2019 P L C 86
[Islamabad High Court]
Before Miangul Hassan Aurangzeb, J
PAKISTAN MOBILE COMMUNICATION LIMITED
Versus
FULL BENCH N.I.R.C and others
W.P. No.1997 of 2018, decided on 8th February, 2019.
(a) Industrial Relations Act (X of 2012)---
----S. 33---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S. 2(i), S.Os. 12 & 15---Redressal of individual grievances---"Workman"---Scope---Termination of employment of permanent-worker---Reasons for termination---Inquiry to be conducted before termination---Scope---Employer assailed order of National Industrial Relations Commission whereby grievance petition of worker was accepted and his termination was set aside---Contentions of employer were that under the terms of employment it had the right to terminate worker's services by giving him one month's notice or salary in lieu thereof; that termination letter did not stigmatize the worker or adversely affect his future employment prospects and that worker was not a "workman"---Validity---Termination letter when read in isolation did not show that worker's services were terminated due to misconduct however, employer hurled many allegations of misconduct against worker in its reply to grievance notice and reply filed before Labour Court---Employer could not be permitted to take a position inconsistent with the one taken by it in said replies qua the actual reason for worker's termination---Several allegations of misconduct had been leveled against the worker, therefore, it was obligatory for the employer to have conducted an inquiry as required by S.O. 12(5) & 15(4) of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968---Employer was required to give reasons in writing for terminating the services of a permanent worker---Simple information to an employee that his services were no longer required was not a reason good enough for termination of services and did not justify the requirement of S.O. 12(3)---Worker's designation as per his appointment letter was "Transport Assistant", but he was performing duties of a driver---Duty of driver predominantly involved manual work, therefore, he came within the meaning of a "workman"---Constitutional petition was dismissed.
Muhammad Siddiq Javaid Chaudhry v. Government of West Pakistan PLD 1974 SC 394; Muhammad Hussain Naqshbandi v. Government of the Punjab 2004 SCMR 44; Mushtaq Ahmad v. Pakistan Cricket Board 1997 PLC (C.S.) 921; Riaz Ali Khan v. Pakistan PLD 1967 Lah. 491; Sikandar Hayat v. Sindh Labour Appellate Tribunal 1991 PLC 508; Abdul Hameed Kiranvi v. Sindh Labour Appellate Tribunal 1990 PLC 213 and Air League of PIAC Employees v. Federation of Pakistan 2011 SCMR 1254 ref.
Ghulam Ahmed v. Sindh Labour Appellate Tribunal 1990 PLC (C.S.) 385; General Tyre and Rubber Company of Pakistan Limited, Karachi v. Sindh Labour Appellate Tribunal 1992 PLC 1028; Muslim Commercial Bank Ltd. v. Ghulam Haider 2005 PLC 320; Farooq Ahmad v. Delta Shipping (Pvt.) Ltd. 2006 PLC 102 and Servier Research and Pharmaceuticals Pakistan (Pvt.) Limited v. Aamir Sultan 2007 PLC 388 foll.
(b) Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)---
----SOs. 12 & 15---Termination of employment---Reasons for termination---Inquiry to be conducted before dismissal---Scope---One month's notice must be given by employer before terminating employment of a permanent workman for any reason other than misconduct---One month's wages calculated on the basis of average wages earned by the workman during the last three months must be paid in lieu of notice---Services of a workman were not to be terminated nor could a workman be removed, retrenched, discharged or dismissed from service except by an order in writing, which must explicitly state the reason for the action taken---Explicit statement of reasons for termination of workman's services through an order in writing was obligatory---Standing Order 12(5) prohibited an employer from terminating the services of a permanent or a temporary workman on the ground of misconduct, in a manner other than the one prescribed in S.O. 15---No order of dismissal could be made unless the workman was informed in writing of the alleged misconduct within one month of the date of such misconduct or of the date on which the alleged misconduct came to the notice of the employer and given an opportunity to explain the circumstances alleged against him---Approval of the employer was required in every case of dismissal and the employer must initiate independent inquiries before dealing with charges against a workman.
(c) Contract Act (IX of 1872)---
----S. 23---Unlawful object---Parties could not contract out of the beneficial provisions in a statute. [p. 99] E
E.A. Evans v. Muhammad Ashraf PLD 1964 SC 536 ref.
(d) Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)---
----S. 2(i)---Driver---Workman---Duty as a driver predominantly involved manual work, therefore, he came within the meaning of workman.
(e) Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)---
----S. 2(i)---Workman---Determination---Designation or the quantum of salary was not the factor for determining whether a person was a workman or not---Nature of duties determined whether a person was a workman or not.
(f) Industrial Relations Act (X of 2012)---
----Ss. 33, 57(2)(b) & 88---Redressal of individual grievances---Unfair labour practices---Withdrawal of proceedings from provincial Labour Court---Scope---Employer was aggrieved of National Industrial Relations Commission's order whereby it transferred the workman's application from Labour Court to itself---Plea of employer was that since workman's application did not relate to unfair labour practices therefore same could not be transferred to National Industrial Relations Commission under S. 57(2)(b), Industrial Relations Act, 2012---Validity---As per S. 33(4), Industrial Relations Act, 2012, if the employer failed to communicate a decision to a worker within a period of fifteen days of the grievance being brought to his notice by the worker, or if the worker was dissatisfied with the employer's decisions, the worker could take the matter to the National Industrial Relations Commission---Workman, in the present case, was dissatisfied with the employer's decisions contained in reply to the grievance notice, therefore, worker invoked jurisdiction of the Labour Court---Workman's termination was not just unlawful but also unfair, National Industrial Relations Commission did not commit any illegality by requisitioning/calling case from Labour Court---As per S. 88(b), Industrial Relations Act, 2012 petition filed by worker before Labour Court had to be considered as "proceedings commenced" under the S.33(4) of Industrial Relations Act, 2012---Constitutional petition was dismissed.
Hafiz Arfat Ahmad Chaudhry and Ms. Kashifa Niaz Awan for Petitioner.
Abdul Hafeez Amjad for Respondent No.3.
2019 P L C 130
[Islamabad High Court]
Before Miangul Hassan Aurangzeb, J
Messrs SUI SOUTHERN GAS COMPANY LIMITED
Versus
GHULAM NABI DEESHAK, REGISTRAR TRADE UNIONS and others
W.P. No.3074 of 2017, decided on 7th December, 2018.
Industrial Relations Act (X of 2012)---
----S. 19(4)(5)---Contract employees of Gas Company seeking inclusion of names in the voter list of the members of Trade Union---Privity of contract---Trade Union moved application before Registrar, Trade Unions for inclusion of names of contract employees of Gas Company in the voter list of its members which was accepted---Contention of Gas Company was that names of contract employees could not be included in the voter list of Trade Union---Validity---Employees whose names had been included in the voter list of the members of Trade Union were performing their duties at the Company's premises---Company had contractual relationship with contractors/service providers who had been paying salaries/wages to the employees---No privity of contract existed between the Company and service provider and even between Company and workmen---Workers who performed the work at the premises of Company and whose services were engaged by the contractors/service providers were in fact employees of the Company---Work performed by such workers was of permanent nature---No infirmity had been pointed out in the impugned order passed by the Registrar Trade Unions---Constitutional petition was dismissed in circumstances.
Sui Southern Gas Workers Union v. Sui Southern Gas Company Limited 2012 PLC 247; Muhammad Hashim v. General Manager, Human Resources, Sui Southern Gas Co. Ltd. 2015 PLC (C.S.) 195 and 2010 SCMR 253 ref.
Fauji Fertilizer Company Ltd. v. National Industrial Relations Commission 2013 SCMR 1253; Karachi Electric Supply Corporation v. National Industrial Relations Commission 1983 PLC 367 and State Oil Company Limited v. Bakht Siddique 2018 SCMR 1181 rel.
Asim Iqbal for Petitioner.
Ch. Muhammad Junaid Akhtar for Respondent No.3.
Ch. Sagheer Ahmed for Respondent No.4.
Ashraf Ali Khan for Respondent No.5.
Muhammad Asif Gujjar Amicus Curiae.
2019 P L C 277
[Islamabad High Court]
Before Miangul Hassan Aurangzeb, J
SAEED AHMAD and others
Versus
CHAIRMAN O.G.D.C.L. and others
W.Ps. Nos. 1489, 1490, 1546 and 2000 of 2016, decided on 31st July, 2017.
(a) Industrial Relations Act (X of 2012)---
----Ss.31 & 54---Constitution of Pakistan, Art. 25---Discrimination---Bogus educational testimonials---National Industrial Relations Commissions (NIRC)---Jurisdiction---Petitioners were employees of Oil and Gas Development Corporation Limited (OGDCL) who were proceeded against departmentally for producing bogus educational testimonials---Plea raised by petitioners was that they were treated discriminately on account of their association with trade union---Validity---Petitioners could not claim to be discriminated against due to issuance of show-cause notices to them or initiation of inquiry against them on grounds that they were members/officers of trade union---Petitioners did not identify any instance at their hand (regarding their trade union activities) which could have irked OGDCL or caused issuance of show-cause notice to them---Mere fact that petitioners happened to be members/officers of trade union did not give them a cause under S.31(c) and (d) of Industrial Relations Act, 2012 to invoke jurisdiction of National Industrial Relations Commissions (NIRC) simply because an inquiry or disciplinary proceeding was initiated against them on grounds that they were alleged to have submitted bogus educational certificates and had committed an act of misconduct---High Court observed that submission of fake academic qualifications to an employer was indeed an act of misconduct but same did not have variables or different standards---Imposing of different penalties on employees against whom there was same charge was not proper and management of OGDCL must not discriminate---High Court declined to interfere in the matter---Constitutional petition was dismissed in circumstances
Province of Punjab v. Zulfiqar Ali 2006 SCMR 678; Muhammad Zafar v. Administrator, Market Committee 2011 PLC (C.S.) 1239; Akhtar Ali v. Director of Agriculture (Economics and Marketing) 2000 PLC (C.S.) 784; Muddasar Qayyum Nahra v. Ch. Bilal Ijaz 2011 SCMR 80; Malik Iqbal Ahmad Langrial v. Jamshed Aslam PLD 2013 SC 179; Mian Najeeb-ud-Din Owsi v. Amir Yar Waran PLD 2013 SC 428; Muhammad Nasir Mahmood v. Federation of Pakistan PLD 2009 SC 107; Searle Pakistan Limited v. Full Bench, National Industrial Relations Commission 2002 PLC 87; Muhammad Aslam Khan v. Messrs International Industries Ltd. 2007 PLC 350 and Deputy District Officer (Revenue), Qasoor v. Muhammad Munir Sajid 2013 SCMR 279 ref.
