2022 P L C 1
[Islamabad High Court]
Before Miangul Hassan Aurangzeb, J
ZOHRA JABEEN
Versus
FIRST WOMAN BANK and others
Writ Petition No.1371 of 2021, decided on 27th August, 2021.
(a) Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)---
----S.O. No.15(3)---Qanun-e-Shahadat (10 of 1984) Arts. 117 & 118---Terms "misconduct" and "habitual negligence or neglect of work"---Financial loss or loss to reputation---Mala fide---Onus to prove, shifting of---Petitioner impugned the order of Full Bench, National Industrial Relations Commission (NIRC) allowing appeal filed by respondent/Bank (her employer)---Said Bank had dismissed the petitioner on charge of: firstly, posting a number of wrong entries with mala fide intention, one of them amounting to Rs.4,05,567/-; secondly, borrowing money from customers of the bank; and thirdly, being absent without leave---Validity---Letter of charge/dismissal did not specify any sort of misconduct that the petitioner had committed---Deposit of an amount in the account of a wrong account holder could at best be "habitual negligence or neglect of work"---Onus to prove mala fides lay on the respondents---No allegation as to collaboration / collusion with accountholder, or being beneficiary of any of the amount erroneously deposited in the said account---Alleged error in the petitioner's act of depositing amount in account of an account holder whose name was similar to the account holder in whose account said amount should have been deposited could not be held to reflect on the petitioner's integrity---No financial loss/loss of reputation to the respondent/bank was proved---Entire amount erroneously deposited was subsequently deposited in the correct account---Nothing on record to show that accountholder had closed his account due to said incident---No finding whatsoever whether the charge of borrowing money from respondent/bank's customers had been proved---Constitutional petition was allowed and matter was remanded to the Full Bench of NIRC for a decision afresh.
Saifi Development Corporation Ltd. v. Workers Union PLD 1965 Kar. 347 and Auqaf Department v. Secretary, Ministry of Religious Zakat, Usher and Minorities Affairs, Government of Pakistan, Islamabad 2009 SCMR 210 ref.
(b) Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)---
----S.O. No.15---"Misconduct---Connotation.
Ordinarily, ill motive or mens rea are not necessary concomitants of the expression "misconduct" in context of disciplinary proceedings. There can be misconduct without any misbehaviour involving some form of guilty mind or mens rea. For instance gross or habitual negligence in performance of duty may not involve mens rea but may still constitute misconduct for disciplinary proceedings. However, failure to attain the highest standard of efficiency in performance of duty permitting an inference of negligence would not constitute "misconduct" under Standing Order No.15 of the 1968 Ordinance unless it is habitual and recurring or unless the consequences directly attributable to negligence cause damage to the employer in terms of reputation or otherwise.
(c) General Clauses Act (10 of 1897)---
----S.24A---Appellate Jurisdiction---Exercise of power---Order to be reasonable, fair and just---Scope---Obligatory on the Full Bench, National Industrial Relations Commission (NIRC), as an appellate forum, to give its findings on whether the penalty of dismissal from service imposed on the petitioner could have been justified on the said charge---Obligatory on appellate forum to have given reasons for taking a different view from the original forum.
Muhammad Majid v. Secretary, Ministry of Manpower and Overseas Employment, Islamabad PLD 2017 Isl. 19 ref.
(d) Constitution of Pakistan---
----Art.199---Certiorari---Question of fact---Scope---High Court, while deciding whether or not to issue a writ of certiorari, could not supplement the order of a tribunal with reasons that are not present in such an order---In exercise of Constitutional jurisdiction, Court could not determine questions of fact, or do what the Full Bench, National Industrial Relations Commission was supposed to have done---High Court, in Constitutional jurisdiction, had full powers to do justice but could not substitute its own decision for the decision of the tribunal below.
(e) Mala fide---
----Malice and mala fide were questions of fact which had to be proved by leading evidence, and that vague allegation of mala fides would be of no avail to a party.
Mansoor Ahmad for Petitioner.
Shahid Anwar Bajwa for Respondent.
2022 P L C 58
[Islamabad High Court]
Before Miangul Hassan Aurangzeb, J
SUI SOUTHERN GAS OFFICERS ASSOCIATION through Secretary
Versus
FEDERATION OF PAKISTAN through Secretary and 3 others
Writ Petition No.1905 of 2021, decided on 24th June, 2021.
Industrial Relations Act (X of 2012)---
----S.11---National Industrial Relations Commission (Procedure and Functions) Regulations, 2016, Regln. 10-A---Association of employees---Cancellation of registration---Scope---Petitioner's (Association) case was that it was registered by the Registrar of Trade Unions, therefore, the Member, National Industrial Relations Commission, could not pass an order for its cancellation and that an application under S.11 of the Industrial Relations Act, 2012, for cancellation of a trade union was to be filed before the Registrar Trade Unions---Validity---Power of cancellation provided under S. 11 of the Industrial Relations Act, 2012, was unambiguously confined to a 'trade union', which definitely did not include 'industry-wise trade union'---Seeking guidance from the provisions of the General Clauses Act, 1897, power to issue an order or notification conferred under a statute included the power to add to, amend, vary or rescind such instrument---Power to cancel registration of an industry-wise trade union vested in the Commission and not the Registrar---Petitioner was admittedly an industry-wise trade union---Regulation 10A of the National Industrial Relations Commission (Procedure and Functions) Regulations, 2016, provided that the Benches of the Commission shall, in relation to industry-wise trade unions, federations of trade unions and cases referred to the Commission, perform such functions and exercise such powers as were performed and exercised by the Registrar Trade Unions in relation to trade unions and, for this purpose, any reference in the Industrial Relations Act, 2012, or in the said regulations to Registrar Trade Unions shall be deemed to be a reference to the appropriate Bench of the Commission to which such functions were assigned---Constitutional petition was dismissed.
Chevron Pakistan Lubricants (Private) Limited v. Federation of Pakistan and others (Writ Petition No.2188/2019) fol.
Sheikh Riaz ul Haque and Mrs. Rabiah Iqbal for Petitioner.
Arshid Mahmood Kiani, Deputy Attorney General.
2022 P L C 115
[Islamabad High Court]
Before Tariq Mehmood Jahangiri, J
MUSLIM COMMERCIAL BANK LIMITED, ISLAMABAD through Authorized Attorney
Versus
RIZWAN ALI KHAN and others
Writ Petition No.776 of 2021, decided on 6th August, 2021.
(a) Industrial Relations Act (X of 2012)---
----S.2(xxxiii)---"Workman"---Determination---Maxim: Audi alteram partem---Applicability---Petitioner / Bank was aggrieved of order passed in favour of respondent / employee whereby his grievance petition was accepted---Validity---No proper charge sheet was ever issued to respondent / employee by petitioner / Bank and no show-cause notice was served upon him before initiating inquiry or before issuance of dismissal order---Maxim audi aletram partem was violated by petitioner / Bank---High Court declined to interfere in concurrent orders passed by two benches of National Industrial Relations Commission which were without error of law and not without jurisdiction or in excess of jurisdiction---Constitutional petition was dismissed, in circumstances.
1999 SCMR 1892; 2002 SCMR 943; PLD 2016 SC 872; 2019 SCMR 946; 1973 SCMR 455; 2017 SCMR 56; PLD 2010 SC 878 and 2010 PLC 460 rel.
(b) Constitution of Pakistan---
----Art.199(1)(a)(i)---Writ of certiorari---Issuance---Principle---Certiorari is only available to quash a decision for an error of law---Such writ is also issued for correcting errors of jurisdiction when inferior Court or tribunal acts without jurisdiction or in excess of its jurisdiction or fails to exercise its jurisdiction or where Court or tribunal acts illegally in exercise of its undoubted jurisdiction and decides a matter in violation of principle of natural justice---High Court while issuing writ of certiorari acts in exercise of supervisory and not appellate jurisdiction---High Court, in such jurisdiction, does not review findings of facts reached by inferior Court or tribunal.
Owais Shams Durrani and others v. Vice-Chancellor, Bacha Khan University, Charsadda and another 2020 SCMR 1041; Amjad Khan v. Muhammad Irshad (Deceased) through LRs 2020 SCMR 2155; President All Pakistan Women Association, Peshawar Cantt v. Muhammad Akbar Awan and others 2020 SCMR 260; Jurist Foundation through Chairman v. Federal Government through Secretary, Ministry of Defence and others PLD 2020 SC 1; Chief Executive MEPCO and others v. Muhammad Fazil and others 2019 SCMR 919 and Chairman, NAB v. Muhammad Usman and others PLD 2018 SC 28 rel.
Tariq Mahmood for Petitioner.
Abdul Rehman Khan for Respondent No.1.
2022 P L C 137
[Sindh High Court]
Before Muhammad Shafi Siddiqui and Adnan Iqbal Chaudhry, JJ
KANESHIRO (PRIVATE) LIMITED through Authorized Representative
Versus
SAJJAD ALI and 2 others
Constitutional Petition No.D-5762 of 2018, decided on 26th November, 2019.
Sindh Industrial Relations Act (XXIX of 2013)---
----S.34---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.Os. 15 & 12---Redressal of individual grievances---Termination of employment---Punishments---Scope---Petitioner/Employer sought issuance of a writ of certiorari against judgment passed by Sindh Labour Appellate Tribunal whereby employer's appeal was dismissed and the appeal of workman was allowed whereby he was re-instated in service with back benefits---Validity---Courts below after considering the postal receipt of the grievance notice had concurrently held that the grievance notice was sent by the workman to the employer---Case of employer was that the workman had stopped coming to the work, although it was not disputed that he had come to work on the relevant day and he was stopped by the employer's security guard from entering the factory---Employer did not bring any documentary evidence to show that the workman had not been attending work---Employer's witness, on cross-examination, had acknowledged that the workman was never sent any notice to show-cause for his absence nor a written notice of dismissal from service was issued---Assuming that the workman had stopped coming to work without leave of absence thereby committing misconduct within the meaning of S.O. 15(3) of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, it was still obligatory upon the employer to adhere to S.O. 12(3), which was never done---Constitutional petition was dismissed, in circumstances.
Musavir Gajani for Petitioner.
