PLC 2021 Judgments

2021 P L C 1

[Islamabad High Court]

Before Miangul Hassan Aurangzeb, J

ALL PAKISTAN ZTBL WORKERS UNION (CBA) and others

Versus

FEDERATION OF PAKISTAN through Secretary, Law and Justice Division and others

Writ Petition No.2454 of 2016, decided on 15th September, 2020.

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

----Ss.4 & 86---Registrar of trade unions (RTU)---Appointment---Rules governing appointed of R.T.U. not framed---Effect---Once power is conferred by statues on a particular Authority, in the matter of appointment, that power cannot be rendered redundant on the pretext that rules for exercising such power had not been framed---No inviolable position existed that a post can be filled up only after framing rules therefor.

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

----Ss.4, 5, 54 & 86---Statutory appointment---Rules, non-framing of---Ad hoc appointment---Principle---Petitioner was aggrieved of post of Registrar Trade Unions lying vacant for a long time---Plea raised by authorities was that the matter had been delayed due to non-availability of service rules and matter was pending with Federal Public Service Commission to complete the process of selection of suitable candidate--- Validity--- Word used in respect of framing of rules in S.86 of Industrial Relations Act, 2012 was 'may' and not 'shall'--- Making of rules was only to avoid confusion or ambiguity in carrying out the purport of Industrial Relations Act, 2012 more effectively---Such was a procedural or internal regulation as to how authorities would discharge their powers and by whom power was to be exercised--- Whenever employees were appointed on ad hoc or temporary basis to meet an emergent situation, every effort was to be made to replace them by employees appointed on regular basis in accordance with relevant rules as expeditiously as possible--- High Court directed that the authorities to complete process for appointment to the post of Registrar Trade Unions in terms of S.4 of Industrial Relations Act, 2012; that to halt process of direct recruitment to post in question until authorities would determine that there was no person in National Industrial Relations Commission eligible for promotion to post of Registrar Trade Unions in terms of eligibility criteria set out in notification dated 1-12-2016; that in case any person met eligibility criteria for promotion to the post, his case would be forwarded for consideration for promotion to the post; that if no person in National Industrial Relations Commission was found eligible for promotion to the post, process for direct recruitment should be resumed; that incumbent who was looking after post of Registrar Trade Unions on temporary basis would cease to perform duties on date when authorities recommend promotion of eligible person to post of Registrar Trade Unions; that if there was no person in National Industrial Relation Commission eligible for promotion to the post or person eligible for promotion was not recommended to be promoted by the authorities, incumbent who was tasked to look after post of Registrar Trade Unions on temporary basis / look after basis would cease to perform duties and no other officer would be appointed as Registrar Trade Unions on temporary, ad hoc, acting charge, additional charge, current charge or look after charge basis other than on regular basis in accordance with S.4 of Industrial Relations Act, 2012 read with method of appointment prescribed in notification dated 1-12-2016; and that till appointment of Registrar Trade Unions on regular basis, officer entrusted with responsibilities on temporary basis would exercise powers within parameters of Office Memorandum dated 20-5-2020 issued by Establishment Division---Constitutional petition was allowed accordingly.

2017 PLC 115 ref.

Secretary to Government of the Punjab v. Muhammad Khalid Usmani 2016 SCMR 2125; Al-Jehad Trust v. Federation of Pakistan PLD 2011 SC 811; Naveeda Tufail v. Government of Punjab 2003 SCMR 291; Pakistan Railways, through GM Lahore v. Zafarullah, Assistant Electrical Engineer 1997 SCMR 1730; Javed Nawab v. Chief Secretary, Government of Balochistan 1998 SCMR 2337; Rab Nawaz Dhadwana v. Muhammad Akram PLD 2014 Lah. 591; Chandgi Ram v. University of Rajhistan 2001 (10) SCC 566 and Islamic Republic of Pakistan v. Muhammad Zafar 1986 SCMR 898 rel.

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

----S.4---Registrar of trade unions---Vacancy, filling of---Principle---Statutory post should not be kept vacant for a long time or to make appointment against such post on an acting or look-after charge or provisional basis---Public duty is cast on the concerned authorities to fill up vacancy on regular basis within the shortest possible time.

Karamat Ali v. Federation of Pakistan PLD 2018 Sindh 8 rel.

(d) Administration of justice---

----Malice---Proof---General allegations of malice are not sustainable in the eyes of law.

The Federation of Pakistan v. Saeed Ahmed Khan and others PLD 1974 SC 151; Aman Ullah Khan v. Lahore Development Authority and another 2004 YLR 1038; Ahmed Khan v. Mst. Naziran Bibi and others 2003 YLR 1028; Province of Punja v. Messrs Industrial Machine Pool, Lahore PLD 1978 Lah. 829 and Akhtar Hussain Shah v. Oil and Gas Development Company Limited 2020 PLC (C.S.) 573 rel.

(e) Constitution of Pakistan---

----Art.199---Constitutional petition---Public interest litigation---Scope---Resort to public interest litigation can be made to obtain judicial redress for public injury arising from a breach of public duty---Same cannot be resorted to obtain a personal advantage.

Dr. G.M. Chaudhary, Advocate for Petitioner.

Arshid Mehmood Kiani, Deputy Attorney-General.

Muhammad Ibrar, Deputy Registrar, NIRC.

Ijaz Ahmad, Section Officer, Ministry of Overseas Pakistanis and Human Resource Developments.

Muhammad Abdullah, Assistant Director (Legal), FPSC for Respondents.

2021 P L C 39

[Islamabad High Court]

Before Miangul Hassan Aurangzeb, J

Khawaja RAUF SEGAL

Versus

FULL BENCH, NATIONAL INDUSTRIAL RELATIONS COMMISSION and others

Writ Petition No.86 of 2019, decided on 24th August, 2020.

(a) Constitutional petition---

----Art.199(1)(a)(ii)---Certiorari, writ of---Substitution of findings---Scope---High Court cannot substitute its decision for the one taken by inferior Court or Tribunal---Where High Court quashes a decision, it has the power to remand the matter to Court, Tribunal or Authority concerned with a direction to reconsider it and to reach a decision in accordance with judgment given by the High Court while deciding a writ of certiorari.

Chief Constable of North Wales Police v. Evans [1982] 3 All ER 141 rel.

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

----S.33---Pakistan International Airline Corporation Employees (Service and Discipline) Regulations, 1985, Regln. 75(aj)---Misconduct---Show-cause notice---Unfair labour practice---Petitioner was employee of Pakistan International Airline Corporation (PIAC) and was issued show cause notice for committing misconduct by submitting bogus educational certificate---Petitioner assailed issuance of show cause notice before National Industrial Relations Commission which petition was dismissed---Validity---PIAC did not act without lawful authority by carrying out a process for verification of its employees' educational certificates relied upon by the employees in order to gain employment or any other service benefit in PIAC---After the Education Board informed the Corporation that petitioner's Intermediate certificate was bogus, it was just and reasonable for the PIAC to have issued show-cause notice to petitioner and such was not an unfair labour practice---Constitutional petition was dismissed in circumstances.

Pakistan International Airlines Corporation v. Tanweer-ul-Islam PLD 2010 SC 676; Nighat Yasmin v. Pakistan International Airlines Corporation 2004 SCMR 1820; Anisa Rehman v. P.I.A.C. 1994 SCMR 2232 and Zafar Iqbal v. Pakistan International Airlines 2011 PLC (C.S.) 259 ref.

Ishtiaq Ahmed Mirza v. Yasir Raza Malik 2010 CLC 1716; Mohsin Sajjad v. University of Peshawar 2015 YLR 590; Saeed Ahmad v. Chairman O.G.D.C.L. 2020 PLC 27; 2017 SCMR 838; International Islamic University v. Dr. Shamim Tariq 2018 PLC (C.S.) Note 201; Muhammad Muneer Malik v. Allama Iqbal Open University 2016 PLC (C.S.) 896; Muhammad Waqas Gul v. Water and Power Development Authority 2015 PLC (C.S.) 144; Mst. Shugafta v. Chairman, Federal Public Service Commission, Islamabad 2015 PLC (C.S.) 819; Mitha Khan Umrani v. Federation of Pakistan 2014 PLC (C.S.) 571; Abdul Latif v. Government of Punjab 2003 PLC (C.S.) 975; District Collector v. M. Tripura Sundari Devi 1990 (3) SCC 655 and Muhammad Aslam Khan v. International Industries Limited 2007 PLC 350 rel.

Abdul Hafeez Amjad for Petitioner.

Momin Ali Khan for Respondents Nos.3 to 5/P.I.A.C.

2021 P L C 59

[Islamabad High Court]

Before Miangul Hassan Aurangzeb and Lubna Saleem Pervez, JJ

NESTLE PAKISTAN LIMITED

Versus

The REGISTRAR TRADE UNIONS and others

I.C.A. No.209 of 2020, decided on 1st October, 2020.

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

----Ss.11 & 8---Cancellation of registration of trade union---Requirements---Scope---Appellant filed application under S.11 of the Industrial Relations Act, 2012, for cancellation of registration of respondent-trade union on the ground that since there were already more than five registered trade unions in the appellant's establishment, therefore, the question of the respondent having its members one fifth of the total members of workmen employed in appellant's establishment, as required under S.8(2)(b) of Industrial Relations Act, 2012, did not arise---Registrar, Trade Unions dismissed the application---Validity---Where at any stage after the registration of the trade union, its membership fell short of one fifth of the total number of workmen employed in an establishment, it was obligatory on the Registrar Trade Unions to initiate the process for the cancellation of such trade union in accordance with S.11(2) of Industrial Relations Act, 2012---Employer or the rival trade union were not prevented from bringing such fact to the notice of the Registrar, Trade Unions---Intra Court appeal was allowed and the Registrar, Trade Unions was directed to determine as to whether the respondent Trade Union fulfilled the requirements of S.8(2)(b) of the Industrial Relations Act, 2012.

Intra Court Appeal No.391 of 2019 rel.

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

----Ss.11 & 8---Cancellation of registration---Requirements---Scope---Conjoint reading of S.11 & S.8(2)(b) of Industrial Relations Act, 2012, shows that the proceedings for the cancellation of a trade union may be initiated by the Registrar, Trade Unions in accordance with S.11(2) by submitting an application to the National Industrial Relations Commission praying for permission to cancel the registration of a trade union where its membership falls less than one-fifth of the total number of workmen employed in an establishment.

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

----S.3---Trade unions and freedom of association---Scope---Second proviso to S.3(a) of the Industrial Relations Act, 2012, provides that no worker shall be entitled to be a member of more than one trade union at any one time and on joining another union, the earlier membership shall automatically stand cancelled.

(d) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction---Factual inquiry---Scope---Factual inquiry cannot be carried out by High Court in its constitutional jurisdiction.

Farooq Amjad Meer and Raheel Aslam for Appellant.

Muhammad Mazher Javed for Respondent No.2.

2021 P L C 79

[Islamabad High Court]

Before Lubna Saleem Pervez, J

GETZ PHARMA (PVT.) LIMITED through Authorized Representative

Versus

MUHAMMAD NAFEES and others

Writ Petitions Nos.327, 340 and 342 of 2020, decided on 20th November, 2020.

