PLC 2015 Judgments

2015 P L C 148

[Islamabad High Court]

Before Athar Minallah, J

NATIONAL ELECTRIC POWER REGULATORY AUTHORITY

versus

REGISTRAR OF TRADE UNIONS, NIRC and others

Writ Petition No.144 of 2014, decided on 15th January, 2015.

Industrial Relations Act (X of 2012)---

----Ss. 1(3), 2(x), 2(xvii), 19(1) & 58---National Electric and Power Regulatory Authority Act (XL of 1997), S.3---Constitution of Pakistan, Art.199---Constitutional petition---Illegal order---Collective Bargaining Agent (CBA), appointment of---Terms 'establishment' and 'industry'---Scope---National Electric and Power Regulatory Authority (NEPRA) assailed appointment of CBA on the ground that it was neither an establishment nor industry and provisions of Industrial Relations Act, 2012 were not applicable to it---Plea raised by respondent was that alternate remedy under S.58 of Industrial Relations Act, 2012, was available to NEPRA, therefore, Constitutional petition was not maintainable---Validity---In order to fall within the definition of an "industry" as defined under S.2(xvii) of Industrial Relations Act, 2012, employment or occupation must be for production of goods or provision of services and essentially having nexus with a business or industry---Distribution or generation company would fall within the definition of an "establishment" or an "industry" as it produced electricity and thereafter distributed and supplied the same to consumers for which latter would pay according to tariff determined by NEPRA---Water And Power Development Authority (WAPDA) and other power distribution companies or entities were undoubtedly engaged in business and were providing services, therefore, in their case provisions of Industrial Relations Act, 2012, applied---NEPRA was neither engaged in any business or production or manufacture of goods or provisions of services---Order passed by authorities issuing CBA certificate was without jurisdiction and coram non-judice and since efficacious alternate remedy was not available to petitioner, therefore, petition was maintainable under Art.199 of the Constitution---Petition was allowed in circumstances.

Union of Civil Aviation Employees, Lahore and another v. Civil Aviation Authority, Islamabad and 3 others PLD 1993 Lah. 306; Inspector-General of Police Punjab, Lahore and others v. Mahmood Ikram 1998 SCMR 765; Pakistan WAPDA Employees PEGHAM Union v. Member NIRC, Islamabad and others 2014 SCMR 1676; Essa Cement Industries Workers' Union v. Registrar of Trade Unions, Hyderabad Region, and 4 others 1998 PLC 500; Messrs Dreamworld Family Resort through Secretary v. Registrar of Trade Unions and another 2010 PLC 293; Pakistan International Airline Corporation and others v. Tanweer-ur-Rehman and others PLD 2010 SC 676; K.G. Old, Principal, Christian Technical Training Centre, Gujranwala v. Presiding Officer, Punjab Labour Court, Northern Zone and 6 others PLD 1976 Lah. 1097; A.F. Ferguson & Co. v. The Sindh Labour Court and another PLD 1985 SC 429 and Livestock Employees' Union and others v. Government of Balochistan, Livestock Department 1996 PLC 577 ref.

Rashid Hanif for Petitioner.

Raja Saif-ur-Rehman for Respondents.

Date of hearing: 27th November, 2014.

2015 P L C 210

[Islamabad High Court]

Before Aamer Farooq, J

ALL PAKISTAN SRBC WORKERS' UNION

versus

NATIONAL INDUSTRIAL RELATIONS COMMISSION and others

Writ Petition No.16 of 2015, decided on 11th March, 2015.

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

----Ss. 6, 7, 8 & 12---Constitution of Pakistan, Art.199---Constitutional petition---Trade Union, registration of---Objection---Impleadment of party to the application for registration of Trade Union---Locus standi---T.V. Engineer whether workman---Scope---Nothing was on record to show that T.V. Engineer performed duties as employer or part of the administration or management---Employer had also certified that T.V. Engineer was not part of the management of the employer-company---T.V. Engineer was "workman"---No objection could be taken by the T.V. Engineer to the registration of Trade Union or becoming party in the proceedings which was the sole matter between an applicant Union and the Registrar of Trade Union---Impleadment of applicant a T.V. Engineer, in the proceedings for registration of Trade Union was illegal and without lawful authority---T.V. Engineer had no locus standi to challenge the registration of Trade Union---Appeal filed by the applicant, T.V. Engineer, was not competent---Constitutional petition was dismissed, in circumstances.

Naeem Wahid v. Sindh Labour Appellate Tribunal and another 1984 PLC 352; Mumtaz Hassan Khan v. Sindh Labour Appellate Tribunal and 2 others 1984 PLC 1353; Essa Cement Industries Workers Union v. Registrar of Trade Unions 1998 PLC 500; WAPDA Town Employees Union v. WAPDA Employees Cooperative Housing Society 2011 PLC 18; Wall's Employees Union v. Registrar of Trade Unions 2007 PLC 521; Pakistan Services Limited v. Full Bench NIRC 2006 PLC 288 and 1992 PLC 2023 ref.

Wall's Employees Union v. Registrar of Trade Unions 2007 PLC 521; Pakistan Services Limited v. Full Bench NIRC 2006 PLC 288; Sadiq Ali Khan v. Punjab Labour Appellate Tribunal and 2 others PLD 1994 SC 273; Ganga R. Madhaani v. Standard Bank Limited and others 1985 SCMR 1511; WAPDA Town Employees Union through President/Secretary v. WADPA Employees' Cooperative Housing Society, Gujranwala through Secretary and 2 others 2011 PLC 18; National Beverage Employees Union v. Registrar, Trade Union, Government of Sindh and 2 others 1986 PLC 533 and Essa Cement Industries Workers' Union v. Registrar of Trade Union Hyderabad Region Hyderabad 1998 PLC 500 rel.

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

----S. 8(2)---Trade Union, registration of---Requirements---Trade Union was not entitled to be registered unless all its members were "workmen" and engaged or employed in the industry with which the Trade Union was connected---When there were two or more registered Unions in the establishment, the applicant Union should have at least one-fifth of the total workmen employed in such establishment.

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

----S. 2(xxxiii)---"Worker" and "workman"---Meaning---Any person who did not fall within the definition of employer and was not a person who was employed mainly in managerial or administrative capacity would fall in the definition of a "worker" and "workman".

Mushtaq Hussain Bhatti for Petitioner.

Kh. Muhammad Arif for Respondent No.1.

Qazi Ahmed Saeed for Respondent No.3.

2015 P L C 1

[Sindh High Court]

Before Faisal Arab, Muhammad Ali Mazhar and Salahuddin Panhwar, JJ

KESC and others

Versus

N.I.R.C. and others

Constitutional Petitions Nos.D-3195 of 2010, D-2424 of 2009, D-1049, D-1287, D-1329, D-1410, D-1473, D-2645, D-3196 of 2010, D-1016, D-1056, D-1244 D-2188, D-248, D-2701, D-271, D-2759, D-2779, D-2849, D-2947, D-2948, D-3530 of 2011, D-1818, D-2603, D-3179, D-498, D-581, D-743, D-153, D-1762, D-2599, D-2600, D-2601, D-2602, D-283, D-304, D-4184, D-4447, D-643, D-658, D-684, D-1642 of 2012, D-174, D-1058, D-1059, D-1060, D-1061, D-1062, D-1063, D-1903, D-2269 of 2013, decided on 4th August 2014.

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

----Ss. 3, 19 & Preamble---Constitution of Pakistan, Arts.17, 141, 199 & Fourth Sched., Part I, Entry No.58---Constitutional petition---Industrial Relations Act, 2012---Constitutionality---Trans-provincial establishments---Rights of workmen---Provincial legislature not competent to legislate on rights of workmen of trans-provincial establishments---Effect---Necessary for Federal legislature i.e. Parliament to legislate---Industrial Relations Act, 2012 was enacted to deal with the subjects of formation of trade unions and settlement of industrial disputes relating to only such industrial and commercial establishments that operated either in the Islamabad Capital Territory or at trans-provincial level---Employers and the workmen of such establishments could get their industrial disputes settled from the forum of National Industrial Relations Commission (NIRC) that was established under Industrial Relations Act, 2012---Apart from the adjudication of the industrial disputes, the NIRC had also been empowered to register trade unions, industry-wise trade unions, federation of trade unions and determine the collective bargaining agent from amongst the trade unions and industry-wise trade unions of the trans-provincial establishments; thus it was evident that Industrial Relations Act, 2012 applied to a distinct category of establishments and not to the intra-provincial establishments that were regulated by the provincial law---Industrial Relations Act, 2012 recognized the freedom of association as a fundamental right of the citizens---With respect to establishments operating at trans-provincial level freedom of association guaranteed under Art.17 of the Constitution could not be made available through a provincial legislation on account of the constitutional bar contained on provincial legislation under Art.141 of the Constitution---Provincial legislature was not competent to regulate a right, exercise of which transcended provincial boundaries---Right to form a trade union that could operate beyond the provincial boundaries could not be secured and regulated by a provincial law---Question whether the Fundamental Right of freedom of association could be curtailed in commercial and industrial establishments having branches in more than one province to an extent that such a right could not be exercised at trans-provincial level and was confined only within the territorial limits of a province, in other words, could the workmen be denied their right to form a nation-wise or inter-provincial trade union in an establishment that operated at national or trans-provincial level i.e. having branches in more than one province---Held, when provincial legislature was not competent to preserve and regulate the rights of the workmen of trans-provincial establishments to the fullest, no prejudice would be caused to the provincial autonomy if the Federal legislature gave a law of its own for such establishments---Industrial Relations Act, 2012 in its applications did not destroy or usurp the provincial autonomy or the principle on which the Federation was formed under the Constitution as it facilitated and regulated the right to form unions at trans-provincial level which right could not be attained through a provincial law---Absence of a law facilitating and regulating trade union activities at trans-provincial level by itself amounted to preventing the exercise of freedom of association created and preserved by Art.17 of the Constitution---When legislation was required to legitimize and regulate the trade union activities in trans-provincial establishments, it could be said that such a matter related to the Federation, thus, the Federal legislature, on the strength of Entry No.58 of Part I of the Federal Legislative List, as of necessity, could step in to legislate in order to preserve and regulate a right that not only in its exercise transcended provincial boundaries but was of a nature which was also guaranteed under Art.17 of the Constitution---If the Industrial Relations Act, 2012 was struck down on the ground that it overlapped with the provincial law, the workmen of trans-provincial establishments could not form unions and get them registered that could legitimately function at trans-provincial level---Such rights would remain unenforceable and unregulated by any law---Industrial Relations Act, 2012 was a valid piece of legislation and thus not ultra vires of the Constitution---Constitutional petition was disposed of accordingly.

Pakistan Muslim League (N) v. Federation of Pakistan PLD 2007 SC 642 ref.

Air League of PIAC Employees v. Federation of Pakistan 2011 SCMR 1254 distinguished.

(b) Constitution of Pakistan---

----Arts. 137 & 141---Extent of Federal and Provincial laws---Legislative competence of Provincial and Federal legislature---Scope---Provincial Assemblies were not empowered to make laws having operation beyond its territories---Provincial legislation in its application could not travel beyond the territorial boundaries of the province---Where a law in its application was required to travel beyond the territorial boundaries of a province, it went beyond the legislative competence of the provincial legislature---Any matter or activity of a trans-provincial nature which could not be regulated by a provincial law on account of the constitutional constraints, could not be allowed to remain unregulated by any law---Whenever such a peculiar situation arose, the Federal legislature as of necessity, must step in order to protect, preserve and regulate the right---Federal legislature was the only forum left to come up with a law to address such a situation---To come up with a Federal law to deal with a situation which could not be addressed through the provincial legislation could not be taken as usurpation of the provincial autonomy.

(c) Interpretation of statutes---

----Constitutionality of an enactment---Two alternative views---Where two views on the constitutionality of an enactment were possible, the one making the enactment constitutional was to be adopted.

(d) Constitution of Pakistan---

----Fourth Sched., Parts I & II---Federal Legislative List---Entries---Interpretation---While interpreting the scope of any Legislative Entry (in the Federal Legislative List) widest possible meaning was to be attributed to its provisions i.e. the rule of liberal construction was to be followed.

The Elel Hotels and Investment Ltd. and another v. Union of India AIR 1990 SC 1664 ref.

(e) Constitution of Pakistan---

----Fourth Sched., Part I, Entry No.58---Federal Legislative List---Entry No. 58 of Part I of the Federal Legislative List provided that Federation i.e. Parliament may legislate on matters which under the Constitution were within the legislative competence of Majlis-e-Shoora (Parliament) or related to the Federation---Contents of Entry No. 58 could be divided into two parts: In the first part it was stated "Matters which under the Constitution are within the legislative competence of Majlis-e-Shoora (Parliament)" and in the second part it was stated "or relate to the Federation"---Words of the second part of Entry No.58 "or relate to the Federation" had their own independent significance---Import of the second part of Entry No.58 was that apart from any matter that fell within the legislative competence of the Parliament, there could also be a matter which may relate to the Federation and therefore the Parliament may decide to legislate on such matter as well; thus the second part of Entry No.58 empowered the Parliament to legislate on a matter, which though may not be specifically enumerated in any Entry of the Federal Legislative List but in some way, the matter may relate to the Federation.

(f) Vires of statute---

----Constitutionality---Court declaring a statute as unconstitutional---Question as to what was best for the people was to be left to the legislature as it was the members of the legislature that were entrusted with the function to understand the needs of the people who had chosen them---Unless there was brazen violation of any constitutional provision, a statute could not be declared unconstitutional.

(g) Vires of statute---

----Doctrine of "pith and substance"---Object---Said doctrine was to enquire as to what was the pith and substance of the law, vires of which were being challenged---Said doctrine required that primacy should be given to the object which the law aimed to achieve rather than to the subjects it dealt with.

(h) Constitution of Pakistan---

----Art. 144(1) & Fourth Sched., Parts I & II---Power of Majlis-e-Shoora (Parliament) to legislate for one or more Provinces by consent---Scope---Such power was applicable or attracted only when at the instance of the Provincial Assembly or Assemblies, Federal legislation was required on any matter which was not covered by any Entry of the Federal Legislative List.

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

----Ss. 53, 87 & Preamble--- Sindh Industrial Relations Act (XXIX of 2013), S. 45---Constitution of Pakistan, Art. 199---Constitutional petition---Legal forum available to the employees/labourers/workers employed in a trans-provincial or intra-provincial establishment/ company/corporation/institution--- National Industrial Relations Commission (NIRC) or Labour Courts---Two laws existed side by side, one at Federal level i.e. Industrial Relations Act, 2012 and the other at provincial level i.e. Sindh Industrial Relations, 2013 both dealing with similar subjects---In order to avoid the confusion of overlapping of jurisdictions as to where the employers or workmen of trans-provincial establishments could seek legal remedy, S.87 has been incorporated in Industrial Relations Act, 2012 which provided that its provisions shall have overriding effect, notwithstanding anything contained to the contrary in any other law for the time being in force---Effect of such non obstante clause contained in S.87 of Industrial Relations Act, 2012 was only to the extent that for trans-provincial establishments, the forum to seek legal remedy in matters covered by Industrial Relations Act, 2012 was only and only the one provided thereunder i.e. National Industrial Relations Commission (NIRC) and not the Labour Courts established under the Sindh Industrial Relations Act, 2013---For establishments that were operating at provincial level only it was the provincial law i.e. the Sindh Industrial Relations Act, 2013 that was applicable---High Court directed that all cases pending adjudication in Labour Court pertaining to trans-provincial industrial and commercial establishments shall stand transferred to the NIRC of appropriate jurisdiction; that likewise, cases, if any, pending adjudication in NIRC pertaining to intra-provincial industrial and commercial establishments shall stand transferred to the Labour Courts of appropriate jurisdiction---Constitutional petition was disposed of accordingly.

Mehmood Abdul Ghani, Advocate.

Muhammad Sarwar Khan, Additional Advocate General.

