2017 P L C 115
[Islamabad High Court]
Before Athar Minallah, J
AIR LEAGUE OF PIAC EMPLOYEES
Versus
MEMBER NIRC and others
Writ Petitions Nos.101 of 2017, 4641, 2016, 164, 304 and 411 of 2017, decided on 21st March, 2017.
(a) Industrial Relations Act (X of 2012)---
----Ss. 19, 4, 5, 54 (c) & 2(xxii)---Collective bargaining agent amongst the trade unions---Determination of---Procedure---Registrar and Joint Registrar of Trade Unions---Functions and powers---Scope---National Industrial Relations Commission, powers of---Scope---Joint Registrar was distinct from the Registrar and was vested with powers and functions described under S.5 of Industrial Relations Act, 2012 independently---Powers and jurisdiction vested in Joint Registrar and Registrar were same and independent of each other---Various provisions of Industrial Relations Act, 2012 which referred to the Registrar would thus include Joint Registrar unless expressly excluded---Joint Registrar was competent to exercise the powers and jurisdiction under S.19 of Industrial Relations Act, 2012 independently even if Registrar had not been appointed or the office was vacant---Powers vested in the National Industrial Relations Commission under S.54 of Industrial Relations Act, 2012 with regard to determining a collective bargaining agent were expansive and independent of the jurisdiction vested in Registrar or a Joint Registrar---National Industrial Relations Commission was empowered to initiate proceedings and pass order as it might deem fit requiring either a Registrar or Joint Registrar to perform functions provided under S.19 of Industrial Relations Act, 2012---Exercise of powers by the National Industrial Relations Commission under S.54(c) of Industrial Relations Act, 2012 were lawful and valid and did not suffer from any legal infirmity---Initiation of proceedings with regard to determination of a collective bargaining agent either by the National Industrial Relations Commission or the Joint Registrar did not suffer from lack of jurisdiction---National Industrial Relations Commission or the Joint Registrar were empowered to proceed and complete the process for determining a collective bargaining agent from amongst the trade unions---National Industrial Relations Commission or the Joint Registrar were to proceed in accordance with law---Constitutional petition was disposed of in circumstances.
(b) Interpretation of statutes---
----Beneficial legislature---Construction---Manner.
The construction of beneficial legislation is required to be made in a manner which would advance the object of the statute. In case of doubt, a construction which advances the object and purpose of the legislation is invariably adopted. The expressions and words used by the legislature are ordinarily understood in a sense which would be in harmony with the object of the statute and would effectuate the object of the legislation. Every word used by the legislature has to be given meaning, and futility or redundancy cannot be attributed to the legislature. The meaning of an expression cannot be taken in abstract, and it has to be construed in the light of the object and purpose of the relevant legislation which is being interpreted. While interpreting a statute a Court cannot add, substitute or alter any word or expression nor interfere with the legislative policy.
(c) Interpretation of statutes---
----Heading or title of a section was a key to the interpretation of the section under which it had been arranged unless the language was inconsistent otherwise---Nevertheless, the unambiguous meanings of section would prevail---Legislative futility or redundancy could not be attributed to the legislature.
Abdul Hafeez Amjad, Muhammad Shabbir Jamal, Syed Javaid Akbar Shah, Ch. Sagheer Ahmed, A. Ammar Sehri for Petitioners in their respective petitions.
Muhammad Munir Paracha, Nauman Munir Paracha, Abdul Hafeez Amjad, Muhammad Umair Paracha and Ch. Muhammad Khalid Farooq for Respondents in their respective petitions.
Afnan Karim Kundi, A.A.G.
Rashid Zaffar, G.M./I.R..
2017 P L C 130
[Islamabad High Court]
Before Aamer Farooq, J
GUN AND COUNTRY CLUB ISLAMABAD through Secretary
Versus
NATIONAL INDUSTRIAL RELATIONS COMMISSION through Registrar and another
W.P. No.913 of 2017, decided on 13th April, 2017.
(a) Industrial Relations Act (X of 2012)---
----S. 58(2)(d)---Revisional jurisdiction---Scope---Full Bench of National Industrial Relations Commission has jurisdiction under S.58(2)(d) of Industrial Relations Act, 2012, to revise any order---Such jurisdiction is not restricted to final order or final decision, therefore, it includes interim/interlocutory orders.
(b) Industrial Relations Act (X of 2012)---
----Ss. 35(3), 57 & 58---Constitution of Pakistan, Art.199---Constitutional jurisdiction of High Court---Scope---Order of interim injunction by National Industrial Relations Commission---Scope---Petitioner/Club issued termination letter to its workers against which National Industrial Relations Commission issued interim injunction in favour of workers, suspending the termination order---Validity---Power to grant interim relief by way of injunction or otherwise was not restricted to any particular kind of proceedings and it extended to all kinds of proceedings before National Industrial Relations Commission---While issuing notices in contempt proceedings under S.57(2)(c), National Industrial Relations Commission had jurisdiction to grant interim relief---Petition under Art.199 of the Constitution was not maintainable against interim order unless the same was without jurisdiction or patently illegal---High Court declined to interfere in the interim relief granted by National Industrial Relations Commission as the same was neither without jurisdiction nor otherwise illegal---Constitutional petition was dismissed in circumstances.
AXS Pakistan (Pvt.) Limited v. Javed Iqbal and 5 others 2007 PLC 45; Fasih-ud-Din Khan and others v. GOP and others 2010 SCMR 1778; Malik Nazar Hussain v. National Bank of Pakistan and another 2004 SCMR 28; Islamic Republic of Pakistan through Secretary Establishment Division v. Mohammad Zaman and others 1997 SCMR 1508 and Dr. Aijaz Hussain Qureshi v. National Industrial Relations Commission and 2 others PLD 1976 Lah. 611 ref.
Dr. Nazeer Saeed v. Mohammad Javed and 16 others PLD 2014 Lahore 660 and Mrs. Razia Yaqub v. Malik Mohammad Ashiq and 2 others PLD 2003 Lah. 486 distinguished.
Mohammad Ali Raza for Petitioner.
Syed Naeem Bukhari for Respondents.
2017 P L C 226
[Islamabad High Court]
Before Miangul Hassan Aurangzeb, J
RAZI
Versus
OIL AND GAS DEVELOPMENT COMPANY LTD. and others
Writ Petition No.3964 of 2016, decided on 23rd November, 2016.
Industrial Relations Act (X of 2012)---
----Ss. 33 & 85(1)---Constitution of Pakistan, Art.199---Constitutional petition---Industrial dispute---Date of birth---Correction---Petitioner was "workman" and was aggrieved of decision passed by National Industrial Relations Commission, declining to allow him to amend his date of birth---Validity---Petitioner superannuated on 30-6-2016 and steps taken by him to have his year of birth entered in records of employer changed about a year prior to his retirement had made petitioner's case bereft of bona fides---Stale and belated applications for alteration of date of birth could not be entertained---High Court observed that change of date of birth was a very important responsibility to be discharged since there had been a general tendency amongst employees to lower their age and change their date of birth to suit their career and to lengthen their service career---High Court declined to interfere in appellate order passed by National Industrial Relations Commission---Petition was dismissed in circumstances.
Shahid Ahmed v. Oil and Gas Development Company Ltd. Civil Petition No.595-K/2013; Jamal Khan Jaffar v. Government of Balochistan 1998 SCMR 1302; Iqbal Haider v. Federation of Pakistan 1998 SCMR 1494; Niaz Akbar v. Atomic Energy Commission 2002 PLC (C.S.) 970; Khalil Ahmad Siddiqui v. Pakistan, through Secretary Interior 2003 PLC (C.S.) 696; Muhammad Tariq v. University of Peshawar 2004 PLC (C.S.) 1162; Qamar-ud-Din v. Pakistan through Secretary Establishment Division 2007 SCMR 66 and Ahmed Khan Dehpal v. Government of Balochistan 2013 SCMR 759 ref.
Raja Faisal Younas for Petitioner.
2017 P L C 19
[Sindh High Court]
Before Irfan Saadat Khan and Zafar Ahmed Rajput, JJ
SHELL EMPLOYEES UNION through General Secretary
Versus
GOVERNMENT OF PAKISTAN through Secretary and another
C.P. No.D-879 of 2000, decided on 27th April, 2016.
Companies Profits (Workers' Participation) Act (XII of 1968)---
----S. 3 & Sched, para 4(d)---Workers Welfare Fund---Profits---Distribution of---Scope---Profits accrued on the investment made by the Welfare Board was to be distributed amongst the workers of the company---If any amount had already been credited in this regard to the Government then same be refunded to the Board for distribution to the workers---Constitutional petition was allowed accordingly.
Messrs Aventis Ltd., Karachi v. Ministry of Labour, Manpower and Overseas Pakistanis Labour and Manpower Division, Government of Pakistan and another 2011 PLC 1 distinguished.
National Tanker Company (Pvt.) Limited and another v. Federal Government of Pakistan 2006 SCMR 1059 and Dilshad Hussain and another v. Islamic Republic of Pakistan 2005 SCMR 530 rel.
Shahenshah Hussain for Petitioner.
Asim Mansoor Khan, Dy. Attorney General Pakistan for Respondent No.1.
Kashif Paracha for Respondent No.2.
2017 P L C 92
[Sindh High Court]
Before Muhammad Ali Mazhar and Syed Saeeduddin Nasir, JJ
PAKISTAN PVC LIMITED GENERAL EMPLOYEES UNION through General Secretary
Versus
GOVERNMENT OF PAKISTAN through Secretary Ministry of Finance and another
C.P. No.D-1889 of 2013, decided on 7th December, 2016.
Constitution of Pakistan---
----Art. 199---Constitutional petition---Gratuity, non-payment of---Privatization---Petitioner an Employees Union was aggrieved that after privatization of its industrial unit, employees were not given gratuity and cost of living allowance---Validity---Privatization Commission was generous to share Golden Hand Shake amount equally with buyer but on the other hand employees were divested and deprived of their lawful dues---Question arose as to whether such was a common practice that Privatization Commission in each case of privatization used to behave so generous to relieve burden of every buyer by a sharing formula---Such aspect needed to be examined and interrogated by competent authority---Still some amount was to be paid by the buyer and it was responsibility of the government and Privatization Commission to recover the amount for which employees were not responsible and they would not become victim of inefficiency and or generosity of government departments extended to the buyer---High Court directed the authorities to deposit admitted liability with officer of the Court who would disburse the same to individual employees---Petition was allowed accordingly.
Syed Shoa-un-Nabi for Petitioner.
Malik Mushtaq Ellahi, General Secretary of Union.
Shaikh Liaquat Hussain, Standing Counsel.
Abdul Haseeb, Senior Legal Consultant, Privatization Commission of Pakistan.
Nadeem Arshad, Section Officer (Legal), Ministry of Finance, Government of Pakistan, Islamabad.
2017 P L C 122
[Sindh High Court]
Before Irfan Saadat Khan and Adnan-ul-Karim Memon, JJ
Messrs PAKISTAN PETROLEUM LIMITED
Versus
ARIF AZIZ and 2 others
C.P. No.D-1486 of 2014, decided on 26th January, 2017.
Industrial Relations Ordinance (XXIII of 1969)---
----S. 25-A---Constitution of Pakistan, Art. 199---Constitutional petition---Grievance petition---Employee of a company---Allegation of theft of cheques of employer company---Inquiry was conducted and employee was dismissed from service---Grievance petition was accepted and employee was reinstated in service with back benefits---Validity---Labour Appellate Tribunal had dilated upon the issues in an elaborative and erudite manner---Impugned judgment had been passed after appreciating the evidence of the parties and each aspect of the case had been considered---No Bank official was examined to prove that original cheques were lost and not traceable---Initial burden was upon the company to prove the charge against the employee which had failed to discharge the same under the law---Employer company was bound to prove the charge beyond any shadow of doubt through evidence---No financial loss had caused to the company on account of theft of cheques in question as loss on account of encashment of those cheques had been made good by the Bank---Company was bound to produce original cheque during evidence to prove the allegation as mentioned in show cause notice and charge sheet but same could not be produced and proved---Guilt of employee could not be conclusively proved in circumstances---No illegality, infirmity or material irregularity had been pointed out in the order and judgment passed by the Courts below---High Court could not interfere in concurrent findings of facts recorded by the Courts below---Constitutional petition was dismissed in circumstances.
Muhammad Humayun for Petitioner.
Chaudhry Lateef Sagar for Respondent No.1.
2017 P L C 143
[Sindh High Court]
Before Muhammad Iqbal Kalhoro and Adnan-ul-Karim Memon, JJ
Messrs IFFCO PAKISTAN (PVT.) LTD.
Versus
SINDH LABOUR APPELLATE TRIBUNAL and others
C.P. No.D-608 of 2013, decided on 16th May, 2017.
(a) Industrial Relations Ordinance (XCI of 2002)---
----S. 46---Constitution of Pakistan, Art. 199---Constitutional petition---Grievance petition Labour Court---Powers of---Scope---Employee of a company---Charge of misconduct---Dismissal from service---Employee was dismissed from service after conducting regular inquiry against which grievance petition was moved which was accepted---Validity---Labour Court had powers to go into the facts of the case and pass order as might be proper and just---Labour Court could examine the material to determine as to whether punishment awarded to the workman was sustainable or not---Inquiry proceedings and facts had been exhaustively attended by the forums below---None of the allegations against the employee was proved in the inquiry---Conduct of employee was not riotous or disorderly and he did not commit misconduct but he being General Secretary CBA had only presented the demands and problems of workers before the management---Employee produced reliable evidence in his defence in the inquiry but inquiry officer had failed to discuss the same---Manager of employer company and inquiry officer was the same---High Court, in circumstances, could interfere in the concurrent findings while exercising constitutional jurisdiction when some illegality was on record having nexus with the relevant material---Constitutional petition was dismissed in circumstances.
1995 SCMR 1758; 1992 PLC 1109; 1995 PLC 436 and 1984 PLC 253 ref.
Abdul Rashid Malik and others v. General Manager, Pakistan Railways and others 1992 PLC 1116 rel.
(b) Constitution of Pakistan---
----Art. 199---Constitutional jurisdiction of High Court---Scope---Concurrent findings on facts recorded by the Courts below could not be disturbed unless same were based on no evidence or outcome of some consideration extraneous to the pleadings of the parties.