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

----Ss.15 & 17---Constitution of Pakistan, Art.199---Constitutional petition---Claims arising out of deductions from wages or delay in payment of wages---Maintainability---Alternate remedy, non-availability of---Scope---Employer withheld the outstanding dues of employees such as gratuity, etc. on account of their misconduct, dishonesty and resignation from service---Employees filed claim under S.15 of Payment of Wages Act, 1936, before the Authority, who, vide impugned order, directed the employer to pay the dues and compensation as claimed in the petition---Validity---No labour court was functional as such no alternate remedy was available to the employer, therefore, writ of certiorari under Art.199(1)(a)(ii) of the Constitution was maintainable---Person who sought to bring his claim within the scope of Payment of Wages Act, 1936, had to show that he was a "person employed" and that he was employed either in a "factory" or in an "industrial establishment" or in a "commercial establishment"---Authority under S.15 of the Payment of Wages Act, 1936, had been accorded the jurisdiction to entertain claims/issues regarding gratuity and provident fund---Order passed by the Authority revealed that it had considered all the documents produced and arguments raised before it---Employer had failed to point out any jurisdictional error, illegality and irregularity in the impugned order---Constitutional petitions were dismissed.

National Bank of Pakistan v. Anwar Shah 2015 SCMR 434; Aurangzaib v. Media Pak (Pvt.) Ltd. 2018 SCMR 2027; KESC v. NIRC 2015 PLC 1; Messrs Sui Southern Gas Company Ltd. v. Federation of Pakistan 2018 SCMR 802; Tehsil Nazim TMA, Okara v. Abbas Ali and others 2010 SCMR 1437; Syed Match Company Ltd. through Managing Director v. Authority Under Payment of Wages Act and others 2003 SCMR 1493; Soneri Bank Ltd. v. Federation of Pakistan through Secretary, Law and others (2016 SCMR 2168; Messrs Lone China (Pvt.) Ltd. Gujranwala through Chief Executive v. Presiding Officer, Punjab Labour Court No.7 Gujranwala and others 2011 PLC 37; Factory Manager, Nauroz Associate (Pvt.) Ltd. Multan v. Muhammad Ali and 2 others 2013 PLC 229; Ghulam Mustafa and another v. Pakistan Industrial Gases Ltd. and others 2002 PLC 52; Tariq Jameel Butt and another v. Pakistan Engineering Company Ltd. 2010 PLC 204 and Aurangzeb v. Medipak (Pvt.) Ltd. and others 2018 SCMR 2027 ref.

Aurangzeb v. Medipak (Pvt.) Ltd. and others 2019 PLC 51 fol.

(b) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction---Writ of certiorari---Scope---Scope of interference by High Court in writ of certiorari is very limited to extent of supervisory jurisdiction and, therefore, High Court has no jurisdiction to probe into factual disputes or re-appraise or re-consider the documents and evidences empowered as in appellate jurisdiction.

(c) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction---Writ of certiorari---Scope---Party seeking writ of certiorari is required to establish error of law, jurisdictional defect or violation of principles of natural justice which must be seen on the face of the order and establish that the order is without lawful authority and of no legal effect.

Bashir Ahmad Khan v. Additional Sessions Judge 2020 MLD 42 and Muhammad Farooq v. Full Bench, NIRC Islamabad 2020 PLC 175 rel.

Wasi Ullah Khan and Saad Shoaib Wyne for Petitioners.

Muhammad Bashir Khan for Respondent No.1.

2021 P L C 93

[Islamabad High Court]

Before Miangul Hassan Aurangzeb, J

MANAGING DIRECTOR, BANK OF KHYBER and 2 others

Versus

Miss IFFAT NAWAZ and 2 others

Writ Petition No.3821 of 2019, decided on 9th October, 2020.

Industrial Relations Act (X of 2012)---

----Ss.2 (xxvi) (xxxiii) & 54---Qanun-e-Shahadat (10 of 1984), Arts.117 & 120---"Workman", proof of--- Onus--- Respondent (employee) was Bank Officer Grade-III who was removed from service on the allegations of fraudulent transactions---Grievance petition filed by employee was accepted by National Industrial Relations Commission---Validity---Nature of duties of employee as Officer Grade-III were not managerial or administrative so as to take her out of the ambit of a "worker" or "workman" as defined in S.2(xxxiii) of Industrial Relations Act, 2012---Employee did not have power to hire or fire employees---Burden of proving that employee was a "worker" so as to make her grievance petition before National Industrial Relations Commission competent was on her (employee) and not on the employer---Employee deposed in her evidence as to the nature of her duties, which were not managerial or administrative in nature, employer did not come up with any evidence in rebuttal to show that nature of her duties were not clerical--- Dispute between parties resulted from removal from service or rejection of her grievance notice, the matter fell within the meaning of industrial dispute---High Court declined to interfere in order passed by National Industrial Relations Commission---Constitutional petition was dismissed in circumstances.

National Bank of Pakistan v. Punjab Labour Court No.5, Faisalabad 1993 SCMR 672; National Bank of Pakistan v. Anwar Shah 2015 SCMR 434; Muslim Commercial Bank Ltd. v. Muhammad Shahid Mumtaz 2011 SCMR 1475; Dilshad Khan Lodhi v. Allied Bank of Pakistan 2008 SCMR 1530 and General Manager, Hotel Inter Continental v. Bashir A. Malik PLD 1986 SC 103 ref.

Syed Ishtiaq Haider for Petitioner.

Mirza Muhammad Afzal for Respondent No.1.

2021 P L C 153

[Islamabad High Court]

Before Tariq Mehmood Jahangiri, J

HASSAN JILANI

Versus

FULL BENCH NATIONAL INDUSTRIAL RELATIONS COMMISSION, ISLAMABAD and 4 others

Writ Petition No.4729 of 2016, decided on 15th March, 2021.

Industrial Relations Act (X of 2012)---

----Ss.33 & 58---Constitution of Pakistan, Art.199--- Constitutional jurisdiction of the High Court---Writ of certiorari, issuance of---Scope---Petitioner invoked constitutional jurisdiction of the High Court to set aside the concurrent orders passed by the Single Bench and Full Bench of the National Industrial Relations Commission (NIRC)---Held, that writ of certiorari was available only to quash a decision for an error of law and for correcting errors of jurisdiction when an inferior Court or a Tribunal acted without jurisdiction or in excess of its jurisdiction or failed to exercise its jurisdiction or where the Court or Tribunal acted illegally in exercise of its undoubted jurisdiction and it decided a matter in violation of the principles of natural justice---High Court issuing a writ of certiorari acted in exercise of supervisory and not in appellate jurisdiction---High Court would not review the findings of fact reached by the inferior Court or the Tribunal---Where the Court or the Tribunal had jurisdiction and it determined specific question of fact or even law, then unless patent legal defect or material irregularity was pointed out, such determination could not ordinarily be inferred with by the High Court while exercising jurisdiction under Art.199 of the Constitution---Petitioner had failed to point out as to how the concurrent orders passed by the Member as well as Full Bench of NIRC were the consequence of an error of law or were without jurisdiction or in excess of jurisdiction--- Constitutional petition was dismissed with the observation that common practice of counsels to argue petitions seeking issuance of certiorari as if they were arguing the appeals must be stopped as the same was not in consonance with the principles for hearing and deciding petitions seeking the issuance of writ of certiorari

Chief Executive MEPCO v. Muhammad Fazil 2019 SCMR 919 ref.

Muhammad Akhtar Anjum for Petitioner.

Ali Nawaz Kharal and Raheel Zafar S.M. (Manager Legal), PTCL for Respondents.

2021 P L C 184

[Islamabad High Court]

Before Miangul Hassan Aurangzeb, J

SHAMS UL ISLAM

Versus

The GOVERNOR, STATE BANK OF PAKISTAN and others

Writ Petition No.1730 of 2017, decided on 18th February, 2021.

Constitution of Pakistan---

----Art.187---Issue and execution of process of Supreme Court---Scope---Petitioner's case was that on 22-11-1997 his basic pay was Rs.10,395/-; that he opted for Golden Handshake Scheme; that the department by treating his date of retirement as 22-11-1997 calculated his pay compensation as Rs.8,64,270/- and his leave encashment as Rs.64,020/, however, ultimately Supreme Court declared his retirement date as 15-12-1997; that by the time he had retired, his pay had been enhanced by virtue of Circular dated 29-11-1997; that the department by taking into account his enhanced pay held him entitled to compensation of Rs.15,33,330/- and leave encashment of Rs.1,12,024/- and that such amounts were 50% of the amount due to him under the Golden Handshake Scheme---Department justified payment of 50% of the amount on the ground that in the said Scheme, it was provided that "general provident fund contribution and 50% commutation of gross pension and payment of pension on monthly basis" would be paid to those employees who had completed 25 years of service---Petitioner's stance was that withholding of 50% of the amount payable to the petitioner as pay compensation and leave encashment was violative of the judgment passed by Supreme Court---Held; petitioner's pay compensation and leave encashment were not a part of his pension and therefore were not subject to 50% commutation---Direction of the Supreme Court warranted enforcement through payment of the remaining 50% of the petitioner's entitlement to pay compensation and leave encashment in accordance with the terms of the Scheme---Petition under Art. 187(2) of the Constitution was allowed, in circumstances.

Abdul Rahim Bhatti, Yasser Rahim Bhatti and Qaiser Rahim Bhatti for Petitioner.

Rehan Nawaz for Respondents.

Raza Mohsin Qizilbash, Director, S.B.P.

Mehmood Nazir Rana, Law Officer, S.B.P.

2021 P L C 209

[Islamabad High Court]

Before Lubna Saleem Pervez, J

ZARAI TARAQIATI BANK LIMITED through Acting Senior Vice President

Versus

FULL BENCH NATIONAL INDUSTRIAL RELATIONS COMMISSION, ISLAMABAD and 2 others

Writ Petitions Nos.1859, 1913 and 1914 of 2020, decided on 22nd September, 2020.

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

----Ss.2(xxxiii) & 33---'Worker'/Workman---Definition---Jurisdiction of the National Industrial Relations Commission (NIRC)---Scope---Industrial dispute---Contention of the petitioner/bank was that the status of employees/respondents did not fall in the definition of "worker" or "workman" ---Validity---Employees were, undisputedly, working as Qasid and Typist with the petitioner/bank, thus they were, admittedly, not engaged for managerial or administrative supervisory work and had no authority to hire or fire any employee---Keeping the nature of their duties and designation, plea of the petitioner was not found convincing---Workman was a person who was not an employer and he was not engaged in managerial or administrative capacity---Status of a workman was determined not by his designation but the nature of the duties performed by him which must be skilled or unskilled, manual or clerical in nature---No illegality or irregularity was found in the concurrent judgments passed by NIRC---Constitutional petition was dismissed in circumstances.

National Bank of Pakistan v. Anwar Shah 2015 SCMR 434; Ganga R. Madhani v. Standard Bank Limited 1985 SCMR 1511 and All Pakistan SRBC Workers' Union v. National Industrial Relations Commission 2015 PLC 210 ref.

(b) Agricultural Development Bank of Pakistan Officer Service (Efficiency and Discipline) Regulations, 1975---

----Regln. 2(4)---Industrial Relations Act (X of 2012), Ss.2(xxxiii) & 33---Banking Companies Ordinance (LVII of 1962), S.27(B)---Absence from duty for couple of days---Major penalty---Termination from service---Misconduct---Scope---Plea of the petitioner/bank was that the termination orders of employees-respondents were wrongly set aside by National Industrial Relations Commission (NIRC) as they (respondents)held general body meeting of CBA during office hours---Validity---Petitioner-bank had treated the absence(allegation) as the violation of S.27(B) of the Banking Companies Ordinance, 1962, whereas there was no charges of inefficiency, indiscipline, dishonesty or wilful negligence while performing official duties for the petitioner-bank---No allegation of misconduct as defined in Regln. 2(4) of Agricultural Development Bank of Pakistan Officer Service (Efficiency and Discipline) Regulations, 1975 were made against the respondents, whereas they were terminated on the allegation of absence from the duty for participating in trade union activities ---Dispute between the parties was, thus, an industrial one and not an individual dispute---National Industrial Relations Commission (NIRC) had validly exercised the jurisdiction in entertaining the grievance petition filed by the respondents under S.33 of Industrial relations Act, 2012---No illegality or irregularity was found in the concurrent judgments passed by NIRC---Constitutional petition was dismissed, in circumstances.

