PLC 2016 Judgments

2016 P L C 185

[Islamabad High Court]

Before Aamer Farooq, J

STATE BANK OF PAKISTAN

Versus

NATIONAL INDUSTRIAL RELATIONS COMMISSION, ISLAMABAD and others

Writ Petition No.1776 of 2015, decided on 30th November, 2015.

Industrial Relations Act (IV of 2008)---

----Ss. 12 & 28---Cancellation of registration of Trade Union---Scope--­Appeal against registration of Trade Union was dismissed---Validity--­Registration of Trade Union could be cancelled if a Labour Court on the complaint by the Registrar, Trade Unions had so directed---If employers were aggrieved of the registration of Trade Union then they could have agitated the matter before the Registrar, Trade Unions --­Employer was not "aggrieved person" within the meaning of Art.199 of the Constitution and had no locus standi to challenge the process of registration of Trade Union---Employers assailed order for registration of Trade Union by filing an appeal which was not competent---Constitutional petition was dismissed in circumstances.

Dilawar Jan v. Gul Rehman and 5 others PLD 2001 SC 149; Essa Cement Industries Workers' Union v. Registrar of the Trade Unions, Hyderabad Region, Hyderabad and 4 others 1998 SCMR 1964; Pakistan Services Limited v. Full Bench, National Industrial Relations Commission and others 2006 PLC 288; Manzoor Ali and 39 others v. United Bank Limited through President 2005 SCMR 1785; Sarfraz v. Muhammad Aslam Khan and another 2001 SCMR 1062 and Malik Gul Hasan & Co. and 5 others v. Allied Bank of Pakistan 1996 SCMR 237 ref.

Essa Cement Industries Workers' Union v. Registrar of the Trade Unions, Hyderabad Region, Hyderabad and 4 others 1998 PLC 500; Messrs. Hakim and Sons Chemicals v. Registrar of Trade Marks 1998 PLC 122; Wall's Employees Union (Lever Brothers now Uni-Lever Brothers) v. Registrar of Trade Unions, District Kasur and 2 others 2007 PLC 521 and Messrs Naveena Exports Ltd. v. Directorate of Labour, Government of Sindh East Division and 3 others 2010 PLC 148 rel.

Rehan Nawaz for Petitioners.

Saleem Khan and Ashraf Ali Awan for Respondents Nos.3 and 4.

Date of Decision: 30th November, 2015.

2016 P L C 271

[Islamabad High Court]

Before Miangul Hassan Aurangzeb, J

PAKISTAN INTERNATIONAL AIRLINES CORPORATION

Versus

FULL BENCH, NATIONAL INDUSTRIAL RELATIONS COMMISSION, ISLAMABAD and another

W.P. No.815 of 2016, decided on 9th March, 2016.

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

----Ss. 58, 54(e) & 33---Pakistan International Airlines Corporation Employees (Service and Discipline) Regulations, 1985, Regln.79, Section II, Cl.75(aj)---Interlocutory order passed by Full Bench of National Industrial Relations Commission---Maintainability of Constitutional petition---Principles---Respondent challenged the show cause notice before National Industrial Relations Commission by way of filing petition under S.54(e) of Industrial Relations Act, 2012, which was dismissed---Full Bench of Commission on appeal, suspended the operation of the order of dismissal under impugned interlocutory order Petitioner contended that the respondent having already been dismissed from service after dismissal of the petition by Commission the appeal had become infructuous---Validity---Petitioner's plea was matter of fact which were to be agitated before Full Bench of the Commission upon the respondent's appeal; whereas, the petitioner, instead of raising objection as to maintainability of the appeal before Full Bench had invoked Constitutional jurisdiction against impugned interlocutory order---Unless the proceedings before a court or Tribunal were wholly without jurisdiction, Coram Non Judice or mala fide, the same could not be challenged directly in the Constitutional jurisdiction without objecting to the maintainability of such proceedings before the forum, where such proceedings were pending---Law did not place any restriction on the Full Bench of Commission to pass an interim order---Constitutional petition was dismissed in circumstances.

Mohtarma Benazir Bhutto v. The State 1999 SCMR 1447; Muhammad Raza Hayat Hiraj v. Election Commission of Pakistan 2015 SCMR 233; Dur Muhammad Khan Nasir v. Muhammad Shafiq Tareen PLD 2014 Balochistan 152 and Habib Bank Ltd. v. Judge Banking Court 2015 CLD 1875 rel.

(b) Constitution of Pakistan---

----Art. 199----Constitutional jurisdiction of High Court---Scope---Interim order passed by Special Court or Tribunal---High Court in constitutional jurisdiction cannot interfere in interim order passed by Special Court or Tribunal constituted under the law unless the same is wholly without jurisdiction, Coram Non Judice or mala fide.

Mohtarma Benazir Bhutto v. The State 1999 SCMR 1447; Muhammad Raza Hayat Hiraj v. Election Commission of Pakistan 2015 SCMR 233; Dur Muhammad Khan Nasir v. Muhammad Shafiq Tareen PLD 2014 Balochistan 152 and Habib Bank Ltd. v. Judge Banking Court 2015 CLD 1875 rel.

Ajmal Ghaffar Toor for Petitioner.

2016 P L C 367

[Islamabad High Court]

Before Aamer Farooq, J

PAKISTAN TELECOMMUNICATION COMPANY LIMITED----Petitioner

Versus

MOHAMMAD DILPAZEER ABBASI and others----Respondents

Writ Petition No.1691 of 2015, decided on 29th April, 2016.

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

----Ss. 33, 54 & 2 (xxxiii)---Grievance petition---Limitation---Grievence notice by workman---Scope---Employer company floated Voluntary Separation Scheme for its employees---Petitioners-employees received dues as provided under the Voluntary Separation Scheme---Petitioners-employees filed grievance petition that their date of commencement of employment had erroneously been mentioned---Grievance petition was accepted concurrently---Validity---Voluntary Separation Scheme had been opted by the employees voluntarily without any coercion or duress and terms and conditions mentioned therein were accepted---Employees had not proved coercion/inducement and they were estopped from challenging/ questioning the terms of Voluntary Separation Scheme---Employees were not dismissed/retrenched, laid off due to industrial dispute rather had voluntarily opted to leave the employer company---Employees were not worker/workman to invoke the jurisdiction of National Industrial Relations Commission nor could serve grievance notice on the employer company---Impugned orders were set aside and grievance petition dismissed---Constitutional petition was allowed in circumstances. A, B, C, D, E & F

Mustehkum Cement Limited through Managing Director v. Abdul Rashid and others 1998 PLC 172; Chief Executive Officer Quetta Electric Supply Company and others v. Rana Shamim Akhtar and others 2010 PLC 489; Sahibzada K.A.K. Afridi v. Pakistan International Airlines Corporation and another 1992 SCMR 1379; Senior Vice President (G.M.) National Bank of Pakistan Zonal Office Lahore v. Muhammad Javed Khan and 2 others 1981 SCMR 542; Ms. Zaib un Nisa Khan Lodhi v. Messrs Avari International Hotel through General Manager and 3 others 2006 PLC 164; National Bank of Pakistan v. Muhammad Javed Khan 1982 PLC 380; Pakistan Telecommunication Company Limited v. Yasmeen 2014 PLC 176; Pakistan Telecommunication Company Limited through President and 5 others v. Azhar Ali Babar and 2 others 2013 PLC 345 and Pakistan Telecommunication Employees Trust PTET through MD. Islamabad and others v. Muhammad Arif and others 2015 PLC (CS) 1417 ref.

Pakistan Telecommunication Company Limited through President and 5 others v. Azhar Ali Babar and 2 others 2013 PLC 345; Pakistan Telecommunication Company Limited and others v. Yasmeen Tabassum and others 2014 PLC 176; State Bank of Pakistan v. Khaibar Zaman 2004 PLC (CS) 1213; National Bank of Pakistan v. Nasim Arif Abbasi 2011 SCMR 446; State Bank of Pakistan v. Imitaz Ali Khan 2012 SCMR 280; Mustehkum Cement Limited through Managing Director v. Abdul Rashid and others 1998 SCMR 644; Board of Governors Aitchison College, Lahore v. Punjab Labour Appellate Tribunal and others 2001 PLC 589; Messrs CoCa Cola Beverage Pakistan Limited through Authorized Office/Industrial Relations Manager v. Registrar Trade Unions Sindh and 3 others 2010 PLC 48; Khushal Khan v. Muslim Commercial Bank Limited 2002 PLC (C.S.) 907; Allied Bank of Pakistan Limited v. M. Iqbal Sipra 2007 PLC Labour Cases 398; Abdul Rauf v. Muhammad Shafiq 2006 PLC Labour Cases 135 and Chief Executive Progressive Paper Limited/The Chairman National Press Trust, Islamabad v. Sh. Abdul Majeed and another 2005 PLC (C.S.) 1439 rel.

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

----S. 33---Grievance petition---Limitation---Grievance petition could be filed within six months of communication of decision by the employer or after lapse of period of 15 days within which decision was to be passed by the employer. D

Shahid Anwar Bajwa and Sabir Sardar for Petitioners.

Raja Farrukh Arif Bhatti, Kh. Muhammad Arif, Mirza Muhammad Afzal and Sajid Ameen for Respondents.

Date of hearing: 12th February, 2016.

2016 P L C 401

[Islamabad High Court]

Before Shaukat Aziz Siddiqui, J

SULTAN MUHAMMAD KHAN and others

Versus

FEDERATION OF PAKISTAN and others

Writ Petitions Nos.2684 of 2015 and 4386 of 2014, decided on 26th May, 2016.

Workers Welfare Fund Ordinance (XXXVI of 1971)---

----Ss. 3 & 7---Industrial Relations Ordinance, (XCI of 2002), S.2---Governing body of Workers Welfare Fund---Appointment of members of such body---Scope---Petitioners assailed notification issued by authorities nominating members of governing body of Workers Welfare Fund---Validity---Representatives of workers must be from class of workers as defined in S.2 of Industrial Relations Ordinance, 2002---Any person who did not come within definition of worker could not be appointed as member of governing body to represent workers---Representative of employers was also to be from employers who had been making contributions in Workers Welfare Fund and nobody was to be appointed as member of representative of employers in governing body whose establishment did not make contributions in the Fund---Authorities failed to probe as to whether proposed members fell under S.7(2)(b) and (c) of Workers Welfare Ordinance, 1971---High Court declared appointment notification as illegal, unlawful and void ab initio and remanded matter to authorities to appoint members of representative body in accordance with provisions of Workers Welfare Ordinance, 1971---Constitutional petition was allowed accordingly.

Khawaja Muhammad Arif for Petitioner.

Zahoor-ul-Haq Chishti for Respondent No.4 (in W.P No.2684/2015) and for Petitioner (in W.P No.4386/2014).

Syed Asad Ali Shah for Respondents Nos.4-A7.

Muhammad Ikhlaq Awan for Respondent No. 4-A4.

Adnan Sher and Haji Qudrat, A.D (L) KPK for Respondents Nos.4-A2, 4-A6 and 4-A11.

Muhammad Shoaib Razzaq for Respondents Nos.4-Al and 4-A10.

Kaleem Ullah Qureshi for Respondent No.3.

Respondents Nos.4-A3, 4-A8 in person.

Raja Khalid Mehmood, learned DAG.

Muhammad Naeem, D.S., M/o OP and HRD.

Mukhtar Simon, Asst. Chief (legal) Respondent No.1.

Faisal Tariq, Dy. Director (Legal) W.W.F. for Respondent No.2.

Dates of Hearing: 18th and 21st March, 2016.

2016 P L C 1

[Sindh High Court]

Before Nazar Akbar, J

Messrs SINDH EMPLOYEES SOCIAL SECURITY INSTITUTION through Commissioner and 2 others

Versus

RAJWANI APPAREL (PVT.) LTD. through Chief Executive/Managing Director

M.A. No.40 of 2009, decided on 4th August, 2014.

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

----Ss. 22(3), 57, 62 & 64---Social Security Contribution---Assessment of Social Security Contribution by the Institution for three specific years---Institution's Inspection Team found underpayment of Social Security Contribution by the establishment for the period from July, 1995 to June, 2000 and on account of non-production of record for the period from January, 1993 to June, 1995, the said Inspection Team also assessed the contribution in terms of S.22(3) of the Ordinance---Director of the Institution raised the demand towards short payment of Social Security Contribution---Establishment filed objections to the said demand under S.57 of the Ordinance, which was registered as complaint---Commissioner of the Institution ordered rechecking, but the establishment/company failed to produce record for the period from January, 1993 to June, 1995---Commissioner found the company liable to pay short/underpayment of Social Security Contribution for the period from January, 1993 to June, 2000 to the Institution---Company preferred appeal against the order of Commissioner before the Social Security Court, which was allowed and the entire demand was set aside, against which the Institution filed appeal---Contentions of the Institution/appellant were that the Social Security Court had erred in law by holding that the question of limitation was involved in the case and the inspection of the record by the Institution beyond the period of two years was illegal---Establishment had neither rebutted the demand nor produced any evidence in that regard, therefore, establishment was liable for the short/underpayment of Social Security Contribution---Validity---Findings of the Social Security Court rejecting the entire claim of the Institution towards short payment of Social Security contribution was contrary to the facts as well as the law---Establishment had not led evidence before the Commissioner during the hearing of their complaint under S.57 of the Ordinance despite the fact that specific directions were given by the Commissioner to produce the record to negate the audit report after rechecking---In the event of no evidence in rebuttal, the Appellate Court ought to have maintained the findings of the Commissioner instead of reversing the entire claim of the Institution regarding the short payment of Social Security Contribution as not justified---Burden was on the establishment who had raised the objection to the demand to prove that any amount mentioned in the statement was incorrect or not justified---Establishment had failed to discharge their burden before the Commissioner as well as before Social Security Court having not offered to lead evidence in terms of S.62 of the Ordinance to rebut the claim of the Institution---Social Security Court had not exercised its powers of summoning the witnesses or calling record of establishment for the purpose of deciding the appeal in terms of S.62 of the Ordinance and accepted the appeal of the establishment without any evidence---Failure of establishment to produce record from January 1993 to June 1995 was not breach of any of their statutory duties under the Ordinance to justify the Institution to claim any short payment for the said period without any evidence---Establishment was not obliged to maintain/keep the record for more than two years and he could not be subjected to hypothetical calculation of any short payment of Social Security Contribution on the basis of assessment of contribution for succeeding years---Assessment for the specific year on the basis of books relating to succeeding years was not justified as the figure of one year could not be made basis for assessment of liability for another year---Assessment for the year 1993 to 1995 on such basis was, thus, not warranted---Appeal was partly allowed by High Court and order of Social Security Court was set aside and the order of Commissioner was modified to the extent that assessment and demand raised by the Institution for period from January 1993 to June 1995 was excluded from the liability of establishment to pay Social Security Contribution awarded by the Commissioner.

M/s. Shahab Industries Limited v. Sindh Employees' Social Security Institution and another 1988 PLC 704 ref.

M/s. Volkervam (Pakistan) Ltd. v. Sindh Employees' Social Security Institution 1991 SCMR 2361 and M/s. Shahab Industries Limited v. Sindh Employees' Social Security Institution and another1988 PLC 704 rel.

Jawed Sarwana for Appellants.

Nemo for Respondent.

Date of hearing: 6th May, 2014.

2016 P L C 22

[Sindh High Court]

Before Aftab Ahmed Gorar and Shahnawaz Tariq, JJ

ALI SHAR

Versus

PROVINCE OF SINDH through Sec Labour Department, Sindh and 5 others

C.P. No.D-2241 of 2015, decided on 19th August, 2015.

(a) Industrial dispute---

----Bank employee---Dismissal from service---Grievance application, filing of---Forum---Jurisdiction of National Industrial Relations Commission---Scope---Employer (Bank) being a trans-provincial establishment, employee could seek remedy by filing appropriate proceedings before National Industrial Relations Commission.

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

----S.Os. 1(b), 2(c) & 12(3)----Contractual service, termination of---Permanent status of workman, determination of---Contractual worker who remained in continuous service for 24 years, employers could not terminate his service verbally---Unblemished continuous contractual service of employee without any discontinuity and registration with SESSI, strengthened the plea that service of petitioner was of a permanent nature and employer were bound to regularize service of such employee---Services of a temporary workman can be terminated or dispensed with without assigning any reason when it was found that either work for which he was employed had been completed or that post for which he was employed was no longer required to be continued---Uninterrupted service of about 24 years could not be said to be a temporary one---Undoubtedly, employers, in the present case, had not issued any letter in favour of employee as a permanent workman during his service, but considering permanent nature of service of employee, employers were bound to issue a written letter for termination of his service along with payment of one month's salary at the time of termination, which had not been done--- Constitutional Petition of employee was dismissed in limine, however, he was at liberty to file appropriate proceedings before the competent forum for redressal of his grievance within 21 days after passing of present order and limitation will not come in the way.

Syed Zafar Ali Shah for Petitioner.

Date of hearing: 12th August, 2015.

2016 P L C 127

[Sindh High Court]

Before Munib Akhtar and Syed Saeeduddin Nasir, JJ

NATIONAL INVESTMENT TRUST LIMITED through Chairman/Managing Director and another

Versus

PRESIDING OFFICER, SINDH LABOUR APPELLATE TRIBUNAL and 2 others

C.P.No.D-1466 of 2014, decided on 12th August, 2015.

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

----S. 15---Civil Procedure Code (V of 1908), O.VI, R.17---Grievance application---Limitation---Non-signing and verification of written statement by the authorized person---Rectification of error in the pleadings---Procedure---Grievance application of employee-petitioner was accepted on the ground that written statement was not signed by the employer company (respondent) and version of employee remained un-rebutted--Validity---Non-signing and verification of written statement by the authorized representative of the company was mistake which had been inadvertently committed---Application for correction of error in the written statement was pending but without deciding the same judgment had been passed---Labour Court had not considered that the grievance application could be barred by limitation or the said court could be devoid of jurisdiction to adjudicate upon the matter---Labour Court came to an erroneous conclusion that verification was not part of the pleadings and rectification could not be allowed---Labour Court should have allowed the application of company for making up the omission in the written statement by getting the same signed and verified---Omission to sign and verify the pleadings was only an irregularity and was curable at any stage of the proceedings---Such mission was not illegality likely to result in dismissal of suit---Labour Court should have called the employer company to sign and verify the written statement/pleadings at subsequent stage---Mere omission to insert the verification clause in the written statement did not entitle the Labour Court to non-suit the company---Such an irregularity was not material enough to out company from pleading its case on merits---Such irregularity could be cured by affording an opportunity to the party to rectify it at a later stage by allowing application for amendment of pleadings---Cases should be decided on merits and no one should be knocked out on the basis of technicalities---Impugned orders passed by the courts below were not speaking orders which were set aside---Case was remanded to the Labour Court for a decision afresh on merits subject to depositing back benefits within a specified period by the company which would be payable to the employee-petitioner---Nazir of the Court should invest the amount deposited in some profit bearing scheme---Company should have the right to file written statement which should be taken on record---Labour Court was directed to decide the matter within a specified period in accordance with law through speaking order---Constitutional petition was allowed in circumstances.

S.M. Ayub v. Syed Yusuf Shah and others PLD 1967 SC 486; Ismail and others v. Mst: Razia Begum and others 1981 SCMR 687; Engr. Iqbal Zafar Jhagra and others v. Khalilur Rehman and others 2000 SCMR 250; Faqir Muhammad and others v. Mst. Muhammad Bibi and others PLD 1991 SC 590; Muhammad Riaz Khan v. Sardar Rahim Dad and others PLD 1990 SC (AJ&K) 13; Ghulam Mohiuddin and another v. Noor Dad and others PLD 1988 SC (AJ&K) 42; Malik Umar Aslam v. Sumera Malik and others PLD 2007 SC 362; Sardarzada Zafar Abbas and others v. Syed Hassan Murtaza and others PLD 2005 SC 600; Ali Muhammad and others v. Gulfam and another PLD 1983 Kar. 99; M/s. Pakland Scientific Production v. M/s Pioneer Insurance Company Limited and others PLD 1991 Kar. 414; Ch. Riffat Hussain and another v. Asif Khan and another PLD 1980 Lah. 626; Muhammad Munshi and others v. Mst. Rakia Bi 1990 CLC 301; Qatar Airways PLC v. ANZ Grindlays Bank 2000 CLC 1455 and Mian Muhammad lqbal and another v. Election Tribunal for District Okara/District Judge, Kasur and others 2006 CLC 1426 rel.

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

----O. VI, R. 15---Pleadings, signing and verification of---Scope---Verification at the foot of pleadings would verify on solemn oath the contents of the same mentioned in different paras which were stated and believed to be true by the deponent of such pleadings and same was an integral and inseparable part and parcel of the pleadings---Omission to sign and verify the pleadings was only an irregularity curable at any stage of the proceedings which was not illegality likely to result in dismissal of suit.

(c) Administration of justice---

----Cases should be decided on merits.

M. Masood Khan for Petitioners.

Ashraf Hussain for Respondent No.3.

Sibtain Mehmood, A.A.G.

Date of hearing: 12th August, 2015.

2016 P L C 201

[Sindh High Court}

Before Munib Akhtar and Ashraf Jahan, JJ

RIAZ HUSSAN

Versus

VITH CIVIL JUDGE AND JUDICIAL MAGISTRATE, KARACHI and 2 others

C.P.No.D-173 of 2015, decided on 15th June, 2015.

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

----S.O. 16---Industrial Relations Act (X of 2012), S.54---Termination from service---Status quo order passed by National Industrial Relations Commission-Eviction of employees from residential accommodation---Services of petitioners-employees were terminated against which they filed petitions wherein interim relief was granted by National Industrial Relations Commission---Employer-company filed complaint for eviction of employees from the residential accommodation and Magistrate directed that same be vacated within a specified period-Validity---­Employer who was restrained by a court or other Authority could not have advantage of Standing Order 16 of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968-Injunctive order operating in personam would prohibit and disentitle the employer from resorting to the option available under Industrial and Commercial Employment (Standing Orders) Ordinance, 1968---Recourse to the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, contrary to such interim order would be an unlawful breach thereof---Magistrate should have stayed proceedings in view of existence of an interim order in favour of petitioners-employees­---Constitutional petitions were disposed of accordingly.

Jamal Bukhari for Petitioners.

Muhammad Hamayun and Ghulam Murtaza Sariyo for Respondents.

Ashfaq Rafiq Janjua, Standing Counsel.

Date of hearing: 9th April, 2015.

2016 P L C 335

[Sindh High Court]

Before Muhammad Ali Mazhar, J

SADIQ AMIN RAHMAN

Versus

PAKISTAN INTERNATIONAL AIRLINES CORPORATION through Managing Director and 3 others

Suit No.822 of 2015, decided on 23rd December, 2015.

(a) Specific Relief Act (I of 1877)---

----Ss.42 & 54---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Suit for declaration and injunction---Interim injunction, grant of---Good governance---Plaintiff was a pilot and was aggrieved of refusal made by the Airline Corporation declining him to send him to transition training B-777 in view of agreement executed between the Corporation and Association of Pilots--- Validity--- Management of Airline Corporation was not supposed to act recklessly or sabotage professional norms and transparency in the affairs of their management---Defendant corporation in disregard of the terms and conditions of the agreement decided to benefit opportunity of transition course to some persons without clearance of Promotion Board---Statutory corporation in which government had substantial shareholding lacked service rules but it did not mean that they were above the law and could do anything in their own whims and pleasure---Airline Corporation should follow principle of good governance and maintain transparency and fair-mindedness in its affairs---High Court directed the Corporation to send plaintiff for training in terms of clearance accorded to by Promotion Board and the letter was set aside communicating renunciation of plaintiff from training course---High Court restrained the Corporation from sending pilots for training at the stratagem of 'ex-post facto clearance' unless they were cleared by the Promotion Board for training/promotion in accordance with the provisions contained in agreement in question---Application was allowed in circumstances. A & C

Naseem-ul-Haq v. Raees Aftab Ali Lashari and others 2015 YLR 550; Ghulam Nabi Shah v. PIAC and others 2013 PLC (C.S) 768; PIAC and others v. Tanweer-ur-Rehman PLD 2010 SC 676; PIAC v. Syed Suleman Alam Rizvi 2015 SCMR 1545 and Ikram Bari's case 2005 SCMR 100 ref.

(b) Constitution of Pakistan---

----Arts. 4 & 25---Discrimination---Good governance---Master and servant, relationship of---Principle---Object of good governance cannot be achieved by exercising discriminatory powers unreasonably or arbitrarily, without application of mind but such objective can only be achieved by following rules of justness, fairness and openness in consonance with command of Constitution enshrined in different Articles of the Constitution including Arts.4 & 25, which is supreme law of the country---By misapplication of phrase 'master and servant' management feels that an employee cannot raise voice of his rights even though an oppressive attitude, behaviour of management which is an incorrect exposition of law. B

Muhammad Haseeb Jamali for Plaintiff.

Salman Talibuddin and Ms. Sara Malkani for Defendants.

Date of hearing: 8th October, 2015.

2016 P L C 411

[Sindh High Court]

Before Munib Akhtar and Ashraf Jahan, JJ

SULTAN AHMED

Versus

VITH CIVIL JUDGE AND JUDICIAL MAGISTRATE, DISTRICT MALIR, KARACHI and 2 others

Constitutional Petition No.D-173 of 2015, decided on 15th June, 2015

Industrial Relations Act (X of 2012)---

----Ss. 2(xxxiii), 33, 54, 57 & 58---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(i) & S.O.16---Termination of service---Grievance petition---Notice to vacate residential accommodation---Interim relief, grant of---Petitioners, who were permanent workmen, their services were terminated---Aggrieved by such action of the employers, petitioners filed grievance petitions before National Industrial Relations Commission along with application for interim relief---Commission granted interim relief to the petitioners---Pending grievance petitions, employers gave notice to the petitioners to vacate the residential accommodation that was being occupied by the petitioners---Despite the Commission had directed the employers to maintain status quo, employers filed complaint under S.O.16 of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968---Magistrate before whom said complaint was filed, directed the petitioners to vacate the residential premises occupied by them within a period of two months---Validity---Interim orders made by Commission, continued to hold field; and Magistrate concerned was informed of the said interim orders---Complaint, in circumstances, could not have been filed and Magistrate ought not to have proceeded with hearing said complaint---Interim order in question was in personam---Standing Order 16, was neither mandatory in nature, nor did it come into operation automatically and simply gave an option to the employer, should he choose to exercise the same---When the Magistrate was apprised of the existence of the interim orders, Magistrate ought to have stayed his hand---At the most he ought to have directed the parties to proceed with the petitions pending before the Commission---Magistrate fell into serious legal error in continuing with the proceedings under S.O.16---Recourse to S.O. 16, was at the volition of the employer and if there was an interim order in personam against the employer, employer could not be allowed to violate the same and proceed under S.O.16---Impugned order of the Magistrate suffered from material and serious errors of law---High Court moulded the relief accordingly.

KESC and others v. NIRC and others 2015 PLC 1; Atta Muhammad and others v. Modern Textile Mills (Pvt.) Ltd. 2004 PLC 137 and Capital Development Authority v National Industrial Relations Commission 2012 PLC 236 ref.

Jamal Bukhari for Petitioners.

Muhammad Hamayun and Ghulam Murtaza Sariyo for contesting Respondents.

Ashfaq Rafiq Janjua, Standing Counsel.

Date of hearing: 9th April, 2015.

2016 P L C 499

[Sindh High Court]

Before Irfan Saadat Khan and Zafar Ahmed Rajput, JJ

METROPOLITAN STEEL CORPN. LTD. through Director

Versus

EMPLOYEES' OLD-AGE BENEFITS INSTITUTION AND THE BOARD through Chairman and 2 others

C.Ps. Nos.D-64 and D-79 of 1998, decided on 25th March, 2016.

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

----Ss. 33, 35, 43 & 44---Employees' Old-Age Benefits (Board of Trustees) Rules, 1977, Rr.11 & 18---Determination of questions and claims---Appeal to the Board of Trustees---Quorum of the Board for deciding appeals---Question before the High Court was that as to whether the Board, comprising of one or two members, was authorized to hear the appeals---Section 44 of Employees Old-Age Benefit Act, 1976 provided that Federal Government had the authority to make rules regarding the powers and functions of the Board---Section 44(2)(xiii) of the Act provided regulation of the manner and procedure for disposal of appeals by the Board---Rule 18(v) of the Employees' Old-Age Benefits (Board of Trustees) Rules, 1977, deals with hearing of the appeals, and the Board had the authority that instead of hearing the appeals itself, the Board could appoint a Committee of the Board to hear and decide the appeals on its behalf and the decision of the Committee was to be considered as the decision of the Board---Board had categorically mentioned that the quorum for appeals involving dispute of more than Rs.20 lac would be of two members comprising of Chairman and any other member and for less than that amount, the quorum would comprise of one member only---Impugned orders in appeals had been passed by the Board comprising of Chairman and a member; hence the quorum was in order and no illegality had been committed (in the constitution of the Board).

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

----S. 2(bb)----Employee---Scope---Person hired through independent person/contractor falls within definition of employee as provided under S.2(bb) of the Employees' Old-Age Benefits Act, 1976---Employer, therefore, was liable to pay the contribution for those persons (hired through/by the contractor) to Employees' Old-Age Benefit Institute---High Court maintained the impugned orders---Constitutional petition was allowed in circumstances.

SESSI v. Consolidated Sugar Mills Limited 1989 SCMR 888; SESSI v. Employees, Premier Tobacco Industries Limited 1990 PLC 6; SESSI v. Modern Textile Mills Limited 1999 PLC 210; Okara Flour and General Mills v. PESSI 1993 PLC 984; Sindh Employees Social Security Institution v. Pakistan National Produce Company Limited 1989 PLC 81; Cowesjee & Sons v. Employees Old-Age Benefits Institution 2001 PLC 485; Nestle Milk Pak Limited v. Board of Trustees, EOBI, Karachi and 2 others 2005 PLC 19; Attock Cement Pakistan Company v. The Board of Trustees, Employees' Old-Age Benefits Institution and others 2004 PLC 106 and Hashoo Steel Industries Limited v. Board of Trustees; EOBI and others 2004 PLC 121 rel.

