it was the duty of the employer to serve the notice directly upon him, but no such notice was served upon the employee---Enquiry was also objectionable as the complainant had only produced the charge-sheet in his statement---Presence of kind of leave in the credit of the employee, he was entitled for the grant of such leave, until same expired---Order of the Labour Court was maintained accordingly.

2001 PLC 428; 2007 CLC 400; 1993 PLC 595; PLD 1986 SC 103; 1985 SCMR 1511; 2006 PLC 24; 2007 PLC 472; 2008 PLC 40 and 2009 PLC 171 distinguished.

Shahid Anwar Bajwa Law Associates for Appellants.

Lajpat Rai for Respondents.

Dates of hearing: 14th September, 5th and 6th October, 2011.

2012 PLC 338

[Sindh Labour Appellate Tribunal]

Before Ali Muhammad Baloch, Member

Messrs AL-KARAM TEXTILE MILLS (PVT.) LIMITED through 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 Ordinance (XCI of 2002)---

----Ss. 46 & 48---Grievance petition---Maintainability---Petitioner­ worker in his cross-examination, having admitted that he was not employee of the respondent Mills, grievance petition on that ground was not maintainable against the Mills.

2000 PLC 52; Habibur Rehman v. Sindh Labour Appellate Tribunal and others Constitutional Petition No. D-2441 of 2001; Aftab Ali and others v. Woodward Pakistan Limited C.P.L.As. Nos.809-K to 815-K of 2005; Muhammad Sharif and others v. Punjab Labour Court No.3 and another Civil Appeal No.39 of 1997; PLJ 1973 Labour 269; PLD 1978 Lah. 704; PLD 1976 Lah. 1169; 1985 SCMR 239; 1987 SCMR 1463; 2010 PLC 635 Seagul Exports Pakistan Limited v. Sindh Labour Appellate Tribunal 2002 PLC 212 and 1988 SCMR 1725 rel.

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

Nemo for Respondents.

Date of hearing: 3rd March, 2011.

2012 P L C 378

[Sindh Labour Tribunal]

Before Ali Muhammad Baloch, Member

Mst. NOOR JEHAN

versus

PRESIDING OFFICER, SINDH LABOUR COURT NO.1, KARACHI and another

Revision Application No.WCK-12 of 2011, decided on 30th November, 2011.

Industrial Relations Act (IV of 2008)---

----Ss. 41 & 55(4)---Payment of Wages Act (IV of 1936), Ss.15 & 17---Claim of payment of wages---Rejection of claim---Remand of case---Claim of the applicant/employee, in the first round of litigation, was rejected and employee filed appeal under S.17 of Payment of Wages Act, 1936 before the Labour Court, which remanded the matter to the Authority for decision after recording evidence on merits---Authority, on remand, after framing issues and recording evidence, decided the matter again in favour of the employee---Whenever a court framed issues and recorded the evidence according to the issues when no amendment had been sought on behalf of the parties, then no party could agitate against the same before any forum, except by adopting the proper way provided under the Code of Civil Procedure---Once it was found by the Authority that written statement not being admissible, there could be no defence on behalf of the Board of Directors of the Company in absence of any such evidence/written statement, the claim of the applicant had gone unrebutted and the same should be admitted---Findings of the Labour Court being not based on proper appreciation of facts and law, same were set aside and order of Authority was restored to its original position---Authorities were directed to release the amount to the applicant/employee, with in thirty days.

Ashraf Hussain Rizvi for Applicant.

Muhammad Humayun and Ghulam Murtaza Saryo for Respondent No.2.

Dates of hearing: 16th and 21st November, 2011.

2012PLC290

[Balochistan Labour Appellate Tribunal]

Before Abdul Ghias Nousherwani, Member

RELATIONSHIP MANAGER. PROFESSIONAL EMPLOYER SERVICES, KARACHI

Versus

DISTRICT AND SESSIONS JUDGE/1ST LABOUR COURT BALOCHISTAN, QUETTA and 2 others

Labour Appeal No.38 of 2008, decided on 3rd April, 2012.

(a) Balochistan Industrial Relations Act (XIII of 2010)---

----S. 2(DD)---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S. 0.1(b)(A)--- "Workman "---Determination of status of---Determination of position of a workman, was a question of fact, at best the one mixed fact and law---Designation of a workman, was not conclusive, but nature of work was the main factor for determination, which could be based on the evidence produced by the party---Nothing came on record, in the present case, that employee was performing his duty as an Executive Officer having control over the administration of employer Bank---Employee had no power of hire and fire---Nothing was brought on record, about the nature of duty of Operation Officer---Contention of counsel for employer Bank that employee was not a "worker", was overruled, in circumstances.

1985 SCMR 1511; PLD 1986 SC 103 and 2003 SCMR 678 ref.

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

----Ss. 46 & 48---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), Ss.12 & 15---Termination of service---Grievance petition---Services of the employee were terminated on ground of his being absent from duty---Grievance petition filed by the employee against order of termination having been accepted by the Labour Court, employer bank had filed appeal---Validity---Services of permanent or temporary workman, would not be terminated on the ground of misconduct, otherwise than in the manner prescribed in Standing Order 15 of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968---Under Standing Order 12 of Standing Orders, 1968, certain restrictions were placed on the employers---Under Standing Order 15 of Standing Orders Ordinance, 1968 it was mandatory that no order of dismissal would be made, unless the workman concerned was informed in writing of the alleged misconduct within one month of the date of such misconduct--Independent inquiries were also to be held before dealing with the charges against a workman---No inquiry was conducted in the present case and the employee was condemned unheard, which was against the mandatory provision of law---Order passed by the Labour Court was upheld, with modification that the period of absence of the employee be treated as without pay.

1991 PLC 528 ref.

Imtiaz Mehfooz Ahmed for Appellant and Respondent No.3.

Azam Jan Zarkoon for Respondent No.2.

Date of hearing: 26th March, 2012.

2012 PLC 304

[Balochistan Labour Appellate Tribunal]

Before Abdul Ghias Nousherwani, Member

WAPDA HYDRO ELECTRIC LABOUR UNION (CBA) through General Secretary

Versus

REGISTRAR, TRADE UNION, GOVERNMENT OF BALOCHISTAN, QUETTA and 3 others

Revision Petition No.3 of 2011, decided on 21st April, 2012.

(a) Balochistan Industrial Relations Act (XIII of 2010)---

----Ss. 12, 15, 55(3) & 86---Cancellation of registration of Trade Union---Petitioner, which was an industry-wise registered Trade Union with the National' Industrial Relations Commission, was Collective Bargaining Agent from the last so many decades and had succeeded in referendum for 4 times---Petitioner filed application before Registrar, Trade Unions for de-registration of six different unions, but Registrar having not taken action on said application, the petitioner approached Labour Court, which cancelled registration of 4 unions out of said six unions, while declared rest of the two unions as legal---Validity---Under provisions of S.12(3) of Balochistan Industrial Relations Act, 2010, Registrar Trade Unions, could cancel registration of Trade Union, if; Trade Union had ceased to exist; or had not been a contestant in a referendum for the determination of a Collective Bargaining Agent; or had not applied for determination of Collective Bargaining Agent; or had secured less than fifteen per cent of polled votes---Said two unions had neither participated in any referendum, nor had applied for the same thus had ceased to exist under provisions of S.12(3) of Balochistan Industrial Relations Act, 2010---Registration of said two unions was liable to be cancelled---Order of Registrar, Trade Unions and that of Labour Court, were set aside, with the direction that the Registrar, Trade Unions would conduct inquiry with regard to violation of S.12(3) of Balochistan Industrial Relations Act, 2010, strictly according to the provisions of law.

(b) Interpretation of statutes--

----Procedural law to have retrospective effect, unless contrary was provided expressly or implied.

Azam Jan Zarkoon for Appellant.

Akhtar Muhammad Representative of Respondent No.1.

Nasir Khan Yousafzai for Respondent No.2.

Muhammad Iqbal Khalji for Respondent No.3.

Date of hearing: 21st March, 2012.

2012 PLC 317

[Balochistan Labour Appellate Tribunal]

Before Abdul Ghias Nousherwani, Member

MUHAMMAD ASLAM KAKAR and another

Versus

Messrs HABIB BANK LIMITED through President and 2 others

Labour Appeal No.32 of 2009, decided on 16th March, 2012.

Industrial Relations Act (IV of 2008)---

----Ss. 41 & 55---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.Os.11-A & 13---Retrenchment---Grievance petition---Appellants/employees along with 2338 employees were retrenched---Grievance petition filed by the employees had been dismissed by' the Labour Court---Validity---Counsel for employer/Bank had submitted a memo. where one of the appellants was paid amount being retrenched dues payable to him---According to another document, appellant had acknowledged that he had received said amount after deducting income tax--.-Said documents had not been denied by the counsel of appellant---Matter of retrenched employees of employer/ Bank had finally been resolved---No cause of action of the appellant was sustainable before the Appellate Tribunal---Counsel for employer/ Bank had brought two cheques with acknowledgment for appellant who refused to receive and acknowledge the same---Appeal was dismissed in circumstances.

Abdul Sattar Khan for Appellants.

Shaukat Ali Choudary for Respondents.

Dates of hearing: 6th and 8th March, 2012.

2012 P LC 331

[Balochistan Labour Appellate Tribunal]

Before Abdul Ghias Nousherwani, Member

WAHID BUX

Versus

Messrs PARAZELSUS PAKISTAN (PVT.) LTD. through Chief Executive Officer and another

Labour Appeal No.43 of'2011, decided on 24th April, 2012.

(a) Balochistan Industrial Relations Act (XIII of 2010)---

----Ss. 41 & 55(3)---Limitation Act (IX of 1908),.S.5---Termination of service---Grievance petition---Limitation---Employee who was terminated from service, issued grievance notice after 16 months of his termination and no sufficient cause had been mentioned for the purpose of condonation of such delay in filing grievance notice and grievance petition---Grounds mentioned in application of the employee filed under S.5 of Limitation Act, 1908, could not be deemed as "sufficient causes" in view of law, facts, circumstances and proceedings of the case---Contention of employee was that as terminatidn order of was illegal and void, question of limitation would not arise---Validity---Such rule was not of universal application that in all cases of void orders, question of limitation was to be treated mere technicality and litigant was entitled to invoke the jurisdiction of a cofrt or Tribunal of competent jurisdiction at his will at any time without showing any exceptional circumstances for the delay---Order accordingly.

1987 CLC 1307; 1984 PLC 1258; 1984 PLC 1182; 1984 PLC 1044; 1986 CLC 126; PLD 1991 SC 957; PLD 2000 SC 94; 1992 MLD 833; 1987 PLC 196; PLD 2006 Quetta 30 and 2002 SCMR 122 distinguished.

