PLC 2018 Judgments

2018 P L C 176

[Islamabad High Court]

Before Miangul Hassan Aurangzeb, J

ZAFAR IQBAL

Versus

The PRESIDENT, UNITED BANK LIMITED and 4 others

W.P. No.682 of 2017, decided on 31st July, 2017.

Industrial Relations Act (X of 2012)---

----S. 19(2)(13)---Application for holding referendum for determination of Collective Bargaining Agent---Embargo to transfer etc. during referendum---Scope---Dismissal of the employee during referendum ---Effect---Petitioner/employee contended that since application under S.19(2) of Industrial Relations Act, 2012 was pending before the Registrar of Trade Unions, the petitioner could not be dismissed from service---Employer/Bank and the Registrar of Trade Unions contended that the petitioner was actually challenging his dismissal under the garb of law as the referendum had been suspended by National Industrial Relations Commission---Validity---Record revealed that the disciplinary/ departmental proceedings had commenced against the petitioner in the year 2010 and in due course petitioner's grievance petition before the National Industrial Relations Commission was dismissed in the year 2016 by which order it was observed that the Management of the employer Bank could proceed against the petitioner in accordance with the law---Later, Management of the Bank dismissed the petitioner from service---On the date of dismissal of the petitioner from service, the referendum proceedings could not be said to be pending because referendum was ordered to be suspended by the National Industrial Relations Commission---For holding referendum on application under S.19(2) of the Industrial Relations Act, 2012 the Registrar of the Trade Unions was supposed to hold a secret ballot to determine as to which of the trade union was to be the Collective Bargaining Agent for an establishment within a period of 15 days---Embargo on transfer, removals, retrenchment, or termination of workers in the said 15 days period was mandate of S.19(13) of the Industrial Relations Act, 2012 but if the referendum proceedings were suspended, it could not be said that any employee could not be dismissed---No illegality or infirmity having been noticed in the impugned orders passed by the Registrar of Trade Unions and National Industrial Relations Commission, constitutional petition was dismissed accordingly.

Qazi Ahmed Naeem Qureshi for Petitioners.

Faisal Mehmood Ghani for Respondents Nos.1 to 3.

2018 P L C 269

[Islamabad High Court]

Before Miangul Hassan Aurangzeb, J

NAZEER HUSSAIN through Attorney

Versus

APPELLATE BENCH NIRC and another

W.P. No.3454 of 2016, decided on 19th March, 2018

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

----Ss. 33, 53 & 54---Civil Aviation Authority Ordinance (XXX of 1982), S.23---General Clauses Act (X of 1897), S.8---Grievance petition---Maintainability---Petitioner/ employee, was issued show-cause notice for misconduct---Petitioner approached National Industrial Relations Commission (NIRC) by filing grievance petition and was able to obtain interim relief---Preliminary objection to the maintainability of petitioner's grievance petition, having been rejected by National Industrial Relations Commission, Employer authority filed appeal against said order, which was allowed by Full Bench of National Industrial Relations Commission---Employer Authority contended that by virtue of S.23 of the Civil Aviation Authority Ordinance, 1982, Industrial Relations Act, 2012, had no applicability over Civil Aviation Authority (Authority) or any of its employees; that National Industrial Relations Commission, had no jurisdiction to entertain or adjudicate upon a grievance petition filed by Authority's employees under provisions of Industrial Relations Act, 2012; that since Industrial Relations Ordinance, 1969, was repealed and replaced by Industrial Relations Act, 2012, S.23 of Civil Aviation Authority Ordinance, 1982 would operate to exclude the applicability of Industrial Relations Act, 2012 on Authority or any person in its service by dint of S.8 of General Clauses Act, 1897---Validity---Applicability of the Industrial Relations Act, 2012 having been excluded by S.23 of the Civil Aviation Authority Ordinance, 1982 from the Authority or any person in its service, petitioner, could not have filed petitions under the provisions of Industrial Relations Act, 2012 before National Industrial Relations Commission against the Authority---Grievance petitions filed by the Employees in the service of Authority before National Industrial Relations Commission, were not maintainable---Constitutional petitions, were dismissed in circumstances.

National Telecommunication Corporation v. National Industrial Relations Commission 2014 SCMR 1833; Civil Aviation Authority v. Union of Civil Aviation Employees PLD 1997 SC 781; Zarai Taraqiati Bank Limited v. Said Rehman 2013 SCMR 642; Rajya v. Gopikabai AIR 1979 SC 79; State Bank of Pakistan v. Indus Bank Limited 2001 CLC 1833; Commissioner Inland Revenue, Multan v. Messrs Allah Wasaya Textile and Fishing Mills Ltd. PLD 2013 Lah. 617 = 2013 PTD 1548; Ghulam Sarwar v. Muhammad Hussain 2000 YLR 869; Sardar Muhammad Tariq v. Special Judge of the Court for Suppression of Terrorist Activities 1996 PCr.LJ 58; University of Punjab v. Rehmatullah PLD 1982 Lah. 729; State of Uttar Pradesh v. M.P. Singh and others AIR 1960 SC 569; Ram Rosad Ramnarain v. Bejoy Kumar Sadhukhan AIR 1966 Cal. 488, State of Bihar v. G.N. Ojha AIR 1963 Patna 303, Raj Kishan Jain v. Tulsi Dass and others AIR 1959 Punjab 291; Moradliwaj v. Bhudar Das AIR 1955 Allahabad 353 and National Sewing Trading Co. Ltd. v. James Chadwick & Bros., Ltd. AIR 1953 SC 357 ref.

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

----S. 8---Construction of references to repealed enactment---Object of S.8 of the General Clauses Act, 1897, was that where any statute was repealed and re-enacted, references in any other enactment to provisions of repealed enactment must be read and construed as references to the re-enacted provisions, unless a different intention appeared.

Asad Mehmood Khokhar for Petitioner.

Amna Warsi and Ayesha Warsi for Respondent No.2. (Civil Aviation Authority).

Raja Ahsan Mehmood Satti, Learned Assistant Attorney-General.

Bilal Nadeem, Deputy Director, National Industrial Relations Commission.

2018 P L C 117

[Sindh High Court]

Before Syed Hassan Azhar Rizvi and Adnan-ul-Karim Memon, JJ

SONERI BANK LIMITED through President

Versus

AURANGZEB and another

C.P. No.D-5362 of 2014, decided on 21st August, 2017.

Industrial Relations Act ( IV of 2008)---

----S. 41---Misconduct of Bank employee---Termination of the employee---Scope--- Non-initiation of inquiry proceedings--- Effect---Petitioner/Bank contended that Labour Appellate Tribunal had wrongly reinstated the employee without deciding the matter on merits---Respondent/employee contended that neither show cause notice along with statement of allegations was served to him nor inquiry proceedings were initiated against him---Validity---Record revealed that the deposition of the representative/authorized Officer of the Bank spelt out that employee was not convicted by criminal court on the allegation leveled against him and, admittedly, he did not produce any letter issued by the Bank regarding performance about the said employee from his previous employers---Representative of the Bank also admitted that there was no fault on the part of the employee regarding the Bank and that neither inquiry officer was appointed nor inquiry was conducted against the employee by the Bank regarding allegation mentioned in the impugned termination letter---Certain allegations were on record against the employee but his service was not supposed to be terminated without holding full-fledged inquiry and grant of opportunity of hearing to the employee to defend himself on the allegations against him---No illegality or infirmity having been noticed in the impugned orders constitutional petition was dismissed accordingly.

Engineer Majeed Ahmed Memon v. Liaquat University of Medical and Health Sciences, Jamshoro and others 2014 SCMR 1263 ref.

Khaleeq Ahmed for Petitioner.

Ejaz Hussain Shirazi for Respondent No.1.

2018 P L C 171

[Sindh High Court]

Before Syed Hassan Azhar Rizvi and Adnan-ul-Karim Memon, JJ

Messrs WYETH PAKISTAN LIMITED through Controller Treasury

Versus

NASIMUL HASSAN and 2 others

C.P. No.D-3573 of 2014, decided on 13th October, 2017.

Industrial Relations Ordinance (XCI of 2002) ---

----Ss. 46 & 2(xxx)---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(i)--- Grievance petition---Termination from service---Workman---Determination of---Procedure---Employee was terminated from service against which grievance petition was accepted and he was reinstated with back benefits---Validity---Duties assigned to the employee were clerical and of manual nature---Labour Court had dilated upon the issues in an elaborate manner by appreciating evidence of the parties---No ground existed for re-evaluation of evidence produced by the parties---No illegality, infirmity or material irregularity had been pointed out in the impugned judgments passed by the courts below---Constitutional petition was dismissed in circumstances.

Qaisar and others v. Muhammad Shafaqat Sharif 2012 SCMR 743; Farast Hussain and others v. Pakistan National Shipping Corporation and others 2005 PLC (C.S.) 890; Muhammad Hanif and others v. Sultan 1994 SCMR 279; ENMAY ZED Publication (Pvt.) v. Sindh Labour Appellate Tribunal and others 2001 SCMR 565 ref.

General Manager National Radio Telecommunication Corporation, Harri Pur District Abotabad v. Muhammad Aslam and others 1992 SCMR 2169; National Bank of Pakistan and others v. Anwar Shah and others 2015 SCMR 434 and Dilshad Khan Lodhi v. Allied Bank of Pakistan and others 2008 SCMR 1530 rel.

Muhammad Humanyoon for Petitioner.

Ch. Muhammad Ashraf Khan for Respondent No.1.

2018 P L C 219

[Sindh High Court]

Before Syed Hassan Azhar Rizvi and Adnan-ul-Karim Memon, JJ

MUHAMMAD SALEEM

Versus

NATIONAL INDUSTRIAL RELATIONS COMMISSION and another

Constitutional Petition No.D-1919 of 2016, decided on 15th September, 2017.

Industrial Relations Act (X of 2012)---

----S. 33---Correction of date of birth of employee---Employee was appointed on retired Army Personnel Quota---Employee at the time of recruitment in the company submitted copy of service certificate issued by Pakistan Army disclosing his date of birth as 26-01-1954---Employee was mindful of the fact that in the said certificate his date of birth was mentioned as 26-01-1954 and not 26-01-1956---Employee did not file any application for correction of his date of birth within the period of two years from the date of joining service rather after twenty four years of his service when he was about to retire---Employee had failed to explain such inordinate delay in seeking correction of his date of birth---Principle of locus poenitentiae would not apply in the present case as employee had retired from service on 26-01-2014 and his date of birth i.e. 26-01-1954 instead of 26-01-1956 was not altered by the company---Employee remained in service upto 25-01-2016 and he was not forced by the employer to work---Employee continued to receive salary from the employer company till 25-01-2016---Employer company, in ciircumstances, was to decide whether it intended to recover amount from the employee for the disputed period of service or not---Constitutional petition by employee against order of National Industrial Relations Commission whereby employee was directed to return entire amount of salary from the employer was dismissed.

Professor Dr. Muhammad Salam Baloch v. Government of Balochistan and others 2014 SCMR 1723 ref.

Karachi Metropolitan Corporation v. Rehmat Masih and others 2003 PLC 16; Khawaja Naseeruddin v. Chairman, PNSC, Karachi and others 2004 PLC 453 and Muhammad Bashir Sulehria v. M.C.L. through Administrator, District City Government, Lahore 2005 PLC 114 distinguished.

Shahid Ahmed v. Oil and Gas Development Company Ltd. and others 2015 PLC (C.S.) 267 and Engineer in Chief Branch and another v. Jalaluddin PLD 1992 SC 207 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Disputed questions of facts could not be entertained in constitutional jurisdiction of High Court.

Ch. Muhammad Ashraf for Petitioner.

Muhammad Aslam Butt, DAG for Respondent No.1.

Farmanullah Khan for Respondent No.2.

2018 P L C 232

[Sindh High Court]

Before Muhammad Shafi Siddiqui, J

NATIONAL REFINERY LTD.

Versus

Mst. FARIDA BEGUM and others

C.Ps. Nos. S-149 and 150 of 2013, decided on 20th December, 2017

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

----S. 10-B---Civil Procedure Code (V of 1908), O.I, R.10---Claim for group insurance money---Impleadment/deletion of a party---Interim/ interlocutory order---Scope---Petition for impleadment of security company was moved which was accepted by the Commissioner for Workmen's Compensation---Security company filed application for setting aside the said order but same was dismissed---Commissioner thereafter set aside the said order wherein security company was impleaded as party and employer was deleted from the main application---Validity---Employer had been deleted from the main application and declaration was made to the effect that it was not the employer who was responsible to pay the insurance amount---Commissioner had transgressed its authority and jurisdiction---Commissioner had exercised jurisdiction not vested in him by scoring off the employer from the pleading as such determination was yet to be made in trial---Scoring off employer from trial before the trial was an act exercised with material irregularity---Presiding Officer had held security company responsible for payment of insurance amount---Commissioner under the law had powers and jurisdiction to pass a correct order in accordance with law and not in derogation of the mandate of law and procedure---Petition which was filed to implead a party did not even call for non-impleading of employer who was otherwise contesting the application---Presiding Officer had no jurisdiction to summarily delete or non-implead the company for whose alleged benefit security staff was deployed---Impugned order was an interim/interlocutory order which might be assailed with the final order---Order to the extent of deleting the petitioner was revised in circumstance---Question as to who was responsible for payment of claim was yet to be determined and decided---Constitutional petition was dismissed in circumstances.

Fauji Fertilizer Company Ltd. v. National Industrial Relations Commission 2013 SCMR 1253 and Ghulam Yasin v. District Judge 2002 YLR 1580 rel.

(b) Administration of justice---

----Wrong provision of law could not oust any party from availing remedy available under the law.