(b) Constitution of Pakistan---
----Art.199---Constitutional petition---Maintainability---Show-cause notice---Constitutional Petition against show-cause notice is not maintainable unless such notice has been issued without lawful authority, is wholly without jurisdiction, coram non judice or is based on mala fide.
Anwar Ali v. Chief Executive HESCO (WAPDA) 2009 SCMR 1492 rel.
Ch. Muhammad Junaid Akhtar Chohan, Jawad Khan, Abdul Hafeez Amjad for Petitioner.
Mushtaq Hussain Bhatti, Kashif Ali Malik, Abdul Majeed Chaudhry and Barrister Pirzada Muhammad Aurangzeb Shah and Haroon Rashid Chief HRO, O.G.D.C.L, for Respondents.
2019 P L C 1
[Sindh High Court]
Before Syed Hasan Azhar Rizvi, J
SINDH EMPLOYEES SOCIAL SECURITY INSTITUTION
Versus
MEHRAN SUGAR MILLS LTD. through Secretary
Miscellaneous Appeal No.39 and C.M.A. No. 1143 of 1997, decided on 17th July, 2018.
Provincial Employees' Social Security Ordinance (X of 1965)---
----Ss. 20, 46 & 57---Social Security Institution---Demand for social security contribution---Agreement with the individual to provide statutory benefits to the workers by the Social Security Institution---Effect---Demand notice by the department was issued to the establishment for payment of social security contribution---Plea of establishment was that department had failed to establish and maintain dispensary within its premises or a hospital at a place where sufficient workers were working or residing---Validity---Scheme of Social Security was a beneficial and remedial legislation to provide medical facilities to the employees of working class---Once notification was issued under the relevant provisions of Provincial Employees' Social Security Ordinance, 1965 notifying an establishment covered by the scheme then it was liable to contribute the social security contribution by operation of law---Specified benefits under the Ordinance would accrue to all the employees of the establishment who were working either in the same or in connection with the work of said establishment---Fact that employees concerned were unable to receive the benefit under Provincial Employees' Social Security Ordinance, 1965 would not affect the liability of establishment to contribute the social security contribution---Establishment might not get itself registered in terms of Provincial Employees' Social Security Ordinance, 1965 and might avoid payment of contribution on the plea that its employees had not been granted any benefits under the Ordinance---Benefit could be availed of by the employees who were registered with the department by their employer in terms of Provincial Employees' Social Security Ordinance, 1965 and not otherwise---Non-registration of employees with the department would not absolve the employer concerned if his establishment was notified under Provincial Employees' Social Security Ordinance, 1965 from his liability to contribute social security contribution---Department had appointed doctor to provide medical care to the secured workers of the notified units of the area---Department could enter into an agreement with an individual for the provisions of medical care---Secured workers had been deprived of the social security benefits which were not dependent upon the payment of contribution---Establishment could not take benefit of its own default---Statutory benefits could not be defeated or frustrated by paying medial allowance under some contract or under any other law---Any contract made contrary to law had no legal effect as Provincial Employees' Social Security Ordinance, 1965 was an overriding statute to provide statutory benefits to the secured workers---Owner of an establishment was liable to pay the contribution in respect of his employees engaged through contractors in or in connection with the work of notified establishment---Payment of contribution was imposed by the department which was recoverable by force of law under Land Revenue Act, 1967---Impugned judgment passed by Social Security Court was set aside---Appeal was allowed, accordingly.
1989 SCMR 888; PLD 1984 SC 241; 1998 SCMR 440; PLD 1989 SC 128; Sh. Muhammad Rafique Goreja and others v. Islamic Republic of Pakistan and others 2006 SCMR 1317 and Sindh Employees' Social Security Institution v. Messrs Spencer and Company (Pak) Limited 1998 SCMR 440 ref.
Mehran Sugar Mills LTD. v. Sindh Employees' Social Security Institution and 2 others 1991 PLC 310 distinguished.
1997 PLC 473 and PLD 1977 SC 197 rel.
Jawad A. Sarwana for Appellant.
Qadir H. Sayeed for Respondent.
2019 P L C 63
[Sindh High Court]
Before Irfan Saadat Khan and Adnan-ul-Karim Memon, JJ
Messrs GERRY'S DNATA (PVT.) LTD. through Manager and 7 others
Versus
NATIONAL INDUSTRIAL RELATIONS COMMISSION and 7 others
C.P. No. D-635 of 2018, heard on 9th February, 2018.
Industrial Relations Act, 2011 (III of 2012)---
----Ss. 31 & 54---Order of National Industrial Relations Commission, suspension of---Petitioner was an industrial concern and its grievance was that Full Bench of National Industrial Relations Commission (NIRC) did not suspend order passed by single Bench of the Commission whereas, matter was still sub judice before it---Petitioner sought indulgence of High Court as it apprehended passing of any adverse action rendering petitioner remediless for the time being---Validity---During pendency of lis before Full Bench of NIRC, order in question of status quo was passed on complaint and same adversely effected legal right of company of petitioner---Whether order was suspended or otherwise, it was yet to be ascertained therefore, it was for the Full Bench of NIRC to decide such factum---High Court directed the Full Bench of NIRC to decide complaint/contempt applications filed by workmen and if any application for recalling/setting aside of status quo order would be filed by petitioner same would be decided within reasonable time---High Court suspended operation of status quo order passed by Full Bench of NIRC---Constitutional petition was allowed accordingly.
Muhammad Faruq Ghani for Petitioners.
M.A.K. Azmati for Respondents.
Shaikh Liaquat Hussain, Assistant Attorney General.
2019 P L C 72
[Sindh High Court]
Before Irfan Saadat Khan and Adnan-ul-Karim Memon, JJ
Syed FAISAL AZIZ
Versus
SINDH LABOUR APPELLATE TRIBUNAL and 2 others
C.P. No.D-3115 of 2011, decided on 21st May, 2018.
Industrial Relations Ordinance (XXIII of 1969)---
----S. 25-A---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S. 2 (i) & S. Os. 12 & 15---Grievance petition---Sales Co-ordinator---Allegations of misappropriation and negligence---Termination from service without inquiry---Effect---"Workman"---Determination of---Procedure---Employee was terminated from service without holding any inquiry---Grievance petition moved by the workman was allowed and he was reinstated into service with all back benefits by the Labour Court but Labour Appellate Tribunal dismissed the said petition---Validity---Whether a person was a workman or not would depend upon the nature and work assigned to him and not the designation---If from the nature of the duties assigned to an employee appeared to be clerical and manual in nature for all practical purposes then said person should be considered as 'workman'---Employee was appointed as Store Incharge and he was to work under Sales Manager---Employee was engaged in clerical and manual job and he was a 'workman' and services of "workman" could not be terminated without inquiry by providing a fair opportunity of hearing---Provisions of S. Os. 12 & 15 of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 had not been complied with as neither any inquiry was held nor show cause notice was issued---Legal requirements before terminating the employee had not been fulfilled in the present case---Proceedings initiated against the employee could not be termed to be valid---Termination letter issued by the employer was vacated---Employer would be at liberty to initiate de novo proceedings against the workman in accordance with law---Constitutional petition was allowed accordingly.
Abdul Razzaq v. Messrs Ihsan Sons Limited and others 1992 SCMR 505 and Muslim Commercial Bank Limited v. Chairman, Sindh Labour Appellate Tribunal and others 1992 PLC 1023 ref.
Messrs Kohinoor Marble Industries Limited v. Mirza Zamir Baig and another 1991 PLC 408; Managing Director, Shahi Bottlers (Pvt.) Limited v. The Punjab Labour Appellate Tribunal, Lahore and others 1993 SCMR 488; General Manager, Hotel Intercontinental, Lahore and another v. Bashir A. Malik and others PLD 1986 SC 103 and Mahmood Hussain Larik and others v. Muslim Commercial Bank Limited 2009 SCMR 857 rel.
Shehenshah Hussain for Petitioner.
Barrister Shahrayar Mehar, Assistant Advocate-General Sindh for Respondents Nos.1 and 3.
Syed Ali Ahmed Tariq for Respondent No.2.
2019 P L C 83
[Sindh High Court]
Before Irfan Saadat Khan and Adnan-ul-Karim Memon, JJ
HABIB BANK LTD., through Attorneys
Versus
SAFEER AHMED and 12 others
Constitutional Petition No.D-761 of 2018, decided on 2nd March, 2018.
Industrial Relations Act (X of 2012)---
----Ss. 33, 54(e) & 57(2)(c)---Bank employee---Allegations of unfair labour practice---Retirement from service---Grievance petition---Injunction, grant of---National Industrial Relations Commission suspended order for retirement from service of the employee---Contention of respondent-Bank was that no order for reinstatement could be passed at the initial stage of grievance petition---Validity---Matter between the parties was still subjudice before National Industrial Relations Commission and jurisdiction to entertain the grievance petition was yet to be decided---Order to suspend the operation of retirement letter was not called for, in circumstances---Impugned order had been passed during pendency of grievance petition---National Industrial Relations Commission was directed to decide the matter within a period of thirty days in accordance with law---High Court directed that no coercive action should be taken in the meanwhile against the Bank---Constitutional petition was disposed of accordingly.