Muhammad Humayoon for Petitioner.
Muhammad Nishat Warsi for Respondent No.2.
2017 P L C 153
[Sindh High Court (Sukkur Bench)]
Before Khadim Hussain M. Shaikh and Syed Hassan Azhar Rizvi, JJ
OIL AND GAS DEVELOPMENT COMPANY LIMITED through Authorized Attorney
Versus
FEDERATION OF PAKISTAN through Ministry of Labour, Manpower and Overseas Pakistanis and 2 others
C.P. No.D-3633 of 2016, decided on 31st August, 2016.
Constitution of Pakistan---
----Art. 199--- Constitutional petition--- Interim order--- Alternate remedy---Petitioner company was aggrieved of interim order passed by authorities on the application filed by respondent trade union---Validity---Order in question passed by National Industrial Relations Commission was provisional in nature, effective till next date and no final order was passed even interlocutory application was pending before the Commission---Petitioner company had got an adequate remedy to challenge final order, in case, the order, if any, was passed against petitioner company even on interlocutory application---Question relating jurisdiction was to be raised before Court or forum seized with the matter either in pleadings and/or by making a proper application---National Industrial Relations Commission while dismissing appeal filed on behalf of petitioner company against order in question directed the authorities to decide interlocutory application on merits expeditiously in accordance with law, advising petitioner company to raise and agitate all points before the authorities---Petitioner company made no effort to place and agitate its case before authorities and instead of doing so Constitutional petition was filed---High Court declined to interfere in the matter---Constitutional petition was dismissed in circumstances.
Muhammad Anwar and others v. Mst. Ilyas Begum and others PLD 2013 SC 255; Waqar Ali and others v. The State PLD 2011 SC 181; Utility Stores Corporation of Pakistan Limited v. Punjab Labour Appellate Tribunal and others PLD 1987 SC 447; Sindh Employees' Social Security Institution v. Dr. Mumtaz Ali Taj and another PLD 1975 SC 450 and Syed Ali Abbas and others v. Vishan Singh and others PLD 1967 SC 294 distinguished.
2017 P L C 176
[Sindh High Court]
Before Muhammad Ali Mazhar and Arshad Hussain Khan, JJ
MAERSK PAKISTAN LIMITED through duly Authorised Attorney
Versus
PAKISTAN through Secretary Ministry of Overseas Pakistan and 11 others
Constitutional Petition No.D-4973 of 2014, decided on 11th January, 2017.
National Industrial Relations Commission (Procedure and Functions) Regulations, 1973--
-----Regln. 32---National Industrial Relations Commission (NIRC)---Powers--- Interim relief---Scope--- During pendency of grievance petitions filed by workers, employer company dismissed some of the workers on the ground that principal of the company terminated agreement in respect of equipment maintenance and repair work done by the company therefore, workers employed for such purpose had become surplus---NIRC suspended operation of termination letters issued to such workers---Validity---Held, in Regln.32 of National Industrial Relations Commission (Procedure and Functions) Regulations, 1973, there was a clear distinction between cases where unfair labour practice was apprehended to be committed and where unfair labour practice had already been committed--- Power of NIRC where unfair labour practice had already been committed was governed by Regln.32(1) of National Industrial Relations Commission (Procedure and Functions) Regulation, 1973, and in the cases where unfair labour practice was apprehended to be committed power of NIRC was regulated by Regln.32(2) of National Industrial Relations Commission (Procedure and Functions) Regulations, 1973---While passing order in question, NIRC failed to advert grounds taken in termination letter and other issues relating to jurisdiction to pass ante status quo which had also not dealt with in a proper manner---High Court in exercise of Constitutional jurisdiction set aside order passed by NIRC suspending operation of termination letters and remanded the matter to NIRC for decision afresh after providing opportunity of hearing to the parties---Constitutional petition was allowed accordingly.
Islamic Republic of Pakistan through Secretary Establishment Division v. Muhammad Zaman Khan and others 1997 SCMR 1508; Allied Bank of Pakistan Ltd. and 3 others v. Chairman National Industrial Relations Commission and 4 others 1984 PLC 1342; National Bank of Pakistan v. Muhammad Senior Member N.I.R.C. and another 1986 PLC 985; Khuda Bux Baluch v. M. Attaullah 1990 PLC 599; National Bank of Pakistan v. National Industrial Relations Commission Un-reported Judgment C.P. No.D-3097 of 2010; Noor Muhammad v. Civil Aviation Authority and another 1987 CLC 393; Civil Aviation Authority v. Noor Muhammad PLD 1988 Kar. 401; Fauji Fertilizer Company Ltd., through Factory Manager v. National Industrial Relations Commission through Chairman and others 2013 SCMR 1253; PIASI UNION through Secretary General P.I.A. v. Registrar Industrywise Trade Unions and 4 others 1993 PLC 581; Pakistan Steel Corporation Limited through Incharge Law Department, Karachi v. Shamshad Ahmad Qureshi 2005 PLC 105 and Muslim Commercial Bank Ltd. through Attorney v. Abdul Waheed Abro and 2 others 2015 PLC 259 ref.
Hayder Ali Khan for Petitioners.
Shaikh Liaquat Hussain Standing Counsel for Respondent No.1.
M.A.K. Azmati for Respondents Nos.3 to 12.
2017 P L C 207
[Sindh High Court]
Before Muhammad Iqbal Kalhoro and Adnan-ul-Karim Memon, JJ
ALLIED BANK LIMITED through Attorney and another
Versus
LIAQUAT ALI and 2 others
C.Ps. Nos.D-3874 and 4493 of 2012, decided on 14th June, 2017.
(a) Industrial Relations Ordinance (XCI of 2002)---
----Ss. 46 & 2(xxx)---Grievance petition/notice---Limitation---Bank Manager---Allegation of misconduct---Dismissal from service---"Workman"---Determination of---Principles---Employee sent grievance notice to the employer after more than three months of his bringing grievance through departmental appeal to the notice of employer---Employee did not take the matter to the Labour Court within two months after waiting for reply for fifteen days of his sending grievance notice to the employer---Grievance petition of employee was time-barred---Mere designation of a person would not define him as workman or otherwise---Nature of duties and functions would determine the position of a person---Burden to establish that a person was a "workman" would be on the one who with the said claim came to the Court pleading some grievance against his employer---Any person who did not fall within the definition of employer and was employed in an establishment and was not performing managerial or administrative duties would be considered as a "worker or workman"---Employee, in the present case, was Grade-III officer of the Bank and posted as Manager, he was bound to establish that he was a "workman"---Employee as a Manager/officer of the branch had administrative control over the staff working in and posted in the branch---Nature of duty of employee was administrative and supervisory---Grievance petition of the employee was not maintainable---Findings recorded by the Courts below were not sustainable---Impugned judgments were set aside and grievance petition was dismissed---Constitutional petition was allowed in circumstances.
2009 PLC (C.S.) 281; SBLR 2010 Sindh 358; 1990 PLC 523; 1979 SCMR 304; 1988 SCMR 1664; 1989 SCMR 317; 1992 SCMR 1891; 1997 PLC 34; 2009 PLC 171; 2007 PLC 472; 2003 PLC 443; 2003 PLC 99; 1993 PLC 841; 1983 PLC 498 and 2008 PLC 40 ref.
(b) Industrial Relations Ordinance (XCI of 2002)---
----S. 2(xxx)---"Workman"---Scope.
The workman has been defined in section 2(xxx) of the Industrial Relations Ordinance, 2002, as a person who is not an employer and who is employed in an establishment or industry for remuneration or reward either directly or through a contractor, and does not include any person who is employed mainly in a managerial or administrative capacity.
Javed Asghar Awan for Petitioner.
Muhammad Latif Saghar for Respondent.
2017 P L C 252
[Labour Appellate Tribunal Punjab]
Before Justice (Rtd.) Sagheer Ahmed Qadri, Chairman
SAEED AHMED
Versus
MANAGING DIRECTOR/CHIEF EXECUTIVE MADINA JUTE MILLS LIMITED and 2 others
Labour Appeal No.292 of 2014, decided on 31st March, 2017.
Industrial Relations Ordinance (XCI of 2002)---
----S. 46---Grievance petition---Employee was orally terminated and was not allowed to enter the mill premises---Labour Court dismissed grievance petition on the ground that the same was sent through advocate---Transmitting of grievance notice---Conditions and scope---Taking assistance in scribing/sending grievance notice---Effect---Employee had contended that he himself sent grievance notice but Labour Court had wrongly presumed the same as sent by advocate, same being typed in English---Employer contended that grievance notice was to be sent by petitioner himself or through his shop-steward (Mill) or Collective Bargaining Agent only---Validity---Record revealed that in the statement of the workman recorded before the Labour Court he stated that he himself sent the grievance notice---Employee was cross-examined and the counsel of the Employer throughout the cross-examination never challenged nor even suggested that exhibited grievance notice was ever sent by the workman through advocate---Written reply of the employer never mentioned that notice was sent by advocate---Even in the statement/affidavit of representative of Employer it was nowhere stated that grievance notice was ever sent through an advocate---Grievance notice, no doubt, was recorded/written in English language and thumb impressed by the employee/grievance petitioner but it did not contain any signature or name of any advocate whom allegedly it was sent---Presence of thumb-mark and name of workman/sender showed that it was sent by the workman/grievance petitioner himself---Section 46(1) of Industrial Relations Ordinance, 2002 or any subsequent legislation on the subject did not provide that a grievance petitioner could not get the assistance of any other person in writing grievance notice while transmitting the same to the employer for redressal of his grievance---Nothing was available on the records that grievance notice was ever sent by the employee through any advocate---Labour Court dismissed the grievance petition only on a technical ground which was not justified---Labour Appellate Tribunal, while setting aside the impugned judgment remanded the matter to the Labour Court with the direction to dispose of the same after hearing the parties on merits within one month positively---Appeal was accepted accordingly.
Shahid Akhtar Baig v. Chief Executive, Ittehad Chemicals Ltd. 2012 PLC 458 and Syed Muhammad Hussain v. Messrs Pakistan Tobacco Co. Ltd. and another PLD 1980 SC 80 distinguished.
Malik Mazhar Thaheem for Appellant.
2017 P L C 244
[Sindh Labour Appellate Tribunal]
Before Ali Sain Dino Metlo, Member
MUHAMMD TAHIR SUHAIB
Versus
MUHAMMAD ALI JINNAH UNIVERSITY, KARACHI
Appeal No.KAR-57 of 2017, decided on 22nd August, 2017.
Sindh Industrial Relations Act (XXIX of 2013)---
----S. 34---Sindh Terms of Employment (Standing Orders ) Act, 2015, (XI of 2016), S.O.16(3)---Industrial Relations Act (X of 2012), S.33---University employee---Application for reinstatement in service before the Labour Court---Labour Court had returned said application for presenting the same before National Industrial Relations Commission---Order, passed by the Labour Court was with the consent of the parties---Effect---Employee had contended that University had terminated his services without explicit reason in violation of S.O.16(3) and not in connection with any industrial dispute, so the Industrial Relations Act, 2012 was not applicable---Contention of University authorities was that employee had admitted that University had its campus at Islamabad and that Labour Court returned the application of the employee with his consent---Validity---Industrial Relations Act, 2012 was made applicable to establishment situated in Islamabad Capital Territory and also to trans-provincial establishments whose cases with regard to industrial dispute were to be heard by National Industrial Relations Commission; however, with the enactment of Sindh Terms of Employment (Standing Orders) Act, 2015, remedy against removal of an employee in violation of Sindh Terms of Employment (Standing Orders) Act, 2015, would lie in accordance with the provisions of S.34 of the Sindh Industrial Relations Act, 2013 ---Under S.34 of Sindh Industrial Relations Act, 2013 or S.33 of Industrial Relations Act, 2012 , only a worker who was in employment or who had been removed in connection with or in consequence of industrial dispute or whose removal had led to an industrial dispute could seek redressal of his grievance, however, admittedly in the present case, the employee was not removed from employment in connection with any industrial dispute, therefore, the appellant/employee was not a "worker"---Section 34 of Sindh Industrial Relations Act, 2013 having been adopted and made part of the Sindh Terms of Employment (Standing Orders) Act, 2015, so, for the purpose of seeking remedy under Sindh Terms of Employment (Standing Orders) Act, 2015, it was necessary that Sindh Terms of Employment (Standing Orders) Act, 2015 was applicable and S.34 of Sindh Industrial Relations Act, 2013 was not necessarily applicable--- Consent of the parties could neither confer upon or take away jurisdiction from any forum rather the question of jurisdiction had to be decided on the basis of law---Employee had claimed that he had been removed from employment without any explicit reason in violation of S.O.16(3) and not in connection with industrial dispute, Labour Appellate Tribunal held that jurisdiction lay with the Labour Court and Industrial Relations Act, 2012 was not applicable, thus, the National Industrial Relations Commission, had no jurisdiction in the matter---Labour Appellate Tribunal set aside the impugned order and directed the Labour Court to proceed with and dispose the case according to law---Appeal was accepted accordingly.
Mustehkum Cement Limited v. Abdul Rashid and others 1998
SCMR 644 and Pak Arab Refinery Limited v. Muhammad Rashid 1999 SCMR 373 ref.
KESC v. NIRC 2015 PLC 1 distinguished.
Rafiullah for Appellant.
Muhammad Ajaz Awan for Respondent.
2017 P L C 12
[Lahore High Court]
Before Muhammad Sajid Mehmood Sethi, J
AURANGZEB
Versus
MANAGING DIRECTOR, SUI NORTHERN GAS PIPELINES LIMITED and 3 others
Writ Petitions Nos.28897 of 2014 and 6148 of 2015, decided on 26th July, 2016.
