PLC 2024 Judgments

2024 P L C 55

[Implementation Tribunal for Newspaper Employees]

Before Shahid Mehmood Khokhar, Chairman

Mirza RIZWAN

Versus

The NEWS INTERNATIONAL, LAHORE

Case No.IT/P/1696/18/C, decided on 29th August, 2023.

(a) Newspaper Employees (Conditions of Service) Act (LVIII of 1973)---

----Ss.2(d), 13 & 17---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), Sched, S.Os. 1(a) & 1(b)---Petition by a newspaper employee who was initially employed on contract basis---Outstanding amount regarding salary etc., recovery of---Implementation Tribunal for Newspaper Employees, jurisdiction of---Permanent employee/workman---Scope---Newspaper establishment denied relationship of employer and employee with the petitioner and contended he was a contractual employee---Contention of the respondent (newspaper establishment) was that the petitioner not being permanent employee was not entitled for grant of benefits under the 7th Wage Award---Held, that the contention of the respondent was of no avail as the definition of "newspaper employee" as provided in S.2(d) of the Newspaper Employees (Conditions of Service) Act, 1973, a "newspaper employee meant any person employed to do any work in, or in relation to, any newspaper establishment"---According to S. 17 of the Newspaper Employees (Conditions of Service) Act, 1973, provisions of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 ('the Ordinance, 1968'), had been made applicable to the newspaper establishment---Standing Order 1(a) of the Ordinance, 1968, enumerated different kinds of workmen while Standing Order 1(b) of the Ordinance, 1968 defined a permanent workman as a workman who had been engaged to work of a permanent nature likely to last more than 9 months and had satisfactorily completed a probationary period of three months in the same or another occupation in the industry of commercial establishment---In the light of said definition of permanent workman, the petitioner would be deemed to have acquired the status of a permanent workman on completion of three months of his service as a Sub-Editor in the respondent/establishment on the basis of his contract of service as he continued to serve for the full period of contract from which it was to be presumed that his work during first three months was found satisfactory and he was allowed to perform the work assigned to him and the same was of permanent nature---After having put in more than 14 years of continuous service on a post and having performed work which was of permanent nature, the petitioner had acquired the status of a permanent workman---Petitioner/employee was entitled for the amount prayed for as the respondent/establishment had not disputed/rebutted the calculation of arrears, which amount was to be recovered from the respondent / establishment---Application was allowed, in circumstances.

2001 SCMR 565; NLR 1998 Lab. 59; PLD 1996 SC 610 and Mian Rauf v. Daily Pakistan and others I.C.A. No.48437/2020 ref.

(b) Newspaper Employees (Conditions of Service) Act (LVIII of 1973)---

----S.13---Petition by a newspaper employee who was initially employed on contract basis---Outstanding amount regarding salary etc., recovery of---Scope---Plea of the respondent (newspaper establishment ) was that the petitioner had been dismissed from his service so he was not entitled for grant of benefits under the 7th Wage Award---Held, that the plea of the respondent was not supported by production of any relevant documents (correspondence, show-cause notice, disciplinary proceedings etc.) in order to substantiate its argument/plea---Respondent / Establishment failed to produce any document regarding inquiry proceedings culminating into dismissal of the petitioner---Petitioner / employee was entitled for the amount prayed for as the respondent/establishment had not disputed/rebutted the calculation of arrears, which amount was to be recovered from the respondent / establishment---Application was allowed, in circumstances.

Nemo for parties.

2024 P L C 72

[Implementation Tribunal for Newspaper Employees]

Before Shahid Mehmood Khokhar, Chairman

YASIR AMIN JANJUA

Versus

DAILY NEWS MART, RAWALPINDI

Case No.IT/P/8WBA/246/23/C, decided on 24th October, 2023.

Newspaper Employees (Conditions of Service) Act (LVIII of 1973)---

----S. 13---Petition by a newspaper employee before the Implementation Tribunal for Newspaper Employees---Unpaid amount regarding salary and gratuity, recovery of---Conduct of the newspaper establishment---Claim of the petitioner (Staff Reporter /Marketing Manager) was that he was not only entitled for the salary arrears for five months but also gratuity amount for the same period in light of benefits of the Wage Award---Validity---Despite issuance of repeated notices to the respondent (newspaper establishment) for appearance at four dates of hearings, the respondent had not bothered either to represent or to submit its stance in rebuttal, which was why the respondent was proceeded ex-parte on last date of hearing---Since, there was no rebuttal in any manner, whatsoever, on behalf of the respondent/establishment, whereas the application filed by the petitioner/employee was supported with an affidavit having been duly signed and executed, therefore, the petitioner was held entitled for the amount prayed for, to be recovered from the respondent / establishment---Application filed by the employee was allowed, in circumstances.

Petitioner in person.

Nemo. For Respondent Management.

2024 P L C 128

[Implementation Tribunal for Newspaper Employees]

Before Shahid Mehmood Khokhar, Chairman

STATE

Versus

DAILY JINNAH, ISLAMABAD

Case No.IT/P/8WBA/56/SM, decided on 7th November, 2023.

Newspaper Employees (Conditions of Service) Act (LVIII of 1973)---

----S. 13---Implementation Tribunal for Newspaper Employees (Procedure and Function) Rules, 1977, R. 17---Filing of declaration by the Newspaper Management / Establishment, failure of---Effect---Conduct of the management---On petition filed by the State before the Implementation Tribunal for Newspaper Employees, the respondent / management applied delaying tactics in submitting declaration before it (Tribunal)---Record revealed that almost three years ago, for the first time, the respondent/management was issued notice to file declaration under S.13(6) of Newspaper Employees (Conditions of Service) Act, 1973, read with Implementation Tribunal for Newspaper Employees (Procedure and Function) Rules, 1977---Thereafter, though matter could not be heard due to non-availability of the Bench, however, subsequently a notice was again issued on which appearance on the behalf of the respondent was made through counsel who requested some time to file declaration---Adjournments had continually been sought by the respondent/management, at least five times spanning over eight months, on one pretext or other without submitting declaration---Conduct of the respondent showed that it was using delaying tactics to avoid submission of declaration as required by the Implementation Tribunal for Newspaper Employees under S.13(6) of the Newspaper Employees (Conditions of Service) Act, 1973 and R. 17 of the Implementation Tribunal for Newspaper Employees (Procedure and Function) Rules, 1977---Therefore, Implementation Tribunal for Newspaper Employees was left with no other option but to issue a direction to the Secretary, Ministry of Information and Broadcasting, as well as other concerned departments to suspend name of the Respondent/Management with immediate effect ---Petition filed by the State was disposed of accordingly.

Muhammad Zubair, Assistant Registrar (Judicial) for the State.

2024 P L C 155

[Implementation Tribunal for Newspaper Employees]

Before Shahid Mehmood Khokhar, Chairman

MUHAMMAD IDREES ABBASI

Versus

The NEWS PUBLICATIONS (PVT.) LIMITED, RAWALPINDI

Case No.IT/P/1800/19/C, decided on 30th December, 2022.

Newspaper Employees (Conditions of Service) Act ( LVIII of 1973)---

----S. 13 (1) (c)---Civil Procedure Code (V of 1908), O.VII, R.10 & S.151---Petition filed by an employee of a company / contractor which (company) was engaged (outsourced) by the management/ establishment of the newspaper---Implementation Tribunal for Newspaper Employees ('Tribunal'), jurisdiction of---"Worker and workman"---Term "Employed by the company"---Respondent (management/ establishment of the newspaper) filed application under O. VII, R. 10 of the Civil Procedure Code, 1908, for return of the (main) petition (filed by an employee of the company / contractor)---Plea of the respondent (management/establishment of the newspaper) was that as the applicant was an employee of an "outsourced contractor" (not having being impleaded by the applicant) the Tribunal has no jurisdiction to entertain his application ---Validity---The words " employed by the company" are wide enough to include workmen employed by the contractors of the company , if the contractor engaged the workers for running of the affairs of the company and not for some other independent work, which has no concern with the production of the company, which constituted one of the principal organ of the company; the machines belong to the company; the raw material is supplied by the company and the said department is controlled by the supervisors of the company; the employees of the contractor shall be the employees of the company; the employees engaged directly or through a contractor would be deemed to be the employees of the company for whose benefits they perform functions---Even though control test is an important test, it is not the sole test; a multiple pragmatic approach weighing up all the factors for and against the employment has to be adopted, including an "integration" test ; and if the contract is found to be not genuine and a device to deprive the employees from their legitimate rights / benefits, the so-called contract employees will have to be treated as the employees of the company---It has become a practice on part of the employer to frustrate not only the provisions of law for the time being in force but also to deny the fundamental rights of life , trade, service and family of the employees by adopting deceptive measures in order to deprive its employees from their legitimate rights as guaranted by the Constitution and outsourcing of the service is just an example---Courts can not close their eyes but lift corporate veil for purposes of ascertaining real motive behind a scheme---Correct approach for sanctioning of a scheme was that the same should not be scrutinized in the way of a carping critic, a hair-splitting expert, a meticulous accountant or a fastidious counsel, each trying to find out from his professional point of view that loopholes were present in such a scheme ; what technical mistakes have been committed or what legal rights of one or other sides have not been protected---Implementation Tribunal for Newspaper Employees directed the respondent to provide its (contractor company's) details / documents (its legal status etc) and the agreement executed between the respondent / management and said company---Application under O.VII, R.10, C.P.C., for return of the petition before the Tribunal was dismissed.

Abdul Ghafoor and others v. The President, National Bank Pakistan 2018 SCMR 157; Muhammad Akram v. Umer Hayat and 2 others 2001 PLC 124; PLD 2019 SC 250 and 2018 CLD 15 ref.

Petitioner in person along with Ghulam Mustafa Butt his Authorized Representative.