Rashid Anwar along with Mustafa Ali, Advocates.

Muhammad Humayoon, Advocate.

Ch. Muhammad Ashraf, Advocate.

Moin Azhar Siddiqi, Advocate.

Ashraf Hussain Rizvi, Advocate.

Muhammad Atiq Qureshi, Advocate.

Jhanzeb Inam, Advocate.

Makhdoom Ali Khan, Hyder Ali Khan, Najeeb Jamali and Sami-ur- Rehman, Advocates.

Rasheed Ahmed Razvi and Jamal Bukhari, Advocates.

Salahuddin Ahmed and Chaudhry Atif, Advocates.

Muhammad Aslam Butt, Deputy Attorney General.

Haleem Siddiqi, Advocate.

S.Shoa-un-Nabi, Advocate.

Muhammad Azam Khan Azmati, Advocate.

Latif Sagar, Advocate.

Malik Naeem Iqbal, Advocate and Malik Altaf Javaid, Advocates.

Shabbir Shah, Advocate.

Muhammad Rafique Malik, Advocate.

Zia-ul- Haq Makhdoom, Advocate along with Muhammad Azhar Mahmood and Faisal Aziz, Advocates.

Kashif Hanif, Advocate.

Abdul Ghaffar Khan, Advocate.

Sanaullah Noor Ghori, Advocate.

Azhar Elahi, Advocate.

Khalid Imran, Advocate.

Muhammad Rafi Kamboh, Advocate.

Faiz Muhammad Ghanghro, Advocate.

Nishat Warsi, Advocate.

Farhatullah, Advocate.

Dates of hearing: 2nd, 3rd, 4th, 9th, 11th, 12th, 16th and 18th September, 2013.

2015 P L C 26

[Sindh High Court]

Before Shahnawaz Tariq, J

MUHAMMAD AYAZ KHAN

Versus

AUTHORITY UNDER THE PAYMENT OF WAGES ACT AND COMMISSIONER, WORKMAN COMPENSATION EAST DIVISION through Presiding Officer and another

Constitutional Petition No.S-704 of 2011, decided on 22nd August, 2014.

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

----S. 23---Payment of Wages Act (IV of 1936), S.18---Civil Procedure Code (V of 1908), Ss.12(2) & 114---Criminal Procedure Code (V of 1898), S.195---Constitution of Pakistan, Art.199---Constitutional petition---Recovery of illegally retained dues of the petitioner---Application for setting aside the order of Workmen's Compensation Commissioner on the plea of misrepresentation and fraud---Applicability of C.P.C.---Scope---Establishment instead of filing appeal under S.17 of the Payment of Wages Act, 1936 invoked the constitutional jurisdiction of High Court, which petition was dismissed on the point of jurisdiction, thereafter the Establishment preferred petition for leave to appeal to Supreme Court, which also met the same fate---Contention of the petitioner was that Workmen's Compensation Commissioner had no power to set aside its order under S.12(2) C.P.C.---Validity---Under S.18 of the Payment of Wages Act, 1936, S.23 of the Workmen's Compensation Act, 1923 and S.195 of Cr.P.C., Commissioner Workmen's Compensation had very limited and restricted legal powers only to the extent of taking of evidence on oath, enforcing attendance of witnesses, compelling for production of documents and initiating contempt proceedings--- Commissioner Workmen's Compensation had no legal authority to revisit, review or recall its own order in any manner---Commissioner Workmen's Compensation and Payment of Wages Authority was not at par with the civil court and entire C.P.C. had not been conferred upon the Commissioner as such the Commissioner had no jurisdiction to review its own earlier order even if the order was obtained by misrepresentation and playing fraud upon the Commissioner, therefore, there was no scope for the Authority to invoke its jurisdiction under S.12(2), C.P.C. and its powers were strictly confined within the ambit of S.18 of the Payment of Wages Act, 1938 and S.23 of the Workmen's Compensation Act, 1923---Impugned order was set aside and Constitutional petition was allowed in circumstances.

Messrs Ahmed Food Industries v. Sindh Labour Appellate Tribunal, 1974 PLC 225 rel.

PLD 1973 Lah. 652; 2003 SCMR 549; 1992 SCMR 1908; 2002 MLD 1919 and 1999 SCMR 1516 ref.

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

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

Factory Manager, Burewala Textile Mills v. Asghar Ali and another 2005 SCMR 1144 ref.

Petitioner in person.

Khalid Imran for Respondent No.2.

Date of hearing: 7th August, 2014.

2015 P L C 72

[Sindh High Court]

Before Muhammad Ali Mazhar and Abdul Rasool Memon, JJ

M.R. INDUSTRIES through Managing Partner

Versus

SINDH EMPLOYEES' SOCIAL SECURITY INSTITUTION through Commissioner and 3 others

Constitutional Petition No.D-1346 and C.M.A. No.8020 of 2012, decided on 16th May, 2014.

(a) Maxim---

----"Expressio unius exclusio altertius"---Connotation---When a statute mentions one or more things of a particular class, it may be regarded as silently excluding other things of the same class or similar classes not expressly mentioned.

(b) Interpretation of statutes---

----Construction which is more agreeable to justice and reason is to be preferred.

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

----Ss. 57, 59 & 60---Constitution of Pakistan, Art.199---Constitutional petition---Social Security Court---Powers---Petitioner assailed demand made by Sindh Employees' Social Security Institution on the plea that it had been regularly paying contribution---Grievance of petitioner was that Social Security Court could not direct petitioner to furnish security or bank guarantee equivalent to demand made by the Institution---Validity---Power to grant interim relief was exercisable by Social Security Court not because of inherent character or attribute of Court itself but only to enable it to exercise its appellate jurisdiction expressly conferred upon it more effectively and in accordance with what indisputably were requirement of justice and reason---Social Security Court did not possess powers to pass orders for furnishing security/bank guarantee on its own motion as a pre-requisite or pre-condition of filing of appeal under S.59 of Provincial Employees' Social Security Ordinance, 1965---High Court directed that if petitioner wanted suspension of demand in question, it should apply to Social Security Court and if any such application would be filed, the Court could stay the demand subject to furnishing solvent security and or bank guarantee till such time the appeal was decided---High Court directed the Institution that during pendency of appeal, it could initiate and continue proceedings for recovery of due contribution in accordance with provisions of West Pakistan Land Revenue Act, 1967, unless the demand was stayed by Social Security Court---High Court set aside direction issued by Social Security Court---Petition was allowed accordingly.

Messrs Axact Private Limited v. Province of Sindh through Secretary Labour, Government of Sindh 2009 PLC (C.S.) 799; Mumtaz Ahmed Silk Mills Ltd. v. Director, Sindh Employees Social Security Institution and another 1993 PLC 335; SESSI v. Adamjee Cotton Mills Ltd. PLD 1975 SC 32 and SESSI v. Messrs Corn Pak Ltd. 1998 PLC 115 ref.

S.M. Iqbal for Petitioner.

Jawad A. Sarwana for Respondents Nos.1 and 3.

Abdul Jalil Zubedi, A.A.-G.

Date of hearing: 30th January, 2014.

2015 P L C 158

[Sindh High Court]

Before Salahuddin Panhwar, J

Messrs FARAN SUGAR MILLS, TANDO IBRAHIM BAWANY SHAIKH BHIRKIO through Notified Factory Manager/Attorney

versus

REGISTRAR TRADE UNION and 2 others

Constitutional Petition No.S-228 of 2011, decided on 26th November, 2014.

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

----S. 9---Constitution of Pakistan, Art. 199---Constitutional petition---Trade union, registration of---Conducting of inquiry---Contention of petitioner was that Registrar of Trade Unions had not complied with the directions of High Court passed in an earlier petition---Registrar of Trade Unions had jurisdiction and authority to deal with the issue of registration of a trade union---Petitioner could challenge such proceedings but only by establishing prima facie departure of required procedure---Dispute with regard to factual determination or determination by some appellate authority could not be agitated through constitutional petition---Petitioner had failed to make out a case by establishing that Authority while passing impugned order had departed from any mandatory requirement of law---Impugned order had been passed within four corners of instructions/directions issued in the earlier constitutional petition---Registrar of Trade Unions had not travelled from his jurisdiction---Constitutional petition was dismissed in circumstances.

United Workers Union Al Abbas Sugar Mills Ltd. (C.B.A) through General Secretary v. Registrar of Trade Unions, Government of Sindh and 3 others 2010 PLC 8; Export Processing Cones v. Registrar of Trade Unions and another 2004 PLC 217; Lucky Textile Mills through Managing Partner v. Mazdoor Union of Lucky Textile Mills through General Secretary and 3 others 2007 PLC 366; Habib Sugar Mills Ltd. through Manager v. Registrar of Trade Unions, Government of Sindh and another 2001 PLC 441; 2006 CLC 288, 2013 YLR 1580, 2008 PCr.LJ 1309, 2009 SCMR 1066, 2010 MLD 523 and 1999 SCMR 16 ref.

United Workers Union Al Abbas Sugar Mills Ltd. (C.B.A) through General Secretary v. Registrar of Trade Unions, Government of Sindh and 3 others 2010 PLC 8; Export Processing Cones v. Registrar of Trade Unions and another 2004 PLC 217; Lucky Textile Mills through Managing Partner v. Mazdoor Union of Lucky Textile Mills through General Secretary and 3 others 2007 PLC 366 and Habib Sugar Mills Ltd. through Manager v. Registrar of Trade Unions, Government of Sindh and another 2001 PLC 441 distinguished.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Scope---Constitutional petition would be competent where there was a question of law: involvement of fundamental rights; or procedural illegality causing prejudice to one but same would neither be a substitute for other available legal remedy nor to that of appellate jurisdiction.

Mehmood Hussain Siddiqui for Petitioner.

Mumtaz Alam Leghari for Respondents.

Ashfaque Nabi Kazi, Asstt. A.-G.

2015 P L C 207

[Sindh High Court]

Before Munib Akhtar and Nazar Akbar, JJ

MCB BANK LTD. through Attorney

versus

TARIQ ZAMEER SIDDIQUI and 2 others

Constitutional Petition No.D-4514 and C.M.A. No.28831 of 2013, heard on 13th March, 2015.

Industrial Relations Act (X of 2012)---

----Ss. 33, 53 & 54---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.12(3)---Constitution of Pakistan, Art.199---Constitutional petition---Dismissal from service---Grievance petition---Jurisdiction of National Industrial Relations Commission---Scope---Employer (Bank) was an "establishment" and respondent a "workman" within the meaning of Industrial Relations Act, 2012---Jurisdiction to adjudicate grievance petition of "workman" lay with the National Industrial Relations Commission---Counsel for the employer bank, had misconceived Cl.(3) of Standing Order 12 of Industrial and Commercial Employment (Standing Orders) Ordinance,1968---Present matter coming within scope of Industrial Relations Act, 2012, proper forum was National Industrial Relations Commission---High Court declined interference under constitutional jurisdiction.

Shoukat Ali Choudhry for Petitioner.

M.A.K. Azmati for Respondent No.1.

Asim Manzoor Khan, D.A.-G. and Abdul Jalil Zubedi, A.A.-G.

Date of hearing: 13th March, 2015.

2015 P L C 259

[Sindh High Court]

Before Muhammad Ali Mazhar and Shaukat Ali Memon, JJ

MUSLIM COMMERCIAL BANK LTD. through Attorney

versus

ABDUL WAHEED ABRO and 2 others

C.P. No.D-1306 of 2012, decided on 26th May, 2015.

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

----S. 46---Constitution of Pakistan, Arts.199 & 10-A---Constitutional petition--- Misconduct--- Inquiry--- Principles--- Grievance petition---Principles of natural justice---Right of fair trial---Due process of law---Employee was dismissed from service against which grievance petition was filed which was accepted and order for reinstatement without back benefits was made by the Labour Court---Appellate Tribunal converted dismissal order into stoppage of increment of three years, however reinstatement order passed by the Labour Court was maintained---Validity---No monetary loss was caused to the employer Bank---Reinstatement order was passed due to defects in the inquiry as out of six witnesses produced in the inquiry the right of cross-examination was afforded to only one witness---Both the courts below observed that the inquiry was defective and the allegations leveled in the charge sheet/show-cause notice were found unproved and unsubstantiated---Purpose for issuing show-cause notice and holding of inquiry was to ascertain whether the charges of misconduct leveled against the employee were proved or not---Where charge of misconduct was proved after an impartial and fair inquiry then employer/management had prerogative to decide the sternness and severity of the punishment which might include dismissal from service---Management had to provide fair opportunity of defence in the inquiry to an accused employee for exercise of such power---Inquiry Officer should explore every avenue so that the inquiry might be conducted in a fair and impartial manner---Inquiry officer should avoid razing and annihilating the principles of natural justice which might ensue the miscarriage of justice---Inquiry could not be treated at par with the court proceedings nor the inquiry officer as judicial officer---Principles of natural justice could not be ignored and once a person/employee was subjected to inquiry and evidence was recorded then it was his right to cross-examine the witnesses and if such right was not made available then testimony of witness against such employee would have no dependability or admissibility to decide the guilt---Right of fair trial and due process had now become fundamental right in the Constitution---Employee was facing miseries of protracted trial who was not responsible or accountable for the defects perceptible and discernible in the inquiry---No rationality existed to order fresh inquiry which would make the employee back to square without his own fault---Constitutional petition was dismissed in circumstances.

A.F. Ferguson & Company v. Sindh Labour Court No.II and others 1989 PLC 484; WAPDA v. Abdul Waheed 2002 SCMR 753; Sultan Hussain v. National Bank of Pakistan and others 2003 PLC (C.S.) 1247 and MCB v. Ghulam Mustafa Channa 2007 PLC 381 distinguished.

(b) Industrial dispute---

----Purpose for issuing show-cause notice and holding of inquiry was to ascertain whether charges leveled against the employee were proved or not.

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

---Arts. 132 & 133---Cross-examination---Object---Purpose of cross examination was to check the credibility of witnesses and to elicit truth or to expose falsehood---Whether evidence of witness was trustworthy or inspiring confidence could be tested only with the tool of cross-examination---When the statement of witness was not subjected to cross-examination its evidentiary value could not be equated and synchronized with such statement that was made subject to the cross-examination---Cross-examination was not just a mere formality but it was a valuable right to bring the truth out---Where no opportunity of cross-examination was provided the testimony of witness would be inadmissible.

(d) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction, invocation of---Scope---Constitutional jurisdiction of High Court could be invoked subject to non-availability of any other equal efficacious and alternate remedy under the law---Article 199 of the Constitution cast obligation on the High Court to act in the aid of law and protect the rights within the framework of Constitution---If there was any error on the point of law committed by the courts below or the tribunal or their decision had taken no notice of pertinent provision of law or was based on misreading or non-reading of evidence then High Court could exercise constitutional jurisdiction subject to non-availability of other adequate remedy---Such extraordinary jurisdiction might be invoked to counter and collide with extraordinary situation---Constitutional jurisdiction was limited to the exercise of powers in the aid of curing or making correction and rectification in the order of the courts or tribunal below passed in violation of any provision of law or as a result of exceeding their authority and jurisdiction or due to exercise of jurisdiction not vesting in them---Jurisdiction conferred under Art.199 of the Constitution was discretionary with the object to foster justice in aid of justice and not to perpetuate injustice---If substantial justice had been done between the parties then such discretion might not be exercised---Concurrent findings recorded by the courts below could not be interfered unless there was gross illegality or irregularity and or violation of law which had caused miscarriage of justice---High Court could not interfere with the findings of facts recorded by the courts below concurrently after right and proper appraisal of evidence and could not substitute and supplement its own findings.

Javed Asghar for Petitioner.

Hussain Bux Balouch for Respondent No.1

Ms. Farhana Mangi, State Counsel.

Date of hearing: 13th January, 2015.

