PLC 2020 Judgments

2020 P L C 68

[High Court (AJ&K)]

Before Raza Ali Khan, J

Dr. SHAKEEL ASIF and another

Versus

ZONAL CHIEF HABIB BANK LIMITED, ZONAL OFFICE BANK SQUARE NANGI MIRPUR, AZAD KASHMIR and others

Writ Petition No.166 of 2014, decided on 18th April, 2019.

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

----S. 2(27)---Labour Appellate Tribunal---Powers of review--- Scope---Predecessor of petitioners was dismissed from service---Dismissal order was maintained up to Supreme Court---Review petition filed before the Supreme Court was also dismissed---Petitioners, thereafter, filed review petition before Labour Appellate Tribunal---Labour Appellate Tribunal dismissed the review petition on the ground that as the matter was finalized by Supreme Court, therefore, it had no jurisdiction to re-open the matter and that the review petition was barred by time---Validity---Labour Appellate Tribunal had no jurisdiction to re-open the matter on a review petition when the same had been decided up to the Supreme Court and that too when the review petition was filed after lapse of more than 5 years---Industrial Relations Ordinance, 1974 did not provide a right to file review petition---Writ petition was dismissed.

2011 SCMR 1912 = 2012 PLC (C.S.) 885; 2011 SCMR 8; 2001 SCMR 912; Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others PLD 1970 SC 1; 1974 PLC 225 and 2007 PLC 64 ref.

(b) Review---

----Where a right of review is not provided by a statute then review petition cannot be filed.

Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others PLD 1970 SC 1 rel.

Abdul Rehman Awan for Petitioners.

2020 P L C 8

[Islamabad High Court]

Before Athar Minallah and Miangul Hassan Aurangzeb, JJ

MANAGING DIRECTOR, OVERSEAS PAKISTANI FOUNDATION and another

Versus

FEDERATION OF PAKISTAN through Secretary, M/O Labour Manpower and Overseas Pakistani and another

I.C.A. No. 68 of 2011, decided on 7th February, 2017.

Employer and employee---

----Respondent was a retired employee of Overseas Pakistani Foundation and his pension benefits were withheld due to pendency of inquiry against him---Single Judge of High Court in exercise of Constitutional jurisdiction directed Overseas Pakistani Foundation to finalize inquiry against respondent within period of one month failing which pension benefits were to be released to respondent--- Validity--- Respondent had agitated claim pertaining to terms and conditions of his service with Overseas Pakistani Foundation--- Service Rules/Regulations governing terms and conditions of service of respondent were not statutory--- Division Bench of High Court set aside judgment passed by Single Judge of High Court as Constitutional petition against Overseas Pakistani Foundation was not maintainable---Division Bench of High Court observed that Overseas Pakistani Foundation to consider grievance of respondent regarding non-payment of his pension benefits and to make decision at earliest---Intra-court appeal was allowed accordingly.

Tanvir Iqbal Siddiqi v. Principal, Overseas Pakistanis Foundation (OPF), Girls College, Islamabad 1994 SCMR 958; Sohail Asif v. Board of Governors and others Writ Petition No.2355/2006; Lakhmir v. Federation of Pakistan and 6 others Writ Petition No.592/2011; Muhammad Saeed v. The Director General, Overseas Pakistanis Foundation, and others Writ Petition No.38847/2009; Anjum Siddique Nagra v. Board of Governors and others Writ Petition No.2423/2008 and Imtaiz Ali Bhagat v. The Ministry of Overseas Pakistanis and others Constitution Petition No.D-1113/2010 ref.

Salim-ur-Rehman and Irfan Farooq (Additional Director Law, OPF) for Appellants.

Malik Abdul Latif Khokhar for Respondent No.2.

2020 P L C 27

[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 Ss. 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.

Naweed Akhtar Cheema v. Chairperson, TEVETA 2001 PLC (C.S.) 803 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.

2020 P L C 57

[Islamabad High Court]

Before Miangul Hassan Aurangzeb, J

SHELL PAKISTAN LIMITED

Versus

REGISTRAR TRADE UNIONS and others

W.P. No.1152 of 2018, decided on 30th September, 2019.

Industrial Relations Act (X of 2012)---

----Ss. 2, 8, 11 & 12--- Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S. 2(f)(iv)--- 'Worker'/workman---Definition---Registration of trade union--- Registrar of Trade Unions, powers of--- Outsourced services--- Locus standi--- Petitioner was an international company, which had outsourced non-core functions to service providers who appointed respondents as "workmen"--- Plea raised by petitioner was that Registrar of Trade Unions had registered respondents as trade union of petitioner company--- Validity--- Agreements between petitioner and service providers provided for such workers to work under supervision and control of service providers---Nothing was available on record to show that it was representatives of service providers at premises of petitioner under whose orders or dictation such workers performed their duties--- Definition of 'worker' and 'workman' included person employed directly or through a contractor and workmen who were members of the upon were working against posts of permanent nature and such workmen were working at premises of petitioner since several years--- High Court declined to interfere in orders passed by Registrar Trade Union as there was nothing on record to show that representatives of service providers were supervising duties performed by such workmen at premises of petitioner---Constitutional petition was dismissed in circumstances.

National Electric Power Regulatory Authority v. Registrar of Trade Unions, N.I.R.C. 2015 PLC 148; Writ Petition No.2253 of 2015; Fauji Fertilizer Company Ltd. v. National Industrial Relations Commission 2013 SCMR 1253; State Oil Company Limited v. Bakht Siddique 2018 SCMR 1181 and Pakistan State Oil Company Ltd. v. Ghulam Ali SBLR 2015 SC 233 ref.

Faisal Mahmood Ghani for Petitioner.

Qazi Ahmed Naeem Qureshi for Respondent No.2.

Mushtaq Hussain Bhatti for Respondent No.3.

2020 P L C 164

[Islamabad High Court]

Before Miangul Hassan Aurangzeb, J

DEVELOPMENTS IN LITERACY through Chief Operating Officer

Versus

ASSISTANT COMMISSIONER (CITY)/AUTHORITY UNDER PAYMENT OF WAGES ACT, ICT ISLAMABAD and another

W.P. No. 3842 of 2018, decided on 16th March, 2020.

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

----Ss.2(i) &15(2)---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(b)---Industrial and Commercial Establishment---Proof---Gratuity, payment of---Scope---Respondent was an employee of petitioner establishment who sought recovery of his gratuity--- Authority under Payment of Wages Act, 1936, directed the petitioner to pay the same--- Plea raised by petitioner was that it was not a commercial or industrial establishment, therefore, the Authority had no jurisdiction to pass any order against it--- Validity---No notification of government issued declaring petitioner to be a commercial establishment for the purposes of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968--- Petitioner was not a commercial establishment within the meaning of S.2(i) of Payment of Wages Act, 1936 and S.2(b) of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, nor it was an industrial establishment--- Authority under Payment of Wages Act, 1936, could not have relied on the definition of 'commercial establishment' in Employees' Cost of Living (Relief) Act, 1973, as S.2(i) of Payment of Wages Act, 1936 had adopted definition of 'commercial establishment' in Industrial and Commercial Employment (Standing Orders) Ordinance, 1968--- Unlike the definition of 'commercial establishment' in S. 2(e) of the definition of 'commercial establishment' in Cost of Living (Relief) Act, 1973, the definition of 'commercial establishment' in Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, did not include a society registered under Societies Registration Act, 1860--- High Court set aside the order passed by the Authority appointed under Payment of Wages Act, 1936 as it did not have jurisdiction against the petitioner---Constitutional petition was allowed in circumstances.

Airblue Ltd. v. Authority under Payment of Wages Act and others (Writ Petition No.3671/2015); Messrs HALCROW ULG, Engineering Consultants v. The "Authority" under the Payment of Wages Act, Quetta 1999 PLC 362; Muhammad Saeed Bhatti v. Presiding Officer, Punjab Labour Court No.8 2007 PLC 508; Holy Family Hospital Society v. Third Sindh Labour Court, Karachi PLD 1975 Kar. 529; Mst. Sakina Younas v. Administrator, Women's Christian Hospital, Multan 1991 PLC 798 and Pakistan National Centre v. Presiding Officer, Punjab Labour Court No.2 1976 PLC 693 rel.

Syed Hassan Ali Raza and Hamza Wajid for Petitioner.

Syed Zia ul Hassan Bokhari for Respondent No.2.

2020 P L C 175

[Islamabad High Court]

Before Miangul Hassan Aurangzeb, J

MUHAMMAD FAROOQ and 4 others

Versus

FULL BENCH, NIRC ISLAMABAD and 4 others

W.P. No.4033 of 2019, decided on 12th February, 2020.

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

----Ss. 10, 46, 49(4)(d) & 65---Bank Employees Union---Application for registration of trade union---Employees filed application for registration of trade union before National Industrial Relations Commission wherein management of the Bank was directed to maintain status quo---Bank terminated the employees during pendency of petition for registration of trade union---Employees filed complaint for initiation of contempt proceedings against officials of Bank and their restoration into service---National Industrial Relations Commission dismissed the complaint of employees on the grounds that they had not assailed their dismissal orders through grievance petition and complaint had been filed against officials and not individuals---Validity---Complaint filed on behalf of employees was akin to contempt proceedings seeking punishment of individuals who had acted in violation of S. 10 of Industrial Relations Ordinance, 2002 or a status quo order---Contempt proceedings could be taken only against individuals and not against officials designated---Petitioners had not impleaded before National Industrial Relations Commission any individual who had acted unlawfully---No judicial infirmity had been pointed out in the impugned orders passed by the fora below---High Court could not remand the matter just to facilitate the petitioners to rectify a mistake which they had made in their complaint---Constitutional, petition was dismissed, in circumstances.

(b) Constitution of Pakistan---

----Art. 199---Writ of certiorari, issuance of---Scope.

Certiorari is not a writ of right but one of discretion. Its object is to curb excess of jurisdiction, and to keep inferior Courts and Tribunals within their bounds. The High Court, while judicially reviewing the proceedings and judgments of the inferior Courts and Tribunals, cannot substitute its own decision with that of such inferior Courts or Tribunals. The grounds on which certiorari may be invoked is where there is an error of law apparent on the face of the record, and not every error either of law or fact which can be corrected by the appellate authority. It lies where the inferior Court or Tribunal has exceeded its jurisdiction or has not proceeded in accordance with the essential requirements of law which they were meant to administer. It is also issued when the inferior Court or Tribunal acts illegally in exercise of its jurisdiction. For instance, when it decides without giving any opportunity to the parties to be heard or violates the principles of natural justice. The High Court while issuing a writ of certiorari acts in exercise of a supervisory and not appellate jurisdiction. The High Court will not judicially review findings of fact reached by an inferior Court or a Tribunal unless there is manifest error apparent on the face of the proceedings, or where such findings are based on disregard of the provisions of law. The Superior Courts have also interfered with the findings of the inferior Courts and Tribunals where such findings have been found to be perverse or patently erroneous, i.e. contrary to the evidence on the record.

Muhammad Umair Baloch, Mirza Muhammad Afzal and Shaista Ch. for Petitioners.