1992 MLD. 1280 and 2004 PLC 468 rel.

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

----S. 5---Condonation of delay---Scope---Benefit of S.5 of Limitation Act, 1908 could only be availed, if a party had acted in good faith and with diligence---Each case would proceed on its own facts---Diligence and good faith would be determined on the facts of each case; and no formula of inflexible or universal application could be laid down in abstract form.

PLD 2000 SC 94 rel.

(c) Balochistan Industrial Relations Act (XIII of 2010)---

----S. 41---Grievance notice issued on the instructions of the employee by his counsel, was violation of S.41 of Balochistan Industrial Relations Act, 2010; wherein it was mandatory that the grievance notice be issued by the workman himself or through his shop steward or Collective Bargaining Agent.

PLD 1980 SC 80 rel.

Nasir Khan Yousafzai for Appellant.

Syed Ali-Bin-Maaz for Respondents.

Date of hearing: 22nd March, 2012.

2012 PLC 341

[Balochistan Labour Appellate Tribunal]

Before Abdul Ghias Nousherwani, Member

ABDUL RAZAQ NASIR

Versus

SENIOR EXECUTIVE VICE-PRESIDENT HUMAN RESOURCES DIVISION ADMIN and 2 others

Labour Appeal No.29 of 2007, decided on 24th May, 2012.

Industrial Relations Ordinance (XCI of 2002)---

----Ss. 46 & 48---Dismissal from service---Grievance application---Employee was dismissed from service after charge-sheeting him and holding inquiry against him on charge of misconduct---Employee filed grievance application after delay of two years and nine months, which application was dismissed being barred by time---Charge-sheet issued to the employee did not show any loss to the employer Bank and in all charge-sheets it was mentioned that his acts amounted to gross misconduct and were in violation of Bank Staff Service Rules, which warranted disciplinary action against him---Employee served the bank for a long period of 26 years and was awarded with many appreciation letters and cash awards during his service---Employer Bank, while dismissing the employee, was under obligation to consider the previous satisfactory service of the employee---Letter of charges and dismissal order on ground of misconduct, was modified to the compulsory retirement with effect from the date of termination, with the benefit admissible under the Bank Rules to the employee---Appeal was partly allowed with said modification.

2006 SCMR 1287; 2008 SCMR 402; C.P. No.54 of 2011 and 2007 PLC 671 rel.

Kamran Malakhail for Appellant.

Sabir Sardar for Respondents.

Dates of hearing: 17th April and 11th May, 2012.

2012 P L C 117

[Sindh Labour Appellate Tribunal]

Before Ali Muhammad Baloch, Member

Messrs PAKISTAN TELECOMMUNICATIOIN COMPANY LTD. through Superintendent Telegram Workshop PTCL, Kotri

Versus

GHULAM MAQSOOD AHMED and others

Appeals Nos.Hyd-357/2010(L.A.135 of 2007), HYD-358/2010(L.A.-136 of 2007), HYD-359/2010(L.A.137 of 2007), HYD-360/2010(L.A.138 of 2007) and HYD-361/2010(L.A.139 of 2007), decided on 29th March, 2011.

Industrial dispute---

----Retirement under Voluntary Retirement Scheme---Reinstatement---Company, which was a Statutory Company, announced a Voluntary Retirement Scheme, which was applicable up to January 1998 and period for relieving the employees was extended up to 28th February, 1998---All employees, serving the company, who had served for more than ten years applied for retirement under said scheme---Employees before acceptance/relieving/payment, had submitted requests for withdrawal of options of retirement given by them---Employees had withdrawn their options, unconditionally before effectivity of the scheme---Company ignored withdrawal of options of the employees and issued retirement letter and relieved them from the duties---Validity---Company met the employees with high-handedness---Employees had withdrawn their option before the effective date and if the option had been withdrawn, before the effective date of retirement, same should have been considered as withdrawn---Once the employees had withdrawn their option, the retirement even on extra benefits, was illegal---Company was directed to reinstate the employees and thereafter would determine the amount of wages and other emoluments (back benefits) payable to them under the law.

PLD 2006 SC 602 ref.

2000 SCMR 1964 rel.

Miss Azima Naseer for Appellant.

M.M. Jeelani for Respondents.

Dates of hearing: 1st February and 2nd March, 2011.

2012 P L C 1

[Lahore High Court]

Before Ijaz Ahmad, J

IESCO

Versus

PRESIDING OFFICER and others

Writ Petition No.1125 of 2011, decided on 9th June, 2011.

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

----Ss. 1, 33, 47 & 79---Industrial Relations Act (IV of 2008), Preamble---Constitution of Pakistan, Arts.199, 264 & 270-AA---Constitutional petition---Repeal of Industrial Relations Ordinance, 2008 during pendency of proceedings---Effect---Penalty of compulsory retirement---Grievance petition---Employee who joined the service of company almost thirty years ago as Sub-Division Clerk, was awarded the penalty of compulsory retirement from service after issuing him show-cause notice and holding inquiry against him on allegation of corruption---Employee filed grievance petition against order of compulsory retirement which was accepted by the Labour Court---Employer filed constitutional petition against order of the Labour Court assailing the judgment of Labour Court contending that said judgment was not sustainable in law as the Industrial Relations Act, 2008 stood repealed during pendency of grievance petition, judgment passed by the Labour Court was illegal and without lawful authority---Validity---Industrial Relations Act, 2008 by virtue of its S.87 stood repealed on 30-4-2010 and clause (6) of Art.270-AA of the Constitution, was not applicable in the facts and circumstances of the case as life of Industrial Relations Act, 2008 had not been mentioned in S.87 of the said Act---Article 264 of the Constitution would also not be applicable in the case, firstly, Industrial Relations Act, 2008 was not repealed by, under, or by virtue of the Constitution, but it died on expiry of the statutory period; secondly, purpose of Art.264 of the Constitution was to provide protection to the operation of law, rights, liabilities accrued and penalties incurred in respect of any repealed law; and it did not state that it would provide protection to the laws previously in force---Punjab Industrial Relations Act, 2010, being mainly a procedural law, the procedural law would have retrospective effect, unless contrary was provided expressly or impliedly---Punjab Industrial Relations Act, 2010 would be applicable retrospectively when Industrial Relations Act, 2008 was repealed---Clause (b) of subsection (1) of S.79 of the Punjab Industrial Relations Act, 2010, gave cover to proceedings taken---Labour Court was constituted under Industrial Relations Act, 2008, and proceedings pending under said Act, would be deemed to be pending under the Punjab Industrial Relations Act, 2010---Labour Court having decided the grievance petition under provisions of Punjab Industrial Relations Act, 2010 impugned order suffered from no illegality.

Malik Gul Hasan and Co. and 5 others v. Allied Bank of Pakistan 1996 SCMR 237 rel.

Muhammad Asif Khan for Petitioner.

Ashraf Ali Khan for Respondent No.2.

Rashid Hafeez A.A.-G. on Court's call.

2012 P L C 219

[Lahore High Court]

Before Muhammad Khalid Mehmood Khan, J

Ch. BASHARAT ALI

Versus

FEDERATION OF PAKISTAN through Secretary Labour and Manpower Division

Islamabad and 4 others

Writ Petitions Nos.24691 to 24695 of 2011, decided on 13th March, 2012.

(a) Industrial Relations Ordinance (V of 2011)---

----Preamble---Constitution of Pakistan, Arts.89(2), 199, 270-AA(8), Fourth Schedule, Federal Legislative List (as amended by Constitutional (Eighteenth) Amendment), Items 3 & 59---Constitutional petition---Vires of Industrial Relations Ordinance, 2011---Federal Government, jurisdiction of---International Conventions and Treaties---Petitioner assailed promulgation of Labour Laws by Federal Government on the ground that after Eighteenth Amendment of the Constitution, Concurrent List stood abolished and legislation on the item of labour became Provincial subject---Validity---President, under Art. 89 (2) of the Constitution had power to promulgate Ordinance and life of Ordinance was specific---Power of President to promulgate Ordinance was restricted to the extent of Federal Legislative List, Fourth Schedule, Part-I of the Constitution---Labour Laws promulgated by Provinces showed that there was no provision for regulating dispute of Industry-wise Trade Union and Trans-Provincial Industrial dispute---Federation to implement treaties and agreements with other countries had powers to legislate and Items Nos.3 and 59 empowered the Parliament to legislate on labour issues, in addition to provincial powers---National Industrial Commission was regulating affairs pertaining to labour disputes of industry-wise trade unions and establishment in different provisions---Pakistan was signatory of International Labour Convention and as such for implementing the undertaking to international community, Federation had powers to legislate on labour issue which the provinces were unable to legislate--- High Court declared that Industrial Relations Ordinance, 2011, was intra wires the Constitution- Petition was dismissed in circumstances.

Air League of PIAC Employees through President v. Federation of Pakistan M/O Labour and Manpower Division Islamabad and others 2011 SCMR 1254 rel.

(b) Constitution of Pakistan---

----Preamble---Federalism---Principle---Federation of Pakistan is based on cooperative Federalism---Sovereign authority vests in the Parliament and the Parliament has delegated certain powers to provinces to the extent of provincial territories---Constitutional scheme of sovereignty is not a duel, as provinces have no powers to grant passport to anyone, nor can issue National Identity Card etc. the sign of sovereignty---Powers to honour international commitment is only with Federation.

Ahsan Shahazad for Petitioner.

Syed Naeem Bokhari for Respondents.

Date of hearing: 28th February, 2012.

2012 P L C 270

[Lahore High Court]

Before Ch. Shahid Saeed, J

Messrs CHAKWAL TEXTILES MILLS LIMITED, RAWALPINDI ROAD CHAKWAL and another

Versus

DIRECTOR SOCIAL SECURITY, RAWALPINDI and 2 others

Writ Petition No.373 of 2008, heard on 17th May, 2012.

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

----Ss. 3, 23, 57, 58 & 64---Constitution of Pakistan, Art.199---Constitutional petition---Maintainability---Delay in payment of social security contribution---Notice demanding amount as "increased amount"---Petitioner/Mills, had challenged notice, whereby respondent/Director Social Security had demanded a sum under the caption "increase amount" as the principal amount of social security contribution was paid late---Notice in question depicted that the amount mentioned in it was assessed was one which could become final, if the petitioner would not oppose the same, but the petitioner instead of contesting the same before the competent authority, had filed constitutional petition---Proceedings thereat having been stayed by High Court, no final decision could be made by the department---Provincial Employees Social Security Ordinance, 1965 had provided that a scheme of Social Security had been introduced for providing benefits to certain employees or their dependants in the event of sickness etc. and that the employers would made contribution for the very purpose---Impugned notice, in circumstances, had been issued validly and lawfully by the Director on behalf of the institution and no lacuna was found in the said order---Section 23 of Provincial Employees Social Security Ordinance, 1965, provided penalty upto 50% increase in the principal amount to be imposed in case of delayed payment of social security contribution---When the petitioner had himself admitted that the payment of contribution was made late, it had to prove that those were not based on mala fide or wilful default---If the petitioner had succeeded to satisfy then the imposition of penalty could be reduced by the department appropriately---Notice had unambiguously mentioned that the amount claimed was based on assessment and if, the petitioner would not approach the department, that would be deemed to be final---Since no final decision in that regard had been made by the department, presumption would be that the petitioner could challenge the amount given in the notice before the authority who issued the notice---Petitioner could file review petition for redressal of its grievance and could also file appeal before the Social Security Court---When the matter was sub judice before the department or where the right of review, revision or appeal had been provided under the relevant statute, constitutional petition, without availing such remedies was not competent and was liable to be dismissed on that score alone---Constitutional petition being premature was dismissed.