Jawed Asghar for Petitioner

Muhammad Nishat Warsi for Respondent No.1

Shahid Iqbal Rana for Respondent No.2

Nemo for Respondents Nos.3 and 4

2018 P L C 287

[Sindh High Court]

Before Irfan Saadat Khan and Adnan-ul-Karim Memon, JJ

M/s. UNITED BANK LIMITED through Executive Officers

Versus

MUHAMMAD AFZAL SOLANGI and 6 others

C.P. No.D-3542 of 2015, decided on 5th April, 2018.

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

----Ss. 2(xxxiii), 33 & 58---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.15---Termination of service---Grievance petition---Status of workman, determination of---Employee, was appointed in the Bank as "Universal Teller"---Services of the employee, were terminated after holding inquiry on commission of irregularities/misappropriation in the Bank---National Industrial Relations Commission (NIRC), vide ex parte order, set aside said termination by declaring the same to be illegal and unlawful---Appeal filed by the employer Bank, against the judgment of Single Bench of NIRC, was dismissed by Full Bench of NIRC in limine being barred by time---Claim of the employer Bank was that as the employee did not fall within the category of a "workman", his grievance petition and appeal before Single Bench of NIRC were not maintainable---Validity---No evidence was produced by the employer Bank to the effect that employee had supervisory authority, or that he was assigned the duty of some administrative and managerial work or he was having the power to hire and fire---No material had been produced to substantiate that employee being not a "workman" did not have the authority under the law to file a representation/appeal before NIRC---Claim made by the petitioner, on that aspect, was found to be misconceived and was rejected---Petitioner, had failed to point out any legal flaw in the order passed by the Single Bench of NIRC to substantiate his claim that same was a void order---Decision of the Single Bench, clearly revealed that it had discussed each and every aspect of the case in a thorough manner by giving the decision on the merits as well as legal objections raised before it and thereafter by discussing each and every point, and allowed the appeal by dilating upon all the issues involved in the matter---Impugned order, was not void order, since every aspect of the case had thoroughly been discussed through the exhaustive order passed by the Single Bench, and it was the petitioner Bank who did not appear before the Single Bench to substantiate it claim and to make effective representation---Single Bench of NIRC had rightly decided the case against the petitioner, which was based on merits on the relevant law---Constitutional petition, by petitioner Bank being wholly misconceived; was dismissed, in circumstances.

Fazli Kareem v. Secretary State and Frontier Regions Division Islamabad and others 2015 SCMR 795; Utility Stores Corporation of Pakistan Limited v. Punjab Labour Appellate Tribunal and others PLD 1987 SC 447; Moulana Ata-ur-Rehman v. Al-Hajj Sardar Umar Farooq and others PLD 2008 SC 663; Zila Council Lahore through its Chairman v. Rehm Dil Khan 2002 YLR 2277; Allah Yar v. G.M. Railway H.Q. Lahore and others 2001 SCMR 526; Crescent Sugar Mills and Distillery Limited Faisalabad v. CBR Islamabad and others PLD 1982 Lah. 1; Azizullah Khan and others v. Arshad Hussain and others PLD 1975 Lah. 879 and Muhammad Sualeh and another v. Messrs United Garments and Fodder Agencies PLD 1964 SC 97 distinguished.

Messrs Blue Star Spinning Mills Ltd. v. Collector of Sales Tax and others 2013 SCMR 587 ref.

(b) Limitation Act (IX of 1908)---

----Ss. 3 & 5---Limitation---Delay, condonation of---Delay of each day had to be satisfactorily explained, as after the expiry of limitation period, a vested right was created in favour of the other party; which could not be easily brushed aside as the law always helped the vigilant and not the indolent.

Muhammad Din v. Muhammad Saleem 1979 SCMR 172; Commissioner of Income Tax v. Rais Pir Ahmad Khan 1981 SCMR 37; Zahoor Elahi v. Fazal-ur-Rehman 1969 SCMR 274; Ali Muhammad through legal heirs and others v. Chief Settlement Commissioner and others 2001 SCMR 1822 and Gen. (R) Parvez Musharraf v. Nadeem Ahmed (Advocate) and another PLD 2014 SC 585 ref.

Tariq Mehmood Mughal along with Muhammad Ameen and Syed Zameer Danish for Petitioners.

Syed Shoa-un-Nabi for Respondent No.1.

Shaikh Liaquat Hussain, Assistant Attorney-General for Pakistan for Respondents Nos.2 and 3.

2018 P L C 310

[Sindh High Court (Hyderabad Bench)]

Before Agha Faisal, J

M/S UNIQUE SPINNING MILLS (PVT.) LTD.

Versus

COMMISSIONER WORKMEN'S COMPENSATION and 3 others

Constitution Petition No.S-738 and M.A. No.10349 of 2014, decided on 20th February, 2018.

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

----Ss. 3 & 30---Payment of compensation---Appeal---Limitation---Condonation of delay---Application filed by the workman for payment of compensation was allowed---Employer-company instead of moving appeal had filed constitutional petition before High Court---Contention of employer-company was that Managing Director had gone abroad and there was no guidance with regard to the proper forum---Validity---Presence of Managing Director of employer-company in the country or otherwise could not a cogent ground for bypassing statutory provision of appeal---Objection with regard to jurisdiction could in fact be agitated before the relevant appellate forum---Appellate authority could decide whether impugned order was void---High Court could not be approached to assume jurisdiction on account of the ground sourged---Ignorance of law was no defence---Appeal could be filed against the impugned order within sixty days from the date of said order---Employer company had failed to do so---Present constitutional petition was moved after four months of the impugned order---Appellate Court had power to condone any delay in filing of appeal if the same was satisfied that cogent ground existed for the grant of such relief---Constitutional petition being not maintainable was dismissed in circumstances.

Town Committee, Gakhar Mandi v. Authority under the Payment of Wages Act Gujranwala and 57 others PLD 2002 SC 452 and Farzand Raza Naqvi and 5 others v. Muhammad Din through Legal Heirs and others 2004 SCMR 400 ref.

Syed Match Company Limited through Managing Director v. Authority Under Payment of Wages Act and others 2003 PLC 395 and Nawab Ahmed Khanzada v. Authority Under Payment of Wages Act, 1936 and Commissioner Workmen's Compensation for Hyderabad and 2 others 2013 PLC 402 rel.

Muhammad Asif Arain for Petitioner.

2018 P L C 48

[Balochistan Labour Appellate Tribunal]

Before Zahoor Ahmed Mengal, Member

PWD EMPLOYEES UNION (CBA) through President

Versus

DIRECTOR LABOUR WELFARE/REGISTRAR, TRADE UNION, QUETTA and another

Labour Appeal No.5 of 2017, decided on 25th August, 2017.

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

----Ss. 12, 50, 52 & 54---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Cancellation of registration of Trade Union with similar name of a registered union---Labour Court rejected stay application filed with grievance petition by the President of Collective Bargaining Agent--- Grant of temporary injunction--- Principles---Appellant/ President Collective Bargaining Agent contended that there existed pre-requisite ingredients for granting stay application--- Respondent contended that matter of true representation of workers could be resolved through evidence, so Labour Court had rightly refused stay application---Validity---Appellant had challenged the registration of the respondent Union on the ground that Registrar Trade Union had wrongly registered the Union of the respondent on the basis of bogus list of workers and respondent was not the real representative of workers---Assertion of the appellant could not be said to be true without evidence---Deep appreciation of evidence/record was not necessary to decide application for interim injunction but only tentative assessment was required to ascertain whether ingredients i.e. prima facie case, balance of convenience and irreparable loss was there---Appellant has failed to prove the necessary ingredients to get injunctive order in their favour---Labour Court had rightly assessed the material submitted by the parties and had come to right conclusion---No illegality or infirmity having been noticed in the impugned order, Labour Appellate Tribunal upheld the same and appeal was dismissed accordingly.

Shahid Javed for Appellant.

Abdul Zahir Kakar for Respondent No.2.

Muhammad Khan, Law Officer of Respondent No.1.

2018 P L C 63

[Balochistan Labour Appellate Tribunal]

Before Zahoor Ahmed Mengal, Member

The MANAGING DIRECTOR, UTILITY STORE CORPORATION and 6 others

Versus

MUDDASIR SHAHZAD and 230 others

L.A. No.13 of 2015, decided on 17th August, 2017.

Industrial Relations Ordinance (XCI of 2002)---

----S. 46---Balochistan Industrial Relations Act (XIV of 2010), S.41---Trans-provincial establishment---Forum of adjudication, question of---Corporation (employer) contended that Labour Court had wrongly entertained the grievance petition of the employee as only the National Industrial Relations Commission had jurisdiction to adjudicate the same---Validity---Admittedly, the Corporation had various branches all over the country which had also been declared by the High Court as trans-provincial establishment; in such circumstances, there was no need to go in to the merits of the case---Labour Appellate Tribunal held that Labour Court as well as Labour Appellate Tribunal had no jurisdiction to adjudicate upon the matter for employer being a trans-provincial establishment---Judgment of Labour Court being coram non judice was set aside with direction to the Labour Court to return the grievance application of the employee for filing the same before proper forum.

2018 P L C 186

[Balochistan Labour Appellate Tribunal]

Before Zahoor Ahmed Mengal, Member

The BOARD OF DIRECTORS through Chairman, Secretary Industry and another

Versus

LASBELLA INDUSTRIAL ESTATE DEVELOPMENT AUTHORITY through President

Labour Appeal No.23 of 2017, decided on 7th March, 2018.

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

----S. 41(6)---Industrial Relations Act (X of 2012), S.87---Grievance petition---Execution of judgment passed by the National Industrial Relations Commission through Labour Court---Scope---Execution petition was moved before National Industrial Relations Commission but same was returned due to want of jurisdiction---Applicant filed another execution petition before Labour Court for execution of order passed by the National Industrial Relations Commission which was accepted---Contention of employer was that Labour Court had no jurisdiction to implement the order passed by the other forum---Validity---Matter was initially entertained by the National Industrial Relations Commission and final judgment was passed by the said forum---Section 87 of Industrial Relations Act, 2012 contained the National Industrial Relations Commission to deal with the Federal and trans-provincial matters---Matter being provincial subject, National Industrial Relations Commission lost its jurisdiction---Labour Court had passed the impugned order in accordance with law---No illegality had been committed by the Court below---Appeal was dismissed in circumstances.

2015 PLC 1 rel.

Aslam Jamali, Additional Advocate General for Appellant.

Syed Zareef Shah for Respondent.

2018 P L C 205

[Balochistan Labour Appellate Tribunal]

Before Zahoor Ahmed Mengal, Member

IRRIGATION LABOUR UNION BALOCHISTAN Through President

Versus

BALOCHISTAN IRRIGATION EMPLOYEES UNION through President and another

Labour Appeal No.6 of 2017, decided on 29th August, 2017.

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

----Ss. 6, 13 & 55---Registration of third trade union in presence of two trade unions---Pre-requisites---Labour Court had cancelled the registration certificate of third trade union as were already existing---Appellant/third trade union contended that Labour Court had not given opportunity to lead the evidence---Office bearers of two trade unions contended that registration certificate was issued in connivance with the Registrar of Trade Unions---Validity---Record revealed that appellant had applied for registration of third union as there already existed two registered unions---Section 6(2)(b) of Balochistan Industrial Relations Act, 2010 stipulated that when there were two or more registered unions in the establishment or group of establishments or industry with which the trade union was connected then one fifth membership of the total number of workmen employed in such establishment, group of establishments or industry for third union was mandatory---Appellant failed to fulfill the numeric strength required for the registration of union---Inquiry conducted by Research Officer was also in favour of the stance of respondents---Contention of appellant as well as the act Registrar of Trade Unions had no support from the record, therefore, in presence of clear law there was no need of further inquiry or leading of any evidence---Registrar of Trade Unions had already cancelled the registration of appellant soon after announcement of Labour Court's judgment---Labour Court had rightly reached to the conclusion that appellant was wrongly registered by the Registrar against the clear directions of law.

Shahid Javed for Appellant.

Abdul Zahir Kakar for Respondents Nos.1 and 2.

Muhammad Khan, Law Officer of Respondent No.3.

2018 P L C 228

[Balochistan Labour Appellate Tribunal]

Before Zahoor Ahmed Mengal, Member

PRINCIPAL, HELPER PUBLIC SCHOOL/COLLEGE, QUETTA and another

Versus

Moulvi SANZAR SAEED

Labour Appeal No.12 of 2017, decided on 24th August, 2017.

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

----S. 41---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), Preamble---Industrial Relations Ordinance (XXIII of 1969), S.25-A---Constitution of Pakistan, Arts.4 & 10-A---Termination of service---Labour Court reinstated the service of employee, a teacher---Question was whether educational institution was an industry---No opportunity of hearing to the employee---Effect---Educational Institution contended that teacher was neither a workman nor the educational institution was an industry---Teacher contended that the Principal of the Institution terminated his service out of his personal grudge without holding proper inquiry---Validity---Educational Institution had not conducted any inquiry nor given any opportunity of hearing to the teacher, which was a violation of due process of law---Without affording any opportunity of defence to an employee amounted to unfair and unjust act and against the norms of justice, which was against the mandate of Arts.4 & 10-A of the Constitution---Teacher was served upon two successive notices but no reasonable/specific time was given for reply of the same, therefore, termination order was neither reasonable nor legal act on behalf of the institution---Educational institution was being run by an Association and was receiving fee from the students---Nothing was brought on record to prove that Institution had engaged less than 20 workers and admittedly it was a unit of joint stock company---Even if it was held that educational institution was not industry, employee would not be barred from enforcing his rights guaranteed under Industrial and Commercial Employment (Standing Order) Ordinance, 1968, by filing petition under S.25-A, Industrial Relations Ordinance, 1969 which entitled the workman to seek relief to enforce his rights guaranteed by any law.

1990 PLC 675; Anjuman Faizul Islam v. Pakistan and others 1988 PLC 937; Mohamamd Manshah v. Ali Industrial Technical Institute 1985 PLC 604; Abdul Wahid v. Messrs Bombay Silk Mills 1998 PLC 221; Security Paper Limited v. The Sindh Labour Appellate Tribunal 1998 PLD (SC) 180 and Ghulam Sarwar v. Principal, Government of Teachers Training College, Khairpur 1982 PLC 771 ref.