Maersk Pakistan Limited v. Pakistan through Secretary Ministry of Overseas Pakistan and 11 others 2017 PLC 176 ref.
Javed Asghar Awan for Petitioner.
Malik Altaf Javaid for Respondents Nos.1 to 12.
Shaikh Liaquat Hussain, Assistant Attorney-General.
2019 P L C 101
[Sindh High Court]
Before Muhammad Faisal Kamal Alam, J
Syed RAZA HAIDER RIZVI
Versus
Messrs GORDON SHIPPING COMPANY LTD. and another
Suit No. 886 of 1999, decided on 2nd July, 2018.
Employer and Employee---
----Suit for damages/compensation---Medical facility, non-providing of by employer---Effect---Plaintiff was employee of defendants (employers) who were bound to provide him proper medical treatment---Plea raised by plaintiff was that due to failure of defendants to provide medical treatment, he had suffered permanent physical disability due to injury sustained by him during duty---Validity---Defendants neither produced any document about complete recovery of plaintiff nor had questioned authenticity of documents produced by plaintiff---Expert opinion of doctors further substantiated the fact that till March-1999 plaintiff was not fully recovered from injury which inhibited his pursuit of career---Testimony of plaintiff (employee) and undisputed documentary evidence produced by him weighed in favour of plaintiff as against oral evidence of defendant that complete medical treatment was given to plaintiff---To extent of negligence shown by defendants (employers) in providing incomplete medical treatment of plaintiff stood proved---Suit for damages and compensation was decreed accordingly.
Arshad Iqbal for Plaintiff.
Ms. Asmara Parveen for Defendant No.1.
Aga Zafar Ahmed for Defendant No.2.
2019 P L C 115
[Sindh High Court]
Before Irfan Saadat Khan and Adnan-ul-Karim Memon, JJ
Rana MUHAMMAD RASHEED
Versus
LABOUR APPELLATE TRIBUNAL SINDH and 3 others
Constitution Petition No. D-615 of 2017, decided on 13th February, 2018.
Sindh Industrial Relations Act (XXIX of 2013)---
----S. 34---Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, R. 12-A--- Civil Service Regulations (CSR), Art. 171---Grievance petition---Limitation---Correction in date of birth of an employee---Matters with regard to terms and conditions of service---Jurisdiction---Employee filed grievance petition for correction in his date of birth---Department moved an application for rejection of said petition which was dismissed by the Labour Court but Labour Appellate Court Tribunal accepted the said application and rejected the grievance petition being not maintainable---Validity---Employee started efforts for change in his date of birth few months prior to his retirement which was an afterthought---Matter with regard to correction in the date of birth of an employee was part of terms and conditions of service and could not be resorted to through a civil suit---Civil servant could not seek alteration in his date of birth at the verge of his retirement or otherwise through a suit---Date of birth once recorded in the service book could not be altered unless an application for the same was moved by the employee within a period of two years from the date his service book was opened---Employee could not explain inordinate delay in seeking correction in his date of birth at the time of joining the service---Constitutional petition was not maintainable which was dismissed in circumstances.
Dr. Muhammad Aslam Baloch v. Government of Balochistan 2014 SCMR 1723; Ali Azhar Khan Baloch v. Province of Sindh 2015 SCMR 456 and Shahid Ahmed v. Oil and Gas Development Company Ltd and others 2015 PLC (C.S.) 267 rel.
Qadir Hussain Khan for Petitioner.
Bashir Ahmed for Respondents Nos.2 and 3.
Muhammad Rafiq Rajorvi Additional Advocate General.
2019 P L C 121
[Sindh High Court]
Before Irfan Saadat Khan and Adnan-ul-Karim Memon, JJ
Messrs CIM SHIPPING INC. through duly Authorized Person
Versus
TOUSIF AHMED and 2 others
Constitutional Petition No.D-1885 of 2015, decided on 13th April, 2018.
Industrial Relations Ordinance (XXIII of 1969)---
----S. 25-A---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S. 2(h)(i)---Industrial Relations Ordinance (XCI of 2002), S. 2(xxx)---Grievance petition---Maintainability---Accountant---Absence from duty due to ailment---Termination from service---"Workman"---Determination of---Factors---Employee remained hospitalized and he was terminated from service due to absence from duty---Employee produced evidence in grievance petition which was not cross-examined by the Establishment---Establishment led no evidence on its behalf despite opportunities---Grievance petition moved by the employee was allowed and he was awarded compensation to the extent of two years' salary in lieu of his reinstatement in addition to his other legal dues---Contention of Establishment was that petitioner was employed in a managerial and administrative capacity and he was excluded from the definition of "workman"---Validity---Employee had denied the allegations of Establishment and nothing was on record to rebut the contentions of employee---Labour Court had dilated upon the issues in an elaborative manner and recorded findings in affirmative by appreciating the material available on record---No ground existed for re-evaluation of the evidence produced by the employee---High Court in constitutional jurisdiction could not interfere in the concurrent findings of facts recorded by the competent forum as no illegality, infirmity or irregularity had been pointed out in the impugned judgments---Constitutional petition was dismissed, in circumstances.
Granulars (Pvt.) Limited v. Muhammad Afzal and others 2002 PLC 01; Managing Director, Shahi Bottlers (Pvt.) Limited v. The Punjab Labour Appellate Tribunal Lahore and 2 others 1993 SCMR 488; Rana Mukhtar Ahmed v. Punjab Labour Appellate Tribunal and 2 others PLD 1992 SC 118; 1985 SCMR 1511; General Manager, Hotel Intercontinental Lahore and another v. Bashir A. Malik and others PLD 1986 SC 103; 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 and ENMAY ZED Publication (Pvt.) v. Sindh Labor Appellate Tribunal and others 2001 SCMR 565 ref.
National Bank of Pakistan and another v. Anwar Shah and others 2015 SCMR 434; General Manager National Radio Telecommunication Corporation, Harri Pur District Abotabad v. Muhammad Aslam and others 1992 SCMR 2169 and Dilshad Khan Lodhi v. Allied Bank of Pakistan and others 2008 SCMR 1530 rel.
Agha Zafar Ahmed for Petitioner.
Hassan Shikoh for Respondent for No.1.
2019 P L C 140
[Sindh High Court]
Before Adnan-ul-Karim Memon and Mrs. Kausar Sultana Hussain, JJ
OIL INDUSTRIES PAKISTAN (PVT.) LIMITED through Attorney
Versus
ABDUL REHMAN and others
C.Ps. Nos. D-77 and D-78 of 2017, decided on 30th April, 2018.
(a) Sindh Industrial Relations Act (XXIX of 2013)---
----S. 34---Constitution of Pakistan, Art. 10-A---Grievance petition---Employee of a company---Absence from duty---Termination from service without holding inquiry---Non-service of grievance notice by the employee---Effect---Company was directed to pay reasonable compensation to the employee in lieu of his reinstatement in service---Validity---Company had failed to prove allegations against the employee---Party had to establish its own case on merits and could not rely upon the weakness of other side---Service of employee were not to be terminated without inquiry and grant of opportunity of hearing---Right of fair trial and due process was a Fundamental Right of every person---When grievance petition had been decided on merits then question of non-service of grievance notice was immaterial---Courts below had dilated upon the issues in an elaborative manner and considered every aspect of the case---High Court in constitutional jurisdiction could not interfere in the concurrent findings of facts rendered by the Courts below unless there was illegality, infirmity or material irregularity in the impugned judgments---Constitutional petition was dismissed, in circumstances.
Vice President National Bank of Pakistan Gujranwala v. Punjab Labour Appellate Tribunal and others 1985 PLC 1053; Trustees of the Port of Karachi v. Muhammad Saleem 1994 SCMR 2213; Messrs Wah Industries Limited v. Punjab Labour Appellate Tribunal 1998 PLC 1; HMB Tanneries (Pvt) Limited v. Wajid Ali Shah and 2 others 2016 PLC 39; Abdul Rehman v. Zia-ul-Haque Makhdoom and others 2012 SCMR 954; Faiz Muhammad v. Ghulam Shabbir 2012 YLR 2403; Wahid Bakhsh v. Messrs Paracelsus Pakistan (Pvt.) Ltd. and 2 others 2015 PLC 220; Muhammad Saleem Nagani v. MCB Ltd. and others 2006 PLC 304;, Shiraz Tufail v. The State 2007 SCMR 518; Faisal Afzal Sheikh v. Additional District Judge, Lahore PLD 2004 Lah. 668; Messrs Hilal Trading Company v. Swami Narain Temple Estate and 2 others 2013 YLR 1103 and Baluchistan Engineering Works Ltd. v. Abdul Hameed and others 2007 SCMR 1160 distinguished.
Engineer Majeed Ahmed Memon v. Liaquat University of Medical and Health Sciences, Jamshoro and others 2014 SCMR 1263; Dilshad Khan Lodhi v. Allied Bank of Pakistan and others 2008 SCMR 1530 and General Manager National Radio Telecommunication Corporation Haripur District Abbotabad v. Muhammad Aslam and others 1992 SCMR 2169 rel.
(b) Constitution of Pakistan---
----Art. 10-A---Fair trial and due process, right of---Scope---Right of fair trial and due process was a fundamental right of every person.
Syed Irshad-ur-Rehman for Petitioners.
Rafiullah for Respondent No.1 in both the Petitions.
2019 P L C 158
[Sindh High Court]
Before Salahuddin Panhwar, J
SESSI UNITED STAFF UNION SINDH (CBA) through General Secretary and another
Versus
PROVINCE OF SINDH through Secretary Labour and 6 others
Constitution Petition No.S-510 of 2018, decided on 6th March, 2018.
Sindh Employees Social Security Act (VI of 2016)---
----S. 3(1)---Constitution of Pakistan, Art. 199---"Workman"---Determination---Constitutional jurisdiction of High Court was not available for entertaining and deciding the disputed question as to determination of Status of employee as "Workman" or otherwise---Where maintainability of a lis itself was questionable plea of existence of prima facie case would not be available---Constitutional petition was not maintainable in circumstances.
