PLC 2014 Judgments - Pakistan Legal Archive

Courts in this Volume

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

High Court Azad Kashmir

PLC 2014 HIGH COURT AZAD KASHMIR 409 #

2014 P L C 409

[High Court (AJ&K)]

Before Munir Ahmed Chaudhry, J

SPINTEX LIMITED through Manager Personal Administration

Versus

EMPLOYEES' OLD AGE BENEFITS INSTITUTION (E.O.B.I.) through Chairman and 3 others

Civil Appeal No.95 of 2007, decided on 26th August, 2013.

Employees' Old-Age Benefits (Extension of Functions to Azad Jammu and Kashmir) Act (X of 1980)---

----Ss. 1 & 2---General Clauses Act (IV of 1956) S. 6---Suit for recovery---Effect---Payment of amount to the Employees Old-Age Benefits Institution by the company---Contention of plaintiff-company was that they were paying the contribution to the Institution since September, 1990 whereas Employees Old-Age Benefits Institution Act, 1980 was enforced in Azad Jammu and Kashmir from 12-7-1995 and payment to the Institution should have been made from 12-7-1995 therefore the company was entitled to refund of the amount paid by it during the period when the Act was not enforced in Azad Jammu and Kashmir till the date of its enforcement---Suit of the company was dismissed by the Trial Court---Validity---Rights of employees, privileges, obligations or liabilities acquired, accrued or incurred under any enactment would not be effected by repeal of the same---Employer-company was fulfilling its obligation by making payments to the Institution---Plaintiff-company having been contributing the amount with regard to pension of its retired employees through the Institution, rights, privileges and liabilities acquired by the retired employees of company were intact---Findings recorded by the Trial Court were based on sound and cogent reasons---Appeal was dismissed in circumstances.

2001 PLC (C.S.) 11 ref.

Raja Hassan Akhtar for Appellant.

Mirza Zafar Hussain for Respondents.

PLC 2014 HIGH COURT AZAD KASHMIR 418 #

2014 P L C 418

[High Court (AJ&K)]

Before Ghulam Mustafa Mughal, C.J., Munir Ahmed Chaudhary and Abdul Rasheed Sulehria, JJ

UNITED BANK LIMITED

Versus

DISTRICT JUDGE WITH THE POWER OF LABOUR COURT and 2 others

Writ Petition No.1489 of 2013, decided on 5th March, 2014.

(a) Azad Jammu and Kashmir Industrial Relations Ordinance, 1974---

----S. 77---Limitation Act (IX of 1908), S.5---General Clauses Act (X of 1897), S.10---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.44---Writ petition---Time-barred appeal against the judgment of Labour Court---Condonation of delay---Sufficient cause/reason of delay---Plea of public holidays---Scope---Appeal filed by the petitioner/employer was dismissed by Labour Appellate Tribunal on account of limitation of two days---Contention of the petitioner/employer was that two days were declared holidays, therefore the Labour Appellate Tribunal was not justified to dismiss the appeal on account of limitation---Validity---Court or Tribunal to whom the appeal was preferred after prescribed period of limitation could admit the same for regular hearing provided that the party had shown sufficient cause for not filing appeal or other proceedings within statutory period---Holiday could be treated as sufficient cause for admission of the appeal after prescribed period of limitation---Impugned order of Labour Appellate Tribunal was set aside---Writ petition was accepted and the matter was remanded to Labour Appellate Tribunal to decide the same on merits.

Safeer Travels (Pvt.) Ltd. through Chief Executive Safeerul Islam v. Muhammad Khalid Shafi through Legal Heirs PLD 2004 SC 690; Sher Muhammad and 6 others v. Gul Fraz 1989 CLC 1344; Shafqat Hussain Shah v. Sakina Begum and others 1987 CLC 664; Muhammad Iqbal Khan and another v. Parveen Shakir 2013 SCR 85; Agricultural Development Bank of Pakistan Ltd. v. Noor Muhammad and 2 others PLD 1985 Quetta 74: PLD 1957 W.P. Lah. 92 and PLD 1985 Quetta 74 rel.

(b) Interpretation of statutes---

----Theory of "implied exclusion"---Scope---Where a provision has not been excluded specifically then theory of implied exclusion cannot be radially accepted.

Abdul Hameed Alvi v. A.D.B.P. Faisalabad and others (NLR 1989 TD 21 rel.

----S. 45(1)---Announcement of Judgment by presiding officer Labour Court---Procedure---Provisions relating to the dictating the judgment of Labour Court are mandatory in nature which enjoined upon presiding officer to firstly dictate the judgment and sign the same and thereafter announce in the open court.

Muhammad Amin v. Muhammad Hameed and 2 others 2001 MLD 525; Haji Abdullah through his legal heirs and another v. Jaffar through his legal heirs 1987 CLC 664; Muhammad Arshad Khan v. Muhammad Kaleem Khan and 7 others PLD 2007 SC AJ&K) 14; Azad Government of the State of Jammu and Kashmir and others v. Haji Summandar Khan and others 1995 MLD 1350; PLD 1985 Quetta 74; Muhammad Sajid v. Messrs Hussain Spinning Mills, Karachi NLR 1993 TD (Labour) 167; 1975 SCMR 452 and Nisar Ahmad v. Presiding Officer, Punjab Labour Court No.2 Lahore and another PLD 1976 Lah. 1162 ref.

Muhammad Idrees Mughal for Petitioner.

Raja Amjad Ali Khan for Respondents.

Islamabad

PLC 2014 ISLAMABAD 97 #

2014 P L C 97

[Islamabad High Court]

Before Noor-ul-Haq N. Qureshi, J

AJMAL FAROOQ ZIA

Versus

REGISTRAR, TRADE UNIONS, NATIONAL INDUSTRIAL RELATIONS COMMISSION, ISLAMABAD and another

Writ Petition No.1337 of 2012, heard on 12th November, 2012.

Industrial Relations Act (X of 2012)---

----S. 12---Constitution of Pakistan, Art. 199---Constitutional petition---Maintainability---Alternate remedy of appeal---Locus standi of petitioner---Scope---Officers Association/respondent was registered by Registrar Trade Union---Plea of petitioner was that registration of said Association was carried out by Registrar without lawful authority---Validity---Section 12 of Industrial Relations Act, 2012 provided right of appeal against order/decision of the Registrar---Non-constitution of National Industrial Relations Commission, before which appeal was to be filed, for a certain time period did not take away the right of petitioner to prefer an appeal---Petitioner could not furnish any proof regarding his membership of respondent/Association (to identify infringement of any of his rights), therefore, he had no locus standi to file constitutional petition---Constitutional petition lacked merit and was dismissed accordingly.

Mushtaq Hussain Bhatti for Petitioner.

Barrister Afzal Hussain for Respondents.

Date of hearing: 12th November, 2012.

Karachi High Court Sindh

PLC 2014 KARACHI HIGH COURT SINDH 31 #

2014 P L C 31

[Sindh High Court]

Before Aftab Ahmed Gorar, J

GHULAM MUSTAFA

Versus

COMMISSIONER FOR WORKMENS' COMPENSATION AND AUTHORUTY and another

Constitutional Petitions Nos.885, 886, 887 and 888 of 2011, decided on 28th November, 2012.

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

----Ss. 15 & 17---Constitution of Pakistan, Art.199---Constitutional petition---Deduction from wages---Review of order---Deductions having been made in wages of the employee, employee approached Commissioner for Workmen's Compensation, who allowed the claim and directed the employer to make payment to the employee within a period of 30 days---Employer neither had complied with said order of Commissioner, nor availed the statutory remedy of appeal, and instead filed application for review of order passed by the Commissioner after 6 months of passing of the order---Commissioner in a slipshod and hasty manner reviewed his own order, despite the fact that there was no provision under the law authorizing the Commissioner to review his order---Remedy of statutory appeal available to the employer, having not been availed, impugned order, which lacked reason and was non-speaking could not be sustained under the law---Impugned orders was set aside and earlier order passed by the Commissioner granting claims of the employee was restored---Employer was directed to make payment as ordered earlier, in circumstances.

PLD 1986 Quetta 19; PLD 1970 SC 1; 2005 PLC 364; 1991 PLC 758; 2002 PLC (C.S.) 696; PLD 2004 SC 416, PLD 1991 Kar. 477; PLD 1970 SC 1, 1991 CLC 7589; 1996 SCMR 336; 1997 SCMR 926; PLD 1988 Pesh. 33 and 2004 SCMR 497 ref.

Ashraf Hussain Rizvi for Petitioner.

Shahzad Qamar for Respondent No.2.

Date of hearing: 15th November, 2012.

PLC 2014 KARACHI HIGH COURT SINDH 40 #

2014 P L C 40

[Sindh High Court]

Before Shahid Anwar Bajwa and Aftab Ahmed Gorar, JJ

BANK ALFALAH LIMITED and others

Versus

FEDERATION OF PAKISTAN through Secretary Law and others

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

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

----Ss. 2(b), 4 & 47(e) [as amended by S.9(4) of Finance Act (I of 2008)]---Constitution of Pakistan, Art.199---Constitutional petition---"Contribution", whether could be called a "tax"---Counsel for the petitioners/Banks, had submitted that Employees Old-Age Benefits Act, 1976 was not an Act which could be called a Money-Bill and it could not be amended through a Finance Act, which could be passed only by the National Assembly and not by the Senate---Counsel for respondent/Employees' Old-Age Benefits Institution had submitted that contribution to be made under Employees' Old-Age Benefits Act, 1976, was a "tax" and said Act, had been validly amended through Finance Act---Contention of counsel for respondent Institution that contribution was a "tax" because it was collected for the purpose of providing unemployment compensation, was misconceived, because under S.4 of Employees' Old-Age Benefits Act, 1976, Institute was a body corporate---Institute had separate accounts; and the contribution made by employer or by the employees, was paid to the Institution, and was not paid to the Government---Contribution was made in respect of each employee and institution was then liable to provide benefits to such employees; it was, therefore, contribution for a service to be rendered by the institution in future; and each penny of the institution had nexus with a particular employee, employed by the employers---Contribution, in circumstances, could not be by any stretch of imagination called the "tax", but was in the nature of "fee"---Amendments brought in Employees' Old-Age Benefits Act, 1976 by the Finance Act, 2008, were without lawful authority and of no legal effect.

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 Peshawar 15; 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 MLD 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.

PLC 2014 KARACHI HIGH COURT SINDH 77 #

2014 P L C 77

[Sindh High Court]

Before Shahid Anwar Bajwa and Aftab Ahmed Gorar, JJ

PAKISTAN SERVICES LIMITED through Major (R) Zia Ahmed Jan and another

Versus

SINDH LABOUR APPELLATE TRIBUNAL and another

Constitutional Petition No.D-35 of 2011, decided on 3rd October, 2012.

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

----S. 41---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(i) & S.O.12(3)---Grievance petition---Maintainability---Employee was "workman" as defined in S.2(i) of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968---If the employee was not "workman" for the purpose of definition as given in Industrial Relations Act, 2008, employee was entitled to maintain grievance petition Standing Order 12(3) of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 provided for maintenance of grievance petition.

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

----S. 2(i)---"Workman"---Determination of status---Employee was not employed in supervisory capacity, she was working in the health club, performing various duties which she mentioned in her affidavit in evidence---Employee by stating her duties, and with no specific denial by the employer, had successfully established the case that her duties were manual and clerical in nature---Employee in circumstances, was workman for the purpose of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968---Designation was not material, but the work actually being done by the employee, was relevant for deciding the issue of "workman".

Messrs Coca Cola Beverage Pakistan Limited through Authorized Officer/Industrial Relations Manager v. Registrar Trade Unions Sindh and 3 others 2010 PLC 48; Coca Cola Mazdoor Union v. Registrar of Trade Unions and others SBLR 2012 Sindh 522; Trustees of the Port of Karachi v. Muhammad Saleem 1994 SCMR 2213; Board of Governors Aitchison College, Lahore v. Punjab Labour Appellate Tribunal and others 2001 SCMR 1928; Muhammad Nawaz Bhatti v. President, Muslim Commercial Bank Limited, Karachi and others 2008 SCMR 1377; Messrs Wah Industries Limited, Wah Cantt., District Rawalpindi v. Punjab Labour Appellate Tribunal Lahore and 2 others 1998 PLC 1; Muhammad Nawaz Bhatti v. President, Muslim Commercial Bank Limited, Karachi and others 2008 PLC 355; Allied Bank of Pakistan Limited through Attorneys 2 others v. Muhammad Bashir Khan 2006 PLC 39; 2001 PLC (C.S.) 768; Khushal Khan v. Commercial Bank Ltd. and others 2002 SCMR 943; Almas Ahmed Fiaz v. Secretary Government of the Punjab Housing and Physical Planning Development, Lahore and another 2007 PLC 64; Nisar Ahmed v. Presiding Officer, Punjab Labour and another PLD 1976 Lah. 1162; Messrs Dalmia Cement Ltd. v. Dalmia Cement Factory Workers Union and others PLD 1958 SC 153; Bannu Woollen Mills v. Chairman, Industrial Court, West Pakistan, Lahore and others 1966 PLC 306; National and Grindlays Bank Limited, Chittagong and others v. The East Pakistan Bank Employees' Union Chittagong and others 1961 PLC 1013; Sui Gas Transmission Co. Ltd. v. The Islamic Republic of Pakistan and others 1960 PLC 80; Shahdad Baloch and 3 others v. Pakistan Herald Company 2000 PLC 636; Sunil Masih v. Smt. Elizabeth Dalisy Masih and another AIR 2001 Mad 226; Rachapalli Abbulu and others v. State of A.P. AIR 2002 SC 1805; Popular Tabaco Co. Workers' Union v. Second Sindh Labour Court, Karachi and 2 others 1979 PLC 62; Messrs International Laboratories Employees' Union v. Sindh Labour Appellate Tribunal PLD 1976 Kar. 292; Muhammad Sadiq v. Punjab Labour Court No.1, Lahore and another PLD 1988 SC 633; Sabir Mehmud Bhatti v. Chairman, Sindh Labour Appellate Tribunal 2000 PLC 476; Pakistan Engineering Co. Limited, Lahore through Managing Director v. Fazal Beg and others 1992 SCMR 2166; Managing Director, Shahi Bottlers (Pvt.) Limited v. The Punjab Labour Appellate Tribunal, Lahore and 2 others 1993 SCMR 488; Allay Yar v. General Manager, Railways Headquarters, Lahore and another 2001 SCMR 256; Ghulam Muhammad v. Government of the Punjab through Secretary, Industries, Lahore and others 2000 PLC 235; Gul Rehman v. Gul Nawaz Khan 2009 SCMR 589; United Bank Limited through President v. Shamim Ahmed Khan and 41 others PLD 1999 SC 990; Muhammad Serajuddin v. Labour Appellate Tribunal and another 1983 PLC 1286; Messrs Saifee Development Corporation Ltd. v. Inamur Rehman 1969 PLC 459; Hafiz Ghulam Yasin and 27 others v. Federation of Pakistan through Secretary Defence, Islamabad and another 2011 PLC (C.S.) 292; Abdul Hameed Kiranvi v. Sindh Labour Appellate Tribunal and others 1990 PLC 213; Sikandar Hayat v. Sindh Labour Appellate Tribunal, Karachi and 2 others 1991 PLC 508; Karnaphully Paper Mills Ltd. v. Karnaphully Paper Mills Workers' Union and others 1961 PLC 991; Messrs Shaheen Airport Services v. Sindh Labour Appellate Tribunal, Karachi and 2 others 1992 PLC 284; Abdul Hameed Kiranvi v. Sindh Labour Appellate Tribunal and others 1990 PLC 213; Lal Khan v. Punjab Labour Appellate Tribunal and another 1995 SCMR 1758; Pakistan Automobile Corporation Limited through Chairman v. Mansoor-ul-Haque and 2 others 2004 PLC (C.S.) 1151; Abdul Hafeez Abbasi and others v. Managing Director, Pakistan International Airlines Corporation, Karachi and others 2002 PLC (C.S.) 1083; Akir Qamar and another v. General Manager (Administration) Passco and others 2007 PLC (C.S.) 534; Balochistan Engineering Works Ltd. v. Abdul Hameed and others 2007 SCMR 1160=2007 PLC 426; Muhammad Bashir and others v. Chairman, Punjab Labour Appellate Tribunal, Lahore and others 1991 SCMR 2087 and Mustehkum Cement Limited through Managing Director v. Abdul Rashid and others 1998 PLC 172 ref.

----S. 54(3)---Appeal to Labour Appellate Tribunal---Limitation---Certified copy of impugned appellate order passed by Labour Appellate Tribunal was delivered to appellant/employee, 25 days after the passing of the order; and appeal was filed within 25 days from delivery of copy of the order---Period of 30 days having been prescribed under S.54(3) of Industrial Relations Act, 2008 for filing appeal, appeal of employee, was not barred by time as alleged by the employer.

Bank of Punjab v. Punjab Labour Appellate Tribunal, Lahore and 2 others 2010 PLC 519; Lahore Development Authority v. Muhammad Rashid 1997 SCMR 1224 and Ahmed Jan and others v. Qazi Azizul Haq and others 2009 SCMR 1022 ref.

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

----S. 41---Grievance notice---Counsel for employer, had contended that as grievance notice was addressed by the employee to Manager of employer/Hotel under S.2(h) of the Pakistan Hotels and Restaurants Act, 1976, same was not a valid grievance notice---Validity---Since grievance notice was replied by the competent authority i.e. Incharge, who had terminated the employment of the employee, objection regarding non-service of the grievance notice on the terminating authority, in view of said particular fact, had become hyper technical and was repelled, in circumstances.