Syed Aizaz Hussain Baqri for Appellants.

Abdul Zahir Kakar for Respondent.

2018 P L C 239

[Balochistan Labour Appellate Tribunal]

Before Zahoor Ahmed Mengal, Member

Messrs BALOCHISTAN WHEELS LTD. HUB DISTRICT LASBELLA

Versus

ABDUL WAHID

Labour Appeal No.4 of 2017, decided on 22nd August, 2017.

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

----S. 41---Labour Court disposed off grievance petition of employee with the consent of the parties---Employer later denied such consent---Decree passed with the consent of the parties---Scope---Appeal against consent decree---Maintainability---Labour Court had fixed the matter for announcement of judgment but before the announcement, the representative of employer gave his consent in open Court to pay Rs.20,00,00/- to the employee which offer was accepted by the employee and Labour Court passed the order with consent of the parties---Later, the employer filed a review application before the Labour Court which was dismissed and the same had not been challenged before any forum---Once parties of a matter consented to decide a case in such a manner and, order was passed in accordance with that consent the parties were not entitled to resile from their stance subsequently---No revision or appeal was maintainable against such order---Employer had not succeeded to prove that the representative did not give consent before the Labour Court for the payment therefore, order passed by the Labour Court was not liable to be interfered with by Labour Appellate Tribunal---Impugned order was upheld and appeal being not maintainable was dismissed accordingly.

PLD 1993 SC 418; 1989 SCMR 926 and 1990 CLC 1492 ref.

Usman Lasi for Appellant.

Muhammad Hayat Barech for Respondent.

2018 P L C 43

[Punjab Labour Appellate Tribunal]

Before Justice (R) Ch. Muhammad Tariq, Chairman

UNITED BANK LIMITED through District Manager (Zonal Head) Jhang Saddar

Versus

MUHAMMAD BAKHSH through L.R.

Revision Petition No.FD-483 of 2017, decided on 9th October, 2017.

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

----Ss. 2(b) (as amended by Punjab Payment of Wages (Amendment) Act, (VII of 2014), & S.15---Payment of Wages Act---Claim for recovery of pension---Jurisdiction of Authority under the Payment of Wages Act, 1936 regarding pension---Pension as wages---Scope---Authority as well as Labour Court accepted the claim of the employees---Employer/Bank contended that as pension was not part of wages so the same could not be disputed---Validity---Right of pension depended upon statutory provision, therefore, the existence of such right was determinable primarily from the term of the statute under which right or privilege was granted ---"Pension" was included in the definition of "wages" in the definition clause of Payment of Wages Act therefore, Authority under the Payment of Wages Act, 1936 had rightly exercised the jurisdiction and accepted the claims of the employees---No illegality or infirmity having been noticed, revision petition was dismissed accordingly.

1991 SCMR 1041 ref.

1987 PLC 633 distinguished.

Mian Muhammad Saleem and Salman Riaz Ch. for Petitioner.

2018 P L C 242

[Punjab Labour Appellate Tribunal]

Before Justice (R) Syed Iftikhar Hussain Shah, Chairman

EXECUTIVE ENGINEER SHUJABAD CANAL DIVISION, MULTAN

Versus

MUHAMMAD ARIF

Labour Appeal No.473 of 2015, decided on 1st November, 2017.

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

----S. 33---Limitation Act (IX of 1908), S.3---Grievance petition---Reinstatement---Limitation---Non-raising of objection about limitation by the employer before Trial Court---Duty of Court---Scope---Labour Court accepted the grievance petition of employee---Employee contended that employer had raised objection regarding limitation for the first time before the Appellate Court---Employer contended that grievance petition was time-barred which legal defect was to be observed by the Trial Court itself---Validity---Employee had to wait for 15 days for the result of grievance notice and its reply, thereafter he was supposed to make grievance petition within 60 days---Employee, in the present case, moved Labour Court beyond the stipulated period of 60 days, therefore, the same was barred by limitation---As valuable right had accrued to the other side, Labour Court was supposed to look into the point of limitation---Labour Court had wrongly accepted the grievance petition of the employee---Appellate Tribunal set aside the impugned order---Appeal was allowed accordingly.

Almas Ahmad Fiaz v. The Secretary, Government of the Punjab Housing and Physical Planning Development and another 2006 SCMR 783 ref.

Muhammad Ayoub Khan, DDA for Appellant.

2018 P L C 258

[Punjab Labour Appellate Tribunal]

Before Justice Ch. Muhammad Tariq, Chairman

REHMAT ALI

Versus

MANAGER, HABIB BANK LIMITED and others

Revision Petition No.LHR-395 of 2017, decided on 10th October, 2017.

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

----S. 15---Retrenchment policy---Ex-gratia amount---Scope---Employee had not challenged the retrenchment policy---Effect---Labour Court partially allowed claim of the employee and did not allow ex-gratia amount---Employee contended that Employer/Bank had paid all the dues to the retrenched employees but his dues were withheld---Employer contended that ex-gratia amount did not fall within the definition of "Wages"---Validity---At the time of retrenchment the employee was paid one month salary and notice pay and the employee did not challenge the retrenchment policy/order of the Bank, therefore, presumption would be that order of retrenchment was accepted by the employee---Employee filed his claim after 3 years of his retrenchment---Ex-gratia meant "out of good will" a sum of money paid when there was no obligation or liability to pay---Ex-gratia payment was made only as a result of settlement which did not figure in the present case, therefore, the employee was not entitled to claim ex-gratia payment---Employee could not adduce convincing evidence regarding his claim---No illegality or infirmity having been noticed in the impugned order passed by the Labour Court, revision petition was dismissed.

Z.A. Hashmi and Muhammad Qaiser Salim Niaz for Petitioner.

2018 P L C 278

[Punjab Labour Appellate Tribunal]

Before Justice Ch. Muhammad Tariq, Chairman

The SECRETARY GOVERNMENT OF THE PUNJAB, IRRIGATION DEPARTMENT and others

Versus

KHALID MAHMOOD BUTT and 118 others

Labour Appeal No.GA-560 of 2012, decided on 13th June, 2017.

Industrial Relations Ordinance (XCI of 2002)---

----S. 46---Punjab Industrial Relations Act (XIX of 2010), S.47---Claim for "Big City Allowance"---Denial of claim---Grievance petition---Appeal to Appellate Tribunal---Permanent employees of the Department performing duties at a Camp Office claimed that they be granted "Big City Allowance"---Department having refused to the grant same, the employees filed grievance petition and Labour Court after recording oral as well as documentary evidence of the parties, found the employees entitled to all the facilities of Head Office including "Big City Allowance"---Validity---Government on the recommendation of Finance Division issued a notification and declared nine cities of the Province as "Big Cities"---According to notification, the employees of said big cities were held entitled to receive House Rent Allowance at 45% of the initial pay along with conveyance allowance---"Big City Allowance" was payable to the employees of only those cities which had been declared big cities---Place where the employees were working, did not fall within the definition of "big cities" because it was a remote area situated far away from 'a Big City'---Employees, who had been receiving "Big City Allowance", if transferred at a place outside big city, would not be entitled to receive "Big City Allowance" for the period they remained out---Similarly the employees of a city, which did not fall in the definition of Big City, could not claim "Big City Allowance" on the ground that an employee who had been receiving "Big City Allowance" had been transferred to a city which was not included in the list of Big Cities---Payment of "Big City Allowance", did not fall amongst the disputes known as industrial disputes---Appellate Tribunal or the Labour Court lacked jurisdiction to award Big City Allowance to a worker performing his duties in an industrial or commercial establishment---Said worker should approach appropriate forum to achieve his claim---Impugned judgment passed by Labour Court was set aside---Appeal was accepted and grievance petition filed by the employees, was rejected in circumstances.

Pakistan Railway v. Muhammad Ashraf 2003 PLC (C.S.) 1185 and Province of Punjab v. Punjab Labour Appellate Tribunal CPLA No.1413 of 2003 ref.

Humayun Akhtar Sahi, ADA for Appellants.

2018 P L C 51

[Sindh Labour Appellate Tribunal]

Before Justice (R) Ali Muhammad Baloch, Member

HAKIM ALI ABRO

Versus

PAKISTAN STEEL MILLS CORPORATION through Chairman and another

Appeal No.KAR-136 of 2012, decided on 13th October, 2014.

Industrial Relations Act (IV of 2008) [As revived by Industrial Relations (Revival and Amendment) Act (XV of 2010)]---

----Ss. 41, 54 & 55---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.15(3)(e)---Dismissal from service on charge of absence without any intimation or prior approval---Grievance petition---Employee, allegedly was kidnapped by the gang of bandits, and after his release, he contacted the employers, and he received a copy of his dismissal from service with an ex parte proceedings without affording any opportunity to defend the allegations---Employee filed grievance application---One person filed affidavit in evidence on behalf of the employers, without specifying his designation, power-of-attorney or authority on behalf of the signatory of the reply statement---Said person was examined by the counsel for employee---Labour Court dismissed grievance application being time barred---Validity---Labour Court had misconstrued/misdirected itself while dismissing the grievance application, as it failed to appreciate the evidence on record, particularly the fact that signatory of the reply statement of the employers, had not been produced; and the person, who had filed affidavit in evidence on behalf of the employers, was not the signatory of such reply statement---Employee, had filed grievance application only six days after receiving copy of dismissal order---Labour Court had failed to apply its independent mind while passing impugned order against the employee---Allowing appeal, order of the Labour Court was set aside with direction to the employers to reinstate the employee in service with fifty percent (50%) back benefits within thirty days, in circumstances.

[Case-law referred].

Ch. Muhammad Latif Saghar for Appellant.

Moin Azhar Siddiqui and Shahzad Rahim for Respondents.

2018 P L C 66

[Sindh Labour Appellate Tribunal]

Before Justice (R) Ali Sain Dino Metlo, Member/Chairman

TARIQ NAZIR and others

Versus

PRESIDING OFFICER 4TH SINDH LABOUR COURT and others

Appeals Nos.KAR-246 and KAR-223 of 2011, decided on 25th August, 2015.

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

----Ss. 3, 34 & 48---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(i), S.Os.12(3) & 15(3)---Promotion---Refusal to accept by employee---Dismissal from service---Worker, who was working as Senior Mechanical Technician since 1997 and was office bearer of C.B.A. Union in the establishment, was dismissed from service on the charge of not accepting promotion to Management Cadre as Sub-Engineer (Planning)---Contention of the employer, was that refusal to accept promotion was gross misconduct on the part of worker---Validity---Promotion, was a reward, and not a liability or punishment, which could be enforced or suffered---In absence of any Service Rules or terms and conditions of service contract to the contrary, an employee could not be forced to accept promotion---Promotion would bring change in job description---Contention of the employer that the worker being interested more in trade union activities than his work, and he was not a good worker fit to be retained in service was self-destructive and lent support to the contention of the worker that he was being promoted, only to keep him away from trade union activities---Right to form Union, had been recognized as a fundamental right under Art.17 of the Constitution---Refusing to reinstate the worker, who was trade union activist, would have the retrogressive effect of discouraging trade union activities, and encouraging employer to get rid of trade union activists by foul means---Worker, was not entitled to back benefits, as he had failed to show that he had made any effort to engage himself in any gainful pursuit---Impugned judgment to the extent of reinstatement of the worker, was upheld; while it was set aside to the extent of giving direction for holding fresh/further inquiry---Back benefits, were not awarded to the worker.

[Case-law referred].

(b) Industrial dispute---

----Back benefits---Scope---Back benefits, were awarded not as punishment to the employer for wrongful removing the worker, but to compensate the worker for the loss sustained by him due to his inability to get himself employed in any gainful pursuit---Back benefits, were not automatic on the finding of removal as wrongful---For claiming back benefits, the worker must show that despite all possible efforts on his part, he could not employ himself in any gainful pursuit---Worker could not choose to sit idle for long period and wait for making unearned gain in the shape of back benefits.

Rafiullah for Worker.

Mehmood Abdul Ghani for Management.

2018 P L C 80

[Sindh Labour Appellate Tribunal]

Before Ali Sain Dino Metlo, Member

Mian ABDUL AZIZ

Versus

PRESIDING OFFICER and 2 others

Revision Application No. HYD-17 of 2016, decided on 19th May, 2016.

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

----Ss. 46(2) & 48(5)---Civil Procedure Code (V of 1908), O.I, R.10---Power of Labour Court under Code of Civil Procedure, 1908---Scope---While adjudicating and determining industrial dispute, the Labour Court would be deemed to be a civil court and would have the same powers as were vested in such court under Civil Procedure Code---Order I, R.10, C.P.C. provided that court, at any stage, on or without application add any person as party whose presence before the Court was necessary to adjudicate upon and settle all the questions involved in the dispute---Labour Court had erred in holding that it had no power to add the applicant as party to the proceedings while rejecting his application to add him as party---Order passed by the Labour Court was set aside---Petition was disposed of.

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

----Ss. 43 & 48(5)---Restoration of CBA certificate---Trade Union got itself registered with Registrar of Trade Unions to represent workers employee in establishment---Later on, Trade Union had obtained certificate of CBA for another establishment---Applicant being sole proprietor of other establishment moved application for the cancellation of said CBA certificate---Registrar Trade Unions cancelled the said certificate---Registrar challenged the cancellation of said certificate---Validity---Union of workers could not be registered and CBA certificate could not be issued for an establishment, unless the members of the union were workers of the said establishment---Trade Union had claimed that its members were not workers of the applicant (Establishment) therefore he could not seek restoration of the CBA certificate for his establishment---Application of the Trade Union seeking restoration of CBA certificate for the establishment of the applicant was misconceived and not maintainable---Trade Union had ceased to be CBA and therefore, could not file the application as CBA for the restoration of certificate---Grievance petition filed by the Trade Union with the Labour Court was dismissed being not maintainable---Petition was disposed of accordingly.