Syed Anayat Hussain Shah Bukhari for Respondent No.1.
Shahriyar Mahar, Assistant Advocate-General, Sindh for Respondents Nos.2 and 3.
2022 P L C 188
[Sindh High Court]
Before Zulfiqar Ahmad Khan, J
MUHAMMAD AYAZ KHAN
Versus
Messrs FEROZ 1888 MILLS LIMITED
Suit No.1701 of 2015, decided on 18th March, 2022.
(a) Payment of Wages Act (IV of 1936)---
----S.5---Suit for compensation/damages---Abrupt termination from service---Mental torture, claim of---Plaintiff's application for claiming benefits/dues was allowed by the Commissioner Workmen Compensation and Authority ordering the defendant/company to deposit the amount with one time penalty---Defendant impugned the said order in the High Court by filing Constitutional petition which was dismissed---Defendant's leave to appeal was refused by the Supreme Court---Defendant filed application under S.12(2) of Civil Procedure Code, 1908, before the Authority and the Authority passed order as to recall its last order---Plaintiff impugned the said order by filing Constitutional petition, which was allowed by High Court---Defendant filed leave to appeal before Supreme Court which was dismissed---Plaintiff claimed that he was abruptly/unlawfully terminated from service that Commissioner Workmen Compensation and Authority directed the defendant to deposit sum of Rs.8,88,134/- to the plaintiff but it deliberately failed to make such payment within the stipulated period; that defendant dragged him in false/frivolous litigation owing to which he suffered continuously; and that he was entitled for claimed damages/compensation---Defendant contended that plaintiff had already been paid his dues along with compensation; that appeal was a statutory right of every citizen and one who felt aggrieved by an order / action of any court/authority would have all legal rights to challenge such order; that defendant chose to file appeal against the compensation as ordered by the Authority, therefore, it had not been paid to the plaintiff within time---Held, that person aggrieved could always seek damages for his wrongful dismissal/termination---Authority, after conducting its due proceedings, awarded Rs.4,44, 067/- to the plaintiff but also imposed one time penalty on the said amount due to wrongful termination thereof---None could be deprived from filing appeal against the order which the party would consider himself aggrieved---Plaintiff admitted in cross-examination that he failed to produce any certificate of medical practitioner certifying his contention to the effect that due to the act of the defendant/company, he suffered mental shock/agony/distress---Not a single document in form of medical prescriptions/certificates had been introduced on record by the plaintiff to support his contention, therefore, it could not be said that he had suffered any injury/mental shock/agony more particularly when he had already received the legal dues along with one time penalty imposed by the Wages Authority---Plaintiff had to have challenged the dictum of the Wages Authority before competent forum claiming 10 times penalty instead of one time which the plaintiff failed to do so---High Court dismissed the suit.
(b) Constitution of Pakistan---
----Arts.2A & 4---Administration of justice---Right to appeal---Injunctions of Islam---Scope---Appeal was a statutory right of every citizen---If one felt aggrieved of any decision/verdict/dictum, he/she could appeal the same before appropriate forum---Right of appeal was recognized by the Holy Prophet (Peace be upon him) as well as by the Khulafa-e-Rashideen.
PLD 1985 FSC 365 rel.
(c) Damages---
---General and special damages---Distinction---General damages were initially quantified by the person making the claim, while the special damages were assessed by the Court---In majority of instances, claim would be eventually monetary one.
(d) Damages---
---Mental torture/agony---Assessment---Scope---Mental shock, agony and torture implies a state of mind which could be proved only by a positive assertion of one who experienced the same.
1996 CLC 627 and PLD 2021 Sindh 1 rel.
Plaintiff in person
Faisal Mehmood Ghani along with Kazi Anis-ur-Rehman for Respondent.
2022 P L C 214
[Sindh High Court]
Before Muhammad Shafi Siddiqui and Adnan-ul-Karim Memon, JJ
KHALID MANSOOR
Versus
NATIONAL INDUSTRIAL RELATIONS COMMISSION ISLAMABAD and 2 others
C.P. No.D-5878 of 2019, decided on 23rd February, 2021.
Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)---
----S.O.15---Termination from service---Scope---Petitioner assailed his termination from service---Appointment of petitioner was not based on fake documents rather his promotion was obtained through the document which was, later on, found fake (as per respondent-company)---Petitioner had not committed any act of misconduct as defined by Standing Order No. 15---Petitioner was promoted in the year 1989 but his alleged Matric Certificate was sent to the concerned Board for verification in the year 2010, after a lapse of considerable time; and, thereafter he was charge-sheeted for having a bogus Matric Certificate---Attendance of witnesses from the concerned Board was not procured to substantiate the allegations of fraud and forgery---Even the alleged Matric Certificate was not produced along with an affidavit in evidence of respondent's witness---Petitioner was wrongly terminated from service, as such, he was entitled to the consequential benefits---Constitutional petition was allowed and the respondents were directed to re-instate the petitioner with back benefits, in circumstances.
Messrs Millat Tractors Limited v. Punjab Labour Court No.3, Lahore and 2 others 1996 SCMR 883 ref.
Saif Sohail Younus for Petitioner.
Ali Ahmed Turrabi for Respondent No.2.
J.K. Jiskani for Respondent No.3.
2022 P L C 44
[Lahore High Court]
Before Abid Hussain Chattha, J
PROVINCE OF PUNJAB through Secretary, Irrigation Department, Jhang
Versus
SAJJAD NASEEM and 3 others
Writ Petition No.11438 of 2019, heard on 26th May, 2021.
Punjab Industrial Relations Act (XIX of 2010)---
----S.33---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.1---Redress of individual grievances---Scope---Department assailed orders passed by Labour Court and Labour Appellate Tribunal whereby services of respondent were regularized with all back benefits---Validity---Letter regarding appointment of respondent on work charge basis was issued with a specific ending period---As such, the respondent stood terminated on expiry of the said period, therefore, there was no occasion to issue any show cause notice or letter of termination---Appointment letter clearly depicted that he was employed for a specific period and would be dispensed with on the expiry of the period for which he was employed---Petition was time barred under S.33 of the Punjab Industrial Relations Act, 2010---Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and the Punjab Industrial Relations Act, 2010, did not apply to the case of the respondent---Entertainment of grievance petition, its adjudication and direction to regularize respondent from the date of his appointment and holding that he was entitled to get back benefits under the law including all emolument was held to be without jurisdiction---Constitutional petition was accepted and the impugned orders were set aside.
Province of Punjab through Secretary Agriculture Department Lahore and others v. Muhammad Arif and others 2020 SCMR 507 ref.
Board of Intermediate and Secondary Education, Faisalabad through Chairman and others v. Tanveer Sajid and others 2018 SCMR 1405 and Board of Intermediate and Secondary Education, DG Khan and another v. Muhammad Altaf and others 2018 SCMR 325 distinguished.
Province of Punjab and 3 others v. Gul Hassan and 33 others, 1992 PLC 924; Province of Punjab through Secretary Population Welfare Department and 2 others v. Farzana Basharat and 2 others 2020 PLC 260 and Parks and Horticulture Authority and others v. Ejaz Ahmad Sial 2020 PLC (C.S.) 214 rel.
M. Saad Bin Ghazi Assistant Advocate General for Appellant.
Dil Pazeer Ahmed for Respondent No.1.
2022 P L C 55
[Lahore High Court]
Before Shams Mehmood Mirza, J
MUHAMMAD IMRAN
Versus
Messrs AGRITECH LIMITED through Chief Executive and 3 others
Writ Petition No.73950 of 2019, decided on 18th March, 2021.
Industrial Relations Act (X of 2012)---
----S.58---Appeal---Limitation---Scope---Petitioner called in question the order passed by Full Bench of National Industrial Relations Commission (NIRC) whereby the appeal filed by him was dismissed being time barred---Validity---Grievance notice was served by the petitioner on 17-05-2017 whereas the petition before NIRC was filed on 19-03-2018 which was patently outside the limitation period provided in S. 33 of the Industrial Relations Act, 2012---Petitioner had not filed any application under S. 14 of the Limitation Act, 1908, along with the petition---Petition returned to the petitioner by the Labour Court had not been filed before the NIRC and instead a fresh petition was filed---Petitioner had not filed the appeal within the stipulated time frame before the Full Bench of NIRC---Reason put forward by the counsel was that he had informed the Reader for adjourning the case as he was proceeding abroad, however, the order reflected the presence of counsel for the petitioner and the arguments addressed by him---Plea put forward by the counsel could not be accepted---Full Bench of NIRC had rightly dismissed the appeal---Constitutional petition was dismissed.
Mst. Khalida Begum and 2 others v. Mst. Yasmin and others 2000 CLC 1290 ref.
Khusi Muhammad through L.Rs. and others v. Mst. Fazal Bibi and others PLD 2016 SC 872 rel.
Khalid Mahmood Wattoo for Petitioners.
2022 P L C 79
[Lahore High Court]
Before Jawad Hassan, J
PACKAGES LIMITED through Factory Manager/Personnel Manager
Versus
PUNJAB LABOUR APPELLATE TRIBUNAL and another
Writ Petition No.32213 of 2016, decided on 22nd February, 2019.
Punjab Industrial Relations Act (XIX of 2010)---
----S.33---Qanun-e-Shahadat (10 of 1984), Art. 113---Redress of individual grievances---Facts admitted need not be proved---Delay in sending grievance notice---Scope---Respondent was dismissed from service on charges of misconduct and absence from duty---Respondent filed a grievance petition which was dismissed on the ground that he had not filed a grievance notice within time as per the mandatory requirement of law---Labour Appellate Tribunal allowed the appeal and remanded the case to the Labour Court on the ground that petitioner/employer had admitted the receiving of the grievance notice in its pleadings---Validity---Petitioner had admitted the receiving of the grievance notice but nowhere was it admitted that the notice was received within the prescribed time nor could it be presumed that the notice was served upon the petitioner within time because it was vehemently denied by the petitioner---Impugned judgment was passed by misreading the record and misconstruing the real facts, therefore, the same was set aside---Constitutional petition was allowed, in circumstances.