Industrial Relations Ordinance (XCI of 2002)---
----S. 46---Industrial Relations Act (X of 2012), Ss.57 & 88---Jurisdiction, objection to---Stage---Workman filed grievance petition under S.46 of Industrial Relations Ordinance, 2002 and the same was decided by Labour Court vide order dated 28-6-2011, and appeal was filed in year 2011 i.e. before promulgation of Industrial Relations Act, 2012, on 14-3-2012, and Punjab Labour Appellate Tribunal decided appeal on 10-10-2014, i.e. after promulgation of Industrial Relations Act, 2012---Validity---No objection of jurisdiction was ever raised by employer during appellate proceedings and even while filing comments in petition before High Court---Employer also did not take such plea in Constitutional petition but question of jurisdiction could be determined by High Court even at such stage---Punjab Labour Appellate Tribunal, after promulgation of Industrial Relations Act, 2012, had no jurisdiction to decide appeal in respect of matter which fell within the jurisdiction of National Industrial Relations Commission---Judgment dated 28-6-2011, passed by Labour Court on grievance petition of workman was a valid judgment and was saved under S.88 of Industrial Relations Act, 2012, which provided that order issued or other actions taken under repealed Act were deemed to have been done under corresponding provisions of Industrial Relations Act, 2012---High Court set aside judgment dated 10-10-2014 passed by Punjab Labour Appellate Tribunal and matter was remitted to Punjab Appellate Tribunal to transmit appeal to competent forum for its decision under Industrial Relations Act, 2012---Constitutional petition was allowed accordingly.
Muhammad Mubeen-us-Salam and others v. Federation of Pakistan through Secretary, Ministry of Defence and others PLD 2006 SC 602; Commissioner of Income Tax v. Messrs Eli Lilly Pakistan (Pvt.) Ltd. 2009 SCMR 1279; Messrs Rasheed CNG Station through Proprietor v. Federation of Pakistan and 6 others 2015 CLC 945; Pakistan Telecommunication Company Ltd. v. Member NIRC and others 2014 SCMR 535; Muhammad Idrees v. Agricultural Development Bank of Pakistan and others PLD 2007 SC 681; G.M. National Bank of Pakistan and others v. Abdul Aziz and others PLD 2002 SC 346; Khuda Bakhsh and 4 others v. Dr. Peer Muhammad Khan and another 1997 CLC 1114; Emirate Bank International v. Messrs United Group of Companies 1998 CLC 743; Independent Newspaper Corporation (Pvt.) Limited Karachi through Manager, Daily Jang, Quetta v. The Chairman of Implementation Tribunal of Newspaper Employees (Labour Wing), C.D.A., Islamabad and 2 others 1998 PLC (Labour) 196; Sarfraz v. Muhammad Aslam Khan and another 2001 SCMR 1062; Baidullah Jan and 3 others v. Hawas Khan and 11 others PLD 2002 Pesh. 92 and Muhammad Rasheed and others v. Government of Pakistan, Ministry of Commerce (National Tariff Commission) through Chairman and others 2006 PLC (C.S.) 122 ref.
Ch. Muhammad Lehrasab Khan Gondal for Petitioner.
Salim Baig, Khurram Salim Baig and Mouzzam Ali Butt for Respondents.
2017 P L C 31
[Lahore High Court]
Before Ayesha A. Malik, J
NASEER MUHAMMAD
Versus
WORKMEN'S COMPENSATION COMMISSIONER FOR MINES, SARGODA REGION and another
W.P.No.20554 of 2009, decided on 23rd June, 2016.
Workmen's Compensation Act (VIII of 1923)---
----S. 19---Mines Act (IV of 1923), S.3(f)---Reference to Workmen's Compensation Commissioner---"Mine"---Definition---Employee filed disability claim before Workmen's Compensation Commissioner for Mines on having fallen from 20 feet height and hurt---Commissioner awarded compensation to workman---Validity---Employer alleged that Commissioner had no jurisdiction to adjudicate upon matter as employer ran a gypsum quarry which was not a "mine" and employee did not fall under the definition of 'workman' as defined in Workmen's Compensation Act, 1923---Held, that quarry was an "open pit mine" which fell under definition of "mine" under the Mines Act, 1923---Employee was a "workman" under the Workmen's Compensation Act, 1923 and Workmen's Compensation Commissioner for Mines had jurisdiction in the matter---Constitutional petition of employer was dismissed accordingly.
Ras Tariq Chaudhary for Petitioner.
Ch. Sultan Mehmood, AAG.
2017 P L C 50
[Lahore High Court]
Before Jawad Hassan, J
Sheikh ABDUL WAHEED and others
Versus
GOVERNMENT OF PUNJAB and others
Writ Petition No.37228 of 2016, decided on 15th December, 2016.
(a) Industrial dispute---
----Work charge employee---Regularization of---Employees filed grievance petition which was accepted by Labour Court but Appellate Tribunal dismissed the same---Validity---Neither the Appellate Tribunal had discussed the employees' case of being over-aged nor passed a speaking order in such regard---Impugned judgment was silent with regard to findings on the issue of discrimination---Public functionaries were bound to pass a speaking order---Labour Appellate Tribunal was obliged to decide appeal and redress the grievance of citizen and/or employee after application of mind with reasons---Neither the arguments of the parties had been discussed nor reason and justification had been disclosed for coming to the conclusion---Impugned judgment suffered from infirmity and was liable to be set aside---Case was remanded to the Labour Appellate Tribunal for decision afresh by passing a speaking order---Constitutional petition was allowed in circumstances.
Irshad Ali and 78 others v. Province of Sindh through Secretary Local Government Department, Karachi and 4 others 2015 PLC (C.S.) 293 ref.
Province of Punjab through Secretary Communication and Works Department and others v. Ahmad Hussain 2013 SCMR 1547; Ikram Bari and 524 others v. National Bank of Pakistan through President and another 2005 SCMR 100; Muhammad Iqbal Chaudhry and another v. Secretary, Ministry of Industries and Production, Government of Pakistan and others 2004 PLC (C.S.) 896; Mollah Ejahar Ali v. Government of East Pakistan and others PLD 1970 SC 173 and Town Committee, Piplan v. Muhammad Hanif and others 2008 SCMR 723 rel.
(b) Constitution of Pakistan---
----Art. 4---Every citizen to be treated in accordance with law.
(c) Public functionaries---
----Public functionaries were bound to act within the four corners of the mandate of Constitution and law.
Syed Samar Hussain Shah for Petitioners.
Muhammad Wakeel Hassan, Muhammad Baksh Ansari, Town Municipal Officer, Aziz Bhatti Town, Lahore for Respondents.
2017 P L C 58
[Lahore High Court]
Before Jawad Hassan, J
BUKHTIAR AHMAD SHEIKH
Versus
PUNJAB LABOUR APPELLATE TRIBUUNAL and others
Writ Petition No.3533 of 2014, decided on 9th December, 2016.
Industrial Relations Ordinance (XCI of 2002)---
----S. 46---Bank employee---Grievance petition---Supreme Court disposed of petition for leave to appeal in presence of the parties that Bank should consider the case of employee independently and if he was not satisfied with the order of the Bank, he should approach the Supreme Court for redressal of his grievance by getting his appeal revived in accordance with Rules---Employee approached the Bank through representation but same was not decided and he filed grievance petition before the Labour Court but same was adjourned sine die---Validity---Supreme Court order which was passed in presence and agreement of the parties being mandatory could not be ignored by the Labour Court as well as Labour Appellate Tribunal---Both the courts below had rightly advised the employee to approach the Supreme Court---Order passed in presence of the parties was binding upon them being order in personam---Matter was heard by the Supreme Court in presence of the parties after their agreement and if employee had any grievance from the Bank or was not satisfied with the Bank he should have got appeal before Supreme Court revived---Where grievance was an individual grievance and related to satisfaction of claim in full or part, rights of the parties thereunder would assume finality and take the colour of "past and closed transaction"---Labour Court had rightly adjourned sine die the grievance petition due to Supreme Court order---No illegality was committed by the courts below while passing the impugned judgment---Courts below had followed the orders of the Supreme Court in letter and spirit---High Court could not interfere in the matter where courts below had followed the orders of the Supreme Court in stricto sensu being binding upon them---Courts below had rightly declined to hear the grievance of employee petitioner due to the forum given by the Supreme Court---Employee still had the remedy to approach the Supreme Court to revive his appeal if his grievance had not been redressed---Constitutional petition was disposed of accordingly.
Mubeen-ul-Islam v. Federation of Pakistan and others PLD 2006 SC 602 and Muhammad Yusuf v The Chief Settlement and Rehabilitation Commissioner, Pakistan, Lahore and others PLD 1968 SC 101 ref.
Pir Bakhsh represented by his legal heirs and others v. The Chairman, Allotment Committee and others PLD 1987 SC 145; Atta Muhammad and 8 others v. Member, Board of Revenue/Chief Settlement Commissioner, Lahore and 5 others 2003 CLC 149; Farhat Azeem v. Waheed Rasul PLD 2000 SC 18 and Nazar v. Member Judicial, BOR, 2010 SCMR 1429 rel.
Asmat Kamal Khan for Petitioner.
2017 P L C 67
[Lahore High Court]
Before Jawad Hassan, J
ASHFAQ AHMAD ABBASI
Versus
PUNJAB LABOUR APPELLATE TRIBUNAL and others
Writ Petition No.21880 of 2011, decided on 25th January, 2017.
Industrial Relations Act (IV of 2008)---
----S. 41---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(i)---Grievance petition---Area Sales Incharge of Tea Company---Termination from service--- "Workman"--- Determination of--- Procedure--- Grievance petition filed by the employee was dismissed concurrently---Validity---Nature of duty to be performed by the person but not the job designation would be material to see whether an employee was a "workman" or not---Duties of employee being supervisory and managerial did not fall within the definition of "workman"---If duties of employee were clerical or manual, person would be regarded as "workman"---Employee working as Area Sales Incharge of a company whose duties were managerial and supervisory nature, was not a "workman"---Employee had failed to point out any illegality and irregularity in the impugned judgments passed by the Courts below---Constitutional petition was dismissed.
Dilshad Khan Lodhi v. Allied Bank of Pakistan and others 2007 PLC 41; A.D. Abu Baker Weaving v. Banaras Khan 2007 PLC 59; Muslim Commercial Bank v. Shamsul Aulia 2007 PLC 671; Shaukat and others v. Allied Bank of Pakistan MLR 2007 (Labour) 86; Nasir Jamal Qureshi v. Sindh Labour Appellate Tribunal and another 2005 SCMR 1049; Sahibzada K.A.K. Afridi v. Allied Engineering and Services Ltd. through Managing Director and others 2014 PLC 178; Syed Matloob Hassan v. Brooke Bond Pakistan Limited Lahore 1992 SCMR 227; Rana Mukhtar Ahmad v. Punjab Labour Appellate Tribunal and 2 others PLD 1992 SC 118; General Manager, Hotel Intercontinental, Lahore and another PLD 1986 SC 103; Muhammad Younas v. Punjab Labour Appellate Tribunal, Lahore and 3 others 2014 PLC 260 and Athar Ali v. Punjab Labour Appellate Tribunal through Chairman and others 2014 PLC 4 ref.
National Bank of Pakistan v. Anwar Shah 2015 SCMR 434; National Bank of Pakistan v. Punjab Labour Court No.5, Faisalabad 1993 SCMR 672; Sadiq Ali Khan v. Punjab Labour Appellate Tribunal and 2 others PLD 1994 SC 273; Ganga R. Madhaani v. Standard Bank Limited and others 1985 SCMR 1511 and Pakistan Tobacco Company Ltd. v. Pakistan Tobacco Company, Employees Union, Dacca and others PLD 1961 SC 403 rel.
Asmat Kamal Khan for Petitioner.
2017 P L C 73
[Lahore High Court]
Before Ayesha A. Malik and Jawad Hassan, JJ
D.S. PAKISTAN RAILWAYS
Versus
Mst. S. YASMEEN and others
Intra-Court Appeal No.1278 of 2016, decided on 11th January, 2017.
(a) Industrial dispute---
----Pensionary benefits---Wife of deceased employee filed constitutional petition for grant of pensionary benefits which was accepted holding that disciplinary proceedings could be initiated against an employee for his non-performance or ill-performance of duties who was alive and in the service of organization/department---Validity---Employee-husband of petitioner died prior to initiation of disciplinary proceedings---Disciplinary proceedings had abated and no order could have been passed against the deceased employee---No illegality had been pointed out in the impugned judgment passed by the Single Judge of High Court---Intra court appeal was dismissed in circumstances.
(b) Workmen's Compensation Act (VIII of 1923)---
----Preamble---Scope---Workmen's Compensation Act, 1923 had been promulgated to compensate an employee who had been injured during the course of his employment.
Muhammad Saeed Tahir Sulehri for Appellant.
2017 P L C 75
[Lahore High Court]
Before Jawad Hassan, J
MUHAMMAD RASHID MANSOOR
Versus
PUNJAB LABOUR APPELLATE TRIBUNAL and others
Writ Petition No.31384 of 2013, decided on 17th January, 2017.
(a) Industrial Relations Ordinance (XCI of 2002)---
----S. 46---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.4---Grievance petition---Employee of Pakistan Telecommunication Company Limited---Regularization of service--- Scope--- Employee was appointed on 09-06-1990---Contention of employee was that he was entitled to be regularized in service with effect from the date of his initial appointment on the basis of Circular dated 17-09-1997---Labour Court accepted the grievance petition directing the employer company to regularize the employee with effect from his initial appointment with all the back benefits---Labour Appellate Tribunal decided in appeal that employee should be regularized in accordance with the terms recorded in the Circular---Validity---Impugned judgment had been passed in consonance with the spirit of law after taking into consideration all the material made available---Pakistan Telecommunication Company Limited Circular dated 17-09-1997 had a sanction of S.4 of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968---Employee had availed the benefit of said Circular in the shape of regularization of his service----Employee, in circumstances, could not claim to be regularized otherwise than the conditions of the Circular and could not be allowed to partly accept and partly disown the Circular---Standing Orders might be modified by means of collective agreement and not otherwise---Employee had failed to point out any discrimination by the employer-company---Labour Appellate Tribunal had passed the detail judgment after examining all the record including the Circular of employer---Constitutional petition was dismissed in circumstances.
The Workmen of Tando Jam and its Feeders v. Director, Agricultural Engineer, Sindh and 8 others 1981 PLC 47; Mohammad Hussain and 3 others v. Syed Ahmed Masood and another 1974 PLC 61; Sindh Employees' Social Security Institution v. Dr. Mumtaz Ali Taj and another PLD 1975 SC 450; Ibrahim v. Muhammad Hussain PLD 1961 SC 119; Faysal Bank Limited v. Punjab Labour Court and another 2002 PLC 244 and The Murree Brewery Co. Ltd. v. Pakistan through the Secretary to Government of Pakistan Works Division and 2 others PLD 1972 SC 279 ref.