(c) Constitution of Pakistan---

----Art.199(1)(a)(ii)---Industrial Relations Act (X of 2012), S.33---Writ of certiorari, issuance of---Judicial review---Scope---Petitioner-bank invoked constitutional jurisdiction of the High Court against the concurrent judgments of National Industrial Relations Commission (NIRC)---Validity---Writ of certiorari under Art.199 of Constitution had limited scope permitting interference only when illegality, irregularity and infirmity was found in the impugned order(s)---Writ of certiorari was to be issued when on judicial review, it was found that the order of inferior Court/Tribunal was illegal, without jurisdiction and of no legal effect---High Court had no jurisdiction to reconsider the facts found by inferior Court which were based on documentary evidence and statements produced during proceedings in respect of issues agitated---Constitutional petition was dismissed.

Khwaja Rauf Segal v. Full Bench, NIRC W.P. 86/2019 and Teradata Ireland Limited v. Federation of Pakistan 2020 PTD 1316 ref.

Syed Hasnain Ibrahim Kazmi, Muhammad Akram Shaheen and Usman Ahmad Ranjha for Petitioners (in all cases).

Rana Abid Nazir for Respondents (in all cases).

2021 P L C 108

[Sindh High Court]

Before Nadeem Akhtar and Adnan-ul-Karim Memon, JJ

Messrs K-ELECTRIC, LIMITED through Authorized Personnel

Versus

MUHAMMAD ASLAM SHAH and others

Constitution Petitions Nos.D-615, D-616 and D-617 of 2020, decided on 10th March, 2020.

Industrial Relations Act (X of 2012)---

----Ss. 33 & 54---Payment of Wages Act (IV of 1936), S. 15---Redress of individual grievances---Trans-provincial establishment---Claims arising out of deductions from wages or delay in payment of wages and penalty for malicious or vexatious claims---Scope---Petitioner impugned order passed by Full Bench of National Industrial Relations Commission (NIRC) whereby it was directed to release outstanding salaries of the respondents and the case was remanded to the Single Bench of NIRC for decision on grievance petitions after recording evidence of the parties---Contention of petitioner was that the matter of grant of salaries fell within the ambit of Payment of Wages Act, 1936 and that the case of respondents did not fall within the scope of S.54 of Industrial Relations Act, 2012---Validity---Admittedly, petitioner was a trans-provincial establishment---Commission had jurisdiction to adjudicate upon the matter with respect to the petitioner---Individual grievances of workers against the employer could be lodged before the NIRC under Ss. 54 & 33 of the Industrial Relations Act, 2012---Full Bench of NIRC had remanded the main petitions to the Single Bench of NIRC, therefore, no prejudice was caused to either party---Constitutional petitions were dismissed.

Ghulam Murtaza Saryo for Petitioners.

2021 P L C 124

[Sindh High Court]

Before Adnan-ul-Karim Memon and Adnan Iqbal Chaudhry, JJ

AZEEM WEAVING through Manager/Owner

Versus

MUHAMMAD ARSHAD and 2 others

Constitutional Petition No.D-5061 of 2020, decided on 21st October, 2020.

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

----Ss.34 & 45---Redressel of individual grievances---Award of compensation in lieu of reinstatement---Scope---Respondent filed grievance application under S.34 of Sindh Industrial Relations Act, 2013, against his verbal termination from service before the Labour Court---Grievance application was allowed and the employer was directed to be reinstated in service with back benefits---Petitioner assailed the order passed by Labour Court before the Appellate Tribunal who vide impugned order granted compensation to the respondent in lieu of reinstatement---Contention of employer was that no relationship of employer and employee existed between the parties and that no specific provision for the award of compensation existed in the Sindh Industrial Relations Act, 2013---Validity---Question of relationship between the parties was a question of fact which had been concurrently decided against the employer---Grant of compensation in lieu of reinstatement was envisaged in subsection (4)(g) of S.45 of Sindh Industrial Relations Act, 2013---Appellate Tribunal had assigned valid reasons to award a reasonable compensation to the respondent as full and final payment for severance of his employment relationship with the employer---Constitutional petition was dismissed.

Syed Inayat Hussain Shah for Petitioner.

2021 P L C 175

[Sindh High Court]

Before Muhammad Shafi Siddiqui and Zulfiqar Ahmad Khan, JJ

MUHAMMAD MURSALEEN

Versus

MEMBER SINDH LABOUR APPELLATE TRIBUNAL and others

C.P. No.D-3701 of 2012, decided on 17th February, 2020.

Industrial Relations Ordinance (XCI of 2002)---

----S.46---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S. 2(i)---Individual grievance---"Workman"---Scope---Petitioner assailed concurrent findings on the grievance petition filed by him under S.46 of the Industrial Relations Ordinance, 2002---Petitioner claimed that he was appointed as a Computer Operator by a sister concern of the respondent establishment; that, later on, he was appointed as Bailing Incharge and then he was transferred to the establishment and designated as Outdoor Quality Supervisor and that he was given a motorcycle for visiting different units of the establishment for checking quality of cloth; that in the month of Ramzan he got leave to sit for Aitekaf and when he returned after Eid holidays, he was not permitted to enter the factory premises, as such he was constrained to file the grievance petition after giving notice---Labour Court dismissed the petition on the preliminary ground that the petitioner had failed to satisfy the court that he was a "workman"---Appellate Court maintained the findings of the Labour Court---Validity---Affidavit-in-evidence filed by General Manager (Admin) of the establishment before the Labour Court stated that the petitioner was lastly performing the duties of Quality Supervisor and he used to go to various mills in order to check the quality of cloth on behalf of the establishment---Petitioner was doing laborious repetitive job of checking quality of cloth made at various mills of the establishment on motorcycle given to him by the establishment without any supervision from the management, not requiring any great amount of imagination to perform such a work which positively fitted the conditionality of being a "workman"---Petitioner during the course of a service definitely exposed himself to all the perils of working in a factory including inhaling cotton fibre most of the day---Petitioner was declared to be a workman in purview of Cl.2(i) of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968---Impugned judgments were set aside and the matter was remanded to the Labour Court for decision on merits.

Nasir Abbas Naqvi v. Punjab Labour Appellate Tribunal 2003 PLC 443; Wisram Das v. SGS Pakistan (Pvt.) Ltd., and another PLD 2010 SC 1; Bashir Ahmed Zia v. The Chairman Punjab Labour Appellate Tribunal and another 1982 SCMR 407; Messrs Pharmatech Pakistan (Pvt.) Limited v. Various Workers Constitutional Petition Nos. 275 to 281 of 2014; Habib Bank Limited v. Gulzar Khan 2019 SCMR 946; Aurangzaib v. Medipak (Pvt.) Ltd. 2019 PLC 51; Soneri Bank Ltd v. Federation of Pakistan 2016 SCMR 2168; National Bank of Pakistan v. Anwar Shah 2015 SCMR 434; Qaisar v. Muhammad Shafaqat Sharif 2012 SCMR 743; Wisram Das v. SGS Pakistan (Pvt.) Ltd., 2010 SCMR 1234; Tehsil Municipal Administration v. Muhammad Amir 2009 SCMR 1161; Mahmood Hussain Larik v. Muslim Commercial Bank Limited 2009 SCMR 857; Muslim Commercial Bank Limited v. Muhammad Shahid Mumtaz 2009 PLC 281; Javid Hussain Naqi v. Member Board of Directors MCB 2009 PLC 260; Dilshad Khan Lodhi v. Allied Bank of Pakistan 2008 SCMR 1530; Fauji Foundation v. Punjab Labour Appellate Board 2007 SCMR 1346; Nasir Jamal Qureshi v. Sindh Labour Appellate Tribunal 2005 SCMR 1049; Sabir Mehmud Bhati v. General Manager 2001 SCMR 1291; Executive Engineer v. Abdul Aziz PLD 1996 SC 610; Sadiq Ali Khan v. Punjab Labour Appellate Board 1994 PLC 211; National Bank of Pakistan v. Punjab Labour Court No.5, Faisalabad 1993 SCMR 488; Ihsan Sons Limited v. Abdul Razzaq 1992 SCMR 505; Pakistan Engineering Co., Limited Lahore v. Fazal Beg 1992 SCMR 2166 and Ganga R. Madhani v. Standards Bank Ltd. 1985 SCMR 1511 ref.

Brooke Bond Pakistan Limited v. Conciliator appointed by the Government of Sindh PLD 1977 SC 237 rel.

Ashraf Hussain Rizvi for Petitioner.

Jawed Asghar Awan for Respondent No.3.

2021 P L C 203

[Sindh High Court] (Hyderabad Bench)

Before Abdul Maalik Gaddi and Adnan-ul-Karim Memon, JJ

HYDERABAD ELECTRIC SUPPLY COMPANY, through Chief Executive Officer

Versus

QURBAN ALI SAHITO and others

Constitution Petition No.D-455 of 2013, decided on 16th September, 2020.

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

----S.46---Individual grievance---Scope---Respondent was terminated from service on the ground that as he was appointed on "deceased quota" of his brother but he had failed to support widow and children of the deceased---Labour Court reinstated the services of the respondent (employee) whereas Labour Appellate Tribunal dismissed the appeal of the petitioner (employer)---Validity---Respondent was a permanent employee of the petitioner-Company---No material was placed before the court by which it could conclude that the impugned orders were erroneously passed, therefore, no ground existed for re-evaluation of evidence---Concurrent findings arrived at by the courts below could not be lightly interfered with unless some question of law or erroneous appreciation of evidence was brought on record---Labour Appellate Tribunal had dilated upon the issues in an elaborate manner and had given its findings by appreciating the evidence of the parties---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 ref.

(b) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction---Concurrent findings---Scope---High Court in its constitutional jurisdiction cannot interfere in the concurrent findings recorded by the two forums below.

Muhammad Arshad S. Pathan for Petitioner.

Ms. Nasim Abbasi for Respondent No.1.

Muhammad Humayoon Khan, Deputy Attorney General along with Shafique Ahmed, Manager (HR) HESCO and Ali Khan, Deputy Manager (Service) HESCO.

2021 P L C 30

[Lahore High Court (Multan Bench)]

Before Muzamil Akhtar Shabir, J

ROHAIL RIZWAN QURESHI

Versus

GLOBE COSMETICS COMPANY through M.D.A. and others

Writ Petition No.7788 of 2020, decided on 3rd July, 2020.

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

----S.15---Qanun-e-Shahadat (10 of 1984), Art. 129, illustration (e)---Judicial and official acts--- Presumption, rebuttal of--- Maxim 'omnia praesumuntur rite et solemniter esse acta': "All things are presumed to have been done rightly"---Applicability---Petitioner / workman filed application before the Authority for recovery of outstanding wages--- Appellate Court remanded the matter to the Authority for decision afresh--- Plea raised by petitioner / workman was that his counsel did not give any consent for remanding of proceedings and relied upon a certificate of his counsel--- Validity--- All acts were presumed to have been done correctly and solemnly--- Such principle of law was also recognized in illustration (e) of Art. 129 of Qanun-e-Shahadat, 1984--- Mere certificate was not suffice to rebut presumption of authenticity attached to judicial order--- High Court declined to interfere in the findings of facts recorded by Appellate Court as petitioner / workman failed to establish sufficient grounds and non-availability of sufficient material to establish his claim before High Court--- Grounds raised by petitioner / workman before High Court could be raised before Labour Appellate Tribunal---Constitutional petition was disposed of accordingly.