Almas Ahmad Fiaz v. Secretary, Government of the Punjab and others 2007 PLC 64; Messrs Qureshi Salt and Spices Industries and others v. Muslim Commercial Bank Limited and others 1999 SCMR 2353; Khushal Khan v. Muslim Commercial Bank Limited and others 2002 SCMR 943 and Ghulam Mustafa v. Messrs Shah Murad Sugar Mills 2009 PLC 83 ref.
Barrister Rafey Zeeshan Javed for Petitioner.
2022 P L C 141
[Lahore High Court]
Before Muzamil Akhtar Shabir, J
ENGINEER BISMILLAH KAKAR
Versus
FEDERATION OF PAKISTAN, through Secretary, Ministry of Industries and Production and 3 others
Writ Petition No.78024 of 2021, decided on 15th December, 2021.
(a) National Industrial Relations Act (10 of 2012)---
----Ss.1(3)(b), 2(ix)(e), 2(xxxiii), 3, 17 & 33---Petitioner initially appointed as Deputy Manager in regional office of Pakistan Industrial Technical Assistance Center (PITAC) and after being transferred to headquarter in another city allowed to serve on acting charge basis as Deputy Director, was transferred back to the said regional office with immediate effect---Petitioner contended that he was proposed President of the PITAC Officers Welfare Association (POWA); that his registration was pending with the Registrar Trade Unions (RTU) at National Industrial Relations Commission (NIRC); that during pendency of the same, he could not be transferred to any other place without his consent, save with approval of RTU; that there was no post of grade 18 officer available in the Regional Office in the said region; that he could not be transferred as such in view of Ss. 3 & 17 of National Industrial Relations Act, 2012; and that transfer order was passed with mala fide intention and ulterior motives in order to prevent the petitioner from invoking jurisdiction of RTU and NIRC for registration of the said union---Respondent/PITAC officials stated that petitioner was transferred from Head Office to Regional Office where he was initially appointed to manage the affairs of the same project (relating to CPEC) he was appointed for; that his services were required at the site because no other alternate was available; that he had been transferred on administrative grounds (sheer necessity); that petitioner could continue his efforts relating to registration of POWA; that petitioner was holding an acting charge in BS-18 whereas he was actually a BS-17 employee; and that petitioner was governed by non-statutory terms and conditions of service and alternative remedy was available to him---Held, that petitioner could not show/point out any statutory rules applicable to him or governing his service---Petitioner claimed relief on basis of violation of a statutory right provided under the provision of Ss. 3 & 17 of the National Industrial Relations Act, 2012---Whether the petitioner would fall within the definition of employer or "workman" required deeper appreciation of the inside working of PITAC along with the detailed analysis of the charge of the post held by the petitioner and nature of duties performed by him, which was not permissible under the Constitutional jurisdiction of High Court especially when the parties were not concurring with ---Disputed question of fact could not be determined in Constitutional jurisdiction of High Court---Right under S.17 of the Act, was available only to the members/officers of the trade union of workmen and not to the employer---If the petitioner was an employer as per the definition provided in the Act, then S.17 of the Act would not be applicable to him and he could not seek its enforcement through Constitutional jurisdiction of High Court---If the petitioner was a worker or "workman", then the provisions of S.17 would be applicable to his case---Petitioner alleged that he had been transferred with mala fide intention to prevent him from participation in trade union activities which had specifically been mentioned as unfair labour practices on the part of the employers in terms of S.31(d)(i)&(ii) of Act, 2012 and S.33 thereof provided remedy against unfair labour practice by the respondent/department before NIRC---Representation of petitioner had already been turned down for not being maintainable---Constitutional petition was disposed of accordingly with the observation that the petitioner may seek appropriate remedy available to him under the law.
Pakcom Limited and others v. Federation of Pakistan and others PLD 2011 SC 44; Muhammad Amin and another v. Government of Punjab and others 2015 PLC (C.S.) 1082 (SC) = 2015 SCMR 706 and Haroon-ur-Rashid v. Lahore Development Authority and others 2016 SCMR 931 rel.
(b) Master and servant---
----Servant not governed by statutory rules---Scope---Where a service grievance was agitated by person/employee, who was not governed by statutory rules of service, such employee could not invoke the Constitutional jurisdiction of High Court for redressal of his grievance---Where case related to a matter wherein statutory rules had not been framed, or non-statutory rules were applicable to the employee, or statutory rules had neither been violated nor been sought to be enforced, then the person seeking a remedy had to show that some statutory provision had been invoked by respondents or violated, or needed to be enforced, which was a condition precedent for invoking Constitutional jurisdiction of High Court---If an employee with non-statutory rules, was proceeded against under some statutory provision of law, he might also invoke Constitutional jurisdiction of High Court---Such remedy might not be available if some other remedy provided under the law was available to him for redressal of his grievance.
Miss Naureen Naz Butt v. Pakistan International Airlines through Chairman, PIA and others 2020 SCMR 1625; Ministry of IPC through Secretary and others v. Arbab Altaf Hussain and others 2014 SCMR 1573; Abdul Wahab and others v. HBL and others 2013 SCMR 1383; Pakistan Telecommunication Corporation v. Iqbal Nasir 2011 PLC (C.S.) 623 = PLD 2011 SC 132; Pakistan International Airline Corporation and others v. Tanweer-ur-Rehman and others PLD 2010 SC 676 and Pakistan Red Crescent Society and another v. Syed Nazir Gillani PLD 2005 SC 806 rel.
(c) Constitution of Pakistan---
----Art.199---Constitutional jurisdiction---Investigation and appreciation of evidence---Scope---Extra-ordinary constitutional jurisdiction was intended primarily for providing an expeditious remedy in case where the illegality of the impugned action of an executive or other authority could be established without any elaborate inquiry into complicated/disputed facts and controverted questions of fact, adjudication on which was possibly only after obtaining all types of evidence in power and possession of parties could be determined only by a Court having plenary jurisdiction in matter.
The Commissioner and another v. Mian Sher Muhammad 1972 SCMR 395 and Pakistan Wapda Employees Pegham Union v. Member, National Industrial Relations Commission, Islamabad and others 2015 PLC (C.S.) 45 = 2014 SCMR 1676 rel.
(d) Constitution of Pakistan---
----Art.199---Constitutional jurisdiction---Alternate remedy in a special law---Scope---Where a special law provides a right and a corresponding remedy, then the remedy provided in the said law was to be availed prior to availing any other remedy available under the law and High Court was not inclined to exercise Constitutional jurisdiction.
Province of Punjab through Secretary Communication and Works Department, Lahore through Chief Engineer (North/Central) Punjab Highway Department, Lahore v. Yasir Majeed Sheikh and others 2021 SCMR 624; Federation of Pakistan through Secretary Establishment Division, Islamabad v. Shafqat-ur-Rehman Ranjha and others 2021 SCMR 153; Indus Trading and Contracting Company v. Collector of Customs (Preventive) Karachi and others 2016 SCMR 842; Dr. Sher Afghan Khan Niazi v. Ali S. Habib and others 2011 SCMR 1813 and Muhammad Abbasi v. S.H.O. Bhara Kahu and 7 others PLD 2010 SC 969 rel.
Tanveer Ahmad Ghumman for Petitioner.
Javed Iqbal for Respondents Nos.2, 3 and 4.
2022 P L C 162
[Lahore High Court]
Before Shams Mehmood Mirza, J
EFU LIFE INSURANCE LIMITED through Chief Manager
Versus
LABOUR APPELLATE TRIBUNAL through Presiding Officer and 3 others
Writ Petition No.203094 of 2018, decided on 23rd November, 2021.
Payment of Wages Act (IV of 1936)---
----S.15---Insurance Ordinance (XXXIX of 2000), S. 122---Claims arising out of deductions from wages or delay in payment of wages and penalty for malicious or vexatious claims---Group insurance---Jurisdiction of Commissioner---Scope---Respondent, being widow of deceased employee, filed a claim against the Insurance Company before the Commissioner seeking payment of group insurance amount---Petitioner, being the insurance company, had issued the insurance policy at the request of the company for insurance of its employees---Each employee was assured a certain sum payable on death---Husband of respondent had passed away and resultantly a claim was filed before the petitioner which was repudiated on the ground that the husband of respondent was not in the active employment of the company, as such, the claim did not fulfill requirement of Cl. 4 of the insurance policy---Commissioner allowed the application of respondent---Labour Appellate Tribunal dismissed the appeal---Validity---General Manager of the company had stated that all the employees including the husband of respondent were insured with the petitioner company and that premium was also paid---Petitioner company had not cross-examined the said witness---Husband of respondent had passed away when the insurance policy was in existence---Petitioner company in its reply had admitted that the husband of respondent was insured by it under group insurance---Labour Appellate Tribunal was right in its observation that the claim for compensation under the Payment of Wages Act, 1936, could only be decided by the Commissioner and that under the Insurance Ordinance, 2000, only a policy holder could approach the tribunal created thereunder---Constitutional petition was dismissed, in circumstances.
Rana Rizwan Hussain for Petitioner.
Mian Khadim Hussain and Anwaar ul Haq for Respondent No.3.
2022 P L C 167
[Lahore High Court]
Before Muzamil Akhtar Shabir, J
SANA SOHAIL KHAN
Versus
NATIONAL INDUSTRIAL RELATIONS COMMISSION and others
Writ Petition No.32070 of 2021, decided on 19th April, 2022.
(a) Administration of justice---
----Appreciation of evidence---Principle---To reach a just conclusion in matter, entire evidence is to be read as a whole and not in piecemeal---Case should not be decided merely by relying upon one sentence or isolated portion in statement of a witness.
Sabir Hussain and 6 others v. Eisa and 2 others 2004 MLD 963; Asif Shehzad v. Addl. District Judge, Muzafargarh and others 2018 YLR 1682; Mst. Hameeda Bibi and 3 others v. Khan Muhammad alias Khan Ahmad and 3 others 2021 MLD 2046; Sartaj Khan and another v. Jan Muhammad PLD 1998 SC 1502 and Manzoor Ahmad v. Haji Hashmat Ali through Legal Heirs 2000 CLC 419 rel.