Managing Director, Sui Southern Gas Company Ltd. Karachi v. Ghulam Abbas and others PLD 2003 SC 724; Executive Engineer, Central Civil Division, Pak PWD Quetta v. Abdul Aziz and others PLD 1996 SC 610; Punjab Seed Corporation and 2 others v. Punjab Labour Appellate Tribunal and 2 others 1996 SCMR 1947; Izhar Ahmed Khan and another v. Punjab Labour Appellate Tribunal, Lahore and others 1999 SCMR 2557; Province of Punjab through Secretary Communication and Works Department and others v. Ahmad Hussain 2013 SCMR 1547 and Tehsil Municipal Administration v. Muhammad Amir 2009 SCMR 1161 distinguished.
Muhammad Mubeen us Salam and others v. Federation of Pakistan through Secretary, Ministry of Defence and others PLD 2006 SC 602; Allied Bank Ltd. v. Muhammad Ilyas 2010 PLC 13; M.C.B. Bank Limited through Authorized Representative v. State Bank Pakistan through Governor and 2 others 2010 CLD 338; Hashwani Hotels Limited v. Federation of Pakistan and others PLD 1997 SC 315; Army Welfare Sugar Mills Ltd. v. Federation of Pakistan and others 1992 SCMR 1652; Dadabhoy Cement Industries Ltd. v. M/s. National Development Finance Corporation, 2002 CLC 166 and IMC v. Federation of Pakistan PLD 2011 Kar. 494 rel.
(b) Notification---
----Notifications, instructions and circulars issued by the government or statutory bodies could operate prospectively and not retrospectively.
Munawar Ahmad Javed for Petitioner.
Muhammad Salman Masood for Respondents Nos.2 and 3.
ORDER
JAWAD HASSAN, J.--- Through the instant petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (the "Constitution"), the Petitioner while challenging the legality of judgment dated 20.03.2013 passed by the Respondent No.1, has sought modification in the same and regularization of his service w.e.f. 09.06.1990.
Brief facts of the case are that the Petitioner joined service with Pakistan Telecommunication Company Limited ("PTCL") as Telephone Operator w.e.f. 09.06.1990 and after rendering service of three months under Standing Order No.1(b) of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (the "Ordinance") became permanent Workman/Regular employee but was considered as temporary employee. The Petitioner after exhausting remedy of departmental appeal filed appeal before the Federal Service Tribunal at Lahore which was declared as abated vide notice dated 02.08.2006 in pursuance of case titled as Muhammad Mubeen us Salam and others v. Federation of Pakistan through Secretary, Ministry of Defence and others (PLD 2006 SC 602). Thereafter, the Petitioner served a grievance notice to the Respondents and then filed Grievance Petition which was accepted by the learned Punjab Labour Court No.4, Faisalabad vide judgment dated 07.09.2009 directing the Respondents to regularize the services of the Petitioner w.e.f. the date of his first appointment along with all the back benefits. The said judgment was implemented in letter and spirit. Feeling aggrieved thereby the Respondents Nos.2 and 3 preferred an appeal before the Respondent No.1 which was partly allowed vide the impugned judgment dated 20.03.2013. Hence, the instant petition.
Pre-admission notice was issued to the Respondents vide order dated 06.12.2013 and in pursuance of which the Respondents Nos.2 and 3 put appearance through their representatives.
Learned counsel for the Petitioner submitted that the impugned judgment to the extent of date of regularization of Petitioner's services i.e. 17.09.1997 is against the law and facts as the same has been passed in violation of the Ordinance. Learned counsel further argued that the Respondent No.1 has failed to take into consideration the findings of the learned Labour Court which had been passed in accordance with law. Learned counsel also contended that the judgment to the above extent is not sustainable in the eye of law as the same has not been passed keeping in view the Ordinance and the latest pronouncements of the Honble Supreme Court of Pakistan in this regard. Learned counsel also maintained that the appeal of the Respondents Nos.2 and 3 was not competent as the judgment of the Labour Court had been implemented much before assailing the same. Learned counsel also pointed out that the impugned judgment of the Respondent No.1 is in clear violation of the fundamental rights of the Petitioner guaranteed under the constitution. To further strengthen his contentions learned counsel has placed reliance on the cases titled Managing Director, Sui Southern Gas Company Ltd. Karachi v. Ghulam Abbas and others (PLD 2003 Supreme Court 724), Executive Engineer, Central Civil Division, Pak PWD Quetta v. Abdul Aziz and others (PLD 1996 Supreme Court 610), Punjab Seed Corporation and 2 others v. Punjab Labour Appellate Tribunal and 2 others (1996 SCMR 1947), Izhar Ahmed Khan and another v. Punjab Labour Appellate Tribunal, Lahore and others (1999 SCMR 2557), Province of Punjab through Secretary Communication and Works Department and others v. Ahmad Hussain (2013 SCMR 1547) and Tehsil Municipal Administration v. Muhammad Amir (2009 SCMR 1161).
On the contrary learned counsel for the Respondents has contested the arguments advanced by the learned counsel for the Petitioner and contended that the Petitioner cannot claim his regularization from the date of his appointment on the basis of Respondents' circular dated 17.09.1997 as the same was having prospective effects. Learned counsel also argued that the grievance notice to the Respondents was time barred because it relates to the grievance of 1997. Learned counsel further stated that the Petitioner was not entitled to the relief claimed for as he was matriculate and fell short of the prescribed qualification of intermediate. Learned counsel further argued that the instant Petitioner is liable to be dismissed as there is no illegality or infirmity in the impugned judgment. Learned counsel has placed reliance on the cases titled The Workmen of Tando Jam and its Feeders v. Director, Agricultural Engineer, Sindh and 8 others (1981 PLC 47), Mohammad Hussain and 3 others v. Syed Ahmed Masood and another (1974 PLC 61), Sindh Employees' Social Security Institution v. Dr. Mumtaz Ali Taj and another (PLD 1975 Supreme Court 450), Ibrahim v. Muhammad Hussain (PLD 1961 SC 119), Faysal Bank Limited v. Punjab Labour Court and another (2002 PLC 244) and The Murree Brewery Co. Ltd. v. Pakistan through the Secretary to Government of Pakistan Works Division and 2 others (PLD 1972 Supreme Court 279).
I have heard the arguments of the learned counsel for the parties and have gone through the record.
The main grievance of the Petitioner is that he is entitled to be regularized in service with effect from the date of his initial recruitment i.e. 09.06.1990 instead of 17.09.1997. The perusal of impugned judgment reveals that the same has been passed in consonance with the spirit of law after taking into consideration all the material made available. In the impugned judgment the Appellate Tribunal has rightly observed as follows:
"The main issue is whether the Respondent has any right to be regularized in view of PTCL's circular dated 17.09.1997. A perusal of the said circular reveals that in fact it records the agreement between PTCL management and its CBA. No doubt, the said agreement is not a "Settlement" as defined in section 2(xxvi) of the Industrial Relations Ordinance, 2002, for having not entered into during the pendency of an industrial dispute. Nevertheless, this agreement is a collective agreement as defined by section 2(a) of the Industrial and Commercial (Standing Orders) Ordinance, 1968, as it specifies the conditions of employment and has been entered into by and between the employer, PTCL and the CBA, the duly authorized representatives of the workmen. Reference may be made here to section 2(g) of the Industrial and Commercial (Standing Orders) Ordinance, 1968, which provides that Standing Orders include any modifications made pursuant to section 4 of the Industrial and Commercial (Standing Orders) Ordinance, 1968. According to section 4 ibid, a collective agreement has the effect of modifying the Standing Orders provided that no rights conferred by the Standing Orders are diminished or taken away. The collective agreement or the circular dated 17.09.1997 is, thus, recognized and sanctioned by section ibid as it confers additional rights on the PTCL's employees to be regularized in accordance with the terms recorded therein. As such, the Respondent cannot be denied the benefits conferred by the collective agreement which include the Regularization of the PTCL's Telephone Operators provided that they have remained in continuous service for a period of 4 years. Applying the criteria specified in the circular, there is no doubt that the respondent was qualified to be regularized as he had completed 4 years' service counted from 09.06.1990."
"4. Modification of Standing Orders. The Standing Orders may be modified by means of a collective agreement and not otherwise.
Provided that no such agreement shall have the effect of taking away or dismissing any right or benefit available to the workman under the provisions of the Schedule."
"Coming to the merit of the case, the scheme was launched on 4-9-2002 and a freezing date was fixed as 30-6-2002 for the purposes of calculation of pension at any time when the employee retires but with this disadvantage a major advantage was also given to the employees in the shape of major jump in their salary package. Respondent on 23-4-2005 in unequivocal terms giving reference to the scheme of 4-9-2002 gave his option to continue with the pensionary scheme payable in terms of the said scheme, therefore, he cannot be allowed to partly accept the scheme and partly disown to the portion which is disadvantageous to him although he has taken all the benefits in the shape of increased pay."
Furthermore, in case titled M.C.B. Bank Limited through Authorized Representative v. State Bank Pakistan through Governor and 2 others (2010 CLD 338) before Hon'ble Mr. Justice Mian Saqib Nisar, it was held as follows:
"In the present case, not only that the petitioner's members during the time when they were in the employment of the MCB have subscribed/assented to the RPP which admittedly was acted upon and they derived all the benefits on account of the said package, which (the package) is not shown to be the one hit by the provisions of section 23 of the Contract Act. The petitioner's members, therefore, are estopped by their own conduct to challenge the RPP; besides, the rules of acquiescence and waiver are also duly attracted to discard their stance in this behalf."
Based on 1997 Circular, the Petitioner was regularized by the Labour Court which was partially upheld by the Appellate Tribunal in detail as reproduced in paragraph 7 above, hence the Petitioner cannot disown the circular under which he has been regularized. Section 4 of the Ordinance clearly states that the Standing Orders may be modified by means of collective agreement and not otherwise. It was rightly held by the Appellate Tribunal that the circular contemplates regularization of an employee with effect from 17.09.1997.
Furthermore, the Petitioner has failed to establish from the record that any discrimination has been made as nothing with the file has been annexed to show that the colleagues/similarly placed persons have been regularized from the date of their initial appointment in view of the said circular or otherwise. The judgments relied on by the Petitioner are not relevant to the issue whether the effect of circular is prospective or retrospective. In view of above, this Court fully agrees with the findings of the Appellate Court which are as follows:
However, the PTCL 's circular dated 17.09.1997 is prospective in effect and does not allow regularization with effect from the date of initial appointment. The circular, thus, contemplates regularization of an employee with effect from 17.09.1997 provided he had completed four years' service as on 06.10.1996."
From the above it is clear that the Appellate Tribunal has passed the detail judgment after examining all the record including the circular dated 17.09.1997 by holding that the circular is prospective in effect and does not allow the regularization with effect from the date of initial appointment which is as per the requirements of the Section 4 of the Ordinance. It is settled law that notifications, instructions, circulars etc., issued by the Government or statutory bodies operate prospectively and not retrospectively. In this regard one may refer to Hashwani Hotels Limited v. Federation of Pakistan and others (PLD 1997 SC 315), Army Welfare Sugar Mills Ltd. v. Federation of Pakistan and others (1992 SCMR 1652), Dadabhoy Cement Industries Ltd. v. M/s. National Development Finance Corporation, (2002 CLC 166) and IMC v. Federation of Pakistan, (PLD 2011 Karachi 494).
In view of what has been discussed above, I see no merit in the instant petition and the same is hereby dismissed.
ZC/M-7/L Petition dismissed.
\\
2017 P L C 90
[Lahore High Court]
Before Jawad Hassan, J
HAQ BAHU SUGAR MILLS (PVT.) LTD.
Versus
PUNJAB LABOUR COURT NO.4, FAISALABAD and others
Writ Petition No.24561 of 2015, decided on 6th March, 2017.
Punjab Industrial Relations Act (XIX of 2010)---
----Ss. 33 & 47---Grievance petition---Stay of proceedings---Scope---Labour Court adjourned contempt petition sine die in view of filing of review petition before the Supreme Court---Validity---Contempt petition had been adjourned sine die merely on the statement of respondent---Respondent had failed to show any stay order in the review petition filed in the Supreme Court---Proceedings of any lis could not be adjourned for indefinite period merely for the reason that review had been filed in the Supreme Court---Impugned order passed by the Labour Court was set aside---Labour Court was directed to decide the pending petition within a period of three months---Constitutional petition was allowed in circumstances.
Pakistan Telecommunication Employees Trust (PTET) through M.D. Islamabad and others v. Muhammad Arif and others 2015 PLC (C.S.) 1417 ref.
2017 P L C 96
[Lahore High Court]
Before Jawad Hassan, J
IMTIAZ ALI SHAH
Versus
CHAIRMAN BANK OF PUNJAB and others
Writ Petition No.18983 of 2011, decided on 1st February, 2017.
(a) Industrial Relations Ordinance (XXIII of 1969)---
----S. 25-A---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(i)---Grievance petition---"Workman"---Determination of---Bank Manager---Dismissal from service---Procedure---Employee filed grievance petition which was dismissed concurrently---Validity---Employee was performing an administrative and supervisory role---Nature of duty of employee being Manager of Bank branch was supervisory and managerial and did not fall within the definition of "workman"---No illegality and irregularity had been pointed out in the impugned judgments passed by the courts below---Constitutional petition was dismissed in circumstances.
National Bank of Pakistan v. Muhammad Aslam Dar and another1999 SCMR 483=1999 PLC (C.S.) 397; Allied Bank of Pakistan v. Muhammad Humayun Khan and others 1988 SCMR 1664; Abdul Razzaq v. Messrs Ihsan Sons Limited and 2 others 1992 SCMR 505; Muslim Commercial Bank Limited through President and 3 others' case 2008 PLC 322;Dilshad Khan Lodhi v. Allied Bank of Pakistan and others 2008 SCMR 1530; Mahmood Hussain Larik and others v. Muslim Commercial Bank Limited 2009 SCMR 857 A.F. Ferguson & Co. v. The Sindh Labour Court and another PLD 1985 SC 429; Messrs Ihsan Sons Ltd. v. Abdul Razak Habib and 2 others 1987 PLC 390; Messrs Textile Services through Senior Sales Executive v. Syed Faisal Aziz and another 2012 PLC 20; Muslim Commercial Bank Limited Karachi through Attorneys v. Abdul Majeed Mirza 2004 PLC 182 and Messrs Samkar Tameerat (Pvt.) Ltd. v. Mumtaz Hussain 2008 PLC 72 ref.