Muhammad Nishat Warsi for Petitioners.
Barister G. Shabbir Shah Addl. A.G. for Respondent.
Javed Bukhari for Respondents Nos.2 to 4.
Sarmad Hani for proposed interveners.
2019 P L C 167
[Sindh High Court]
Before Muhammad Ali Mazhar and Agha Faisal, JJ
NATIONAL DATABASE AND REGISTRATION AUTHORITY, (NADRA) through DG/Director
Versus
REGISTRAR OF TRADE UNIONS, SINDH and another
C.P. No.D-2138 of 2014, decided on 15th February, 2019.
Industrial Relations Act (X of 2012)---
----S.2(xxxii)---National Database and Registration Authority Ordinance (VIII of 2000), S. 43---National Database and Registration Authority---Trans-provincial establishment---Formation of Trade Unions at Provincial Level---National Database and Registration Authority Employees Union registered by Registrar Trade Unions Sindh---Validity---Industrial relations laws were not applicable to National Database and Registration Authority---National Database and Registration Authority was set up pursuant to a federal law and it was a trans-provincial establishment---No Trade Union could be registered by the Registrar Trade Unions Sindh but registration could be applied to the National Industrial Relations Commission---Impugned certificate had been issued to the employees without lawful authority by the Registrar Trade Unions Sindh, which was set aside---Constitutional petition was allowed, accordingly.
Pakistan Workers Federation, Balochistan v. Federation of Pakistan 2014 PLC 351 and National Telecommunication Corporation v. National Industrial Relations Commission 2014 SCMR 1833 rel.
Adeel Aftab and Ms. Samina Iqbal for Petitioner.
Miran Muhammad Shah, Addl. A.G.
Muhammad Zahid Khan, Assistant Attorney General.
Reejhu Mal S. Sajnani, Assistant Law Officer Labour, Representative of Registrar of Trade Union, Sindh (Respondent No.1.)
None present for Respondent No.2.
2019 P L C 182
[Sindh High Court]
Before Irfan Saadat Khan and Adnan-ul-Karim Memon, JJ
Messrs ISLAND TEXTILE MILLS LTD. through Authorized Officer
Versus
MEHDI KHAN and 3 others
Constitution Petition No. D-5262 of 2013, decided on 16th February, 2018.
(a) Payment of Wages Act (IV of 1936)---
----Ss. 15 & 17---Sindh Industrial Relations Act (XXIX of 2013), S.2(xxxii)---Store keeper having voluntarily resigned from service---Claim for payment of gratuity---"Workman"---Determination of---Procedure---Company refused to pay dues to the employee on the premise that he voluntarily resigned from service without handing over charge of the store---Competent Authority accepted the application of employee and directed the company to deposit amount of Rs.3,78,000/- being legal dues of the employee---Labour Court set aside the order of Competent Authority but Labour Appellate Tribunal restored the same---Validity---Designation of person should not be considered for determining his status of employment in an establishment to be that of an officer or a workman rather Court had to consider the nature of duties and functions of a person to determine his status as to whether he was a "workman" or not---Duties assigned to the employee were of clerical and manual nature---Findings of Labour Court were not based on correct appreciation of law---When a public servant/permanent workman submitted a letter of resignation then his service/employment would stand terminated from the date on which the letter of resignation was accepted by the Competent Authority---No disciplinary action had been initiated against the employee for his alleged act of late handing over the charge of Store---Employee served the Company for twenty two years and company was responsible to pay salary and other legal dues to its employee for the period it had been served---No illegality, infirmity or material irregularity had been pointed out in the impugned order passed by the Labour Appellate Tribunal---High Court in its constitutional jurisdiction could not interfere in the concurrent findings of facts recorded by two fora---Constitutional petition was dismissed, in circumstances.
National Bank of Pakistan and another v. Anwar Shah and others 2015 SCMR 434 rel.
(b) Constitution of Pakistan---
----Art. 199---Constitutional jurisdiction of High Court---Scope---High Court in its constitutional jurisdiction could not interfere in the concurrent findings of facts recorded by two fora.
(c) Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)---
----S.2(i)---'Workman---Meaning---"Workman" means any person employed in any industrial or commercial establishment to do any skilled or unskilled, manual or electrical work for hire or reward.
(d) Sindh Industrial Relations Act (XXIX of 2013)---
----S.2(xxxii)---'Worker and workman---Meaning---The worker and workman mean that person not falling within the definition of 'employer' who is employed as a supervisor or as an apprentice but does not include a person, who is employed mainly in managerial or administrative capacity.
(e) Words and phrases---
----'Resignation'---Meaning---'Resignation' is a term of legal on, having legal connotations which describe certain legal results---Resignation is characteristically the voluntary surrender of a position by the one resigning, made freely and not under duress, and the work is defined generally.
Corpus Juris Secundum, Volume LXXVII at page 77 rel.
(f) Civil service---
----Resignation---Scope---When a public servant submitted a letter of resignation, his service would stand terminated from the date on which the letter of resignation was accepted by the Competent Authority.
Javed Asghar Awan for Petitioner.
Ch. Muhammad Rafiq Rajorvi Additional Advocate General for Respondents Nos.2 to 4.
2019 P L C 233
[Sindh High Court]
Before Adnan-ul-Karim Memon and Agha Faisal, JJ
BIBI HAJRA
Versus
TRUSTEE OF THE PORT OF KARACHI through Chairman and another
C.P. No.D-6548 of 2016, decided on 15th August, 2018.
Industrial dispute
----Date of birth, correction of---Scope---Contention of employee was that her date of birth was 22-02-1961 instead of 22-02-1955---Grievance petition filed by the employee was allowed by the Labour Court but Labour Appellate Tribunal dismissed the same---Validity---Employee was appointed as Female Peon on 17-07-1995 and at the time of recruitment her date of birth was recorded as 22-02-1955 and not 22-02-1961---Employee served her grievance notice after her retirement from service---Employee had failed to substantiate her claim by producing school certificate/birth certificate before the Trial Court---Employee had not filed her case for correction of date of birth before the department within the period of two years from the date of joining service---Employee filed representation before the department for change of her date of birth after twenty three years when she was near her retirement---Constitutional petition of employee was dismissed, in circumstances.
Karachi Metropolitan Corporation v. Rehmat Masih and others 2003 PLC 16; Khawaja Naseeruddin v. Chairman, PNSC, Karachi and others 2004 PLC 453; Muhammad Bashir Sulehria v. M.C.L. through Administrator, District City Government, Lahore 2005 PLC 114 and Professor Dr. Muhammad Salam Bloch v. Government of Baluchistan and others 2014 SCMR 1723 ref.
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.
Ch. Muhammad Ashraf for Petitioner.
Bashir Ahmed for Respondent No.1.
2019 P L C 249
[Sindh High Court]
Before Khadim Hussain M. Shaikh and Arshad Hussain Khan, JJ
RASHID HUSSAIN and others
Versus
PTCL and others
C.Ps. Nos.D-1492 along with 1493, 1494, 1495, 1496 and 1422 of 2017, decided on 18th February, 2019.
(a) Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)---
----S.16---Employees of Pakistan Telecommunication Company Limited having opted Voluntary Separation Scheme---Eviction from residential accommodation---Scope---Company filed complaint against the employees for their eviction from the residential accommodation which was accepted---Validity---Employees had accepted the severance of their ties with the company by opting settlement under Voluntary Separation Scheme---Residential accommodation was to be vacated by the employees by specified date, otherwise monthly rent was to be charged on market based rate as prescribed by the company---Employees had accepted the terms and conditions provided and agreed under the Voluntary Separation Scheme---Object of Voluntary Separation Scheme was to reduce the surplus staff and to bring the company in financial efficiency---Considerable amount had been paid to the employees toward ex-gratia besides the terminal benefits---Said amount had not been paid for doing any work or rendering any service---Employees had ceased to be under the employment of the company and they could not agitate for any kind of right which had been provided to them during service---Employees could not refuse to hand over the residential accommodation which had been provided to them during their service with the company---No illegality had been pointed out in the impugned orders passed by the Courts below---Constitutional petition was dismissed, accordingly.
Sultan Ahmed v. VIth Civil Judge and Judicial Magistrate District Malir, Karachi and 2 others 2016 PLC 411 distinguished.
Pakistan Telecommunication Company Limited and others v. Yasmeen Tabassum and others 2014 PLC 176 rel.
(b) Constitution of Pakistan---
----Art.199---Constitutional jurisdiction of High Court---Scope.
Article 199 of the Constitution casts an obligation on the High Court to act in the aid of law and protects the rights within the frame work of Constitution, and if there is any error on the point of law committed by the courts below or the tribunal or their decision takes no notice of any pertinent provision of law, then obviously High Court may exercise constitutional jurisdiction subject to the non-availability of any alternate remedy under the law. This extra ordinary jurisdiction of High Court may be invoked to encounter and collide with extraordinary situation. This constitutional jurisdiction is limited to the exercise of powers in the aid of curing or making correction and rectification in the order of the courts or tribunals below passed in violation of any provision of law or as a result of exceeding their authority and jurisdiction or due to exercising jurisdiction not vested in them or non-exercise of jurisdiction vested in them. The jurisdiction conferred under Article 199 of the Constitution is discretionary with the objects to foster justice in aid of justice and not to perpetuate wrong. However, if it is found that substantial justice has been done between the parties then this discretion may not be exercised. So far as the exercise of the discretionary powers for upsetting the order passed by the courts below is concerned, High Court has to comprehend what illegality or irregularity and/or violation of law has been committed by the courts below which caused miscarriage of justice.
Muslim Commercial Bank Ltd. through Attorney v. Abdul Waheed Abro and 2 others 2015 PLC 259 rel.
Mansoor Ahmed for Petitioners.
Ziaul Haq Makhdoom along with Ms. Syeda Busshra Shafique, Assistant Manager Legal for Respondents Nos.1 and 2.
Pervaiz Ahmed Mastoi, AAG along with Ms. Mahmooda Suleman, State Counsel for Respondents Nos.3 and 4.