(b) Industrial Relations Act (X of 2012)---
----S.2(xxxiii)---"Workman", determination of---Principle---Designation of a person cannot be considered a factor for determining status of employment in an establishment to be that of an "officer" or a "workman"--- Nature of duties and functions of a person have to be considered to be the relevant factor which determine whether his status is that of a "workman" or not.
National Bank of Pakistan and another v. Anwar Shah and others 2015 SCMR 434 rel.
(c) Industrial Relations Act (X of 2012)---
----Ss.2(xxxiii) & 54---Qanun-e-Shahadat (X of 1984), Arts.117 & 120---"Workman"---Proof---Onus to prove---Shifting of onus, principle of---Applicability---Petitioner was employee of respondent / employer company who was aggrieved of her dismissal from service---Petitioner was reinstated in service but Full Bench of National Industrial Relation Commission (N.I.R.C.) declared petitioner as not a workman and maintained dismissal order---Validity---In order to approach N.I.R.C. for redress of grievance, petitioner was required to show that she fell in the definition of 'workman'/'worker'---Where evidence was led by petitioner to claim that she was a 'workman' there-after in order to challenge jurisdiction of N.I.R.C. to entertain dispute it was upon respondent/employer to show through evidence or other material available on record that petitioner was not a 'workman'---National Industrial Relations Commission to determine such aspect of the matter was required to read evidence and material available on record as a whole to reach at just conclusion in the matter---National Industrial Relations Commission could not rely upon a single sentence or a portion of evidence in piecemeal to determine the question whether petitioner was a 'workman' or not---Determination of such question was to determine jurisdiction of N.I.R.C. to entertain the dispute---Order passed by Full Bench of N.I.R.C. suffered from jurisdictional defect of misreading and non-reading of record, and the order resulted in miscarriage of justice and was not sustainable---High Court set aside order and remanded the matter to Full Bench of N.I.R.C. to decide the question whether petitioner fell within the definition of 'worker' / 'workman' and thereafter decide the dispute afresh on its own merits---Constitutional petition was allowed accordingly.
Managing Director, Shahi Bottlers (Pvt.) Limited v. The Punjab Labour Appellate Tribunal, Lahore and 2 others 1993 SCMR 488; National Bank of Pakistan v. Punjab Labour Court No. 5, Faisalabad and 2 others 1993 SCMR 672; Muhammad Akram and another v. Mst. Farida Bibi and others 2007 SCMR 1719; Dilawar Jan v. Gul Rehman and 5 others PLD 2001 SC 149 and Khurshid Ahmad v. Bashir Ahmad and others 2004 YLR 469 rel.
Khalid Ismail for Petitioner.
Sh. Aftab Ahmad for Respondents Nos. 2 to 4.
Barrister Hassan Khalid Ranjha A.A.G., Ch. Muhammad Shahid Iqbal, Syed Imran Ehsan, Ch. Muhammad Naseer, Shehryar Farhan Baig, Nasrullah Khan Babar, Dr. Muhammad Azeem Raja and Mateen-ul-Haq Chaudhry for Respondents.
2022 P L C 180
[Lahore High Court]
Before Shahid Karim, J
CRESCENT EDUCATIONAL TRUST through Secretary
Versus
REGISTRAR OF TRADE UNIONS LAHORE and another
Writ Petition No.23007 of 2015, decided on 18th February, 2022.
(a) Punjab Industrial Relations Act (XIX of 2010)---
----Ss.24 & 1(3)(h)---Income Tax Ordinance (XLIX of 2001), S.100C---Collective Bargaining Agent---Educational institution---'Commercial basis', meaning of---Scope---Petitioner/Establishment was aggrieved of registration of private respondent as a Collective Bargaining Agent by the Registrar of Trade Unions---Petitioner was a charitable educational institution which was a registered trust---Major source of income of the petitioner was donations from trustees and surplus of income and funds over expenditures of the trust were solely used for the promotion of purposes and objects specified in the trust deed---No dividend/bonus from surplus funds of the trust could be given to any members of the trust or his relatives---Petitioner (Institution) was also granted an exemption certificate in terms of S. 100C of the Income Tax Ordinance, 2001---Petitioner was issued a NPO (Non Profitable Organization) certificate by a NPO Certification Agency---Registrar was swayed by the fact that the trust was making profits as also that the infrastructure built in the school had not been developed out of the donations made by the trustees but was being made from the fee charged from the majority of the students---Only question was whether the funds were being expended on a commercial basis and in the absence of any evidence, it was unlawful to conclude that the petitioner trust was being run on commercial basis---Petition was allowed, impugned order as well as certificate of Collective Bargaining Agent were declared to have been issued without lawful authority and of no legal effect.
(b) Punjab Industrial Relations Act (XIX of 2010)---
----S.1(3)(h)---Educational institution---Scope---Institutions providing education are exempt from applicability of Punjab Industrial Relations Act, 2010, under S. 1(3)(h) but this clause excludes institutions which are being run on commercial basis.
(c) Constitution of Pakistan---
----Art.199---Punjab Industrial Relations Act (XIX of 2010), Ss. 24 & 1(3)(h)---Constitutional petition---Maintainability---Collective Bargaining Agent, certification of---Locus standi---Scope---Petitioner / Establishment was aggrieved of registration of respondent as a Collective Bargaining Agent by the Registrar of Trade Unions---Contention of respondent was that an employer did not have standing to challenge the registration of trade union---Validity---Challenge here was not entirely to the registration of trade union but to a determination made by the Registrar---Petitioner was a trust and was directly aggrieved of the determination of the Registrar, in that, it concluded that it was being run and managed on commercial basis which had impacted the status of the petitioner as a charitable institution and its entitlement to benefits under various laws.
(d) Punjab Industrial Relations Act (XIX of 2010)---
----S.1(3)(h)---Expression 'Commercial basis', definition of---Scope---In the context of Punjab Industrial Relations Act, 2010, the term commercial has to be seen as connoting trade or business occupation carried on for profit---Trust imports commerce, trade or enterprise having financial profit as primary aim---Intrinsic nature of the activity of an organization and its purpose and consequence would be the determining factor---Any educational institution is bound to make profit but the real question is that profit or surplus should not enrich a trustee or his family, it must be diverted back to charitable and welfare activities.
Merriam-Webster's Dictionary of Law rel.
(e) Income Tax Ordinance (XLIX of 2001)---
----S.100C---Tax credit for charitable organizations---Scope---One of the persons to whom the provision of S.100C, Income Tax Ordinance, 2001 applies is a trust---Subsection (2) of S. 100C, Income Tax Ordinance, 2001 provides the category of income which is eligible for tax credit and includes income from donations, voluntary contributions and subscriptions as also income from investment in the securities of the Federal Government---Said provision pre-supposes that the income of a trust can be invested in the securities of the Federal Government and which income too is subject to tax credit---Under subsection (2)(f) of S. 100C, the eligibility of tax credit is subject to the condition that none of the assets of trust or welfare institutions confers a private benefit to the donors or family, children or author of the trust or any other person---Further a cumulative reading of subsections (1A) and (1B) of S. 100C would show that surplus funds of trust would only be taxed in case funds are not spent on charitable or welfare activities during the tax period---By subsection 2(d) of S.100C, income eligible for tax credit include income of an educational institution being run by a non-profit organization existing solely for educational purposes.
Zain Rehmat Qureshi for Petitioner.
2022 P L C 206
[Lahore High Court]
Before Muhammad Sajid Mehmood Sethi, J
PROVINCE OF PUNJAB through District Coordination Officer and another
Versus
SAJIDA ZAHEER and 2 others
Writ Petition No.33240 of 2021, heard on 15th September, 2021.
(a) Punjab Industrial Relations Act (XIX of 2010)---
----S.46---Awards and decisions of Labour Court---Scope---Respondent filed a grievance petition before the Labour Court against her termination, which was accepted ex parte---Petitioners filed an appeal before the Appellate Tribunal, which was dismissed on the ground of limitation---Contention of petitioners, inter alia, was that Labour Court should have sent a copy of the order to the department under S. 46 of the Punjab Industrial Relations Act, 2010 but the copy was not sent, therefore, the order had become null and void---Validity---Labour Court was required to immediately forward two copies of its decision to the Government, which was under obligation to publish it in the official gazette---Section 46 also provided remedy of appeal against decision of Labour Court along with its limitation, which had been linked with communication of the final decision---Section 46 clearly suggested that communication of decision to the Government was mandatory in nature, therefore, its strict compliance was imperative and was to be strictly construed---Appellate Tribunal had failed to appreciate the legal aspects of the matter---Constitutional petition was allowed and the matter was remitted to the Appellate Tribunal for adjudication on merits.
(b) Interpretation of statutes---
----Directory or mandatory provision, determination of---Scope---Integral test while determining whether a provision in a statute is directory or mandatory in nature is to ascertain the legislative intent and purpose is to be achieved by the application of the provision of law rather than literal approach---Court would prefer an interpretation which advances the object of the enactment over that which defeats it---Intention of legislature must govern, which is to be ascertained not only from the phraseology of the provision but also by considering its nature, the object and the consequences which would follow from construing it in one way or the other.
Province of Punjab through Secretary Excise and Taxation Department, Lahore and others v. Murree Brewery Company Limited (MBCL) and another 2021 SCMR 305; Province of Punjab through Conservator of Forest, Faisalabad and others v. Javed Iqbal 2021 SCMR 328; Mafizaullah v. Mana Ullah and others PLD 1963 Dacca 318 and Muhammad Asghar and 3 others v. Station House Officer and 2 others PLD 2020 Lah. 87 ref.
(c) Administration of justice---
----When a statute provides an act to be done in a particular manner or form, it must be performed in such manner alone as nobody should try to be wiser than law, otherwise the same would be termed as illegal and the proceedings unsustainable.
Zia ur Rehman v. Syed Ahmed Hussain and others 2014 SCMR 1015; The Collector of Sales Tax, Gujranwala and others v. Messrs Super Asia Mohammad Din and Sons and others 2017 SCMR 1427; Shahdost Dashti v. Federation of Pakistan through Secretary Ministry of Inter-Provincial Coordination Government of Pakistan, through Secretary, Pakistan Secretariat, Islamabad and 5 others 2019 CLC 1750; Muhammad Hanif v. Revisional Authority and others 2020 CLC Note 36; Muhammad Ameer v. The State and another 2020 MLD 876 and Muhammad Sajid v. Judge Family Court and others 2020 CLC 1524 ref.