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

----S. 53---Appeal to Appellate Tribunal---Counsel for employers had submitted that impugned judgment was not announced by the Labour Appellate Tribunal in open court, therefore, same was not a valid judgment and that judgment was passed on sympathetic grounds---Validity---Judgment was written and signed by Appellate Tribunal on the same date when it was announced; in view of what was written at the end of the judgment that it was announced on the date which was stated to be date of judgment, no interference was called with impugned order on that count---Tribunal had scrutinized evidence and grounds for termination of the employees; and had decided the matter thereafter---Submissions of counsel for the employers was not relevant, in circumstances.

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

----Ss. 41 & 53(2)---Grievance petition---Power of Labour Court for enforcing attendance of any person---Counsel for the employers had submitted that no oral evidence was recorded by the Labour Court; affidavits in evidence were filed by the parties; and thereafter cross-examination were conducted on the basis of those affidavits in evidence---Labour Court had necessary power for enforcing attendance of any person and examining him on oath---In the present case, affidavits in evidence were filed and both the counsel cross-examined other party without any objection to the affidavits in evidence---When they appeared for cross-examination, affidavit was recalled and affirmed---In presence of such positions objection by the counsel for the employers, lost its force.

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

----S.O. 12(3)---Termination of service---Termination in case where Standing Order 12(3) of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, was applicable, could not be subject of 'Industrial dispute'.

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

----S.Os. 13 & 14---Retrenchment---Re-organization of business---Exclusive right of employer to decide the way to conduct his business and to re-organize the same---Even if organization was making profit, that would not mean that organization could not re-organize its operation to achieve better efficiency of working---Retrenchment of workers, could be for a variety of the reasons---One of them being of suffering of loss, but, even if organization was profitable, it could still resort to retrenchment for bona fide reasons of re-organization.

Parry & Co. v. Judge Second I.T., Calcutta AIR 1970 SC 1334 rel.

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

----S. 25(3)---Power of Labour Court to deal with question of unfair labour practice---Power to deal with question of unfair labour practice, had specifically been provided for the Labour Court in S.25(3) of Industrial Relations Act, 2008.

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

----S. 55---Constitution of Pakistan, Art. 199---Constitutional jurisdiction of High Court---Scope---Where question of fact was decided by Labour Appellate Tribunal, High Court while exercising constitutional jurisdiction, could not settle disputed questions of fact.

Mahmood Abdul Ghani for Petitioners.

Abdul Latif Saghar for Respondent No.2.

Date of hearing: 4th September, 2012.

PLC 2014 KARACHI HIGH COURT SINDH 117 #

2014 P L C 117

[Sindh High Court]

Before Mushir Alam, C.J.

SHABBIR TILES AND CERAMICS LABOUR UNION through President

Versus

REGISTRAR OF TRADE UNIONS and 2 others

High Court Appeal No.99 and Miscellaneous No.1296 of 2012, decided on 12th December, 2012.

Sindh Industrial Relations Act (XV of 2010)---

----S. 24---Law Reforms Ordinance (XII of 1972), S.3---Intra-Court appeal---Determination of Collective Bargaining Agent---Holding of Referendum---Appellant/Labour Union, had urged that 400 workers were deprived of right to franchise; and that S.24(2) of Industrial Relations Act, 2010, had mandated to hold referendum on the strength of 1/5th of the total strength of the workers in the Establishment---Grounds which were raised by the appellant in Intra-court appeal, had not been raised by him in the constitutional petition before the High Court---Pleas that 400 workers were deprived of franchise, or there was application by 1/5th of the total strength of the workers to hold elections, could not be looked into at Intra-court appeal stage, as those were not the legal grounds, but were based on factual controversy---Intra-court appeal against such order could not be maintained on factual grounds.

Airport Development Authority v. Registrar of Trade Unions 1982 PLC 26 ref.

Ashraf Hussain Rizvi for Petitioner.

Abdul Ghaffar for Respondent No.2.

Jaffar Hussain for Respondent No.3.

PLC 2014 KARACHI HIGH COURT SINDH 176 #

2014 P L C 176

[Sindh High Court]

Before Faisal Arab and Nasir Muhammad Sheikh, JJ

PAKISTAN TELECOMMUNICATION COMPANY LIMITED and others

Versus

YASMEEN TABASSUM and others

Constitutional Petitions Nos.D-1677 to D-1688 of 2012, decided on 15th July, 2013.

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

----Ss. 2(xvi), (xxx) & 46---Constitution of Pakistan, Art.199---Constitutional petition---"Workman"---Voluntary Separation Scheme (VSS)---Claim of pensionary benefits apart from general benefits on the basis of qualifying length of service---Scope---Employee working as "Telephone Operator" opted Voluntary Separation Scheme launched by the employer Company (PTCL)---Employee who had put more than twenty years of service was entitled to pensionary benefits apart from general benefits---Employee on the basis of more than twenty years length of service claimed pensionary benefits but the petitioner Company rejected the claim in respect of length of service---Grievance petition filed by the employee qua his claim of length of service and entitlement of pensionary benefits was accepted---Labour Appellate Tribunal dismissed the appeal filed by employer Company---Contention of the Company was that the employee did not fall within the definition of "workman" and the amount in full and final was mentioned in the offer letter, therefore the employee was not entitled for pensionary benefits---Validity---Employee "Telephone Operator" by virtue of his nature of duties falls within the definition of "workman"---Employee had been accepted the severance of his ties with the petitioner Company by opting settlement under the VSS---One of the terms in the offer of VSS was that employee who had put in more than twenty years of service would be entitled to pensionary benefits---Employee through evidence had proved that he had put in more than twenty years of service and as such he became entitled to pensionary benefits as per the offer contained under VSS---Upon acceptance of the offer, all the terms and conditions provided under the VSS became binding on both the parties---Constitutional petition was dismissed.

1994 SCMR 2213; 1963 PLC 951; 2006 PLC 597; 2004 PLC 250; 1989 PLC 454 and 2006 SCMR 783 ref.

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

----Ss. 2(xvi), (xxx) & 46---Constitution of Pakistan, Art.199---Constitutional petition---Retired employee---Jurisdiction of Labour Court in respect of grievance petition filed by employee after retirement---Scope---Employee after opting Voluntary Retirement Scheme approached the Labour Court to claim pensionary benefits---Grievance petition filed by such employee was accepted---Appeal filed by the employer Company was dismissed---Contention of the Company was that as the employee after opting voluntary retirement ceased to be a workman, therefore he was not entitled to invoke the jurisdiction of Labour Court---Validity---Right accrued to a workman during or at the time of terminating his service could be agitated before the Labour Court even though he was no more in service---Constitutional petition was dismissed.

2005 SCMR 100; 1991 SCMR 1041; 2011 SCMR 1344; PLD 2007 SC 35; 2006 SCMR 783; 1987 SCMR 1463; 2006 PLC (C.S.) 1173, 1992 PLC (Labour) 116, 2008 SCMR 240 and 2011 PLC (C.S.) 641 ref.

Haider Waheed for Petitioners.

M.A. Hakeem for Respondents.

Date of hearing: 12th March, 2013.

PLC 2014 KARACHI HIGH COURT SINDH 200 #

2014 P L C 200

[Sindh High Court]

Before Muhammad Ali Mazhar and Abdul Rasool Memon, JJ

KARACHI PORT TRUST EMPLOYEES UNION (REGD.) (SHAMMA) through Joint Secretary

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Ports and Shipping

Pakistan and 2 others

Miscellaneous No.1065 of 2014, 32905 of 2013 in Constitutional Petition No.D-5397 and Miscellaneous No.33168 of 2013 in Constitutional Petition No.D-5454 of 2013, decided on 10th February, 2014.

Industrial Relations Ordinance (XCI of 2002)---

----S. 12(3)(iv)---Constitution of Pakistan, Art.199---Constitutional petition---Cancellation of registration of a trade union by the Registrar under S.12(3)(iv) of Industrial Relations Ordinance, 2002---Procedural requirements---Issuing of show-cause notice and holding of inquiry---Petitioners were registered trade unions of Karachi Port Trust (KPT)---Registrar, Trade Union cancelled registration of petitioners under S.12(3)(iv) of Industrial Relations Ordinance, 2002 without holding an inquiry and without issuing any show-cause notice to the petitioners---Legality---Although under S.12(3)(iv) of Industrial Relations Ordinance, 2002, Registrar, Trade Union had the power to cancel registration of a trade union but such power was to be exercised only after holding an inquiry, which meant proper application of mind and providing an opportunity to the concerned union---Registrar, in the present case, neither conducted any inquiry nor any show-cause notice was ever issued to the petitioners---Constitutional petition was allowed in circumstances and letters issued for cancellation of registration of petitioners/union were set aside with the direction that Registrar, Trade Union was at liberty to take action, if any, in accordance with law.

S. Ehsan Ahmed Karim for Petitioners (in Constitutional Petition No.D-5397 of 2013) along with Bashir Khan General Secretary of the Petitioner.

S. Shoa-un-Nabi for Petitioner (in Constitutional Petition No.D-5454 of 2013) along with Abdul Rasheed Joint Secretary of the Petitioner.

M. Rizwan Saeed for K.P.T.

Abdul Jalil Zubedi, A.A.-G.

Gulfam Nabi Memon, Joint Director Labour.

Syed Farrukh H. Zaidi, Assistant Director Labour.

PLC 2014 KARACHI HIGH COURT SINDH 267 #

2014 P L C 267

[Sindh High Court]

Before Shahnawaz Tariq, J

MOEEN WEAVING FACTORY through Factory Manager

Versus

MUHAMMAD SIDDIQUE and 2 others

Constitutional Petition No.S-82 of 2012, decided on 28th February, 2014.

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

----S. 2-A-Written order of appointment---Mandatory requirement of law---Scope---Workman at the time of appointment, transfer or promotion shall be provided with an order in writing, showing the terms and conditions of his service, therefore non-issuance of such order was gross violation of provision of S.2-A of Industrial Relations Ordinance, 1969.

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

----S. 46(5)---Constitution of Pakistan, Art.199---Constitutional petition---Grant of compensation to employee in lieu of re-instatement---Scope---Petitioner/employer challenged the order of Labour Court granting compensation to the workman in lieu of re-instatement---Validity---Labour Court had rightly considered that the strained and tensed relations between the workman and employer would not allow in creating and maintaining peaceful, supportive and conducive working environment in the factory---Grant of thirty months' salary as compensation in lieu of re-instatement of workman was covered under S.46(5) of Industrial Relations Ordinance, 1969---Judgment passed by the Labour Court could not be treated as an illegal verdict---Constitutional petition was dismissed.

----S. 37(3)---Limitation Act (IX of 1908), S.5---Constitution of Pakistan, Art.199---Constitutional petition---Appeal---Condonation of delay on the plea of slackness/lapse on the part of counsel---Validity---Every party was entirely responsible for the act and omission of his counsel---Petitioner could not take any concession that his, advocate had not informed him about the dismissal of appeal by Court, even otherwise it was the prime duty of the petitioner to remain vigilant to pursue his cause---Constitutional petition was dismissed.

Saeeduddin Siddiqui for Petitioner.

Anwar Jamal for Respondent No.1.

Anwar H. Ansari, State Counsel.

Date of hearing: 14th February, 2014.

PLC 2014 KARACHI HIGH COURT SINDH 300 #

2014 P L C 300

[Sindh High Court]

Before S. Hasan Azhar Rizvi and Muhammad Junaid Ghaffar, JJ

Messrs PIZZA PIPER and others

Versus

SINDH LABOUR APPELLATE TRIBUNAL and others

Constitutional Petitions Nos.D-1829 and D-1486 of 2012, decided on 15th April, 2014.

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

----S. 30(1)(a)---Constitution of Pakistan, Art.199---Constitutional petition---Ex parte order was passed against the employer by the Commissioner, Workmen's Compensation and in execution proceedings employer was served with notice of auction---Employer approached the Commissioner for obtaining certified copies of the said proceedings and also filed application for recalling the ex parte order and suspension of said proceedings---Said application of the employer was neither entertained nor any order of rejection on such application was passed by the Commissioner---Employer filed appeal before the Tribunal, which was partly accepted to the extent that the employer was within its right to obtain the certified copies of the proceedings and was also entitled to file said applications, but subject to deposit of decretal amount---Contention of the employee was that mandatory requirement in terms of S.30(1)(a), third proviso, of the Workmen's Compensation Act, 1923 had not been fulfilled before filing the appeal before the Tribunal---Validity---Condition for deposit of the decretal amount was only in respect of an order passed under subsection (1)(a) of S.30 of the Workmen's Compensation Act, 1923, which provided that no appeal by an employer shall lie unless the memorandum of appeal was accompanied by a certificate by the Commissioner to the effect that the employer had deposited the amount payable under the order appealed against---Said condition was not in respect of other orders as referred to or described in clauses (a) to (e) of subsection (1) of S.30 of the Workmen's Compensation Act, 1923---Fulfilment of the condition was not objected to by the Tribunal at the time of filing of appeal---Said appeal was not of the nature, which could be termed as an appeal covered by S.30(1)(a) of the Workmen's Compensation Act, 1923 and, therefore, the condition prescribed under the third proviso was not applicable to the circumstances of the case---Said proviso could only be invoked by the Tribunal firstly at the time of filing and or institution of the appeal before that court and secondly that was applicable only in respect of an order, which was exclusively an order passed under S.30(1)(a) of the Workmen's Compensation Act, 1923 and not otherwise.

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

----S. 30 (1)(a)---Appeal---Maintainability---Employer was aggrieved by the act of the Commissioner whereby he had refused to acknowledge receipt of application filed by the employer holding that no appeal lay against said order of the Commissioner which order did not amount to passing of an order as described in clauses (a) to (e) of subsection (1) of S.30 of the Workmen's Compensation Act, 1923---Employer's appeal if preferred before the Tribunal was liable to be returned or dismissed as not being maintainable and against that refusal, the employer had only one remedy of Constitutional petition---Employer, in circumstances, was not required to deposit the decretal amount before filing of Constitutional petition before the High Court and in view of that position and for the fact that the order of the Tribunal had been challenged before the High Court in Constitutional jurisdiction, the employer could not be compelled to deposit the decretal amount before filing of any applications before the Commissioner for obtaining certified copies and or for other purposes---Order of the Tribunal to pre-deposit the decretal amount was set aside.

Syed Muhammad Saulat Rizvi and Faheem Hussain Panhwar for Petitioner (in C.P. No.1829 of 2012) and for Respondent No.6 (in C.P. No.1486 of 2012).

Allah Bachayo Soomro, Addl. A.-G. Sindh for Official Respondents.

Muhammad Nishat Warsi for Respondent No.3 and (for Petitioner (in C.P. No.1486 of 2012).

Date of hearing: 2nd April, 2014.

PLC 2014 KARACHI HIGH COURT SINDH 319 #

2014 P L C 319

[Sindh High Court]

Before Muhammad Ali Mazhar and Abdul Rasool Memon, JJ

Messrs AKHTER TEXTILE INDUSTRIES LTD. through Manager Administration

Versus

SINDH LABOUR APPELLATE TRIBUNAL and 4 others

Constitutional Petition No.D-3993 of 2011, decided on 13th February, 2014.

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

----Ss. 15 & 17---Industrial Relations Act (IV of 2008), S.55(4)---Civil Procedure Code (V of 1908), O.VIII, R.10---Constitution of Pakistan, Art.199---Constitutional petition---Written statement not signed by authorized officer---Applicability of the provisions of Civil Procedure Code, 1908 to Labour cases---Scope---Claim filed by the employee before Authority under Payment of Wages Act, 1936 was allowed on the ground that written statement was not signed by competent person---Appeal filed by employer was allowed by Labour Court and the matter was remanded to Authority for decision afresh---Appellate order of Labour Court was challenged by employee before Labour Appellate Tribunal through revision application, whereby the order of Labour Court was set aside and order passed by the Authority was restored---Contention of the petitioner employer was that Authority could not exercise powers of civil court and intricacies of Civil Procedure Code, 1908 were not applicable to Labour cases---Validity---Determination of relationship of employer and employee in Labour cases mattered in order to decide the case expeditiously---Complexities and intricacies of Civil Procedure Code, 1908 had not been made applicable in letter and spirit purposely to avoid delay---Authority under the Payment of Wages Act, 1936 had simply ignored and discarded the petitioner/employer's defence on the ground that the written statement was not filed by authorized person while the petitioner's management throughout contested the proceedings and never objected or took the plea that the person who had signed the written statement or appeared in the witness box on their behalf was not the authorized one---Labour Appellate Tribunal instead of considering the order of Labour Court on merits had simply affirmed the findings of the Authority on the applicability of O.VIII, R.10, C.P.C which was not germane and had no nexus with the case---Impugned order passed by Tribunal was set aside and the matter was remanded to Tribunal to decide the same afresh on merits.

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

----S. 17---Industrial Relations Act (IV of 2008), S.55(4)---Constitution of Pakistan, Art.199---Constitutional petition---Labour Court deciding matter under the provisions of Payment of Wages Act, 1936---Jurisdiction of Labour Appellate Tribunal---Scope---Order passed by the Labour Court as an appellate Court under the provisions of Payment of Wages Act, 1936 could be assailed before the Labour Appellate Tribunal under its revisional jurisdiction.

Lawrencepur Woollen and Textile Mills Ltd. v. Government of the Punjab and others 2004 PLC 170 distinguished.

Muhammad Hussain and others v. Islamic Republic of Pakistan PLD 1991 SC 385; National Cement Industries Ltd. v. Sindh Labour Appellate Tribunal and others 1981 PLC 561 and Ghulam Mustafa's case 2002 PLC 52 rel.