2024 P L C 179

[Implementation Tribunal for Newspaper Employees]

Before Shahid Mehmood Khokhar, Chairman

ABID HUSSAIN JADOON

Versus

DAILY NAWA-E-WAQT, ISLAMABAD

Case No.IT/P/3000/21/C, decided on 16th November, 2023.

Implementation Tribunal for Newspaper Employees (Procedure and Functions) Rules, 1977---

----R. 17---Newspaper Employees (Conditions of Service) Act (LVIII of 1973), S. 13---Contempt proceedings before the Implementation Tribunal for Newspaper Employees ('the Tribunal')---Court and the contemnor---Re-instatement sought by the employee before the Tribunal---Scope---Employee, primarily, filed a petition for recovery of arrears while also praying for restraining order against the Management (Establishment of the Newspaper)---The then Chairman directed the Management not to pass adverse order qua service / employment of the petitioner, however service of the employee was terminated and the employee moved contempt petition a well execution petition in which (petitions), the then Chairman directed the Management to reinstate him or to pay outstanding dues, which would continue to be accumulated till final payment---However, said directions were repeated vide yet another order and the employee moved present petition, for implementation of previous (said / two ) orders/directions before the Tribunal while new Chairman had assumed charge---Held, that the record revealed that the petitioner / (ex-) employee field a petition for the recovery of benefits accrued under the 7th Wage Board Award and his services were terminated meanwhile, however admittedly, said termination office letter (by the Management/respondent) was not challenged before any competent forum, and he (instead of filing a grievance petition) succeeded in obtaining two favourable orders from the Tribunal through contempt petition), for never being implemented by the Management---Then Chairman passed the orders in the main case, and subsequently the petitioner/employee filed execution petition for recovery of decretal amount, which remained pending due to non-payment by the respondent / Management---Though, available material showed that certain / partial payment had been made to the petitioner (owing to an order passed in another case, not related to present petitioner), yet the Tribunal viewed that contempt petition filed by the petitioner was neither maintainable nor proceedable---Matter of contempt of Court is always between the Court and the contemnor and if it is proved that order of the Court has been violated, then the contemnor has to face the consequence, but no Court could reinstate the petitioner in contempt proceedings---Thus the previous orders (implementation of which was sought in instant petition) were not validly issued by the Tribunal---Present petition filed by the employee was dismissed, in circumstances.

Muhammad Naeem Khan and another v. Muqadas Khan and others PLD 2022 SC 99 and Suo Motu Case No. 1 of 2022 (PLD 2022 SC 574) ref.

Ghulam Mustafa Butt for Petitioner.

2024 P L C 241

[Implementation Tribunal for Newspaper Employees]

Before Shahid Mehmood Khokhar, Chairman

MUHAMMAD ARSHAD

Versus

WEEKLY ASIAN TELEGRAPH

Case No.IT/P/2270/20/C of 2024, decided on 12th February, 2024.

Newspaper Employees (Conditions of Service) Act (LVIII of 1973)---

----Ss. 2(d) & 13---Petition before the Implementation Tribunal for Newspaper Employees for the payment of salary arrears---Newspaper employee---Scope---Assertion of the respondent/management was that the petitioner was only an article writer---Validity---Petitioner submitted three publications of magazine as well as transcript of his WhatsApp messages with the Editor-in-Chief of the respondent / management, which was handed over to counsel of the respondent---Respondent / management later applied delaying tactics and ultimately absented itself from the proceedings and were proceeded ex-parte---Said publications of magazine as well as documents annexed with the petition, revealed that the petitioner remained attached with respondent group of publications (a Daily and a Monthly) as a founding Editor for the period of more than two years---Even if, for the sake of argument, the petitioner was believed to be an article-writer, he did fall within the definition of "newspaper employee" as prescribed under S. 2(d) of the Newspaper Employees (Conditions of Service) Act, 1973, as he being editor had remained associated with the publications---Monthly salary claimed by the petitioner was corroborated with the bank-statement appended by him---Petitioner had categorically claimed certain lump-sump amount from the respondent/management, whereas respondent submitted a vague/evasive written-reply without filing any document(s) in rebuttal, thus respondent failed to rebut specifically the contents of petition or entitlement/claim---Despite affording opportunities , the respondent had not submitted any statement of accounts to demonstrate that the calculation made by the petitioner on account of arrears of salary was incorrect---Implementation Tribunal for Newspaper Employees held the petitioner entitled for recovery of outstanding salary amount he prayed for, and directed the respondent / management to pay the same to him---Petition was accepted, in circumstances.

Petitioner in person.

Nemo. for Respondent.

2024 P L C 249

[Implementation Tribunal for Newspaper Employees]

Before Shahid Mehmood Khokhar, Chairman

RASHID MAHMOOD

Versus

DAILY NAWA-E-WAQT, ISLAMABAD

Case No.IT/P/3001/21/C of 2023, decided on 16th November, 2023.

Implementation Tribunal for Newspaper Employees (Procedure and Functions) Rules, 1977---

----R. 17---Newspaper Employees (Conditions of Service) Act (LVIII of 1973), S. 13---Contempt proceedings before the Implementation Tribunal for Newspaper Employees ('the Tribunal')---Reinstatement sought by the employee in contempt proceedings---Legality---Employee filed (main) petition for recovery of arrears while also praying for restraining order against the Management (Establishment of the Newspaper)---Chairman of the Tribunal directed the Management not to pass adverse order qua service / employment of the petitioner---However, service of the employee was terminated, and, the employee moved contempt petition as well execution petition in which (petitions), the then Chairman directed the Management to reinstate the employee or to pay his outstanding dues, which would continue to be accumulated till final payment---Said directions were repeated vide yet an order---But the employee had to move present petition, before the Tribunal for implementation of previous (said / two ) orders/directions while the new Chairman had assumed charge---Held, that record revealed that the petitioner, admittedly, filed a petition for the recovery of benefits accrued under the 7th Wage Board Award and his services were terminated meanwhile, however, said termination office letter (by the Management/respondent) was not challenged before any competent forum, and the employee instead of filing a grievance petition, succeeded in obtaining two orders( mentioned in instant petition) from this Tribunal through contempt petition---Chairman at that time passed the orders in the main case, and subsequently the petitioner / employee filed execution petition for recovery of decretal amount, which remained pending due to non-payment by the Management/respondent---Though, available material showed that certain/partial payment had been paid to the petitioner (owing to an order passed in another case against the respondent) yet the Tribunal viewed that contempt petition filed by the petitioner was neither maintainable nor proceedable---Matter of contempt of Court is always between the Court and the contemnor and if it is proved that order of the Court has been violated , then the contemnor has to face the consequence, but no Court could reinstate the petitioner in contempt proceedings­---Thus the said previous orders (implementation of which was sought in instant petition) were not validly issued by the Tribunal---Present petition filed by the employee was dismissed, in circumstances.

Muhammad Naeem Khan and another v. Muqadas Khan and others (C.A No. 908 of 2015) Suo Motu Case No.1 of 2922 and PLD 2022 SC 574 ref.

Ghulam Mustafa Butt authorized representative for Petitioner.

2024 P L C 1

[Islamabad High Court]

Before Miangul Hassan Aurangzeb, J

ISLAMABAD ELECTRIC SUPPLY COMPANY

Versus

NATIONAL INDUSTRIAL RELATIONS COMMISSION and others

Writ Petition No.1747 of 2020, decided on 11th October, 2023.

Industrial Relations Act (X of 2012)---

----S.33(4)---Grievance petition---Pre-mature---Filing before expiry of 15 days---Effect---Petitioner / employer company was aggrieved of acceptance of grievance petition of respondent / workman which resulted into regularization of his service---Plea raised by petitioner / employer company was that grievance petition was filed by respondent / workman before expiry of fifteen days from the date of issuance of grievance notice---Validity---Provisions of Industrial Relations Act, 2012 do not render grievance petition filed before expiry of fifteen days as premature---Petitioner / employer company issued reply to grievance notice during pendency of grievance petition and such development had no adverse bearing on the prayer of respondent / workman in grievance petition---Petitioner / employer company was adamant in denying rights and privileges of a permanent workman to respondent / workman at all material stages---Rights and privileges of a permanent workman guaranteed or secured to respondent / workman by law were to be granted to him by operation of law which could not be fettered, restricted or denied through an executive fiat---High Court declined to interfere with concurrent orders passed by National Industrial Relation Commission---Constitutional petition was dismissed, in circumstances.

Executive Engineer v. Abdul Aziz PLD 1996 SC 610; Izhar Ahmed Khan v. Punjab Labour Appellate Tribunal 1999 SCMR 2557; Pakistan Railways v. Sajid Hussain 2020 SCMR 1664; Government of Punjab v. Punjab Appellate Tribunal, Lahore 2002 SCMR 878; Board of Intermediate and Secondary Education v. Muhammad Sajid 2019 SCMR 233; Pakistan Telecommunication Co. Ltd. v. Azeem Kibria Bhatti 2016 PLC 491; Director General, LDA v. Amjad Ali 2004 PLC 224; Saidan Shah v. PTCL 2017 PLC 162; Secretary, State of Karnataka v. Umadevi 2006 (4) SCC 1; Maharashtra State Road Transport Corporation v. Casterive Rajya Parivahan Karmchari Sanghatana 2009 (8) SCC 556 and Mukhtiar Shah v. Presiding Officer, Sindh Labour Court 2008 PLC 12 rel.

Muhammad Asif Khan for Petitioner.

Ch. Mudassir Niaz for Respondents.

Assistance by Amir Hamza Qureshi, Law Clerk.

2024 P L C 18

[Islamabad High Court]

Before Miangul Hassan Aurangzeb and Babar Sattar, JJ

FEDERAL REVENUE ALLIANCE EMPLOYEES UNION through President

Versus

FEDERAL BOARD OF REVENUE through Chairman

I.C.A. No.01 of 2016 in Writ Petition No.4004 of 2010, decided on 22nd June, 2023.