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

----Ss. 43 & 48(5)---Restoration of CBA certificate---Jurisdiction of Labour Court---No provision existed in Sindh Industrial Relations Act, 2013 conferring jurisdiction upon a Labour Court to decide matters pertaining to grant, cancellation or restoration of CBA certificate---Such matters were dealt with by the High Court in exercise of its constitutional jurisdiction---Grievance petition filed by the Trade Union before Labour Court was dismissed being not maintainable---Petition was disposed of accordingly.

Rasool Bakhsh I. Siyal for Applicant.

Jamshed Ahmed Faiz for Respondent No.2

2018 P L C 245

[Sindh Labour Appellate Tribunal]

Before Ali Sain Dino Metlo, Member

AHMED HUSSAIN and another

Versus

Messrs MEQSOOD TEXTILE through Notified Manager

Appeal No.KAR-59 of 2017, decided on 15th January, 2018.

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

----Ss. 34 & 48---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.12(3)---Dismissal from service---Grievance application---Appellant workman, had challenged order of Labour Court, dismissing his grievance application for his reinstatement in service with back benefits---Contention of employers was that they having not employed the appellant at any time, question of removing him from service would not arise---Case of the appellant was that employers, as per their practice, had not issued him any document of employment---Employers did not specifically deny their practice of not issuing employment documents to their workers and did not prove or even plead that they issued employment documents to their workers---Appellant's contention about the employers' practice of not issuing employment documents to their workers, had gone unchallenged and un-rebutted---Labour Court had given finding against the appellant mainly because he had failed to produce any document about his employment---When the employers were not issuing employment documents to their workers, it was not possible for the appellant to produce his employment documents---Standing Order 12(3) of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, provided that a worker would not be removed from service, except by an order in writing, explicitly stating reasons for the action taken---Case of the employers was not that they had rightfully removed the appellant from service, but their case was that appellant was not their employee---Employers did not produce record of their employees to show that he was not amongst their employees---Appellant could safely be said to be was permanent worker of the employers and they had removed him from service wrongfully---Relations between the parties were so estranged that the employers were not prepared to acknowledge the appellant as their worker---No useful purpose would be served to impose on unwanted worker upon an unwilling employer---Litigation had taken a long time of three years and it was not believable that the appellant was sitting idle and doing nothing for all those three years; it would be just and proper to award a reasonable compensation to the appellant in lieu of reinstatement in service---Reasonable compensation of Rs.200,000 was awarded to the appellant as full and final payment for severance of his employment relationship with the employers---Employers, were directed to deposit said amount within 60 days for payment to appellant.

Crescent Textile Mills Ltd. v. Abdul Aziz and another 1991 PLC 494; 1997 PLC 13 and Glaxo Laboratories Pakistan Limited v. Pakistan and others PLD 1962 SC 60 ref.

Syed Anayat Hussain Shah Bukhari for Appellant.

Mahmood Hussain for Respondents.

2018 P L C 301

[Sindh Labour Appellate Tribunal]

Before Ali Sain Dino Metlo, Member

MOHAMMAD RAHEEM

Versus

ZUBAIR IMRAN MALIK and 2 others

Appeal No.KAR-7 of 2017, decided on 16th January, 2018, Sindh Industrial Relations Act (XXIX of 2013)---

----Ss. 34, 47(3) & 48(5)---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.15---Dismissal from service---Re-instatement---Grievance application---Appellant, claiming to be a permanent workman, filed grievance application in the Labour Court, for his re-instatement in service with back benefits---Representative of the workman filed statement for disposal of the complaint as not pressed and on the basis of such statement, Labour Court dismissed the complaint as not pressed---Effect---Complaint of workman was dismissed for non-prosecution and not as withdrawn---Workman filed fresh complaint and Labour Court found that after disposal of first complaint, appellant could not file fresh complaint as same amounted to double jeopardy---Validity---Disposal of earlier complaint of the workman, due to his absence and lack of contract with his representative, could not be treated as trial---Section 48(5) of the Sindh Industrial Relations Act, 2013, did not make any distinction between orders passed by Labour Court in proceedings of civil or criminal nature---Orders of Labour Court were amenable to revisional jurisdiction of the Tribunal, irrespective, whether same were passed in proceedings of civil or criminal nature---Consent order for re-instatement of the appellant in service without back benefits, having not been acted upon, case was fit for exercise of revisional jurisdiction by the Appellate Tribunal---Appeal was converted into revision and the impugned order, which was not sustainable in law, was set aside---Case was remanded to Labour Court for disposal according to law.

Sherin Bacha and others v. Namoos Iqbal and 3 others PLD 1993 SC 247; Jahangir Malik v. The State 2005 YLR 3258; Ibrar Hussain Shah v. Syed Waris Shah 2015 PCr.LJ 784; M. Maroof v. Muhammad Akram and 2 others 1983 PLC 411; Jamal v. Mst. Taj Bakht and another 1981 PLC 378 and Norwich Union Fire Insurance Society Limited v. Muhammad Javed Iqbal and another 1986 SCMR 1071 ref.

Syed Anayat Hussain Shah Bukhari for Appellant.

M. Rafiq Malik for Respondents.

2018 P L C 253

[Labour Appellate Tribunal (AJ&K)]

Before M. Tabassum Aftab Alvi, J

NATIONAL BANK OF PAKISTAN

Versus

GUL REHMAN

Labour Appeal No.1039 of 2011, decided on 30th September, 2015.

Azad Jammu and Kashmir Industrial Relations Ordinance, 1974---

----S. 42---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.15---Charge of embezzlement---Dismissal from service---Re-instatement---Back benefits---Object---Employee who was dismissed from service on account of embezzlement, was re-instated in service by the Labour Court with back benefits---Validity---Employee had failed to state that he was not doing any job after termination of by the employers---Neither any affidavit was sworn nor any evidence was led that during about two decades period employee remained unemployed---Back benefits were to be paid to the employee not as a punishment to the employer for illegal removal, but to compensate the employee for his remaining jobless on account of being illegally removed from service---Employee having not stated about his unemployment during his dismissal period, employer was not obliged to lead any evidence in rebuttal---Impugned decision recorded by Labour Court was modified to the extent that employee would not be entitled to back benefits---Appeal was partly accepted.

General Manager, National Radio Telecommunication Corporation, Haripur, District Abbottabad v. Muhammad Aslam and 2 others 1992 SCMR 2169; Messrs Mughal Works v. Mian Said Khizar and 16 others 2000 PLC 194 and Muhammad Bashir and others v. Chairman, Punjab Labour Appellate Tribunal, Lahore and others 1991 SCMR 2087 ref.

Khalid Bashir Mughal for Appellant.

2018 P L C 1

[Lahore High Court]

Before Shujaat Ali Khan, J

TEHSIL MUNICIPAL OFFICER

Versus

AMJAD HUSSAIN and 2 others

W.Ps. Nos.2667, 2668, 19676, 14637 of 2012, 39166 and 39357 of 2015, decided on 29th December, 2016.

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

----S. 44---Punjab Local Government Ordinance (XIII of 2001), S.54---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(i)---Daily wages employees of Tehsil Municipal Administration---Regularization of service---Grievance petition---Maintainability---Functions of Tehsil Municipal Administration--- Sanitary Workers and Tubewell Operators---Industry--- "Workmen"--- Void order--- Appeal--- Limitation--- Condonation of delay---Grievance petition for regularization of services was accepted concurrently---Validity---Employees being "workmen" were governed by the principle of "master and servant"---Grievance petition was maintainable in circumstances---Functions of Tehsil Municipal Administration were development of schemes, maintenance of sewer, drain and water works which would fall within the category of an "industry" involved in construction work---Sanitary Workers were concerned with sewer work whereas Tubewell Operators dealt with water works and both were "workmen"---When a person performed duties against a permanent post, he assumed the status of a permanent workman on expiry of the period mentioned in various enactments---Posts which were likely to continue without any specification of period were considered permanent posts---Employees serving the department for many years without any qualms with regard to their output, could not be divested to approach the forums created by the legislation for redressal of their grievance---Act of departmental authorities towards non-regularization of services of employees was violative of law---Department (employer) was bound to file appeal before Labour Appellate Tribunal within thirty days and in case of delay was bound to explain each day's delay in filing appeal---Appeal filed by the department being barred by limitation, Labour Appellate Tribunal was justified to dismiss the same as delay without any written request could not be condoned---No preferential treatment could be given to the government functionaries while dealing with the question of limitation---Court could condone delay in filing proceedings on merits---Findings recorded by Courts below were based on cogent reasons---When a party failed to challenge an order within prescribed period of limitation, same could not be set aside merely on the ground that no limitation would run against a void order--- Constitutional petition was dismissed in circumstances.

Case law referred.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Concurrent findings of facts recorded by the Courts could not be upset in constitutional jurisdiction until and unless same were proved to be perverse or result of arbitrariness.

Case law referred.

Dr. Ehsan ul Haque Khan assisted by Muhammad Arif, Legal Advisor TMA (in W.Ps. Nos.39166, 39357 of 2015, 14637 and 2668 of 2012).

Raja Muhammad Kamran Aslam for Petitioner (in W.P. No.19676 of 2012).

Dr. Ehsan ul Haque Khan assisted by Muhammad Arif, Legal Advisor TMA (in W.P. No.19676 of 2012).

Sheraz Faiz Bhatti for Respondent No.3 (in W.P. No.39166 of 2015).

Zafar Iqbal Sial for Respondent No.1 (in W.P. No.2667 of 2012).

2018 P L C 20

[Lahore High Court (Multan Bench)]

Before Muzamil Akhtar Shabir, J

IBRAHIM ABDULLAH/ABDULLAH & SONS through Managing Director

Versus

ABDUL LATIF and 124 others

W.Ps. Nos.1156, 1157 and 1158 of 2017, decided on 27th January, 2017.

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

----Ss. 15(2), 16 & 17---Punjab Industrial Relations Act (XIX of 2010), S.47(5)---Constitution of Pakistan, Arts.199, 4 & 270-AA---Claim for payment of wages/salaries---Authority under Payment of Wages Act, 1936 had allowed the claims of the employees on the basis of evidence available on record---Employer challenged said orders in appeal before Labour Court, which were dismissed for non-compliance of the condition for obtaining certificate showing deposit of payable amount---Proviso to S.17(1)(a) of Payment of Wages Act, 1936, had provided that appeal would not lie without certificate of deposit of payable amount---Where any provision was couched in negative language and required an act to be done in a particular manner, same should be done in that manner, otherwise such act would be illegal---Employer had to obtain certificate of the Authority to the effect that the employer had deposited the amount payable under the order against which the appeals were filed---Such certificate was not placed on record of the Labour Court---Legislature had provided said beneficial provision to safeguard the rights of the workmen---Intention of the legislature was that in case the Labour Court would dismiss the appeal filed by the employer, the wages to which the workers were held entitled, be made available with the authority for payment to them---Compliance of said provision by the party filing appeal was mandatory and its non-compliance would debar the further hearing of the appeal---Contention of the employer was that after Eighteenth Amendment of the Constitution, the labour laws having become provincial subject, the Payment of Wages Act, 1936 was no longer applicable and Labour Court could not have dismissed the appeal by placing reliance on proviso of S.17(1)(a) of the Payment of Wages Act, 1936---Validity---Eighteenth Constitutional Amendment, did not provide that the existing laws relating to the subject, earlier falling under the Concurrent Legislative List that fell within the domain of Provincial Legislation, would cease to hold the field---Said laws were saved under Art.270-AA of the Constitution---Provincial Legislature could alter, repeal or amend those laws, if need be---Provincial legislature had retained the proviso to S.17(1)(a) of the Payment of Wages Act, 1936, and same would continue to hold the field---Labour Court as well as Labour Appellate Tribunal had rightly dismissed the appeals filed by the employer for non-observance of proviso to S.17(1)(a) of Payment of Wages Act, 1936---No illegality or perversity had been pointed out in the orders passed by Labour Court and Labour Appellate Tribunal, whereby those orders could be declared to be without lawful authority and of no legal effect---Constitutional petitions being devoid of merits, were dismissed, in circumstances.

Arag Industries Ltd. v. Payment of Wages Act Authority and others 1982 PLC 567; Tehsil Nazim TMA, Okara v. Abbas Ali and 2 others 2010 SCMR 1437 and Bank-Alfalah Limited v. Syed Zulfiqar Ali Rizvi and 3 others 2016 CLD 618 ref.

Chaudhry Shujat Hussain v. The State 1995 SCMR 1249; Allied Bank of Pakistan Ltd v. Khalid Farooq 1991 SCMR 599; Shahida Bibi v. Habib Bank Limited PLD 2016 SC 995=2016 CLD 2025 and Zia ur Rehman v. Syed Ahmad Hussain 2014 SCMR 1015 rel.

Nadeem Parwaz Chaudhry and Irfan Haider Shamsi for Petitioners.

2018 P L C 28

[Lahore]

Before Shujaat Ali Khan, J

Messrs ACTIVE APPARELS INTERNATIONAL (PVT.) LTD. through Manager

Versus

ZAHIDA MANZOOR and 2 others

W.P. No.18492 of 2016, decided on 20th September, 2016.

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

----S. 2(xxxi)---'Workman'---Determination of---For determining the question as to whether any body fell within the definition of 'workman' or not, the duties being performed by said person, were of vital importance---Witness for the employer in his cross-examination had stated that the employee in question, neither had authority to hire and fire; to allow leave, nor to charge-sheet any body---Said employee was Quality Control Supervisor, performing duties of manual nature, as checking of stitched garments---When the employee was answerable to her superiors in respect of the work being undertaken by her, she could not be dubbed as executive supervisor in that regard---Findings of the fora below that employee was a "Workman" were unexceptionable.