Pakistan Burma Shell Limited v. Employees' Old-Age Benefits Institution and others 2004 PLC 63; Bank Alfalah Limited and others v. Federation of Pakistan 2014 PLC 40; Pakistan Aluminium and Industrial Works (Pvt.) Ltd. v. The Excise and Taxation Officer and another 1991 PLC 926; Mumtaz Ahmed Silk Mills Ltd.v. Sindh Employees Social Security Institution and another 1987 CLC 2531; MCB v. Muhammad Nasim 2001 SCMR 1191; M.A. Baqi Khan v. NIRC 1993 PLC 273; Taj Din v. Punjab Labour Court PLD 1976 Lah. 1169; Quadari Brothers Foundry and Workshop v. Sindh Employees' Social Security Institution PLD 1977 Kar. 112; Sindh Employees' Social Security Institution v. Philips Electrical Industry of Pakistan PLD 1977 Kar. 451 and Pakistan Tobacco Company Limited v. Punjab Employees Social Security, Institution PLD 1978 Lah. 704 distinguished.

Sindh Employees Social Security Institution v. Consolidated Sugar Mills Limited 1989 SCMR 888; Sindh Employees Social Security Institution v. Premier Tobacco Ind. Limited 1990 PLC 6; Okara Flour and General Mills v. Punjab Employees Social Security Institution 1993 PLC 984 and Sindh Employees Social Security Institution v. Modern Textile Mills Limited 1999 PLC 210 ref.

S.M. Iqbal for Petitioners (in C.Ps. Nos.D-64 and D-79 of 1998).

Ms. Masooda Siraj for Respondents (in C.Ps. Nos.64 and 79 of 1998).

Asim Mansoor Khan, Deputy Attorney General for Pakistan and Dilawar Hussain Standing Counsel on Court Notice.

2016 P L C 532

[Sindh High Court]

Before Muhammad Ali Mazhar and Muhammad Iqbal Mahar, JJ

SHAFI-UD-DIN and others

Versus

NATIONAL INDUSTRIAL RELATIONS COMMISSION, FULL BENCH and 4 others

Constitutional Petitions Nos.D-4840 and D-4841 of 2015, decided on 6th June, 2016.

Industrial Relations Act (X of 2012)---

----Ss. 54, 31 & 35---National Industrial Relations Commission (Procedure and Functions) Regulations, 1973 Regln.32(2) (C)---Transfer of members of Trade Union---Unfair labour practices on the part of employers---Scope---Negotiations relating to differences and disputes---Petitioners' Union/Collective Bargaining Agent (CBA) raised industrial dispute and submitted a charter of demands to the establishment, but the establishment instead of resolving the dispute, issued transfer letter of the petitioners---Petitioners regarding issuance of said transfer letters as 'unfair labour practice' and violation of S.31 of Industrial Relations Act, 2012, filed petitions under S.54 read with S.31 of the Act before the Single Member of National Industrial Relations Commission (NIRC) challenging the said transfers, which were dismissed---Full Bench of the NIRC also dismissed the appeals on the ground that the NIRC did not interfere in the matters of transfer or micromanage the affairs of an organization, as the employer had the inherent right to transfer any of its employees---Validity---Petitioners were members/office bearers of Trade Union, which had been registered and certified as the CBA for the workmen employed in the establishment---Single Member and Full Bench of the NIRC had not taken into consideration that the petitioners' Union/CBA had given notice in terms of S.35 of Industrial Relations Act, 2012, charter of demands, and notice of strike to the establishment, which showed that the petitioners had raised the industrial dispute and presented the charter of demands to the establishment and in relation thereto the conciliation proceedings were pending settlement/disposal before the Federal Conciliator---Establishment had issued transfer letters to the active members/office bearers of the CBA in order to keep them away from their lawful trade union activities, which came within the ambit of 'unfair labour practice' as defined under S.31 of the Act---Since there was industrial dispute pending between the parties regarding the grades, yearly increments, house rent, etc., the possibility could not be ruled out that such transfers had been made to put pressure upon the office bearer/members of CBA---Management of the establishment had transferred the petitioners on the same day the Single Member of the NIRC had dismissed their petitions---In support of the petitions, seven petitioners had filed their affidavits, whereas, for the establishment the Manager Human Resources and the General Power of Attorney had filed the counter affidavit, but the Single Member of the NIRC had given weight only to the affidavit of the Manager, which showed that the Single Member had not gone through the record and had passed the impugned order in hasty manner---Non-recording of statements/ evidence of the petitioners would amount to deprive them from their legal right---Full Bench of the NIRC also had dismissed the appeals without applying the judicial mind and going through the record---Decision on the stay application and the main case were two distinct features---Dismissal of the application for the interim relief did not necessarily mean that the petitioners had no case on merits---Main case/petitions had also been dismissed without adverting to the grounds and pleas raised in therein---Main case could not have been dismissed without recording of the evidence---High Court normally did not intervene to decide factual controversy under its constitutional jurisdiction; however, if finding of the court below was based on no evidence, then the exercise of constitutional jurisdiction was not barred---High Court, setting aside the impugned order of both the forums below to the extent of dismissal of the main cases, admitted the petitions for the regular hearing and remanded the same to the Single Member of the NIRC to decide the main cases on merits after recording the evidence---Constitutional petition was allowed accordingly.

PLD 1988 SC 416; 2005 SCMR 100; 1984 PLC 1480; PLD 1988 SC 53, 2004 SCMR 28 and 1998 SCMR 68 ref.

The Commissioner and another v. Mian Sher Muhammad 1972 SCMR 395 and Tehsil Municipal Officer, TMA Kahuta and another v. Gul Fraz Khan 2013 SCMR 13 rel.

M.A.K. Azmati for Petitioners.

Muhammad Farooq Ghani for Respondents Nos.3 and 4.

2016 P L C 191

[Labour Appellate Tribunal Balochistan]

Before Abdullah Baloch, Member

CHIEF EXECUTIVE OFFICER QESCO and another

Versus

ABDUL QADIR

Labour Appeal No.07 of 2015, decided on 31st August, 2015.

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

----Ss. 2(dd), 41 & 55(3)---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(i)---Promotion--- Holding of promotion order in abeyance---Grievance petition--­Workman'---Determination---Employee, who initially was working asTest Inspector', along with three others was promoted as 'Junior Engineer' (BPS-17)---Prior to said promotion, employee along with other promotees had completed all codal formalities for promotion to the satisfaction of employers---Employee also completed his B-Tech (Hons) with the permission of the employers---Employee was drawing the pay of promoted post, but employer, without any lawful justification held in abeyance the promotion order of the employee, along with others---Employer restored the promotion of other two employees, but order to the extent of the employee, was held in abeyance---Employee filed grievance petition, which was allowed by the Labour Court, and the employers were directed to restore promotion order---Contention of the employers was that employee, being not "workman", Labour Court had no jurisdiction in the matter, and grievance petition filed by the employee was not competent---Validity---Employee, initially was appointed as L.S., and, thereafter was upgraded , to the post of Test Inspector (BPS-15), but his duties were manual in nature, and he had no authority of hiring and firing---No evidence was brought on record in rebuttal against nature of duties of the employee by the employers---Objection of the employers regarding the status of the employee as workman, had no force---Service of the employers, fell within the definition of "workman" as provided under S.2(dd) of Balochistan Industrial Relations Act, 2010 as well as under S.2(i) of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968---Employer not being a Frans-Provincial Establishment, services of the employees of said Establishment, were governed by Balochistan Industrial Relations Act, 2010 and Industrial and Commercial Employment (Standing Orders) Ordinance, 1968---Labour Court had jurisdiction to adjudicate upon the matter and grievance petition was competently filed---Employee had submitted all relevant documents and Educational Certificates of the employee, had already been got verified by the employers from the University of Engineering and Technology---Orders of the employers were outcome of mala fide intention, without lawful justification, illegal, void ab initio; and had rightly been set aside by the Labour Court---Employers, having failed to point out any material point of law and fact for interference in impugned judgment of the Labour Court, appeal was dismissed, in circumstances.

PLD 2006 SC 602 ref.

Mirza Luqman Masood for Appellants.

Asadullah for Respondent.

Date of hearing: 25th August, 2015.

2016 P L C 213

[Labour Appellate Tribunal Balochistan]

Before Abdullah Baloch, Member

ARSLAN and 4 others

Versus

ADMINISTRATOR METROPOLITAN CORPORATION QUETTA and another

Labour Appeal No.4 of 2015, decided on 5th June, 2015.

Balochistan Industrial Relations Act (XIII of 2010)--

----Ss. 41 & 55---Denial of appointment and payment of salaries--- Grievance petition---Employees, who were appointed as Sweepers on permanent basis, were performing their duties; and there was no complaint against them---Employers, having not paid salaries of the employees, despite their several attempts, employees filed grievance petition, which was dismissed by the Labour Court---Employers, claimed that, employees were never been in their service; and that employees had managed to obtain false appointment letters--Record had reflected that employees were appointed by two office orders, respectively issued with the signatures of the Administrator of employer Metropolitan Corporation---Said orders were issued to the employees after proper entries made in the dispatch registers of the employers---Counsel for the employers did not deny the entries appearing in the register, and in serial numbers mentioned in sequence in register, but he stated that same was managed and was false one---Validity---Such like forgery in official record could not be carried out by outsiders---Official letter heads of the Administrator and official dispatch register, were in the custody of the concerned officials---Impugned judgment passed by the Labour Court suffered from material illegalities and irregularities and being not sustainable, was set aside---Case was sent to the Metropolitan Corporation (Employer) with the direction that the grievance notice filed by the employees to the employer, was deemed to be pending before the authority to decide the same after providing full opportunity to the employees; and conduct inquiry from the officers and officials concerned; fix responsibility, if some one found guilty; and thereafter decide the grievance notice in accordance with law within a period of one month from the receipt of the present judgment.

Sabir Jan for Appellants.

Abdul Sattar Khan for Respondents.

Date of hearing: 2nd June, 2015.

2016 P L C 225

[Labour Appellate Tribunal Balochistan]

Before Abdullah Baloch, Member

KHADIM HUSSAIN BHATTI and another

Versus

SERENA HOTEL LABOUR UNION through President and 3 others

Labour Appeal No.06 of 2015, decided on 9th September, 2015.

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

----Ss. 55 & 77---Embezzlement or misappropriation of funds of the Labour Union---Respondent/Newly elected President of Labour Union in the establishment, after taking charge of his office, asked the appellants/former union representatives, to hand over the record and books of account lying with them for relevant period, but the appellants were reluctant to hand over the same; it was alleged that despite the direction of Registrar, Trade Unions, appellants had not provided the record to the complainant---Complainant, had further alleged that a huge amount had been embezzled and misappropriated by the appellants being former office bearers of the Union---On filing complaint by the respondent, before the Labour Court, issues were framed, evidence was recorded and Labour Court vide impugned order allowed the complaint---Moot question between the parties was issue regarding misappropriation of Union funds by the appellants/former union representatives---Parties produced witnesses in proof of their respective claims---Witness produced by appellants, had denied the allegations levelled against them by the respondent stating that they had properly maintained the record and filed return to the Registrar, Trade Unions---Said portion of deposition of the witness, was nowhere confronted or denied by the respondent, which amounted admission of the same by the respondent---Said witness, had further deposed that earlier to that inquiry, another inquiry on the same allegation was conducted, wherein matter between the parties was amicably settled---Record showed that it could safely be said that inquiry conducted in the case of the appellants was defective in nature; and findings of the report could not straightaway made out a case of embezzlement or misrepresentation---Issue of embezzlement which was not proved, was wrongly decided by the Trial Court---Material illegalities and regularities were found in the record, which required thorough, impartial inquiry for fixing responsibilities after providing full and fair opportunities to the parties---Impugned judgment passed by the Labour Court, was entirely based on the findings of inquiry report which was defective in nature---Impugned judgment of the Labour Court was set aside and matter was remanded to Registrar, Trade Unions, with the direction to constitute a two Member Committee of Senior and experienced Officers, to conduct a comprehensive inquiry after providing full and fair opportunity to record statement and produce evidence---Said Committee would be empowered to access to the record of concerned Union; fix responsibilities for inefficiency, default and embezzlement, if committed by any one---Registrar, Trade Unions, was further directed to take action on the recommendations of Committee, in accordance with law.

Sarfaraz Ahmed Sheikh for Appellants.

Najam-ud-Din Mengal for Respondent No.1

Muhammad Adnan Saleem and Zahoor Ahmed Baloch representative of Respondent No.2.

Abdul Sattar Khan for Respondent No.3.

Respondent No.4 in Person.

Dates of hearing: 19th, 27th August and 2nd September, 2015.

2016 P L C 251

[Labour Appellate Tribunal Balochistan]

Before Abdullah Baloch, Member

CHIEF EXECUTIVE HUMAN DEVELOPMENT FOUNDATION, ISLAMABAD and 3 others

Versus

ABDUL WAHID

Labour Appeal No.9 of 2015, decided on 5th November, 2015.

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

----Ss. 41 & 55---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.Os.1(b) & 12---Termination of service---Grievance application---Employee, who initially was appointed on contract basis, his contract of service was extended from time to time---Employee who rendered his services as "workman", for more than six years, was terminated without any cogent reasons, enquiry or show-cause notice---Services of the employee were governed and protected under the provision of S.O.1(b) of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, which had provided proper mechanism for termination of service---Under provisions of said Standing Orders Ordinance, 1968, prior to taking final decision in case of termination of service of employee, he would be given fair opportunity of hearing through show-cause notice, conducting inquiry, but all such requisite formalities, were not observed in the case of employee, and employee, was condemned unheard---Objection of the employers that grievance application filed by the employee, was time-barred; and that no grievance notice was sent by the employee to the employers, being not sustainable, was overruled, as termination was communicated to the employee through E. Mail, and the employee issued grievance notice by E-Mail on after 8 days---Employee continuously approached the employers but they did not pay any heed to the grievance of the employee---Purpose of serving grievance notice was to bring the grievance in the notice of employer before approaching Labour Court---Law/Legislature had not provided a specific format for serving of grievance notice---Grievance notice, in circumstances, had been fully served in shape of said communication of the employee, with the employers---Fact that grievance notice was issued by the employee to the employers well in time, was not disputed by the employers---Employers, with mala fide intention delayed the decision by one or the other pretext by means of false assurance to the employee---Employee, having been terminated without adhering the mandatory provisions of law, Labour Court, had rightly accepted grievance application of the employee---No material illegality or irregularity in the impugned judgment of the Labour Court, having been pointed out, same, was upheld, and appeal filed against said judgment was dismissed, in circumstances.

2012 PLC 331 and 2014 PLC 209 distinguished.

PLD 2002 SC 84; Civil Appeals Nos.83 and 84 of 2006; NLR 2009 Labour 39; 2010 PLC 259; 2010 PLC 267; PLD 2002 SC 84 and 1999 PLC 836 ref.

(b) Administration of justice---

----Principle---When a thing was to be done in a particular manner, it must be done in that way, and not otherwise---Decision be taken on the basis of merits of each case, rather than on technicalities.

Adnan Basharat for Appellants.

Abdul Zahir Khan Kakar for Respondent.

Date of hearing: 29th October, 2015.

2016 P L C 293

[Labour Appellate Tribunal Balochistan]

Before Abdullah Baloch, Member

CHIEF EXECUTIVE OFFICER and another

Versus

MUHAMMAD YAR

Labour Appeal No.8 of 2015, decided on 18th November, 2015

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

----Ss. 41 & 55---Tampering of date of birth of employee in the service book---Grievance application for rectifying date of birth in service record---Date of birth of the employee was determined by the employers as 25-1-1956, whereas the employee claimed that his date of birth was 25-12-1960, and he filed application for rectifying his date of birth in service record---Labour Court, vide its judgment allowed application of the employee, with direction to the employers to correct the date of birth of the employee as 25-12-1960 as claimed by him, instead of 25-1-1956---Original service book showed that in the column of date of birth of the employee, over-writing had been done in words and figures---Certain forms attached with service book, also showed that date of birth of the employee, was tampered with---Inquiry Committee had specifically admitted that overwriting was found in the record, but the Committee failed to fix responsibility of the persons under whose safe custody such glaring illegality and irregularity had taken place---Contention of counsel of the employers, was that date of birth of an employee, once recorded in the service book could not be changed after prescribed period of two years from the date of appointment---Validity---Alleged overwriting and tampering had been proved on examination of the original record, service book and annexed original group insurance forms---Matriculation certificate and CNIC of the employee had supported case of the employee---For gross negligence and illegalities of the employers, employee could not be penalized---No specific ground having been taken by the employers, contention of the employers was rejected---Service Book of the employee was in the custody of the employers, and beyond the access of the employee---Labour Court after proper appreciation and examination of record had rightly decided issue with regard to tampering of the date of birth of the employee in his Service Book in favour of employee and against the employers---In absence of any material illegality or irregularity in the impugned judgment of the Labour Court for interference by Labour Appellate Tribunal, judgment passed by the Labour Court was maintained, and appeal being devoid of merits, was dismissed, in circumstances.

Secretary to Government of N.W.-F. P. Zakat/Social Welfare Department, Peshawar v. Sadullah Khan 1996 SCMR 413 ref.

Ghulam Mustafa Buzdar and Ain-ud-Din for Appellants.

Asif Reki for Respondent.

Date of hearing: 13th November, 2015.

2016 P L C 383

[Labour Appellate Tribunal Balochistan]

Before Abdullah Baloch, Member

MUHAMMAD SIDDIQUE and another

Versus

ABDUL NABI and 11 others

Labour Appeal No.10 of 2015, decided on 30th October, 2015.

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

----Ss. 3, 18, 32, 41, 52 & 55---Right and choice of employee to join Trade Union---Refusal of such right---Grievance application---Employees, who earlier formed their own union in the year 2009, dissolved their said union in the year 2012, and they intended to merge with the Collective Bargaining Agent (Union) in the employers' establishment, but Collective Bargaining Agent in the establishment did not allow membership to the employees---Said employees approached the Registrar Trade Unions, for issuance of the membership and deposit of monthly subscription---Registrar allowed the employees to deposit Rs.2400 each and cast their votes, and the employees deposited monthly subscription, but despite that appellants/Collective Bargaining Agents did not restore their membership, and did not allow the employer to deduct the monthly subscription from the salaries of the employees---Said employees approached the Labour Court for their redressal by filing grievance application---Labour Court allowed the application, with the direction to deposit Rs.3200 each in lump sum within 15 days---Validity---Labour Court had passed the impugned judgment in the light of evidence brought on record---Employees approached the Union to deposit the lump sum amount of Rs.3200 as directed by the Trial Court, but the Union was reluctant to receive the same, which prima facie seemed that Union was reluctant to comply with and obey the orders of the Labour Court, which would amount to contempt of the court---Union had failed to point out any illegality and irregularity in the impugned judgment passed by the Labour Court and any logic and legal proposition for demand of monthly subscription fee for 25 months, instead of 16 months---Employees had deposited amount as ordered by the Labour Court---Impugned order passed by the Labour Court did not suffer from any illegality or irregularity, same needed no interference---Registrar Trade Unions, was directed to ensure the compliance of the judgments by the parties. A, B, C, D & E

Muhammad Ibrahim for Appellants.

Abdul Aziz Lehri for Respondents Nos.1 to 10.

Ali Riaz for Respondent No.11.

Muhammad Adam Saleem Representative of Respondent No.12.

Date of hearing: 26th October, 2015.

2016 P L C 353

[Punjab Labour Appellate Tribunal]

Before Justice (R) Sagheer Ahmed Qadri, Chairman

EXECUTIVE DIRECTOR, SHAIGAN PHARMACEUTICALS (PVT.) LTD. and 3 others

Versus

FAROOQ AHMED ZUBARI through representative and others

Labour Appeal No.BR-1310 of 2012, decided on 13th April, 2016.

Industrial Relations Ordinance (XXIII of 1969)---

----Ss. 2(xxviii) & 25-A---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(i) & S.O.12(3)---Termination of service---Grievance petition---Status of 'workman', determination of---Employee, who was appointed on permanent post of 'Area Sales Manager', his service was confirmed---When employee applied for leave on medical ground, his service was terminated---Employee challenged his termination being illegal without any lawful justification, with the prayer that he be reinstated with back benefits---Said grievance petition was resisted by the employers raising preliminary objections; that it was filed with mala fide on false and frivolous grounds; that employee had no cause of action; that employee having been appointed as 'Area Sales Manager', did not fall within the definition of "workman" as provided under S.2(xxviii) of Industrial Relations Ordinance, 1969, read with S.2(i) of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968---Labour Court allowed grievance petition---Validity---Appointment letter issued by the employers in favour of the employee, was to the effect that his employment would only be terminated by one month's notice in writing, either by the employers or by the employee; or by one month's salary in lieu of notice and that no notice would be required to be given, and no salary in lieu of notice could be claimed on the event of termination of his service arising from misconduct; or non-compliance of company's policy---Employee, had admitted that his basic job was to arrange the sales of employers' company; that he was not obliged to conduct any manual job, which was basic constituent of "workman"---Findings of the Labour Court in respect of status of the employees being not sustainable in eyes of law, were reversed---Labour Court having no jurisdiction to entertain the grievance petition, findings of the Labour Court were set aside. A, B, C, D, E & F

General Manager, Hotel International, Lahore and another v. Bashir A. Malik and others PLD 1986 SC 103; Messrs Brady & Co. (Pakistan) Ltd. v. Messrs Sayed Saigol Industries Ltd. 1981 SCMR 494 ; Shafi Muhammad v. Presiding Officer, Labour Court No. VI at Hyderabad and 2 others 1996 PLC 446; Managing Director Universal Oil and Vegetables Ghee Mills Limited, Sheikhupura v. Muhammad Khan 1989 PLC 239; Sultan Masud Tiwana v. General Manager, Dawood Hercules Chemicals Ltd., Lahore 1975 PLC 556 and I.C.I. Pakistan Manufacturers Ltd. (Polyester Works), Sheikhupura v. Muhammad Iftikhar Ahmad 1986 PLC 1133 ref.

Saqib Shafique for Appellants.

Respondents: ex parte.

2016 P L C 389

[Punjab Labour Appellate Tribunal]

Before Ch. Muhammad Tariq, Chairman

EXECUTIVE ENGINEER CANTT. CONSTRUCTION DIVISION (GEPCO) GUJRANWALA and another

Versus

BILAL AHMAD and another

Labour Appeals Nos.GA-77 and GA-135 of 2015, decided on 5th October, 2015.

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

----Ss. 33 & 47---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.15---Compulsory retirement on allegation of misconduct---Grievance application---Employee who was serving as Naib Qasid in the employer establishment, was compulsory retired on allegation that he was involved in theft---Grievance application of the employee was accepted by the Labour Court---Validity---Employee without any coercion had voluntarily accepted compulsory retirement and received amount as gratuity and G.P. Fund---Employee had also been receiving regularly amount of his monthly pension, he was estopped by his words and conduct to ask for withdrawal of his compulsory retirement---Time barred appeal had been filed by employee wherein he had prayed that impugned judgment to the extent of imposing condition for depositing all the pensionary dues be set aside---Prayer in said appeal itself expressed mala fide intention of the employee---Appeal filed by the employee, was dismissed on the ground of limitation as well on merits; while appeal of the employer against the employee was allowed and impugned judgment was set aside with the finding that the employee was no more employee of the employer, and his grievance application was incompetent. A, B & C

Muhammad Mubeen ul Islam's case PLD 2006 SC 602; 2015 SCMR 165; Executive Council AIOU's case 2010 SCMR 1484; 2013 MLD 1369; 2006 SCMR 1466; 2006 CLD 258; 2003 SCMR 1334; 2005 PLC 96; 2014 PLC 267; 2013 SCMR 190; 2010 TD (Labour) 279 and 2010 SCMR 1484 ref.

Syed Mujeeb-ul-Hassan for Appellants.

Salman Riaz Ch. for Respondent.

2016 P L C 424

[Punjab Labour Appellate Tribunal]

Before Justice (R) Sagheer Ahmed Qadri, Chairman

TEHSIL MUNICIPAL ADMINISTRATION through Administrator and others

Versus

ABDUL SATTAR and others

Labour Appeals Nos.417, 418, 419 and 420 of 2015, decided on 20th April, 2016.

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

----Ss. 33 & 47---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.1(b)---Regularization of service---Grievance petition---Workers who claimed that they had been performing their respective duties for more than nine months, had attained the status of permanent workmen filed grievance petition to the effect that their services be regularized---Grievance petitions filed by the workers was accepted by the Labour Court---Validity---Employers, could not establish that appointments of the workers, were made on work charge basis for 89 days---Worker, had fully proved on record that they had performed their duties for more than 90 days on job of permanent nature---Workers, who had attained the status of permanent workmen, were entitled to regularization of their services---Labour Court had rightly accepted grievance petitions of the workers---Appeals filed against the orders of the Labour Court, was dismissed, being meritless, in circumstances.

Tehsil Municipal Officer, Kahutta and others v. Gul Faraz Khan 2013 SCMR 13; Managing Director, Sui Southern Gas Company Ltd., Karachi v. Ghulam Abbas and others PLD 2003 SC 724; Punjab Seed Corporation v. Chairman Punjab Labour Appellate Tribunal and others Civil Petitions Nos.1655-L to 1684-L of 2014; Punjab Seed Corporation and 2 others v. Punjab Labour Appellate Tribunal and 2 others 1995 PLC 539 and Province of Punjab through Secretary Communication and Works Department and others v. Ahmed Hussain 2013 SCMR 1547 ref.

Zahid Mehmood Choudhry for Appellants.

Muhammad Yaseen Ataal for Respondents.

2016 P L C 465

[Punjab Labour Appellate Tribunal]

Before Justice (R) Sagheer Ahmed Qadri, Chairman

MUHAMMAD TAUFIQ KHAN

Versus

MULTAN ELECTRIC POWER COMPANY LIMITED, MULTAN and 3 others

Labour Appeal No.MN-984/2012, decided on 15th April, 2016.

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

----Ss. 33 & 47---Compulsory retirement---Grievance petition---Reinstatement with grant of 50% back benefits---Claim for full back benefits---Employee, who was compulsory retired from service; was reinstated in service by the Labour Court on filing grievance petition by the employee granting 50% back benefits for the period he remained out of job due to his compulsory retirement---Employee, claimed full back benefits contending that during period of his compulsory retirement he remained out of job and did not perform any gainful job, therefore, was entitled to fell back benefits---Labour Court, did not give any reason for grant of 50% back benefits---Impugned judgment was set aside to that extent---Employee was allowed full back benefits for the period he remained out of job due to order for his compulsory retirement, till his reinstatement in service.

Dilkusha Enterprises Ltd. v. Abdul Rashid and others NLR 1985 Labour 51, Muhammad Arshad Khan v. J&P. Coats Pakistan Ltd., Karachi and 2 others 1977 PLC 162, Chairman, State Life Insurance Corporation of Pakistan, Karachi and others v. Siddiq Akbar 2013 SCMR 752, National Bank of Pakistan, Hyderabad v. Sindh Labour Appellate Tribunal and another 1993 PLC 57; National Bank of Pakistan v. The Sindh Labour Appellate Tribunal, Karachi and another 1991 PLC 213; Dilkusha Enterprises Ltd. v. Abdul Rashid and others 1985 SCMR 1882 and Dilkusha Enterprises Ltd. v. Abdul Rashid and others 1985 SCMR 1882 ref.

Muhammad Anwar Awan for Appellants.

Abdul Razzaq Raja for Respondents.

2016 P L C 30

[Sindh Labour Appellate Tribunal]

Before Ali Sain Dino Metlo, Member

WASEEM HASSAN

Versus

Messrs PLANET COMMUNICATION (PVT.) LIMITED through Chief Executive and another

Appeal No.KAR-128 of 2013, decided on 9th October, 2015.

Sindh Industrial Relations Act (XXIX of 2013)---

----Ss. 2(xxxii), 34 & 48---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(i) & S.O.12---Termination of service---Grievance application---"Workman" status as---Determination---Employee, who joined employer company as a Software Engineer, and was lastly drawing monthly salary of Rs.37,5000, his services were terminated, as those were "no more required"---Grievance application filed by employee against termination of his service, was challenged by the employers on the ground that employee was not a "workman"; and provisions of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, were not applicable, to the employer company, as the total number of the employees was nineteen---Grievance application was dismissed by the Labour Court on the ground that employee was not a "workman"---Validity---Employee, was a qualified Software Engineer, and was performing highly sophistated job of developing, maintaining and testing Software, which, according to the employee himself was a specialized work; and could be performed only by a qualified engineer/specialized professional---Nature of work of an employee was to determine his status as "workman", his work must be either manual or clerical---Software Engineering, was highly specialized study of applying engineering to design, develop and maintain software---Work performed by the employee, required high degree of skill, knowledge and education; and little physical effort for its manifestation by using Keyboard of Computer---Such was predominantly work of mind, and work of hands was merely accessory---Definition of "workman" in the Sindh Industrial Relations Act, 2013, was wide in the sense that no condition of doing manual or clerical work was attached to it---Said definition of "workman", could not be applied to the employee seeking enforcement of his right, under the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968---Labour Court was justified to hold that employee, was not a "workman" within the meaning of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968---Appeal being meritless, was dismissed, in circumstances.

General Manager, Hotel Intercontinental, Lahore, v. Bashir A. Malik PLD 1986 SC 103 and All Pakistan SRBC Workers Union v. NIRC 2015 PLC 210 ref.

Appellant in person.

Faheem Ahmad for Respondent No.1.