(a) National Industrial Relations Commission (Procedure and Functions) Regulations, 1973---

----Regln. 8(1)---Industrial Relations Act (IV of 2008), S.1(3)(b)---Industrial Relations Act (X of 2012), S.2(xxxiii)---Registration as a trade union, matter of---Intra Court appeal filed by the employees---Maintainability---National Industrial Relations Commission ('N.I.R.C.') allowed registration of few employees of Federal Board of Revenue ('employees') as a trade union( by the name of Federal Revenue Alliance Employees' Union), against which order Federal Board of Revenue ('F.B.R.') filed a constitutional petition---Constitutional petition was allowed---Employees preferred appeal against the said order passed in the constitutional petition---Held, that F.B.R. could not have filed an appeal against the order passed by the Chairman, N.I.R.C., before the Full Bench, N.I.R.C. as S. 12 of the Industrial Relations Act, 2012 ('I.R.A., 2012') conferred a right of appeal against an order passed by the Registrar Trade Unions ('R.T.U.') only to a trade union, its members or an officer of the trade union; which provision did not confer such a right of appeal on the employer---Law did not confer a right of appeal, revision or review on the employer against the order passed by the Chairman, N.I.R.C.---Even S. 14 of the ('I.R.A.2008') conferred a right of appeal on a trade union aggrieved by an order for the cancellation of the registration of a trade union; it conferred no such right on the employer---Intra Court Appeal was maintainable, in circumstances.

(b) National Industrial Relations Commission (Procedure and Functions) Regulations, 1973---

----Regln. 8(1)---Industrial Relations Act (IV of 2008), S. 1(3)(b)---Industrial Relations Act (X of 2012), S. 2(xxxiii)---Registration of employees of the Federal Board of Revenue as a trade union, matter of---"Workers" and "Workmen"---Scope---National Industrial Relations Commission ('N.I.R.C.')allowed registration of few employees of Federal Board of Revenue ('employees') as a trade union( by the name of Federal Revenue Alliance Employees' Union), against which order Federal Board of Revenue ('F.B.R.') filed a constitutional petition---Constitutional petition was allowed primarily on the ground that the members of the appellant / union were civil servants engaged in the administration of the State and therefore could not form a trade union---Employees preferred appeal against the said order passed in the constitutional petition---Plea of the appellant/employees was that though they were employees of the F.B.R. but some of them(members) came within the meaning of "workers" and "workmen"---Objection of the F.B.R. was that since the members of the appellant / union were civil servants as defined in S. 2 of the Civil Servants Act, 1973 ("the 1973 Act") and were employed in the service of Pakistan, they were barred from forming a trade union in terms of S. 1(3)(b) of the Industrial Relations Act, 2008---Validity---At the time when the appellant / employees submitted an application for its registration for a trade union , the I.R.A., 2008 was in vogue---Section 1(3)(b) of the said Act provided that it shall apply to all persons employed in any establishment or industry, but would not apply to any person employed in the administration of the State other than those employed as workmen by the Railway and Pakistan Post---Said provision showed that the provisions of the I.R.A., 2008, were applicable to persons employed as workmen by the Railway and Pakistan Post but not to the persons employed in the administration of the State---After the Chairman, N.I.R.C., passed the order for the registration of the appellant / employees and during the pendency of constitutional petition filed by the F.B.R, the I.R.A., 2012 was enacted---Section 1(3)(b) of I.R.A., 2012, was different in terms to Section 1(3)(b) of the I.R.A., 2008---Section 1(3)(b) of the I.R.A., 2012, made the provisions of the said Act inapplicable to any person employed in the administration of the State other than those employed as workmen---Literally interpreted, S.1(3)(b) of the I.R.A., 2012, did not make the provisions of the said Act inapplicable to persons employed as workmen even though they might be employed in the administration of the State---Words "other than those employed as workmen" in S. 1(3)(b) of the I.R.A., 2012, saved such category of persons employed in the administration of the State from the inapplicability of the said Act---Therefore, the provisions of the I.R.A., 2012, were applicable to the workmen employed by the F.B.R.---Contention of the F.B.R. regarding the appellant being civil servants was not tenable since a "civil servant" as defined in S. 2(b) of the Civil Servants Act, 1973, did not include a person who was either a "worker" or "workman" as defined in the Factories Act, 1934 and the Workers Compensation Act, 1923---Strictly speaking, the workers or workmen employed by the F.B.R. did not come within the meaning of "worker" or "workman" as defined in the said statutes but even so persons employed in the F.B.R. (assuming that they are employed in the administration of the State) would not ipso facto exclude them from the applicability of the I.R.A., 2012---Word "workmen" employed in S.1(3)(b) of the I.R.A., 2012, would be relatable to the definition of the word "workman" in S.2(xxxiii) of the I.R.A., 2012---F.B.R. could not be termed as an "industry" but was an "establishment" where workmen were employed---Additionally, S.2(xxxiii) of the I.R.A., 2012, excluded from the definition of "worker" and "workman", a person falling within the definition of employer---Word "employer" was defined in S.2(ix) of the I.R.A., 2012 and the said definition included "officers and employees of a department of the Federal Government who belonged to the superior, managerial, secretarial, directorial, supervisory or agency staff and who had been notified for said purpose in the Official Gazette" , therefore, any of the appellant who fell within the meaning of the word "employer" as defined in the said section could not be a part of the trade union---Since the members of the appellant came within the meaning of persons employed in the administration of the State but were not employed as workmen by the Railway or Pakistan Post, thus, the provisions of the I.R.A., 2008, were not applicable to them and, therefore, the impugned judgment did not suffer from any legal infirmity---As the development regarding the enactment of the I.R.A., 2012, took place while constitutional petition was pending and since the impugned judgment was passed bearing in mind the provisions of the I.R.A., 2008, there was nothing preventing the appellant from applying to the R.T.U. afresh for registration as a trade union under the provisions of the I.R.A., 2012---Intra-Court Appeal filed by the employees of the F.B.R was dismissed, in circumstances.

Divisional Superintendent, Quetta Postal Division v. Muhammad Ibrahim 2022 SCMR 292 ref.

Barrister Rizwan Ahmad for Appellant.

Mrs. Misbah Gulnar Sharif for Respondent.

2024 P L C 30

[Islamabad High Court]

Before Saman Rafat Imtiaz, J

Messrs KUWAIT AIRWAYS COMPANY through Authorised Representative

Versus

FULL BENCH, NIRC and 2 others

Writ Petition No.3767 of 2022, decided on 23rd May, 2023.

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

----S.Os. 12 &15---Industrial Relations Act (X of 2012), S.33---Termination simplicitor---Allegation of misconduct, absence of---Re-instatement into service---Member-NIRC re-instated workman (lady/Security Assistant) into service with all back benefits by deciding her grievance petition---Petitioner / Company invoked constitutional jurisdiction of the High Court to assail the re-instatement order asserting that due to non-availability of the Respondent [Full Bench-NIRC],its appeal had not yet been fixed for hearing---Contention of the petitioner/company was that the Member-NIRC instead of passing an order on the preliminary objections or framing issues, directly passed the re-instatement order---Validity---Termination Letter showed that reason given for termination of Respondent /employee service was that her services were no longer required and there was also no dispute that one month's salary in lieu of notice was paid to the respondent/employee---Therefore, the petitioner relied upon the provisions of the S.O. 12 of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, ('the Standing Orders 1968'), however, subsections (1) and (5) of S.O., 12 of the S.O., 1968 stipulated that termination on account of misconduct was to be carried out as prescribed in S.O. 15 and that termination for any reason other than misconduct required one month's notice or one month's salary in lieu thereof---According to subsection (3) of S.O. 12 of the Standing Orders 1968, an order, in writing, explicitly stating the reasons for the action taken was necessary in all cases of termination, removal, retrenchment, discharge and dismissal---In the present case, the respondent/Member-NIRC had held that the reason given by the petitioner/company for termination of services of respondent /workman i.e. that her services were no longer required was not an explicit reason for termination of a permanent workman---Petitioner/company had failed to satisfy the High Court as to how such reason was clear, explicit and valid---No reason had been identified as to why the services were suddenly not required by the petitioner/company especially considering that the respondent/workman was employed as a Security Guard---Since the reason given for termination of services was itself lacking necessary explanation, it could not be considered valid, sufficient or explicit---There was also no force in the argument /contention of the petitioner that the Member-NIRC/respondent ought to have recorded evidence in order to determine whether the termination was termination simpliciter or otherwise---Petitioner's own stance was that it was a termination simpliciter which had been accepted by the Member-NIRC, therefore, recording of evidence would not change the outcome---Impugned judgment even showed that the arguments submitted were not in respect of preliminary objections but in fact addressed the merits of the case---No interference was warranted in the impugned order by the High Court---Constitutional petition filed was dismissed, in circumstances.

Allied Bank Limited v. Zulfiqar Ali Shah 2021 SCMR 1213 and Pakistan Mobile Communication Limited v. Full Bench N.I.R.C. and others 2019 PLC (Labour) 86 ref.

Nestle Pakistan Limited v. Member, NIRC and others 2021 PLC 56; Head Human Resource Management MCB Bank, Lahore and others v. Muhammad Shahzad and others 2012 PLC 114; Muhammad Iqbal v. Regional Business Head and others 2011 PLC 292 and Administrator Zila Council, Sahiwal v. Arif Hussain and others 2011 SCMR 1082 distinguished.

Barrister M. Hassan Alam for Petitioner.

Respondent No.3 Ex-parte.

2024 P L C 79

[Islamabad High Court]

Before Miangul Hassan Aurangzeb and Arbab Muhammad Tahir, JJ

PAKISTAN TELECOMMUNICATION COMPANY LIMITED

Versus

PAKISTAN TELECOM LABOUR UNION and others

I.C.A. No.324 of 2016, decided on 27th March, 2023.