(b) Administration of justice---

----Proceedings at different forums regarding the same matter could not run simultaneously.

Farhat Nawaz Lodhi for Petitioner.

Rashid Hafeez, Asstt. A.-G. for the State.

Syed Tanvir Sohail Shah for Respondents Nos.1 and 2.

Munir Afzal, Assistant (legal).

Date of hearing: 17th May, 2012.

2012 P L C 276

[Lahore High Court]

Before Ch. Muhammad Younis, J

JEEWAY PAKISTAN WORKERS UNION through General Secretary

Versus

PUNJAB LABOUR APPELLATE TRIBUNAL, LAHORE and another

Writ Petition No.2932 of 2011, decided on 8th May, 2012.

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

----S.O. 11-A---Constitution of Pakistan, Art.199---Constitutional petition---Application of employer-company (Cigarette manufacturers) seeking permission of the court to terminate more than 50% workers due to stagnation in overall economy of the country, increase of excise tax on cigarettes and continuous decline in profit of the company---Petitioner trade union was arrayed as respondent in the said application---General Secretary of the Union under the Constitution of the Union, was competent to conduct the cases of every nature with the permission of the Chief Organizer---Chief Organizer as well as the President and the Chairman of the Union were not authorized to defend the cases on behalf of the Union independently without any specific resolution of the Union---Chief Organizer and the President of the Union, on the very first date of hearing of the application and without notice attended the court without permission of the Executive Body---General Secretary having come to know of the collusion of the President, the Chairman and Chief Organizer with the company, filed application to defend the application filed by the employer company---Said application was dismissed by the Labour Court---Revision petition filed by the petitioner against judgment of the Labour Court having been dismissed by the Appellate Tribunal, the petitioner had filed constitutional petition---Validity---Chief Organizer was not competent to appear on behalf of the petitioner/Union or accept the service and defend the petitioner before the Labour Court as it was against the constitution of the petitioner-Union---General Secretary alone could invoke the jurisdiction of the Labour Court or initiate proceedings for and on behalf of the Collective Bargaining Agent---Application of the General Secretary, in circumstances, was illegally dismissed by the Labour Court---Orders passed by the Labour Court as well as Labour Appellate Tribunal were not sustainable in the eye of law---Impugned orders were set aside with direction to the Labour Court to allow the General Secretary of the petitioner-Union to file written statement and then proceed further with the matter in accordance with law.

PLD 1978 Kar. 417; PLD 2010 SC 691; 1987 SCMR 1887; PLD 1978 Kar. 417 and 1988 PLC 894 ref.

Malik Muhammad Amjid for Petitioner.

Faisal Mahmood Ghani for Respondent No.2.

2012PLC284

[Lahore High Court]

Before Shujaat Ali Khan, J

TEHSIL MUNICIPAL ADMINISTRATION, ISA KHEL through Muhammad Yaqoob Khan

Versus

SHAFI ULLAH KHAN and 214 others

Writ Petition No.11343 of 2012, decided on 4th May, 2012.

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

----O. VI, R.14---Non-signing of pleadings, effect of---Non-singing of pleadings by any party, would not impede the way of justice---Signing of the pleadings by one person on his behalf as well as on behalf of other co-parties, would fulfil the criteria laid down in O. VII, R.14, C. P. C.

Kathiawar Cooperative Housing Society Ltd. v. Macca Masjid Trust and others 2009 SCMR 574; Chaudhry Muhammad Munir and others v. Election Tribunal, Mandi Bahauddin and others 2009 SCMR 1368; Mst. Jannat Bibi v. Saras Khan 2011 SCMR 1460 and Muhammad Shafi Shaikh v. Ghulam Muhammad 1980 CLC 1150 rel.

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

--Ss.41 & 55---Constitution of Pakistan, Art.199---Grievance petition---Grievance petition filed by the employee was accepted by the Labour Court, and Appellate Tribunal---Validity---Petitioner/employer did not diligently pursue the matter before the forums below--Employers could not blame, either the Presiding Officer of the Labour Court or Appellate Tribunal as the law would favour the vigilant and not the indolent---Non-initiation of any Departmental proceedings against Tehsil Municipal Administrator, who appeared as court witness on behalf of the employers before the Labour Court and made statement contrary to the interest of the department, smelled some foul play by the Officers/Officials of the department---Counsel for the petitioner/employers had failed to point out any misreading or non-reading of any material by the forums below justifying interference by High Court in exercise of its constitutional jurisdiction--Constitutional petition was dismissed.

Muhammad Boota for Petitioner.

Rana Shamshad Khan, A.A.-G. for Respondents.

2012 PLC 299

[Lahore High Court]

Before Muhammad Khalid Mehmood Khan, J

Malik MANZOOR HUSSAIN

Versus

PUNJAB LABOUR APPELLATE TRIBUNAL through Chairman and 4 others

Writ Petition No.26709 of 2010, decided on 23rd May, 2012.

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

----S. 47(11)(12)---Constitution of Pakistan, Art.199---Constitutional petition---Grievance application filed by the petitioner/employee was allowed by the Labour Court; on filing appeal by the employers, Appellate Tribunal passed status quo order under the then prevailing law (Industrial Relations Act, 2008, which was repealed during pendency of appeal)---Said repealed Act, 2008 had provided twenty days to decide the appeal, but it was not specifically provided in the said repealed law that after expiry of twenty days, what would be the fate of status quo order; which would mean that in the absence of any penal provision, the direction to decide the appeal, could be called directory and not mandatory---Held, after newly promulgated Punjab Industrial Relations Act, 2010, if an appeal was not decided within period of ninety days, interim order would stand vacated on the expiry of that period of ninety days; it was declared that the status quo order passed by Appellate Tribunal, came to an end after expiry of ninety days of promulgation of Punjab Industrial Relations Act, 2010, and the petitioner had become entitled to be reinstated, in circumstances.

Muhammad Aslam v. Punjab Labour Appellate Tribunal Lahore and 2 others 1997 PLC 6; Kohinoor Cotton Mills Ltd., Mianwali v. Punjab Labour Appellate Tribunal and 2 others 1980. PLC 800; E.A. Evans v. Muhammad Ashraf 1979 SCMR 515 and Fateh Muhammad and others v. Member, Board of Revenue, Punjab and others 1978 SCMR 454 ref.

Asmat Kamal Khan for Petitioner.

Pervaiz I. Meer for Respondents.

2012 P L C 386

[Lahore High Court]

Before Muhammad Khalid Mehmood Khan, J

HASSAN MUHAMMAD RANA

versus

P.T.C.L. through President and another

Writ Petitions Nos.60 to 62, 90 to 91, 141 to 142, 396, 397, 585, 1011 of 2012, 24423, 29303 29304 and 29305 of 2011, decided on 11th April, 2012.

Pakistan Telecommunication (Reorganization) Act (XVII of 1996)---

----Ss. 35(2) & 36(2)---Constitution of Pakistan, Arts.10-A, 17 & 199---Constitutional petition---Right of fair trial and association---Termination of services---Unfair means---Petitioners were employees of Pakistan Telecommunication Corporation Limited (PTCL) and their services were terminated by authorities on their demand to increase basic salary as announced by Federal Government---Validity---Authorities were pre-decided to terminate services of those employees who were not surrendering before them at their terms---Demand of affidavits that employees would not take part in union activities was against law---To form union and become its member is a fundamental right of employee / labourer and refusal to employee or to sabotage his right to become member of labour union is an offence---Petitioners had more than 20 years of service and institution had thrown them out by violating fundamental right of hearing and fair trial under Art. 10-A of the Constitution---Petitioners were not heard, no charge sheet was issued and their services were terminated without any lawful authority---Termination of services of petitioners was without lawful authority and of no legal effect resultantly petitioners would deemed to be in service---High Court directed the authorities to initiate proceedings in accordance with law, if they had any grievance against petitioners---Petition was allowed accordingly.

Masood Ahmed Bhatti and others v. Federation of Pakistan through Secretary, Messrs Information Technology and Telecommunication and others 2012 SCMR 152; Pakistan Telecommunication Co. Ltd. Through Chairman v. Iqbal Nasir and others PLD 2011 SC 132; Ejaz Ali Bughti v. P.T.C.L. and others 2011 SCMR 333 and Pakistan Telecommunication Limited and others v. Muhammad Zahid and others Civil Petitions Nos.28 to 34 of 2011 ref.

Liaqat Ali Butt for Petitioner.

Syed Naeem Bukhari for PTCL.

Umer Akram Chaudhry, Advocate.

Ch. Muhammad Fakhar, Advocate.

Yousuf Anjum, Advocate.

Ch. Awais Zafar, Advocate.

Afzal Bhatti, Advocate.

Muzaffar Iqbal, Manager Legal for PTCL.

2012 P L C 419

[Lahore High Court]

Before Muhammad Khalid Mehmood Khan, J

Mst. SAKINA BIBI

versus

ADJUDICATING AUTHORITY, EMPLOYEES OF OLD-AGE BENFITS INSTITUTION, LAHORE and 6 others

Writ Petition No.1801 of 2009, decided on 14th March, 2011.

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

----Preamble, Ss.9 & 11---Object and purpose of Employees' Old Age Benefits Act, 1976---Registration of employer---Liability of the employer to pay and deposit contribution---Purpose of Employees' Old-Age Benefits Act, 1976 was to help the employee of industry or establishment after his retirement; and in case of his death, to his legal heirs or dependents---Under the said Act, all industry or establishment being the employer, were bound to get registered itself under the Act; and to pay and deposit the contribution with Director Employees' Old-Age Benefit Institution on behalf of its employees; and if the employer would fail to pay the contribution, the Authority would take action against the defaulted employer---Scheme of the Act, was that employer should be made liable to contribute certain amount for payment of its employees in case of his death or retirement; that was the reason the employer had been made liable to deposit the contribution with Institution, in spite of the fact the employee was also contributing his share---Employer under the Act was bound to deduct the amount of contribution from the salary of employee and by adding its share deposit the same with the Institution---Every establishment/employer was bound under S.11 of Employees' Old-Age Benefits Act, 1976 to get it registered before the expiry of 30 days from the date of which Act became applicable to the industry or establishment---Industry or establishment was bound to provide list and particulars of its employees, and in case of non-compliance, the employer was liable to pay penalty.