Date of hearing: 9th October, 2015.

2016 P L C 37

[Sindh Labour Appellate Tribunal]

Before Ali Sain Dino Metlo, Member

HYDERABAD ELECTRIC SUPPLY COMPANY through Chief Executive Officer and another

Versus

MAQSOOD AHMED

Appeal No.HYD-378 of 2010, decided on 25th November, 2015.

Sindh Industrial Relations Act (XXIX of 2013)---

----Ss. 34 & 48---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.15(3)(d)(e)---Compulsory retirement/ dismissal from service---Reinstatement---Claim for full back benefits---Employer, compulsorily retired the employee due to his long absence for about four months from duty, bringing his absence as leave without pay---Subsequently, employee was dismissed from service on allegation that he had received amount from a person for getting him appointed as Lineman---Grievance application filed by the employee against his compulsory retirement and dismissal from service, was accepted by the Labour Court; and employee was reinstated with full back benefits---Validity---Employer had pressed appeal only to the extent of full back benefits, contending that employee had failed to prove that he was not gainfully employed during the period of his removal---Contention was misconceived as the employer in its written reply, did not deny the claim of employee that he was not gainfully employed during the period of his removal from service---Statement of employee, not challenged or rebutted by the employer, was sufficient to prove the negative fact---No exception could be taken to the order of the Labour Court granting full back benefits to the employee, in circumstances.

Mubeenusalam's case PLD 2006 SC 602 ref.

Abdul Hai Khan Pathan and Ahmed Murtaza Arab for Appellants

Ghulamullah Chang for Respondent.

Date of hearing: 29th October, 2015.

2016 P L C 42

[Sindh Labour Appellate Tribunal]

Before Ali Sain Dino Metlo, Member

Mrs. FARHANA

Versus

Messrs SINDH SMALL INDUSTRIES CORPORATION through Managing Director and 2 others

Appeal No.HYD-73 of 2015, decided on 29th September, 2015.

Sindh Industrial Relations Act (XXIX of 2013)---

----Ss. 34 & 48---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.12---Termination of service---Grievance application---Employee, a junior clerk, was terminated, and she on receiving one month pay in lieu of notice, she severed her relations with the employer corporation---Employee after about 10 years of her removal from service, filed grievance application before Labour Court, without filing application or showing any cause for condonation of the delay, in filing grievance application---Employee, had contended that an other employee, whose service was terminated on the same day by a separate, but similar order, having been directed by Labour Court to be reinstated, benefit of Labour Court judgment of that other employee should be given to her as well---Validity---Said other employee who was reinstated, was ten years senior in service to the employee and her rank was also higher---Order of the Labour Court was not "judgment in rem", as it had neither decided any question of law, nor its decision was binding---Facts of the two cases being quite different, the ratio of case of other employee, could not be applied to case of employee.

Mohammad Mubin-us-Salam's case PLD 2006 SC 602; 2011 PLC 161; 2009 SCMR 1; 1996 SCMR 1185 and 2005 PLC (C.S.) 368 ref.

Ms. Nasim Abbasi for Appellant

Nemo for Respondents.

Date of hearing: 29th September, 2015.

2016 P L C 52

[Sindh Labour Appellate Tribunal]

Before Ali Sain Dino Metlo, Member

WASEEM ANWAR UJAN

Versus

Messrs KHUSHALI BANK LTD. through President and 4 others

Appeal No.HYD-610 of 2011, decided on 28th September, 2015.

Sindh Industrial Relations Act (XXIX of 2013)---

----Ss. 34 & 48---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(i) & S.O.15(4)---Constitution of Pakistan, Art.11---Resignation without giving one month's prior notice---Dismissal from service---Employee, who was appointed in the Bank as Customer Service (Trainee), tendered his resignation on the ground that he had been offered a better job---Employer Bank, instead of accepting resignation of the employee, dismissed him from service on the ground that he had resigned without giving one month's prior notice---Employee while tendering his resignation, had disclosed the reason for resignation i.e. offer of a better job---Labour Court, while holding the employee to be a "workman", upheld his dismissal for the same reason i.e. tendering resignation without one month's prior notice---Validity---Orders of the Bank and the Labour Court were not sustainable, for the reasons; that employment contract did not provide consequence of not giving one month's prior notice, condition of notice could not be treated as mandatory; that according to S.O.15(4) of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, a workman could be dismissed only on proof of charge of misconduct, and want of one month's prior notice, would not come within the purview of misconduct; that under Art.11 of the Constitution, forced labour was prohibited, and no person could be compelled to perform compulsory service unless required so by law---Refusal to accept resignation of the employee without any charge of misconduct against him, would amount to forcing him to do compulsory service---No law required the employee to do service of the Bank compulsorily---Employer Bank had not claimed that it had suffered any loss due to resignation of the employee without one month's prior notice---At the time of tendering his resignation, the employee had no portfolio---Manager of the concerned branch of the Bank had also no objection on the resignation of employee and had recommended it for acceptance---Labour Court grossly erred in not accepting the grievance application of the employee---Order of the Labour Court was set aside, appeal filed by the employee and grievance application of the employee, were allowed; and order of the Bank dismissing the employee from service was converted into acceptance of his resignation, in circumstances.

Mehmood Hussain Siddiqui for Appellant.

Sajjad A. Chandio for Respondents.

Date of hearing: 26th August, 2015.

2016 P L C 59

[Sindh Labour Appellate Tribunal]

Before Ali Sain Dino Metlo, Member

MUHAMMAD AZEEM ZAIDI

Versus

PAK PETRO CHEMICAL INDUSTRIES (PVT.) LTD. and another

Appeal No.942 of 2010, decided on 12th October, 2015.

Sindh Industrial Relations Act (XXIX of 2013)---

----Ss. 34 & 48---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.12---Termination of service due to closure of factory---Application of employee for reinstatement in service--- Dismissal of application--- Validity--- Case of appellant/ employee was that he was transferred to employer's sister company, which terminated his service unlawfully---Case of the employers was that the appellant was employee of the concern to which he described as sister concern, who transferred him for short period to its sister company which called him back, and thereafter dispensed with his services due to closure of its factory for economic reasons with the permission of Labour Court---Labour Court found that the appellant was employee of said sister concern who dispensed with his services due to closure of its factory---Appellant had admitted that he was employed by the employer; and that at one stage he had tendered his resignation, but subsequently withdrawn, and employer allowed him to continue the job; that after his transfer to the sister concern for a short period of about 6 months, his transfer was cancelled; and he was called back and that he joined his duty back with the employer, who dispensed with his services due to closure of its factory---In presence of clear admission of the appellant, no exception could be taken to the finding of the Labour Court that appellant was employee of the employer who closed down the factory---Transfer of an employee for a short period to a sister company, would not make him employee of the sister company---Actions of the employer being beyond territorial jurisdiction, could not be scrutinized by Labour Court or Labour Appellate Tribunal in Sindh---Appellant could seek his remedy from competent court, in circumstances.

M.A.K. Azmati for Appellant.

Muhammad Rafiq Malik for Respondents.

Date of hearing: 5th October, 2015.

2016 P L C 103

[Sindh Labour Appellate Tribunal]

Before Ali Sain Dino Metlo, Member

Messrs THATTA CEMENT COMPANY LTD. through Authorized Officer

Versus

GHULAM MUHAMMAD and 33 others

Revision Application No.HYD-01 of 2015, decided on 28th October, 2015.

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

----Ss. 15 & 17---Sindh Industrial Relations Act (XXIX of 2013), S.48(5)---Failure of employer to pay legal dues to the workers---Application to Authority under Payment of Wages Act, 1936---Employer company did not pay legal dues to its workers, who opted for separation under the Golden Handshake Scheme---Workers, filed applications under S.15 of the Payment of Wages Act, 1936, which were allowed, directing the employer to deposit legal dues of the workers within 30 days---Employer filed appeal before Labour Court after 147 days, instead of 30 days as prescribed under S.17(1) of Payment of Wages Act, 1936---Said appeal was dismissed by the Labour Court being time barred---Validity---Labour Court refused to condone delay---Plea of the employer was that appeal was not filed within prescribed period of 30 days as the court was lying vacant---Plea was misconceived as the Presiding Officer was available in certain periods and the office accepted/received applications/appeals regularly during absence of the Presiding Officer---Employer after receiving certified copy of the order of Authority, could have filed appeal and could have obtained stay order during the period the court was available---Even grant of stay, was not a condition or requirement for filing appeal---No justification or explanation existed for filing appeal after 88 days or obtaining the stay---Payment of Wages Act, 1936, while authorizing the original Authority to condone delay in filing application under S.15, had not authorized the Appellate Authority to condone delay in filing appeal under S.17 of said Act---Neither the employer had shown sufficient cause for not filing appeal within time, nor appellate authority had power to condone the delay---Labour Court, had rightly dismissed the appeal as time barred---On merits also, the employer company had no case, as it did not dispute quantum of the legal dues, claimed by the workers, nor claimed to have paid them any amount in that regard---Workers produced sufficient documentary proof that they were employees of the employer company---Administrative Officer of the employer, had admitted that workers were the employees of the employer---Employees in their applications had claimed only legal dues, which even according to the agreement, was responsibility of the employer---In the matters of pay and pension bar of limitation, was not applied as their non-payment was a continuing breach/wrong giving rise to fresh cause of action on every refusal from day to day---No case having been made out for exercise of suo motu revisional jurisdiction, revision was dismissed, in circumstances.

Abdul Ghaffar v. Mst. Mumtaz PLD 1982 SC 88; Ali Muhammad v. Fazal Hussain 1983 SCMR 1239; Allah Dino v. Muhammad Shah 2001 SCMR 286; Rao Solat Yaseen Khan v. Director General and others 1995 PLC (CS) 1026; Kh. Zaheer Ahmed v. District Account Rawalpindi, 1984 PLC (CS) 386; Zardad Khan v. Chairman WAPDA Lahore 1987 PLC (CS) 181 and Rao Muhammad Yaseen Khan v. Secretary Ministry of Education 1986 PLC (CS) 66 and Managing Director Sui Southern Company Limited v. Ghulam Abbas and 2 others PLD 2003 SC 724 = 2003 PLC (C.S.) 796 ref.

Ch. Muhammad Ashraf Khan for Applicant.

Miss Nasim Abbasi for Respondents.

Date of hearing: 30th September, 2015.

2016 P L C 160

[Sindh Labour Appellate Tribunal]

Before Ali Sain Dino Metlo, Member

Messrs KARACHI CLUB STAFF WORKERS' UNION through General Secretary

Versus

PRESIDING OFFICER, SINDH LABOUR COURT NO.5 and another

Appeal No.KAR-10 of 2015, decided on 7th October, 2015.

Sindh Industrial Relations Act (XXIX of 2013)---

----Ss. 2(ix), (xxx), 12(1) & 48---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(b)(f)--- Cancellation of registration of Trade Union---Registration of Trade Union, was cancelled by the Labour Court on the ground that establishment (Club) being neither Industrial nor Commercial, its employees could not form Trade Union--- Validity---Sindh Industrial Relations Act, 2013, was applicable to "Establishments" and "Industries", while the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, was applicable to 'Industrial Establishment' and 'Commercial Establishment'---Definition of "Establishment" and 'Industry' given in the Sindh Industrial Relations Act, 2013, was wider than the definition of 'Industrial Establishment' and 'Commercial Establishment', given in the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968---'Club' was "Commercial Establishment" as defined in the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968---Labour Court did not correctly held that Club was not 'Establishment' or `Industry '---Earning of profit, was not essential for an 'Industry', and Trade Union, could be formed in a non-profit organization---Act of Labour Court, besides being illegal, was also improper and mala fide-Impugned order was set aside and Labour Court was directed to keep the registration of appellant Trade Union intact.

2008 PLC 58; 1993 PLC 543; 1989 PLC 760; PLD 1980 SC 307 = 1982 SCMR 126 and 2010 PLC 20 ref.

Sardar Manzoor Hussain Khan for Appellant.

Rijhumal Sukhramdas Sajnani, Assistant Law Officer for Respondent No.2.

Asadullah Sheikh for Karachi Club.

Date of hearing: 8th September, 2015.

2016 P L C 177

[Sindh Labour Appellate Tribunal]

Before All Sain Dino Metlo, Member

OBAIDUR REHMAN

Versus

Messrs KARACHI CLUB, KARACHI and another

Appeal No.KAR-67 of 2013, decided on 7th October, 2015.

Sindh Industrial Relations Act (XXIX of 2013)---

----Ss. 34 & 48---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(b), S.O.1(a)(6)(g) & 12(3)---Termination of service---Grievance application-Services of the employee, appointed as 'waiter' in a club, were terminated on the ground that period of his temporary employment was over---Grievance application, filed by the employee against termination of his service was dismissed by the Labour Court--- Validity---Grievance application, was dismissed on the ground that provisions of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, did not apply to the employer club---Normally, in a club, work of 'waiter' was of permanent nature---Employer club did not claim that the employee was appointed on any project of "temporary nature, likely to be finished within a period not exceeding nine months"---Employee having been appointed against a permanent post on which he served for more than two and half years, was a permanent workman, his services could not be terminated on the ground that the period of his contract was over---Club had not asserted that the post, against which the employee was appointed had been abolished---Employer club was a big establishment having more than 400 employees---Employee, could not be treatd4 as a `contract worker', because his remuneration, was not to be calculated on "piece rate basis"---Even the letter of contract, showed that the employee was appointed on 'salary basis' and not on "piece rate basis"---Expressions "service no more required", "found surplus" and "termination of temporary service", were not explicit reasons for the action taken, as required by S.0.12(3) of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968---Termination of services of the employee, being wrongful, could not be sustained---Claim of the employee, supported by his statement on oath, that after termination of his service, he could not employ himself' gainfully and remained jobless, had not been rebutted by the employer club by proving positively that he was gainfully employed---Impugned order was set aside, grievance application was allowed with direction to reinstate the employee in service with full back benefit, immediately.

2008 PLC 58; 1993 PLC 543; 1989 PLC 760; Syed Haider Imam Rizvi v. 4th Sindh Labour Court, Karachi 2010 PLC 20; 1990 PLC (C.S.) 385; 1992 PLC 1028; 2000 PLC 325; 2006 PLC 102; 2007 PLC 83 and 2009 PLC 50 ref.

Abdul Zubaid for Appellant.

Asadullah Sheikh for Respondents.

Date of hearing: 8th September, 2015.

2016 P L C 218

[Sindh Labour Appellate Tribunal]

Before Ali Sain Dino Metlo, Member

ABDUL WAJID

Versus

Messrs REGENT PLAZA HOTEL AND CONVENTION CENTER through Manager/Managing Director, Karachi

Appeal No.KAR-52 of 2013, decided on 22nd October, 2015.

Sindh Industrial Relations Act (XXIX of 2013)---

----Ss. 34 & 48---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.15---Dismissal from service---Grievance application---Employee, who was working as barman in hotel, was dismissed from service on proof of charges of misconduct in an enquiry---Employee served unhygienic drinking water in an unsealed bottle instead of sealed bottle of mineral water ordered by a guest and served orange juice mixed with water to another guest---Prior to that 5 letters of warning were given to the employee on different dates for his repeated acts of misconduct---Employee had admitted to have received the warning letters and admitted to have apologized in writing for his negligence---Employee was warned for sitting and eating in the restaurant during duty hours; warned for remaining absent without intimation for 3 days; and he was also warned for such like other misdeeds---Business of hotel largely depended upon the quality of service rendered to the guests---Barman plays an important role in the business, his punctuality, courtesy, etiquettes and cleanliness, were of significant importance---Conduct of the employee, had all along remained improper and unbecoming of a barman---Employer, who suffered a lot due to the persistent indifferent and careless conduct of the employee, could not be made to suffer and tolerate him further---No exception could be taken to the order of the Labour Court, refusing to reinstate the employee in service.

Abdul Zuabid for Appellant.

Masud Ahmed Khan for Respondent.

Date of hearing: 13th October, 2015.

2016 P L C 267

[Sindh Labour Appellate Tribunal]

Before Ali Sain Dino Metlo, Member

Messrs KARACHI SHIPYARD AND ENGINEERING WORKS LIMITED through Deputy General Manager (Personnel), Karachi

Versus

TALIB HUSSAIN

Appeal No.KAR-616 of 2011, decided on 2nd November, 2015.

Sindh Industrial Relations Act (XXIX of 2013)---

----Ss. 34 & 48---Change of date of birth---Grievance application---Employee at the time of his appointment declared his age as 23 years, and on basis of such declaration Medical Officer worked out his date of birth as 7-11-1955, which was mentioned in the record of his service---Employee, after more than 30 years of his joining the service, filed grievance application for directing the employer to change his date of birth from 7-11-1955 to 1-1-1958---Employee repeatedly and consistently declared and accepted his date of birth as 7-11-1955; his belated contention that he had declared the year of his birth as 1958, was an afterthought which could not be accepted---Birth Certificate heavily relied upon by the employee showing date of birth as 1-1-1958, was of no value as said date of birth was reported to the union council after more than 51 years of his birth---Entry kept in the record of the Union Council could not be treated as entry made in due course of the performance of official functions---Such was a manipulated entry---Under provision of S.34 of Sindh Industrial Relations Act, 2013, grievance notice, was to be given within three months of the date on which the cause of grievance arose; and a worker could take the matter to the Labour Court within 60 days from communication of employer's decision---In view of said express statutory limit of time for the redressal of grievance, it could not be said that a worker could get the date of his birth changed at any time without any limit---Employee had neither given any explanation, nor asked for condonation of delay, nor the Labour Court had condoned same on any ground---Labour Court under a misconception, erred to hold that employee could ask for changing date of birth at any time and erroneously directed the employer to change his date of birth---Order of the Labour Court was set aside and employee's grievance application stood dismissed.

Dr. Shamim Waheed's case 2008 PLC (C.S.) 192; Dr. Aslam Baloch's case 2014 SCMR 1723; Mehar Khan's case 1988 SCMR 613; Qamaruddin's case 2007 SCMR 66; Caltex Oil Pakistan Limited v. Abdul Mateen 1995 PLC 280 and Shahid Ali v. Oil and Gas Development Company Limited 2015 PLC (C.S.) 266 ref.

Muhammad Nishat Warsi for Appellant.

Rafiullah for Respondent.

Date of hearing; 22nd October, 2015.

2016 P L C 276

[Sindh Labour Appellate Tribunal]

Before Ali Sain Dino Metlo, Member

Messrs SIND CLUB through Secretary

Versus

ASIF ALI and another

Appeal No.KAR-442 of 2011, decided on 22nd October, 2015.

Sindh Industrial Relations Act (XXIX of 2013)---

----Ss. 34 & 48---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.15---Dismissal from service---Grievance application---Employee who was working as waiter in a club resigned and his resignation was accepted on the same day---On the very same day, employee sent by post an application to the President of the club for not accepting his resignation, contending that he had resigned under pressure---On receiving said application, Competent Authority, directed the employee to join duty immediately, failing which it would be presumed that he was misplaying his resignation; and it would be treated as final---Employee, instead of joining duty, informed the employer that he would not join duty unless his resignation was declared void---On receiving charge sheet about his unauthorized absence from duty, employee reported for duty which proved that employee had remained absent unauthorizedly from duty for more than 10 days, the employee was dismissed from service---Refusal of employee to join duty was uncalled for; it would have been proper, if he had joined duty before receiving the charge sheet---Labour Court reinstated the employee mainly on the ground that hands of the employer, were not clean---Such could be a mitigating circumstance, but not a reason for complete exoneration---Act of the employee of not joining duty after he was directed to do so, would amount to "misconduct" within the meaning of S.O.15(3)(e) of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968---Punishment of dismissal from service was too severe, particularly when on receipt of the charge sheet he readily reported for duty with thanks---Award of punishment provided under S.O.15 of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, must fulfil the requirements of old aphorism 'let the punishment fit the crime'---It required that the level of punishment must be scaled relative to the severity of affording behaviour---Extreme action of dismissal, in circumstance, was unwarranted---Dismissal of the employee from service, was converted into withholding his increment for one year, in circumstances.

Personnel/Factory Manager, Packages Ltd., Lahore v. Yousuf Masih 1987 PLC 668; Muslim Commercial Bank Ltd. v. Ghulam Muhammad Memon 2008 PLC 40 and Muhammad Ali S. Bokhari v. Federation of Pakistan through Establishment Secretary, Islamabad 2008 SCMR 214 ref.

Muhammad Ali Khan for Appellant.

Rafiullah for Respondent.

Date of hearing: 14th October, 2015.

2016 P L C 300

[Sindh Labour Appellate Tribunal]

Before Ali Sain Dino Metlo, Member

ARSHAD ALI KHAN

Versus

Messrs DALDA FOODS (PVT.) LTD. and another

Appeal No.KAR-280 of 2011, decided on 5th November, 2015.

Sindh Industrial Relations Act (XXIX of 2013)---

----Ss. 34 & 48---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.12---Termination of services---Grievance application---Services of the employee, along with several other workers having been terminated on the ground that their services were "no longer required", all workers including the employee filed grievance application---Labour Court by a common judgment reinstated workers with 75% back benefits, except six workers, including the employee; whose application was dismissed on the ground that after withdrawing his legal dues deposited in his Bank account gradually, he ceased to be an "aggrieved person"---Said amount of legal dues, was deposited in account of the employee after termination of his services---Gradual withdrawal of said amount by the employee to sustain his life during unemployment, would not amount to waiver so as to estop him from challenging his unlawful termination---Labour Court as well as Tribunal were required to pass just and proper orders with regard to appropriate relief to be given to the employee; which could not be limited only to reinstatement, but would include award of compensation in lieu of reinstatement---Labour Court or Tribunal, was not handicapped to award compensation in lieu of reinstatement, if that be the just and proper order in the circumstance of the case---Employee as per his own claim, served for four years only---Award of lump sum reasonable compensation of Rs.300,000, in lieu of reinstatement was given to him---Employer, was directed to deposit said amount within 30 days.

General Manager National Radio Telecommunication Corporation v. Muhammad Aslam 1992 SCMR 2169 ref.

Bacha Fazal Manan for Appellant.

Imran Ahmed for Respondent No.1.

Rafiullah for Respondent No.2.

Date of hearing: 16th October, 2015.

2016 P L C 303

[Sindh Labour Appellate Tribunal]

Before Ali Sain Dino Metlo, Member

BAKHT-E-RAVAN

Versus

Messrs NOVATEX LIMITED

Appeal No.KAR-830/2010(LA No.194/2005), decided on 2nd February, 2016.

Sindh Industrial Relations Act (XXIX of 2012)---

----Ss. 34 & 48---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.12---Removal from service---Grievance application---Workman, who claimed to be a permanent "workman", working as driver in the factory of employer, filed application for his reinstatement in service with back benefits as the employer had allegedly removed him from service wrongfully without any order in writing---Employer contended that workman was employee of its contractor to whom it had assigned the work of loading and unloading raw material and finished goods within the factory premises---Labour Court dismissed the application of workman with the reason that workman had failed to prove that he was employee of the employer---Work of loading and unloading of raw material and finished goods within the factory premises was directly concerned with the production of the factory; and was not an independent work; and lifters and tractor trollies used for the work, belonged to the employer---Operators and drivers of the lifters and tractor trollies, in circumstances, were for all practical purposes, workmen employed for the factory; and the story of the contractor, appeared to have been introduced as a device to deprive the workers of their legal rights---Name of workman appeared in the monthly shift schedules, signed by Notified Manager of employer, which had shown that workman was employee of the employer and not of the so-called contractor---Workman was not removed or dismissed from service on the charge of absence from duty---Workman was employee of the employer and was wrongfully removed from service---Judgment of the Labour Court, being not sustainable, was set aside---Period of more than 17 years had passed, and the workman was doing job in another establishment---Reinstatement with back benefits, would be harsh to the employer; and reinstatement without back benefits, would not be beneficial for the workman---Appellate Tribunal, in circumstances observed that it would be appropriate to compensate the workman adequately for the loss of the job---Compensation of Rs.150,000 was awarded to the workman in lieu of reinstatement---Employer was directed to deposit said amount within 60 days for payment to the workman.

Ashraf Hussain Rizvi for Appellant.

S.M. Iqbal for Respondent.

Date of hearing: 27th January, 2016.

2016 P L C 358

[Sindh Labour Appellate Tribunal]

Before Ali Muhammad Balouch, Member

ST. PATRICK'S HIGH SCHOOL AND COLLEGE through Rector/Principal and another

Versus

PRESIDING OFFICER, SINDH LABOUR COURT NO.V, and another

Appeal No.KAR-1594 of 2010 (C.P. No.S-573 of 2009), decided on 19th November, 2014.

Industrial Relations Ordinance (XCI of 2002)---

----S. 46---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.Os.12 & 15---Termination of service---Grievance application---Employee, who was permanent employee was dismissed/terminated from service without issuing any show-cause notice, charge sheet, holding of enquiry and affording him opportunity of being heard---Record showed that employer institution terminated their workers, without due process of law---Labour Court, had rightly allowed grievance application of the employee, thereby directing the employer to reinstate the employee in service with back benefits---Findings of the Labour Court, being sound and well reasoned, no reason existed to interfere. A & B

A. Aziz Khan for Appellants.

Ch. Azhar Elahi for Respondent No.2.

Date of hearing: 22nd September, 2014.

2016 P L C 394

[Sindh Labour Appellate Tribunal]

Before Ali Sain Dino Metlo, Member

IRRIGATION AND POWER SCARP TUBEWELL DIVISION WORKERS' UNION, KHAIRPUR through General Secretary

Versus

PRESIDING OFFICER, SINDH LABOUR COURT NO.VII, SUKKUR and 3 others

Appeal No.SUK-46 of 2014, decided on 21st October, 2015.

Sindh Industrial Relations Act (XXIX of 2013)---

----Ss. 24, 25, 26, 34 & 48---Collective Bargaining Agent---Determination---Referendum, through which appellant was determined as Collective Bargaining Agent, was declared illegal by the Labour Court---Validity---Labour Court declared the referendum illegal because all unions of all divisions of the project, were not invited to take part in it---Labour Court had observed that the whole project and not a division of it, was the "establishment"---Under S.24 of the Sindh Industrial Relations Act, 2013, determination and certification of Collective Bargaining Agent, was the exclusive function of Register Trade Unions; and his acts/orders were not subject to appeal or application before the Labour Court, though his order determining Collective Bargaining Unit under S.25 of Sindh Industrial Relations Act, 2013 had been made appealable before the Labour Court under S.26 of said Act---Section 34 of Sindh Industrial Relations Act, 2013, under which General Secretary of one Union, had filed application before the Labour Court, pertained to redressal of individual grievance of a worker against his employer---Registrar Trade Unions, was not the employer---Remedy against order of Registrar Trade Unions under S.24 of Sindh Industrial Relations Act, 2013 lay in filing a constitutional petition before the High Court---Application of General Secretary before the Labour Court being not maintainable, Labour Court had erred in holding otherwise for ridiculous reason---In the present case, the workers of all unions, were employees of the Irrigation Department and not of separate establishments---Irrigation Department as a whole was the establishment; and trade unions could be formed for the whole department and not for its each office or project---One Collective Bargaining Agent could exist for the whole department, unless a Collective Bargaining Unit was determined under S.25 of the Sindh Industrial Relations Act, 2013---Impugned judgment being not sustainable, was set aside and appeal was allowed.

Ghulam Sarwar Chandio for Appellant union, along with Arbelo Ujjan, President of Appellant Union.

Naseer Khan Laghari, Assistant Director Labour, Dadu, on behalf of Respondent No.2.

M.A. Hakeem for Respondents Nos.3 and 4, along with Miskeen Ali Phulpoto, General Secretary of Respondent No.3 union, and Nazar Muhammad Bhutto, President of Respondent No.4 union.

Noor Muhammad Phulpoto, General Secretary, Irrigation and Power Employees Union SCARP Project Khairpur and Sukkur.

Ajaz Ali Mari, General Secretary, Irrigation SCARP Khairpur Mazdoor Dost Union, Drainage Division-II, Gambat.

Shakir Masroor Mahesar, General Secretary, Irrigation Mazdoor Union, Drainage Division SCARP, Khairpur.

Nisar Ahmed Bhutto President, Sachal Irrigation Mazdoor Union Ranipur Tubewell Division Ranipur.

Date of hearing: 12th October, 2015.

2016 P L C 398

[Sindh Labour Appellate Tribunal]

Before Ali Muhammad Baloch, Member

JALAT KHAN

Versus

OWNER/OCCUPIER OF FACTORY (SHOWN/KNOWN AS "CROWN TEXTILE")

Appeal No.KAR-102 of 2013, decided on 6th February, 2015.

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

----Ss. 34 & 48---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.12---Verbal termination of services---Grievance petition---Employee, who was verbally terminated, filed grievance petition seeking reinstatement in job with continuity of service and all consequential benefits---Labour Court allowed the employee to be reinstated in service, but rejected his claim of back benefits---Employer/establishment, despite duly been served, chose not to contest the appeal---After several dates, upon being directed by the Appellate Tribunal, employee submitted his affidavit in ex parte proceedings---Contents of affidavit, so filed by the employee had gone un-challenged and un-rebutted, Appellate Tribunal had no other option left to accept the version of the employee---Appeal filed by the employee was allowed as prayed---Employer establishment was directed to reinstate the employee in service with all consequential back benefits including unpaid wages and bonus etc., within thirty days.

Ashraf Hussain Rizvi for Appellant.

Nemo for Respondent

Date of hearing: 19th November, 2014.

2016 P L C 436

[Sindh Labour Appellate Tribunal]

Before Ali Muhammad Baloch, Member

SHAH MUHAMMAD

Versus

Messrs SAPPHIR TEXTILE MILLS LTD. through Notified Manager

Appeal No.45 of 2013, decided on 31st October, 2014.