Industrial Relations Act (X of 2012)---

----Ss.33, 20, 21 & 60---Constitution of Pakistan, Art.199---Intra Court Appeal---Constitutional petition seeking relief(s) for the enforcement of legal right(s) of the members of trade unions---Maintainability---Collective Bargaining Agent ('CBA'), functions of---Functions of a trade union in the absence of a certified CBA---Scope---Appellant( Pakistan Telecommunication Company Limited ('P.T.C.L.'), impugned the judgment passed by the Single Bench of the High Court whereby constitutional petition filed by respondents (four registered trade unions in the establishment of P.T.C.L.) was partly allowed---Plea of the respondents / trade unions, while placing reliance on S. 21 of the Industrial Relations Act, 2012 ('the I.R.A, 2012'), was that a registered trade union can perform any act or function which is required to be performed under the provisions of the I.R.A, 2012, by a CBA where it has not been notified; and since the CBA had not been notified at the time when the constitutional petition was filed, the respondents / trade unions were well within their rights to have filed the constitutional petition---Validity---All the petitioners in constitutional petition were trade unions in the establishment of P.T.C.L.---Relief that was sought in the constitutional petition as referred to in relevant paragraph of the memo of petition as well as the prayer clause showed that none of the reliefs sought were for the enforcement of any of the legal rights of the trade unions but those of its members---Section 33(1) of the I.R.A, 2012, entitles a worker to bring his grievance in respect of any right guaranteed or secured to him by or under any law or any award or settlement to the notice of his employer in writing "either himself or through his shop steward or collective bargaining agent" within 90 days of the date on which the cause for such grievance arises---Under said S.33(1), a CBA can espouse the cause of a worker by submitting a grievance notice to the employer---Similarly a grievance petition under S. 33(4) of the I.R.A, 2012, against a decision of the employer can be filed before the N.I.R.C. by the CBA when a dissatisfied worker takes the matter to the CBA---Section 20 of the I.R.A., 2012, provides for the functions that the CBA can perform; S.20(1)(b) entitles a CBA to represent all or any of the workmen in any matter or judicial proceedings under the I.R.A, 2012---Unlike S. 33(1) and (4) of the I.R.A, 2012, S. 20(1)(b) only entitles the CBA to "represent" workmen in any matter or judicial proceedings under the I.R.A, 2012, although the said provision entitles the CBA to represent workmen, it does not authorize the CBA to file or institute legal proceedings or to take a matter on behalf of workmen before any forum---Furthermore, under the said provision, the CBA has been entitled to represent workmen in any matter or judicial proceedings under the I.R.A---The term "under this Act" employed in the said provision has reference only to the I.R.A, 2012, and no other statute, therefore, even if it is presumed that the said provision entitles the CBA to file or institute judicial proceedings, such proceedings can only be under the provisions of the I.R.A, 2012---Constitutional petition filed by the respondents / trade unions was under Article 199 of the Constitution, and the petition's proceedings before the High Court in the said petition were most certainly not proceedings under the I.R.A, 2012---Therefore, High Court viewed that S. 20(1)(b) of the I.R.A, 2012, did not entitle a CBA to file or institute a petition under Art. 199 of the Constitution in its own name for the benefit of its members / workmen---Plea of the respondents was of no benefit to them since a CBA could not file or institute a constitutional petition in order to espouse the cause of workmen by relying on S. 20(1)(b) of the I.R.A, 2012---A trade union cannot take advantage of S.21 of the I.R.A, 2012, in order to perform an act or function in absence of a CBA which S. 20 does not confer on it to perform---Even if the rights of the workers which the respondents / trade unions were seeking to enforce by filing a constitutional petition were to be treated as the collective rights of their members / workers, S.60 of the I.R.A, 2012 gives the CBA the right to apply to the N.I.R.C. for the enforcement of any right guaranteed or secured to the workers collectively by or under any law, award, settlement, or decision---In the presence of such an alternative remedy provided by the law, a CBA cannot file a constitutional petition for the enforcement of a right guaranteed or secured to workers under any law, award, settlement, or decision---A fortiori, a trade union, in the absence of a certified CBA, can also not file a constitutional petition to enforce a right guaranteed or secured to workers under any law, award, settlement, or decision---Existence of a legal right is the foundation of a writ of mandamus and the petitioner has to be an aggrieved person---Petitioner, in order to obtain relief by way of a writ of mandamus, must satisfy the High Court that he has a legal right to compel the performance of a duty and the person against whom the right is sought is under a legal obligation to perform the duty---Person cannot be said to be an aggrieved person unless he has a right in the performance of a statutory duty by a person performing functions in respect of any such right---Only an aggrieved person can file a constitutional petition other than a writ of habeas corpus and quo warranto---In the present case, the respondents / trade unions (which were the writ petitioners) were not seeking the enforcement of their own legal rights but those of their members, which was apparent from the prayer sought in the constitutional petition filed by the respondents / trade unions---Therefore, the respondents / trade unions could not be termed as aggrieved persons having the right to file a constitutional petition to espouse the cause of their members---It is no longer res integra that a trade union or an association cannot espouse the cause of its members by filing a constitutional petition in its own name---Thus, the ground taken by the appellant ( P.T.C.L.) regarding the incompetence of the constitutional petition filed by the respondents / trade unions succeeded---High Court set-aside the impugned judgment having been passed in the constitutional petition filed by the respondents / trade unions , thus the same ( constitutional petition) stood dismissed being not maintainable---Dismissal of the said constitutional petition shall not debar the aggrieved workers in the establishment of P.T.C.L. from taking their grievances in accordance with the law before the appropriate forum---Intra Court Appeal filed by Pakistan Telecommunication Company Limited the was allowed, in circumstances.

K.P.M. Employees Union v. Karachi Pipe Mills Ltd. 1992 SCMR 36; Karachi Pipe Mills Ltd. v. Sindh Labour Appellate Tribunal 1984 PLC 1359; Democratic Workers Unions CBA v. State Bank of Pakistan 2002 PLC (C.S.) 614; Muntizma Committee v. Director, Katchi Abadies, Sindh PLD 1992 Kar. 54; Pakistan Diploma Engineering Federation (Regd.) Lahore v. Federation of Pakistan 1987 CLC 2154; Pakistan Steel Re-Rolling Mills Association v. Province of West Pakistan 1964 PLC 121; Mutual Funds Association v. Federation of Pakistan 2010 PLC 306 and Haji Mojakkir Ali v. Regional Transport Authority, Sylhet PLD 1967 Dacca 6 ref.

Shahid Anwar Bajwa for Appellant.

Muhammad Asif Gujjar and Raja Muhammad Jawad Arsalan, Assistant Attorney-General for Respondents.

2024 P L C 188

[Islamabad High Court]

Before Saman Rafat Imtiaz, J

ICI PAKISTAN LIMITED through authorized representative

Versus

APPELLATE AUTHORITY, BOARD OF TRUSTEES OF THE EMPLOYEE OLD AGE BENEFITS INSTITUTION and 2 others

Writ Petition No.118 of 2022, decided on 8th March, 2023.

(a) Employee' Old-Age Benefits Act (XIV of 1976)---

----S.2(bb)---Employee---Definition---Term "employee" includes persons employed through any other person for wages or otherwise to do any work in or in connection with the affairs of an industry and establishment under a contract of service or apprenticeship whether written or oral, express or implied---Such definition has following components: (i) employed, whether directly or through any other person; (ii) for wages or otherwise; (iii) to do any skilled or unskilled, supervisory, clerical, manual or other work in or in connection with the affairs of the industry or establishment; and (iv) under a contract of service or apprenticeship, whether written or oral, express or implied.

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

----Ss. 2(e)(vii), 9, 10, 12 & 40---Road Transport Workers Ordinance (XXVIII of 1961), S.2(7)---Drivers of road transport---Companies/service status of employee---Determination---Petitioner / company was aggrieved of demand notice seeking recovery of contribution on behalf of drivers and other employees of goods transport companies engaged by petitioner / company for distribution of its products all over Pakistan---Validity---Road transport service as per definition under S. 2(e)(vii) of Employees' Old-Age Benefits Act, 1976, read with Road Transport Workers Ordinance, 1961, means an "establishment" in which case it would be the "employer" in relation to the "employees" employed by it directly or through any other person by virtue of definitions of such terms---If clients / customers of such road transport service are considered as "employer" vis a vis the employees of road transport service then definition of "establishment" to the extent of S.2(e)(v) of Employees' Old-Age Benefits Act, 1976, would become redundant as a road transport service would never be the "employer" itself---Authorities failed to consider whether respondent was a road transport service or not and the effect thereof---No hard and fast rule could be laid out for the purpose of determining whether a person was employed by an "industry" or "establishment" through any other person or whether such person was the employee of independent contractor the "industry" or "establishment" had contracted with for provision of services---Each case had to be decided on the basis of its own peculiar facts and circumstances---No decision could be reached without analysis of relevant factors---Authorities in their order and decision in question did not take into consideration relevant factors nor weighed in on them as required---High Court set aside the order and decision in question and matter was remanded to Adjudicating Authority of Employees' Old-Age Benefits Institution to decide petitioner's complaint afresh in accordance with the law---Constitutional petition was allowed accordingly.

Fauji Fertilizers Company Ltd. v. National Industrial Relations Commission 2014 PLC 10 rel.

