2023 P L C 233
[Implementation Tribunal for Newspaper Employees]
Before Shahid Mehmood Khokhar, Chairman
DILNAWAZ ABBASI
Versus
DAILY JEHAN PAKISTAN, ISLAMABAD
Case No.IT/P/3034/21/C, decided on 17th March, 2023.
Implementation Tribunal for Newspaper Employees (Procedure and Function) Rules, 1977---
----R. 17---Newspaper Employees (Conditions of Service) Act (LVIII of 1973), S. 13---Civil Procedure Code (V of 1908), O.V, O. IX, R. 13 & O.XXI, R.30---Application to set-aside ex-parte order/judgment---Proceedings before the Implementation Tribunal for Newspaper Employees---Applicability of the Civil Procedure Code, 1908---Scope---On petition filed by a newspaper employee, Implementation Tribunal for Newspaper Employees ('Tribunal') passed ex-parte order/judgment against the respondent (management/ establishment of the newspaper)---Respondent (management/establishment of the newspaper) moved application to set-aside ex-parte order/judgment contending that notices were not served through alternate means/substitute service---Contention of the petitioner (newspaper employee ) was that the Civil Procedure Code, 1908, was not strict sensu applicable in the proceedings before the Tribunal---Validity---Although notices, were issued at addresses given by the petitioner (newspaper employee), however, there was nothing on record showing that the respondent (management/establishment of the newspaper) was served notice(s) thorough alternate means/ substitute service---Rule 17 of the Implementation Tribunal for Newspaper Employees (Procedure and Function) Rules, 1977, stipulated that the procedure prescribed under the Civil Procedure Code, 1908, with regard to civil suits, might be followed as far as the same could be made applicable in the proceedings before the Tribunal---In number of (previous) cases, the Tribunal had already invoked provisions of O. XXI, R. 30 of the Civil Procedure Code, 1908, for implementation of judgments passed by it (the Tribunal)---Justice should not be denied on the basis of technicalities rather a lis should be decided on merits---Tribunal set aside ex-parte order/ judgment having been passed in favour of the newspaper employee and against the management/establishment of the newspaper---Application was allowed subject to payment of costs, in circumstances.
1986 CLC 1853 and PLD 2003 SC 625 ref.
Syed Ishteyaq Mustafa Bukhary for Petitioner.
2023 P L C 248
[Implementation Tribunal for Newspaper Employees]
Before Shahid Mehmood Khokhar, Chairman
IMTIAZ ALAM
Versus
The NEWS, ISLAMABAD
Case No.IT/P/3042/22/C, decided on 29th August, 2023.
Newspaper Employees (Conditions of Service) Act (LVIII of 1973)---
----Ss. 13 & 4---Implementation Tribunal for Newspaper Employees (Procedure and Function) Rules, 1977, R. 17---Pakistan Electronic Media Regulatory Authority Ordinance (XIII of 2002), Preamble---Pakistan Electronic Media Regulatory Authority (Amendment) Act (LXI of 2023), Ss.3 & 11---Civil Procedure Code (V of 1908), O. VIII, R. 10---Petition before the Implementation Tribunal for Newspaper Employees (Tribunal) for the payment of monthly salary/ arrears and to restrain from termination of services---Petitioner, being professional media person, claimed to have been simultaneously hired, under integrated salary package, for both print and electronic media by the Media Group (respondent/management) having both print and electronic outlets---Petitioner sought directions against the respondent/ management contenting that his contract was not terminated by the respondent whereas payment of his monthly salary/benefits had been discontinued without any prior Show-Cause Notice/letter of explanation ,for more than three and half years (at the time of filing petition)---Respondent was given number of opportunities to appear and present its case, however during the proceedings, respondent was represented only once through the counsel who merely sought adjournment on that date; thereafter, no one turned up on the behalf of the respondent---Tribunal was left with no other option but to struck of right to reply of the respondent and due to continuous absence/ non-appearance, despite service of notices, the respondent was proceeded ex-parte---As the respondent / management had not disputed nor rebutted the claim / calculation of arrears, made by the petitioner and annexed with the present petition, thus, the same was deemed to have been admitted by the respondent/ management---However, material (documents) placed by the petitioner showed that firstly his services as journalist (for print media) was engaged by the respondent/management and after about three years of said engagement, he was appointed against the integrated salary package, payment which continued till the month he was last paid (three and half years ago from the date of filing present petition)---Tribunal declared the petitioner entitled only for the decree/amount of arrears against the respondent being management of print media outlet---As far as claim of the petitioner against the respondent being electronic media outlet was concerned , the petitioner, being electronic media employee, might approach the Council of Complaints established under Pakistan Electronic Media Regulatory Authority Ordinance, 2002, as an electronic media employee defined/covered under Ss. 3 & 11 of Pakistan Electronic Media Regulatory Authority (Amendment) Act, 2023---Petition was returned to said extent to avail appropriate remedy---Petition was partly accepted, in circumstances.
2023 P L C 5
[Islamabad High Court]
Before Miangul Hassan Aurangzeb, J
UNITED BANK LIMITED through President
Versus
FULL BENCH NATIONAL INDUSTRIAL RELATIONS COMMISSION, ISLAMABAD and another
Writ Petition No.2370 of 2020, decided on 21st October, 2022.
(a) Industrial Relations Act (X of 2012)---
----S.33---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(i)---Grievance petition---Termination from service---Workman, determination of---Scope---Question before High Court was whether the respondent as an Officer Grade-III employee of the petitioner (Bank) ceased to have the status of a workman on account of the power of attorney having been executed in his favour---Validity---Powers that were given to respondent under the power of attorney were of a managerial and supervisory nature---Such powers took the respondent out of the ambit and meaning of a workman---Constitutional petition was allowed, impugned order passed by Full Bench of National Industrial Relations Commission (NIRC) was set aside and the order passed by Member, National Industrial Relations Commission, was restored.
Ganga R. Madhani v. Standard Bank Limited 1985 SCMR 1511; Muslim Commercial Bank Ltd. v. Muhammad Shahid Mumtaz 2011 SCMR 1475 and Allied Bank of Pakistan Ltd. v. M.R. Nadeem 2002 PLC 131 rel.
Dilshad Khan Lodhi v. Allied Bank of Pakistan 2007 PLC 41 not foll.
(b) Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)---
----S.2(i)---"Workman"---Scope---Workman means a person employed in any industrial or commercial establishment to do any skilled or unskilled, manual or clerical work for hire or reward.
(c) Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)---
----S.2(c)---"Employer"---Scope---Employer includes any person responsible to the owner for the supervision and control of such establishment.
(d) Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)---
----S.2(i)---"Workman"---Scope---Nature of the work done by an employee would be the essential and fundamental consideration and not just his designation for determining the question whether he is a worker or a workman.
(e) Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)---
----S.2(i)---"Workman"---Scope---Burden to prove as to whether the employee who approaches the Courts/Tribunals is a workman lies on the employee and not the employer.
Habib Bank Limited v. Gulzar Khan 2019 SCMR 946 rel.
(f) Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)---
----S.2(i)---"Workman"---Scope---Employee cannot assert himself to be a workman where a power of attorney is executed by the employer (Bank) in his favour giving powers of a managerial or administrative nature---Such is so even where it is not proved that the power of attorney has been physically delivered to the employee or where the employee has not, during the course of his employment, actually exercised powers under the power of attorney---Mere fact of the execution of the power of attorney and the employee's knowledge as to such execution is enough.
Muslim Commercial Bank Ltd. v. Muhammad Shahid Mumtaz 2011 SCMR 1475 rel.
(g) Constitution of Pakistan---
----Art.199---High Court (Lahore) Rules and Orders, Vol. V, Chap. 1, Part A, Rule 9 & Chap. 4, Part J, R. 2---Constitutional jurisdiction---Writ of certiorari---Power to return petition for amendment---Scope---Application under the Constitution shall be accompanied by an affidavit or affidavits in proof of the fact and certified copies of all pleadings, documents, orders of the subordinate Court or authority or tribunal, including the evidence recorded, if any, unless dispensed with by the Court---High Court directed its office not to accept for filing a petition seeking the issuance of a writ of certiorari without a certificate of the counsel for the petitioner to the effect that the record of the Court or Tribunal below has been filed along with the petition.
Mushtaq Hussain Bhatti for Petitioner.
Muhammad Arif Khawaja for Respondent No.2.
2023 P L C 30
[Islamabad High Court]
Before Arbab Muhammad Tahir, J
HUKAM DAD
Versus
ISLAMABAD ELECTRIC SUPPLY COMPANY through Chief Executive and 4 others
Writ Petition No.4117 of 2021, decided on 20th December, 2021.
(a) Pakistan WAPDA Employees (Date of Birth) Rules, 1994---
----R.5---Industrial Relations Act (X of 2012), S.33---Constitution of Pakistan, Art.199---Non-statutory corporation---Constitutional petition---Maintainability---Correction of date of birth---Scope---Petitioner challenged dismissal of his grievance petition under S. 33 of Industrial Relations Act, 2012, for correction of date of birth in service record---Contention of petitioner was that decree passed by Civil Court whereby his suit for declaration and mandatory injunction for correction of his date of birth was passed was not considered---Validity---Petitioner had not arrayed his employer i.e. an Electric Supply Company as party in the suit, therefore, its implication or binding effect could not be pressed into service against the company being out of the array of the defendants of that suit---Petitioner intended to get his date of birth altered in service record after morethan two decades---Date of birth once recorded in the service record of a civil servant could not be altered or changed except in accordance with the exceptions provided in the rules---School leaving certificate relied upon by petitioner was issued after more than three decades, therefore, veracity of the same, without putting it to judicial scrutiny, could not be accepted---Petitioner had filed the grievance petition after more than 30 years---Rule 5 of Pakistan WAPDA Employees (Date of Birth) Rules, 1994, provided that once date of birth was declared and recorded at the time of entry in service, same could not be altered---Petitioner was an employee of a company which was a non-statutory corporation and the relationship between company and its employees was that of master and servant---Constitutional petition being not maintainable was dismissed.
Chief Secretary, Government of Balochistan, Quetta and others v. Asmatullah Kakar 2020 SCMR 1678 and Pakistan International Airlines Corporation and others v. Tanvir ur Rehman and others PLD 2010 SC 676 ref.
Muhammad Khaliq Mandokhail v. Government of Balochistan C.P. No.4428 of 2019 and Manzoor Ahmad v. Federation of Pakistan, 2018 PLC (C.S.) 1224 rel.
(b) Civil service---
----Correction of date of birth---Scope---Date of birth once recorded in the service record of a civil servant cannot be altered or changed except in accordance with the exceptions provided in the rules itself.
Chief Secretary, Government of Balochistan, Quetta and others v. Asmatullah Kakar 2020 SCMR 1678 ref.
2023 P L C 101
[Islamabad High Court]
Before Saman Rafat Imtiaz, J
Messrs BESTWAY CEMENT LTD. and others
Versus
FULL BENCH OF NATIONAL INDUSTRIAL RELATIONS COMMISSION and others
Writ Petitions Nos.4277, 4269, 4274, 4275 of 2021 and 5 to 9 of 2022, decided on 10th October, 2022.
(a) Industrial Relations Act (X of 2012)---
----Ss.33 & 54(h)(i)---Civil Procedure Code (V of 1908), O.XIII, Rr. 4, 5, 6 & 7---Constitution of Pakistan, Art.199---Constitutional petition---National Industrial Relation Commission---Jurisdiction---Trans-provincial establishment---Documentary evidence, bringing on record---Procedure---Petitioner / employer was aggrieved of acceptance of grievance petitions filed by respondent / employee---Plea raised by petitioner / employer was that National Industrial Relation Commission had no jurisdiction in the matter---Validity---Petitioner / employer was a trans-provincial company---Whether grievance of respondent was individual or an industrial dispute, in both the cases, it was National Industrial Relation Commission that had exclusive jurisdiction, and not the Labour Court---No finding of fact rendered by National Industrial Relation Commission regarding orders in question whether respondent / employee accepted payment of dues for services rendered or whether clearance certificate relied upon by petitioner / employer represented full and final settlement of benefits due upon termination and whether such acceptance was voluntary or not--- Order passed by National Industrial Relation Commission did not reflect any independent application of judicial mind--- Courts /Tribunals had to ensure that documents produced in evidence were endorsed in accordance with O. XIII, R. 5, C.P.C., unless the same were found inadmissible, in which case those were to be rejected as per O.XIII, R.4, C.P.C.---In case an objection was raised to admissibility of any documentary evidence, the Court / Tribunal was to determine such objection---Where Court considered a document relied upon as evidence by either side to be inadmissible, it would endorse the particulars as stipulated in O.XIII, R.6, C.P.C. together with the statement of it, having been rejected, as per O. XIII, R. 7(2), C.P.C.---Documents not admitted in evidence were not form part of the record and were to be returned to the person producing it---Clearance certificate available on record was neither exhibited nor rejected as required under O.XIII C.P.C.---High Court set aside orders passed by National Industrial Relation Commission and remanded the matter to decide grievance petition afresh---Constitutional petition was allowed accordingly.