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

----S.O. 15(1)(4)---Disciplinary proceedings against a "workman"---Issuing of specific notice to employee regarding the allegations levelled against him/her---Necessity---Employer, was bound to give specific notice to employee, regarding the allegations levelled against her, by having not done so, the employer had violated the well acknowledged principle that an act to be done in a particular way could not be allowed to be deviated in any way---Employer was bound to hold independent inquiry, which was not conducted---In the present case, the employer, illegally construed the proceedings conducted on the letter of explanation as those were undertaken pursuant to a formal charge sheet---Non-production of alleged two complaints during the course of evidence, cast serious doubt against their authenticity for the reason that when the documents forming basis of the dispute were not brought on record, the subsequent superstructure raised on the basis thereof, could not be given legal blanket.

National Bank of Pakistan and another v. Anwar Shah and others 2015 SCMR 434; Administrator Zila Council, Sahiwal v. Arif Hussain and others 2011 SCMR 1082; Muslim Commercial Bank Ltd. and others v. Muhammad Shahid Mumtaz and another 2009 PLC 281; Dilshad Khan Lodhi v. Allied Bank of Pakistan and others 2008 SCMR 1530; Shahi Bottlers (Pvt.) Ltd. v. Punjab Labour Appellate Tribunal, Lahore and others 1993 SCMR 1370; Rana Mukhtar Ahmad v. Punjab Labour Appellate Tribunal and 2 others PLD 1992 SC 118; Muhammad Bashir and others v. Chairman, Punjab Labour Appellate Tribunal, Lahore and others 1991 SCMR 2087; Faiz Ahmad and 23 others v. Ahmad Khan and 7 others PLD 2013 Lah. 234; Dilshad Khan Lodhi v. Allied Bank of Pakistan through President and 3 others 2005 PLC 130 and Messrs Crescent Pak Industries Ltd. v. Sindh Labour Appellate Tribunal Pakistan Secretariat, Karachi and another 2000 PLC 274 distinguished.

Muhammad Anwar and others v. Mst. Ilyas Begum and others PLD 2013 SC 255 rel.

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

----S.O. 15---Reinstatement of employee with back benefits---Back benefits, claim for---Main ground pressed into service by both the fora below, while directing reinstatement of employee with back benefits was that employee was not issued formal charge sheet in terms of S.O.15 of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, she was deprived of her right to properly defend herself---Said ground was incorporated by the employee in the clause; employer, therefore, could not claim that relief could not be granted to the employee beyond the prayer clause---When the employee categorically denied during her statement before the Labour Court, that she did not remain gainfully employed elsewhere during the interregnum period, the onus shifted upon the employer to prove otherwise, but that having not been done, the employer did not discharge his legal obligation---No exception could be taken against the findings of the fora below on the point of back benefits, merely for the reason that claim for back benefits was not taken by the employee in the body of grievance petition, rather she assented so in the prayer clause.

National Bank of Pakistan and another v. Anwar Shah and others 2015 SCMR 434; Administrator Zila Council, Sahiwal v. Arif Hussain and others 2011 SCMR 1082; Muslim Commercial Bank Ltd. and others v. Muhammad Shahid Mumtaz and another 2009 PLC 281; Dilshad Khan Lodhi v. Allied Bank of Pakistan and others 2008 SCMR 1530; Shahi Bottlers (Pvt.) Ltd. v. Punjab Labour Appellate Tribunal, Lahore and others 1993 SCMR 1370; Rana Mukhtar Ahmad v. Punjab Labour Appellate Tribunal and 2 others PLD 1992 SC 118; Muhammad Bashir and others v. Chairman, Punjab Labour Appellate Tribunal, Lahore and others 1991 SCMR 2087; Faiz Ahmad and 23 others v. Ahmad Khan and 7 others PLD 2013 Lah. 234; Dilshad Khan Lodhi v. Allied Bank of Pakistan through President and 3 others 2005 PLC 130 and Messrs Crescent Pak Industries Ltd. v. Sindh Labour Appellate Tribunal Pakistan Secretariat, Karachi and another 2000 PLC 274 distinguished.

(d) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction---Exercise of---Concurrent findings recorded by the courts below, could not be upset in constitutional jurisdiction, until and unless they were proved to be perverse or result of arbitrariness.

Farhat Jabeen v. Muhammad Safdar and others 2011 SCMR 1073 rel.

Mian Muhammad Zulqarnan for Petitioner.

2018 P L C 37

[Lahore High Court (Rawalpindi Bench)]

Before Muhammad Farrukh Irfan Khan, J

PHONIX SECURITY SERVICE (PVT.) LTD.

Versus

MUHAMMAD ABDULLAH and others

Writ Petition No.2803 of 2014, decided on 17th October, 2017.

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

----Ss. 15 & 3---Factories Act (XXV of 1934), S.49(A)(B)(2)---Constitution of Pakistan, Art. 199---Constitutional petition---Overtime duty by the worker---Unavailed annual leave---Payment of wages---Scope---Contention of worker was that he was entitled for amount of twenty three annual leave---Competent Authority allowed the amount of Rs.9,52,036/- and Labour Court reduced the said amount to Rs.7,90,000/- but Labour Appellate Tribunal curtailed unavailed annual leave to fourteen days for the purpose of compensation-Validity---Employer had not challenged the order of Authority which was the root cause of the lis---If constitutional petition of employer was allowed even then it would not serve any purpose as order of the Authority would remain in field---Employee worked for overtime in the company---Courts below were justified in awarding overtime to the worker---Employer had failed to bring on record any material that worker availed the alleged annual leave---Section 49-B(2) of Factories Act, 1934 was applicable in the cases where a worker was offered holidays as per agreement with the employer and employee did not avail the same---Where employer refused to grant annual leave to a worker due to contingency then said provision of law could not be invoked to deprive a worker by curtailing his unavailed holidays to fourteen per annum into the subsequent year---Nothing was on record that worker was offered annual leave as per his entitlement and he failed to avail the same---Employer did not allow the worker to avail such leave---Labour Appellate Tribunal was not justified in curtailing annual leave of the worker---Worker was entitled for twenty three days annual leave and he could not be deprived of his right by applying provision of S.49-B (2) of Factories Act, 1934---Provisions of S.49-B(2) of Factories Act, 1934 could be made applicable where there was no rule for grant of annual leave beyond the minimum fourteen days provided by the statute and worker was offered but failed to avail his annual leave/holidays---Where employer had Rules for grant of annual leave of more than fourteen days then same had to be given overriding effect---Order passed by the Labour Appellate Tribunal was contrary to the evidence available on record---Salary of worker was fixed at Rs.7400/- but he was paid Rs.6564/- per month which was an attempt to deprive the worker of his agreed wages being his lawful right---Worker was neither paid gratuity, compensation for working Sundays and gazetted holidays despite his entitlement and same could not be treated as delayed wages---Compensation could be awarded up to ten times of deducted amount---Impugned judgment passed by the Labour Appellate Tribunal was set aside and that of Labour Court restored---Constitutional petition was allowed in circumstances.

Mughal Surgical (Pvt.) Ltd. and others v. Presiding Officer, Punjab Labour Court No.7 and others 2006 SCMR 590 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Petitioner, a company---Constitutional petition filed by General Manager of a company without mentioning his name---Constitutional petition having not been filed by a competent person.

Telecard Limited through Authorized representative v. Pakistan Telecommunication Authority through Chairman 2014 CLD 415 rel.

Umer Hayat for Petitioner.

2018 P L C 56

[Lahore High Court (Rawalpindi Bench)]

Before Mujahid Mustaqeem Ahmed, J

KHALID MEHMOOD

Versus

PUNJAB LABOUR APPELLATE TRIBUNAL, LAHORE and 3 others

Writ Petition No.1236 of 2012, heard on 8th December, 2016.

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

----S. 46---Grievance petition---Bank employee---Allegation of embezzlement of amount---Dismissal from service---Fair trial and due process---Audi alteram partem, principle of---Applicability---Inquiry was conducted and employee was dismissed from service---Grievance petition was allowed by the Labour Court but Appellate Tribunal dismissed the same---Validity---None of the witnesses produced by the department stated with regard to charge but made statement that their earlier statements made before the Audit Officer be treated as final---Such statements of the witnesses were submitted in absence of employee before the Audit Officer---Employee was not afforded any opportunity of cross-examination of the said witnesses but he was cross-examined by the departmental representative---Opposite party should have right to cross-examine the witnesses of other party in the inquiry proceedings to test their veracity---Inquiry proceedings had not been conducted fairly, justly and in accordance with law by the inquiry officer---Neither inquiry report was supplied to the employee nor had been afforded right of hearing by the authority---Dismissal order had been passed in violation of Maxim audi alteram partam-Employee had been condemned unheard---Impugned order of dismissal of employee was not sustainable in law---Every citizen had fundamental right of fair trial and due process for determination of his civil rights and obligations---Every person had right to be treated in accordance with law---Such right in the present case had been trampled, ignored and blatantly refused in a callous manner---Inquiry proceedings and dismissal order were not sustainable in circumstances---Labour Appellate Tribunal had not noticed such glaring and crucial infirmities and illegalities in the inquiry proceedings---Both the Courts below had not legally, justly, rightly and correctly appreciated evidence on record---Impugned order passed by the Labour Appellate Tribunal was declared without lawful authority having no legal effect which was set aside---Inquiry proceedings, inquiry report and order of dismissal from service were set aside leaving the employer-Bank if so opted to proceed afresh on the charges leveled against the employee---Constitutional petition was allowed in circumstances.

[Case-law referred].

(b) Constitution of Pakistan--

----Arts. 4 & 10-A---Fair trial, right of---Every citizen had fundamental right of fair/trial and due process for determination of his civil rights and obligations.

[Case-referred].

Azhar Hameed for Petitioner.

Tariq Mahmood for Respondents.

2018 P L C 113

[Lahore High Court]

Before Muhammad Sajid Mehmood Sethi, J

AMINULLAH KHAN

Versus

PUNJAB LABOUR APPELLATE TRIBUNAL and 2 others

W.P. No.26559 of 2016, decided on 14th November, 2017.

Industrial Relations Act (X of 2012)---

----S. 57(2)(b)---Civil Procedure Code (V of 1908), O.VII, R.10---Trans-provincial establishment---Forum of adjudication, question of---Jurisdiction of National Industrial Relations Commission---Scope---Return of the plaint---Scope---Employee contended that Labour Appellate Tribunal had wrongly allowed the application of the Employers/Bank under O.VII, R.10, C.P.C.---Employers contended that they being trans-provincial establishment, any grievance was to be adjudicated before National Industrial Relations Commission---Validity---Labour Court or Labour Appellate Tribunal had no jurisdiction to deal with any dispute arising out of any grievance relating to service of a person who was employee of a trans-provincial establishment---No illegality or infirmity had been noticed in the impugned order passed by the Labour Appellate Tribunal---Constitutional petition was dismissed accordingly.

Pakistan Telecommunication Company Ltd.'s case 2014 SCMR 535 ref.

Air League of PIAC Employees through President v. Federation of Pakistan M/O. Labour and Manpower Division Islamabad and others 2011 SCMR 1254; Shahid Perwaiz v. Messrs Galaxo Klin Pakistan Ltd. and others 2016 SCMR 30 and Glaxo Smith Kline Pakistan Limited through Group Industrial Relations Manager/Notified Factory Manager v. Sindh Labour Appellate Tribunal Sindh and 2 others 2013 PLC 183 distinguished.

Munawar Ahmad Javed for Petitioner.

2018 P L C 136

[Lahore High Court]

Before Ijaz ul Ahsan and Shujaat Ali Khan, JJ

P.T.V. EMPLOYEES' ITTEHAD UNION, PUNJAB through Secretary

Versus

FEDERATION OF PAKISTAN through Secretary Government of Pakistan, Ministry of Law and Parliamentary Affairs and 6 others

I.C.A. No. 53 of 2013 in W.P. No. 25102 of 2011, heard on 3rd July, 2015.

(a) Interpretation of statutes---

----Vires of statute---Principles---Court must attribute widest possible meaning (to a statute), and the rule of liberal construction should be followed and every possible effort should be made to save the law rather than destroy it---Even where two views were possible, the one making the enactment constitutionally permissible had to be adopted.

Nishat Mills Ltd. Nishatabad, Faisalabad v. The Federation of Pakistan through Secretary, Ministry of Food and Agriculture and 4 others PLD 1994 Lah. 175; Sanofi Aventis Pakistan Limited and others v. Province of Sindh through Secretary Excise and Taxation Department, Karachi and 2 others PLD 2009 Kar. 69; Defence Authority Club, Karachi and 5 others v. Federation of Pakistan through Secretary, Revenue Division and 2 others 2007 PTD 398; Messrs Al-Khalil Cold Storage v. Federation of Pakistan through Secretary Finance, Islamabad and 3 others 2010 PTD 1260; Commissioner of Sales Tax and others v. Hunza Central Asian Textile and Woolen Mills Ltd. and others 1999 SCMR 526; Messrs Haider Automobile Ltd. v. Pakistan PLD 1969 SC 623; Messrs Sh. Abdur Rahim, Allah Ditta v. Federation of Pakistan and others PLD 1988 SC 670 and Pir Rashid-ud-Daula and 3 others v. The Chief Administrator of Auqaf, West Pakistan PLD 1971 SC 401 ref.

(b) Constitution of Pakistan ---

----Fourth Sched.---Entries in the Legislative Lists---Interpretation---Principles.