Farid Company (Pvt.) Ltd. v. Vice-Commissioner, Pessi 2012 SCMR 1428; Muhammad Nawaz v. Member Judicial Board of Revenue 2014 SCMR 914; Messrs Agri Auto Industries Ltd. v. Employees' Old-Age Benefit Institution, Hub Region 1990 PLC 21; Farid Ahmad v. Pakistan Burmah-Shell Ltd., 1987 SCMR 1463; Mian Munir Ahmad v. The State 1985 SCMR 257; Messrs Overseas Marine Trading Agencies (Pvt.) Ltd. v. The Board of Trustees, Employees Old-Age Benefits Institution 2005 PLC 175; Pakistan Burmah Shell Ltd,. Karachi v. Sindh Labour Court No.IV, Karachi PLD 1979 Kar. 109; (incorrectly cited as PLD 1978 Kar. 109; Seagull Exports (Pvt.) Ltd. v. Sindh Labor Appellate Tribunal 2002 PLC 212; Dharangadhra Chemical Works Ltd. v. State of Saurashtra AIR 1957 SC 264; Metropolitan Steel Corpn. Ltd. v. Employees' Old-Age Benefits Institution and the Board through Chairman 2016 PLC 499; Messrs Bolan Mining Enterprises v. Board of Trustees, EOBI 2010 SCMR 1573; Attock Cement Pakistan Company v. The Board of Trustees, Employees' Old-Age Benefits Institution 2004 PLC 106; Messrs Service Sales Corporation (Pvt.) Limited v. Assistant Director, Field Operation Employees' Old-Age Benefits Institution 2001 SCMR 1599; Ghulam Nabi v. Muhammad Mansha 1988 SCMR 1571; Messrs Abdul Aziz Noor Muhammad v. Employees' Old-Age Benefits Institution 1983 PLC 198; Bashir Ahmed Abdini v. Hon'ble Chairman and Member of Administration Committee and Promotion Committee of Hon'ble High Court of Baluchistan 2022 SCMR 448; Mst. Zahida Begum v. Ashfaq Ahmed PLD 2020 Lah. 684; Mst. Noor Elahi v. Muhammad Abbas 2022 YLR 2383; Saudagar, EPS Industries (Pvt.) Ltd. v. Deputy Commissioner Inland Revenue, Audit Unit-02, Zone-III, 2021 PTD 2024; General Manager Pakistan International Airlines v. Matiullah 2017 PLC 148; Sindh Employees' Social Security Institution, Karachi v. Philips Electrical Industries of Pakistan Ltd., PLD 1977 Kar. 451; Pakistan Tobacco Co. Ltd. v. Punjab Employees' Social Security Institution, Lahore PLD 1978 Lah. 704 and Taj Din v. Punjab Labour Court No.3 PLD 1976 Lah. 1169 ref.

Barrister Yousaf Khosa, Malik Omair Saleem and Abdullah Alim Qureshi for Petitioner.

Khurram Mahmood Qureshi for Respondents Nos.1 and 2.

Raja Rafique Janjua for Respondent No.3.

2024 P L C 253

[Islamabad High Court]

Before Miangul Hassan Aurangzeb, J

PAKISTAN INTERNATIONAL AIRLINES CORPORATION LIMITED

Versus

FULL BENCH, NIRC and others

Writ Petition No.738 of 2023, decided on 10th June, 2024.

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

----S.Os. 12 & 15---Termination of service---Workman of permanent nature---Petitioner / Pakistan International Airline Corporation (PIAC) was aggrieved of concurrent orders passed by both the fora of National Industrial Relation Commission directing reinstatement of respondent---Validity---Respondent had been working at PIAC's premises for more than twelve years---Work performed by respondent at PIAC's premises was not of a permanent nature---If duties performed by respondent were not related to running the core affairs of PIAC, he could not have been kept engaged to work at PIACs premises for such a long period of time---It was not material as to what agreements between PIAC and service providers provided for supervision of respondent's work but the fact remained that the letter of termination of respondent showed that it was the Station Manager of PIAC who had reported about misconduct on the part of respondent---Such fact showed that respondent had been working under the supervision of PIAC---There was no record to show that respondent was representative of service provider at PIAC's premises under whose order of dictation respondent performed his duties---Respondent had been working at PIAC's premises and for the purpose of labour laws he was a worker in the establishment of PIAC and was entitled to benefits and entitlement of permanent worker---High Court declined to interfere in concurrent orders passed by two fora below---Constitutional petition was dismissed, in circumstances.

Pakistan International Airline Corporation v. Akhtar Ali 1974 PLC 235; Muhammad Malik v. Chief Executive PLJ 2019 Tribunal Cases (Note) 156; Messrs Bolan Mining Enterprises v. Board of Trustees 2016 PLC 468; Messrs Allied Precision Engineering Products (Pvt.) Ltd. v. J. Handa Khan Maree 2011 PLC 286; Executive Engineer v. Abdul Aziz PLD 1996 SC 610; Izhar Ahmed Khan v. Punjab Labour Appellate Tribunal 1999 SCMR 2557; Government of Punjab v. Punjab Appellate Tribunal, Lahore 2002 SCMR 878; Board of Intermediate and Secondary Education v. Muhammad Sajid 2019 SCMR 233; Pakistan Telecommunication Co. Ltd. v. Azeem Kibria Bhatti 2016 PLC 491; Director General, LDA v. Amjad Ali 2004 PLC 224; Saidan Shah v. PTCL 2017 PLC 162 and Pakistan International Airlines Corporation v. Board of Trustees, Employees' Old-Age Benefits 2011 SCMR 1102 ref.

Fauji Fertilizer Company Ltd. v. National Industrial Relations Commission 2013 SCMR 1253 and State Oil Company Limited v. Bakht Siddique 2018 SCMR 1181 rel.

Mohammad Umer Khan Verdag for Petitioner.

Respondent No.3 in person.

Respondent No.4 ex-parte.

2024 P L C 324

[Islamabad High Court]

Before Miangul Hassan Aurangzeb, J

PAKISTAN TELECOMMUNICATION COMPANY LTD.

Versus

Mst. FATIMA and others

Writ Petition No.3226 of 2019, decided on 18th August, 2023.

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

----Ss. 33(6)& 33(7)---Orders passed by the National Industrial Relations Commission ('NIRC'), non-compliance of---Complaint against the employer for its non-compliance of previous order(s) passed by NIRC---Order of the NIRC not specifying a date /period for compliance of order---Lady, who was appointed as Naib Qasid by Pakistan Telecommunication Company Limited ('PTCL') retired on superannuation; her pensionary benefits were allowed by the National Industrial Relations Commission ('NIRC') vide two orders which (orders) were maintained upto the Supreme Court, thus, having attained finality ('the final orders'); on non-compliance, she filed complaint /petition before the National Industrial Relations Commission ('NIRC') praying not only for a direction to pay all pensionary benefits but also for the PTCL (respondents in the said complaint) to be punished for not showing compliance with the final orders---National Industrial Relation Commission allowed worker's complaint / petition against the employer /PTCL---Employer (PTCL) filed constitutional petition assailing order passed by the Full Bench- NIRC whereby its appeal against the said (complaint allowing) order was dismissed---Question was whether the NIRC could punish petitioner/PTCL or any of its (PTCL's) officers for defaults in giving effect to its(NIRC'S) previous (two/final) orders---Contention of the petitioner /PTCL was that S.33(7) of the IRA, 2012, did not permit the prosecution of a person under S.33(6) if the order or decision of the NIRC did not specify a date within which such order or decision was to be implemented---Validity---Section 33(6) of the Industrial Relations Act, 2012, (IRA, 2012) empowers the NIRC to punish a person with imprisonment (for a term which may extend for a period of one year) or with a fine (which may extend to Rs.75,000/-) or both where such person defaults in giving effect to or complying with an order or a decision of the NIRC within seven days or within the period specified in such order or decision---Section 33(7) of the IRA, 2012, provides that no person shall be prosecuted under S.33(6) except on a complaint in writing (a) by the workman if the order or decision in his favour is not implemented within the period specified therein; or (b) by the NIRC if an order or a decision thereof is not complied with---In the present case, indeed, the two /final orders-in-question passed by the NIRC did not fix a time frame within which the directions issued to PTCL were required to be implemented---Since S. 33(6) of the IRA, 2012, makes a defaulter punishable with imprisonment for not giving effect to or complying with an order or a decision of the NIRC within seven days of such order or decision, High Court viewed that the omission on the part of the NIRC to fix a time frame within which the said orders were to be implemented did not insulate PTCL or its officers from prosecution under S.33(6) if such order or decision was not implemented within seven days---It is only in cases where the NIRC specifies a period of more than seven days within which its order or decision is to be given effect to or complied with that prosecution against the defaulter under S.33(6) cannot be initiated on the lapse of seven days of the order or a decision---In order to avoid prosecution under S. 33(6) for non-compliance with orders or decisions of the NIRC which do not specify a date by which they are required to be given effect to or complied with, such orders or decisions ought to be implemented within a period of seven days---Therefore, contention of the petitioner (employer /PTCL) was without any substance---Although the Member- NIRC's order did not prescribe a time limit within which the said order was to be implemented, since it was admittedly not given effect to or complied with within seven days, respondent/worker was well within her rights to have filed a complaint against the petitioner under S. 33(6) of the IRA, 2012---In the present case, the petitioner/PTCL's reluctance to give respondent her dues in accordance with the orders of the NIRC, which had been upheld by the Supreme Court had caused her to be embroiled in litigation over a period of a decade---Constitutional petition, filed by the employer (PTCL), was dismissed with costs throughout.