Pak Arab Refinery Limited v. Muhammad Rashid 1999 SCMR 373; Mustehkum Cement Limited v. Abdul Rashid 1998 SCMR 644; Gulzar Hussain Shah v. The Chairman Sindh Labour Appellate Tribunal 1999 PLC 348; Muhammad Tahir Suhaib v. Muhammad Ali Jinnah University, Karachi 2017 PLC 244; Pakistan Telecommunication Company Limited v. Muhammad Dilpazeer Abbasi 2016 PLC 367 and Climax Engineering Company Ltd., Gujranwala v. Shoaib Ahmed and another 1985 PLC 400 ref.
(b) Constitution of Pakistan---
----Art.199---Constitutional petition---High Court, jurisdiction of---Scope---High court in exercise of its constitutional jurisdiction does not act like a court of appeal---High Court neither reappraises evidence, nor substitutes concurrent findings of fact recorded by the lower fora with its own finding solely on the ground that another view was possible on the same evidence---Any party approaching High Court under Art.199 of the Constitution has to demonstrate that there was a gross misreading or non-reading of evidence or jurisdiction error, or such legal infirmity that has caused miscarriage of justice.
Abdul Rehman Qadar for Petitioners.
Muhammad Jahangir Khan for Respondent No.3.
2023 P L C 206
[Islamabad High Court]
Before Arbab Muhammad Tahir, J
PEARL CONTINENTAL HOTELS NATIONAL LABOUR UNION through President
Versus
NATIONAL INDUSTRIAL RELATIONS COMMISSION through Chairman and 4 others
Writ Petition No.706 of 2022, decided on 12th September, 2022.
Industrial Relations Act (X of 2012)---
----Ss.53 & 58---Constitution of Pakistan, Art. 199---Constitutional petition---Industrial dispute---Alternate and efficacious remedy---Petitioner / employer company was aggrieved of order passed by Member National Industrial Relation Commission as Authorized Officer, who had stopped referendum proceedings for determination of Collective Bargaining Agent (CBA)---Validity---Appeal was provided under S. 58 of Industrial Relations Act, 2012, to Full Bench of the Commission only against an order, decision etc. passed by a Member of the Commission---Remedy of appeal against award or decision or order passed by any Bench of the Commission was available before the Commission under S. 58 (1) of Industrial Relations Act, 2012---Appeal was to be disposed of in terms of S.58 (2) of Industrial Relations Act, 2012---Order passed by Member NIRC as Authorized Officer was in fact an order against which statutory remedy of appeal was provided in terms of S. 58 of Industrial Relations Act, 2012---Where statute under which order was assailed itself had provided remedy of appeal, Court of constitutional causes ought to be reluctant to by-pass special statute and should not resort to exercise judicial review---High Court declined to interfere in the orders passed by NIRC---Constitutional petition was dismissed, in circumstances.
1988 PLC 286 ref.
Willam Lawrence v. Government of Pakistan and others 1986 SCMR 1077; Government of Pakistan through Secretary, Ministry of Interior v. Muhammad Yasin and others PLD 1997 SC 401; A1 Ahram Builders (Pvt.) Ltd. v. Income Tax Appellate Tribunal PLD 1993 SC 539; Muhammad Jameel Sohail and others v. The Income Tax Officer/Tax Recovery Officer, Lahore, (C.P.S.L.A No.832-L of 1995); Wealth Tax Officer and others v. Shaukat Afzal and others 1993 SCMR 1810; Syed Qamar Ahmad and others v. Anjum Zafar and others 1994 SCMR 65; Ch. Muhammad Ismail v. Fazal Zada, Civil Judge, Lahore and 20 others PLD 1996 SC 246; Indus Trading and Contracting Company v. Collector of Customs (Preventive) Karachi and others 2016 SCMR 842 and A1 Ahram Builders (Pvt.) Ltd. v. Income Tax Appellate Tribunal 1993 SCMR 29 rel.
Hafiz Arfat Ahmed Ch., Ms. Kashifa Niaz Awan and Tariq Zaman Ch. for Petitioner.
Syed Naeem Bukhari and Muhammad Imad Khan for Respondent No.5.
2023 P L C 41
[Sindh High Court]
Before Nadeem Akhtar and Adnan-ul-Karim Memon, JJ
MUHAMMAD WARIS and others
Versus
FEDERATION OF PAKISTAN through Secretary Human Resources and others
Constitutional Petitions Nos.D-3026 of 2015, D-5644 to D-5653, D-6385 to 6389 of 2016, D-434 to D-440, D-442, D-443, D-528 to D537 of 2017, decided on 16th November, 2020.
Employees' Old-Age Benefits Act (XIV of 1976)---
----S.22---Old-age pension---Scope---Petitioners, who were paid full service benefits under the Voluntary Separation Scheme (VSS), claimed pensionary benefits under the Employees' Old-Age Benefits Act, 1976---Validity---Prime object of the Employees' Old-Age Benefits Scheme, administered by the Employees' Old-Age Benefits Institution, was to provide subsistence pension to workers, employees/insured persons from the private sector who retired after completing a minimum period of fifteen years of insurable employment---Petitioners had admitted in their pleadings that they had voluntary opted for VSS introduced by the company, resultantly, petitioners, at their own instance, were given severance pay, separation bonus, medical benefits, leave encashment, and housing allowance depending upon their length of service, as computed under the offered scheme---Petitioners were not qualified for pension under S.22(1) of the Employees' Old-Age Benefits Act, 1976 being VSS beneficiaries---Constitutional petitions were dismissed.
Syed Ansar Hussain Zaidi Petitioner in person for Petitioners.
Zia-ul-Haq Makhdoom and Muhammad Azhar Mahmood for Respondent No.1 / PTCL.
Muhammad Nishat Warsi, DAG along with Mukhtar Ali, Executive Officer, Law Department, EOBI Head Office, Karachi.
2023 P L C 49
[Sindh High Court]
Before Muhammad Junaid Ghaffar and Agha Faisal, JJ
HYDERABAD DEVELOPMENT AUTHORITY through Executive Legal Officer
Versus
PROVINCE OF SINDH through Chief Secretary and 2 others
Constitutional Petition No.D-7684 of 2019 (and others connected petitions) decided on 26th August, 2022.
Constitution of Pakistan---
----Art.199---Regularization of service---Constitutional petition---Maintainability---Concurrent findings of facts by two forums below---Petitioner / Authority was aggrieved of orders passed by Labour Court and Labour Appellate Tribunal in favour of respondents / employees---Validity---High Court in exercising Constitutional jurisdiction under Art.199 of the Constitution could be regarded as on a higher pedestal as against other ordinary statutory jurisdiction---Constitutional provision was not designed to empower High Court to interfere with decisions of Court or Tribunal of inferior jurisdiction, mainly because in its opinion the decision was wrong---High Court could not interfere in its Constitutional jurisdiction with findings of facts recorded by competent Court, tribunals or authorities unless such findings were result of misreading and non-reading of material evidence, or were based on no evidence amounting to an error of law and justified rather called for interference--- High Court declined to interfere in concurrent findings of facts by two forums below, as no case for any exception was made out by the petitioner/ Authority--- Constitutional petition were dismissed, in circumstances.
Lahore Development Authority v. Abdul Shafique PLD 2000 SC 207; Ghulam Muhammad v. Province of Sindh and another 2014 PLC (C.S.) 797; National Bank of Pakistan v. Punjab Labour Court No. 5, Faisalabad and 2 others 1993 SCMR 672; Faqir Muhammad v. The Director of National Savings, Multan Region, Multan 1992 PLC 163, Province of Punjab and 3 others v. Gul Hassan and 33 others 1992 PLC 924; Bibi Abida v. The Sindh Labour Appellate Tribunal and 2 others PLD 1985 Kar. 112; Executive Engineer Central Civil Division v Abdul Aziz and others PLD 1996 SC 610; Saleh Muhammad Soomro v Zarai Taraqqiati Bank Limited 2009 PLC 196 and Divisional Superintendent Quetta Postal Division v. Muhammad Ibrahim 2022 PLC 62 ref.
Muhammad Hussain Munir and others v. Sikandar and others PLD 1974 SC 139; Ali Muzaffar v. Syed Muhammad Ali Abedi 2006 CLC 379; Mohibullah & Co. v. Bahauddin 1990 SCMR 1070; Mahmooda Begum v. Taj Din 1992 SCMR 809; Muhammad Suleman v. Zubaida Bibi 1996 SCMR 1965; Haider Khan v. Mustareen PLD 2001 SC 207; Lehrasab Khan v. Aqeel-Un-Nisa 2001 SCMR 338; Arshad Mahmood v. ADJ 2001 SCMR 516; Muhammad Sadiq v. Elahi Bakhsh 2006 SCMR 12; Allies Book Corporation v. Sultan Ahmad 2006 SCMR 152; Shajar Islam v. Muhammad Siddique PLD 2007 SC 45; S.L.I.C. v. Jaffar Hussain PLD 2009 SC 194; Waqar Haider v. JFC 2009 SCMR 1243 and Uzma Naveed Choudhry v. Federation of Pakistan PLD 2022 SC 783 rel.
Jamal Bukhari and Sanaullah for Petitioners.
Ali Safdar Deepar, A.A.G for Respondents Nos.1 and 2.
Muhammad Nishat Warsi for Private Respondents.
Date of hearing: 26th August, 2022.
