PLC 2013 Judgments

2013 P L C 113

[High Court (AJ&K)

Before Munir Ahmed Chaudhary, J

UNITED BANK LIMITED through President, UBL Ltd., Karachi and 9 others

Versus

LABOUR APPELLATE TRIBUNAL, AZAD JAMMU AND KASHMIR and 5 others

Writ Petitions Nos.152, 153 and 164 of 2006, decided on 17th March, 2012.

Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 196-8)-

---S.O. 15---Industrial Relations Act (IV of 2008), Ss.41 & 55(3)---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.44---Writ petition---Dismissal from service---Bank employees were dismissed from service after charge-sheeting and holding enquiry against them on the allegation of preparing bogus bank guarantee and embezzlement---Labour Court, reinstated two employees while grievance petition of third one was dismissed, but Appellate Court, set aside judgment of the Labour Court to the extent of third employee--All three employees were reinstated with all benefits---Validity---Charge-sheet of misconduct which was to be handed over to the employees within one month of alleged misconduct, was given to them after more than two months---Enquiry Officer had recorded his findings that witnesses and record produced during the proceedings of inquiry were not sufficient and convincing to declare the employeesguilty of the charge of misconduct and that employee had been found only negligent---Employer bank dismissed said third employee for misconduct on that report and findings of the Inquiry Officer---Such act of the bank and its officials was coram non judice and without lawful authority---Misconduct having not been proved against third employees, he could not be awarded major penalty of dismissal from service---Labour Appellate Tribunal had recorded findings which were based on sound and cogent reasons---All the three employees had been reinstated with full benefits by the Appellate Tribunal---Findings of the Labour Appellate Tribunal, did not need any indulgence by High Court through writ petition.

1994 SCR 16(sic); 1998 PLC (C.S.) 110; 1999 CLC 840; 2000 MLD 1683; 1999 MLD 187; 1999 PLC (C.S.) 1527; 2002 PLC 163 and 2004 SCR 341 distinguished.

1996 MLD 355; 1997 PLC 34; 1996 SCR 367; 1999 PLC 290; 2005 PLC 26; 1991 PLC 914; 1991 PLC 111 and 2004 PLC 310 rel.

Muhammad Ayyub Sabir for Petitioners.

Muhammad Riaz Tabassam for Respondents.

2013 P L C 178

[Islamabad High Court]

Before Shaukat Aziz Siddiqui, J

Messrs YZ CNG STATION through Sole Proprietor

Versus

EMPLOYEES' OLD AGE BENEFITS INSTITUTION through Chairman and another

Writ Petition No.135 of 2012, decided on 24th April, 2012.

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

----Ss. 4, 12(3) & 46---Constitution of Pakistan, Art.199---Registration of CNG Station---Claim for exemption from registration---Institution registered the petitioner/CNG Station by declaring five permanent employees of the petitioner Station, despite petitioner stressed upon his inability to hire more than three employees for running the Station---Petitioner was registered by the Institution unilaterally and without proper inquiry---Validity---Stance of the Institution itself was contradictory, inconsistent and dubious as well---No definite conclusion was on record with regard to strength of employees of the petitioner and through evasive assessment, whimsical approach and misleading calculation, strength of employees had been presumed to be one which required registration and recovery of contribution---Authority created under the statute, could not be allowed to proceed in any matter, in a mechanical fashion and presumptive facts---Present matter was crude example of exercise of authority in an arbitrary manner---No sanctity was attached to the proceedings carried out by the Institution---Impugned order was set aside and case was remanded to the Institution to hold proper inquiry, before registration of petitioner for the purposes of contribution---Petitioner, must be provided an opportunity of hearing and chance to rebut evidence, collected by the Institution for the purpose of registration and issuance of notification thereof.

Syed Hassan Ali Raza for Petitioner.

Nemo for Respondents.

2013 P L C 291

[Islamabad High Court]

Before Iqbal Hameedur Rahman, C.J. and Muhammad Azim Khan Afridi, J

MUHAMMAD AMIN QAMAR

Versus

THE BANK OF PUNJAB and others

Intra-Court Appeals Nos.44 to 55 of 2012, heard on 12th June, 2012.

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

----Ss. 1(2), 1(3) & 33---Industrial Relations Act (X of 2012), Ss.1(2) & 1(3)---Punjab Industrial Relations Act (XIX of 2010), S.1(2)---Industrial Relations Act (IV of 2008), S.87(3)---Constitution of Pakistan, Arts.199 & 270-AA [as inserted by the Eighteenth Amendment to the Constitution]---Law Reforms Ordinance (XII of 1972) S.3---Intra-court appeal---Unfair labour practices---National Industrial Relations Commission, jurisdiction of---Grievances of Union of industry-wise character at a national level would fall within jurisdiction of National Industrial Relations Commission---Appellants had filed grievances before the National Industrial Relations Commission (NIRC) with respect to unfair labour practices of their employer, the respondent Bank---Appellants assailed findings of Single Judge, whereby constitutional petition for transferring the cases of the appellants to the concerned Provinces filed by the respondent Bank, was allowed and the National Industrial Relations Commission (NIRC) was directed to transfer the record of the appellants to the respective Provinces mainly on the ground that after the Eighteenth Amendment to the Constitution, the matters became provincial subject---Validity---Single Judge of High Court failed to take into consideration the fact that the Industrial Relations Ordinance, 2011 had already been promulgated and was in field when the impugned orders were made and as far as the question that the matters became Provincial subject was concerned, in view of Ss.1(2) & 1(3) of National Industrial Relations Commission Ordinance, 2011, the said Ordinance was promulgated for the whole of Pakistan and was applicable to all persons employed in any establishment or industry in the Capital Territory or carrying on business in more than one Province---Appellants had filed application for registration as a union of industry-wise character at national level having membership in more than one Province, therefore, the provisions of the Industrial Relations Ordinance, 2011 and Industrial Relations Act, 2012 were clearly applicable and the National Industrial Relations Commission had the jurisdiction to entertain the same---Provisions of the Punjab Industrial Relations Act, 2010 were not applicable to the matter since the appellants' union was of industry-wise character at national level and therefore, any dispute that arose could not be resolved at the Provincial level---High Court set aside order of single Judge---Intra-court appeals were allowed, in circumstances.

Air League of PIAC Employees through President v. Federation of Pakistan 2011 SCMR 1254 rel.

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

----Preamble & S.92-- Industrial Relations Act (IV of 2008) S.87(3)---Industrial Relations Act (X of 2012), Preamble---Interpretation---Retrospective effect of labour laws---Actions taken in the intervening period after the repeal of the Industrial Relations Act, 2008 and before promulgation of Industrial Relations Ordinance, 2011---Labour laws were procedural in nature and procedural law had retrospective effect unless something to the contrary was provided expressly or impliedly---Industrial Relations Ordinance, 2011 had a retrospective effect and all actions taken after 30-4-2010 (repeal of the Industrial Relations Act, 2008) and before the promulgation of the Industrial Relations Ordinance, 2011 would be deemed to have been taken under the Industrial Relations Ordinance, 2011 as well as the newly promulgated Industrial Relations Act, 2012, which too had a retrospective effect.

Air League of PIAC Employees through President v. Federation of Pakistan 2011 SCMR 1254 rel.

(c) Interpretation of statutes---

----Procedural law had retrospective effect unless some thing to the contrary was provided expressly or impliedly.

Shahid Mehmood Khokhar for Appellant.

Sardar Ahmad Jamal Sukhera for Respondents.

Date of hearing: 12th June, 2012.

2013 P L C 300

[Islamabad High Court]

Before Noor-ul-Haq N. Qureshi, J

DAILY KHABRAIN through Chief Editor/Chief Executive

Versus

HAMMAD HASSAN and 2 others

Writ Petition No.1462 of 2013, heard on 17th April, 2013.

Industrial Relations Ordinance (XCI of 2002)---

----S. 46---Limitation Act (IX of 1908), Arts.151 & 181---Constitution of Pakistan, Art.199---Constitutional petition---Grievance petition was dismissed for non-prosecution---Application for restoration filed after thirty days was dismissed being time-barred---Validity---Article 181 of the Limitation Act, 1908 would be attracted in case of application for restoration of grievance petition---Labour Court had misconceived the legal proposition and wrongly dismissed the application for restoration---Order of Labour Court was set aside---Case was remanded back to Labour Court.

Tahir Ishaq Mughal for Petitioner.

S.A. Mateen for Respondents Nos.1 and 2. Date of hearing: 17th April, 2013.

2013 P L C 323

[Islamabad High Court]

Before Noor-ul-Haq N. Qureshi, J

EHSAN AHMED CHAUDHRY

Versus

MEMBER, NATIONAL INDUSTRIAL RELATIONS COMMISSION, ISLAMABAD and others

Writ Petition No.1067 of 2013, heard on 9th April, 2013.

Constitution of Pakistan---

----Art. 199---Industrial Relations Act (I of 2012), S.58---Constitutional petition--Maintainability-:-Petitioner had invoked constitutional jurisdiction with the prayer that impugned order passed by Member National Industrial Relations Commission, be set aside being without jurisdiction and without lawful authority---Constitutional petition could be filed by an approved office-bearer of Union, while petitioner was a stranger for the purpose---Impugned order being interim in nature, constitutional petition was not maintainable in its present form---Petitioner should have approached proper forum for redressal' of his grievance by filing appeal under S.58 of Industrial Relations Act, 2012.

Khalid Ismail for Petitioner.

Abdur Rasheed Awan for Respondents.

Date of hearing 9th April, 2013.

2013 P L C 88

[Sindh High Court]

Before Shahid Anwar Bajwa and Aftab Ahmed Gorar, JJ

UNITED LABOUR FEDERATION OF PAKISTAN through Senior Vice-President and 2 others

Versus

PROVINCE OF SINDH through Secretary Labour, Sindh and 6 others

Constitutional Petition No.D-2190 of 2012, decided on 18th September, 2012.

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

----Ss. 5 & 78---Provincial Employees' Social Security (Appointment of Members of the Governing Body) Rules, 1966, Rr. 3 & 4---Members of Governing Body appointment of---Scope---Such members would be appointed from list of names submitted and in prescribed manner by organization of employer and employees recognized by Government for such purpose---No bar existed on appointment of a person for more than one term---No provision existed to bar appointment of a member of one Welfare Body or Board as member of another Body or Board---Wrong appointment of a member of Managing Committee would not nullify its decision for being protected by de-facto doctrine---Principles.

Messrs Radaka Corporation and others v. Collector of Customs and another 1989 SCMR 353; Sajid Hussain v. Shah Abdul Latif University, Khairpur through Registrar and 4 others PLD 2012 Sindh 232; Munawar Ali Pathan v. Province of Sindh and others 2011 PLC (C.S.) 785; Dr. Kamal Hussain and 7 others v. Muhammad Sirajul Islam and others PLD 1969 SC 42; Mst. Kausar Parveen v. Zulfiqar Dr. Bushra Ashiq Siddiqui v. Muhammad Aslam 1989 MLD 1351; Farhat Ali Khan v. Muhammad Siddique, Advocate and another 1995 SCMR 1570; Ch. Muneer Ahmed and others v. Malik Nawab Sher and others PLD 2010 Lah. 625 and Farhat Ali Khan v. Ch. Muhammad Siddique and others 1998 SCMR 2190 ref.

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

----S. 5---Constitution of Pakistan, Arts.25 & 27---Appointment against vacant posts---Quota reserved by Governing Body for sons of deceased employees of Provincial Social Security Institution---Validity---Reservation of such quota could not be allowed to stand as same would militate against equality and constitute discrimination against other citizens, who might be equally or better qualified---Principles.

Article 25 of the Constitution mandates that all citizens are equal before law and are entitled to equal protection of law. In view of this, son of employee of Institution is equal to son of someone who is not such employee. Under Article 27 of the Constitution while posts could be reserved for any class or area, but the purpose of reservation is to secure their adequate representation and not to confer benefit on existing employees. Reservation of seats militates against equality and constitutes discrimination against other citizens, who may be equally or better qualified, but door is barred in their faces, because they are not sons of previous or present employees. Any reservation of quota by Governing Body in violation of provision laid down in the Constitution cannot be allowed to stand.

Muhammad Farogh Naseem for Petitioners.

Ch. Muhammad Ashraf Khan for Respondents Nos.2 to 7.

Date of hearing: 3rd September, 2012.

2013 P L C 110

[Sindh High Court]

Before Farooq Ali Channa, J

Syed ZAHOOR HUSSAIN ZAIDI

Versus

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

Constitutional Petition No.S-754 of 2012, decided on 11th July, 2012.

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

----Ss. 55(9) & 41(6)---Constitution of Pakistan, Art. 199---Constitutional petition---Labour Appellate Tribunal suspending reinstatement order passed by Labour Court---Appeal not decided within twenty (20) days as provided under S.55(9) of Industrial Relations Ordinance, 2002---Suspension order of Labour Appellate Tribunal would stand vacated in such circumstances---Employee (petitioner) was removed from service by employer (respondent)---Labour Court ordered reinstatement of employee with back-benefits--Labour Appellate Tribunal suspended reinstatement order of Labour Court under S.55(9) of Industrial Relations Ordinance 2002, till further orders---Labour Appellate Tribunal did not decide the appeal within a period of twenty (20) days as provided under S.55(9) of Industrial Relations Ordinance, 2002, on account of which employee moved complaint before Labour Court against employer under S.41(6) of Industrial Relations Ordinance, 2002, contending that suspension order of Labour Appellate Tribunal had expired, therefore employer should allow him to resume his employment---Labour Court refused to take further action and adjourned the matter sine die till final disposal of appeal pending before the Labour Appellate Tribunal---Validity---Under the principles of natural justice, it was the duty of the court, which entertained the complaint, to decide the same considering the statements and documents produced by the complainant during preliminary inquiry instead of keeping the same pending for indefinite period and withholding relief sought for, on account of some other related proceedings pending in some other court---Order of Labour Court by which it adjourned the complaint sin -die defeated the administration of justice and deprived the rights of a person who had approached the court with hopes of redressal of his grievance---Labour Court was bound to decide the complaint by independent application of mind free from unreasonable outside circumstances---High Court set aside the impugned order of the Labour Court by which complaint of employee was adjourned sine die and Labour Court was directed to decide the complaint on merits in accordance with the law.

(b) Administration of justice---

----Concurrent civil and criminal proceedings-Stay of criminal proceedings---Scope---Where civil proceedings of any kind were pending adjudication before any forum, the criminal proceedings were not barred and both civil and criminal proceedings -should proceed independently and simultaneously, if, from the statements recorded and documents produced during preliminary inquiry, an offence appeared to have been committed.

Khalid Imran for Petitioner.??????

Nemo for Respondents.

Date of hearing: 11th July, 2012.

2013 PLC 118

[Sindh High Court]

Before Shahid Anwar Bajwa and Aftab Ahmed Gorar, JJ

DALDA FOODS (PVT.) LIMITED through National Administration Manager

Versus

SINDH LABOUR APPELLATE TRIBUNAL, KARACHI through Member and 161 others

Constitutional Petition No.D-2596 of 2012, decided on 28th September, 2012.

(a) Appeal (Civil)--

----Appellate Court, powers of---Scope---Appeal is continuation of original proceedings therefore Appellate Court would have all powers available to Trial Court.

(b) Interpretation of statutes-..

----No part of statute is to be treated as redundant.

Ghulam Muhammad Memon v. Shabir Ahmed, Presiding Officer, III-Sindh Labour Court, Karachi and others 1993 PLC 349 rel.

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

----S. 55(9)---Order of Labour Court directing reinstatement of workman---Appeal before Labour Appellate Tribunal---Disposal of appeal within 20 days after staying operation of impugned reinstatement order--Guidelines for Labour Appellate Tribunal stated.

The period prescribed under proviso to section 55(9) of Industrial Relations Act, 2008 is directory in nature.

If matter is delayed in the Labour Appellate Tribunal due to any act on the part of, a Tribunal or even its office, the principle that act of the court prejudices no one will be applicable. Just as workman cannot be burdened due to delay on part of the Tribunal, employer should also not be burdened if the matter is delayed by the Tribunal.

Employer cannot be allowed to obtain stay order and thereafter prolong the matter and thus prolong agony of the workman. Similarly, workman should not be allowed to prolong the matter before the Labour Appellate Tribunal.

Since the period of 20days is prescribed for disposal of the appeal, the Tribunal shall not adjourn the matter for more than 20 days at any time.

If on the date fixed, employer -seeks adjournment, it will be available to Tribunal to consider question of recalling interim order or to impose cost on the employer on to refuse adjournment.

If on the other hand, workman seeks adjournment, the Tribunal shall extend interim order till next date of hearing.

Such guidelines can be given by the High Court.

The proviso to section 55(9) of Industrial Relations Act, 2008 is directory in nature and the Labour Appellate Tribunal is duty bound to watch conduct of the parties and if it comes to the conclusion on any date that employer is seeking adjournment and delaying the matter, it has right to impose cost or recall interim order or to refuse adjournment.

Jehanzeb v. General Tyre and Rubber Company of Pakistan and another 2001 PLC 492; Karachi Shipyard and Engineering Works Ltd. Karachi v. Additional Collector, Customs, Excise and Sales Tax (Adjudication-III), Government of Pakistan, Karachi and 2 others 2006 PTD 2207; Adeem Hosiery Dyeing v. Assistant Collector, Collectorate of Sales Tax, Faisalabad and another 2002 PTD 1616; Z.N. Exports (Pvt.) Ltd. v. Collector of Sales Tax 2003 PTD 1746; Messrs WAK Limited through Chief Executive v. Federation of Pakistan through Ministry of Finance, Islamabad and 5 others 2006 PTD 332; Messrs Pearl Continental Hotel, Lahore through Director Finance and another v. Customs, Excise and Sales Tax Appellate Tribunal, Lahore and another. 2005 PTD 1368; Messrs Dawood Textile Printing Industries (Pvt.) Ltd., Faisalabad through Chief Executive v. Federation of Pakistan through Secretary, Revenue Division, F.B.R. and 4 others 2009 PTD 1220; Sunrise Bottling Company (Pvt.) Ltd. v Federation of Pakistan and 4 Others 2006 PTD 535; Chenab Cement Product (Pvt.) Ltd. and others v. Banking Tribunal, Lahore and others PLD 1996 Lah. 672; Narang Overseas (Pvt.) Ltd. v. Income Tax Appellate Tribunal (2007) 295 ITR (Bombay); Messrs Maple Leaf Cement Factory Ltd. v. The Collector of Central Excise and Sales Tax (Appeals), Lahore and 2 others 1993 MLD 1645; Rauf Bakhsh Kadri v. The State. and others 2003 MLD 777; Syed Match Company Ltd. Through Managing Director v. Authority under Payment of Wages Act and others 2003 PLC 395; Mughal Surgical (Pvt.) and others v. Presiding Officer, Punjab Labour Court 2005 PLC 364; Umarzeb v. Pakistan Beverages 2000 PLC 583; Divisional Superintendent PWR, Karachi v. Bashir Ahmed PLD 1973 SC 589; Syed Match Company (Pvt.) Ltd. v. Authority under Payment of Wages Act and others 2003 SCMR 1493; Karachi Chamber of Commerce and Industry, Karachi v. Sindh Labour Court No.V, Karachi and others 2011 SCMR 1709; Ghulam Muhammad Memon v. Shabir Ahmed, Presiding Officer, III!Sindh Labour Court, Karachi and others 1993 PLC 349; Sirajuddain Paracha and 12 others v. Mehboob Elahi and 3 others PLD 1997 Kar. 276; Saiyyid Abut Ala Moudoodi and others v. Government of West Pakistan and others PLD 1964 SC 673 and Messrs Eastern Rice Syndicate v. Central Board of Revenue, Finance Ministry Government of Pakistan and others PLD 1959 SC 364 ref.