2015 P L C 96

[Balochistan Labour Appellate Tribunal]

Before Abdul Ghias Nousherwani, Member

KHADIM HUSSAIN BHATTI and 2 others

Versus

SERENA HOTEL LABOUR UNION through President and 2 others

Labour Appeal No.24 of 2014, decided on 25th October, 2014.

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

----S. 77---Industrial Relations Act (X of 2012). Ss.2(xviii), 2(xxvi) & 57---Appeal---Complaint regarding embezzlement of funds of the Labour union---Maintainability---Jurisdiction of Labour Court for entertaining the complaint pertaining to Labour union---Scope---Newly elected President of the union filed a complaint against the ex office-bearers of the union regarding embezzlement of union funds--- Ex office-bearers raised objections regarding the maintainability of the complaint in view of promulgation of Industrial Relations Act, 2012---Contention of the newly elected President of the Labour union was that the matter did not fall within the purview of Industrial Relations Act, 2012 and the Labour Court had no jurisdiction to entertain the complaint for the reasons that the said union was local in nature not having its branches in more than one province---Validity---Union in question was not registered under Industrial Relations Act, 2012, its membership was confined only to the extent of one district and not in more than one province---Union in question had been registered under the provisions of Balochistan Industrial Relations Act, 2010 and the provisions of Industrial Relations Act, 2012 were not attracted---Appeal was dismissed in circumstances.

2014 SCMR 535 ref.

2014 PLC 145 and 2014 PLC 148 rel.

Sarfraz Ahmed for Appellants.

Nasir Khan Yousafzai for Respondent No.1.

Arif Abbas representative of Respondent No.2.

Abdul Sattar Khan for Respondent No.3.

Date of hearing: 22nd October, 2014.

2015 P L C 33

[Punjab Labour Appellate Tribunal]

Before Hafiz Abdul Rehman Ansari, Chairman

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

Versus

PRESIDING OFFICER, PUNJAB LABOUR COURT NO.11, D.G. KHAN and another

Labour Appeal No.279 of 2014, decided on 11th July, 2014.

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

----Ss. 46(3) & 47(3)--- Appeal--- Termination of service---Reinstatement---Grievance petition---Services of the employee were terminated on the allegations of general nature---Detailed inquiry report was not exhibited in evidence and inquiry officer had not appeared in witness box to record his statement in support of inquiry held by him---Effect---Contention of the employee was that the impugned order was passed by the incompetent authority without having any lawful jurisdiction, therefore, the same was void ab initio---Validity---Termination order was passed by incompetent authority i.e. Principal of the school whereas Board of Governors being the appointing authority and appointing authority was competent to pass such termination order---Disciplinary proceedings were coram non judice and void ab initio on account of such illegal proceedings---Labour Appellate Tribunal upheld the judgment passed the Labour Court and dismissed the appeal accordingly.

(b) Void order---

----Limitation---Scope---Termination order passed wholly without jurisdiction was void ab initio and no limitation ran against void order.

M. Anwar Khan Sherwani for Appellant.

Malik M. Tariq Rajwana for Respondents.

Date of hearing: 11th July, 2014.

2015 P L C 115

[Punjab Labour Appellate Tribunal]

Before Justice (Rtd.) Hafiz Abdul Rehman Ansari, Chairman

MUHAMMAD INTIZAR

Versus

THAL LIMITED (formerly known as Thal Jute Mills Limited), Muzaffargarh through Factory Manager

Appeal No.MN-442 of 2012, decided on 29th May, 2014.

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

----S. 30---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.10-B---Appeal---Claim for payment of amount of group insurance---Appellant during the course of his employment suffered from paralysis and he was determined 80% invalid through medical certificate issued by Medical Superintendent, DHQ. Hospital---Appellant filed application for grant of group insurance money, which was dismissed by the Commissioner Workmen's Compensation on the basis of a letter maneuvered by respondent-establishment, which culminated in filing of appeal---Appellant's contention was that as his working capacity had become impaired by 80% during the course of his employment, therefore, he was entitled for payment of amount of group insurance---Plea of respondent-establishment was that chit/certificate issued by outdoor section of DHQ Hospital could not be used as a declaration of disability in any court of law---Validity---Commissioner while adjudicating upon the matter did not summon Medical Superintendent and Incharge of outdoor section, who issued the certificate, which was countersigned by Medical Superintendent, therefore, said certificate remained un-rebutted by the respondent-establishment---Manager of Mills maneuvered a letter from Medical Superintendent that chit/ certificate issued by outdoor section could not be used as a declaration of disability in any court of law--- Medical Superintendent, who issued that letter, did not appear before trial court for cross-examination---Commissioner committed mistake and wrongly rejected the claim of the appellant---Order passed by the Commissioner was set aside and appeal was accepted in circumstances.

Muhammad Habib Khan v. Pakistan Tobacco Co, Ltd. PLD 1991 SC 183 and Ahmed Textile (Pvt.) Ltd. v. Mst. Saddiqan Bibi and another 2006 PLC 656 ref.

Karachi Transport Corporation, Karachi v. Kajeer Khan and another 1993 PLC 296; B.P. Biscuit Factory Ltd., Karachi v. Wealth Tax Officer and another 1996 SCMR 1470 and Ahmed Textile (Pvt.) Ltd. through Manager v. Mst. Saddiqan Bibi and another 2006 PLC 565 distinguished.

Malik Muhammad Tariq Rajwana for Appellant.

Malik Ghulam Qadir and Malik M. Yousaf for Respondent.

Date of hearing: 29th May, 2014.

2015 P L C 130

[Punjab Labour Appellate Tribunal]

Before Justice (Rtd.) Hafiz Abdul Rehman Ansari, Chairman

AKRAM ALI (KNOWN/RECORDED AS MUHAMMAD AKRAM)

Versus

PRINCIPAL, MISALI ZAKARIYA HIGHER SECONDRY

SCHOOL DINPUR, MUZAFFARGARH

Labour Appeal No.420 of 2014, decided on 15th August, 2014.

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

----Ss. 46(3) & 1(h)---Relationship of employee and employer---Determination of--- Grievance petition dismissal of--- Appeal---Reinstatement of appellant---Appellant claimed to be the employee (English teacher) of the respondent-institution and owing to a dispute regarding monthly salary, the gate of the institution was closed for him---Appellant filed grievance petition before the labour court, where respondent institution took the plea that the appellant was not employee of the institution and Labour Court had no jurisdiction to adjudicate upon the matter---Validity---Respondent institution by not producing attendance register, salary register and other record had withheld best evidence to prove that the appellant was not the employee of the institution---Respondent-institution had not raised any objection regarding employment card (Exhibited) and the finding of Labour Court that the appellant was not employee of the respondent-institution was set aside---Appellant's statement that he was appointed was not cross-examined by the respondent institution and the part of statement of examination-in-chief which was not cross-examined was deemed to be admitted---Respondent-institution was admittedly a private institution and the appellant could knock the door of Labour Court for redressal of his grievance---Labour Court ignored documentary evidence produced by the appellant in support of his pleadings and on account of mistake of court, party could not be penalized---Order of the Labour Court was set aside and appeal was accepted in circumstances.

2002 PLC 326 and 2001 PLC 460 ref.

PLD 2004 SC 182; 2007 PLC 75 and 1990 PLC 675 rel.

Malik M. Tariq Rajwana for Appellant.

Abdul Rehman Khan Laskani for Respondent.

Date of hearing: 15th August, 2014.

2015 P L C 137

[Punjab Labour Appellate Tribunal]

Before Asad Munir, Member

Syed ALI SALMAN

Versus

EDITOR, PAKISTAN BBC URDU, ISLAMABAD and others

Revision Petition No.LHR-887 of 2014, decided on 19th December, 2014.

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

----Preamble---Industrial Relations Act, 2012, which was enacted within the legislative domain of the Parliament, was a valid piece of Legislation---Industrial Relations Act, 2012 was not ultra vires the Constitution and Majlis-e-Shoora (Parliament) did not lake legislative competence to pass the Act.

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

----S. 2(xxxiii)--- 'Workman'--- Status--- Determination of--- Every workman who was in service was a 'workman', while a former workman, was to be regarded as a workman only, if his services were terminated in connection with, or as a consequence of an industrial dispute---Former workman, whose services were terminated, not in connection with or as a consequence of an industrial dispute, was not a workman in terms of S.2(xxxiii) of Industrial Relations Act, 2012.

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

----S. 33---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.12(3)---Jurisdiction of National Industrial Relations Commission---Scope---Remedy for a workman, aggrieved by his dismissal or termination---Exclusive jurisdiction of National Industrial Relations Commission under S.33 of Industrial Relations Act, 2012, was confined to the cases, where a workman had a grievance, while still in service; or his grievance was that his services had been illegally terminated, but in connection with or as a consequence of the industrial dispute---Such workman, unless his services were terminated in connection with or as a consequence of an industrial dispute, could not approach the National Industrial Relations Commission under S.33(4) of Industrial Relations Act, 2012 for redressal of his grievance---Standing Order 12(3) of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 provided a remedy to a workman aggrieved by his dismissal, or termination; which was neither in connection with, nor as a consequence of an industrial dispute---Standing Order 12(3) provided a remedy in case the services of a workman were terminated in violation of the rights or services safeguards guaranteed by the Standing Order Ordinance, 1968---Such remedy was an independent remedy, which was not dependant on or controlled by the provisions of Industrial Relations Act, 2012, which were not at all relevant, or applicable where a workman was dismissed or terminated neither in connection with, nor as a consequence of an industrial dispute---Provisions of Industrial Relations Act, 2012, being not applicable, would not bar the remedy against dismissal or termination provided under S.O.12(3) of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968.

PTCL v. Member NIRC and others 2014 SCMR 535; Pakistan Workers Federation. Balochistan v. Government of Pakistan through Federal Secretary, Ministry of Law and Justice, Islamabad 2014 PLC 351; Mustekhum Cement Limited through Managing Director v. Abdul Rashid and others 1998 SCMR 664; Mumtaz Ali v. Chairman N.-W.F.P. Labour Appellate Tribunal and 2 others 1995 PLC 738 and Pak Arab Refinery Limited v. Muhammad Rasheed 1999 SCMR 373 ref.

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

----Ss. 2(xxxiii) & 33---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(b)(f) & S.O.12(3)---Redressal of individual grievance---Workman who was still in service of Trans Provincial Establishment, could approach the National Industrial Relations Commission under S.33 of Industrial Relations Act, 2012 to redress any individual grievance---Such a workman could be aggrieved because he had not been regularized in service; his increment or promotion had been withheld, had been demoted or had been denied any right guaranteed or secured to him by or under any law, or any award or settlement---Former workman of a Trans Provincial Establishment, could also avail the remedy under S.33 of Industrial Relations Act, 2012 to challenge the termination of his services, provided such termination was connected with, or had resulted from a industrial dispute---Former workman of a Trans Provincial Establishment, could not challenge his termination under S.33 of Industrial Relations Act, 2012, where his termination was not in connection with, and in consequence of an industrial dispute; because he was not a workman as defined in S.2(xxxiii) of Industrial Relations Act, 2012---Such an employee could avail the remedy under S.O.12(3), if he was a person employed in manual or clerical work in an industrial or a commercial establishment, even if it was a Trans Provincial Establishment---In the absence of necessary amendment in the Standing Orders Ordinance, 1968, it could not be said that National Industrial Relations Commission had the exclusive jurisdiction, where a workman of a Trans Provincial Establishment had been dismissed, or his services had been terminated, but not in connection with or in consequence of an industrial dispute---Labour Court retained its jurisdiction to adjudicate upon the employee's grievance petitions, even after the enactment of the Industrial Relations Act, 2012---Impugned order was set aside with direction to the Labour Court to decide the grievance petition on merits in accordance with law.

Trustees of the Port of Karachi v. Muhammad Saleem 1994 SCMR 2213 ref.

Asmat Kamal Khan for Petitioner.

Syed Hassan Ali Raza for Respondents.

2015 P L C 251

[Punjab Labour Appellate Tribunal]

Before Justice Ch. Muhammad Tariq, Chairman

MUHAMMAD ABBAS ALI

versus

M.D. WASA, GUJRANWALA

Application No.GA-679 of 2015, decided on 27th July, 2015.

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

----S. 47---Jurisdiction of Punjab Labour Appellate Tribunal to review its orders---Applicant sought review of order passed by the Labour Appellate Tribunal---Application for review did not seek correction of an error in the impugned order but prayed for passing an altogether new order---Validity---Vast distinction existed between "rectification" and "review" and in the Punjab Industrial Relations Act, 2010, remedy of review had not been provided, therefore after signing of order and announcing it, the same could not be reopened through review application and could neither be annulled, set aside or modified through an application for review as the same had not been provided in the statute---Application was dismissed.

2003 CLC 1189 and Muzaffar Ali v. Muhammad Shafi PLD 1981 SC 94 rel.

Applicant in person.

2015 P L C 255

[Punjab Labour Appellate Tribunal]

Before Justice Ch. Muhammad Tariq, Chairman

ISLAMABAD ELECTRIC SUPPLY COMPANY (IESCO) through Director General (Admin.) and others

versus

MUKHTAR AHMED QURESHI

Labour Appeal No.RI-352 of 2015, decided on 24th July, 2015.

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

----Ss. 33, 44 & 47---Change in date of birth in service record---Appellant/employer impugned order of Labour Court whereby grievance petition of the employee was allowed, and change in date of birth in the service record of the employee was allowed---Validity---Employee was appointed on 1-6-1973 and his date of birth was recorded as 1-6-1953 and 9-10-1954 and perusal of record showed that at the time of joining, he was neither matriculate nor had a CNIC and the employee on 21-5-2014, approached the Labour Court for correction of his date of birth---Pakistan Water And Power Development Authority Employees Date of Birth Rules, 1994 were not applicable in the present case, and in such circumstances, only a civil court could make a declaration in relation to determination of date of birth---Contention of correction of date of birth at such belated stage was not warranted under the law, as a government employee could not, under the relevant rules, make any application for change in his date of birth after two years of joining service and the authenticity of date of birth in documents, could not be challenged beyond such period of two years---Order of Labour Court was set aside and appeal of employer was allowed, accordingly.

Syed Iqbal Haider v. Federation of Pakistan and another 1998 SCMR 1494 and M.R. Khalid v. Chief Secretary, Punjab and another 1994 SCMR 1633 rel.

Saeed Raza for Appellants.

Respondent in person.

2015 P L C 88

[Sindh Labour Appellate Tribunal]

Before Justice (Rtd.) Ali Muhammad Baloch, Member

MUHAMMAD HASSAN and 43 others

Versus

Messrs SHAHMURAD SUGAR MILLS LTD. through General Manager

Appeals Nos.HYD-193 L.A.83/2006) to HYD-236 (L.A.126/2006) of 2010, decided on 2nd September, 2014.

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

----S.O. 14---Factories Act (XXV of 1934), S.4---Appeal---Termination of seasonal workers---Effect---Preferential right of re-employment---Scope---Contention of the appellants (seasonal workers) was that they were permanent seasonal workers, therefore, they had preferential right of re-employment---Plea of the establishment (Sugar Mill) was that appellants were not "seasonal workers", rather they were temporary workers deployed only for a season vide their appointment letter and their employment was only current season and they were not entitled for re-employment in subsequent crushing season and they were relieved after clearance of their dues in full and final settlement---Validity---Employer Mill was exclusively engaged in manufacturing sugar which came within the definition of "seasonal factory" under the provision of the Factories Act, 1934; Appellants (seasonal workers) were employed for a particular season and at the end of season their services were terminated by issuing written order and after giving them legal emoluments---Expression word "re-employment" in the Standing Order 14 meant fresh employment and not the reinstatement and previous service of the worker on re-employment could not be taken into account for determining their right, emoluments and even privileges for their re-employment---Appellants were deployed as seasonal/temporary workers and they could not claim reinstatement of their services as a matter of right---Terms and conditions of previous service could not be allowed to be counted as a right for re-employment---Seasonal workers had been given right of preference for re-employment, but that right of re-employment was contingent upon employer proposing to take into employment any other new person or juniors to the appellants in the employment and such right was not absolute, but was depend upon the needs of the employer, because preference could only be claimed when the employer proposed to take into the employment any retrenched worker on availability of vacancy---Labour Court's findings appeared to be well reasoned and appellants had failed to point out any illegality to upset the findings of the Labour Court, therefore, judgment of the Labour Court was maintained and all the appeals were dismissed in circumstances.