| | | | | --- | --- | --- | | 1. | Const. P. 7684/2019 | Hyderabad Development Authority v. Province of Sindh and others | | 2. | Const. P. 7683/2019 | Hyderabad Development Authority v. Province of Sindh and others | | 3. | Const. P. 7685/2019 | Hyderabad Development Authority v. Province of Sindh and others | | 4. | Const. P. 7686/2019 | Hyderabad Development Authority v. Province of Sindh and others | | 5. | Const. P. 7687/2019 | Hyderabad Development Authority v. Province of Sindh and others | | 6. | Const. P. 7688/2019 | Hyderabad Development Authority v. Province of Sindh and others | | 7. | Const. P. 7689/2019 | Hyderabad Development Authority v. Province of Sindh and others | | 8. | Const. P. 7690/2019 | Hyderabad Development Authority v. Province of Sindh and others | | 9. | Const. P. 7691/2019 | Hyderabad Development Authority v. Province of Sindh and others | | 10. | Const. P. 7692/2019 | Hyderabad Development Authority v. Province of Sindh and others | | 11. | Const. P. 7693/2019 | Hyderabad Development Authority v. Province of Sindh and others | | 12. | Const. P. 7734/2019 | Hyderabad Development Authority v. Province of Sindh and others | | 13. | Const. P. 7735/2019 | Hyderabad Development Authority v. Province of Sindh and others | | 14. | Const. P. 7736/2019 | Hyderabad Development Authority v. Province of Sindh and others | | 15. | Const. P. 7737/2019 | Hyderabad Development Authority v. Province of Sindh and others | | 16. | Const. P. 7738/2019 | Hyderabad Development Authority v. Province of Sindh and others | | 17. | Const. P. 7739/2019 | Hyderabad Development Authority v. Province of Sindh and others | | 18. | Const. P. 7740/2019 | Hyderabad Development Authority v. Province of Sindh and others | | 19. | Const. P. 7741/2019 | Hyderabad Development Authority v. Province of Sindh and others | | 20. | Const. P. 7742/2019 | Hyderabad Development Authority v. Province of Sindh and others | | 21. | Const. P. 7743/2019 | Hyderabad Development Authority v. Province of Sindh and others | | 22. | Const. P. 7744/2019 | Hyderabad Development Authority v. Province of Sindh and others | | 23. | Const. P. 7745/2019 | Hyderabad Development Authority v. Province of Sindh and others | | 24. | Const. P. 7746/2019 | Hyderabad Development Authority v. Province of Sindh and others | | 25. | Const. P. 7747/2019 | Hyderabad Development Authority v. Province of Sindh and others | | 26. | Const. P. 7748/2019 | Hyderabad Development Authority v. Province of Sindh and others | | 27. | Const. P. 7853/2019 | Hyderabad Development Authority v. Province of Sindh and others | | 28. | Const. P. 7854/2019 | Hyderabad Development Authority v. Province of Sindh and others | | 29. | Const. P. 7855/2019 | Hyderabad Development Authority v. Province of Sindh and others | | 30. | Const. P. 7856/2019 | Hyderabad Development Authority v. Province of Sindh and others | | 31. | Const. P. 7857/2019 | Hyderabad Development Authority v. Province of Sindh and others | | 32. | Const. P. 7858/2019 | Hyderabad Development Authority v. Province of Sindh and others | | 33. | Const. P. 7859/2019 | Hyderabad Development Authority v. Province of Sindh and others | | 34. | Const. P. 7860/2019 | Hyderabad Development Authority v. Province of Sindh and others | | 35. | Const. P. 7861/2019 | Hyderabad Development Authority v. Province of Sindh and others | | 36. | Const. P. 7862/2019 | Hyderabad Development Authority v. Province of Sindh and others | | 37. | Const. P. 7863/2019 | Hyderabad Development Authority v. Province of Sindh and others | | 38. | Const. P. 7864/2019 | Hyderabad Development Authority v. Province of Sindh and others | | 39. | Const. P. 7865/2019 | Hyderabad Development Authority v. Province of Sindh and others | | 40. | Const. P. 7866/2019 | Hyderabad Development Authority v. Province of Sindh and others | | 41. | Const. P. 7893/2019 | Hyderabad Development Authority v. Province of Sindh and others | | 42. | Const. P. 7894/2019 | Hyderabad Development Authority v. Province of Sindh and others | | 43. | Const. P. 7895/2019 | Hyderabad Development Authority v. Province of Sindh and others | | 44. | Const. P. 7896/2019 | Hyderabad Development Authority v. Province of Sindh and others | | 45. | Const. P. 7897/2019 | Hyderabad Development Authority v. Province of Sindh and others | | 46. | Const. P. 7898/2019 | Hyderabad Development Authority v. Province of Sindh and others | | 47. | Const. P. 7899/2019 | Hyderabad Development Authority v. Province of Sindh and others | | 48. | Const. P. 7900/2019 | Hyderabad Development Authority v. Province of Sindh and others | | 49. | Const. P. 7901/2019 | Hyderabad Development Authority v. Province of Sindh and others | | 50. | Const. P. 7902/2019 | Hyderabad Development Authority v. Province of Sindh and others | | 51. | Const. P. 7903/2019 | Hyderabad Development Authority v. Province of Sindh and others | | 52. | Const. P. 7904/2019 | Hyderabad Development Authority v. Province of Sindh and others | | 53. | Const. P. 7905/2019 | Hyderabad Development Authority v. Province of Sindh and others | | 54. | Const. P. 7906/2019 | Hyderabad Development Authority v. Province of Sindh and others | | 55. | Const. P. 8352/2019 | Hyderabad Development Authority v. Province of Sindh and others | | 56. | Const. P. 8353/2019 | Hyderabad Development Authority v. Province of Sindh and others | | 57. | Const. P. 8354/2019 | Hyderabad Development Authority v. Province of Sindh and others | | 58. | Const. P. 8355/2019 | Hyderabad Development Authority v. Province of Sindh and others | | 59. | Const. P. 8356/2019 | Hyderabad Development Authority v. Province of Sindh and others | | 60. | Const. P. 8357/2019 | Hyderabad Development Authority v. Province of Sindh and others | | 61. | Const. P. 8358/2019 | Hyderabad Development Authority v. Province of Sindh and others | | 62. | Const. P. 8359/2019 | Hyderabad Development Authority v. Province of Sindh and others | | 63. | Const. P. 8360/2019 | Hyderabad Development Authority v. Province of Sindh and others | | 64. | Const. P. 8361/2019 | Hyderabad Development Authority v. Province of Sindh and others | | 65. | Const. P. 8362/2019 | Hyderabad Development Authority v. Province of Sindh and others | | 66. | Const. P. 8363/2019 | Hyderabad Development Authority v. Province of Sindh and others | | 67. | Const. P. 8364/2019 | Hyderabad Development Authority v. Province of Sindh and others |
2023 P L C 62
[Sindh High Court (Hyderabad Bench)]
Before Adnan-ul-Karim Memon, J
IFTIKHAR AHMED
Versus
Messrs ZEAL PAK CEMENT FACTORY LIMITED through Factory Manager and 2 others
Constitutional Petition No.S-134 of 2014, decided on 14th September, 2020.
Constitution of Pakistan---
----Art.199---Constitutional petition---Delay in payment of service benefits---Scope---Main grievance of the petitioner was delay in payment of his service dues due to lethargic attitude of the respondent-factory for that he had suffered more than ten years and nine months in litigation, therefore, he claimed an increase in the payment---Respondent submitted that the petitioner had initially claimed a certain amount and now an amount in excess of the claimed amount had been paid as such there was no present outstanding amount to be paid to the petitioner---High Court being not satisfied with the calculation made by the parties directed the Additional Registrar of the Court to consult the District Accounts Officer to assist him to undertake the exercise of recalculation of service benefits of the petitioner including delay in payment to the petitioner---Constitutional petition was disposed of accordingly.
Petitioner present in person.
Allah Bachayo Soomro Addl. A.G. for Respondent.
2023 P L C 95
[Sindh High Court]
Before Muhammad Junaid Ghaffar and Agha Faisal, JJ
NESTLE PAKISTAN LTD. through Plant Manager
Versus
FULL BENCH OF NATIONAL INDUSTRIAL RELATION COMMISSION and 2 others
Constitution Petition No.D-4469 and C.M.A. No.19530 of 2019, decided on 11th October, 2022.
(a) Industrial Relations Act (X of 2012)---
----S.33---Redress of individual grievances---Removal from service---Submission of bogus medical claim---Quantum of punishment---Scope---Respondent was removed from service on the allegation of submission of bogus medical claims---Grievance petition filed before the Single Bench of NIRC was dismissed---Decision was reversed by the Full Bench of NIRC vide impugned order---Validity---Respondent appeared to have made no serious endeavour to dispute the facts relied upon by the petitioner---Full Bench of NIRC had erred in disregarding the preponderance of uncontroverted evidence/record and rested its contrary findings upon the administrator/doctor not having been examined---Respondent had accorded his satisfaction in respect of the inquiry proceeding and appended his signature to the report without any manifest demur---Charge against the respondent was proven and it was for the petitioner-company (employer) to assess the quantum of punishment, permissible within the confines of law---Writ petition was allowed and the impugned judgment was set aside.
China Petroleum Engineering Construction v. Khattak Allied Construction Company 2004 SCMR 1777; Muhammad Usman Rajar v. SLAT and others 2011 PLC 24; Muhammad Naeem Khan v. NBP and others 2021 SCMR 785; Pakistan Tobacco Company Limited v. Channa Khan and others 1980 PLC 981 and Ghulam Mustafa Channa v. MCB and others 2008 SCMR 909 ref.
Raja Javed Akhtar v. EVP UBL and others 1978 SCMR 212 distinguished.
(b) Industrial Relations Act (X of 2012)---
----S.33---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O. 15---Redress of individual grievances---Removal from service---Whether delay in informing the workman about misconduct---Respondent was removed from service on the allegation of submission of bogus medical claims---Grievance petition filed before the Single Bench of NIRC was dismissed---Decision was reversed by the Full Bench of NIRC vide impugned order---Contention of respondent was that he was not informed in writing of the alleged misconduct within one month---Validity---Petitioner-company (employer) had found out about the misconduct on 12-11-2015, when informed by the insurance company---Respondent was informed on 01-12-2015---It was never the respondent's case before the High Court that the petitioner had knowledge of the misconduct at any time prior to the communication received from the insurance company; hence, no case was made out to consider the petitioner's issuance of the information/show-cause notice as being time barred---Writ petition was allowed and the impugned judgment was set aside.
Muhammad Yousaf Khan v. HBL and others 2004 SCMR 149; Muhammad Ali v. SLAT NLR 2017 Labour 107 and Novartis v. Muhammad Arif 2005 PLC 351 ref.
(c) Constitution of Pakistan---
----Art.199---Constitutional jurisdiction of High Court---Scope---Writ jurisdiction is not that of a subsequent forum of statutory appeal and is restricted inter alia to appreciate whether any manifest illegality is apparent from the judgment impugned---It is also duty of the High Court to ensure that any discretion exercised by a subordinate forum was done judiciously pursuant to sound legal principles and not contrary to law or usage having the force of law.
Faisal Mahmood Ghani for Petitioner.
Ali Asadullah Bullo for Respondents.
2023 P L C 110
[Sindh High Court]
Before Muhammad Faisal Kamal Alam, J
ZAFAR AHMED
Versus
ASSOCIATES PRESS OF PAKISTAN through Director General and 2 others
Suit No.614 of 2003, decided on 22nd August, 2022.
Newspaper Employees (Conditions of Service) Act (LVIII of 1973)---
----S.2 (h)---Suit for recovery of wages, gratuity and damages---Special and general damages---Principle---Plaintiff was employee of Associated Press of Pakistan who sought recovery of his service dues after his retirement--- Contention of plaintiff was that he had been given only 42.5% of last drawn salary as pension, instead of 70% of the salary---Plaintiff also sought recovery of arrears of pension and Special and General damages from defendants---Validity---Defendants illegally deprived plaintiff from benefits of enhanced pension since 01-07-2000---Defendants should have considered service rendered by plaintiff to the Organization---Plaintiff claimed special damages, which could not be awarded in absence of tangible evidence and positive evidence, which plaintiff was unable to bring on record---Grant of general damages was discretion of Court, taking into account facts of a case---Defendants illegally deprived plaintiff from payment of enhanced rate of pension, thus caused him continuous monetary loss, besides mental anguish---High Court directed defendants to pay general damages along with arrears of pension from 01-07-2000 till date and plaintiff was also entitled for pension at the rate of 70%as determined in 7th Wage Board Decision---Suit was decreed accordingly.
Independent Newspapers Corporation (Pvt.) Ltd. and another v. Chairman, Fourth Wage Board and Implementation Tribunal For Newspapers Employees, Government of Pakistan, Islamabad 1993 SCMR 1533 ref.
S. Ashfaq Hussain Rizvi along with Asif Ali Siyal for Plaintiff.
Sardar Sultan Jehangir along with Pervez Aslam, Director, Associated Press of Pakistan for Defendants Nos.2 and 3.
Nemo. for Defendant No.3.
2023 P L C 125
[Sindh High Court]
Before Ahmed Ali M. Shaikh, C.J, and Yousuf Ali Sayeed, J
Messrs FAUJI FERTILIZER COMPANY LIMITED through Authorized Person
Versus
Syed JAWED ALI SHAH and 2 others
C.P. No.D-521 of 2021, decided on 11th November, 2022.
Civil Procedure Code (V of 1908)---
----S. 12 (2)---Constitution of Pakistan, Art. 199---Reinstatement in service---Constitutional petition---Fraud, misrepresentation and lack of jurisdiction---Proof---Petitioner company aggrieved of reinstatement of respondents / employees in service by National Industrial Relation Commission preferred constitutional petitions which were dismissed as withdrawn---Petitioner company invoked jurisdiction of S.12(2), C.P.C. to seek setting aside of orders passed by High Court---Validity---There was no ground for a case of fraud or misrepresentation and application under S.12(2), C.P.C. was bereft of any assertion that could validly support a plea on either score---Failure to exercise jurisdiction was a concept far removed from that of a want of jurisdiction, which High Court did not suffer from---Petitioner company could not raise such a plea when it had itself came forward to invoke such jurisdiction and was seeking a decision on merits---High Court did not fail to exercise jurisdiction as the matter was heard and it was during the course of hearing when a certain view was tentatively expressed as to merits of the case that counsel appearing on behalf of petitioner company saw fit to stage what could, at best, be called a strategic retreat by withdrawing the petition, so as to fall back on the matter then pending before another Bench of High Court as a device to forestall encashment guarantees---High Court declined to interfere in the orders passed earlier, as application under S.12(2), C.P.C. was devoid of merit and misconceived---Application was dismissed, in circumstances.