(d) Interpretation of statutes---
----Constitutional Courts are under an obligation to give effect to statutory law as opposed to interpreting text in such a manner that it renders provisions of law redundant---No provision of the instrument is to be considered meaningless.
Muzaffar Hussain v. The Superintendent of Police, District Sialkot 2002 PLC (C.S.) 442; Aftab Ahmad Raja v. Malik Faizullah Khan Afridi and others 2011 YLR 2205; Federal Government Employees Housing Foundation and others v. Malik Ghulam Mustafa and others PLD 2019 Isl. 1; Syed Hussain Haider v. Government of the Punjab through Chief Secretary, Lahore and others PLD 2020 Lah. 858 and Qazi Zaheer Ahmad v. Federal Ombudsman Secretariat for Protection against Harassment at Workplace, Islamabad and 2 others 2021 PLC (C.S.) 839 ref.
(e) Interpretation of statutes---
----Words and phrases used in the Constitution and statutes should be read keeping in view their plain meaning and the Courts while interpreting the provision of a statute are required to remain within the intention of law maker.
Syed Mukhtar Hussain Shah v. Mst. Saba Imtiaz and others PLD 2011 SC 260; Baz Muhammad Kakar and others v. Federation of Pakistan through Ministry of Law and Justice and others PLD 2012 SC 923 and Avari Hotels Limited through Controller v. Department of Excise and Taxation Government of the Punjab, through Secretary and 5 others 2009 CLC 1399 ref.
Barrister Ameer Abbas Ali Khan, A.A.G. for Petitioner.
Rana Abdul Sattar Khan for Respondent No.1.
Ahmad Zia Ch., Civil Judge / Research Officer, LHCRC.
Muhammad Imran Sh., Addl. District Judge/Senior Research Officer, LHCRC.
2022 P L C 29
[National Industrial Relations Commission]
Before Noor Zaman, Muhammad Ashraf and Khaqan Baber, Members
BILAL SHAH BAKHAT
Versus
The PRESIDENT ASKARI BANK, ISLAMABAD and others
Appeal No.12A(11) and C.M.A. No.24(34) of 2019-P, decided on 11th August, 2020.
(a) Industrial Relations Act (X of 2012)---
----Ss.33 & 2(xxxiii)---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O. 12---Individual grievance---"Workman"---Termination of employment---Scope---Appellant, a Bank employee, assailed dismissal of his grievance petition as well as his termination from service---Validity---Appellant was not Branch Manager in the respondent Bank---Bank's witness in his cross-examination had admitted that job description of appellant was to open accounts, clearance of cheques, remittances, making draft and pay order; that appellant had no subordinates; that the appellant was working under the supervision of Manager Operations and that no power of attorney was executed by the Bank in favour of the appellant regarding hiring and firing and transfer of any employee---Bank could not bring on record any specific function of appellant which was managerial or supervisory in nature---Termination letter was issued without holding of enquiry which was mandatory under Industrial and Commercial Employments (Standing Orders) Ordinance, 1968 for termination of "workman"---Appellant was a "workman" and he was illegally terminated, therefore, he was re-instated with back benefits---Appeal was allowed.
President Meezan Bank v. Nasir Jalil and others W.P. No.634 of 2015 ref.
MCB v. Chairman Sindh Labour Appellate Tribunal 1992 PLC 1023; Dilshad Khan Lodhi v. ABL and others 2008 SCMR 1530 and N.B.P. Sindh Labour Appellate Tribunal 1992 PLC (C.S.) 94 rel.
(b) Industrial Relations Act (X of 2012)---
----S.2(xxxiii)---Worker---Workman---Scope---Question whether a person is a workman or not does not depend upon the designation but on the nature of duties.
Syed Asad Ali Shah for Appellant.
Respondent proceeded against ex parte.
2022 P L C 111
[National Industrial Relations Commission]
Before Noor Zaman, Member
NISAR AHMED and others
Versus
CAPITAL DEVELOPMENT AUTHORITY
Case Nos.4B(103), 4B(104) of 2015, C.M.As. Nos.24B(49), 24B(50) of 2015 and C.M.As. Nos.7B(65), 7B(64) of 2018, decided on 11th May, 2020.
(a) Industrial Relations Act (X of 2012)---
----S.33---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O. 1---Individual grievance---Regularization of services---Permanent "workman"---Temporary "workman"---Development Authority having non-statutory rules---Effect---Petitioners sought regularization of their services on the ground that they had continuously been performing jobs of permanent nature since the date of their appointment and a workman with nine months service was treated as a permanent employee under Os.1(b) & 1(e) of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968---Contention of Authority was that service regulations of the department were statutory and its employees were excluded from the ambit of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968---Validity---Department's contention did not hold ground as Service Regulations of the Authority had not been approved by the Federal Government but by the Board, therefore, the Regulations were non-statutory---Petitioners had attained the status of permanent workman and had become at par with all other employees of the department but they were still being treated as daily wages employees which violated their right of being permanent employees of the department---Petitions were allowed.
2013 PLC (C.S.) 796 ref.
(b) Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)---
----S.O. 1---Regularization of services---Permanent workman---Temporary workman---Scope---Employees continuously working for long time against permanent posts become eligible to be regularized.
Tehsil Municipal Administration Rahimyar Khan v. Hanif Masih and others 2008 SCMR 1058; SNGPL v. Ghulam Abas PLC 2002 SC 724; Board of Intermediate and Secondary Education Faislabad v. Tanveer Sajid and others 2018 SCMR 1405 and BI&SE D.G Khan v. Muhammad Altaf and others 2018 PLC (C.S.) 647 rel.
Muhammad Akhtar Anjum for Petitioners.
2022 P L C 132
[National Industrial Relations Commission]
Before Noor Zaman, Member
MUHAMMAD ABDULLAH FAROOQI
Versus
Mst. MEHWISH HUSSAIN and others
Case No.4B(196) and C.M.A. No.24B(88) of 2019, decided on 19th May, 2020.
Industrial Relations Act (X of 2012)---
----S.33---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S. 2(i) & S.O. 12---Individual grievances---Scope---"Workman"---Termination of employment---Scope---Petitioner a producer and later on promoted as Multimedia Broadcast Journalist, was terminated without any notice or reason---Contention of establishment was that job description of the petitioner showed that he was not performing any manual or clerical work and that, in fact, he was required to apply his mind and make decision on subjects based on rational approach---Validity---Burden of proof was on the petitioner to prove that he was performing job which was manual or clerical in nature and that he had no powers of hire and fire---Petitioner had not explained the nature of job but had merely stated that he was a "workman"---Job description of petitioner was manifest of the fact that he was required to perform imaginative, creative nature of work where mind was applied---Petitioner did not fall within the ambit of "workman" as defined in Industrial and Commercial Employment (Standing Orders) Ordinance, 1968---Petition being not maintainable was returned for presentation before appropriate forum.
Syed Saqlain v. PTCL 2008 PLC (C.S.) 193; Ikram Bari and others v. National Bank of Pakistan 2005 SCMR 100; 2008 SCMR 1058; 2008 PLC (C.S.) 128 and PLJ 2002 SC 1220 ref.
1993 SCMR 488; Syed Sarah Batool Gardezi v. Chief Executive Educational Services (Pvt.) Ltd. Lahore and others 2015 PLC 173; GM Hotel International v. Bashir A. Malik PLD 1986 SC 103; Athar Ali v. PL and others 2014 PLC 49 and Wisram Das v. SGS Pakistan (Pvt.) Ltd. and another 2010 SCMR 1234 rel.
Muhammad Ahmed Tariq Fani for Petitioner.
2022 P L C 156
[National Industrial Relations Commission]
Before Mian Shakirullah Jan, Chairman, Muhammad Ittifaq Abbasi and Noor Zaman, Members
IMTIAZ AZIZ
Versus
STATE BANK OF PAKISTAN
Appeal No.12A(161) and C.M.A. No.24A(111) of 2017, decided on 16th July, 2019.
Industrial Relations Act (X of 2012)---
----S.33---Individual grievance---Extending of similar relief---Scope---Services of appellants were transferred to State Bank of Pakistan after dissolution of Pakistan Banking Council in terms of Banks Nationalization (Amendment) Ordinance, 1997---Appellants became employees of the State Bank on terms and conditions governing their employment with the Pakistan Banking Council---Appellants were taken by State Bank on its roll but their services were subsequently terminated---Some of the employees who were similarly terminated, succeeded in obtaining an order for their reinstatement from the Supreme Court---Appellants, in view of the order of Supreme Court, served grievance notices on the State Bank but to no avail---Appellants approached Single Bench of NIRC who dismissed the petition on the ground of limitation---Validity---Settled law was that the office order which had given right of absorption to the employees of Pakistan Banking Council could not have been withdrawn at later stage---Non-litigating parties had to be extended benefits of relief granted to other similar persons---Relief of judgment of Supreme Court could also be extended to the appellants---Appeal was accepted.
PIAC v. Samina Masood and others PLD 2005 SC 831; 1996 SCMR 1186 and 2011 PLC (C.S.) 560 rel.
M. Umair Baloch for Appellant.
Rehan Nawaz for Respondents.
2022 P L C 165
[National Industrial Relations Commission]
Before Noor Zaman, Member
GHULAM MUSTAFA
Versus
CAPITAL DEVELOPMENT AUTHORITY
Case No.4B(155) of 2018, decided on 27th April, 2020.
Industrial Relations Act (X of 2012)---
----S.33---Grievance petition---Scope---Petitioner, asserted that the department advertised several posts and the petitioner applied for the post of Stenographer BS-15; that he qualified the test and interview for the post of Stenographer but he was appointed as a Steno-typist in BS-12; that one of the other candidates had secured 65 marks whereas he had secured 70 marks but the said candidate was appointed at Stenographer and the petitioner was appointed as Steno-typist in violation of merit and prayed that he might be treated at par with the said candidate as he was qualified and was illegally appointed as Steno-typist---Validity---Petitioner was appointed in the year 2008 and had been working as Steno-typist for a period of 10 years---Grievance petition was filed without any application for condonation of delay---Petition, being hit by limitation, was not maintainable and was accordingly dismissed.