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

----S. 26---Extinguishment of benefits---Application of provisions of S.26 of Employees' Old-Age Benefits Act, 1976, was that it was the duty of the employer to inform the Institution about the fact of death of its employee and to lodge a claim of deceased employee that after the death of employee, the payment of contribution had to be discontinued, when the Institution would not receive the contribution, the role of Institution would start; that the Institution, when knew about the death of insured, the Institution became duty bound to ask the employer for providing the details required for processing the claim; that the employer was bound to provide the said details at its own end and the widow of deceased had no role to play and that employer had to maintain the record of its deceased employee with reference to the contribution payments---Section 26 of Employees' Old-Age Benefits Act, 1976 had provided that right to any benefit would stand extinguished where the claim was not made within 12 months of the date on which the benefit became payable.

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

----Preamble, Ss.9, 9-A & 9-B---Death of employee---Payment of amount of contribution---Day when the employee died, his employer stood relieved from its duty to deposit the contribution with Institution---When Adjudicating Authority had not received the contribution they were legally bound to ask the reasons from the employer for non-payment of their member's contribution; and if they asked, then employer was bound to inform them---Director of Institution on coming to know the fact of death of insured, was bound to prepare the claim payable to deceased insured's widow or otherwise---Such was the matter between the Director Institution and the employer, and the deceased was not party for depositing the contribution.

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

----Preamble, Ss.22-B & 25---Implementation of provisions of law---Payment of claim of insured person---Intention of legislation was to provide financial help to the insured person's legal heirs---Law was a welfare law, meant for the welfare of the employees of private organizations who were not enjoying any protection for their future---For implementing the provisions of the law, duty was cast on the Institution to pay the claim to the insured person or at least deposit the same with the employer of deceased---Officials of Institution were the trustees of the funds deposited by the employee of an organization on the assurance of law maker that funds would be in the safe hands and would be paid to him or his survivor---Amount deposited with the Institution was meant for the welfare of insured/survivor and there was no clog of limitation to be imposed against the basic right of insured, which accrued on the insurance of Government that his contribution would be paid to him and after his death to his survivors.

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

----Ss. 2(n), 6, 7 & 25---Benefit claims and payment---Limitation---Scope---Claim had to be regulated under Regulations, which had to be framed by the Board---Board so constituted was a high powered Board who had to look after the Funds of the employees, working in private owned, semi Government and Government owned business concerns---Funds collected by the Institution, were in trust with them and the sole responsibility of the Board was to look after the rights of the beneficiaries of trusted funds; and it was the principle of equity that trusted amount could not be confiscated under the garb of limitation---If the contribution was of petitioner's deceased husband as well as its employer; and the law provided the protection of the retired employee as well as his survivors in case of his death, on technical ground of delay, the right of the widow of deceased employee, could not be denied; as in case of such denial, the very purpose of enacting the law would fail---Law provided protection to the old retired employees of an industry and also in case of death of employee, the pension and other benefits to widow of deceased employee.

(f) Administration of justice---

----Laws were enacted for the welfare of subjects and not to usurp their legitimate rights recognized by law.

(g) Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability---Where the remedy of appeal was not efficacious, the constitutional petition was maintainable in appropriate cases.

Malik Muhammad Ali for Petitioner.

Ch. Altaf Hussain for Respondent.

Muhammad Javed Saeed Pirzada, Asstt. A.-G., Punjab for Respondents.

2012 P L C 9

[National Industrial Relations Commission]

Before Bashir Ahmed Memon, Member

MUHAMMAD ARSHAD and 5 others

Versus

Messrs KARACHI ELECTRIC SUPPLY COMPANY LTD. through Chief Executive Officer and another

No.4A(163)2010-K/24(185)/2010-K, decided on 24th March, 2011.

Industrial Relations (Revival and Amendment) Act (XV of 2010)---

----Ss. 17, 25(8)(g), 26(3)(b) & 50---National Industrial Relations Commission (Procedure and Functions) Regulations, 1974, Regln.32---Petition against unfair labour practice on part of the employers---Interim stay order, application for---Four petitioners/Individual workers and two non-Collective Bargaining Agent Unions in their petitions had prayed for declaring them permanent employees of the respondent/Management and to declare the agreement signed by Management and Collective Bargaining Agent as void agreement---Under Ss.17(e)(F), 26(3)(b) & 50 of Industrial Relations (Revival and Amendment) Act, 2010, it was only the Collective Bargaining Agent which could file the proceedings and that too for the enforcement of any right guaranteed and secured to the Collective Bargaining Agent under any law, settlement or award---Petitioners/Collective Bargaining Agent could not espouse the cause of individual workers and they had no locus standi to challenge the agreement/settlement, which had been implemented and acted upon and the benefits thereof had been taken by petitioners also---National Industrial Relations Commission, in circumstances, could not interfere in the agreement which had already acted upon, even if it was deemed to be an act of unfair labour practice, and it could not be stayed in the proceedings---Petitioner had failed to point out as to which ingredients of unfair labour practice was attracted and only bald and vague allegations had been made without any substance and instance of unfair labour practice---Earlier the petitioners had filed constitutional petition on the same point of regularization and High Court disposed of the petition as the counsel for the parties had agreed that negotiations between the Management and the Collective Bargaining Agent would be completed within a period of one month---Same issue could not again be raised by the petitioners before the Bench of National Industrial and Relations Commission---If petitioners had any grievance, they could approach the proper forum---Petitioners, having failed to make out a case of unfair labour practice, petition and stay application, stood dismissed, in circumstances.

M. Pervez Khan Tanoli for Petitioners.

Faisal Mahmood Ghani for Respondent No.1.

Ch. M. Ashraf Khan for Respondent No.2.

2012 P L C 30

[National Industrial Relations Commission]

Before Bashir Ahmed Memon, Member

Mirza MAQSOOD AHMED and 3 others

Versus

IMTIAZ LODHI and 2 others

No.4A(161)/2010-K/24(183)/2010-K, decided on 7th December, 2010.

Industrial Relations Ordinance (XXIII of 1969)---

----S. 22-A(8)(g)---Unfair labour practice by employer---Petitioners who were working as officers, had asserted that they formed an Association of Officers and applied for its registration, but same had not been registered; they claimed that they had submitted some demands to the employers which were declined and that due to that act of the petitioners, the employers were annoyed and had started threatening them of dire consequences and had also issued charge-sheets to them---Validity---Prayer made in the petition, could only be made by a workman having relation with a Trade Union of workmen and not by officer who claimed that he was member of "Officers Association", which was a combination of officers/employers---Under provisions of S.22-A(8)(g) of Industrial Relations Ordinance, 1969, National Industrial Relations Commission could deal with the cases of unfair labour practice by the employers, when it was filed by the workmen or the Trade Union of workmen, which was Collective Bargaining Agent---Terms and conditions of the persons falling outside the purview of labour laws, were normally governed by the simple rule of "Master and Servant" unless, there were statutory Rules governing such terms and conditions---Petitioners themselves had admitted that they were officers and had formed an Officers Association, those type of associations were only to observe social and welfare activities, but would not raise any industrial dispute as Collective Bargaining Agent; they could not be termed as workmen---Petition was not maintainable, in circumstances.

PLD 1988 SC 53 rel.

1982 PLC 26; 1979 SCMR 382; PLD 1975 Kar. 342; 1998 PLC 172 and Allied Bank of Pakistan v. Muhammad Humayun Khan and others 1988 SCMR 1664 ref.

Muhammad Ali for Petitioners.

Khalid Imran and Shahzad Wilson for Respondents.

2012 P L C 75

[National Industrial Relations Commission]

Before Ch. Shaukat Nawaz Goraya, Member

NAZIR AHMED GILL

Versus

HABIB BANK LTD. and 2 others

Case No.4A(33)/11-L of 2011, decided on 27th September, 2011.

Industrial Relations Act (IV of 2008)---

----S. 25(8)(g)---Unfair labour practice by the employers---Employee who brought petition against alleged unfair labour practice by the employers, his services had already been terminated and his dues which were calculated, were credited in the account of the employee and he had withdrawn the same---Employee who was no more in service of the employers, no cause of action had remained available to him against the employers---Petition which had become infructuous, could not proceed.

Ch. Waqar Ahmed for Petitioner.

Faisal Mehmood Ghani for Respondents.

2012 P L C 247

[National Industrial Relations Commission]

Before Ghulam Nabi Deeshak Registrar/Authorised Officer

SUI SOUTHERN GAS WORKERS UNION

Versus

SUI SOUTHERN GAS COMPANY LIMITED

Case No.7A(15) of 2011, decided on 6th January, 2012.

Industrial Relations Act (IV of 2008)---

----S. 24---Collective Bargaining Agent---Determination---Holding of referendum---Referendum had been ordered to be held in the establishment and necessary pre-condition was that the workers should be in possession of an appointment letter of contract of the employer-company, and they should be in the employment for at least three months---According to the list of employees, workers were working on daily wages/contract in the company since more than 20 years, but they were not regularized and the employer-company was paying the salary to them through contractors---Employees had failed to produce letters of appointment or any evidence showing that those workers were employed by the Employer/company; also could not produce proof of membership, which could reflect that they were members of the union and paying subscription to it---Application filed by employees seeking to cast their votes in the referendum, was rejected, in circumstances.

M. Tariq Farooqi, President for Petitioner.

Faisal Mahmood Ghani for Respondent.

2012 P L C 268

[National Industrial Relations Commission]

Before Rashid Aziz Khan, Chairman

U.B.L. EMPLOYEES AND WORKMEN UNION (SINDH AND BALOCHISTAN), KARACHI through Chairman

Versus

UNITED BANK LIMITED and 2 others

Cases Nos.19(06) and 19(07) of 2011, decided on 8th February, 2012.

Industrial Relations Act (IV of 2008)---

----Ss. 4 & 9---Application for registration of Trade Union---Person who claimed to be acting President of Labour Union registered at local level in Sindh Province had moved an application for impleading him as a necessary party to the proceedings---Since applicant union was registered with Registrar Trade Unions Sindh under the Industrial Relations (Revival and Amendment) Act, 2010, which was a Provincial Act, application for impleading as party could not be entertained in the case---Applicant had no locus standi as its registration application was yet to be decided by the Registrar Trade Unions/NIRC---Applicant being a local union, if so desired could amend its constitution by opening its membership to workers employed in their respective Collective Bargaining Unit, within one month and get itself registered with NIRC as a union of Trans-provincial character---Order accordingly.

2001 PLC 135 ref.

Mushtaq Hussain Bhatti for Petitioner (in both cases).

Faisal Mahmood Ghani for Respondent No.1 (in both cases).

Saleem Sheikh, General Secretary, for Respondent No.2 (in case No.19(6) of 2011).