----S. 55(4)---Revisional jurisdiction of Labour Court/Tribunal---Scope---While exercising the revisional jurisdiction, the Labour Court and or Tribunal in order to explore every avenue ought to see what illegality or irregularity was committed by the Court or Authority below, which required the correction in the revisional jurisdiction---Basic tenet of law was that the Tribunal in its revisional jurisdiction should consider whether the Court below exercised the jurisdiction not vested in it by law or a jurisdiction vested in it by law was not exercised and the Court below had acted in the exercise of its jurisdiction illegally or with material irregularity.

(d) Constitution of Pakistan---

----Art. 199---Payment of Wages Act (IV of 1936), Ss.15 & 17---Industrial Relations Act (IV of 2008), S.55(4)---Constitutional jurisdiction of High Court---Scope---Where a Tribunal/Court or an Authority had travelled beyond its jurisdiction or acted in excess of its jurisdiction or powers or committed an error apparent on the face of record or acted outside the scope of law, High Court under Art.199 of the Constitution had ample and adequate power for supervision and correction---High Court under its Constitutional jurisdiction could examine the legality of an order passed by the special court or tribunal constituted under the special enactment and if the order was found illegal it could be rectified, rescinded or altered---Any order passed in violation of law could conveniently be questioned and quashed under the Constitutional jurisdiction of High Court to remedy any mischief arising out of an illegal order.

Muhammad Humayun for Petitioner.

Ashraf Hussain Rizvi for Respondent No.4.

Abdul Jalil Zubedi, A.A.-G.

Date of hearing: 13th February, 2014.

PLC 2014 KARACHI HIGH COURT SINDH 379 #

2014 P L C 379

[Sindh High Court]

Before Irfan Saadat Khan and Nadeem Akhtar, JJ

M. RIAZ AHMED

Versus

GOVERNMENT OF PAKISTAN through Ministry of Production and 3 others

Constitutional Petition No.D-1158 of 2011, decided on 8th May, 2014.

Constitution of Pakistan---

---Art. 199---Constitutional petition---Maintainability---Retirement of an employee on the ground of medical disability and non-payment of group insurance---Scope---Contention of respondent was that petitioner had already availed remedy by filing an application before the Commissioner Workmen's Compensation and Payment of Wages Authority---Validity---Petitioner had filed an application before the Commissioner and Payment of Wages Authority which was pending---Petitioner had no legal justification to file the present constitutional petition which was not maintainable---Constitutional petition was dismissed in circumstances.

Imtiaz Ali Effendi for Petitioner.

Dilawar Hussain, Standing Counsel for Respondent No.1.

Ghulam Murtaza Sario for Respondent No.2.

Nemo for Respondents Nos.3 and 4.

Date of hearing: 8th May, 2014.

PLC 2014 KARACHI HIGH COURT SINDH 382 #

2014 P L C 382

[Sindh High Court]

Before Hassan Feroze, J

Messrs TNB LIBERTY POWER LTD. through Authorized Manager and Security

Versus

DIRECTOR OF LABOUR, GOVERNMENT OF SINDH and 3 others

Constitutional Petition No.S-33 of 2011, decided on 2nd May, 2014.

Industrial Relations Act (X of 2012)---

----Ss. 3 & 9(1)(2)---Industrial Relation Ordinance (XXIII of 1969), Ss.3 & 50---Civil Procedure Code (V of 1908), O.XIX R.1---Constitution of Pakistan, Arts.199 & 17---Constitutional petition---Maintainability---Alternate Remedy---Locus standi---Freedom of association---Trade union and freedom of association---Registration of trade union---Petitioner had assailed the order of authorities regarding unilateral issuance of certificate of registration of trade union---Contention of the petitioner was that authorities had registered the trade union of strangers/workers of other establishments, who had no concern with the petitioner's establishment without affording an opportunity of hearing to the petitioner---Plea of the authorities was that the petitioner had no locus standi to file the constitutional petition, as under S.50 of the Industrial Relations Ordinance, 1969 the petitioner had alternate remedy of appeal before Labour Court and that the Constitutional petition had been filed incompetently in violation of O.XIX, R.1, C.P.C.---Validity---Authorities were not required under the law to hear the petitioner before registration of the trade union---Neither the employer nor trade union already existing in the same establishment could claim locus standi to challenge the decision of the Registrar, merely on the ground that no opportunity of hearing was provided to it or an objection raised by it before the Registrar was not considered before such decision---Constitutional petition had been filed without proper authorization to the person, as for such an authorization a resolution of the petitioner (employer) company was necessary to authorize such person to file the petition and in absence of such Resolution of Board of Directors, the petition was filed incompetently in violation of O.XIX, R.1, C.P.C.---Section 50 of Industrial Relations Ordinance, 1969, had provided that any Collective Bargaining Agent or any employer may apply to the Labour Court for the enforcement of any right guaranteed or secured to him by or under any law or any award or settlement---Petitioner in case of any dispute or enforcement of right, could approach the Labour Court instead of filing Constitutional petition and such petition being ultra vires to Art.199 of the Constitution was not sustainable under law---High Court held that the petition was not maintainable and had been filed incompetently---Constitutional petition was dismissed in circumstances.

National Foods Limited v. Registrar of Trade Unions Government of Sindh and another 2008 PLC 260; Messrs Hakimsons Chemical Industries (Pvt.) Limited, Karachi through General Manager v. Registrar of Trade Unions (West), Government of Sindh, Karachi and another 1997 PLC 746 and Messers Hakim Sons Chemical Industries (Pvt.) Limited v. The Registrar of Trade Unions (West) Government of Sindh and others 1999 SCMR 234 rel.

Muhammad Gul Kakar v. P.O. Balochistan 1998 SCMR 1964; Messrs Forbes Forbes Campbell & Co. (Pvt.) Ltd. v. Registrar of Trade Unions and another 1999 PLC 312; S.G. Fibre Employees Union through General Secretary v. Registrar of Trade Unions of Sindh and 5 others 2003 PLC 58; Lucky Textile Mills through Managing Partner v. Mazdoor Union of Luck Textile Mills through General Secretary and 3 others 2007 PLC 366 and Messrs Naveena Exports Ltd. v. Directorate of Labour, Government of Sindh East Division and 3 others 2010 PLC 148 distinguished.

S.S. Jehangir Khan for Petitioner.

Syed Sardar Hussain Shah for Respondent No.3.

Abdul Ghani Khan for Respondent No.4.

Mukhtiar Ahmed Khanzada State Counsel.

PLC 2014 KARACHI HIGH COURT SINDH 416 #

2014 P L C 416

[Sindh High Court]

Before Faisal Arab and Shaukat Ali Memon, JJ

INDEPENDENT MEDIA CORPORATION (PVT.) LTD. through Chief Operating Officer and 2 others

Versus

SINDH LABOUR APPELLATE TRIBUNAL and another

Constitutional Petition No.D-710 of 2012 and M.As. Nos.3893 of 2012 and 11229 of 2013 decided on 7th November, 2013.

Industrial Relations Act (X of 2012)---

----Ss. 2(xxxii) & 33---Grievance application---Applicant/employee who was working initially with "C Limited" claimed that after his appointment, he was treated to be in the employment of "I Limited" and both companies were part of "J Group of Companies"---Employee had admitted that his case was against "C Limited"---Both companies were private limited companies, and when the grievance application was filed before the Labour Court, none of those companies were made party and only Directors and Managers had been sued---Employee ought to have sued the Companies as well, which were independent juristic entities---Employee being a 'workman', instead of nullifying whole proceedings, while setting aside the judgments of both courts below, High Court directed the employee to file amended title, impleading both the companies as party and thereafter fresh notice would be issued by the Labour Court, on their addressees; and after the defence that could be set up by such Companies, the Labour Court would dispose of the matter in accordance with law.

Mehmood Abdul Ghani for Petitioner.

M.A.K. Azmati for Respondent No.2.

Labour Appellant Tribunal Balochistan

PLC 2014 LABOUR APPELLANT TRIBUNAL BALOCHISTAN 123 #

2014 P L C 123

[Labour Appellate Tribunal Balochistan]

Before Abdul Ghias Nousherwani, Member

GENERAL MANAGER (S&E) PAKISTAN TELECOMMUNICATION COMPANY LIMITED and 3 others

Versus

KHALID SHAMIM

Labour Appeal No.6 of 2013, decided on 17th September, 2013.

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

----Ss. 41 & 55(3)---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.Os.12 & 15(3)(e)---Suspension/ termination of service---Entitlement for salary of suspension period---Employee who remained absent from duty, was suspended by the employers and his salary was stopped---Subsequently the employee was terminated---Grievance application filed by the employee against order of stoppage of salary was accepted by the Labour Court and the employee was held entitled for receiving the salary of his suspension period---Order of suspension remained intact during suspension period till termination of the employee for the reason that in such period he was neither terminated, nor any disciplinary proceedings had been taken against him---Objection of counsel for employers that suspension order was merged in termination order, had no force for the reason that the employee was in service of the employers under suspension---Labour Court, rightly held the employee entitled for his full salary and all other benefits and facilities admissible under the rules during suspension period---Impugned order passed by the Labour Court, was upheld, in circumstances.

PLD 1994 SC 72 rel.

Aminullah Achakzai and Khalil Ahmed Kambrani for Appellants.

Muhammad Afzal Harifal for Respondent.

Dates of hearing: 27th August and 10th September, 2013.

PLC 2014 LABOUR APPELLANT TRIBUNAL BALOCHISTAN 130 #

2014 P L C 130

[Labour Appellate Tribunal Balochistan]

Before Abdul Ghias Nousherwani, Member

SHER MUHAMMAD and 3 others

Versus

PRESIDING OFFICER, 3RD LABOUR COURT BALOCHISTAN AT HUB and 2 others

Revision Application No.3 of 2013, decided on 27th September, 2013.

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

----S.O. 12---Balochistan Industrial Relations Act (XIII of 2010), S.41---Payment of Wages Act (IV of 1936), Ss.15 & 17---Removal from service---Reinstatement with full back benefits---Computation of back benefits---Grievance petition filed by employees against their removal from service was allowed and employers were directed to reinstate the employees with full back benefits---Said judgment of the Labour Court had attained finality as no appeal/revision was filed by the employers---Employees having been reinstated without payment of back benefits they applied to Labour Court for their recovery---Revision of employees before Appellate Tribunal against dismissal of application for recovery was accepted, and matter was sent to 'authority of payment of wages' to compute the back benefits in view of judgment of Labour Court---Authority, instead of computing back benefits in the light of judgment of the Labour Court, decided to compute back benefits as per Minimum Wages Act, 1969, which was contrary to the basic judgment of the Labour Court and direction of the Appellate Tribunal---Authority under Payment of Wages Act, 1936 was bound to calculate the back benefits as directed by the Labour Court, wherein employees were declared to be entitled for full wages---Orders of the Authority under Payment of Wages Act were set aside, and matter was remanded to the said Authority to compute the back-benefits of employees strictly according to the judgment of Labour Court, and on principle of last pay drawn by the employees.

PLD 1981 SC 282; 2003 PLC 16; 2011 PLC 286 and 1994 PLC 388 ref.

(b) Administration of justice---

----Wrong quoting/non-quoting of sections of law, was not fatal.

Azam Jan Zarkoon for Appellants.

Muhammad Fazal Lodhi for Respondents.

Date of hearing: 19th September, 2013.

PLC 2014 LABOUR APPELLANT TRIBUNAL BALOCHISTAN 140 #

2014 P L C 140

[Labour Appellate Tribunal Balochistan]

Before Abdul Ghias Nousherwani, Member

MANAGING DIRECTOR SUI SOUTHERN GAS COMPANY LIMITED, KARACHI and another

Versus

ABDUL SALAM

Labour Appeal No.3 of 2013, decided on 28th June, 2013.

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

----Ss. 41, 54 & 55---Retirement of employee on attaining age of 60 years---Dispute regarding date of birth---Grievance petition---Employee who was appointed as helper, his date of birth according to National Identity Card was mentioned as 1963---Later on when employee obtained his computerized National Identity Card, his date of birth was mentioned as 1952 instead of 1963---NADRA authority having refused to correct date of birth of the employee, he filed civil suit---Suit filed by employee was decreed with direction to NADRA authorities for correction of date of birth of the employee---Employers retired the employee due to attaining the age of 60 years, despite the fact that in view of judgment/decree passed by civil court, a new computerized National Identity Card was issued by NADRA, wherein date of birth of the employee was entered as 1963---Employers, filed appeal against judgment of Labour Court, which otherwise was barred by time---Witness produced by the employee in proof of his claim, had fully supported case of the employee, and nothing came on record favourable to employers---Representative of NADRA verified the National Identity Card wherein the date of birth of the employee was mentioned as 1963---Judgment passed by the Presiding Officer Labour Court, was not open for any interference by the Tribunal in appeal---Judgment of the Labour Court was upheld, appeal filed by the employers, which was hopelessly barred by time, was dismissed, in circumstances.

Askar Khan Achkzai for Appellants.

Abdul Sattar Khan for Respondent.

Date of hearing: 14th June, 2013.

PLC 2014 LABOUR APPELLANT TRIBUNAL BALOCHISTAN 154 #

2014 P L C 154

[Labour Appellate Tribunal Balochistan]

Before Abdul Ghias Nousherwani, Member

ABDUL ZAHIR

Versus

DISTRICT MANAGER, UNITED BANK LIMITED and 2 others

Labour Appeal No.9 of 2013, decided on 11th September, 2013.

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

----Ss. 2(dd), 41, 54(2) & 55---Termination of service---Grievance petition, maintainability of---"Workman", status of---Determination---Petitioner, who was an officer of Grade-II, and was posted as Branch Manager of Bank, after conducting enquiry his services were terminated on allegation of serious irregularities---Grievance petition by the petitioner against his termination order was dismissed by the Labour Court on the ground that he was not "worker/workman"---When a person would approach a court on the basis of averment that he was a "workman", the burden of proof would lie on him and not on the employer---Consideration for determination of status of a person as "workman", was nature of his work and not designation, title etc.---Petitioner, had not mentioned nature of his duty in his grievance notice or in grievance petition---Petitioner was proved to be a Grade-II officer, having the power of a Manager and was posted as Branch Manager at three branches---Petitioner, in circumstances had approached wrong forum for redressal of his grievance---Original grievance notice and grievance petition, along with annexures, were directed to be returned to the petitioner to approach the proper forum for redressal of his grievance.

2009 SCMR 857 and 2011 SCMR 1475 ref.

Azam Jan Zarkoon for Appellant.

Ayaz Khan Sawati for Respondents.

Date of hearing: 28th August, 2013.

PLC 2014 LABOUR APPELLANT TRIBUNAL BALOCHISTAN 209 #

2014 P L C 209

[Labour Appellate Tribunal Balochistan]

Before Abdul Ghias Nousherwani, Member

ZIA-UL-HAQ

Versus

ALBARIO ENGINEERING (PVT.) LTD. through Director and 2 others

Labour Appeal No.18 of 2013, decided on 25th October, 2013.

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

----S.Os. 12 & 15(3)---Balochistan Industrial Relations Act (XIII of 2010), Ss.41 & 54(2)---Termination of service on ground of misconduct---Grievance petition---Delay, condonation of---Employee whose services were terminated after issuing him show-cause notice and holding enquiry on ground of misconduct, filed grievance petition against order of his termination with considerable delay---Employee in his application for condonation, having failed to state sufficient grounds for said delay, on which ground his application was rejected---Employee had also failed to file appeal against judgment of the Labour Court within prescribed period of 30 days after delivery of certified copies as prescribed under S.54(2) of Balochistan Industrial Relations Act, 2010---In absence of irregularities and illegalities in impugned order of the Labour Court, impugned order was upheld; consequently appeal was dismissed.

1985 CLC 1063 and PLD 1969 SC 270 distinguished.

2010 CLC 807 and 2010 CLC 1039 ref.

Dost Muhammad Mandokhail for Appellant.

Kaleem Ullah Quresh for Respondents Nos.1 and 3.

Ms. Shahnaz Rana for Respondent No.2.

Date of hearing: 10th October, 2013.

PLC 2014 LABOUR APPELLANT TRIBUNAL BALOCHISTAN 238 #

2014 P L C 238

[Labour Appellate Tribunal Balochistan]

Before Abdul Ghias Nousherwani, Member

HABIB BANK EMPLOYEES UNION, (C.B.A.) Quetta through General Secretary

Versus

Messrs HABIB BANK LTD. Through President and 4 others

Labour Appeal No.17 of 2013, decided on 11th October, 2013.

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

----Ss. 41, 50 & 55---Industrial Relations Act (X of 2012), Ss.1(3), 2(4)(5), 3, 12, 14, 34(2), 54(a) & 57---Rejection of charter of demand---Grievance application---Applicant trade union, as Collective Bargaining Agent, submitted a charter of demand before the employers---Negotiation with the employers having failed, applicant approached Labour Court by filing grievance application, which was dismissed on ground of lack of jurisdiction---Validity---No unfair labour practice was involved---Impugned judgment of Labour Court, was set aside, with the direction that employers should negotiate with applicant unions in respect of charter of demand in the presence of Registrar Trade Union, in accordance with law.

Judgment of honourable Supreme Court of Pakistan dated 13-2-2013 distinguished.

Nasir Khan Yousafzai for Appellant.

Ayaz Khan Sawati for Respondents Nos.1 and 3.

Azam Jan Zatkoon for Respondent No.3.

Arif Abbas Representative of Respondent No.4.

Date of hearing: 27th September, 2013.

PLC 2014 LABOUR APPELLANT TRIBUNAL BALOCHISTAN 253 #

2014 P L C 253

[Labour Appellate Tribunal Balochistan]

Before Abdul Ghias Nousherwani, Member

SHER WALI

Versus

CHIEF EXECUTIVE OFFICER QESCO, QUETTA

Labour Appeal No.11 of 2013, decided on 6th September, 2013.