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

----Ss. 8 & 10-B---Payment of Wages Act (IV of 1936), S.15---Claim for compensation on account of alleged disability---Employee had obtained "B-2 Form" for medical treatment from the Social Security Hospital---Doctor declared the employee fit to resume duty, and he joined the duty---Employee again proceeded on social security leave, and remained on leave; thereafter employee was absent from duty, and instead of joining service, he filed application before Authority, whereby he claimed Rs.200,000 on account of his alleged disability, which claim was not accepted being illegal and mala fide---Employee, had contended that he was a heart patient---Validity---Heart disease, these days, could be cured by treatment; and it did not necessarily prevent a patient from work---Employee, had not suffered due to his work in the employer's Mill---Employer Mill or any institution, could not be held responsible for the disease and to pay him amount of Rs.200,000 as compensation---Case of the employee on the same issue had already been dismissed; his present application suffered from the principle of 'res judicata'---No reason existed to interfere in the impugned order passed by the authority---Appeal was dismissed.

Mehboob Qureshi, Representative for Appellant.

Abdul Ghani Khan for Respondents.

2016 P L C 458

[Sindh Labour Appellate Tribunal]

Before Ali Muhammad Baloch, Member

MUHAMMAD BASHIR

Versus

PAKISTAN STEEL MILLS CORPORATION, KARACHI through Chairman, and another

Appeal No.KAR-99 of 2012, decided on 22nd September, 2014.

Industrial Relations Ordinance (XCI of 2002)---

----S. 46---Age of employee---Determination of date of birth and age of the employee---Grievance application---Employee, claimed his date of birth as 27-12-1949, whereas the employer, treated such date as 27-12-1944---Employee had produced number of documents on such account; and employer had not successfully rebutted---Employee had not been referred to any independent Medical Board for determination of his actual date of birth---Employer had treated age of employee on surmises and conjectures---Employee had constantly, actively and diligently pursued his case by challenging the age/date of retirement---Labour Court, had relied upon Circular having no overriding effect upon the right of employee guaranteed and secured---Order of Labour Court, was set aside and appeal was allowed, holding that employee was entitled for all the benefits of the service till his claim of date of superannuation when he was illegally retired---Employer was directed to implement the decision of the Tribunal within thirty days, in circumstances.

PLD SC 602; SBLR 2008 SC 40; PLD 1972 SC 25; Nasreen Rasheed v. P.C. Hotel Appeal No.1247 of 2010; Abdul Hafeez and Hajat Khan v. Pakistan Steel Mills Appeals Nos.KAR-41 and 42/2013; Appeals Nos.KAR-13 of 2013 to 17 of 2013; 197 PLD 1972 SC 25; 1980 PLC 1025; 1989 PLC 810; 1990 PLC 63 and 429; Muhammed Sadiq v. Pakistan Steel, 2008 SCMR 1535; 2009 PLC (C.S.) 302 and S.B.L.R. 2007 Sindh 1702(sic) ref.

M.A.K. Azmati for Appellant.

Masud A. Khan and Sanaullah for Respondent No.1

2016 P L C 470

[Sindh Labour Appellate Tribunal]

Before Ali Muhammad Baloch, Member

Syed ABDUL REHMAN

Versus

Messrs OXYPLAST PAKISTAN (PVT.) LTD., KARACHI and another

C.P. No.S-401 of 2006, decided on 6th November, 2014.

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

----Ss. 15 & 17---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.Os.10-C & 12(6)---Sindh Industrial Relations Act (XXIX of 2013), S.48(5)---Claim for payment of wages and other dues---Applicant/employee, who resigned from the employment of the establishment, filed application, requesting the Management for settlement of his legal dues---Establishment having failed to settle the account of legal dues of the employee, an application was filed by the employee under S.15 of the Payment of Wages Act, 1936 before Authority under Payment of Wages Act, 1936, for payment of his wages and other dues with the prayer of ten times compensation---Authority allowed the claim of the employee, and further imposed three times penalty on the establishment---Establishment filed appeal before Labour Court against order of Authority, which appeal was allowed and case was remanded to the Authority for fresh decision---Employee had filed revision application against the judgment of the Labour Court, contending that said appeal was not competent as same was time barred; and that Labour Court was not justified to allow appeal and to remand the case---Employee had claimed gratuity/two months gross pay for one complete year of service; and he also claimed two bonuses for each year for a period of seven years---Validity---Under S.O.12(6) of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, only one salary on completion of 12 months continuous service could have been claimed; while under S.15(2) of the Payment of Wages Act, 1936---Employee was restricted to file his claim within a period of three years, whereas he had claimed bonus for last seven years of his employment---Authority had failed to consider said aspect of the case; and it was also not established as to whether, the employee fell within the category of a "workman", as according to him he was promoted as "Production Officer"---Authority had allowed total claim of the employee, without giving any cogent reason; and that said order of the Authority was not speaking one; which had shown that Authority had passed said order hurriedly and even failed to consider the issues framed by it---Said order was void and erroneous, and Authority had failed to record valid reasons for allowing the claim---Labour Court, in circumstances, had rightly remanded the case to the Authority for fresh decision after providing full opportunity of hearing and leading evidence of the parties, in circumstances.

PLD 1982 SC 88;1982 SCMR 160; M/s. Intertrade v. Faisal and two others 2011 PLC 208; 1998 PLC 172; 2006 PLC 11; 1996 SCMR 856;1986 SCMR 962; 1987 SCMR 1543 2001 SCMR 19; 1998 TD (Labour); Pakistan Railways v. Punjab Labour Court No.4, Multan and 4 others 1995 PLC 541; Abdul Karim v. Chairman, PLAT, Lahore and 3 others 1997 PLC 481; Pakistan Industrial Gases Limited versus Commissioner for Workmen's Compensation and 2 others 1998 PLC 71 and Regional Superintendent, Pakistan Railways v. Zarina I3egum and others 1987 PLC 301 ref.

Rafiullah for Applicant.

Mahboob Rizvi for Respondent No.1.

2016 P L C 488

[Sindh Labour Appellate Tribunal]

Before Ali Muhammad Baloch, Member

ZAINUL ABEDIN

Versus

AL-ABID SILK MILLS through Manager Folding Department and another

Appeal No.KAR-69 of 2012, decided on 8th September, 2014.

Industrial Relations Act (IV of 2008)---

----Ss. 41 & 53(3)---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.15---Misconduct---Dismissal from service---Employee was dismissed from service after issuing show-cause notice and charge-sheet on allegations that he had misbehaved with his superiors, which was a very serious act of misconduct---Employee was already let off with a warning, but he failed to improve his conduct; and again misbehaved with his superiors, which could not be tolerated---Employee failed to participate in the inquiry proceedings, despite service of inquiry notice and could not explain the reason of his such misbehaviour with his superiors, while on duty within factory premises---Employee, having rightly been dismissed from service, appeal filed by the employee, was dismissed in circumstances.

2004 TD Labour 289; 2002 PLC 42; 2002 PLC 120; 2003 PLC 287; 1975 SCMR 46; 1998 PLC 30 and Akhtar Munir v. General Tyre and Rubber Company of Pakistan Limited 2007 PLC 360 ref.

Zafar Ali Khan for Appellant.

Mahboob Rizvi Rep. for Respondent No.1.

2016 P L C 138

[Labour Appellate Tribunal Balochistan]

Before Abdullah Baloch, Member

ABDUL GHAFFAR and another

Versus

ABDUL RAUF and 2 others

Revision Petition No.03 of 2015, decided on 10th August, 2015.

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

----Ss. 9(7) & 55(4)---Trade Union, registration of---Dispute in relation to the change of Officers of Trade Union---Petitioners were Ex-President and Ex-General Secretary of Trade Union in the Establishment and their tenure had expired---Respondent, who claimed to be a bona fide member of said Union filed application to the Registrar Trade Unions to get fresh election conducted for next two years---Former office bearers nominated Chairman Election Committee, who announced the election schedule---Respondent filed application before the Registrar to conduct election under his supervision, on the ground that petitioners had no mandate after expiry of their tenure to nominate Chairman Election Committee of their own choice; and conduct such election; and that such election could not be free, fair and transparent---Respondent approached the Registrar Trade Unions to conduct election under his supervision, but Registrar, forcibly thrown out panel of the respondent from the process of election, and panel of the petitioners, was declared unopposed elected---Respondent prayed for declaring election of the petitioners as null and void---Labour Court, accepted prayer of the respondent holding that after expiry of the tenure of said union, petitioners and other office bearers of their panel had no authority or right to hold office of Union, by using the previous designation---Labour Court also declared that, petitioner being Officer of Grade 16, working as "Workshop Superintendent", was incompetent to contest election of Labour Union---Labour Court, further directed the Registrar Trade Unions to conduct fresh election under his supervision after fulfilment of all Codal formalities, according to law within a period of one month---Validity---Tenure of the earlier members of the elected body of Union after completion of 2 years, had expired, wherein petitioners had become Ex-President and Ex-General Secretary respectively---Petitioners, were not competent to issue any schedule of election under their authority---Petitioner, who was elected President of Union, was holding acting charge of workshop Superintendent/Assistant Mechanical Cultivation BPS-16, was drawing pay of the higher post---Petitioner, admitted before the Court, that 250 employees were working under his supervision---Nature of job as performed by petitioner primarily and essentially, was of supervisory nature, which fell beyond the ambit and purview of the term "workman"---Labour Court rightly declared petitioner as Officer, not entitled to contest election of Labour Union---Illegal and unlawful election schedule was announced and supervised by the petitioners and their nominee Chairman Election Committee with mala fide intention, just to debar the respondent from election process---Petitioners, had failed to point out any material illegality, irregularity in impugned judgment of the Labour Court---In absence of any infirmity in impugned judgment of the Labour Court, same would warrant no interference by Appellate Tribunal in its revisional jurisdiction---Revision petition being devoid of merits, was dismissed, in circumstances.

2007 PLC 410; 2007 PLC 400 and 2010 PLC 174 ref.

Azam Jan Zarkoon for Petitioners.

Muhammad Ibrahim Khan for Respondent No.1.

Nemo for Respondent No.2.

Muhammad Adnan representative of Respondent No.3.

Dates of hearing: 30th June and 6th August, 2015.

2016 P L C 9

[Lahore High Court]

Before Mahmood Ahmad Bhatti, J

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

Versus

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

Writ Petition No.6112 of 2014, decided on 13th May, 2014.

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

----Ss. 44, 45, 46 & 47---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.12---Constitution of Pakistan, Art.199---Constitutional petition---Termination of service---Reinstatement---Grievance petition---Interim order---Services of respondent who was teacher by profession, having been terminated, she filed grievance petition---Labour Court set aside termination order, and ordered her reinstatement with back benefits---Petitioners/employers filed appeal against judgment of Labour Court before Labour Appellate Tribunal---Tribunal passed order to the effect that, the petitioners/ employers would take respondent on duty till the final decision of the appeal---As to the extent of back benefit, order passed by the Labour Court was suspended---Labour Appellate Tribunal declined the interim relief sought by the employers to the effect that employee be not allowed to join duties to the wake of her reinstatement ordered by Labour Court---Employers, essentially were aggrieved by that part of the order passed by Labour Appellate Tribunal, and assailed that interim order in constitutional petition---Very maintainability of constitutional petition against an interim order passed by Labour Appellate Tribunal, was open to question, especially when main appeal filed by the petitioners/employers before Labour Appellate Tribunal, was pending adjudication---No infirmity or perversity was found in the impugned interim order passed by Labour Appellate Tribunal---Power rested with Labour Appellate Tribunal as to how it would exercise its jurisdiction at the time of entertaining an appeal and/or how it would proceed to suspend the operation of an impugned judgment wholly or partially; its hands could not be forced by the petitioners; and under no circumstances could they be allowed to regulate the proceedings of Labour Appellate Tribunal.

Syed Athar Hassan Shah Bukhari for Petitioners.

2016 P L C 13

[Lahore High Court]

Before Muhammad Sajid Mehmood Sethi, J

EXECUTIVE ENGINEER

Versus

PUNJAB LABOUR APPELLATE TRIBUNAL, LAHORE and 2 others

Writ Petition No.13293 of 2011, decided on 23rd June, 2015.

Industrial Relations Act (IV of 2008)---

----Ss. 41, 54(3) & 55---Constitution of Pakistan, Art.199---Constitutional petition--- Regularization of service--- Grievance petition---Dismissal of time barred appeal---Grievance petition filed by the employee for regularization of his service, having been accepted by the Labour Court, employer filed appeal before Labour Appellate Tribunal---Said appeal being barred by four days, was dismissed and employer had filed constitutional petition against judgment of the Appellate Tribunal---Employer failed to explain the delay of each day before Appellate Tribunal---Labour Appellate Tribunal, in circumstances, had rightly dismissed appeal being barred by time.

M/s Nida-e-Millat, Lahore v. Commissioner of Income Tax Zone I, Lahore 2008 SCMR 284; Lanvin Traders, Karachi v. Presiding Officer Banking Court No.II, Karachi 2013 SCMR 1419; Worldcall Telecom Limited v. Pakistan Telecommunication Authority through Chairman 2011 SCMR 959; Lal Khan v. Muhammad Yousaf PLD 2011 SC 657; Qaiser Mushtaq Ahmad v. Controller of Examinations PLD 2011 SC 174; Food Department Gujranwala v. Ghulam Farid Awan 2010 SCMR 1899; Almas Ahmed Fiaz v. Secretary Government of the Punjab Housing and Physical Planning Development, Lahore and another 2007 PLC 64 and Rehmat Din and others v. Mirza Nasir Abbas 2007 SCMR 1560 ref.

Aziz-ur-Rehman, A.A.-G. for Petitioner.

Muhammad Faisal Bashir for Respondents.

Date of hearing: 23rd June, 2015.

2016 P L C 25

[Lahore High Court]

Before M. Sohail Iqbal Bhatti, J

CHIEF EXECUTIVE OFFICER MEPCO through Manager (Admn.), Khanewal

Versus

PUNJAB LABOUR APPELLATE TRIBUNAL-II, MULTAN and 3 others

W.P. No.615 of 2014, heard on 17th June, 2014.

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

----S. 46(2)---Constitution of Pakistan, Art.199---Constitutional jurisdiction---Scope---Labour Appellate Tribunal and Labour Court---Scope of jurisdiction---Major penalty of compulsory retirement and acceptance of retirement benefits---Employee filed grievance petition after delay of seven years---Effect---Contention of the authorities was that being a special Tribunal created under the special law, Labour Appellate Tribunal did not possess the inherent powers as were available to a civil court and the grievance petition filed after a period of seven years could not be entertained---Validity---Jurisdiction could be exercised by Labour Court/Tribunal when all the jurisdictional facts exist together---Labour Court or Labour Appellate Tribunal were under an obligation to act within the scope of Industrial Relations Ordinance, 2002 and could not exercise jurisdiction as a civil court; as soon as Labour Court or Labour Appellate Tribunal stepped out of the four corners of a special law, order/judgment passed by it would be result of defective or excessive exercise of jurisdiction---Held, that Tribunal which was invested with the jurisdiction to decide a particular matter had no jurisdiction to decide it rightly or wrongly because the condition for the grant of jurisdiction was that it should decide the matter in accordance with law and when the Tribunal went wrong in law, it went outside the jurisdiction conferred on it---Tribunal while passing the order erred in law as it stepped out of four corners of Industrial Relations Ordinance, 2002---High Court under Art.199 of the Constitution would always rectify the illegality and violation of law and undo the harm caused by the Court/Tribunal-Constitutional petition was allowed accordingly.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction---Scope---High Court under Art.199 of the Constitution would always rectify the illegality and violation of law and undo the harm caused by the Court/ Tribunal.

Ch. Saleem Akhtar Warriach for Petitioner.

Muhammad Atif Qureshi for Respondent No.3.

Date of hearing: 17th June, 2014.

2016 P L C 44

[Lahore High Court]

Before Ayesha A. Malik, J

IZHAR CONSTRUCTION (PRIVATE) LTD. through General Manager

Versus

GOVERNMENT OF PUNJAB through Secretary and 6 others

Writ Petition No.23545 of 2015, heard on 5th October, 2015.

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

----Ss. 20, 23, 24, 28 & 46----Provincial Employees' Social Security (Contribution) Rules, 1966, R. 5---Provincial Employees' Social Security (Employers' Returns and Records) Regulations, 1967, Regln.3---Employees' social security fund---Amount and payment of contributions---Increase of unpaid and recovery of contributions etc. as arrears of land revenue---Safeguards to secured person's right in default of contributions by employer---Manner of providing medical care---'Local office' for deposit of contributions---Determination---Respondent-Institution, by way of letter, required petitioner to deposit contributions at its "local office" in its locality, where he carried on his projects of construction work---Question in the present case was as to whether petitioner was to make contributions in local area where he carried on his project or at local office where he was registered---Petitioner contended that he carried on construction work in various parts of the Province---Effect---Impugned letters had clarified that all establishments would pay contributions in respect of their existing and ongoing projects at Sub-Office concerned within territorial jurisdiction, where such works, projects or activities were being carried out---Said letters further provided that the concerned office and such establishment were required to get their employees registered with concerned Directorate or Sub-Office, so that their employees could be benefitted from nearby Directorate as their entitlement under the rules---Section 24 of Provincial Employees' Social Security Ordinance, 1965 provided that, in event of default in payment of contributions towards secured person by employer, the secured person was entitled to all benefits as if the default had not occurred---Secured person would be entitled to the benefits provided under Chapter V of Provincial Employees' Social Security Ordinance, 1965 and amounts, liable to be collected from employer, could be collected in terms of S.23 of Provincial Employees' Social Security Ordinance, 1965 as arrears of land revenue---Respondent-Institution, therefore, could not deny secured person the benefits that he was entitled to on pretext that contribution had not been paid---Understanding of respondent that contribution should have been made locally and that the petitioner should have registered its employees locally where he was carrying on his work was, therefore, totally misconceived---Mandate of law in question was that all contributions were centralized and paid towards the Fund, from which, all amounts were disbursed and paid out to all secured persons entitled under Provincial Employees' Social Security Ordinance, 1965---Respondent-Institution was required to set up its own verification mechanism to ensure that the employer registered all persons and paid required contribution for all secured persons---Under S.46 of Provincial Employees' Social Security Ordinance, 1965, no reason existed to deny statutory benefit to the secured persons on ground that contribution was not made locally---Respondent-Institution was required under Provincial Employees' Social Security Ordinance, 1965 to provide requisite benefits to secured persons from the Fund and not to treat a contribution as a local payment for provision of benefits---High Court, setting aside the impugned letters, held that term 'local office', used in Regln.3 of Provincial Employees' Social Security (Employers' Returns and Records) Regulations, 1967, would be read as 'local office of the Institution at which it is registered'---Constitutional petition was accepted in circumstances.

Barrister Rafey Altaf for Petitioner.

Ch. Sultan Mehmood, A.A.-G.

Muhammad Nauman Aslam for Respondents Nos.2 to 6 along with Ayyaz Ahmad Farooqi, Deputy Director Legal.

Date of hearing: 5th October, 2015.

2016 P L C 61

[Lahore High Court]

Before Shujaat Ali Khan, J

HABIB BANK LTD. through President and 2 others

Versus

AUTHORITY UNDER PAYMENT OF WAGES ACT and another

Writ Petition No.13792 of 2011 and other Writ Petitions mentioned in Schedules "A", "B", "C" "D", "E", "F", decided on 9th October, 2015.

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

----S. 15----Claim out of deduction for wages or delay in payment of wages and penalty for malicious and vexatious claims---Ex-gratia grant not included in the term 'wages'---Ex-gratia amount being discretionary in nature could not be claimed as of right---Jurisdiction of the Authority to entertain claim under S.15 of Payment of Wages Act, 1936---Scope---'Amount payable'---Meaning---Press clippings---Evidentiary value---Respondents, who were daily wagers, filed claims under S.15 of Payment of Wages Act, 1936 against its employer Bank claiming payments of emoluments, including ex-gratia grant, on basis of judgment of Supreme Court, in which the Bank, pursuant to its 'Retrenchment Scheme', had agreed to pay additional sum of ex-gratia grant to certain number of its retrenched employees---Both the Authority and Labour Court accepted the claim as put forth---Contention raised by the Bank was that the Authority had no power to deal with the matter regarding ex-gratia grant, and that the respondents, having been retrenched and being daily wagers, had no vested right to any emoluments, and that respondents had already received emoluments under settlement with the Bank, for which they had also executed undertakings with averments that they would withdraw the pending cases---Respondents took plea that ex-gratia amount was covered under the term 'any sum payable' in S.2(vi) of Payment of Wages Act, 1936, and that judgment of Supreme Court being a verdict in rem was applicable to all retrenched employees irrespective to their status, and that they had been discriminated against other employees---Validity---In terms of S.2(vi) of Payment of Wages Act, 1936, amount of ex-gratia grant was not included in "wages"---Ex-gratia was an amount paid by employer out of grace or good will---Nothing was available on record to show that any express or implied contract existed between the Bank and respondents to the effect that a particular amount would be paid to the employees of the Bank as ex-gratia grant---Expression 'Amount payable' meant that anything which was due on account of any legal or vested right, expressed or implied, but ex-gratia grant being discretionary in nature could not be claimed as of right---Amount awarded by Supreme Court in case relied was ex-gratia grant---Claim decreed in favour of present respondents could not be considered anything else but ex-gratia grant, which, being not part of their wages as contemplated under S.2(vi) of Payment of Wages Act, 1936, was not amenable to jurisdiction of the Authority under S.15 of the Act---When the Bank was not obligated to pay ex-gratia grant to all its employees, then payment of the same to persons, whose names were not included in the list presented before Supreme Court, (in referred case) did not provide any cause of action to those persons to file their claims before the Authority---Said judgment of Supreme Court was confined only to the retrenched employees of the Bank serving against manual or non-clerical posts, thus, the same could not unnecessarily be stretched to present respondents---No question of law had been decided by Supreme Court in the said judgment; the same, therefore, could not be used for benefit of respondents---Respondents, after receiving amounts under the settlement, were debarred to lodge any subsequent claim---Plea of respondents, that contract taking away their guaranteed rights could not be given any weightage, was worthless, as after acceptance of monetary benefits under the settlement without any observation, they could not question its validity at that juncture---Nothing was available on record to show that respondents had promptly moved to agitate that either the undertakings in question were result of undue influence or the same were got executed against their vested rights---Respondents had admitted in their grievance notice that they were serving as daily wagers on date of their retrenchment; thus, they had laid their claim on basis of ex-gratia grant---Respondents produced press clippings with averments that under said clippings the Bank had promised to pay them certain amount, which were though valid piece of evidence, but the same, having not been supported by any order of competent authority, could not be safely relied upon---High Court, setting aside impugned orders, dismissed the claims of respondents---Constitutional petitions were accepted in circumstance.

Case-law ref.

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

----O. VII, R. 11----Payment of Wages Act (IV of 1936), S. 15---Constitution of Pakistan, Arts. 189 & 199---Constitutional petition---Application for rejection of plaint/miscellaneous applications to be decided before decision on main case---Decisions of Supreme Court binding on other courts---Claim out of deduction for wages or delay in payment of wages and penalty for malicious and vexatious claims---Bank filed application under O.VII, R.11, C.P.C. for rejection of claim filed by private respondents under S.15 of Payment of Wages Act, 1936, which the Authority kept pending with observation that the same had been moved at belated stage---Validity---High Court observed that prior to decision of the main lis, miscellaneous applications should have been decided first---According to Art.189 of the Constitution, decision of Supreme Court deciding a question of law was binding on all organs of the State, and Authority was not an exception---Since orders passed by the Authority had offended against the clear cut law declared by the Supreme Court, the same, therefore, deserved to be sacked irrespective of any objection regarding maintainability of the petitions by private respondents--- High Court, setting aside the impugned orders of the Authority, remanded the case to the Authority for deciding the miscellaneous applications filed by the Bank before deciding the main case.

Muhammad Umer v. Muhammad Qasim and another 1991 SCMR 1232 and Amina Begum and others v. Mehar Ghulam Dastgir PLD 1978 SC 220 rel.

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

----S. 15---Question of limitation and jurisdiction---Principles as to determination---Claim out of deduction for wages or delay in payment of wages and penalty for malicious and vexatious claims---Bank contented that when present matter was on the face of it barred by limitation, there was no question of recording of evidence rather the same deserved to be dismissed straightaway, and that the Authority, before taking cognizance of the matter, was bound to decide questions of its jurisdiction and limitation, which the Authority had left unattended---Respondents took plea that point of limitation, being mixed question of law and facts, could not be decided without recording of evidence---Validity---When question of limitation involved appreciation of certain facts, recording of evidence could be ventured upon by court, however, when a lis, on the face of it, was barred by law of limitation, the same deserved to be dismissed straight-away---High Court, setting aside impugned orders of the Labour Court, remanded the case to Labour Court for decision afresh after taking into account the questions of jurisdiction and limitation raised by the Bank.

Noor Din and another v. Additional District Judge, Lahore and others 2014 SCMR 513 rel.

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

----Ss. 15 & 17----Constitution of Pakistan, Art. 199---Civil Procedure Code (V of 1908), O.VII, R.11---Constitutional jurisdiction of High Court--Scope---Claim out of deduction for wages or delay in payment of wages and penalty for malicious and vexatious claims---Appeal---Alternate remedy, availability of---Determination---Private respondents raised objection that present petitions were not maintainable as the Bank had alternate remedy of appeal under S.17 of Payment of Wages Act, 1936 against impugned orders passed under O.VII, R.11, C.P.C.---Validity---In ordinary course, when alternate remedy was available to a person, he could not approach High Court through petition under Art.199 of the Constitution---High Court was, however, fully competent to take care of any order passed by forum below especially in respect of its jurisdiction, irrespective of the bar of alternate remedy---High Court observed that Constitutional jurisdiction of High Court could not be abridged on ground of availability of alternate remedy---Appeal was provided only against decision of the Authority under S.15(3) or 15 (4) of Payment of Wages Act, 1936---Decision on applications filed by the Bank under O.VII, R.11, C.P.C., being not final in nature, did not fall within said categories of order, which could be challenged in appeal under S.17 of Payment of Wages Act, 1936---High Court observed that since no remedy was provided against the decision on the applications for rejection of the claim, Constitutional petition was maintainable.

Messrs Akhtar Textile Industries Ltd. v. Sindh Labour Appellate Tribunal and 4 others 2014 PLC 319; Messrs Intertrade v. Faisal and 2 others 2011 PLC 208 and ARAG Industries Ltd. v. Payment of Wages Act Authority and others 1982 PLC 567 rel.

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

----S. 15---Constitution of Pakistan, Art.199---Constitutional petition---Claim out of deduction for wages or delay in payment of wages and penalty for malicious and vexatious claims---Employees working on daily wages are not "permanent workmen"---Jurisdiction of the Authority---Authority had accepted the claim of private respondents while treating them as regular employees---Validity---Disputed question regarding status of employees could not be determined by the Authority; rather, for that purpose, the employees had to approach the forum concerned---Person who had served against permanent post for nine months, assumed the status of "permanent workman"; but, when the employees had admitted that on date of their retrenchment they were serving on daily wages, the Authority had travelled beyond its jurisdiction while holding the respondents as permanent workmen---Said verdict of the Authority could not be blessed with blanket of authenticity.

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

----S. 15---Industrial Relations Act (X of 2012), S.57(2)(b)---Constitution of Pakistan, Arts. 189 & 199--- Constitutional petition---Maintainability---Claim out of deduction for wages or delay in payment of wages and penalty for malicious and vexatious claims---Both the Authority and Labour Court had accepted claim of respondents under S.15 of Payment of Wages Act, 1936; against which the Bank filed present petition---Respondents took plea that the Bank had remedy of revision before Punjab Labour Appellate Tribunal against order passed by Labour Court---Validity---Said remedy was no more available after repeal of Industrial Relations Ordinance, 1969 secondly, the Bank, being trans-provincial establishment, could not approach Punjab Labour Appellate Tribunal, as its jurisdiction had been ousted in terms of S.57(2)(b) of Industrial Relations Act, 2012.

Muhammad Umer v. Muhammad Qasim and another 1991 SCMR 1232 rel.

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

----O. VII, R. 11---Payment of Wages Act (IV of 1936), S.15---Rejection of plaint---Application not accompanied by affidavits---Claim out of deduction for wages or delay in payment of wages and penalty for malicious and vexatious claims---Respondents (employees) raised objection that applications under O.VII, R.11, C.P.C. filed by the Bank were not accompanied by requisite affidavits---Validity---Applications under O.VII, R.11, C.P.C., having not been dismissed on said ground, the objection was of little importance.

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

----S. 15---Civil Procedure Code (V of 1908), S.10 & O.VII, R.11---Second application for rejection of plaint---Maintainability---Claim out of deduction for wages or delay in payment of wages and penalty for malicious and vexatious claims---Respondents (employees) took plea that the Bank, having filed application under O.VII, R.11, C.P.C., had consented that the same be decided along with the main case; thus, the Bank was barred from filing any subsequent application for the same relief---Authority dismissed the applications filed by Bank under O.VII, R.11, C.P.C. for rejection of claim on ground that since issue regarding jurisdiction of the Authority was already in question, said applications were not maintainable and also directed the Bank to deposit decretal amount---Validity--¬Any consent given by the Bank did not confer jurisdiction upon the Authority, as even consent of parties did not bestow jurisdiction upon court, authority or tribunal, especially, when the same was otherwise not available to it---Respondents could have got the proceedings stayed by filing proper application under S.10, C.P.C.

Najm Koreshi v. Chase Manhattan Bank Now Muslim Commercial Limited, Lahore and others 2015 SCMR 1461 rel.