1993 CLC 1029; 1998 PLC 83; 1989 PLC 1013 and SBLR 2006 SC 95 distinguished.

1992 PLC 572; 1990 PLC 325; 2003 SCMR 74; 2000 PLC 636; 1996 CLC 1119; AIR 1996 SC 632 and Ghulam Mustafa v. Shahmurad Sugar Mills 2009 PLC 83 ref.

Pakistan International Airlines v. Chairman, Sindh Labour Appellate Tribunal 1980 PLC 975; Abdul Sattar and others v. Sui Northern Gas Pipe Line Limited 2001 SCMR 1935 and Iqbal Ahmed v. Second Sindh Labour Court and others 1980 PLC 316 rel.

Ch. Muhammad Ashraf Khan and Ch. Azhar Ellahi for Appellants.

Mehmood Abdul Ghani for Respondents.

Date of hearing: 22nd May, 2014.

2015 P L C 101

[Lahore High Court]

Before Abid Aziz Sheikh, J

FARZANA ROOHI

Versus

DIVISIONAL SUPERINTENDENT, PAKISTAN RAILWAYS and 4 others

Writ Petition No.13985 of 2014, heard on 10th July, 2014.

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

----S. 3---Claim of compensation---Pre-conditions---Three expressions used in S.3 of Workmen's Compensation Act, 1923, are material (i) "personal injury" (ii) "accident" (iii) "arising out of and in the course of employment"---In order to claim compensation under S.3 of Workmen's Compensation Act, 1923, claimant must meet all the three material facts.

(b) Words and phrases---

----"Accident"---Defined.

Black's Law Dictionary 8th Edition rel.

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

----S. 3---Constitution of Pakistan, Art.199---Constitutional petition---Term 'accident'---Scope---Father of petitioner was a train driver who died due to heart attack when he was on duty and driving train---Authorities advised the petitioner to approach Court for constitution of Medical Board to ascertain cause of death of her father, after exhuming of his dead body eight years after his death---Validity---When petitioner's father suffered heart attack he was not only away from his family but also away from his country alone in a foreign country in performance of his official duties, which could also be a significant contributory factor in case of his death, as if at the time of heart attack, he was with his family and also in his own country, there could be reasonable expectation of timely and better medical aid which could avoid his unfortunate death due to heart attack---Death of father of petitioner amounted to "accidental death" and fell within the purview of S.3 of Workmen's Compensation Act, 1923, for the purpose of grant of compensation---Authorities had wrongly advised the petitioner to approach Court for constitution of Medical Board to ascertain cause of death of her father, after exhuming of his dead body eight years after his death---High Court directed the authorities to pay compensation to petitioner and other legal heirs of deceased workman as per their entitlement under law and set aside the order passed by authorities---Petition was allowed accordingly.

Employer/Manager Fine Gas Limited, Lahore v. Rana Ghulam Yasin and another 2013 PLC 65; Divisional Superintendent, Pakistan Railways Sukhur and another v. Muhammad Murad and another 1985 PLC 973; Divisional Superintendent, P.W.R. Multan v. Sharifan Bibi 1976 PLC 708; Bai Diva Kaluji v. Silver Cotton Mills Ltd. AIR 1956 Bombay 424 and Parwatibai v. Raikumar Mills, Indore AIR 1959 Madhya Pardesh 281 ref.

Mushtaq Ahmad Mohal for Petitioner.

Salman Kazmi for Respondents Nos.1 to 4.

Mian Irfan Akram, Dy. A.-G. for Respondent No.5.

Date of hearing: 10th July, 2014.

2015 P L C 107

[Lahore High Court]

Before Ijaz ul Ahsan, J

MUNAWAR HUSSAIN SHAH and others

Versus

PRIVATISATION COMMISSION and others

C.O.S.No.1 of 2007, heard on 27th May, 2014.

Privatization Commission Ordinance (LII of 2000)---

----Ss. 28 & 29---Golden Handshake Scheme---Regular worker---Defendant company was privatized by government and plaintiffs were its ex-employees---Grievance of plaintiffs was that they were regular workers and were entitled to all benefits under Golden Handshake Scheme---Validity---Nothing by way of documentary or oral evidence was placed on record to show that plaintiffs were unconfirmed employees, daily wagers, contract employees or trainees---Sole reliance of defendant's case was on interpretation of word 'regular workers' which had different connotation than that argued for defendants in the context of the language of Golden Handshake Scheme---Plaintiffs were entitled to payment of four basic salaries for each completed year of service upto 15-5-2006, in accordance with paragraph-1 of the terms and conditions of Golden Handshake Scheme read with the list furnished by defendant---High Court declared that action of defendant of calculating payments under Golden Handshake Scheme from the date of regularization and not from the date of appointment was illegal and without lawful authority---High Court directed the company to make payments of difference between payments already made and the amounts payable, calculated on the basis of date of appointment---Suit was decreed accordingly.

Shaheryar Sheikh for Appellants.

Ch. Muhammad Suleman for Respondent No.1 along with Azeem Qadir Haque, Financial Consultant Privatization Commission.

Bilal Bashir for Counsel for Respondents Nos.2 and 3.

Muhammad Zikriya Sheikh, D.A.-G.

Date of hearing: 27th May, 2014.

2015 P L C 155

[Lahore High Court]

Before Shahid Karim, J

SHAHREZ ABDULLAH KHAN ROKHRI through Traffic Manager

versus

SUPERINTENDENT OF POLICE, CIVIL LINE, LAHORE and 7 others

Writ Petition No.6996 of 2014, decided on 22nd January, 2015.

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

----Ss. 3(b) & 15---Constitution of Pakistan, Art.199---Constitutional petition---Payment of wages---Responsibility, determination of---Petitioner assailed warrant of arrest on the plea that he was not employer from whom the recovery was to be made---Validity---Held, it was obligatory upon Commissioner Compensation/Authority under Payment of Wages Act, 1936, to determine as a threshold question against whom proceedings for recovery had to be initiated and set into motion---For such purpose the Commissioner was to make inquiries regarding current ownership and shareholders of industrial establishment in question---Either the employer or other person responsible for payment of wages could be proceeded against and it had to be determined as a fact before embarking upon recovery proceedings under S.15(5) of Payment of Wages Act, 1936, which provision had given power of attachment and sale of immovable property of employer---High Court set aside the warrant of arrest issued against petitioner and matter was remanded to Authorities for determination of the issue regarding identity of employer or other person responsible for payment of wages of the company---Petition was allowed in circumstances.

Malik Matee Ullah for Petitioner.

M. Ishaque Malik for Respondents Nos.6 to 8.

Ms. Samia Khalid, A.A.-G.

2015 P L C 166

[Lahore High Court]

Before Shujaat Ali Khan, J

MANAGING DIRECTOR, MOTELS, PTDC and others

versus

PRESIDING OFFICER and others

Writ Petition No.5957/BWP of 2012, decided on 19th November, 2014.

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

----Ss. 44 (4) (c) (f), 33 (8) & 47---Industrial Relations Act (X of 2012). S.75---Constitution of Pakistan: Art.199---Constitutional petition---Maintainability---Implementation of order for reinstatement of an employee passed by the Labour Court---Jurisdiction of Labour Court---Scope---Labour Court directed the employer to issue reinstatement order of the employee in the light of its judgment with further direction to pay outstanding wages---Validity---Jurisdiction of a forum should be determined according to status of the employee---If employer had its establishment in more than one Provinces then jurisdiction of Labour Court was barred rather National Industrial Relations Commission had the exclusive jurisdiction---Industrial Relations Act, 2012 was in field at the time of passing of impugned order---Labour Court had become functus officio to pass any order on the petition filed by the employee---Proceedings before Labour Court were coram non judice after coming into field the Industrial Relations Act, 2012---Order passed by Labour Court was not authentic as aggrieved person could challenge the same before other forum in the shape of review or revision--High Court being custodian of Fundamental Rights of the citizens had the power to determine the jurisdiction of a forum to proceed with any matter---Constitutional petition was not maintainable when aggrieved person had alternate remedy but when order impugned was patently illegal or coram non-judice then same could not be allowed to let go simply for the reason that person challenging the same had alternate remedy---Impugned order did not fall within the category of orders which were revisable under S.47 of Punjab Industrial Relations Act, 2010---Constitutional petition was maintainable in circumstances---Employee was entitled for implementation of orders passed in his favour but when employer had trans-provincial status then jurisdiction of Labour Court in any matter was barred---Labour Court had no jurisdiction to pass any order on the petition filed by the employee---Impugned order was set aside and petition filed by the employee was directed to be transferred to National Industrial Relations Commission for its adjudication within specified period---Constitutional petition was accepted in circumstances.

Pakistan Telecommunication Company Ltd. v. Member N.-W.F.P. and others 2014 SCMR 535 ref.

Pak Arab Refinery Ltd. v. Muhammad Rashid 1999 SCMR 373; Mustehkum Cement Ltd. v. Abdul Rashid and others 1998 PLC 172; Javed Ahmad Bhutto v. Federation of Pakistan through Secretary Ministry of Law, Islamabad and 2 others PLJ 2013 Kar. 67(DB); Pakistan Telecommunications Company Ltd. through President and 5 others v. Azhar Ali Babar and 2 others 2013 PLC 345; Ali Murad v. National Bank of Pakistan through Board of Directors 2012 PLC 347; Muhammad Anwar Mumtaz v. Pak Arab Refinery Ltd. (PARCO) 2009 PLC 13 and Fauji Sugar Mills through General Manager v. Mehmood Ahmed 2007 TD (Labour) 193 distinguished.

Member (Colonies) Board of Revenue, Punjab Lahore and others v. Muhammad Shafi and others 2008 SCMR 589; Pakistan Defence Officers Housing Authority Karachi v. Shamim Khan through L.Rs. and 5 others PLD 2005 SC 592; Ahad Sharif alias Muhammad Ahad and another v. Javad Tariq and others 2006 SCMR 1356; Malik Nazar Hussain v. National Bank of Pakistan and another 2004 SCMR 28 and Muhammad Hafeez v. Judge Family Court and others 2013 CLC 470 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Scope---Constitutional petition was not maintainable when aggrieved person had alternate remedy but when order impugned was patently illegal or coram non judice then same could not be allowed to let go simply for the reason that person challenging the same had alternate remedy.

Shabbir Ahmad Bhutta for Petitioner.

Mukhtar Ahmad Malik for Respondent No.2.

2015 P L C 186

[Lahore High Court]

Before Mahmood Ahmad Bhatti, J

Messrs COCA-COLA BEVERAGES PAKISTAN LIMITED through Assistant Legal Manager

versus

GOVERNMENT OF PUNJAB through Secretary Labour and Manpower Department, Lahore and 3 others

Writ Petitions Nos.1956 to 1969 of 2014, decided on 10th December, 2014.

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

----Ss. 15 (2) & 17---Constitution of Pakistan, Art.199---Constitutional petition---Alternate remedy, availability of---Petitioner company joined proceedings before Authority appointed under Payment of Wages Act, 1936, and the Authority decided against petitioner---Instead of availing remedy of appeal, petitioner invoked Constitutional jurisdiction of High Court, assailing the decision on the plea of jurisdiction---Validity---Once petitioner company entered appearance before Authority appointed under Payment of Wages Act, 1936: and had presented its case, it was to look forward instead of looking back---When orders were passed against petitioner, it had remedy open to it under S.17 of Payment of Wages Act, 1936---High Court in exercise of Constitutional jurisdiction, declined to interfere in the order passed by the Authority as alternate remedy was available to petitioner company under Payment of Wages Act, 1936---Petition was dismissed in circumstances.

Town Committee Gakhar Mandi v. Authority under the Payment of Wages Act Gujranwala and 57 others 1993 PLC 156; Messrs Halcro-ulg, Engineering Consultants, Pat Feeder Canal Rehabilitation and Improvement Project, WAPDA and others v. The "Authority" under the Payment of Wages Act, Quetta and others 1999 PLC 362; Arag Industries Ltd. v. Payment of Wages Act Authority and others 1982 PLC 567; Farzand Raza Naqvi and 5 others v. Muhammad Din through Legal Heirs and others 2004 SCMR 400; Nagina Silk Mill, Lyallpur v. The Income Tax Officer A-Wards, Lyallpur and The Income-Tax Appellate Tribunal, Pakistan PLD 1963 SC 322; Premier Cloth Mills Ltd., Lyallpur v. The Sales Tax Officer, Investigation Circle-II, Lahore and others 1972 SCMR 257; Corruption in Hajj Arrangements PLD 2011 SC 963; Utility Stores Corporation of Pakistan Limited v. Punjab Labour Appellate Tribunal and others PLD 1987 SC 447; Telephone Industries of Pakistan (Pvt.) Ltd. through Managing Director and another v. Commissioner Workmens' Compensation, Hazara Division at Haripur and another 2012 PLC 155; Lawrencepur Woollen and Textile Mills Ltd. v. Government of the Punjab and others PLD 2004 SC 416; Suo Motu Case No.4 of 2010 PLD 2012 SC 553; Dr. Akhtar Hassan Khan and others v. Federation of Pakistan and others 2012 SCMR 455; Municipal Corporation, Sialkot through the Administrator v. Younis Mashi and others 1998 PLC 336; Town Committee Gakhar Mandi, Gujranwala v. Authority under the Payment of Wages Act Gujranwala and 57 others PLD 2002 SC 452; Khali Khan v. Haji Nazir and 4 others PLD 1997 SC 304 and Muhammad Ishfaq v. State PLD 1973 SC 368 ref.

Syed Match Company Ltd through Managing Director v. Authority under Payment of Wages Act and others 2003 SCMR 1493 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Such jurisdiction is discretionary in nature and even if orders assailed are illegal, void and passed without jurisdiction, High Court is not bound to interfere with the same.

Nawab Syed Raunaq Ali and others v. Chief Settlement Commissioner and others PLD 1973 SC 236 and Muhammad Baran and others v. Member (Settlement and Rehabilitation), Board of Revenue, Punjab and others PLD 1991 SC 691 rel.

Jahanzaib Inam for Petitioner.

Shahzad ul Haq for Respondent No.2.

Amir Aziz Qazi for Respondent No.3.

2015 P L C 218

[Lahore High Court]

Before Mrs. Ayesha A. Malik, J

Messrs MACCA SUGAR MILLS (PVT.) LIMITED through General Manager

versus

DISTRICT LABOUR OFFICER, KASUR and 4 others

Writ Petition No.18171 of 2014, decided on 24th July, 2014.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Termination of service of employee---Proceedings against the petitioner-employer by the Labour Officer on the application of employee for reinstatement in service---Scope---Employee was terminated from service by the employer---Such termination of service should be pleaded before the competent forum---Application was moved by the employee before the employer for reinstatement in service---Matter was being inquired into by the District Labour Officer who had no power to do so---No law existed on the basis of which said official had exercised jurisdiction in the matter---Any inquiry which had commenced in the matter was illegal and contrary to law---District Labour Officer was restrained from initiating any proceedings against the employer on the application for reinstatement by employee---Constitutional petition was accepted to circumstances.

Abdul Rauf for Petitioner.

Mrs. Samia Khalid, A.A.-G. with M. Ishaq Haider, Assistant Director, Welfare, Kasur for Respondents.

2015 P L C 232

[Lahore High Court]

Before Ali Akbar Qureshi, J

PUNJAB SEED CORPORATION through Managing Director and another

versus

LABOUR COURT NO.9, MULTAN through Presiding Officer and 2 others

W.P.No.8208 of 2013 and 94 other Petitions, decided on 27th January, 2015.