Utility Stores Corporation of Pakistan Limited v. Punjab Labour Appellate Tribunal and others PLD 1987 SC 447; Muhammad Hussain Munir v. Sikandar PLD 1974 SC 139; Zulfiqar Khan Awan v. Secretary, Industries and others 1974 SCMR 530; Adamjee Insurance Company Ltd v. Pakistan through the Secretary to the Government in the Ministry of Finance, Islamabad and 5 others 1993 SCMR 1798; The Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others PLD 1975 SC 331 and Ch. Muhammad Ismail v. Fazal Zada, Civil Judge, Lahore and 20 others PLD 1996 SC 246 ref.
Salahuddin Ahmed for Petitioner.
Syed Jawed Ali Shah Respondent No.1 in person.
National Industrial Relations Commission, Sukkur Bench Respondent No.2.
Jamshed Ahmed Faiz for Respondent No.3 (NIRC Karachi).
2023 P L C 155
[Sindh High Court (Hyderabad Bench)]
Before Zulfiqar Ahmad Khan, J
Messrs J.S. BANK LIMITED through Attorney
Versus
PROVINCE OF SINDH through Secretary, Labour and Employment, Karachi
Constitution Petition No.S-398 and M.A. No.1021 of 2021, decided on 18th April, 2022.
Sindh Payment of Wages Act, 2015 (VI of 2017)---
----Ss. 2(1)(b), 2(1)(d), 2(1)(i), 3 & 15---Industrial Relations Act (X of 2012), S. 33---Claims arising out of deductions from wages or delay in payment of wages and penalty for malicious or vexatious claims---Redress of individual grievances---Jurisdiction of forum established under special law---Scope---Petitioner assailed orders passed by the Authority appointed under subsection (1), S.15 of the Sindh Payment of Wages Act, 2015, in favour of respondent who was an Assistant Manager of the (petitioner) Bank---Validity---With regards the respondent not being a "workman" under the Sindh Payment of Wages Act, 2015, such views of the petitioner were not well founded as S.2(1)(b) of the Sindh Payment of Wages Act, 2015, included Bank in the list of Commercial Establishments and being an Assistant Manager, he also did not have powers to hire/fire nor was a person who could be considered to be in overall control of the Establishment, hence escaped from the explanation of "Manager" who was declared an incompetent to approach the Authority---Specialized law always overrode a general law and where Sindh Payment of Wages Act, 2015, was available specially for issues pertaining to wages adjudication of such grievance under Industrial Relations Act, 2012, as argued by the petitioner, or a different general law would be an abuse of process of law---Constitutional petition was dismissed.
Messrs Sui Southern Gas Company Ltd. and others v. Federation of Pakistan and others 2018 SCMR 802; Divisional Superintendent, Quetta Postal Division and others v. Muhammad Ibrahim and others 2022 SCMR 292; Messrs K-Electric, Limited through Authorized Personnel v. Muhammad Aslam Shah and others 2021 PLC 108; Pakistan Telecommunication Company Ltd. v. Member NIRC and others 2014 SCMR 535; Soneri Bank Ltd. V. Federation of Pakistan through Secretary, Law and others 2017 PLC 65; Nakshbandi Industries Ltd. through Factory Manager v. Authority under Payment of Wages Act through Presiding Officer and another 2010 PLC 401; Syed Match Company Ltd. through Managing Director v. Authority under Payment of Wages Act and others 2003 PLC 395 and Mehmood-ul-Hassan and others v. Government of Sindh and others 2011 PLC 258 ref.
Imran Ali Borano for Petitioner.
Manzoor Ali Jessar for Respondent No.3.
Ashfaque Nabi Kazi, Assistant Attorney General for Pakistan.
Wali Muhammad Jamari, Assistant A.G.
2023 P L C 169
[Sindh High Court (Hyderabad Bench)]
Before Muhammad Faisal Kamal Alam, J
Messrs TNB LIBERTY POWER LTD.
Versus
REGISTRAR OF TRADE UNIONS and others
C.P. No.S-1005 of 2015, decided on 13th March, 2017.
Sindh Industrial Relations Act (XXIX of 2013)---
----Ss.2(ix), 2(xxxii) & 26---Trans-provincial establishment---Election schedule of workers union---Petitioner/corporate entity challenged the act of respondent/Registrar of Trade Unions ("Registrar") as to give programme of the Election Schedule, i.e. referendum through secret ballot for determining the Collective Bargaining Agent ("CBA") and also issued Certificate in favour of respondent/certain power plant workers union ("Union") certifying the latter as CBA---Petitioner contended that the said act of the Registrar was colourable exercise of powers and tainted with mala fide; that petitioner was a Trans-Provincial Establishment, so the Sindh Industrial Relations Act, 2013, was not applicable thereto---Respondent/Registrar contended that petitioner had invoked the jurisdiction of High Court with unclean hands by suppressing the material facts by consciously concealing the earlier decision of the High Court; that the present petition was not maintainable as the adequate remedy was available under the Act, 2013; and that the petitioner could not take advantage of Trans-Provincial concept as it did not have branches in other province, but it only had registered office in the "Federal Capital"---Held, that it was undisputed fact that petitioner's registered Office was situated at Islamabad ("Federal Capital"), whereas, its power generation plant/Unit was in the Province of Sindh---Sindh Industrial Relation Act, 2013, was a Sindh specific statute which would relate to an entity which had its office/factory/industrial undertaking, so on and so forth, within the territorial boundaries of Sindh Province---Registration certificate even issued under the Factories Act, 1934, could at best be taken as a compliance of the legal requirement, but the same could not change the status of petitioner from a trans-provincial establishment/entity to the Provincial one---Earlier decision of the High Court did not adversely affect the merits of the present case, as the present grievance of petitioner was that after promulgation of Industrial Relations Act, 2012 and Sindh Industrial Relations Act, 2013, respondent/Registrar could not justify its impugned action of holding Poll for determination of CBA on 5 years old application of the respondent Union and the same did not have the jurisdiction to determine the CBA of the petitioner establishment as the Act, 2013, was not applicable---Mala fide / unreasonableness/illegality per se was ex facie present on part of the Registrar---Section 26 of the Act, 2013, was not operating as a bar against filing of present petition---Constitutional petition was accepted accordingly.
Sardar Sultan Jahangir Khan for Petitioner.
Syed Sardar Hussain Shah for Respondent No.2.
Ali Abbas Memon, State Counsel.
2023 P L C 186
[Sindh High Court]
Before Salahauddin Panhwar and Adnan-ul-Karim Memon, JJ
Messrs TELENOR MICROFINANCE BANK LIMITED through authorized representative
Versus
PROVINCE OF SINDH, through Secretary Labour and Human Resource Department and 3 others
C.P. No.D-6712 of 2020, decided on 7th October, 2021.
Sindh Employees' Social Security Act (VI of 2016)-
----Ss. 1(3), 22, 23 & 70---Constitution of Pakistan, Art. 199---Constitutional petition---Registration of workers---Scope---Petitioner / establishment sought direction to respondents/Sindh Employees Social Security Institution (SESSI) to issue registration cards for its insured workers/employees---Validity-- Establishments (employers) could not be left to continue ignoring their obligations to get their employees secured as well as to pay contributions---Social Security institution was given powers to examine such record as well to make inquiry with regard to 'employees' of establishment as well as their entitlement to earn status of secured persons---Mere failure of establishment / employer could not stop the Institution under S. 23(3) of Sindh Employees' Social Security Act, 2016 from performing its obligations i.e. to take legal course/initiatives for maintaining record of workers, liable to earn status of secured persons---In whole Province of Sindh there was not a single Court under Sindh Employees' Social Security Act, 2016--- Provincial Government notified two Labour Courts as Social Security Court but it was not a serious efforts made by Provincial Government in favour of workers (Labours), as Labour Courts were already small in number and overburdened---High Court directed Provincial Government to establish at least one Social Security Court in all Divisions and in Karachi at least four Courts were the need of the time, so as to help in determining issues of the most unprivileged class i.e. workers/labours--- Respondents / Institution agreed for issuance of registration Cards including with petitioner---High Court directed petitioner / establishment to ensure compliance of required formalities and to get all workers registered---Constitutional petition was allowed accordingly.
Standard Printing Press's case PLD 1978 Kar. 945; Sunshine Dairies's case PLD 1976 Kar. 1228; Naveed Ullah Khan Bhatti's case 2006 PLC 593; Spencer & Company (Pak) Ltd's. case 1998 SCMR 440; Sindh Abadgars Sugar Mills Limited's case 2009 SCMR 367; 2010 PLC 489; PLD 2002 SC 726; PLD 1956 SC 445; 2008 PLC (C.S.) 949 and National Embroidery Mills Ltd. and others v. Punjab Social Security Institution 1993 SCMR 1201 ref.
Waheed Ali Ghumro for Petitioner.
Jawad A. Sarwana for SESSI.
Abdul Wahab Baloch DAG.
Ali Safdar Depar, Syed Hussain Shah and Abdul Sadiq Tanoli, A.A.Gs. for Respondents.
2023 P L C 238
[Sindh High Court]
Before Muhammad Iqbal Kalhoro and Adnan ul Karim Memon, JJ
Messrs MATCO FOODS LTD. and others
Versus
FEDERATION OF PAKISTAN through Secretary, Ministry of Overseas Pakistanis and Human Resource Development and 2 others
Constitutional Petition No. 7347 of 2022 (and connected petitions), decided on 22nd February, 2023.
(a) Employees' Old-Age Benefits Act (XIV of 1976)---
----S. 2(p)---Wages---Scope---Petitioners' (establishments as defined in S. 2(e) of the Employees' Old-Age Benefits Act, 1976) assailed the demand raised by Employees' Old-Age Benefits Institution while keeping in consideration a notification issued under the Minimum Wages Ordinance, 1961, wherein monthly wage was fixed as Rs.25000 per month---Claim of petitioners' was that the word "wages" means the rates of wages as declared under the Minimum Wages for Unskilled Workers Ordinance, 1960 and that the rate of wages as per the Ordinance, 1960, was Rs.13000 per month---Validity---Section 2(p) of Employees' at Age Benefit Act, 1976, was amended in the present form through S. 5 of the Finance Act, 2005---Before that the wages defined in S. 2(p) was wages declared under the Minimum Wages Ordinance, 1961---Supreme Court in the case reported as Workers' Welfare Funds, Ministry of Human Resources Department, Islamabad and others v. East Pakistan Chrome Tannery (Pvt.) Ltd. Lahore and others [PLD 2017 Supreme Court 28] while discussing implication of amendments brought about in various Acts including the Employees' Old-Age Benefits Act, 1976 through Money Bill i.e. the Finance Act by passing the regular legislative procedure under Art. 70 of the Constitution, had declared all such amendments to be unlawful and ultra vires the Constitution---As a result, legally and in effect, the definition of wages provided before the Finance Act, 2005, had to be read and applied for the purpose of determining mode and manner of determining the minimum wages for the workers---No illegality was found in the action of the Employees' Old-Age Benefits Institution---Constitutional petitions were dismissed.
Workers' Welfare Funds, Ministry of Human Resources Development, Islamabad and others v. East Pakistan Chrome Tannery (Pvt.) Ltd. Lahore and others PLD 2017 SC 28 foll.
Nishat (Chunian) Limited v. Federation of Pakistan and others (W.P.No.26106/2011) and Shams Textile Mills Ltd. and others's case 1999 SCMR 1477 rel.
(b) Constitution of Pakistan---
----Art. 199---Constitutional petition---Alternate remedy---Scope---Direct approach to the High Court in constitutional jurisdiction by an aggrieved person in ordinary circumstances is not valid.
Zaheer-ul-Hassan for Petitioner.
Barrister Moiz Ahmed for Respondents Nos.2 and 3.
Faiz Ahmed for others Respondents.
Syed Yasir Shah, A.A.G.