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

----S. 15---Constitution of Pakistan, Art.199---Constitutional petition---Objection was raised that persons, who were appointed as Authority under Payment of Wages Act, 1936 did not possess the prescribed qualifications---Validity---Practice could be used to nullify a clear cut provision of law---When there was no law on the subject, practice or custom, having been followed by the masses from time immemorial, could assume the role of law; however, when a specific provision of law was available on subject, practice could not be allowed to continue just to render the relevant provision of law as redundant---Persons serving as Labour Officers or Labour Inspectors had been appointed as said Authority in clear cut violation of provisions of Payment of Wages Act, 1936, which spoke volumes about mala fide and inefficiency on part of competent authority---High Court directed Secretary to the Government, Labour Department, to ensure appointment of persons as "Authority" according to the eligibility criteria laid down under S.15 of Payment of Wages Act, 1936 within six months.

(j) Words and phrases----

----Ex-gratia---Meaning.

Dictionaries and case-law ref.

Hafiz Tariq Nasim for Petitioners in the instant petition.

For remaining petitions, see Schedule-A.

Mian Muhammad Zulqarnain for Respondent No.2 in the instant petition.

For remaining petitions see Schedule-A.

Dates of hearing: 29th and 30th September, 2015.

2016 P L C 97

[Lahore High Court]

Before Muhammad Sajid Mehmood Sethi, J

ASHRAF HUSSAIN

Versus

The PUNJAB LABOUR APPELLATE TRIBUNAL, LAHORE and others

W.P.No.9374 of 2012, decided on 17th November, 2015.

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

----S. 46---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.12(3)---General Clauses Act (X of 1897), S. 24-A---Constitution of Pakistan, Arts.9 & 4---Grievance petition---"Workman"---Compulsory retirement---Major penalty, award of---Pre-requisites---Right to be treated fairly and justly---Waiver---Estoppel---Scope---Grievance petition filed by the petitioner employee against dismissal order passed by the respondent Bank was allowed by Labour Court and he was directed to be reinstated into service with all back benefits---Labour Appellate Tribunal set aside order of Labour Court and converted penalty of dismissal into compulsory retirement---Validity---No financial loss was caused to the respondent Bank---Petitioner employee was never charged for misconduct throughout his service prior to present incident---Penalty of compulsory retirement could not be awarded under Standing Order 12(3) of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968---Impugned penalty was even otherwise harsh and same was not sustainable in the eye of law---Petitioner employee had been deprived from all the retirement benefits---No adverse action could be taken which was not prescribed by law/rules/regulations---Adverse action offending right to retirement benefits of petitioner employee was also violative of Art.9 of the Constitution---Major penalty could not be imposed lightly and without proof of serious allegations---Punishment awarded must be proportionate to and commensurate with the magnitude of the offence---No estoppel existed against law---Petitioner employee was entitled to be treated in accordance with law---Petitioner employee had right to be dealt with fairly and justly---Mere acceptance of legal dues by an employee would not amount to waiver to estop him from challenging the order passed against the employee---Legal remedy could not be denied to the petitioner employee if charge of misconduct had not been established---Impugned order was set aside and case was remanded to the Labour Appellate Tribunal for decision afresh through speaking order within a specified period---Constitutional petition was accepted in circumstances.

Deputy Director Food and others v. Muhammad Rafique Khan 2005 PLC (C.S.) 214 and Farasat Hussain and others v. Pakistan National Shipping Corporation through Chairman and others 2005 PLC (C.S.) 890 rel.

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

----S.O. 12(3)---Compulsory retirement, penalty of---Scope---Penalty of compulsory retirement could not be awarded under Standing Order 12(3) of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968.

(c) Administration of justice---

----No adverse action could be taken which was not prescribed by law/rules/regulations.

(d) Estoppel---

----No estoppel against law.

(e) Employer and employee---

----Mere acceptance of legal dues by an employee would not amount to waiver to estop him from challenging the order passed against the employee.

Munawar Ahmad Javed for Petitioner.

Farooq Zaman Qureshi and Athar Farooq for Respondents.

2016 P L C 107

[Lahore High Court]

Before Muhammad Qasim Khan, J

KOH-E-NOOR INDUSTRIES (PVT.) LTD.

Versus

EMPLOYEES' OLD-AGE BENEFITS INSTITUTION through Regional Head and others

Writ Petitions Nos.6618 of 2007 and 9976 of 2011, decided on 6th May, 2015.

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

----Ss. 2(bb)(c)(d) & 9---Punjab Employees' Special Allowance (Payment) Act (II of 1988), Preamble---Person employed through contractor---Denial of employer to pay contribution qua such person on the ground that contractor by whom such person was recruited was liable to pay the same---Validity---Punjab Employees Special Allowance (Payment) Act, 1988 was Provincial Statute which had no overriding effect on Federal Statute---Federal law would prevail on the principle of implication---Employees' Old Age Benefits Act, 1976 was Federal Statute and in case of any conflict between the Provincial and Federal Statute would prevail---Special pay allowance payable under Punjab Employees Special Allowance (Payment) Act, 1988 could be included in the wages of employee for the purposes of contribution under Employees' Old Age Benefits Act, 1976---Definition of "wages" would include special allowance---Employer was liable to pay the contribution on the basis of special allowance---Employer was bound to pay amount to the Employees' Old Age Benefits Institutions with regard to the insured person---Department should act for recovery of such contribution if employer had failed to comply with the provision of Employees' Old Age Benefits Act, 1976---Contribution of workers performing duties through a contractor or an agent or employees whose services had been provided by a contractor should be paid by the employer---Employer was bound to pay the contribution of the workers performing their functions under a contractor or agent---Contribution for certain period had not been fixed by the official of the Institution after examining the record---Appellate Authority had also added the amount of contribution with regard to the period for which relevant record was not checked by the concerned officials---Judgment of Appellate Authority was set aside, however, Authority would be at liberty to check record of employer firm in accordance with law and fix responsibility---Constitutional petition was accepted in circumstances.

1999 SCMR 1466 ref.

PLD 1968 SC 101; PLD 1991 SC 777; 2009 SCMR 1169; 1985 SCMR 257; 1961 PLC 432; PLD 1988 SC 131 and PLD 1965 SC 261 distinguished.

1996 PLC 373; 1999 SCMR 1477; Malik Asad Ali v. Federation of Pakistan through Secretary, Law, Justice and Parliament Affairs, Islamabad and others PLD 1998 SC 161 and Messrs Bolan Mining Enterprises v. Board of Trustees, EOBI and others 2010 SCMR 1573 rel.

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

----Preamble---Punjab Employees' Special Allowance (Payment) Act (II of 1988), Preamble---Conflict between the Federal Legislation and Provincial Legislation---Resolution---Punjab Employees Special Allowance (Payment) Act, 1988 was Provincial Statue which had no overriding effect over Federal Statute---Federal law would prevail on the principle of implication---Employees' Old Age Benefits Act, 1976 was Federal Statute and in case of any conflict between the two, Federal Statute would prevail.

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

----S. 2 (bb)---'Wages'---Meaning---Definition Of wages would include special allowance.

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

----S. 2(bb)---'Employee'---Meaning---'Employee' was a person employed whether directly or through any other person for wages or otherwise.

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

----S. 2(c)---'Employer'---Meaning---'Employer' would include any person who had employed either directly or through another person an employee.

Munawar Ahmad Javed for Petitioner (in both writ petitions).

Hafeez Saeed Akhtar for Respondents.

2016 P L C 150

[Lahore High Court]

Before Ali Akbar Qureshi, J

MUHAMMAD FAZEEL ARSHAD

Versus

DIVISIONAL SUPERINTENDENT PAKISTAN RAILWAYS, MULTAN and 4 others

Writ Petition No.3092 of 2015, heard on 5th March, 2015.

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

----S.O. 1(b)---Constitution of Pakistan, Arts.2-A, 4 & 25---Prime Minister Family Assistance Package---Appointment on contract under package---Denial to regularize service---Petitioners, who were appointed on contract basis under package for a period of two years, remained working against their respective posts---Employers, had regularized the services of all other employees appointed under package, but said benefit was not extended to the petitioners---Petitioners who had attained the status of permanent workmen by afflux of time, their services would have been regularized in accordance with law---Petitioners, who were working from the last many years, had become over-age during period of their services, could not go anywhere, nor could apply to earn their livelihood in any department or organization---Employer, instead of involving the petitioner in litigation, should have regularized their services---Benefits under Prime Minister Family Assistance Package having been extended to all other employees, but same was denied to the petitioners---Such was violative of the guaranteed and secured rights of the petitioners under Arts.2-A, 4 & 25 of the Constitution---Employers, were directed by High Court to regularize the services of the petitioners, along with the back benefits in accordance with law.

Pakistan Telecommunication Company Limited through General Manager and another v. Muhammad Zahid and 29 others 2010 SCMR 253; Ejaz Akbar Kasi and others v. Ministry of Information and Broadcasting and others PLD 2011 SC 22; 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; lzhar 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; Tehsil Municipal Officer, TMA Kahuta and another v. Gul Fraz Khan 2013 SCMR 13; 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 ref.

Kanwar Intizar Muhammad Khan for Petitioner.

Rao Muhammad Iqbal for Respondents.

Date of hearing: 5th March, 2015.

2016 P L C 245

[Lahore High Court (Multan Bench)]

Before Shahid Bilal Hassan and Shahid Mubeen, JJ

DIRECTOR GENERAL, MULTAN DEVELOPMENT AUTHORITY and another

Versus

NASIR AHMAD TANVEER BAJWA

Review Petition No.13 of 2013, decided on 8th September, 2015.

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

----Ss.33 & 47---Civil Procedure Code (V of 1908), S.114 & O.XLVII---Notification No. F.5(2)/2003-AGP, dated 27-5-2003---Compulsory retirement---Grievance petition---Application for review of judgment of Single Judge of High Court---Scope---Grievance petition filed by the employee against order of his compulsory retirement having been dismissed by the Labour Court, employee filed appeal before Appellate Tribunal, which was dismissed---Employee assailed said order by filing constitutional petition, which was allowed by High Court---Employers through present review petition had assailed the order passed by Single Judge of High Court in the Constitutional petition---Employers had contended that their counsel made conceding statement before the High Court without instructions of an Officer Grade 17, without which conceding statement carried no weight in the eyes of law---Validity---High Court observed that Law Officers should not make conceding statement in the court, unless they had duly been instructed in writing by the competent authority; and an officer not below the rank of Grade-17 should be present in the court to verify and reiterate such instructions---Presence of the concerned Officer must be recorded in the order of the court; and written instructions should be made a part of the record of the court---If an order was passed in ignorance of judgment of the Supreme Court, which was binding under Art.189 of the Constitution, same was liable to be reviewed---Impugned order was reviewed, and judgment of Single Judge was set aside, in circumstances.

PLD 2003 Journal 95; Faisalabad Development Authority v. Raja Jahangir Nasir and others 2004 SCMR 1247 and Pakistan through Ministry of Finance Economic Affairs and another v. FECTO Belarus Tractors Limited PLD 2002 SC 208 ref.

Jawad Dilawar for Petitioners.

Muhammad Anwar Awan for Respondent.

2016 P L C 261

[Lahore High Court]

Before Ibad-ur-Rehman Lodhi, J

Messrs NESTLE MILKPAK LIMITED

Versus

JUDGE, SOCIAL SECURITY COURT, LAHORE and 2 others

F.A.O. No.230 of 2002, decided on 30th October, 2015.

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

----Ss. 2(8)(f), 20 & 57---'Employee'---Meaning and scope---Amount and payment of contribution---Punjab Social Security Institution, issued demand notice to company, directing it to pay less paid Social Security contribution for a certain period along with fifty percent statutory Increase---Company filed complaint against the notice under S.57 of Provincial Employees' Social Security Ordinance, 1965 which was dismissed by Vice Commissioner, while disagreeing with interpretation of 'wages' as given by the company, whereunder the company had included all expenses incurred by it for providing facilities to its workers connected with their job performance during working hours---Appellate court upheld finding of Vice Commissioner---Counsel of department contended that under S.20 of Provincial Employees' Social Security Ordinance, 1965, employer was under duty to pay, in respect of every employee, to the Institution a contribution at such times, at such rate and subject of such condition as might be prescribed, provided that no contribution would be payable on so much of an employee's wages, which was in excess of three thousand rupees---Validity---Section 2(8)(f) of Provincial Employees' Social Security Ordinance, 1965 remained effective during the whole period in question, and the employees of the establishment could not to be said to have ceased to be employee of the establishment, even if they were getting wages exceeding three thousand rupees---Demand in question raised by the Punjab Employees Social Security Institution was, therefore, valid and legal act on part of the Institution, and refusal on part of the petitioner-establishment was without any justification.

Province of Sindh through Chief Secretary and others v. M.Q.M. through Deputy Convener and others PLD 2014 SC 531; Dr. Muhammad Anwar Kurd and 2 others v. The State through Regional Accountability Bureau, Quetta 2011 SCMR 1560 and Reckitt and Colman of Pakistan Limited, Karachi and others v. The Commissioner, Sindh Employees' Social Security Institution, Awan-e-Mehnatkash Gulshan-e-Iqbal, Karachi and others 2001 PLC 245 ref.

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

----Ss. 64, 59, 58 & 57---Appeal to Social Security Court---Review on account of new facts---Decision on complaints, questions and disputes---Under S.59 of Provincial Social Security Ordinance, 1965, first appeal lies before Social Security Court against decision of the Institution under S.57 or on review under S.58 of the Ordinance---Appeal to High Court, within the meaning of S.64 of the Ordinance, is always to be considered as 'second appeal'---High Court directed its office to entertain and register such appeals as second appeal against order (SAO).

Umer Abdullah for Appellant.

Anwar Hussain, Asstt. A.-G., Punjab and Mohammad Nauman Aslam Raza for Respondents.

Date of hearing: 13th October, 2015.

2016 P L C 326

[Lahore High Court (Multan Bench)]

Before Ali Akbar Qureshi, J

TAUQEER ABID

Versus

DIVISIONAL SUPERINTENDENT PAKISTAN RAILWAYS, MULTAN and 4 others

Writ Petition No.4986 of 2015, heard on 23rd April, 2015.

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

----S.Os. 1(b) & 12---Constitution of Pakistan, Arts.2-A, 4 & 25---Regularization of service of employee---Violation of fundamental rights---Petitioner, was appointed on contract basis as Ticket Collector for a period of two years under "Prime Minister Family Assistance Package"---Petitioner remained working despite expiry of two years, but his services were not regularized, despite, authorities promised to regularize his service---Authorities had regularized the services of all other employees, who were appointed under said scheme, but petitioner had been denied the same---Petitioner having been working against the same post and project for the last many years, it could be held that said post and project were of permanent nature; and that the petitioner had attained the status of "permanent workman"---Denial of the authorities to regularize the services of the petitioner, was not permissible in law---Petitioner had become over-age during the period of his service; and he could not go anywhere, nor could apply to earn his livelihood in any department or organization---Authorities, should have regularized the services of the petitioner---Denial to extend benefit of regularization of his service, was violative of the guaranteed and secured rights of the petitioner under Arts.2-A, 4 & 25 of the Constitution---Petitioner having attained the status of "permanent workman" by afflux of time, authorities , would have to regularize his service according to law---Any action, if required in the case of any misconduct, would be initiated under Standing Order 12 of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, and not otherwise---Authorities, were directed to regularized the service of the petitioner along with back benefits in accordance, with law. A, B, C, D, E & G

Pakistan Telecommunication Company Limited through General Manager and another v. Muhammad Zahid and 29 others 2010 SCMR 253; Ejaz Akbar Kasi and others v. Ministry of Information and Broadcasting and others PLD 2011 SC 22; 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 Tehsil Municipal Officer, TMA Kahuta and another v. Gul Fraz Khan 2013 SCMR 13 ref.

(b) Constitution of Pakistan---

----Art. 25---Equal protection of law---Benefit of judgment of the court, should be extended to others who might not be parties to the litigation; and fell in the same category, instead of compelling them to approach the legal forum---Article 25 of Constitution, was also clear on the point, that all the citizens were entitled to equal protection of law. F

Muhammad Zaeem Khalid and others v. Baha-ud-Din Zakyria 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 ref.

Kanwar Intizar Muhammad Khan for Petitioners.

Rao Muhammad Iqbal for Respondents.

Date of hearing: 23rd April, 2015.

2016 P L C 360

[Lahore High Court (Multan Bench)]

Before Atir Mahmood, J

TECHNICAL EDUCATION AND VOCATIONAL TRAINING AUTHORITY through Chief Operating Officer and another

Versus

Hafiz NASEER and 2 others

Writ Petitions Nos.1385, 1386, 1387, 1388 of 2014 and 15903 of 2012, decided on 23rd December, 2015.

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

----Ss. 44, 1(3) & 2(ix)---Grievance petition---Regularisation of services---Technical Education and Vocation Training Authority whether commercial or industrial organization---Employees filed grievance petition that they were appointed against permanent and vacant posts and were entitled for regularization---Grievance petition was accepted concurrently---Validity---Some manufacturing of blue pottery was done by the department but mere manufacturing with no profit or commercial purpose did not make it a commercial or industrial organization---Department could not be considered as profit making entities, industrial establishment or commercial organization rather might be termed as charitable organization/establishment as it was imparting technical education and vocational training without any cost---Employees of the department did not fall within the definition of "workmen" or "worker"---Labour Court had no jurisdiction to deal with the grievances of the employees---Grievance petition filed by the employees was liable to be dismissed on this score alone---Employees were employed on daily wages for specified period for specified projects till their services were required---Mere payment of fixed monthly salary did not ipso facto declare a payee as "permanent employee"---Daily wage employee had no right to claim regularization of service---Daily worker could neither be considered a permanent employee nor he could be a member of any labour union---Impugned judgments were set aside and grievance petition was dismissed---Constitutional petition was allowed in circumstances. A, B, C, D & F

Trustees of the Port of Karachi v. Muhammad Saleem 1994 SCMR 2213; K.G. Old, Principal, Christian Technical Training Centre, Gujranwala v. Presiding Officer, Punjab Labour Court, Northern Zone and 6 others PLD 1976 Lah. 1097 and Sh. Ahmad Sadiq v. Chief Settlement Commissioner and others PLD 1974 SC 368 ref.

Managing Director, Sui Southern Gas Company Ltd. Karachi v. Ghulam Abbas and others PLD 2003 SC 724; Ikram Bari and 524 others v. National Bank of Pakistan through President and another 2005 SCMR 100; Tehsil Municipal Administration, Rahimyar Khan and others v. Hanif Masih and others 2008 SCMR 1058; Izhar Ahmed Khan and others v. Punjab Labour Appellate Tribunal Lahore etc. 1999 SCMR 2557; Karachi Chamber of Commerce and Industry, Karachi v. Sindh Labour Court No.5, Karachi and others 2012 PLC 251 and Lahore Development Authority through D.G. Lahore and another v. Abdul Shafique and others PLD 2000 SC 207 distinguished.

Board of Governors Aitchison College, Lahore v. Punjab Labour Appellate Tribunal and others 2001 PLC 589 rel.

(b) Industrial dispute---

----Daily wage employee---Scope---Daily wage employee had no right to claim regularization of his service. D

(c) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Where there was illegality, irregularity, jurisdictional defect, misreading or non-reading of evidence then High Court could interfere in concurrent findings to undo the wrong. E

Mehr Muhammad Iqbal for Petitioners.

Ch. Saleem Akhtar Warraich for Respondents.

Date of hearing: 8th December, 2015.

2016 P L C 428

[Lahore High Court]

Before Ali Akbar Qureshi, J

PAKISTAN TELECOMMUNICATION COMPANY LIMITED through Manager and 2 others

Versus

IFTIKHAR AHMAD KHAN and 2 others

W.P. No.11162 of 2012, heard on 3rd August, 2015.

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

----S. 46--- Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.1(b)---Grievance petition---Regularization of service of a worker---Scope---Employee filed grievance petition for his regularization which was accepted concurrently---Validity---If a worker was appointed against a project which was likely to continue for more than nine months and worker remained in service for nine months then he would attain the status of a regular employee---Employee who was appointed against a permanent post and on permanent project had served the department continuously---Employee had successfully completed the initial period of nine months---Employee was working against the same post and project for the last many years---Post and project against which employee was working was of permanent nature---Employee was entitled to be regularized into service---Denial of employer to regularize the services of employee was not permissible in law---No jurisdictional defect, legal infirmity or irregularity had been pointed out in the concurrent findings recorded by the courts below---Employer was not entitled to any discretionary or equitable relief in circumstances---Constitutional petition was dismissed in circumstances.

Hakim Muhammad Buta and another v. Habib Ahmad and others PLD 1985 SC 153; Muhammad Hussain and others v. Settlement and Rehabilitation Commissioner and others 1975 SCMR 304; Independent Newspaper Corporation (Private) Ltd. v. Punjab Labour Appellate Tribunal and others 2013 SCMR 190; Ikram Bari and 524 others v. National Bank of Pakistan through President and another 2005 SCMR 100; Khadim Hussain v. The Secretary, Irrigation and Works, Lahore 2006 PLC 8; 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; 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. Jafar Hussain and others PLD 2009 SC 194; Rai Ashraf and others v. Muhammad Saleem Bhatti and others PLD 2010 SC 691 and Pakcom Limited and others v. Federation of Pakistan and others PLD 2011 SC 44 ref.

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

----S.O. 1(b)---Regularization of a worker---Scope---If a worker was appointed against a project which was likely to be continued for more than nine months and worker remained in service for nine months then he would attain the status of a regular employee.

(c) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Concurrent findings recorded by the courts below could not be interfered with while exercising constitutional jurisdiction unless forums below had acted without lawful authority and jurisdiction.

(d) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Constitutional jurisdiction was discretionary and equitable in nature.

Khurram Shahzad Chughtai for Petitioners.

Asmat Kamal Khan for Respondent No.1.

Date of hearing: 3rd August, 2015.

2016 P L C 439

[Lahore High Court]

Before Shujaat Ali Khan, J

HABIB BANK LTD. and others

Versus

PUNJAB LABOUR APPELLATE TRIBUNAL, LAHORE and others

Writ Petition No.10958 of 2010, decided on 12th February, 2016.

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

----Ss. 46 & 2 (xxx)---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.12(6)---Grievance petition--- Bank manager--- Retirement--- Gratuity, determination of---"Workman"---Factors for determination---Persons performing managerial or administrative duties had been excluded from the category of "workman"---Employee, in the present case, was serving as Officer Grade-1 at the time of his retirement and he was posted as Branch Manager---Employee was not serving as "workman" at the time of his retirement---Mere designation was not sufficient to determine as to whether a person was "workman" or not rather duties being performed by him were the determining factor---Nothing was on record that employee was performing duties of manual or clerical nature---Branch Manager was considered to be a supervisory officer and duties being performed by him being of managerial nature could not be dubbed as "workman"---When employee did not fall within the category of "workman", provisions of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 were not applicable to him---Grievance petition before the Labour Court was not competent as employee was not workman at the time of filing of the same---Impugned judgments passed by the courts below were set aside and grievance petition was dismissed---Constitutional petition was allowed in circumstances.

Dilshad Khan Lodhi v. Allied Bank of Pakistan and others 2008 SCMR 1530; Samad Rubber Works (Pvt.) Ltd. through MD. v. Authority under Payment of Wages Act, 1936 and 2 others 2014 PLC 308; M/s Coca Cola Beverage Pakistan Ltd. through Authorized Officer/Industrial Relations Manager v. Registrar Trade Unions Sindh and 3 others 2010 PLC 48; Muhammad Ashraf v. Pakistan Railways and others 2007 CLC 40;Taj Din v. Pioneer Steel Mills Ltd. 1984 PLC 403 and Abdus Salam Khan v. Pakistan Railways through Division Superintendent, Lahore 1984 PLC 572 ref.

Muslim Commercial Bank Ltd. and others v. Muhammad Shahid Mumtaz and another 2011 SCMR 1475 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Jurisdiction of High Court to take care of orders passed by administrative tribunal/courts could not be abridged in the cases where a court, forum or tribunal assumed jurisdiction in a matter which otherwise did not fall within its purview.

Muhammad Iqbal and others v. E.D.O. (Revenue) Lodhran and another 2007 SCMR 682 rel.

Junaid Jabbar Khan for Petitioners.

Muhammad Tariq Ansari for Respondents.

Rana Shamshad Khan, Additional Advocate General on Court's call.

2016 P L C 491

[Lahore High Court]

Before Ali Akbar Qureshi, J

PAKISTAN TELECOMMUNICATION COMPANY LIMITED (PTCL) through General Manager and 2 others

Versus

AZEEM KIBRIA BHATTI and 2 others

W.P. No.11161 of 2012, heard on 3rd August, 2015.

Industrial Relations Ordinance (XCI of 2002)---

----S. 46---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.1(b)---Permanent status of workman---Regularization of service---Grievance petition---Employee who was appointed as 'Service Attendant-II' on 19-9-1997 as daily wager, served the department for a long period by successfully completing the initial period of nine months---Employee, by afflux of time, had attained the status of regular/permanent employee, but he was not formally declared as such---Grievance petition filed by the employee was accepted by the Labour Court, and Labour Court directed the employers to regularize the services of the employee from the date of his appointment---Labour Appellate Tribunal upheld the order of Labour Court---Validity---Employee having attained the status of a permanent employee from the day he completed the initial period of nine months, employers had no option, but to regularize the services of the employee from the date he was initially inducted into service---Post and project against which the employee was working, being of permanent nature, denial of the employers to regularize the services of the employee, was not permissible under the law---Judgments passed by the lower forums, were affirmed, and the constitutional petition, was dismissed, in circumstances.

Hakim Muhammad Buta and another v. Habib Ahmad and others PLD 1985 SC 153; Muhammad Hussain and others v. Settlement and Rehabilitation Commissioner and others 1975 SCMR 304; Independent Newspaper Corporation (Private) Ltd. v. Punjab Labour Appellate Tribunal and others 2013 SCMR 190; Ikram Bari and 524 others v. National Bank of Pakistan through President and another 2005 SCMR 100; Khadim Hussain v. The Secretary, Irrigation and Works, Lahore 2006 PLC 8; 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; 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; 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 and Pakcom Limited and others v. Federation of Pakistan and others PLD 2011 SC 44 ref.

Mirza Amir Baig and Khurram Shahzad Chughtai for Petitioners.

Asmat Kamal Khan for Respondent No.1

2016 P L C 54

[National Industrial Relations Commission]

Before Muhammad Akbar Sani, Member

MUHAMMAD YAQOOB

Versus

BAYER PAKISTAN (PVT.) LTD. and another

Case No.4B(19) of 2014-Q, decided on 18th August, 2015.

Industrial Relations Act (X of 2012)---

----Ss. 2(xxxiii) & 33---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(i) & S.O.12---Termination of service---Grievance petition---"Workman"---Determination of---Petitioner, who initially was appointed as Medical Information Officer on contract basis for eleven months, was promoted twice as Field Officer and Senior Sales Promotion Officer---Petitioner, in his grievance petition, alleged that he was terminated without any cause/reason that too without issuing him any show-cause notice---Grievance petition of the petitioner was resisted on the ground that same was not competent as the petitioner, who was performing his duties on the post of Senior Field Marketing Officer in Senior Management Cadre, could not be treated as "workman"---Petitioner, who was promoted as Senior Field Marketing Officer, was a member of Management Cadre, was working on a quite attractive post and was drawing Rs.26,364 P.M. along with several other facilities, such as free air travel, accommodation in superior hotels in order to promote the business of the employers---Besides his salary, the petitioner was getting travelling allowances, daily allowances and conveyance allowance---Such allowances in any commercial establishment or industry, were not available to any worker---Appointment of the petitioner, according to the (appointment) letter was on contract basis---Petitioner, in circumstances, did not fall within the definition of "workman" as defined under Industrial Relations Act, 2012---Grievance petition filed by the petitioner against his termination, was dismissed, in circumstances.

1999 PLC 273 rel.

Qazi Bashir for Applicant.

S.M. Iqbal for Respondents.

2016 P L C 289

[National Industrial Relations Commission]

Before Dr. Qammaruddin Bohra, Member

NIAZ HUSSAIN

Versus

Messrs ALLIED BANK LIMITED through President and 2 others

Appeal No.4A(418)/2015-K, decided on 28th March, 2016.

Industrial Relations Act (X of 2012)---

----Ss. 31, 54(e) & 57(2)(c)---National Industrial Relations Commission (Procedure and Functions) Regulations, 1973, Regln.32(2)(c)---Petition for unfair labour practice by employers---Stay application---Jurisdiction of National Industrial Relations Commission---Scope---Petitioner/ employee, who was office bearer of Federal/Labour Union in the employers Labour Union, claimed that he was born in 1958, and was to retire on attaining age of superannuation of 60 years in 2018, but employers being annoyed of his union activities had, threatened to retire him in 2015, taking year of his birth as 1955; which act of the employers, amounted to unfair labour practice---Assumption of jurisdiction of National Industrial Relations Commission for trial of the matter was dependent upon a prima facie case of unfair labour practice; but the facts narrated in the present petition, did not constitute a case of "unfair labour practice"---Jurisdiction of Commission was confined to the cases squarely falling within the scope of S.31 of Industrial Relations Act, 2012 and nothing beyond---Commission, had no jurisdiction in case of victimization on trade union activities by employee---In the present petition, no union activities, whatsoever had been mentioned to form the basis of the claim of unfair labour practice, except bald statement of apprehension---Petition, as such did not fulfil the requirements of S.54(e) of the Industrial Relations Act, 2012---Nothing was to indicate that the petitioner had been discriminated in respect of his retirement, especially when year of birth of the petitioner as 1955 had been established from his birth certificate and CNIC---All said facts had shown mala fide on the part of the petitioner/employee in filing petition---Employers, could not be said to be committing act of unfair labour practice and on merits also, the employee had no case---Petitioner/employee, having failed to establish case of unfair labour practice by the employers, not only stay application under Regln.32(2)(c) of National Industrial Relations Commission (Procedure and Functions), 1973, Regln.32(2)(c), was dismissed, but main petition also stood dismissed, in circumstances.