PLD 2010 SC 705 and PLD 2002 SC 403 rel.
Babu M. Idrees, Labour Rep. for Petitioner.
2022 P L C 179
[National Industrial Relations Commission]
Before Noor Zaman, Member
M. ABBAS RAZA
Versus
IESCO.
Case No.4A(206), C.M.As. Nos.24(339), 7A(239) and Complaint No.7(92) of 2018, decided on 13th April, 2020.
Industrial Relations Act (X of 2012)---
----Ss.33 & 31---Redressal of individual grievances---Unfair labour practices on the part of employers---Scope---Petitioner complained of unfair labour practices on the part of respondent contending that he was placed under suspension merely on the ground that he was a trade unionist and an office bearer of the trade union of his own choice but the management was annoyed due to his lawful trade union activities---Validity---Petitioner had failed to indicate any incident of unfair labour practice---Inquiry against an employee on misconduct was prerogative of the employer which could not be interfered---Establishment had withdrawn the charge sheet and show cause notice issued to the petitioner---Petitioner had not submitted any proof regarding unfair labour practice on the part of employer nor mentioned any specific instance of his trade union activities for which act the establishment punished him---Petition and complaint were dismissed, in circumstances.
Babu M. Idrees, Labour Rep. for Petitioner.
2022 P L C 15
[Peshawar High Court]
Before Lal Jan Khattak and Syed Arshad Ali, JJ
KHALID
Versus
PAKISTAN TOBACCO COMPANY AKORA KHATTAK, DISTRICT OWSHERA, KHYBER PAKHTUNKHWA through General Manager and 5 others
Writ Petition No.362-P of 2021, decided on 8th June, 2021.
(a) Industrial Relations Act, 2012 (X of 2012)---
----S.2(xxxiii)---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(i)---Termination without conducting proper inquiry---"Worker" and "workman"---Distinction---Petitioners filed grievance petition claiming breach of S.O. 12(3) of the Ordinance, 1968 which was allowed by Single Bench of National Industrial Relations Commission (NIRC) and directed the respondents to reinstate the petitioners in service---Full Bench NIRC accepted the appeals of respondents---Validity---Petitioners had to qualify and should fall within the definition of "worker" as provided in S.2(i) of the Industrial Commercial Employment (Standing Orders) Ordinance, 1968 which included that an employee of an establishment/industry would not be a "workman" if he would not perform any skilled/unskilled manual/clerical work---"Workman" was that employee of an establishment/industry, who performed a work involving physical exertion which was more or less distinct from intellectual or the one involving decision taking at higher or lower level---If scope of an employee's duties required imagination, observation, rational approach, application of mind and specialized knowledge or evaluating the performance of certain categories of employees or other persons, he would not fall within the definition of a workman---Petitioners' scope of duties were not manual but they had the opportunity to apply their independent mind while performing their duties---Constitutional petition was dismissed accordingly.
Rehmat Ali v. The Security Papers Ltd. and another PLD 1982 Kar. 913; General Manager, Hotel Intercontinental, Lahore, and another v. Bashir A. Malik and others PLD 1986 SC 103; Chairman, Brooke Bond (Pakistan) Ltd, Karachi v. General Secretary, Union Karkunane Brook Bond (Pakistan) Ltd. Rawalpindi PLD 1969 Lah. 717; I.E. Saleh v. Messrs International Laboratories Ltd, Karachi and 2 others PLD 1975 Kar. 279; General Manager, Hotel Intercontinental, Lahore and another v. Bashir A. Malik and others PLD 1986 SC 103; Wisram Das v. SGS Pakistan (Pvt.) Ltd. and another 2010 SCMR 234 and Abdul Razzaq v. Messrs Ihsan Sons Limited and 2 others 1992 SCMR 505 ref.
(b) Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)---
----S.2(i)---"Salesman", status of---Scope---Work of salesman was in a wholly different category from manual work or clerical work---Salesman did not fall within the definition of "workman".
Pakistan Tobacco Company Ltd. v. Pakistan Tobacco Company, Employees' Union Dacca and others PLD 1961 SC 403 ref.
Bilal Ahmad Kakaizai for Petitioner.
Alam Zeb Khan for Respondents.
2022 P L C 49
[Balochistan High Court]
Before Jamal Khan Mandokhail, CJ and Abdul Hameed Baloch, J
AZIZULLAH BHAYO
Versus
CHIEF EXECUTIVE OFFICER, QESCO, QUETTA and 5 others
C.P. No.1255 of 2020, decided on 12th March, 2021.
(a) Balochistan Industrial Relations Act (XIV of 2010)---
----S.41---Redressal of grievances---Limitation---Scope---Petitioner assailed the dismissal of his grievance petition as well as his appeal---Validity---Petitioner had assailed the order of removal from service after lapse of seven years without showing plausible explanation and sufficient cause---Petitioner had not even sought condonation of delay by way of filing application---Petitioner had not approached the Court within the stipulated period as mentioned in S.41(1) of the Balochistan Industrial Relations Act, 2010---Constitutional petition was dismissed, in circumstances.
(b) Limitation Act (IX of 1908)---
----S.3---Dismissal of suit, etc., instituted after period of limitation---Scope---Section 3 of Limitation Act, 1908, is mandatory in nature according to which the suit filed beyond limitation shall be dismissed even though the limitation has not been taken in defence---Law does not leave the matter of limitation to the parties---Law imposes the duty upon the Court and it is obligatory upon the Court to first decide the question of limitation---Where the Court comes to the conclusion that the suit/appeal has been filed beyond the period of limitation, it is to dismiss the suit/appeal without touching merit.
Muhammad Buta v. Habib Ahmed PLD 1985 SC 153 rel.
(c) Limitation Act (IX of 1908)---
----Ss.3 & 5---Dismissal of suit, etc., instituted after period of limitation---Extension of period in certain cases---Condonation of delay---Scope---Where suit/appeal has been filed with delay, the party should explain the delay to the satisfaction of the Court---Applicant must explain the delay of each day---On failure to explain, the party cannot succeed.
Mst. Khair Bibi v. Ghulam Sarwar 2021 CLC 151 rel.
(d) Limitation Act (IX of 1908)---
----S.5---Condonation of delay---Scope---Approaching wrong forum does not absolve the petitioner to explain the delay---Wrong advice or approaching wrong forum is not sufficient ground for condonation of delay.
Ch. Muhammad Sharif v Muhammad Ali Khan 1975 SCMR 259 rel.
Mansoor Khan Jadoon for Petitioner.
2022 P L C 33
[Supreme Court of Pakistan]
Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Sayyed Mazahar Ali Akbar Naqvi, JJ
GETZ PHARMA (PVT.) LIMITED, KARACHI
Versus
MUHAMMAD NAFEES and others
Civil Petitions Nos. 3587 to 3589 of 2020, decided on 24th March, 2021.
(Against the judgment dated 20.11.2020, passed by the Islamabad High Court, Islamabad in Writ Petitions Nos. 327, 340 and 342 of 2020)
Payment of Wages Act (IV of 1936)---
----S. 15(1)--- Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(i) & Sched., S.Os.12(6) & 12(7)---Sales Managers employed on contractual basis on managerial positions dismissed from service---Gratuity and Provident Fund, entitlement to---Whether the dismissed sales managers were workmen, and thus qualified to receive benefit of Gratuity and Provident Fund---Held, that a salesman by very nature of his work was not a workman and did not fall within the ambit of the term workman---Position of a salesman did not predominantly involve manual or clerical work and as such was not considered to be a workman within the meaning of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968[ 'Ordinance of 1968']---In the present case, the respondents (employees) while filing their applications under S. 15 of the Payment of Wages Act, 1936 before the relevant Authority had not at all claimed themselves or pleaded in their applications that they were workmen performing manual or clerical work in terms of S. 2(i) of the Ordinance of 1968 , and they also did not record any evidence to such effect--- Claim of the respondents (employees) to the extent of payment of Gratuity and Provident Fund was dismissed---Petitions for leave to appeal were converted into appeals and allowed accordingly.
Aurangzaib v. Medipak (Put.) Ltd. and others 2018 SCMR 2027; Pakistan Tobacco Company Ltd. v. Pakistan Tobacco Company, Employees' Union, Dacca and others PLD 1961 SC 403; Chairman, Brooke Bond (Pakistan) Ltd. Karachi v. General Secretary Union Karkunane .Brooke Bond (Pakistan) Ltd., Rawalpindi PLD 1969 Lah. 717; Brooke Bond (Pakistan) Ltd. v. Conciliator and 6 others PLD 1977 SC 237 and Syed Matloob Hassan v. Brooke Bond Pakistan Limited, Lahore 1992 SCMR 227 ref.
Faisal Siddiqi, Advocate Supreme Court for Petitioner (in all cases).
Muhammad Bashir Khan, Advocate Supreme Court for Respondent No. 1 (in all cases).
2022 P L C 62
[Supreme Court of Pakistan]
Present: Gulzar Ahmed, C.J., Mazhar Alam Khan Miankhel and Sayyed Mazahar Ali Akbar Naqvi JJ
DIVISIONAL SUPERINTENDENT, QUETTA POSTAL DIVISION and others
Versus
MUHAMMAD IBRAHIM and others
Civil Appeal No. 508 of 2020, decided on 7th December, 2021.
(On appeal against the judgment dated 25.08.2018 passed by the High Court of Balochistan, Quetta, in C.P. No. 136/2014)
(a) Civil Servants Act (LXXI of 1973)---
----S. 2(1)(b)(iii)---Industrial Relations Act (X of 2012), S. 2(xxxiii)---Balochistan Industrial Relations Act (XIV of 2010), Ss. 1(4)(b) & 2(dd)---Workmen's Compensation Act (VIII of 1923), S. 2(1)(n) & Second Sched. Cl. (xiii)---Employee of Pakistan Post Office---"Workman"---Scope---Employees of Post Office employed in any occupation ordinarily involving outdoor work were included in the term "workman" as defined in the Workman's Compensation Act, 1923 and were excluded from the term "civil servant" as defined in the Civil Servants Act, 1973.