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

----S.O. 15(2)(iii)---Balochistan Industrial Relations Act (XIII of 2010), Ss.41 & 54(2)---Demotion---Grievance petition---Delay, condonation of---Employee who was appointed as Upper Division Clerk, was demoted just 10 days after his appointment, filed grievance petition after inordinate delay of 12 years from his demotion---Grounds mentioned by employee in his application for condonation of said delay, were not sufficient, but were general in nature---Grievance petition and application for condonation of delay, were rightly dismissed on point of limitation by Labour Court.

1997 CLC 2495; 2003 MLD 1612; 1987 CLC 249; 2003 MLD 1612; 1992 SCMR 365 and 2009 SCMR 187=2009 PLC (C.S.) 523 distinguished.

Muhammad Hayat Mengal for Appellant

Muhammad Afzal Harifal Advocate for Respondent

Date of hearing 27th August, 2013.

PLC 2014 LABOUR APPELLANT TRIBUNAL BALOCHISTAN 278 #

2014 P L C 278

[Labour Appellate Tribunal, Balochistan]

Before Abdul Ghias Nousherwani, Member

MOULA DAD

Versus

GENERAL MANAGER (MARKETING), NABI QASIM INDUSTRIES (PVT.) LTD. and another

Labour Appeal No.40 of 2013, decided on 20th March, 2014.

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

----Ss. 41 & 54---Civil Procedure Code (V of 1908), O.VII, R.10---Contract Act (IX of 1872), S.28---Application under O.VII R.10, C.P.C.---Direction was issued to present the appeal to Civil Court at K---Question of determination of employee as worker/workman was not raised in appeal---Specific term had been incorporated in the contract executed between the parties to the effect that "in case of a dispute any legal proceedings shall be initiated at K"---Plea taken by the employee was that terms and conditions of contract of his initial appointment were not applicable after his promotion and that under S.28 of Contract Act, 1872 such condition was void---Extent and scope of S.28 of the Contract Act, 1872 regarding the ouster of jurisdiction of courts by the consent of the parties and the question of interpretation of a clause in the agreement which related to the ouster of jurisdiction of the courts by consent---Said provision provided two exceptions, which relate to an agreement with regard to arbitration---Word "absolutely" in S.28, Contract Act, 1872 was very clear which in ordinary sense meant unconditionally/unquestionably i.e. completely restraining a person to avail legal proceedings---In suit based on breach of contract a part of the cause of action arise at the place where the contract were to be carried out, in other words were according to the facts stated in the agreement the cause of action was to be deemed to have arisen could not be held to be illegal---Contract entered into between two parties the cause of action partly arose at one place and partly in the contract that in case of any dispute arising out of the contract same shall be litigated only wherein the jurisdiction of one particular court and in the present case, the courts in both places had jurisdiction such an agreement was valid one and enforceable under the law and the parties were bound by it---If cause of action had arises at the principal office as well as at the subordinate office and parties entered into an agreement and by consent conferred jurisdiction on the particular court in order to avoid the unnecessary raising of objection to jurisdiction which would will not be either against the public policy or violation of S.28 of Contract Act, 1872---Order of Labour Court was upheld---Appeal was dismissed in the circumstances.

(b) Contract Act (IX of 1872)---

----S. 28---Object of S.28, Contract Act, 1872---Parties cannot be restrained from entering into an agreement to get their disputes decided by a particular court of competent jurisdiction for their convenience and avoidance of unnecessary objections to the territorial jurisdiction of courts---Such an agreement would be legal and not hit by S.28, Contract Act, 1872 and parties were bound to follow the same.

----When the law requires a thing to be done in a particular manner; that thing must be done in that manner or not at all.

Arbab Tahir for Appellant.

Syed Asif Shah for Respondents.

Date of hearing: 17th March, 2014.

PLC 2014 LABOUR APPELLANT TRIBUNAL BALOCHISTAN 312 #

2014 P L C 312

[Labour Appellate Tribunal Balochistan]

Before Abdul Ghias Nousherwani, Member

MUHAMMAD ZAHIR and another

Versus

ASMATULLAH and 2 others

Labour Appeal No.10 of 2013, decided on 4th October, 2013.

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

----Ss. 24, 41, 52 & 54(2)---Collective Bargaining Agent---Determination of---Grievance petition---Appeal against decision of Labour Court---Labour Court disposed of grievance petition filed by respondent in terms of direction that Registrar, Trade Unions should hold election within the period of one month---Chairman of Election Committee issued Election Schedule with certain conditions---Election was to be held on the basis of panel and both panels submitted their nomination papers on the basis of panel, and date was fixed for scrutiny---Petitioner claimed that he along with other candidates reached at place of scrutiny, but neither Chairman Election Committee nor other Members reached there---Petitioner alleged that on next day he came to know that the nomination papers of his panel had been rejected by Registrar, Trade Unions, and declared the panel of appellant as successful unopposed---Record had shown that six candidates of the panel of the petitioner allegedly submitted application before Chairman Election Committee for withdrawal of their candidature---Chairman Election Committee was under obligation to issue notice to the head of the panel group on the basis of application of said six candidates to clarify the position of panel group, but that procedure was not adopted by Chairman Election Committee---Chairman Election Committee while rejecting the panel group based his contention at one of the conditions in election schedule to the effect that if a party had not come before Election Committee, the other group would be declared unopposed---In the present case, petitioner panel filed nomination papers and he along with other candidates and members reached at place of scrutiny, but neither the Chairman of the Committee nor members reached there for the purpose of scrutiny---Petitioner, in circumstances, could not be said to have not come before Election Committee---Labour Court was justified for giving direction of holding fresh election in a fair manner---Order/judgment passed by Labour Court was upheld, and appeal was dismissed in circumstances.

Shahid Javed for Petitioners.

Abdul Zahir Kakar for Respondent No.1.

Arif Abbas Representative of Respondent No.2

Date of hearing: 26th September, 2013.

PLC 2014 LABOUR APPELLANT TRIBUNAL BALOCHISTAN 326 #

2014 P L C 326

[Labour Appellate Tribunal Balochistan]

Before Abdul Ghias Nousherwani, Member

NOOR-UD-DIN BUGHTI and another

Versus

SULTAN MUHAMMAD MAZDOOR YAR and another

Labour Appeal No.5 of 2013, decided on 5th September, 2013.

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

----S. 7---Disqualification for being an officer of a Trade Union---Person who was convicted under the relevant provision of Penal Code, could not be elected as office-bearer of a Trade Union.

2010 PLC 477 ref.

(b) Words and phrases---

----"Labour Union", defined and explained.

Black's Law Dictionary, Fifth Edn. ref.

----Ss. 3 & 7---Trade Union and duties and functions of office-bearers of Trade Union---Fault of office-bearer, effect---Trade Union was body of labourers and the office-bearers who run affairs of union according to the Constitution of the Trade Union for the welfare of its members---Office-bearers of the union, if would violate the provision of the constitution of the Union, the penalty of deregistration would be imposed by the courts---Union was to be punished on the fault of office-bearer---In the present case, it was not the fault of body of Labour Union, but was that of the office-bearers---Office-bearers of the Union were liable to be disqualified---Said office-bearers of union, who were officer of deregistered union, were not qualified to be elected/chosen as office-bearers---President of Trade Union, whose services were supervisory in nature, did not fall within the definition of "worker"---Said President having been compulsorily retired, was not entitled/qualified to be elected to be President or hold any other post of office-bearer---Order passed by Labour Court was upheld.

2007 PLC 240 ref.

Shahid Javed for Petitioners.

Ibrahim Khan for Respondent No.1.

Arif Abbas Representative of Respondent No.2.

Date of hearing: 20th August, 2013.

PLC 2014 LABOUR APPELLANT TRIBUNAL BALOCHISTAN 336 #

2014 P L C 336

[Labour Appellate Tribunal Balochistan]

Before Abdul Ghias Nousherwani, J

DIVISIONAL SUPERINTENDENT and 2 others

Versus

MUHAMMAD IBRAHIM

Labour Appeal No.20 of 2013, decided on 2nd January, 2014.

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

----Ss. 41 & 55(3)---Grievance application---Dismissal from service---Reinstatement in service--- Appeal--- Limitation--- Employee was dismissed from service---Labour Court set aside order of dismissal and restored employee on his last position with all back-benefits---Appeal against reinstatement was filed by employer with considerable delay---Validity---If the period from date of announcement of impugned judgment of the Labour Court and after delivery of certified copy of impugned judgment was excluded, even then the appeal was filed with a delay of 54 days and that period of delay had not been explained---Even void order could be set aside by process of law, but within reasonable period---Delay of each and every day was to be explained, but same had not been done in the case---Point of limitation and condonation of delay was a pure question of law, and courts were under legal obligation to take notice of the same, even if the point had not been raised by the parties---Appeal filed by the employers was hopelessly barred which accurated a right in favour of employee and same could not be condoned without any sufficient cause---Impugned order was upheld and appeal was dismissed, in circumstances.

PLD 2003 Kar. 691; 2003 YLR 1752; 2010 PLC 104; PLD 2003 SC 628 and PLD 2002 SC 403 ref.

Mushtaq Ahmed Anjum for Appellant.

Wali Muhammad Barech for Respondent.

Dates of hearing: 20th and 27th December, 2013.

PLC 2014 LABOUR APPELLANT TRIBUNAL BALOCHISTAN 397 #

2014 P L C 397

[Labour Appellate Tribunal Balochistan]

Before Abdul Ghias Nousherwani, Member

REGIONAL MANAGER, UTILITY STORE CORPORATION OF PAKISTAN and another

Versus

MUHAMMAD IMRAN

Labour Appeal No.13 of 2013, decided on 27th November, 2013.

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

----Ss. 41, 54(2) & 55---Grievance petition---Reinstatement of employee with back-benefits---Labour Court vide impugned judgment allowed grievance application of the employee and reinstated him with back-benefits---Validity---Labour Court had discussed in detail each and every issue in the light of evidence produced by the parties; and left no room for interference of Appellate Tribunal---Impugned order of the Labour Court was upheld with modification that employee be reinstated from the date of passing of impugned judgment of Labour Court with no back benefits; as nothing was brought on record that during the period of termination the employee was jobless.

1995 PLC 325; 2006 SCMR 590=2005 PLC 364; 1996 PLC 556; 2002 SCMR 416 and 2002 SCMR 1004 ref.

C.P. No.54 of 2011 and 2007 PLC 398 distinguished.

Abdul Sattar Khan for Appellants.

Azam Jan Zarkoon for Respondent.

Dates of hearing: 19th and 20th November, 2013.

PLC 2014 LABOUR APPELLANT TRIBUNAL BALOCHISTAN 405 #

2014 P L C 405

[Labour Appellate Tribunal Balochistan]

Before Abdul Ghias Nousherwani, Member

SECRETARY/ADMINISTRATOR

Versus

SHER ALI KAKAR

Revision Petition No.5 of 2013, decided on 13th December, 2013.

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

----Ss. 2(N)(dd), 9, 52(4) & 55(4)---Stay of election---Respondent, on whose application election, which was scheduled to be held, was stayed was not a "workman", but was a permanent member of club where no trade union existed---Respondent, in circumstances, did not fall within the definition of "worker" and "workman" and matter before Labour Court was not an "industrial dispute"---Application by the respondent under S.9(7) of Balochistan Industrial Relations Act, 2010 was not competent before Labour Court---Impugned order passed by Labour Court whereby Election Scheduled was stayed being without jurisdiction, was set aside, with direction that Election Scheduled would be postponed and at least a week time be allowed to respondent to avail legal remedy.

Abdul Sattar Khan for Petitioner.

Syed Ayaz Zahoor for Respondent.

Date of hearing: 13th December, 2013.

PLC 2014 LABOUR APPELLANT TRIBUNAL BALOCHISTAN 412 #

2014 P L C 412

[Labour Appellate Tribunal Balochistan]

Before Abdul Ghias Nousherwani, Member

AGRICULTURE ENGINEERING UNION, BALOCHISTAN through Abdul Ghaffar

Versus

AGRICULTURE ENGINEERING LABOUR UNION and 2 others

Labour Appeal No.30 of 2013, decided on 27th December, 2013.

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

----Ss. 12, 13 & 24(1)(2)---Cancellation of registration of Trade Union---On filing application under Ss.12(3)(d) & 24(2) of Balochistan Industrial Relations Act, 2010 for cancellation of registration of Labour Union, Labour Court declared the union as void---After declaring the union as void only applicant union remained in field---Labour Court though in impugned judgment cancelled registration of the union, but had further directed that the referendum be conducted---Said direction was against the provision of Balochistan Industrial Relations Act, 2010, for the reasons that when the registration of the union was declared void, only applicant-union remained in field; and no other union existed in the establishment---Under provisions of S.24(1)(2) of Balochistan Industrial Relations Act, 2010, referendum/ secret ballot for determination of Collective Bargaining Agent was mandatory when there were more than one registered trade unions existed in the establishment---After declaring the registration of the union void, only one registered union would exist, and referendum was not required---Impugned judgment passed by Labour Court was set aside, in circumstances.

(b) Words and phrases---

----'Void', defined.

2003 MLD 22 and Black's Law Dictionary Ninth Edition ref.

Muhammad Aamir Rana for Petitioner.

Shahid Javed for Respondent No.1.

Arif Abbas Representative of Respondent No.2.

Nemo for Respondent No.3.

Date of hearing: 24th December, 2013.

PLC 2014 LABOUR APPELLANT TRIBUNAL BALOCHISTAN 459 #

2014 P L C 459

[Sindh Labour Appellate Tribunal]

Before Ali Muhammad Baloch, Member

MCB BANK LTD. through VP and Attorney

2014 P L C 159

[Lahore High Court]

Before Mrs. Ayesha A. Malik, J

MUHAMMAD MUNIR

Versus

REGISTRAR, INDUSTRY-WISE TRADE UNIONS, NATIONAL INDUSTRIAL RELATIONS COMMISSION (NIRC), LAHORE and 5 others

Writ Petition No.24856 of 2013, decided on 3rd January, 2014.

Industrial Relations Act (X of 2012)---

----S. 8(1)(d)---Constitution of Pakistan, Art.199---Constitutional petition---Election of Trade Union---Person desirous to contest the election of Trade Union from outsiders' quota required to be a "workman"---Scope---National Industrial Relations Commission initiated the process of election of Trade Union---Petitioner objected the nomination of a person (respondent) on the ground that he being a retired employee was no longer workman, therefore he was not eligible to contest the election of Trade Union---Objections qua the nomination of retired person/non-workman to contest election of trade union were rejected---Validity---Section 8(1)(d) of the Industrial Relations Act, 2012 had provided that persons forming the executive of the Trade Union seeking registration shall include seventy five percent from amongst the workmen who were employed in the establishment or the industry for which the Union was registered---In terms of the proviso of S.8(1)(d) of the Industrial Relations Act, 2012, the remaining twenty five percent of the members of the executive would have to be employed in the establishment or the industry for which the Trade Union was being formed but the condition of being a workman shall continue---Respondent being not a workman was not eligible to contest the election of Trade Union against outsiders' quota---Impugned order allowing the non-workman to contest election of trade union was set aside---Constitutional petition was allowed.

Raja Muhammad Mumtaz v. National Industrial Relations Commission through Member and 2 others 2010 TD (Labour) 113 and Habib Sugar Mills Ltd. v. Registrar of Trade Unions and others 2001 PLC 441 rel.

Syed Mehmood Akhtar Naqvi v. Federation of Pakistan through Secretary Law and others PLD 2012 SC 1089 and PLD 1957 SC (Pak) 219 ref.

Salman Riaz Chaudhry for Petitioner.

Naveed Inayat Malik, D.A.-G.

Respondent No.2 in person.

Qaiser Saleem Niaz for Respondent No.3.

Date of hearing: 19th December, 2013.

PLC 2014 LAHORE HIGH COURT LAHORE 260 #

2014 P L C 260

[Lahore High Court]

Before Shezada Mazhar, J

MUHAMMAD YOUNAS

Versus

PUNJAB LABOUR APPELLATE TRIBUNAL, LAHORE and 3 others

Writ Petition No.33366 of 2013, heard on 11th March, 2014.

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

----Ss. 2(xxix), 41 & 54(3)---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(i) & S.O.12---Constitution of Pakistan, Art.199---Constitutional petition---Termination of service--- "Workman"--- Determination of---"Salesman"---Scope---Petitioner while working as Agriculture Field Officer (AFO) in the Bank was terminated from service, he filed grievance petition before Labour Court, which was allowed---Appeal filed by respondent employer against judgment of Labour Court was accepted by Labour Appellate Tribunal and judgment of Labour Court was set aside---Labour Appellate Tribunal found that grievance petition filed by the petitioner was not maintainable as he was not "workman"---Contention of the petitioner was that Labour Appellate Tribunal failed to meet the reasoning and findings recorded by Labour Court on the status of petitioner as "workman" and wrongly non-suited the petitioner by holding him at par with salesman---Validity---Circular mentioning duties of petitioner being Agriculture Field Officer had shown that he was part of line management of Bank---Status of employee as a "workman" or otherwise had to be determined by reference to the actual duties performed by him rather than his designation---In case the duties of an employee predominantly involved clerical or manual work, he would be regarded as "workman"---Duties of the petitioner were not predominantly of clerical or manual work---Agricultural loans were sanctioned by the respondent/bank on the recommendations of the petitioner---Duty of the petitioner was to achieve disbursement targets which he would manage by persuading the farmers to apply for the agricultural loans---Petitioner was in fact performing the services of a "salesman", who used to sell loan to the farmers on behalf of the respondent/bank---Petitioner being a "salesman" was not a "workman" as the selling required application of mind as well as know-how of the product---Order passed by the Labour Appellate Tribunal was in accordance with facts of the matter and did not require interference---Constitutional petition was dismissed.