2019 P L C 268
[Sindh High Court]
Before Irfan Saadat Khan and Adnan-ul-Karim Memon, JJ
Messrs SINDH CLUB through Secretary and another
Versus
MAZHAR HUSSAIN and others
C.Ps. Nos. 7369 and 7370 of 2015, decided on 16th November, 2018.
Industrial Relations Ordinance (XCI of 2002)---
----Ss.46 & 2(xxx)--- Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(i)---Grievance petition---Baker and cook of a club---Termination from service---Worker/workman---Determination of---Principles---Employees were terminated from service against which grievance petition was accepted and they were reinstated with back benefits---Contention of respondent was that employees were not permanent workers and they could not be reinstated into service with back benefits---Validity---Duties assigned to the employees were of manual nature which did fall within the ambit of a worker and workman---Concurrent findings rendered by the Courts below could not be interfered with unless some question of law or erroneous appreciation of evidence was made out---Courts below had dilated upon the issues in an elaborative manner and recorded its findings by appreciating the evidence of the parties---High Court in constitutional jurisdiction could not interfere in concurrent findings recorded by the competent fora below---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.
Dilshad Khan Lodhi v. Allied Bank of Pakistan and others 2008 SCMR 1530 and General Manager National Radio Telecommunication Corporation Haripur, District Abotabad v. Muhammad Aslam and others 1992 SCMR 2169 rel.
Muhammad Ali Khan for Petitioners.
Rafiullah for Respondents.
2019 P L C 79
[Punjab Labour Appellate Tribunal]
Before Justice (R) Syed Iftikhar Hussain Shah, Chairman
SECRETARY (C&W) PUNJAB LAHORE and others
Versus
ZAFAR IQBAL and others
Labour Appeal No.141 of 2017, decided on 9th October, 2018.
Punjab Industrial Relations Act (XIX of 2010)---
----Ss. 33 & 47---Regularization of service---Grievance petition---Ex parte proceedings and order, setting aside of---Employers, on date of hearing having absented from the court, were proceeded ex parte and then after recording evidence, grievance petition of the workmen was accepted---Employer being aggrieved by said order made a petition before Presiding Officer for setting aside ex parte order, which was dismissed---Validity---Law Officer of the employer had contended that absence was not deliberate, but was due to ill health of the representative of the employers---Application for setting aside ex parte proceedings and order was filed by the employers after 7-1/2 months of passing of ex parte judgment, whereas period of 30 days was available for filing of said application under Art. 181 of the Limitation Act, 1908---Question of limitation could not be considered a "technicality" simpliciter, as it had got its own significance and would have substantial bearing on merits of the case---Law of limitation was required to be followed strictly---Employers were required to explain the delay of each day in filing of petition, but no plausible explanation was given---Ill health of representative was alleged for non-appearance before the court, but no proof was produced in that respect---Trial Court had rightly dismissed the petition---Impugned judgment of the Trial Court, being in accordance with law, same was maintained and appeal being without merits was dismissed, in circumstances.
1992 SCMR 707; 1979 CLC 288 and PLD 1989 SC 627. ref.
PLD 1976 SC 258; 1978 SCMR 367; PLD 1958 SC 104; PLD 1956 FC 72; PLD 1964 SC 97; PLD 1949 PC 45; PLD 1969 Lah. 1039; PLD 1973 SC 236; PLD 1975 SC 331; 1989 SCMR 467; 1949 SCMR 271; 1988 SCMR 1354; 1987 SCMR 1606; 1989 SCMR 1149; 1981 SCMR 244; 1984 SCMR 177; 1956 AC 736; PLD 1959 SC 276; 1977 PLC (C.S.T) 165 and PLD 1990 SC 692 rel.
M. Ayub Khan DDA for Appellants.
2019 P L C 25
[Lahore High Court (Multan Bench)]
Before Muzamil Akhtar Shabir, J
Messrs SHAMIM AND COMPANY
Versus
PUNJAB LABOUR APPELLATE TRIBUNAL and others
Writ Petition No. 5735 of 2014 and C.M. No. 7330 of 2017, decided on 8th June, 2018.
(a) Payment of Wages Act (IV of 1936)---
----Ss.15 & 17(1)(a)---Appeal---Pre-conditions---Claim of workman for recovery of salary was allowed by the Authority---Prior to filing of appeal against said order of Authority the aggrieved party was required to deposit the decretal amount before the Authority and get issued certificate to that extent---Proviso to S. 17(1)(a) of the Act was mandatory and non-compliance of the same would result in dismissal of appeal.
Tehsil Nazim TMA, Okara v. Abbas Ali and 2 others 2010 SCMR 1437 rel.
(b) Limitation Act (IX of 1908)---
----S.5---Condonation of delay---Principle---Delay of each day had to be explained.
Qaisar Mushtaq Ahmad v. Controller of Examinations and others PLD 2011 SC 174 and Lt. Col. Nasir Malik v. Additional District Judge, Lahore and others 2016 SCMR 1821 ref.
Malik Sohail Ashiq Shajra for Applicant/Petitioner.
2019 P L C 38
[Lahore High Court]
Before Jawad Hassan, J
EMPLOYEES OLD-AGE BENEFIT INSTITUTION
Versus
PUNJAB LABOUR COURT NO.5, SARGODHA and another
W.P. No.47263 of 2017, decided on 26th October, 2018.
(a) Employees' Old Age Benefit Act (XIV of 1976)---
----Ss. 22(2), 33 & 35---Constitution of Pakistan, Art. 199---Punjab Industrial Relations Act (XIX of 2010), S. 2(xx)---Constitutional petition---Maintainability---Grievance petition---Employee of a textile mill---Old-age pension, grant of---Labour Court, jurisdiction of---Industrial dispute---Scope---Order without jurisdiction---Scope---Employee applied for old-age pension but his claim was refused by Regional Claim Committee holding that he had not completed the mandatory length of service---Grievance petition filed by the employee was accepted by the Labour Court---Validity---Remedy of appeal against the decision of Institution was available to the employee but he filed grievance petition before Labour Court which decided the matter---Act of employee by passing the statutory remedy available to him was not justified and he could not be rescued by High Court---Where an alternate remedy was available to any person then he could not be allowed to supersede or skip the same---Nobody could be allowed to bypass any provision of law and procedure laid down for a particular purpose---Labour Court could deal with the adjudication and determination of industrial dispute, unfair labour practices and matters with regard to implementation or violation of a settlement referred to it by the Government---Employee worked for textile mill and present dispute was not an industrial dispute---Question of payment of pension did not fall within the definition of unfair labour practice---Every individual had right to be dealt with in accordance with law and no person was liable to do which the law did not require him to do---Impugned action was initiated and taken to its logical conclusion under a misconception of law and under a wrong law and it had vitiated entire proceedings including final order---Where procedure had been provided for doing a thing in a particular manner then same should be done in that manner alone and not in any other way or it should not be done at all otherwise it would be considered non-compliance of the legislative intent and would be deemed illegal---Labour Court had not acted in accordance with law by assuming the jurisdiction of which it was not bestowed---Labour Court was not empowered to take cognizance of the matter and its order was illegal and void---Entire exercise by the Labour Court while passing the impugned orders was illegal and without jurisdiction---Where order was passed without jurisdiction, High Court in its constitutional jurisdiction could interfere into the matter---Impugned orders had been passed by the Labour Court without jurisdiction therefore, there was no need to avail remedy of appeal by the department---Impugned order passed by the Courts below were set aside---Employee would be free to approach the competent forum of law for redressal of his grievance in accordance with law---Constitutional petition was allowed, in circumstances.
Abdul Rashid Malik and others v. General Manager, Pakistan Railways and others 1992 PLC 1116; Zahid Majid v. Labour Officer and Inspector of Factories, Sukkur and 3 others 1988 PLC 914; Pakistan and another v. Qazi Ziauddin PLD 1962 SC 440; Nagina Silk Mill, Lyallpur v. The Income-tax Officer A-Ward, Lyallpur PLD 1963 SC 322; The Murree Brewery Co. Ltd v. Pakistan through the Secretary Government of Pakistan Works Division and 2 others PLD 1972 SC 279 and Sky Rooms Ltd. Karachi v. Assistant Collector of Central Excise and Land Customs Karachi PLD 1982 Kar. 244 ref.
Employees Old-Age Benefits Institution, Rawalpindi and another v. Ejaz Ahmad 1988 PLC (C.S.) 261; Sardar Sultan Ahmad Khan v. Government of Punjab through Project Director, Department of Agriculture Punjab, Lahore and 4 others 2001 MLD 1013; District Education Officer and 2 others v. Zahid Mehmood and another 2017 PLC (C.S.) 1009; Faisal Sultan v. E.D.O. (Education) and others 2011 PLC (C.S.) 419; Azizullah Memon v. Province of Sindh and another 2007 SCMR 229; Abdul Khaliq Mandokhel v. Chairman, Balochistan Public Service Commission 2016 PLC (C.S.) 1184; Falak Niaz v. Amal Din 2016 YLR 2047; Sabz Ali Khan v. Inspector General of Police, Khyber Pakhtunkhwa 2016 YLR 1279; Cantonment Board Clifton v. Sultan Ahmed Siddiqui 2016 CLC 919 and Federation of Pakistan v. Asad Javed PLD 2016 Isl. 53 rel.
(b) Constitution of Pakistan---
----Art. 4---Every individual had right to be dealt with in accordance with law and no person was liable to do which the law did not require him to do.
(c) Constitution of Pakistan---
----Art. 199---Constitutional jurisdiction of High Court---Scope---Where order was passed without jurisdiction, High Court in its constitutional jurisdiction could interfere into the matter.
(d) Administration of justice---
----Where procedure had been provided for doing a thing in a particular manner, same should be done in that manner alone and not in any other way or it should not be done at all.
Hafeez Saeed Akhtar for Petitioner.