Ganga R. Madhani v. Standard Bank Ltd. and others 1985 SCMR 1511; National Bank of Pakistan v. Anwar Shah 2015 SCMR 434; National Bank of Pakistan v. Punjab Labour Court No.5: Faisalabad 1993 SCMR 672 and Sadiq Ali Khan v. Punjab Labour Appellate Tribunal and 2 others PLD 1994 SC 273 rel.
(b) Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)---
----S. 2 (i)---'Workman' ---Meaning detailed.
Mian Tariq Hussain for Petitioner.
2017 P L C 102
[Lahore High Court]
Before Shams Mehmood Mirza, J
Messrs UNILEVER PAKISTAN FOODS LIMITED
Versus
REGISTRAR, TRADE UNIONS and others
Writ Petitions Nos.28699 and 32931 of 2015, decided on 23rd September, 2016.
(a) Industrial Relations Act (X of 2012)---
----S.2(x) & (xxxii)---"Trans-provincial establishment"---Connotation---Any company employing workman for the purpose of carrying on any business or industry and having its departments and branches in more than one province comes within the definition of 'trans-provincial establishment'.
(b) Interpretation of statutes---
----Meaning of words---Principle---Word or phrase in an enactment must always be construed in the light of surrounding words---General words cannot be read in isolation as their colour and content are derived from the context of the enactment.
Bennion on Statutory Interpretation Sixth Edition rel.
(c) Industrial Relations Act (X of 2012)---
----Ss. 2(x)(xxxii) & 54---Factories Act (XXV of 1934), S.2(i)---Expression 'factory'---Connotation---Trans-provincial establishment---Registration of trade union---Petitioner company was having its branches all over Pakistan and it was aggrieved of registration of trade union by Provincial Registrar---Plea raised by petitioner was that definition of 'factory' as given under Factories Act, 1934, could not be used to define 'factory' as used in Industrial Relations Act, 2012---Validity---No parallel existed between Industrial Relations Act, 2012 and Factories Act, 1934, as each enactment had its own specific scope, object and distinctive features---Provisions of Factories Act, 1934, did not control and could not regulate registration of unions in a trans-provincial establishment which was carried out in terms of S.54 of Industrial Relations Act, 2012---Even if definition of a word or expression was somewhat similar in two different statutes, the objects to be achieved by enactments could be different---Term 'factory' and all incidents attached thereto under Factories Act, 1934, had no relation to the term 'factory' appearing in S.2(x) of Industrial Relations Act, 2012---High Court declined to construe expression 'factory' in Industrial Relations Act, 2012, with reference to Factories Act, 1934---Provincial Registrar misconstrued provisions of Factories Act, 1934, in registering trade union in question, as it had no authority under the law to do so---High Court set aside order of registration of trade union in question passed by Provincial Registrar as the same was without lawful authority---Constitution petition was allowed in circumstances.
Pakistan Telecommunication Company Limited v. Member NIRC and others 2014 SCMR 535; Kohinoor Elastics (Pvt.) Limited v. Commissioner of Central Excise 2005 (7) SCC 528 and PTV Employees Ittehad Union Punjab v. Federation of Pakistan ICA No.53 of 2013 rel.
KESC and others v. N.I.R.C. and others PLD 2014 Sindh 553; Farid Ahmed v. Pak. Burmah-Shell Ltd. and others 1987 SCMR 1463; Mehmood Hussain and another v. Presiding Officer, Punjab Labour Court and others 2012 SCMR 1539 and Muhammad Amin Qamar v. The Bank of Punjab and others 2013 PLC 291 ref.
(d) Interpretation of statutes---
----Definition of a word---Meaning in other statute---Scope---Interpreting meaning of words of a statute by importing definition of similar word used in a different statue is not valid---Words and terms used in a statue have to be interpreted in the context of that particular statute.
Mukhtar Hussain Shah v. Saba Imtiaz PLD 2011 SC 260 rel.
Tafazzal Haider Rizvi and Anwaar Hussain Janjua, Haider Ali Khan for Petitioner.
Asjad Saeed, Ch. Muhammad Nasir and Ms. Samra Malik for Respondent Best Traders.
Sumera Fazil Khan and Humera Fazil Khan for Haider Traders.
Khalid Mehmood Watto and Liaqat Ali Butt for Respondent No.2.
Miss. Sadia Malik, Standing Counsel for Federal Government.
Asmat Kamal for Respondent No.6.
Mrs. Samia Khalid, Assistant Advocate General.
Ms. Saleha Bashir, Deputy Registrar NIRC.
2017 P L C 139
[Lahore High Court]
Before Ali Baqar Najafi, J
ZAFAR ALI
Versus
The PUNJAB LABOUR APPELLATE TRIBUNAL, LAHORE and 3 others
Writ Petition No.24690 of 2016, decided on 23rd February 2017.
Payment of Wages Act (IV of 1936)---
----Ss. 23 & 15---Employees' Old Age Benefits (Contribution) Rules, 1976, Preamble---"Workman"---Claim arising out of deductions from wages---Payment of gratuity, salaries and bonus---Scope---Any adjustment/settlement compulsorily depriving an employee of any right under the Payment of Wages Act, 1936 would be void---Employee-company was in consultancy business having 80 or above persons as employees---Company had paid contribution to Employees' Old Age Benefits Institution under Employees' Old Age Benefits (Contribution) Rules, 1976---Said company was neither charitable nor social service establishment but in business activities for profit which was amenable to Labour Laws---Authority under S.15(1) of Payment of Wages Act, 1936 had the jurisdiction to decide the claim of an employee of such company---Employee had been paid bonus and gratuity---Status of employee was that of a "workman"---Bonus of three years only in proportionate to the monthly wages could be paid to the employee---If employee was paid the bonus for 2008 then he could not be deprived from the bonus for the years 2006-07---Amount paid at the time of Eid-ul-Azha or Eid-ul-Fitr were not the regular bonus---Authority under Payment of Wages Act, 1936 had rightly awarded amount of bonus to the employee---Impugned orders passed by the Courts below were set aside and that of Authority was restored in favour of employee---Constitutional petition was allowed in circumstances.
Divisional Engineer, G.I.P. Railways v. MAHADEO AIR 1955 SC 295 and Ghulam Mustafa and another v. Pakistan Industrial Gases Ltd. and others 2002 PLC (C.S.) 52 rel.
Shahid Baig for Petitioner.
2017 P L C 172
[Lahore High Court (Multan Bench)]
Before Shams Mehmood Mirza and Abdul Sattar, JJ
FAYYAZ AHMAD NADEEM BUTT and 15 others
Versus
STATE LIFE INSURANCE CORPORATION OF PAKISTAN through Chairman and 3 others
I.C.A. No.358 of 2014 in W.P. No.6415 of 2012, decided on 7th March, 2017.
Industrial Relations Act (X of 2012)---
----Ss. 53 & 55---Ad hoc allowance---Employees, were granted ad hoc allowance in the year 2010 at the rate of 50% of basic pay and in pursuance to that, the Employer Corporation issued circular letter for payment of said allowance to the officers as well as unionized staff, and since then they were getting said allowance---Later on in the year 2011-2012, a charter of demand was signed by the Corporation and Employees Federation, by which said ad hoc allowance was withdrawn by the employer---Terming the said act of employer as absolutely illegal, against the Constitution and based on mala fide, employees filed constitutional petition before High Court praying for restraining the employer from recovering already paid ad hoc allowance from the employees---Constitutional petition was dismissed by Single Judge of High Court---Validity---Ad hoc relief of 50% was extended to the employees conditionally as pre-payment of forthcoming Collective Bargaining Agent (CBA) agreement 2011-2012, which was also adjustable---Undertaking was given by the employees to accept the decision taken in the meeting of the Board of Directors regarding ad hoc allowance payable to unionized staff at 50% of basic pay---Employees had undertaken that amount received by them would be recovered/adjusted from them from the final payment, payable in the light of forthcoming C.B.A. Agreement 2011-2012---Employees, in circumstances, were not justified to invoke constitutional jurisdiction of High Court---No ground existed for interference in the order passed by Single Judge of High Court---Intra-Court appeal being devoid of any merit was dismissed, in circumstances.
Mirza Muhammad Iqbal and others v. Government of Punjab PLD 1999 Lah. 109; Muhammad Yousaf v. Director, Anti-Corruption Establishment Punjab, Lahore and 5 others PLD 2004 Lah. 284; Pakistan International Airlines Corporation through Chairman and others v. Samina Masood and others PLD 2005 SC 831; Dr. Muhammad Tahir Achakzai and others v. Government of Balochistan and others 1999 SCMR 1689; Syed Arshad Ali and others v. Pakistan Telecommunication Company Ltd. and others 2008 SCMR 314 and Muhammad Kashif v. Messrs Karachi Dock Labour Board through Chairperson and another 2013 PLC 329 ref.
Muhammad Yafis Naveed Hashmi for Appellants.
2017 P L C 191
[Lahore High Court]
Before Shahid Mubeen, J
PACKAGES LIMITED through Factory Manager/Personnel Manager
Versus
PUNJAB LABOUR APPELLATE TRIBUNAL, LAHORE and another
W.P. No.34216 of 2016, decided on 9th February, 2017.
(a) Punjab Industrial Relations Act (XIX of 2010)---
----S. 44---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.15(3)---Constitution of Pakistan, Art. 199---Constitutional petition-Employee of a company---Grievance petition---Allegation against an employee of theft of motorcycle of another employee---Act subversive of discipline against an employee---Dismissal from service---Labour Court, powers of---Scope---Nobody had seen the accused employee stealing or taking away the motorcycle---Motorcycle was not recovered from the employee nor he committed theft of the same---Inquiry was neither just nor fair and inquiry officer had performed the duties of prosecutor as well as of a Judge at the same time---No one could be judge in its own cause or in a case in which he was personally interested---Employee had been acquitted from the case of theft of motorcycle---Penalty of dismissal imposed against the employee was not justiciable---All acquittals were honourable acquittals---Allegation against employee with regard to theft of motorcycle of another employee had no connection with the employer's business or property---Workman could not have been dismissed when his act or omission did not fall within the acts or omissions listed in Standing Order 15 of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968---Allegation of theft of motorcycle of another employee could not be said to be an "act subversive of discipline"---Labour Court had powers to enter into question of fact and to arrive at its own conclusions---Findings recorded by the Courts below were concurrent which could not be interfered by the High Court in constitutional jurisdiction---Courts below had exercised their jurisdiction in accordance with law---Constitutional jurisdiction could not be exercised to re-appraise the evidence; High Court could not sit over the judgments of Courts below as a Court of appeal---No illegality and jurisdictional defect had been pointed out in the impugned judgments passed by the Courts below---Constitutional petition was dismissed in circumstances.
Asif Ali Zardari and another v. The State PLD 2001 SC 568; Chairman Agricultural Development Bank of Pakistan and another v. Mumtaz Khan PLD 2010 SC 695; Director General Intelligence Bureau, Islamabad v. Muhammad Javed and others 2012 SCMR 165; Dilawar Khan v. M/s Ferozsons Laboratories Ltd. 2005 PLC 214; Pakistan International Airlines Corporation Karachi v. Junior Labour Court No.IV, Karachi and others PLD 1978 SC 239 and Crescent Jute Products Limited, Jaranwala v. Muhammad Yaqub, and others PLD 1978 SC 207 rel.
(b) Constitution of Pakistan---
----Art. 199---Constitutional jurisdiction of High Court---Scope---Constitutional jurisdiction of High Court was meant only for correction of jurisdictional error and material irregularities and in absence thereof concurrent findings of facts could not be interfered.
Ghulam Muhammad and another v. Mst. Noor Bibi and 5 others 1980 SCMR 933 rel.
(c) Constitution of Pakistan---
----Art. 199---Constitutional jurisdiction of High Court---Scope---Constitutional jurisdiction could not be exercised by the High Court to re-appraise the evidence.
(d) Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)---
----S.O. 15---`Subversive'---Meaning.
Concise Oxford English Dictionary Eleventh Edition rel.
(e) Administration of justice---
----No one could be judge in its own cause.
Asif Ali Zardari and another v. The State PLD 2001 SC 568 rel.
(f) Administration of justice---
----Justice must not only be done but seen to have been.
Rafey Zeeshan Javed Altaf for Petitioner.
2017 P L C 199
[Lahore High Court]
Before Abid Aziz Sheikh, J
PIONEER CEMENT LIMITED
Versus
The GOVERNMENT OF THE PUNJAB and others
W.P. No.36449 of 2015, heard on 11th May, 2016.
Provincial Employees' Social Security Ordinance (X of 1965)---
----Ss. 20, 2(8)(f) & 71---Public limited company---Enhancement of wages of employees---Contribution of Social Security amount---Scope---of wage limit under S.2(8)(f) of Provincial Employees' Social Security Ordinance, 1965 was only to determine the "employee" for the purpose of said Ordinance---Section 71 of the Ordinance empowered the government to enhance or reduce the wage limit---Provision of S.2(8)(f) of Provincial Employees' Social Security Ordinance, 1965 was not a charging section for the purpose of determining the contribution under the said Ordinance rather S.20 of Provincial Employees' Social Security Ordinance, 1965 was the charging provision---Monthly wage ceiling under S.2(8)(f) of Provincial Employees' Social Security Ordinance, 1965 was increased from Rs.10,000/- to Rs.12,500/- and then Rs.15,000/- by the government---Said increases on monthly wage ceiling were only to expand the net of institution to embrace more employees by enhancing the wage limit but same were not to increase the limit of contribution which was to be governed and charged under S.20 of Provincial Employees' Social Security Ordinance, 1965---Merely enhancing the monthly wage ceiling by Government under S.2(8)(f) of Provincial Employees' Social Security Ordinance, 1965, department could not recover the contribution on said enhanced wages---Demand and recovery of excess amount under the said notification was illegal and without jurisdiction---Petitioner having not challenged the vires of amendment made in S.20 of Provincial Employees' Social Security Ordinance, 1965, said notification could not be held to be illegal in absence of challenge---Enhanced ceiling of wages for contribution by employer was beneficial to the employees---Impugned notification and demand notice were intra vires of law and did not suffer from any legal infirmity---Constitutional petition was partly allowed to the extent that notifications in question could not be made basis for recovery of contribution under S.20 of the Ordinance, however constitutional petition to the extent of notification dated 12-8-2014 and demand notice dated 26-8-2014 based on said notification was dismissed.