Nasir Jamal Qureshi v. Sindh Labour Appellate Tribunal and another 2005 SCMR 1049 rel.

Mst. Jannat Bibi v. Sher Muhammad and others 1988 SCMR 1696; Muhammad Shakil v. Sakhi Zaman and others 1999 SCMR 32; Liaqat Ali v. Cafe Momin 2007 PLC 686; Abdur Rehman v. Haji Mir Ahmad Khan and another PLD 1983 SC 21; A.F. Ferguson & Co. v. The Sindh Labour Court and another PLD 1985 SC 429; Chairman, State Life Insurance Corporation and others v. Hamayun Irfan and 2 others 2010 SCMR 1495; Abdul Ghafoor and others v. Muhammad Shafi and others PLD 1985 Lah. 407; Brooke Bond Pakistan Ltd. v. Conciliator appointed by Government of Sind and others PLD 1977 SC 237; Syed Matloob Hassan v. Brooke Bond Pakistan Limited Lahore 1992 SCMR 227; Nasir Jamal Qureshi v. Sindh Labour Appellate Tribunal PLD 2005 SC 1049 and Mahmood Hussain Larik and others v. Muslim Commercial Bank Limited 2009 SCMR 857 ref.

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

----S. 2(xxix)---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(i)---"Workman"---Determination of---Agriculture Field Officer---Incidental manual/ clerical work---Effect---Duty of the petitioner being Agriculture Field Officer in Bank was to visit the spot, inter-act with the potentional customers, collect necessary data, make an assessment about the suitability of the proposed borrowing farmers by means of a feasibility report including the recommendation that loan be sanctioned to the applying farmer---While performing main duties some manual/clerical work would not make the petitioner a "workman".

Munawar Ahmed Javed for Petitioner.

Junaid Jabbar Khan for Respondents.

Date of hearing: 11th March, 2014.

PLC 2014 LAHORE HIGH COURT LAHORE 275 #

2014 P L C 275

[Lahore High Court]

Before Muhammad Tariq Abbasi, J

Messrs SYNGENTA PAKISTAN LTD. through Authorized Officer and another

Versus

MUHAMMAD FIAZ and 4 others

Writ Petition No.15716 of 2013, heard on 22nd January, 2014.

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

----Ss. 33(4) & 44(4)(g)---Constitution of Pakistan, Art. 199---Constitutional petition---Termination---Interim relief---Suspension of termination order---Scope---Workman challenged his termination order before Labour Court through grievance petition---Labour Court, on the application of interim relief filed by workman, suspended the impugned termination order---Employer/petitioner aggrieved by the temporary injunction given by Labour Court filed revision petition before Labour Appellate Tribunal which was also dismissed---Contention of the petitioner/employer was that temporary injunction granted by Labour Court would amount giving of the final relief, therefore the interim relief was not justified---Validity---Interim relief should not be the whole relief that the workman would get if he succeeded finally---Interlocutory order granting a relief of the nature, which would amount to allowing the main case without trial was not justified---Order of Labour Court suspending the order impugned in the main petition could not be termed to have been passed while exercising lawful authority---Impugned orders were set aside---Constitutional petition was allowed.

Delhi Cloth and General Mills Co. v. Shri Rameshwar Dayal and another AIR 1961 SC 689; Islamic Republic of Pakistan through Secretary, Establishment Division, Islamabad and others v. Muhammad Zaman Khan and others 1997 SCMR 1508 and Qazi Inamul Haq v. Heavy Foundry and Forge Engineering (Pvt.) Ltd. and another 1989 SCMR 1855 rel.

Shahid Anwar Bajwa for Petitioners.

Ch. Muhammad Siddique Attique for Respondents Nos.1 to 3.

Date of hearing: 22nd January, 2014.

PLC 2014 LAHORE HIGH COURT LAHORE 288 #

2014 P L C 288

[Lahore High Court]

Before Muhammad Khalid Mehmood Khan, J

EJAZ RASOOL

Versus

MEMBER NATIONAL INDUSTRIAL RELATIONS COMMISSION and 5 others

Writ Petitions Nos.4240 and 2683 of 2013, decided on 24th January, 2014.

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

----Ss. 33 & 57(2)(b)---Punjab Industrial Relations Act (XIX of 2010), S.33---Constitution of Pakistan, Arts.199 & 189---Constitutional petition---Individual grievance of employee/workman---Trans-provincial establishment---Exclusive jurisdiction of Labour Court---Suspension of judgment by Supreme Court---Judgment in rem and personam---Effect--- Petitioner/workman of trans-provincial establishment challenged his termination order before Labour Court---On the application of respondent/trans-provincial establishment (employer), Member of National Industrial Relations Commission (NIRC) stayed the proceedings pending before Labour Court---In another case, the High Court declared that in the matters of individual grievances/disputes between employee/workman and trans-provincial establishment/employer the Labour Court had exclusive jurisdiction and National Industrial Relations Commission (NIRC) could not interfere in such like matters---Judgment of High Court declaring exclusive jurisdiction of Labour Court over cases pertaining to individual grievances of workman working in trans-provincial establishment was challenged before Supreme Court and was suspended---Keeping in view the judgment of High Court, the National Industrial Relations Commission (NIRC) initially recalled its injunctive order but after the suspension of judgment by Supreme Court, the matter again proceeded---Contention of the petitioner/workman was that judgment of High Court was in rem, therefore the National Industrial Relations Commission (NIRC) could not proceed in the matter, unless the matter would not decided finally by the Supreme Court---Validity---Judgment in rem was different from the judgment in personam---Judgment in rem was a judgment against a thing as contra-distinguished from a judgment against a person or a judgment whereby a status was determined---Judgment in rem was an adjudication pronounced upon the status of some particular subject matter by a tribunal/court having competent authority for that purpose---Judgment in rem differed from a judgment in personam as the later judgment was in form as well as substance between the parties claiming the right, and that it was so inter parties appeared by the record itself---Judgment in rem was founded on a proceeding instituted, not against the person as such, but against or upon the thing or subject matter itself whose state or condition was to be determined---Judgment in rem was a solemn declaration of the status of the thing, and it ipos facto rendered it what it declared it to be---Earlier judgment of High Court, in the present case, was judgment in rem, therefore on the basis of suspension order of Supreme Court, the National Industrial Relations Commission (NIRC) was not entitled to pass the impugned order---Judgment passed by the High Court would remain in the filed and binding unless set aside or modified by the Supreme Court finally---Impugned orders were set aside---Constitutional petition was allowed.

Maj. Gen. (Rtd.) Mian Ghulam Jilani v. The Federal Government through the Secretary, Government of Pakistan, Interior Division, Islamabad PLD 1975 Lah. 65; Mst. Meeran Bibi (Ameer Bibi) and 4 others v. Manager, Zarai Taraqiati Bank Limited, Phool Nagar, District Kasur and 2 others 2012 CLD 2029; Yousaf A. Mitha and 3 others v. Aboo Baker and 2 others PLD 1980 Kar. 492; Collector of Sales Tax and Federal Excise v. Messrs Wyeth Pakistan Limited 2009 YLR 2096 and Justice Khurshid Anwar Bhinder and others v. Federation of Pakistan and another PLD 2010 SC 483 rel.

(b) Judgment---

----"Judgment in rem" and "judgment in personam:---Distinction.

M. Irfan Khan Ghazanavi for Petitioner.

Mirza Aamer Baig for Respondents.

Date of hearing: 19th November, 2013.

PLC 2014 LAHORE HIGH COURT LAHORE 297 #

2014 P L C 297

[Lahore High Court]

Before Shezada Mazhar, J

MUHAMMAD HUSSAIN BHATTI

Versus

PROVINCE OF PUNJAB through Registrar of Trade Unions and 2 others

Writ Petition No.27813 of 2013, decided on 7th January, 2014.

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

----S. 6(d)---Trade union---Constitution---Minimum percentage of persons from workmen forming the executive of a trade union---Over 80% workmen holding executive posts in trade unions-- Legality---Section 6(d) of Punjab Industrial Relations Act, 2010 provided that "the number of persons forming the executive which shall not exceed the prescribed limit and shall include not less than eighty percent from amongst the workmen actually engaged or employed in the establishment or group of establishments or the industry for which the trade union has been formed"---Said section gave only (80% as) minimum number of workmen in the executive of a trade union; it did not debar holding of more than 80% posts of the executive by the workmen.

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

----S.3(4)---Constitution of a trade union---Framing and amendments---Non-interference from outsiders---Section 3(4) of Punjab Industrial Relations Act, 2010 granted power to members of a trade union to frame its Constitution without interference from any outsiders---Any outsider, who was not a member of a trade union was ineligible to challenge an amendment in the Constitution made by (members of) a trade union.

----Art. 199---Constitutional petition---Laches---Delay of about two years in challenging an order without mentioning any reason---Effect---Such a constitutional petition would be hit by laches and was liable to be dismissed---Illustration.

Khawaja Umar Masood for Petitioner.

Muhammad Zaman Qureshi for Respondent No.2.

Umar Abdullah for Respondent No.3.

Rana Shamshad Ali, A.A.-G.

PLC 2014 LAHORE HIGH COURT LAHORE 308 #

2014 P L C 308

[Lahore High Court]

Before Shujaat Ali Khan, J

SAMAD RUBBER WORKS (PVT.) LIMITED through Managing Director

Versus

AUTHORITY UNDER PAYMENT OF WAGES ACT, 1936 and 2 others

Writ Petition No.1865 of 2013, decided on 21st February, 2014.

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

----Ss. 15 & 16---Filing multiple claims through single application---Scope---Multiple claims could be filed by an aggrieved person through a single application---Authority under Payment of Wages Act, 1936 was bound to respond to such claims in accordance with law.

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

----S. 15---Dismissal/termination of "workman"---Jurisdiction of Authority under Payment of Wages Act, 1936 to adjudicate upon such matter---Scope--- Authority under Payment of Wages Act, 1936 had no jurisdiction to adjudicate upon the matter regarding dismissal/termination of a "worker" or "workman" but at the same time when conduct of the employer himself seemed to be dubious and the dismissal/termination had direct bearing upon allied matter then the Authority could determine as to whether employee was dismissed from service or not irrespective of the question of its legality.

Habib Sugar Mills Ltd. v. Commissioner Workmen's Compensation and Authority under the Payment of Wages Act Nawabshah and another 2004 PLC 54 rel.

Syed Muhammad Anwar Shah and 4 others v. Manager, Pervaiz Textile Mills, Lahore 1995 PLC 530 and Pakistan Railways through Divisional Superintendent, P.W.R., Multan Division and 4 others 1995 PLC 541 distinguished.

Muhammad Iqbal and others v. The Chairman, Municipal Committee, Jhang 1995 PLC 569 and Makarwal Collieries Ltd. v. Muhammad Ali and others W.P. No.22872 of 1998 ref.

Rai Shahid Salim Khan for Petitioner.

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

Tanvir Ahmad Ghumman for Respondent No.2.

PLC 2014 LAHORE HIGH COURT LAHORE 331 #

2014 P L C 331

[Lahore High Court]

Before Shezada Mazhar, J

IFTIKHAR AHMED HAMMAD

Versus

PUNJAB LABOUR APPELLATE TRIBUNAL, LAHORE and 3 others

Writ Petition No.9201 of 2013, decided on 27th March, 2014.

Industrial Relations Act (X of 2012)---

----Ss. 2(xxxii), 33, 53, 54(e) & 57---Punjab Industrial Relations Act (XIX of 2010), S.33---Constitution of Pakistan, Art.199---Constitutional petition---Individual grievance of employee/workman---Trans-provincial establishment---Promulgation of Industrial Relations Act, 2012, pending proceedings before Labour Court and Labour Appellate Tribunal---Effect---Workman (petitioner) challenged his termination order before Labour Court---During pendency of petition before Labour Court, the Federal Government promulgated Industrial Relations Act, 2012, however the Labour Court decided/dismissed the petition of workman (petitioner) on merits---Appeal filed by workman (petitioner) was also dismissed by Labour Appellate Tribunal---Contention of the workman (petitioner) was that after the promulgation of Industrial Relations Act, 2012, the Labour Court and Labour Appellate Tribunal had no jurisdiction to adjudicate upon the controversy relating to "trans-provincial establishment", therefore impugned orders were coram non judice---Validity---After the promulgation of Industrial Relations Act, 2012, it was incumbent upon the Labour Court and Labour Appellate Tribunal to transfer the petition/proceedings pertaining to "trans-provincial establishment" to National Industrial Relations Commission (NIRC), but the same was not done---Appeal of the petitioner pending before Labour Appellate Tribunal could also not be decided by such forum on promulgation of the Industrial Relations Act, 2012---Impugned orders were set aside by High Court---Constitutional petition was allowed.

Junaid Jabbar Khan for Petitioner.

Mian Muhammad Saleem for Respondents.

Date of hearing: 20th March, 2014.

PLC 2014 LAHORE HIGH COURT LAHORE 393 #

2014 P L C 393

[Lahore High Court]

Before Faisal Zaman Khan, J

MANAGER, PRINTING CORPORATION OF PAKISTAN PRESS, LAHORE and another

Versus

MUHAMMAD TAHIR and another

Writ Petition No.1265 of 2014, decided on 13th May, 2014.

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

----S. 15(3)---Constitution of Pakistan, Art.199---Constitutional petition---Compensation, determination of---Scope---Payment of G.P. Fund of employee was withheld against which he filed petition under S.15 of the Payment of Wages Act, 1936-Petitioner (employer) was directed to deposit the remaining amount of G.P. fund---Both the parties preferred appeal against the order of Authority before Labour Court---Employee filed appeal for grant of compensation under S.15 of the Payment of Wages Act, 1936---Both the appeals were dismissed holding that award of compensation was not mandatory and was discretionary, which the authority refused to exercise---Aggrieved by the same, the employee/respondent preferred revision before the Labour Appellate Tribunal, which was accepted and a compensation amounting to Rs.75,000 was awarded---Contention of the employer was that the orders passed by the Authority as well as the Labour Court as to the compensation were in accordance with law and they rightly refused to exercise discretion in favour of employee---Validity---When the Authority and Labour Court had come to the conclusion that payment was deliberately withheld, why they had not exercised their discretion for payment of compensation and in case they were not willing, at least reasons should have been given---When the Authority had come to the conclusion that employer was liable under S.15(3), apart from making order of payment of amount deducted, it was mandatory for the Authority to award compensation, which the Authority had thought fit, but shall not exceed 10 times of the amount deducted---Proviso to S.15(3) of the Act created an exception to the rule of award of compensation highlighting the circumstances where no direction for payment of compensation shall be made---Determination of question of award of compensation was mandatory for the courts below, which they failed to do, however, the Labour Appellate Tribunal rightly decided the question of compensation by way of awarding the same---Constitutional petition was dismissed in circumstances.

Dr. Muhammad Irtaza Awan for Petitioners.

PLC 2014 LAHORE HIGH COURT LAHORE 403 #

2014 P L C 403

[Lahore High Court]

Before Ali Baqar Najafi, J

KOT ADDU POWER COMPANY LIMITED KAPCO through Attorney and 2 others

Versus

AL-TAKBEER KAPCO EMPLOYEES' UNION through General Secretary and 7 others

Writ Petition No.8437 of 2013, heard on 21st January , 2014.

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

----S. 40 (6) & (7)---Constitution of Pakistan, Art.199---Constitutional petition---Industrial dispute---Award---Powers of Labour Court---Scope---Labour Court after hearing both the parties could make award within thirty days from the date of dispute---In the present case, the Labour Court had rightly refused to make an interim award without hearing other party but on revision, the same was suspended---Subsequently, the Labour Court, contrary to its earlier observations made the interim award and issued direction to implement the same in letter and spirit, which was violation of law---Labour Court was directed by High Court to decide the matter after hearing the parties---Constitutional petition was disposed of accordingly.

Riaz-ul-Hassan for Petitioners.

Malik Muhammad Tariq Rajwana for Respondents.

Date of hearing: 21st January, 2014.

National Industrial Relations Commission

PLC 2014 NATIONAL INDUSTRIAL RELATIONS COMMISSION 3 #

2014 P L C 3

[National Industrial Relations Commission]

Before Bashir Ahmed Memon, Member

AWAMI LABOUR UNION OF COLLATERAL SERVICES LTD. (CBA)

Versus

Messrs HABIB BANK LIMITED and 2 others

No.4A(31) of 2011-K/24(36) of 2011, decided on 18th May, 2011.

Industrial Relations Act (IV of 2008)---

----Ss. 25(8)(g) & 42---National Industrial Relations Commission (Procedure and Functions) Regulations, 1973, Regln.32(2)(c)---Unfair labor practice by the employers, petition against---Stay order, grant of---Petitioner, was industry-wise Trade Union, and was Collective Bargaining Agent in respect of Establishment---Thousands of persons had joined the petitioner union and had obtained its membership, and presently 511 employees of another establishment, were members of the petitioner union---Said one Establishment had retrenched the employees---Petitioner union served notice upon employer in respect of charter of demands---Employer neither resolved the industrial dispute nor responded the same positively---Petitioner union, alleged that Establishment started harassments, victimization against the office bearers and members of the petitioner union due to their trade union activities; and the petitioner union filed petition under S.25(8)(g) of Industrial Relations Act, 2008 along with petition for interim stay order which was granted to the petitioner other establishments denied the allegations by the petitioner union that those were sister concerns of one Establishment---Held, petitioner union, being registered and certified in respect of one employer/establishment, legally could not make members or represent the workers employed in other establishments, which were separate and independent companies---No provision of law existed in Industrial Relations Act, 2008 that a union could extend its membership to another establishment---Different unions could form a federation, but nowhere in law it was provided that a Trade Union of workers of a particular establishment could extend its membership to employees of another establishment---No prima facie case of stay order against other establishment had been made out, in circumstances---Petitioner union which was Collective Bargaining Agent of the workmen employed by one establishment, had been able to prima facie establish a case of unfair labour practice against said establishment---Interim stay order passed by Bench of Commission in that respect was confirmed, and concerned establishment was restrained from taking action adverse to the employment of petitioner's office-bearers and members; and the petitioner was required to file affidavit in evidence.