Marker Employees' Union v. Malkaloids Ltd. and others 1976 SCMR 82; Ghulam Murtaza and another v. The State PLD 2009 Lah. 362 and Ameer Zeb v. The State PLD 2012 SC 380 rel.

(d) Industrial Relations Act (IV of 2008)

--S. 55(9)-Civil Procedure Code (V of 1908), O.XLI, R.5---Appeal---Order granting interim relief, passing of---Jurisdiction of Labour Appellate Tribunal---Scope---While passing such order, Tribunal in its discretion could demand from employer either security or bank guarantee or deposit of back benefits and current salaries of workers---Illustration.

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

----O. XXIX, R. 1---Constitution of Pakistan, Art.199---Suit by Corporation---Constitutional petition filed by company through its attorney filing of---Resolution of Board of Directors of company authorizing its officer concerned to "sign, verify, institute and file a writ petition or other appropriate legal proceedings on behalf of company "---Respondent's plea that said resolution conferred general power and not specific power on its attorney---Validity---Said resolution had authorized attorney to file writ petition or other appropriate proceedings on behalf of company before High Court or any appropriate forum---Constitutional petition in question could hot be said to have been filed without authority---High Court repelled plea of respondent in circumstances.

Sirajuddain Paracha and 12 others v. Mehboob Elahi and 3 others PLD 1997 Kar. 276 ref.

Dr. Muhammad Farogh Naseem for Petitioner.

Ashfaque Ahmed Tagar, D.A.-G. and Mrs. Haleema Khan, A.A.-G. for Respondents Nos.1 to 3.

Ashraf Hussain Rizvi for Respondents Nos.4 to 163.

Date of hearing: 19th September, 2012.

2013 P L C 134

[Sindh High Court]

Before Shahid Anwar Bajwa and Aftab Ahmed Gorar, JJ

SONERI BANK LIMITED through Jaffar Ali Khan and others

Versus

FEDERATION OF PAKISTAN through Secretary Law and Justice Division, Pak Secretariat, Islamabad and others

Constitutional Petitions Nos.D-1588, D-1589 and D-1743 of 2012, decided on 3rd October, 2012.

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

----Ss. 1(4), 9(1), 22(2), 47(e) & Sched. Paras 2, 3 [as amended by Finance Act (I of 2008)J ---Finance Act (I of 2008), Preamble---Constitution of Pakistan, Art.199---Constitutional petition---Contribution made to Workers Welfare Fund under Employees' Old-Age Benefits Act, 1976 after amendments made therein through Finance Act, 2008 passed only by National Assembly and not the Senate---Plea of respondent was that amount collected by Employees' Old-Age Benefits Institution was a tax being collected for purpose of providing unemployment compensation---Validity---Employees' Old Age Benefits Act, 1976 had been passed by both houses of the Parliament--Contribution made by employer or employee was paid to Institution being a body corporate and having its separate accounts and was not paid to Government---Contribution made to Institution was made in respect of a specific designated employee for services to be rendered to him and other employee by Institution in accordance with provisions of Employees' Old Age Benefits Act, 1976---Such contribution for services to be rendered by Institution was in nature of fee and not a tax---High Court declared amendments brought in the Employees Old Age Benefits Act, 1976 through Finance Act, 2008 as without lawful authority and of no legal effect in circumstances.

Employer's Federation of Pakistan v. Federation of Pakistan, C.P No.D-260 of 2008; Sindh High Court Bar Association through its Secretary and another v. Federation of Pakistan through Secretary, Ministry of Law and Justice, Islamabad and others PLD 2009 SC 879; Mir. Muhammad Idris and others v. Federation of Pakistan through Secretary Ministry of Finance and others PLD 2011 SC 213; Messrs Saif Textile Mills Limited v. Pakistan through Secretary, Finance (Finance Division), Islamabad and 3 others PLD 1998 Pesh. 15; Corpus Juris Secundum Vol. 84; Words and Phrases, Permanent Edition Vol. 41 page 270; Muhammad Ismail & Co. Ltd. v. Chief Cotton Inspector PLD 1966 SC 388 and Messrs Fatima Enterprises v. Federation of Pakistan through Secretary, Education, Ministry of Education, Islamabad and others 1999 MILD 2889 ref.

Mehmood Abdul Ghani for Petitioners.

Ahmed Shahzad Farooq Rana and Asif Hussain Mangi, Standing Counsel for Respondents.

Date of hearing: 26th September, 2012.

2013 P L C 162

[Sindh High Court]

Before Abdul Rasool Memon, J

NAVEED through Special Attorney

Versus

COMMISSIONER WORKMEN COMPENSATION EAST KARACHI and another

Constitutional Petition No.S-859 of 2010, decided on 5th October, 2012.

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

----S. 23---Payment of Wages Act (IV of 1936), S.18---Civil Procedure Code (V 1908), Preamble & S.114---Constitution of Pakistan, Art.199---Constitutional petition---Review of order passed by Workmen's Compensation Commissioner---Applicability of C.P.C.---Scope---Contention of the petitioner was that Workmen's Compensation Commissioner did not have power to review its own order---Validity---Purpose for which the C.P.C. was applicable to the provisions of Payment of Wages Act, 1936 and Workmen's Compensation Act, 1923 was limited to the taking of evidence or for enforcing attendance of witnesses and compelling production of documents before the authority concerned---Provisions of review contained in S.114 of C.P.C. were not applicable to Commissioner Workmen's Compensation---Power of review was not a matter of mere procedure but was a question of jurisdiction and the same could not be exercised unless expressly conferred on a Tribunal by the statute under which it was exercising the power---High Court set aside order of Commissioner Workmen's Compensation whereby he had set aside his own order---Constitutional petition was allowed, in circumstances.

Messrs Hussain Textile Mills Ltd. v. Authority Under the Payment of Wages Act and others 1987 PLC 636 ref.

Mst. Noor Begum v. Commissioner for Workmen's Compensation and Authority Under Payment of Wages Act and 2 others 2010 PLC 1; Wazir Chand and another v. Emperor AIR 1930 Lah. 658 and Messrs Ahmed Food Industries v. Sindh Labour Appellate Tribunal 1974 PLC 225 rel.

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

----S. 114---Review---Scope---Power of review was not a matter of mere procedure but was a question of jurisdiction and the same could not be exercised unless expressly conferred on a Tribunal by the statute under which it was exercising the power.

Mst. Noor Begum v. Commissioner for Workmen's Compensation and Authority Under Payment of Wages Act and 2 others 2010 PLC 1 rel.

Miss. Shahida Ghani for Petitioner.

Gohar Iqbal for Respondent.

Date of hearing: 25th September, 2012.

2013 P L C 170

[Sindh High Court]

Before Shahid Anwar Bajwa, J

Syed SAEED HAIDER and 14 others

Versus

PRESIDING OFFICERS, SINDH LABOUR COURT NO.V and 21 others

Constitutional Petition No.S-251 of 2010, decided on 11th April, 2012.

Industrial Relations Act (IV of 2008)---

----Ss. 9, 15 & 24---Election for determination of Collective Bargaining Unit---Rejection of result of election and order to hold fresh polling for conducting election of office-bearers---Jurisdiction of Registrar---Elections were held and results were announced in compliance of order of the Supreme Court---Election result indicated that petitioners were elected to various posts of office-bearers---Subsequently Registrar of Trade Unions, rejected result of election holding that fresh polling for conducting elections of office-bearers of union be held---Registrar, under S.9 of the Industrial Relations Act, 2008 was not authorised to order change of the Trade Union---Registrar could refuse to register such change, but if Registrar remained silent, the mandate of law appeared to be that the change was to be deemed to have been registered---Once Registrar had registered change, it had no power to call back or recall his order as had been done in the present case---Once Registrar had given effect to the change, party aggrieved could approach the Labour Court under subsection (7) of S.9 of Industrial Relations Act, 2008, and Labour Court, if it came to the conclusion that while registering the change some illegality had been committed, could order fresh election under supervision of the Registrar---Registrar on its own had no power to recall order passed by it---Where Registrar first registered the change and thereafter recalled its order, it was called a situation of "judicial anarchy"---No power of review had been conferred by any of the provisions contained in Industrial Relations Act, 2008 on the Registrar---Even under the doctrine of locus poenitentiae, once decisive steps having been taken; and vested rights having been created, it was no longer available to the department or executive authority to retrace its steps and to recall its order---In the present case, once change of office-bearers had been notified in consequence of the result of elections, it was not available to Registrar to recall its orders---Impugned order could not be sustained, and same was set aside, in circumstances.

Haji Khan Bhatti v. N.I.R.C. and others 1992 PLC 594 rel.

MCB Staff Union v. Senior Member NIRC, 2001 PLC 131 and Muttehida Tele-Staff Union Port Qasim v. Director of Labour 2002 PLC 292 ref.

Faiz Ghangro for Petitioners.

Nemo for Respondents Nos.1 to 4.

Khalid Imran for Respondents Nos.5 to 22.

Date of hearing: 14th March, 2012.

2013 P L C 183

[Sindh High Court]

Before Shahid Anwar Bajwa and Aftab Ahmed Gorar, JJ

GLAXO SMITH KLINE PAKISTAN LIMITED through Group Industrial Relations Manager/Notified Factory Manager

Versus

SINDH LABOUR APPELLATE TRIBUNAL SINDH and 2 others

Constitutional Petition No.D-2940 of 2011 and Miscellaneous Nos.13400 and 13401, decided on 25th September, 2012.

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

----Preamble---Appeal of employee before Labour Appellate Tribunal pending prior to promulgation of Industrial Relations Ordinance, 2011 on 18-7-2011---Plea of employer-company having branches/offices in more than one Provinces that Tribunal ceased to have jurisdiction to continue with such appeal after coming into force of Ordinance, 2011---Validity---No provision existed in Industrial Relations Ordinance, 2011 for transfer of proceedings which were already pending in Labour Court or Tribunal or National Industrial Relation Commission---Rights of parties would be settled / decided according to law, which prevailed at the time of accrual of cause of action---Grievance of employees, whose grievance petitions or appeals were pending on 18-7-2011, were causes which accrued to them before promulgation of Industrial Relations Ordinance, 2011---Both Labour Court and Tribunal would be competent to hear and decide matters pending before them prior to 18-7-2011 as per law prevalent on date of initiation thereof---Plea of employer was repelled in circumstances.

Bashir v. Wazir Ali 1987 SCMR 978 and Syed Aftab Ahmed and others v. K.E.S.C. 1999 SCMR 197 ref.

Muhammad Aslam v. Director Human Resources Management Civil Petition No.454 of 2009 and Nadeem Iqbal v. Atomic Commission Civil Petition No.102 of 2009 rel.

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

----Preamble---Industrial Relations Ordinance, 2011---Status and application of---Industrial Relations Ordinance, 2011 would operate prospectively as it contained both procedural and substantive provisions---Principles.

Industrial Relations Ordinance, 2011 is not per se a procedural law. It confers benefits of labour laws on many persons and provides them safeguards against illegal strikes and lockouts. It is a piece of welfare legislation. It lays down punishments including, in certain case, punishment of imprisonment. It provides for procedure in case of illegal strikes and machinery for conciliation, procedure relating to industrial disputes, registration of trade unions and federation of trade unions and many other matters. Therefore, it is not merely a procedural law, because it contains substantive provision. It is, therefore, prospective in operation.

(c) Administration of justice---

----Circumstances which develop or evolve or emerge during pendency of proceedings --- Effect --- Court can take such circumstances into consideration.

Mst. Amina Begum and others v. Mehar Ghulam Dastgir PLD 1978 SC 220 rel.

(d) Interpretation of statutes---

----Change in law during pendency of proceedings---Effect---Rights of parties would be settled / decided according to law, which prevailed at time of accrual of cause of action.

Muhammad Aslam v. Director Human Resources Management Civil Petition No.454 of 2009 and Nadeem Iqbal v. Atomic Commission Civil Petition No.102 of 2009 rel.

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

----S. 15(3)(f) & (4)---Grievance petition---Dismissal from service on 23-12-2003---Issuance of show cause notice dated 15-11-2001 referring to 223 incidents of late-coming spreading over 10 years and issuance of 21 advisory letters between 15-9-1991 and 17-1-2001 to petitioner---Petitioner's plea that show cause notice was barred by time---Validity---Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 described habitual late attendance as misconduct---According to show cause notice, petitioner was late on one day in each month of January, February and May, 2001 and on two days in each month of August, September and October, 2001, while his last late coming was mentioned as 19-10-2001 i.e. within one month of issuance of such notice---Habit of being chronic persistent and continuous would be established by aggregate of facts and not by a single fact standing alone---Limiting dates of all late coming to one month preceding such notice would not constitute habit at all---Where habit was required for constituting misconduct, then last such incident must have taken place within a period of one month, prior to date of such notice---Last date of petitioner's late attendance was 19-10-2001, thus, notice dated 15-11-2001 was not barred by time---Warning was not one of the prescribed punishments under S.15(2) of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968---Disciplinary actions against petitioner had not been taken on basis of such advisory letters---Petitioner's 223 late comings spreading over period of 10 years would amount to an average of 2 to 3 late comings each month persistently and continually despite issuance of advisory letters to him---Petitioner was on occasions late by almost one hour, while his presence as charge man was essential for his factory---Such late comings of petitioner was a misconduct---Grievance petition was dismissed in circumstances.

Mr. Justice Z.A. Channa in Star Textile Mills v. Third Sindh Labour Court, Karachi 1973 PLC 376; Industrial Advisor Association v. Federation of Pakistan and others 2010 PLC (C.S.) 359; Munir Hussain Bhatti, Advocate v. Federation of Pakistan and another PLD 2011 SC 407; Adnan Afzal v. Capt. Sher Afzal PLD 1969 SC 187 and Workers v. The Management, Sultan Textile Mills Ltd., Sargodha through the Managing Director and another 1973 PLC 175 ref.

Punjab Urban Transport Corporation v. Muhammad Zahid 1984 PLC 525; Karachi Shipyard and Engineering Works Ltd., Karachi v. Abdul Shakoor 1969 PLC 652 and Aftab Alam alias Matoo v. Province of Sindh and 2 others PLD 1979 Kar. 645 rel.

(f) Words and phrases---

----"Habit" and "Habitual"---Definition.

Black's Law Dictionary Sixth Edition and Judicial Dictionary by K.J. Aiyar, 13th Edition ref.

(g) Words and phrases---

----"Warning"---Connotation.

Muhammad Ali Khan for Petitioner.

Roomi Iqbal for Respondent No.3.

2013 P L C 206

[Sindh High Court]

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

COCA COLA MAZDOOR UNION through General Secretary

Versus

REGISTRAR OF TRADE UNIONS, SINDH and 3 others

H.C.A. No.294 of 2009, decided on 14th February, 2012.

Industrial Relations Act (IV of 2008)---

----Ss. 2(xiii)(xxix), 12, 24 & 41---Law Reforms Ordinance (XII of 1972), S.3---Referendum for determination of Collective Bargaining Agent---Entitlement to be included in voters' list---Terms of existing Collective Bargaining Agent in the establishment having since expired, referendum for determination of Collective Bargaining Agent for next term was to be held---Appellant Union in the establishment which intended to participate in said Referendum, its 53 members were terminated from employment and their grievance petition against said termination was pending before the Labour Court---Appellant union supplied required list of its members including said 53 members, and Registrar Trade Unions started proceedings and finalized the list for the purpose of secret ballot---Respondent/existing union, filed constitutional petition contending that said 53 members, were not workmen and were not entitled to be included in the voters' list---Single Judge of High Court granted status quo---Validity---According to definition of worker or workman in clause (xxix) of S.2 of Industrial Relations Act, 2008, so far as the terminated worker was concerned, would depend upon those terminations etc. which were taken place in connection with or as a consequence of an industrial dispute; but, in the present case, alleged dispute of the parties did not appear to have any connection or relation to any industrial dispute nor the same was taken up by or through Collective Bargaining Agent in terms of S.41 or 50 of Industrial Relations Act, 2008; and such dispute was never raised as an industrial dispute by Collective Bargaining Agent in accordance with S.60 of the Act---Said 53 persons being not workmen, were not entitled to participate in the referendum under S.24 of Industrial Relations Act, 2008---Said workmen could not be allowed to cast vote merely on the expectation of their re-employment or reinstatement in service---Impugned judgment calling for no interference, intra-court appeal, was dismissed, in circumstances.

Muhammad Ali and others v. Presiding Officer, Sindh Labour Court No.1 and others 2000 PSC 633 distinguished.

1994 SCMR 2213; 2001 PLC 589; 1985 PLC 1053; 2010 PLC 265; 2007 PLC 528; 2008 PLC 239; Trustees of the Port of Karachi v. Muhammad Karim and another 1987 PLC 846; Messrs Ramzan Ali & Co. Cotton Ginning and Pressing Factory, Mirpurkhas v. General Secretary, Employees Union and another 1996 PLC 311; Abdul Razzaq v. Messrs Ihsan Sons Limited and 2 others 1992 SCMR 505; Mushtehkum Cement Limited v. Abdul Rashid and others 1998 PLC 172 and Muhammad Nawaz Bhatti v. President, M.C.B. Ltd., Karachi and others 2008 SCMR 1377 rel.

Rafiullah for Appellant.

Muhammad Sabir for Respondent No.4.

Miran Muhammad Shah, Addl.A.-G. Sindh.

Respondent No.2 Athar Ali Shah, DDO Labour (TU) for self and on behalf of Respondent No.1.

Nemo for Respondent No.3.

Dates of hearing: 22nd September, 2010 and 6th February, 2012.

2013 P L C 273

[Sindh High Court]

Before Sajjad Ali Shah and Aftab Ahmed Gorar, JJ

MUHAMMAD KHALIQULLAH SIDDIQUI

Versus

SINDH LABOUR APPELLATE TRIBUNAL and 5 others

Constitutional Petition No.D-555 of 2011, decided on 14th February, 2013.

Industrial Relations Act (IV of 2008)---

----Ss. 41 & 55 [as revived and amended by Industrial Relations (Revival and Amendment) Act (XV of 2010)]---Pakistan WAPDA Leave Rules for WAPDA Employees, 1982, R.27---Constitution of Pakistan, Art.199---Constitutional petition---Ceasure of petitioner to be employed due to long absence of 9 years---Petitioner who remained absent from duty for nine years, had claimed that during that period he remained sick---Petitioner had failed to produce any medical certificate to justify his contention regarding his sickness---Absence of the petitioner for nine years remained unjustified and unexplained---Under R.27 of WAPDA Leave Rules, 1982, an employee due to his absence beyond the period of five years, would cease to be an employee---Said Rule had closed the ways of the petitioner to claim his reinstatement after remaining absent for a period of nine years, without any cogent or satisfactory reason---Grievance petition filed by the petitioner, was rightly dismissed by the Labour Court---Petitioner having failed to make out any case for his reinstatement, impugned orders of courts below, could not be interfered with, in circumstances.

Muhammad Nishat Warsi for Petitioner.

Muhammad Arshad Pathan for Respondents.

2013 P L C 282

[Sindh High Court]

Before Irfan Saadat Khan, J

KARACHI CHAMBER OF COMMERCE AND INDUSTRY through Secretary General and 5 others

Versus

MUHAMMAD FAROOQ KHAN GHORI and 2 others

Criminal Miscellaneous Application No.193 of 2012, decided on 10th December, 2012.