2020 P L C 184

[Islamabad High Court]

Before Fiaz Ahmad Anjum Jandran, J

PAKISTAN RAILWAY through CEO/Sr. General Manager Pakistan Railways Headquarters, Lahore

Versus

LEARNED MEMBER, NATIONAL INDUSTRIAL RELATIONS COMMISSION through Registrar National Industrial Relation Commission,Islamabad and 4 others

Writ Petition No.23 of 2020, decided on 13th February, 2020.

Industrial Relations Act (X of 2012)---

----Ss. 33 & 58(2)(a)(b)---Employees of Pakistan Railways---Transfer and posting---Grievance petition---Constitutional petition against interlocutory order of National Industrial Relations Commission---Maintainability---Employees filed grievance petition wherein their transfer/posting orders were suspended---Contention of department was that impugned order was illegal and coram-non-judice---Validity---Interlocutory orders passed by the Member National Industrial Relations Commission were amenable to the appellate jurisdiction of Full Bench of National Industrial Relations Commission---Full Bench of National Industrial Relations Commission was not available for want of quorum---No one should be rendered remediless when a remedy had been provided by the legislature---High Court had constitutional jurisdiction to rescue an aggrieved party for redressal of his grievance during such interregnum---Employees did not fall within the definition of "workman"---Impugned order was not sustainable, in circumstances---Operation of impugned order passed by the Member National Industrial Relations Commission was suspended till availability of Full Bench of National Industrial Relations Commission---Constitutional petition was disposed of accordingly.

PLD 1997 SC 351; PLD 1983 Kar. 303; 2002 CLC 601; 2017 PLC 176; 1984 PLC 1480; 2014 PLC (C.S.) 275; 2017 PLC 130; 1996 SCMR 1165; 1998 SCMR 328; 2019 YLR 618; 2014 CLD 415 and 1986 PLC 105 ref.

Barrister Sajeel Sheryar Sawati and Mohammad Asif Gujjar with Khurram Shahzad (Legal Advisor) and Sajid Hashmi, Law Officer for Petitioner.

2020 P L C 204

[Islamabad High Court]

Before Miangul Hassan Aurangzeb, J

KHALID HUSSAIN

Versus

FULL BENCH NATIONAL INDUSTRIAL RELATION COMMISSION and others

Writ Petition No.4215 of 2019, decided on 5th December, 2019.

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

----S.33---Grievance petition---Requirements---Limitation---Employee was issued show-cause notice against which he filed grievance petition---Grievance petition was dismissed against which employee filed constitutional petition and in the meanwhile he was dismissed from service---Constitutional petition was dismissed with the observation that employee would be at liberty to challenge his dismissal order before appropriate forum---Employee filed grievance petition against his dismissal order but same was dismissed being time barred---Validity---Cause for petitioner's grievance arose when he was dismissed from service---Petitioner-employee had not served upon the employer with grievance notice against his dismissal order---Employee could take his grievance to the National Industrial Relations Commission only if his employer had failed to communicate a decision within a period of fifteen days of the submission of grievance notice or if employer had given a decision against the employee on his grievance notice---Grievance petition could be filed within a period of sixty days from the date of communication of employer's decision or after the expiry of fifteen days of the issuance of grievance notice---Employee, in the present case, had not satisfied the prerequisite of service of a grievance notice on the employer against his dismissal order for filing a grievance petition before the National Industrial Relations Commission---Grievance petition before the National Industrial Relations Commission without service of a grievance notice on the employer was not maintainable---Petitioner had not served a grievance notice on the employer against his dismissal order, his grievance petition before the National Industrial Relations Commission was not maintainable---High Court could not exempt the petitioner from fulfilling the requirements of S.33 of Industrial Relations Act, 2012, for filing a grievance petition---Constitutional petition was dismissed in limine.

Pakistan Telecommunication Company Limited v. Muhammad Dilpazzeer Abbasi 2016 PLC 367; Khushal Khan v. Muslim Commercial Bank Limited 2002 PLC (C.S.) 907; Allied Bank of Pakistan Limited v. Muhammad Iqbal Sipra 2007 PLC Labour Cases 398 and Abdul Rauf v. Muhammad Shafiq 2006 PLC Labour Cases 135 and rel.

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

----S.33---Grievance petition, filing of---Limitation---Grievance petition could be filed within a period of sixty days from the date of communication of employer's decision or after the expiry of fifteen days of the issuance of grievance notice.

2020 P L C 226

[Islamabad High Court]

Before Miangul Hassan Aurangzeb, J

ZARAI TARAQIATI BANK through President

Versus

MUHAMMAD TARIQ

Civil Revision No.220 of 2013, decided on 16th March, 2020.

Agricultural Development Bank Employees Pension and Gratuity Regulations, 1981---

----Regln.9---Civil Procedure Code (V of 1908), S.115---Revision---Petitioner assailed order passed by Trial Court whereby respondent's application under O.VII, R.11, C.P.C., was concurrently allowed and plaint for recovery of certain amount of sum was rejected---Validity---Notice was issued to the respondent, an employee of petitioner, calling upon him to show-cause as to why certain sum of amount should not be recovered from his salary but despite issuance of notice, the respondent was paid all his retirement benefits without any deduction---Regulation 9(1) of A.D.B Employees Pension and Gratuity Regulations, 1981, provided that an employee against whom disciplinary proceedings were pending or were in progress, would not be allowed to proceed on retirement until such proceedings were completed---Petitioner having failed to do so could not dispute the concurrent findings of the courts below---Revision petition was dismissed in circumstances.

M.D. Shahzad and Ch. Talib Hussain for Petitioner.

Farooq Badshah, AVP (DPD), Z.T.B.L.

Muhammad Younas, OG-I, Z.T.B.L.

2020 P L C 233

[Islamabad High Court]

Before Miangul Hassan Aurangzeb, J

Mst. NAZIA FAZAL

Versus

PAKISTAN INTERNATIONAL AIRLINES CORPORATION through Managing

Director and others

W.P. No.3580 of 2016, decided on 5th December, 2017.

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

----S.3---Limitation---Jurisdiction for determination---Court/Tribunal is bound to notice and consider question of limitation, irrespective of the fact whether or not it was agitated by other party---Question of limitation cannot be waived and even if waived can be taken up against by a party waiving it and even by the Court itself.

2007 SCMR 621; 2006 SCMR 170; 2003 SCMR 1815 and PLD 1985 SC 153 rel.

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

----Ss.33(4) & 54(e)---Grievance petition---Time barred---Direction to employee to return salaries---Grievance petition filed by petitioner was dismissed as barred by time but National Industrial Relations Commission (NIRC) directed her to return the salary received by her---Validity---Petitioner was not required to return salaries drawn by her during service---No occasion existed for NIRC to have burdened petitioner with such liability, especially when employer did not file appeal for such relief--- High Court in exercise of Constitutional jurisdiction set aside the order passed by NIRC to the extent of requiring petitioner to return the salaries drawn by her during her service---Petitioner's grievance petition before NIRC was barred by limitation and the same should have been dismissed as such---Constitutional petition was allowed accordingly.

M. Bashir Khan for Petitioner.

Muhammad Umer Khan Vardag for Respondents Nos.1 to 3.

2020 P L C 1

[Sindh High Court (Hyderabad Bench)]

Before Aziz-ur-Rehman and Fahim Ahmed Siddiqui, JJ

SANGHAR SUGAR MILLS LTD. through Authorized Officer

Versus

SINDH LABOUR APPELLATE TRIBUNAL through Chairman and 2 others

Constitution Petition No.D-334 of 2012, decided on 31st May, 2018.

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

----S.Os. 1(a), 12 & 13---Retrenchment of employee due to financial constraints---Procedure---Employee was terminated from service on account of financial restraints---Grievance petition filed by the employee was dismissed by the Labour Court but Labour Appellate Tribunal accepted the same---Validity---Employee remained in the service for more than nine months and he was a permanent workman---Employee was performing an important function in a sugar factory---Process of converting molasses into crystallized white sugar was not possible without such employees---Such employee was a permanent feature of a sugar factory---Procedure of the last workman employed in a category would go first in case of retrenchment---Nothing was on record that petitioner-employee was lastly employed in the factory---Service of employee was discontinued without giving him a notice which was not warranted under the law for a "permanent workman"---Services of employee were terminated without following the procedure provided under Order 12 of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968---Impugned order of termination of services of employee was illegal and unwarranted under the law---No illegality had been pointed out in the impugned order passed by the Labour Appellate Tribunal---Constitutional petition was dismissed ,in circumstances.

Sikandar Aziz and 20 others v. Secretary, Ministry of Industries and Production Government of Pakistan, Islamabad and others 2001 PLC (C.S.) 205; Muhammad Ayub Khan and 3 others v. Messrs Muhammad Farooq Textile Mills Ltd. and 2 others 2004 PLC 250; Abdul Sattar and another v. Sui Northern Gas Pipelines Limited and others 2001 PLC 583; Messrs Shahmurad Sugar Mills Ltd. v. Ghulam Mustafa and another 1998 PLC 83 and Zain Packaging Industries Limited, Karachi v. Abdul Rashid and 2 others 1994 SCMR 2222 ref.

Granulars (Pvt.) Ltd. v. Muhammad Afzal and others 2002 PLC 1 and Attaullah v. The Chairman, Sindh Labour Appellate Tribunal and others 2002 PLC 311 distinguished.

Mumtaz Alam Lethari for Petitioner.

Mehmood Hussain Siddiqui for Respondent No.3.

Allah Bachayo Soomro Additional A.G. Sindh.

2020 P L C 19

[Sindh High Court]

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

Messrs SINDH CLUB and another

Versus

MAZHAR HUSSAIN and others

C.Ps. Nos. D-7369 and D-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.

2020 P L C 77

[Sindh High Court]

Before Muhammad Ali Mazhar and Agha Faisal, JJ

MUHAMMAD JAWAD MIRZA

Versus

DIRECTOR GENERAL PAKISTAN CIVIL AVIATION AUTHORITY and another

Constitutional Petition No.D-896 of 2019, decided on 13th May, 2019.

Civil Aviation Rules, 1994---

---- Rr. 342, 343 & 375---Airline Transport Pilot License (ATPL), suspension of--- Show-cause notice--- Alternate remedy, non-availing of--- Delay in completion of investigation--- Effect--- Petitioner was aggrieved of issuance of show-cause notice and suspension of his Airline Transport Pilot License (ATPL) by Authority---Authority claimed that license qualifications of petitioner were doubtful and that an investigation was pending final decision--- Validity--- Petitioner could have filed appeal to Director-General of the Authority but he could not do so apparently for the reasons that he was not in Pakistan--- Absence of petitioner did not justify not availing right of appeal provided as statutory remedy--- Nothing was brought on record to show whether any inquiry or investigation was completed or any final order was passed in case of petitioner based on his own reply or suspension period was extended through any lawful order--- Suspension of license had come to an end under tenets and edicts of Civil Aviation Rules, 1994 after elapsing of statutory period--- High Court directed the Authority to complete investigation, if any, and pass final order in case of petitioner after providing ample opportunity of hearing to him---High Court also directed that renewal of ATPL license would be subject to final order of the Authority on show-cause notice---Constitutional petition was disposed of accordingly.

Shafaat Nabi Khan Sherwani for Petitioner.

None Present for Civil Aviation Authority.

Hussain Bohra, Assistant Attorney General.