Messrs Dawood Cotton Mills Ltd, Karachi v. Social Security Institution, Karachi PLD 1978 Kar. 744 and Messrs Dawood Hercules Chemicals Ltd v. Commissioner, Social Security, Lahore and another 1981 PLC 1 rel.
Majid Jehangir for Petitioner.
Barrister Khalid Waheed Khan, Asstt. A.G., Punjab for Respondents Nos.1 and 2.
Muhammad Nauman Aslam for Respondents Nos.3 and 4.
2017 P L C 215
[Lahore High Court]
Before Shahid Mubeen, J
ZAFAR IQBAL KHAN
Versus
PUNJAB LABOUR APPELLATE TRIBUNAL and 4 others
Writ Petition No.22623 of 2010, decided on 12th January, 2017.
(a) Industrial Relations Ordinance (XCI of 2002)---
----S. 46---Constitution of Pakistan, Art. 199--- Constitutional petition-Grievance petition---Bank employee, transfer of---Application for leave---Absence from duty---Termination from service---Scope---Petitioner-employee was transferred but he submitted leave application and remained absent from duty---Employer-Bank terminated the services of employee---Grievance petition moved by the employee was dismissed by the Labour Court but Labour Appellate Tribunal converted the termination into compulsory retirement---Contention of petitioner-employee was that order for transfer was passed by incompetent authority and no second show cause notice was issued to him which was illegality---Validity---Petitioner-employee had failed to plead or raise specific ground qua his contention from the very inception of case---No litigant could be allowed to build and prove his case beyond the scope of his pleadings---New point involving investigation of facts could not be taken up at present stage---Party could not be allowed to raise contention involving inquiry into the facts for the first time before High Court---Had the employee raised such contention before the Labour Court that would have been answered by the employer Bank in their reply explaining their position---Filing of application for leave did not absolve the employee from his duty to pursue the same---Mere submission of application for leave by the employee to the Bank against transfer order did not mean that same had been granted in his favour---Petitioner-employee should have himself inquired about the status of application for grant of leave---Employee had not bothered to contact Bank himself or through his agent to know as to whether leave had been sanctioned or not---Petitioner could not stay after transfer at a place of his own choice unless operation of transfer order had been stayed---Reasons provided by the employee that he had to look after his ailing mother and minor children was not a valid ground for not adhering to the transfer order---Employee was terminated by the competent authority on account of his absence from duty---Petitioner-employee did not join duty at the place where he was transferred---Absence from duty of employee was not right while in service---When an employee would disobey order of employer with regard to his transfer, employer had no option except to proceed against him and award penalty in accordance with law---High Court could not interfere into concurrent findings of facts recorded by the Courts below after due assessment of evidence---No illegality and jurisdictional defect had been pointed out in the impugned judgments passed by the Courts below---Constitutional petition was dismissed in circumstances.
Muhammad Iqbal v. Mehboob Alam 2015 SCMR 21; Punjab Seed Corporation through Managing Director and another v. Labour Court No.9, Multan through Presiding Officer and 2 others 2015 PLC 232 and Fazal Shafiq Textile Mills Ltd. v. IV Sindh Labour Court and another PLD 1981 SC 225 rel.
(b) Constitution of Pakistan---
----Art. 199---Constitutional jurisdiction of High Court---Scope---High Court could not interfere into concurrent findings of facts recorded by the Courts below after due assessment of evidence.
Ghulam Muhammad and another v. Mst. Noor Bibi and 5 others 1980 SCMR 933; Allah Ditta v. Ahmed Ali Shah and others 2003 SCMR 1202 and Mst. Farah Naz v. Judge Family Court, Sahiwal and others PLD 2006 SC 457 rel.
(c) Pleadings---
----Litigant could not be allowed to build and prove his case beyond the scope of his pleadings.
Syed Mansoor Ali Bukhari and Ch. Tahir Maqbool Gujjar for Petitioners.
2017 P L C 220
[Lahore High Court (Multan Bench)]
Before Mudassir Khalid Abbasi, J
MULTAN DEVELOPMENT AUTHORITY, MULTAN through Director General and another
Versus
Syed SHAUKAT HUSSAIN and 2 others
W.P. No.9536 of 2016, heard on 22nd February, 2017.
Punjab Industrial Relations Act (XIX of 2010)---
----S. 33---Punjab Employees Efficiency, Discipline and Accountability Act (XII of 2006), Ss. 16 & 2(h)(i)---Punjab Development of Cities Act (XIX of 1976), S.4---Grievance petition---Maintainability---Allegation for preparation of fictitious bills against employee---Removal from service---Employee of a statutory body having non-statutory Rules---Effect---Employee was proceeded under Punjab Employees Efficiency, Discipline and Accountability Act, 2006 and penalty of removal from service was awarded---Grievance petition filed by the employee was allowed and he was reinstated with back benefits---Validity---Employee of Statutory body (Multan Development Authority) would fall under S.2 (h) (i) of Punjab Employees Efficiency, Discipline and Accountability Act, 2006 and could be proceeded under the Act---Impugned orders passed by the Courts below were without jurisdiction which were set aside---Employee could file departmental appeal for redressal of his grievance if so desired---Constitutional petition was allowed in circumstances.
2013 SCMR 1707; 2007 SCMR 229; PLD 2006 SC 602; Lahore Development Authority through its Director General, Lahore and another v. Abdul Shafique and others PLD 2000 SC 207; 1997 SCMR 1368 and PLD 2003 SC 724 ref.
Muhammad Amin and another v. Government of Punjab and others 2015 SCMR 706; Haroon-ur-Rasheed v. Lahore Development Authority and others 2016 SCMR 931 and Muhammad Rafi and another v. Federation of Pakistan and others 2016 SCMR 2146 rel.
Muhammad Amin Malik for Petitioner.
Nadeem Parwaz Ch. for Respondent No.1
2017 P L C 233
[Lahore High Court]
Before Shujaat Ali Khan, J
GENERAL MANAGER LTR (SOUTH), PTCL and 2 others
Versus
MUMTAZ ALI MUFTI and 2 others
W.P. No.9906 of 2011, heard on 17th March, 2017.
Industrial Relations Act (X of 2012)---
----S. 33---Government Servants (Efficiency and Discipline) Rules, 1973, Preamble---Grievance petition---Maintainability---Employee of Pakistan Telecommunication Company Limited---Allegation of misappropriation---Dismissal from service without holding of regular inquiry---Effect---Employee filed departmental appeal and penalty of dismissal was converted into compulsory retirement---Employee instituted grievance petition which was accepted concurrently---Validity---Employee was proceeded against under Government Servants (Efficiency and Discipline) Rules, 1973 which being statutory in nature, employee was debarred to approach the Labour Court---Government servant could not be awarded major penalty without holding regular inquiry but in exceptional circumstances competent authority could pass penal order on the basis of proceedings conducted while dispensing with regular inquiry---Misappropriation had not been denied by the employee rather his stance was that same was committed by another person---No exception could be taken against the order passed by the competent authority on the ground that employee was proceeded against without holding regular inquiry---Impugned judgments passed by the Courts below were set aside---Constitutional petition was allowed in circumstances.
Qaisar v. Muhammad Shafqat Sharif 2012 SCMR 743; Ejaz Ali Bughti v. PTCL and others 2011 SCMR 333; Pakistan Telecommunication Co. Ltd. through Chairman v. Iqbal Nasir PLD 2011 SC 132; Chief Election Commissioner of Pakistan v. Miss Nasreen Pervez 2009 SCMR 329; Enayat Sons (Pvt.) Ltd. v. Government of Pakistan through Secretary, Finance and others 2007 SCMR 969; Municipal Committee, Chakwal v. Ch. Fateh Khan and others 2006 SCMR 688; Muhammad Mubeen ul Salam and others v. Federation of Pakistan through Secretary, Ministry of Defence PLD 2006 SC 602; Pakistan International Airlines Corporation v. Ms. Shaista Naheed 2004 SCMR 316; Abdul Qayyum v. D.G. Project Management Organization JS HQ Rawalpindi and 2 others 2003 SCMR 1110; Ali Asghar and 3 others v. Creators (Builders) and 3 others 2001 SCMR 279; Muhammad Siddiq Javaid Chaudhry v. Government of West Pakistan PLD 1974 SC 393 and Ashraf Hussain v. Punjab Labour Appellate Tribunal, Lahore and others 2016 PLC 97 ref.
National Bank of Pakistan v. Punjab Labour Court No.5, Faisalabad and 2 others 1993 SCMR 672 and Masood Ahmad Bhatti and others v. Federation of Pakistan and others 2012 SCMR 152 rel.
Mirza Amir Baig for Petitioners.
Syed Fazal Mehmood for Respondent No.1.
2017 P L C 238
[Lahore High Court]
Before Shujaat Ali Khan, J
PAKISTAN TELECOMMUNICATION COMPANY LTD. through Authorized Officer
Versus
TAJAMMAL HASNEIN and another
W.Ps. Nos.28277, 27185, 27186, 28276, 28290, 28597, 28599, 28600 and 28601 of 2015, decided on 16th January, 2017.
Industrial Relations Ordinance (XCI of 2002)---
----Ss. 49(4)(c), 2(xxx), 63 & 64---Employees of Pakistan Telecommunication Company---Termination of Services of employees of Company---Voluntary Separation Scheme---Option of employees to avail said scheme---Contention of employees who had opted the scheme was that Voluntary Separation Scheme was not in fact voluntary---Grievance petition before National Industrial Relations Commission---Scope---Worker/workman could approach National Industrial Relations Commission when his services were dispensed with in either shape as a result of industrial dispute---Employees had challenged Voluntary Separation Scheme introduced by the department---Termination of employees could not be considered as a result of any industrial dispute---Matter was also agitated prior to present grievance petition by the Union with regard to validity of Voluntary Separation Scheme which was dismissed---Employees were bound to establish unfair labour practice on the part of Company---No specific unfair labour practice had been mentioned in the grievance petition, but contained general grounds---When a penal order was passed against an employee, same would amount to unfair labour practice on the part of employer---Jurisdiction of National Industrial Relations Commission was barred as employees had failed to establish industrial dispute---Voluntary Separation Scheme was optional for the employees either to accept or reject the same---Employees had exercised their option for Voluntary Separation Scheme and they could not agitate the matter before the National Industrial Relations Commission while retracting their earlier option---Only the serving employees or an employee whose services had been dispensed with as a result of an industrial dispute could their/his agitate grievance before the Industrial Relations Commission---Employees whose services had been terminated did not fall within the definition of "workman"---Employees after exercising their option for Voluntary Separation Scheme were estopped to invoke jurisdiction of National Industrial Relations Commission---Impugned orders were set aside and grievance petitions were dismissed---Constitutional petition was allowed in circumstances.
Mustehkum Cement Limited through M.D. v. Abdul Rashid and others 1998 PLC 172; Trustees of the Port of Karachi v. Muhammad Saleem 1994 SCMR 2213; Muslim Commercial Bank Ltd. v. Tariq Zameer Siddiqui and others, Sohaib Shaukat and others v. Labour Department and others 2010 PLC 265; M/s Coca Cola Beverage Pakistan Limited through Authorized Officer/Industrial Relations Manager v. Registrar Trade Unions Sindh and 3 others 2010 PLC 48; Khuda Bux Baluch v. M. Atiqullah and others 1990 PLC 599; General Manager (Administration), Punjab Industrial Development Board, Lahore and another v. National Industrial Relations Commission and another 1987 PLC 129; Lever Brothers (Pakistan) Ltd. v. Senior Member, National Industrial Relations Commission and another PLD 1986 Lah. 90; National Bank of Pakistan v. Senior Member, N.I.R.C. and another 1986 PLC 985; Muhammad Ali and others v. Sindh Labour Court No.1, Karachi and others 1984 PLC 1645 and Pakistan Railways v. Junior Labour Court No.V and others 1979 PLC 320 ref.
Shahid Anwar Bajwa for Petitioner.
2017 P L C 249
[Lahore High Court]
Before Faisal Zaman Khan, J
FESCO/WAPDA through Chief Executive Officer and 3 others
Versus
PUNJAB LABOUR APPELLATE TRIBUNAL and another
W.P. No.17765 of 2012, heard on 4th May, 2015.
Punjab Industrial Relations Act (XIX of 2010)---
----S. 47---Appeal to Appellate Tribunal---Limitation---Appeal before the Appellate Tribunal, was barred by 83 days---Petitioners/department had not been able to give sufficient reasons for condonation of delay, but attributed the delay to the department and to the administrative issues---If there was any lapse on the part of the department, proceedings were needed to be initiated against the delinquent official who caused loss to the government---Department, had not been able to show that any official, because of whom, delay was caused, was taken to task and was penalized---Normal litigant and the government had to be treated at par and no extra premium could be given to the Government department; especially so, when the department authorities failed to make out a reasonable ground for condonation of delay---Impugned judgment was upheld and Constitutional petition was dismissed.
Commandant Pakistan Military Academy, Abbotabad v. Nazran Abbasi and others 2012 SCMR 385; Ghulam Hussain Ramzan Ali v. Collector of Customs (Preventive), Karachi 2014 SCMR 1594; Gen. (R.) Parvez Musharraf v. Nadeem Ahmed (Advocate) and another PLD 2014 SC 585 and Messrs Blue Star Spinning Mills Ltd. v. Collector of Sales Tax and others 2013 SCMR 587 ref.
Mian Muhammad Javed for Petitioner.
Syed Hamid Raza Bokhari for Respondents.
2017 P L C 28
[National Industrial Relations Commission]
Before Falak Sher Farooqa, Member
ZAHOOR AHMED NAVEED
Versus
MANAGER, THE BANK OF PUNJAB, MUZAFFARGARH and 2 others
Case No.4B(320) and C.M.A. No.24(213) of 2014-L, decided on 3rd May, 2016.