Farzana Rasool and 3 others v. Dr. Muhammad Bashir and others 2011 SCMR 1361; Fayyaz Hussain v. Akbar Hussain and others 2004 SCMR 964; Kamal Athar v. State 1992 SCMR 282; Haji Muhammad Ilyas v. Haji Mushtaq Ahmed through L.Rs. 2019 CLC 2041; Zaheer Afzal Chatha v. National Accountability Bureau through Director-General and another 2018 PCr.LJ Note 9 and Ghulam Muhammad and others v. Malik Abdul Qadir Khan and others PLD 1983 SC 68; Chiragh Din v. Mumtaz Ali and another 2008 PCr.LJ 126 rel.

Zahoor Ahmad Ch. for Petitioner.

2021 P L C 56

[Lahore High Court]

Before Jawad Hassan, J

NESTLE PAKISTAN LTD

Versus

MEMBER NIRC and others

Writ Petition No.48023 of 2019, decided on 2nd November, 2020.

Industrial Relations Act (X of 2012)---

----S.33---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S. 2(i) & S.O.15---Redressal of individual grievances---"Workman"---Scope---Petitioner assailed rejection of its preliminary objection by the Member (National Industrial Relations Commission), (NIRC) fixing of the case for respondent's evidence and the order passed by Full Bench of NIRC whereby its appeal was dismissed---Validity---Petitioner had filed reply before the Member NIRC wherein it had objected qua maintainability of the grievance petition by stating that the respondent did not fall within the definition of "workman" as he was holding the post of Milk Collection Officer and was supervising the work of dozens of Milk Collecting Agents---Member NIRC without framing any issue had rejected the preliminary objections of the petitioner, which was against the law---Constitutional petition was allowed and the Member NIRC was directed by the High Court to frame legal issue, arising out of the reply of the petitioner, record evidence and then decide the same strictly in accordance with law.

Dalda Foods (Pvt.) Limited through National Administration Manager v. Sindh Labour Appellate Tribunal, Karachi through Member and 161 others 2013 PLC 118; Ittehad Chemicals through its Managing Director v. Punjab Labour Appellate Tribunal and 2 others 1990 PLC 227; Abdul Razzaq v. Messrs Ihsan Sons Limited and 2 others 1992 SCMR 505; Muslim Commercial Bank Limited through President and 3 others v. Muhammad Arshad Mehmood 2008 PLC 322; Imtiaz Ali Shah v. Chairman Bank of Punjab and others 2017 PLC 96 and Ashfaq Ahmad Abbasi v. Punjab Labour Appellate Tribunal and others 2017 PLC 67 ref.

Farooq Amjad Meer and Ahmad Farooq Meer for Petitioner.

2021 P L C 75

[Lahore High Court]

Before Jawad Hassan, J

Rana MUHAMMAD ILYAS

Versus

LAHORE ELECTRIC SUPPLY COMPANY and others

Writ Petition No.101836 of 2017, decided on 30th November, 2020.

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

----S.33---Redressal of individual grievances---Limitation---Scope---Petitioner, after his release from jail on acquittal, approached the department through an application for restoration of his services, which were terminated on the basis of absence from duty---Petitioner, thereafter, served grievance notice to the department and later on filed grievance petition under S.33 of the Punjab Industrial Relations Act, 2010---Labour Court allowed the petition, however, Labour Appellate Tribunal declared the petition barred by limitation---Validity---Petitioner had to approach the Labour Court in case his application was not decided by the department, but he, instead of pursuing his matter, opted to seek directions from the High Court just to save his skin and to cover the bar of limitation---Petitioner fully knew factum of the institution of grievance petition before the Labour Court within the statutory period of limitation but he remained slept for years---Constitutional petition was dismissed, in circumstances.

Lahore Development Authority v. Mst. Sharifan Bibi and another PLD 2010 SC 705 rel.

(b) Equity---

----Law helps the vigilant and not the indolent.

Aftab Iqbal Khan Khichi and another v. Messrs United Distributors Pakistan Ltd. Karachi 1999 SCMR 1326 ref.

Naveed Khalid for Petitioner.

2021 P L C 87

[Lahore High Court]

Before Jawad Hassan, J

ABDUL QADEER

Versus

PUNJAB LABOUR APPELLATE TRIBUNAL and others

Writ Petition No.85122 of 2017, heard on 3rd November, 2020.

(a) Industrial dispute---

----Production of fake documents to secure appointment---Scope---Petitioner was appointed as Upper Division Clerk under Employees Son's Quota but his appointment was withheld on the ground of production of fake medical certificate---Labour Court as well as Labour Appellate Tribunal decided the issue against the petitioner---Contention of petitioner was that he never made any statement before the respondent/company admitting production of fake medical certificate whereas the same was used against him as evidence before the Labour Court---Held; petitioner had not raised any objection when it was tendered in evidence by the company---Petitioner was declared unfit for the appointment by the Medical Superintendent and later on he had managed to procure medical certificate and presented it for securing his appointment which subsequently was proved as fake upon verification by the company---Regular inquiry against the petitioner was not necessary as he himself admitted his guilt through a statement which was proved during evidence before the fora below---Constitutional petition was dismissed.

Bashir Ahmad v. Mumtaz Khan PLD 1965 Lah. 126; Gujrat Electricity Board v. Atmaram Sungomal Poshani 1990 MLD 957; Pakistan Engineering Consultants through Managing Partner v. Pakistan International Airlines Corporation through Managing Director and another PLD 2006 Kar. 511; Syed Yaqoob Shah v. XEN, PESCO (WAPDA), Peshawar PLD 2002 SC 667; Samiullah Khan Marwat v. Government of Pakistan 2003 PLC (C.S.) 317; Muhammad SIDDIQ Javaid Chaudhry v. Government of West Pakistan PLD 1974 SC 393; Khuda-I-Nazar v. Curator 2000 SCMR 1743; Muhammad Farooq v. Ministry of Defence through Secretary Defence Rawalpindi Cantt. 2015 PLC (C.S.) 1018; Abdul Jabbar v. Secretary, Health Department, Government of Balochistan 2015 PLC (C.S.) 953 and Muhammad Rafi v. Federation of Pakistan 2016 SCMR 2146 distinguished.

Federation of Pakistan through Secretary, Ministry of Law and Justice Division, Islamabad v. Mamoon Ahmed Malik 2020 SCMR 1154 rel.

(b) Industrial dispute---

----Verification of documents by employer---Scope---Employer has the prerogative to get verified any documents/certificates of a person employed at any stage of service for satisfaction even though it was not mentioned in the letter of appointment.

Salman Riaz Chaudhry for Petitioner.

Khalid Jameel for Respondents.

2021 P L C 118

[Lahore High Court (Multan Bench]

Before Muzamil Akhtar Shabbir, J

SHAHID AZIZ

Versus

CHAIRMAN, PUNJAB LABOUR APPELLATE TRIBUNAL, MULTAN and 4 others

Writ Petition No.607 of 2019, decided on 17th January, 2020.

(a) Industrial dispute---

----Appointment to advertised post---Eligibility for appointment---Termination of contractual services---Scope---Advertisement in newspaper for appointment of the post to the post of driver was issued, in which required qualification for the post of driver was middle pass and holder of LTV driving licence with 2 years experience on the closing date---Although, the petitioner applied for the said post but he did not possess any LTV driving licence, which was subsequently issued to him and was appointed---During subsistence of the contract, a contestant challenged the appointment of petitioner by filing a complaint before the Ombudsman by claiming that the petitioner on the date of appointment lacked the requisite qualification, who referred the matter to the department and consequently due to lack of driving experience his services were terminated---Recording of any evidence for holding regular enquiry did not exist in the matter as there was no factual controversy requiring resolution and determination in view of the fact that the petitioner had neither raised any triable issue nor claimed to have possessed LTV driving licence prior to the closing date of the filing of application---Constitutional petition, being devoid of force, was dismissed.

Muhammad Zahid Iqbal and others v. D.E.O., Mardan and others 2006 SCMR 285 ref.

(b) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction---Fixation of appointment criteria---Administrative matter---Scope---Fixation of appointment criteria is essentially an administrative matter falling within the exclusive policy making domain of the government and interference in such matter by the courts is not warranted.

Government of Khyber Pakhtunkhwa through Chief Secretary, Peshawar and others v. Hayat Hussain and others 2016 SCMR 1021 ref.

(c) Industrial dispute---

----Appointment to advertised post---Eligibility for appointment---Scope---Where a person lacked basic qualification to be appointed, any time spent in rendering the service would not cure the defect in his appointment, especially when there were other contestants available for the said post who could not be appointed solely for the reason that the petitioner was selected for the appointment---Lack of basic qualification or failure to meet the eligibility criteria was a defect which could not be cured by attaining said qualification or higher qualification subsequently, unless the same was permitted by the statute, rules, regulations, policy decision or the advertisement through which applications for appointment were invited.

Khurram Iqbal v. Deputy Director Food, D.C. Khan and another 2013 SCMR 55 ref.

(d) Industrial dispute---

----Temporary appointment---Scope---Temporary appointment would always be subject to verification of character and antecedents.

Executive District Officer (Education), Rawalpindi v. Muhammad Younas 2007 SCMR 1835 ref.

(e) Locus poenitentiae, principle of---

----Principle of locus poenitentiae confines the powers of the authorities for receding its decisions to a time frame till a decisive step is taken, but the said principle of law does not provide that every order once passed becomes irrevocable and past and closed transaction, rather it is subject to certain exceptions which includes power to recede an order even after the same has taken effect in cases where the said order is illegal, unlawful, coram non judice, without jurisdiction or lawful authority or any other defect that strikes down the root of the matter for the reason that perpetual rights cannot be gained on the basis of an order suffering from any of the said vices.

Contempt proceedings against Chief Secretary Sindh and others 2013 SCMR 1752 ref.

(f) Locus poenitentiae, principle of---

----Principle of locus poenitentiae would not be attracted to an order of appointment secured by fraud and misrepresentation.

(g) Industrial dispute---

----Appointment to advertised post---Eligibility for appointment---Scope---Where basic appointment order is issued without lawful authority then superstructure built thereupon would fall on the ground automatically.

Yousaf Ali v. Muhammad Aslam Zia and 2 others PLD 1958 SC 104 ref.

Rana Muhammad Nazir Khan Saeed for Petitioner.

2021 P L C 139

[Lahore High Court]

Before Abid Aziz Sheikh, J

YASIR IMRAN BUTT

Versus

CHIEF OFFICER (MCS), FAISALABAD and others

Writ Petition No.10596 of 2017, heard on 25th January, 2021.

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

----Sched., para 1(b)---Daily wager---Regularization of service---Petitioner worked for 22 years as Baildar on daily wages and authorities refused to regularize his service---Validity---Petitioner was doing manual and clerical work against permanent post with Local Government for almost 22 years as daily wager---Petitioner had attained status of permanent employee under West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968---Post against which petitioner was performing his duties was not duly advertised did not matter, as no such policy or rules were placed on record prevailing in year 1999, according to which daily wager could only be hired after advertisement---No pre-condition existed as prescribed under West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, for regularization of service of an employee who performed his service for almost 22 years against permanent post---High Court set aside order passed by authorities as he was deemed to be regularized in view of the provisions of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968---Constitutional petition was allowed, in circumstances.