2020 P L C 88

[Sindh High Court]

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

MUSHTAQUE AHMED

Versus

MEMBER, SINDH LABOUR APPELLATE TRIBUNAL and 2 others

Constitution Petition No. D-4506 of 2016, decided on 12th October, 2018.

Industrial Relations Ordinance (XCI of 2002)---

----S. 46---Grievance petition---Watchman---Services of employee were hired verbally by the employer company but same were dispensed with without issuing any letter of termination---Employee filed grievance petition but same was dismissed concurrently---Validity---Employee was worker of the contractor and he rendered his service for the employer-company---Agreement executed between the parties had expired---Service of employee was hired for a specific period and he had received salary for the same---Employee had worked through third party contractor, he was not employee of the company but he was worker of a private contractor who had hired his service for the company---Employee stood relieved from his service automatically after expiry of agreement with the contractor---Employee could not claim reinstatement of his service in the employer company and if he had any claim he should have made contractor as party in the proceedings but he had failed to do so for reason best known to him---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 considered every aspect of the case while appreciating evidence adduced by the parties---No illegality or irregularity had been pointed out in the impugned judgments passed by the Courts below---Constitutional petition was dismissed, in circumstances.

Messrs State Oil Company Limited v. Bakht Siddique and others 2018 SCMR 1181 ref.

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.

Petitioner in Person.

Muhammad Musharaf Malik behalf of Ghulam Ali for Respondent No.3.

Shehryar Mehar, Assistant Advocate-General, Singh along with Khalil, Ms. Shamim Imran and Ms. Humaira for Respondents.

2020 P L C 108

[Sindh High Court]

Before Muhammad Ali Mazhar and Abdul Maalik Gaddi, JJ

MUHAMMAD NAEEM

Versus

GENERAL TYER AND RUBBER COMPANY OF PAKISTAN and another

C.P. No. D-3929 of 2012, decided on 15th February, 2019.

Industrial Relations Ordinance (XCI of 2002)---

----S.46---Grievance petition---Mechanical Helper---Allegation of misconduct---Termination from service---Back benefits, grant of---Employee was terminated from service against which grievance petition was accepted by the Labour Court without back benefits but Labour Appellate Tribunal remanded the matter for decision on merits including point of maintainability of grievance petition---Validity---Employee company had failed to get examined the complainant and star witnesses of alleged incident---Evidence of said witnesses was necessary to corroborate the respondent's case---Respondent had examined only Inquiry Officer before the Court but no reliance could be placed on his evidence as he was not eye witness of alleged misconduct---Withholding of star witnesses would create an impression that the said witnesses if produced might not have supported the employer's case---No opportunity during domestic inquiry had been provided to the employee to produce his witnesses---No reliance could be placed on the inquiry report in circumstances---Employer company had failed to prove that employee during dismissal period remained in gainful employment---Employee during dismissal period did not remain in gainful employment, in circumstances---Service of employee had been terminated illegally and he was entitled for reinstatement with all the back benefits---Impugned order passed by the Labour Appellate Tribunal was set aside and grievance petition was accepted as prayed for---Constitutional petition was allowed, in circumstances.

Dilkusha Enterprises Ltd. v. Abdul Rashid and others 1985 SCMR 1882; Muhammad Bashir v. Chairman, Punjab Labour Appellate Tribunal and others 1989 SCMR 1095; Gul Habib v. Federation of Pakistan and another 1988 PLC 645; Allied Bank of Pakistan Ltd. v. Punjab Labour Appellate Tribunal and others 1980 PLC 42; Zafrullah Khan Bajwa v. Punjab Labour Appellate Tribunal, Lahore and 2 others 1991 PLC 490; National Bank of Pakistan v. Sindh Labour Appellate Tribunal, Karachi and 2 others 1992 PLC 94; Abdul Ghani v. The M.P.O., WAPDA, Lahore and others 1969 PLC 48; Akram Khan v. Messrs Kohat Textile Mills Ltd., Kohat 1973 PLC 24; Mustekhum Cement Limited through Managing Director v. Abdul Rashid and others 1998 SCMR 644 and Ejaz Ahmad Abbasi v. Punjab Labour Appellate Tribunal and 2 others 1992 PLC 7 rel.

Mst. Shahida Zareen v. Iqrar Ahmed Siddiqui 2010 SCMR 1119; Ashique Ali and others v. Mst. Zamir Fatima and others PLD 2004 SC 10; Roazi Khan and others v. Nasir and others 1997 SCMR 1849; Sughran Bibi v. Mst. Aziz Begum and 4 others 1996 SCMR 137 and Chairman, FESCO and others v. Haji Gulzar Ahmed through Abdul Aziz Ahmed 2015 MLD 1487; Dilkusha Enterprises Ltd. v. Abdul Rashid and others 1985 SCMR 1882 and Muhammad Bashir and others v. Chairman, Punjab Labour Appellate Tribunal, Lahore and others 1991 SCMR 2087 rel.

Muhammad Atiq Qureshi for Petitioner.

Muhammad Ali Khan for Respondent No.1.

2020 P L C 125

[Sindh High Court]

Before Muhammad Shafi Siddiqui and Adnan-ul-Karim Memon, JJ

ABDUL SAMI MEMON and 8 others

Versus

FEDERATION OF PAKISTAN, through Secretary Establishment Government of

Pakistan and 5 others

C.P. No.D-910 of 2019, decided on 20th August, 2019.

(a) Industrial dispute---

----Employees of Pakistan Steel Mills---Promotion---Contention of petitioners was that they were entitled for promotion to the higher rank---Validity---For promotion in the next rank employees had to show that they were eligible and fit for promotion---Promotion of a public servant would depend on eligibility and seniority-cum-fitness and availability of vacancy---Competent authority could make appointments and determine seniority, eligibility, fitness and promotion and other ancillary matters with regard to terms and conditions of employees---Petitioners lacked length of service for their further promotion in the present case---Promotion of employees would depend upon their seniority-cum-fitness and availability of posts---Neither any seniority nor any promotion could be claimed or granted without actual length of service on account of vested rights---High Court observed that if none of the employees had required length of service for regular promotion then appointment of eligible employee might be made on acting charge basis after observing codal and procedural formalities---Competent authority (employer) was entitled to make rules in the interest or expediency of service and remove anomalies in service rules---Authority had to determine the eligibility criteria of promotion which was an administrative matter within the exclusive domain and policy decision making of respondents---High Court declined interference when there was no violation of any law---No vested rights of petitioners were involved in the matter of promotion or the rules determining their eligibility or fitness---Constitutional petition suffered from laches and petitioners were not entitled for the relief claimed in the petition---Constitutional petition was dismissed, in circumstances.

Chairman FBR v. Muhammad Asfandyar Janjua and others 2019 SCMR 349; Province of Sindh and others v. Ghulam Fareed and others 2014 SCMR 1189; Sarwar Ali Khan v. Chief Secretary to Government of Sindh PLD 1994 SC 233; Syed Noorul Hasan v. The Secretary, Ministry of Industries Government of Pakistan, Islamabad and others 1987 SCMR 598; The Central Board of Revenue, Government of Pakistan v. Asad Ahmad Khan PLD 1960 SC 81 and Muhammad Hayat and others v. Federation of Pakistan and others 2016 SCMR 1021 rel.

(b) Constitution of Pakistan---

----Art.199---Constitutional petition was not maintainable against, a state enterprise performing public and statutory duties---Principles.

Abdul Wahab and others v. HBL and others 2013 SCMR 1383; Salahuddin v. Frontier Sugar Mills and Distillery Ltd. PLD 1975 SC 244; Aitcheson College, Lahore through Principal v. Muhammad Zubair PLD 2002 SC 326; Pakistan International Airlines v. Tanveer-ur-Rehman PLD 2010 SC 676; Ramna Pipe and General Mills (Pvt.) Ltd v. Sui Northern Gas Pipe Lines (Pvt.) Ltd. 2004 SCMR 1274; Pakistan Defence Housing Authority and others v. Lt. Col. Syed Jawaid Ahmed 2013 SCMR 1707 and Pir Imran Sajid and others v. Managing Director/General Manager (Manager Finance) Telephone Industries of Pakistan and others 2015 SCMR 1257 rel.

(c) Constitution of Pakistan---

----Art. 199---Quo-warranto, writ of---Scope---Writ of quo-warranto would not be a remedy for a person to air his private vengeance.

Dr. Azeem ur Rehman v. Government of Sindh 2004 SCMR 1299; Ali Hassan Brohi v. Province of Sindh and others 2015 SCMR 353 and Pakistan Tobacco Board and another v. Tahir Raza and others 2007 SCMR 97 rel.

Abdul Samad Memon for Petitioners.

Sanaullah Noor Ghori for Respondents Nos.3 to 6.

Muhammad Nishat Warsi, DAG.

2020 P L C 145

[Sindh High Court]

Before Muhammad Shafi Siddiqui and Adnan-ul-Karim Memon, JJ

Messrs PAKISTAN STEEL MILLS CORPORATION, through Chief Law Officer

Versus

MEMBER, SINDH LABOUR APPELLATE TRIBUNAL and 2 others

C.P. No.D-3926 of 2011, decided on 2nd October, 2019.

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

----S.Os. 12 & 15---Worker of a corporation having been arrested in a criminal case---Absence from duty---Termination from service---Employee was terminated from his service on account of his absence from duty---Grievance petition filed by the worker was dismissed by the Labour Court but Labour Appellate Tribunal accepted the same---Validity---Employee was prevented by sufficient cause for not attending the duties---Petitioner employee was entitled for a show cause notice---Impugned termination was not a termination in simplicitor and inquiry should have been conducted---No misconduct alleged to have been committed on the part of employee and he had been acquitted from the criminal case---No one had been posted at the post of the employee nor any one had been transferred from any other department to fill the vacancy of the petitioner---Impugned judgment passed by the Labour Appellate Tribunal was based on proper appreciation of evidence and it was not a case of habitual absence---Employee had remained absent on account of being in jail for unjustified cause---Corporation/employer should have considered the case of employee for reinstatement and back benefits when he was released from jail and submitted his representation---Corporation/employer might be exonerated for back benefits for a period the employee remained behind bars but not for the period when he submitted his representation and onwards---Employee was entitled for back benefits from the period he had submitted his representation---Constitutional petition was disposed of, accordingly.

Muhammad Mubeen-us-Salam and others v. Federation of Pakistan PLD 2006 SC 602 ref.

Khalid Imran for Petitioner.

Ashraf Hussain Rizvi for Respondents.

2020 P L C 180

[Sindh High Court]

Before Aziz-ur-Rehman and Adnan-ul-Karim Memon, JJ

RAFIQUE AHMED SHAIKH

Versus

NATIONAL INDUSTRIAL RELATIONS COMMISSION (NIRC) and 3 others

C.P. No.D-1983 of 2019, decided on 28th May, 2019.

Industrial Relations Act (X of 2012)---

----Ss. 54(e) & 58---Grievance petition---Petitioner seeking through Constitutional petition the implementation of order passed by National Industrial Relations Commission---Contention of petitioner was that order passed by the High Court for disposal of appeal pending before Full Bench of National Industrial Relations Commission had not been implemented---Validity---High Court passed order for disposal of matter between the parties on the day fixed for hearing---High Court observed that Full Bench of National Industrial Relations Commission should decide the appeal of petitioner in accordance with law within a period of one month and operation of impugned order passed on behalf of employer was suspended till decision of appeal---Constitutional petition was disposed of accordingly.