Industrial Relations Act (X of 2012)---
----S. 33---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.15---Dismissal from service---Grievance petition---Limitation---Grievance notice which was to be served within 90 days of dismissal from service, was served beyond that period of limitation---Grievance petition, filed by the petitioner, being not maintainable, was dismissed, being barred by time.
2006 PLC 617; 2002 PLC (CS) 907; Almas Ahmed Fiaz v. Secretary General of Punjab Housing and Physical Planning Development Lahore 2006 SCMR 783 and Zar Khan v. Senior Vice President MCB Regional Office Abbottabad 1984 PLC 89 ref.
1995 SCMR 1655 distinguished.
M. Tariq for Petitioner.
2017 P L C 34
[Peshawar High Court]
Before Yahya Afridi and Muhammad Daud Khan, JJ
ABASYN UNIVERSITY through Vice Chancellor
Versus
FEDERATION OF ISLAMIC REPUBLIC OF PAKISTAN through Secretary Ministry of Labour, Islamabad and 3 others
W.P. No.3210 of 2011 with C.M. No.1085-P of 2016, decided on 30th June, 2016.
(a) Employees' Old Age Benefit Act (XIV of 1976)---
----Ss. 9, 12(3), 13, 15, 17, 47(f), 33, 34 & 35----Abasyn University Act (XIII of 2009), Ss.3(3), 9 & 25---Constitution of Pakistan, Art.199--- Constitutional petition--- Maintainability--- Demand of contribution, validity of---Refund of contributions paid erroneously---Forum---'Statutory body'/'body corporate'---Scope---Company---Piercing the veil of incorporation--- Permissibility/parameters--- Separate/independent legal personality--- Safeguards--- Petitioner-University challenged the demand notice for contribution issued by the Employees Old Age Benefit Institution under Employees' Old Age Benefit Act, 1976---Petitioner-University contended that the University being a statutory body being the creation of Abasyn University Act, 2009, no contribution could have been demanded from the University under S.47 of the Employees' Old Age Benefit Act, 1976 and the recovery of certain amount effected from the University were in fact dues of a company, a distinct person, with no concern with the petitioner-University; therefore, said payment had been illegally extracted through coercive measures---Institution raised the objection that the University had the alternate remedy before the Institution under Ss.33, 34 & 35 of the Act and contended that the University, being a profit earning establishment, did not fall within the purview of statutory body as provided under S.47(f) of the Act, and that a case for contribution was made out as the Chancellor of the University was also the Chief Executive of the company that owned and controlled all the assets of the petitioner-University and was being run on profit basis and sought that the Court was to pierce the veil of incorporation of the University and the said Company to see the will and mind behind the legal facade created by establishing the Company and the University, which was meant to circumvent the spirit of the regime provided for paying contribution under Employees' Old Age Benefit Act, 1976---High Court, declaring the petitioner-University as statutory body in terms of S.47(f) of Employees' Old Age Benefit Act, 1976 and as such not liable to any contribution, declared the impugned demand notice as having been issued without lawful authority---Principles.
Article 199 of the Constitution expressly provided for the High Court to entertain grievances of an aggrieved person, who did not have an alternate remedy provided under the law; however, the judicial consensus evolved with the time had rendered jurisdictional space for the constitutional Court to assume jurisdiction when the remedy provided under the law to the aggrieved person would not be efficaciously meaningful or when the challenge made was purely jurisdictional, as in the present case. Petitioner-University was seeking the interpretation of section 47(f) of Employees' Old Age Benefit Act, 1976 and the meaning and purport of the term 'statutory body' as contained therein. In case the High Court, without indulging into factual disputes, could resolve the matter of jurisdiction, then assuming jurisdiction in such like cases should have been a rule and restraining therefrom an exception thereto. High Court, therefore, would assume jurisdiction only to the extent of jurisdiction issue so as to determine whether the petitioner-University came within the purview of a 'statutory body', as envisaged under section 47 of the Act. In case, the High court came to the conclusion that factual determination were also to be rendered to resolve that or any other contesting claim of the parties, then the constitutional Court would surely refrain from assuming jurisdiction.
Employees' Old Age Benefit Act, 1976, as per its preamble, was enacted to facilitate and ensure the old age benefits for the persons employed in 'Industrial', Commercial' and other organizations and matters related therewith. Section 9 of the Act mandated contributions from the employer of an Establishment or an industry in respect of every person in its ensureable employment. Contribution collected by the Institution, were maintained in the Employees Old Age Benefit Fund established under section 17 of the Act. Contribution received by the Institution in respect of the ensured person was utilized for their various prescribed pensions. Employer, in case of any erroneous payment made to the Institution, could seek the refund thereof under section 15 of the Act. In cases of complaints received or any question or dispute regarding crucial matters relating to the contribution the same were determinable by the Institution itself in terms of section 33 of the Act. Decision made under section 33 of the Act was reviewable under section 34 of the Act in case new facts were brought to the notice of the Institution. Remedy of appeal had also been provided under section 35 to the aggrieved person against the decision of the Institution under section 33 or its review under section 34 of the Act. Section 47 of the Act stipulated the persons who did not come within the purview of the Act. Section 37 of the Act provided a penal provision for imprisonment extendable to two years or with fine or both for violating the specific orders passed under the Act or rules made thereunder; while the unpaid contribution was recoverable as arrears of land revenue under section 13 read with section 9 of the Act.
In terms of section 3(3) of Abasyn University Act, 2009, the petitioner-University was a body corporate by the name of Abasyn University having perpetual succession and common seal and might sue and be sued by the said name. Chief Executive of the Company had also been declared the Chancellor of the University under section 9 of Abasyn University Act, 2009, whose terms and conditions were to be determined by the Board of Directors of the said Company. Ultimate ownership of the property, funds and resources of the University had been vested in the Board of Directors of the Company under section 25 of Abasyn University Act, 2009.
In term of section 47 of Employees' Old Age Benefit Act, 1976, the Legislature in its wisdom, had neither defined the term 'statutory body' nor qualified the same by its ownership, control or nature and scope of business. Plain and simple interpretation of section 47 of the Act provided for any legal entity created by an enactment passed by the Parliament or Provincial Assembly, irrespective of its ownership, control or purpose. Two reservation, however, were provided under section 47 of the Act, which were that the persons employed in the statutory body did not perform services of or in connection with the affairs of a factory, as defined in Factory Act, 1934 or a mine, as defined in Mines Act, 1923. Persons employed in the petitioner-University did not come within the said two exceptions.
In economically alive countries, the principle of limited liability of shareholder was ordinarily protected under the law to boost economic growth and the liability of the shareholder was restricted to the value of his shares in the company, and in case of fully paid-up shares, the shareholder would not be liable for the actions of the company. Separate and independent legal personality was preserved throughout the corporate world to encourage, attract, protect and ensure investment in an economy. Shareholders/Directors, only in exceptional cases, were also challenged to face the penal or financial consequences for the actions of the company.
General consensus was not to pierce the veil of incorporation of the company and to preserve the doctrine of separate legal personality of the company and the limited liability of its shareholders. Court sparingly exercised their authority by piercing the veil of incorporation of the company and that too in exceptional circumstances when sham or façade corporate entities were created to legally blanket the illegal actions of the controlling shareholders or the governing directors, when the companies were setup to avoid execution of Court decision.
Antonio Gramsei Shipping v. Stepanovs (2011) 1 Lloyds Rep. 647 and Adams v. Cape Plc [2000] 1 WLR 1545 rel.
No sham or façade existed in incorporating the Company, as its entire arrangement was open and had the blessing of the Legislature. Vires of Abasyn University Act, 2009 having not been challenged before the Court, the independent legal personality of the petitioner-University and the control of the Board of Directors of the Company as provided therein could not be questioned or commented upon by the Court in the present proceedings.
Petitioner-University fulfilled the attributes of a statutory body having its independent legal personality and fell within the purview of a statutory body as provided under section 47(f) of Employees' Old Age Benefit Act, 1976. For an entity to be described as a 'statutory body', its birth itself should have been caused by a special statute; such entity should have come into existence by virtue of a statute itself and not established under the provisions of an already existing statute. Petitioner-University was, therefore, exempt from paying any contribution to the Institution under section 9 of the Act.
Pakistan Telecommunication's case 2016 SCMR 1220 rel.
Petitioner-University demanded return of certain amount allegedly having been coercively extracted by the Institution, but no evidence in support thereof was available on the record. Petitioner-University would be required to prove said claim by producing cogent and reliable evidence; however, the same was beyond the domain of the High Court, particularly when the petitioner-University had the alternate remedy to seek said relief before the Institution under Employees' Old Age Benefit Act, 1976.
High Court, in view of the above, declared the impugned demand notices issued under section 12(3) of Employees' Old Age Benefit Act, 1976 as without lawful authority, as the provisions of the Act were not applicable to the petitioner-University under section 47(f) of the Act. Constitutional petition was allowed in circumstances.
Ghee Corporation's case 1994 PLC 628; Sadiq Public School's case 2012 CLC 880 and PTCL's case 2012 PLC 460 distinguished.
(b) Interpretation of statutes---
----Statute is to be read as enacted; each word expressed therein has to be given its ordinary meaning, and it would not appropriate for the courts to substitute or add a word for what has been clearly provided in an enactment---In case of any conflict in the provisions or contest in interpreting the same, all efforts are to be made to first resolve and reconcile the provisions provided in the statute and only in exceptional cases, where the interpretation of the provision is leading to an absurdity and it is absolutely necessary that the courts may intervene providing refuge to save the provision contained in the enactment.
Abdul Sattar Khan for Petitioner.
Abdur Rahim Jadoon for Respondents.
2017 P L C 55
[Peshawar High Court]
Before Rooh-ul-Amin Khan and Syed Afsar Shah, JJ
Messrs TELEPHONE INDUSTRIES OF PAKISTAN (PVT.) LTD. (TIP) HARIPUR through Managing Director and 5 others
Versus
TIP EMPLOYEES AND WORKERS through General Secretary and 4 others
Writ Petition No.3094 -P of 2015, decided on 8th November, 2016.
Khyber Pakhtunkhwa Industrial Relations Act (XVI of 2010)---
----S. 46---Grievance petition---Direction by Labour Appellate Tribunal not to terminate the services of workers---Non-implementation of direction by the employer---Contempt proceedings---Judgment without jurisdiction---Effect--- Labour Court returned grievance petition to the employees for want of jurisdiction---Labour Appellate Tribunal remitted the matter to the Labour Court for decision of question of jurisdiction afresh but in the meanwhile employer was directed not to terminate the services of workers till decision of the case---Employees filed an application for initiating contempt proceedings against the employer wherein show cause notice was issued---Validity---When forum in the Labour hierarchy was not vested with the jurisdiction, direction of Labour Appellate Tribunal would be without lawful authority---Disobedience or non-implementation of judgment of Labour Appellate Tribunal being per incuriam and without jurisdiction would not constitute contempt of person/establishment even if found guilty---Such disobedience or non-implementation could not be visited with contempt punishment---Order of Labour Appellate Tribunal had become redundant---Contempt proceedings initiated on the basis of a wrong order would amount to abuse of process of court---Contempt proceedings pending before the Labour Appellate Tribunal were ordered to be quashed---Employees could raise their voice before the proper forum wherein they could make a claim for the alleged arrears of wages---Constitutional petition was allowed accordingly.
PTCL v. Member NIRC and others 2014 SCMR 353 rel.
Abdur Rehman Qadri for Petitioners.
Sajid Ahmed for Respondents.
2017 P L C 162
[Peshawar High Court]
Before Waqar Ahmed Seth and Rooh-ul-Amin Khan, JJ
SAIDAN SHAH
Versus
PTCL through Chairman and 4 others
Writ Petitions Nos.685-P of 2012, 8682-P, 2681-P and 2680-P of 2011, decided on 19th January, 2017.
(a) Khyber Pakhtunkhwa Industrial Relations Act (XVI of 2010)---
----S. 37---Khyber Pakhtunkhwa Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.Os. 1 (4) (a), 2 (b) & (f) & S. 2 (g)---Constitution of Pakistan, Arts.2-A, 3 & 38---Grievance petition---Daily wages employees of state-owned company---Regularization of service---Temporary employees---Elimination of exploitation---Secured and guaranteed right---Scope---Employees filed grievance petition which was allowed by the Labour Court but Labour Appellate Tribunal dismissed the same---Validity---Every individual, citizen and employee had right to be treated in accordance with law---Secured and guaranteed rights were described as an entitlement or justified claim to a certain kind of positive and negative treatment from others, to support from others or non interference from others---Individual could not claim right if those rights were not recognized by the state---Petitioners had rights secured and guaranteed to be treated as regular employees for the purpose of availing benefits of regular employees---Services of employees remained satisfactory during entire temporary period---Employees were in continuous service against daily wage service status for the last more than 15 years---Petitioners had right to be treated as regular and permanent employees of the establishment---Nature of job which employees were performing was not of temporary and no specific date of completion of work had been given by the establishment---Temporary employees could not be left to the time of termination of their services for the purpose of making grievance through competent Court of law---Policy of pick and choose as adopted by the establishment in the matter of absorption/ regularization of employees was against law---Principle of equality, social and economic justice should be observed as Fundamental Right---State should ensure well being of the people by raising their standards of living---Employees had been discriminated and exploited by the establishment---Impugned orders passed by the Labour Appellate Tribunal were set aside---Employees were directed to be deemed to be absorbed, regular employees of the establishment with all consequential benefits---Constitutional petition was allowed in circumstances.
Executive Engineer, Central Civil Division PAK, PWD Quetta v. Abdul Aziz and others PLD 1996 SC 610; Pakistan Telecommunication Company Limited and another v. Muhammad Zahid and 29 others 2010 SCMR 253; Tauqeer Abid v. Divisional Superintendent Pakistan Railways, Multan and 4 others 2016 PLC 326; Ikram Bari and 524 others v. National Bank of Pakistan and others 2005 SCMR 100 and Izhar Ahmad Khan and another v. Punjab Labour Appellate Tribunal and others 2000 PLC 199 rel.
(b) Khyber Pakhtunkhwa Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)---
----S. 2(g)---"Permanent" and "temporary" employees---Distinction.