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

----Ss.33(5), 33(6), 33(7), 57(1)(a), 57(2)(a) & 67(8)---National Industrial Relations Commission (Procedure and Functions) Regulations, 2016, Reglns. 45 & 57---Orders passed by the National Industrial Relations Commission ('NIRC'), non-compliance of---Complaint against the employer for its non-compliance of previous order(s) passed by NIRC---National Industrial Relation Commission to punish non-compliant / defaulter---Powers---Lady, who was appointed as Naib Qasid by Pakistan Telecommunication Company Limited ('PTCL'), retired on superannuation ; her pensionary benefits were allowed by the National Industrial Relations Commission ('NIRC') vide two orders which (orders) were maintained upto the Supreme Court, thus, having attained finality ('the final orders') ; on non-compliance, she filed complaint / petition before the National Industrial Relations Commission ('NIRC') praying, not only for a direction to pay all pensionary benefits, but also for the PTCL (respondents in the said complaint) to be punished for not showing compliance with the final orders---National Industrial Relations Commission allowed worker's complaint / petition against the employer /PTCL---Employer (PTCL) filed constitutional petition assailing order passed by the Full Bench- NIRC whereby its appeal against the said (complaint allowing) order was dismissed---Question was whether the NIRC could punish petitioner/PTCL or any of its (PTCL's) officers for defaults in giving effect to its (NIRC'S) previous (two/final ) orders---Contention of the petitioner/PTCL was that unlike the previous laws (Industrial Relations Ordinance, 1969), there was no provision in the Industrial Relations Act, 2012, ('the IRA, 2012') which gave the NIRC the powers of a Court of a Magistrate for the purpose of trying an offence---Validity---There are indeed no provisions in the IRA, 2012 which correspond to S. 22B(3)(a) or S. 36 of the Industrial Relations Ordinance, 1969---However, Regln. 57 of the National Industrial Relations Commission (Procedure and Functions) Regulations, 2016 ('the Regulations, 2016'), which have been made by the NIRC makes the provisions of the Code of Criminal Procedure, 1898, applicable to the proceedings in relation to trial of offences before the NIRC, whereas Regln. 45 of the Regulations, 2016 provides that the procedure prescribed under the Code of Civil Procedure, 1908 in regard to suits may be followed, as far as it can be made applicable, in the proceedings for adjudication and determination of industrial disputes, including adjudicating applications brought under Ss. 33 & 54(e) of the IRA, 2012---Vires of the Regulations, 2016 had not been challenged by the petitioner---Even though S. 66(1) of the IRA, 2012, does not require the approval of the Federal Government to be given to Regulations made by the NIRC, these Regulations are to be applied and enforced by the NIRC as long as they remain in the field---Therefore, the NIRC, while proceeding with the petitioner's prosecution under S. 33(6) of the IRA, 2012, was to exercise powers and follow the procedure prescribed in the said Regulations---Section 57 of the IRA, 2012, confers certain additional powers on the NIRC---Under S. 57(1)(a), the NIRC has the power to punish any person who obstructs or abuses its process or disobeys any of its orders or directions or does anything which tends to prejudice the case of a party before it, or tends to bring it or any of its members in relation to proceedings of the NIRC into hatred or contempt, or does anything which, by law, constitutes contempt of Court, with simple imprisonment which may extend to six months or a fine which may extend to Rs.50,000/- or with both---Powers of the NIRC under S.57(1)(a) are akin to the powers to punish for contempt of Court---For the exercise of its powers under S.57(1)(a), the NIRC need not refer or send the case to a Labour Court or a Court of a Magistrate---Power under the S. 57(1)(a) has been conferred on the NIRC to exercise---It is perhaps for this very reason that S.57(2)(a) empowers the Commission to initiate prosecution, trial or proceedings, or take action, with regard to any matter relating to its functions---It was not disputed that the order dated 18.06.2019 passed by the learned Member, NIRC was to be considered as an order passed under S. 33(5) of the IRA, 2012---If an order passed under S. 33(5) is not given effect to or complied with within seven days or the time specified in the order, S.33(6) makes the defaulter liable to punishment with imprisonment for a term which may extend to one year or with a fine which may extend to Rs.75,000/-, or with both---Non-compliance with directions issued by the NIRC in its decisions or orders would also amount to disobedience of such directions entailing the penalty prescribed in S.57(1)(a) of the IRA, 2012---Petitioner/PTCL's reluctance to give respondent her dues in accordance with the orders of the NIRC which had been upheld by the Supreme Court had caused her to be embroiled in litigation over a period of a decade---Constitutional petition, filed by the employer (PTCL), was dismissed with costs through out.

Pakistan Telecommunication Company Ltd. v. Member NIRC 2014 SCMR 535 ref.

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

----Ss. 33(5), 33(6), 33(7), 57(1)(a), 57(2)(a) & 67 (8)---Orders passed by the National Industrial Relations Commission ('NIRC'), non-compliance of---Complaint against the employer for its non-compliance of previous order(s) passed by NIRC---National Industrial Relations Commission to punish non-compliant / defaulter---Powers---Lady, who was appointed as Naib Qasid by Pakistan Telecommunication Company Limited ('PTCL'), retired on superannuation ; her pensionary benefits were allowed by the National Industrial Relations Commission ('NIRC') vide two orders which (orders) were maintained upto the Supreme Court, thus, having attained finality ('the final orders') ; on non-compliance, she filed complaint / petition before the National Industrial Relations Commission ('NIRC') praying not only for a direction to pay all pensionary benefits, but also for the PTCL (respondents in the said complaint) to be punished for not showing compliance with the final orders---National Industrial Relations Commission allowed worker's complaint / petition against the employer / PTCL---Employer (PTCL) filed constitutional petition assailing order passed by the Full Bench-NIRC whereby its appeal against the said (complaint allowing) order was dismissed---Question was whether the NIRC could punish petitioner/PTCL or any of its ( PTCL's) officers for defaults in giving effect to its (NIRC'S) previous (two/final) orders---Contention of the petitioner /PTCL was that only a Labour Court or a Court of a Magistrate could conduct proceedings to punish a defaulter for not giving effect to or not complying with or violating a decision or order of the NIRC---Validity---If the High Court were to accept the said contention of the petitioner, it would not just amount to attributing redundancy to Ss. 33(6) & (7), S. 57(1)(a) & (2)(a) and S.67(8) of the Industrial Relations Act, 2012, but would encourage such defaulters to flout decisions or orders of the NIRC with impunity and leave the downtrodden workman to languish before different Courts in order to harvest the benefits of labour laws or to implement decisions or orders of the NIRC---In the present case, the petitioner/PTCL's reluctance to give respondent her dues in accordance with the orders of the NIRC which had been upheld by the Supreme Court had caused her to be embroiled in litigation over a period of a decade---Constitutional petition, filed by the employer (PTCL), was dismissed with costs throughout.

Shahid Anwar Bajwa and Abdur Rehman Bajwa for Petitioner.

Raheel Zafar, Senior Manager (Legal), Nauman Ahmad, Executive Legal, Ubaid Abbasi, Manager (Legal), P.T.C.L.

Munawar Iqbal Duggal, Additional Attorney General for Respondents.

Arshad Mehmood Kiani, Deputy Attorney-General.

Mirza Muhammad Afzal for Respondent No.1.

2024 P L C 11

[Sindh High Court (Hyderabad Bench)]

Before Adnan Iqbal Chaudhry, J

ENGRO FOODS LTD. through General Manager Human Resources Supply Chain

Versus

REGISTRAR OF TRADE UNION and 5 others

C.P. No.S-646 of 2014, decided on 18th August, 2022.

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

----Ss. 2(xxxii), 12, 24 & 43---Industrial Relations Act (X of 2012), Ss.9 & 10---Constitution of Pakistan, Art.143---Constitutional petition---Trade union---Registration---Trans-provincial establishment--Effect---Petitioner / trans-provincial establishment was aggrieved of registration of respondent trade union by Provincial authorities on the plea that the workers who formed respondent trade union were out sourced work force and were employees of third party contractors---Contention of respondent trade union was that registration had already been made by Provincial authorities and petitioner had an alternate remedy under S. 43 of Sindh Industrial Relations Act, 2013---Validity---By virtue of Art. 143 of the Constitution, provincial industrial relations law would be overridden---Even if registration of respondent trade union under Sindh Industrial Relations Act, 2013, was lawful at the relevant time, if it was subsequently established that the petitioner was a trans-provincial establishment, the registration of respondent trade union under Sindh Industrial Relations Act, 2013, would be overridden and then, all other grounds raised for challenging such registration recede to the background, and the question whether S. 43 of Sindh Industrial Relations Act, 2013, had provided an alternate remedy to petitioner also did not arise---Petitioner was a trans-provincial establishment, which fact had already been established by way of registration certificate issued under Ss. 9 & 10 of Industrial Relations Act, 2012 to trade union of the workers of petitioner's establishment, and certificate of CBA issued to the same trade union under S.19 of the Industrial Relations Act, 2012---Such certificates were not disputed by respondents and manifested that petitioner was recognized as a trans-provincial establishment by Registrar Trade Unions under Industrial Relations Act, 2012---Registration certificate issued to respondent trade union under Sindh Industrial Relations Act, 2013, stood overridden or superseded by subsequent certificate issued under Ss. 9 & 10 of Industrial Relations Act, 2012 and the former certificate was of no further legal effect---Proceedings under S. 24 of Sindh Industrial Relations Act, 2013, pending before Registrar to determine CBA in relation to petitioner's establishment stood abated---High Court directed Registrar of trade unions under Sindh Industrial Relations Act, 2013, to amend his register accordingly---Constitutional petition was allowed accordingly.

Sui Southern Gas Company Ltd. v. Federation of Pakistan 2018 SCMR 802; Hakimsons Chemical Industries (Pvt.) Ltd. v. Registrar of Trade Unions (West), Government of Sindh 1999 SCMR 234; Essa Cement Industries Workers Union v. Registrar of Trade Unions, Hyderabad Region 1998 SCMR 1964; Sui Southern Gas Company Ltd. v. Registrar of Trade Unions 2020 SCMR 638; KESC v. NIRC PLD 2014 Sindh 553 = 2015 PLC 1 and Pakistan Telecommunication Company Ltd. v. Member NIRC 2014 SCMR 535 ref.

Faisal Mahmood Ghani for Petitioner.

Nemo for Respondents Nos.1 and 4.

Jamshed Ahmed Faiz for Respondent No.2.