Suo Motu Case No.11 of 2011 PLD 2014 SC 389 and Federation of Pakistan through Secretary Ministry of Interior v. General (R) Pervez Musharraf and others PLD 2016 SC 570 rel.

Altmash Arab for Petitioner.

Faisal Mahmood Ghani for Respondent No.4.

Muhammad Nishat Warsi, D.A.G.

2020 P L C 200

[Sindh High Court (Hyderabad Bench)]

Before Muhammad Iqbal Kalhoro and Amjad Ali Sahito, JJ

Messrs DADEX ETERNIT LTD. through Factory Manager

Versus

SINDH LABOUR APPELLATE TRIBUNAL, SINDH SECRETARIAT, KARACHI and 2 others

C.P. No.D-1151 of 2012, decided on 19th September, 2019.

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

----S.O. 15---Dismissal from service---Wilful absence from duty---Limitation---Scope---Employee (respondent) was issued a charge sheet for remaining absent without leave for not only in the relevant month but for his absence on different dates in the previous years---Validity---Charge was time barred being issued beyond the statutory period of one month provided for charging a workman---Inquiry officer had wrapped up the inquiry in just three questions---Neither the statement of complainant was recorded nor was the employee allowed to present his case---Inquiry officer had stated in his cross-examination that he had received the report and signed it, which implied that he had not prepared the same---Inquiry officer did not even remember whether the report prepared by him was written in Urdu or English or it was typed or hand written---Absence from duty due to illness did not constitute a case of wilful insubordination or indiscipline warranting imposition of major penalty on the employee---Constitutional petition was dismissed.

Chief Election Commissioner of Pakistan and others v. Miss Nasreen Pervez 2009 PLC (C.S.) 650 ref.

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

----S.O. 15---Punishment---Limitation---Scope---Workman is to be informed in writing of the alleged misconduct within one month of the date of such misconduct or the date on which alleged misconduct comes to the notice of the employer.

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

----S.O. 15---Punishment---Absence from duty due to illness---Scope---Absence from duty due to illness does not constitute a case of wilful insubordination or indiscipline warranting imposition of major penalty on a workman.

(d) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction---Concurrent findings of facts---Scope---Jurisdiction of High Court to disturb/reverse concurrent findings of facts and law under Art.199 of Constitution of Pakistan, is narrow---Such jurisdiction can be invoked only when it is apparent on the face of record that the concurrent findings are a result of an apparent irregularity and are based on consideration of extraneous material, or that the courts below had no jurisdiction in the matter or had completely failed to appreciate the facts and law in reaching the same.

Syed Muhammad Saulat Rizvi for Petitioner.

Mumtaz Alam Laghari for Respondent No.3.

2020 P L C 15

[Lahore High Court]

Before Ali Baqar Najafi, J

JAMEEL AHMAD

Versus

PUNJAB LABOUR APPELLATE TRIBUNAL LAHORE and 3 others

Writ Petition No. 32356 of 2016, decided on 26th February, 2019.

Industrial Relations Act (X of 2012)---

---S.33---Grievance petition---Laboratory Attendant---Absence from duty---Termination from service---Grievance petition filed by the employee was dismissed concurrently---Validity---Petitioner was a regular employee who served the company for twenty years---Employee was served notice of absence from duty of certain days in the preceding three years---Nothing was on record whether these holidays were legally permissible or not and whether salary against those days had been deducted from the account of employee---Inquiry committee had not adverted to the period of absence or total number of days the employee had taken off without permission of employers---Employee was proceeded against in undue haste---Impugned findings were not based on evidence but on his admission of fault---Employee had not been confronted with precise allegations by the inquiry committee for defense---High Court observed that employee had twenty years of service and he should have been retired instead of dismissal---Impugned dismissal order was modified into compulsory retirement/removal from service---Constitutional petition was allowed, accordingly.

Government of Pakistan through Director-General, Ministry of Interior, Islamabad and others v. Farheen Rashid 2011 SCMR 1 and Agriculture Development Bank of Pakistan through Chairman and another v. Akif Javed 2005 SCMR 752 rel.

Saad Ullah for Petitioner.

2020 P L C 42

[Lahore High Court (Rawalpindi Bench)]

Before Ch. Muhammad Masood Jahangir, J

UNITED BANK LIMITED through Authorized Signatories

Versus

PUNJAB LABOUR APPELLATE TRIBUNAL LAHORE and another

W.P. No.2366 of 2011, heard on 19th February, 2019.

Industrial Relations Ordinance (XCI of 2002) ---

----Ss. 46 & 2 (xxx)---Officer Grade-III of a Bank having retired from service sought calculation of pensionary benefits which grievance petition was accepted by the Labour Court---Validity---Only workman could invoke the jurisdiction of Labour Court---Employee in the establishment or industry who was dismissed, discharged, retrenched, laid-off or otherwise removed from the employment in connection with or as a consequence of some dispute or whose dismissal, discharge, retrenchment, lay-off or removal led to that dispute, could file grievance petition---Employee, in the present case, was never dismissed, discharged, retrenched and laid-off or otherwise removed from service rather he remained in job till date of his superannuation---Employee did not fall within the definition of "worker" or "workman" and labour fora lacked jurisdiction to entertain and decide the grievance petition---Impugned orders passed by the Courts below being unlawful, could not sustain which were set aside and grievance petition was dismissed---Constitutional petition was allowed, accordingly.

Faisal Mehmood Ghani for Petitioner.

Kh. Muhammad Arif for Respondents.

2020 P L C 173

[Lahore High Court]

Before Asim Hafeez, J

TARIQ MEHMOOD

Versus

PUNJAB LABOUR COURT NO.2, through Presiding Officer and others

W.P. No.203905 of 2018, decided on 21st October, 2019.

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

----Ss.2(xxxi) & 33---Payment of Wages Act (IV of 1936), S.15---"Worker" and "workman"---Redress of individual grievances---Claims arising out of deductions from wages or delay in payment of wages---Non-payment of gratuity---Scope---Petitioner's claim for recovery of alleged payable gratuity amount was declined on the ground that such a claim could competently be filed in terms of the provisions of Payment of Wages Act, 1936---Validity---Petitioner was not a "Worker" or "Workman" in view of S.2(xxxi) of Punjab Industrial Relations Act, 2010, in lieu of voluntary retirement sought and allowed---Petitioner could not seek redressal by giving grievance notice and /or invoking jurisdiction of Labour Court in terms of S.33(4) of the Punjab Industrial Relations Act, 2010, for the recovery of alleged claim of gratuity, which claim could effectively be raised before the Authority in terms of S.15(1) of the Payment of Wages Act, 1936---No illegality or jurisdictional error was committed by the forums below---Constitutional petition was dismissed.

2020 P L C 189

[Lahore High Court]

Before Jawad Hassan, J

NATIONAL BANK OF PAKISTAN

Versus

REGISTRAR TRADE UNION and others

Writ Petition No.33101 of 2015, decided on 22nd April, 2020.

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

----S.58(1)(2)(d)---Constitutional petition against order of Single Bench of National Industrial Relations Commission---Maintainability---Alternate remedy---Effect---Contention of petitioner was that no other remedy was available against the impugned order passed by the Single Bench of National Industrial Relations Commission---Validity---If an order had been passed by any Bench of National Industrial Relations Commission then same could be challenged before Full Bench of the Commission within thirty days by an "aggrieved person"---Petitioner was aggrieved by the impugned order passed by Single Bench of National Industrial Relations Commission---Petitioner had remedy of appeal against the impugned order before Full Bench of National Industrial Relations Commission---Petitioner could also approach the Full Bench of the Commission under S.58(2)(d) of Industrial Relations Act, 2012, which gave suo motu powers to the Full Bench to examine the record of any Bench of the Commission---Suo motu power could also be exercised on the basis of any grievance of any of the parties---Petitioner had an adequate alternate remedy of appeal before the Full Bench of National Industrial Relations Commission---Constitutional petition being not maintainable was dismissed, in circumstances.

Muslim Commercial Bank Ltd. through Head of Human Resources Division v. M.C.B. Staff Union of Pakistan through President and 2 others 2006 PLC 481; Registrar of Industry-Wise Trade Unions, National Industrial Relations Commission, Islamabad v. Muslim Commercial Bank Employees Trade Union of Pakistan and another 2006 PLC 394; United Bank Limited through V.P. General Manager v. Malik Muhammad Hussain and another 2005 PLC 207; United Bank Limited through V.P. General Manager v. Registrar, Industry-Wise Trade Unions, National Industrial Relations Commission, Islamabad and 3 others 2005 PLC 196; Habib Bank Employees Union (C.B.A.) through General Secretary v. Federation of Pakistan through Secretary, Finance Division, Islamabad and 2 others 2005 PLC 123; National Bank of Pakistan and others v. Karachi Development Authority and others PLD 1999 Kar. 26; Mir Muhammad Idrees and others v. Federation of Pakistan through Secretary Ministry of Finance and others PLD 2011 SC 213; Messrs Sui Southern Gas Company Ltd. and others v. Federation of Pakistan and others 2018 SCMR 802; National Bank of Pakistan v. Punjab Labour Court No.7 and others 1992 SCMR 1891; National Bank of Pakistan, Karachi v. Sindh Labour Appellate Tribunal, Karachi 1993 PLC 480; National Bank of Pakistan v. Lutfullah Abro 1990 PLC 142; M. Riaz Ahmed v. Government of Pakistan through Ministry of Production 2014 PLC 379; Muhammad Afzal v. Registrar of Trade Unions, Balochistan 1994 PLC 735; Government of Balochistan, Livestock Department v. Livestock Employees' Union, Balochistan 1993 PLC 13; Messrs Packages Limited v. Muhammad Akbar and others 2003 SCMR 1152; 1986 CLC 2911; Khairpur Textile Mills Employees' Union, Khairpur v. Registrar of Trade Unions, Karachi and 2 others PLD 1975 Kar. 225; Syed Mansoor Ahsan v. Muhammad Tariq Chaudhry and others 1991 SCMR 668; Pakistan Steel Peoples Workers' Union v. Registrar of Trade Unions, Karachi and 6 others 1992 PLC 715; Piasi Union through Secretary-General, P.I.A. v. Registrar, Industry Wise Trade Unions and 4 others 1993 PLC 581; Farzand Raza Naqvi and 5 others v. Muhammad Din through Legal Heirs and others 2004 SCMR 400; Abdul Wahat, v. Government of Sindh through Secretary, Home Department, Karachi and 2 others 2004 YLR 2599; Mrs. Kausar Iqbal Bhatti, Advocate High Court Bahawalpur v. Shafqat Atta and 25 others 2010 CLC 224; Muhammad Abbasi v. S.H.O. Bhara Kahu and 7 others PLD 2010 SC 969; Ghulam Qadir v. Station House Officer, Police Station Cantt., Bahawalpur and 4 others 2012 MLD 1173; Al-Rehman Associates through Special Power of Attorney v. Province of Sindh through Secretary Land Utilization Department and 2 others 2010 CLC 1734 and Mehmood Medical Store through Proprietors v. Service Hospital, Lahore through Medical Superintendent and 3 others 2012 YLR 174 ref.