Province of Punjab through Secretary and others v. Ahmad Hussain 2013 SCMR 1547; Pir Imran Sajid and others v. Managing Director and others 2015 SCMR 1257; Secretary Irrigation and Power Department, Government of Punjab, Lahore and others v. Muhammad Akhtar and others 2009 SCMR 320; Ikram Bari and 524 others v. National Bank of Pakistan through President and another 2005 SCMR 100; Province of the Punjab through Secretary, Irrigation and Power Department, Lahore and another v. Punjab Labour Appellate Tribunal through Chairman and others 2002 TD (Labour) 377 and Muhammad Javed Akhtar v. Province of Punjab through Secretary, Housing and Town Planning Agency, Lahore and 2 others 2008 PLC 284 rel.

Zohaib Imran Sheikh for Petitioner.

Barrister Ameer Abbas Ali Khan, Assistant Advocate General, Punjab along with Muhammad Anwar, SC for Respondents.

2021 P L C 224

[Lahore High Court]

Before Jawad Hassan, J

ZULFIQAR ALI

Versus

FACTORY MANAGER/INDUSTRIAL RELATIONS MANAGER, PACKAGES LTD. and others

Writ Petition No.23228 of 2017, heard on 26th April, 2021.

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

----Arts.130 & 133---Witness, production of---Presence of person producing witness---Procedure---One who wishes to be present while recording of evidence of his witness is either to record his statement and be cross-examined first or be excluded from proceedings while evidence of other witnesses is being recorded.

Gurdial Kaur v. Pyara Singh AIR 1962 PH 180 rel.

(b) Bias---

----Proof---Mere equivocal and unsubstantiated allegation of bias is no ground to question validity of action unless accusation is premised on solid foundation.

Parvez Musharraf v. Nadeem Ahmad Advocate PLD 2014 SC 585 rel.

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

----S.15(3)---Misconduct---Scope---Besides acts and omissions enumerated under S.15(3) of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, any other act prejudicial to good discipline also falls within the ambit of misconduct.

Akhtar Muneer v. General Tyre And Rubber Co. 2007 PLC 360 and Jyothi Home Industries v. Presiding Officer, Labour Court 1995 (71) FLR 706 rel.

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

----S.15---Misconduct---Proof---Quantum of penalty---Petitioner was workman and aggrieved of his dismissal from service on allegation of misconduct---Order of dismissal from service was maintained by Labour Court---Validity---To prove allegation of misconduct, it was incumbent upon employer to conduct proper inquiry into allegations in accordance with law---Such inquiry was duly conducted against petitioner, who was found guilty of misconduct---No option remained with employer except to proceed against him and award penalty in accordance with law---Quantum of punishment consequent upon domestic inquiry was prerogative of employer---High Court declined to interfere in dismissal order passed by employer as petitioner failed to point out any illegality and jurisdiction defect in judgments--- Constitutional petition was dismissed in circumstances.

Crescent Jute Products Ltd. Jaranwala v. Muhammad Yaqoob and others PLD 1978 SC 207; The Vice President (Admn.) National Bank of Pakistan and others v. Basharat Ali and others 1996 SCMR 201; Muhammad Akhtar v. Mst. Manna and 3 others 2001 SCMR 1700; Allah Yar v. General Manager, Railways Headquarters, Lahore and another 2001 SCMR 256; Chief Secretary, Government of Punjab, Lahore v. Muhammad Ali Saqib 2020 SCMR 1245; Messrs Siemens Pakistan Engineering Company Ltd. Karachi v. Shahzad Saleem and 5 others PLJ 1997 SC 484 and Directorate General Emergency Rescue Service 1122 Khyber Pakhtunkhwa, Peshawar v. Nizakat Ullah 2019 SCMR 640 distinguished.

General Manager, Pearl Continental Hotel, The Mall, Lahore/Rawalpindi v. Farhat Iqbal PLD 2003 SC 952; Qayyum Nawaz and 9 others v. N.W.F.P. Small Industries Development Board, Peshawar through Managing Director, Kohat Road, Peshawar and 4 others 1999 SCMR 2331; Malik Muhammad Hussain v. District Returning Officer and others 2008 SCMR 488; Mst. Wazir Begum v. Muhammad Nazir and 4 others 1999 SCMR 1299; Syed Husnain Aamer v. Tehsil Municipal Officer, Narowal 2007 PLC (C.S) 348; Abdul Aziz Khan v. Messrs Pakistan Cables Ltd., Karachi and 2 others 1977 PLC 485 and Anwar Khan Lipton Pakistan Ltd. and others 1984 PLC 1057 ref.

Fazal Shafiq Textile Mills Ltd. v. IV Sindh Labour Court and another PLD 1981 SC 225; Chairman, Employees' Old-Age Benefit Institution v. M. Ismail Munawar 1984 SCMR 143; Fouzia Ahmad v. First Women Bank Ltd. 1999 SCMR 1237; Ghulam Muhammad and another v. Mst. Noor Bibi and 5 others 1980 SCMR 933; Allah Ditta v. Ahmed Ali Shah and others 2003 SCMR 1202 and Mst. Farah Naz v. Judge Family Court, Sahiwal and others PLD 2006 SC 457 rel.

Ch. Muhammad Khalid Farooq, Advocate Supreme Court for Petitioner.

Barrister Rafay Zeeshan Javed Altaf, Advocate Supreme Court for Respondents.

2021 P L C 263

[Lahore High Court]

Before Abid Hussain Chattha, J

MUHAMMAD IMRAN

Versus

FULL BENCH NATIONAL INDUSTRIAL RELATIONS COMMISSION and others

Writ Petition No.31827 of 2021, decided on 24th May, 2021.

Industrial Relations Act (X of 2012)---

----Ss.33 & 2(xxxiii)---Grievance petition---Termination from service---Whether employee (Officer of Grade-III) of a Bank was a workman or not, determination of---Nature and scope of duties of employee---Power of Attorney given to the employee/petitioner by the Bank---Scope and effect--- Jurisdiction of National Industrial Relations Commission ('NIRC')---Single Member of NIRC, relying on prohibitory clause of Power of Attorney (which was assigned to the petitioner), reinstated him declaring him a workman, whereas Full Bench of NIRC set-aside order of Single Member relying yet another clause of the said Power of Attorney---Held, that another clause of Power of Attorney in question confirmed that the petitioner was performing duties/functions of administrative nature which fell in the managerial and supervisory domain--- Single Member of NIRC relying on other clause of Power of Attorney (prohibiting certain functions) was misconceived since powers under the Power of Attorney were usually confined to primary and specific functions performed by an employee and , therefore, at times prohibited certain functions which did not fall within the scope of his assignment---Correct approach would be to read the said Power of Attorney as a whole and give more weight to tasks entrusted upon the employee (i.e. what he could do,) rather than what he was prohibited to do ---Reading said Power of Attorney as a whole confirmed that the assignments entrusted to the petitioner were that of managerial in nature/character--- Clause 12 of said Power of Attorney was the only prohibitory clause putting restrictions upon the petitioner regarding assignments which he could not do singly but could do in collaboration with another officer, therefore, Single Member of NIRC had completely misread said clause in isolation, to conclude that the petitioner was a "workmen"---Officers Grade-I to III were not "workmen"---Description of work and assigned tasks of an employee were relevant to determine the status of a workman or otherwise---Petitioner was not a workman and thus not entitled to invoke the jurisdiction of NIRC---No illegality or unconstitutionality was found in the impugned order passed by the Full Bench of National Industrial Relations Commission---Constitutional petition was dismissed, in circumstances.

National Bank of Pakistan and another v. Anwar Shah and others 2015 SCMR 434 and Habib Bank Limited v. Gulzar Khan and others 2019 SCMR 946 ref.

(b) Interpretation of document---

----Document must be read as a whole to ascertain the true intent and purpose of the document.

2021 P L C 103

[National Industrial Relations Commission]

Before Mukhtar, Manthar Ali Jatoi and Ghulam Siddique Bazai, Members

MUHAMMAD HUSSAIN

Versus

The MANAGER EMPLOYEES SETTLEMENTS, H.R. SERVICES and another

Appeal No.12A(60) of 2018-Q, decided on 8th September, 2020.

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

----S.33---Redressal of individual grievances---Laches---Scope---Appellant was appointed in employer establishment in the year 1977 and while serving in the department he was terminated from service in the year 1989---Appellant was ultimately reinstated into service without back benefits by the Supreme Court in the year 2015---Contention of appellant was that he submitted joining report after reinstatement but the employer did not allow him proper dues and also did not fix his salaries in an appropriate manner---Single Bench dismissed the appellant's petition on the ground that the petition was barred by time and that his claim was also barred within the meaning of Art. 114 of Qanun-e-Shahadat, 1984---Validity---Appellant was required to agitate his grievance of not receiving his salaries and dues immediately when he received his first salary after reinstatement, but at that time he did not raise any objection on the salary received by him and continued receiving his salaries and dues allowed by the employer till the date of his retirement---Appellant had also sworn undertaking cum indemnity in the year 2017 whereby he had received all the dues and there was nothing outstanding, so much so, that appellant in the said bond had also affirmed that he would have no other claim against the employer and also the appellant would be not rightful to make any other claim against the employer in future---Appeal was dismissed.

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

----S.5---Condonation of delay---Sufficient cause---Scope---While considering condonation of delay ultimate consideration should be to render even-handed justice to the parties, though by and large, liberal approach is to be taken in the matter of condoning delay---Such consideration would not depend upon status of the party namely the Government or the public or private bodies so as to apply a different yardstick---Even in such cases the condonation of long delay should not be automatic since the accrued right or adverse consequences to the opposite party is to be kept in perspective---In that background, while considering condonation of delay, the routine explanation would not be enough but it should be in the nature of indicating "sufficient cause" to justify the delay which will depend on the backdrop of each case and will have to be weighed carefully by the court based on the fact situation.

Azam Jan Zarkoon for Appellant.

Faisal Mehmood Ghani for Respondents.

2021 P L C 114

[National Industrial Relations Commission]

Before Mukhtar, Syed Inam ur Rehman and Manthar Ali Jatoi, Members

MUHAMMAD AFZAL RANA

Versus

PAKISTAN STEEL MILLS

Appeal No.12(206) of 2015-K, decided on 29th September, 2020.

Industrial Relations Ordinance (XCI of 2002) [since repealed]---

----S.62---Recovery of money due from an employer under an award or settlement---Scope---Appellant assailed the dismissal of his petition under S.62 of Industrial Relations Ordinance, 2002---Contention of appellant was that pursuant to a judgment passed by the Court, similarly placed employees were granted increment but he was not given the benefit of the judgment---Labour Court held that before any Court or Tribunal acted under S.62 of Industrial Relations Ordinance, 2002, it was imperative that there should be no dispute as to the entitlement of the amount; that the amount in respect of which the proceedings could be initiated must be pre-determined amount and that if there was a dispute in respect of the entitlement of such amount or the amount was not pre-determined then it could not be recovered under S.62 of Industrial Relations Ordinance, 2002---Held; reasons given by the Presiding Officer of Labour Court were clear and no illegality was pointed out by the appellant---Appeal was dismissed.

Appellant in person.