2005 PLC 142 ref.

Muhammad Khurshid for Petitioner.

Faisal Mahmood Ghani for Respondent No.1.

Muhammad Sabir for Respondents Nos.2 and 3.

PLC 2014 NATIONAL INDUSTRIAL RELATIONS COMMISSION 28 #

2014 P L C 28

[National Industrial Relations Commission]

Before Ghulam Nabi Deeshak, Member

ABDUL WAHAB BALOCH

Versus

UNITED BANK LMITED through President

Cases Nos.4A(339)/2011-K/24(348) of 2011-K, decided on 30th July, 2012.

Industrial Relations Act (IV of 2008)---

----Ss. 17 & 25(8)(g)---Unfair labour practice by the employers---Petitioner/employee had asserted in his petition that he and other co-workers formed a Trade Union in the employer bank and documents were sent to the Registrar Trade Unions for its registration; that the names of the office bearers were notified to the employers through registered post---Employee had alleged that during pendency of registration of said union; employers started victimization of members of office bearers of the union by way of transferring, termination and removal from service---Petition filed by the petitioner was admitted by bench of National Industrial Relations Commission, notice was issued to the employers for filing comments---Employers were restrained not to pass any adverse final order against the petitioner till next date---Application for registration of petitioner's union, having been rejected by the Registrar Trade Unions, petition filed by the petitioner against alleged unfair labour practice under Ss.17 & 25(8)(g) of Industrial Relations Act, 2008, had become infructous which was dismissed along with stay application, in circumstances.

Daud Khan Awan Labour Representative for Petitioner.

Faisal Mahmood Ghani for Respondents.

PLC 2014 NATIONAL INDUSTRIAL RELATIONS COMMISSION 56 #

2014 P L C 56

[National Industrial Relations Commission]

Before Raja Fayyaz Ahmed, Chairman

PAKISTAN MINERAL DEVELOPMENT CORPORATION (PMDC) HEAD OFFICE AND BRANCH OFFICE UNION through General Secretary

Versus

PAKISTAN MINERAL DEVELOPMENT CORPORATION (PMDC) through Managing Director

Case No.4B(282) of 2012 and C.M. A24B(124) of 2012, decided on 26th March, 2013.

Industrial Relations Act (X of 2012)---

----Ss. 33(1)(9), 57(2)(c) & 60---Enforcement of any right guaranteed or secured under the law/settlement---Petitioner/union, Collective Bargaining Agent, had filed petition under Ss.33(9) & 57(2)(c) of Industrial Relations Act, 2012, seeking consideration of workmen for promotion, perpetual injunction; and restraining employer/ corporation from appointment of officers from outside---Petitioner had submitted a representation seeking the annulment of advertisement to the extent of the proposed appointment---Counsel for employer/ corporation had objected the petition, contending that under the law, petitioner being Collective Bargaining Agent, could not enforce any right guaranteed or secured by any law to the workmen under S.39(9) of Industrial Relations Act, 2012---Validity---As a result of Settlement executed between the petitioner union and employer/Corporation, 75% of vacancies were to be filled by promotion, and 25% by direct recruitment---Said 75% vacancies related to the workers who were found fit for selection by the Departmental Promotion Committee to hold the position, which selection was individual right of the workers, and not the right of Collective Bargaining Agent; in the present case notice in respect of the grievance was given by the Collective Bargaining Agent, and not by any individual workman---Effect---Under provisions of S.60 of Industrial Relations Act, 2012, any Collective Bargaining Agent or any employer could apply to the Commission for enforcement of any right guaranteed or secured to it or him or to the workers collectively, by or under any law, award, settlement or decision, which was in contradiction to the provisions under subsection (9) of S.33 of the Industrial Relations Act, 2012, as provisions of said section exclusively dealt with individual grievances---Petition filed by the petitioner/union, was not maintainable, in circumstances---Aggrieved workers, could press their grievance within the purview of subsection (1) of S.33 of Industrial Relations Act, 2012.

Karachi Pipe Mills Employees Union, Karachi v. Karachi Pipe Mills Ltd. Karachi 1992 SCMR 36; Mazdoor Union Faran Sugar Mills through General Secretary v. Faran Sugar Mills Ltd. and 2 others 2006 PLC 404; Bolan Textile Mills v. Workers Union Bolan Textile Mills and 2 others 1986 PLC 751; Allied Bank of Pakistan Limited and 2 others v. Labour Appellate Tribunal, Lahore and 2 others 1982 PLC 1; Karachi Pipe Mills Limited v. Sindh Labour Appellate Tribunal and 2 others 1984 PLC 1359 and Oil and Gas Development Company through its Chief Admn. Officer v. Punjab Labour Appellate Tribunal Central Zone and others 1975 SCMR 485 ref.

R.D. Chaudhry along with Muhammad Attiq, General Secretary for Petitioner.

Mushtaq Hussain Bhatti for Respondent.

Date of hearing: 19th December, 2012.

PLC 2014 NATIONAL INDUSTRIAL RELATIONS COMMISSION 100 #

2014 P L C 100

[National Industrial Relations Commission]

Before Raja Fayyaz Ahmed, Chairman

AGRITECH LIMITED, UREA MANUFACTURING PLANT through Factory Manager

Versus

WORKERS UNION PAK-AMERICAN FERTILIZERS LIMITED through President and General Secretary

Case No.7A(136) of 2012-L, decided on 26th March, 2013.

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

----Ss. 54 & 60---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O. 11-A---Permission for closing down the industrial unit, petition for---Manager of the Industrial unit, had filed petition praying for closing down the unit, contending that production of industrial unit had been curtailed to the lowest minimum on account of shut down, and non-supply of Gas, which was the only source of manufacture; that it had become impossible to run the unit without incurring further losses due to uncertainty of the raw material; and that it was no longer viable for a prudent businessman to suffer further losses nor it was feasible to run the unit on heavy financial losses---Validity---Permission for closing down the industrial unit sough for, would result in laying off the workers employed in the unit, but the posts of the workers had not been abolished; nor services of the workers had been terminated---Request for granting permission for closing down the industrial unit on the ground of huge financial losses suffered by the company, without dilating upon the merits of the case, warranted consideration---Pleadings of the parties had indicated that there was no 'industrial dispute' between the establishment and the union in the company in respect of the proposed closing down of the said industrial unit; which could be a matter determinable by the National Industrial Relations Commission within the meaning of clause (a) of S.54 of Industrial Relations Act, 2012, but as the present petition had not been filed by the company/Establishment, itself, rather had been filed by its manufacturing plant, being the industrial unit of the company through its Factory Manager; for which no authority had been filed---Petition being not maintainable, in circumstances, was dismissed.

----Ss. 2(xx), 31, 32, 33, 54, 57, 60 & 91---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.11-A---Closing down of industrial unit---Unfair labour practice---Jurisdiction of Industrial Relations Commission---Scope---National Industrial Relations Commission, had the exclusive jurisdiction to deal, determine and adjudicate upon the matter of unfair labour practice on the part of the employers or workmen as well as; to redress individual grievances of workmen within the meaning of Ss.31, 32, 33 of Industrial Relations Act, 2012; and industrial disputes as provided by Ss.54 & 57 of the said Act, whereby the Commission had been invested with the additional powers---All such powers and jurisdiction emanating from the provisions contained in said sections of the Industrial Relations Act, 2012, to essentially relate to trans-provincial establishment---Subject to subsection (5) of S.57 of Industrial Relations Act, 2012, Registrar Trade Union, Labour Court or Labour Appellate Tribunal, would not take any action, or entertain any application or proceedings in respect of any matter falling within the jurisdiction of the Commission---In view of Proviso to subsection (5) of Industrial Relations Act, 2012, no court including Labour Court would take any action or entertain any application or proceedings in respect of unfair labour practice, which was being dealt with by the Commission---In matters of individual grievances of workmen in any trans-provincial Establishment like the petitioner in the present case, the Commission had been empowered to deal with such cases in the manner prescribed in S.33 of Industrial Relations Act, 2012---Commission, in circumstances, had exclusive jurisdiction over the matters in relation to trans-provincial Establishment; besides, other functions and powers, dismissal, discharge, retrenchment, lay off or otherwise removal from employment of a workman in relation to an industrial dispute, or as consequences of that dispute, if employed in a trans-provincial Establishment, could legitimately be agitated before the Commission.

South British Insurance Employees Union v. The Sindh Labour Court No.4 and others 1975 SCMR 49 and Messrs East-West Insurance Company Ltd. through Chairman and another v. Messrs Muhammad Shafi and Co any through Managing Partner and 2 others 2009 CLD 960 distinguished.

Tanveer Hussain v. Divisional Superintendent, Pakistan Railways and 2 others PLD 2006 SC 249; Mumtaz Ali Khan Rajban and another v. Federation of Pakistan and others PLD 2001 SC 169; Muhammad Arif v. Muhammad Kawshar Ali and Muhammad Usman Ghani v. The State PLD 1969 SC 435; Abdul Rahim Khan v. The State 1991 MLD 2448; National Bank of Pakistan, Quetta v. Muhammad Bakhsh 1989 PLC 139; Hakam Khuda Yar v. Emperor AIR 1940 Lah. 129; Jyotish Prokas Chavoraj and another v. Bugla Kanta Chaudhari and others 1922 Calcutta 274; 1988 SCMR 1725; 1997 SCMR 1160; 2001 SCMR 1229; 2002 SCMR 142; 1975 SCMR 49. 2009 CLD 960; Ch. Muhammad Yousaf v. Azad Government PLD 2001 Azad J&K 60; Azad Government v. Genuine Rights Commission 1995 MLD 268 and Muhammad Ismail v. State PLD 1969 SC 24 ref.

Ch. Abdul Rab for Petitioner.

Shakh Irfan Akram and Malik Masood Ahmed for Respondent.

Date of hearing: 8th January, 2013.

2014 P L C 148

[National Industrial Relations Commission]

Before Justice (R) Raja Fayyaz Ahmed, Chairman

PAKISTAN WAPDA HYDRO ELECTRIC CENTRAL LABOUR UNION through Central Secretary General

Versus

REGISTRAR, INDUSTRY-WISE TRADE UNIONS and another

Appeal No.12(4) of 2013, decided on 11th February, 2013.

Industrial Relations Act (X of 2012)---

----Ss. 6, 7, 8, 9, 12, 13 & 19---Registration of Trade Union, application for---Registration of applicant's trade union having been cancelled by the Registrar Trade Unions, applicant submitted application seeking the registration of the union with the same name---When said application was sub-judice before the Registrar Trade Unions, respondent-union also submitted application for its registration---Said application of respondent was accepted by Registrar Trade Unions, and in consequence said union was directed to be registered with the National Industrial Relations Commission as industrial-wise Trade Union; and the registration certificate was issued---Registrar Trade Union cancelled the said trade union afterwards---Applicant/appellant union which was not registered as a Trade Union, would not fall within the purview of S.13 of Industrial Relations Act, 2012 to sue or be sued as a body by or in its name---Appeal filed by appellant under S.12 of Industrial Relations Act, 2012 against order, whereby the respondent had been directed to be registered as industrial wise Trade Union, being incompetent and not maintainable was dismissed in circumstances.

Khalid Ikramullah, Director Social Security Institution Lyallpur (Faisalabad) v. Punjab Employees Social Security (non-gazetted) Staff Union, Faisalabad 1986 SCMR 618; National Radio and Telecommunication Corporation Employee and Workers Union Haripur v. Labour Appellate Tribunal N.-W.F.P. Peshawar and 3 others 1990 PLC 218; Rustam Cycle Factory Mazdoor Union v. Rustam and Sonrab Cycle Factory Labour Union and 3 others 1981 PLC 414; Aero Asia Staff Workers Union v. Managing Director, Aero Asia International (Pvt.) Ltd. Karachi and another 2001 PLC 135 and WAPDA Town Employees Union v. WAPDA Employees Cooperative Housing Society, Gujranwala through Secretary and 2 others 2011 PLC 18 ref.

Ahmed Awais for Appellant.

Chaudhry Khalid Farooq for Respondent No.2.

Date of hearing: 11th February, 2013.

PLC 2014 NATIONAL INDUSTRIAL RELATIONS COMMISSION 220 #

2014 P L C 220

[National Industrial Relations Commission]

Before Justice (R.) Raja Fayyaz Ahmad, Chairman

BAHRIA FOUNDATION NORTH ISLAMABAD

Versus

Chaudhry ALI RANDHAWA

Appeal No.48(224) of 2011, decided on 29th July, 2013.

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

----Ss. 15 & 17---Industrial Relations Ordinance (V of 2011), Ss.53, 54, 56 & 58---Order for payment of amount to the worker by Authority under Payment of Wages Act, 1936---Appeal before National Industrial Relations Commission--- Maintainability--- Assistant Commissioner/ Authority under Payment of Wages Act, 1936 directed appellant Foundation to pay an amount of Rs.40,000---Said order was assailed by the appellant Foundation before Labour Court by filing appeal under S.17 of Payment of Wages Act, 1936; which was dismissed by Labour Court observing that by virtue of S.53 of Industrial Relations Ordinance, 2011 all functions and powers of Labour Court having been invested in the National Industrial Relations Commission, Labour Court had ceased to exist---Validity---Appeal by virtue of S.58 of Industrial Relations Ordinance, 2011, would lie to the Full Bench of the Commission only against an award, decision given, or sentence or order passed by Bench of the Commission, and not appeal against the order of the Authority under the Payment of Wages Act, 1936---Under S.17 of the Payment of Wages Act, 1936 appeal would not lie to the Commission---Right of appeal, was a creation of Statute, which could not in absence of a statutory provision, be inferred or assumed by the Commission on its own---Present appeal being not maintainable before the Commission, was directed to be returned to the appellant, or his counsel---Appellant could avail appropriate remedy as could be admissible under the law and Constitution.

Wasim-ud-Din for Appellant.

Nemo for Respondent No.2.

Date of hearing: 29th July, 2013.

PLC 2014 NATIONAL INDUSTRIAL RELATIONS COMMISSION 229 #

2014 P L C 229

[National Industrial Relations Commission]

Before Baqir Ali Rana, Member

HABIB BANK WORKERS' FRONT OF PAKISTAN

Versus

REGISTRAR OF TRADE UNIONS, DIRECTORATE OF LABOUR, GOVERNMENT OF SINDH and others

Case No.19(9) of 2012, decided on 16th September, 2013.

Industrial Relations Act (X of 2012)---

----Ss. 2(xxxii), 62 & 87---Collective Bargaining Unit---Determination of---Applicant Trade Union sought declaration of all establishments of the Bank (employer) as one Collective Bargaining Unit all over the country---Certain documents filed by applicant in support of its claim, had indicated that the Union was registered with the National Industrial Relations Commission as Industry-wise Trade Union---Entire establishment of Bank was controlled and managed by one party; balance sheet, profit and loss of the entire establishment of Bank was the same, which was running its business throughout Pakistan, having its Head Office at Karachi---Bank had its more than 1400 branches in all the four provinces as well as Islamabad Capital Territory---Bank was, in circumstances, a Trans-provincial establishment in terms of S.2(xxxii) of Industrial Relations Act, 2012---Registration of unions of the Bank at Provincial level, in circumstances, was unlawful and contrary to the spirit of Industrial Relations Act, 2012, which had overriding effect in terms of S.87 thereof---One Collective Bargaining Unit in the establishment of the Bank had been working even when there was no law of concept of 'Trans-provincial' establishment---After legislation of Industrial Relations Act, 2012, it was imperative that mushroom growth of unions at provincial level was curtailed in order to avoid non-uniformity of terms and conditions of employment---Services of the workers were transferable to other provinces as well---Both under the law as well as the consistent decisions of superior Courts there could not be more than one Collective Bargaining Agent in the establishment or group of establishments on the basis of certificate of National Industrial Commission, on all Pakistan basis; and the certificate of Collective Bargaining Agent, issued by Provincial Registrar Trade Unions giving the status of Provincially registered trade union as Collective Bargaining Agent was illegal and without lawful authority---All the provincially registered trade unions functioning in any Province, were directed by National Industrial Commission to amend their constitution, including membership in more than one province; and elevate their status as Industry-wise Trade Union within a period of ninety days, failing which registration of union would be cancelled---Entire establishment of Bank, was determined by the Commission as one Collective Bargaining Unit for a period of five years to be continued for such period until a fresh Collective Bargaining Unit was determined by the Commission, in circumstances.

1999 SCMR 1477 and Jang Publications v. RTU Sindh and others PLD 1984 Kar. 292 rel.

Ch. M. Ashraf for Petitioner.

Faisal Mehmood Ghani for Habib Bank.

Khan Muhammad Khan, Senior Vice-President of Petitioner Union.

Ch. M. Shabbir President Habib Bank Employees Federation of Pakistan and General Secretary Habib Bank Employees Front of Pakistan for Respondents Nos.5 and 7.