Norwich Union Fire Insurance Society Limited's case 1986 SCMR 1071; Dilshad Khan Lodhi's case 2008 SCMR 1530; Fauji Foundation's case 2007 SCMR 1346; Dr. Sher Afgan Khan Niazi's case 2011 SCMR 1813 and Habib Bank Limited v. Gulzar Khan and others 2019 SCMR 946 rel.

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

----S.2(i)---'Workman'---Question as to whether a person is "workman" or not---Determination---Scope.

The question as to whether a person is `workman' or not is certainly a mixed question of law and facts which is to be decided in the light of facts of each case because mere designation per se of a person, amount of emoluments drawn by him or holding a power of attorney on behalf of employer, by itself, would not be the sole criteria for determining his status rather the nature of duties and function determine his status. This is also to be noticed that in many public and private organizations, the managerial staff usually do the manual work and probably all persons in supervisory capacity in one way or the other, do manual work in discharge of their duty, therefore, it may not be the true test to determine the status of a person who undertakes any sort of manual work or performs duty in supervisory capacity involving some manual work, as a workman.

Dilshad Khan Lodhi's case 2008 SCMR 1530; Fauji Foundation's case 2007 SCMR 1346; Dr. Sher Afgan Khan Niazi's case 2011 SCMR 1813; Habib Bank Limited v. Gulzar Khan and others 2019 SCMR 946 rel.

(c) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Factual controversy could be resolved after recording of evidence which was not function of High Court---Factual controversy could not be decided through constitutional jurisdiction of High Court.

Dr. Sher Afgan Khan Niazi's case 2011 SCMR 1813 rel.

Syed Naeem Bokhari, Senior Advocate Supreme Court, Ijaz Janjua Advocate Supreme Court, Muhammad Imad Khan and Afzal Ali Bhatti for Petitioner.

Ch. Muhammad Khalid Farooq, Advocate Supreme Court, Ms. Sadia Malik, Assistant Attorney General and Barrister Umair Khan Niazi, Additional Advocate General for Respondents.

2020 P L C 260

[Lahore High Court]

Before Ayesha A. Malik, J

PROVINCE OF PUNJAB through Secretary Population Welfare Department and 2 others

Versus

FARZANA BASHARAT and 2 others

Writ Petition No.48957 of 2019, heard on 22nd September, 2020.

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

----Ss.1(3)(b) & 44---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S. 2(b)---Public employment----Contractual employee of Government Department---Regularization of Service --- Jurisdiction of Labour Court under Punjab Industrial Relations Act, 2010---Scope---Question before High Court was whether "Labour Court constituted under Punjab Industrial Relations Act, 2010 had jurisdiction to adjudicate upon matter of regularization of service of an employee of Government Department, who in the present case, was employed as Family Helper with Provincial Population Welfare Department"----Held, that employee in present case, admittedly worked for a government department which was not a commercial establishment either under Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 or under Punjab Industrial Relations Act, 2010---Section 1(3)(b) of Punjab Industrial Relations Act, 2010 provided that same shall not apply to person employed in administration of state and therefore, Labour Court could not adjudicate upon the matter---Constitutional petition was allowed, accordingly.

Province of Punjab and 3 others v. Gul Hassan and 33 others 1992 PLC 924; Parks and Horticulture Authority and others v. Ejaz Ahmad Sial 2020 PLC (C.S.) 214 and Province of Punjab through Secretary Agriculture Department, Lahore and others v. Muhammad Arif and others 2020 SCMR 507 rel.

Akhtar Javed, Additional Advocate General, Punjab with Muhammad Imran, DO/Admin. PWD Punjab and Muhammad Pervaiz Ranjha, District Population Welfare Officer, Sialkot for Petitioners.

Rana Liaqat Ali Khan for Respondent No.1.

2020 P L C 12

[National Industrial Relations Commission]

Before M. Zubair Aziz Cheema, Fahmeeda Qadeer and Saleem Jan, Members

MUHAMMAD DANISH

Versus

NATIONAL BANK OF PAKISTAN and others

Appeal No.12-A(36) of 2018-K, decided on 17th June, 2019.

Industrial Relations Act (X of 2012)---

---S. 33---Civil Procedure Code (V of 1908), O. VII, R. 11---Redressal of individual grievances---Delay in filing grievance petition---Rejection of petition---Non-service of grievance notice---Effect---Appellant assailed order of Single Member whereby his grievance petition was dismissed being time-barred---Validity---Appellant was dismissed from service on 26/02/2013 while the grievance petition was filed on 30/12/2016---Delay of more than three years had not been explained justifiably---Grievance petition was hopelessly time-barred---Appellant had not served grievance notice upon the respondents, which was a prerequisite condition for filing the grievance petition---Single Member had not committed illegality or irregularity by accepting the application of respondents under O.VII, R.11, C.P.C. and thereby dismissing the grievance petition---Appeal was dismissed.

Khushal Khan v. MCB and others 2000 PLC (C.S.) 907 rel.

Syed Abdul Waheed for Appellant.

2020 P L C 99

[National Industrial Relation Commission]

Before Mian Shakirullah Jan, Chairman, Saleem Jan and Muhammad Iteefaq Abbasi Members

ALI HASSAN

Versus

PIAC and others

Appeal No.12(09) of 2019-K and C.M.A. No.24(09) of 2019-K, decided on 26th March, 2019.

Industrial Relations Act (X of 2012) ---

----Ss. 33, 31 & 54(e)---Appointment on the basis of fake documents---Disciplinary proceedings, initiation of---Grievance petition---Maintainability---Unfair labour practice---Employee was issued show cause notice for submitting forged documents in connection with his employment---Grievance petition filed on behalf of employee was dismissed being not maintainable---Contention of employee was that he had been proceeded against due to trade union activities---Validity---Averments of grievance petition did not constitute an act of unfair labour practice---When no case of unfair labour practice had been made out from the contents of grievance petition then recording of evidence would be a futile exercise---Initiating disciplinary proceedings against a worker on account of misconduct was a legal right of the employer and restraining him from exercising such right would tantamount to pre-empting his decision which could not be a scheme of law---Issuance of show-cause notice did not mean that the case would be decided against the employee---Mere issuance of a show cause notice did not amount to adverse action---Nothing was on record that employee was involved in trade union activities which irked the employer or caused him to issue show-cause notice to him---Mere fact that employee happened to be a member/officer of a trade union would not give him a cause under S.31 of Industrial Relations Act, 2012 to invoke the jurisdiction of National Industrial Relations Commission---Disciplinary proceedings had been initiated against the employee on the ground that he had submitted forged documents---Issuance of show-cause notice and initiation of inquiry proceedings for just cause did not amount to an unfair labour practice---Grievance petition was not maintainable, in circumstances---Appeal was dismissed accordingly.

Anwar Ali v. Chief Executive HESCO (WAPDA) 2009 SCMR 1492; M. Muzaffar Ali v. Chairman N.I.R.C and others 1991 PLC 876; Searle Pakistan Limited v. Full Bench, National Industrial Relations Commission 2002 PLC 87; Pakistan International Airline and others v. Tanveer-ur-Rehman PLD 2010 SC 676; Mrs. Anisa Rehman v. PIA and others 1994 SCMR 2232; Zafar Iqbal v. PIA through General Manager (Personnel) PIA Karachi and 4 others 2011 PLC (C.S.) 259; M. Musa v. HBL and others 2012 SCMR 979 and Hafeez Shah v. United Bank Limited 2001 SCMR 931 rel.

Nemo. for Petitioner.

2020 P L C 209

[National Industrial Relations Commission]

Before Mian Shakirullah Jan, Chairman, Saleem Jan and Muhammad Ittefaq Abbasi, Members

MUHAMMAD TAHIR KHAN

Versus

PAKISTAN INTERNATIONAL AIRLINES and others

Appeal No.12(53) of 2017-K, decided on 26th March, 2019.

Industrial Relations Act (X of 2012)---

----Ss.33 & 2(xxxiii)---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(i) & S.Os.12(3) & 15(4)---Industrial Relations Ordinance (XXIII of 1969), S.25-A---Pakistan International Airlines Corporation Employees (Service and Discipline) Regulations, 1985---Grievance petition---Cargo Assistant of Pakistan International Airlines Corporation---Termination from service without show-cause notice---Effect---Corporation terminated the petitioner-employee from service without any inquiry or show-cause notice---Employee filed grievance petition which was dismissed by single member of the National Industrial Relation Commission holding that petitioner was appointed on the basis of graduation in second division whereas he had passed graduation in third division---Validity---Services of petitioner-employee were terminated without issuing either charge sheet or show-cause notice---Employee was a "workman" under Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and Pakistan International Airlines Corporation Employees (Service and Discipline) Regulation, 1985, were non-statutory in nature---Petitioner would enjoy the protection of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and his services would not be governed by non-statutory regulations of the Corporation---In case of termination of employment in violation of Standing Order 12(3) of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, it was sufficient that the workman concerned did fall within the definition of 'workman' given in S.2(i) of said Ordinance and he need not to be covered by the definition of the 'workman' and 'worker' given in S.2(xxxiii) of Industrial Relations Act, 2012---Petitioner had been dismissed without affording a fair and proper opportunity by dispensing with the inquiry in violation of mandatory provisions of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and principles of natural justice---Provisions of S.O. 15(4) of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, were mandatory and their non-observance was sufficed to vitiate the entire proceedings---Impugned order passed by the Single Member of National Industrial Relations Commission and termination letter were set aside by the Full Bench of the Commission and employee was reinstated in service---Corporation might have an option to proceed against the employee for alleged misconduct in accordance with law---Appeal was allowed, in circumstances.

1994 SCMR 2232; 2011 PLC (C.S.) 331; 1991 PLC 643; 1989 PLC 229 and 2006 PLC 66 ref.

2001 SCMR 931; Zafar Iqbal v. Pakistan International Airlines through General Manager [Personnel] PIA, Karachi and 4 others 2011 PLC (C.S.) 259; National Telecommunication Corporation through Chairman v. National Industrial Relations Commission through Chairman and others 2014 SCMR 1833; Mustekhum Cement Limited through Managing Director v. Abdul Rashid and others 1998 SCMR 644 and Syed Matloob Hussain v. Broke Bond Pakistan Limited, Lahore 1992 SCMR 227 rel.

Arshad Mehmood for Appellant.

2020 P L C 218

[National Industrial Relations Commission]

Before Mian Shakirullah Jan, Chairman, Saleem Jan and Muhammad Ittefaq Abbasi Members

AHMED RAZA and 17 others

Versus

PAKISTAN INTERNATIONAL AIRLINES and others

Appeal No.12(84)-K and C.M.A No.24(84)-K of 2019, decided on 26th March, 2019.