2021 P L C 134

[National Industrial Relations Commission]

Before Noor Zaman, Member

PERVAIZ KHAN

Versus

BAHRIA UNIVERSITY

Case No.4B (148) in C.M.A. No.24B (64) of 2019, decided on 12th August, 2020.

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

----S.33---Individual grievance---Limitation---Non-service of grievance notice---Scope---Petitioner, a driver of university assailed order passed by employer/university whereby he was relieved from service---Validity---Petitioner, after release from service approached High Court despite being aware that the service regulations of the employer were non-statutory and constitutional jurisdiction could not be invoked in such cases---Petitioner had taken more than 90 days in filing petition in the National Industrial Relations Commission (NIRC) which was sine qua non for filing petition under S.33 of Industrial Relations Act, 2012---Grievance notice appended with the petition was undated and was not supported by proof of service---High Court while dismissing the Constitutional petition had also touched merits of the case and remarked that petitioner was given eight different warnings regarding his discipline issues, even then he used to drive in reckless manner despite clear warnings and had not mended his ways---Grievance petition being not maintainable on the grounds of limitation as well as non service of grievance notice, was dismissed.

1981 PLC 403; Mukhtar Ahmed v. Bahria University Case No.4B(74)/2012; 1995 PLC 667; 2016 PLC 358 and 2019 SCMR 648 ref.

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

----Preamble---Law of limitation is a statute of repose, designated to bar stale and water-logged disputes and is to be strictly complied with---Statutes of limitation by their very nature are strict and inflexible---Law of limitation does not confer a right, it only regulates the rights of the parties---No scope in the law of limitation exists for any equitable or ethical construction---Justice, equity and good conscience do not override the law of limitation---Object of law of limitation is to prevent stale demands and so it ought to be construed strictly---Hurdles of limitation cannot be crossed under the guise of any hardships or imagined inherent discretionary jurisdiction of the court---Ignorance, negligence, mistake or hardship do not save limitation nor does poverty of the parties.

2016 PLC (C.S.) 195; 2010 PLC (Labour) 104; 2007 SCMR 1446; 2003 YLR 1837; PLD 2004 AJ&K 38; PLD 2005 Lah. 129; PLD 1958 (WP) Lah. 936; PLD 2005 Lah. 129 and 2013 CLC 403. ref.

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

----S.33---Individual grievance---Condonation of delay---Wrong advice of counsel---Scope---Mistaken advice of counsel does not automatically constitute a sufficient cause lpso facto for condonation of delay as a matter of course and routine, rather the applicant has to specify the reasons with clarity and precision, which prevailed with the counsel and led him to commit the mistake and such application must also be supported by an affidavit.

Khushi Muhammad through LRs and others v. Mst Fazal Bibi and others PLD 2016 SC 872 rel.

Syed Nasir Ahmed for Petitioner.

2021 P L C 144

[National Industrial Relations Commission]

Before Noor Zaman, Muhammad Ashraf and Khaqan Babar, Members

UNITED BANK LTD. through President

Versus

JAMIL AHMED

Appeal No.12A(49) of 2019-P, decided on 11th August, 2020.

Industrial Relations Act (X of 2012)---

----S.33---Individual grievances---Scope---Respondent, a Bank employee, was terminated from service on account of his negligence as his ID and password was used for effecting fraudulent transaction---Grievance petition of the respondent was allowed by the Labour Court and he was reinstated into service---Contention of appellant/employer was that the respondent was not a "workman"---Validity---Respondent was not a Branch Manager and was working under the subordination of the Branch Manager---Duties assigned to the respondent as mentioned in the charge-sheet were that he had posted wrong cheque in the system and had activated a dormant account and had posted unauthorized transfer entry---Bank had neither provided proof nor argued that the respondent was attorney holder of the Bank---Appellant had failed to produce any material showing that the respondent was performing supervisory and managerial duties---No illegality was found in the impugned order---Appeal was dismissed.

2009 PLC 260; 2009 SCMR 857; 2011 SCMR 1475 and 2019 SCMR 946 ref.

2015 SCMR 434 distinguished.

Amir Javed for Appellant.

Parwant Khan for Respondent.

2021 P L C 218

[National Industrial Relations Commission]

Before Khaqan Babar, Syed Inam-ur-Rehman and Ghulam Siddique Bazai, Members

AKBAR ALI

Versus

Messrs FAUJI FERTILIZER COMPANY LIMITED through Officers

No.12T(592)/2016-L, decided on 2nd December, 2020.

Civil Procedure Code (V of 1908)---

----S.48---Execution---Limitation---Execution barred in certain cases---Scope---Petitioner through contempt petition sought implementation of order dated 17-04-1985, by which he was declared to be a regular and permanent employee of the establishment, and establishment was directed to treat and allow petitioner all the rights and facilities of such an employee---Contention of petitioner was that due to suspension of the order dated 17-04-1985 by the High Court, he could not file the contempt petition---Validity---No application for condonation of delay was filed---Writ petition was dismissed by the High Court on 23-11-1994 whereas contempt petition was filed on 26-06-2012---Time limit for execution of decree was six years as provided in S.48 of the Civil Procedure Code, 1908---Contempt petition was not moved within time rather it was hopelessly barred by time, therefore, dismissed.

Qaiser Pervaiz for Petitioner.

Ahmed Farooq Qureshi for Respondents.

2021 P L C 260

[National Industrial Relations Commission]

Before Noor Zaman, Member

QADIR RASHEED

Versus

UBL and others

Case No.4B(84)/2014-P, decided on 5th March, 2020.

Industrial Relations Act (X of 2012)---

----S.33---Individual grievance---Scope---Petitioner claimed that he was appointed in the (respondent) Bank in the year 1979; that he served grievance notice on the Employer Bank for regularization of his services; that after receiving the grievance notice, the petitioner was terminated without any reason; that the petitioner served another notice against verbal termination and that having no response he filed the present grievance petition---Contention of employer Bank, inter alia, was that the petitioner was not its employee rather he was a godown keeper, who was employed by borrower of the Bank---Validity---Godown keeper had to be loyal to Bank as he was keeping eyes on pledged assets on behalf of the Bank as it was in its interest because Bank had extended finance facility against the assets; contention of Bank that godown keepers were employees of owners of pledged assets was not plausible because the owners of pledged assets would not safeguard assets of Bank---Petitioner had remained godown keeper with various companies/traders on behalf of Bank---Had the petitioner been employee of a particular company he could not have switched over from one owner to another on behalf of the Bank---Besides admission of Bank that petitioner was godown keeper, the petitioner had also provided copies of various documents which were sufficient proof of the fact that the petitioner was performing duties with the Bank as daily wages/casual labourer---Petitioner had attained the status of permanent workman---Petition was allowed, in circumstances and the petitioner was re-instated into service with full back benefits.

Bilal Ahmed Kakaizai for Petitioner.

2021 P L C 234

[Peshawar High Court (Abbottabad Bench)]

Before Mohammad Ibrahim Khan, J

PHILIP MORRIS (LAKSON TOBACCO COMPANY LIMITED), through Chairman and 5 others

Versus

Syed ARIF SHAH

F.A.L. No.02-A of 2016, decided on 18th February, 2021.

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

----S.37---Industrial Relations Act (X of 2012), S.57---Individual grievances --- Trans-provincial establishment --- Scope --- Appellants assailed acceptance of grievance petition of the respondent by the Labour Court whereby respondent was directed to be reinstated in service---Contention of appellant was that it was a trans-provincial establishment; that the respondent could not have approached the Labour Court and that he might be directed to address the grievance petition before the National Industrial Relations Commission (NIRC)---Held; it was for the appellant to seek proper remedy either before the NIRC or else prefer a constitutional petition to get declared the impugned judgment to be against the canons of justice and without jurisdiction---Appeal, even if admitted in motion, would not be competent before the Labour Appellate Tribunal, hence was returned for presentation before the proper forum.

Bilal Ahmad Kakazai for Petitioners.

Sultan Ahmed Jamshed for Respondent.

2021 P L C 268

[Peshawar High Court]

Before Ijaz Anwar, J

SAMAR GUL

Versus

The REGIONAL DIRECTOR, EMPLOYEES OLD AGE BENEFITS INSTITUTION, PESHAWAR and others

Writ Petition No.6814-P of 2019, decided on 14th December, 2020.

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

----S.2(q)---Seasonal worker---Length of service---Year, calculation of---Weakly holidays---Pensionary benefits denied---Petitioner was an insured person and having insurable employment---Service certificate depicted total service period as 1654+1835+1282 days which was calculated as 13 years---Held, that there was no concept of weakly holidays as per the record---Calculation made by respondents/factories as not in accordance with law---After calculating the total days served by the petitioner divided by 312 days as a year, it came to more than 15 years of length of service---Petitioner was eligible for grant of pension---Constitutional petition was allowed accordingly.

Muhammad Ashfaq for Petitioner.

Muhammad Sohail, A.A.-G. for Provincial Government.

Mukhtar Ahmad Maneri for Respondent No.1.

Bilal Ahmad Kakaizai for Respondent No.5.

2021 P L C 100

[Supreme Court of Pakistan]

Present: Mushir Alam, Sajjad Ali Shah and Qazi Muhammad Amin Ahmed, JJ

SHAHEEN AIRPORT SERVICES and another

Versus

NATIONAL INDUSTRIAL RELATIONS COMMISSION through Chairman and others

Civil Review Petitions Nos. 310, 311 and 217 of 2018 along with C.M.A. No.7552 of 2020, decided on 7th December, 2020.

(Against the judgment dated 28.3.2018 passed by this Court in C.As. Nos. 970 and 971 of 2013 - C.M.A. for permission to argue the case)

Industrial Relations Act (X of 2012)---

----S.2(xvii)---Sindh Industrial Relations Act (XXIX of 2013), S.2(xvi)---Shaheen Airport Services ('the petitioner')---Not a charitable organization---Claim of the petitioner as being a charitable institution was declined throughout by the High Court and by the Supreme Court, by way of judgment under review---High Court found that 'Shaheen Foundation' appeared to be a charitable institution but that could not be said about Shaheen Airport Services ('the petitioner'); that petitioner organization only existed for making profit, and fact that it yielded its profit to Shaheen Foundation which in turn used it for charitable purposes could not make the petitioner a charitable organization---Supreme Court upheld said findings of the High Court in the judgment under review---Once such finding had come to record, the petitioner could not claim the benefit of S. 2(xvii) of Industrial Relations Act, 2012 or of S. 2(xvi) of Sindh Industrial Relations Act, 2013 in order to claim immunity---Review petitions were dismissed.

Khalid Anwar, Senior Advocate Supreme Court (via video link) and Rashid Anwar, Advocate Supreme Court for Petitioners (in Civil Review Petitions Nos. 310 and 311 of 2018).

Shahid Anwar Bajwa, Advocate Supreme Court for Petitioner (in Civil Review Petition No. 217 of 2018).

Sohail Mahmood, Additional AGP, Ayyaz Shaukat, DAG and Ibrar Saleem, Dy. Reg. NIRC for Respondents.

Ch. Faisal Farid, Additional AG Punjab, Rab Nawaz Zahid, Director IRI and Fazal Hussain, Director Labour for the Government of Punjab.

2021 P L C 111

[Balochistan High Court]

Before Naeem Akhtar Afghan and Rozi Khan Barrech, JJ

UNITED BANK LTD., through Regional Chief Executive UBL

Versus

FAREEDULLAH KHAN and another

C.P. No.301 of 2012, decided on 29th July, 2020.