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

----Sched, Para 1(b)(c)---'Permanent Workman'---Definition---When a worker is appointed against a project which is likely to continue for more than nine months and he remains in service for nine months, such worker will attain status of regular employee---Service rules of employer authority do not determine status of workman and his regularization but by Para 1(b)(c) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968---Denial of employer authority to regularize services of such worker as permanent workman is not permissible in law.

Punjab Seed Corporation and 2 others v. Punjab Labour Appellate Tribunal and 2 others 1995 PLC 539; Executive Engineer, Central Civil Division, Pak. P.W.D. Quetta v. Abdul Aziz and others PLD 1996 SC 610; Tehsil Municipal Administration v. Muhammad Amir 2009 PLC 273; Pakistan International Airlines v. Sindh Labour Court No.5 and others PLD 1980 SC 323; Izhar Ahmad Khan and another v. Punjab Labour Appellate Tribunal, Lahore and others 1999 SCMR 2557; Managing Director, Sui Southern Gas Company Ltd., Karachi v. Ghulam Abbas and others PLD 2003 SC 724 Tehsil Municipal Administration, Rahimyar Khan and others v. Hanif Masih and others 2008 SCMR 1058; Province of Punjab through Secretary Communication and Works Department and others v. Ahmad Hussain 2013 SCMR 1547; WAPDA and others v. Khanimullah and others 2000 SCMR 879 and Secretary to the Government of the Punjab, Forest Department, Punjab, Lahore through Divisional Forest Officer v. Ghulam Nabi and 3 others PLD 2001 SC 415 rel.

Managing Director, Sui Southern Gas Company Ltd., Karachi v. Ghulam Abbas and others PLD 2003 SC 724 ref.

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

----S. 41---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), Sched. Para 1(b) & (c)---Employees on work charge basis---Regularization of service---Grievance petition---Labour Court and Labour Appellate Tribunal accepted grievance petition of employees---Validity---Employees were working from last four to twenty eight years on permanent posts without any break or gap in their service on work charge basis---Employees, in circumstances, were entitled to regularization of their services having attained status of 'permanent workman' by afflux of time---Service rules could only be formulated to run domestic affairs of employer authority and not the status of employees and such rules would only apply prospectively.

(c) Constitution of Pakistan---

----Art. 199---Constitutional petition---Fresh plea, raising of---Scope---When the petitioner had not pleaded a ground before lower forums, he was precluded by law to agitate the same under Constitutional jurisdiction of High Court.

(d) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction---Scope---Concurrent findings of facts recorded by courts below---When the courts below have recorded concurrent findings, these cannot be interfered with in constitutional jurisdiction unless the forums has acted without lawful authority---Relief being discretionary and equitable under the Constitutional jurisdiction cannot be granted unless some jurisdictional defect, legal infirmity or irregularity is pointed out in the judgments of courts below.

General Manager, Pearl Continental Hotel, The Mall, Lahore/Rawalpindi v. Farhat Iqbal PLD 2003 SC 952; Pakistan Defence Officers Housing Authority, Karachi v. Shamim Khan through L.Rs. and 5 others PLD 2005 SC 792; State Life Insurance Corporation and others v. Jaffar Hussain and others PLD 2009 SC 194; Rai Ashraf and others v. Muhammad Saleem Bhatti and others PLD 2010 SC 691; Pakcom Limited and others v. Federation of Pakistan and others PLD 2011 SC 44 and Tehsil Municipal Officer, TMA Kahuta and another v. Gul Fraz Khan 2013 SCMR 13 rel.

Mushtaq Ahmad Mohal, Hafiz M. Abu Bakar Ansari and Malik Muhammad Tariq Rajwana for Petitioner.

Ch. Saleem Akhtar Waraich, Qamar-uz-Zaman Butt, Nadeem Parwaz, Tariq Mehmood Dogar and Ch. Muhammad Akbar Sajid for Respondents.

Date of hearing: 23rd December, 2014.

2015 P L C 253

[Lahore High Court]

Before Faisal Zaman Khan, J

Messrs D.G. KHAN ELECTRIC COMPANY LTD. through Authorized Director

versus

VICE COMMISSIONER, PUNJAB EMPLOYEES' SOCIAL SECURITY INSTITUTION and another

Social Security Appeal No.1 of 2006, heard on 21st May, 2015.

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

----Ss. 57 & 64(2)---Social Security contribution---Concurrent findings of fact by two Courts below---Appellant company did not pay contribution towards social security for 107 workers---Both the Courts below held appellant responsible to pay social security contribution---Validity---Finding of fact was recorded by both the fora below by holding in clear and unequivocal terms that appellant and another company were one entity working under one roof---Appellant had acknowledged that land upon which power generation facility was established was owned and leased out by the other company---Both the companies had mutual entry and exit and were working tandem---Appellant failed to distinguish that such finding was illegal and there was a question of law which required any interpretation of High Court---High Court declined to interfere in judgments passed by two courts below---Appeal was dismissed in circumstances.

Farid Company (Pvt.) Ltd. and others v. Vice Commissioner, PESSI and others 2012 SCMR 1428 and Nestle Milk Pack (Pvt.) Ltd. through Secretary v. Vice Commissioner, PESSI, Head Office, Lahore and 3 others 2003 PLC 80 ref.

Ms. Ayesha Hamid for Appellant.

Respondents: Ex parte.

Date of hearing: 21st May, 2015.

2015 P L C 271

[Lahore High Court]

Before Shahid Karim, J

MUHAMMAD BOOTA

versus

PUNJAB LABOUR APPELLATE TRIBUNAL, LAHORE and 9 others

W.P.No.12001 of 2011, decided on 2nd February, 2015.

Industrial Relations Ordinance (XCI of 2002)---

----Ss. 46 & 78---Limitation Act (IX of 1908), S.5---Constitution of Pakistan, Art.199---Constitutional petition---Dismissal of grievance petition on ground of limitation---Delay, condonation of---Grievance petition was concurrently dismissed by the Labour Court and Appellate Tribunal being barred by limitation---Validity---Question of limitation, was to be determined by the court, irrespective of the fact, whether it was raised or not---Condonation, could be ordered, even if there was no application before the court---Issue of limitation being a mixed question of law and fact, it was incumbent upon the court to afford opportunity to the person claiming condonation to explain the delay---Court, particularly in labour matters, had to take a pragmatic and liberal view on the question of limitation and could not be bogged down, or circumscribed by strict rules of technical and legal formalities---Superior courts, had always taken a liberal view of such matters in the context of labour laws, as the workers and workmen who belonged to a class where it was not expected of them to be well versed in the intricacies of formal law---Impugned order was set aside and case was remanded to the Labour Court for decision on merits.

Tanveer Hussain v. Ravi Ryan Limited through Managing Director and others 2007 SCMR 737; Managing Director, Sui Southern Gas Company Limited, Karachi v. Ghulam Abbas and others 2003 PLC (C.S.) 796; 2008 SCMR 1516; Forbes Forbes Campbell & Co. Ltd., Karachi and 3 others v. Habibur Rehman and 2 others 1982 SCMR 651; Managing Director, Sui Southern Gas Company Limited, Karachi v. Ghulam Abbas and others PLD 2003 SC 724; Muhammad Husnain Munir and others v. Sikandar and others PLD 1974 SC 139; Zulfikar Khan Awan v. The Secretary, Industries and Mineral Development, Government of the Punjab, Lahore and 8 others 1974 SCMR 530; Hakim Muhammad Buta and another v. Habib Ahmad and others PLD 1985 SC 153; Almas Ahmad Fiaz v. Secretary Government of the Punjab Housing and Physical Planning Development, Lahore and another 2006 SCMR 783; Messrs Nida-e-Millat, Lahore v. Commissioner of Income Tax, Zone-I, Lahore 2008 SCMR 284 and Raja Khan v. Manager (Operation) Faisalabad Electric Supply Company (WAPDA) and others 2011 SCMR 676 ref.

Ms. Irum Sajjad Gull for Petitioner.

Imtiaz Kaifi, Addl. A.-G.

Mian Abdul Rashid for Respondents Nos.3 to 8.

2015 P L C 279

[Lahore High Court]

Before Mrs. Ayesha A. Malik and Faisal Zaman Khan, JJ

Sheikh AAMAR

versus

SUPERINTENDING ENGINEER, 1st PROVINCIAL BUILDING CIRCLE, LAHORE and 2 others

Intra-Court Appeal No.527 of 2002 in Writ Petition No.17470 of 1998, heard on 30th March, 2015.

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

----S.O. 12(3)---Constitution of Pakistan, Art.199---Law Reforms Ordinance (XII of 1972), S.3---Intra-court appeal---Work-charge employee---Dispensation of service---Scope---Employee filed constitutional petition against his termination which was dismissed---Contention of employee was that he had been working for a considerable period of time without a break therefore, he had become a permanent workman and his service could not be terminated in an unceremonious manner---Validity---Case of employee was not covered by the provisions of Industrial Relations Ordinance, 1969 and the definition of "worker" or "workman" given therein---Employee was intimated that his sanctioned period had expired and his services stood dispensed with---Dispensation of service did not fall within the definition of "industrial dispute"---Case of employee would fall within the parameters given in Industrial and Commercial Employment (Standing Orders) Ordinance, 1968---Employee had remedy to challenge his termination or for his regularization under Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 which he had failed to avail---Constitutional petition was not maintainable in view of availability of alternate efficacious remedy---Intra-court appeal was dismissed in circumstances.

Qaisar and others v. Muhammad Shafaqat Sharif 2012 SCMR 743; Trustees of the Port of Karachi v. Muhammad Saleem 1994 SCMR 2213 and Government of Sindh through Secretary Education and Literacy Department and others v. Nizakat Ali and others 2011 SCMR 592 ref.

Dr. Sher Afgan Khan Niazi v. Ali S. Habib and others 2011 SCMR 1813 and Muhammad Abbasi v. S.H.O. Bhara Kahu and 7 others PLD 2010 SC 969 rel.

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

----Preamble---Scope of the Ordinance---Industrial Relations Ordinance, 1969 had been enacted in order to amend and consolidate laws for formation of trade unions, the regulation of relations between the employer and the workman and avoidance and settlement of any difference or dispute arising between them and matter ancillary and connected therewith---Workman if wished to approach the Labour Court had to show that an adverse order had been passed against him due to an industrial dispute under Industrial Relations Ordinance, 1969.

Mustehkum Cement Limited through its Managing Director v. Abdul Rashid and others 1998 SCMR 644; Trustees of the Port of Karachi v. Muhammad Saleem 1994 SCMR 2213; Syed Matloob Hassan v. Brooke Bond Pakistan Limited Lahore 1992 SCMR 227; Fauji Fertilizer Company v. Punjab Labour Appellate Tribunal, and others 2002 PLC 25 and Municipal Committee, Gojra through its Administration v. 1. Mst. Tasneem Akhtar, 2. Punjab Labour Appellate Tribunal, Lahore, 3. Punjab Labour Court No.4, Faisalabad 2000 PLC 81 rel.

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

----Preamble---Scope of the Ordinance---Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 was promulgated to amend and consolidate law with regard to industrial employment---No rider or embargo like industrial dispute had been placed on the rights of the employee to approach the forums available under Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 for the redress of grievance.

Mustehkum Cement Limited through its Managing Director v. Abdul Rashid and others 1998 SCMR 644; Trustees of the Port of Karachi v. Muhammad Saleem 1994 SCMR 2213; Syed Matloob Hassan v. Brooke Bond Pakistan Limited Lahore 1992 SCMR 227; Fauji Fertilizer Company v. Punjab Labour Appellate Tribunal, and others 2002 PLC 25 and Municipal Committee, Gojra through its Administration v. 1. Mst. Tasneem Akhtar, 2. Punjab Labour Appellate Tribunal, Lahore, 3. Punjab Labour Court No.4, Faisalabad 2000 PLC 81 rel.

Asmat Kamal Khan for Appellant.

Ms. Samia Khalid, A.A.-G. with Qazi Muhammad Arif, SDO, Sub-Division No.7, Lahore for Respondents.

Date of hearing: 30th March, 2015.

2015 P L C 286

[Lahore High Court]

Before Zafarullah Khan Khakwani, J

COMBINED MILITARY HOSPITAL, BAHAWALPUR

versus

PRESIDING OFFICER, PUNJAB LABOUR COURT BAHAWALPUR

Writ Petition No.717 of 2014, decided on 3rd October, 2014.

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

----Ss. 33, 47 & 1(3)(a)---Pakistan Army Act (XXXIX of 1952), S.2(1)(c)---Constitution of Pakistan, Art.199---Constitutional petition---Civil employee of Combined Military Hospital---Termination of service---Grievance petition---Labour court, jurisdiction of---Petitioner being civil employee of Combined Military Hospital was terminated form service---Labour Court accepted the grievance petition of employee---Contention of department was that Labour Court had no jurisdiction to entertain the matter---Validity---All appointments/ termination from service of army personnels or even of civil employees were made by or on behalf of Commandant Officer who was a serving Brigadier or Colonel---Civil authorities had no power to make such appointments/terminations---Combined Military Hospital was under the direct command of Pakistan Army Medical Corps---All employees working in the hospital were active part of Pakistan Army---Employees working in Arms or Services were to be treated alike under S.2(1)(c) of Pakistan Army Act, 1952 while dealing with the disciplinary cases---Labour Court had no jurisdiction to entertain the grievance petition of the employee---Employees of Combined Military Hospital could not be termed as Workman and provisions of Punjab Industrial Relations Act, 2010 were not applicable to the said employee---Impugned order passed by the Labour Court was set aside being without jurisdiction---Employee might avail of remedy against his termination from service available to him under the law---If employee resorted to the said remedy the appellate authority should consider the same sympathetically---Constitutional petition was accepted in circumstances.

Rehmat Gil and another v. Quetta Cantonment Board PLD 1983 SC 133 rel.

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

----Preamble---Scope of the Act---Punjab Industrial Relations Act, 2010 had been promulgated to regulate formation of trade unions and trade union activities, relations between employers and workmen and to avoid and settle any differences or disputes arising between them and ancillary matters---Punjab Industrial Relations Act, 2010 was applicable only to the persons employed in any "establishment" or "industry" located only within the Province and not beyond---Persons employed in Police, Defence Services of Pakistan and even the persons employed in any services or installations exclusively connected with or incidental to the Armed Forces of Pakistan had been exempted from the said Act.

(c) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Factual question could not be resolved by the High Court in exercise of constitutional jurisdiction.

Rao Amir Faraz for Petitioner.

Muhammad Hafeez for Respondent.

Date of hearing: 17th September, 2014.

2015 P L C 295

[Lahore High Court]

Before Ali Akbar Qureshi, J

PUNJAB SEED CORPORATION through Director Admn. and another

versus

CHAIRMAN, PUNJAB LABOUR APPELLATE TRIBUNAL NO.2, MULTAN and 2 others

Writ Petition No.15656 of 2013, heard on 5th March, 2015.

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

----S.Os. 1(b) & 12---Constitution of Pakistan, Art.199---Constitutional petition---Work-charge employees---Regularization---Employees filed grievance petition for regularization of their service which was accepted concurrently---Contention of employer was that employees were appointed on work-charge basis therefore, they could not attain the status of a permanent employees---Validity---If a worker was appointed against a project which was likely to continue more than nine months and the worker remained in service for nine months, he would attain the status of a regular employee---Employees, in the present case, were working against the same post and project for the last many years---Post and project against which the employees were working was of permanent nature---Denial of employer to regularize the services of employees as permanent workmen was not permissible in law---Employees had attained the status of permanent workmen/workers by afflux of time---Services of employees should have been regularized in accordance with law---Any action, if required in case of any misconduct, could be initiated under S.O.12 of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and not otherwise---Employees had become over-aged during the period of their service and could not go anywhere nor could apply to earn their livelihood in any organization---Employer should have regularized the services of the employees---No jurisdictional defect, legal infirmity or irregularity was pointed out in the findings recorded by the forums below---Labour Appellate Tribunal had properly appreciated the evidence on record and concluded that employees were "permanent workmen"---Constitutional petition was dismissed in circumstances.