Industrial Relations Act (X of 2012)---

----Ss.33 & 54(e)(h)---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1978), S.1(4)(c) & S.O. 15---Pakistan International Airlines Corporation Employees (Service and Discipline) Regulations, 1985---Employees of Pakistan International Airlines Company---Appointments on the basis of fake educational testimonials---Disciplinary proceedings, initiation of---Grievance petition---Maintainability---Non-service of grievance notice to the employer---Effect---Petitioners-employees were issued show-cause notice for appointments on the basis of fake educational testimonials against which they filed grievance petition without of grievance notice to the employer which was dismissed being not maintainable---Validity---Initiating disciplinary proceedings against a worker on account of misconduct was a legal right of employer---Issuance of show-cause notice did not mean that the case would be invariably decided against the petitioners and there was always a possibility that same might be decided in favour of employees---Employees before recourse to the national Industrial Relations Commission should have given grievance notice to the employer of his grievance in writing---Petitioners had not served a grievance notice to the employer in the present case---Procedure provided in Industrial Relations Act, 2012, was mandatory---Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, would not apply in case of the establishment having statutory rules of service---Pakistan International Airlines Corporation Employees (Service and Discipline) Regulations, 1985, were non-statutory rules of service and Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, was applicable in the present case--If any action was to be taken against the employees then same should be taken in conformity with the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968---Provisions of Standing Order 15 of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, were mandatory and their non-observance would vitiate the entire proceedings---Company should ensure fundamental right of fair trial and due process in the proceedings against the employees---Grievance petition against show-cause notice was not maintainable in circumstances---Appeal was dismissed accordingly.

2007 PLC (C.S.) 824; 1988 MLD 374; 2004 SCMR 1864; 2004 SCMR 1077; 2014 PLC (C.S.) 479 and 2004 PLC (C.S.) 959 ref.

Anwar Ali v. Chief Executive HESCO (WAPDA) 2009 SCMR 1492; Matee-ul-Hassan v. National Industrial Relations Commission Appellate Bench at Islamabad and 4 others 2018 PLC Note 30; Pakistan International Airline and others v. Tanveer-ur-Rehman PLD 2010 SC 676; Mrs. Anisa Rehman v. PIA and others 1994 SCMR 2232; Zafar Iqbal v. PIA through General Manager (Personnel) PIA Karachi and 4 others 2011 PLC (C.S.) 259; M. Musa v. HBL and others 2012 SCMR 979 and Hafeez Shah v. United Bank Limited 2001 SCMR 931 rel.

Saad Nazim Hussain for Appellant.

2020 P L C 229

[National Industrial Relations Commission]

Before Muhammad Zubair Aziz Cheema, Fahmeeda Qadeer and Syed Inam-ur-Rehman, Members

HABIB BANK LIMITED

Versus

GUL MUHAMMAD

Appeal No.12A(01) and C.M.A. No.24(10) of 2019-S, decided on 2nd October, 2019.

Industrial Relations Act (X of 2012)---

----Ss.33 & 46---Cashier of a Bank---Allegation of misappropriation---Misconduct---Dismissal from service---Grievance petition---Limitation---Condonation of delay---Non-service of grievance notice to the employer---Effect---Appeal of petitioner-employee stood abated and he filed grievance petition without serving grievance notice to the Bank---Single Member of National Industrial Relations Commission accepted grievance petition and employee was reinstated into service without back benefits---Validity---Allegations of misconduct had been proved during disciplinary proceedings against the employee---Petitioner-employee had participated in the departmental inquiry and he was satisfied with the inquiry conducted by the inquiry officer---Impugned dismissal order was proper, legal and justified---Supreme Court while directing abatement of proceedings had allowed ninety days' time to approach the proper forum---Limitation provided under S.46 of Industrial Relations Act, 2012, was not applicable in the present case in view of pronouncement of Supreme Court---Employee was bound to approach the proper forum within ninety days---Limitation was not to be counted from the date the case was returned by the Service Tribunal but from the date of judgment of Supreme Court---Grievance petition was filed after four years from the date of judgment of Supreme Court---No application for condonation of delay had been filed by the employee---Limitation could not be condoned without such an application---Grievance petition filed by the employee was time barred, in circumstances---Employee had not served grievance notice upon the Bank before filing of grievance petition---Petitioner-employee was negligent and he was not fit for banking job---No master could afford to retain a servant whose integrity was doubtful---Misconduct had been established against the employee during inquiry proceedings---Single Member of National Industrial Relations Commission had erred in the law and committed irregularity and illegality while passing the impugned order which was set aside by Full Bench of Commission and grievance petition was dismissed---Appeal was allowed, in circumstances.

Mubeen-us-Salam v. Federation of Pakistan and others PLD 2006 SC 602 and 2007 SCMR 198 rel.

Faisal Mehmood Ghani for Appellant.

2020 P L C 245

[National Industrial Relations Commission]

Before Mian Shakirullah Jan, Chairman

ISRAR AHMED

Versus

FAROOQ KHAN and others

Case No.12B(65) of 2018, decided on 25th March, 2019.

Industrial Relations Act (X of 2012)---

----Ss.5(2) & 12---Complaint before Registrar Trade Unions---Appeal against the order of Registrar Trade Unions before National Industrial Relations Commission---Maintainability---Contention of appellant was that Registrar, Trade Unions had passed impugned order without hearing his counsel---Validity---Remedy of appeal to a trade union, its members and an officer against the order of the Registrar Trade Unions was available---Appellate was an officer and office bearer of a registered trade union and he had remedy to prefer an appeal against the impugned order passed by the Registrar Trade Unions---Present appeal was maintainable having been filed competently---Complainant was present in person and his counsel was not available at the time of passing of impugned order by the Registrar Trade Unions---Commission observed that Registrar, Trade Unions had not given any decisive findings with regard to allegations levelled in the complaint---Registrar Trade Unions should have decided the assertions of complainant on either way after hearing the parties---Matter was remanded to the Registrar Trade Unions for decision afresh after affording an opportunity of hearing to both the parties---Appeal was allowed, in circumstances.

Kh. Muhammad Arif for Appellant.

Babu Muhammad Idrees (Labour representative), Muhammad Sarwar and Shahid Bashir Dy. Manager (Finance) for Respondents.

2020 P L C 251

[National Industrial Relations Commission]

Before Mrs. Fahmeeda Qadeer, Member

UBAID and others

Versus

ICI PAKISTAN LTD. and others

Case No.4A(455)/2018-K, 24(456)/2018-K, decided on 9th July, 2019.

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

----S.34---Grievance petition---Petitioners were employed in the company through contractor---Trade Union registered at provincial level---Deduction of union subscription---Trans-provincial establishment---National Industrial Relations Commission, jurisdiction of---Scope---Contention of employees was that they were employees of the company but it had refused to deduct Trade Union subscription---Validity---Trade Union had been registered by the Registrar Trade Unions Sindh---Petitioners were employees of the contractors and question for deduction of union subscription did not arise---Petitioners were neither employees of trans-provincial establishment nor that of the company---Labour Union had not been registered with Registrar Trade Union National Industrial Relations Commission---Petitioners had remedy for registration under S.34 of Sindh Industrial Relations Act, 2013 but same had not been availed---Grievance petition had not been signed by the General Secretary and President of the Union---Petitioner being a provincial Union could not invoke the jurisdiction of National Industrial Relation Commission and right forum was the Labour Court---Grievance petition was dismissed, in circumstances.

2014 PLC 351 rel.

Sardar Manzoor Hussain for Petitioners.

2020 P L C 247

[Peshawar High Court]

Before Qaiser Rashid Khan and Mohammad Ibrahim Khan, JJ

ALAM KHAN

Versus

HABIB BANK LIMITED through President and others

Writ Petition No.2673-P of 2020, decided on 8th July, 2020.

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

----S.37---Industrial Relations Act (X of 2012), S. 2 (xxxiii)---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(i)(c)---Manager Operation of a Bank---Allegation of misconduct---Compulsory retirement from service---Grievance petition--- Maintainability --- "Workman" --- Determination of ---Procedure---Grievance petition filed by the employee was dismissed being not maintainable---Validity---Status and designation of a person was not merely a determining factor to judge him to be a "workman" rather the nature of duties being performed by him---Petitioner was a Manager Operation of a Bank and the duties assigned to him were supervisory in nature---Petitioner did not fall within the definition of 'workman' as duties performed by him were managerial---Courts below had rightly dismissed grievance petition of the petitioner on the ground of maintainability---No illegality or jurisdictional error had been pointed out in the impugned findings recorded by the Courts below---Constitutional petition was dismissed in limine.

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

2020 P L C 158

[Punjab Labour Appellate Tribunal]

Before Mrs. Erum Sajad Gull, Chairman

CHIEF EXECUTIVE OFFICER GUJRANWALA ELECTRIC POWER COMPANY (GEPCO) GUJRANWALA and others

Versus

FARZAND ALI

Labour Appeal No.GA-299 of 2019, decided on 13th January, 2020.

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

----S.33---Redress of individual grievances---Change in date of birth---Scope---Respondent's claim was that his year of birth was 1960 which was incorrectly incorporated by the department as 1956---Respondent, to substantiate his claim, had got a declaration from the Civil Court to the effect that his year of birth was 1960---Contention of department was that to avoid his retirement, respondent had claimed that his year of birth was 1960---Validity---Department was not a party to the suit for declaration filed by respondent against the NADRA (National Database and Registration Authority)---Respondent himself had admitted in cross-examination that his year of birth, according to his first CNIC (Computerized National Identity Card) was 1956--- Respondent had not produced his first CNIC before the Labour Court---Respondent had never made any efforts to get his date of birth corrected but just few months before his retirement he had secretly filed a civil suit and had managed to get a decree in his favour---Appeal filed by department was accepted and the order of respondent's restoration in service passed by Labour Court was set aside.

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

----O.XLI, R.27---Production of additional evidence in appellate court---Scope---Where the appellate court requires any document to be produced or any witness to be examined so as to enable it for a just decision of the case, it may allow such evidence or document to be produced before it.

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

----O.I, R.3---Suit for declaration---Who may be joined as defendants---Change in date of birth---Failure to array employer-department as defendant---Effect---Merely obtaining a decree from the civil court for correction of date of birth by an employee is of no consequence if the employer department is not impleaded as a party in the suit---Employee's silence during major period of his service, knowing he would not get a favourable decision from the department, would go against him.

M.R. Khalid v. Chief Secretary, Punjab and another 1994 SCMR 1633 rel.

(d) Industrial dispute---

----Change in date of birth---Scope---Employee can get his date of birth changed within two years of joining service and not later.

Syed Iqbal Haider v. Federation of Pakistan 1998 SCMR 1494 rel.

Syed Mujeeb-ul-Hasssan for Appellants.

2020 P L C 214

[Punjab Labour Appellate Tribunal]

Before Justice (Rtd.) Syed Iftikhar Hussain Shah, Chairman

D.G. KHAN CEMENT COMPANY LIMITED D.G. KHAN through Managing Director

Versus

Malik MUHAMMAD NAZEER and another

Labour Appeal No.289 of 2014, decided on 25th April, 2019.

Industrial Relations Act (X of 2012)---

----S.33---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(i)---Grievance petition---Manager of Cement Company---Termination from service---"Workman"---Determination---Principles---Respondent-Company terminated the petitioner-employee informing him that his services were no more required---Employee filed grievance petition which was accepted by the Labour Court---Contention of Company was that employee was not "worker" and grievance petition was not maintainable before Labour Court---Validity---Employee at the time of termination of his service was performing duty of Manager Excise---Company had terminated the services of employee in accordance with the service rules applicable to him in lieu of notice---Employee was incharge of his section and was performing the supervisory duty---Petitioner-employee had initiated annual confidential reports, made recommendations for promotion and extension of period of service and had also recommended leave applications of his subordinates---Employee was not "worker", in circumstance---Labour Court had failed to appreciate the evidence on record and had wrongly held that employee was a "worker"---Impugned judgment passed by the Labour Court was not sustainable in the eye of law which was set aside---Grievance petition filed by the employee was dismissed---Appeal was allowed, in circumstances.