2023 P L C 1
[Lahore High Court (Rawalpindi Bench)]
Before Jawad Hassan, J
NOSHERWAN KHAN
Versus
UNITED BANK LIMITED and others
Writ Petition 2752 of 2017, heard on 25th October, 2022.
Industrial Relations Act (X of 2012)---
----S.33---Redress of individual grievances---Dismissal from service---Scope---Petitioner was a cashier in the respondent-Bank and he was dismissed from service on the charge levelled against him on the ground of misconduct and the allegation that he placed four fake currency notes in the stitched packet of Rs.1000/- currency notes---Validity---Gross misconduct of petitioner had resulted in defaming the reputation of the Bank which was almost important for the commercial establishment---Petitioner had joined the inquiry proceedings and had not objected to the inquiry officer that the inquiry was incomplete or it was not satisfactory---Although petitioner had served the Bank for a long period but the humiliation/disgrace and financial loss which the Bank suffered was equally of grave nature as such there seemed to be no warrant for High Court to interfere with the impugned orders passed by the Courts below which otherwise appeared to be just and proper---Procedural irregularities in the financial institutions could not be taken lightly and the officials responsible for such irregularities must be proceeded against for an appropriate action under the relevant rules by the competent authorities---Constitutional petition was dismissed.
Muhammad Ali S. Bukhari v. Federation of Pakistan through Establishment Secretary, Islamabad and 2 others 2008 PLC (C.S.) 428; Izzat Baig Awan v. Habib Bank Limited 2003 PLC (C.S.) 938 = 2004 SCMR 98; Muhammad Yousaf Khan v. Habib Bank Limited through President and others 2004 SCMR 149; Muhammad Yousaf Khan v. Habib Bank Ltd through President and others 2004 PLC (C.S.) 166; Allied Bank of Pakistan Limited through Attorneys and 2 others v. Muhammad Bashir Khan 2006 PLC 39 and Inam-ul-Haq v. Allied Bank Limited and 4 others 2018 PLC 215 ref.
Muhammad Saleem and 2 others v. Agricultural Development Bank of Pakistan, Islamabad and another 2003 PLC (C.S.) 36 and Izzat Baig Awan v. Habib Bank Limited 2003 PLC (C.S.) 938 = 2004 SCMR 98 rel.
Amjad Ghafoor for Petitioner.
Faisal Mehmood Ghanni for Respondents.
2023 P L C 22
[Lahore High Court (Multan Bench)]
Before Abid Hussain Chattha, J
MUHAMMAD IRSHAD and 19 others
Versus
FULL BENCH NATIONAL INDUSTRIAL RELATIONS COMMISSION (NIRC) ISLAMABAD BENCH, LAHORE and 7 others
Writ Petition No.13098 of 2018, heard on 27th May, 2022.
Industrial Relations Act (X of 2012)---
----Ss.57 & 33---Redress of individual grievances---Additional powers of the National Industrial Relations Commission (NIRC)---Transfer of case pending before Labour Court---Scope---Petitioners sought regularization of their employment by filing grievance petitions before the Labour Court---Grievance petitions were resisted on the issue of jurisdiction with respect to Trans-Provincial status of the respondent establishment---National Industrial Relations Commission initially passed order requisitioning the record of the cases from Labour Court but same was recalled---Validity---Jurisdiction conferred by law could not be ousted by the parties or the Court---Such was especially so when S. 57(2)(b) had stipulated that the NIRC may, on the application of a party or of its own motion withdraw from a Labour Court of province any application, proceedings or appeal relating to unfair labour practice which fell within its jurisdiction---Instead of invoking the powers conferred on the NIRC by law to the benefit and facilitation of the petitioners, their grievance was knocked down on a technical ground of concealment of facts---Impugned order being inherently illegal, unlawful, void and corum non judice, was set aside---Constitutional petition was allowed.
Malik Muhammad Tariq Rajwana for Petitioners.
Tafazzal Haider Rizvi, Ms Sumaira Fazil Khan and Ms. Humaira Fazil Khan for Respondents Nos.3, 4, 5 to 8.
2023 P L C 76
[Lahore High Court (Rawalpindi Bench)]
Before Jawad Hassan, J
ALL WORKMEN EMPLOYED BY DANDOT CEMENT COMPANY (PVT.) LTD.
Versus
Messrs DANDOT CEMENT COMPANY (PVT.) LTD. and others
Writ Petition No.2162 of 2022, heard on 19th October, 2022.
(a) Decree---
---Consent decree---Scope---Consent decree or order is nothing but a contract between the parties with command of the Court superadded to it.
Zafar Ahmad and 5 others v. Government of Pakistan through Secretary, Ministry of Production, Islamabad and 6 others 1994 MLD 1612 and Riaz Hussain v. Mazaray Khan 1988 CLC 1129 ref.
(b) Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)---
----Sched., S.O. 11-A, 12, 13 & 14---Punjab Industrial Relations Act (XIX of 2010), S. 33---Closure of manufacturing unit and retrenchment of employees---Legality---Plea on behalf of petitioner (workmen) that an agreement was executed amongst parties in the year 1992, which agreement was later endorsed in proceedings before the Supreme Court, and included a stipulation that the respondent-company would not force in closure of the establishment and that the respondent-company was bound to abide by said stipulation/terms---Validity---Agreement agitated by the petitioner was settled with a management which later skipped out of business handing over/transferring the control / administration to some other management, which management later was replaced with further successive replacements---Objects and purposes now allegedly necessitating closure of the respondent-company did not exist at the time said agreement was allegedly struck amongst parties---Furthermore neither the petitioner initiated any contempt petition for violation of the past order of the Supreme Court based upon compromise/agreement between the parties, nor any grievance petition was filed under section 33 of the Punjab Industrial Relations Act, 2010---Petitioner fell in sleep and slumber not adopting legal recourses structured for it for redressal of its agitated grievance---All the documents/exhibits relied by the Labour Court showed that outdated, deteriorated and technology deficient status of manufacturing plants/units of the respondent-company were the features for the bid of respondent-company forming basis for its closure---Outcome of existing status of the respondent-company was definitely loss of sources, added costs, substandard and outdated products and environment challenges etc.---All said outcomes could not be allowed to remain in field as, in said course, not only the respondent-company, but the petitioner as well were bound to suffer ultimate negative impacts thereof---Prayer of the respondent-company seeking permission for closure of its manufacturing units was grounded on facts that its manufacturing units urgently needed comprehensive Balancing, Modernization and Replacement (BMR) required in order to make the manufacturing units more environment friendly and efficient---Provincial Environment Protection Agency and the Provincial Mines and Minerals department had also found gross deficiencies and risks associated with the same in the manufacturing plant of the respondent-company---With respect to safeguarding rights and interests of retrenched workmen, the Labour Court had allowed application of the respondent-company for purpose of undertaking comprehensive BMR with the condition that after completion of BMR no new employee/workmen would be inducted until and unless preference was given to all retrenched workmen for reemployment and, in course of any violation on part of the respondent-company in connection thereto, aggrieved workmen were at liberty to initiate contempt proceedings before the Labour Court; and that all retired and retrenched employees were entitled for the dues/benefits of services permissible in the eye of law/agreement---Constitutional petition was dismissed.
Salamat Ali v. Fouji Sugar Mills Sangla Hill, District Sheikhopura through it's General Manager and 3 others 2005 PLC 162; Nazeer Ahmad and another v. Presiding Officer and 5 others 1986 PLC 1052; United Bank Limited through President v. Shahmim Ahmed Khan and 41 others PLD 1999 SC 990; Messrs Parry and Co., Ltd., v. P.C. Pal, Judge of The Second Industrial Tribunal, Calcutta and others AIR 1970 SC 1334 and Pioneer Cables Ltd. v. Wali Muhammad 2006 PLC 250 ref.
Agha Muhammad Ali Khan, Advocate Supreme Court for Petitioner.
Shahid Anwar Bajwa and Barrister Ahmad Pervaiz, Advocate Supreme Court for the Respondent No.1.
Malik Itaat Hussain Awan for FBR.
Muhammad Sajid Khan Tanoli, DAG with Abdul Basit Tanoli for Respondents.
Mirza Asif Abbas, Assistant Advocate General.
2023 P L C 163
[Lahore High Court (Multan Bench)]
Before Muhammad Shan Gul, J
PRESIENT, THE BANK OF PUNJAB and 2 others
Versus
AUTHORITY UNDER PAYMENT OF WAGES ACT, VEHARI and another
Writ Petition No.2812 of 2013, heard on 9th June, 2022.
Industrial Relations Act (X of 2012)---
----S. 33---Payment of Wages Act (IV of 1936), S. 15---Civil Procedure Code (V of 1908), O.VII, R.11---Payment of overtime dues---Jurisdiction of forum, determination of---Respondents (bank employees) filed claim against the Petitioner/Bank for recovery of their overtime dues before the Authority appointed under Payment of Wages Act, 1936 ('the Authority')---Petitioner/Bank moved the Authority with an application under O.VII, R.11 of the Civil Procedure Code, 1908, for rejection of claim for want of jurisdiction, however, the Authority dismissed the said application---Contention of the Petitioner/ Bank was that National Industrial Relations Commission ('NIRC') had jurisdiction to adjudicate the matters relating to an organization spread outside the Province---Plea of the respondents/employees was that the NIRC could not entertain the matter of overtime dues---Held, that it was not the nature of dispute but the status of the employer which would be the determining feature for the purpose of gauging jurisdiction in matters related to dispute of labour---In respect of organizations and establishments that transcended provincial territorial boundaries, the provincial quasi-judicial labour forum(s) had no authority or jurisdiction to deal with labour disputes involving such organizations and establishments for the purpose of labour disputes; and claims rooted in labour law could only approach the NIRC and not any provincial forum---Claims preferred by the respondents/ employees before the Authority appointed under Payment of Wages Act, 1936, were not maintainable---High Court, set aside the impugned order rejecting applications filed under O.VII, R.11 of the Civil Procedure Code, 1908 and declared the same(order) to have no legal effect and allowed the said applications moved by the Petitioner/Bank---High Court observed that respondents/employees would be at liberty to approach the NIRC---Constitutional petition was allowed, in circumstances.
Pakistan Telecommunication Company Ltd. v. Member NIRC and others 2014 SCMR 535; Messrs Suit Southern Gas Company Ltd. and others v. Federation of Pakistan and others 2018 SCMR 802; KESC and others v. N.I.R.C. and others PLD 2014 Sindh 553; Imran Maqbool, President MCB Bank Ltd. v. Federation of Pakistan through Secretary Law, Justice and Human Rights Division, Islamabad and others PLD 2019 Lah. 17 and Salim Javed Baig and others v. Federal Ombudsman and others PLD 2016 Lah. 433 ref.
Mushtaq Ahmad Khan for Petitioners.
Ch. Ehsan Ali Gill and Muhammad Usman Khan, A.A.G. for Respondents.
2023 P L C 177
[Lahore High Court (Rawalpindi Bench)]
Before Mirza Viqas Rauf, J
Messrs INDEPENDENT NEWSPAPERS CORPORATION (PVT.) LTD through Authorized Attorney and another
Versus
PROVINCE OF PUNJAB through Director General-Directorate General of Labour Welfare, Labour and Human Resource Department, Government of Punjab and 2 others
Writ Petition No.3383 of 2022, heard on 10th April, 2023.
Industrial Relations Act (X of 2012)---
----Ss. 2(x), 2(xxxii) & 54---Punjab Industrial Relations Act (XIX of 2010), S. 9---Registration of trade union---Trans-provincial establishment---Scope---Petitioner, claiming to be a trans-provincial establishment, challenged the registration of a trade union by the provincial Registrar of Trade Unions under the Punjab Industrial Relations Act, 2010---Validity---Industrial Relations Act, 2012, is applicable to all individuals employed in any establishment or industry in the Islamabad Capital Territory or engaged in business across multiple provinces---As the petitioner was a trans-provincial establishment, the Industrial Relations Act, 2012, was applicable---Section 54(b) of the Industrial Relations Act, 2012, specified that in the case of a trans-provincial establishment, the trade union should be registered by the National Industrial Relations Commission---However, contrary to this provision, the trade union was registered by the Registrar of Trade Unions invoking S. 9 of the Punjab Industrial Relations Act, 2010, which was limited to the province of Punjab and could not be extended to cover trans-provincial establishments---Consequently, the registration certificate of the trade union was declared to have been issued without lawful authority and coram non judice---Constitutional petition was allowed, in circumstances.