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

----S. 24A---Industrial Relations Act (IV of 2008), Ss.65, 73 & 74---Exercise of power by authority under enactments---Scope---Admission of complaint by Labour Court without recording reasons in such regard---Legality---Complaint filed before Labour Court against accused persons (applicants) was admitted, registered and summons were issued to accused persons---Although Judge of Labour Court examined complainant on oath but failed to give detailed reasons in such regard as to how he satisfied himself that complaint was maintainable---Judge of Labour Court in a very casual and cursory manner came to the conclusion that prima facie case was made out against accused persons without giving any detailed reasons for reaching such a conclusion, which rendered the impugned order a nullity in eyes of law---Impugned order of Labour Court was set-aside with directions to Judge of Labour Court to pass an order de novo after giving detailed reasons so as to satisfy himself whether prima facie case was made out or not and whether case was liable to be admitted or registered---Application was disposed of accordingly.

Mian Ghayassuddin and others v. Mst. Hidayatun Nisa and others 2011 SCMR 803; Miraj Khan v. Gul Ahmed and others 2000 SCMR 122; Mian Munir Ahmed v. The State 1985 SCMR 257; Independent Newspapers Corporation (Pvt.) Ltd. through Manager and 2 others v. Daily Jang and Press Workers' Union (CBA) through General Secretary 2006 PLC 173; Pakistan Tobacco Co. Ltd., Chittagong v. The Chairman Second Labour Court of East Pakistan and 18 others 1972 PLC 190; Workers' Union C.B.A. (Regd.), Shakarganj Mills, Jhang v. Shakarganj Mills Limited 1990 PLC 686; Messrs Jabees (Pvt.) Limited v. Presiding Officer and another SBLR 2007 Sindh 1817; Sardar Khan and others v. Punjab Road Transport Board, Multan 1978 PLC 264 and Qassim Shah and 4 others v. The State PLD 1991 SC 893 ref.

Roshan Ali v. Amir Bux and another PLD 2002 Kar. 115; Ahmed v. The State 2004 PCr.LJ 304 and Mollah Ejahar Ali v. Government of East Pakistan PLD 1970 SC 173 rel.

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

----S. 24A---Exercise of power by authority under enactments---Scope---Section 24A of General Clauses Act, 1897 specifically mentioned that where power was given to an authority for passing any order or giving directions, such power should be exercised reasonably, fairly and justly.

(c) Administration of Justice---

----Judgment/order, reasoning of---Scope---Orders and judgments of judicial officers must be well reasoned and lis pending before them had to be disposed of by way of passing a speaking order---No matter could be disposed of by simply jumping to the conclusion that a case was made out, without first recording detailed reasons for reaching such a conclusion.

Mehmood Alam Rizvi for Applicants.

Rafiullah for Respondents.

Ms. Seema Zaidi, A.P.G. for the State.

Date of hearing: 26th November, 2012.

2013 P L C 302

[Sindh High Court]

Before Farooq Ali Channa, J

Messrs DUTY FREE SHOPS LIMITED

Versus

ISHAQ RASHEED and 2 others

Constitutional Petitions Nos.S-868 to 875 of 2010, decided on 12th April, 2013.

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

----S. 17----Direction to deposit the amount as ordered by the Labour Court was mandatory requirement of proviso to S.17(i)(a) of the Payment of Wages Act, 1936 and without compliance of said provision the appeals from the orders passed under S.15 of the Payment of Wages Act, 1936 were not maintainable---When a thing was to be done in particular manner, that must be done in that way and not otherwise.

Ghafoor Textile Mills Ltd. v. Fazal Imam and another PLD 1981 Kar. 534 rel.

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

---S. 17--- Constitution of Pakistan, Art.199---Constitutional petition---Deposit of amount---Intention of the Legislature in enacting S.17 of the Payment of Wages Act, 1936 was that the amount covered by an order under S.15 of the Payment of Wages Act, 1936 was to be deposited in the Labour Court before entertaining an appeal against such an order---Purpose of Art.199 of the Constitution was not to nullify the effect of a legislative provision or to make ineffective a statutory provision.

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

----S. 55---Constitution of Pakistan, Art.199---Constitutional jurisdiction---Scope---Order passed by Labour Court was appeal able before the Labour Appellate Tribunal which remedy was not availed by the petitioner---Constitutional jurisdiction could be invoked only in exceptional circumstances and could not be invoked in presence of adequate remedy available to the petitioner.

Amel Kansi for Applicant.

Ghulam Murtaza Saryo for Respondent No. 1.

Date of hearing: 25th March, 2013.

2013 P L C 313

[Sindh High Court]

Before Farooq Ali Channa, J Messrs DUTY FREE SHOPS LIMITED

Versus

IRSHAD BUTT and another

Constitutional Petition No.S-659 of 2010, decided on 12th April, 2013.

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

----S. 15--Constitution of Pakistan, Art. 199---Constitutional jurisdiction---Scope---Petitioner had to file the appeal against the order of the Authority passed under S.15 of the Payment of Wages Act, 1936 before the Labour Court---Petitioner had approached High Court directly without first approaching the Labour Court---Constitutional jurisdiction could be invoked only in exceptional circumstances and could not be invoked in presence of specific remedy available to the petitioner---Constitutional petition being not maintainable was dismissed.

Amer Kansi for Petitioner.

Ghulam Murtaza Saryo for Respondents.

Date of hearing: 25th March, 2003.

2013 PLC 329

[Sindh High Court]

Before Shahid Anwar Bajwa and Aftab Ahmed Gorar, JJ

MUHAMMAD KASHIF

Versus

Messrs KARACHI DOCK LABOUR BOARD through Chairperson and another

Constitutional Petitions Nos.D-1456 and 1431 of 2011, decided on 10th September, 2012.

Industrial Relations Act (IV of 2008)---

----Ss. 2(xxv), 25(13)(a), 56(1)(d) & 69---Constitution of Pakistan, Art.199---Constitutional petition---Settlement of industrial dispute---Factual controversy---Fathers of petitioners were recruited by dockyard as dock workers, who retired from service without getting their sons (petitioners) employed on dockyard in their place---Grievance of petitioners was that under the settlement as no sons were got employed at dock, therefore, authorities had to pay agreed amount to their fathers, in lieu thereof---Validity---Settlement was agreement between all workmen (who were represented by CBA in terms of S.25(13)(a) of Industrial Relations Act, 2008) on one hand and employer on the other hand---Statute had given protection to the settlement, so that though it was a private agreement but its enforcement had been provided through elaborate mechanism laid down in law---In private agreements between parties, under civil law remedy was normally suit for damages or specific performance in certain cases but case of settlement, which was also an agreement between the parties, Legislature had first made it binding not only on employer but also on heirs, successors, assignees of employer and workmen, not only present but also future workmen---Law also provided for penal consequences if a settlement was violated by any of the parties and mechanism had been provided under S.69 of Industrial Relations Act, 2008, for interpretation of a settlement if difficulty or doubt would arise---Subsequent settlement in year, 2000 in the present case, was modified settlement of year, 1987---Though in the demand it was stated _that option was available with dockworker but while agreeing it was decided that in lieu of right of getting a son employed worker would be paid amount which initially was Rs.60, 000/- and had been increased in subsequent settlements---With subsequent settlements a retired dockworker had any other right to get his son registered as a dockworker---Petitioners claimed that they had not been made payments which was to have been paid to them in lieu of a son employed but employer disputed the position---Such was a question of fact and could not be decided in Constitutional jurisdiction---High Court directed that if amount was not paid to any of the petitioners, the same would be tendered to them through cross-cheques within a period of one month--- Constitutional petition was dismissed accordingly.

Abdul Ghaffar for Petitioner.

Ch. Abdul Latif Saghar, Ch. M. Ashraf Khan and Jaffar Hussain for Respondents.

Dilawar Hussain, Standing Counsel.

Date of hearing: 30th August, 2012.

2013 P L C 374

[Sindh High Court]

Before Shahid Anwar Bajwa and Aftab Ahmed Gorar, JJ

MUHAMMAD KASHIF

Versus

Messrs KARACHI DOCK LABOUR BOARD through Chairperson and others

Constitutional Petitions Nos. D-1456 and D-1431 of 2011, decided on 10th September, 2012.

Industrial Relations Act (IV of 2008)---

---Ss. 2(xxv), 56(1)(d) & 69---Constitution of Pakistan, Art.199---Constitutional petition---Settlement---Benefit given under a particular settlement---Taking away or reduction in benefit---Contention of employee was that benefit once given under a particular settlement, could not be taken away or reduced to the disadvantage of a workman---Contention was repelled, as a memo of settlement in the present case, was a bilateral document between a Collective Bargaining Agent representing all the workmen employed in the establishment at the one hand; and the employer on the other hand, and in terms of S.56 of Industrial Relations Act, 2008 it was binding on all workmen---Statute had given protection to the settlement---Settlement in question though was a private agreement, but its enforcement had been provided through mechanism laid down by law---Case of a settlement in the present case, was an agreement between the parties, to which the legislature, had made it binding, not only on the employer, but also on heirs, successors or assignees of the employer; the present and future workmen---Law also provided for penal consequences, if a settlement was violated by any of the parties---Collective Bargaining Agent and the employer' could through, a subsequent settlement, modify any of the terms of settlement between the parties agreed in their previous settlement which was eminently logical from every angle, because industrial and commercial establishment operated in a commercial environment and commercial environment constantly changes---Legislature in its wisdom left the Collective Bargaining Agent and the employer to sit down and negotiate the terms and conditions of the employment---Both employer and Collective Bargaining Agent had been granted freedom to settle subject, of course, to what had been laid down as a minimum by the law; and then the law also provided for a period for settlement---Contention that subsequent settlement could not have modified the previous settlement; was without substance.

Abdul Ghaffar for Petitioner.

Ch. Abdul Latif Saghar, Ch. M. Ashraf Khan and Jaffar Hussain for Respondents.

Dilawar Hussain, Standing Counsel.

Date of hearing: 30th August, 2012.

2013 P L C 402

[Sindh High Court]

Before Aqeel Ahmed Abbasi and Abdul Rasool Memon, JJ

NAWAB AHMED KHANZADA

Versus

AUTHORITY UNDER PAYMENT OF WAGES ACT, 1934 AND COMMISSIONER WORKMEN'S COMPENSATION FOR HYDERABAD and 2 others

Constitutional Petition No.D-709 of 2011, decided on 9th July, 2013.

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

-----Ss. 15, 17(1)(a) proviso---Constitution of Pakistan, Art199---Constitutional petition---Wages, non-payment of---Alternate remedy---Non-deposit of decretal amount---Commissioner Workmen's Compensation directed petitioner company to pay illegally deducted wages of 253 workers employed with the petitioner---Validity---Petitioner could not point out any error or illegality in the judgment except raising objection with regard to appointment of Commissioner, which objection was neither factually correct nor legally sound---Petition was devoid of merits and had been filed with mala fide intention to circumvent legal requirement of deposit of amount in terms of proviso to section 17 (1) (a) of Payment of Wages Act, 1936, and to bypass and abandon the forum provided under the statute---Party could not be allowed to bypass or abandon the forum provided for the purpose of redressal of grievance under a statute without any lawful and reasonable excuse---Petition was dismissed in circumstances.

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

Khalid Mehmood v. Collector of Customs 1999 SCMR 1881 rel.

S. Muhammad Saulat Rizvi for Petitioner.

Allah Bachayo Soomro, Ahmed Khanzada, State Counsel for Respondents Nos.1 and 2.

Abdul Ghani Khan for Respondent No.3.

Date of hearing: 12th June, 2013.

2013 P L C 23

[Balochistan Labour Appellate Tribunal]

Before Abdul Ghias Nousherwani, Member

HABIB BANK LIMITED through President and 2 others

Versus

ATTA MUHAMMAD

Labour Appeal No.47 of 2011, decided on 3rd August, 2012.

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

----Ss. 41 & 55---Industrial Relations Act (X of 2012), Ss.3, 34(2) & 54(a)---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.15---Termination of service---Grievance petition---Services of the employee were terminated after charge-sheeting him and holding inquiry against him on ground of absence from duty---Grievance petition filed by the employee against order of termination was accepted by the Labour Court---Counsel for the employer had objected with regard to jurisdiction of Labour Court to the effect that only National Industrial Relations Commission was competent for matters relating to the employers and employees, having its establishment in more than one Province---Validity---Jurisdiction of National Industrial Relations Commission was confined to the matters affecting the affairs of establishments and employees within the entire country, or within the Provinces where the employer had establishment in more than one Province; to Trade Union or Collective Bargaining Units representing such employees, having their membership in more than one Province; and to matters of unfair labour practice---Matters of purely local nature were not under the jurisdiction of National Industrial Relations Commission---Matter in the present case related to an individual pertaining to the termination of his services, which not only was a matter of local nature, but was also covered under Balochistan Industrial Relations Act, 2010---Employee was ordered to be reinstated, and reported his arrival, but he was not posted and no salary was paid to him, and he was not reinstated according to law by the order of the court---Employee was not restored on his original position or office from which he was removed---Employee was not allowed to produce any evidence in inquiry proceedings---Judgment/order passed by Labour Court, was neither arbitrary nor perverse to invite interference by Labour Appellate Tribunal---Order passed by the Labour Court was maintained, with direction that employee be reinstated from the date of his termination with all back benefits admissible under the law / rules of the employer Bank.

PLD 2002 SC 84 and 2005 YLR 2007 ref.

(b) Words and phrases---

----"Re-instate"---Definition and explanation.

Ayaz Khan Sawati for Appellant.

Nasir Khan Yousafzai for Respondent.

Date of hearing: 27th July, 2012.

2013 P L C 31

[Balochistan Labour Appellate Tribunal]

Before Abdul Ghias Nousherwani, Member

DIN MUHAMMAD

Versus

PAKISTAN TELECOMMUNICATION COMPANY LTD. through General Manager and 2 others

Labour Appeal No.55 of 2011, decided on 16th August, 2012.

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

----S. 41---Grievance notice---Purpose and format---Purpose of serving of grievance notice was to bring the grievance of the employee in the notice of employer before approaching the Labour Court---Law/Legislature, had not provided a specific format for serving the grievance notice---Submission and receiving of applications filed by the employee for release of his salary with the averment that he was performing his duty, having not been disputed by the employers, grievance notice had been fully served in the shape of said applications.

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

----Ss. 41 & 54(2)---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.1---Stopping of salary---Grievance petition---Permanent workman---Salary of the employee was stopped, despite the fact that he was performing his duties and no termination order had been issued to him---Grievance petition filed by the employee having been dismissed by the Labour Court---Counsel for the employers had contended that employee along with others was appointed on temporary basis on daily wages---Validity---Record had revealed the employee along with others received salary on monthly basis by means of cheques and cash---Even otherwise in the scheme of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, there was no concept of employment of daily wages---Job/work of the employee was not temporary in nature, which was to be finished within a period not exceeding nine months, but it was a permanent job---Employee had gained the status of permanent employee for the reason that he had worked for more than nine months and completed a probationary period of three months satisfactorily without any break---Impugned order of the Labour Court was set aside, with direction to release the salaries of the employee from the date when same were stopped, which would continue in future according to law.

2001 PLC (C.S.) 41 ref.

Manzoor Ahmed Rehmani for Appellant.

Muhammad Iqbal Khaliji for Respondents Nos.1 and 2.

Nadeem Sheikh for Respondents Nos.3 and 4.

Date of hearing: 8th August, 2012.

2013 P L C 82

[Balochistan Labour Appellate Tribunal]

Before Abdul Ghias Nausherwani, Member

MANAGING DIRECTOR UTILITY STORE CORPORATION, ISLAMABAD and 5 others

Versus

MUDDASIR SHAHZAD and 230 others

Labour Appeal No.19 of 2012, decided on 9th July, 2012.

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

----Ss. 53(4), 68(2) & 68(3)---Grievance petition---Non-payment of court-fee on Vakalatnama---Effect---Representation of employer/ employee---Scope---Counsel for employers had objected to the Vakalatnama filed by the counsel for the employees on the ground that no power of attorney of the employees was available with the Vakalatnama; and that power of attorney which was available on the file of Labour Court, was also not valid because the same had not been prepared on Stamp Paper---Counsel for employer also contended that a large number of labourers could not empower a person to plead their case---Validity---Power of attorney was not required to be prepared on Stamp paper, and that was in practice since creation of Labour Laws---Under provisions of S.53(4) of Balochistan Industrial Relations Act, 2010, no court-fee was payable for filing, exhibiting or recording any document or obtaining any document from a Labour Court---For proceedings of Labour Courts, including Labour Appellate Authority, no court-fee was payable, except an ordinary court-fee on Vakalatnama---Under provisions of S.68 of Balochistan Industrial Relations Act, 2010 a workman who was a party to an industrial dispute, was entitled to be represented in any proceedings by an officer or a Collective Bargaining Agent, and subject to the provisions of Ss.68(2) & (3) of said Act, any employer who was party to an industrial dispute, was entitled to be represented in any such proceedings by a person, duly authorized by him---Objections were ruled out, in circumstances.

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

----Ss. 1(3), 34(2), 54(a) & 57---National Industrial Relations Commission, jurisdiction of---Scope---Jurisdiction of said Commission was confined to the matters affecting the affairs of establishments and employees in the country or within the Provinces, where the employer had establishments in more than one Province; to trade union or Collective Bargaining Units, representing such employees having their membership in more than one Province, and to the matters of unfair labour practice---National Industrial Relations Commission, had the jurisdiction over the matter of industrial dispute affecting all employers or workers of the establishment in more than one Province---Provisions of S.54(a) of Industrial Relations Act, 2012, had ousted the jurisdiction of National Industrial Relations Commission over matters of purely local nature, where the Trade Union or Federation of such Trade Unions, was a party---Explanation to S.57 of Industrial Relations Act, 2012, indicated that the jurisdiction of National Industrial Relations Commission, would come under consideration, where industry-wise trade union and federation of such trade unions had its membership of establishments in more than one Province.

Abdul Sattar Khan for Appellants.

Azam Jan Zarkoon for Respondents.

Dates of hearing: 3rd and 7th August, 2012.

2013 P L C 102

[Balochistan Labour Appellate Tribunal]

Before Abdul Ghias Nousherwani, Member

MCB BANK LIMITED through Attorney

Versus

MUHAMMAD IMRAN BHATTI

Labour Appeal No.13 of 2012, decided on 9th August, 2012.