2018 SCMR 376; 2018 PLC 28 and 2005 SCMR 1049 ref.

2001 CLC 1337 and 2009 YLR 32 distinguished.

Ch. Salim Akhtar Warraich for Appellants.

2020 P L C 72

[Balochistan High Court]

Before Abdullah Baloch and Muhammad Hashim Khan Kakar, JJ

DEEN MUHAMMAD

Versus

LABOUR APPELLATE TRIBUNAL and 2 others

C.P. No.1014 of 2017, decided on 13th May, 2019.

Balochistan Industrial Relations Act (XIII of 2010)

----S.41---Grievance petition without service of grievance notice---Maintainability---Employee was suspended and was dismissed from service after inquiry---Employee served grievance notice against his suspension through his counsel but no such notice was issued against order for dismissal---Grievance petition moved by the employee was allowed by the Labour Court but Labour Appellate Tribunal dismissed the same---Validity---Employee himself should bring his grievance to the notice of employer and employer within fifteen days of the grievance brought to his notice should communicate his decision in writing to the worker---Grievance notice could not be served through counsel---Grievance notice, in the present case, was served through counsel which was against mandatory provision of law---When a party had made admission, there was no need of formal inquiry---Employee in the present case, had rendered unconditional apology to the employer---Inquiry against the employee in circumstances was not mandatory---Foundation of case would revolve around the grievance notice and without issuing the same the whole superstructure would automatically fall to the ground---Employee had not issued grievance notice against his dismissal from service in the present case---Mandatory requirements of law had not been complied with, in circumstances---Grievance petition was not maintainable before the Labour Court---Labour Appellate Tribunal had rightly accepted the appeal of employer against the employee---Constitutional petition was dismissed, in circumstances.

2015 PLC 220; PLD 1980 SC 80; 1980 PLC 1229; 1985 PLC 1068; 2002 SCMR 684 and 1993 SCMR 956 rel.

Syed Ayaz Zahoor for Petitioner.

Abdul Musawir for Respondent No.3.

2020 P L C 82

[Balochistan High Court]

Before Jamal Khan Mandokhail, CJ and Abdullah Baloch, J

NATIONAL CONSTRUCTION LIMITED, through Authorized Officer and others

Versus

NATIONAL INDUSTRIAL RELATIONS COMMISSION and others

Constitutional Petitions Nos. 889 to 931 of 2018, decided on 25th November, 2019.

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

----Ss. 33 & 58--- Constitution of Pakistan, Art. 199---Constitutional petition---Condonation of delay---Termination of service---Payment of arrears--- Concurrent findings by two forums below---Petitioner company terminated services of its employees and failed to reimburse arrears---Petitioner company sought condonation of delay on grounds that forums below proceeded ex-parte without affording it an opportunity---Validity---Provisions of S. 58 of Industrial Relations Act, 2012 were very clear that an aggrieved party from an order of Bench of Industrial Relations Commission could within 30 days of such decision prefer an appeal before appellate authority---Appeal before appellate authority was filed after inordinate delay of 22 days---High Court declined to interfere in orders passed by two forums below as there was no illegality or irregularity--- Petitioner had not only adopted irresponsive attitude before Bench of Industrial Relations Commission but same was continued whilst filing appeals before appellate forum by filing appeals after delay of 22 days and that too without any plausible explanation---Petitioner was not vigilant in defending and asserting its rights and as such let period of limitation expire before approaching appellate forum---Delays were not explained in even a remotely convincing manner---High Court observed that delay defeated equity, time and tide waited for none and law helped vigilant not indolent---Object of law of limitation was to help vigilant and not indolent---Helping hand could not be extended to a litigant on having become forgetful of his rights---Constitutional petition was dismissed in circumstances.

Naik Muhammad v. Muhammad Shabbir and others 2019 CLC 164 rel.

(b) Limitation---

----Accrual of right---Principle---When right cannot be enforced because of limitation, same would vest/accrue in favour of opposite party---Where matter is barred by time Court cannot go into merits of controversy between parties.

Independent Media Corporation (Pvt.) Ltd. through Chief Executive and others v. Raja Tariq Mehmood and others 2018 PLC Note 29 rel.

Abdullah Kakar for Petitioner.

2020 P L C 96

[Balochistan High Court]

Before Abdul Hameed Baloch and Naeem Akhtar Afghan, JJ

CHIEF EXECUTIVE OFFICER QESCO and another

Versus

AZIZULLAH, COMMERCIAL SUPERINTENDENT and 3 others

Constitutional Petition No.1151 of 2017, decided on 6th August, 2019.

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

----S.41---Redressal of individual grievances---Scope---Respondents claimed two step time scale up-gradation on the basis of an official memorandum issued by the respondent---Trial Court and Appellate Tribunal concurrently accepted the application of respondents---Validity---Petitioners had not produced any single documentary evidence before the Trial Court except recording statement of representative---Petitioners had failed to discard the referred memorandum/notification---Petitioners had relied upon different official memorandums in their written statement but failed to substantiate the same---Mere mentioning the documents in pleadings were not enough to be accepted rather the same was required to be proved---Official memorandum relied upon by respondents manifested that the employees working in BPS-15 were entitled for two step time scale up-gradation---Since the respondents fulfilled the requisite qualification, therefore, they were entitled for two step time scale up-gradation---Petitioners had failed to point out any illegality and irregularity in the concurrent judgments passed by the courts below---Constitutional petition, being bereft of merit, was dismissed.

Ghulam Mustafa Buzdar for Petitioners.

Abdul Rasheed Awan for Respondents Nos.1 to 3.

2020 P L C 122

[Balochistan High Court]

Before Abdul Hameed Baloch and Naeem Akhtar Afghan, JJ

CHIEF EXECUTIVE OFFICER and 2 others

Versus

KHUDA BAKHSH and 2 others

Constitutional Petition No.351 of 2018, decided on 14th October, 2019.

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

----S.41---Grievance petition---Employee of Electric Supply Company seeking rectification of date of birth in the service record---Scope---Grievance petition for correction of date of birth in service record which was accepted concurrently---Validity---Employee had filed said grievance petition after more than thirty three years---Date of birth once recorded at the time of joining service would be final and thereafter no alteration in the same was permissible---Employee had filed the grievance petition at the verge of his retirement---Authenticity of date of birth recorded in service book could not be challenged belatedly---Impugned orders were declared void and of no legal effect---Grievance petition filed by the employee was dismissed---Constitutional petition was accepted, in circumstances.

Farooq Anwar for Petitioners.

Jamil Agha, Muhammad Asif for respondent No.1 and Abdul Latif Kakar, Additional Advocate for Respondents Nos.2 and 3.

2020 P L C 135

[Balochistan High Court]

Before Mrs. Syeda Tahira Safdar, CJ and Muhammad Ejaz Swati, J

NOOR-UD-DIN BUGTI through Secretary General and others

Versus

SULTAN MOHAMMAD MAZDOOR YAR and others

C.Ps. Nos. 669 of 2013 and 400 of 2015, decided on 24th June, 2019.

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

----Ss.2(dd)(h)(i), 3 & 24(2)---Balochistan Civil Servants Act (IX of 1974), S. 2(1)(b)---Balochistan Government Servants (Conduct) Rules, 1979, Rr. 2, 3(1)(b) & 30---Employees of Public Health Engineering Department---Trade union, registration of---"Worker" or "workman"---Scope---Registration of new Trade Union was challenged and Labour Court directed Registrar Trade Union to conduct Referendum between the Trade Unions---Validity---Petitioners and other members of Trade Unions were in employment of Public Health Engineering Department and were performing their duties---Persons who were serving in connection with the affairs of Province or even the employees of the Provincial Government deputed to serve with a statutory corporation or with a non government employer were government servants and they did not fall within the ambit of "workers" or "workmen"---Petitioners being not "workers" or "workmen", Balochistan Industrial Relations Act, 2010 was not applicable to them---Trade Unions could be formed by the "workers" or "workmen" and persons in government service could not form any such Unions---Employees in government service could only form welfare association---Registrar Trade Union had illegally registered the unions formed by the government servants---Government department could not be treated as an establishment nor government servants could be treated as "workers" or "workmen"---Impugned judgments passed by the Courts below having no legal effect, were set aside---Grievance petition filed by the petitioners was dismissed for want of jurisdiction---Constitutional petition was disposed of, accordingly.

Shahid Javed for Petitioners.

Abdul Zahir Kakar, Zahoor Ahmed Baloch, Assistant Advocate General for Official respondents and Arif Abbas, Registrar Trade Union for Respondent No.1.

2020 P L C 239

[Balochistan High Court]

Before Muhammad Kamran Khan Mulakhail and Nazeer Ahmed Langove, JJ

CHIEF EXECUTIVE OFFICER, QESCO and others

Versus

SHER JAN and others

Constitutional Petitions Nos.964, to 970 of 2017, decided on 29th November, 2019.

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

----Ss.41 & 2 (dd)---Grievance petition---Employees of Quetta Electric Supply Company---Promotion---Withdrawal of---"Workman"---Determination of---Procedure---Employees were promoted by the employer company and they assumed their duties against the new posts---Employer withdrew promotion orders of the employees declaring the same as void ab initio---Grievance petition filed by the employees was accepted concurrently by the forums below---Validity---Quetta Electric Supply Company had no statutory rules of service---Nature of work performed by the employees was manual and they had no authority of hire and fire---Duties of employees did not come within the meaning and definition of "officers"---Labour Court had jurisdiction to entertain the grievance petition of employees, in circumstances---Employees were promoted after fulfilling the requisite qualification and on the recommendations of Board of Directors---Impugned order for withdrawal of promotion of employees had been issued without any show-cause notice or conducting any inquiry---Even no opportunity of personal hearing had been afforded to the employees in the case---No illegality or irregularity had been committed while passing the promotion orders of the employees---Once promotion had been granted and employees commenced their work as promoted appointees, then a right had accrued in their favour---Employees were to be afforded a fair opportunity of hearing before passing an adverse order against them---High Court, in the present case, under Constitutional jurisdiction could not pass any direction to the Authority for issuing promotion order of the employees---Promotion was not an automatic right but it depended upon competence, availability of post and antecedent---Promotion on the basis of education could not be claimed nor Courts below were competent to pass order for promotion rather it was the domain of the Authority (company) to consider the cases for promotion---Order for withdrawal of promotion of the employees was not based on any explicit reason---Impugned order had been passed in accordance with law---Company/Authority was directed to restore the employees to their positions to which they were posted prior to the impugned order---Constitutional petition was allowed, in circumstances.

Ganga R. Madhani v. Standard Bank Ltd. 1985 SCMR 1511 rel.

Ghulam Mustafa Buzdar for Petitioners.

Waseem Khan Jadoon for Respondents.

2020 P L C 239

[Balochistan High Court]

Before Muhammad Kamran Khan Mulakhail and Nazeer Ahmed Langove, JJ

CHIEF EXECUTIVE OFFICER, QESCO and others

Versus

SHER JAN and others

Constitutional Petitions Nos.964, to 970 of 2017, decided on 29th November, 2019.