Muhammad Yaqoob v. The Punjab Labour Court No.1 and 5 others 1990 SCMR 1539 and Tehsil Municipal Officer, TMA Kahuta and another v. Gul Fraz Khan 2013 SCMR 13 ref.

Punjab Seed Corporation and 2 others v. Punjab Labour Appellate Tribunal and 2 others 1995 PLC 539; Secretary to the Government of the Punjab, Forest Department, Punjab, Lahore through Divisional Forest Officer v. Ghulam Nabi and 3 others PLD 2001 SC 415; General Manager, Pearl Continental Hotel, The Mall, Lahore/ Rawalpindi v. Farhat Iqbal PLD 2003 SC 952; Pakistan Defence Officers Housing Authority, Karachi v. Shamim Khan through L.Rs. and 5 others PLD 2005 SC 792; State Life Insurance Corporation and others v. Jaffar Hussain and others PLD 2009 SC 194; Rai Ashraf and others v. Muhammad Saleem Bhatti and others PLD 2010 SC 691; Pakcom Limited and others v. Federation of Pakistan and others PLD 2011 SC 44; Executive Engineer, Central Civil Division, Pak. P.W.D. Quetta v. Abdul Aziz and others PLD 1996 SC 610; Tehsil Municipal Administration v. Muhammad Amir 2009 PLC 273; Pakistan International Airlines v. Sindh Labour Court No.5 and others PLD 1980 SC 323; Izhar Ahmad Khan and another v. Punjab Labour Appellate Tribunal, Lahore and others 1999 SCMR 2557; Managing Director, Sui Southern Gas Company Ltd., Karachi v. Ghulam Abbas and others PLD 2003 SC 724; Tehsil Municipal Administration, Rahimyar Khan and others v. Hanif Masih and others 2008 SCMR 1058; Province of Punjab through Secretary Communication and Works Department and others v. Ahmad Hussain 2013 SCMR 1547 and WAPDA and others v. Khanimullah and others 2000 SCMR 879 rel.

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

----S.O. 1(b)---"Worker"---Meaning---If a worker was appointed against a project which was likely to continue for more than nine months and the worker remained in service for nine months, he would attain the status of a regular employee.

(c) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Constitutional jurisdiction was discretionary and equitable in nature---Concurrent findings could not be interfered while exercising constitutional jurisdiction unless forum below had acted without lawful authority and jurisdiction.

Secretary to the Government of the Punjab, Forest Department, Punjab, Lahore through Divisional Forest Officer v. Ghulam Nabi and 3 others PLD 2001 SC 415; General Manager, Pearl Continental Hotel, The Mall, Lahore/ Rawalpindi v. Farhat Iqbal PLD 2003 SC 952; Pakistan Defence Officers Housing Authority, Karachi v. Shamim Khan through L.Rs. and 5 others PLD 2005 SC 792; State Life Insurance Corporation and others v. Jaffar Hussain and others PLD 2009 SC 194; Rai Ashraf and others v. Muhammad Saleem Bhatti and others PLD 2010 SC 691; Pakcom Limited and others v. Federation of Pakistan and others PLD 2011 SC 44; Executive Engineer, Central Civil Division, Pak. P.W.D. Quetta v. Abdul Aziz and others PLD 1996 SC 610; Tehsil Municipal Administration v. Muhammad Amir 2009 PLC 273; Pakistan International Airlines v. Sindh Labour Court No.5 and others PLD 1980 SC 323; Izhar Ahmad Khan and another v. Punjab Labour Appellate Tribunal, Lahore and others 1999 SCMR 2557; Managing Director, Sui Southern Gas Company Ltd., Karachi v. Ghulam Abbas and others PLD 2003 SC 724; Tehsil Municipal Administration, Rahimyar Khan and others v. Hanif Masih and others 2008 SCMR 1058; Province of Punjab through Secretary Communication and Works Department and others v. Ahmad Hussain 2013 SCMR 1547 and WAPDA and others v. Khanimullah and others 2000 SCMR 879 rel.

(d) Constitution of Pakistan---

----Art. 25---Equal protection of law---Scope---All citizens were entitled to equal protection of law.

Muhammad Zaeem Khalid and others v. Baha-ud-Din Zakeria University and others 1995 SCMR 723; Hameed Akhtar Niazi v. The Secretary, Establishment Division, Government of Pakistan and others 1996 SCMR 1185 and Tara Chand and others v. Karachi Water and Sewerage Board, Karachi and others 2005 SCMR 499 rel.

(e) Industrial dispute---

----Benefit of judgment of the court should be extended to other employees who might not be parties to the litigation and fell in the same category, instead of compelling them to approach the legal forum.

Muhammad Zaeem Khalid and others v. Baha-ud-Din Zakeria University and others 1995 SCMR 723; Hameed Akhtar Niazi v. The Secretary, Establishment Division, Government of Pakistan and others 1996 SCMR 1185 and Tara Chand and others v. Karachi Water and Sewerage Board, Karachi and others 2005 SCMR 499 rel.

Hafiz Muhammad Abu Bakar Ansari and Qazi Mansoor Ahmad for Petitioners.

Tariq Zulfiqar Ahmad Chaudhry for Respondents.

Date of hearing: 5th March, 2015.

2015 P L C 307

[Lahore High Court]

Before Shezada Mazhar, J

PEOPLES UNITY OF PIA EMPLOYEES through President

Versus

MEMBER NATIONAL INDUSTRIAL RELATIONS COMMISSION and 3 others

Writ Petition No.28849 of 2014, heard on 19th November, 2014.

(a) Constitution of Pakistan---

----Art. 199---Industrial Relations Act (X of 2012), S.58(1)---Constitutional Jurisdiction of High Court---Scope---Alternate remedy---Petitioner challenged order passed by Single member of Industrial Relations Commission---Petitioner contended that no appeal was provided against an order passed by Single Member of Commission under S.12 of Industrial Relations Act, 2012---Validity---According to S.58(1) of Industrial Relations Act, 2012, an order passed by a member of commission could be challenged before Full Bench of Commission within 30 days---Present petition was therefore not maintainable and was dismissed in circumstances.

Khairpur Textile Mills Employees' Union, Khairpur v. Registrar of Trade Unions, Karachi and 2 others PLD 1975 Kar. 225; Syed Mansoor Ahsan v. Muhammad Tariq Chaudhry and others 1991 SCMR 668; Pakistan Steel Peoples Workers' Union v. Registrar of Trade Unions, Karachi and 6 others 1992 PLC 715; PIASI Union through Secretary-General, P.I.A. v. Registrar, Industrywise Trade Unions and 4 others 1993 PLC 581; Farzand Raza Naqvi and 5 others v. Muhammad Din through Legal Heirs and others 2004 SCMR 400; Abdul Wahab v. Government of Sindh through Secretary, Home Department, Karachi and 2 others 2004 YLR 2599; Mrs. Kausar Iqbal Bhatti, Advocate High Court Bahawalpur v: Shafqat Atta and 25 others 2010 CLC 224; Muhammad Abbasi v. S.H.O. Bhara Kahu and 7 others PLD 2010 SC 969; Ghulam Qadir v. Station House Officer, Police Station Cantt., Bahawalpur and 4 others 2012 MLD 1173; Al-Rehman Associates through Special Power of Attorney v. Province of Sindh through Secretary Land Utilization Department and 2 others 2010 CLC 1734 and Mehmood Medical Store through Proprietors v. Services Hospital, Lahore through Medical Superintendent and 3 others 2012 YLR 174 ref.

Suo NIotu Case No.4 of 2010 and Civil Aviation Authority, Islamabad and (,;hers v. Union of Civil Aviation Employees and another PLD 1997 SC 781 ref.

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

----S. 58---Suo motu powers of Industrial Relations Commission--­Scope---Section 58(2)(e) of Industrial Relations Act, 2012 provided suo motu powers to Commission to examine record of any bench and such sue motu power could also be exercised on the basis of any grievance of any of parties.

Norwich Union Fire Insurance Society Limited v. Muhammad Javed Iqbal and another 1986 SCMR 1071 rel.

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

----S.58---Revisional Jurisdiction of Industrial Relations Commission--- Revisional powers could only be exercised by the Court on its own motion as distinguished from "on the application of an aggrieved party"---Any party could lay appropriate information before the Commission and when the Commission was satisfied that miscarriage of justice had taken place or proceedings in the revision would foster the cause of justice, it could exercise its suo motu powers and issue notice to the other parties. 312] D

Pearl Continental Hotel, Karachi v. Pearl Continental Hotel, Karachi Workers Union 2007 PLC (C.S.) 372; M/s. Karachi Marriott Hotel v. Atta Hussain 2006 PLC (C.S.) 140 and Munawar A. Malik v. Abdul Salam 2006 PLC (C.S.) 122 rel.

M.M.A Ghani for Petitioner.

Muhammad Zikaria Sheikh and Abdul Hafeez Amjad for Respondents.

Date of hearing: 19th November, 2014.

2015 P L C 322

[Lahore High Court]

Before Shahid Mubeen, J

HABIB BANK LIMITED through President and another

Versus

EJAZ HUSSAIN and 2 others

W.P.No.1845 Of 2011, decided on 29th June, 2015.

Punjab Employees Efficiency, Discipline and Accountability Act (XII of 2006)---

----S. 13---Constitution of Pakistan, Art. 199---Constitutional petition---Power of competent authority to impose penalty---Scope---Enhanced penalty imposed without assigning any reason---Permissibility--­Disagreement with report of Inquiry Officer---Principles---Competent authority dismissed petitioner, a Bank employee from service while disagreeing with report of Inquiry Officer, who had recommended penalty of compulsory retirement---Petitioner filed grievance petition before Labour Court challenging his termination and his termination was converted into compulsory retirement---Labour Appellate Tribunal converted termination into stoppage of three annual increments and fifty per cent back-benefits were allowed during period petitioner had remained out of job---Validity---Contention of respondent that findings of Inquiry Officer were not binding on competent authority, had no force---Authority while enhancing penalty from compulsory retirement into termination must have given reasons in letter of termination---Authority though was not bound by recommendations of Inquiry Officer regarding award of penalty, but while disagreeing with report of Inquiry Officer and awarding higher penalty than the one recommended by Inquiry Officer firstly, he had to provide opportunity of hearing to accused officer, and secondly, he had to pass reasoned order with conscious application of mind, that was also with reference to evidence available on record---Findings of facts by courts below did not suffer from any misreading or non-reading of evidence---Constitutional petition was dismissed in circumstances.

Secretary, Government of Punjab (C & W) and others v. Ikramullah 2013 PLC (C.S.) 801 and Asif Yousaf v. Secretary Revenue Division, CBR, Islamabad and another 2014 SCMR 147 rel.

Tariq Mahmood for Petitioners.

Mirza Muhammad Afzal for Respondent No.l.

Qasim Ali Chohan, A.A.-G.

2015 P L C 38

[National Industrial Relations Commission]

Before Justice (R) Raja Fayyaz Ahmed, Chairman

MUHAMMAD HANIF and 2 others

Versus

REGISTRAR/AUTHORIZED OFFICER NIRC, ISLAMABAD and 19 others

Appeal No.12(09) of 2014 and C.M.A. No.24(33) of 2014, decided on 27th February, 2014.

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

----Ss. 12 & 9(6)---Appeal---Competency and maintainability---Dispute regarding change of office bearers of the trade union---Appellant challenged the orders of the authorized officer whereby election schedule in respect of the internal election of the National Bank of Pakistan Employees Front (Head Office CBU) had been announced and provisional list of candidates had been issued by the authorized officer---Appellant disputed the change of office bearers of the trade union and had questioned the validity and legality of the candidature of respondents, whose names had not appeared in the list of voters issued by the authorized officer yet declared as unopposed elect Vice Presidents of the union, which could be conveniently raised by the appellants, who were the members of the union by filing application/objections before the Registrar of Trade Unions, who had been invested with the powers by subsection (6) of S.9 of the Industrial Relations Act, 2012 to direct for holding of fresh election, in case there was a dispute in relation to the change of office-bearers and could also accord approval of the change of the officers of the trade union as a consequence of the internal election of the union---After the poll for the office of the Chairman of the union, the election result along with all other papers and documents were yet to be submitted to the learned Registrar Trade Union to accord approval of the change of the officers of the union or to direct for holding fresh election as the case may be, therefore, the Commission had not pre-empted the jurisdiction vesting in the Registrar Trade Union at that stage of the election process being reached to its final peak after a long litigation between the parties in respect of the internal election of the union, inasmuch as the candidates who were contesting for the office of the Chairman of the union had not even been impleaded as respondents in the appeal or in application for interim relief---Appeal was dismissed in limine.

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

----S. 9(3)---Change of officers of the Registered trade Union---Requirements---Every change of the officers of the registered trade union was required to be notified by the union to the Registrar of Trade Unions within 15 days of such change.

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

----S. 9(4)---Refusal to register change of officers of the union or alteration, power of---Registrar of the Trade Unions had been invested with the powers under subsection (4) of S.9 of the Act to refuse to register change of the officers of the union or alteration if it has been in contravention of the trade union.

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

----S. 9(6)---Holding of fresh election in case of a dispute---Power of Registrar of Trade Unions---Registrar, in respect of a dispute relating to change of office bearers, after satisfying himself with respect to the existence of a dispute may direct for holding of fresh election under his supervision within the meaning of subsection (6) of S.9 of the Act.

Rizwan Ejaz for Appellants.

2015 P L C 52

[National Industrial Relations Commission]

Before Justice (R) Raja Fayyaz Ahmed, Chairman

UTILITY STORES CORPORATION through Regional Manager Utility Stores Corporations, Islamabad and another

Versus

MUHAMMAD ARBAB BHATTI and another

Appeals Nos.4B(181) and 4B(182) of 2013, decided on 3rd April, 2014.

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

----Ss. 56(2) & 58(1)(2)---Payment of Wages Act (IV of 1936), S.17---Appeal against order of the Authority under the Payment of Wages Act, 1936---Competency and maintainability---Under S.58 of Industrial Relations Act, 2012, appeal was provided to the Full Bench of the Commission only against an order, decision etc. passed by a Member of the Commission and no appeal could be preferred to the Commission against an order passed by the Authority under Payment of Wages Act, 1936 within the purview of S.17 of the said Act---Remedy by way of appeal against an award or decision given or a sentence or order determining and certifying a collective bargaining unit passed by any Bench of the Commission was available before the Commission under subsection (1) and to be disposed of under subsection (2) of S.58 of the Industrial Relations Act, 2012---Subsection (2) of S.56 of the Industrial Relations Act, 2012 provided that an award or decision given or a sentence or order determining and certifying a collective bargaining unit by any Bench of the Commission in accordance with the Act shall be deemed to be order passed, award given, sentence passed, powers exercised or proceedings commenced as the case may be, by the Commission---Under S.58 appeal lay to the Full Bench of the Commission only against an award, decision given or sentence or order passed by any Bench of the Commission, therefore, no appeal lies against the order of the Authority under the Payment of Wages Act, 1936.

General Steel Tools Company, Gujranwala v. Presiding Officer Punjab Labour Court No.2, Lahore and 2 others 1976 PLC 528 ref.

(b) Interpretation of statues---

----"Reading in, principle of---Scope-Court had no power to change, alter or eliminate the word which the legislature has incorporated in a statute not even in order to provide for certain contingencies which the legislature failed to meet, or to avoid hardship flowing from the language used or to advance the remedy of the statute.

Azad Government v. Human Rights Commission 1999 MLD 268 and Muhammad Ismail v. State PLD 1969 SC 24 rel.

Chaudhry Sagheer Ahmed for Appellants (in both the appeals).