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

----Ss. 2(dd), 41 & 55---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(i) & S.O.15---Dismissal from service---Grievance petition---Status of workman, determination of---Employee was dismissed from service after charge-sheeting him and holding inquiry against him on the charge that he did not inform the higher authorities about the irregularities committed by the branch Manager of the bank---Grievance petition filed by the employee against order of his dismissal was accepted by the Labour Court---Employer contended that employee was an accountant and did not fall within the category of workman/worker, therefore, his grievance petition was not maintainable; that the employee did not serve the grievance notice under the mandatory provisions; and that the Labour Court was not justified to treat the departmental appeal as a grievance notice---Validity---Although employee was working as an accountant on his last posting, but initially he was appointed as cashier with a pay of Rs.995 per month, which pay did not seem to be that of an officer---Secondly no power of attorney was executed in favour of the employee for showing that he was empowered to exercise discretion and could take important decisions---Employee was not heading an establishment of the bank independently---Labour Court, in circumstances, had rightly declared the employee as worker---Total theme behind the grievance notice was that the employee before approaching the court should bring his grievance in the notice of his employer by himself, or shop steward or Collective Bargaining Agent---Though in the present case, in the departmental appeal, the President was addressed, but through General Manager being the appointing authority---Such appeal came in process through the General Manager who automatically received the information, grievance notice of the employee---Aim and theme behind the grievance notice became completed when the departmental appeal was received by the appointing authority of the employee i.e. General Manager---Departmental appeal could be treated as grievance notice---Charge and inquiry in the case was conducted by the employer of their own and mandatory provisions of law of inquiry had been violated by not providing the relevant documents to the employee---Regarding allegation against the employee that he had not informed the higher authorities about the illegal activities committed by the manager, no rules or law or any direction was produced by the employer to show that employee being an accountant had any power to convey the illegal activities of the manager (who was his immediate boss) to the higher authorities---Fact that a subordinate would have such power/authority to report the illegal activities of his immediate boss to the higher authorities was against common sense---Allegation in the charge-sheet had been committed before the transfer of the employee in concerned branch, and employer bank had not suffered any financial loss--- Judgment/order passed by the Labour Court, was upheld and appeal was dismissed, in circumstances.

1985 SCMR 1516; SBLR 2007 Sindh 800 and NLR 2007 (Labour) 141 distinguished.

2010 TD (Lahore) 2017 and 2002 SCMR 943 ref.

Sabir Sardar for Petitioner.

Abdul Rasheed Khokhar for Respondent.

Date of hearing: 26th July, 2012.

2013PLC364

[Balochistan Labour Appellate Tribunal]

Before Abdul Ghias Nousherwani, Member

MEHMOOD AHMED

Versus

Messrs HABIB BANK LIMITED

Labour Appeal No.2 of 2013 decided on 11th June, 2013.

Industrial Relations Act (X of 2012)---

----S. 57--- Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.8(2)---Absence from duty--National Industrial Relations Commission (NIRC)---Jurisdiction---Scope---Appellant remained absent front duty for six days and bank retired him compulsorily from service---Bank contended that proper jurisdiction in the matter was with NIRC---Plea raised by appellant was that he was granted verbal leave---Validity---Jurisdiction of NIRC was confined with industry - wise trade unions and federations of which membership extended to establishment in more than one province, therefore, matter did not fall within the jurisdiction of NIRC---Matter had already been pending/adjudication since 2008, whereas Balochistan Industrial Relations Act, 2012 came in filed in year, 2011-2012, and it had no retrospective effect---Leave application form appeared in record was a request for grant of leave for six days onward for the purpose of "association affairs" but neither leave was granted nor refused---On another page of record, same leave application was available wherein it was mentioned as "cannot be allowed" but no signatures were available of forwarding authority or sanctioning authority---Workman, in the light of S.8(2) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 remained absent from 3-9-2007 onward unauthorizedly--- Labour Appellate Tribunal declined to interfere in judgment passed by Labour Court and order passed by bank was maintained---Appeal was dismissed in circumstances.

Abdul Razaq v. Ihsan Sons 1992 PLC 424; 2010 PLC 1; 2011 SCMR 1475; 2005 PLC 424 and 2006 TD (Labour) 471 ref.

Azam Jan Zarkoon for Appellant.

Ayaz Khan Sawati for Respondent.

Date of hearing: 30th May, 2013.

2013PLC386

[Balochistan Labour Appellate Tribunal]

Before Abdul Ghias Nousherwani, Member

ABDUL MUTALIB

Versus

CHIEF EXECUTIVE OFFICER Labour

Appeal No.34 of 2012, decided on 14th June, 2013.

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

----Ss. 41 & 54(2)--- "Workman "--- Determination--- Labour Court, jurisdiction of---Appellant was assistant lineman Electric Supply Company and his grievance application was dismissed by Labour Court on the ground of lack of jurisdiction--Validity---Appellant was connected with generation, transformation and supply of electricity and was to be treated as "workman", therefore, Labour Court had jurisdiction to entertain and proceed with the matter according to law for just decision on merits---No material was available on record whereof the matter could be finally decided by Labour Appellate Tribunal, therefore, order passed by Labour Court was set aside and case was remanded for fresh proceedings accord to law for decision on merits---Appeal was allowed accordingly.

PLD 2006 SC 602 fol.

Muhammad Shafiq v. QESCO C.A. No.89/Q of 2009 distinguished.

Hayat Mengal for Appellant.

Muhammad Afzal for Respondent.

Date of hearing: 30th May, 2013.

2013 P L C 11

[Punjab Labour Appellate Tribunal]

Before Abdul Hafeez Cheema, Chairman

PRESIDENT MCB LIMITED

Versus

MUHAMMAD SHAMS-UZ-ZAMAN

Appeal No.MN-774 of 2009, decided on 5th August, 2011.

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

----Ss. 2(xxxi), 33 & 47---Dismissal from service---Workman, determination of---Respondent employee who was serving as Manager of a Branch of Bank, was dismissed from service on account of alleged fraud and misappropriation---Employee filed grievance petition against order of his dismissal from service, which was allowed by the Labour Court---Validity---Employee by his own showing, was serving as a Manager of Branch of the bank, when he was charge-sheeted for misconduct and after holding a fair, proper and impartial enquiry he was dismissed from service---When employee conceded himself to be Manager, the size of the branch of bank, would become immaterial---Employee who was working as Manager, which was supervisory, managerial and directional capacity, was not entitled to seek relief from the Labour Court and could not be termed as a workman and would not fall within the category of "worker"---Employee, being not workman, was not entitled to invoke jurisdiction of the Labour Court---Impugned order of Labour Court was set aside, in circumstances.

Javaid Hussain Naqi v. Member Board of Directors MCB and others C.P.L.A. No.1069 of 2008 and Dilshad Khan Lodhi v. Allied Bank of Pakistan and others 2008 SCMR 1530 rel.

Haider U. Mir for Appellants.

Sajjad Rafi for Respondent.

Date of hearing: 30th June, 2011.

2013 P L C 18

[Punjab Labour Appellate Tribunal]

Before Abdul Hafeez Cheema, Chairman

MANAGING DIRECTOR, WATER AND SANITATION AGENCY GUJRANWALA and others

Versus

KHAWAR NADEEM and others

Appeals Nos.GA-5, GA-6, GA-7 of 2011, GA-3712, GA-3719 and GA3721 of 2010, decided on 23rd February, 2012.

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

----Ss. 33 & 47(5)---Regularization of service---Grievance petition---Employees claiming to be workmen filed grievance petitions for regularization of their services---Said petitions were contested by employer authority on the ground that employees were recruited as work charge employees for 89 days; that such period continued to be extended from time to time; and that being temporary employees they had no mandate to seek their regularization---Labour Court declaring the employees permanent, allowed their grievance petitions with back benefits from the date of serving grievance notice---Validity---Employees were continuing in their services and the breaks shown, were artificial---Case of the employer authority was not that when 89 days ended, the employees left the service---Employees continued to serve the employer authority, though official order was passed after a one or two days break when the period of 89 days ended---Said break, would not be deemed to be hurdle in the continuation of their service---Grievance petitions of the employees had been allowed with back benefits from the date of serving grievance notices, but employees were claiming full back benefits---Provincial Governments as well as their institutions were facing financial crunch and it appeared that Labour Court had considered every aspects of the matter and passed an order which in the given circumstances of the case appeared to be appropriate---Employees should feel content that the Labour Court had given them relief, which even otherwise appeared to be in keeping with the dictates of law and was likely to meet the ends of justice---Both the sets of appeals filed by the employers as well as the employees, were dismissed in circumstances.

Executive Engineer Central Civil Division Pak PWD Quetta v. Abdul Aziz and others 1996 PLC 385; 2008 PLC 284 and 2010 TD 90 = 2009 PLC 196 rel.

Abdul Hakeem Awan for WASA.

Gorsi Muhammad Din Ch. for Employees.

Date of hearing: 16th February, 2012.

2013 P L C 29

[Punjab Labour Appellate Tribunal]

Before Abdul Hafeez Cheema, Chairman

IHSAN ULLAH

Versus

ADMINISTRATIVE IRSHAD TRADERS, GUJRANWALA

Appeal No.GA-1873 of 2010, decided on 30th April, 2012.

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

----S. 2(xxxi)---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(i)---Dismissal of grievance petition, appeal against---Status of workman, determination of---Appellant who was employed as Supplier in the respondent establishment, was ousted from service after about 3 years of his employment---Appellant filed grievance petition on the ground that he being workman was removed from service without any show cause notice and without holding any inquiry---Labour Court dismissed the grievance petition holding that since appellant was a salesman, Labour Court had no jurisdiction to entertain his grievance petition---Validity---Marked difference existed between an ordinary salesman who handed over goods to the customers on the prices fixed by the employer and one who was expected to display the quality of initiative and drive, intelligence and correct speculation and for doing that he was given some independence in the line of action and was expected to use his mental faculties to find new avenues of sales promotion---All said elements could be found only after recording of evidence to determine whether appellant was a salesman simpliciter or sales promotion employee---Recording of evidence, in circumstances was a sine qua non---Since the evidence had not been recorded, case was remanded to the Labour Court with a direction to record the evidence and then decide the matter afresh.

Abdul Rashid, Representative for Appellant.

M. Salman Saddiqui for Respondent.

Date of hearing: 30th April, 2012.

2013 P L C 36

[Punjab Labour Appellate Tribunal]

Before Hafiz Abdul Rehman Ansari, Chairman

PRINCIPAL, SARDAR KAURAY KHAN PUBLIC HIGHER SECONDARY SCHOOL, MUZAFFARGARH and another

Versus

Mrs. BUSHRA FARASAT and another

Revision Petitions Nos.MN-126 and MN-127 of 2011, decided on 13th March, 2012.

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

----S. 2(xxxi)---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(xxx) & S.O.15---Termination of service---Grievance petition---Employees filed grievance petition against order of termination of their service---During pendency of said grievance petition, the employers filed application for rejection of grievance petition on the ground that Labour Court concerned had no jurisdiction to entertain the same as the employees were not workmen---Said application filed by the employers having been dismissed by the Labour Court, employers had filed revision against said interim order---Employees had asserted in the grievance petition that they were doing manual work while also doing the duty of school teachers in the school---Validity---Without recording the evidence it could not be presumed that employees were only teaching the students---Labour Court had rightly dismissed application filed by the employers for dismissal of grievance petition filed by the employees---Revision application was dismissed, in circumstances.

1987 PLC (C.S.) 497 rel.

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

----O. VII, R.11---Rejection of plaint, application for---Scope---While deciding an application under O.VII, R.11, C.P.C. for rejection of plaint, only the plaint could be considered (to determine) whether the plaintiff had any cause of action or not---No other material could be seen at such stage.

Muhammad Anwar Khan Sherwani for Petitioners.

Malik Muhammad Tariq Rajwana for Respondents.

Date of hearing: 13th March, 2012.

2013 P L C 39

[Punjab Labour Appellate Tribunal]

Before Asad Munir, Chairman

IMDAD AHMED and others

Versus

FACTORY MANAGER, NESTLE PRIVATE LIMITED, SHEIKHUPURA and another

Revision Petitions Nos.LHR-516 and LHR-517 of 2011, decided on 23rd July, 2012.

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

----S. 33(10)---Joint grievance petition---Petitioners/employees, whose services were terminated, filed joint grievance petition, but Labour Court ordered them to withdraw their joint grievance petition and instead file separate grievance petitions as each petitioner had independent cause of action; and as dates of birth of the petitioners and dates of entry in service were different---Validity---Section 33(10) of Punjab Industrial Relations Act, 2010 provided that workers having a common grievance arising out of a common cause of action could make a joint application to the Labour Court---Object of said provision was to avoid multiplicity of proceedings where a number of workers had identical or similar grievance---Such workers could maintain a joint grievance petition instead of filing separate or individual grievance petitions---Said provision was designed to give an option to a plurality of workers having a common grievance or cause of action to bring a single, but joint grievance petition---Revision petition filed by the employees against the impugned order of the Labour Court was objected to on the ground that same was not competent for not being supported by a proper affidavit---Such technical objection could not be sustained considering that a mere irregularity could not make the revision petition incompetent---Under provisions of S.47(5) of Punjab Industrial Relations Act, 2010, Labour Appellate Tribunal, in exercise of its revisional jurisdiction, had wide and suo motu powers to satisfy itself as to the correctness, legality or propriety of any order passed by a Labour Court within its jurisdiction---Revision petition was allowed and impugned order was set aside, with the direction that the issue of maintainability of the joint grievance petition was to be decided by Labour Court in the light of observations of the Appellate Tribunal.

Messrs Johnson and Philips (Pakistan) Limited Karachi v. Mukhtar Ahmed and others 1993 PLC 752 distinguished.

Pearl Continental Hotel, Karachi v. Muhammad Yasin 2006 PLC 269 and Nasrin Javed and 4 others v. Nadeem Electric (Pvt.) Ltd., Haripur, through Managing Director 1996 PLC 505 rel.

Akhtar Rasool Joiya for Petitioners.

Ch. Abdul Rab for Respondents.

Date of hearing: 13th July, 2012.

2013 P L C 44

[Punjab Labour Appellate Tribunal]

Before Abdul Hafeez Cheema, Chairman

PAKISTAN TELECOMMUNICATION COMPANY LIMITED through General Manager, Islamabad

Versus

WASIM QAISER

Application No.23 of 2012 in Labour Appeal No.RI-926 of 2009, decided on 13th March, 2012.

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

----S. 47---Dismissal of appeal for non-prosecution---Application for restoration of appeal---Appeal was pending adjudication before the High Court in absence of the Tribunal---Appeal was transferred to the Tribunal on its re-establishment---Appeal continued to be pending, but no one appeared on behalf of the appellant for more than one year and Tribunal dismissed the appeal for non-prosecution---Appellant/ applicant went into deep slumber and filed an application for restoration of appeal almost after a year---Effect---Huge delay of more than one year had not at all been explained properly---Law required each day's delay to be explained, but no cogent or confidence inspiring explanation was given for such delay---Submission of counsel for appellant was that advocate who was incharge of the case prior to the entrustment of appeal to other counsel, did not properly pursue the matter and did not inform about the dismissal of the appeal for non-prosecution in time---Counsel had contended that delay being not intentional or deliberate, same could be condoned---Such contention was repelled as it was the requirement of law that if the counsel lately engaged in the case was not present, counsel engaged earlier should have taken charge of the case and should have appeared---Even otherwise, if the counsel for the appellant could not appear on the given date before the court, duty was cast upon the appellant to appear in the absence of counsel---Appellant was not absolved from appearance in the court---Applicant/appellant having failed to show any reasonable, cogent or plausible explanation for the absence of his counsel or for himself, application for restoration of appeal, was dismissed, in circumstances.

Almas Ahmad Fiaz v. Secretary Government of the Punjab Housing and Physical Planning Development, Lahore and another 2006 SCMR 783; PLD 2008 SC 130 and Zulfiqar Ali v. Lal Din and another 1974 SCMR 162 rel.

Bilal Munir for Appellant.

Mirza Muhammad Afzal for Respondents.

Date of hearing: 13th March, 2012.

2013 P L C 48

[Punjab Labour Appellate Tribunal]

Before Asad Munir, Chairman

CHIEF EXECUTIVE OFFICER, FAISALABAD ELECTRIC SUPPLY COMPANY LIMITED, FAISALABAD and another

Versus

NAZIR AHMED

Appeal No.FD-404 of 2011, decided on 9th August, 2012.

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

----Ss. 33 & 47(3)---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.1(4) & S.O.15---Removal from service---Grievance petition---Employee was charged with fraud and proceedings were initiated against him under S.5(4) of Removal from Service (Special Powers) Ordinance, 2000 and he was removed from service without holding formal inquiry against him---Departmental appeal filed by employee having remained pending, the employee filed appeal before Federal Service Tribunal---Tribunal relying upon a judgment of the Supreme Court dismissed appeal on the ground that it had no jurisdiction as the employees of the employer company were not governed by any statutory rules---After said order of the Service Tribunal, employees filed grievance petition, which was accepted by the Labour Court and he was re-instated with back benefits---Counsel for employer company contended that since Removal from Service (Special Powers) Ordinance, 2000, allowed removal from service without holding any inquiry, Labour Court had failed to apply the provisions of the said Ordinance holding that removal of the employee was illegal for want of inquiry---Validity---Contention was repelled as once it was agreed that the Labour Court had the jurisdiction, the provisions of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, including Standing Order 15(4) of said Ordinance, must apply without exception, instead of Removal from Service (Special Powers) Ordinance, 2000---Scheme of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, did not allow a Labour Court to apply any other law including Removal from Service (Special Powers) Ordinance, 2000, while deciding a matter involving the industrial grievance of a workman---Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 was a special law, which was designed to govern the workmen exclusively---Said Ordinance obliged the employer not to punish a workman for misconduct, unless the misconduct was established through an impartial and independent inquiry---Said special law, must be allowed to prevail over the Removal from Service (Special Powers) Ordinance, 2000, which had to be regarded as general law, considering that it was much wider in scope as it applied generally to all persons, regardless of whether they were workmen---Employee's removal from service, could not be sustained as no inquiry was held into the alleged misconduct attributed to him---Employee's reinstatement in service by means of impugned judgment was not open to any exception, in circumstances---Appeal was dismissed in circumstances.

I.-G. Frontier Corps v. Ghulam Hussain 2004 SCMR 1397 rel.

Saeed Ahmed Bhatti for Appellants.

Asmat Kamal Khan for Respondent.

Date of hearing: 11th July, 2012.

2013 P L C 52

[Punjab Labour Appellate Tribunal]

Before Abdul Hafeez Cheema, Chairman

DIRECTOR PENSION WAPDA and 2 others

Versus

ABDUL MAJEED BHATTI

Appeal No.LHR-88 of 2009, decided on 24th May, 2010.

Industrial Relations Ordinance (XCI of 2002)---

----S. 46---Appointment in age of minority---Reckoning of period served under minority---Grievance petition---Employee joined service of employer authority when his age was about 15 years, whereas according to the Rules, only a person not below the age of 18 years could be inducted into service of authority---Employee continued to get his pay from the first day he joined service---Employee claimed that he had rendered his service with the authority including period of his service during minority---Claim of employer authority was that minority period of 2 years was to be excluded from his service period---Reason advanced by the authority was that according to the Rules the permissible age of joining the service being 18 years, services rendered prior to that were not to be included in the pensionary service---Validity---Where employer authority had committed an irregularity, the employee could not be penalized for such a fault---No one would take advantage of his own wrong---Employee's period of minority should have been included and his period of service should have been computed with effect from the day he joined service---Appeal was dismissed accordingly.

1996 PLC (C.S.) 348 rel.

I.A. Sharwani and others v. Government of Pakistan through Secretary Finance Division Islamabad and others 1991 SCMR 1041; D.S. Nakara and others v. Union of India AIR 1983 SC 130 and People's Union for Democratic Rights and others v. Union of India and others AIR 1982 SC 1473 ref.

Muhammad Iqbal Khokhar for Appellants.

Maqsood Ullah Malik for Respondent.

Date of hearing: 18th May, 2010.

2013 P L C 199

[Sindh Labour Appellate Tribunal]

Before Ali Muhammad Baloch, Member

TARIQ MEHMOOD

Versus

Messrs ALLIED BANK OF PAKISTAN LTD. through President and 3 others

Appeal No.HYD-92 of 2010 (L.A.106 of 2004), decided on 26th January, 2012.