Wasif Dar, General Secretary for Petitioner/respondent No.3 (in both cases).

Zafar Iqbal for Respondent No.3 (in case No.19(7) of 2011).

Habibullah Khan, General Secretary for Respondent No.2 (in case No.19(7) of 2011.

2012 P L C 274

[National Industrial Relations Commission]

Before Ch. Shaukat Nawaz Goraya, Member

ASAD SHAHBAZ

Versus

UNITED BANK LIMITED and others

Case No.7(51)/09-L, decided on 23rd November, 2011.

Industrial Relations Act (IV of 2008)---

----S. 27---Violation of order of the National Industrial Relations Commission---Contempt petition---Employee had brought complaint under S.27 of Industrial Relations Act, 2008 against the employers alleging that he had been thrown out of service due to the reason that he complied with the orders of the Commission against the instructions of the employers---Complainant had prayed that employers be summoned and proceeded against for committing contempt of the Commission and be punished in accordance with law---Complainant had not pointed out as to which order of the Commission was violated by the employers---Complainant had challenged his termination order by filing his grievance petition before the Labour Court---Complainant who had already approached the Labour Court for redressal of his grievance, could not be allowed to take two parallel proceedings simultaneously to get the relief---Contempt petition being not maintainable, was dismissed, in circumstances.

Zulfiqar Hussain Awan v. U.B.L. Complaint No.4A(341)/09-L ref.

Ch. Waqar Ahmed for the Complainant.

Faisal Mehmood Ghani for Respondents Nos.1 to 6.

2012 P L C 155

[Peshawar High Court]

Before Miftah-ud-Din Khan and Mian Fasih-ul-Mulk, JJ

TELEPHONE INDUSTRIES OF PAKISTAN (PVT) LTD. through Managing Director and another

Versus

COMMISSIONER WORKMENS' COMPENSATION, HAZARA DIVISION AT HARIPUR and another

Writ Petition No.76 of 2005, decided on 7th April, 2011.

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

----S.O. 10-B---Payment of Wages Act (IV of 1936), S.15---Constitution of Pakistan, Arts.199 & 212---Constitutional petition---Claim for recovery of Group Insurance---Jurisdiction of Commissioner Workmen's Compensation---Employee/husband of respondent who was employed purely on temporary basis against a contract of 87 days, died his natural death during employment---Widow of deceased employee/respondent instituted a claim for the recovery of Group Insurance in respect of her deceased husband before Commissioner of Workmen's Compensation, who accepted claim of respondent holding her entitled for Compulsory Group Insurance---Validity---Letter of appointment specifically mentioned that appointment of deceased employee was temporary liable to terminate at any time without any notice or pay in lieu thereof from either side and that deceased would only be entitled for medical facility for self and family as were available in the Hospital subject to the Rules in force---Deceased employee as per appointment letter was not entitled for any other allowance or Group Insurance---Standing Order 10-B of Industrial and Commercial (Standing Orders) Ordinance, 1968, did not apply to a contract employee---Question of insurance would only be applicable in the case of permanent worker---Commissioner of Workmen's Compensation was not justified to assume jurisdiction under Payment of Wages Act, 1936 as the scope of his functions was very limited and he could not adjudicate upon the complicated and intricate question of law and facts---Authority under Payment of Wages/Compensation, would exercise summary jurisdiction and could not determine the status of workman---Impugned order which was passed by Commissioner in excess of jurisdiction vested in him by law, was set aside.

2000 PLC (C.S.) 1082; 2003 PLC 184; 1992 PLC 1142; 2001 PLC 28 and Lawrencepur Woollen and Textile Mills Ltd. v. Government of the Punjab and others PLD 2004 SC 416 ref.

Abdur Rehman Qadri for Petitioners.

Qazi Rashid Ahmed Arshid for Respondents.

Date of hearing: 7th April, 2011.

2012 P L C 407

[Peshawar High Court]

Before Waqar Ahmad Seth, J

ALAM KHAN

versus

BOARD OF INTERMEDIATE AND SECONDARY EDUCATION

Civil Revision Petition No.1330 of 2011, decided on 3rd September, 2012.

North-West Frontier Province Civil Servants Act (XVIII of 1973)---

----S. 19(2)---Termination of service on basis of un-authorized absence from duty---Services of the petitioner employee of Board of Secondary Education, were terminated on the basis of un-authorized absence from duty for more than one month---Absence from duty without permission was a misconduct and for punishing an employee on account of such misconduct, a regular inquiry was mandatory---Record had revealed that after the receipt of reply of the petitioner to the show-cause notice wherein he had clarified his position, he was not given the chance of personal hearing before issuing him termination order---Very order of termination in the circumstances, was against the principles of natural justice---Medical certificates issued, by the Medical Officer, showed that the petitioner had backache/sciatic problem and was advised one month bed rest---When illness was alleged and the Doctor was supporting the version of the petitioner, same could not be denied---Record had revealed that before the termination of the petitioner, a number of employees were regularized and the Policy/law of regularization of contract employees was adopted by the establishment---On the day when petitioner's services were terminated, he was a regular employee of the establishment, by operation of law---Employers having not conducted an inquiry into the charges in the event of alleged misconduct of the petitioner, the proceedings as initiated, conducted and concluded against the petitioner, were against the contract as well as against the law---Impugned judgments of lower fora being based on non-reading and misreading of evidence and record besides being contrary to the law, termination order was set aside and petitioner was reinstated in service with full back benefits and wages, in circumstances.

1997 SCMR 1552 rel.

Khalid Rehman for Petitioner.

Amir Afzal for Respondent.

Date of hearing: 3rd September, 2012.

2012PLC35

[Punjab Labour Appellate Tribunal]

Before Abdul Hafeez Cheema, Chairman

IMRAN ASHRAF

Versus

LAHORE MEDICAL INSTRUMENTS

PRIVATE LIMITED through Chief Executive Appeal No.RI-2311 of 2010, decided on 3rd February, 2011.

Punjab Industrial Relations Ordinance (XIX of 2010)--

---Ss. 2(xxxi), 33 & 47---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(i) & 5.0.12---Termination of service---Grievance petition-"Workman"---Status of---Determination--Test---Employee who joined the employer company as Medical Information Officer, in due course of time, got promotion to the rank of Zonal Manager Sales; his services had been terminated by means of a verbal order---Grievance petition by the employee was dismissed by Labour Court on the ground that he being a senior Executive was not a 'workman' and Labour Court had no jurisdiction to entertain and try his grievance petition---Acid test for' the determination as to whether an employee was a "workman" or not, was the nature of the duties performed by him---Employee would be 'workman', if the duties performed by him were manual or clerical in nature and not otherwise---Employee being Zonal Manager, was expected to display the quality of initiative and drive, intelligence; and correct speculation; and doing that he was given some independence in his line of action and he was expected to use his mental faculties to find new avenues of sales promotion---Employee, in circumstances, ,was not a "workman" and Labour Court had rightly dismissed his grievance ,petition.

PLD 1961 SC 403; 2005 SCMR) 049; 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

Waleed Said Ullah for Appellant. Ch. Umar Hayat for Respondent Date of hearing: 3rd February, 2011.

2012 P L C 40

[Punjab Labour Appellate Tribunal]

Before Abdul Hafeez Cheema, Chairman

CHIEF EXECUTIVE, MEPCO, MULTAN and another

Versus

ALLAH BACHAYA SAJJAD and another

AppealseNos.MN-2636 and 2695 of 2010, decided on 25th February, 2011.

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

----S.O. 15---Punjab Industrial Relations Act (XIX of 2010), Ss-33 & 47---Removal from service---Grievance petition---Limitation---Employee who was removed from service on ground'of absence from duty for one month and eleven days, filed grievance petition after 8 long years in the Labour Court, which was allowed vide impugned judgment---Employee after rejection of his departmental appeal, instead of filing appeal against judgment of Labour Court, remained busy in sending reminder after reminder and approaching the Prime Minister with a request to intervene in the matter, but his efforts did not bear fruit and were a sheer wastage of time---Employee thus did not appear to have come to the court with clean hands---Matter which at the maximum after the rejection of departmental appeal should have reached the appropriate forum within 120 days, had taken 8 years---Matter being barred by time, court could not go into the merits of the controversy between the parties--Grievance petition by the employee being barred by time, Labour Court was not justified to assume the jurisdiction showing unnecessary latitude in granting relief to the employee, which was unjustified---If such a colossal delay was excused, same would be highly against the spirit of legislation on the subject and would destroy its effectiveness---Impugned judgment of Labour Court being not sustainable, was set aside, in circumstances.

Fazal Elahi Siddiqui v. Government of Pakistan through Secretary Establishment and 2 others PLD 4990 SC 692 and wall Muhammad Khokhar v. Government of Sindh and others .2001 SCMR 912 rel.

Rao Muhammaa Iqbal for Respondent.

Ashfaq Ahmad Khan for Respondent.

Date of hearing: 21st February, 2011.

2012 P L C 47

[Punjab Labour Appellate Tribunal]

Before Abdul Hafeez Cheema, Chairman

MUHAMMAD ASGHAR

Versus

WYETH PAKISTAN LIMITED through Assistant Director and others

Labour Appeal, No.LHR-289 of 2009, decided on 5th August, 2011.

Industrial Relations Ordinance (XCI of 2002)---

----S. 46(1), (6) & (7)---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.0.12---Termination of service---Grievance petition---Reinstatement---Implementation of order of reinstatement in service---Employee whose services were terminated, filed grievance petition, which was allowed by the Labour Court with direction that employee should be reinstated with immediate effect with full back benefits---Employee was reinstated, but after only three days, services of the employee were arbitrarily terminated, allegedly due to closure of plant of employers/establishment---Establishment filed appeal before Labour Appellate Tribunal, and stay order was granted to the establishment with respect to back benefits only; in the mean time Punjab Labour Appellate Tribunal was abolished and pending cases including case of employee were transferred to High Court---Establishment, had withdrawn the appeal filed by it against judgment of the Labour Court, which judgment had attained finality after withdrawal of appeal by the establishment---Law required that act of reinstatement, ought not to be an empty formality, but it must be real .and adequate and not a normal or sham---Act of reinstatement for three days, when appeal of employee was still pending and ultimately was withdrawn by the establishment, order of the Labour Court had attained finality---Said facts had reflected the mala fides of the establishment, which tantamount to a fraud on the statute---Even otherwise under S.47 of Industrial Relations Ordinance, 1969, terms and conditions of service would remain unchanged, which proceedings were pending---Termination which had been made after three days of reinstatement in service, had no legal effect---Said termination of employee was equally unwarranted and in violation of provision of S.47 of Industrial Relations Ordinance, 1969, and would have no sanctity or bearing on the case of the employee---When an establishment was taken over by another company, the employees of the establishment would go with the work and question of creating new posts would not arise and permanent employees of taken-over/merged establishment could not be terminated without any just cause.