Ch. Azhar Elahi for Respondents Nos.3 and 5.

Ayaz Ali Rajpar, Assistant Advocate General, Sindh for Respondent No.6.

2024 P L C 25

[Sindh High Court]

Before Muhammad Shafi Siddiqui and Rashida Asad, JJ

PAKISTAN TELECOMMUNICATION COMPANY LTD. through Authorized Officer

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of Human Resources Development and Overseas Pakistan and 4 others

Constitutional Petition No.D-3853 and C.M.A. No.16813 of 2022, decided on 23rd June, 2022.

Industrial Relations Act (X of 2012)---

----S.57---National Industrial Relations Commission, powers of---Re-instatement in service---Contempt proceedings---Petitioner / Pakistan Telecommunication Company ('Company') Limited was aggrieved of order passed by Single Bench of NIRC reinstating respondent / employee and also contempt proceedings initiated for non-compliance of reinstatement order---Petitioner / company invoked Constitutional jurisdiction of High Court as Full Bench of NIRC was not functional---Validity---High Court directed petitioner / Company to appoint an authorized person who would appear and assist and satisfy NIRC regarding not reinstating respondent, despite lapse of six years---In case of failure to satisfy as such, NIRC would be competent to take action including contempt proceedings against petitioner / Company---High Court further directed petitioner / Company to depute an authorized officer to file reinstatement letter and differential amount after recalculation of back benefits to the satisfaction of NIRC---Failure to make compliance of any of the terms so mentioned would be considered as contempt of Court, apart from any additional defiance that could take place before NIRC---Constitutional petition was disposed of accordingly.

Muslim Commercial Bank v. Federation of Pakistan PLD 2019 Sindh 624 ref.

Zia-ul-Haq Makhdoom for Petitioner.

Kafeel Ahmed Abbasi, Deputy Attorney General.

Shujauddin for Respondent No.5.

2024 P L C 100

[Sindh High Court]

Before Muhammad Junaid Ghaffar and Agha Faisal, JJ

KARACHI SHIPYARD AND ENGINEERING WORKS LTD. through Managing Director

Versus

SINDH LABOUR APPELLATE TRIBUNAL and another

Constitutional Petition No.D-1320 of 2017, decided on 22nd November, 2022.

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

----S. 34---Constitution of Pakistan, Art. 199---Grievance petition---Right, accrual of---Limitation---Higher pay-scale of worker, entitlement to---Grievance of the Worker, who was initially appointed in pay-scale-02 , was that he ought to have been appointed in pay-scale -05---Labour Court dismissed grievance petition of the worker for having been filed after sixteen years of accrual of his alleged grievance---Employer (Karachi Shipyard and Engineering Works Ltd.) invoked constitutional jurisdiction of the High Court as the Labour Appellate Tribunal ('Tribunal') allowed appeal preferred by the worker reversing the findings of the Labour Court holding the limitation was mere technicality---Validity---Ambit of the constitutional jurisdiction of the High Court 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 High Court to ensure that any discretion exercised by the subordinate forum was done judiciously pursuant to sound legal principles and not contrary to law or usage having the force of law---In the present case, evidence (including the relevant cross-examination) having been adduced by the grievance petitioner (worker) in the proceedings before the Labour Court demonstrated that the petitioner was aware of his pay-scale at the time of his appointment in the year 1995; he admitted having received the salary from time to time and clearly stated that the terms of engagement never said that his employment would be in pay-scale 5---Prescriptions of limitation are not mere technicalities and disregard thereof would render entire law of limitation otiose---It is incumbent upon the Courts to first determine whether the proceedings filed before them were within time and the Courts are mandated to conduct such a exercise regardless of whether or not an objection has been taken in such regard---Each day of delay had to be explained---Section 34 of the Sindh Industrial Relations Act, 2013 provides a time-period of three months for a worker to bring his grievance to light, from the date of accrual of cause---In the present case, the cause was brought to light well beyond the limitation period and said fact had not been controverted in the impugned judgment---High Court observed that the Tribunal erred in disregarding the applicable law of limitation---Evidence before the Tribunal did not support its finding, which , prima facie, were rested on unjustified surmises and conjectures---Tribunal articulated no cavil to the grievance being hopelessly time-barred, however, inordinately disregarded the law of limitation while terming the same merely technical---High Court viewed that the impugned judgment was predicated upon erroneous assumption of facts misapplication of the law, hence, could not be sustained---High Court set aside the impugned judgment passed by the Labour Appellate Tribunal---Constitutional petition filed by the employer, was allowed, in circumstances.

Mehmood Khan Mahar v. Qamar Hussain Puri and others 2019 MLD 249; LDA v. Sharifan Bibi PLD 2010 SC 705; Awan Apparels (Private) Limited and others v. United Bank Limited and others 2004 CLD 732 and Lt. Col. Nasir Malik v. ADJ Lahore and others 2016 SCMR 1821 ref.

Muhammad Nishat Warsi for Petitioner.

Ehsanullah for Respondents.

Abdul Jalil Zubedi, Additional Advocate General.

2024 P L C 237

[Sindh High Court (Hyderabad Bench)]

Before Muhammad Faisal Kamal Alam, J

WATEEN TELECOM (PVT.) LIMITED through Authorized Officer

Versus

ABDUL SATTAR KHOSO and 3 others

Constitution Petition No.S-206 of 2023, decided on 6th November, 2023.

Sindh Payment of Wages Act, 2015 (VI of 2017)---

----Ss. 15(2) & 17---Constitution of Pakistan, Art. 199---Constitutional jurisdiction of High Court---Scope---Alternate remedy of appeal under S.17 of the Sindh Payment of Wages Act, 2015 ('Act') not exhausted---Some of the workers of a Trans-Provincial Entity filed an application on behalf of all others for payment of wages at the enhanced rate on the basis of a notification, which was allowed through the impugned decision---Objections as to jurisdiction of respondent-authority and maintainability of application remained unattended---Notification was subsequently set aside by the Supreme Court---Contentions of petitioner were that decision was taken by the respondent-authority in a slipshod manner without conducting inquiry under S. 15(3) of the Act as to the genuineness of claim; that entire amount awarded was deposited with the respondent-authority; that employer instead of challenging the decision of the authority opted to file a constitutional petition---Validity---Objection with regard to jurisdiction had not been dealt with in a proper manner in the impugned decision---Where two workers were pleading the case of other workers, it was necessary to hold an inquiry to verify the claim of purported aggrieved workers, which admittedly was not done---In the impugned decision it was stated that respondent had not disputed the applicability of Labour Laws, however, this finding was completely contrary to the record, in view of the above discussion, inter alia, that written objection with regard to jurisdiction was taken, which was not considered in the impugned decision properly---Constitutional petition was accepted, impugned decision was set aside and the case was remanded to respondent-authority for decision afresh.

Sui Southern Gas Company Ltd. and others v. Federation of Pakistan and others 2018 SCMR 802; K. Electric Limited through Authorized Personnel v. Muhammad Aslam Shah and others 2021 PLC Lab. 108 and Lawrencepur Woolen and Textile Mills Ltd. v. Government of the Punjab and others PLD 2004 SC 416 ref.

Federation of Pakistan and others v. Province of Sindh 2022 PLC 124 rel.

Barrister Refey Altaf along with Jawad Ahmed Qureshi for Petitioner.

Kewal Kumar for Respondents.

2024 P L C 287

[Sindh High Court (Sukkur Bench)]

Before Adnan-ul-Karim Memon and Muhammad Abdur Rehman, JJ

TAIMOOR ALI

Versus

Messrs CONTINENTAL BISCUITS LTD. through Factory Manager and 2 others

Constitution Petition No.D-1807 of 2023, decided on 30th April, 2024.

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

----Ss.2(xxxii), 33, 54(a) & 57(2)(b)---Individual grievance of a worker, who has been terminated, removed, retrenched, discharged, or dismissed from employment in a trans-provincial establishment---Redressal---Competent forum---Non-compliance of obligation to approach the appropriate forum---Effect---Grievance notice served by the petitioner upon the respondent-establishment against his verbal termination remained unattended---Grievance petition was dismissed and upon preferring an appeal the matter was disposed of while returning the grievance application to the petitioner to present it before NIRC for the reason that respondent-establishment was a Trans-Provincial establishment---Legality---Under S.57(2)(b) of IRA, 2012, the Commission has been empowered to withdraw from a Labour Court of a Province any applications, proceedings or appeals relating to unfair labour practice, which fall within its jurisdiction---Proviso has been added to the above provision, to the effect that "no Court, including Labour Court, shall take any action or entertain any application or proceedings in respect of a case of unfair labour practice"---Besides, IRA, 2012 does not provide such directions that cases are to be transferred automatically---Petitioner ought to have been vigilant as it is settled law that ignorance of the law is no excuse, and as the petitioner was well aware of the factum that respondent-establishment was a Trans-Provincial Establishment and grievance application was to be filed before the NIRC and not Sindh Labour Court and/or Sindh Labour Appellate Tribunal---Law favours the vigilant and not the indolent, as such, the proceedings initiated by the Sindh Labour Court were rightly set at naught by the Sindh Labour Appellate Tribunal and the grievance application was returned to the petitioner to approach NIRC---Constitution petition was disposed of, in circumstances.

Suit Southern Gas Ltd. and others v. Federation of Pakistan 2018 SCMR 802; Civil Appeal No.377 of 2014; Civil Appeal Nos.481 of 2017 and 918 and 904 of 2020. ref.

Pakistan Telecommunication Company Ltd. v. Member NIRC 2014 SCMR 535 rel.