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

----S. 46---Form and requirement of grievance notice---No specific form or nature of grievance notice had been given by law---In absence of any such form, anything in writing could be considered as "grievance notice".

2009 PLC 160 and Abdul Razzaq v. Ehsan Sons 1992 PLC 424 rel.

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

----Ss. 46 & 47(3)---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.15---Dismissal from service---Grievance petition---Labour Court, without considering both enquiry proceedings and reports had admitted those as true and established facts, despite original complainant had not been examined---Employee was alleged to have levelled allegation against the Accountant, but said Accountant was not produced in the domestic enquiry in order to clarify the position---On the basis of such type of enquiry, major punishment could not be imposed on the employee---Employee had service of 24 years at the time of service of charge-sheet on him; and employers had not contended that employee's character was blemished; and that he was served explanation/show-cause/charge-sheet at a number of times, or he was warned earlier---By such kind of enquiry, no charge had been proved against the employee and he was entitled to be reinstated in service, in circumstances---Charge against the employee having not been proved, the findings of the Labour Court, were not in accordance with record and the evidence recorded by the Labour Court---Dismissal orders passed against the employee, were set aside and the prayer of the employee as in the grievance application, was allowed---Employers were directed to comply with the decision of the Tribunal within thirty days.

S.M. Saulat Rizvi for Appellant.

Shahid Anwar Bajwa & Co. for Respondents.

Date of hearing: 24th November, 2011.

2013 P L C 236

[Sindh Labour Appellate Tribunal]

Before Ali Muhammad Baloch, Member Messrs GHANDHARA NISSAN LTD.

through Constituted/authorized person

Versus

GHANDHARA NISSAN LTD. AZAD LABOUR UNION through President/General Secretary and others

Revision Application No.KAR-13 of 2012, decided on 28th August, 2012.

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

----S. 9 (Revived by Industrial Relations (Revival and Amendment) Act (XV of 2010)---Registration of Trade Union---Scope---Registrar of Trade Unions was bound to inform the concerned union about its registration application within fifteen days, but if Registrar would fail to do so, the concerned union was authorized to approach Labour Court in appeal---Subsection (3) of S.9 of Industrial Relations Act, 2008, had not given any character to the employer---Employer or any other union in the matter of registration, had no right to be heard or to be taken into consideration---Registration of Trade Union could not be challenged on the ground that chance of hearing had not been given to the employer or other Trade Union.

Essa Cement Industries Workers Union v. Registrar of Trade Unions and others 1998 PLC 500 rel.

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

----S. 55(4) (Revived by Industrial Relations (Revival and Amendment) Act (XV of 2010)---Revisional power of Appellate Tribunal---Scope---Tribunal has suo motu revisional powers under S.55(4) of Industrial Relations Act, 2008 and could call record of any case or proceedings, either pending or disposed of if not covered by any other provision for the purpose of appeal---Revisional powers of the Tribunal were restricted only to the checking of correctness, legality and propriety of the order passed by the Labour Court---While deciding the revision, Tribunal was bound to check the correctness of the order passed on the basis of the facts produced before the Labour Court, and the legality of the order.

Norwich Union Fire Insurance Society Limited v. Muhammed Jawed Iqbal 2 another 1986 SCMR 1071; Jannat Textile Mills Limited v. Sindh Labour Appellate Tribunal and others PLD 1979. Kar. 725 rel.

Muhammad Humayun and Ghulam Murtaza Saryo for Applicant.

Muhammad Shafiq Qureshi for Respodents Nos.1 to 7.

Altaf Hussain, Assistant Director Labour (TU) for Respondent No.8.

Nemo for Respondents Nos.9 and 10.

Date pf hearing: 13th August, 20012.

2013 P L C 258

[Sindh Labour Appellate Tribunal]

Before Ali Muhammad Baloch, Member

INDUS JUTE MILLS LIMITED through Aijaz Ahmed

Versus

INDUS JUTE MILLS LIMITED PEOPLES WORKERS UNION through General Secretary and another

Revision Application No.HYD-8 of 2011, decided on 30th May, 2012.

Industrial Relations Act (IV of 2008)---

----Ss. 12, 13(b), 30(3), 55(4) & 68---Registration and cancellation of Trade Union---Representation of party---In the matter of registration of union, or its cancellation, employer or any other union had no right to be heard.

Sher Muhammad v. Chairman, Industrial Court of West Pakistan and others 1967 PLC 147; Ahmed Khan v. Municipal Corporation through Chairman and 2 others 1986 PLC 978; In re: Representation of a worker 2000 PLC 438; Ghulam Muhammad Khan and others v. Sabir Javed 1982 PLC 1100 and Sharaf Faridi and 2 others v. M.A. Shahani and 7 others Suit No.277 of 1974 ref.

Allied Bank of Pakistan Ltd. and others v. Rafique Ahmed Soomro NLR 2004 Labour 43; Messrs Ramzan Ali and Co. Cotton Ginning and Pressing Factory, Mirpurkhas v. General Secretary, Employees Union and another 1996 PLC 311 and Messrs Coca Cola Beverage Pakistan Limited through Authorized Officer/Industrial Relations Manager v. Registrar Trade Unions Sindh and 3 others 2010 PLC 48 distinguished.

Messrs Plasticrafters (Pvt.) Limited v. Registrar of Trade Unions 1999 PLC 263 rel.

Khalid Imran for Applicant.

Ghulam Murtaza Saryo for Respondent No.1.

Nemo for Respondent No.2.

Dates of hearing: 20th February, 21st March, and 30th May, 2012.

2013 P L C 266

[Sindh Labour Appellate Tribunal]

Before Ali Muhammad Baloch, Member

ARMY WELFARE SUGAR MILLS, BADIN through General Manager/Employer/Manager

Versus

ABDUL SATTAR and another

Appeal No.HYD-185 of 2010 (L.A.6 of 2006), decided on 10th September, 2012.

Industrial Relations Act (IV of 2001)---

----Ss. 41 & 55---Transfer of worker---Grievance application---Case of employee was that to eliminate the Trade Union in the establishment, employer transferred number of workers to other establishment and under such threat of transfer obtained resignation from number of workers and that employers got his signatures on resignation under such threat--- Employers, in reply/statement had asserted that resignation of the employee was voluntary and that grievance notice of the employee was time-barred---Labour Court allowed the grievance petition filed by the employee---Validity---Only the office bearers and members of the Union were served with transfer letters and no other worker was transferred to other establishment which would mean that same had been served/issued with mala fide intention in order to remove the union from the scene---Delay of few days in serving grievance notice, in circumstances, could be condoned, as the entire action of the employers, was based on mala fides---Labour Court had rightly ignored the said legal objection of the employers, and had considered the grievance application within time---Impugned order of the Labour Court was unexceptional, in circumstances.

1992 SCMR 2169 rel.

Muhammad Humayun and Ghulam Murtaza Saryo for Appellant.

Bashir Ahmed for Respondent No.1.

Date of hearing: 15th August, 2012.

2013 P L C 287

[Sindh Labour Appellate Tribunal]

Before Ali Muhammad Baloch, Member

GULZAR AHMED and others

Versus

Messrs J&S ENTERPRISES (PRIVATE) LIMITED

Appeals Nos.KAR-1324 of 2010 (L.A.370 of 2007), KAR-1325 of 2010 (L.A.371 of 2007), KAR-1326 (L.A 372 of 2007), KAR-1327 of 2010 (L.A. 373 of 2007), KAR-1328 of 2010 (L.A. 374 of 2007), KAR-1329 of 2010 (L.A. 375 of 2007), KAR-1330 of 2010 (L.A. 376 of 2007), KAR-1331 of 2010 (L.A. 377 of 2007), KAR.1332 of 2010 (L.A. 378 of 2007), KAR-1333 of 2010 (L.A. 379 of 2007), KAR-1334 of 2010 (L.A.380 of 2007), KAR-1335 of 2010 (L.A.381 of 2007), KAR-1336 of 2010 (L.A.382 of 2007), KAR-1337 of 2010 (L.A.383 of 2007), KAR-1338 of 2010 (L.A.384 of 2007), KAR-1339 of 2010 (L.A.385 of 2007) and KAR-1322 of 2010 (L.A.359 of 2007), decided on 30th January, 2012.

Industrial Relations Ordinance (XXIII of 1969)---

----S. 25-A---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.Os.12(3) & 13---Termination of service---Grievance petition---Termination orders under Standing Order 12(3) of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 were issued on the ground of re-organization/modernization of the establishment---Employees in the grievance application had alleged that junior workers had been continued in employment, but their services, despite they being seniors, were terminated---Validity---Collective Bargaining Agent's agreement and Memorandum of Understanding revealed that there was provision in the documents to the effect that in case of modernization and retrenchment, the Management had agreed not to terminate the services/close the department, but would adjust the workers of said department in other departments---Another such agreement was entered between the employees and employers subsequently wherein termination of employees was agreed upon in case of modernization etc.---In absence of any evidence to the contrary, the reason given by the Management was endorsed to be genuine, and the employees had themselves admitted that they were junior ones and the Management was not bound by any agreement to adjust them in any other department---Order of Labour Court was maintained, but employers were directed to calculate the dues of the employees according to 7th Wage Board Award along with the benefits as admitted in the memorandum of understanding.

Syed Ali Mehdi for Appellants Nos.1 to 16.

Ashraf hussain Rizvi for Appellant No.17.

Muhammad Humayun and Ghulam Murtaza Saryo for Respondents.

Date of hearing: 2nd November, 2011.

2013 PLC 315

[Sindh Labour Appellate Tribunal]

Before Ali Muhammad Baloch, Member IBRAHIM KHAN

Versus

Messrs SAIF INDUSTRIES (PVT.) LTD., KARACHI

Revision Application No.KAR-152 of 2010 (L.R.A.12 of 2006), decided on 16th February, 2012.

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

--S. 1(4)(c), Proviso, S.Os.10-B, 11(6)(8), 12 & 15---Industrial Relations Act (IV of 2008), S.55(4)---Application of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 for determination of entitlement of applicant for the payment of gratuity---Scope---Record established that at the relevant time, less than 49 persons were employed in the establishment, whereas according to Proviso to S.1(4)(c) of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, provisions of Standing Orders 10-B, 11(6)(8), 12 & 15, would not apply to any industrial establishment wherein not more than forty-nine persons were employed on any day during the preceding 'twelve months---Applicant, in circumstances, was not entitled for gratuity according to law---Labour Court, in circumstances, had rightly rejected the claim of the applicant.

Bacha Fazal Mannan for Applicant.

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

Date of hearing: 23rd January, 2012.

2013PLC353

[Sindh Labour Appellate Tribunal]

Before Ali Muhammad Baloch, Member

Messrs AFROZE TEXTILE INDUSTRIES (PVT),LTD through Manager

Versus

Syed HASHMAT ALI and others

Appeals Nos. KAR-227, KAR-234, KAR-235, KAR-239, KAR-240 and KAR-242 of 2011, decided on 15th January, 2013.

(a) Industrial Relations Act (IV of 2008)

----S. 41---Issuance of grievance notice---Proof--Employer's legal objection was that grievance notice was not served by the employees---Validity---Original envelope sent by the employees, had clearly reflected that grievance notice was sent by employees---Employees had produced postal receipts along with grievance petition and copy of grievance notice---Service of grievance notice by the employees on the employer, had fully been established, in circumstances.

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

----S.O. 15(3)---Industrial Relations Act (IV of 2008), , Ss.41 & 55---Misconduct---Dismissal from service-Grievance petition---Acts of misconduct alleged in the charge-sheet were; that employees resorted to illegal strike; that employees instigated other workers to continue the strike till the issuance of charge-sheet; and that the employees had continuously been found absent for more than ten days---Charge-sheet was issued on the very second day of commencement of unauthorized absence---Absence of two days could not be termed as a misconduct under Standing Order 15{3) of Standing Orders Ordinance, 1968 charge-sheet, in circumstances, was perverse and based on mala fides---Continuation of illegal strike could not be substantiated without any cogent and specific reason, as no other worker had been served with any show-cause notice or charge-sheet---Impugned order passed by the Labour Court, which did not suffer from any illegality, same was maintained, in circumstances.

S. Mehboob Rizvi for Appellant.

M. Irfan Sheikh for Respondents.

Date of hearing: 3rd December, 2012.

2013 P L C 1

[Lahore High Court]

Before Ijaz-ul-Ahsan, J

SIDDIQUE AKBAR

Versus

CHAIRMAN STATE LIFE INSURANCE CORPORATION OF PAKISTAN, KARACHI and 4 others

Writ Petition No.7249 of 2012, decided on 12th September, 2012.

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

----S.O. 15---State Life Employees (Service) Regulations, 1973, Regln. No.33---State Life Employees (Pension) Regulations, 1986, Reglns. 10(3) & 11---Constitution of Pakistan, Arts.25 & 199---Constitutional petition---Dismissal from service---Reinstatement of employee after exoneration---Entitlement to back benefits, salary and statutory promotions---Scope---Employee was dismissed from service on allegation of misconduct---Appeal filed by employee against order of dismissal having been dismissed by the Service Tribunal, the employee filed appeal before the Supreme Court---Supreme Court set aside order of dismissal and ordered fresh inquiry into the matter and the employee re-joined his service after 456 days of dismissal from service---As per orders of the Supreme Court, de novo inquiry was conducted and on completion of inquiry, the employee was exonerated of all charges, but his period of suspension was treated as extraordinary leave without pay---Being dissatisfied of said order, employee filed another departmental representation with the prayer that his period of service shown as extraordinary leave should be treated as part of service, and that he should be considered eligible for service benefits which had accrued for the period during which he remained out of service---Said representation filed by employee was partly accepted, insofar as annual increments were allowed, but no order was passed regarding other withheld increments and he was also not considered for due promotion along with his batch-mates---Appeal filed by the employee against said order under Regulation No.33 of State Life Employees (Service) Regulations, 1973 was partly accepted against which, employee had filed instant constitutional petition---Employee had been reinstated with effect from the date of his termination from service by unconditionally exonerating him of all the charges, therefore, he would not only be entitled to all his salaries from the date of dismissal till the date of his reinstatement, but also to the increments and other benefits which were granted to other similarly placed officials of the employer's corporation from time to time including annual grade increments---Fact that employee stood dismissed from service, had been washed away by reason of his reinstatement---Absence of employee from duty which in any event was forced, could neither be converted into extraordinary leave without pay, nor could he be denied annual grade increments for the year during which he was not in service---Denial by corporation to allow back benefits, promotion and seniority to the employee, was patently violative of the principle of equality as enshrined in Art.25 of the Constitution---Employee could not be made to suffer for an act of a higher authority and for no fault on his part---Nothing on record showed that the employee was gainfully employed during the period that he was kept away from his job---Employer corporation was under an obligation to follow the rule and not the exception---Employee, in circumstances, was held entitled to the benefits claimed by him.

2010 SCMR 1493; General Manager/Circle Executive Muslim Commercial Bank Limited v. Mahmood Ahmed Butt and another 2002 SCMR 1064; Sher Muhammad Shehzad and 22 others v. District Health Officer and another 2006 SCMR 421; Binyamin Masih v. Government of Punjab through Secretary, Education, Lahore and 4 others 2005 SCMR 1032; Muhammad Hussain and others v. E.D.O. (Education and others 2007 SCMR 855 and Mansoor ul Haq's case 2004 SCMR 1308 rel.

Syed Ijaz Qutab for Petitioner.

Ali Akbar Qureshi for Respondents.

2013 P L C 143

[Lahore High Court]

Before Muhammad Khalid Mehmood Khan, J

Syed IMRAN ALI SHAH

Versus

GOVERNMENT OF PAKISTAN through Secretary Human Resources (HR) Division, Islamabad and 2 others

Writ Petitions Nos.1579 and 5081 of 2012, decided on 12th April, 2012.

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

----Preamble & S.7---Constitution of Pakistan, Arts. 270-AA & 70(4)---Declaration and continuance of Laws---Employees' Old-Age Benefits Act, 1976 was enacted by the Parliament when the subject of Labour was a part of Concurrent Legislative List---Through the Constitution (18th Amendment), the Concurrent Legislative List was omitted and Art.270-AA was inserted in the Constitution, which protected the Legislation under the then Concurrent Legislative List, until the existing laws were amended, altered and repealed---Provinces could alter, amend or repeal the existing laws---Nothing was mentioned in the law to the effect that till amendment, alteration or repeal was undertaken by the Provincial Government, the management and control of Employees' Old-Age Benefits Institution (EOBI), would continue to remain with the Federation or Employees' Old-Age Benefits Act, 1976, would remain a Federal Law---Article 270-AA of the Constitution, was a declaration of repeal of certain enactments and continuance of a number of others---Enactments referred to in Art.270-AA(1) of the Constitution, had been declared without lawful authority---Sub-clause (2) of Art.270-AA, however saved Legislations which were enacted between 12th October 1999 to 13th December 2003 and which were still in force---Such Legislations would continue to be in force until altered, amended or repealed by the Competent Authority---After the Constitution (18th Amendment), the Concurrent Legislative List was omitted from the Constitution, meaning thereby that Federation's power to enact Laws on the subject ceased to exist---Power of the Federation to legislate, was now limited to items referred in Federal Legislative List, including Part II under Art.70(4) of the Constitution---Contention of counsel for the Authority that Employees' Old-Age Benefits Act, 1976, would remain Federal Law until altered, amended or repealed, did not find support from the wordings of Art.270-AA(6) of the Constitution---Parliament had left the option for the Provinces that they could continue with the already enacted law, or alter, or amend the same---System and framework under Employees' Old-Age Benefits Act, 1976 would remain intact---Subject of Labour laws after omission of Concurrent Legislative List, stood transferred and had fallen in the domain of the Provinces---No entry was available in the Federal Legislative List relating to the subject of labour---Amendment of Art.270-AA of the Constitution, had to be examined as a whole, particularly Art.270-AA(6)(8)(9), the Federal Legislative List, read with the principle of "generalia specialibus non derogant" (general words or provisions, do not affect special words or provisions)---Constitution (18th Amendment) was adopted under special and peculiar circumstances; its language and intent must prevail over the general items of the Federal Legislative List.

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

Messrs Elahi Cotton Mills Ltd. and others v. Federation of Pakistan through Secretary M/o Finance, Islamabad and 6 others 1997 PTD 1555; Shamas Textile Mills Ltd. and others v. The Province of Punjab and 2 others 1999 SCMR 1477; Federation of Pakistan v. Aitzaz Ahsan and another PLD 1989 SC 61 and Messrs E.F.U. General Insurance Co. Limited v. The Federation of Pakistan and others PLD 1997 SC 700 distinguished.

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

----Preamble & S.7---Constitution of Pakistan, Arts.142, 143 & 270-AA---Subject-matter of Federal and Provincial Laws---Inconsistency between Federal and Provincial Laws---Declaration and continuance of laws---Under Art.142(a) of the Constitution, Parliament (Majlis-e-Shoora) had the exclusive powers to enact laws regarding any matter which was referred to in the Federal Legislative List---Under Art.142(c) of the Constitution, subject to Sub-Article (b) of Art.142, the Provincial Assembly had the exclusive power to make laws regarding matters, which were not mentioned in the Federal Legislative List---Only three items were available as per Art.142(b) for Concurrent Legislation by Parliament and Provincial Assemblies---Labour law was not one of the said three items; consequently, it could be said that labour law fell within the exclusive Legislative domain of Provincial Assemblies---After Constitution (18th Amendment), a number of enactments became Provincial subjects including Employees' Old-Age Benefits Act, 1976---Parliament, while amending the Constitution had saved those enactments which came under the domain of Provinces as a result of the amendment---Article 270-AA of the Constitution provided that those Laws would continue to remain in force until altered, amended or repealed by the Competent Authority, which authority had also been provided in Art.270-AA---Enactments of Concurrent Legislative List ipso facto became Provincial Laws and those enactments would continue to remain in force in their present form---Competent authority would have the powers to alter, amend and repeal those laws---Said laws, including Employees' Old-Age Benefits Act, 1976, were permanent laws and not temporary laws.