1992 PLC 447; 2004 TD (Labour) 158 and 2008 PLC 251 ref.

Mohammad Khurshid, Labour Representative for Applicant.

Shoukat Ali Chaudhry for Respondents.

2016 P L C 377

[National Industrial Relations Commission]

Before Muhammad Akbar Sani, Member

JEHANZEB KHAN

Versus

ALLIED BANK OF PAKISTAN LIMITED, LAHORE through President and 2 others

Case No.4B(69)2015-Q/C.M.A. No.24-A(67)2015-Q, decided on 20th January, 2016.

Industrial Relations Act (X of 2012)---

----S. 33---National Industrial Relations Commission (Procedure and Functions) Regulations, 1973, Regln.32(2)(c)---Petition for correction of entry of date of birth by employee---Employee, after 32 years of service in the Bank, came to know regarding wrong entry of his date of birth in his Service Book, which according to the employee in view of his school certificate was 28-8-1956 which was wrongly entered as 28-9-1953---After correction of date of birth in CNIC, on application of employee, Bank corrected date of birth of the employee in Bank record/Service Book as 28-8-1956 instead of 28-9-1953---After about two years, employee again came to know that his actual date of birth was 28-9-1960, and school authorities had wrongly entered the same as 28-8-1956 in school record---Employee filed suit for declaration and mandatory injunction against 'NADRA' and its authorities, without impleading employer Bank for correction of his date of birth in CNIC as 28-8-1960 which suit was decreed and date of birth of the employee -+was corrected as 28-8-1960 as prayed for by the employee---Employer Bank refused to correct the date of birth of the employee and he was directed to be relieved from duty on pre-superannuation leave on account of date of birth i.e. 28-8-1956---Employer Bank was not bound to comply with the decree passed by the civil court, as same was obtained behind the back of Bank without impleading it in the said suit as party---Bank had already redressed grievance of the employee regarding correction of his date of birth---Employee under the law, could not be allowed to repeat same action time and again only for his benefit by overlooking all the rules and regulations of the Bank---Employee, could not be allowed to approach Bank for the same purpose by adopting different tactics. A, B, C, D & E

2014 SCMR 1008; 2011 PLC 176 and 2011 PLC 191 ref.

2016 P L C 407

[National Industrial Relations Commission]

Before Azhar ul Habib Khan, Syed Hamid Hussain and Malik Falak Sher Farooqa, Members

PAKISTAN TELEVISION

Versus

TANVIR AHMED

Appeal No.12A(37) of 2015, decided on 24th March, 2016.

Industrial Relations Act (X of 2012)---

----S. 33----Redressal of individual grievance---Reinstatement during re-inquiry/disciplinary proceedings---Scope---Termination order passed by Inquiry Committee to be finalized by competent authority---Petitioner, having been found guilty after inquiry, was terminated on allegations of theft, fraud and dishonest usurpation of employer and Coroporation's property etc., on which the petitioner preferred representation/appeal before Managing Director of the Corporation for de novo inquiry---Petitioner also made another representation to the Minister for his reinstatement in service and for fresh inquiry, on which the Minister ordered for re-inquiry---Inquiry Committee, after re-inquiry, again terminated the petitioner, on which the petitioner served the grievance petition on the respondent/ Corporation---Chairman of National Industrial Relations Commission, accepting the grievance petition, reinstated the petitioner in the service with the direction to finalize the pending disciplinary proceedings against him---Validity---Inquiry Committee, after conclusion of the re-inquiry, had to submit its report to the competent authority for some final orders thereon---Inquiry Committee had although found the petitioner guilty, but no final order had been passed by the competent authority on the recommendations of the Inquiry Committee---Petitioner, therefore, for all intent and purposes, would be treated in service, as the earlier termination order was not in field---Initial termination order, having already sub-merged, had lost its worth due to constitution of fresh Inquiry Committee; thus, the Chairman of the Commission was quite right, and no illegality had been committed by him, in holding that the petitioner would be treated on duty from the date of his first termination from service---Impugned order of reinstatement was upheld---Appeal was dismissed in circumstances.

1992 SCMR 1093; 2007 PLC (CS) 138; 2009 PLC (CS) 565; C.P No.331/2009 Sohaial Abbas Bukhari v. Federation of Pakistan/PTV, C.P No.1362/1009 M. Ilyas Bhatti v. Ministry of Information/PTV and C.P No.1828/2011 Rashida Sohail v. M.D. PTV; PLD 2007 SC 681 and PLD 2006 SC 602 ref.

Sultan Hayat Ranjha for Appellant.

Raja Muhammad Basharat Khan for Respondents.

2016 P L C 462

[National Industrial Relations Commission]

Before Syed Maruf Ahmedali, Falak Sher Farooqa and Azhar-ul-Habib Khan, Members

CHAIRMAN, STATE ENGINEERING CORPORATION ISLAMABAD

Versus

NAFASAT ALI KIANI

Appeal No.12A(45 of 2015, decided on 19th April, 2016.

Industrial Relations Act (X of 2012)---

----Ss. 33, 53, 54 & 58---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.Os.1(1) & 12(3)---Termination of services---Member National Industrial Relations Commission, after setting aside termination order of the employee, having directed the appellant/employer Corporation to reinstate the employee---Validity---Employee had admitted that he was previously serving in the Complex, which was department of the Corporation where he was employed on contract basis; that he had signed the contract agreement whereby his employment was for the period of two years; which could be revoked at any time by the appellant employer corporation and that said period of contract was further extended time and again---Employee, held, could not claim, in circumstances, that his service had become permanent under Industrial and Commercial Employment (Standing Orders) Ordinance, 1968---Employee was retired/relieved under Golden Handshake Scheme after receiving dues and benefits---Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, was not applicable to the employee---Order of Member National Industrial Relations Commission was set aside by the Full Bench of the Commission.

Ehtesham Toor for Appellant.

M. Akhtar Anjum for Respondent.

2016 P L C 478

[National Industrial Relations Commission]

Before Azhar ul Habib Khan, Syed Hamid Hussain and Malik Falak Sher Farooqa, Members

JEHANZEB KHAN

Versus

ALLIED BANK LIMITED

Appeal No.12A(03) of 2016, decided on 25th March, 2016.

Industrial Relations Act (X of 2012)---

----Ss. 33 & 58---National Industrial Relations Commission (Procedure and Functions) Regulations, 1973, Regln.32(2)(c)---Wrong date of birth of employee, correction of---Grievance petition, dismissal of---Appellant/worker, after 23 years of his induction into service of Bank, came to know that his wrong date of birth was mentioned in the service record of the Bank as 28-9-1953 instead of 28-8-1956, which was according to his school certificate and birth record---Such wrong was got corrected by the worker by getting 'CNIC' of the alleged correct date of birth, which was corrected by the Bank accordingly---After about two years of said correction in date of birth, worker again came to know, that his real date of birth was 28-8-1960---Worker, filed a suit for declaration and mandatory injunction in the civil court for correction of his date of birth as 28-8-1960 without impleading bank and said suit was decreed by the civil court---Bank refused to comply with impugned judgment and decree passed by the civil court and issued letter to the employee, wherein his superannuation date was fixed as "5-10-2015"---Worker filed grievance petition against said fixation of his superannuation date and prayed that said letter be set aside; and Bank be directed to correct the date of birth in its record as 28-8-1960---Claim of worker was based on mala fide, mischievous and dishonest design---Member of National Industrial Relations Commission seized with the petition, and vide impugned order dismissed petition of the employee---Validity---Judgment and decree passed by the civil court, was not binding on the Bank to comply because Bank was not party to that suit, despite it was necessary party and in its absence no effective decree could be passed---Employee could not point out any unfair labour practice on part of employer Bank---Impugned order passed by Member of Commission, being in accordance with law and fact did not deserve any interference---Appeal was dismissed.

Abdul Hafeez Amjad for Appellant.

2016 P L C 517

[National Industrial Relations Commission]

Before Falak Sher Farooqa, Member

MUHAMMAD ASIM KHAN RANA

Versus

MANAGING DIRECTOR, SUI NORTHERN GAS PIPELINES LIMITED and 2 others

C.M.A. No.24(78), Case No.4A(74) of 2013-L, C.M.A. No.24(79)/Case No.4A(75) of 2013-L; C.M.A No.24(80)/Case No.4A(76) of 2013-L decided on 29th June, 2016.

Industrial Relations Act (X of 2012)---

----Ss. 31(1)(d) & 33---Issuance of charge-sheet to employees on allegation of misconduct---Grievance petition---Charge-sheet showed that petitioners had tampered the dates of applications for installation of new connections of gas meters and issued demand notices out of turn/merit on giving advantage against cases mentioned in the charge-sheets---Petitioners, filed written reply to the said charge-sheets, inquiry was conducted by employers management; as a result final show-cause notices had been served against the petitioners and final order had not been passed due to restraint order issued by National Industrial Relations Commission---Serving of show-cause notice, charge-sheet and holding of inquiry, was prerogative of the employer, which could not be taken away in order to establish unfair practice on part of the employers---Petitioners (employees), had to prove the facts mentioned under S.31(1)(d) of Industrial Relations Act, 2012---Petitioners, who had taken a plea that due to their union activities, they were being victimized by the employers, were not office bearers of Collective Bargaining Agent Union---Petitioners had claimed themselves to be the members of trade union---No document in that regard was placed on record---No specific instance had been mentioned in the grievance petition in order to prove trade union activities---Mere general and vague allegations, had been levelled in the petitions---Grievance petitions filed by the petitioners (employees), being meritless, were not maintainable, and were dismissed, in circumstances.

Muhammad Younas Khan v. Habib Bank Limited through President and others 2004 SCMR 149 ref.

Ch. Waqar Ahmed for Petitioners.

2016 P L C 529

[National Industrial Relations Commission]

Before Falak Sher Farooqa, Member

KHALID MEHMOOD CHAUDHRY

Versus

GENERAL MANAGER HR I, SNGPL, LAHORE and others

Cases Nos.4A(225) of 2013-L, 4A(201) and 4A(197) of 2014-L, decided on 31st May, 2016.

Industrial Relations Act (X of 2012)---

----Ss. 31 & 33---Misconduct and absence from duty---Transfer of employee from one place of working to another---Restraint order---Requirements---Petitioner, who claimed to be "workman", having been transferred from one place of working to another, alleged that he had been victimized and discriminated on account of his lawful trade union activities---Petitioner, who was Senior Associate Engineer in the company, had not placed on record any document in order to show that he was ever representative of any trade union and that he was an active member of any trade union---Only general and vague allegations, had been levelled by the petitioner regarding his trade union activities and extending of threats by the employer to quit trade union activities---No specific instance, had been mentioned in the grievance petition---Petitioner joined the inquiry proceedings and contested the same before the Inquiry Officer---Employers had served the petitioner, the charge sheet, wherein the allegations regarding misconduct, absence from duties etc. had been levelled; the petitioner had been given proper opportunity to contest the same by appearing before the Inquiry Officer and cross-examine the witnesses examined before Inquiry Officer---Stay application against the transfer of the petitioner, had already been dismissed---Employer had the prerogative to post his employees as per his own choice---No restraint order could be passed, until and unless, it was established by the workman that transfer had been ordered due to mala fide and on account of trade union activities---Conducting disciplinary proceedings for acts of misconduct against delinquent worker, including office bearers of union, was a right of employer; which could not be curbed or taken away, merely on the general and vague allegations of unfair labour practice---Employer, had legal inherent right to initiate disciplinary proceedings against employees on charge of misconduct and to take such proceedings to their logical end, in absence of any specific instance of unfair labour practice.

2003 PLC 149 rel.

Ch. Waqar Ahmed for Petitioner.

2016 P L C 16

[Peshawar High Court]

Before Waqar Ahmad Seth, J

SHAUKAT ALI

Versus

CHIEF EXECUTIVE PESCO

LCR No.7 of 2013, decided on 27th June, 2014.

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

----S.O.13(3)---Khyber Pakhtunkhwa Industrial Relations Act (XVI of 2010), S.37---Withholding of back benefits---Time barred de novo proceedings---Effect---Discrimination---Legal and economic justice in Labour Laws---Object and scope---Petitioners were dismissed from service---Service Tribunal set aside the order of dismissal of petitioners and they were reinstated into service by remanding their cases for de novo proceedings---Criminal case was lodged against the petitioners wherein they were acquitted of the charge---Contention of the petitioners was that after their reinstatement their back benefits could not be withheld particularly when the de novo proceedings were barred by time---Validity---Under Standing Order 13(3) of the Standing Order Ordinance, 1968 and Labour Law nowhere withholding of benefit was defined as punishment and the same was the position in the non-statutory law of respondents establishment and Civil Servant Act---Withholding of back benefits had not been defined as punishment, if charges proved and under the labour law back benefits/wages were only withheld when the employee was found to have been employed in some gainful employment during this period---Service Tribunal ordered de novo proceedings to be finalized within four (4) months, whereas the same were finalized beyond the period of four (4) months, which was not permissible under the law---Petitioner's colleague was also charged but subsequently a separate inquiry was held and he was exonerated therein and was allowed all back benefits, while the petitioners were discriminated---Labour Court had taken cognizance of the case with no objection from the respondents, therefore, Labour Laws were applicable to parties---Workers, in Labour matters placed economic justice while employees placed legal justice; court had to maintain a balance between legal and economic justice; scales of social justice were tilted in favour of weaker section; Industrial Relations Act, 2010 was basically a beneficial legislation, which provided for protection of rights of labour classes; object amongst other was to ameliorate conditions of workers; such a legislation had to be construed liberally and beneficially; restricted construction of Industrial Relations Act, 2010 would defeat manifest objective of legislation---Time barred de novo proceedings and withholding of back benefits were held to be illegal and unlawful---Petitioners' appeal was allowed.

Muhammad Bashir and others v. Chairman, Punjab Labour Appellate Tribunal, Lahore and others 1991 SCMR 2087; Zaraai Taraqiati Bank Ltd., Islamabad and another v. Aftab Ahmed Kolachi and another 2009 SCMR 129; National Bank of Pakistan and others v. Shamoon Khan and others 2010 PLC (C.S.) 608 and Zahooruddin Sheikh v. Pakistan Atomic Energy Commission through Chairman, Islamabad 2007 PLC (C.S.) 959 rel.

Javid Iqbal Sheikh for Petitioner.

Muhammad Ashraf Hashmi for Respondents.

Date of hearing: 27th June, 2014.

2016 P L C 279

[Peshawar High Court]

Before Nisar Hussain Khan and Muhammad Daud Khan, JJ

PRESIDENT, MEEZAN BANK LTD. and 6 others

Versus

NASIR JALAL AWAN and 2 others

W.P. No.634-P of 2015, decided on 9th June, 2015.

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

----S. 2(xxxiii)---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(i)---Bank employee---Status of 'workman', determination of---Employee who was designated as "Area Service Quality Manager"---Detail of his job description, as assigned by the Bank, included; Floor Time Management, who would make sure that ATM Card/PIN record was properly kept, timely delivered to customers; and destroyed undelivered Cards/PIN at the given time frame; assist and guide the customer for issuance of cheque books; ATM balance confirmation certificates, duplicate statement of accounts; ensure adequate inventory of customer interface form/applications and product brochures maintained at the branch of Bank; conduct monthly service huddle in the branch; ensure overall cleanness and pleasant atmosphere in the branch premises; proper maintenance of notice board and ensure cleanliness and proper care of the server room---All said responsibilities were indicative of the fact that those were the duties manually performed by the employer; and not of a managerial, or administrative task---Employee, did not exercise any power of hire and fire over all of the employees---Job description of the employee, clearly elucidated that he fell within the definition of "worker and workman".

Mustehkum Cement Limited through Managing Director v. Abdul Rashid and others 1998 SCMR 644 ref.

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

----Arts. 132 & 133---Cross-examination of witnesses---Striking off such right---Scope---Contention of petitioners was that their valuable right of cross-examination of witnesses, had wrongly and illegally been struck off; in absence of which, evidence recorded by respondents, was of no legal worth---Validity---Petitioners, were directed to make sure presence of their counsel for completion of cross-examination on next date or else evidence of the petitioners would be closed by drawing inference that petitioners were not interested to further cross-examine the witness---Evidence of petitioners was closed, and respondent was directed to file affidavit of witnesses within three days---Certified copies of all said order-sheets produced by respondent during the course of hearing were withheld by the petitioners; and thereby material facts were concealed, and court was strived to be misled that the petitioners were not afforded any opportunity of cross-examination, while record spoke otherwise---Right of cross-examination was not an unfettered one which could be stretched out of proportion at the whims of cross-examiner---Court was supposed to control and check the unwarranted exercise of prolonged and purposeless cross-examination---Object of cross-examination was to dig out the truth through vehicle of cross-examination which could not be allowed to use as a tool to harass a witness by cross-examination for an indefinite period---Petitioners, being unwilling employers, were dragging the respondent in multifarious application at different forums to prolong the matter as long as they could---Right of cross-examination of the petitioners, was rightly struck off, in circumstances.

Mst. Saira Bibi v. Muhammad Asif and others 2009 SCMR 946 distinguished.

Muddassar alias Jimmi v. The State 1996 SCMR 3 Muhammad Shafi and others v. The State PLD 1967 SC 167 rel.

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

----S. 33---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.Os.12 & 15(3)---Misconduct---Termination of service---Grievance petition---Allegation of employers, on which, employee was issued show-cause notice followed by inquiry; and his termination from service, was that he obtained loan from his colleagues---Employers, during trial of grievance petition, had failed to prove the charge against the employee, because none of those persons appeared before the Enquiry Officer to establish the allegation---Even, if any loan was obtained, that by itself, did not tantamount to misconduct---Borrowing money from a colleague, was no offence---Employers/Bank had nowhere alleged that employee received any illegal gratification or bribe, which might have constituted "misconduct"---No such allegation or proof was on record about misconduct or breach of discipline by the employee during discharge of his official duties with reference to his job---Order of termination of the employee, was rightly struck down, in circumstances---In absence of any illegality or violation of law causing miscarriage of justice, well reasoned judgments of lower fora, could not be interfered with, in circumstances.

Barrister Babar Shahzad Imran for Petitioners.

Aamir Javed for Respondents.

Date of hearing: 9th June, 2015.

2016 P L C 34

[Punjab Labour Appellate Tribunal]

Before Asad Munir, Member

JAVED IQBAL NADEEM

Versus

GENERAL MANAGER (C&M)

Labour Appeal No.SA-145 of 2012, decided on 7th July, 2014.

Pakistan Water and Power Development Authority Act (XXXI of 1958)---

----Ss. 17(1-B) & 17(1-C)---Punjab Industrial Relations Act (XIX of 2010), Ss.33 & 46(3)---Termination of service---Grievance petition, competency of---Jurisdiction of Labour Court---Appellants, remained employed in WAPDA as skilled coolies on daily-wage basis for about five years, when their services were terminated---Appellants filed joint grievance petition to challenge termination of their services, but Labour Court, returned the petition for its presentation before the proper forum having jurisdiction; on the ground that Labour Court had no jurisdiction in view of provisions of Ss.17(1-B) & 17(1-C) of Pakistan Water and Power Development Authority Act, 1958 and that Federal Service Tribunal, alone had jurisdiction where the services of WAPDA employees were terminated---In view of provisions of Ss.17(1-B) & 17(1-C) of Pakistan Water and Power Development Authority Act, 1958 Labour Court had no jurisdiction to adjudicate upon the grievance of WAPDA employee.

WAPDA v. Muhammad Ashraf Naeem 1997 SCMR 1128; Project Director Ghotki (WAPDA) v. Commissioner, Workmen's Compensation PLD 1992 SC 45; WAPDA and another v. Muhammad Arshad Qureshi 1986 SCMR 18 and Wasim Ahmed Khan v. WAPDA and 3 others 1997 SCMR 2000 ref.

Shahid Sadiq for Appellants.

Muhammad Ijaz Ch. for Respondent.

2016 P L C 39

[Punjab Labour Appellate Tribunal]

Before Asad Munir, Member

H.M.B. TANNERIES (PVT.) LIMITED through Manager

Versus

WAJID ALI SHAH and 2 others

Revision Petition No.LHR-375 of 2011, decided on 26th August, 2014.

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

----Ss. 15 & 22---Industrial Relations Ordinance (XXIII of 1969), Ss.25-A & 35---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.12(3)---Resignation from service---Recovery of dues on account of gratuity, bonus, compensation for un-availed leave---Grievance petition, maintainability of---Jurisdiction of Labour Court---Scope---Employee's services stood terminated upon his resignation from service---After termination of service, employee filed grievance petition under S.25-A of Industrial Relations Ordinance, 1969 for recovery of dues on account of gratuity, bonus, compensation for un-availed leave---Employer company through its application under S.35 of the Industrial Relations Ordinance, 1969 sought dismissal of grievance petition on the ground that Labour Court lacked jurisdiction to adjudicate upon the grievance petition---Labour Court dismissed application filed by the employer company, holding that Labour Court had jurisdiction in the matter---Validity---Claim for gratuity before the Payment of Wages Authority under the Payment of Wages Act, 1936 was competent---Claim for gratuity could not be filed before the Labour Court---Under S.25-A of the Industrial Relations Ordinance, 1969, a workman could maintain a petition, where he was still in service, or where his services had been terminated in connection with or as a consequence of an Industrial dispute---Employee, in the present case, could not maintain grievance petition, as neither he was in service when he filed grievance petition, nor his services were terminated in connection with or as a result of an industrial dispute---Grievance petition filed by the employee, was also not competent under the provisions of S.O.12(3) of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, which could be invoked only where the services of a workman were illegally terminated---Labour Court had no jurisdiction to entertain and adjudicate upon employee's claim for recovery of wages including gratuity, bonus, compensation for un-availed leave---Impugned order, was set aside---Grievance petition was dismissed and revision petition was allowed.

Pak Arab Refinery Limited v. Muhammad Rashid 1999 SCMR 373 and Zain Packages Industries Limited, Karachi v. Abdul Rashid and others 1994 SCMR 22 distinguished.

Trustees of the Port of Karachi v. Muhammad Saleem 1994 SCMR 2213 and Messrs Wah Industries Limited, WAH Cantt. District Rawalpindi v. Punjab Labour Appellate Tribunal, Lahore and 2 others 1998 PLC 1 ref.

Mirza Abbas Baig for Petitioner.

Nemo for Respondents.

2016 P L C 93

[Punjab Labour Appellate Tribunal]

Before Ch. Muhammad Tariq, Chairman

ABDUL MAJEED and others

Versus

DANDOT CEMENT COMPANY LTD. through General Manager/Factory Manager

Labour Appeals Nos.RI-439 and RI-440 of 2015, decided on 15th October, 2015.

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

----Ss. 33 & 47---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.12---Retirement of employees on attaining age of superannuation---Employees, who were retired on attaining age of superannuation, filed grievance petitions, contending that in view of the settlement, arrived at between the employer and Collective Bargaining Agent, their retirement could be extended for further two years---Grievance petition of employee was dismissed by the Labour Court---Validity---Employees, could not deny that said clause of the settlement was rescinded in meeting held between the employer establishment and the representative of the Collective Bargaining Agent, in which it was decided that in the light of financial crises of the employer establishment the settlement was rescinded and as a consequence beyond 60 years, no extension would be allowed---When the services of some of the employees were extended, said agreement had ceased, and there was no agreement in field, so the extension in the services of some employees could not be termed as discrimination; rather it was the discretion of the employer to extend the services of some of the employees on attaining age of superannuation---In absence of any statute, rule or agreement, it was a latitude or liberty, which the employer had exercised and extended the services of some of its employees who had attained the age of superannuation---Employees, could not seek the benefits of the old agreement between the employees and employers, in circumstances.

Mirza Muhammad Afzal for Appellant.

Ms. Shaista Altaf for Respondent.

2016 P L C 147

[Punjab Labour Appellate Tribunal]

Before Ch. Muhammad Tariq, Chairman

MUHAMMAD RASHEED

Versus

H. OHASHI CHIEF (REPRESENTATION) OF TOYOTA TSUSHO CORPORATION

Labour Appeal No.LHR-40 of 2015, decided on 12th October, 2015.

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

----Ss. 33 & 47---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.1(4)(a) & S.0.12-Termination of service---Grievance petition-Dismissal of---Appellant/employee, who was appointed as Office Boy, his services were terminated---Grievance petition was dismissed by the Labour Court-Validity-Letter of appointment showed that service of the employee could be terminated by giving three months notice, or three months gross salary in lieu thereof---Appointment letter was signed by the employee; he accepted the terms and conditions of appointment---Employee had admitted that he had received his total dues as his final settlement---Employee also had admitted that in the office of the employer, only seven permanent employees were working---Relationship of the employee and employer was of "master and servant", because total strength of the employees in the office of the employer was seven (less than twenty employees)---Labour laws, were not applicable with relation to the grievance of the employee---Grievance petition, being not maintainable, was rightly dismissed by the Labour Court---In absence of any ambiguity and non-reading of evidence in the impugned judgment, appeal was dismissed.

Tanveer Ahmed Ghumman for Appellant.

Riaz Hussain for Respondent.

2016 P L C 163

[Punjab Labour Appellate Tribunal]

Before Sagheer Ahmed Qadri, Chairman

MANAGING DIRECTOR, TAREEN TRADERS and another

Versus

SARDAR KHAN

Labour Appeal No.MN-586 of 2012, decided on 18th December, 2014.

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

----O. VI, R.2---Pleadings, scope---"Pleadings", normally did not include "evidence", but it would refer the material, factual and legal aspects, which were to be proved by the parties during the trial.

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

----Ss. 2(xxviii), 25-A & 37(3)---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(i), S. O.12--- Termination of service---Grievance petition---"Workman"--- Determination---Employer had terminated services of employee (Chokidar) on the allegation that he was found sleeping during duty hours, without holding any enquiry-against him and without affording an opportunity of hearing---Grievance petition filed by the employee against termination was resisted by the employer, mainly on the ground that same was not competent as the employee did not fall within the definition of "workman"---Grievance petition filed by the employee was allowed by the Labour Court--- Validity---Employee, as Chowkidar, was to perform his duties, not only as a Watchman, but he had to personally search the people approaching the Mills premises---Employee, in circumstances, had to perform such manual work; and being an employee of a category of a lowest grade, having no supervisory power, could safely be taken as workman and he had competently filed grievance petition---To prove allegation of negligently performance of duties by the employee on basis of which his services were terminated, employer had produced a witness---Statement of said witness, which was -based on hearsay, lacked in material aspects to prove allegation beyond any shadow of doubt---Labour Court, discarded said statement---Labour Court while reinstating the employee, his 50% back benefits, were rightly withheld---Observation of the Labour Court being quite reasonable and justified, appeal being meritless was dismissed, in circumstances.

Mohammad Ali v. Mills Manager National Embroidery Mills Ltd., Faisalabad 1984 PLC 1100; Azam Khan v. Director, Grace Apperal (Pvt.) Ltd. 2001 PLC 515; Irshad Begum v. Mohammad Rafique PLD 2010 Lah. 649; Khadim Hussain and others v. M/s Fauji Suger Mills 1981 PLC 319; Abdul Razzaq v. Messrs Ihsan Sons Limited and 2 others 1992 SCMR 505; Pakistan Steel Fabrication Co. Ltd. v. Mohammad Yamin NLR 1991 TD 614; Attock Refinery Limited Rawalpindi v. Lal Khan 1994 PLC 497; Security Paper Limited v. Sindh Labour Appellate Tribunal and another PLD 1988 SC 180; Pakistan Engineering Company, Ltd., v. Fazal Beg and others 1992 SCMR 2166 and General Manager, Hotel Intercontinental, Lahore and another v. Bashir A. Malik and others PLD 1986 SC 103 ref.

Qaisar Ameer Khan for Appellants.

Mumtaz Khan Baloch for Respondent.

2016 P L C 181

[Punjab Labour Appellate Tribunal]

Before Ch. Muhammad Tariq, Chairman

BBJ PIPE INDUSTRIES LTD. through General Manager

Versus

MOHAMMAD YOUSAF

Revision Petition No.LHR-160 of 2015, decided on 13th October, 2015.

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

----S. 47(5)---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S. 0. 12(6)---Payment of Wages Act (IV of 1936), Ss.15 & 17--Dismissal from service---Claim of the employee in respect of amount of gratuity, was rejected by the Authority under Payment of Wages Act, 1936, on the ground that employee was dismissed from service---Employee challenged order of the Authority only to the extent of his claim under Payment of Wages Act, 1936 in appeal before the Punjab Labour Court, which having been accepted by the Labour Court, the employers had filed revision petition-Validity ­Employee, was dismissed from service for misconduct on allegation of misappropriation and non-depositing amount of token tax---Employee, despite receiving show-cause notice did not join inquiry and ultimately, was dismissed from service---Employee on receipt of show-cause notice, deposited the entire misappropriated amount, which amounted to confession of guilt of employee---Order of dismissal was never challenged by the employee before the competent Authority, which had attained finality-Under provisions of S.0.12(6) of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, employee could not claim the amount of gratuity etc.---Labour Court had not taken into consideration the mandatory provisions of law, and passed impugned judgment which was not sustainable in the eyes of law---Revision petition filed by the employer, was accepted and impugned judgment passed by the Labour Court was set aside, in circumstances.

1995 PLC 530 ref.

Kh. Omar Masood for Petitioner.

Khurram Raza for Respondents.

2016 P L C 220

[Punjab Labour Appellate Tribunal]

Before Ch. Muhammad Tariq, Chairman

Messrs INTER MARKET KNIT (PVT.) LTD. through Director Admn and Logistics

Versus

RIASAT ALI and another

Revision Petition No.LHR-193 of 2014, decided on 1st October, 2015.