M. R. Awan for Respondent No.2.
2019 P L C 68
[Lahore High Court]
Before Ayesha A. Malik and Jawad Hassan, JJ
Ch. RAHMAT ALI MEMORIAL TRUST
Versus
PUNJAB EMPLOYEES SOCIAL SECURITY INSTITUTION through Deputy Director and others
I.C.A. No. 1737 of 2015, heard on 4th October, 2017.
Provincial Employees' Social Security Ordinance (X of 1965)---
----S. 1(2)---Payment of social security contribution---Notification for exemption of payment of contribution---Withdrawal of---Requirements---Special notification for exemption from payment of social security contribution was issued in favour of the organisation---Department subsequently issued letter to the organisation to pay social security contribution---Constitutional petition filed by the organisation was dismissed by Single Judge of High Court on the ground that it had alternate efficacious remedy---Contention of organisation was that general notification could not take away the right accrued through special notification issued by the competent authority---Validity---No alternate efficacious remedy under the law was available to the organization (petitioners)---Rights had been accrued in favour of petitioner due to notification passed in its favour which could not be set aside by any subsequent notification---Department without giving any notice or right of hearing proceeded against the petitioner---Impugned notification issued subsequently was general in nature---Rights accrued in favour of petitioner could not be withdrawn without affording an opportunity of hearing and disclosing reasons---Order passed by the Single Judge of High Court was set aside by the Division Bench---Department was directed to follow due process before raising any demand, if in their opinion petitioner did fall within their purview---Intra court appeal was allowed in circumstances.
State Life Insurance Corporation of Pakistan through Chairman and others v. Mst. Sardar Begum and others 2017 SCMR 999; Raja Industries (Pvt.) Ltd. through General Manager v. Central Board of Revenue, Government of Pakistan, Islamabad through Chairman and 4 others 1996 MLD 980; Neimat Ali Goraya and 7 others v. Jaffar Abbas, Inspector/Sargent Traffic through S.P., Traffic, Lahore and others 1996 SCMR 826 and Messrs Standard Printing Press v. Sindh Employees' Social Security Institution 1988 SCMR 91 ref.
Hafeez Saeed Akhtar for Appellant.
Muhammad Nauman Aslam Raza for Respondents.
2019 P L C 162
[Lahore High Court]
Before Asim Hafeez, J
CHAIRMAN, LAHORE GYMKHANA CLUB, UPPER MALL, LAHORE and others
Versus
BASHARAT ALI and others
Writ Petition No. 12664 of 2019, decided on 29th March, 2019.
(a) Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)---
----Ss.2(b) & 3---Jurisdiction of Labour Court and Labour Appellate Tribunal---Scope---Petitioner assailed orders of Labour Appellate Tribunal and Labour Court whereby both the authorities had concurrently dismissed the application filed by petitioner---Petitioner claimed that it being an association did not fall within the definition of 'Commercial Establishment' and that Labour Court had no jurisdiction to entertain and adjudicate upon the grievance petition filed by respondent against it---Validity---Objections qua jurisdiction assumed different shades, some of which might question the validity of law under which a particular authority/tribunal had been created or related to the constitution or composition of said authority/tribunal in wake of applicable law---Some jurisdictional objections questioned the exercise and amenability of jurisdiction with respect to the parties to the lis or regarding the subject matter of the dispute raised---All objections regarding jurisdiction were not out of the realm or competency of an authority/tribunal---Some jurisdictional objections, could be left to be decided by the authorities/tribunals of limited jurisdiction and some were required to be adjudged in the exercise of judicial review jurisdiction---Question regarding jurisdiction, in the present case, was required to be examined and decided in the light of the documents referred to and relied upon by the parties---High Court declined to exercise judicial review jurisdiction and decide the question, which could be effectively decided by Labour Court---Constitutional petition was dismissed.
Akhtar Ali v. Altafur Rehman PLD 1963 Lah. 390 and Mian Umar Ikram-ul-Haque v. Dr. Shahida Hasnain and another 2016 SCMR 2186 foll.
(b) Jurisdiction---
----Objection to---Scope---Some jurisdictional objections, could be left to be decided by the authorities/tribunals of limited jurisdiction and some were required to be adjudged in the exercise of judicial review jurisdiction.
Muhammad Ali Piracha for Petitioners.
2019 P L C 175
[Lahore High Court]
Before Shujat Ali Khan, J
LAHORE DEVELOPMENT AUTHORITY and others
Versus
Hafiz ABDUL KHALIQ and others
W.P. No. 213696 of 2018, decided on 11th March, 2019.
Punjab Industrial Relations Act (XIX of 2010)---
----S. 33---Punjab Employees' Efficiency, Discipline and Accountability Act (XII of 2006), Ss.4, 16, 20 & 23---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), Preamble---Civil Procedure Code (V of 1908), O. VII, R. 11---Employee of Lahore Development Authority proceeded against under Punjab Employees Efficiency, Discipline and Accountability Act, 2006---Dismissal from service---Grievance petition---Maintainability---Departmental appeal by the employee was dismissed---Employee thereafter filed grievance petition before Labour Court---Establishment moved application for rejection of the grievance petition but same was dismissed---Validity---Provisions of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 were not applicable to industrial and commercial establishments carried on by or under the authority of Federal or any Provincial Government wherein the terms and conditions of service of the employees were governed under statutory rules of service or statutory law/rules were applicable with regard to their conduct and discipline---Employee, in the present case, was proceeded against under Punjab Employees Efficiency, Discipline and Accountability Act, 2006 which, being statutory dispensation jurisdiction of the Labour Court to take care of the order either passed by the competent authority or the appellate authority, was not attracted---Grievance petition by the employee before Labour Court was not sustainable---Impugned orders passed by the Labour Court and Labour Appellate Tribunal were set aside---Application for rejection of grievance petition was accepted and proceedings before the said forum were quashed---Constitutional petition was allowed in circumstances.
Mir Ajab Khan and another v. Deputy Post Master-General, SRP, Dera Ismail Khan and others 2013 SCMR 1053; Lahore Development Authority through D.G., Lahore and another v. Abdul Shafique and others PLD 2000 SC 207; Muhammad Hanif v. Executive Director (O.P.S.) House Building Finance Corporation, Islamabad and others 2008 PLC 1 and Lahore Development Authority and others v. Abdul Shafiq and others 1992 PLC 1214 distinguished.
Haroon-ur-Rashid v. Lahore Development Authority and others 2016 SCMR 931 and National Bank of Pakistan v. Punjab Labour Court No.5, Faisalabad and 2 others 1993 SCMR 672 rel.
Kashif Ali Chaudhry for Petitioner.
2019 P L C 190
[Lahore High Court]
Before Rasaal Hasan Syed, J
The COOPERATIVE MODEL TOWN SOCIETY through President
Versus
The PUNJAB LABOUR APPELLATE TRIBUNAL and 2 others
Writ Petition No.40097 of 2015, decided on 5th March, 2019.
Punjab Industrial Relations Act (XIX of 2010)---
----S.42---Qanun-e-Shahadat (10 of 1984), Art. 131(1)---Grievance petition---Summoning of witness---Requirements---Application for summoning of witness was dismissed on the ground that it did not mention any specific purpose or fact to be proved through the said witness---Validity---Court was justified to inquire as to the relevance of the witness for proving any material fact, which had not been disclosed in the application for summoning of witness---Relevant documents had already been made part of the record of the case---Petitioner had not been able to show the relevancy of the witness in context with alleged documents---Orders passed by the Courts below did not suffer from any error of law---Constitutional petition was dismissed, in circumstances.
Muhammad Ejaz Jamal for Petitioner.
2019 P L C 263
[Lahore High Court (Multan Bench)]
Before Rasaal Hasan Syed, J
EHSAN ELAHI INDUSTRIES PRIVATE LIMITED through Manager
Versus
PUNJAB LABOUR APPELLATE TRIBUNAL and 2 others
Writ Petitions Nos.9969, 9499, 9968, 9355 and 9498 of 2013, decided on 29th May, 2019.
Industrial Relations Ordinance (XXIII of 1969)---
----S.25-A---Grievance petition---Remand of case---Procedure and requirements---Labour Court after recording evidence disposed of grievance petition with the direction to the employee to move fresh petition before the new management and Management and Labour Appellate Tribunal were directed to consider the case of petitioner on humanitarian basis---Labour Appellate Tribunal remanded the case with the direction to the Labour Court to pass fresh order but employee was reinstated till final decision of grievance petition---Validity---Labour Court made reference to the evidence but decision was not made on complete consideration of evidence---Labour Court was to decide the grievance petition on merits---If employee had succeeded in proving his termination to be illegal then he should have been reinstated and if explanation of management was just and fair then grievance petition could be declined---Case was not to be remanded by the Tribunal simply for decision afresh---Labour Appellate Tribunal was itself competent to decide the appeal on merits---Remand of the case was only to be made if judgments of the forums below were reversed---Frequent remand of the cases was disapproved---High Court observed that parties in the present case had led evidence---If any omission in the order of Labour Court to consider entire evidence was on record then Labour Appellate Tribunal should have examined the same---Labour Appellate Tribunal should have decided the appeal on merits rather than sending it to the Labour Court---Labour Appellate Court had committed error while remanding the case to the Labour Court---Even Labour Appellate Tribunal was not denuded of its jurisdiction to record evidence if same was required for proper administration of justice or effective decision of the case---Remand of case was not permissible for decision afresh by the forum below in presence of evidence on record sufficient to decide the controversy---Even Labour Appellate Tribunal had granted the claim of reinstatement made by the employee in the present case without declaring the termination to be illegal---Order for reinstatement could not be passed without final determination either by the Labour Court or Labour Appellate Tribunal---Labour Appellate Tribunal had acted without lawful authority and in an illegal manner in issuing a self-contradictory order---Impugned order passed by the Labour Appellate Tribunal was set aside---Appeal was to be deemed to be pending before the Labour Appellate Tribunal, to be decided after considering evidence on record---Constitutional petition was allowed, in circumstances.