(c) Words and phrases---

----'Devolution', meaning and connotation.

Oxford English Dictionary and Blacks Law Dictionary rel.

(d) Constitution of Pakistan---

----Art. 97---Rules of Business, (1973)---Executive authority of Federation---Extent---Federal Government under Art.97 of the Constitution, could exercise its executive authority only with respect to those matters, which fell within the domain of Parliament---Rules of Business (1973), were meant to facilitate running the affairs of Federal Government---When the Federal Government had no powers in relation to Provincial Laws, Prime Minister could not exercise powers relating to Provincial matters in purported exercise of his executive authority.

Fiaqat Hussain and others v. Federation of Pakistan through Secretary, Planning and Development Division and others PLD 2010 SC 224 and Societe Generale De Surveillance S.A. v. Pakistan through Secretary, Ministry of Finance, Revenue Division, Islamabad 2002 SCMR 1694 ref.

(e) Constitution of Pakistan---

----Arts. 90, 97, 99 & 137---Legislative powers of Federation---Scope---Federation could legislate law for implementing the International Conventions, treaties and agreements, but if main subject of Labour was within the Legislative domain of Province, the Federation could direct the Provinces to implement international treaties, agreements etc.; and frame laws in conformity with the International Labour Conventions---Scheme of the Federation of Pakistan was based on the concept of Co-operative Federalism; and the Federation had the authority on behalf of Provinces to sign international agreement, treaties and give guarantee for their implementation---Provinces were bound to honour the commitments of the Federation made through International treaties and conventions---Provinces could not legislate in violation of International Conventions or undertakings and guarantees extended by the Federation.

(f) Interpretation of statutes---

----While interpreting the law, intention of the Legislature could only be gathered from the whole enactment---Written instrument, whether it was constitutional or ordinary statute, the court had to discover the intention of the author; and the whole instrument or statute had to be read together.

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

----Preamble & S.7---Constitution of Pakistan, Arts.90, 91, 94, 97 & 270-AA---Powers of Prime Minister---Prime Minister, had no doubt the power to constitute new ministries or divisions, but such authority was subject to the Constitution; he had no authority or power in law or the Constitution to transfer the administration and control of the Province subject to a newly created Federal Ministry---Prime Minister had already constituted an implementation Commission being a division of the Ministry of Inter Provincial Co-ordination which had taken charge of Employees' Old-Age Benefits Institution (EOBI)---Nothing in circumstances, was left on the part of Federation to be done under Art.270-AA(6)(8)(9) of the Constitution, except to allow and facilitate the Implementation Commission to complete its job according to the letter and spirit of Constitution (18th Amendment)---Prime Minister had no authority to reconstitute the Board of Trustees and the order passed in that regard was not sustainable---Only authority of Prime Minister under the Constitution was to constitute the Implementation Commission---Prime Minister did not have any constitutional mandate to enlarge his powers by amending rules of Business or otherwise with relation to subjects which fell in the domain of the Provinces---All acts and things done after 18-4-2010 when the Constitution (18th Amendment) became a part of the Constitution, with reference to Employees' Old-Age Benefits Act, 1976 including issuance of notification, and all acts done pursuant to the said notification, were declared to be violative of the Constitution, without lawful authority and of no legal effect.

Saif-ul-Malook and Kashif Ali Ch. for Petitioners.

Athar Minallah and Babar Sattar, M. Nasim Kashmiri, Dy. A.-G. and Fakhar-uz-Zaman Akhtar Tarrar for Respondents.

Date of hearing: 22nd March, 2012.

2013 P L C 166

[Lahore High Court]

Before Ijaz ul Ahsan, J

PRESIDENT UNITED BANK LIMITED and 2 others

Versus

Mst. SHAMAILA USMAN and 2 others

Writ Petition No.17785 of 2012, decided on 4th July, 2012.

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

----S. 47(4)(11) & (12)---Constitution of Pakistan, Art. 199---Constitutional petition---Statutory period---Stay of judgment---Object, purpose and scope---Operation of judgment passed by Labour Court in favour of workman was suspended by Labour Appellate Tribunal but the order of suspension was applicable only to the extent of ninety days---Employer sought extension in stay order against judgment passed by Labour Court---Validity---Time period was statutory and stay order lapsed automatically---Legislature did not place any condition or visualized any circumstances in which stay order could be extended in case Appellate Tribunal could not decide appeal---Placing time limit and providing for automatic vacation of stay on expiry of ninety days was a conscious and deliberate effort on the part of law maker to protect the interest of employee---Where a workman (who was on the weaker end of economic spectrum) had been reinstated by Labour Court, he could not be kept out of his job for indefinitely on the basis of stay order issued by Labour Appellate Tribunal---On the balance of respective inconveniences and financial strengths, employer was much better placed to be able to pay a reinstated employee for work done compared to a workman, who had succeeded before Labour Court and should have to wait indefinitely for appeal to be decided, where he was in no position to do---Extending stay order beyond period of ninety days would in effect constitute an amendment of statute by extension of a period which was fixed by statute---Such course of action was not permissible under the law and it would defeat not only spirit of law in question but also intent of legislature which was apparent from plain language of the statute---Constitutional jurisdiction of High Court could not be invoked to deflect express provisions of statutory law---Where statute was clear that interim relief would automatically lapse after ninety days, extension of same beyond statutory period, while main appeal was pending in Labour Appellate Tribunal, was neither justified nor supported by sound principles of interpretation---Petition was dismissed in circumstances.

Imtiaz Ahmad and others v. The Pakistan National Council of Arts, Islamabad and others Civil Appeal No.275 of 1977; MCB v. Punjab Labour Appellate Tribunal Writ Petition No.23120 of 2009; Mumtaz Hussain alias Bhutta v. Chief Administrator of Auqaf, Punjab, Lahore and another 1976 SCMR 450; Habib Bank Limited through President and 2 others v. Punjab Labour Appellate Tribunal through Member and another 2011 PLC 223 and Adamji Insurance Co. v. Sarwar Rana and others 1986 PLC 588 rel.

Mian Muhammad Saleem for Petitioner.

2013 P L C 334

[Lahore High Court]

Before Muhammad Khalid Mehmood Khan, J

Rana MUHAMMAD RAFI and 4 others

Versus

MEMBER, NATIONAL INDUSTRIAL RELATIONS COMMISSION and 4 others

Writ Petition No.22454 of 2012, decided on 15th October, 2012.

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

----Ss. 31, 32, 33 & 54---Punjab Industrial Relations Act (XIX of 2010), Ss.2(xi) & (xxxi)---"Trans-pro vincial establishment"---Connotation---Law, applicability of---Scope---Provisions of Industrial Relations Act, 2012, are applicable where establishment has trans-provincial character/status---Provisions of Punjab Industrial Relations Act, 2010, are applicable only on those establishments which are functioning or doing business within the Province of Punjab only---Word "trans-provincial" denotes that employer establishment is maintaining its establishment in more than one Province of Pakistan and in case the establishments are maintaining their business or establishment in more than one Province, the provisions of Punjab Industrial Relations Act, 2010, are not applicable.

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

----Ss. 31, 32, 33 & 54---Punjab Industrial Relations Act (XIX of 2010), S.33(8)---Industrial and Commercial Employment (Standing Order) Ordinance (VI of 1968), S.0.12(3)---Court, jurisdiction of---Determination---Where establishment or industry exists in more than one Provinces of Pakistan, the provisions of Industrial Relations Act, 2012, are applicable, provided the grievance between parties pertains to unfair labour practice either on the part of employer or employee---Where grievance of employee or employer is in exclusive of unfair labour practice, Labour Court of respective Province enjoys the exclusive jurisdiction to entertain and decide the matter in dispute irrespective of the fact that employer has its establishment in four Provinces of Pakistan.

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

---S. 2(xx)---Islamabad Capital Territory---Dispute between employer and employee---Court, jurisdiction of---Any dispute between employer and member of that establishment which operates in Islamabad Capital Territory is triable by Labour Court established in the Province, hence Labour Court at Rawalpindi can hear grievance of concerned parties.

(d) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of Hig4 Court---Scope---Objection to juridiction---Principle---Once objection of jurisdiction is not raised in the Court of first instance, same cannot be allowed to be raised subsequently especially in Constitutional jurisdiction of High Court.

Sarfraz v. Muhammad Aslarn Khan and another 2001 SCMR 1062 rel.

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

?----S. 33(8)---Contempt of Court Ordinance (IV of 2003), Ss.3 & 4---Constitution of Pakistan, Art.199---Constitutional petition---Contempt of court---Withdrawal of contempt proceedings---Labour Court allowed grievance petitions filed by petitioners and for compliance of the orders, petitioners filed applications for initiation of contempt of court proceedings---Employer instead of defending contempt petitions filed application before National Industrial Relations Commission (NIRC) for withdrawal of contempt petitions before Labour Court---NIRC allowed the application of employer and directed to withdraw contempt proceedings---Validity---NIRC was not justified to withdraw contempt proceedings pending before Labour Court, as the matter did not pertain to unfair labour practice---High Court in exercise of Constitutional jurisdiction declared order passed by NIRC without lawful authority---Petition was allowed 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 and Ch. Basharat Ali v. Federation of Pakistan and others W.P.No.24691 of 2011 ref.

Ch. Muhammad Awais Zafar for Petitioners.

Syed Naeem Bokhari, Yousaf Anjum Yousafi and Afzal Bhatti for Respondents.

Muzaffar Iqbal, Manager Legal PTCL in person.

2013 P L C 15

[National Industrial Relations Commission]

Before Bashir Ahmed Memon, Member

ALAM MIRZA

Versus

Messrs SHAHEEN AIRPORT SERVICE through General Manager and 4 others

No.4A(124)/2005-K/24(144)/2005-K, decided on 11th October, 2012.

Industrial Relations Ordinance (XCI of 2002)---

----S. 49(4)(e)---Unfair labour practice by the employee---Employee who was found committing theft, was served with show-cause notice, and after holding (internal) inquiry, and relying upon the findings of Enquiry Officer, he was dismissed from service---Employee had admitted service of notice regarding allegation of theft; admitted that inquiry was conducted against him and that he had signed the minutes of inquiry; admitted that he was served with dismissal letter, and notice regarding petition filed by him before Bench of Commission was issued and same was served upon the employers---When the employee was already removed from service before receipt of notice by the employers, the petition filed by the employee in the present form was not maintainable, and was liable to be dismissed.

M.A.K. Azmati for Petitioner.

S.M. Iqbal for Respondents.

2013 P L C 248

[National Industrial Relations Commission]

Before Raja Fayyaz Ahmed, Chairman

Babu MUHAMMAD IDREES, Chairman, National Organization of (Livered Staff) Pakistan Post Office

Versus

REGISTRAR OF TRADE UNIONS, NIRC and others

C.M.A. No.7A(183) in Appeal No.12(16) of 2012, decided on 24th October, 2012.

Industrial Relations Act (X of 2012)---

----Ss. 2(vi), 12, 53(2), 55, 56(2) & 58(1)(2)---Appeal against order of Registrar of Trade Unions---Competent appellate forum---Contention of appellant was that appeal against the order of Registrar of Trade Unions under S.12 of Industrial Relations Act, 2012, would not lie before Full Bench of the Commission, but Single Bench of the Commission was competent to hear such appeal---Respondent urged that said appeal would lie only to the Full Bench of the Commission---Validity---Provisions of subsection (2) of S.56 of the Industrial Relations Act, 2012 had clarified that any order or decision made, award given, sentence passed, power exercised, functions performed or proceedings taken by any Bench of the Commission, would be deemed to be an order or decision etc. by the Commission---Word 'Commission' used under S.12 of the Industrial Relations Act, 2012, would relate to a Bench of Commission to which an appeal would lie, while an appeal would lie to the Full Bench of the Commission against an award or decision given or a sentence passed or order determining and certifying a Collective Bargaining Units passed by any Bench of the Commission, within the meaning of subsections (1) & (2) of S.58 of the Industrial Relations Act, 2012---Held, that appeal under S.12 of the Industrial Relations Act, 2012 against an order, decision or award passed or given by the Registrar of Trade Unions would lie to a Bench of the Commission.

Applicant in Person.

Junaid Akhtar along with Raza Khan Afridi, Syed Zaigham Gardaizi and Muhammad Younus Qureshi, Secretary General, Acting President and Senior Deputy Chief Organizer respectively of National Organization of Postal Employees for Respondents.

2013 PLC 306

[National Industrial Relations Commission, Islamabad]

Before Raja Fayyaz Ahmed, Chairman JALIL-UR-REHMAN and others

Versus

PAKISTAN INTERNATIONAL AIRLINES CORPORATION through District Manager

Cases Nos.4A(25), 4A(26), 4A(27) of 2012, decided on 20th March, 2013.

Industrial Relations Ordinance (V of 2011)---

----Ss. 31 & 54(e)---Unfair labour practice by the employers---Petitioners/employees had impugned, their transfer from one office of the establishment to another-Transfer of an employee from one office to another or to any of its establishment/office, or to a Station within or outside Pakistan, was the prerogative of the employer, who could decide as to how best the services of the employees could be utilized in the interest of the establishment and in the public interest---No material had been brought on record to show- that by impugned orders of transfer, petitioners were likely to be made victims of unfair labour practice within. the purview of S.31 of Industrial Relations Ordinance, 2011---Mere allegation of general nature, on the ground of' unfair labour practice, per se, would not constitute unfair labour practice, to invoke the jurisdiction of National Industrial Relations Commission--Allegation of unfair labour practice, pleaded on behalf of the petitioners, was not supported or supplemented by any material on record; in absence whereof, it could hardly be assumed that impugned adjustments of petitioners front one office to another, had been the result of any unfair labour practice on the part of management or that the same was motivated on account of unfair labour practice---Petitions being without any substance, were dismissed. .

Iftikhar Ahmed and others v. President, National Bank of Pakistan and others PLD 1988 (SC) 53; Nazar Muhammad General Manager, TIP Haripur and another v. Ghulam Asghar and 4 others 1988 PLC 923 and Muhammad Nawaz v. General Manager (Planning), WAPDA, Lahore and another 1994 PLC 140 ref.

Nemo for Petitioners.

Mushtaq Huaain Bhatti for Respondents.

Date of hearing: 14th March, 2013.

2013 P LC 318

[National Industrial Relations Commission]

Before Bashir Ahmed Memon, Member

PHARMATEC PAKISTAN (PVT.) LTD. through Factory Manager

Versus

PHARMATEC WORKERS WELFARE UNION (CBA) through General Secretary and others

No.4A(172) of 2012-K/24(173)/2012-K, decided on 21st February, 2013.

Industrial Relations Act (X of 2012)---

----S. 54(e)---National Industrial Relations Commission (Procedure and Functions) Regulations, 1973, Regln.32(2)(c)---Unfair labour practice---Ad interim stay order, grant of---Employer had alleged that union gave charter of demands, subsequently the notice of strike and thereafter the conciliation proceedings were continuing, but the union kept on raising demands above its charter of demands to pressurize the management to accept their demands; that under same tactics of pressurization, coercion and intimidation, union wrote a letter to S.H.O. concerned making false allegations, which was an attempt to pressurize and intimidate the officers of the employer company to accept demands of the union, to malign and spoil goodwill and public image of the company---Employer company also filed application for ad interim stay order---Said application was granted in favour of the employer and union was restrained from coercing, intimidating, pressurizing and compelling employer to accept their demands---Union being Collective Bargaining Agent,. no doubt had right to submit charter of demands, but the demands should be reasonable, feasible and practicable---Employer had made out a case of unfair labour practice against the union---Balance of convenience was in favour of the employer which would suffer irreparable loss and injury, if stay order granted to the employer was not confirmed---Ad interim stay order granted was confirmed, in circumstances.

S.M. Iqbal for Petitioner.

Khalil-ur-Rehman for Respondents.

2013PLC379

[National Industrial Relations Commission]

Before Justice (R.) Raja Fayyaz Ahmed, Chairman

KHITAB HUSSAIN and others

Versus

AMSON VACCINES and others

Appeals Nos.4B(47), 4B(48), 4B(49), 4B(50), 4B(51), 4B(52) and 4B(53) of 2012, decided on 11th June, 2013.

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

----Ss. 15 & 17---Balochistan Industrial Relations Act (X of 2012), Ss.33 & 58----Appeal---Right of appeal against the decision given by Authority for the Capital Territory of Islamabad under Payment of Wages Act, 1936---Appellate jurisdiction of National Industrial Relations Commission in absence of Labour Court for the Capital territory---Scope---Appellants filed applications for the recovery of delayed wages before the , Commissioner (City) Islamabad-cum-the Authority under S.15 of the Payment of Wages Act, 1936---Said Authority dismissed the applications---Right of appeal against the direction of Authority was provided under S.17 of Payment of Wages Act, 1936 before Labour Court---No Labour Court having been established for the Capital Territory of Islamabad, appeal against the decision of Authority was filed before National Industrial Relations Commission---Validity---Appeal against the award, decision, or order determining and certifying collective bargaining unit passed by any Bench of the Commission lay before the Full Bench of the Commission---Impugned orders, in the present appeals, had not been passed by any Bench of the Commission against which no appeal lay to the Commission---Right of appeal undisputedly was a creation of a statute which could not in absence of a statutory provision be inferred or assumed by the Commission on its own---Appeal against the orders of the Authority under Payment of Wages Act, 1936 filed before National Industrial Relations was not competent---Commission directed to return the appeal to the appellant for seeking appropriate remedy.

Javed Iqbal Banday for Appellants.

Nemo for Respondents.

Date of hearing: 11th June, 2013.

2013 P L C 411

[National Industrial Relations Commission]

Before Justice (R) Raja Fayyaz Ahmed, Chairman

AMIR NAEEM

Versus

PIAC through Deputy General Manager

C.M.A. No.7A(228)/2012 in Case No.4A(47 of 2012, decided on 30th January, 2013.

Industrial Relations Act (X of 2012)---

----Ss. 31, 32, 33 & 54(e)---Qanun-e-Shahadat (10 of 1984), Art.129---General Clauses Act (X of 1897), S.27---Unfair labour practice by the employers, petition against--- Dismissal of petition for non-prosecution---Application for restoration---Contention of petitioner was that since notice for hearing of the petition was not delivered to the petitioner, default on the part of the petitioner or his counsel to appear on the date was neither intentional nor deliberate and that dismissal of the case for non-prosecution on the said date, deserved to be recalled---Validity---Notice was issued to the petitioner at his given address---Office copy of the notice had shown that notice was sent to the petitioner at his correct given official address, mentioned in the title of his petition---Case on said date was taken for hearing at 10-30 a.m. and was called again and again, but no one appeared for the petitioner---No intimation was conveyed by counsel for the petitioner for the reason of his failure to attend the matter---Petitioner in his application, had not specifically stated that notice for the fixation of the case was not delivered to him; and the special plea of the non-delivery of the notice to the petitioner for the first time, was taken during submissions when said application was listed for hearing---Application for restoration of the main case being meritless, was dismissed---Consequently application for interim relief pending disposal of said application for restoration of the case having become infructuous, was disposed of accordingly.