Ms. Farzana Bilqees Chaudhry for Appellant. Syed Qamar-ud-Din Hassan for Respondents.

Date of hearing: 12th July, 2011.

2012PLC61

[Punjab LabourAppellate Tribunal]

Before Abdul Hafeez Cheema, Chairman

UNITED BANK LIMITED through

President United Bank Limited

Versus

AZIZ AHMED SHEIKH

Revision Petition No.RI-13 of'2011, decided on 8th April, 2011.

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

---Ss. 33 & 47(3)---Permissible benefits---Entitlement---Petitioner/bank had impeached the validity of the order passed by the Labour Court, whereby the court had ordered that the permissible benefits, if due to the aggrieved employee could not be unnecessarily refused to him due to pendency of the grievance petition---Impugned order was uncertain and vague as it had not been pointed out as to what type of benefits/facilities were legally permissible to the employees; which had been denied to them by the petitioner/bank--Such order was not sustainable---Case was remanded to the Labour Court, with the direction that employee would be at liberty to submit fresh application mentioning the details of the facilities/benefits legally permissible to him.

Mian Muhammad Saleem for Petitioner.

Asmat Kamal Khan for Respondent.

Date of hearing: 8th April, 2011.

2012 P L C 114

[Punjab Labour Appellate Tribunal]

Before Abdul Hafeez Cheema, Chairman

HEAD HUMAN RESOURCE MANAGEMENT MCB BANK, LAHORE and others

Versus

MUHAMMAD SHEHZAD and others

Revision Petitions Nos.GA-3739 to GA-3741 of 2010, decided on 8th February, 2011.

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

----Ss. 33 & 47(5)---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(i), S.O.15---Civil Procedure Code (V of 1908), O.VII, R.11---Dismissal from service and compulsory retirement---Grievance petition---Application for rejection of petition---Workman---Status---Determination---Test---Employees serving in the bank, had been awarded penalty of dismissal/compulsory retirement after long service---During pendency of grievance petition filed by the employees, counsel for bank moved application under O.VII, R.11, C.P.C. for rejection of grievance petition, contending that employees not being workmen, their grievance petition be dismissed for want of jurisdiction---Acid test for determining the status of a workman, was the nature of his duties, but where there were conflicting claims of the parties, then such issue could be determined by recording of evidence and not otherwise---In the present case, neither copies of the application filed under O.VII, R.11, C.P.C. nor their replies as well as the copies of the grievance petitions and their replies had been filed for proper appreciation of the cases---Application for rejection of grievance petition, was rightly dismissed by the Labour Court on the grounds that factual controversy could not be resolved without recording evidence and that revision petitions were not properly documented.

Parvez I. Mir for Petitioners.

Date of hearing: 8th February, 2011.

2012 P L C 121

[Punjab Labour Appellate Tribunal]

Before Abdul Hafeez Cheema, Chairman

TEHSIL MUNICIPAL ADMINISTRATION, CHINIOT through Administrator and 2 others

Versus

QASIM ALI

Appeal No.SA-2421 of 2010, decided on 17th February, 2011.

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

----S. 2(i) & S.O. 1(b)---Industrial Relations Act (XIX of 2010), Ss.33 & 47---"Permanent workman"---Status---Determination---Grievance petition---Employee who in the first instance was appointed as driver, voluntarily resigned and was relieved of his duties---Employee again approached the employer and requested for re-appointment---Vacancy of driver was available, but he was appointed as Sanitary Worker and was performing the duties of driver throughout and paid salary of the Sanitary Worker---Grievance petition filed by the employee was allowed with direction to the employers to consider the petitioner as a regular employee---Employee, after second appointment had throughout been working as a driver, his work and conduct had been very good and the post of the driver had all along been available---Employee had been performing the duties of a driver and the post of driver all along had been vacant, employee, in circumstances would be deemed to be employed as a driver and his employment in view of his continuous service for more than the mandatory period would be deemed to be permanent---In absence of any flaw or infirmity in the impugned order of Labour Court same was upheld.

Abdul Razzaq Rajab for Appellants.

Altaf Hussain Qureshi for Respondent.

Date of hearing: 17th February, 2011.

2012 P L C 124

[Punjab Labour Appellate Tribunal]

Before Abdul Hafeez Cheema, Chairman

GHULAM SARWAR

Versus

GENERAL MANAGER, ITTEHAD CHEMICAL (PVT.) LIMITED and others

Revision Petition No.LHR-205 of 2009, decided on 15th July, 2010.

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

----Ss. 15 & 17---Punjab Industrial Relations Act (XIX of 2010), Ss.33 & 47(5)---Refusal to grant gratuity---Employee who initially joined the service as Supervisor, subsequently was made Deputy Manager Shift Incharge---Claim of employee for gratuity having been refused by the Management, employee approached Authority under the Payment of Wages Act, 1936, which Authority also did not accept the claim of the employee and he filed appeal under S.17 of the Payment of Wages Act, 1936, but same was also dismissed---Validity---Claim of the employee was that he was a workman, but his request for payment of gratuity was refused by the department on the ground that employee being an officer in supervisory capacity, was not entitled to gratuity---Employee, being supervisory officer, had the authority to recommend the application for overtime and for casual leaves; he had no Social Security Card, which was issued to the workers---Duties of the employee were that of supervisory and managerial nature---Employee having all the attributes of an officer, had rightly been refused the desired relief.

Dilshad Khan Lodhi v. Allied Bank of Pakistan and others 2007 PLC 41 and PLD 1994 SC 273 rel.

Mian Javed Jalal for Petitioner.

S.A. Naeem for Respondent No.1.

Date of hearing: 15th July, 2010.

2012 P L C 147

[Punjab Labour Appellate Tribunal]

Before Abdul Hafeez Cheema, Chairman

EXECUTIVE DISTRICT OFFICER (WORKS AND SERVICES) DISTRICT GOVERNMENT, JHANG and others

Versus

MUHAMMAD NAWAZ and others

Appeals Nos.SA-3313 to 3315 of 2010, decided on 19th May, 2011.

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

----S.O. 1(1)(b)---Punjab Industrial Relations Act (XIX of 2010), Ss.33 & 47---Permanent workman---Status of---Regularization of service---Grievance petition---Employees who were low paid, were appointed as work charge employees against permanent posts---Appointment of such employees ranged from the years 1993, 2001 and 2006; they continued to serve the department without any break or blemish and were being paid their salaries regularly---Request of the employees for regularization of their service having not been considered by the department they filed grievance petition, which petition was accepted by the Labour Court---Validity---Employees had been regularly serving in the department, but they were issued letters in order to ensure that they could not claim permanent status of their employment---Number of colleagues of the employees had already been regularized by the department, but the employees had been deprived for the same---Work for which the employees had been performing their duties was of permanent nature and they had been rendering services for a long period, which was much beyond the period contemplated by provisions of Standing Orders Ordinance, 1968---Employees could not be said to be temporary workers, but as they had been working against permanent posts, had become permanent workers by length of their service---Labour Court, in circumstances, had rightly accepted grievance petition of the employees with direction to the department to pay all arrears of the salaries to the employees as regular employees---Appellate Tribunal, however allowed 50% back-benefits and with such modification appeal was dismissed and judgment of the Labour Court was upheld.

Ikram Bari v. National Bank of Pakistan 2005 SCMR 100 and Hameed Akhtar Niazi's case 1996 SCMR 1185 rel.

Muhammad Younus Joiya for Appellants.

M.H. Sajid Sial for Respondents.

Date of hearing: 19th May, 2011.

2012 P L C 152

[Punjab Labour Appellate Tribunal]

Before Abdul Hafeez Cheema, Chairman

ADAM SUGAR MILLS LTD., CHISHTIAN DISTRICT BAHAWALNAGAR through Project Director and General Manager and others

Versus

MUHAMMAD IQBAL and others

Revision Petitions Nos.BR-146 to 150 of 2011, decided on 19th May, 2011.

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

----Ss. 33 & 47(5)---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O. 1(1)(b)---Regularization of service as permanent workmen---Grievance petitions along with applications for grant of stay order, was filed by the employees for regularization of their services, claiming as permanent workmen---Employees has also claimed that as they were not being paid their salaries, direction be issued to the establishment to continue to pay their wages during pendency of their grievance petitions---Application of the employees to the extent of releasing the monthly salary was accepted and the establishment was directed to pay the monthly salary to the employees till next date of hearing---Employees had claimed regularization on account of length of their services and matter was pending before the Labour Court---Labour Court's order that during the pendency of grievance petitions of the employees they would be paid salaries, appeared to be in consonance with the dictates of law and there appeared to be no defect, flaw or infirmity in that order---Establishment was unhappy with trade union activities of the employees and did not allow them to enter into the Mills, because they allegedly were promoting the Trade Unionism and creating unnecessary problems for the Management---Such issue could be resolved only after recording of evidence of the parties, being a factual controversy, till then Establishment should comply with the order, and defiance on their part could not be appreciated in any way---Management had decided to issue notice for misconduct to the employees---If the Management could make out a case of misconduct, it could proceed with the same and if it was a counterblast to their trade union activities that would have no legal sanction behind it---Management should comply with the order of the Labour Court, which was lawful and valid.

Omar Alvi for Petitioners.

Ch. Saeed-ur-Rehman Cheema for Respondents.

Date of hearing: 19th May, 2011.

2012 P L C 158

[Punjab Labour Appellate Tribunal]

Before Abdul Hafeez Cheema, Chairman

Miss FARAH NAZ

Versus

GENERAL MANAGER (ADMN.) MILLAT TRACTOR LIMITED, LAHORE and another

Appeal No.LHR-3498 of 2010, decided on 22th April, 2011.

Industrial Relations Ordinance (XXIII of 1969)---

----S. 25-A---Resignation by employee---Grievance petition---Employee had alleged that her resignation was a result of undue coercion and duress, exercised upon her by Admn. Manager of the employer company---Witnesses examined by the employee had not said anything to establish that employee was subjected to any coercion, force, or duress to resign from her job---Evidence on record did not reveal that employee was forced to resign by the employers, but she had resigned of her own accord---Employee had not bothered even to serve grievance notice within the prescribed period of three months---Grievance petition had also been filed after an inordinate delay of over eleven months from the day of the acceptance of her resignation, for which no sufficient cause had been shown---Labour Court, in circumstances, had rightly dismissed grievance petition of the employees.

Raja Kamran Aslam for Appellant.

Javed Altaf for Respondents.

Date of hearing: 15th February, 2011.

2012 P L C 166

[Punjab Labour Appellate Tribunal]

Before Abdul Hafeez Cheema, Chairman

ALLIED BANK LIMITED and others

Versus

KHALID HUSSAIN and others

Appeals Nos.MN-193, MN-151 and Contempt Petition No.MN-43 of 2009, decided on 2nd May, 2011.