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

----Ss.41 & 2 (dd)---Grievance petition---Employees of Quetta Electric Supply Company---Promotion---Withdrawal of---"Workman"---Determination of---Procedure---Employees were promoted by the employer company and they assumed their duties against the new posts---Employer withdrew promotion orders of the employees declaring the same as void ab initio---Grievance petition filed by the employees was accepted concurrently by the forums below---Validity---Quetta Electric Supply Company had no statutory rules of service---Nature of work performed by the employees was manual and they had no authority of hire and fire---Duties of employees did not come within the meaning and definition of "officers"---Labour Court had jurisdiction to entertain the grievance petition of employees, in circumstances---Employees were promoted after fulfilling the requisite qualification and on the recommendations of Board of Directors---Impugned order for withdrawal of promotion of employees had been issued without any show-cause notice or conducting any inquiry---Even no opportunity of personal hearing had been afforded to the employees in the case---No illegality or irregularity had been committed while passing the promotion orders of the employees---Once promotion had been granted and employees commenced their work as promoted appointees, then a right had accrued in their favour---Employees were to be afforded a fair opportunity of hearing before passing an adverse order against them---High Court, in the present case, under Constitutional jurisdiction could not pass any direction to the Authority for issuing promotion order of the employees---Promotion was not an automatic right but it depended upon competence, availability of post and antecedent---Promotion on the basis of education could not be claimed nor Courts below were competent to pass order for promotion rather it was the domain of the Authority (company) to consider the cases for promotion---Order for withdrawal of promotion of the employees was not based on any explicit reason---Impugned order had been passed in accordance with law---Company/Authority was directed to restore the employees to their positions to which they were posted prior to the impugned order---Constitutional petition was allowed, in circumstances.

Ganga R. Madhani v. Standard Bank Ltd. 1985 SCMR 1511 rel.

Ghulam Mustafa Buzdar for Petitioners.

Waseem Khan Jadoon for Respondents.

2020 P L C 255

[Balochistan High Court]

Before Rozi Khan Barrech and Naeem Akhtar Afghan, JJ

HASSAN KHAN

Versus

ABDUL NABI and 5 others

C.P. No.215 of 2019, decided on 6th July, 2020.

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

----Ss.41 & 2(dd)(h)---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(i)---Balochistan Civil Servants Act (IX of 1974), S.2(1)(b)---Balochistan Government Servants (Conduct) Rules, 1979, R.3(1)(b)---Employee of Communication and Works Department---Promotion---Grievance petition---Maintainability---"Worker" or "workman"---Effect---Expression "establishment"---Scope---Contention of petitioner was that junior employees had been promoted against the rules and seniority---Grievance petition was accepted concurrently---Validity---Petitioner was employee of Communication and Works Department having no power to hire and fire---Term 'establishment' could not be extended to include a department running the affairs of Government rather it did mean any office or firm having employees or workers for the purpose of carrying on any business or industry having no nexus with Government Departments---Persons who were serving in connection with the affairs of Province or even the employees of Provincial Government deputed to serve with a statutory corporation or with a non-government employer were "Government servants"---Balochistan Industrial Relations Act, 2010, had no application to such employees---Employees serving in the Communication and Works Department did not fall within the purview of "worker" or "workman"---Petitioner was in government employment and laws meant for "workers" and "workman" were not applicable in his case---Courts below had no jurisdiction to entertain the grievance petition of employee---Impugned judgments passed by the Courts below were declared void and of no legal effect, in circumstance---Constitutional petition was allowed, in circumstances.

Shamsuddin Achakzai and Humaira Munir for Petitioner.

Azam Jan Zarkoon for Respondent No.1.

Zahoor Ahmed Baloch, Assistant Advocate General ("A.A.G."). for Respondents Nos.2 to 6.

2020 P L C 44

[Supreme Court of Pakistan]

Present: Gulzar Ahmed and Yahya Afridi, JJ

PHOENIX SECURITY (PVT.) LIMITED

Versus

PIR MUHAMMAD and others

Civil Petitions Nos. 4719, 4752-4759, 4791-4795 of 2017, decided on 3rd October, 2019.

(On appeal against Order dated 17.10.2017 passed by the Lahore High Court, Rawalpindi Bench in Writ Petitions Nos. 2803 to 2806 and 3000 to 3002 of 2014 and 303 to 309 of 2015)

(a) Punjab Shops and Establishments Ordinance (VIII of 1969)---

----S. 5(1)(ix)---Persons not covered under the Punjab Shops and Establishments Ordinance, 1969 ('the Ordinance')---Scope---'Watchmen'---Whether 'security guards' employed by a private company were watchmen, and hence not covered under the Ordinance---Held, that according to dictionary meanings term 'watchman' included a security guard, as both the terms, "watchman" and "security guard", were synonymous to each other and in the nature of their duties also---By virtue of S. 5(1)(ix) of the Ordinance, "security guards" stood excluded from the application of the Ordinance and thus they could not claim any benefit provided in the said Ordinance.

Black's Law Dictionary, Sixth Edition; Oxford Advanced Learner's Dictionary, New 8th Edition and Oxford Thesaurus of English, Third Edition ref.

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

----S. 2(vi)--- "Wages"--- Definition--- Scope--- Wages for weekly holidays and overtime---Such wages were covered under the definition of wages provided under S. 2(vi) of the Payment of Wages Act, 1936.

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

----S.Os. 8(1)(b) & 12(6)---Employees of a private company---Double rate of wages for weekly holidays and overtime, claim for---No contract or custom or usage for paying double rate of wages---Held, that the evidence available on record made it clear that the employees were entitled to payment of wages for weekly holidays and overtime---Employees admitted that they had been paid wages by the employer for the work performed by them on weekly holidays and also for overtime---Such admission could be considered as a contract between the employer and employees or a custom and usage where the employer had been obtaining work from the employees on weekly holidays and also made them work overtime, but at the same time paid the employees for it---Employees in their evidence had not stated anywhere that there was a contract between them and the employer or there was a custom or usage of paying double the rate of wages for working on weekly holidays or for overtime---Employees, in the present case, were not entitled to claim wages for weekly holidays and overtime at double the rate of wages---Petitions for leave to appeal were converted into appeals and allowed accordingly.

Shahid Anwar Bajwa, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Petitioner (in all cases).

Abdul Rehman Qadir, Advocate Supreme Court, Kh. Muhammad Arif, Advocate Supreme Court and Muhammad Sharif Janjua, Advocate-on-Record for Respondent No.1 (in all cases).

2020 P L C 150

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Sajjad Ali Shah, JJ

BASHIR AHMAD and others

Versus

The DIRECTOR GENERAL, LAHORE DEVELOPMENT AUTHORITY, LAHORE and others

C.Ps. Nos. 2800-2801 of 2019, 2926-2927, 1830-L, 2067-L, 2253-L to 2255-L and 2800-L of 2019, decided on 20th January, 2020.

(Against the order dated 21.5.2019 of the Lahore High Court, Lahore passed in Writ Petitions Nos. 9693/16, 159063/18, 159053/18, 159059/18, 28373/16, 5846/16, 9696/16, 3901/17, 7590/17 and 7585/17)

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

----S. 33---Punjab Employees Efficiency, Discipline and Accountability Act (XII of 2006), Ss. 4(1)(b)(iv) & 4(1)(b)(vi) ---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968). S. 1(4), proviso---"Workman"---Grievance petition before Labour Court---Maintainability---Employees of Lahore Development Authority proceeded against under the Punjab Employees Efficiency, Discipline and Accountability Act, 2006 ("PEEDA 2006") and dismissed from service---Whether remedy for such employees lay before Labour Court---Contention of employees that despite the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 being not applicable to them, still they could maintain a grievance petition under S. 33(1) of the Punjab Industrial Relations Act, 2010, and that the word 'law' used in S. 33(1) also included the PEEDA 2006---Held, that employees were unable to establish that S. 33(1) of PEEDA, 2006 although containing the word 'law', would stand alone provide remedy to the employees before the Labour Court---Section 33(1) did not use the word 'law' in isolation, rather the provision clearly provided that "a worker may bring his grievance in respect of any right guaranteed or secured to him by or under any law ...", thus, the redressal of an individual grievance of a worker could be redressed under S. 33(1), where right was guaranteed or secured to a workman under any law---In the present case, the compliant of the employees was not that any of the laws under which they had been proceeded against, had been violated nor was such the argument before the High Court---High Court had rightly held that PEEDA 2006 being itself a statute under which the employees had been proceeded against, they could not have brought their grievance before the Labour Court---Petitions were dismissed.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition before High Court---Maintainability---Employee proceeded against under a statute or statutory rules of service---In case an employee was proceeded against under a statute or any statuary rules and such statute or statutory rules were violated, his remedy lay before the High Court by filing of a writ petition under Art. 199 of the Constitution, and not any other remedy---When an employee had been proceeded against under a statute or statutory rules of service and the same did not provide any remedy before a specific forum, his remedy would lay before the High Court by way of a Constitutional petition.

Mahmood Ahmed Qazi, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioners (in C.Ps. Nos. 2800-2801 of 2019).

Barrister Haris Azmat, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Petitioners (in C.Ps. Nos. 2926-2927 of 2019).

Khalid Ismail, Advocate Supreme Court for Petitioners (in C.P. No. 2067-L of 2019).

Salman Riaz Chaudhry, Advocate Supreme Court for Petitioners (in C.Ps. Nos. 2253-L to 2255-L of 2019 and C.P. No. 2800-L of 2019).

Petitioner in person (in C.P. No. 1830-L of 2019).

Nemo for Respondents (in all C.Ps.).

2020 P L C 153

[Supreme Court of Pakistan]

Present: Maqbool Baqar and Amin-ud-Din Khan, JJ

Messrs SUI SOUTHERN GAS COMPANY LIMITED

Versus

REGISTRAR OF TRADE UNIONS and others

Civil Petition No. 449 of 2019, decided on 7th January, 2020.

(Against the judgment dated 07.12.2018 of the Islamabad High Court, Islamabad passed in W.P. No. 3074 of 2017)

Industrial Relations Act (X of 2012)---

----Ss. 2(xxxiii) & 19(5)---Contract workers rendering services to Sui Southern Gas Company Limited ("SSGC") engaged through a labour contractor---Whether such contract workers were eligible to be registered as voters to participate in a referendum for choosing a Collective Bargaining Agent---Held, that for an employee to fall under the definition of a "worker" or "workman", it was wholly irrelevant whether he had been employed directly or through a contractor---Only requirement for an employee in an establishment to become a voter, was his being a worker or a workman, in such establishment for a period of not less than three months and nothing more---Besides the functions performed by the contract workers in question were for the benefit of SSGC and they were rendering such services since many years---Purported arrangement/contract between SSGC and the labour contractors could not be allowed to be used as a device to deprive the contract workers of their legitimate and fundamental right of forming a union and or becoming a part thereof---Petition for leave to appeal was dismissed.

Fauji Fertilizer Company Ltd. through Factory Manager v. National Industrial Relations Commission through Chairman and others 2013 SCMR 1253 and State Oil Company Limited v. Bakht Siddiqui 2018 SCMR 1181 ref.

Asim Iqbal, Advocate Supreme Court and Kasim Mirjat, Advocate-on-Record for Petitioner.

Junaid Akhtar, Advocate Supreme Court for Respondents.