Muhammad Nawaz v. President, National Bank of Pakistan and others 2002 PLC (C.S.) 95; Executive Engineer v. Commissioner, Workmen's Compensation and others 1997 PLC (C.S.) 1044; Masood Sadiq v. Haji Muhammad Ali PLD 1968 Lah. 1201 and Muhammad Ramzan and another v. Haji Karim Bakhsh and 5 others 1988 CLC 448 ref.

Ms. Shoaiba Ismail for Applicant.

Mushtaq Hussain Bhatti for Respondents.

2013 P L C 204

[Peshawar High Court]

Before Mian Fasih-ul-Mulk, J

CHIEF EXECUTIVE, PESCO, PESHAWAR and 3 others

Versus

NUSHAD IQBAL

Labour Appeal No.7 of 2011, decided on 10th September, 2012.

Industrial Relations Act (IV of 2008)---

----Ss. 41 & 55---Appeal against acceptance of grievance petition---Scope---Employee whose services were terminated, filed grievance petition against order of his termination; which petition was accepted by the Labour Court---Validity---Labour Court while allowing the grievance petition of the employee had rightly concluded that order of termination was without lawful authority---Counsel for the employers could not point out any illegality in the impugned judgment of the Labour Court, which being based on proper appreciation of evidence available on record did not require any interference by the Labour Appellate Tribunal.

Ms. Neelam Khan for Appellant.

Qazi Babar Irshad for Respondent.

Date of hearing: 10th September, 2012.

2013 P L C 232

[Peshawar High Court]

Before Mian Fasih-ul-Mulk, J

DAUD SONS INDUSTRY AND ARMOURY EMPLOYEES, PESHAWAR

Versus

REGISTRAR TRADE UNION

L.R. No.5 of 2010, decided on 17th December, 2012.

Industrial Relations Ordinance (XCI of 2002)---

----Ss. 1(4), 2(xvii) & 9(b)---Trade union, non-registration of---Authorities refused registration of trade union on the ground that its industry was exclusively connected with Armed Forces including Ministry of Defence---Validity---Industry in question was in private sector, which used to sell weapons and ammunition to public including Army organizations---Sales Tax vouchers appended with petition also indicated that the industry was selling their products to individual public as well as Government organizations---Industry was neither under the control of Federal or Provincial Government, nor was carried on under its authority or having any statutory rules of service---Provisions of Industrial Relations Ordinance, 2002, or provisions of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, were applicable to the establishment and Labour Court had wrongly denied claim of petitioner on such ground---Labour Appellate Tribunal directed the authorities to issue registration certificate to the trade union---Revision was allowed in circumstances.

Army Welfare Sugar Mills Worker's Union v. Army Welfare Sugar Mills 2009 PLC 132 and Fauji Sugar Mills v. Mehmood Ahmed 2006 PLC 630 rel.

Shakil Ahmed for Petitioner.

Nisar Ahmed for Respondent.

Date of hearing: 10th December, 2012.

2013 P L C 326

[Peshawar High Court]

Before Mian Fasih-ul-Mulk, J

EXECUTIVE DIRECTOR C.F.O., MARDAN

Versus

MUHAMMAD ILYAS KHAN and others

Labour Appeal No.40 of 2011, decided on 27th May, 2013.

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

----S. 25-A---Grievance petition/grievance notice---Dismissal from service---Grievance notice served to employer had not been signed by workman himself---Effect---Workman had written his name in Urdu on the notice under the direction of his counsel---Validity---Name of the workman appeared quite at the place where signature of an applicant was required to be put on---Notice, in circumstances, could not be said to have not been signed by the workman himself as the requirement of S.25-A of Industrial Relations Ordinance, 1969 had been fully complied with.

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

----S. 25-A---Grievance petition---Dismissal from service---Re­instatement---Back-benefits---Entitlement---Labour Court re-instated the workman along with back benefits---Petitioner had not placed any evidence on record that during the intervening period he was not doing any other job---Effect---Petitioner workman was obliged have to shown that during the intervening period of his dismissal from service and re-instatement, he remained jobless, otherwise petitioner could not competently claim back-benefits and he would only be entitled to receive the same from the date of order of re-instatement passed by the Labour Court---Appeal was partially allowed---Judgment of the Labour Court was modified accordingly---Workman was granted back-benefits from the date of the judgment of Labour Court.

Muhammad Alam and Fakhr-e-Alam for Appellant.

Javed Ali for Respondents.

Date of hearing: 27th May, 2013.

2013 P L C 345

[Peshawar High Court]

Before Dost Muhammad Khan, C.J. and Mrs. Irshad Qaiser, J

PAKISTAN TELECOMMUNICATIONS COMPANY LTD. through President and 5 others

Versus

AZHAR ALI BABAR and 2 others

Writ Petitions Nos.223 to 251 and 890 to 898 of 2011, decided on 11th September, 2012.

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

----Ss. 46 & 50(3)---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(b)(i)---Constitution of Pakistan, Art.199---Constitutional petition---Option for Voluntary Separation Scheme---Withholding of payment of commutation and monthly allowance--- Grievance petition--- Jurisdiction of Labour Court---Scope-Employer company launched a Voluntary Separation Scheme, and employees who availed that option/offer, were paid some amount on. account of severance pay etc., but the payment of commutation and monthly allowance were withheld by the employer company---Grievance petition filed by the employees was accepted by the Labour Court which was upheld by the Labour Appellate Tribunal---Counsel for the employer raised objection' that Labour Court had no jurisdiction to entertain the grievance petition as the employees were not workmen and the employer company was not Commercial Establishment---Employer company, had come within the definition of industry as well as Commercial Establishrnent as per definition under S.2(b)(i) of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, as it had hired the services of their employees to do skilled, unskilled, manual as well as clerical work---Since in the present case, the employees had been deprived of the emoluments and pensions etc., they had rightly knocked the doors of Labour Court being workmen---Grievance petitions involved both factual and legal controversies, Labour Court, after conducting proper trial and giving full opportunities to both the parties to produce pro and contra evidence, decided the matter on its own merits both on facts and law---Employees had suffered a lot, both financially and physically, for the acts of the others---Labour Court and Labour Appellate Tribunal, in circumstance, had rightly exercised the authority vested in them by legal provisions of law---Constitutional petition was dismissed.

Muhammad Mubeen-us-Salam v. Federation of Pakistan PLD 2006 SC 602 and 1999 SCMR 467 rel.

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

--Ss. 46 & 53(3)---Pakistan Telecommunication Corporation Act (XVIII of 1991), Ss.2(e), 3 & 9---Constitution of Pakistan, Art.199---Constitutional petition---Voluntary Separation Scheme-Right of pensionary benefits---Calculation of period---Grievance petition

Employer company launched a Voluntary Separation Scheme, wherein 20 years of service was required for pensionary benefits---Scheme provided that date of appointment of the employees was to be considered as the date of their initial appointment---Employees who availed said offer, were paid some amount on account of severance pay etc., while the payment of commutation and monthly allowance were withheld, because the payment was calculated from the date of completion of their training, 'instead of initial appointment---Employees had prayed that their services for the purpose of pensionary benefits were to be calculated from the date of their initial appointment and not from the date of their training---Both, the Labour Court and Labour Appellate Tribunal accepted the claim of the employees----Validity---Record showed that the benefit of initial appointment and pre-training were extended to some of the employees which had caused discrimination and injustice to the aggrieved employees---Employee would begin his service from the date of assumption of charge of the office to which he had been appointed---Training should be part and parcel of the service---Benefit of pre-training service be given to employees, and it should be counted for calculating their monthly pension---Both the Labour Court and Appellate Court had rightly found that employees were entitled to the pensionary benefit from the date of their joining service, and not from the date of their regularization after training which was also part and parcel of their service---Employees, in circumstances, were discriminated against with regard to the calculation of their length of service---Constitutional petition was dismissed.

I.A. Sharwani and others v, Government of Pakistan through Secretary, Finance Division, Islamabad and others 1991 SCMR 1041; 2006 PLC (C.S.) 236; 1998 PLC (C.S.) 736; 2010 PLC (C.S.) 668 and 2010 PLC (Labour) 354 rel.

Waqar Ahmad Khan for Petitioners.

Ijaz Anwar Khan for Respondents.

Date of hearing: 11th September, 2012.

2013 P L C 57

[Punjab Labour Appellate Tribunal]

Before Asad Munir, Chairman

ANWAR-UL-HAQ

Versus

PRESIDENT MUSLIM COMMERCIAL BANK LTD. and 2 others

Labour Appeal No.GA-1464 of 2009, decided on 12th July, 2012.

Industrial Relations Act (IV of 2008)---

----S. 41---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.12---Termination of service---Grievance petition---Employee who was arrested in a criminal case, was convicted and sentence to five years' imprisonment---Services of the employee were terminated on the ground that his post could not be left vacant for five years---Subsequently, employee was acquitted and was released---Employee after about five months of his release, served grievance notice on the employers and requested for his reinstatement---Employers having refused to redress grievance of the employee, he filed grievance petition, which was dismissed by the Labour Court on the ground of delay of about four months in filing said grievance petition---Validity---No inquiry was necessary in the case of employee as he was never proceeded against for misconduct, neither he was dismissed from service, nor there was any dispute about his long absence---Conviction of the employee, had provided the employers with sufficient reason to terminate his service in terms of S.O.12(1) of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, which dispensed with inquiry when a workman's services were terminated for a reason other than misconduct---Grievance notice had to be filed within three months of the date when the grievance arose, while in the present case, even if the limitation was counted not from the date of termination of the employee, but from the date of his release from jail, grievance notice was time-barred by nearly two months---No grievance petition was maintainable, unless the condition precedent of service of grievance notice within three months from the accrual of the grievance had been fulfilled---Objection that the grievance petition was time-barred, was sound and could not be brushed aside as a mere technicality---Appeal was dismissed in circumstances.

Messrs Pakistan Papersack Corporation Ltd. v. Chairman, Sindh Labour Appellate Tribunal and 75 others 2000 PLC 430; Abdul Jamil v. Messrs Pakistan Machine Tool Factory 1991 PLC 369; Mukhtar Ali v. Punjab Urban Transport Corporation, Rawalpindi 1980 PLC 800 and Jabroo Masih v. Tehsil Nazim, Town Committee Chunian, District Kasur and 3 others 2003 PLC 73 distinguished.

Almas Ahmad Fiaz v. Secretary Government of the Punjab, Housing Physical Planning Development, Lahore and another 2007 PLC 64; Muhammad Azhar Khan v. Assistant Commissioner/Collector, Toba Tek Singh and others 2006 SCMR 778 and Izzat Baig Awan v. Habib Bank Limited 2003 PLC (C.S.) 938 rel.

Abdul Hakeem Awan for Appellant.

Farooq Zaman Qureshi for Respondents.

Date of hearing: 5th July, 2012.

2013 P L C 61

[Punjab Labour Appellate Tribunal]

Before Abdul Hafeez Cheema, Chairman

MEHMOOD ALI

Versus

HABIB BANK LIMITED through President and 2 others

Labour Appeal No.LHR-343 of 2011, decided on 30th November, 2011.

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

----Ss. 33 & 47---Change in date of birth of employee---Grievance petition---Employee requested the employer bank to change his date of birth from 1-5-1951 to 1-5-1954 in the record---Bank declined request of employee, who filed appeal before Federal Service Tribunal, which was dismissed, and employee having not challenged judgment of the Service Tribunal in the Supreme Court, same attained finality---Employee claiming to be a workman filed belated grievance petition---Employee in his application-cum-bio data form, had himself disclosed his date of birth as 1-5-1951---Apart from that employee in his joining report had also shown said date of birth and his matriculation certificate also had shown the same date of birth---Chain of documents submitted by employee were available on record which stated date of birth as 1-5-1951---After putting in about 20 years of service, it dawned upon the employee that his date of birth was wrongly recorded in his matriculation certificate---Law permitted to agitate such an issue only within two years of joining service and not otherwise---Employer bank had committed no discrimination as there was no other example of any identical situation where the bank had changed the date of birth of any other employee---Grossly belated grievance petition, where in no plausible or solid reasons had been given by the employee for condonation of such a colossal delay, was rightly dismissed by the Labour Court---Appeal against judgment of Labour Court was dismissed, in circumstances.

Syed Iqbal Haider v. Federation of Pakistan and another 1998 SCMR 1494 and Qamaruddin v. Pakistan through Secretary, Establishment Division Islamabad another 2007 SCMR 66 rel.

Appellant in person.

Syed Fazal Mehmood for Respondents.

Date of hearing: 29th November, 2011.

2013 P L C 65

[Punjab Labour Appellate Tribunal]

Before Asad Munir, Chairman

EMPLOYER/MANAGER FINE GAS LIMITED, LAHORE

Versus

Rana GHULAM YASIN and another

Labour Appeal No.LHR-1198 of 2009, decided on 19th July, 2012.

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

----Ss. 2(n)(ii), 3 & 10---Total disablement of employee due to a heart attack suffered in course of his employment with the employer---Employee claiming compensation of Rs.2,00,000---Claim of the employee was resisted by the employer contending that no accident had taken place in the course of employee's employment with the employer; that Commissioner had no jurisdiction to adjudicate upon the claim of the employee as employee was not workman in terms of S.2(n)(ii) of Workmen's Compensation Act, 1923; and that the employee had not served on the employer mandatory notice under S.10(1) of the Act, 1923---Validity---Un-rebutted statement of the employee, disclosed that he suffered the heart attack when he was performing his duties in the office of the employer; that employee stayed in hospital for about a week and due to that he never rejoined his duties as his right side became paralyzed---No notice was required to be served to the employer, in such circumstances, as it could not be denied that employer had knowledge of the heart attack of the employee---Section 10 of the Workmen's Compensation Act, 1923 amply demonstrated that such notice need not be served in every case, as it could be dispensed with in many situations---Employer objected jurisdiction of the Commissioner on the ground that the employee could not file his claim for compensation as he was receiving Rs.7980 as monthly wages which was in excess of Rs.3000---Section 2(n)(ii) of the Workmen's Compensation Act, 1923 was amended in the year 2007 by the Finance Act, 2007, with the result that the definition of a workman had been enlarged in scope, so as to include every workman regardless of monthly wages drawn by him---Heart attack suffered by the employee being an unexpected or untoward event, must be regarded as an accident---Injury of disablement suffered by the employee, in circumstances, was covered by S.3 of the Workmen's Compensation Act, 1923, as it was caused by accident arising out of and in the course of his employment with the employer---Commission had rightly granted amount of compensation to the extent of Rs.100,000---Order of the Commissioner, was upheld, in circumstances.

Divisional Superintendent, Pakistan Railways, Sukkur and another v. Muhammad Murad and another 1985 PLC 973; Messrs Baksh Investment Limited v. Alam 1983 PLC 1042; The East Pakistan Water and Power Development Authority and another, Comilla v. Mahar Ali Saiyal PLD 1971 Dacca 200 and Messrs Kohinoor Mercantile Corporation v. Hajera Khatun 1963 PLC 262 ref.

Divisional Superintendent PWR, Multan v. Sharman (Sharifan) Bibi 1976 PLC 708 rel.

Abdul Rasheed Radhwa for Appellant.

T.H. Baqir Khan for Respondents.

Date of hearing: 12th July, 2011.

2013 P L C 70

[Punjab Labour Appellate Tribunal]

Before Abdul Hafeez Cheema, Chairman

MUHAMMAD BOOTA and others

Versus

M.C.B. BANK LIMITED through President and others

Appeals Nos.FD-1382 and FD-1433 of 2009, decided on 20th September, 2011.

Industrial Relations Act (IV of 2008)---

----Ss. 41 & 55(3)---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.15---Conversion of penalty of dismissal from service to that of compulsory retirement---Grievance petition---Employee who was dismissed from service on certain allegation, filed grievance petition, which was partly allowed by the Labour Court converting the penalty of dismissal from service to that of compulsory retirement with all benefits admissible to the employee under the rules---Employer Bank challenged the judgment of Labour Court in appeal claiming that the penalty imposed by the Bank on the employee was quite commensurate to the gravity of the charge against the employee, which did not warrant any interference by the Labour Court---Validity---After employee admitted charges against him before the Enquiry Officer, his plea that he was forced to sign the document by the Audit Officer, appeared to be a conventional and stock reply to escape liability---Employee who was performing his duties as cashier was rightly held workman by the Labour Court as employer Bank had failed to produce any evidence that any power of attorney was issued to the employee---Even otherwise the duties of a cashier were always manual and he did not have any supervisory, managerial or executive power---Delay in issuing the charge-sheet, had been explained---Even otherwise in cases of major irregularities, process could not be thwarted on basis of technical objection---Two other bank employees, who had identical charges, had been treated differently---Bank could not have treated the employee in question otherwise when the guilt of each one was substantially at par---Law required that like cases should be dealt with alike---Labour Court, in circumstances, had rightly converted the penalty of dismissal into that of compulsory retirement in line with the action taken against other employees---No flaw or infirmity or lacuna was found in the impugned order---Each of the three officials had been dealt with at par, therefore, there could be no discrimination in case of the employee in question---Appeal was dismissed in circumstances.

2004 SCMR 149 rel.

Ch. Munawar Ahmed Javaid for Appellants.

Mushtaq Ahmed Khan for Respondents.

Date of hearing: 13th September, 2011.

2013 P L C 75

[Punjab Labour Appellate Tribunal]

Before Asad Munir, Chairman

SENIOR ENGINEER OPERATIONS, PTCL and another

Versus

MASOOD AHMED and others

Labour Appeal No.RI-2770 of 2010, decided on 31st July, 2012.

Industrial Relations Act (IV of 2008)---

----Ss. 41 & 55---Removal from Service (Special Powers) Ordinance, (XVII of 2000), Ss.3(1)(b) & 10---Grievance petition---Appellant/ corporation introduced Voluntary Separation Scheme and respondent/employee opted for said scheme along with others---Corporation relieved the employees, but proceeded with disciplinary action against the employee, in question on account of his absence from duty under the provisions of Punjab Removal from Service (Special Powers) Ordinance, 2000 and imposed the major penalty of compulsory retirement on the employee---Employee filed appeal before Service Tribunal and Corporation challenged jurisdiction of Service Tribunal on the ground that Corporation had been privatized---Objection of the corporation was accepted by Service Tribunal that it had no jurisdiction to hear appeal as it had been privatized and, its employees were not subject to Removal from Service (Special Powers) Ordinance, 2000---Validity---Service Tribunal while dismissing employee's appeal observed that employee was free to agitate the matter before the relevant forum---Employee filed grievance petition before Labour Court which was accepted to the extent that employee had been reinstated in service, against which the corporation had filed appeal with delay of 17 days, which delay was unexplained---After privatization of corporation, its employees were neither civil servants nor were governed by any statutory rules of service---Employee in question being a workman, could not be left without a remedy and his recourse to the Labour Court by means of a grievance petition, could not be taken exception to---Grievance petition of the employee had become time-barred because the remedy of appeal under S.10 of Removal from Service (Special Powers) Ordinance, 2000, filed before the Service Tribunal was availed and pursued bona fidely by the employees whereof the time spent in pursuing the remedy of appeal had to be ignored considering the peculiar circumstances of the case---Appeal filed by the corporation was not only time-barred, but was also devoid of any merit, therefore, it was dismissed, in circumstances.