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

----S.O. 15---Industrial Relations Ordinance (IV of 2008), Ss.41 & 55---General Clauses Act (X of 1897), S.24-A---Dismissal from service---Grievance petition---Employee who had been found pilfering amount from the Bank coffers, realizing the very dangerous consequences of his act, readily deposited said amount in the Bank---Employee was dismissed from service after charge-sheeting and holding enquiry against him on charges of embezzlement, wilful fraud and dishonesty---Labour Court accepted grievance petition of the employee, set aside dismissal order and ordered reinstatement of the employee---Validity---When the employee had voluntarily admitted his guilt and also had deposited the embezzled amount, no further proof was required to prove the guilt of the employee---Employee could not show that enquiry proceedings were conducted in violation of the judicial norms---Employee, in circumstances, could not assert that he was not allowed to properly defend himself---Judgment of the Labour Court was not a speaking judgment and was devoid of reasons and repugnant to the provisions of S.24-A of the General Clauses Act and had a taint of arbitrariness---Impugned judgment of the Labour Court, which did not appear to meet the norms of justice, was set aside and penalty awarded to the employee, was upheld.

2003 PLC (C.S.) 1247 rel.

Farooq Zaman Qureshi for Appellants.

Muhammad Anwar Awan for Respondents.

Date of hearing: 2nd May, 2011.

2012 P L C 173

[Punjab Labour Appellate Tribunal]

Before Abdul Hafeez Cheema, Chairman

TARIQ MUNAWAR

Versus

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

Appeal No.LHR-266 of 2009, decided on 30th January, 2012.

Industrial Relations Ordinance (XCI of 2002)---

----S. 46---Grievance petition---Limitation---Grievance petition filed by the employee was dismissed by the Labour Court being barred by two months---No reasonable, plausible or confidence inspiring explanation had been rendered by the employee for such a colossal delay---Effect---No body could be allowed to circumvent the provisions of statute of limitation---Party approaching the court of competent jurisdiction for relief beyond the specified period of limitation was bound to explain each day's delay to the satisfaction of the respective forum, because valuable rights had accrued to the other side.

1989 SCMR 864 and 2006 SCMR 783 rel.

Malik Sultan Ahmed for Appellant.

Salim Baig for Respondents.

Date of hearing: 30th January, 2012.

2012 P L C 183

[Punjab Labour Appellate Tribunal]

Before Abdul Hafeez Cheema, Chairman

QUDRAT ULLAH

Versus

FACTORY MANAGER, MITCHELL'S FRUIT FARMS LIMITED RENALA KHURD, DISTRICT OKARA

Appeal No.OK-2315 of 2010, decided on 26th May, 2011.

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

----S.O. 15---Punjab Industrial Relations Act (XIX of 2010), Ss.33 & 47---Dismissal from service---Grievance petition---Employee serving as Laboratory Assistant in the employer company was dismissed from service after holding enquiry against him on ground of 'misconduct'---Allegation against employee was that he being Laboratory Assistant examined and tested condensed milk supplied by the Dairy Farms and gave wrong result and caused huge loss to the employer company and had committed misconduct---Sample of milk sent to the other Laboratory, was neither taken in presence of the employee nor was sealed in his presence; it was not proved that sample sent was from the same milk which had been tested by the employee---Objection of the employee with regard to validity/impartiality of the enquiry, was not considered by the Labour Court and employee was also not given copy of the enquiry report as well as the enquiry proceedings despite the demand of the employee---Result given by the employee, with regard to the milk tested by him, was endorsed by another Laboratory Assistant and was countersigned by Quality Control Manager; they being experienced persons, their endorsement and countersigning, had lent meaning to the report submitted by the employee---Rejection of said report with one stroke of pen, in circumstances, did not appear to be based on sound reasons---Some truth was there in the allegation that the General Manager of the factory, was not comfortable with the appointment of the employee---Employer company had failed to show that questioned result was given by the employee designedly with ulterior motive in order to cause loss to the company and wrongful gain to himself---Appeal against judgment of the Labour Court was accepted and impugned order was set aside---Employee was also awarded compensation equivalent to 25 months basic pay.

PLD 1966 SC 765 rel.

Ch. M. Khalid Farooq for Appellant.

Mian Muhammad Saleem for Respondent.

Date of hearing: 26th May, 2011.

2012 P L C 189

[Punjab Labour Appellate Tribunal]

Before Abdul Hafeez Cheema, Chairman

MUHAMMAD AZAM

versus

EXECUTIVE ENGINEER (E), GUJRANWALA ELECTRIC POWER COMPANY LIMITED MANDI BAHAUDDIN and another

Appeal No.GA-1102 of 2009, decided on 31st May, 2011.

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

----S.O. 15---Industrial Relations Act (IV of 2008), Ss.41 & 55---Compulsory retirement---Grievance petition---Appeal---Limitation---Penalty of compulsory retirement was imposed on the employee who was working in an Electric Supply Company as Meter Reader, after issuing him show-cause notice, but without holding any enquiry on ground of some irregularity---Employee after filing grievance petition remained in deep slumber for over four years, attempted to seek relief from the Labour Court---Grievance petition having been dismissed by the Labour Court, he filed appeal fourteen days after the expiry of stipulated period of filing of appeal, without plausible explanation for said delay---Employee did not appear to have come to the court with clean hands---Matter which at the maximum after rejection of the departmental appeal should have reached the appropriate forum within 120 days, but he had taken almost four years---Labour Court had properly appreciated the facts and rightly applied the law---Well reasoned order passed by the Labour Court could not be interfered with in appeal, which otherwise was time-barred.

Mubeen-us-Salam's case PLD 2006 SC 206 distinguished.

Fazal Elahi Siddiqui v. Government of Pakistan through Secretary Establishment and 2 others PLD 1990 SC 692; Wali Muhammad Khokhar v. Government of Sindh and others 2001 SCMR 912 and 2011 SCMR 676 rel.

Kh. Omer Masood for Appellant.

Syed Mujeeb ul Hassan for Respondents.

2012PLC62

[Balochistan High Court]

Before Mrs. Syeda Tahira Safdar and Muhammad Noor Meskanzai, JJ

HABIB BANK LTD. through Attorney

Versus

ABID-HUSSAIN and 2 others

Constitutional Petition No.42 of 2011, decided on 27th October, 2011.

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

----Ss. 12 & IS Termination of service simplicitor without allegation of any misconduct/act/omission provided in S.15 of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968---Show cause notice, issuance oft---Scope---Issuance of show cause notice and holding of inquiry would not be required in such case, rather issuance of one month's notice or pay in lieu thereof would fulfil the requirement of law---Illustration. [p. 70] A

Muslim Commercial Bank Ltd. v Sindh Labour Appellate Tribunal 1984 PLC 1149; National Bank of Pakistan v. Muhammad Haleem Chohan 1989 PLC 17; Messrs Katha Digwell Mines Ltd. v. Shah Muhammad alias Shah Pir 1993 PLC 173; Najeeb-ur-Rehman v. Agricultural Development Authority 1993 PLC 615; Walayat Ali Mir v Pakistan International Airlines Corporation 1995 SCMR 655 ref.

Javed Asghar for Petitioner

Nasir Khan Yousafzai for Respondent No.l.

Date of hearing: 11th April, 2011.

2011 P L C 89

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Muhammad Sair Ali and Ghulam Rabbani, JJ

AIR LEAGUE OF PIAC EMPLOYEES through President

Versus

FEDERATION OF PAKISTAN, M/O. LABOUR AND MANPOWER DIVISION ISLAMABAD and others

Constitutional Petition No. 24 of 2011, decided on 2nd June, 2011.

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

----Ss. 25 & 87(3)--- Constitution of Pakistan, Arts. 144(1), 264 & 270-AA [as substituted by Constitution Eighteenth Amendment Act (X of 2010)]---General Clauses Act (X of 1897), Ss. 6 & 24---National Industrial Relations Commission (NIRC), remedy before---Automatic repeal of Industrial Relations Act, 2008 on 30-4-2010 after completion of its statutory period provided in S. 87(3) thereof--- Legislative measure to supersede Industrial Relations Act, 2008 or extend such period 30-4-2010 not taken by respective Provincial Assemblies till June and July 2010 after passing of Eighteenth Constitutional Amendment on 20-4-2010---Availability of protection to Industrial Relations Act, 2008 upto 30-6-2011 under Art. 270-AA of the Constitution---Scope---Industrial Relations Act, 2008 continued to be in force till 30-4-2010 despite abolition of Concurrent Legislative List---Industrial Relations Act, 2008 was a temporary legislation, which stood repealed automatically on 30-4-2010 in terms of S.87(3) thereof---Protection provided under Art.270-AA of the Constitution to all permanent laws enacted by Parliament on subjects mentioned in Concurrent Legislative List did not have any effect on S. 87(3) of the Act, which remained operative till 30-4-2011---Neither S. 6 of General Clauses Act, 1897 nor Art. 264 of the Constitution would apply to Industrial Relations Act, 2008, which was not repealed by any other legislation, rather same was repealed by its own force on expiry of period mentioned in S.87(3) thereof---Industrial Relations Act, 2008 was not an Ordinance, but was an Act of Parliament---No sooner did the Act lapse on 30-4-2010, neither Industrial Relations Ordinance, 2002 nor Industrial Relations Ordinance, 1969 could occupy field on the strength of S. 6 of General Clauses Act, 1897 or Art. 264 of the Constitution---After abolition of Concurrent Legislative List by means of Eighteenth Constitutional Amendment, no federal legislation could be made on labour matters except recourse to provisions of Art. 144(1) of the Constitution---Respective Provincial Assemblies had enacted respective laws on subject of labour and trade unions after about two months of expiry of Industrial Relations Act, 2008, during which there was no legislation on the subject---Industrial Relations Laws being procedural in nature would apply retrospectively w.e.f. 1-5-2010---After newly enacted Provincial Laws dealing with industrial disputes, persons having any grievance could approach appropriate new forum provided under respective Provincial Laws---Mere change of forum would not affect rights of a person---During interregnum period w.e.f. 30-4-2010, when no Industrial Relations Law was holding field, workers had remedy under ordinary laws prevailing at such time as in absence of a special law, ordinary/general laws would come forward to fill in the vacuum---Principles.

Commissioner of Income Tax v. Ebrahim D. Ahmed 1992 PTD 1353; Pir Sabir Shah v. Shad Muhammad Khan PLD 1995 SC 66; Federation of Pakistan v. M. Nawaz Khokhar PLD 2000 SC 26; State v. Muhammad Sharif PLD 1960 Lah. 236; The Sargodha Bhera Bus Service Limited v. The Province of West Pakistan PLD 1959 SC 127; Gooderham and Worts v. C.B. Corporation AIR 1949 PC 90; State of Orrissa v. Bhupendra Kumar Bose AIR 1962 SC 945; Qudrat Ullah v. Municipal Board, Barelly AIR 1974 SC 396; Ameer-un-Nissa Begum v. Mahboob Begum AIR 1955 SC 352 and Hansraj Moolji v. The State of Bombay AIR 1957 SC 497 ref.