Pramatha Nath Chowdhury and 17 others v. Kamir Mondal and others PLD 1965 SC 434; Muhammad Dervaish Al-Gilani and 14 others v. Muhammad Sharif and others 1997 SCMR 524 and Habib Ullah v. Azmat Ullah PLD 2007 SC 271 rel.
Mumtaz Khan Baloch for Petitioner.
Muhammad Anwar Awan for Respondents.
2019 P L C 291
[Lahore High Court]
Before Rasaal Hasan Syed, J
The COOPERATIVE MODEL TOWN SOCIETY through President
Versus
The PUNJAB LABOUR APPELLATE TRIBUNAL and 2 others
Writ Petition No.40097 of 2015, decided on 5th March, 2019.
Punjab Industrial Relations Act (XIX of 2010)---
----S.42---Qanun-e-Shahadat (10 of 1984), Art. 131(1)---Grievance petition---Summoning of witness---Requirements---Application for summoning of witness was dismissed on the ground that it did not mention any specific purpose or fact to be proved through the said witness---Validity---Court was justified to inquire as t o the relevance of the witness for proving any material fact, which had not been disclosed in the application for summoning of witness---Relevant documents had already been made part of the record of the case---Petitioner had not been able to show the relevancy of the witness in context with alleged documents---Orders passed by the Courts below did not suffer from any error of law---Constitutional petition was dismissed, in circumstances.
Muhammad Ejaz Jamal for Petitioner.
2019 P L C 151
[National Industrial Relations Commission]
Before Muhammad Zubair Aziz Cheema, Member
MUHAMMAD IMRAN
Versus
STATE LIFE INSURANCE CORPORATION OF PAKISTAN through Chairperson of Pakistan
Case No.4B(16) of 2016-M and C.M.A. No.24(12) of 2016-M, decided on 1st January, 2019.
Industrial Relations Act (X of 2012)---
----Ss.33 & 54(e)---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), Preamble---Grievance petition---Office Assistant---Allegation of misconduct---Demotion from service---Time-barred charge sheet---Effect---Charge sheet was issued after lapse of more than ten months from the date of occurrence of incident---Authorities were bound to serve the charge sheet and show-cause notice upon the employee and hold regular inquiry within time---Employee had been demoted on time barred charge sheet in the present case---Impugned action of authorities was illegal and without jurisdiction, in circumstances---Petitioner being a permanent workman could not be demoted from service---Authorities were bound to examine the Zonal Accountant during inquiry proceedings when it was the version of petitioner that he accepted the requisite receipts on his direction---Employee being subordinate of authorities could not produce evidence against the high-ups from the same establishment---Petitioner was performing his duties temporarily under the Zonal Accountant who had been exonerated during inquiry proceedings---Employee had been discriminated by the authorities---Impugned order for demotion of employee was set aside being illegal---Authorities were directed to restore the original position of employee as he was before demotion to lower post, with back benefits---Grievance petition was allowed accordingly.
PTCL v. Muhammad Zahid and 29 others 2010 SCMR 253; Hafeez Shah and 3 others v. United Bank Limited 2001 SCMR 931; 1997 PLC 34 and 1992 PLC 1023 rel.
Shahid Waheed, Labour Representative for Petitioner.
2019 P L C 18
[Peshawar High Court (Abbottabad Bench)]
Before Lal Jan Khattak and Syed Arshad Ali, JJ
KHYBER PAKHTUNKHWA FOREST DEVELOPMENT CORPORATION through Managing Director and another
Versus
COMMISSIONER WORKMEN'S COMPENSATION HAZARA DIRECTOR AT HARIPUR and 6 others
Writ Petition No. 239-A of 2012, decided on 6th March, 2018.
(a) Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)---
----S. 1 & S. O. 10-B---Workmen's Compensation Act (VIII of 1923), Preamble---Khyber Pakhtunkhwa Development Corporation Act, (XI of 1977), S. 25---Winch Operator died while in service---Recovery of group insurance amount---Application for recovery of group insurance amount was allowed by the Commissioner Workmen's Compensation---Contention of Employer Corporation was that employee was employed on temporary basis for a specified period and he was not entitled for insurance amount---Validity---Employee was appointed for 88 days but he had been performing duties against the post which was a permanent sanctioned post---Issuing appointment letter for 88 days on contract basis was to avoid statutory obligation by the corporation---Artificial break by the employer Corporation by issuing fresh appointment letter for appointment for 88 days and then issuing another fresh appointment letter for another 88 days was based on mala fide---Employer was bound to ensure all the permanent workmen who had been employed by it against (natural death and disability) death and injury arising out of contingencies not covered by Workmen's Compensation Act, 1923---Employer in all cases would be responsible for payment of amount of premium and for all administrative arrangements whether carried out by himself or through an Insurance Company---Where employer had failed to have a permanent workman employed by him insured and such employee suffered death or injury arising out of contingencies then he should pay in case of death to the heirs of such workman such sum and money as would have been payable by Insurance Company had such employee been insured---Deceased, in the present case, was permanent employee and employer Corporation was bound to insure him against natural death---Corporation by omitting to do so was liable to compensate the legal heirs of employee as provided under the law---Statutory rules of Corporation and its terms and conditions of service were silent with regard to appointment of Winch Operator---Said rules neither provided for contract employment nor catered to the eventuality as to when an employee, who was appointed, would become a permanent employee of the Corporation---Said rules of Corporation were inapplicable to the appointment of deceased employee---Bar provided under proviso to S.1 of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 was not applicable to the case of deceased employee---Corporation by mere having statutory rules for its employee would not be absolved from adhering to the mandatory provisions of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 as it was a beneficial statute for all classes of workmen, unless it was established that the said rules were applicable to the employment of employees and employee had right to enforce his rights guaranteed under the said rules---If said rules did not provide any guarantee or protection to an employee, the bar contained in Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 would not preclude the employee from filing claim for his rights guaranteed under the said Ordinance---Employer Corporation had been extending the facility of group insurance to its permanent employees---Impugned order was based on correct appreciation of law and facts---Constitutional petition was dismissed in circumstances.
Lawrencepur Woolen and Textile Mills Ltd. v. Government of the Punjab and others PLD 2004 SC 416; 2002 TDC 377; PLD 1996 SC 610; 1996 PLC 618; 1997 PC 323; 1998 PLC 517 and 2008 PLC 464 ref.
Board of Intermediate and Secondary Education DG Khan v. Muhammad Altaf and others 2018 SCMR 325 rel.
(b) Interpretation of statutes---
----Barring provision of statute to be strictly applied.
Abdul Rehman Qadir for Petitioner.
Yasir Zahoor Abbasi, Assistant Advocate General for Respondent No.1.
Javed Iqbal Sheikh for Respondents Nos. 2 to 7.
2019 P L C 240
[Peshawar High Court (Abbottabad Bench)]
Before Ijaz Anwar, J
TELENOR PAKISTAN (PVT.) LIMITED
Versus
PRESIDING OFFICER, LABOUR COURT and 17 others
Writ Petitions Nos.136-A to 138-A of 2017, decided on 17th June, 2019.
(a) Khyber Pakhtunkhwa Payment of Wages Act (IX of 2013)---
----Ss.15 & 17---Industrial Relations Act (X of 2012), S.1(3)(d)---Security Guards---No-payment of wages---Petition for claim---Appeal---Non-deposit of decretal amount---Effect---Petition for claim filed by the employees was accepted and appeal was dismissed on the ground that decretal amount had not been deposited---Validity---Appeal filed by the employer was dismissed on the ground that memorandum of the same was not accompanied by the certificate that amount payable under the direction appealed against was deposited---Condition of deposit of decretal amount was mandatory and same could not be bye-passed to invoke constitutional jurisdiction of High Court---Jurisdiction of Labour Court had been extended to all the industrial and commercial establishments in the Province of Khyber Pakhtunkhwa and in Khyber Pakhtunkhwa Payment of Wages Act, 2013 the trans-provincial establishment had not been excluded---High Court in constitutional jurisdiction could not reappraise the evidence---Employer had failed to deposit the decretal amount---Constitutional petition was not maintainable which was dismissed, in circumstances.
Ibrahim Abdullah/Abdullah and Sons through Managing Director v. Abdul Latif and 124 others 2018 PLC 20; Messrs Duty Free Shops Limited v. Ishaq Rashied and 2 others 2013 PLC 302; Messrs Cummins Sales and Services Pakistan Limited formerly Messrs Diesel Power Systems Ltd. Through Manager v. Waheeduzzaman and 2 others 2009 PLC 30; Haji Sheikh Noor Din and Sons (Pvt.) Ltd. Through Managing Director v. Muhammad Intizar and others 2006 PLC 606; Kawality Paper Mills (Pvt.) Limited through Managing Director v. Presiding Officer, Labour Court No.1, Lahore, and 2 others 2005 PLC 6; 'Saadi Cement Ltd. Through Chairman and another v. Fazal-e-Qadir and another 2002 PLC 253; Agricultural Engineer, Agricultural Machinery, Thatta Division, Thatta v. Tajub Ali and 2 others 2000 PLC 383; Province of the Punjab through Divisional Forest Officer, Gujrat Forest Division v. Punjab Labour Appellate Tribunal and another 2001 PLC 672; Municipal Corporation, Sialkot through the Administrator v. Younis Masih and others 1998 PLC 336; Syed Match Company Ltd. Through Managing Director v. Authority under Payment of Wages Act and others 2003 SCMR 1493; Tehsil Nazim, T.M.A. Okara v. Abbas Ali 2010 PLC 259; Mughal Surgical (Pvt.) Ltd. and others v. Presiding Officer, Punjab Labour Court No.7 and others 2006 SCMR 590; Haji Sheikh Noor Din and Sons through Managing Director and others v. Muhammad Fayyaz and 2 others 2006 PLC 623; Messrs Sui Southern Gas Company Ltd. and others v. Federation of Pakistan and others 2018 SCMR 802; Pakistan Telecommunication Company Ltd. v. Member NIRC and others 2014 SCMR 535 and 'Habib Bank Limited through President and 2 others v. Authority under payment of Wages Act and another 2016 PLC 61 rel.