Muhammad Mubeen-us-Salam and others v. Federation of Pakistan through Secretary, Ministry of Defence and others PLD 2006 SC 602 ref.
(b) Industrial Relations Act (X of 2012)---
----Ss. 1(3), 54(h) & Preamble---Balochistan Industrial Relations Act (XIV of 2010), S. 1(4)---Constitution of Pakistan, Art. 143 & Fourth Sched. Pt. II, Entry No. 13---Employee of Pakistan Post Office---Grievance---Whether employee of Post Office would have remedy under the Industrial Relations Act, 2012 or the Balochistan Industrial Relations Act, 2010---Held, that S. 1(3) of the Industrial Relations Act, 2012, which made the said Act applicable to workmen employed in the administration of the State (which included the Postal Service Department) would override the provisions of S. 1(4)(b) the Balochistan Industrial Relations Act, 2010---Workmen of the Post Office Department were subject to the Industrial Relations Act, 2012 and not the Balochistan Industrial Relations Act, 2010, and hence remedy for redressal of such worker's grievance laid before the National Industrial Relations Commission---Section 1(4)(b) of the Balochistan Industrial Relations Act, 2010, insofar as it dealt with the workmen of Pakistan Post Office, was repugnant and void in terms of Art. 143 of the Constitution and the Industrial Relations Act, 2012.
Industrial Relations Act, 2012 was applicable to all persons employed in any establishment or industry, in the Islamabad Capital Territory or to any other establishment or industry, which being trans-provincial was carrying on business in more than one province, whereas, the Balochistan Industrial Relations Act, 2010 shall apply to all persons employed in any establishment or industry to the extent of province of Balochistan. The Pakistan Post Office Department was managed by the Pakistan Postal Services Management Board, and rendering services not only in the Islamabad Capital Territory but also in all the four Provinces, it was squarely covered by section 1(3) of the Industrial Relations Act, 2012.
Section 1(3) of the Industrial Relations Act, 2012, which made the said Act applicable to workmen employed in the administration of the State (which included the Postal Service Department) would override the provisions of section 1(4)(b) the Balochistan Industrial Relations Act, 2010. Workmen of the Post Office Department were subject to the Industrial Relations Act, 2012 and not the Balochistan Industrial Relations Act, 2010, and hence remedy for redressal of such worker's grievance laid before the National Industrial Relations Commission.
PTCL v. Member NIRC 2014 SCMR 535 ref.
As by virtue of section 1(4)(b) of the Balochistan Industrial Relations Act, 2010, applicability of provincial statute extended to a trans-provincial department i.e. Post Office, therefore, it was inconsistent with the Federal Legislation i.e. Industrial Relations Act, 2012. Entry No. 13 of Part II of the Federal Legislative List provided in the Constitution empowered the Parliament to enact on any matter which was related to inter-provincial matters and co-ordination, however, while enacting section 1(4)(b) of the Balochistan Industrial Relations Act, 2010, the Provincial Legislature went beyond its competence/power to enact.
Sui Southern Gas Company v. Federation of Pakistan 2018 SCMR 802 and Federal Government Employees Housing Foundation v. Ghulam Mustafa 2021 SCMR 201 ref.
Section 1(4)(b) of the Balochistan Industrial Relations Act, 2010, insofar as it dealt with the workmen of Pakistan Post Office, being a trans-provincial subject/entity, was repugnant and void in terms of Article 143 of the Constitution and the Industrial Relations Act, 2012.
(c) Civil Servants Act (LXXI of 1973)---
----S. 25(1)--- Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, S. 1, first proviso---Employee/postman of Pakistan Post Office---Rules framed under the Civil Servants Act, 1973---Said Rules would not be applicable to a workman/postman and the Standing Orders Ordinance, 1968 would be applicable for such a workman/postman---Postman had guaranteed rights under the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, for violation of which he could file a grievance petition in the Labour fora.
Pakistan Post Office v. Nadeem Ahmed Khan 1995 PLC 205 ref.
Moulvi Ejaz ul Haq, DAG, Syed Rifaqat Hussain Shah, Advocate-on-Record and Hamid ul Haseeb, Asst. Director (Investigation), Quetta for Appellants.
Ms. Sarwat Mukhtar, Advocate Supreme Court (through video link from Quetta) for Respondent No. 1.
Hafiz Muhammad Tariq Nasim, Advocate Supreme Court, Amicus curiae.
2022 P L C 82
[Supreme Court of Pakistan]
Present: Gulzar Ahmed, C.J., Umar Ata Bandial, Ijaz ul Ahsan, Qazi Muhammad Amin Ahmed and Jamal Khan Mandokhail, JJ
MUHAMMAD SHABBIR and another
Versus
QUAID-E-AZAM UNIVERSITY through Vice-Chancellor, Islamabad and others
Civil Appeals Nos. 803 and 804 of 2016, decided on 20th January, 2022.
(Against the order dated 21.12.2015, passed by the Islamabad High Court, Islamabad, in W.Ps. Nos. 7 and 8 of 2010)
(a) Industrial Relations Act (X of 2012)---
----Ss.33 & 53---Industrial Relations Act (IV of 2008), S. 87(3)---Repeal of Industrial Relations Act, 2008 ('Act of 2008')---Disputes between workers and employers and matters relating to their Trade Unions--- Forum for redressal of grievance after repeal of Act of 2008---Forum provided under the Act of 2008 for adjudication of individual grievances of the workers ceased to exist on the repeal of the said Act and the respective forums provided under the new Industrial Relations laws made by the Provincial Governments shall have the jurisdiction to determine the individual grievances of the workers---While by the Industrial Relations Act, 2012 ('Act of 2012'), specific forum of National Industrial Relation Commission (NIRC) was created for determination of the individual grievances of the workers in Islamabad Capital Territory and for trans-provincial establishments and industry and it would alone have jurisdiction to deal with the cases of individual grievances of workers---Parties to the proceedings under the repealed Act of 2008, have no vested right to have their cases heard and decided by the forum created under the Act of 2008 i.e., the Labour Court rather on promulgation of the Act of 2012, whereby the forum of NIRC has been created and such having been given retrospective effect from 01-05-2010, only the forum of NIRC can hear and decide the grievance petitions.
Industrial Relations Act, 2008 ('Act of 2008') stood repealed on 30-04-2010 and from 01-05-2010 there was no law in the field of Industrial Relations either at the level of the Federation or in any of the Provinces. The Supreme Court in the cases reported as Air League of PIAC Employees through President v. Federation of Pakistan Ministry of Labour and Manpower Division Islamabad and others (2011 SCMR 1254) as well as in Messrs Sui Southern Gas Company Ltd. and others v. Federation of Pakistan and others 2018 SCMR 802 had opined that in the absence of law of Industrial Relations, which being a special law, the workers' remedy would lie under the ordinary laws prevailing at that time, which will come in and fill up the vacuum. Thus, it is clear that the Court has specifically meant that on 30-04-2010, the Act of 2008 stood repealed, and it being the special law operating in the field of Industrial Relations, the remedy which the workers/Trade Unions would have immediately after repeal of the Act of 2008 would be before the forum provided under the ordinary civil laws, which means Civil Courts, and such forum was provided for the interregnum period of two months i.e. up till the promulgation by all the four provincial legislatures of their respective law of Industrial Relations.
The laws of Industrial Relations promulgated by the Provincial Legislatures on repeal of the Act of 2008, were procedural laws and had retrospective application from 01-05-2010. The forum provided under the Act of 2008, i.e., the National Industrial Relation Commission (NIRC) had been abolished with the repeal of the Act of 2008 and new fora had been created under the Provincial Industrial Relations laws. Such new fora shall have jurisdiction to decide disputes between the workers and employers and matters relating to their Trade Unions. The Labour Courts, constituted under the Act of 2008, on the same analogy, also stood abolished on the repeal of the Act of 2008, and the Industrial Relations Act 2012 ('Act of 2012') having created new forum of NIRC for dealing with the grievances, disputes of workers and employers and matters relating to the Trade Unions and their Federations in the Islamabad Capital Territory and in trans-provincial establishments and industry from 01-05-2010, could only exercise power and jurisdiction for determination of grievances of workers and not the Labour Courts, which ceased to exist on 30-04-2010. Thus, the principles settled in the cases reported as Air League of PIAC Employees through President v. Federation of Pakistan Ministry of Labour and Manpower Division Islamabad and others (2011 SCMR 1254), State Bank of Pakistan through its Governor/Director Human Resources and another v. Presiding Officer, Labour Court (District and Sessions Judge) Islamabad and others (Civil Appeal No. 1150/2012) and Messrs Sui Southern Gas Company Ltd. and others v. Federation of Pakistan and others (2018 SCMR 802) are in harmony, in so far as they propound the law about the application of the law of Industrial Relations with retrospectivity and also that they can co-exist, for that, in all the three cases, it was found that the forum provided under the Act of 2008 for adjudication of individual grievances of the workers ceased to exist on the repeal of the Act of 2008 and the respective forums provided under the new Industrial Relations laws made by the Provincial Governments shall have the jurisdiction to determine the individual grievances of the workers while by the Act of 2012, specific forum of NIRC was created for determination of the individual grievances of the workers in Islamabad Capital Territory and for trans-provincial establishments and industry and it would alone have jurisdiction to deal with the cases of individual grievances of workers. The parties to the proceedings under the repealed Act of 2008, have no vested right to have their cases heard and decided by the forum created under the Act of 2008 i.e., the Labour Court rather on promulgation of the Act of 2012, whereby the forum of NIRC has been created and such having been given retrospective effect from 01-05-2010, only the forum of NIRC can hear and decide the grievance petitions.
Air League of PIAC Employees through President v. Federation of Pakistan Ministry of Labour and Manpower Division Islamabad and others 2011 SCMR 1254; State Bank of Pakistan through its Governor/Director Human Resources and another v. Presiding Officer, Labour Court (District and Sessions Judge) Islamabad and others (Civil Appeal No.1150/2012) and Messrs Sui Southern Gas Company Ltd. and others v. Federation of Pakistan and others 2018 SCMR 802 ref.