Following are the principles of interpretation for Entries in the Legislative Lists:

(i) The Legislative Lists did not confer powers of legislation. They merely demarcated the legislative fields in which the respective legislature may enact laws;

(ii) Entries in Legislative Lists must receive liberal construction. They should not be interpreted in a restricted, narrow and pedantic sense;

(iii) The doctrine of "pith and substance" should be adopted in understanding the true nature and character of an impugned legislation (which was alleged to be made in contravention of the Legislative Lists);

(iv) Powers to legislate were derived from Articles of the Constitution, and not from entries in the Lists. The language of the Articles and entries in the Lists must be given the widest scope of their meaning in order to facilitate enforcement of laws and the machinery of the government put in place for the said purpose;

(v) Each general word should extend to ancillary and subsidiary matters which could fairly and reasonably be comprehended in it;

(vi) Where vires of an enactment was challenged, there was a presumption of constitutionality in its favour. The onus to prove otherwise laid heavily on the one challenging it;

(vii) If there was difficulty in ascertaining limits of legislative powers, such difficulty must be resolved, as far as possible in favour of the legislature, putting the most liberal construction on the Legislative Entry;

(viii) Where legislative powers overlapped, it was the duty of courts to define, in a particular case before them, the limits of the respective powers;

(ix) While entries should be construed liberally, their irreconcilability and impossibility of co-existence should be patent;

(x) If both laws (Federal and Provincial) could coexist, without conflict, courts would not invalidate a law; and

(xi) Courts should adopt a purposive approach to permit both enactments to operate in their own fields by applying them harmoniously.

The Elel Hotels and Investment Ltd. and another v. Union of India AIR 1990 SC 1664; United Provinces v. Atiqa Begum AIR 1941 FC 16; Offshore Holding (Pvt.) Ltd. v. Bangalore Development Authority 2011(3) SCC 139; Union or India v. Harbhajan Singh Dhillon (1971) 2 SCC 779; Govenor-General-in-Council v. Releigh Investment Co. 1944 FCR 229, 261; Harakchand Ratanchand Banthia v. Union of India (1969) 2 SCC 166; Ujagar Prints v. Union of India (1989) 3 SCC 488; Jijubhai Nanabhai Kachar v. State of Gujarat (1995) Suppl. 1 SCC 596; Hoechst Pharmaceuticals Limited v. State of Bihar (1983) 4 SCC 45; Fatehchand Himmatlal v. State of Maharshtra (1977) 2 SCC 670; Muthuswami Goundan v. Subramanyam Chettiar 1940 FCR 188 and State of Bombay v. Narottamdas Jethabhai [1951 SCR 51]; ref.

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

----Preamble---Punjab Industrial Relations Act (XIX of 2010), Preamble ---Constitution of Pakistan, Art. 17 & Fourth Sched, Pt.I, Entry Nos. 27, 31, 58 & 59 & Fourth Sched, Pt. II, Entry Nos.3, 13 & 18---Industrial Relations Act 2012, vires of---Whether said Act encroached upon provincial autonomy---Industrial Relations Act, 2012 applied to a distinct category of establishments and their workers, namely, those operating in the [Islamabad] Capital territory or inter-provincial establishments which operated in more than one province and were not establishments, operating only in a single province which would be governed by the provincial laws---Industrial Relations Act, 2012 was neither in conflict with any provincial law nor did it usurp or encroach upon provincial autonomy---Combined reading of Entry Nos.31, 58 and 59 of Part-I of the Federal Legislative List together with Entry Nos. 3, 13 and 18 of the Part-II of the said List clearly indicated that trans-provincial establishments fell within the purview of the said entries, hence providing the Constitutional basis for enactment of the Industrial Relations Act, 2012---All matters involving trans-provincial establishments came within the legislative competence of Majlis-e-Shoora (Parliament) which could enact laws relating to such establishments in all matters which directly, indirectly or incidentally related to such establishments and were ancillary thereto---Industrial Relations Act, 2012 dealt with a subject and operated in an area which was beyond the legislative competence of provincial legislatures which did not have the power to make laws which would have extra territorial reach, regulate rights of workmen in trans-provincial establishments and be enforceable beyond the territorial limits of each province---Moreover, Industrial Relations Act, 2012 sought to secure Fundamental Rights of a defined and specific class of workers who would otherwise remain unprotected and unable to exercise their Fundamental Right of freedom of association as enshrined under Art.17 of the Constitution---Punjab Industrial Relations Act, 2010 (provincial law) and Industrial Relations Act, 2012 (federal law) operated in different fields; they could co-exist without conflict and could be applied and implemented harmoniously and seamlessly in their respective fields---Industrial Relations Act, 2012 was intra vires of the Constitution, its enactment was within the legislative competence of the Majlis-e-Shoora (Parliament) and the same was a valid piece of legislation.

Pakistan Telecommunication Company Ltd. v. Member NIRC and others 2014 SCMR 535 ref.

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

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

----Preamble---Constitution of Pakistan, Art. 17, Fourth Sched, Pt. I, Entry Nos. 27, 31, 58 & 59 & Fourth Sched, Pt. II, Entry Nos. 3, 13 & 18---Industrial Relations Act 2012, vires of Trans-Provincial establishment---Registration of trade unions in each Province---Industrial Relations Act 2012 was intra vires of the Constitution, its enactment was within the legislative competence of the Majlis-e-Shoora (Parliament) and the same was a valid piece of legislation---Effect of striking down Industrial Relations Act, 2012 as ultra vires the Constitution stated.

Following are some of the effects that would follow if the Industrial Relations Act, 2012 was struck down as being ultra vires the Constitution:

(i) If trade unions of trans-provincial establishments were required to be registered in each province under their respective Industrial Relations Acts, it would divide the trade union movement which would have an adverse effect on the entire concept of trade unionism in the country. Such a situation would create confusion and chaos. As a consequence, in one institution owned by the same employer, having establishments, factories, units or offices in various provinces, multiple unions would be functioning under different provincial laws;

(ii) The employers would not recognize the right of workmen to form one trade union Collective Bargaining Agent (CBA) and carry out unified trade union activities in an establishment that operated at trans-provincial level;

(iii) The number of workmen in each unit of trans-provincial establishments would be counted separately which would adversely impact on their rights in so far as applicability of benefits and security of job granted under various labour laws became available to workmen depending upon the total strength of workmen in an establishment;

(iv) The bargaining capacity of workers would be considerably reduced insofar as presentation and settlement of charter of demands with the management was concerned;

(v) In the same establishment, on the basis of different charters of demand similarly placed workmen would arguably have different sets of terms, conditions and facilities depending upon the agreement reached by each union in each province; and

(vi) In consequence of registration of different unions in different provinces, the management of these institutions would have to settle separate charters of demand with each union as they would be registered separately in each province. This would potentially create anomalous situations leading to discontent and dissatisfaction amongst workmen of the same establishment working under the same management but registered as members of different unions in different provinces.

Muhammad Shahzad Shaukat, Ibrar Ahmad and Saif Ullah Maan for Appellant.

Imran Aziz, Deputy Attorney-General for Pakistan for Respondent No.1.

Malik Waseem Mumtaz, Additional Advocate-General for Respondent No.7.

Ishtiaq A. Samsial for Respondent No.4.

2018 P L C 189

[Lahore High Court (Multan Bench)]

Before Shujaat Ali Khan, J

MUHAMMAD AJMAL

Versus

CHAIRMAN PUNJAB LABOUR APPELLATE TRIBUNAL PUNJAB, LAHORE and 5 others

Writ Petition No.8153 of 2002, heard on 27th April, 2016.

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

----S. 25(2)(3)(4)---Bank employee---Dismissal---Grievance notice by worker to the employer---Worker was bound to serve the employer with a grievance notice prior to approaching the relevant forum---Worker under S.25-A(4) of Industrial Relations Ordinance, 1969, was given option, either to challenge the matter before the Labour Court on expiry of time specified for decision of the grievance by the employer in terms of S.25-A(2)(3) of the Ordinance, or he could challenge the final order of the employer/competent authority on the grievance notice served by him---In the present case, the documents produced by the petitioner/worker, had shown that right after his dismissal from service, he had been filing appeals/representations/applications before the departmental authorities for his reinstatement; which remained un-responded and lastly he served the employer Bank with grievance notice, with the prayer that he be reinstated in service---While replying to the said notice Bank authorities took the stance that he could not be reinstated as his request in that regard was time-barred---Upon receipt of reply from the Bank authorities, worker filed grievance petition before the Labour Court within the prescribed period of limitation---Observations of Labour Appellate Tribunal, coupled with the contention of counsel representing the employer, to the effect that the grievance petition filed by the worker was time-barred had no worth at all in circumstances.

[Case-law referred]

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

----S.O. 15(4)---Bank employee---Dismissal---De novo proceedings---Employees, during de novo proceedings could not introduce entirely different set of allegations by way of serving a fresh charge-sheet---Conduct of employer Bank, towards issuance of fresh charge sheet under the garb of de novo proceedings had no legs to stand---If the Bank authorities, were of the view that conduct of the worker was amenable to any disciplinary proceedings, same could proceed against him independently without taking aid from the findings of Labour Court---Subsequent charge-sheet had shown that in addition to the allegation of misappropriation of Rs.5000, other allegations were also included therein---Had the said charge-sheet been issued pursuant to the observation of the Labour Court, regarding de novo proceedings against the worker, same could be issued to the extent of the allegations which were basis of the dismissal of the worker in the first round of litigation---Inconsistent attitude of the Bank authorities, was manifest from the fact that on the one hand they adopted the plea that they issued subsequent show-cause notice pursuant to observations of Labour Court and on the other hand introduced entirely different set of allegations.

(c) Muslim Commercial Bank Staff Service Rules, 1961---

----R. 22---Bank employee---Dismissal from service---Competent authority---Rule 22 of Muslim Commercial Bank Staff Service Rules, 1961, postulated that an employee could be dismissed by the competent authority and competent authority for that purpose was the General Manager or any officer authorized by the General Manager in that behalf; whereas, in the present case, order regarding dismissal of the employee from service was passed by the Controller of the Bank---In absence of any power, the order passed by the Controller of the Bank could only be dubbed as coram non judice.

[Case-law referred]

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

----S.O. 15(4)---Bank employee---Dismissal---Inquiry proceedings---Non-production of Inquiry Officer---Non-production of Inquiry Officer during the course of evidence without cogent reasons---Effect---Remained unproved---Adverse inference would go against Bank authorities that perhaps, the Inquiry Officer was not ready to come forward to support the case of the employer Bank.

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

----Art. 74---Documentary evidence---Secondary evidence---Scope---Secondary evidence, could only be permitted, when the original of the document was not available, or the same could not be produced due to unavoidable circumstances---Nothing was on record to show that the Bank authorities sought any permission from the court to produce secondary evidence---Secondary evidence produced without seeking permission from the court, had no evidentiary value.

[Case-law referred]

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

----S. 37(3)---Appeal to appellate authority---Appeal was continuation of original proceedings and the appellate authority was bound to decide the matter independently without influenced by any findings of the forum below---Legal objection, could be taken at any stage of the proceedings, irrespective of the fact that as to whether the same was agitated before the forum below or not.

[Case-law referred]

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

----S. 25-A---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.15---Bank employee---Dismissal from service---Grievance petition---Reinstatement in service with back benefits---Employee, who was removed from service, filed grievance petition, seeking reinstatement in service with back benefits, but said plea remained unproved as during the course of his testimony, employee did not state any thing about the entitlement for back benefits---Employer Bank was obliged to establish that employee was not entitled for back benefits as he remained gainfully employed elsewhere, only when the employee had asserted so while appearing in the witness box---Labour Court had rightly refused to grant back benefits to the employee, in circumstances.

[Case-law referred]

(h) Constitution of Pakistan---

----Art. 199---Constitutional petition---Laches-Constitutional petition was filed on 15-8-2002, challenging the vires of judgment dated 29-4-2002, passed by Labour Appellate Tribunal---Period of limitation had been provided to file a petition under Art.199 of the Constitution, but an aggrieved person was bound to approach the court within reasonable time---If his matter was hit by the principle of laches, same would deserve to be dismissed on that score alone---Six months was reasonable time---Present petition having been filed within six months from the date of passing of impugned judgment by Labour Appellate Tribunal, same could not be dismissed on account of laches.

[Case-law referred]

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

----S.O. 15(4)---Bank employee---Dismissal from service---Misconduct---Information to workman in writing for his alleged misconduct---Limitation---Provisions of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, were applicable in respect of terms and conditions of the employees of the Bank---According to S.O. 15(4) of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, employer could proceed against workman within one month of the misconduct, or within one month of the misconduct having come to knowledge of the employer---Second charge-sheet had shown that charge pertained to the alleged misappropriation of amount by the employee was intimated to him after more than six months---Second charge-sheet being violative of the mandatory provisions of S.O.15(4) of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, was not sustainable.

[Case-law referred]

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

----S. 62---Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, S.O.15(2)---Bank employee---Dismissal from service---Penalty against employee was to be commensurate with the gravity of allegation---If the employee was responsible for missing of Rs.5,000 penalty of dismissal from service, was not justified, especially in the light of the fact that order regarding his dismissal was passed by incompetent person---When the charge sheet was served upon the employee beyond the period of one month, subsequent superstructure raised thereon, could not be allowed to hold the field---Order accordingly.

Muhammad Yasif Naveed Hashmi for Petitioner.

Riaz Hussain for Respondents.

2018 P L C 215

[Lahore High Court]

Before Jawad Hassan, J

INAM-UL-HAQ

Versus

ALLIED BANK LIMITED and 4 others

W.P. No.14327 of 2013, decided on 1st March, 2018.

Industrial dispute---

----Security Guard of a Bank---Absence from duty---Misconduct---Termination from service---Scope---Petitioner being Security Guard in the Bank absented himself from duty due to which his services were terminated---Grievance petition filed by the employee was dismissed concurrently---Validity---Employee was found to have committed the act of misconduct as he left the Branch of the Bank which was a locker holding Branch without any compelling circumstances---Bank remained unguarded despite the fact that nature of petitioner's job required to be performed by him was sensitive---Absence from duty by the employee caused major loss to the Bank---Petitioner had failed to make out a case of reinstatement into service---Constitutional petition was dismissed in circumstances.

Izzat Baig Awan v. Habib Bank Limited 2004 SCMR 98 and Muhammad Yousaf Khan v. Habib Bank Limited through President and others 2004 SCMR 149 ref.