Peshawar High Court

PLC 2014 PESHAWAR HIGH COURT 183 #

2014 P L C 183

[Peshawar High Court]

Before Nisar Hussain Khan and Musarrat Hilali, JJ

MANAGING DIRECTOR, BANK OF KHYBER and 2 others

Versus

KARIM GUL and 2 others

Writ Petitions Nos.2209 to 2214 of 2013, decided on 9th October, 2013.

Khyber Pakhtunkhwa Industrial Relations Act (XVI of 2010)---

----S. 66(2)---Constitution of Pakistan, Art.199---Constitutional petition---Statement made by Counsel without written or verbal instruction of the party---Effect---Petition filed by employee was dismissed by Labour Court---Labour Appellate Tribunal accepted revision petition of employee---Validity---Concession/statement made by the Counsel without instruction from the party either verbal or in writing could not extinguish the rights of party---Courts are not supposed to act on the concession/statement made by the Counsel but with reference to the applicable provisions of law and facts available before it---Concession made without instruction of the party was of no consequence and the same could not be inured to the benefits of the other party---Constitutional petition was dismissed.

Qazi Jawad Ehsanullah for Petitioners.

Bilal A. Kakazai for Respondents.

PLC 2014 PESHAWAR HIGH COURT 190 #

2014 P L C 190

[Peshawar High Court]

Before Nisar Hussain Khan and Ikramullah Khan, JJ

SECRETARY, INDUSTRIES, GOVERNMENT OF KHYBER PAKHTUNKHWA, PESHAWAR and another

[Punjab Labour Appellate Tribunal]

Before Asad Munir, Chairman

PUNJAB ROAD TRANSPORT CORPORATION through Managing Director, PRTC, Lahore and another

Versus

KHURSHID AHMAD

Labour Appeal No.LHR-167 of 2013, decided on 16th December, 2013.

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

----S.Os. 11 & 12---Industrial Relations Ordinance (XXIII of 1969), Ss.25-A & 51---Revised Leave Rules, 1981, Rr.15 & 25---Termination of service due to stoppage of work by employer in the establishment---Grievance petition---Golden Handshake Scheme---Employee did not opt for 'Golden Handshake Scheme' floated by employer corporation, but his services were terminated on the ground that his service had become redundant due to complete stoppage of work in the employer's corporation---Employee, first filed grievance petition against order of his termination, but subsequently he relinquished his claim for his reinstatement in service; provided his legal dues were paid to him---Labour Court disposed of grievance petition with direction to the employer to pay all the legal dues to the employee by stipulated date---Employers corporation, paid amount to the employee on account of commutation of pension---Employee, dissatisfied with such payment, claimed that he had been paid less as the employer had withheld amount due on account of commutation of pension; and amount due on account of the encashment of 193 days un-availed leave; as well as amount being the refundable security deposited by him when he joined service of the employers---Held, no deduction would be made for late submission of pension papers in the case of employees of corporation, who had not opted for 'Golden Handshake Scheme'---Services of the employee who had become surplus, in consequence of abolition of his post, he was entitled to receive pay for the entire period of un-availed leave in terms of R.25(1) of Revised Leave Rules, 1981---Employee being less than 40 years old at the time of his termination, could not be deemed to have been retired, as he was not at all eligible for retirement in accordance with applicable rules, regulations or instructions of the corporation---Appeal was dismissed.

Hafiz Muhammad Yousaf, Law Officer and Salim Baig, Assistant Legal for Appellants.

Malik M. Ishaq for Respondent.

PLC 2014 PUNJAB LABOUR APPELLATE TRIBUNAL 248 #

2014 P L C 248

[Punjab Labour Appellate Tribunal]

Before Asad Munir, Chairman

PRESIDENT, ALLIED BANK LIMITED and 2 others

Versus

ABDUL HAMEED

Labour Appeal No.LHR-624 of 2012, decided on 9th May, 2013.

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

----S.O. 15---Punjab Industrial Relations Act (XIX of 2010), Ss.33 & 47---Compulsory retirement on ground of misconduct---Reinstatement despite, receipt of final dues by the employee---Grievance petition by employer/Bank---Plea of the employer was that after receipt of his final dues without any protest, employee ceased to be an aggrieved person and was estopped to challenge his compulsory retirement from service---Validity---Employee had filed grievance petition before Labour Court but did not mention therein that he had received his retirement dues; or that he was willing to return the same in case he was reinstated in service---Dispute of the employee with employer bank stood settled, and his grievance was redressed, as he had accepted his compulsory retirement willingly and had voluntarily severed his relation with the employer---Appeal of employer was allowed in circumstances.

General Manager National Radio Telecommunication Corporation, Haripur v. Muhammad Aslam and 2 others 1992 SCMR 2169 ref.

Farooq Zaman Qureshi and Rana Asif Iqbal for Appellants.

H.R. Haider for Respondent.

PLC 2014 PUNJAB LABOUR APPELLATE TRIBUNAL 257 #

2014 P L C 257

[Punjab Labour Appellate Tribunal]

Before Asad Munir, Chairman

EASTERN LEATHER COMPANY (PVT.) Ltd. through General Manager Finance and 2 others

Versus

MUHAMMAD ANWAR

Labour Appeal No.LHR-375 of 2012, decided on 30th September, 2013.

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

----S.O. 15(3)(c)---Punjab Industrial Relations Act (XIX of 2010), S.33---Termination of service---Reinstatement in service---Grievance petition---Services of the employee were terminated on the charge that he being extremely irresponsible and negligent had caused irreparable loss to the employer-company by damaging its property---Employee after termination of service, had received all his legal dues in full and final settlement, including one month's salary in lieu of notice and one year's gratuity---Employee after receipt of all his said legal dues, sought his reinstatement in service by filing grievance petition alleging that he had been illegally dismissed from service without holding any inquiry---Validity---Employee after willingly receiving his legal dues in full and final settlement, had accepted the termination of his service---Employee who had voluntarily severed his relationship with his employer, was left with no cause or grievance to agitate before Labour Court---Order of Labour Court whereby grievance petition of the employee was accepted and he was reinstated in service, was set aside, in circumstances.

General Manager National Radio Telecommunication Corporation, Haripur v. Muhammad Aslam and 2 others 1992 SCMR 2169 ref.

Nauman Mushtaq Awan for Appellants.

Asmat Kamal Khan for Respondent.

Quetta High Court Balochistan

PLC 2014 QUETTA HIGH COURT BALOCHISTAN 164 #

2014 P L C 164

[Balochistan High Court]

Before Muhammad Noor Meskanzai and Muhammad Ejaz Swati, JJ

MERCK (PRIVATE) LIMITED through Manager and others

Versus

MEMBER LABOUR APPELLATE TRIBUNAL, BALOCHISTAN, QUETTA and others

Constitutional Petitions Nos.288 to 297 of 2012, decided on 31st October, 2013.

Industrial Relations Act (IV of 2008)---

----S. 41---Constitution of Pakistan, Art.199---Constitutional petition---Unfair labour practice---"Workman", proof of---Back-benefits---Principle of no work no pay---Applicability---Labour Court allowed grievance notice and reinstated employees with back-benefits---Judgment passed by Labour Court was maintained by Labour Appellate Tribunal---Plea raised by employer was that employees were officers and not "workmen"---Validity---Only nature of job/work could determine the status of worker/workman and designation was not determining factor---Employees claimed to have performed their duties as "workers", therefore, it was inevitable upon them to have disclosed their nature of job in grievance notice as well as in application under S.41 of Industrial Relations Act, 2008, but the same was not done and both the Courts below failed to take note of such important aspect and feature of the case---To invoke jurisdiction of Labour Court for maintaining proceedings within the ambit of labour laws, the status of applicant as "worker" and his termination should be the result of industrial dispute were sine qua non---Reinstatement of employees with back benefits was contrary to the principle "no work no pay"---Back-benefits were not to be allowed as punishment to employer or exemplary in favour of employees but was meant just to accommodate an employee who had suffered on account of losing his job and by not availing a gainful job within the intervening period---Labour Court as well as Labour Appellate Tribunal misread and misappreciated evidence/ material available on record---High Court set aside the judgments passed by two Courts below and remanded the case to Labour Court for decision afresh--Petition was allowed accordingly.

1998 SCMR 644; 1991 SCMR 2300; 2001 SCMR 1928; 1993 SCMR 1370; 2004 PLC 213; 2002 SCMR 943; 2012 PLC 249; 2010 PLC 392; 2009 PLC 50; 2008 PLC 40; 1996 PLC 550; 2007 PLC 220; 2003 SCMR 74; PLD 2011 Pesh. 178; 2011 CLC 244; Muhammad Wali Khan and another v. Gul Samar Khan and another PLD 2010 SC 965 and Muhammad Anwar v. Abdul Hameed and others PLD 2010 Quetta 33 ref.

2011 PLC 286 rel.

Muhammad Ali Khan for Petitioners.

Azam Jan Zarkoon and Inhamullah Khan for Respondents.

Date of hearing: 12th September, 2013.

PLC 2014 QUETTA HIGH COURT BALOCHISTAN 351 #

2014 P L C 351

[Balochistan High Court]

Before Qazi Faez Isa, C.J. and Muhammad Kamran Mulakhail, J

PAKISTAN WORKERS FEDERATION, BALOCHISTAN through President Pakistan Workers' Federation, Balochistan and others

Versus

GOVERNMENT OF PAKISTAN through Federal Secretary, Ministry of Law and Justice, Islamabad and others

Constitutional Petitions Nos.226, 425 of 2012, 725, 893 of 2011, 117, 205, 761, 479, and 902 of 2013,decided on 26th June, 2014.

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

----Ss. 2(x), (xxxii), 19 & Preamble---Constitution of Pakistan, Arts.142, 199 & Fourth Sched., Part I, Items Nos. 31, 59 & Part. II, Items Nos.3, 13 & 18---Constitutional petition---Industrial Relations Act, (X of 2012--- Constitutionality--- Trans-provincial establishments/ corporations/institutions/industries managed or administered by the Federal Government---Trade unions and relations between employers and workmen and appointment of collective bargaining agent in such establishments--- Principles--- Legislative competence of the Parliament/Federal Government--- Whether Parliament/Federal Government could legislate in respect of such trans-provincial establishments regarding their trade unions and relations with workmen---Industrial Relations Act, 2012 was within the legislative competence of Parliament---Companies like QESCO and PTCL and statutory authorities like WAPDA and NADRA were set up by the Federation or under Federal laws---Companies and statutory authorities set up by the Federation or under Federal Laws would come within the domain of (Federal Legislative List) Fourth Sched., Part I, Item No. 31 and Part. II, Item No.3 of the Constitution---Since such statutory authorities had establishments in all the provinces they would also be covered by the (Federal Legislative List) Fourth Sched., Part. II, Item No.13 of the Constitution--- WAPDA was specifically mentioned in the (Federal Legislative List) Fourth Sched., Part. II, Item No.3 of the Constitution--- Trade unions, labour disputes and matters pertaining to labour welfare relating to inter-provincial establishments could also be categorized as matters "incidental or ancillary" to Items contained in the Federal Legislative List i.e. Fourth Sched., Part I, Item No. 31 & Part. II, Items Nos.3 & 13 of the Constitution--- Labour unions/ petitioners who challenged the constitutionality of the Industrial Relations Act, 2012 appeared to have lost sight of the welfare and interest of workers, whose interest they were supposed to be protecting---Number of companies and statutory corporations had establishments in more than one province or throughout Pakistan, thus the underlying assumption of a central bargaining agent and industrial relations was that workers were dealt with in a uniform manner in respect of such companies and statutory corporations---Negotiating power of workers, and also their interest would be undermined, if they were dealt with separately or there was more than one collective bargaining agent and different terms of employment and conditions of work were negotiated---Consequently, unfair labour practices on the part of employers would become difficult to contest so too to redress worker grievances and it would also become difficult, if not impossible, to negotiate differences between the employer and workers through a single collective bargaining agent representing the same class of workers in respect of companies and corporations having establishments in more than one province; the determination of a legal and illegal strike or lockout too would be fraught with difficulty---Both the employer and the workers of inter-provincial establishments would face untold complications and problems if there were a number of collective bargaining agents representing the interest of the same class of workers and would "produce impracticable results" which was to be avoided---Constitutional petition was dismissed accordingly with the conclusion that Industrial Relations Act, 2012 enacted by Parliament was within its legislative domain.

AIR League of PIAC Employees v. Federation of Pakistan 2011 SCMR 1254; Imran Ali Shah v. Government of Pakistan 2013 PLC 143; Merck (Pvt.) Ltd v. Merck Employees Union SBLR 2012 Bal. 89 and Shaheen Airport Services v. National Industrial Relations Commission 2011 PLC 105 distinguished.

United Provinces v. Atiqa Begum AIR 1941 FC 16; McCulloch v. Maryland 17 US 316; Abdur Rahim v. Federation of Pakistan PLD 1988 SC 670 Messrs Haider Automobile Ltd. v. Pakistan PLD 1969 SC 623 and Judicial Review of Public Actions (published by Universal Law Publishing Co., 2006) ref.

(b) National Database and Registration Authority Ordinance (VIII of 2000)---

----S. 43---Balochistan Industrial Relations Act (XIV of 2010), Ss.3 & 9---Industrial Relations Act (X of 2012), Ss.2(x) & (xxxii)---Constitution of Pakistan, Art.199 & Fourth Sched., Part. II, Item No.13---Constitutional petition---National Database and Registration Authority (NADRA)---Formation of trade unions at provincial level---Legality---NADRA Employees Union Balochistan registered by Registrar Trade Unions Balochistan---Plea of petitioner that NADRA had offices throughout Pakistan and formation of trade unions at the local/provincial level could not be permitted as the same would be contrary to the provisions of the Industrial Relations Act, 2012---Validity---NADRA had offices throughout the country, therefore, it would come within the domain of the (Federal Legislative List) Fourth Sched., Part. II, Item No.13 of the Constitution---Trade unions in respect of NADRA (Balochistan) could not be registered by the Registrar Trade Unions Balochistan under the Balochistan Industrial Relations Act, 2010---NADRA Employees Union Balochistan was registered at a time when the Industrial Relations Act, 2012 was in the field---Registrar Trade Unions Balochistan had no legal authority to register the NADRA Employees Union Balochistan under the Balochistan Industrial Relations Act, 2010---High Court directed the Registrar Trade Unions Balochistan to immediately cancel the registration of NADRA Employees Union Balochistan---Constitutional petition was allowed accordingly.

Muhammad Amir Rana for Petitioner (in C.P. No.226 of 2012).

Syed Ayaz Zahoor and Muhammad Ayub for Respondent (in C.P. No.226 of 2012).

Chaudhry Mumtaz Yousaf, Standing Counsel and Tariq Ali Tahir, Addl. A.-G. for Official Respondents (in C.P. No.226 of 2012).

Mehta W.N. Kohli and Nasir Khan Yousafzai for Petitioner (in C.P. No.725 of 2011).

Muhammad Amir Rana for Respondent (in C.P. No.725 of 2011).

Chaudhry Mumtaz Yousaf, Standing Counsel and Tariq Ali Tahir, Addl. A.-G. for Official Respondents (in C.P. No.725 of 2011).

Muhammad Amir Rana and Syed Iqbal Shah for Petitioner (in C.P. No.893 of 2011).

Mehta W.N. Kohli for Respondent (in C.P. No.893 of 2011).

Chaudhry Mumtaz Yousaf, Standing Counsel and Tariq Ali Tahir, Addl. A.-G. for Official Respondents (in C.P. No.893 of 2011).

Muhammad Amir Rana and Syed Iqbal Shah for Petitioner (in C.P. No.425 of 2012).

Syed Ayaz Zahoor and Mehta W.N. Kohli for Respondent (in C.P. No.425 of 2012).

Chaudhry Mumtaz Yousaf, Standing Counsel and Tariq Ali Tahir, Addl. A.-G. for Official Respondents (in C.P. No.425 of 2012).

Kamran Murtaza and Tahir Ali for Petitioner (in C.P. No.117 of 2013).

Ms. Iram Mehmood for WAPDA (in C.P. No.117 of 2013).

Chaudhry Mumtaz Yousaf, Standing Counsel and Tariq Ali Tahir, Addl. A.-G. for Official Respondents (in C.P. No.117 of 2013).

Tahir Ali Baloch for Petitioner (in C.P. No.205 of 2013).

Talat Waheed for WAPDA (in C.P. No.205 of 2013).

Chaudhry Mumtaz Yousaf, Standing Counsel and Tariq Ali Tahir, Addl. A.-G. for Official Respondents (in C.P. No.205 of 2013).

Muhammad Amir Rana for Petitioner (in C.P. No.761 of 2013).

Chaudhry Mumtaz Yousaf, Standing Counsel and Tariq Ali Tahir, Addl. A.-G. for Official Respondents (in C.P. No.761 of 2013).

Muhammad Amir Rana for Petitioner (in C.P. No.479 of 2013).

Misbah ul Mustafa for Respondents Nos.1 and 2 (in C.P. No.479 of 2013).

Chaudhry Mumtaz Yousaf, Standing Counsel for Respondent No.3 (in C.P. No.479 of 2013).

Tariq Ali Tahir, Addl. A.-G. for Respondent No.4 (in C.P. No.479 of 2013).

Misbah ul Mustafa and Nadeem Akhtar Afghan for Petitioner (in C.P. No.902 of 2013).

Tariq Ali Tahir, Addl. A.-G. for Official Respondent No.1 (in C.P. No.902 of 2013).

Muhammad Amir Rana for Respondent No.2 (in C.P. No.902 of 2013).

Dates of hearing: 12th November, 26th February, 6th March, 12th March, 17th March, 6th June, and 11th June, 2014.