(b) Constitution of Pakistan---
----Art.199---Constitutional jurisdiction of High Court---Scope---High Court in constitutional jurisdiction could not reappraise the evidence.
Tanveer ul Islam for Petitioner.
Sardar Muhammad Asif, Assistant Advocate General, Tahir Mehmood Abbas, Sajid Iqbal and Muhammad Jehangir Khan for Respondents.
2019 P L C 11
[Balochistan High Court]
Before Abdullah Baloch and Naeem Akhtar Afghan, JJ
CHIEF EXECUTIVE OFFICER QESCO and others
Versus
MUHAMMAD IQBAL and others
Constitutional Petitions Nos. 154, 155, 156, 207 and 208 of 2012, decided on 23rd June, 2018.
Balochistan Industrial Relations Act (XIII of 2010)---
----Ss. 41 & 55---Appointment, cancellation of---Grievance petition---Employers, through advertisement, invited applications for the posts of different categories on the basis of "son quota" of the company's employees---Appointments were made on contract basis for a period of one year---Appointees were to furnish affidavit to the effect that none of his brother/sister was working in the employer company, and in case of incorrect undertaking, their appointments were liable to termination---Appointees having failed to furnish the requisite affidavit, their appointments were cancelled---Labour Court, on grievance petitions, set aside the orders of cancellation of appointments and restored the same---Appellate Tribunal dismissed the appeal of employers---Validity---Held, affidavits of the appointees were very much available, wherein it was mentioned that their brothers were appointed in different period, much prior to the appointment of respondents/appointees purely on the basis of merit instead of "son quota"---Said fact was also nowhere denied by the petitioners/employers---Petitioners/employers had failed to make out a case for interference by the High Court in its constitutional jurisdiction---Courts below, after properly appreciating the evidence available on record, had rightly declared the order of cancellation of appointments as null and void---Constitutional petitions, having no merit were dismissed.
Mirza Luqman Masood for Petitioners (in Constitutional Petition No.154 of 2012).
Inamullah Kakar for Respondent No. 1 (in Constitutional Petition No.154 of 2012).
Mirza Luqman Masood for Petitioners (in Constitutional Petitions Nos.155 and 156 of 2012).
Najam-ud-Din Mengal for Respondent No.1 (in Constitutional Petitions Nos.155 and 156 of 2012).
Mirza Luqman Masood for Petitioners (in Constitutional Petition No.207 of 2012).
Muhammad Aslam Chishti for Respondent No.1 (in Constitutional Petition No.207 of 2012).
Ghulam Mustafa Buzdar for Petitioner (in Constitutional Petition No.208 of 2012).
Inamullah Kakar for Respondent (in Constitutional Petition No.207 of 2012).
2019 P L C 30
[Balochistan High Court]
Before Abdullah Baloch and Naeem Akhtar Afghan, JJ
PAKISTAN TELECOMMUNICATION COMPANY, LTD. through General Manager and another
Versus
DIN MUHAMMAD and others
C.P. No. 654 of 2012, decided on 16th July, 2018.
Balochistan Industrial Relations Act (XIII of 2010)---
----S. 41---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S. 2 (i) (f) (b) (g)---Security Guard---Permanent Employee---Stoppage of salary by the employer company due to transfer of service of Guard to the contractor security services---Grievance petition was moved by the employee which was dismissed by the Labour Court but Labour Appellate Tribunal accepted the same---Contention of company was that services of employee were transferred to the contractor security service and he was no more in the service of the company---Validity---Employee was appointed on 14-04-2005 by the company and he remained in service continuously till July 2007 and thereafter his services were transferred to contractor of security services of the company; however employee was paid his monthly salary upto May 2009 by the company---Employee had qualified the requirement of a permanent workman being in continuous service of nine months---Company hired security services on 01-07-2007 and same was valid for one year---Company retained employee upto May 2009---No show-cause notice or written directions were issued to the employee that he was no more in the service of company---If services of employee were transferred to the contractor of company even then liability of his services was with the principal employer---Employee, after completion of probationary period had attained the status of a permanent workman---Labour Appellate Tribunal had rightly allowed the appeal of the employee---No illegality or irregularity had been pointed out in the order passed by the Labour Appellate Tribunal---Constitutional petition was dismissed in circumstances.
1996 PLC 385 rel.
Tahir Ali Baloch for Petitioner.
Manzoor Ahmed Rehmani for Respondent No. 1.
2019 P L C 51
[Supreme Court of Pakistan]
Present: Mushir Alam and Munib Akhtar, JJ
AURANGZAIB
Versus
MEDIPAK (PVT.) LTD. and others
Civil Petition No. 2743 of 2017, decided on 3rd October, 2018.
(On appeal from the order dated 13.6.2017 passed by the Lahore High Court, Rawalpindi Bench in W.P. No. 2042 of 2016)
(a) Payment of Wages Act (IV of 1936)---
----Ss. 1(4) & 2 [as amended by the Labour Laws (Amendment) Ordinance (LIII of 2001)]---Claim under the Payment of Wages Act, 1936---Maintainability---Since amendments made by the Labour Laws (Amendment) Ordinance, 2001 to the Payment of Wages Act, 1936, only two things needed be shown by a person who sought to bring his claim within its scope: firstly, that he was a "person employed", and secondly that he was employed in either a "factory" or an "industrial establishment" or a "commercial establishment"---After the Amending Ordinance there was no longer any requirement that the claimant establish himself to be a "workman", as defined under any labour legislation or otherwise.
(b) Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)---
----S. 2(i)--- "Workman", definition of--- Scope--- "Salesman"---Salesman, was not a "workman" within the meaning of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968.
(c) Payment of Wages Act (IV of 1936)---
----S. 2(vi) [as amended by the Punjab Payment of Wages (Amendment) Act (VII of 2014)]---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S. 2(j)---Claim made by a salesman under the Payment of Wages Act, 1936---Relief---Scope---Although claim filed by salesman was maintainable under the Payment of Wages Act, 1936 but he did not fall within the definition of a 'workman'---In such circumstances the salesman was entitled to relief in contractual terms---After the Constitution (Eighteenth Amendment) Act, (X of 2010), the Province of Punjab amended the Payment of Wages Act, 1936 by way of Punjab Payment of Wages (Amendment) Act, 2014 such that, clause (b) of S. 2(vi) of 1936 Act was omitted, thus, when the salesman/petitioner filed his claim in the year 2015, both contributions to the provident fund, i.e., as made by him as well as the company, came within the definition of "wages" and thus relief could be granted to him accordingly under the Payment of Wages Act, 1936---Petition for leave to appeal was converted into appeal and allowed accordingly.
Abrar Ahmed, Advocate High Court (appeared with permission of the Court) and Syed Rifaqat Shah, Advocate-on-Record for Petitioner.
Abdul Rab Chaudhry, Advocate Supreme Court for Respondent No. 1.
2019 P L C 112
[Supreme Court of Pakistan]
Present: Mian Saqib Nisar, C.J., Faisal Arab and Ijaz ul Ahsan, JJ
PAKISTAN AIRLINE PILOTS ASSOCIATION and others
Versus
PAKISTAN INTERNATIONAL AIRLINE and another
Civil Appeal No. 585 of 2018, decided on 16th January, 2019.
(On appeal against the judgment dated 23.09.2016 passed by the High Court of Sindh, Karachi in C.P. No. D-2353/2014)
(a) Pakistan International Airlines Corporation (Conversion) Act (XV of 2016)---
----S. 3(6)---Retired pilots of Pakistan International Airlines Corporation---Pension---Method of calculation---Last salary drawn---Pension of appellants (retired pilots of Pakistan International Airlines Corporation) was initially calculated in accordance with the formula articulated in a Trust Deed of 1980 known as the "PIA PALPA FENA Pension Fund"---Subsequently in the year 1981, the Martial Law Regulation No. 52 rescinded the said Trust Deed, and pension benefits were calculated first under a pension scheme of 1982 then under a supplemental trust deed called PFF Rules of 1988 which were followed by Admin Order 34 of 2003 and finally under Admin Order No. 08 of 2004---Appellants who retired in the years 2008, 2009 and 2014 were now seeking calculation of retirement benefits on the basis of Trust Deed of 1980 that stood rescinded in 1981---Admin Order No. 34 of 2003 stated that pension, commutation and gratuity shall be calculated on the basis of the salary frozen on 31.12.2002 without taking into consideration future annual increments thereby resulting in the salary component to become stagnant as its effect was that no matter how much the salary increased after 31.12.2002 the pension was to be calculated on the salary drawn on 31.12.2002---Such anomaly so created was, however, reversed by the Pakistan International Airlines through Circular No.21/2003 issued on 31.07.2003 which provided that future revision in pension shall be linked with last drawn salary---Grievance of appellants that pension was not being calculated on last drawn salary also stood redressed in 2003---Supreme Court held that appellants/retired pilots shall be entitled to the pension on the basis of the last drawn salary which they were getting at the time of their retirement---Appeal was dismissed accordingly.
(b) Constitution of Pakistan---
----Art. 199---Constitutional petition---Maintainability---Master-servant relationship---Non-statutory rules---Where conditions of service of employees were not regulated by a statutory provision then such employees were to be governed by the principle of "Master and Servant"---Where the terms and conditions of employment were not governed by any statutory provision and the employees were amenable to the Rule of "Master and Servant", Art. 199 of the Constitution of Pakistan could not be invoked.
PIA Corporation v. Syed Suleman Alam Rizvi 1996 SCMR 1185; Pakistan International Airline Corporation and others v. Tanweer-ur-Rehman and others PLD 2010 SC 676 and Abdul Wahab and others v. HBL and others 2013 SCMR 1383 ref.
Barrister Umaima Anwar Khan, Advocate (with Court permission) for Appellants.
Muhammad Ilyas Siddiqui, Advocate Supreme Court for Respondents.