Muhammad Ali S. Bukhari v. Federation of Pakistan through Establishment Secretary, Islamabad and 2 others 2008 PLC (C.S.) 428; Muhammad Saleem and 2 others v. Agricultural Development Bank of Pakistan, Islamabad and another 2003 PLC (C.S.) 36 and Izzat Baig Awan v. Habib Bank Limited 2003 PLC (C.S.) 938 = 2004 PLC (C.S.) 98 rel.

Muhammad Rasib Khan for Petitioner.

2018 P L C 224

[Lahore High Court (Multan Bench)]

Before Muzamil Akhtar Shabir, J

TEHSIL MUNICIPAL ADMINISTRATION

Versus

PUNJAB LABOUR APPELLATE TRIBUNAL-II, MULTAN

Writ Petition No.7098 of 2014, heard on 22nd February, 2018.

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

----S. 44---Grievance petition---Daily wages employees of Tehsil Municipal Administration---Regularization of service---Scope---Employees filed grievance petition for regularization of their services which was accepted concurrently---Validity---Employees were working in the Tehsil Municipal Administration for more than nine months---Both the Courts below had passed judgments on the basis that there was continuous service on the credit of employees---Findings of fact having been recorded by the Labour Court and upheld by Labour Appellate Tribunal could not be interfered under constitutional jurisdiction of High Court without there being any illegality, jurisdictional defect or perversity---No illegality or perversity had been pointed out in the impugned judgments---Constitutional petition was dismissed in circumstances.

Khushal Khan v. MCB Limited and others 2002 SCMR 943; Secretary, Irrigation and Power Department Government of Punjab, Labour and others v. Muhammad Akhtar and others 2009 SCMR 320; Managing Director, Sui Southern Gas Company Ltd, Karachi v. Ghulam Abbas and others PLD 2003 SC 724; Province of Punjab through Secretary Communication and Works Department and others v. Ahmad Hussain 2013 SCMR 1547 and Ikram Bari and 524 others v. National Bank of Pakistan through President and another 2005 SCMR 100 ref.

Tehsil Municipal Officer, TMA Kahuta and another v. Gul Fraz Khan 2013 SCMR 13 and Federation of Pakistan through Secretary Law, Justice and Parliamentary Affairs v. Muhammad Azam Chatha 2013 SCMR 120 disttinguished.

Punjab Seed Corporation and 2 others v. Punjab Labour Appellate Tribunal and 2 others 1996 SCMR 1947 rel.

Mehr Irshad Ahmad Arain for Petitioner.

Muhammad Ashfaque Theheem for Respondent.

2018 P L C 249

[Lahore High Court]

Before Jawad Hassan, J

FIRST WOMEN BANK LIMITED

Versus

Ms. UZMA WAHID and 2 others

W.P. No.30979 of 2012, decided on 28th March, 2018.

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

---S.46(5)---Termination of Service---Grievance petition---Reinstatement of worker with compensation and back benefits---Effect---Employee was reinstated awarding the compensation by the Labour Court but Labour Appellate Tribunal modified the said judgment and ordered that worker besides compensation would also be entitled to back benefits---Contention of employer was that back benefits and compensation could not be awarded simultaneously---Validity---Labour Court could only award compensation in lieu of reinstatement of the worker if found the termination wrongful---Something could not be granted which was beyond the parameters of the law---Impugned judgment passed by the Labour Appellate Tribunal was set aside---Constitutional petition was allowed in circumstances.

Echo West International (Pvt.) Ltd v. Pakland Cement Ltd. 2008 CLD 85; Messrs Ideal Life Insurance Co. Ltd. and another v. Mst. Khairunnisa A.G. Mirza 1980 CLC 1375 and Messrs Standard Hotels (Private) Ltd. v. Messrs Rio Centre and others 1994 CLC 2413 distinguished.

Balochistan Engineering Works Ltd. v. Abdul Hameed and others 2007 SCMR 1160 rel.

(b) Constitution of Pakistan---

---Arts. 189 & 190---Judgment of the Supreme Court---Binding effect---Scope---Any decision of Supreme Court to the extent that it had decided a question of law or was based upon or enunciated a principle of law was binding on all other courts in Pakistan---All judicial and executive authorities were bound to act in aid of the Supreme Court.

Imran Muhammad Sarwar for Petitioner.

2018 P L C 264

[Lahore High Court]

Before Muhammad Sajid Mehmood Sethi, J

M/S. ZEPHYR MANUFACTURING AND TRADING COMPANY through Managing Director

Versus

GHULAM MUHAMMAD and another

Writ Petition No.1112 of 2017, decided on 22nd January, 2018.

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

----S. 3, Sched-III---Employee working in mining industry suffering with Pulmonary Kock disease---Payment of compensation---Scope---Petition for payment of compensation by employee was dismissed by the Commissioner Workmen's Compensation on the ground that alleged disease was not included in the "occupational diseases" relating to the workmen serving in mining industry---Labour Appellate Tribunal set aside the order passed by Workmen's Compensation Commissioner and remanded the matter for determination of compensation---Validity---Employee had been working in the mining industry and during service, contracted a lungs disease namely 'Pulmonary Kock' and was declared unfit for the Job by the Medical Board---Right to health and medical care was a Fundamental Right of a worker---Compelling necessity to work in an industry for bread-winning for himself and his dependents was not to be at the cost of health and vigour of a workman---Right to health would include right to live in a clean, hygienic and safe environment---State was bound to provide at least minimum condition ensuring human dignity---Company had failed to point out any illegality or infirmity in the impugned judgment passed by the Labour Appellate Tribunal---Constitutional petition was dismissed in circumstances.

Mackinnon Machenzie and Co. Private Limited v. Smt. Habiba Eusoof Karblkar 1967 ACJ 188 rel.

Imran Zahid Khan for Petitioner.

Malik Faiz Rasool Sangha for Respondents.

Sheraz Zaka for Amicus curiae.

2018 P L C 296

[Lahore High Court]

Before Shahid Mubeen, J

SHAFAQAT ALI

Versus

PUNJAB LABOUR APPELLATE TRIBUNAL and others

W.P. No.22018 of 2016, decided on 27th March, 2018.

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

----O. VI, R.1---Pleadings---Evidence beyond pleadings---Scope---Evidence beyond pleadings was to be ignored---Evidence could not be led contrary to the pleadings---Party, could not be allowed to prove its case which was not pleaded nor beyond provisions of O.VI, R.1, C.P.C.---Party could not lead evidence which was not taken in the pleadings and even it could not be considered as evidence in the case.

Abdul Haque and others v. Shaukat Ali and 2 others 2003 SCMR 74; Muhammad Wali Khan and another v. Gul Sarwar Khan and another PLD 2010 SC 965; Combined Investment (Pvt.) Ltd. v. Wali Bhai and others PLD 2016 SC 730; Muhammad Iqbal v. Mehboob Alam 2015 SCMR 21; Dr. Ubaidur Raza Khan v. Mrs. Saghera Bang and another 1994 CLC 1302; Mst. Balqees Begum and 11 others v. Mehfooz Hussain and 9 others PLD 1995 Lah. 113; Muhammad Yousaf and others v. Muhammad Younas and others 1995 CLC 1780 and Rana Abdul Rasheed v. Iqbal Hussain 2008 CLC 01 rel.

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

----S. 45---Powers of Labour Court---Applicability of Civil Procedure Code to proceedings before Labour Court---Provisions of Civil Procedure Code, was not applicable to the proceedings before the Labour Court---General principles of C.P.C. however, were applicable, if they were not repugnant to the provisions of labour laws and principles of natural justice---Provisions of Civil Procedure Code, 1908 though, were not applicable under the labour laws, Labour Court was deemed to be a civil court for the purpose of adjudication under S.45 of the Punjab Industrial Relations Act, 2010.

The Regional General Manager, Allied Bank of Pakistan Ltd. and 2 others v. Muhammad Aamer Raza and others 2005 PLC 147 and Independent Newspaper Corporation (Private) Ltd. v. Punjab Labour Appellate Tribunal, Lahore and others 2013 SCMR 190 ref.

(c) Service Tribunals Act (LXX of 1973)---

----S. 4---Appeal to Service Tribunal---When departmental appeal was barred by time, appeal before Service Tribunal, would also be deemed to be barred by time.

(d) Constitution of Pakistan---

----Art. 199---Punjab Industrial Relations Act (XIX of 2010), Ss.33 & 53---Constitutional petition---Petitioner, having failed to point out any illegality and jurisdictional defect in the impugned judgments of the Labour Court as well as Labour Appellate Tribunal, constitutional petition against the same being devoid of force, was dismissed.

Raja Khan v. Manager (Operation) Faisalabad Electric Supply Company (WAPDA) and others 2011 SCMR 676 and Sajjad Hussain v. Secretary, Ministry of Railways, Islamabad and others 2012 SCMR 195 rel.

Salman Riaz Ch. for Petitioner.

2018 P L C 305

[Lahore High Court]

Before Ali Baqar Najafi, J

Sh. SHAHBAZ AKHTAR

Versus

FACTORY MANAGER and others

W.P. No.25073 of 2014, decided on 13th March, 2018.

Industrial Relations Ordinance (XCI of 2002)---

----S. 46(5)---Dismissal from service---Reinstatement---Possibility of strained relationship between employer and employee in case of reinstatement---Effect---Compensation in lieu of reinstatement---Scope ---Petitioner/employee contended that Labour Court had rightly reinstated him as the other employee whose overstay was alleged upon him, had already reinstated by the competent courts---Employer contended that in the wake of probable hostile atmosphere in future between the parties, Appellate Tribunal had rightly modified relief into maximum compensation in lieu of reinstatement---Validity---Possibility of enacting a law and order situation following reinstatement could be an easy excuse justifying compensation in lieu of reinstatement, however, such possible strained relationship would provide a new cause of action to proceed against such employee---Even otherwise, the record must reflect that the employee had been leveling ridiculous, outrageous, arrogant allegations against the employer adding to confrontment, haughtiness against the management, therefore, the reinstatement would amount to kicking them from behind and humiliation, disgrace and embarrassment, eventually enhancing the degree of disharmony and conflict against the object of law---Only allegation against the petitioner, in the present case, was that he had allowed the other employee's overstay while the petitioner contended that he was permitted/directed by the Shift incharge to do so---Said important witness i.e. Shift incharge was neither produced by the employee nor by the employer---Concurrent findings were that termination of the petitioner was unlawful---Petitioner was not alleged to have either misbehaved or threatened the management or tried to disturb the working environment of the factory---Employee had been granted certain rights under the labour laws which needed to be protected and if such employee was dragged into litigation by employer, employee could not be said to have contributed in the strained relationship between the employee and the employer---High Court set aside the impugned judgment to the extent of payment of compensation which was converted into reinstatement in lieu thereof---Constitutional petition was allowed accordingly.

Ghulam Rasool Tahir v. IVth Sindh Labour Court, Karachi through Presiding Officer and another 2007 PLC 83; Khayal Muhammad v. Messrs Lucky Textile Mills through Managing Director/Occupier 2007 PLC 423; Khalid Mehmood v. State Life Insurance Corporation of Pakistan and others 2018 SCMR 376 and Inspector General of Police, Punjab v. Tariq Mahmood 2015 SCMR 77 ref.

Kh. Omer Masood for Petitioner.

2018 P L C 90

[National Industrial Relations Commission]

Before Justice (R) Raja Fayyaz Ahmed, Chairman

ZULFIQAR ALI and others

Versus

B.B.C. PAKISTAN (PVT.) LTD. through Editor

Cases Nos.4B(159) and 4B(161) of 2013, decided on 10th July, 2015.

Industrial Relations Act (X of 2012) ---

----S. 33---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2---Newspapers Employees (Conditions of Service) Act (LVIII of 1973), Ss.2(d)(i) & 8---Grievance petition---Maintainability---Reporter of newspapers---Termination from service---Term 'workman' connotation of---Scope---Petitioners who were reporters of newspapers were terminated from their services---Validity---Petitioners-employees held the contractual appointment on specific terms and conditions of employment---Mere collection of information with regard to event, broadcasting and television facets of life and other issues would not convert the status of Television/Radio to that of a 'newspaper'---Reporter of Radio/ Television could not be said to be an employee involved for any 'printed periodical work' of a 'newspaper'---Newspaper employee inducted in employment mainly in managerial or administrative capacity or an Editor of a Newspaper or who being employed in supervisory capacity and performed function either of a nature had been excluded from the application of S.18 of Newspapers Employees (Conditions of Service) Act, 1973---Mere designation or quantum of emoluments for which a person was employed by an Industrial-Establishment or Commercial-Establishment would not per se determined the status of a person employed in such establishment to be that of a 'worker or workman' rather the sole criteria for determination of status would be the nature of duties or functions for which he was mainly employed and the nature of duties as having been performed or being performed by an employee---Employees-petitioners were employed in managerial position and had been performing such functions which were not that of a 'workman or worker'---None of the functions and duties for which petitioners had mainly been employed and having been performed could be said to fall within the category or nature of skilled or un-skilled, manual or clerical work---Such employees could not be said to be 'worker or workman' in circumstances---Only a workman or worker could invoke the jurisdiction of National Industrial Relations Commission---Grievance petition was dismissed being not maintainable in circumstances.

1986 PLC 760 ref.

Mushtaq Hussain Bhatti for Petitioners.

Hassan Ali Raza for Respondents.

2018 P L C 107

[Peshawar High Court (Abbottabad Bench)]

Before Syed Afsar Shah and Syed Arshad Ali, JJ

Messrs DEWAN SALMAN FIBRE LIMITED through General Manager Administration and its Attorney/Legal Representative

Versus

AUTHORITY UNDER PAYMENT OF WAGES and 6 others

W.P. No.240-A of 2011, decided on 7th November, 2017.