(b) De facto, doctrine of---
----Scope---Common and pre-dominant feature of de facto doctrine is in relation to exercise of power by holder of the public office, when it is found to be not legally entitled to exercise or perform such power of public office---Such exercise of power is saved on principle of de facto doctrine on the sound principles of public policy and to maintain regularity in conduct of public business and to save the public from confusion and to protect the right which a person may have acquired as a result of exercise of power by holder of public office not entitled to perform or exercise such power---Necessary ingredients for de facto exercise of power by the holder of public office is that the office should exist in the first place---If there is no public office in existence then there is no concept in law of holder of public office---Holder of public office will remain until the public office remains---Where there is no public office in existence, there remains nothing on which de facto doctrine could be applied.
Qazi Shehryar Iqbal, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellants (in both cases).
Muhammad Munir Piracha, Advocate Supreme Court for Respondents (in both cases).
Sajid Ilyas Bhatti, Additional Attorney General for Pakistan for the Federation.
2022 P L C 124
[Supreme Court of Pakistan]
Present: Umar Ata Bandial, Syed Mansoor Ali Shah and Qazi Muhammad Amin Ahmed, JJ
FEDERATION OF PAKISTAN and others
Versus
PROVINCE OF SINDH through Secretary Labour and Human Resources Department and others
Civil Petitions Nos. 5620, 5800 and 5959 of 2021, C.M.As. Nos. 12213, 12214 of 2021 in C.Ps. No. Nil/2021, C.M.A. No. 160 of 2022 in C.P. No. Nil/2022, Civil Petitions Nos.2-K, 64 and 59-K/2022 and C.M.A. No. 12221 of 2021, decided on 26th January, 2022.
(Against the consolidated judgment dated 15.10.2021 passed by the High Court of Sindh at Karachi in C.Ps. Nos.D-4596 of 2021, etc.)
(a) Sindh Minimum Wages Act, 2015 (VIII of 2016)---
----Ss. 4, 5 & 6---Minimum rate of wages, revision of---Provincial Government cannot itself revise the minimum rates of wages; it can only be done on the recommendation of the Minimum Wages Board ("Board")---Sindh Minimum Wages Act, 2015 has made it obligatory for the Government to act on the recommendation of the Board on all occasions of fixation as well as revision of minimum wages.
The (Provincial) Government could only declare the minimum rates of wages on the recommendation of the Minimum Wages Board ("Board").
The power of the Government to declare the minimum rates of wages has been qualified to be exercised on the recommendation of the Board. The words "subject to such exceptions as may be specified in the notification" used in section 6(1)(a) of the Sindh Minimum Wages Act, 2015 ('the Act') and "subject to such modifications and exceptions as may be specified in the notification" used in section 6(3) of the Act may refer to exceptions, or modifications in the exceptions, that could be created in view of "various" classes of workers or industry and should not be understood to mean that the Government could itself alter the minimum rates of wages recommended by the Board in view of a detailed and exhaustive mechanism for fixation of the minimum rates of wages spelled out in sections 4, 5 and 6 the Act.
The Act has made it obligatory for the Government to act on the recommendation of the Board on all occasions of fixation as well as revision of minimum wages. The revision of minimum wage is to be done according to the policy and mechanism laid down in the Act. The Government cannot go against the provisions of the Act and arrogate to itself the function entrusted to the Board.
(b) Sindh Minimum Wages Act, 2015 (VIII of 2016)---
----Ss. 4, 5 & 6 & Preamble---Constitution of Pakistan, Arts. 3, 9, 14, 37(a) & 38(a)---Universal Declaration of Human Rights (UDHR), Art. 23---Minimum wage---Importance of minimum wage stated.
Minimum wage laws help ensure justice at work. The minimum wage has remained a core element of public policy and the International Labour Organization (ILO) designated the minimum wage as an international labour standard.
Brishen Rogers, 'Justice at Work: Minimum Wage Laws and Social Equality' (2014) 92 Tex. L. Rev. 1543, 1548 and David Neumark and William L. Wascher, Minimum Wages (MIT Press 2008) 1 ref.
Minimum wage is a primary measure of the social value of work; they bring a change in workplace power balance by giving workers rights vis-à-vis employers; and they require employers and consumers to internalize costs of increased wages.
The requirement of establishing equitable and egalitarian work based social structures is a Constitutional command. The Constitution emphasizes on distributive justice with constitutional values of social, economic and political justice. It calls for "elimination of exploitation" and enjoins to protect the "economic interests" of the workers and ensure "equitable adjustment of rights between employers and employees." Right to life including right to livelihood under Article 9 ensures just and favourable remuneration for workers. Right to dignity under Article 14 ensures decent work for workers i.e., working conditions and wages that enhance rather than undermine workers' self-respect and social standing. The Universal Declaration of Human Rights also provides that remuneration must be paid to each worker to ensure "an existence worthy of human dignity."
Wage fixation is an important social welfare measure to be determined in the light of the economic reality of the situation and the minimum needs of the worker with an eye to the preservation of his efficiency as a worker. It is a delicate task, a fine balance is to be achieved. The demands of social justice, necessitating that the workers receive their proper share in the national income they help to
produce, need to be balanced against the depletion, every increase in wages brings in the profits of the industry. The central character
in this process remains the worker who deserves to get a fair share
in the deal, as far as that can be, without at the same time impinging on the vital interests of the industry whose continuity and success are also the mainstay of labour. Minimum wage may preferably be fixed at a level that is "capable of meeting a worker's basic living needs and those of his family, for housing, nourishment, education, health, leisure, clothing, hygiene, transportation and social security, with periodic adjustments to maintain its purchasing power." With the growth and development of national economy, living standards improve and therefore notions about minimum wage need to be more progressive.
Hindustan Hosiery Industries v. F. H. Lala AIR 1974 SC 526 and The Constitution of the Federative Republic of Brazil 1988, Art. 7 (IV). ref.
Abid S. Zuberi, Advocate Supreme Court for Petitioners (in C.P. No. 5620 of 2021).
Zaheer-ul-Hassan Minhas, Advocate Supreme Court for Petitioners (in C.Ps. Nos. 5800 and 64 of 2021).
Mrs. Samia Faiz Durrani, Advocate Supreme Court for Petitioners (in C.P. No. 5959 of 2021).
Khalid Mahmood Siddiqui, Advocate Supreme Court and Haroon-ur-Rehman, Advocate Supreme Court for Applicant (in C.M.A. No. 12213 of 2021).
Khalid Javed, Advocate Supreme Court for Petitioner (in C.P. No. 2-K of 2022).
Syed Ziauddin Nasir, Advocate Supreme Court for Petitioners (in C.P. No. 59-K of 2022).
Fauzi Zafar, Addl. A.G. Sindh and Sajid Ilyas Bhatti, Addl. A.G. for Respondents.
Faisal Siddiqi, Advocate Supreme Court for Respondents (Video link - Karachi Registry) (in C.M.A. No. 173 of 2022).
Jan Muhammad Khashkheli (In person) (in C.M.A. No. 173 of 2022).
Hasan Riaz, Research Officer, SCRC for Research Assistance.
2022 P L C 198
[Supreme Court of Pakistan]
Present: Umar Ata Bandial, C.J., Sajjad Ali Shah and Muhammad Ali Mazhar, JJ
FARAZ AHMED
Versus
FEDERATION OF PAKISTAN through Secretary, Ministry of Communication, Government of Pakistan, Islamabad and others
Civil Petition No. 4282 of 2018, decided on 28th February, 2022.
(Against the judgment dated 08.10.2018 Islamabad High Court, Islamabad in W.P. No. 4184 of 2014)
(a) Industrial Relations Ordinance (XCI of 2002) [since repealed]---
----S.46---Constitution of Pakistan, Art. 199---Constitutional petition filed before the High Court for implementation/execution of judgment of the Labour Court---Maintainability---No provision was available under Article 199 of the Constitution whereby the execution or implementation of Judgment passed by the subordinate Courts may be implemented by the High Court---Grievance petition in the Labour Court was filed under section 46 of the erstwhile Industrial Ordinance 2002 which dealt with the procedure and mechanism for redressing individual grievances---Under subsection (6) of section 46, the Labour Court had jurisdiction to prosecute any person against which decision or order is passed but who had not complied with the same within one month, or within the period specified in such order---If the petitioner was of the view that the directions contained in the Labour Court judgment were not complied with or directions were violated, then obviously the proper course was to approach Labour Court for recourse rather than the High Court---Alternatively, if the petitioner was aggrieved that the relief given to him in the judgment was wrongly withheld by the Labour Court, then he could have filed an appeal before the Labour Appellate Tribunal---Petition for leave to appeal was dismissed and leave was refused.
(b) Civil service---
----Contractual employee--- Regularization, right of---Scope---Contractual employees have no vested right to regularization, but their regularization may be considered subject to the fitness, suitability and the applicable laws, rules and regulations of the Department---Where a contractual employee wishes to be regularized, he must demonstrate statutory basis for such a claim, in the absence of which, relief cannot be granted solely on the principle of "similarly placed persons".
Khushal Khan Khattak University through Vice-Chancellor and others v. Jabran Ali Khan and others 2021 SCMR 977; Government of Khyber Pakhtunkhwa, Workers Welfare Board through Chairman v. Raheel Ali Gohar and others 2020 SCMR 2068; Government of Khyber Pakhtunkhwa through Chief Secretary, Peshawar and others v. Intizar Ali and others 2022 SCMR 472; Vice-Chancellor, Bacha Khan University Charsadda, Khyber Pakhtunkhwa and others v. Tanveer Ahmad and others 2022 PLC (C.S.) 85; Pakistan Telecommunication Company Ltd. v. Muhammad Samiullah 2021 SCMR 998; Government of Khyber Pakhtunkhwa through Secretary Forest, Peshawar and others v. Sher Aman and others 2022 SCMR 406 and Deputy Director Finance and Administration FATA through Additional Chief Secretary FATA, Peshawar and others v. Dr. Lal Marjan and others 2022 SCMR 566 ref.
G.M. Chaudhry, Advocate Supreme Court for Petitioner.
Nemo for Respondents.