Khawaja Muhammad Arif for Respondents (in both the appeals).

Date of hearing: 24th October, 2013.

2015 P L C 125

[National Industrial Relations Commission]

Before Baqir Ali Rana, J

HABIB BANK WORKERS' FRONT OF PAKISTAN

Versus

REGISTRAR OF TRADE UNIONS and others

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

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

----Ss. 2(xxxii), 62 & 87---Collective Bargaining Unit of employer Bank and Collective Bargaining Agent of Trade Union---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 or 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.

1999 SCMR 1477; Jang Publications v. RTU Sindh and others PLD 1984 Kar. 292 and UBL v. RTU Sindh and others 2006 PLC 465 rel.

(b) Interpretation of statutes---

----Conflicting statutes---Where there is conflict between Federal law and Provincial law the former is to prevail.

Ch. M. Ashraf for Petitioner.

Faisal Mehmood Ghani for Applicant.

Khan Muhammad Khan, Senior Vice-President for Petitioner.

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.

2015 P L C 23

[Peshawar High Court]

Before Abdul Latif Khan, J

ZAKARIYA KHAN

Versus

UNITED BANK OF PAKISTAN and others

Labour Appeal No.1 of 2013, decided on 6th June, 2014.

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

----S. 14---Sacked Employees (Reinstatement) Act (XXII of 2010), Ss.2(d) & 17---Re-employment of retrenched employee---Scope---Preferential right of re-employment of retrenched employee---Entitlement of---Employee was terminated after giving him Golden Hand Shake benefits---Employee sought his reinstatement, which was refused----Employee sought his re-appointment on the vacant/advertised post---Section 14 of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 cast duty upon employer to give preference to retrenched employee as compared to others in case of re-employment in same category, however, such privilege would last only for one year---In the present case, neither any post had been vacated nor filled within one year of retrenchment of the appellant---Grievance petition was silent about the cause of action accrued to the employee and no plausible explanation put forwarded by him to condone the delay and, as such, the petition was time barred---Appellant's case was not covered under S.2(d) of the Sacked Employees (Reinstatement) Act, 2010 and his employer, being private bank, did not come within the ambit of employer---Grievance notice and petition as well as the appeal filed in the year, 2008, did not contain the plea taken now by the appellant to take benefit of the Act, nor it was applicable to case of appellant for the simple reason that remedy under the Act, was not available to the appellant when cause of action arose to the appellant---Appeal was dismissed in circumstances.

Appellant in Person.

Amir Javed for Respondents.

Date of hearing: 6th June, 2014.

2015 P L C 246

[Peshawar High Court]

Before Malik Manzoor Hussain, J

REGIONAL CHIEF EXECUTIVE, UBL MARDAN and 3 others

versus

HABIB UL HASSAN

Labour Appeals Nos.3 and 4 of 2013, decided on 30th March, 2015.

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

----S. 46---Grievance notice---Limitation---Employee was appointed as watchman and later on, he was promoted as Cashier---Employee was charge-sheeted for misappropriation of cash amount received from customer during his service and after codal formalities he was terminated from service---Employee filed grievance petition before Labour Court that was accepted and punishment was modified by reduction to previous post---Appeal was preferred against on the grounds that employee had been terminated in accordance with law after he had admitted the allegations levelled---Bank (Employer) also averred that grievance notice was required to be submitted within thirty days and grievance petition was time barred---Employee contented that he was terminated without show-cause notice and regular enquiry---Validity---Employee was required to file grievance notice within prescribed time of thirty days but it had been filed beyond prescribed time of limitation and no application for condonation of delay was filed with it---When grievance notice to Bank (employer) was not served within specified time, employee could not approach competent court of jurisdiction for redressal of his grievance unless delay of each day was explained satisfactorily since valuable rights had accrued to employer---Court was supposed to determine question of limitation whether such plea was raised or not.

Almas Ahmad Fiaz v. Secretary Government of the Punjab Housing and Physical Planning Development, Lahore and another 2007 PLC 94; Muhammad Naeem v. General Manager, Muslim Commercial Bank and another 2007 PLC 580 and Istafta Nosh and 5 others v. The Chairman Port Qasim Authority Bin Qasim and 7 others 2001 PLC 214 rel.

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

----S.O. 12---Dismissal from service---Bank employee---Charge of misappropriation of Bank's money---Deposit of misappropriated amount by employee after he admitted to the charges levelled against him---Effect---Business of Bank was based on mutual trust between Bank and its customers---Any doubt or suspicion with regard to activities and business of Bank and dishonesty of its employees would shake confidence of its customers resulting in ruination of its business, thus in such circumstances awarding of termination from service was not a wrongful act and subsequent deposit of misappropriated money would not constitute a mitigating circumstance in favour of employee---Banking business was one of trust reposed by public at large and Bank could not afford breach of trust by retaining in service people who were involved in breach of trust.

Ghulam Mustafa Channa v. Muslim Commercial Bank Ltd. and others 2008 SCMR 909; Izzat Baig Awan v. Habib Bank Limited 2004 SCMR 98 and Muslim Commercial Bank Ltd. Karachi v. Iqbal Ahmed 2002 PLC 331 rel.

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

----S. 46---Grievance petition---Amendment of petition on fresh ground---Principle---Application was filed before Labour Court to amend grievance petition after two years that was allowed and a fresh grievance petition was filed by employee---Validity---After conclusion of trial and that too by recording evidence of parties no fresh grievance petition on altogether fresh ground was to be allowed in order to fill lacuna left by petitioner.

Amir Javaid for Appellant.

Aziz ur Rehman for Respondent.

Date of hearing: 30th March, 2015.

2015 P L C 173

[Punjab Labour Appellate Tribunal]

Before Asad Munir, Member

Syeda SARAH BATOOL GARDEZI

versus

CHIEF EXECUTIVE EDUCATIONAL SERVICES (PVT.) LTD., LAHORE and others

Labour Appeal No.LHR-812 of 2013, decided on 29th April, 2014.

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

----Ss. 2(xxxi), 33 & 47---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(i) & S.O.15---Misconduct---Dismissal from service---Grievance petition---Status of "workman", determination of---Appellant who joined employer company as teacher, was later on selected and appointed as 'School Evaluation Associate'---Appellant was dismissed as she allegedly acted fraudulently and dishonestly by accepting a job somewhere else in violation of the Service Bond executed by her with her employer company---Show-cause notice was issued to the appellant and ex parte inquiry was held as she failed to appear before the Inquiry Officer---Grievance petition filed by appellant was returned by Labour Court on the ground that she being not 'workman', Labour Court had no jurisdiction in her case---Validity---Job of appellant as 'School Evaluation Associate', was that of an evaluator or assessor, which required professional knowledge, experience; the ability to observe record, appreciate and analyse quantitative and qualitative data, draw conclusion therefrom and submit reports on the performance of the teachers---Job of appellant was not an ordinary job as it required imagination, observation, rational approach, application of mind and specialized knowledge of evaluating the performance of teacher but required mental or intellectual toil which could not be equated with physical or manual work or labour, just because she had to do incidental work of writing notes or reports---Such notes or reports were made possible only on account of the intellectual exercise she had to undertake---Book, essay or report was the end-result or expression of intellectual exercise or application of mind and its author could not be said to be a manual worker, just because she typed it or wrote it with her own hands---Job of appellant, was also not clerical as it entailed use of specialized knowledge, application of mind, exercise of imagination and intellect in contrast to the clerical duties, which were always regarded as monotonous, mechanical or routine in nature---Appellant, also could not claim to be a workman on the basis that employer company paid her employees old-age contribution due under Employees Old-Age Benefits Act, 1976---Appellant's assertion of preparing handwritten notes on teaching and learning and schools' environment, would not illustrate the predominant part or nature of her duties, nor would it constitute manual work---Labour Court, in circumstances, had rightly returned grievance petition of the appellant, being not maintainable.

Chairman, Brooke Bond (Pakistan) Ltd. v. General Secretary, Union Karkunane Brooke Bond PLD 1969 Lah. 717; General Manager, Hotel Intercontinental, Lahore and another v. Bashir A. Malik and others PLD 1986 SC 103; Pakistan Engineering Co. Ltd. v. Fazal Beg and others 1992 SCMR 2166; Wisram Das v. SGS Pakistan (Pvt.) Ltd. and another 2010 SCMR 1234; Managing Director, Shahi Bottlers (Pvt.) Limited v. The Punjab Labour Appellate Tribunal, Lahore and 2 others 1993 SCMR 488; Syed Matloob Hassan v. Brooke Bond Pakistan Limited, Lahore 1992 SCMR 227; Abdul Razzaq v. Messrs Ihsan Sons Limited and 2 others 1992 SCMR 505 and Ali Ahsan Jafri v. Secretary, Ministry of Defence and 4 others 1983 PLC (C.S.) 810 ref.

Ch. Abdur Rab for Appellant.

Ms. Ayesha Hamid for Respondents.

2015 P L C 82

[Balochistan High Court]

Before Jamal Khan Mandokhail and Shakeel Ahmed Baloch, JJ

MCB BANK LTD. through Attorney

Versus

MUHAMMAD IMRAN BHATTI and 2 others

Constitutional Petition No.640 of 2012, decided on 18th August, 2014.

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

----Ss. 2(xxx), 46, 46 (1) & 46(2)---Constitution of Pakistan, Art.199---Constitutional petition---Dismissal of employee from service on the charge of corruption and embezzlement---Employee filed departmental appeal instead of grievance notice---Effect---Labour Court accepted the grievance petition, which decision was upheld by the Labour Appellate Tribunal---Employee was reinstated with back benefits---Concurrent findings of facts of lower forums---Scope---Contention of the petitioner was that after his promotion to the post of officer Grade-III, he was no more a worker/workman, therefore, his grievance petition was not competent, nor the Labour Court had the jurisdiction to entertain the same---Validity---Status of a person depended upon the work he/she performed in an institution and not upon a grade he/she owned---Person, who was discharging his duties mainly in a managerial or in administrative capacity, could not be termed as a "worker" or "workman"---"Worker" or "workman" was the one, who was employed in an institution to do skilled, unskilled or clerical work manually---Both the manual and clerical works were more or less the routine works, not requiring any great amount of initiative, imagination, discretion or supervision in discharging the duty---Employee, in the present case, was holding a post, which from its designation appeared to be of a supervisory or managerial in nature, but the duties performed by him could not be considered as managerial or administrative, therefore, irrespective of the fact that the employee was an officer Grade-III, he still was a "workman", therefore, his grievance petition before the Labour Court was competent and the forums below had the jurisdiction to entertain the same---Under S.46(1) of the Industrial Relations Ordinance, 2002, the word "may" had been used, which had given discretion to the "worker/workman" to either approach the employer by way of grievance notice, before approaching the Labour Court or may directly approach the Labour Court through a grievance petition, therefore, non-issuance of a grievance notice to the employer was not fatal for filing a grievance petition before Labour Court---Mere mentioning of wrong title, i.e. "appeal for re-instatement in the bank service" instead of "grievance notice" had not vitiated the proceedings---High Court in constitutional jurisdiction could not interfere in the concurrent findings of facts arrived at by the two competent forums---Petitioner had failed to point out any illegality and irregularity in the judgments of the lower foras---Constitutional petition was dismissed in circumstances.

(b) Words and Phrases---

----"Worker" and "administration"--- Definition and meaning.

(c) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Concurrent findings of facts by lower foras---Effect--- High Court in a constitutional jurisdiction could not interfere in the concurrent findings of facts arrived by the two competent forums.

Javed Asghar Awan for Petitioner.

Abdul Rasheed Khokhar for Respondent No.1.

Date of hearing: 30th April, 2014.

2015 P L C 119

[Balochistan High Court]

Before Abdul Ghias Nousherwani, Member

ASMAT ULLAH

Versus

REGISTRAR TRADE UNION BALOCHISTAN, QUETTA and 2 others

Labour Appeal No.18 of 2014, decided on 2nd September, 2014.

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

----S. 54(2)---Re-election of trade union---Elections were held with mutual consent of the parties---Change of office bearers---Wrong mentioning of date on the letter regarding change of office bearers---Effect---Contention of the appellant was that without framing issues and recording evidence, it could not be believed by the Presiding Officer of the Labour Court that voters were not allowed to cast their votes and result was prepared on the basis of rigging---Validity---Presiding Officer's observation/decision could not be proved without framing issues and recording evidence that by whom and how the rigging was made, as it required evidence that how the voters of respondent were not allowed to cast their votes---Party, which made allegations, had to prove the same by means of reliable evidence---Order of Labour Court was set aside and the matter was remanded to the Labour Court for framing of issues according to the pleadings of the parties and recording of evidence---Appeal was partly allowed in circumstances.

Azam Jan Zarkoon and Abdul Zahir Khan Kakar for Appellant.

Arif Abbas representative of Respondents Nos.1 and 2.

Shahid Javed for Respondent No.3.

Date of hearing: 17th September, 2014.

2015 P L C 195

[Balochistan High Court]

Before Muhammad Kamran Khan Mulakhail and Jamal Khan Mandokhail, JJ

GELCAPS PAKISTAN EMPLOYEES UNION through General Secretary

versus

PROVINCE OF BALOCHISTAN through Chief Secretary and another

Constitutional Petition No.61 of 2014, decided on 11th March, 2014.

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

----Ss. 17 & 41---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.11-A---Constitution of Pakistan, Art.199--- Constitutional petition--- Maintainability--- Unfair labour practice by employer--- Closure of establishment--- Grievance application---Petitioner, who claimed to be General Secretary of Employees Union of the Establishment, had sought writ against the establishment, for declaration to the effect that actions and reactions of the establishment were unfair labour practice and refraining the establishment from terminating, removing, retrenching and dismissing the office-bearers and workers/members of the employees union, or from closing down the establishment---Validity---No application of the establishment was pending before the Labour Court for permission to close down the establishment and to terminate the services of its employees---Petitioner, in the capacity of individual worker or being representative/office-bearer of Labour Union, despite having the status of Collective Bargaining Agent, could not initiate proceedings on the basis of apprehended cause of action, which might have been in his mind, but did not exist actually---No vested right of the petitioner was likely to be affected for the simple reason that no such order was passed---Question of 'unfair labour practice' was linked with a separate and independent cause of action, which being a pure question of facts, required the evidence to prove or disprove the same and could not be agitated, and resolved in constitutional jurisdiction of High Court---Proper remedy under S.41 of Balochistan Industrial Relations Act, 2010, was available to the petitioner/Labour Union in case they were aggrieved from termination of services---Every employer had a right to terminate the services of his employee on the ground, which was legally available to it; provided that the procedure as contemplated by the prevailing law was followed in letter and spirit---Provisions of Balochistan Industrial Relations Act, 2010 being basic and comprehensive in nature, had provided a complete procedure for redressal of any such grievance---Jurisdiction of High Court under Art.199 of the Constitution, could not be invoked, when a well defined alternate remedy was already available to the petitioner---Petition which involved the disputed question of facts could not be entertained in constitutional jurisdiction of High Court Establishment in question, was a private limited company being a body corporate against which the petition under Art.199 of the Constitution, was not maintainable.

Salahuddin's case PLD 1975 SC 244 and Maqsood Ahmed Toor's case 2000 SCMR 928 ref.

Muhammad Nishat Warsi for Petitioner.

Nemo for Respondents.

Date of hearing: 30th January, 2014.

2015 P L C 220

[Balochistan High Court]

Before Shakeel Ahmed Baloch and Naeem Akhtar Afghan, JJ

WAHID BAKHSH

versus

Messrs PARAZELSUS PAKISTAN (PVT.) LTD. through Chief Executive Officer and 2 others

Constitutional Petition No.389 of 2012, decided on 3rd March, 2015.