Pakistan Telecommunication Company Ltd. v. Member NIRC and others 2014 SCMR 535 and Messrs Unilever Pakistan Foods Limited v. Registrar, Trade Unions and others 2017 PLC 102 rel.
P.T.V. Employees' Ittehad Union, Punjab through Secretary v. Federation of Pakistan through Secretary Government of Pakistan, Ministry of Law and Parliamentary Affairs and 6 others 2018 PLC 136 ref.
Muhammad Mehmood Ali for Petitioners.
Malik Amjad Ali, Additional Advocate General of Punjab for Respondents Nos.1 and 2.
Muhammad Arif Khawaja for Respondent No.3.
2023 P L C 46
[National Industrial Relations Commission]
Before Noor Zaman, Member
ZULFIQAR ALI and others
Versus
CAPITAL DEVELOPMENT AUTHORITY and others
Case No.4B(284) of 2011, decided on 14th April, 2020.
Industrial Relations Act (X of 2012)---
----S.33---Redressal of individual grievances---Promotion---Scope---Petitioners assailed promotion of private respondents who were junior to them according to the seniority list---Contention of respondents was that the post of Security Supervisor was created and educational criteria of Matriculation was laid down for promotion/up-gradation of security guard to the post---Validity---Petitioners did not have Matric qualification, therefore, they were not eligible for promotion to the post of Security Supervisor and the other persons had been legally promoted in line with the policy---Authority had discretion to determine criteria for promotion to a certain post---Petition, having no force, was dismissed.
Arif Hussain v. Federation of Pakistan 2020 PLC (C.S.) 204 and PLD 2015 SC 6 ref.
Hazrat Muneer for Petitioner.
M. Farooq Iqbal Khan for Respondents.
2023 P L C 58
[National Industrial Relations Commission]
Before Noor Zaman, Member
Syed TAHIR SHAH and others
Versus
PRINTING CORPORATION OF PAKISTAN
Case Nos.4B(194), C.M.As. Nos.24B(77) of 2016, 7(11) of 2017, Case No.4B(195) in C.M.A. No.24B(78), Case No.4B(197) in C.M.A. 24B(80), Case No.4B(198), C.M.A. No.24B(81), Case No.4B(202) in C.M.A. No.24B(84) and Case No.4B(201) in C.M.A. No.24B(83) of 2016, decided on 20th April, 2020.
(a) Industrial Relations Act (X of 2012)---
----S.33---Redressal of individual grievances---Reversion of an employee---Scope---Petitioners, who were regular employees, were promoted to next grade after approval of the competent authority but after 35 days they were reverted back to their previous posts---Contention of department was that the Departmental Promotion Committee (DPC) had promoted certain persons including the petitioners for the next grade, without completion of length of service therefore, the Authority after confirmation of said discrepancies had cancelled the promotions---Validity---Some of the petitioners had not completed the required length of service---Dispatch Rider was 100% direct post and Naib Qasid was not eligible for promotion to that post---One of the petitioners was promoted notwithstanding incomplete ACR (Annual Confidential Report) dossier---One of the petitioners was illegally promoted against a post which was not vacant---Departmental Promotion Committee had illegally recommended the promotions---Minimum length of service as required for promotion to certain post was sine qua non for consideration of promotion---Commission in the interest of justice held that the petitioners would be promoted after removal of illegalities---Petition was disposed of accordingly.
(b) Civil service---
----Promotion---Scope---Promotion of an employee takes place after fulfillment of basic requirements of length of service, ACRs, availability of vacancies, etc.
(c) Administration of justice---
----When the doing of anything in a particular manner is sanctioned by law, that thing cannot be done in a different manner.
Syed Sadaqat Ali for Petitioners.
2023 P L C 226
[National Industrial Relations Commission]
Before Noor Zaman, Muhammad Siraj-ul-Islam and Munawar Hussain Toori, Members
ABDUL MAJEED MIRZA
Versus
MUSLIM COMMERCIAL BANK
Miscellaneous Applications Nos.7A (195), 7A (196) of 2022-L in Appeal No.12T (666) of 2016-L, decided on 14th June, 2023.
(a) Industrial Relations Act (X of 2012)---
----S.58---Recalling (setting aside) order of dismissal of appeal for non-prosecution of appellant---Question was that whether the restoration of a case might be decided on the pre-liminary hearing without notice to the other party---Held, that principle of natural justice that "No one should be condemned unheard" is true where it is likely that the other party may suffer irreparable loss if it is left unheard; conversely, where prima facie case and balance of convenience lies in favour of the applicant as well as no valuable right of the opposite party withers away or no injustice is done to the other party, under such circumstances the matter can be decided on the basis of available record especially where technicalities may defeat the end of justice---Considering the restoration of main appeal, the main controversy among the parties should be decided on merits in order to meet the ends of justice rather than knocking out and depriving either of the parties of its valuable rights permanently---Deciding the application of restoration of main appeal on the preliminary stage without serving notice does not harm or infringe any valuable right of the opposite party as the main appeal under which the rights and obligations of the parties can be determined, had been dismissed for non-prosecution rather than on merits.
(b) Industrial Relations Act (X of 2012)---
----Ss. 33, 54 & 58---Recalling (setting aside) order of dismissal of appeal for non-prosecution of appellant---Condonation of delay---Knowledge of dismissal of appeal---Scope---Effective hearing of the case---Scope---Record (order-sheet) revealed that main appeal had been adjourned at least four times, spanning almost a year, on the basis that the Full Bench was not available and the Reader of the Bench kept adjourning the case---Later when the case was listed, the adjournment was granted by the Reader, rather than Judicial Officer/Member, without marking any attendance of the parties by only stating that "Full Bench is not available is adjourned" to next date ; on which/next date the Full Bench held the session and dismissed the appeal for non-prosecution---When there was neither attendance of either party marked on order sheet of previous dates, nor any notice was served for date fixed, then inference could be drawn that applicant or his counsel had no knowledge about the fixation of appeal for the said date(when the appeal was dismissed)---Conduct of the applicant (appellant) and his counsel from the record (earlier orders) was found satisfactory as they kept on appearing before the Commission on various dates; it could not be inferred that they were not vigilant---Applicant / appellant or his counsel were unable to attend the court and were prevented by sufficient cause as they were unaware about the fixation of appeal, and record reflected that no proper procedure was adopted by the office to convey about the fixation of appeal---Even no order was placed on file reflecting the issuance of notices to the parties whereas it was obligatory for the Bench, since it was not in Session for long in session, to issue fresh notices to the parties in the interest of justice prior to dismissing the same on default---Effective hearing of any case/appeal would be the one on which the arguments of the parties were to be advanced/heard---Firstly, it was duty of the Commission to ascertain that appellant had been served the notice duly, if not then the appeal should not be dismissed for non-prosecution---Secondly, no act of the Court shall prejudice any party---Court/Commission was under obligation to reverse the wrong done to a party by the act of Court / Commission, which was an elementary doctrine and tenet to the system of administration of justice---Chief concern of administration of justice is to help people provide proper opportunity and not to thwart the rights of the people on technicalities; the same must be avoided as law always favours adjudication on merits rather than non-suiting the parties on technicalities and, therefore, further opportunity should be granted to the applicant / appellant to contest case/ appeal on merits---Applicant /appellant had succeeded in satisfying Full Bench of the Commission establishing of his inability to be present on the date fixed---Full Bench restored main appeal of the applicant /appellant---Applications for restoration of appeal and for condonation of delay were allowed, in circumstances.
Abdul Qudoos v. Commondant Frontier Constabulary, Khyber Pakhtunkhwa Peshawar and another 2023 SCMR 334; Imtiaz Ahmad v. Ghulam Ali and others PLD 1963 SC 382; Salamat Bibi and others v. Settlement and Rehabilitation Commissioner Multan PLD 1966 SC 467; Municipal Committee Rawalpindi through the Secretary Municipal Committee Rawalpindi v. Raja Muhammad Sarwar Khan 1968 SCMR 817; Muslim Commercial Bank Ltd. v. Tariq Saeed and another 2004 CLD 920; Defence Housing Authority through Secretary and another v. Mst. Parveen Akhtar 2017 MLD 899; Shaheen Ahmad Siddiqui v. Muhammad Yaseen Khan and others 2007 YLR 2007; Bahadur v. Jamat Ali and 6 others 1999 MLD 2429; Anwar Khan v. Fazal Manan 2010 SCMR 973 Muhammad Iqbal v. Sardar Khan 2012 MLD 1487; Messrs National and Grindlays Bank Ltd. v. Arshad Ali Khalid Qureshi and another PLD 1990 Kar. 436 and Lt. Col. Mirza Munawar Beg and others v. Mst. Hassan Bibi and others 1981 SCMR 160 ref.
(c) Administration of justice---
----Reader of the Court has no power to adjourn the court proceedings, the same (adjournment) only rests with the Court / Commission---Adjournment can only be extended by the Judicial Officer /Member.
Kumaran Co. and others v. Modern Motors and another PLD 1990 SC 713 and another Shafgat Karim v. Shaukat Karim 2006 YLR 293 ref.
(d) Practice and Procedure---
----Non-appearance of counsel---Affidavit submitted by the counsel of the party---Relevance---Under normal circumstances affidavits are not submitted by the counsel in his client's support---When a counsel submits affidavit mentioning the reason of non-appearance, it must be given due weight by the Courts /Commission and it is presumed that the same is based on true facts---Affidavit of the counsel alone is sufficient to accept the plea of the counsel, particularly when the record fully supports the version taken in the affidavit.
Tanveer Ahmad Ghumman for Applicant.
2023 P L C 244
[National Industrial Relations Commission]
Before Noor Zaman, Muhammad Siraj-ul-Islam and Munawar Hussain Toori, Members
POST MASTER GENERAL CENTRAL PUNJAB and others
Versus
MUHAMMAD JAMEEL SHAHID
Appeals Nos.12(10) and 24(07) of 2022-L, decided on 13th June, 2023.
(a) Contempt of Court---
----Contempt is to disobey or disregard an order, direction or process of Court Commission/Tribunal which a person is legally bound to obey ; a willful breach of an undertaking given to a judicial forum having the authority to proceed against the contemnor ; any act intended to or which tends to bring the authority of Court or the administration of law into disrespect or disrepute and to obstruct, interfere, or prejudice the process of law or the due course of any judicial proceedings, fall within the category of contempt of Court ---In contempt of Court / Commission there must be involved some "act done or writing published calculated to bring a Court or judge of a Court into contempt or to lower his authority " of something " calculated to obstruct or interfere with the due course of justice or lawful process of the Court---Purpose of contempt proceedings is not to wreak vengeance but to vindicate honour of the competent judicial/quasi-judicial forum, so as to keep the public confidence in the judicial forums undiminished---Disobedience of prohibition order or violation of stay order is a crime---Mere knowledge of existence of such order is enough to constitute contempt proceedings irrespective of service of order no excuse can be acceptable in this regard and persons not parties to the case but fully aware of Commission / Court's order may be held liable to contempt of Court if they willfully disobey such order.
(b) Industrial Relations Act (X of 2012)---
----Ss.33, 54 & 58---Injunctive order passed in proceedings of the grievance petition, non-compliance of---Contempt proceedings before the Single Bench, National Industrial Relations Commission---Scope---Employee being active member of union was served Show-Cause Notice by his employer (Pakistan Post Office) who approached the National Industrial Relations Commission ('the Commission') for his redressal; Commission passed injunctive order restraining the Pakistan Post Office from passing any final adverse order qua services of the petitioner, however, his services were terminated during the operation of restraining order and pendency of grievance petition---Against termination order, contempt petition was moved in which Single Bench/Commission set-aside the termination-order holding the same as illegal and passed directions for reinstatement of services of grievance/petitioner---Post Master General, Post Office, (appellants) assailed said reinstatement order before the Full Bench of the Commission---Held, that the contempt proceedings had a vast status in which the Commission could pass order which Commission judiciously deemed appropriate including the reinstatement of the employee---Contemnors must have remained fail to get relief from the Court unless they prove themselves innocent and must have come up with clean hands---In the present case, the contempt petition was still pending for adjudication and no final order had been passed---Three out of five contemnors had challenged the impugned order, whereas memo of the appeal bore signature of only one appellant---Affidavit appended with the present appeal was filed by a person /appellant showing the designation instead of the name and address of the person---Name of the applicant in affidavit must be filled ---Appellants had already raised all the legal as well as factual points including the applicability of the relevant Labour Laws (Industrial Relations Act 2012) as well as the order impugned in present appeal as coram non judice in the written reply of the petition ---All these points / objection had been discussed at length by the Member in the impugned order and gave anxious consideration and on which the well-reasoned order had been passed---No other fresh or new law point and factual discrepancy had been pointed out by the appellant in the impugned order---Appellants firstly should implement the order of the Commission and should join the contempt proceedings and prove that the violation of the order of the Commission was not deliberate ---Appellants had failed to point out that impugned order passed by the Member Single Bench was the consequences of error of law or illegal or without jurisdiction or in excess of jurisdiction ---Member Single Bench had acted lawfully by issuing directions to the appellants to implement reinstatement order and to submit implementation report---Appeal, being not maintainable, was dismissed, in circumstances.