Government of N.-W.F.P. v. Said Kamal Shah PLD 1986 SC 360; Sarfraz v. Muhammad Aslam Khan 2001 SCMR 1062; Gul Hassan and Co. v. Allied Bank of Pakistan 1996 SCMR 237; Adnan Afzal v. Sher Afzal PLD 1969 SC 187 and Mastak v. Lal PLD 1991 SC 344 rel.

(b) Words and phrases---

----"Sunset law"---Definition

World Book Dictionary and Advanced Law Lexicon: 3rd Edition ref.

(c) Interpretation of statutes---

----Procedural law has retrospective effect, unless contrary is provided expressly or impliedly.

(d) Administration of justice---

----Mere change of forum would not affect rights of a person.

Adnan Afzal v. Sher Afzal PLD 1969 SC 187 rel.

(e) Interpretation of statutes---

----Repeal of special law---In the absence of special law (repealed), ordinary/general laws would come forward to fill in the vacuum.

Abdul Hafeez Amjad, Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for Petitioner

Maulvi Anwar-ul-Haq, Attorney-General on Court Notice.

Mehmood Abdul Ghani, Senior Advocate Supreme Court as Amicus Curiae.

Date of hearing: 10th May, 2011.

2012 P L C 232

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Muhammad Sair Ali, Ghulam Rabbani and Khalil-ur-Rehman Ramday, JJ

SUO MOTU CASE NO. 6 OF 2010: In re

(SUO MOTU ACTION REGARDING PAYMENT OF PRESCRIBED MINIMUM WAGES TO THE SECURITY GUARDS WORKING IN PTCL)

Suo Motu Case No. 6 of 2010, decided on 14th February, 2011.

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

----S. 4---Constitution of Pakistan, Arts. 9 & 184---Minimum wages @ Rs. 7,000 per month for unskilled workers/labourers---Applicability of such wages to private and official organizations in Islamabad Capital Territory and other Provinces---Scope---Such wages would apply to all organizations falling within ambit of Labour Laws---Security Guards arranged by Security Agencies working in Pakistan Telecommunication Corporation Limited must get such wages---Supreme Court emphasized on implementation of such law in letter and spirit.

Muhammad Munir Pieracha, Advocate Supreme Court, Afnan Karim Kundi, Advocate Supreme Court and Zahida Awan, G.M. (Legal), PTCL for PTCL.

Javed Iqbal, CLA on behalf of Secretary, Ministry of Labour and Manpower, Government of Pakistan, Islamabad, Dr. Ijaz Muneer, Secretary, Labour and Manpower Department, Government of the Punjab, Lahore, Mukhtar Soomro, Secretary, Labour and Manpower Department, Government of Sindh, Aftab Ahmed Khan, Additional Secretary, Lahore and Manpower Department, Government of Khyber Pakhtunkhwa, Peshawar, Haji Abdul Qayyum Kakar, Secretary Labour and Manpower Department Government of Balochistan, Quetta and Tariq Mehmood Pirzada, Chief Commissioner, ICT along with Raja Akbar Hayat, Director ICT on Court Notice.

Date of hearing: 14th February, 2011.

2012 P L C 240

[Supreme Court of Pakistan]

Present: Sarmad Jalal Osmany and Gulzar Ahmed, JJ

MUHAMMAD MUSA

Versus

HABIB BANK LIMITED and others

C.A. No.1157 of 2008, decided on 11th April, 2012.

(On appeal from the judgment dated 29-5-2007, passed by the Lahore High Court, Lahore, in Labour Appeal No.87 of 2004).

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

----S.Os. 15(2)(iv) & 15(3)(b)--- Misconduct---- Submission of bogus examination result, mark-sheet and certificate to gain promotion---Effect---Employee (appellant) was serving as a guard at the Bank (respondent) and applied for promotion as cashier, for which purpose he submitted result sheet, certificate and mark-sheet of his intermediate examination, along with a letter of the Controller of Examination of the Education Board---Said documents were found to be bogus and show cause notices were issued to the employee---Regular inquiry was conducted in which employee was found to be guilty and his services were terminated---Grievance petition of employee was allowed by the Labour Court by ordering his reinstatement with back benefits---High Court set aside said order of Labour Court---Contentions of the employee were that submission of bogus intermediate certificate did not amount to misconduct under Standing Order 15(3) of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, and that employee had a long service with the bank because of which some leniency should be extended to him and his punishment be reduced---Validity---Acts and omissions of the employee squarely fell within Standing Order 15(3)(b) of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, in that by producing bogus intermediate mark-sheet and certificate , the employee committed fraud and dishonesty, and further by obtaining benefit of promotion on the basis of such mark-sheet/certificate, the employee again committed fraud and dishonesty in respect of employer's business and property in that he procured for himself unlawful gain in the form of monetary benefits which amounted to defrauding the property of the employer---Act of employee rendered him liable to be punished in terms of Standing Order 15(2)(iv) of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, which was dismissal from service without payment of compensation in lieu of notice---No mitigating circumstances having been found on the basis of which any lenient punishment might be substituted---Appeal was dismissed by Supreme Court, in circumstances.

Messrs Millat Tractors Limited v. Punjab Labour Court No.3, Lahore and 2 others 1996 SCMR 883 distinguished.

Anwar Ali and another v. Chief Executive Hesco (WAPDA) Hyderabad and others 2009 SCMR 1492 ref.

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

----S.O. 15(3)(b)---Gaining promotion in bank through fraudulent and dishonest means---Scope and effect---Employee who gains promotion in a bank through fraudulent and dishonest means, amounts to commission of fraud and dishonesty in the business and with the property of the bank and same will fall within the mischief of Standing Order 15(3)(b) of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, which on being proved will render the employee to be dealt with punishment of dismissal from service.

Abid Saqi, Advocate Supreme Court for Appellant.

Mian Abdul Rashid, Advocate Supreme Court for Respondents.

Date of hearing: 11th April, 2012.

2012 P L C 249

[Supreme Court of Pakistan]

Present: Mian Hamid Farooq and Syed Sakhi Hussain Bukhari, JJ

QAISAR and others

Versus

MUHAMMAD SHAFAQAT SHARIF

Civil Petition No.90-L of 2009, decided on 27th May, 2009.

(On appeal from the judgment dated 18-11-2008 of the Lahore High Court, Lahore passed in Labour Appeal No.393 of 2005).

Industrial Relations Ordinance (XCI of 2002)---

----Ss. 2(xxx) & 46---Removal from service---Production Supervisor---Abolition of post---Grievance petition---Petitioner's plea was that he was removed from service without any show-cause notice or inquiry---Employer's plea was that petitioner was not a "workman", thus, Labour Court had no jurisdiction to hear the petition---Validity---Record showed that petitioner was not provided right to defend himself---Employer did not cross-examine petitioner's statement to the effect that he performed his functions manually---Not the designation, but nature of duty would determine whether a person was a "workman" or not---Petitioner was a "workman", thus Labour Court had jurisdiction to decide the petition---Impugned order for lacking reasons did not fulfil legal requirements---Record showed that persons junior to petitioner were still holding their posts, thus, employer's stance that post of petitioner had been abolished stood negated---Grievance petition was accepted in circumstances.

PLD 1999 SC 231 rel.

Malik Rab Nawaz, Advocate Supreme Court for Petitioners.

Nemo for Respondent.

Date of hearing: 27th May, 2009.

2012 P L C 251

[Supreme Court of Pakistan]

Present: Sarmad Jalal Osmany and Amir Hani Muslim, JJ

KARACHI CHAMBER OF COMMERCE AND INDUSTRY, KARACHI

Versus

SINDH LABOUR COURT NO. V, KARACHI and others

Civil Appeal No. 61-K of 2010 out of Civil Petition No. 66-K of 2010, decided on 21st July, 2011.

(Against the judgment dated 1-12-2009 passed by High Court of Sindh, Karachi in Constitutional Petition No. S-295 of 2005).

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

----S. 2(xiv)---Industrial Relations Ordinance (XCI of 2002), S.2(xvii)---Term "industry" as defined in S. 2(xiv) of Industrial Relations Act, 2008 and S. 2(xvii) of Industrial Relations Ordinance, 2002---Distinguishing features stated.

Industry is essentially a human activity in which capital and labour are conjoined for the purpose of producing goods and services for sale as a means of earning a livelihood. However, the distinguishing feature is that the earning of profit is not essential since the objectives of the industry may even be to provide any service to the community in an organized manner, wherein profits are not made. It is perhaps for this reason that the words "engaged in an organized economic activity" appearing in the definition of "industry" in section 2(xvii) of Industrial Relations Ordinance, 2002 are missing in such definition appearing in section 2(xiv) of Industrial Relations Act, 2008. Perhaps the law makers thought that organized economic activity essentially denotes the profit motive.

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

----Ss. 2(xiv), 3 & 12---Industrial Relations Ordinance (XCI of 2002), Ss. 2(xvii)---Companies Ordinance (XLVII of 1984), S. 42---Constitution of Pakistan, Art. 17(1)---Chamber of Commerce and, Industry---Right of workers of Chamber to form a Trade Union---Scope---Chamber according to its Memorandum and Articles of Association did provide services to its members and general business community---Chamber was a non-profit organization as profits earned thereby were not pocketed by its members or Managing Committee, but were spent on its objectives---Earning of profit would not be essential for an industry as its objective might even be to provide any service to community in an organized manner without earning profit---Industrial Relations Ordinance, 2002 being a beneficial legislation would be interpreted in favour of workers liberally---Freedom of association guaranteed under Art. 17(1) of the Constitution included right of workers to form Trade Unions---Such Chamber for providing services to its members by charging fee was an "industry" as defined in Industrial Relations Ordinance, 2002 and Industrial Relations Act, 2008---Workers of Chamber had a right to form a Trade Union, in circumstances.

A.F. Ferguson and Co. v. The Sindh Labour Court and another PLD 1985 SC 429; Board of Governors Aitchison College, Lahore v. Punjab Labour Appellate Tribunal and others 2001 SCMR 1928; Sh. Ahmad Sadiq v. Chief Settlement Commissioner and others PLD 1974 SC 368; Civil Aviation Authority, Islamabad and others v. Union of Civil Aviation Employees and another PLD 1997 SC 781 and Agriculture Workers Union v. Registrar of Trade Union 1997 SCMR 66 ref.

Army Welfare Sugar Mills Workers Union v. Army Welfare Sugar Mills 2009 SCMR 202 = 2009 PLC 132 rel.

Khalid Javed, Advocate Supreme Court for Appellant.

Ex parte for Respondent No. 1.

Respondent No. 2 in person.

Respondent No. 3 in person.

Date of hearing: 7th July, 2011.