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

----S.41---Constitution of Pakistan, Art. 199--- Constitutional petition--- Termination / compulsory retirement from service--- Workman/respondent was terminated from service by employer/petitioner on the charge of absence from duty--- Labour Court dismissed grievance petition filed by workman/respondent but modified termination into compulsory retirement from service--- Validity--- Termination from service and compulsory retirement from service both were lower and higher level of major penalties, recorded in view of given circumstances of each case--- Ill-disciplined act of workman/respondent of continuous absence from duty stood proved but element of his being habitual in absenting from duty was lacking--- Such was not a case of habitual absence and penalty of termination from service was harsh, as it amounted to expelling penniless on road and not recognizing his long length of service i.e. 19 years entitling him to have beneficiary emoluments of such past service performed within the ambit of laid down service policy of employer/petitioner--- Matter only pertained to continuous absence from duty which too was not for a period very long--- High Court declined to interfere in the matter as Labour Court had rightly modified the termination into compulsory retirement---Constitutional petition was dismissed, in circumstances.

Muslim Commercial Bank Ltd v. Ghulam Muhammad Memon 2008 PLC 40 rel.

Ms. Shehnaz Rana for Petitioner.

Abdul Musawir Agha for Respondent No.1.

2021 P L C 127

[Balochistan High Court]

Before Jamal Khan Mandokhail CJ and Abdul Hameed Baloch, J

MISRI LADHANI EX-CHAIRPERSON BALOCHISTAN REVENUE AUTHORITY

Versus

GOVERNMENT OF BALOCHISTAN, through Chief Secretary and 3 others

C.P. No.395 of 2020, decided on 2nd October, 2020.

Balochistan Revenue Authority Act (VII of 2015)---

----S.3---Chairperson of the Balochistan Revenue Authority---Appointment and terms and conditions of service of Chairperson Balochistan Revenue Authority---Disciplinary proceedings and removal from service of the Chairperson---Scope---Petitioner, who was Chairperson Balochistan Revenue Authority, impugned notification whereby major penalty of dismissal from service was imposed upon him, inter alia, on ground that same was without jurisdiction and issued with mala fide---Validity----Action against petitioner was taken in accordance with Government officers' service rules as there existed no service rules for Chairperson Balochistan Revenue Authority---Provincial Chief Minister was competent authority to take disciplinary action against civil servants, and inquiry against petitioner was conducted by Provincial Chief Secretary---Authority which was competent to approve appointment of any person for a specific position was equally competent to approve removal of such person from service---Impugned notification was therefore competently issued on recommendations of Provincial Chief Secretary by the Provincial Chief Minister---Constitutional petition was dismissed, in circumstances.

EIAC v. Shaista Naheed 2004 SCMR 316; 2004 SCMR 1662; 2008 SCMR 1369; 2010 SCMR 1546 and 2019 SCMR 640 ref.

Kamran Murtaza for Petitioner.

Dost Muhammad Mandokhail for Respondent No.4.

Arbab Muhammad Tahir Kasi, Advocate General, Balochistan for Official Respondents.

2021 P L C 250

[Balochistan High Court]

Before Muhammad Kamran Mulakhail and Abdullah Baloch, JJ

HABIBULLAH COASTAL POWER EMPLOYEES UNION QUETTA (CBA) through President and others

Versus

HABIBULLAH COASTAL POWER COMPANY through General Manager and others

Constitutional Petitions Nos.1059, 780, 482 of 2017, decided on 21st October, 2020.

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

----Ss.52 & 17---Industrial Relations Act (X of 2012), Ss. 2(xxxii) & 33---Redress of individual grievances---Trans-provincial establishment---Scope---Petitioner being a Collective Bargaining Agent filed grievance petition before the Labour Court for redress of its grievances---Labour Court, on an objection raised by respondent, concluded that the respondent was not a trans-provincial establishment---Labour Appellate Tribunal, on being appealed, set aside the order of the Labour Court and directed it to return the grievance petition to the petitioner for its presentation before the proper forum i.e. National Industrial Relations Commission (NIRC)---Validity---Respondent establishment had placed certain documents on record with regard to establishment of offices at more than one province---Company employing workmen for the purpose of carrying on any business or industry and having its departments and branches in more than one province came within the definition of "trans-provincial" as defined in S.2(xxxii) of Industrial Relations Act, 2012---NIRC was competent to deal with labour matters of such establishments---Petitioners had failed to point out any illegality or irregularity in the judgment passed by the Labour Appellate Tribunal---Constitutional petition was dismissed.

Pakistan Telecommunication's case 2014 SCMR 535 rel.

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

----Ss.12 & 13---Industrial Relations Act (X of 2012), Ss.11 & 12---Constitution of Pakistan, Art.199---Constitutional petition---Cancellation of registration---Appeal against order of Registrar---Appeal against cancellation---Alternate remedy, availability of---Scope---Petitioner, a collective bargaining agent registered under the Balochistan Industrial Relations Act, 2010, sought cancellation of registration of respondent, a trade union registered under Industrial Relations Act, 2012---Employer, on the other hand, also sought cancellation of registration of petitioner---Validity---Parties had directly approached the High Court without approaching the competent forums available under Industrial Relations Act, 2012 and Balochistan Industrial Relations Act, 2010---Since the matter pertained to factual controversy, it could not be resolved by High Court under constitutional jurisdiction---Aggrieved parties could approach the available forums for redressal of their grievances---Petitions being coram non judice were directed to be returned to the petitioners.

Muhammad Ewaz Zehri for Petitioners (in Constitutional Petitions Nos.1059 and 780 of 2017).

Chaudhary Muhammad Ashraf Khan for Respondents (in Constitutional Petitions Nos.1059 and 780 of 2017).

Chaudhary Muhammad Ashraf Khan for Petitioners (in Constitutional Petition No.482 of 2017).

Muhammad Ewaz Zehri for Petitioners (in Constitutional Petition No.482 of 2017).

2021 P L C 67

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, Maqbool Baqar, Faisal Arab, Ijaz ul Ahsan and Sajjad Ali Shah, JJ

MARTIN DOW MARKER LTD., QUETTA and others

Versus

ASADULLAH KHAN and others

C.As. Nos. 1076 to 1089 of 2019, decided on 5th December, 2019.

(Against the judgment dated 20.02.2018, passed by the High Court of Balochistan, Quetta in W.Ps. Nos. 288-292, 296-297 of 2012).

(a) Constitution of Pakistan---

----Arts. 185 & 199---Appeal before the Supreme Court---Concurrent findings of fact recorded by lower courts, also upheld by the High Court in its constitutional jurisdiction---For displacing such concurrent finding of fact, the appellant (before the Supreme Court) was required to show and establish misreading of evidence and wrongful exercise of jurisdiction by the forums below.

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

----Sched., S.O. 15---Employees reinstated in service refusing to report for employer's duty---Lack of bona fides of employees in pursuing their grievance before the courts---After having succeeded in the three forums below, the respondents (employees) were issued respective letter of reinstatement in service by their employer (appellant)---Respondents admitted to the presence of the reinstatement letters and also admitted not joining duty in pursuance of the same---In such circumstances very bona fides of the respondents in pursuing their remedies before the Courts of law seeking their reinstatement in service, became doubtful, in that, the contention of the employer that the respondents were pursuing their cases only for obtaining monetary benefits and had no intention, desire or will, to work as workmen in the establishment of the employer, seemed convincing---Furthermore the respondents had not sent any written communication to the employer in response to their letters of reinstatement, meaning thereby that they had not objected to the said letters---Non-objection to the letter of reinstatement and also non-reporting for duty reflected gravely on the part of the respondents---Respondents remained absent from duty for more than one year and nine months and gave no reason whatsoever for not complying with their letters of reinstatement in service, except an oral assertion that they were offered reinstatement as workmen and not as officers---Such assertion was self-contradictory, for that, they had themselves approached the Labour Court and Labour Appellate Tribunal claiming to be workmen, and now it was altogether unbecoming on their part to claim their reinstatement as officers---Respondents themselves abandoned the relief they had obtained from the forums below---When the respondents were content with their current situation, and were not willing and prepared to work in the establishment of the employer, and they were not going to get any monetary back benefits pursuant to the impugned judgment of the High Court, the only conclusion which could be arrived at was to set-aside their reinstatement in service---Appeals filed by the employer were allowed and impugned judgment passed by the High Court allowing the reinstatement in service of the respondents was set aside.

(c) Constitution of Pakistan---

----Art. 187(1)---Power of Supreme Court to issue such directions, orders or decrees, as may be necessary for doing complete justice---Scope---In doing complete justice the Supreme Court was also empowered to look at the changed circumstances of the case as they had appeared before it and also to mould relief as was just and proper for meeting the ends of justice--- In exercising the jurisdiction to do complete justice and to issue directions, orders or decrees, as may be necessary, the Supreme Court was not bound by any procedural technicality when a glaring fact was very much established on the record.

Imran Ahmad Khan Niazi v. Mian Muhammad Nawaz Sharif, Prime Minister of Pakistan and 9 others PLD 2017 SC 265; Muhammad Zahid v. Dr. Muhammad Ali PLD 2014 SC 488; Dossani Travels (Pvt.) Ltd. and others v. Messrs Travels Shop (Pvt.) Ltd. and others PLD 2014 SC 1; Mst. Amatul Begum v. Muhammad Ibrahim Shaikh 2004 SCMR 1934; Imam Bakhsh and 2 others v. Allah Wasaya and 2 others 2002 SCMR 1985; Muhammad Shafi v. Muhammad Hussain 2001 SCMR 827; Gul Usman and 2 others v. Mst. Ahmero and 11 others 2000 SCMR 866; and S.A.M. Wahidi v. Federation of Pakistan through Secretary Finance and others 1999 SCMR 1904 ref.

Shahid Anwar Bajwa, Advocate Supreme Court and Habib ur Rehman, Head of Admn. Martin Dow for Appellants (in C.As. Nos.1076-1082 of 2019).

Shahid Anwar Bajwa, Advocate Supreme Court and Habib ur Rehman, Head of Admn. Martin Dow for Respondents (in C.As. Nos.1083 - 1089 of 2019).

Muhammad Sajid Khan, Advocate Supreme Court and Ayaz Khan Swati, Additional A.-G. Balochistan for Respondents (in C.As. Nos. 1076-1082 of 2019).

Muhammad Sajid Khan, Advocate Supreme Court and Ayaz Khan Swati, Additional A.-G. Balochistan for Appellants (in C.As. Nos.1083-1089 of 2019).

2021 P L C 148

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Sayyed Mazahar Ali Akbar Naqvi, JJ

PESCO, WAPDA HOUSE through Chief Executive

Versus

ISHFAQ KHAN and others

Civil Appeal No. 900 of 2020, decided on 1st February, 2021.

(On appeal against the judgment dated 23.10.2019 passed by the Peshawar High Court, Peshawar in Writ Petition No. 618-P of 2019)

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

----S.48(4)---Constitution of Pakistan, Art.199---Labour Court, jurisdiction of---Scope---Policy, notification or an executive order---Power to strike down a policy, notification or an executive order if it infringed the rights of an individual or group of individuals or if it was found to be arbitrary, unreasonable or violative of law or Constitution, rested exclusively with the High Court under Art. 199 of the Constitution, and a challenge could be thrown to such a policy, notification or the executive order by way of filing a Constitutional petition---Labour Court was not seized with such jurisdiction---In the present case, jurisdiction exercised by the Labour Court while directing an electric supply company to constitute a committee to grant promotion to the respondents against a quota while drawing analogy with other similar electric companies was beyond its scope---Appeal was allowed.