Wasim Akbar Malik for Appellants.
2023 P L C 15
[Peshawar High Court (Mingora Bench)]
Before Muhammad Naeem Anwar and Muhammad Ijaz Khan, JJ
MUHAMMAD IBRAHIM
Versus
CHAIRMAN BOARD OF TRUSTEES EMPLOYEES OLD AGE BENEFIT INSTITUTION HEAD OFFICE KARACHI and 2 others
Writ Petition No.567-M of 2015, decided on 24th May, 2022.
Employees' Old-Age Benefits Act (XIV of 1976)---
----Ss.11(1)(2), 33, 34 & 35---Employees Old Age Benefits (Determination of Complaints, Questions and Disputes) Regulations, 1980---Constitution of Pakistan, Art.199---Constitutional petition---Old age benefit---Complaints---Disputed question of fact---Petitioners were ex-employees and dispute was with regard to non-payment of their contribution---Validity---Questions requiring probe into which exercise could not be done in constitutional jurisdiction under Art. 199 of the Constitution---All petitioners were retired or their services were dispensed with in year 1997, and for how long they remained in service was also question requiring inquiry for determination of each individual---Appropriate forums existed for redressal of their grievance as provided under Chapter VII, Ss.33, 34 & 35 of Employees' Old-Age Benefits Act, 1976 read with Employees Old Age Benefits (Determination of Complaints, Questions and Disputes) Regulations, 1980, where a complete mechanism was provided for solution of all disputes---High Court declined to interfere in the matter---Constitutional petition was dismissed, in circumstances.
Chief Manager, State Bank of Pakistan and 2 others v. Ghulam Rasool and others 2011 SCMR 313; Mushtaq Ahmad v. S.H.O and others 2004 MLD 1502; Syed Asif Akhtar Hashmi v. Malik Muhammad Riaz and 3 others PLD 2008 Lah. 235; Pakcom Limited and others v. Federation of Pakistan and others PLD 2011 SC 44; Fida Hussain and another v. Mst. Saiqa and others 2011 SCMR 1990; Government of Punjab v. Ghulam Nabi PLD 2001 SC 415; Allah Ditta and others v. Malik Ijaz Hussain 1986 SCMR 959; William Lawrence v. Government of Pakistan and others 1986 SCMR 1077; Munir Ahmad Munir v. The Province of Punjab through the Secretary, Home Department, Lahore 1987 SCMR 396; Allah Bakhsh and another v. Muhammad Ismail and others 1987 SCMR 810; Muhammad Aslam v. Member Colonies, Board of Revenue, Punjab, Lahore and another 1988 SCMR 1803; Mubarik Ali & Sons v. Employees' Old-Age Benefits Institution and others 1994 PLC 686 and Asif Fasihuddin Khan Vardag v. Government of Pakistan 2014 SCMR 676 rel.
Fayaz Muhammad Qazi for Petitioners.
Raza Uddin, A.A.G. for Official Respondents.
Mukhtar Ahmad Maneri for EOBI Respondents (through Video Link).
Sher Muhammad Khan and Ali Asghar for FDC Respondents.
2023 P L C 34
[Peshawar High Court]
Before Mohammad Ibrahim Khan and Ijaz Anwar, JJ
FIDA ULLAH KHAN
Versus
PRESIDENT HABIB BANK LIMITED, HEAD OFFICE, HABIB BANK PLAZA KARACHI and 6 others
Writ Petition No.5341-P of 2021, decided on 5th October, 2022.
(a) Industrial Relations Act (X of 2012)---
----S.33---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(i)---Individual grievance---Termination of employment---"Workman"---Bank Manager---Scope---Petitioner was initially appointed against the post of Branch Manager and later on he was posted as Assistant Manager-II/Relationship Manager Retail and thereafter he was terminated from service---Single Bench of NIRC (National Industrial Relations Commission) reinstated the petitioner in service---Full Bench of NIRC, on appeal, set aside the order passed by Single Bench---Validity---Petitioner had remained unable to prove himself a workman in terms of S. 2(i) of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, as he was not performing any manual or clerical duties---Staff Service Rules of the Bank ousted him from the clerical cadre and instead had placed him in the management cadre---Petitioner was holding power of attorney on behalf of the Bank---Petitioner, in order to wriggle out of the objection pertaining to his status as Manager, should have given the details about the nature of his job particularly of his last posting; similarly, also to have explained the effect of power of attorney and also about the details powers mentioned in the power of attorney but he had failed to discharge the onus of proof---Constitutional petition, being bereft of any merit, was dismissed.
Ganga R. Madhani v. Standard Bank Limited and others 1985 SCMR 1511; Muhammad Nawaz Bhatti v. President, Muslim Commercial Bank Limited , Karachi and others 2008 PLC 260; Muslim Commercial Bank Limited and others v. Muhammad Shahid Mumtaz and another 2011 SCMR 1475; Habib Bank Limited v. Gulzar Khan and others 2019 SCMR 946; Raja IVIZ Mehmood and another v. Federation of Pakistan through Secretary Ministry of Information Technology and Telecommunication and others 2018 SCMR 162; Muhammad Umar Malik v. The Muslim Commercial Bank Limited through its President, Karachi and 02 others 1995 SCMR 453 and Nadeem Ahmad v. Pakistan State Oil Company Limited and another 2005 PLC (C.S.) 1447 ref.
(b) Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)---
----S.2(i)---"Workman"---Scope---Where a workman claims violation of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, he has to prove himself to be a workman within the meaning of S.2(i) of the Ordinance.
Syed Matloob Hassan v. Brooke Bond Pakistan Limited, Lahore 1992 SCMR 227 foll.
(c) Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)---
----S.2(i)---"Workman"---Scope---Person who approaches the Court on the basis of averment that he is a "workman" within the definition of law, the burden of proof lies on him and not the employer.
National Bank of Pakistan v. Punjab Labour Court No.5, Faisalabad and others 1993 SCMR 672 foll.
Inayat Ullah Khan for Petitioner.
Faisal Mehmood Ghani for Respondents.
2023 P L C 117
[Peshawar High Court (Abbottabad Bench)]
Before Wiqar Ahmad and Fazal Subhan, JJ
Messrs CONCRETE CONCEPTS (PVT.) LTD. through Managing Director and another
Versus
AUTHORITY UNDER PAYMENT OF WAGES HAZARA DIVISION, AT HARIPUR and 4 others
Writ Petition No.1008-A of 2022, decided on 26th January, 2023.
Khyber Pakhtunkhwa Payment of Wages Act (IX of 2013)---
----Ss.15 & 17---Constitution of Pakistan, Art.199---Constitutional petition---Alternate and efficacious remedy, absence of---Effect---Petitioner / employer was aggrieved of order passed by the Authority (appointed under S.15 of the Khyber Pakhtunkhwa Payment of Wages Act, 2013) directing to deposit cost amounts---Validity---Sufficient material on record to show that proceedings before the Authority were not conducted in proper legal manner---Petitioner / employer acted deceitfully to prolong the matter by making a false commitment of filing review petition before High Court---Appeal under S.17 of Khyber Pakhtunkhwa Payment of Wages Act, 2013, could only be filed in respect of the matters enumerated in S.15(1) of Khyber Pakhtunkhwa Payment of Wages Act, 2013 and it did not include order or decision passed by the Authority due to non-payment of cost imposed by the Court---When no other alternate and efficacious remedy was available, then Constitutional jurisdiction of High Court could competently be invoked---High Court remanded the matter to the Authority for decision afresh, as petitioner / employer did not have any other efficacious remedy available under Khyber Pakhtunkhwa Payment of Wages Act, 2013---Constitutional petition was allowed accordingly.
Mst. Gulfama v. Mst. Jamsheda and 14 others 2019 CLC 1483; Haleem-ur-Rehman v. Province of Sindh and others 2019 SCMR 1653 and Commanding Officer, Frontier Works Organization, Karachi v. Haji Abdul Waheed and 2 others 2003 SCMR 225 rel.
Asjad Parvez Abbasi for Petitioner.
Sajid ur Rehman, A.A.G. and Muhammad Jehangir Khan for Respondent No.4.
2023 P L C 217
[Balochistan High Court]
Before Muhammad Kamran Khan Mulakhail and Muhammad Aamir Nawaz Rana, J
OIL AND GAS DEVELOPMENT COMPANY LTD. through Authorized Officer
Versus
FEDERATION OF PAKISTAN through Secretary, Ministry of Overseas Pakistani and Human Resource Development Government of Pakistan, Islamabad and 3 others
Constitution Petition No.1770 of 2022, decided on 24th March, 2023.
Industrial Relations Act (X of 2012)---
----Ss. 2(xxxiii), 31, 33, 54(E) & 58(2)---Grievance petition---Maintainability---Unfair labour practice---Worker---Proof---Petitioner / employer company was aggrieved of acceptance of grievance petition of respondent / employee by National Industrial Relation Commission---Contention of petitioner / employer company was that respondent / employee was not covered under the definition provided for "worker" in Industrial Relations Act, 2012 and fora below had no jurisdiction to entertain the grievance petition---Validity---Documents produced by respondent / employee manifested that respondent / employee was worker who had been taking part in union activities---Respondent / employee remained General Secretary of All Pakistan OGDCL Mazdoor Ittihad Union (CBA) so objection with regard to jurisdiction of fora below was turned down---Complete appraisal of record was thoroughly done by both the fora below---High Court declined to interfere in concurrent findings of facts by two fora of National Industrial Relation Commission, as there was no infirmity in their reasoning---Constitutional petition was dismissed, in circumstances.
Muhammad Tahir-ul-Qadri v. Federation of Pakistan PLD 2013 SC 413; Muhammad Ishaq v. Province of the Punjab 1998 SCMR 9; Abdul Ghani v. Ghulam Sarwar PLD 1977 SC 102 and Chaudhry Muhammad Sharif v. Muhammad Ali Khan and others 1975 SCMR 259 rel.
Muhammad Wasif Riaz for Petitioner.
Aulgiqal Ali Malik and Raza Umar Aziz along with for Respondent No.4.
2023 P L C 65
[Supreme Court of Pakistan]
Present: Sardar Tariq Masood, Amin-ud-Din Khan and Muhammad Ali Mazhar, JJ
CHIEF ENGINEER, GUJRANWALA ELECTRIC POWER COMPANY (GEPCO), GUJRANWALA
Versus
KHALID MEHMOOD and others
Civil Appeals Nos. 1685 to 1687 of 2021, decided on 3rd October, 2022.
(Against the judgment dated 08.01.2021 passed by the Lahore High Court, Lahore, in W.Ps. Nos. 428, 431 and 432 of 2021)
(a) Pakistan WAPDA Employees (Efficiency and Discipline) Rules, 1978---
----Rr. 5(iii) & 5(iv)---Disciplinary proceedings---Regular inquiry---Scope---No rigid or definitive rule that in each and every case after issuing show cause notice a regular inquiry should be conducted, but if the department aspires to dispense with the regular inquiry due to some compelling circumstances or exigency, then justifiable reasons should be assigned in writing before dispensing with the regular inquiry---No doubt, if a charge is set up or stems from admitted documents, no full-fledged regular inquiry is obligatory, but if the allegations are based on disputed questions of facts, then obviously the employee cannot be denied a right of regular inquiry, specifically where the allegations cannot be resolved without leading evidence and providing a fair opportunity to the parties to cross-examine the witnesses.