Supreme Court

PLC 2014 SUPREME COURT 10 #

2014 P L C 10

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Jawwad S. Khawaja and Ijaz Ahmed Chaudhry, JJ

FAUJI FERTILIZER COMPANY LTD. through Factory Manager

Versus

NATIONAL INDUSTRIAL RELATIONS COMMISSION through Chairman and others

Civil Appeals Nos.83 and 84 of 2006, decided on 16th May, 2013.

(Against the judgment dated 16-3-2005 passed by the High Court of Sindh, Karachi in Constitutional Petition D-739 of 1993 and D-754 of 1996.)

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

----S. 2(viii) & (xxviii)---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1969), S.2(c), (f) & (h)---Contract between company and contractor for supply of labour---Whether status of employees supplied by contractor, would be that of employee of company---Test.

The employees of the contractor shall not be the employees of the company, if (a) they are under the control and management of the contractor, and not that of the company; (b) they are not on the pay-roll of the company and the management of the company is not even aware of the number of the workers employed by the contractor or about the terms and conditions of their appointment or service; and (c) the contractor has the power of hiring and firing the employees, and assigns works to them and the company has no concern with it.

The words "employed by the factory" are wide enough to include workmen employed by the contractors of the company. The employees of the contractor shall be the employees of the company, if the contractor engaged the workers for running of the affairs of the company and not for some other independent work, which has no concern with the production of the company; if the employees are working in a department of the company, which constituted one of the principal organs of the company, the machines belong to the company, the raw material is supplied by the company and the said department is controlled by the supervisors of the company, the employees of the contractor shall be the employees of the company; the employees engaged directly or through a contractor would be deemed to be the employees of the company for whose benefit they perform functions; even though control test is an important test, it is not the sole test; a multiple pragmatic approach weighing up all the factors for and against the employment has to be adopted, including an "integration" test; and if the contract is found to be not genuine and a device to deprive the employees from their legitimate rights/benefits, the so-called contract employees will have to be treated as employees of the company.

Normally, the relationship of employer and employee does not exist between a company and the workers employed by the contractor; however, in the case where an employer retains or assumes control over the means and method by which the work of a contractor is to be done, it may be said that the relationship of employer and employee exists between him and the employees of the contractor. Further, an employee who is involved in the running of the affairs of the company, under the direct supervision and control of the company, working within the premises of the company, involved directly or indirectly in the manufacturing process, shall be deemed to be employees of the company.

In the present case, the employees of the contractor are involved in running the affairs of the company such as filing and loading of urea bag as well as cleaning of machines and floors, therefore, for all intents and purposes, they are employees of the company through the contractor.

Muhammad Sharif v. Punjab Labour Appellate Tribunal Civil Appeal No.39 of 1977; Souvenir Tobacco Co. Ltd. v. Najammuddin PLD 1977 Kar. 250; Mian Munir Ahmad v. the State 1985 SCMR 257; Farid Ahmad v. Pakistan Burmah Shell Ltd. 1987 SCMR 1463; Nasir Jamal v. Pak Suzuki Motor Company Ltd. 2000 PLC 52; Messrs Hinopak Motors Ltd. v. Chairman Labour Appellate Tribunal 2000 PLC 89; Steel Authority of India Ltd. v. Union of India AIR 2001 SC 3527; Messrs Euro Ceramics Ltd. v. Registrar of Trade Union 1996 PLC 45; Messrs Dawood Cotton Mills v. Sindh Labour Appellate Tribunal 2004 PLC 348; Messrs Basti Sugar Mills v. Ram Ujagar AIR 1964 SC 355; Hussainbhai Calicut v. Alath Factory AIR 1978 SC 1410; D.C. Works Limited v. State of Saurashtra AIR 1957 SC 269; Mehmood Hussain v. Presiding Officer, Punjab Labour Court 2012 SCMR 1539; Pakistan Telecommunication Company Limited v. Muhammad Zahid 2010 SCMR 253; Silver Jubilee Tailoring House v. Chief Inspector AIR 1974 SC 37 = (1974) 3 SCC 498; Catering Cleaners of Southern Railway v. Union of India AIR 1987 SC 777 = (1987) 1 SCC 700; Sankar Mukherjee v. Union of India AIR 1990 SC 532 = (1990) (Supp) SCC 668; Indian Overseas Bank v. I.O.B. Staff Canteen Workers' Union AIR 2000 SC 1508 = (2000) 4 SCC 245; Steel Authority of India Ltd. v. Union of India AIR 2001 SC 3527; Mishra Dhatu Nigam Ltd. v. M. Venkataiah AIR 2003 SC 3124 = (2003) 7 SCC 488; Ram Singh v. Union Territory, Chandigarh AIR 2004 SC 969 = (2004) 1 SCC 126 and Workmen of Nilgiri Coop. Mkt. Society Ltd. v. State of T.N. AIR 2004 SC 1639 = (2004) 3 SCC 514 rel.

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

----S. 2(viii)(xvi) & (xxviii)---Employees of company and contractor---Lock-out, concept of---Applicability---Scope---Concept of lock-out would apply only to employees of company, but not to employees of contractor.

Khalid Anwar, Senior Advocate Supreme Court, Raja Abdul Ghafoor, Advocate-on-Record assisted by Barrister Muhammad Anas Makhdoom, Advocate for Appellants.

Abid Hassan Minto, Senior Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Respondent No.2 (in C.A. No.83 of 2006).

Abid Hassan Minto, Senior Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Respondents Nos.3-37, 39-40, 42-114 (in C.A. No.84 of 2006).

Ex parte, other Respondents.

Date of hearing: 16th May, 2013.

PLC 2014 SUPREME COURT 203 #

2014 P L C 203

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, Sarmad Jalal Osmany and Dost Muhammad Khan, JJ

PAKISTAN TELECOMMUNICATION COMPANY LTD.

Versus

MEMBER NIRC and others

Civil Appeal No.407 of 2013, decided on 17th February, 2014.

(On appeal from the judgment of Lahore High Court, Lahore dated 26-11-2012 passed in W.P. No.22454 of 2012.)

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

----Ss. 53, 54 & 2(xxxii)---National Industrial Relations Commission (NIRC), jurisdiction of---Scope---Industrial dispute relating to a "trans-provincial employer"---Forum---Question as to whether a Provincial Labour Court or National Industrial Relations Commission (NIRC) would have jurisdiction in relation to such an industrial dispute---Status of employer or group of employers determined as to whether a Provincial Labour Court or National Industrial Relations Commission (NIRC) would have jurisdiction, and not the nature of the dispute---Once it was established through any means that the employer or group of employers had an establishment, group of establishments, industry, having its branches in more than one Provinces, then the jurisdiction of the NIRC would be exclusive in nature and of over-riding and super imposing effect over the Provincial Labour Court for resolving industrial dispute including unfair labour practice, etc.---When employer had its establishment or branches or industrial units in more than one Province, then recourse had to be made by the aggrieved party to the NIRC and not the Provincial Labour Court.

(b) Constitution of Pakistan---

----Art. 143---Inconsistency between Federal and Provincial law---Under provisions of Art. 143 of the Constitution, laws enacted by Parliament had been given over-riding and superimposing effect over laws enacted by a Provincial Assembly of any of the Provinces, and in case of any clash or repugnancy between the two, the laws enacted by the Parliament would prevail---On the touchstone of Art.143 of the Constitution, an Act of Parliament had been placed on a higher pedestal and any Provincial law enacted by a Provincial Assembly shall give way to the Federal law enacted by Parliament, if the former was inconsistent or repugnant to the latter.

----Preamble---Provisions of Industrial Relations Act, 2012 had over-riding effect on all Provincial Labour laws.

Syed Naeem Bukhari, Advocate Supreme Court for Appellant.

Sheikh Riaz ul Haq, Advocate Supreme Court for Respondents Nos.1 and 3 to 6.

Syed Shahid Hussain, Advocate Supreme Court for Respondent No.2.

Respondents Nos.7 and 8 Ex parte.

Date of hearing: 4th February, 2014.

PLC 2014 SUPREME COURT 428 #

2014 P L C 428

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, Asif Saeed Khan Khosa and Mushir Alam, JJ

Constitutional Petition No.6 of 2011

(Against illegal appointments and corruptions in EOBI)

Syed MUBASHIR RAZA JAFFRI and others---Petitioners

Versus

EMPLOYEES' OLD-AGE BENEFITS INSTITUTIONS (EOBI) through President of Board, Board of Trustees and others---Respondents

C.M.A. No.5216 of 2012 in Constitutional Petition No.6 of 2011

(Against appointment of Raja Azeemul Haq as Executive Director of the World Bank)

AND

H.R.C. No.48012-P of 2010

(Application by Tajamal Hussain against illegal appointments and massive corruption in EOBI)

Constitutional Petition No.6 of 2011, C.M.A. No.5216 of 2012, H.R.C. No.48012-P of 2010, decided on 17th March, 2014.

(a) Employees' Old-Age Benefits Institution (Employees' Service) Regulations, 1980---

----Regln. 10---Employees' Old-Age Benefits Institution Operating Manual Ch. 2, Cls. Nos. 02.4.3 & 02.05.2---Constitution of Pakistan, Art. 184(3)---Constitutional petition under Art. 184(3) of the Constitution against illegal appointments in Employees Old-Age Benefits Institutions (EOBI) based on political influence, nepotism and cronyism---Maintainability---"Public interest litigation"---Violation of fundamental rights of citizens---Scope---Controversy involved in the present petition was clearly within the domain of "public interest litigation" qua violation of fundamental rights of citizens at large by a public body (EOBI) in the matter of selection and appointments---Grievance in the present case, concerned the rights of more than 23,127 applicants who had applied for posts in EOBI but their applications were passed over due to nepotism and political pressure, in contravention of their fundamental rights enshrined under the Constitution, which in turn also affected the public at large as it called into question the manner in which the bureaucratic system was being abused by the ruling elite---Constitutional petition was held to be maintainable accordingly.

Sindh High Court Bar Association v. Federation of Pakistan PLD 2009 SC 879; Syed Mahmood Akhtar Naqvi v. Federation of Pakistan PLD 2013 SC 195 and Regarding pensionary benefits of the Judges of Superior Courts PLD 2013 SC 829 ref.

(b) Employees' Old-Age Benefits Institution (Employees' Service) Regulations, 1980---

----Regln. 10--- Employees' Old-Age Benefits Institution Operating Manual Ch. 2, Cls. Nos. 02.4.3 & 02.05.2--- Constitution of Pakistan, Arts. 25 & 184(3)---Constitutional petition under Art. 184(3) of the Constitution against illegal appointments in Employees Old Age Benefits Institutions (EOBI) based on political influence, nepotism and cronyism---Report of Fact Finding Committee constituted by management of EOBI disclosed the mismanagement, corruption, nepotism and politicising of the disputed appointments, which were made in a mala fide manner, thereby crushing the merit criteria in a public owned establishment of the Government---Many persons like the then Chairman of EOBI, did not realize or adhere to the reality of merit criteria and were adamant to play with the future of the younger generation for their own good and to achieve their nefarious designs---Record showed as to how persons belonging from one political group and from certain constituencies/areas from where, brother and nephew of Chairman, EOBI, were elected as Parliamentarians were obliged and accommodated in the matter of their appointments in bulk, in an illegal manner---Applicants (23648 in number), who had applied for the vacancies in EOBI, had equal right of opportunity as citizens of the country, in terms of Art. 25 of the Constitution, but were thrown out of the competition despite the fact that they also met the requisite qualifications and might have been more meritorious, but could not exert either political pressure or avail the fruits of nepotism and corruption, forming basis for the selection and appointment of appointees in question, many of whom had not even applied for the job in terms of the advertisement for the vacancies---Appointees in the present case succeeded in getting entry from the backdoor at the cost of many other bona fide candidates, whose applications were literally thrown in the dust-bin in an un-ceremonial manner just for the sake of accommodating the blue eyed ones---Gains availed by the illegal appointees were at the cost of other deserving candidates who had applied for these posts, being citizens of the country, with a legitimate expectation that they would be able to seek appointment on the basis of their eligibility-cum-merit criteria to be observed as per the applicable rules and regulations of the EOBI---Ill-gotten gains could not be defended/protected under any canon of law or even on humanitarian considerations---Record also showed that 238 employees/officials in the EOBI were appointed on contract/daily and contingency basis during the period between September, 2011 to May, 2012 in flagrant violation of the prescribed rules and regulations and subsequently such employees were also purportedly regularized---For regularization of such employees some summaries were floated and illegal approval was obtained from the Cabinet Sub-Committee, which otherwise neither figured anywhere in the hierarchy of EOBI nor had any legal authority to rectify such illegal and wrong appointments---Said contract appointments were made at a time when there were no available posts for these persons and the whole exercise was, on the face of it, undertaken on the basis of nepotism and political pressure in vogue during that period---All this exercise was undertaken by the officials of EOBI despite a specific stay order issued by the Supreme Court---Supreme Court observed that it was a sad fact of our bureaucracy that it could be so susceptible to the whims and wishes of the ruling elite class etc, which resulted in an obvious weakening of State institutions such as the EOBI, whereby the general public, whose interest such establishments had been charged with protecting, were adversely and heavily affected in different ways---Supreme Court directed that all the illegal appointments, deputations and absorptions made in the EOBI, as detailed in the report of Fact Finding Committee, were without lawful authority and of no legal effect and accordingly services of such employees stood terminated forthwith; that all such vacancies and other available vacancies in EOBI should be advertised and filled afresh strictly in accordance with applicable rules and regulations, subject to prescribed quota, requisite qualifications and merit criteria, for which the Chairman, EOBI shall be personally responsible; that the matter regarding all the illegal appointments should be investigated by the National Accountability Bureau authorities; that all officials directly or indirectly involved in the process of such illegal appointments on the basis of corruption, nepotism and political exigencies should be proceeded against in accordance with law within two months; that contempt proceedings should be initiated against all those who were, prima facie, found guilty of violation of a stay order of the Supreme Court dated 21-1-2011 in H.R.C. No.48012 of 2010, particularly in the process of appointment of 238 employees/officials during the period between September 2011 to May 2012---Constitutional petition was disposed of accordingly.

Muhammad Yasin v. Federation of Pakistan PLD 2012 SC 132; Muhammad Ashraf Tiwana v. Pakistan 2013 SCMR 1159; Tariq Aziz-ud-Din: in re 2010 SCMR 1301; Mahmood Akhtar Naqvi v. Federation of Pakistan PLD 2013 SC 195 and Contempt proceedings against Chief Secretary, Sindh and others 2013 SCMR 1752 ref.

----Appointments to public institutions---Scope---Appointments to public offices were to be made strictly in accordance with applicable rules and regulations, without any discrimination and in a transparent manner---All appointments to public institutions must be based on a process that was palpably and tangibly fair and within the parameters of its applicable rules, regulations and bye-laws.

(d) Employees' Old-Age Benefits Institution (Employees' Service) Regulations, 1980---

----Regln. 10--- Employees' Old-Age Benefits Institution Operating Manual Ch. 2, Cls. Nos. 02.4.3 & 02.05.2---Constitution of Pakistan, Art.184(3)---Constitutional petition under Art.184(3) of the Constitution---Appointment of respondent, as Executive Director of World Bank---Allegation was that respondent did not have the requisite experience or qualifications for the said job and was only appointed due to political pressure as he was son-in-law of the then Prime Minister---Validity---Material placed on record showed that after resignation of respondent from a post in BS-18 in the Income Tax Group, he jumped in the EOBI, got appointment and promotions from one step to another to reach BS-21 within a short period of three years---Respondent while serving in EOBI was appointed on deputation in the Prime Minister Secretariat as Joint Secretary (BS-20) and within no time of his joining back EOBI, he was promoted as Director General (BS-21) in EOBI---Supreme Court directed that the matter of illegal appointment of respondent in the World Bank, should be investigated by the National Accountability Bureau authorities---Constitutional petition was disposed of accordingly.

Petitioners Nos. 1 and 2 in person (in Constitutional Petition No.6 of 2011).

Saiful Malook, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondents Nos.1 and 3 (in Constitutional Petition No.6 of 2011).

Mirza Waqas Rauf, DAG and Pervaiz Khan, D.G., H.R. on behalf of Federation (in Constitutional Petition No.6 of 2011).

Abdul Latif Yousafzai, Advocate-General, Khyber Pakhtunkhwa and Malik Faisal Rafique, Additional A.-G., Punjab on Court Notice (in Constitutional Petition No.6 of 2011).

Nemo for other Respondents (in Constitutional Petition No.6 of 2011).

Mirza Waqas Rauf, DAG and Pervaiz Khan, DG., HR, EOBI for Federation (in C.M.A. No.5216 of 2012 in Constitutional Petition No.6 of 2011).

Ch. Afrasiab Khan, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record along with applicant on behalf of Raja Azeemul Haq (in C.M.A. No. 5216 of 2012 in Constitutional Petition No.6 of 2011).

Applicant in person (in H.R.C. No.48012-P of 2010).

Sardar M. Aslam, Advocate Supreme Court for appointed officials (in H.R.C. No.48012-P of 2010).

Saiful Malook, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Chairman EOBI (in H.R.C. No. 48012-P of 2010).

Ch. Afrasiab Khan, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record along with Applicant for Raja Azeemul Haq (in H.R.C. No.48012-P of 2010).

Athar Minallah, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Applicants Mutali Khan and others (in H.R.C. No.48012-P of 2010).

Abdul Hafeez Pirzada, Senior Advocate Supreme Court and Mian Gul Hassan Aurangzeb, Advocate Supreme Court for Applicants/Intervener (in H.R.C. No.48012-P of 2010).

Nemo for Applicants in C.M.A. No.1720 of 2011 (in H.R.C. No.48012-P of 2010).

Date of hearing: 11th December, 2013.