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

----S.37(1)---Grievance petition---Competency---Promotion policy of an organization/authority---Grievance petition would only be competent if the grievance was with regard to a 'right guaranteed under law, settlement, or award'---Word law used in S. 37(1) of the Khyber Pakhtunkhwa Industrial Relations Act, 2010 meant that it had to be a legal right guaranteed by the statute and not a policy of the organization.

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

----S. 48(4)---Labour Court, jurisdiction of---Scope--- Promotion policy of Peshawar Electric Supply Company (PESCO)---Respondents, who were working as regular Upper Technical Subordinate (UTS) in PESCO/appellant department, sought their promotion to the post of Junior Engineers/Assistant Managers (BPS-17) against 5% quota reserved for UTS graduate engineers---Appellant department/PESCO declined said request of respondents with the clarification that the said quota was meant for induction/direct recruitment and not promotion---Labour Court allowed grievance petition of respondents by holding that since there was 5% quota for promotion according to the policy issued by the Pakistan Water and Power Development Authority (WAPDA) and since all other similar electric companies were following the policy of WAPDA, the PESCO was also bound to follow instructions and policies of WAPDA---Legality---Admittedly, PESCO was a distinct entity, which had its own statutory rules---Law did not permit that a statutory body, which had its own rules, be compelled to adopt the rules of another separate entity---Labour Court only had the authority to interpret and deal with the respondents under the policy of PESCO, which clearly said that the 5% quota was for induction/direct recruitment and not for promotion---Clarification had been issued by PESCO that the posts in question were to be filled in by way of induction and not promotion, which meant that there would be fresh appointment and not the continuation of the earlier job---Labour Court had no power to direct PESCO to adopt the rules of WAPDA or similar constituent companies and had wrongly assumed jurisdiction---Appeal was allowed.

(d) Void order---

----If an order was void, without jurisdiction, ultra vires and passed in disregard of the law, any superstructure raised over it would automatically fall to the ground and it could not be sustained in the eyes of law.

Asad Jan, Advocate Supreme Court for Appellant.

Abdul Hafeez Amjad, Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for Respondents Nos. 1 - 10.

2021 P L C 157

[Supreme Court of Pakistan]

Present: Mushir Alam, Maqbool Baqar and Munib Akhtar, JJ

Messrs SHAHBAZ GARMENTS (PVT.) LTD. and others

Versus

GOVERNMENT OF SINDH through Secretary Labour and Human Resource Department, Karachi and others

Civil Appeals Nos. 65-K to 117-K of 2019, decided on 11th March, 2021.

(On appeal from the judgment dated 23.8.2018 passed by the High Court of Sindh, Karachi in C.Ps. Nos. D-7077, 3082, 3083, 3940, 4068, 4429, 4918, 5140, 6009, 6063, 6899, 6900, 6971, 7117, 7118, 7119 of 2016, 460, 461, 464, 598, 783, 855, 886, 887, 946, 1282, 1309, 1339, 1340, 1764, 2281, 2755, 2825, 2913, 3569, 4527, 4533, 1637, 4810, 4947, 5736 to 5779, 6016, 6092, 9194, 7813, 8357, 8535 of 2017, 334, 335, 336, 479, 480, 481, 482, 539, 624, 897 to 903, 1037, 1272, 1273, 1274, 1276, 1277, 1740, 1766, 2040, 2236, 2263, 2265, 2700, 2872, 2873, 3016, 3017, 3127, 3158 and 3316 of 2018)

Sindh Employees' Social Security Act (VI of 2016) [as amended by the Sindh Employees' Social Security (Amendment) Act (XVIII of 2018)---

----Ss. 2(9)(e), 5, 20(1) & 75---Provincial Employees' Social Security Ordinance (X of 1965) [since repealed], Ss. 2(8)(f), 20 & 71---Provincial Employees' Social Security (Contributions) Rules, 1966 [as applicable in Sindh], Rr. 3, 4(3) & Sched.---Sindh Minimum Wages Act (VIII of 2016), S. 6---Minimum Wages Ordinance (XXXIX of 1961) [since repealed], S. 6---Social security---Rate of contribution---Rate of contribution for the period between the enactment of the Sindh Employees' Social Security Act, 2016 (from 12-04-2016) up to its amendment by the Sindh Employees Social Security (Amendment) Act, 2018 (from 17-05-2018)---Rate of contribution became unalterably fixed at six percent in the Sindh Employees' Social Security Act, 2016 ('the 2016 Act'); this consolidated in the parent statute (i.e. the 2016 Act') the position that had already emerged in Sindh since 1976, i.e., of the rate being fixed---Only difference was that previously this was the combined result of the Provincial Employees' Social Security Ordinance, 1965 ('the 1965 Ordinance') and the Provincial Employees' Social Security (Contributions) Rules, 1966 ('the 1966 Rules')---Fixed rate was seven percent from 1976 to 2008, and thereafter was six percent---Under the previous regime the situation could have been altered by suitable amendments to the 1966 Rules, though of course the "cap" imposed by the parent statute (i.e. the 2016 Act) of six percent could not be changed in such way---However, even the 1966 Rules were not changed, and entire position was consolidated and incorporated in the parent statute in 2016---When the 2016 Act came into force and up to the changes made by the Sindh Employees' Social Security (Amendment) Act, 2018 ('the 2018 Act'), a combined reading of S. 20(1) of the parent statute (i.e. the 2016 Act') and R. 4(3) of the 1966 Rules ensured that, as before, the rate of contribution was six percent, to be computed on the basis of the minimum wage---Amendments of the 2018 Act consolidated this position in the parent statute (i.e. the 2016 Act) by the introduction of the second proviso to S. 20(1), which, in effect, expressly incorporated in statute what had earlier been set out in the 1966 Rules.

Zahoor ul Hassan Minhas, Advocate Supreme Court and Jameel Ahmed Virk, Advocate-on-Record for Appellants (in C.As. Nos. 65-K to 92-K, 96-K, 98-K to 117-K/2019).

Shahid Bajwa, Advocate Supreme Court for Appellants (in C.A. No.65-K/2019).

Nemo for Appellants (in C.As. Nos.93-K to 95-K, 97-K/2019).

Jawad Akbar Sarwana, Advocate Supreme Court and K.A. Wahab, Advocate-on-Record for Respondent No. 2 (in all cases.)

2021 P L C 191

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Sayyed Mazahar Ali Akbar Naqvi, JJ

ALLIED BANK LIMITED

Versus

ZULFIQAR ALI SHAR and others

Civil Appeal No. 82 of 2016, decided on 26th April, 2021.

(Against order dated 30.09.2015 of High Court of Sindh at Karachi, passed in C.P. No. D-95 of 2011)

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

----S.O. 12(3)---Termination of employment in simpliciter---Scope---Employee convicted and sentenced for a criminal offence subsequently acquitted by the Appellate Court---Employer terminating services of employee---Whether the termination of services of such employee required the process of issuing a show-cause notice, holding a regular inquiry and the passing of a proper order by the competent authority after granting him a personal hearing or, was his termination simpliciter not requiring the said process---Held, that respondent-employee was accused of an offence, an FIR was lodged against him and he was arrested and later convicted by a Court of competent jurisdiction; he remained incarcerated for more than 6 years during which time he was not available to perform services as a cashier for the appellant-Bank (employer) for which he had originally been employed---Furthermore, the respondent-employee was holding the said post at the time when he got involved in the criminal offence---Courts below misinterpreted the respondent's letter of termination as one of dismissal from service for misconduct which was not the case as was evident from the record as well as the contents of the letter of termination---Scope of inquiry of Labour Court, Labour Appellate Tribunal as well as the High Court was limited to the extent of determining whether or not the reasons given by the appellant-Bank justifying its action for termination in simpliciter were explicit, clear, enough and valid---Lower fora could not have gone on the premise that the respondent-employee had been dismissed from service for misconduct and the process for dismissal from service for misconduct namely a show cause notice, regular inquiry and order of dismissal had not been followed---Order of termination of services of the respondent-employee was in essence and for all intents and purposes, an order under S.O. 12(3) of the Industrial and Commercial Employment (Standing Order) Ordinance, 1968, hence, it was a case of termination in simpliciter---Termination of the respondent-employee was not on account of misconduct and there was neither any requirement to issue a show cause notice, a charge sheet, regular inquiry and complete the process for dismissal on the ground of misconduct---Reason of termination of respondent's services was explicitly, clearly and unambiguously communicated to him and requirements of S.O. 12(3) of the Ordinance had properly and adequately been met---Order of termination in simpliciter passed by the appellant-Bank was affirmed, restored and upheld---Appeal was allowed.

Fazal Dad v. Attock Electric Supply Company Limited 1977 PLC 364; Muhammad Ramzan v. Messrs National Motors Limited 1980 PLC 780; Sikandar Hayat v. Sindh Labour Appellate Tribunal 1991 PLC 508; Ahmad Barch v. Chairman, Pakistan Steel, Karachi 2006 PLC (C.S.) 993 and Messrs Indian Iron and Steel Company v. Their Workmen AIR 1958 SC 130 ref.

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

----S.O. 12(3)---Termination of employment in simpliciter---Scope---Reinstatement in service---Scope---In exercise of powers under S.O. 12(3) of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 ('the 1968 Ordinance'), where power of termination was "in simpliciter", and such order met and fulfilled the criteria given in S.O. 12(3), a workman could not be reinstated into service on the ground that charges of misconduct had not been established and that no regular inquiry was held against him---Requirement of law was limited to the extent of communication of the order in writing explicitly stating the reasons for such action---Such action could not be set aside or declared illegal simply on the ground that termination of service could only be made on proof of misconduct after issuance of a show cause notice, conducting a regular inquiry and by orders of the employer after granting him a personal hearing---Such interpretation would negate the very object and purpose of S.O. 12(3) of the 1968 Ordinance which envisaged that under certain circumstances, the employer could terminate the services of a workman "in simpliciter" by giving explicit reasons justifying such termination.

(c) Interpretation of statutes---

----"Ordinary meaning and usage of words"---Scope---In constructing and interpreting statutes, the Court first had to look at the language of the law and interpret the same in accordance with the ordinary meaning and usage of the words---Context in which the said words had been used by the legislature as evident from the language of the provision itself could also be considered without adding to or subtracting anything from the same---Incase of lack of clarity, as a second step, the Court may look for the intent and purpose of the lawmaker in using a particular language and words as evident from the language of the statute.

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

----S.O. 12(3)---Termination of employment in simpliciter---Scope---Employee convicted and sentenced for a criminal offence subsequently acquitted by the Appellate Court---Employer terminating services of employee---Question as to whether an employer was required to wait indefinitely and keep a post vacant till such time that all appellate remedies were exhausted and the employee became available to perform services against the post for which he was employed---Held, that it was unfair and unjust to expect an employer to wait indefinitely and keep a post vacant till such time that the employee had exhausted all legal remedies and in the meantime was either incarcerated or for any other reason unable or unwilling to join his duty and perform services for extended periods of time---Employer was only required to wait for a reasonable time which could vary on a case to case basis depending upon the nature of the job that the delinquent employee was performing and how long it could realistically be kept open and vacant without materially affecting the working of the employer---In the absence of mala fide on the part of the employer a reasonable period should not ordinarily exceed a period of two months during which if an employee was unable to return to work his services could be terminated simpliciter in exercise of powers under S.O. 12(3) of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968.

Shahid Anwar Bajwa, Senior Advocate Supreme Court for Appellant.

Syed Rafaqat H. Shah, Advocate-on-Record for Respondent No.1.