Ghulam Muhammad Khan v. Prime Minister of Pakistan and others 1996 PLC (C.S.) 868; Shakeel Ahmad v. I.G. Punjab Police, Lahore and others 2007 SCMR 192; Naseeb Khan v. Divisional Superintendent, Pakistan Railways, Lahore and another 2008 SCMR 1369; Fuad Asadullah Khan v. Federation of Pakistan 2009 SCMR 412 and Chief Postmaster Faisalabad, GPO and another v. Muhammad Fazal 2020 SCMR 1029 ref.
(b) Limitation---
----Law of limitation reduces an effect of extinguishment of a right of a party when significant lapses occur---When no sufficient cause for such lapses, delay or time barred action is shown by the defaulting party, the opposite party is entitled to a right accrued by such lapses---Omission and negligence of not filing the proceedings within the prescribed limitation period creates a right in favour of the opposite party.
Dr. Muhammad Javaid Shafi v. Syed Rashid Arshad and others PLD 2015 SC 212 ref.
(c) Limitation---
----Void order---No relaxation is available in law to approach the court after deep slumber or inordinate delay under the garb of labeling an order or action void with the articulation that no limitation runs against the void order---If such tendency is not deprecated and a party is allowed to approach the Court of law on his sweet will without taking care of the vital question of limitation, then the doctrine of finality cannot be achieved and everyone will move the Court at any point in time with the plea of void order---Even if the order is considered void, the aggrieved person should act more cautiously rather than waiting for lapse of limitation and then coming up with the plea of a void order which does not provide any premium of extending limitation period as a vested right or an inflexible rule.
Messrs Blue Star Spinning Mills Ltd. v. Collector of Sales Tax and others 2013 SCMR 587 ref.
(d) Limitation---
----Scope---Intention of the provisions of the law of limitation is not to give a right where there is none, but to impose a bar after a specified period, authorizing a litigant to enforce his existing right within the period of limitation.
Muhammad Iftikhar Abbasi v. Mst. Naheed Begum and others 2022 SCMR 1074 and Khudadad v. Syed Ghazanfar Ali Shah alias S. Inaam Hussain and others 2022 SCMR 933 ref.
(e) Limitation---
----Court is obliged to independently advert to the question of limitation and determine the same and to take cognizance of delay without limitation having been set up as a defence by any party.
(f) Punjab Industrial Relations Act (XIX of 2010)---
----S. 42---Penalty imposed by department challenged by employee before the Labour Court---Acceptance of dues by employee---Whether employee estopped from challenging dismissal after accepting dues---Held, that mere acceptance of legal dues by an employee does not amount to waiver so as to estop him from challenging the order of dismissal---Such remedy cannot be denied to him if the charge of misconduct has not been established---In case order of termination is held to be mala fide or the charge of misconduct has not been proved, the payment of entire dues will not disentitle an employee to seek further relief of reinstatement from the Court---Cannot be accepted as a rule in each and every case that receipt of dues would debar an employee from approaching the Labour Court for the redress of his grievance, as it is always a question of fact to be determined on the basis of record whether an employee has accepted his termination and severed his relationship with the employer.
General Manager, National Radio Telecommunication Corporation, Haripur, District Abbottabad v. Muhammad Aslam and 2 others 1992 SCMR 2169 and Farasat Hussain and others v. Pakistan National Shipping Corporation through Chairman and others 2004 SCMR 1874 ref.
Muhammad Munir Paracha, Advocate Supreme Court for Appellant (in all cases).
Azhar Iqbal, Advocate Supreme Court for Respondent No. 1
(in all cases).
Syed Moazam Ali Rizvi, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Respondent No. 4
(in all cases).
2023 P L C 135
[Supreme Court of Pakistan]
Present: Ijaz Ul Ahsan and Sayyed Mazahar Ali Akbar Naqvi, JJ
PAKISTAN TELEVISION CORPORATION
Versus
NOOR SANAT SHAH
Civil Appeal No. 284 of 2017, decided on 27th September, 2022.
(Against judgment dated 18.10.2016 of the Islamabad High Court, Islamabad passed in Regular Second Appeal No. 30 of 2015)
(a) Civil Procedure Code (V of 1908)---
----S. 9---Tortious breach by a State Corporation resulting in pure economic loss to its employee---Suit for damages for tortious liability against the State entity/Corporation---Maintainability---Civil Court, jurisdiction of---Civil Court did not lack jurisdiction to try such a suit---In the absence of any law regulating tortious breaches resulting in pure economic loss, the Civil Court as a Court of plenary jurisdiction has the power as well as jurisdiction to entertain, adjudicate and decree suits for damages.
(b) Tort---
----Tort of interest in property---Economic loss---Proof and burden of proof---Suit for damages arising out of an employment matter---Jurisdiction of Civil Court to award decree for damages caused by mental agony and torture---Respondent in his suit claimed that by virtue of litigation that had ensued between the parties, the appellant (State Corporation) had committed a tort of interest in property; that he had to spend his financial resources as well as physical integrity insofar as he was subjected to face anxiety, mental stress of having to approach various legal fora, arrange legal representation and expend his limited financial resources for enforcement of his legitimate rights---Held, that the main physical, perceivable and ostensible damages that the Respondent had arguably suffered was monetary/ economic in nature---Respondent could claim redressal from such a tort but in proving economic loss, the evidentiary burden of proof was on a claimant---At the time of filing the suit the respondent had annexed and subsequently exhibited all the relevant documentary evidence including legal fees and certificates aggregating a sum of Rs.310,000/-, therefore he successfully discharged the onus of proof on him---During cross-examination of the respondent conducted by the appellant no suggestion had ever been made to the respondent that he had frivolously instituted the suit for damages; that he had not suffered any loss due to actions of the appellant; or that he had instituted the suit for damages as vendetta or to settle a personal grudge---In the absence of such suggestions, it would be deemed that the appellants had admitted that the respondent had suffered loss due to the actions of the appellant---Said findings had also been upheld by all the courts below---Respondent had indeed suffered monetary/economic loss due to the actions of the appellant, that he had an actionable claim which he brought before the Trial Court in the form of a suit for recovery of damages, and that he was well within his rights to be compensated for such loss suffered---Trial Court/Civil Court was well within its jurisdiction to pass decree for payment of damages to the extent of Rs.310,000/-, and a sum of Rs.2,000,000/- in favour of the respondent for the mental agony and torture suffered by the respondent due to the actions of the appellant---Appeal was dismissed.
Munawar Ahmed, Chief Editor Daily Sama and another v. Muhammad Ashraf PLD 2021 SC 564 ref.
(c) Tort---
----Vicarious liability---Corporation vicariously liable for the acts of its employees---Employees of a Corporation not implementing orders of National Industrial Relations Commission---Factors to be considered by Courts when determining vicarious liability of the Corporation---First consideration that the courts have to look at when deciding whether an entity/organization is vicariously liable for breaches in tort committed by its employees is whether or not a tortious breach has actually been committed in the first place---Next consideration would be whether or not the tortious acts had been committed by an employee of an organisation during the course of his employment---Final consideration would be whether it would be fair, just and reasonable to hold an organisation/entity vicariously liable for the actions of its employees during the course of their employment which resulted in tortious acts.
First of many considerations that the courts have to look at when deciding whether an entity/organization is vicariously liable for breaches in tort committed by its employees is whether or not a tortious breach has actually been committed in the first place. In the present case the respondent-employee had to approach courts of law repeatedly for redressal of his legitimate grievances, and but for acts/ omissions of employees of the appellant Corporation, who were acting in the course of their employment, the respondent could have been spared the time, effort, expense and mental agony of repeatedly approaching different legal fora for years on end. A tort had been committed by the appellant against the respondent when the appellant failed to implement the order of the National Industrial Relations Commission (NIRC) as well as when the appellant forced the respondent to repeatedly arrange legal representation for other ancillary and connected matters before the NIRC.
Lister v. Hesley Hall Ltd, [2002] 1 AC 215; Dubai Aluminium Co Ltd. v. Salaam [2003] 2 AC 366 and Catholic Child Welfare Society and others v. Various Claimants and the Institute of the Brothers of the Christian Schools and others 2012 UKSC 56 ref.
The next consideration would be whether or not the tortious acts had been committed by an employee of an organisation during the course of his employment. In the present case it was never the case of the appellant before any of the courts below that the appellant had directed its employees to implement the NIRC order and that individual employees had flouted an express order of the appellant to implement the said order of the NIRC. It is also not the case of the appellant that the non-implementation of judgements/orders were done through unauthorised acts of which the appellant had no knowledge. On the contrary, there is enough material on record to show not only that at all relevant times the relevant officers/decision makers had knowledge of the acts in question but either directly, indirectly, or by implication, authorised tortious acts or failed to act where, by law, they were required to act or tacitly encouraged, condoned or approved of such acts. The appellant never distanced itself from the any of its employees by claiming that the said employees had failed to implement the order of NIRC of their own accord. In the absence of anything to the contrary, it would appear that the employees of the appellant who had failed to implement the NIRC order as well as those employees who were delaying the implementation of the said order were doing so in the course of their employment with the knowledge, consent and approval of the appellant. The appellant could have directed the employees under its control to implement the order of NIRC immediately after it was passed. The appellant, instead, not only delayed, hampered or procrastinated but also failed to implement the said order and initiated implementation actions only when the respondent approached the NIRC through his various petitions for implementation of the order. The consequences and responsibility for not implementing the NIRC order as expeditiously as possible must be borne by the appellant in the absence of any express order directing its employees to implement the NIRC orders in letter and spirit as expeditiously as possible.
The final consideration would be whether it would be fair, just and reasonable to hold an organisation/entity vicariously liable for the actions of its employees during the course of their employment which resulted in tortious acts. The lethargy and intentional lack of interest in implementing lawful orders of a court of competent jurisdiction shown by the appellant cannot be granted a premium by holding that, for policy reasons, it would not be fair, just and reasonable to find the appellant vicariously liable for the tortious breaches committed by its employees when it failed to implement the NIRC order. The appellant in the present case is a state-owned television broadcaster and falls within the administrative competence of the information and Broadcasting Division of the Federal. However, admittedly, the appellant is a non-statutory body having its own Service Rules as well as Memorandum and Articles of Association. Whilst it may be controlled and directed by the Federal Government through the Information and Broadcasting Division, it is, for all intents and purposes, a separate corporate entity. Therefore, the Respondent was not bound to follow the requirement laid down in section 79 of the C.P.C. read with Article 174 of the Constitution since the appellant cannot be considered a part of the Federal Government for the sole reason that the Government administers the appellant. The appellant has its own corporate personality and cannot be considered a part of the Government. It can therefore sue or be sued in its own name and there is no requirement for potential, claimants/plaintiffs to implead the Government when they wish to sue the appellant. Appeal was dismissed.
(d) Tort---
----Vicarious liability---Suit for damages for tortious liability against a State entity/Corporation--- Maintainability--- Sovereign immunity---Scope---State Corporation cannot claim that it cannot be sued vicariously for the actions of its employees by invoking sovereign immunity---Even otherwise, the defence of sovereign immunity and its application in Pakistan has been done away with by the Supreme Court in the case reported as Pakistan through Secretary to the Government of Pakistan, Ministry of Railways and Communications, Karachi v. Muhammad A. Hayat (PLD 1962 SC 28).
Pakistan through Secretary to the Government of Pakistan, Ministry of Railways and Communications, Karachi v. Muhammad A. Hayat PLD 1962 SC 28; Pakistan through Secretary, Ministry of Rehabilitation of Pakistan v. Muhammad Yaqoob Butt and others PLD 1963 SC 627; Ch. Muhammad Nawaz v. Province of Punjab PLD 1975 BJ 11 and Nazir Ahmed v. Islamic Republic of Pakistan through Secretary Establishment Division PLD 1991 Lah. 469 ref.
Muhammad Nazir Jawad, Advocate Supreme Court and Ahmad Nawaz Chaudhary, Advocate-on-Record for Appellant.
Malik Muhammad Qayyum, Senior Advocate Supreme Court (via V.L. from Lahore) and Chaudhary Akhtar Ali, Advocate-on-Record for Respondent.