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

----S. 41---Constitution of Pakistan, Art. 199---Constitutional petition---Worker---Termination of service---Grievance notice---Limitation---Worker was legally bound to issue grievance notice to the employer within three months of the day on which cause of such grievance arose---Worker approached the wrong forum by filing civil suit which was dismissed---Worker instead of issuance of grievance notice, personally sent legal notice through counsel---Worker himself was bound to send grievance notice to the employer---No such grievance notice was sent which was mandatory and legal notice issued could not be termed as a "grievance notice"---Application filed by the worker before the Labour Court was not maintainable---Constitutional petition was dismissed, in circumstances.

PLD 1961 SC 57 and PLD 1980 SC 80 rel.

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

----S. 41---Grievance notice, issuance of---Requirements---Worker himself was bound to send grievance notice to the employer.

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

----S. 41---Grievance notice, issuance of---Limitation---Limitation to issue grievance notice to the employer was three months from the day on which the cause of such grievance arose.

Muhammad Nasir Yousafzai for Petitioner.

Syed Ali Bin Maaz for Respondents.

Date of hearing: 14th October, 2014.

2015 P L C 313

[Balochistan High Court]

Before Naeem Akhtar Afghan and Shakeel Ahmed Baloch, JJ

MERCK (PRIVATE) LIMITED through Notified Factory Manager

Versus

MEMBER LABOUR APPELLATE TRIBUNAL and 24 others

C.Ps. Nos.393 and 394 of 2012, decided on 6th August, 2015.

Industrial Relations Act (IV of 2008)---

----Ss. 2(viii)(xxix), 41 & 55---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(c), (i) & S.0.12---Constitution of Pakistan, Art.199---Constitutional petition-- Termination of employment---Grievance application---Relationship of employer and employee---Respondents, claiming themselves to be employees of the petitioner-company, filed grievance application challenging termination of their services by the company---Grievance of the respondents was, that they were appointed by the company on permanent basis and were placed under probation for a period of three months and that after completion of the probation period they had become permanent employees of the company, but they were not issued any appointment letters by the company with terms and conditions of employment and were terminated from their services, without any lawful justification---Grievance application by the respondents, was contested by the company by filing written statement, contending that, respondents had no cause of action against the petitioner, as they were never hired by the company, but were employees of the contractor/consultant of the company; that no relationship of "employer and employee" existed between the company and the respondents---Company also clarified that respondents were engaged by the consultant/contractor intermittently for the purpose of contractual work in the premises of company's factory and that agreement was arrived at between the company and the consultant/contractor, that the company would provide suitable working place/facility to the consultant, and the consultant would employ, hire, engage technical competent employees to discharge the contractual obligations under the agreement---Sole proprietor of 'The Consultants' had acknowledged execution of said agreement with the company---Labour Court dismissed grievance application, but Appellate Tribunal set aside the judgment of the Labour Court, directing the company to reinstate the respondents by means of permanent appointment letters---Validity---No appointment letter had been issued to any of the respondents by the company---No pay-roll existed on record to prove that the respondents were employees of the company-Nothing was on record to show that the respondents were paid wages/salaries/remuneration by the company as an employer of the respondents---Record, however, revealed of the pay roll of "the consultants" mentioning the names of the respondents as the employees of "the consultants" against whom no grievance had been agitated by the respondents---Labour Court had rightly concluded that there existed no relationship of "employer and employee" between the company and the respondents; that the respondents were employees of the contractor "the consultants", who were engaged in pursuance of an agreement between the company and "the consultants" and that no cause of action had accrued to the respondents against the company---Appellate Tribunal, while passing impugned judgment, had erred in facts as well as law and had failed to properly appreciate the evidence available on record---Appellate Tribunal, had erred in allowing the appeals of the respondents and issuing directions to the company to reinstate the respondents by issuing their permanent appointment letters---Constitutional petition against judgment of Appellate Tribunal, was allowed---Impugned judgment passed by Labour Appellate Tribunal, was declared null, void and of no legal effect---Judgment passed by the Labour Court dismissing the grievance application of the respondents, was upheld, in circumstances.

Messrs Allied Precision Engineering Products v. J. Handa Khan Maree 2011 PLC 286 distinguished.

Muhammad Ali Khan for Petitioner (in C.Ps. Nos.393 and 394 of 2012).

Iftikhar Ahmed Sawati for Private Respondents (in C.Ps. Nos.393 and 394 of 2012).

Date of hearing: 9th April, 2015.

2015 P L C 326

[Balochistan Labour Appellate Tribunal]

Before Abdul Ghias Nousherwani, Member

MUDDASIR SHEHZAD and 230 others

Versus

MANAGING DIRECTOR, UTILITY STORES CORPORATION and 5 others

Labour Appeal No.20 of 2014, decided on 13th November, 2014.

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

----Ss. 41 & 54(2)---Civil Procedure Code (V of 1908), O.IX, Rr.8 & 9---Regularization of service---Application under S.41 of the Balochistan Industrial Relations Act, 2010, for regularization of their services was dismissed by Labour Court for non-appearance of their counsel---Application for recalling of dismissal order under O.IX, R.9, C. P. C. was also dismissed by the Labour Court---Validity---Labour Court was not justified to reject or dismiss application for recalling dismissal order as it was a case of O.IX, R.8, C.P.C., and remedy was very much available under O.IX, R.9, C.P.C., whereunder applicants could file application for restoration of application dismissed for non­appearance---Applicants neither sought time for production of evidence, nor last and final opportunity was granted; to them and on one hearing of the matter, the impugned order was passed by the Labour Court---Both orders, dismissing application for regularization of services of the applicants, and dismissal order for recalling of order, were set aside, and case was remanded to Labour Court for fresh proceeding and decision on merit, strictly according to law and procedure.

2013 MLD 782; PLD 1969 SC 670; PLD 1986 SC 129; 2009 CLC 343; 2013 MLD 782; 1998 PLC 464 and NLR 2012 Civil" 663 ref.

Azam Jan Zarkoon for Appellants.

Abdul Sattar Khan and Mrs.

Shehnaz Rana for Respondents.

Date of hearing: 7th November, 2014.

2015 P L C 45

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali and Ijaz Ahmed Chaudhry, JJ

PAKISTAN WAPDA EMPLOYEES PEGHAM UNION

Versus

MEMBER, NATIONAL INDUSTRIAL RELATIONS COMMISSION, ISLAMABAD and others

Civil Petition No.1700 of 2013, decided on 14th March, 2014.

(On appeal from the judgment dated 13-9-2013 in W.P. No.3472 of 2013 passed by the Islamabad High Court Islamabad)

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

----Ss. 7, 8 & 9---Constitution of Pakistan, Art. 185(3)---Registration of trade union---Allegations of corruption and malpractices against Registrar, Trade Unions---Not supported by documentary evidence---Effect---Registrar Trade Unions had registered the respondent-trade union after checking all documentation submitted with the application for registration--- Petitioner-union challenged registration of respondent-union contending that Registrar had taken bribes and committed malpractices--- Petitioner-union had levelled bald allegations against the work of the Registrar office, which were not supported by any documentary evidence---After registration of respondent-union, a referendum was held for the election of Collective Bargaining Agent, and the respondent-union defeated the petitioner-union by a thumping majority--- Petition for leave to appeal was dismissed in circumstances and leave was refused.

Messrs Hakimsons Chemical Industries (Pvt.) Ltd. v. The Registrar of Trade Unions (West), Government of Sindh 1999 SCMR 234 ref.

(b) Constitution of Pakistan---

----Art. 199--- Constitutional petition---Maintainability---Factual controversies---High Court could not resolve factual controversies in its constitutional jurisdiction.

M.A. Ghani Chaudhry, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Petitioner.

M.S. Khattak, Advocate-on-Record and Sohail Mehmood, D.A.-G. for Respondent No.2 on Court's Notice.

Ch. Muhammad Khalid Farooq, Advocate Supreme Court for Respondent No.3.

Date of hearing: 14th March, 2014.

2015 P L C 68

[Supreme Court of Pakistan]

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

PEOPLE UNITY OF PIA EMPLOYEES CBA, KARACHI

Versus

The REGISTRAR OF TRADE UNIONS (NIRC) ISLAMABAD and another

Civil Petition No.541 of 2014, decided on 12th May, 2014.

(On appeal against the Order dated 9-4-2014 passed by the Islamabad High Court, Islamabad, in Writ Petition No.1621 of 2014)

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

----Ss. 19(11), proviso & 19(9)(e)--- Constitution of Pakistan, Art.185(3)---Trade union---Membership of more than 5000 members and presence in more than one Province---Entitled to function as Collective Bargaining Agent ("CBA") for a term of 3 years---Procedure to be adopted by such trade union for seeking benefit of 3 years---In terms of proviso to S. 19(11) of Industrial Relations Act, 2012, a trade union claiming membership of more than 5000 and having presence in more than one province was required to provide details before holding of the Referendum and once such details were available, the Registrar, in law, was required to extend the term of such trade union to act as CBA for three years by issuance of a certificate, as contemplated in S.19(9)(e) of the Industrial Relations Act, 2012---Such trade union, however, shall not automatically get the term of three years to act as CBA---Trade union claiming three years term must approach the Registrar with an application within reasonable time, in case the Registrar did not issue the requisite certificate for the term of three years.

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

----Ss. 19(11), proviso & 19(9)(e)---Trade union---Benefit of functioning as Collective Bargaining Agent ("CBA") for a term of 3 years---Delay in approaching Registrar for availing such benefit---Effect---Trade union in question claimed that it had a membership of more than 5000 and had presence in more than one Province, thus it was entitled to function as CBA for a term of three years in terms of proviso to S.19(11) of Industrial Relations Act, 2012---Validity---Trade union in question won the Referendum but did not approach the Registrar to avail benefit of acting as CBA for 3 years in terms of proviso to S.19(11) of Industrial Relations Act, 2012---Trade union remained mum on this issue and only approached the Registrar when its term to act as CBA had expired---Additionally on the date of Referendum, the Registrar had examined the number of members of the trade union which was not more than 5000 so as to grant it the benefit of a 3 years term to act as CBA---Issue of number of members claimed by the trade union ought to have been agitated before the relevant forum, the moment the trade union was declared as CBA, but the same was not done for more than 20 months and the Registrar had already announced the date of (next) Referendum---Trade union in question could not avail the benefit of proviso to S. 19(11) of Industrial Relations Act, 2012, in such circumstances---Petition for leave to appeal was dismissed accordingly and leave was refused.

Raja M. Ibrahim Satti, Senior Advocate Supreme Court, M.A. Ghani Ch., Advocate-on-Record and Ch. Akhtar Ali, Advocate-on-Record for Petitioner.

Abdul Hafeez Amjad, Advocate Supreme Court for Respondent No.2.

Date of hearing: 12th May, 2014.

2015 P L C 200

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk, C.J., Gulzar Ahmed and Mushir Alam, JJ

NATIONAL BANK OF PAKISTAN and another

versus

ANWAR SHAH and others

C.P.L.As. Nos. 2119 to 2121 of 2013 and 800 of 2014, decided on 8th December, 2014.

(On appeal against a common judgment dated 29-10-2013, passed by the Islamabad High Court, Islamabad, in W.Ps. Nos.3948 and 4061 of 2013 and R.A. No.8 of 2013)

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

----S. 2(xxxiii)---"Workman", definition of---Scope---Nature of duties and functions---Designation of a person could not be considered to be a factor determining his status of employment in an establishment to be that of an "officer" or a "workman"---Nature of duties and functions of a person was to be considered to be the factor which would determine whether his status was that of a "workman" or not--- Designation per se was not determinative of a person being a "workman" rather the nature of his duties and function determined his status.

National Bank of Pakistan v. Punjab Labour Court No.5, Faisalabad and others 1993 SCMR 672 ref.

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

----Ss. 2(ix), (xxxiii) & 54---"Workman", status of---Grievance petition filed before the Labour Court---Maintainability---Person who approached a Labour Court for redressal of his grievance claiming himself to be a workman and such status of workman was denied by the employer, it became a bounden duty of such person to demonstrate through evidence that his nature of duties and functions were that of a workman and not that of a managerial or administrative capacity and that he was not an employer---Unless such categorical evidence was led by such person, he would not be considered to be a workman and his grievance petition would not be maintainable before the Labour forum.

National Bank of Pakistan v. Punjab Labour Court No.5, Faisalabad and others 1993 SCMR 672 ref.

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

----S. 2(xxxiii)---"Workman"---Scope---National Bank of Pakistan---Officers Grade I to III were not "workmen"---On the basis of union's claim no declaration could be given that the Officers Grade-I to III in the establishment of National Bank of Pakistan were workmen---Order passed by National Industrial Relations Commission to the effect that Officers Grade-I to III were not workmen, was upheld---Appeal was allowed accordingly.

Shahid Anwar Bajwa, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Petitioners (in C.Ps. Nos.2119 to 2121 of 2013).

Qazi Ahmed Naeem Qureshi, Advocate Supreme Court and Syed Rafaqat Hussain Shah, Advocate-on-Record for Petitioners (in C.P. No.800 of 2014).

Nemo for Respondents (in C.Ps. Nos.2119, 2120 of 2013 and 800 of 2014).

Qazi Ahmed Naeem Qureshi, Advocate Supreme Court and Syed Rafaqat Hussain Shah, Advocate-on-Record for Respondent No.1 (in C.P. No.2121 of 2013).

Date of hearing: 8th December, 2014.

2015 P L C 226

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, Amir Hani Muslim and Ijaz Ahmed Chaudhry, JJ

PUNJAB EMPLOYEES' SOCIAL SECURITY INSTITUTION, LAHORE through Commissioner and another

versus

Messrs M. H. CHALLENGE INDUSTRIES, SIALKOT and others

Civil Appeals Nos. 56-L and 57-L of 2009, decided on 24th March, 2015.

(On appeal against the judgment dated 9-10-2002 passed in C.R.P. No.3104 of 2006 and order dated 6-6-2002 in Writ Petition No.8755 of 2002, by the Lahore High Court Lahore respectively)

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

----Ss. 1(3), 20(1) & 21---Social security contribution, payment of---Registered partnership firm---Notice sent to registered partnership demanding production of record and payment of social security contribution---Legality---Contention on behalf of partnership firm that it was not registered with the Social Security Institution, hence it could not be coerced into making any contribution---Validity---Admittedly the partnership firm had been making payments of social security contribution for a considerably long time, therefore, they could not deny the payment of social security contribution subsequently, on the ground that they were making payments under coercion or misrepresentation of the Social Security Institution---Partnership firm in question was also debarred from taking the plea that it was not notified under the Provincial Employees' Social Security Ordinance, 1965---Partnership firm failed to place any material on record to show that it was not making payment of the social security contribution wilfully---Appeal was allowed accordingly and the Provincial Social Security Institution was directed to proceed against the partnership firm in accordance with law.

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

----Ss. 2(11) & 20(1)---Social security contribution, payment of---"Establishment", interpretation of---Scope---Charitable educational institution/Educational Trust---Liable to pay social security contribution---Educational institutions functioning on charitable basis were not to be placed on any higher pedestal to exclude them from the applicability of the definition of an "Establishment" as defined under the Provincial Employees' Social Security Ordinance, 1965---Charitable nature of an educational institution had nothing to do with the additional benefits offered/extended under the Provincial Employees' Social Security Ordinance, 1965, to its employees---Proverb 'charity begins at home' would be squarely applicable to such charitable institutions to justify a fair conclusion that when such charitable institutions were extending/facilitating education in the country on charitable basis, then why should they not contribute under the Provincial Employees' Social Security Ordinance, 1965, to extend their quality of charity and benevolence in favour of their own employees---Appeal was allowed accordingly.

The Citizens Foundation and another v. Director SESSI and others 2010 SCMR 1659 ref.

Muhammad Shuja Baba, Advocate Supreme Court and A. H. Masood, Advocate-on-Record for Appellants (in both cases).

Manzoor Hussain Butt, Advocate Supreme Court for Respondent No.1 (in C.A. No. 56-L of 2009).

Nemo for Respondents (in C.A. No. 57-L of 2009).

Date of hearing: 11th February, 2015.