(c) Constitution of Pakistan---
----Art. 3---Elimination of exploitation---State to ensure the elimination of all forms of exploitation.
Riaz Anwar for Petitioner.
Inayat-ur-Rehman for Respondents.
2017 P L C 148
[Balochistan High Court]
Before Abdullah Baloch and Muhammad Hashim Khan Kakar, JJ
GENERAL MANAGER PAKISTAN INTERNATIONAL AIRLINE and another
Versus
MATIULLAH and 17 others
Constitutional Petition No.577 of 2012, decided on 29th December, 2016.
Balochistan Industrial Relations Act (XIII of 2010)---
----S. 25---Grievance petition---Employees of Pakistan International Airlines Corporation---Regularization of service---Employees employed through contractor---Employees filed grievance petition for regularization of their service which was dismissed by the Labour Court but Labour Appellate Tribunal accepted the same---Contention of employer Corporation was that employees were employees of the contractor and they did not fall within the definition of 'worker' or `workman'---Validity---Employees appointed by the employer directly or indirectly were permanent employees of the employer after fulfillment of three months probationary period---Present employees were appointed by the contractor for discharging duties to provide the janitorial service to the employer Corporation---Mere change of contractor did not affect the services of employees---Petitioners were employees of the employer Corporation and not of the contractor---Agreement with the contractor had been extended from time to time during the employment of employees but they remained at the job in the Corporation---Corporation had administrative control over the employees with powers of hiring and firing---Employees were also on the payroll of Corporation and working in its territorial jurisdiction---Corporation had hired the services of employees just to save them from the obligation and responsibilities under the Labour Laws---"Workman" was not merely a person employed directly by the employer but employed through contractor was also employee of the employer---No illegality or irregularity had been pointed out in the impugned judgment passed by the Labour Appellate Tribunal---Constitutional petition was dismissed in circumstances.
Mian Badr Munir for Petitioners.
Azam Jan Zarkoon for Respondents.
Naseer Ahmed Bangulzai, Addl. A.G. for Official Respondents.
2017 P L C 158
[Balochistan High Court]
Before Zaheer-ud-Din Kakar and Jamal Khan Mandokhail, JJ
JUMA KHAN and 2 others
Versus
Messrs HABIB BANK LIMITED through President and 2 others
C.P. No.494 of 2012, decided on 14th March, 2017.
Industrial Relations Ordinance (XCI of 2002)---
----S. 46---Constitution of Pakistan, Art.199---Constitutional petition---Grievance petition--- Bank employee--- Retrenchment--- Payment of compensation---Petitioner sought additional allowance on the basis of judgment of Supreme Court---Scope----Respondent-Bank retrenched the employees and they were paid compensation---Contention of petitioners-employees was that they were entitled for additional compensation as per judgment passed by the Supreme Court---Validity---Respondent Bank agreed for payment of additional compensation to the retrenched employees---Supreme Court had passed the order on the basis of settlement between the parties---Said judgment of Supreme Court was not a judgment in rem but was in personam, therefore was attracted to the present case---Petitioners-employees had already received compensation after retrenchment order passed by the Bank---Constitutional petition was dismissed in circumstances.
Pir Bakhsh v. Chairman Allotment Committee PLD 1987 SC 145 and Ejaz Rasool v. Member National Industrial Relations Commission and 5 others 2014 PLC (C.S.) 288 rel.
Azam Jan Zarkoon for Petitioners.
Muhammad Riaz Ahmed for Respondent No.1.
2017 P L C 1
[Supreme Court of Pakistan]
Present: Gulzar Ahmed, Dost Muhammad Khan and Sardar Tariq Masood, JJ
NEMAT ULLAH and others
Versus
CHAIRMAN GOVERNING BODY, WORKER WELFARE BOARD/SECRETARY TO GOVERNMENT OF KPK, LABOUR DEPARTMENT and others
Civil Appeal No. 1109 of 2013 and Civil Appeals Nos. 1424 to 1428 of 2014, decided on 14th April, 2016.
(On appeal from the judgment dated 17-6-2013 and 20-6-2013 passed by the Peshawar High Court in W.P. No. 1392-P, 929, 2729, 3218, 3298, 910, 2062, 2383, 2384, 3111, 2475/13 and W.P. 1651-P, 1652-P, 1653, 1739, 1753, 1703, 1890, 1832, 1030, 1895, 1868, 3298, 766, 1445, 1484, 150, 680, 1029, 1031, 424, 587, 243, 1751, 1569, 1577, 1702, 1241, 1486, 1493 and 1447 of 2014)
(a) Workers' Welfare Fund Ordinance (XXXVI of 1971)---
----S. 8(3)---Workers' Welfare Fund (Employees Service) Rules, 1997---Constitution of Pakistan, Art. 199---Employees of Khyber Pakhtunkhwa Workers Welfare Board ("Employees")---Statutory rules of service---Workers' Welfare Fund (Employees Service) Rules, 1997 were applicable with full statutory force to the service of the employees of the Workers' Welfare Board of the Province of Khyber Pakhtunkhwa---Moreover after the Eighteenth Amendment to the Constitution, said Rules enacted by the Federal Government were exclusively within the domain of the Provincial Government/Provincial Workers' Welfare Board---Employees could file a Constitutional petition before the High Court if there was any invasion on their service benefits and rights by the authorities.
Workers' Welfare Fund (Employees Service) Rules, 1997 enacted by the Federal Government were adopted and made applicable to the Province of Khyber Pakhtunkhwa with clear directions and express approval of the Federal Government. For all intents and purposes said Rules had become applicable with full statutory force to the service and terms and conditions of service etc. of the employees of the Workers Welfare Board of the Province of Khyber Pakhtunkhwa.
Before the Eighteenth Amendment to the Constitution, Ministry of Labour was within the domain of the Federal Government and once under its approval and direction the Workers Welfare Board has adopted the Workers' Welfare Fund (Employees Service) Rules, 1997, regulating the terms and conditions of service of its employees. After the Eighteenth Amendment, said Rules were exclusively within the domain of the Provincial Government/Workers' Welfare Board and unless the same was amended, repealed, modified or re-enacted under the changed Constitutional scenario, the same had a binding statutory force and the services of the employees of the Workers' Welfare Board of the Province of Khyber Pakhtunkhwa, were squarely and undoubtedly regulated by the said Rules. Till date said Rules had neither been repealed nor amended in any manner by the Provincial Government or for that matter by the Provincial Assembly of the Province.
Services of the employees of Khyber Pakhtunkhwa Workers' Welfare Board were fully protected by the statutory rules, and any invasion on their service benefits and rights by the authorities entitled them to approach the High Court through a Constitutional petition.
(b) Employer and employee---
----Permanent post having statutory rules---Probationary/contractual period--- Employer could not put the employee on contract basis/ probation for an unreasonably long period when the appointment was made against a permanent vacancy/sanctioned post---Such practice was deprecated by the Supreme Court.
(c) Employer and employee---
----Sanctioned post having statutory rules---Such post could not be kept vacant unless abolished by the competent authority.
(d) Constitution of Pakistan---
----Art. 224(1A)---Caretaker Government/Cabinet, functions of---Scope--- Except for extraordinary circumstances, the Caretaker Government/Cabinet had to confine itself to running day to day administration of the State and to take decisions, required for orderly running of the affairs of the State but the decisions, having far reaching effects should only be taken by the elected government, having the mandate to perform extraordinary functions for the welfare of the people, for which purpose it was being chosen.
Mazullah Barkandi, Advocate Supreme Court for Appellants (in C.As. Nos.1109 to 1111 of 2013).
Ijaz Anwar, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Appellants (in C.As. Nos.1424 to 1428 of 2014).
Syed Arshad Ali Shah, Advocate Supreme Court for Respondents.
2017 P L C 65
[Supreme Court of Pakistan]
Present: Mian Saqib Nisar and Iqbal Hameedur Rahman, JJ
SONERI BANK LTD.
Versus
FEDERATION OF PAKISTAN through Secretary, Law and others
Civil Petition No. 1723-L of 2013, decided on 11th March, 2016.
(Against the judgment dated 11-10-2013 of the Lahore High Court, Multan Bench passed in W.P. No. 12284 of 2013)
(a) Payment of Wages Act (IV of 1936)---
----S. 2(i)---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S. 2(b)---Bank as a "commercial establishment"---From the definition of 'commercial establishment' given in the Payment of Wages Act, 1936 with reference to the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, it was clear that the Bank fell within the said definition---Any workman of a Bank aggrieved of non-payment of wages could approach the relevant authority established for such purposes.
(b) Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)---
----S. 2(i)---Payment of Wages Act (IV of 1936), S. 17---Constitution of Pakistan, Art. 199---Dispute over payment of wages of a 'workman'---Constitutional petition before High Court challenging the status of a person as a 'workman'---Maintainability---Question as to whether a person was a `workman' within the purview of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, was a matter of jurisdictional fact---Where a commercial establishment had lost its case on account that the person was found to be a 'workman', such finding of fact should be challenged in appeal and not in the constitutional jurisdiction of the High Court on the plea that the order of the authority determining such jurisdictional fact was a void determination.
Malik Waqar Haider Awan, Advocate Supreme Court for Petitioner.
Kamran Ali, authority under Payment of Wages Act for Respondent No.2.
2017 P L C 82
[Supreme Court of Pakistan]
Present: Mian Saqib Nisar, Iqbal Hameedur Rahman and Tariq Parvez, JJ
Messrs PAKISTAN INTERNATIONAL AIRLINES CORPORATION
Versus
The BOARD OF TRUSTEES, EOBI and others
Civil Appeal No. 95 of 2005, decided on 9th February, 2016.
(Against the judgment dated 5-12-2003 passed by High Court of Sindh, Karachi passed in Cons. P. No. 1443 of 1996)
(a) Employees' Old-Age Benefits Act (XIV of 1976)---
----Ss. 1(4), 3 & 11--- "Establishment"--- Scope--- Organization comprising of different sub-organisations/departments---Various departments of an organisation could be termed as "establishments" for the purposes of Employees' Old-Age Benefits Act, 1976---Certain organisations comprised of a vast array of sub-organisations wherein each sub-organisation carried out an activity that may be wholly or substantially different from that of another sub-organisation, rendering only one or some of the sub-organisations as "establishment(s)" under the Employees' Old-Age Benefits Act, 1976 and not the others---To hold that an "establishment" as provided for under the said Act only contemplated organisations as a whole/composite and not its individual departments/sub-organisations would mean to deprive the employees of insurance benefits who would otherwise be entitled as the sub-organisation they worked for may fall within the definition of "establishment" under the said Act.
(b) Employees' Old-Age Benefits Act (XIV of 1976)---
----S. 2(e)(iii)---Factories Act (XXV of 1934), S.2(g)(i) & (j)---"Establishment"---Scope---Kitchen department of National Airlines---Said department was more akin to a food manufacturing plant where a "manufacturing process" was carried in terms of S. 2(g)(i) of Factories Act, 1934---Kitchen department of National Airlines was a "factory" in terms of the Factories Act, 1934, thus it would necessarily constitute an "establishment"---Employees' Old-Age Benefits Act, 1976 was applicable to the employees of National Airlines working in its kitchen department.
Employees' Old-Age Benefits Act, 1976 was applicable to the employees of National Airline working in its kitchen department. Kitchen department of National Airline carried out a "manufacturing process" as defined under S. 2(g)(i) of the Factories Act, 1934. Flight kitchen production or flight catering consisted of mass scale food production, where food was prepared, cooked and arranged for final service for countless number of passengers and flight crew on numerous local and international fights round the clock every day. Kitchen department of National Airline was not a regular kitchen, but it was more akin to a food manufacturing plant, where finished dishes were made from the raw material (fresh food items, etc.) and finally packed and loaded onto flight catering carts for use on-board National Airlines' air carriers, thereby bringing such process within the "process for making packing any article or substance with a view to its use " making it a "manufacturing process". Consequently the kitchen department of National Airline was a "factory" in terms of the Factories Act, 1934. Accordingly, kitchen department of National Airline would necessarily constitute an "establishment" for the purposes of the Employees' Old-Age Benefits Act, 1976.
(c) Employees' Old-Age Benefits Act (XIV of 1976)---
----S. 2(e)(iii)---Factories Act (XXV of 1934), S.2(g)(i) & (j)---"Establishment"--- Scope--- Engineering department of National Airlines---Said department was an "establishment" falling within the definition of a factory as defined under the Factories Act, 1934---Employees' Old-Age Benefits Act, 1976 was applicable to the employees of National Airlines working in its engineering department.
Employees' Old-Age Benefits Act, 1976 was applicable to the employees of National Airlines working in its engineering department. Repairing and servicing of airplanes, carried out at the engineering department of National Airlines, would bring said department within the definition of "factory" since a "manufacturing process" was taking place, which encompassed "repairing" of the airplanes "with a view to its use" as per sections 2(g)(i) and 2(j) of the Factories Act, 1934. Consequently, the engineering department of National Airlines was an "establishment" under the Employees' Old-Age Benefits Act, 1976.
(d) Employees' Old-Age Benefits Act (XIV of 1976)---
----S. 47(f)---Factories Act (XXV of 1934), S.2(j)---Engineering department of National Airlines---Employees' Old-Age Benefits Act, 1976 applicability of---Exceptions---Proviso to S.47(f) of Employees' Old-Age Benefits Act, 1976 provided that said Act was not applicable to workshops maintained exclusively for the purposes of repair or maintenance of equipment or vehicles used in such statutory bodies---Engineering department of National Airlines (a statutory body) did not fall within the ambit of proviso to S.47(f) of said Act as it also provided repair and maintenance services to airplanes of airlines other than that of the National Airlines, and also to Pakistan Navy and Air Force---Engineering department of National Airlines, therefore, did not come within the ambit of the proviso to S.47(f) of the Employees' Old-Age Benefits Act, 1976, meaning that the Act was applicable to said department.
Anwar Mansoor Khan, Senior Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Appellant.
Tariq Bilal, Advocate Supreme Court, Babar Bilal, Advocate Supreme Court, M.S. Khattak, Advocate-on-Record and Noor Ahmed, Dy. Director, Law, EOBI for Respondents.
Abdul Rasheed Awan, D.A.-G. on Court's Notice.