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

----Ss. 15(2) & 17---Punjab Industrial Relations Act (XIX of 2010), S.47(5)---Claim for payment of dues---Denial---Employee filed claim under S.15(2) of Payment of Wages Act, 1936 for payment of dues, which was resisted by the employer with the stance that employee's claim of gratuity, annual leave and bonus had already been paid to him---Employer, therefore, prayed dismissal of the claim of the employee---Authority, dismissed claim of the employee---Labour Court had held that conclusion arrived at by Authority was not in consonance with established norms of justice; and that impugned order was not sustainable in the eyes of law---Order passed by the Authority was set aside, and matter was remanded to the Authority to get imbursed claim of the employee within one month---Claim of the employee was that he did not receive any amount on account of gratuity, annual leave or bonus, whereas the employer had claimed that all such dues had been paid to the employee---Employer had proved his claim beyond any shadow of doubt that it had paid amount of claim of employee---Employer, in addition to oral evidence, produced documentary evidence to prove that the employee had received all dues claimed by him---Said solid documentary evidence could not be rebutted by solitary short statement of the employee---Employee had himself acknowledged through a letter the receipt of his total dues as, claimed by him-- Impugned order was set aside with the findings that the employee had received entire amount of his gratuity in lieu of annual leave and amount of bonus etc.

Kh. Omer Masood for Petitioner.

Tanveer Ahmed Ghumman for Respondent No.l.

2016 P L C 247

[Punjab Labour Appellate Tribunal]

Before Asad Munir, Member

KHAWAJA WOOLEN MILLS (PVT.) LTD. through Director

Versus

MUHAMMAD YOUSAF and 2 others

Revision Petition No.GA-562 of 2013, decided on 11th September, 2014.

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

----Ss. 15(2) & 17---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), Ss.1(4), 2(i) & S.O.12(4)---Gratuity, recovery of--- "Workman"--- Determination--- Scope---Respondent/ employee filed application under S.15(2) of the Payment of Wages Act, 1936 for recovery of amount on account of gratuity, claiming that he had served the petitioner company for about 18 years---Petitioner employer company, resisted claim of respondent, on the grounds; that the respondent was not "workman"; that the petitioner company only employed 18 workmen; and that respondent remained in the service of the petitioner company only for seven years---Authority under the Payment of Wages Act, 1936 accepted claim of the respondent, and order of authority was upheld by Labour Court---Validity---Witnesses, appearing on behalf of petitioner employer company, stated that respondent employee was a Quality Supervisor---No question or suggestion was put to the petitioner company's witnesses to dislodge their statements that respondent had worked as a Quality Supervisor---Status of respondent as a "workman", as contemplated under S.2(i) of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, could not be disputed, but had to be recognized---No documentary evidence was produced to show that power to hire and fire was ever exercised by the respondent---Authority under Payment of Wages Act, 1936, as well as Labour Court had rightly held that, the respondent was "workman" and was entitled to receive gratuity---Regarding length of service of the respondent with petitioner's company, respondent produced his Social Security Card and Employees' Old-age Card, showing that respondent remained in service of the petitioner since 1-8-1994 till 31-7-2007, for 13 years---Respondent, in circumstances, was entitled to receive gratuity for 13 years' service---Regarding number of workmen employed in the petitioner company, respondent had asserted that total number of workmen employed by the petitioner company was in excess of 50--No question or suggestion was put to the respondent to shake his said assertion---Stand of petitioner company that total number of its workmen was 18, was contradicted even by petitioner company's own witness by stating that number of the workmen employed by the petitioner company was 45/47---Such contradiction exposed the petitioner company's stand as to the number of workmen employed by it---Petitioner company, had more than 50 workmen in its employment; wherefor petitioner company, could not claim exception from payment of gratuity under Second Proviso to S.1(4) of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968---Respondent was entitled to gratuity for 13 years' service---Impugned judgment was modified, accordingly.

Muhammad Farooq Textile Mills Ltd. v. Muhammad Yaqoob 2007 PLC 472 rel.

Mirza Abbas Baig and Muhammad Hassan Butt for Petitioner.

Muhammad Naeem Sardar for Respondents.

2016 P L C 522

[Punjab Labour Appellate Tribunal]

Before Justice (R) Sagheer Ahmed Qadri, Chairman

MUHAMMAD ASIF CHISTI

Versus

INAM-UL-MAJEED KHAN

Revision Petition No.70 of 2014, decided on 19th May, 2016.

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

----Ss. 69 & 70----Penal Code (XLV of 1860), S.405---Embezzlement or misappropriation of funds by employee ---'Criminal Breach of trust', definition of---Relevance---Only fine was provided as punishment for commission of offence in terms of Ss. 69 & 70 of Punjab Industrial Relations Act, 2010---Labour Court had to conduct quasi-judicial criminal proceedings for implementation of the provisions of Ss.69 & 70 of the Act, and the same procedure had been adopted by the Trial Court/Labour Court in the present case---Definition of 'criminal breach of trust' as provided under S.405, P.P.C. was also relevant to further understand the charge leveled against the accused---Offences of misappropriation/embezzlement and criminal breach of trust contained the element of mens rea as the integral ingredient of the offences---Allegations against the accused was that he along with the Finance Secretary of the Union issued two cheques and deposited the same in his own account and thus deprived the Union of its valuable property/cash----Finance Secretary had deposed during the cross-examination that he had issued and deposited the disputed cheques in the account of the accused for the reason that the accused, being the Pattern-in-Chief, would incur the expenses of the Union---Accused also deposed that the disputed cheques had been deposited in his personal account, as he used to bear the expenses of the Union from his own pocket and later on amount thus spent was transferred to his account or otherwise reimbursed---Record also showed that at the relevant time when both the cheques had been issued there was a requirement for the payment of fee of an advocate for initiation of certain proceedings before certain authorities---Trial Court/Labour Court had the jurisdiction to entertain and try the complaint under Ss.69 & 70 of the Act---Trial Court, applying its judicial mind, had reached the conclusion that the accused had not committed the offence---Labour Appellate Tribunal, while exercising the revisional jurisdiction, could not reach at another conclusion, as the present case was not an appeal against acquittal---Revision petition was dismissed accordingly.

Malik Muhammad Tariq Rajwana for Petitioner.

Haider Nawaz Khan for Respondent.

2016 P L C 237

[Balochistan High Court]

Before Mrs. Syeda Tahira Safdar and Muhammad Ejaz Swati, JJ

HABIB BANK LIMITED through President and 2 others

Versus

AZIZ ULLAH LAGHARI and 2 others

C.P.No.493 of 2012, decided on 19th January, 2016.

(a) Employer and employee---

----Bank employee---Reinstatement after acquittal from criminal charge---Employee was reinstated in service on acquittal from criminal charge---Validity---Punishment awarded to the employee was in consequence of the inquiries conducted by the departmental authorities independent of criminal case---Acquittal in a criminal case would not give certificate to the employee to absolve him from the departmental proceedings---Both criminal and departmental proceedings could go side by side being different in nature---Courts below had erred to absolve the employee of the charge and proceedings held departmentally on the basis of a decision given in a criminal case---Impugned orders passed by the courts below were set aside and case was remanded to the Labour Court to decide the validity of inquiry and record findings with regard to punishment awarded to the employee---Labour Court was directed to complete proceedings with a decision on merit within a period of two months---Constitutional petition was disposed of in circumstances.

2008 SCMR 857; Habib Bank Ltd. v. The State 2013 SCMR 840; National Bank of Pakistan v. Anwar Shah 2015 SCMR 434; Aziz Ahmed Shah v. UBL 2011 PLC 136; Muhammad Musadaq Khan v. Muhammad Akram Khan 2003 SCMR 1; Yousaf Ali Shah v. Quetta Serena Hotel 1997 SCMR 1630; PLD 1997 SC 53; Mahmood Hussain Larik v. Muslim Commercial Bank, Ltd. 2009 SCMR 857; PLD 2011 SC 1462; PLD 2011 SC 1387; Tariq Aziz-ud-Din and others's case 2011 PLC (CS) 1130; PLD 2011 Kar. 848; Muhammad Islam v. Government of NWFP PLD 1998 SC 1993; Attaullah Sheikh v. WAPDA 2001 SCMR 269 and 2011 CLC 1340 ref.

Iqbal Ahmed v. Muslim Commercial Bank, Ltd. 2009 SCMR 903 and Government of Pakistan v. Asif Ali 2007 PLC (C.S.) 271 rel.

(b) Employer and employee---

----Acquittal in a criminal case had no bar on departmental authorities to take action against the employee in accordance with law applicable to his service.

Muhammad Riaz Ahmed for Petitioners.

W.N. Kohli for Respondent No.1.

Date of hearing: 27th October, 2015.

2016 P L C 117

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, C.J., Amir Hani Muslim and Maqbool Baqar, JJ

SHAHID PERWAIZ

Versus

Messrs GALAXO KLIN PAKISTAN LTD. and others

Civil Appeal No. 31-K of 2013, decided on 22nd October, 2015.

(On appeal from judgment of High Court of Sindh, Karachi dated 25-9-2012, passed in C.P. No. 2940 of 2011).

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

----S. O. 15(3)(f)--- Dismissal from service---Habitual late comer---Criteria for categorizing a worker as a habitual late comer at work--- Employer-company issued a show cause notice to appellant/worker, stating the facts that as to how during the years 1991 to 2001, he had been found habitual late comer and his delayed arrival had been marked on 223 days---During such period worker was also warned on 26 different occasions by sending him advisory letters---Worker did not deny the factum of delay in his attendance, but tried to justify it for different reasons---Employer-company held inquiry against the worker and dismissed him from service with immediate effect---Validity---Worker who admittedly continued to come late on his duty on 223 occasions during the period of ten years and failed to improve his conduct despite issuance of 26 advisory notice/letters to him in such regard, was a habitual late comer and such negligent conduct on his part could not be condoned by the Court to the prejudice of his employer---Late coming of a worker approximately twice a month could not be ignored as of right, more particularly, in the circumstances when in the form of advisory letters on 26 occasions, he was warned to desist and discontinue such practice, but to no avail---Punishment of dismissal from service awarded to the worker in the present case by employer-company was neither illegal nor arbitrary, but was according to the spirit of the law (Standing Order 15(3)(f) of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968)---Appeal was dismissed accordingly.

Shahnshah Hussain, Advocate Supreme Court and Mazhar Ali B. Chohan, Advocate-on-Record for Appellant.

Muhammad Humayun, Advocate Supreme Court and K.A. Wahab, Advocate-on-Record for Respondent No.1.

Date of hearing: 22nd October, 2015.

2016 P L C 168

[Supreme Court of Pakistan]

Present: Ejaz Afzal Khan and Iqbal Hameedur Rahman, JJ

M.C.B. BANK LIMITED, KARACHI

Versus

ABDUL WAHEED ABRO and others

Civil Petition No. 1702 of 2015, decided on 30th September, 2015.

(On appeal against the judgment dated 26-5-2015 passed by the High Court of Sindh, Karachi, in C.P. No. D-1306 of 2012)

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

----S. 46---Constitution of Pakistan, Arts. 10A & 185(3)---Inquiry proceedings, witnesses of---Worker's right of cross-examining witnesses---Right to fair trial---Due process of law---Worker not afforded opportunity to cross-examine witnesses during inquiry--­Effect---Dismissal order of worker converted into stoppage of increments for three years--- Worker, who was performing his duties as a cashier at a Bank, was dismissed from service on the allegation of embezzlement/misappropriation---Labour Court ordered worker's reinstatement in service on the ground that during the inquiry proceedings conducted by the employer-Bank six witnesses were produced, but the worker was allowed to cross-examine only one such witness---Appellate Tribunal maintained reinstatement order passed by Labour Court but ordered stoppage of worker's increments for three years---High Court maintained order passed by Appellate Tribunal--­Validity---Perusal of the record revealed that the worker had not been afforded reasonable opportunity of defending himself as it was quite evident that six witnesses were produced during the inquiry, but the worker was afforded the opportunity of cross-examining only one witness---Opportunity of fair trial had not been afforded to the worker by depriving him his right of cross-examining the witnesses as such it could be held that principles and procedures of due process of law and fair trial had not been followed, which were against the principles of natural justice---Supreme Court maintained orders passed by Appellate Tribunal and High Court and observed that it was the prerogative of the management of the employer-Bank to decide the designation/ posting of the worker in accordance with their norms and indoor management.

Muhammad Ataullah v. Islamic Republic of Pakistan and 2 others 1999 SCMR 2321 ref.

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

----S. 6---Enactment repealed by any Central Act---Effect of repeal--­Scope---Section 6 of the General Clauses Act, 1897, operated in such a manner that it allowed for the effect of an enactment repealed by any Central Act to continue even after such repeal---Section 6 of the General Clauses Act, 1897, did not call for the revival of a repealed law but rather imputed finality to actions already undertaken.

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

----S. 46---Industrial Relations Act (IV of 2008), S. 87---General Clauses Act (X of 1897), S. 6---Effect of repeal of Industrial Relations Ordinance, 2002---Scope---Grievance application/appeal filed under the Industrial Relations Ordinance, 2002---Repeal of Industrial Relations Ordinance, 2002 by way of Industrial Relations Act, 2008 during pendency of such grievance application/appeal--- Effect--- Such application/appeal would continue to be governed by the Industrial Relations Ordinance, 2002 in terms of S. 6 of the General Clauses Act, 1897.

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

Shahid Anwar Bajwa, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 30th September, 2015.

2016 P L C 447

[Supreme Court of Pakistan]

Present: Ejaz Afzal Khan, Sardar Tariq Masood and Faisal Arab, JJ

DCO/CHAIRMAN DISTRICT RECRUITMENT COMMITTEE, KHANEWAL and others

Versus

KISHWAR SULTANA and others

Civil Appeals Nos.843 to 863, 969 to 970 of 2012, Civil Appeals Nos.263-L to 265-L of 2013, 984, 127-P, 129-P to 134-P, 136-P to 141-P, 143-P to 148-P of 2014, Civil Petitions Nos.1353-L of 2012, 3474 of 2015, C.M.As. Nos.1378 and 6497 of 2014, decided on 28th April, 2016.

(On appeal against the judgments dated 23-4-2012, 2-4-2014, 29-5-2012, 12-6-2012, 15-5-2012, 25-4-2013, 30-5-2013, 11-9-2013, 16-9-2013, 27-6-2013, 14-5-2014, 10-6-2014, 15-5-2014, 3-6-2014 and 23-9-2015 of the Lahore High Court, Lahore, Lahore High Court, Rawalpindi bench, Peshawar High Court, Peshawar and High Court of Balochistan Quetta in W.Ps. Nos. 3002, 3519 of 2010, 256 of 2011, I.C.A. 87 of 2010, W.P. 4208/10, 5468/10, I.C.As. 232/11, 258/10, W.Ps. 1229/09, 23067/09, 2130/10, 15724/10, 3751/10, 3752/10, 21755/10, 23465/10, I.C.As. 87/2010, 248/10, 249/10, 257/10, W.Ps.9878/10, 15813/10, 15918/10, 16844/10, 15638/11, I.C.As.233/11, 234/11, W.Ps. 4146/10, 3173-P/12, 3172-P/12, 3174-P/12, 3239-P/12, 3240-P/12, 1297-P/12, 3032-P/12, 3283-P/13, 3321-P/12, 3362-P/12, 3378-P/12, 122-P/13, 1279-P/12, 1499-P/12, 1349-P/14, 1746-P/14, 207-M-P/14, 1393/14 and C.P. 811/2015)

National Training Ordinance (IX of 1980)---

----S. 4---Rules of Business of Skill Development Council, 2013, Rr. 6 & 7---Skill Development Council ("Council")---Diplomas or certificates awarded by the Council in the fields of art, craft, education or physical education---Legality---Said fields were beyond the domain of the Council, and thus it could not launch any programmes in respect of such fields or award diplomas or certificates---Appointment made on the basis of such certificate or diploma in different educational institutions were liable to be annulled, however the Supreme Court directed that such appointees could continue their jobs provided they met certain conditions.

Skill Development Council focused on labour, market, information and launched technical education and vocational training in any physical and professional skill, trade, calling or occupation so that the people who could not acquire higher or specialized education may get opportunities of employment, according to the needs and requirements of the market. However art, craft, education and physical education were well beyond the domain of the Council and capacity of its faculty. Council thus could not launch programmes in any of these fields. National Training Board and the Council travelled beyond what they were established for by launching programmes falling exclusively in the domain of art, craft, education or physical education.

Appointments were made on the basis of such diplomas and certificates in educational institutions without caring to know that the Council did not have the power and competence to launch such programmes, courses and curriculums and issue certificates and diplomas in such behalf.

Supreme Court directed that present appointees could continue their jobs, if they besides the certificates or diplomas, issued by the Council, possessed the requisite or equivalent qualifications or if they had improved their qualifications thereafter; that those appointees who could not improve their qualification up till now should improve it within a period of one year.

Mudassar Khalid Abbasi, AAG, Punjab, Waqar Ahmed Khan, Additional A.-G., Khyber Pakhtunkhwa, Majeedullah, Legal Representative DE(E&SE), Peshawar and Fazl-e-Khaliq, Legal Representative DEO (Male) Sawabi for Appellants.

Ijaz Anwar, Advocate Supreme Court for Respondents (in C.As.145-P to 147-P and 128-P of 2014).

Molvi Ejaz-ul-Haq, Advocate Supreme Court for Respondents (in C.As. 843, 844, 850, 854, 969, 856 and 859 of 2012).

Syed Wasat-ul-Hassan Shah, Advocate Supreme Court for Respondents (in C.A. 843 of 2012).

Abdul Rehman Siddiqui, Advocate Supreme Court for Respondents (in C.M.As. 1490 and 6497 of 2014).

M. Siddique Khan Baloch, Advocate Supreme Court for Respondents (in C.M.As. 2366 - 2367 of 2016).

Rehmanullah, Farooq Ahmed, Musharaf Shah, M. Ishaq and Zia-ul-Haq in person (in C.A. 145-P of 2014).

Sohail Ahmed, DAG on Court's Notice.

Date of hearing: 8th April, 2016 (Judgment Reserved)

2016 P L C 483

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, Dost Muhammad Khan and Faisal Arab, JJ

PAKISTAN TELECOMMUNICATION COMPANY LIMITED

Versus

EMPLOYEES' OLD AGE BENEFIT INSTITUTION and another

Civil Appeal No.908 of 2012, decided on 25th March, 2016.

(On appeal against the judgment dated 17-5-2012 passed by the Islamabad High Court, Islamabad in Writ Petition No.622 of 2007)

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

----Ss. 9, 9-B & 47(f)---Pakistan Telecommunication (Re-Organization) Act (XVII of 1996), S. 34---Pakistan Telecommunication Company Limited ("Company")---Not a statutory body but a distinct and separate entity limited by shares formed under the Companies Ordinance, 1984---'Company' was liable to pay contributions under the provisions of Employees' Old-Age Benefits Act, 1976 from the date of its incorporation.

Pakistan Telecommunication Company Limited ("Company") was incorporated as a limited company under the provisions of the Companies Ordinance, 1984. It did not come into existence under the Pakistan Telecommunication (Re-organization) Act, 1996, which Act only provided that a company limited by shares shall be incorporated under the provisions of the Companies Ordinance, 1984.

By virtue of section 47(f) of the Employees' Old-Age Benefits Act, 1976, the said Act did not apply to persons in service of a 'statutory body'. For an entity to be described as a 'statutory body', its birth itself should have been caused by a special statute. Such entity should come into existence by virtue of a statute itself and not established under the provisions of an already existing statute. In the case of Pakistan Telecommunication Company Limited ("Company"), it came into existence under the provisions of the Companies Ordinance, 1984, an already existing statute, and not under Pakistan Telecommunication (Re-Organization) Act, 1996. As the 'Company' was incorporated under an existing law, it could not be regarded as a 'statutory body'. From the date of incorporation of the 'Company' none of its employees could be regarded as employees of a statutory body so as to enjoy the benefit of the provisions of section 47(f) of Employees' Old-Age Benefits Act, 1976.

Since Pakistan Telecommunication Company Limited could not be regarded as a statutory body, it was liable to pay contributions under the provisions of Employees' Old-Age Benefits Act, 1976 from the date of its in-corporation.

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

----S. 47(f)---Employees' Old-Age Benefits Act, 1976 not to apply to persons in service of a 'statutory body'--- 'Statutory body'--- Scope---For an entity to be described as a 'statutory body', its birth itself should have been caused by a special statute---Such entity should come into existence by virtue of a statute itself and not established under the provisions of an already existing statute---Where the legislature had not brought into existence an entity through a special law but the same had been incorporated under some existing statute then such entity could not be assigned the status of a statutory body.

Hamid Khan, Senior Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Appellant.

Tariq Bilal, Advocate Supreme Court for Respondents.

2016 P L C 306

[Supreme Court (AJ&K)]

Before Mohammad Azam Khan, C.J., Ch. Muhammad Ibrahim Zia and Raja Saeed Akram Khan, JJ

Civil Appeal No.121 of 2013

UBL PROGRESSIVE EMPLOYEES UNION Through President and 2 others

Versus

UNITED BANK LIMITED and 5 others

(On appeal from the judgment of the High Court, dated 24.07.2013 in Writ Petition No.1912 of 2012)

Civil Appeal No.122 of 2013

UNITED BANK LIMITED

Versus

REGISTRAR TRADE UNIONS IN AZAD JAMMU AND KASHMIR and 7 others

(On appeal from the judgment of the High Court dated 24.07.2013 in Writ Petition No.1912 of 2012).

Civil Appeals Nos.121 and 122 of 2013, heard on 26th May, 2014.

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

----Ss. 5, 6, 7, 10, 12 & 13---Registration/cancellation of Trade Union--- Remedy against--- Proceduure--- "Workman"---Determination---Scope---High Court had quashed order of Registrar Trade Union with regard to registration of Trade Union---Validity---Only a workman actually employed could be a member of Trade Union---If any of the members of trade union was not a workman then such Trade Union could not be registered---Question whether all the members and office bearers of the union were workmen or not, was to be determined by the Registrar Trade Union---If Registrar TradeUnion refused to register a Trade Union or failed to issue certificate then Union might file an appeal in the Labour Court---Only one appeal had been provided against non-registration of union---No appeal against registration of Trade Union could be filed---Employer had no right to file appeal against the registration of Trade Union---Registration of Trade Union could be cancelled by the Labour Court on the complaint of Registrar Trade Union---Registrar Trade Union was to make inquiry and if facts were mis-stated or registration of union was violative of provisions of Azad Jammu and Kashmir Industrial Relations Ordinance, 1974 then he might make complaint to the Labour Court for cancellation of Trade Union---Employer could file application for cancellation of Trade Union to the Registrar Trade Union---Nothing was on record that nature of duties of office bearers of union was such that they could not be termed as workmen---Question whether an employee would fall in the category of "workman" or not could not be determined from his designation rather it had to be determined from the nature of duties he performed---Such controversy could not be resolved without relevant record---Employer/Bank having accepted the jurisdiction of Registrar Trade Union Employer/Bank to register Trade Union of Workmen, was estopped from taking position that Azad Jammu and Kashmir Industrial Relations Ordinance, 1974 was not applicable on Banks---Bank might file application before the Registrar Trade Union for initiating inquiry and making complaint to the Labour Court for cancellation of registration of Trade Union---Writ petition before High Court was not maintainable when alternate remedy was available---Appeal was allowed in circumstances.

Commissioner Income Tax Muzaffarabad and others v. Altaf Ahmed Mir, AVP, NBP, RHQ, Muzaffarabad and others 2001 PTD 1538; Said Muhammad and 4 others v. Custodian of Evacuee Property, Azad Jammu and Kashmir, Muzaffarabad and 8 others PLD 2006 SC (AJ&K) 1; Kohinoor Tea Company (Pvt.) Ltd. v. Director of Labour and others 2001 PLC 367 and Shoukat Usman, Ex-Officer Grade-1 UBL Muzaffarabad v. United Bank Limited through its President Head Office of Bank Karachi and 6 others PLJ 2011 SC (AJ&K 1 ref.

Burewala Textile Mills Limited, Burewala v. Registrar, Trade Unions, Multan and 3 others 1994 PLC 323; Agriculture Workers' Union Balochistan v. The Registrar of Trade, Unions, Balochistan Quetta and others 1997 SCMR 66; United Bank Limited Employees Union through its President and General Secretary at Muzaffarabad and 4 others v. United Bank Limited through its President, 2000 PLC (C.S.) 930; Zulfiqar Ali Mallick v. Zonal Chief Habib Bank Limited and 6 others 2004 SCR 341; National Bank of Pakistan v. Punjab Labour Court No.5, Faisalabad and 2 others 1993 SCMR 672; Qaisar and others v. Muhammad Shafaqat Shrif 2012 SCMR 743; Azad Govt. and 3 others v. Mrs. Jamshed Naqvi and 2 others 2012 SCR 13; Ehsan-ur-Rehman and 10 others v. Arshad Ali Khan and 5 others 2012 PLC (C.S.) 795 and Engineer Muhammad Khalid v. The University of AJ&K and 8 others 2004 SCR 467 rel.

(b) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)---

----S. 51---Azad Jammu and Kashmir Industrial Relations Ordinance, 1974, Preamble---Applicability of Industrial Relations Ordinance, 1974 and Banking Companies Ordinance, 1962 in the territory of Azad Jammu and Kashmir---Scope---Industrial Relations Ordinance, 1974 was enforced at the time of promulgation of Azad Jammu and Kashmir Interim Constitution Act, 1974 and same was applicable on all the industrial and commercial entities---Said Ordinance was even applicable to the persons who were employed as workman by the departments---Banking Companies Ordinance, 1962 had been adopted by the Azad Jammu and Kashmir Council---Banks from Pakistan had been registered as a foreign company in the Azad Jammu and Kashmir---Such Banks were amenable to all the laws enforced in Azad Jammu and Kashmir like any other person---Laws of Pakistan were only applicable in the territory of Pakistan unless adapted by the Azad Jammu and Kashmir Assembly or Council---All industrial disputes in the territory of Azad Jammu and Kashmir had to be raised and resolved in the light of provision contained in Azad Jammu and Kashmir Industrial Relations Ordinance, 1974.

(c) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)---

----S.44---Writ petition before High Court---Scope---Alternate remedy---Writ petition was not maintainable when alternate remedy was available.

Riaz Tabassum and Zaffar Hussain Mirza, Advocate for Applicants (in C.A. No.121 of 2013).

Muhammad Idrees Mughal, Advocate for Respondents (in C.A. No.121 of 2013).

Muhammad Idrees Mughal, Advocate for Appellants (in C.A. No.122 of 2013).

Muhammad Riaz Tabassum and Imtiaz Hussain, Advocates for Respondents (in C.A. No.122 of 2013).

Date of hearing: 26th May, 2014.

JUDGMENNT

MOHAMMAD AZAM KHAN, C.J.--- The titled appeals with the leave of the Court arise out of the judgment of the High Court dated 24th July, 2013. Common questions of law are involved in both the appeals, therefore, these are being disposed of through single judgment.

1. UBL Progressive Employees Union was registered by the Registrar Trade Unions on 10th September, 2011. Office bearers of the Unions were registered by the Registrar Trade Union on 18th October, 2011, (C.B.A.) collective bargaining agent certificate in favour of the said Union was issued on 31st October, 2011 and the script of office bearers was issued on 18th October, 2011. United Bank Limited challenged the said order of the Registrar through a writ petition filed on 1st October, 2012 after a period of more than one year for being issued without lawful authority. After necessary proceeding, the learned High Court quashed the orders passed by the Registrar and the Deputy Registrar being without lawful authority and of no legal effect through the impugned Judgment dated 24th July, 2013. Both the parties have challenged the said judgment.

2. Mr. Muhammad Idrees Mughal, Advocate, the counsel for United Bank Limited, submitted that the Azad Jammu and Kashmir Industrial Relations Ordinance, 1974 (hereinafter to be referred as I.R.O.) is not applicable in the present case. United Bank is a banking company. The Azad Jammu and Kashmir Legislative Assembly has no jurisdiction to enact laws for the territories of Pakistan. The I.R.O. has been issued by the Azad Government, therefore, it is not applicable on banking companies. The learned counsel forcefully argued that after 18th amendment in the Constitution of Islamic Republic of Pakistan, 1973 new Industrial Relations Act, 2012 (I.R.A.) has been enacted on 13th April, 2012 and after promulgation of new Industrial Relations Act, the banks are being governed by the said Act. The I.R.O. has no concern with the banking companies. The learned counsel submitted that the banking companies are licenced by the State Bank of Pakistan and the banks working under the licence of the State Bank of Pakistan are not amenable to the AJ&K laws. In I.R.A., trans provincial companies and multinational companies are not amenable to the jurisdiction of the labour Court. The learned counsel referred to unreported judgments of Pakistan titled Telecommunication Limited v. Member NIRC and others (Civil Appeal No.407/2013 decided on 17th February, 2012), State Bank of Pakistan v. Presiding Officer Labour Court (Civil Appeal No.1150/2012 decided on 13th February, 2013) and Air League of PIAC Employees v. Federation of Pakistan (Constitutional Petition No.24 of 2011 decided on 2.6.2011). The learned counsel also referred to the cases titled Commissioner Income Tax Muzaffarabad and others v. Altaf Ahmed Mir, AVP, NBP, RHQ, Muzaffarabad and others (2001 PTD 1538) and Said Muhammad and 4 others v. Custodian of Evacuee Property, Azad Jammu and Kashmir, Muzaffarabad and 8 others (PLD 2006 Supreme Court (AJ&K) 1).

In the case titled Said Muhammad and 4 others v. Custodian of Evacuee Property, Azad Jammu and Kashmir, Muzaffarabad and 8 others (PLD 2006 Supreme Court (AJ&K) 1), while deciding the writ petition, the High Court failed to resolve the preliminary objection raised by the respondents. This Court observed that without first having the wisdom of the High Court in the matter it is not appropriate for this Court to decide the question involved in the case. The case was remanded.