Commissioner of Sales Tax (West), Karachi v. Messrs Kruddsons Ltd. PLD 1974 SC 180; A. Moghni and others v. Registrar, Co-operative Societies and others PLD 1957 Kar. 184; Phassco Hardware Co. v. The Government of Pakistan and 3 others PLD 1989 Kar. 621; Messrs M. Afzal & Sons and 2 others v. Federal Government of Pakistan and another PLD 1978 Lah. 468; Sydia Uzma Bukhari v. Board of Intermediate and Secondary Education, Faisalabad and others 2001 YLR 2770 and JDW Sugar Mills Ltd. v. Province of Punjab and another PLD 2005 Lah. 596 rel.

Mashood Hussain for Appellants.

Raja Kamran Aslam for Respondents.

Date of hearing: 10th July, 2012.

2013 P L C 229

[Punjab Labour Appellate Tribunal]

Before Hafiz Abdur Rehman Ansari, Chairman

FACTORY MANAGER, NAUROZ ASSOCIATE (PVT.) LTD., MULTAN

Versus

MUHAMMAD ALI and 2 others

Revision No.MN-798 of 2012, decided on 11th December, 2012.

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

----Ss. 15 & 17---Punjab Industrial Relations Act (XIX of 2010), S.47(5)---Claim for payment of dues---Employee filed application against the employer before Authority under the Payment of Wages Act, 1936 for payment of certain dues i.e. gratuity, over time pay, notice pay etc., which were withheld by the employer---Authority decreed the claim of the employee and appeal filed by the employer against judgment of Authority was dismissed---Validity---Employer did not produce Ledger of the company in the Trial Court where all the financial income and expenditures were entered---Employer, in circumstances, had withheld best evidence in the form of Ledger---Contentions raised by the employer were against the record---Concurrent findings of both courts below, which were not suffering from any misreading and non-reading of evidence, could not be disturbed, especially when the employer had failed to point out any illegality or exercise of jurisdiction which was not vested with the Authority---Judgment of Labour Court, was upheld, in circumstances.

Muhammad Amin Malik for Petitioner.

M. Nadeem Parwaz for Respondents.

Date of hearing: 11th December, 2012.

2013 P L C 243

[Punjab Labour Appellate Tribunal]

Before Hafiz Abdur Rehman Ansari, Chairman

AGRICULTURAL MECHANIZATION RESEARCH INSTITUTE (AMRI) through Director and another

Versus

MUHAMMAD ARSHAD

Appeal No.MN-187 of 2012, decided on 29th November, 2012.

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

----Ss. 33 & 47---Removal from service---Grievance petition---Employee was removed from service on the ground that his appointment was illegal, defective and in violation of Rules---Employee had assailed removal order in his grievance petition on the ground that he had been victimized due to Trade Union activities without conducting regular inquiry against him, and without providing him any opportunity for personal hearing---Nothing was on record to show that domestic inquiry was held by the employer department---Employee was condemned, unheard, which was not permissible in the eye of law---Objection of counsel for the employer that impugned judgment/order was not speaking judgment, was frivolous, as impugned judgment was very much elaborated---Labour Court had discussed each and every aspects of the case and cited case-law---Labour Court had rightly passed impugned judgment and in absence of any flaw or infirmity therein, same was upheld, in circumstances.

2006 SCMR 678 rel.

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

----S. 2(i)---Status of 'workman', determination of---Employee was workman as he was appointed against the post of 'Artist' for the period of one year---Work of artist was always manual in nature, as he makes caricature with his own hands---Employee was subsequently shifted to Library, which was also manual work as he had to place and sort out the books in shelves---Employee, on account of such manual work was a workman, though he was in grade BPS-12 as Assistant Librarian against the post of Artist.

M. Ayoub Khan, D.D.A. for Appellants.

M. Ashfaq Thaheem for Respondent.

Date of hearing: 29th November, 2012.

2013 P L C 254

[Punjab Labour Appellate Tribunal]

Before Hafiz Abdur Rehman Ansari, Chairman

CHIEF EXECUTIVE MEPCO, MULTAN and 2 others

Versus

ALI SHER

Labour Appeal No.MN-1395 of 2012, decided on 23rd October, 2012.

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

----Ss. 33 & 47---Constitution of Pakistan, Art.27---Promotion---Discrimination---Grievance petition---Employee who was appointed as a Meter Mechanic, was promoted as Test Assistant---Employee despite having passed departmental examination and training course for his promotion as Test Inspector was not promoted due to the reason that he was under-Matric---Juniors who were also under-Matric, were promoted as Test Inspector---Employee, in circumstances, was discriminated by the department, which discrimination was not permissible under the law as Constitution had provided equal treatment to all the citizens placed in a similar and same position---Labour Court, had rightly accepted grievance petition filed by the employee, directing the employers to promote the employee as Test Inspector from the date when his other colleagues were promoted.

Government of Balochistan v. Azizullah Memon and others PLD 1993 SC 341; Salman Adil Siddique v. Province of Sindh 2008 PLC (C.S.) 220 and Attyya Bibi v. Federation of Pakistan 1991 SCMR 1288 rel.

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

----S. 47---Appeal---Limitation---Condonation of delay---Appellant/ department had sought condonation of delay in filing appeal on the ground that department was not properly informed about the decision of Labour Court---No cogent and plausible ground was taken by the appellant in application for condonation of delay---Appeal was time-barred by 2 months and 12 days---Judgment was announced by Labour Court in open court---Delay was not condoned, in circumstances.

Gul Muhammad v. M.C.B. Bank Ltd., through President and others 2012 SCMR 136 rel.

Ch. Salim Akhtar Warriach for Appellants.

M. Anwar Awan for Respondent.

Date of hearing: 23rd October, 2012.

2013 P L C 262

[Punjab Labour Appellate Tribunal]

Before Hafiz Abdur Rehman Ansari, Chairman

TOWN MUNICIPAL ADMINISTRATION through T.M.O. and others

Versus

BASHIR AHMED and others

Appeals Nos.MN-1609, MN-1610, MN-1611, MN-1612, MN-1613, MN -1614, MN-1615, MN-1616, MN-1617, MN-1618, MN-1619, MN-1620, MN-1621, MN-1622, MN-1623, MN-1624, MN-1625, MN-1626, MN-1627 and MN-1628 of 2012, decided on 15th October, 2012.

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

----Ss. 33 & 47---Constitution of Pakistan, Art.25---Up-gradation of pay scale---Grievance petition---Equality of citizens---Pay scale of clerical staff working in the City District Government in other Towns, had been upgraded, but the employees in the Town had not been so upgraded---Grievance petition filed by the employees had been accepted with direction to redress the grievance of the employees by upgrading their pay scale by the Labour Court---Validity---Article 25 of Constitution had discouraged such discrimination---Labour Court had rightly passed impugned judgment---In absence of any flaw and infirmity in judgment appealed against, same was upheld in circumstances---Appellant department would act upon the impugned judgment and would grant financial benefits of up-gradation to all employees as were being received in other towns by similarly placed employees.

Ibrahim Flour and General Mills, District Sheikhupura through Chief Executive v. Government of Punjab through Secretary to the Government of the Punjab, Food Department, Lahore and another PLD 2008 Lah. 184 and Hussain Badsha andanother v. Akhtar Zaman and others 2007 PLC (C.S.) 157 rel.

Syed Altaf Hussain Bukhari for Appellants.

Syed Shamshad Ali Rizvi for Respondents.

Date of hearing: 15th October, 2012.

2013 P L C 270

[Punjab Labour Appellate Tribunal]

Before Hafiz Abdur Rehman Ansari, Chairman

PAKISTAN AGRICULTURAL STORAGE AND SERVICE CORPORATION through Raja Muhammad Younis

Versus

MUHAMMAD ILYAS

Labour Appeal No.BR-559 of 2012, decided on 28th September, 2012.

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

----Ss. 33 & 47---Recovery of excess payment made by the employee---Grievance petition---Complaint against the employee was that while he was posted as Purchase Inspector, made excess payment of 20 bags of black grams amounting to Rs.75,200---Inquiry Board duly constituted after concluding inquiry against the employee, found the employee guilty of making excess payment from the account of the department and recovery of Rs.75,200 was imposed on the employee and notice for recovery of said amount was issued to him---Grievance petition filed by the employee against said recovery proceedings, was accepted by the Labour Court---Validity---Project Director had admitted that allegation levelled against the employee was not proved in enquiry; and that the employee had made payment according to weight which was made on the scale of the department---Employee in his written statement had denied that he made excess payment---Said statement of the employee was corroborated even by the statement of Project Manager---Complainant did not appear in the court to substantiate contents of his complaint, which had shaken the veracity of complainant---Complainant had failed to produce any documentary corroboration to prove the charge against the employee---Labour Court, in circumstances, had rightly passed judgment---In absence of any flaw or infirmity, in the impugned judgment, same was upheld, in circumstances.

Malik Ghulam Qasim Rajwana for Appellant.

Mukhtiar Ahmed Malik for Respondent.

Date of hearing: 28th September, 2012.

2013 P L C 278

[Punjab Labour Appellate Tribunal]

Before Hafiz Abdur Rehman Ansari, Chairman

DISTRICT COORDINATION OFFICER, BAHAWALPUR and 3 others

Versus

RIAZ AHMAD

Appeal No.BR-838 of 2012, decided on 5th October, 2012.

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

----Ss. 33 & 47---Termination of service---Grievance petition---Appeal, limitation for---Services of the employee having been terminated, he filed grievance petition, which petition having been accepted by the Labour Court, employer department had filed appeal which was barred by 42 days and the department filed application for condonation of such delay after two years of filing of appeal---No cogent reason was taken or prescribed in the application for condonation of delay---Employee though was appointed on daily wages basis, but his service was extended from time to time, and he had attained the status of permanent workman---Employer department was also of permanent nature---Labour Court, in circumstances, had rightly accepted grievance petition of the employee---Appeal was dismissed, even on the ground of limitation being time-barred by 42 days.

Pakistan Railways v. Ghulam Sarwar 1989 SCMR 864 and Executive Engineer, Central Civil Division, Pak P.W.D. Quetta v. Abdul Aziz and others PLD 1996 SC 610 rel.

Muzaffar Abbas, DDA for Appellants.

Shabbir Ahmed Bhutta for Respondent.

Date of hearing: 5th October, 2012.

2013 P L C 297

[Punjab Labour Appellate Tribunal]

Before Asad Munir, Member

MUSLIM COMMERCIAL BANK LIMITED through General Manager

Versus

Mst. MUSSARAT MUSHTAQ and another

Labour Appeal No.LHR-624 of 2011, decided on 13th March, 2013.

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

----S. 51---Appeal---Limitation---Appellant Bank, earlier did not file appeal against impugned judgment of the Labour Court within 30 days, and instead challenged said order in constitutional petition before High Court, which remained pending and was disposed of after more than 11 years---Appellant filed present appeal after delay of 42 days from disposal of constitutional petition without giving any explanation for such delay---Considering that the matter had remained pending before wrong forum/High Court, for more than 11 years, appellant bank should have been more vigilant; and should have filed appeal without further loss of time---Valuable rights would accrue to a party, if the other party would fail to approach the competent court within prescribed period, unless each and every day's delay was explained, which otherwise could not be condoned---Appeal was time-barred and there being no sufficient reason to condone the delay, appeal was dismissed, in circumstances.

PLD 1988 SC 53 ref.

Farooq Zaman Qureshi and Rana Asif Iqbal for Appellant.

Tariq Masood aad Saad Tariq for Respondents.

2013PLC359

[Punjab Labour Appellate Tribunal]

Before Asad Munir, Member

STATE LIFE INSURANCE CORPORATION OF PAKISTAN through Chairman and another

Versus

Mirza KASHIF BAIG

Labour Appeal No.LHR-1100 of 2009, decided on 2nd July, 2013.

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

----S. 46---Grievance petition---Qualification/technical allowance---Classification of employees---Computer professionals---Scope---Employee of the Corporation having Masters degree in computer sciences was refused qualification/technical allowance---Labour Court accepted the grievance petition and declared the employee of Corporation eligible for the qualification/technical allowance--Contention was that qualification/technical allowance was admissible only to the officers of Corporation and employee being member of staff was not entitled for qualification/technical allowance- Validity--Qualification/technical allowance was admissible to an employee as long as he was a computer professional possessing the Masters degree---Qualified computer professional were eligible to. receive the allowance---Word 'officers' appearing in the heading of circular could not be construed restrictively---Allowance should be allowed to all computer professionals irrespective of their place of posting---Corporation was not justified to limit the application of allowance to officers only---Whoever had held the appropriate qualification in computer sciences was a computer professional' regardless of whether he was-an officer or was a member of staff---Benefit of the allowance was available to officers and staff---Respondent/employee having Masters degree in computer sciences was a computer professional and was entitled to the benefit of the technical allowance---Appeal was dismissed.

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

S. 46(1)---"Grievance petition/grievance notice" and "departmental appeal"--- Distinction--- Respondent employee filed departmental representation---Contention was that departmental representation could not be treated as grievance notice and Labour Court could not accept grievance petition in absence of specific Grievance notice---Validity---Respondent employee filed an appeal/departmental representation for grant of qualification/technical allowance--- Respondent employee through departmental representation had brought his grievance to the notice of the employer Corporation--- Department representation could safely be treated as grievance notice---Section 46(1) of the Industrial Relations Ordinance, 2002 required that the aggrieved workman must communicate his grievance to the employer in writing and it does not matter whether such communication was in the form of an appeal, representation or review---No form of grievance notice was prescribed under the law---Appeal was dismissed.

Khushal Khan v. MCB Ltd. and others 2002 SCMR 943 distinguished.

Abdul Qadir Khan and 12 others v. Managing Director, Millat Tractors Private Limited and another 2005 PLC 438 and Shamim Ahmed Khan v. Assistant Engineer, Phones, Digital (Internal) Defence Exchange (PTCL), Lahore 2009 PLC 44 rel.

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

---S. 46---Grievance petition---Qualification/technical allowance---Entitlement---Eligibility from the date of completion of degree---Late communication of result card---Effect---Labour Court had granted qualification allowance to respondent employee with effect from the date of completion of degree---Contention was that employee was entitled to get allowance from the date of receipt of result card---Validity---Respondent employee had become eligible to receive qualification/technical allowance with effect from the date of completion of Masters degree---Late communication of result cared would not mean that the respondent had not completed Master degree earlier---Appeal filed by employer-Corporation was dismissed.

Rana Waqas Latif for Appellants.

Junaid Jabbar Khan for Respondent.

2013 P L C 417

[Punjab Labour Appellate Tribunal]

Before Hafiz Abdur Rehman Ansari, Chairman

MEPCO through Chief Executive and 3 others

Versus

ARSHAD AZIZ and another

Labour Appeal No.MN-1395 of 2012, decided on 18th December, 2012.

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

----Ss. 33 & 47---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.15---Dismissal from service---Grievance petition---Limitation---Discrimination---Employee serving as Electricity Meter Reader in the department, was dismissed from service, without holding any domestic inquiry against him on charge of tampering electricity units and receiving illegal gratification---Grievance petition filed by the employee against order of his dismissal from service, was accepted by the Labour Court---Validity---Stance of the employee that no impartial enquiry was held against him to prove allegation of accepting illegal gratification, was correct---Employee had been discriminated as another employee against whom similar allegation of tampering Meter was levelled, was removed from service, but subsequently he was reinstated with all benefits---Facts of said other employee's case and the employee, were identical---Employee, in circumstances was also entitled for the same relief i.e. reinstatement---As far as objection of the counsel for the department that appeal was time-barred, delay in filing appeal having satisfactory been explained by the appellant, objection of appeal being time-barred had no merits---No infirmity in the impugned judgment of the Labour Court, having been found same was upheld and appeal of the employer department, was dismissed, in circumstances.

Rao Muhammad Iqbal for Appellant.

M. Amin Malik for Respondent.

Date of hearing: 18th December, 2012.

2013 P L C 219

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk and Ijaz Ahmed Chaudhry, JJ

INDEPENDENT NEWSPAPER CORPORATION (PRIVATE) LTD.

Versus

PUNJAB LABOUR APPELLATE TRIBUNAL, LAHORE and others

Civil Petitions Nos. 1167 and 1168 of 2012, decided on 7th September, 2012.

(On appeal from the judgment dated 3-5-2012 in W.P. No.170 of 2011 passed by the Lahore High Court, Rawalpindi Bench).

Industrial Relations Ordinance (XXIII of 1969)---

----Ss. 22-A(8)(g) & 25-A---Civil Procedure Code (V of 1908), O.XXIII, R.1---Grievance petition---Maintainability---Termination from service due to modernization of technology in the establishment---Employees accepting their termination, receiving their emoluments in full and final settlement and withdrawing their reinstatement cases from the National Industrial Relation Commission (NIRC)---Effect---Employees, in circumstances, were estopped from claiming their reinstatement or monetary gains from the employer---Employer Corporation (petitioner) terminated services of employees (respondents) after they became surplus due to modernization of technology---Employees filed petitions for their reinstatement before the National Industrial Relation Commission (NIRC) but withdrew them after a settlement was arrived at between the parties---Subsequently employees filed grievance petitions under S.25-A of the Industrial Relations Ordinance, 1969 which were allowed by the Labour Court and they were reinstated with back benefits---Appeals filed by employer Corporation before Labour Appellate Tribunal were dismissed and writ petitions filed thereagainst were also dismissed by the High Court---Contentions of employer Corporation were that employees accepted their dues on termination, knowing fully that posts they occupied had been abolished due to modernization of technology; that having accepted the dues employees were estopped from filing grievance petitions as they had severed their relationship with the employer Corporation; that employees voluntarily made an application to the management of the employer Corporation stating therein that they had accepted their termination and would withdraw their reinstatement cases filed before NIRC, and that nothing on record suggested that employer/Corporation had employed any other person in place of the employees---Validity---During pendency of cases before NIRC, a settlement was made between the parties whereby employees admitted that the section of establishment they worked in was closed and accepted their termination and agreed to withdraw their cases from the NIRC--- Employees received their dues and acknowledged receipt of their respective amounts in full and final settlement---Employees filed applications before NIRC to withdraw their reinstatement cases and consequent orders of NIRC indicated that employees had accepted their termination and received their emoluments in full and final settlement without any coercion or duress, as such relationship of employees and their employer Corporation stood discontinued---Employees in such circumstances were estopped to make any claim from the employer Corporation in respect of their reinstatement or monetary gain---Since there was no relationship of employer-employee between the parties, grievance petitions under S.25-A of the Industrial Relations Ordinance, 1969 were not maintainable---Grievance petitions were also barred in view of Order XXIII, Rule 1, C.P.C. which precluded a person from instituting any fresh suit in respect of subject matter or part of claim which had been withdrawn, unless permission was given by court---Employees had withdrawn their reinstatement cases before the NIRC after receiving their dues in full and final settlement of their claims---Petitions for leave to appeal were converted into appeal and allowed, judgments of forums below were set aside and grievance petitions of employees were dismissed being not maintainable.

General Manager, N.R.T.C. v. Muhammad Aslam 1992 SCMR 2169 distinguished.

Wali-ur-Rehman and others v. State Life Insurance Corporation and others 2006 SCMR 1079; Maqbool-ur-Rehman and others v. Government of Pakistan, Ministry of Finance and others 2006 PLC (C.S.) 512 and Qari Allah Bux and others v. Federation of Pakistan and another 2011 PLC (C.S.) 488 rel.

M. Asadullah Siddiqui, Advocate Supreme Court and Arshad Ali Chaudhry, Advocate-on-Record for Petitioner.

Abdul Rehman Qadir, Advocate Supreme Court for Respondents.

Date of hearing: 7th September, 2012.

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