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

-----S. 15(2)---Payment of Wages (Procedure) Rules, 1937, R.8---Khyber Pakhtunkhwa Maintenance of Public Order Ordinance (XXXI of 1960), S.3---Ex parte order, setting aside of---Limitation---Dispute was with regard to recovery of wages of employees---Authorities arrested one of the Directors of petitioner company in exercise of powers under S.3 Khyber Pakhtunkhwa Maintenance of Public Order Ordinance, 1960---Authorities, on the statement of said Director, petitioner company was ordered to make payments---Petitioner company filed application to set aside order but authorities dismissed application on grounds that it was barred by time---Validity---No opportunity of meaningful hearing was provided to petitioner company and the directions were perverse and illegal---Order in question gave an impression of an off hand and whimsical order which could have been corrected in its result but was deficient in its contention---Petitioner company did not receive any summons or notice at its registered office and said Director of the company was not authorized/notified manager, therefore, it was an appropriate case for setting aside ex parte order and authorities had jurisdiction under R.8 of Payment of Wages (Procedure) Rules, 1937---Application filed by petitioner company was not time barred and authorities incorrectly found that application was time barred---Fair and safe administration of justice demanded decision of cases on merits instead of non-suiting litigants on technical grounds including limitation---High Court set aside orders passed against petitioner---Constitutional petition was allowed accordingly.

Muhammad Amin Muhammad Bashir Ltd. v. Government of Pakistan and others 2015 SCMR 630 and Dr. Zafer Ahmed v. Mst. Shamsa and others PLD 2002 Kar. 524 rel.

Abdur Rehman Qadir for Petitioner.

Yasir Zahoor Abbasi, Assistant Advocate General for Respondents.

2018 P L C 130

[Peshawar High Court]

Before Qaiser Rashid Khan and Ijaz Anwar, JJ

Messrs HABIB HOTEL AND RESTAURANT, SHOUBA BAZAR, PESHAWAR through Owner and 5 others

Versus

ABDUL RASHID and others

W.Ps. Nos.371-P and 372-P of 2011, decided on 4th October, 2017.

Industrial Relations Ordinance (XCI of 2002)---

----S. 46---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.11-A---Grievance petition---Redressal of--- Establishment, closure of--- Petitioners were owners of a hotel which was closed by them and respondents were their employees who filed grievance petitions---Labour Court allowed grievance petitions and directed petitioners to pay 12 salaries to each workman---Labour Appellate Tribunal dismissed appeal and modified the order of Labour Court by directing petitioners to retain their workmen---Validity---Bona fide of employer was to be seen while closing down establishment---Evidence revealed that petitioners took possession of hotel after protracted litigation from previous owners of hotel in year 1993---Petitioners sustained financial loss and could not carry out business of hotel resulting into closure of hotel and issuance of order or termination of employees---Bona fide of petitioners about closure of hotel was not questioned anywhere by employees---When there was no post against which employee could be retained it would be rather unreasonable to thrust employees on petitioners against a non-existent hotel---High Court set aside judgment of Labour Appellate Tribunal to such extent as it was not sustainable---High Court modified judgment passed by Labour Appellate Tribunal and directed petitioners to pay salaries for a period of 15 months at rate of present minimum wages, i.e., Rs.15,000 per month as petitioners did not deposit 12 salaries at relevant time and respondents faced agonies of protracted trial for last 20 years---Constitution petition was disposed of accordingly.

2008 PLC 316; 2001 PLC 312; 1993 PLC 308; 2000 PLC 661; 2001 PLC 211; 1995 PLC 101 and 1988 SCMR 1725 ref.

Aamir Javed for Petitioner.

Bilal Ahmad Kakezai for Respondents.

2018 P L C 209

[Peshawar High Court]

Before Rooh-ul-Amin Khan and Muhammad Younis Thaheem, JJ

MCB BANK LIMITED through President and 2 others

Versus

The LABOUR APPELLATE TRIBUNAL, KHYBER PAKHTUNKHWA through Chairman and 2 others

W.Ps. Nos.2493 and 2494 of 2011, decided on 18th January, 2018.

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

----Ss. 37 & 51---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.15---Dismissal from service on charges of misappropriation and embezzlement of Bank funds---Grievance petition---Conversion of order of dismissal from service into compulsory retirement---Respondents/employees were dismissed from service after holding enquiry against them on allegations of misappropriation and embezzlement of Bank amount---Labour Court, dismissed, grievance petition, but on humanitarian grounds, impugned dismissal order was converted into compulsory retirement---Appellate Tribunal having maintained judgment of the Labour Court, petitioners/employers, had filed constitutional petition---Charges against the employees were that they collaborated with the then Branch Manager of the employer Bank, defrauded the Bank and embezzled millions through illegal transactions---Enquiry Officer, during cross-examination, had stated that in his enquiry proceedings, it was no where proved that the employees had pocketed the alleged amount; that it was not alleged by the Management in the charge sheet that the employees had misappropriated and pocketed the said amount---Main charge of misappropriation and embezzlement of Bank funds was imposed on the Manager of the Bank and the employees, were charge-sheeted for their negligent conduct, while performing their duties by keeping their eyes shut and kept mum about illegal activities of the Manager---Labour Court as well as Labour Appellate Tribunal, reached to the correct decision that as the role attributed to the employees, was of negligence about not informing higher Bank Management about the illegal activities of said Bank Manager---Dismissal of employees from service by Bank authorities was harsh, and was correctly converted into compulsory retirement by the two courts below---Counsel for the petitioner/employers, failed to point out any illegality or mis-reading and non-reading of evidence, particularly in the light of admission made by Inquiry Officer---Punishment awarded by Bank to the employees, being harsh in nature and against the doctrine of proportionality, which was a recognized principle of justice, was correctly modified by the Labour Court and maintained by the Appellate Tribunal---Constitutional petitions being bereft of merits, were dismissed.

Auditor-General of Pakistan and others v. Muhammad Ali and others 2006 SCMR 60; Secretary, Government of Punjab and others v. Khalid Hussain Hamadni and 2 others 2013 SCMR 817; Naveed Shah v. City Police Officer, Faisalabad and 2 others 2017 PLC (C.S.) 214 and Chairman-cum-Managing Director, Coal India Ltd. and another v. Mukul Kumar Choudhuri and others AIR 2010 SC 75 ref.

Riaz Hussain Haleem for Petitioner.

Shahab-ud-Din Khattak for Respondents.

2018 P L C 73

[Punjab Labour Appellate Tribunal]

Before Justice (Retd.) Ch. Muhammad Tariq, Chairman

ZULFIQAR ALI

Versus

FACTORY MANAGER/INDUSTRIAL RELATIONS MANAGER PACKAGES LIMITED, LAHORE

Labour Appeal No. 353 of 2015, decided on 6th February, 2017.

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

----S. 33---Dismissal from service---Charge of misconduct---De-novo inquiry---Appointment of independent inquiry officer---Prerogative of the employer to appoint inquiry officer---Scope---Rude behaviour of the employee towards management---Effect---Employee alleged that inquiry was conducted against all canon of justice and equity and alleged bias of inquiry officer---Employee contended that his witness be cross-examined in his presence in the enquiry proceedings and then his statement be recorded---Employer contended that the employee had moved various applications just to frustrate the inquiry proceedings---Labour Court dismissed grievance petition of the employee---Validity---Employee had moved various applications for adjournment of inquiry proceedings, however, no employee from the entire factory came forward to corroborate the version of the employee---Employee boycotted the inquiry proceedings alleging that all the witnesses had supported the version of management which was not warranted under the law---Employee having not raised any objection against the inquiry officer during the inquiry proceedings, he was estopped by his words and conduct to level any allegation of lack of confidence in Inquiry Officer---Mere allegation of bias against Inquiry Officer would not be sufficient---Employer had prerogative to appoint Inquiry Officer from the management and the employee had not objected to such appointment at the relevant time---Demand of the employee of recording of his statement after the evidence of his witness was erroneous because witness of the employee had to corrborate his statement---Employee was dismissed from service after a just and fair inquiry as alleged misconduct was established in the inquiry---Punishment was the discretion of employer---No illegality or infirmity having been noticed, appeal of the employee was dismissed accordingly.

1986 PLC 63; 2006 SCMR 1010; PLD 2003 SC 952; 1988 PLC 808 ad 1984 PLC 1057 ref.

2007 PLC (C.S.) 348 distinguished.

Ch. Muhammad Khalid Farooq for Appellant.

2018 P L C 84

[Punjab Labour Appellate Tribunal]

Before Justice (R) Sagheer Ahmed Qadri, Chairman

MUHAMMAD NASEER

Versus

AGRICULTURAL ENGINEER, MULTAN and 5 others

Labour Appeal No.129 of 2015, decided on 28th January, 2016.

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

----S. 33---Pro forma promotion---Superannuation---Scope---Labour Court dismissed grievance petition of the employee---Employee contended that due to lethargic approach of the employer his case was put before Department Promotion Committee after five days of his `retirement---Record revealed that case of promotion of the employee was put before departmental Promotion Committee in May 2013 and as one of the ACRs of the employee was not available, therefore, his case was not considered---Preparation of the service record or its up-keeping was the duty of the employer and not of the employee and only on that basis depriving the employee to promotion was a material illegality---Despite application of the employee, his case was not considered on technical ground---Labour Court while referring pro forma promotion policy of Provincial Government 2013 refused to allow the grievance petition---Employee could not be deprived of the lawful right which accrued prior to his superannuation and he was deprived of all those benefits due to negligence of employer---Labour Appellate Tribunal set aside the impugned judgment passed by the Labour Court and directed the employer to convene Departmental Promotional Committee within one month and put the case of employee as was done in May, 2013 and after due consideration the employee was entitled for promotion he be granted pro forma promotion and in case he was promoted all benefits be granted to him---Appeal was allowed accordingly.

Secretary School of Education and others v. Rana Arshad Khan and others 2012 SCMR 126 ref.

Zahoor Ahmad Chaudhry for Appellant.

2018 P L C 182

[Supreme Court of Pakistan]

Present: Maqbool Baqar and Mazhar Alam Khan Miankhel, JJ

KHALID MEHMOOD

Versus

STATE LIFE INSURANCE CORPORATION OF PAKISTAN and others

Civil Appeal No. 729 of 2013, decided on 12th December, 2017.

(Against judgment dated 11.1.2012 of the Lahore High Court, Rawalpindi Bench passed in Writ Petition No. 471 of 2008)

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

----Sched., S.O 12(3)--- Permanent employee---Dismissal without assigning reasons---Back benefits, entitlement to---Appellant's services were terminated without assigning any reason whatsoever, which termination was found illegal by the Labour Court as well as by the Labour Appellate Tribunal---In terms of Standing Order 12(3) of the Schedule to the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, the services of a permanent employee could be terminated only by giving explicit reasons---Supreme Court ordered payment of back benefits to the appellant for the intervening period between his date of termination and date of his reinstatement in service.

Muhammad Ashraf Tiwana v. Pakistan and others 2013 SCMR 1159 and Pakistan v. Public at Large PLD 1987 SC 304 ref.

(b) Industrial dispute---

----Reinstatement in service---Back benefits---Employer obtaining consent from employee to forgo back benefits as a condition for reinstatement---Practice of obtaining such consent from employee was deprecated by the Supreme Court.

Ikram Bari and 52 others v. NBP 2005 SCMR 100 ref.

Muhammad Shoaib Shaheen, Advocate Supreme Court for Appellant.

Abdul Rahim Bhatti, Advocate Supreme Court for Respondent No.1.

Nemo for Respondents Nos. 2 and 3.

2018 P L C 123

[Supreme Court (AJ&K)]

Present: Ch. Muhammad Ibrahim Zia, C.J. and Raja Saeed Akram Khan, J

NAZAKAT HUSSAIN and 4 others

Versus

UNITED BANK LIMITED and 4 others

Civil Appeal No.201 of 2016, decided on 3rd July, 2017.

(On appeal from the judgment of the High Court dated 28.04.2015 in Writ Petitions Nos.307, 2524 and 2525 of 2014).

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

----Ss. 30 & 28---Civil Procedure Code (V of 1908), O. VII, R. 11---Branch Managers of Bank---"Worker/workman"---Scope---Grievance petitions were rejected on the ground that employees did not fall within the definition of "worker/workman"---Validity---Employees, in the present case, were serving as officers of Bank in Grade II & III---Officers of Grade-II were serving as branch managers in the Bank who would fall within the definition of employees who performed managerial functions---Said officers were to be excluded from the definition of "worker/workman"---Responsibilities assigned to the other employees were supervisory, administrative and managerial in nature which would exceed the definition of "worker/workman"---High Court rightly came to the conclusion that employees did not fall within the definition of worker/workman---No illegality or infirmity had been pointed out in the impugned judgment passed by the High Court---Appeal was dismissed in circumstances.

Abdul Wahab and others v. H.B.L. and others 2013 SCMR 1383; Agriculture Workers' Union, Balochistan v. The Registrar of Trade Unions, Balochistan, Quetta 1997 SCMR 66; UBL Progressive Employees Union through President and 2 others v. United Bank Limited and 5 others 2016 PLC 306; Relationship Manager Professional Employer Services, Karachi v. District and Sessions Judge/1st Labour Court Balochistan, Quetta and 2 others 2012 PLC 290 and Agricultural Mechanization Research Institute (AMRI) through Director and another v. Muhammad Arshad 2013 PLC 243 distinguished.

Dilshad Khan Lodhi v. Allied Bank of Pakistan and others 2007 PLC 41 rel.

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

----Ss. 45, 41 & 42---Decisions of Labour Court---Scope---Decisions of Labour Court other than awards and decisions referred to in S.45(3) of Azad Jammu and Kashmir Industrial Relations Ordinance, 1974 and sentences referred to in S.41(3) of the said Ordinance, would be final and could not be challenged before any Court or authority---Writ petition was maintainable against the said decisions in circumstances.

Muhammad Riaz Tabassum and Sh. Masood Iqbal, Advocates for Appellants.

Syed Nishat Hussain Kazmi and Muhammad Idrees Mughal, Advocates for Respondents.