In the case titled Commissioner Income Tax Muzaffarabad and others v. Altaf Ahmed Mir, AVP, NBP, RHQ, Muzaffarabad and others (2001 PTD 1538) it was observed by this Court that banks established by the Government of Pakistan are neither acting in connection with the affairs of the State of Azad Jammu and Kashmir nor the same are under the control of the Azad Jammu and Kashmir Government or the AJ&K Council, therefore, the writ cannot be issued against the management of such banks under section 44 of the Azad Jammu and Kashmir Interim Constitution Act.

In appeal titled Pakistan Telecommunication Company Ltd. v. Member NIRC and others (Civil Appeal No.407/2013 decided on 17th February, 2014), the controversy involved was relating to I.R.A., 2012.

In the case titled State Bank of Pakistan v. Presiding Officer, Labour Court (Civil Appeal No.1150/2012 decided on 13th February, 2013), the matter raised before the Court was regarding the implementation of the judgment of the labour court. The case was decided through consolidated judgment and in other appeals the matter involved relating to the validity of I.R.O., 2008.

In case titled Air League of PIAC Employees v. Federation of Pakistan (Constitutional Petition No.24 of 2011 decided on 2.6.2011), the question involved was that what is the status of I.R.O., 2008 by virtue of Article 270AA added through 18th amendment introduced in the Constitution of Islamic Republic of Pakistan.

1. While controverting the arguments of the learned counsel for the United Bank Ltd., Mr. Zaffar Hussain Mirza, Advocate, the counsel for UBL Progressive Employees Union and others, submitted that the appeal filed by the United Bank Limited is not competent because the writ petition filed by the United Bank has been accepted. The appeal has only been filed for academic discussion. It merits dismissal. The learned counsel submitted that the judgment of the High Court is against law and the record. The writ petition is not maintainable because alternate remedy by way of application is available against the registration process. Under section 10 of I.R.O. the Registrar has power to register a Trade Union and issue certificate under section 12 of the said Ordinance and under section 13, the registrar may file complaint in the labour Court for cancellation of the registration of Union. The learned counsel submitted that finding recorded by the High Court that the officers of the Bank cannot be the members or office bearers of the Union, is against law. It is not designation rather it is the nature of the duties assigned, which determines whether a person is a workman or not.

2. Mr. Riaz Tabassum, Advocate, the counsel for UBL Progressive Employees Union argued that alternate remedy for cancellation of registration of Union is available to the bank. In presence of alternate remedy the writ petition is not maintainable. The learned counsel relied upon case law reported as Burewala Textile Mills Limited, Burewala v. Registrar, Trade Unions, Multan and 3 others (1994 PLC 323), Kohinoor Tea Company (Pvt.) Ltd. v. Director of Labour and others (2001 PLC 367) and Agriculture Workers' Union Balochistan v. The Registrar of Trade, Unions, Balochistan Quetta and others (1997 SCMR 66).

In the case titled Burewala Textile Mills Limited, Burewala v. Registrar, Trade Unions, Multan and 3 others (1994 PLC 323), the Lahore High Court observed that the employer is authorized to object to the registration of Union before the Registrar and the Registrar is empowered to move the Labour court for cancellation of the registration of labour union.

In the case titled Kohinoor Tea Company (Pvt.) Ltd. v. Director of Labour and others (2001 PLC 367), the Karachi High Court observed that writ petition for cancellation of registration of trade union is not maintainable. The question can only be determined by the labour Court on a complaint by the Registrar.

In the case titled Agriculture Workers' Union Balochistan v. The Registrar of Trade Unions, Balochistan Quetta and others (1997 SCMR 66), it was observed by the Supreme Court of Pakistan that question relating to nature of the duties and function performed by the employees of Municipal Corporation was the question of fact which requires evidence and same cannot be determined satisfactorily in the proceedings under Article 199 of the Constitution of Pakistan especially when an alternate procedure for such determination is provided under section 10 of I.R.O., 1969. The Supreme Court in the circumstances, recalled the writ issued by the High Court against the registration of trade union.

1. Raja Imtiaz Ahmed, Advocate, the counsel for respondents Nos.1 and 2 in appeal titled United Bank v. Registrar Trade Union and others, submitted that the judgment of the High Court is not maintainable. Respondent No.3 falls in the definition of worker and workman. He referred to section 2(28) of I.R.O. and argued that the status of worker and workman can be determined from the nature of the duties and not from the designation. The learned counsel relied upon the case reported as Shoukat Usman, Ex-Officer Grade-1 UBL Muzaffarabad v. United Bank Limited through its President Head Office of Bank Karachi and 6 others PLJ 2011 SC (AJ&K 1).

In case titled Shoukat Usman, Ex-Officer Grade-1 UBL Muzaffarabad v. United Bank Limited through its President Head Office of Bank Karachi and 6 others (PLJ 2011 SC (AJ&K) 1), the matter before the Court was in relation to the amendment of section 2-A of Federal Service Tribunals Act, 1973, and filing of civil suit by an officer of the Bank against the termination order. It is not a matter under I.R.O.

1. We have heard the learned counsel for the parties and also perused the record. United Bank challenged the registration of UBL progressive Employees Union Azad Jammu and Kashmir, registration of office bearers and C.B.A. certificate issued in favour of the said union. The question of application of I.R.O., on the banks established under the licence of the State Bank of Pakistan and working in the Azad Jammu and Kashmir has also been raised. I.R.O., was enforced in the Azad Jammu and Kashmir on 3rd June, 1974. The Azad Jammu and Kashmir Interim Constitution Act, 1974 was promulgated on 24th August, 1974. The I.R.O., was in existence prior to the promulgation of the Azad Jammu and Kashmir Interim Constitution Act, 1974 and section 51 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 postulates that all laws which immediately before the commencement of this Act, were in force in Azad Jammu and Kashmir shall continue to remain in force until altered, repealed or amended by an Act of the appropriate authority subject to the provisions of this Act. Explanation to section 51 prescribes that the laws in this section includes Ordinance, Orders, rules bye-laws, regulations and any notification and other legal instruments having the force of law. The I.R.O., was enforced at the time of promulgation of Interim Constitution Act, 1974, therefore, it is applicable on all the industrial and commercial entities. It is even applicable to the persons who are employed as workmen by the departments. UBL is admittedly a banking company governed by the Banking Companies Ordinance, 1962. The said Ordinance has been adapted by the Azad Jammu and Kashmir Council by extension of Laws Act, 1980. In the light of the provisions of the said Ordinance, the bank has been registered as a company under the Companies Ordinance, 1984 as a foreign company in the Azad Jammu and Kashmir and is engaged in banking business in the territorial limits of the Azad Jammu and Kashmir. The banks are amenable to all the laws enforced in Azad Jammu and Kashmir like any other person. The question of applicability of I.R.O. raised by the counsel for the appellant, United Bank Ltd. came under consideration of this Court in a previous case titled Muhammad Farid Sulehria and another v. Labour Court and others (Civil Appeal No.88/2008 decided on 1st October, 2012. It was observed by this Court as under:-

"The above referred judgment of the Supreme Court of Pakistan recorded in Mubeen-us-Salam's case (supra) was not brought into the notice of the High Court while deciding the writ petition. This aspect of the case that a 'worker' or 'workman' as defined in Factories Act, 1934 or the Workman's Compensation Act, 1923 has been expressly excluded from the definition of 'civil servant' as defined in the Civil Servants Act, 1973, was not considered by this Court while deciding the cases reported as United Bank Limited Employees Union through its President and General Secretary at Muzaffarabad and 4 others v. United Bank Limited through its President and others, (2000 PLC (C.S.) 930) Genuine Rights Commission through Munir Ahmed Farooqi Advocate and others v. Federal Government through Chief Secretary, Islamabad and 11 others (PLD 2006 High Court (AJ&K) 1) and subsequent cases decided on the strength of these authorities. The view expressed in the case reported as [2004 SCR 341] is not correct, therefore, is distinguishable. While applying the law laid down in Mubeen-us-Salam's case, it is held that appellant No.1 is a workman. He doesn't fall within the definition of civil servant. The labour Court has jurisdiction in the matter. The judgment of the High Court dated 11.4.2008 is not sustainable. The appeal is accepted. The judgment of the High Court dated 11.4.2008 is set aside with no order as to the costs."

In the cases reported as United Bank Limited Employees Union through its President and General Secretary at Muzaffarabad and 4 others v. United Bank Limited through its President, etc. (2000 PLC (C.S.) 930) and Zulfiqar Ali Mallick v. Zonal Chief Habib Bank Limited and 6 others (2004 SCR 341) the jurisdiction of labour Court was not challenged by the banks functioning in the Azad Jammu and Kashmir. The judgment delivered in Muhammad Farid Sulehria's case (supra) lays down the correct law. All the banks functioning in the Azad Jammu and Kahmir are amenable to I.R.O.

1. The contention of the learned counsel for the United Bank that after introduction of 18th amendment in the Constitution of Pakistan, 1973, new I.R.A, has been enacted, therefore, the banks will be governed under the provisions of the said act, is misconceived. The laws of Pakistan are only applicable in the territory of Pakistan unless adapted by the Azad Jammu and Kashmir Assembly or AJ&K Council. Any of the provisions contained in I.R.A. has no relevancy for determining the Industrial disputes arising in Azad Jammu and Kashmir. All the industrial disputes in the Azad Jammu and Kashmir have to be raised and resolved in the light of the provision contained in I.R.O.

2. The I.R.O., 1974 provides a scheme for registration and cancellation of Trade Unions. The preamble of I.R.O. provides that the Ordinance is being promulgated for the formation of Trade Union, the regulation of relations between employers and workmen and the avoidance and settlement of any differences or disputes arising between them. Section 3 of I.R.O. provides for establishment of a Trade Union and right to the workers to join association of their own choice. An application for registration of Trade Union may be filed under section 5 of I.R.O. to the Registrar. Section 6 provides the requirements for filing an application for registration of Trade Union, with the statement including, apart from others, the title, names, age, address and occupation of the officer of the Trade Union and section 7 provides the requirements of registration. Section 7 is reproduced as under:-

"7. Requirements of registration.--- (1) A trade union shall not be entitled to registration under this Ordinance unless the Constitution thereof provides for the following matters, namely:

(a) the name and address of the trade union;

(b) the objects for which the trade union has been formed;

(c) the purposes for which the general funds of the union shall be applicable;

(d) the number of persons forming the executive shall be from amongst the workmen actually engaged or employed in the establishment or the industry for which the trade union has been formed;

(e) the conditions under which a member shall be entitled to any benefit assured by the constitution of the trade union and under which any fine or forfeiture may be imposed on him;

(f) the maintenance of a list of the members of the trade union and of adequate facilities for the inspection thereof by the officers and members of the trade union;

(g) the manner in which the constitution shall be amended, varied or rescinded;

(h) the safe custody of the funds of trade union, its annual audit, the manner of audit and adequate facilities for inspection of the account books by the officers and members of the trade union;

(i) the manner in which the trade union may be dissolved;

(j) the manner of election of officer by the general body of the trade union and the term, not exceeding two years, for which an officer may hold office upon his election or re-election;

(k) the procedure for expressing vote of confidence in any office of the trade union; and

(l) the meeting of the executive and of the general body of the trade union, so that the executive shall meet at least once in every three months and the general body at least once every year.

(2) Without prejudice to the provisions of subsection (1), a trade union of workmen shall not be entitled to registration under this Ordinance unless all its members are workmen actually engaged or employed in the industry with which the trade union is connected."

From the plain reading of section 7, it appears that a Trade Union is not entitled for registration without providing the details mentioned in subsection (1). The provisions of the section appear to be mandatory and subsection (2) of section 7 denotes that only a workman actually employed can be a member of Trade Union. If any of the members of the union is not a workman, such Trade Union cannot be registered.

1. Section 10 of I.R.O. vests powers in the Registrar for registration of a Trade Union. We deem it appropriate to reproduce section 10, which reads as under:-:

"10. Registration.-- (1) The Registrar, on being satisfied that the trade union has complied with all the requirements of this Ordinance, shall register the trade union in a prescribed register and issue a registration certificate in the prescribed form within a period of fifteen days from the date of receipt of the application. In case the application is found by the Registrar to be deficient in a material respect or respects he shall communicate in writing his objections to the trade union within a period of fifteen days from the receipt of the application and the trade union shall reply thereto within a period of fifteen days from the receipt of the objections.

(2) When the objections raised by the Registrar have been satisfactorily met, the Registrar shall register the trade union as provided in subsection (1) and issue a certificate of registration in the prescribed form within three days of the objections having been so met. In case the objections are not satisfactorily met, the Registrar may reject the application.

(3) In case the application has been rejected or the Registrar has delayed disposal of the application beyond the period of fifteen days provided in subsection (1) or has not issued a certificate of registration within a period of three days as provided in subsection (2), as the case may be, the trade union may appeal to the Labour Court who for reasons to be stated in its judgment may pass an order directing the Registrar to register the trade union and to issue a certificate of registration or may dismiss the appeal.

(4) Notwithstanding anything contained in any other provision of this Ordinance, every alteration made in the constitution of a registered trade union and every change of its officers shall be notified by registered post by the trade union to the Registrar within fifteen days of such change.

(5) The Registrar may refuse to register such change or alteration if it is in contravention of any of the provisions of this Ordinance or if it is in violation of the constitution of the trade union.

(6) Subject to the provisions of subsection (5), every inclusion or exclusion of any constituent unit of a federation of trade unions shall be notified by registered post by the federation to the Registrar within fifteen days of such inclusion or exclusion.

(7) In case there is a dispute in relation to the change of officers of a trade union, or any trade union is aggrieved by the refusal of the Registrar under subsection (5), any officer or member of the trade union may appeal to the Labour Court who shall within seven days of receipt of the application or appeal, as the case may be, pass an order either directing the Registrar to register the change or alteration in the constitution or in the officer of the trade union or may, for reasons to be recorded in writing, direct the Registrar to hold fresh elections of the union under his supervision."

A bare reading of the above provision shows that Registrar shall satisfy itself that the trade union has complied with all the requirements of the Ordinance and after being satisfied he shall register the trade union and issue a certificate within 15 days from the filing of the application and if he is not satisfied or he thinks that the application is deficient, he shall communicate in writing his objections on registration of the same to the trade union and under subsection (2) if objections have been satisfactorily met by the Union, he shall register the same but if the objections are not met then the registrar may reject the application and under subsection (3), the union shall have a right to file an appeal to the Labour Court. It is evident from the scheme of section 10 of I.R.O. that it is the duty of the Registrar that before issuing registration certificate, he shall satisfy himself that the application is complete in all respects and it fulfils all the requirements of I.R.O. The question whether all the members and office bearers of the union are workmen or not, is a question of fact, which has also to be determined by the Registrar. If the registrar refuses to register a trade union or fails to issue certificate then the trade Union may file an appeal in the labour Court. There is a concept of only one appeal against the non-registration of the Union. There appears no concept of appeal before the labour court against the registration of Union and employer has no right to file appeal against the registration of trade union.

1. Section 13 of I.R.O., 1974 specifically provides for cancellation of registration. The same is reproduced as under:-

"13. Cancellation of registration.--- (1) The registration of a trade union shall be cancelled if the labour Court so directs upon a complaint in writing made by the Registrar that the trade union has:-

(i) contravened any of the provisions of this Ordinance, or the rules; or

(ii) contravened any of the provisions of its constitutions; or

(iii) made in its constitution any provision which is inconsistent with this Ordinance or the rules; or

(iv) dissolved itself or has ceased to exist.

(2) where any person who is disqualified under section 8 from being elected as, or from being, an officer of a trade union is elected as an officer of a registered trade union, the registration of that union shall be cancelled if the Labour Court, upon a complaint in writing made in this behalf by the Registrar, so direct."

The language of section 13 appears to be mandatory, providing that the labour Court shall cancel the registration of a trade union when the complaint is made in writing by the registrar on any of the grounds mentioned in subsection (1) or subsection (2). clause (i) of subsection (1) in clear terms provides that if a trade union contravenes any of the provisions of Ordinance or rules, its registration shall be cancelled by the labour Court on a complaint filed by the registrar in this respect. The fact of registration of union reflects that the Registrar has registered the same after being satisfied that the application is correct. But, if later on a fact comes in the notice of the Registrar from any source or is brought in its notice by the employer that the facts enlisted in the application for registration of the union made under sections 6 and 7 are incorrect or doesn't fulfill the requirements of the sections, then he shall make an inquiry into the facts and if reaches to the conclusion that in the application some facts were misstated or some of the office bearers are not workmen or the registration is violative of the provisions of I.R.O., which attracts the provision of section 13, then the Registrar may make a complaint to the labour Court in writing for cancellation of registration of trade union. There appears no role of employer at the time of registration of trade union but the registrar may make an inquiry from the employer in respect of the members and the employer may also object on the facts enlisted in the application for registration. In a case titled Burewala Textile Mills Limited, Burewala v. Registrar Trade Unions, Multan and 3 others (1994 PLC 323), it was observed by the Lahore High Court as under:-

1. While disposing of the preliminary objection that the appellant being not authorized to object the registration of Trade Union, was not competent to file the writ petition and that the Registrar being empowered under section 10 to move the labour Court for registration in case Trade Union has been registered in contravention of any of the provision of law on the subject, the I.C.A. is not competent. We are of the view that it its the legal duty of the Registrar and the Labour Court to ensure due compliance of provision of law relating to the registration of a Trade Union and in case of contravention of any of the provisions of the Industrial Relations Ordinance, 1969 and rules framed thereunder, the alternate remedy having been provided under section 10 of the Ordinance is to be availed by the Registrar suo motu or upon an application moved by the employer or a rival Trade Union as the case may be. The question whether the members of respondent No.4 were workman or not and they were not employees of Mill being a question of fact can be agitated before the labour Court by moving the Registrar to proceed in the matter and could not be subject-matter of the proceedings under Article 199 of the Constitution. The law also provides an appeal against cancellation of registration of a Trade Union under section 10 of the Ordinance. Undoubtedly, the management of the rival Trade Union is not authorized to invoke the jurisdiction of Labour Court for cancellation of registration but the Registrar on their application in suitable cases cannot refuse from taking necessary steps under the law in his discretion. However, the legality of order of Registration of Trade Union, if challenged on any ground other than those mentioned under section 10 of the Ordinance for the purpose of lodging complaint by the Registrar, the writ petition shall be competent and in that case there being no remedy of appeal, revision or review available under the law, Intra-Court Appeal shall not be debarred."

2. The provisions relating to the registration of Trade Union and cancellation from sections 6 to 13 of the I.R.O. are pari-matria to the provisions contained in sections 5 to 10 of Industrial Relations Ordinance, 1969 of Pakistan. The law settled on the point by the superior Courts of Pakistan, is fully applicable in the cases relating to I.R.O. As has been observed hereinabove that there is no direct role of employer at the time of registration of Trade Union but an employer has a right to object at the time of registration of Union that any fact contained in the application is not correct or it contravenes the provisions of Ordinance, therefore, Union cannot be registered and if a union has already been registered then too the employer has right to file an application to the Registrar that the registration of union is against the provisions of I.R.O. and the Registrar after holding an inquiry, if reaches to the conclusion that the registration application is against the provisions of I.R.O., then he may file a complaint before the labour Court for cancellation of the registration. This is an appropriate and efficacious remedy which is available to the employer. In presence of the said remedy, the writ petition is not maintainable. The proposition has been dealt with by the Supreme Court of Pakistan in a case titled Agriculture Workers' Union, Balochistan v. The Registrar of Trade Union, Balochistan, Quetta and others (1997 SCMR 66) as under:--

"5. In view of the preceding discussion, we are of the opinion that respondent No.1 was not justified in declining to entertain the request of appellants for registration as a Trade Union on account of the order of this Court dated 7.10.1992 declining leave to appeal against the order of the High Court dated 14.7.1992 on the petition of the appellants. As pointed out by us earlier, the observations of the learned High Court of Balochistan in C.P.90/1992 which left open to the appellants to approach afresh to respondent No.1 for their registration as a Trade Union under the Ordinance if they could satisfy respondent No.1 that their members though employed in a Government department, fell within the category of worker/workman as defined in the Factories Act, 1934 and Workmen's Compensation Act, 1923, was neither interfered with not set aside and therefore, the respondent No.1 ought to have held enquiry in the light of observations of the High Court to determine whether, the appellants qualified for registration as a Trade Union or not."

It was further observed at page 89 as under:-

"25. In the case before me, the admitted position is that appellant was registered as a Trade Union of Workers in the year 1983. The procedure for cancellation of registration of a Trade Union if it is registered in contravention of any of the provisions of the I.R.O. is provided in section 10 of I.R.O. No such proceedings were ever taken or initiated. The registration of appellant was cancelled in the Constitution petition filed directly by respondent No.1, before the Balochistan High Court. There is nothing on record to show that the members of appellants who were employee of respondent No.1 were performing or were connected with the performance of any of the regal functions of the Corporation so as to disentitle the appellants to get itself registered as a Trade Union of Workers. In any case, the question relating to the nature of duties and functions performed by the employees of respondent No.1 who formed themselves into a Trade Union, was a question, of fact which required evidence, and, therefore, the same could not be determined satisfactorily in the proceedings under Article 199 of the Constitution, especially when an alternate procedure for such determination was provided for under the I.R.O. I accordingly accept the appeal and recall the writ issued by the High Court in the above case. There will be no order as to cost."

From the survey of case law, it can safely be concluded that the employer has a right to agitate the matter before the Registrar that the facts enlisted in the registration application are incorrect which offend the provisions of I.R.O. and on the basis of facts he shall hold an inquiry and file a complaint before the labour Court for cancellation of the registration of Trade Union.

1. The appellant, United Bank Ltd., alleged in the writ petition that some officers of Grade III, II and I, had got registered an association by the Registrar Trade Unions and on the application of United Bank Ltd., the Registrar Trade Unions cancelled the same. Later on, the instant Trade Union was registered by the Registrar. It has been alleged in the writ petition that some of the office bearers or officers do not fall in the category of workman. A prayer was made for cancellation of the registration of the Trade Union on this ground. A perusal of the whole writ petition reveals that no document for proving the fact that the nature of duties of the office bearers of Union is such that they cannot be termed as workmen, is annexed with the writ petition. The respondents in written statement specifically averred that they fall in the category of workman due to the nature of their duties. This contention was not controverted by filing replication. The Supreme Court of Pakistan in a number of cases has observed that the question whether an employee falls in the category of workman or not, cannot be determined from the designation rather it has to be determined from the nature of the duties he performs. It requires detailed inquiry by the Registrar Trade Unions to determine whether from the nature of the duties the office bearer or member of Union falls in the category of workman or not. Without any record, it is not possible for this Court or the High Court to determine and resolve the question. In the case titled National Bank of Pakistan v. Punjab Labour Court No.5, Faisalabad and 2 others (1993 SCMR 672), it was held by the Supreme Court of Pakistan as under:-

"14. We may also refer to a recent judgment of this Court in the case of Abdul Razzaq v. Messrs Ihsan Sons Limited and 2 others (1992 PLC 424), in which one of us (Ajmal Mian, J.) was a Member of the Bench, and in which the definitions of "workman" given in section 2(i) of the Standing Orders, Ordinance and section 2(xxviii) of the I.R.O., were considered and compared with, and the distinction existing between the two definitions were highlighted and the following test laid down by this Court in the case of General Manager, Hotel Intercontinental, Lahore and another v. Bashir A. Malik and others (PLD 1986 SC 103), was adopted:--

1. The test for determining the question whether an employee is a workman within the meaning of various statutes in the field of Labour legislation is well-settled. The consensus of judicial opinion seems to be that it is the nature of the work done by the employee that would be essential and fundamental consideration for determining the question and not his designation which is not conclusive. The question to be examined is whether manual or clerical work is incidental to the main work or a substantial part of it, so that the fact that a person employed in a supervisory capacity does some manual or clerical work as ancillary or incidental to such employment has been held not to bring him within the ambit of the definition. The main features, the pith and substance of his employment must be manual or clerical before the definition is attracted."

2. The question whether a person is a workman within the purview of clause (xxxviii) of section 2 of the I.R.O., can be determined not on the basis of the designation of his post, but on the basis of the duties which he was performing." (Underling is ours)

Similarly, in another case reported as Qaisar and others v. Muhammad Shafaqat Shrif (2012 SCMR 743) it has been held as under:--

"....The case of the petitioner is that Labour Court had no jurisdiction to hear the case and that respondent was not a workman, therefore, impugned judgment is liable to be set aside. We have considered the submissions made by learned Counsel for the petitioners with care and find that contentions raised by learned counsel have no force. The evidence on record shows that respondent was a worker and labour Court had jurisdiction to her the case. The judgment dated 18.11.2008 shows that learned High Court has decided the appeal brought by petitioners after appraisal of entire material available on record. Para No.4 of the said judgment reads as under:-

"The tenor of the impugned order reflects that the questions raised in the present appeal were also raised before the labour Court. It is clear from record that the respondent was never charge sheeted nor any inquiry was conducted against him, therefore, he was not provided sufficient right to defend himself. The respondent had categorically stated in his grievance petition that he was performing functions as a process production supervisor, this plea was not controverted, he also affirmed the same in his statement as P.W.I pleading specifically that he performed his functions and duty manually, there is no deep cross-examination on the same. The appellant witnesses R.W.1 and R.W-2 did appear before the Labour Court but could not controvert the claim of the respondent emphatically. The documentary evidence tendered by the parties especially Exhs. RI, R3, R9 and R11 to R17 were considered by the Labour Court and disregarded in view of the conflicting statement of R.W.1 who conceded in cross-examination that they were mere token of final sanction of leave. The definition of workman as interpreted in PLD 1999 SC 231 clearly hold that the word workman in the statute is not dependent upon his designation but on the nature of his duty. In view of clear and categorical statement of the respondent in this context and no emphatic denial by the appellants, the same clearly means that the respondent is a workman. And therefore, jurisdiction was correctly exercised by the labour Court."

1. The record reveals that an association of officers was registered by the Registrar. The United Bank Ltd. moved an application for cancellation of the said association on the ground that association has been formed and got registered by the officers. They do not fall in the category of workman. It was specifically averred in the said application which forms part of the High Court's file at page 45 that "in terms of Section 25 of the said I.R.O., the C.B.A. Certificate can only be issued after following due process to a Trade Union of Workmen". What transpires from the above application is that the United Bank accepted the jurisdiction of the Registrar that he has power to register a Trade Union of workmen. After taking this position the Bank is estopped from taking a position that I.R.O. is not applicable on Banks being established under the licence of State Bank of Pakistan. This Court has observed in a case reported as Azad Govt. and 3 others v. Mrs. Jamshed Naqvi and 2 others (2012 SCR 13) (sic) as under:--

"12. All the aforesaid documents sufficiently prove that the respondent herself was instrumental in moving the summaries for her contract appointment. Acquiescence and estoppels are two recognized modes on the basis of which equitable relief by way of writ cannot be granted. In a case reported as Abdul Qadir v. Abdul Karim and 4 others 1999 PLC (C.S.) 947 it was observed as under:--

'....We may add that acquiescence and estoppels are two recognized grounds in presence of which jurisdiction based on equity cannot be exercised in favour of a litigant. A common example may be found in the writ jurisdiction of the High Court which is equitable in nature and no relief is granted to a litigant if he himself is instrumental in the making of an order or if he acquiesces in it. He is not allowed to turn round and challenge it. Equitable jurisdiction cannot also be exercised in favour of a litigant with objectionable conduct. If any authority is needed on this point we may refer to the judgment of this Court reported as Muhammad Sharif v. Muhammad Manzoor and others [1993 SCR 92] and the case titled Ghulam Mustafa v. Azad Government and 2 others 1996 MLD 355.

1. The appellants herein have filed a copy of notification dated 18th January, 2013 as annexure RB, along with the written statement in the High Court, whereby the Prime Minister has rejected the proposal for contract appointment of petitioner, respondent herein, as Managing Director AJ&K Teachers Foundation. From the record it is amply proved that the respondent herself moved application for contract appointment. After being unsuccessful in obtaining desired results, she filed writ petition. By her conduct she is stopped from filing the writ petition. The same was liable to be dismissed on the ground of estoppel and acquiescence."

The same proposition has also been dealt with by this Court in a case titled Ehsan-ur-Rehman and 10 others v. Arshad Ali Khan and 5 others reported as (2012 PLC (C.S.) 795) as under:-

"… The matter of acquiescence and estoppel has since long been settled by this Court in different cases. It has been held by this Court in a number of cases that if a person participates in the proceedings and remains unsuccessful in getting the desired result, later on he cannot turn round and challenge the proceedings on the ground that the same were not conducted by the legally constituted body. In a case titled Malik Khalid Mehmood v. Abdul Majeed Butt and 4 others [1997 MLD 2921] it was held as under:-

`...it was then argued by Raja Hassan Akhtar that when the allotment order in favour of respondent No.1 was issued the relevant rules authorizing the allotment of plot had not yet been enforced. This point was argued before the High Court and was repelled by placing reliance on a notification issued on 25th of February, 1988 whereby Mirpur Development Authority in respect of encroachments of land were made applicable to Municipal Committee Dadyal. The learned counsel for the appellant submitted before us that the view taken by the High Court was not correct. We need not decide this question because it is well settled that the appellant is estopped from raising this point. Admittedly, the appellant himself applied on the prescribed form to the Municipal Committee that his possession over the disputed piece of land may be regularized in his favour. After having been unsuccessful in his attempt to secure a favourable order he cannot be allowed to turn round to say that the functionaries of the Municipal Committee did not have the authority to regularize encroachments."

This view is further supported by a case reported as Engineer Muhammad Khalid v. The University of AJ&K and 8 others (2004 SCR 467).

1. As stated hereinabove that United Bank Ltd. had moved an application for cancellation of an association earlier registered by the Registrar Trade Unions and on the application the registration of said Union was cancelled as such the Bank may file similar application before the Registrar for initiating inquiry and making complaint to the labour court for cancellation of registration of Trade Union.