(b) Administration of justice---

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

(c) Constitution of Pakistan---

----Art.199(1)(a)(ii)---Supervisory jurisdiction of High Court---Writ of certiorari---Scope---Certiorari is available to quash a decision for an error of law and the same is also issued for correcting errors of jurisdiction when an inferior Court or a tribunal acts without jurisdiction or over its jurisdiction or fails to exercise its jurisdiction or where the Court or a tribunal acts illegally in the exercise of its undoubted jurisdiction and it decides a matter in violation of the principle of natural justice---High Court while issuing a writ of certiorari acts in the exercise of supervisory jurisdiction.

Shahzado Dreho for Petitioner.

Shoukat Ali Chaudhry for Respondent.

Ali Raza Baloch, A.A.G.

2024 P L C 114

[Lahore High Court]

Before Abid Hussain Chattha, J

Messrs LAHORE CARPET MANUFACTURING COMPANY through General Manager

Versus

MUHAMMAD JAMIL and 3 others

Writ Petitions Nos.40697, 40700, 40702, 40707, 40710 and 40713 of 2023, decided on 21st December, 2023.

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

----Ss. 44 & 47(5)---Payment of Wage Act (IV of 1936), S.15---Revisional jurisdiction---Scope---Respondents / workmen were allowed recovery of their wages---Petitioner / employer was aggrieved of revisional jurisdiction exercised by Labour Appellate Tribunal---Validity---Labour Court constituted under S. 44 of Punjab Industrial Relations Act, 2010, is empowered to exercise and perform such other powers and functions as are or may be conferred upon or assigned to it by Punjab Industrial Relations Act, 2010, or any other law such as Payment Wages Act, 1936---Labour Court exercises jurisdiction over disputes beyond the purview of Punjab Industrial Relations Act, 2010---Labour Court under the command of S. 17 of Payment of Wages Act, 1936, is competent to hear appeals against Authority constituted under S. 15 of Payment of Wages Act, 1936---Punjab Labour Appellate Tribunal constituted under S. 47 of Punjab Industrial Relations Act, 2010, exercises both appellate and revisional powers with respect to orders passed by Labour Court subject to various provisions of Punjab Industrial Relations Act, 2010---There is no bar upon any party in laying information before Punjab Labour Appellate Tribunal in the form of a Revision Petition not as a matter of right but in the discretion of Punjab Labour Appellate Tribunal which in turn may decide to assume revisional jurisdiction depending upon facts and circumstances of each case warranting exercise or otherwise of revisional jurisdiction---If Punjab Labour Appellate Tribunal exercises its revisional powers, the Tribunal acts within its lawful revisional jurisdiction to examine correctness, legality or propriety of any order passed by Labour Court---Punjab Labour Appellate Tribunal had revisional power with respect to an order passed by Labour Court in appeal preferred under S.17 of Payment of Wages Act, 1936---Mere signing of unilaterally prepared 'Final Settlement Forms' by respondents / workmen could not be regarded as final settlements in absence of their free consent---Respondents / workmen promptly agitated their grievances and were still pursuing the same---Mere receipt of partial amounts based upon calculations of petitioner / employer did not place any bar upon respondents / workmen to invoke law for redressal of their grievances---High Court declined to interfere in judgments passed by for a below as there was no illegality or infirmity or jurisdictional defect---Constitutional petition was dismissed, in circumstances.

Habib Bank Ltd. through President and 2 others v. Authority under Payment of Wages Act and another 2016 PLC 61; Marhaba Laboratories (Pvt.) Ltd. v. Punjab Labour Court No. 2, Lahore and others (W. P. No. 21196 / 2016); Muhammad Hussain and others v. Islamic Republic of Pakistan through Chairman, Railway Board Lahore and others PLD 1991 SC 385; Jang Group of Newspapers Limited and others v. Presiding Officer and others (W.P. No. 10067 / 2017); Pakistan Telecommunication Company Ltd. v. Member, NIRC and others 2014 SCMR 535; Ghulam Qadir and others v. Sh. Abdul Wadood and others PLD 2016 SC 712; Khan Bahadur Khan v. Khan Malook Khan PLD 2022 SC 482 and Messrs Norwich Union Fire Insurance Society Limited v. Muhammad Javed Iqbal and another 1986 SCMR 1071 ref.

Sheraz Mahmood and Mubashar Hussain for Petitioners.

Khawaja Omer Masood for Respondent No.1.

2024 P L C 146

[Lahore High Court (Rawalpindi Bench)]

Before Shujaat Ali Khan, J

SARWAR MASIH

Versus

CHAIRMAN PUNJAB LABOUR APPELLATE TRIBUNAL and others

Writ Petition No.141 of 2017, heard on 30th October, 2023.

(a) Employment---

----Show-cause notice---Served to employee---Wrong provision of law---Effect---If rules referred to in show-cause notice were not alive, then such show-cause notice cannot be considered as a case of wrong provision of law.

(b) Fundamental Rules---

----F.R. 54---Constitution of Pakistan, Art. 199---Constitutional petition---Reinstatement in service---Acquittal in criminal case---Petitioner was arrested in a criminal case and was confined in prison---Authorities dismissed him from service due to his absence for duty---Petitioner after his acquittal in criminal case sought his reinstatement on the plea that no notice was ever served upon him under the law---Validity---Departmental and criminal proceedings have no overlapping effect on each other rather the same carry their independent status---No inquiry was conducted against petitioner prior to imposition of major penalty of dismissal from service and departmental proceedings conducted at his back could not be considered as sacrosanct---Both forums below failed to appreciate such facts of the case in their true perspective and did not apply law on the subject, judicially---High Court set aside the order dismissing petitioner from service and remanded the matter to authorities for decision afresh---Constitutional petition was allowed accordingly.

Tanveer Hussain v. Raviryan Limited through Managing Director and others 2007 SCMR 737; Azizullah Memon v. Province of Sindh and another 2007 SCMR 229; Khurrum Rasheed v. The Secretary to Government of the Punjab and others 2017 PLC (C.S) Note 110; Khushi Muhammad through L.Rs. and others v. Mst. Fazal Bibi and others PLD 2016 SC 872; Khalid Imran Khan Barki v. Government of Punjab and others 2021 PLC (C.S.) 426; PIRIDNO and another v. Khurshid Begum 1989 SCMR 880; Niaz Muhammad v. Abdul Rehman PLD 2015 Pesh. 90; Muhammad Aslam Instructor, Animal Husbandry Service Training Institute, Daudzai Peshawar District v. Government of N.W.F.P. through Secretary Food, Agriculture, Livestock and Cooperative Department, Peshawar 1998 PLC (C.S.) 1430 and Ghazi Khan Vehicle Driver Cereal Crops Research Institute Pirsabak Nowshera v. Director General Agriculture Research Office and 3 others 2019 PLC (C.S.) Note 39 ref.

Khawaja Muhammad Arif for Petitioner.

Malik Amjad Ali, Additional Advocate-General, Punjab for Respondents.

2024 P L C 170

[Lahore High Court]

Before Ch. Muhammad Iqbal and Muzamil Akhtar Shabir, JJ

Mst. ASMA ABDUL WARIS

Versus

STATE BANK OF PAKISTAN through its Governor and 4 others

I.C.A. No.18654 in W.P. No.12119 of 2023, decided on 20th March, 2023.

Banking Companies Ordinance (LVII of 1962)---

----S.11---Employee of a private bank---Service appeal---State Bank of Pakistan, jurisdiction of---Appellant was dismissed from service and her appeal was not entertained by State Bank of Pakistan---Validity---State Bank of Pakistan did not have jurisdiction to hear and decide service matters of employees of banks---Where jurisdiction was not vested by law, Courts could not confer such jurisdiction on any authority---Jurisdiction could not be conferred by parties even by consent---Division Bench of High Court declined to interfere in judgment passed by Judge in Chambers of High Court as there was no illegality, jurisdictional defect or mis-reading of record and was well reasoned---Intra Court Appeal was dismissed, in circumstances.

Noor Badshah v. United Bank Limited and others 2015 PLC (C.S.) 468; MCB Bank Limited v. State Bank of Pakistan and others 2010 CLD 338; Eden Builders (Pvt.) Limited, Lahore v. Muhammad Aslam and others 2022 SCMR 2044; Water and Power Development Authority through Chairman, WAPDA and 4 others v. Abdul Shakoor through Legal Heirs PLD 2008 Lah. 175; Mall Development (Pvt.) Ltd. v. Waleed Khanzada and others 2022 SCMR 2080; Attaullah Khan v. Ali Azam Afridi and others 2021 SCMR 1979; Muhammad Hanif Abbasi v. Imran Khan Niazi PLD 2018 SC 189; The Collector of Sales Tax, Gujranwala v. Super Asia Mohammad Din and Sons 2017 SCMR 1427; Shahida Bibi and others v. Habib Bank Limited and others 2016 CLD 2025 (SC) = PLD 2016 SC 995; Muhammad Anwar and others v. Mst. Ilyas Begum and others PLD 2013 SC 255; Zia Ur Rehman v. Syed Ahmed Hussain and others 2014 SCMR 1015; Khalil-ur-Rehman and another v. Dr. Manzoor Ahmed and others PLD 2011 SC 512 and Muhammad Akram v. Mst. Zainab Bibi 2007 SCMR 1086 rel.

2024 P L C 217

[Lahore High Court (Multan Bench)]

Before Abid Aziz Sheikh, J

Messrs THREE STAR HOSIERY MILLS (PVT.) LIMITED through Factory Manager

Versus

MUBARIK ALI and 4 others

Writ Petition No.1436 of 2015 (and other connected petitions) decided on 23rd February, 2022.

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

----15 & 17---Constitution of Pakistan, Art.270-AA---Claims arising out of delay in payment of wages---Appeal, filing of---Failure to deposit decretal amount---Effect---Respondents filed applications before the Authority under the Payment of Wages Act, 1936, ('Act, 1946') for payment of their dues outstanding against the petitioner, which were allowed---Petitioner being aggrieved filed an appeal before the Labour Court, which was dismissed---Validity---Plain reading of proviso to S.17(1)(a) of the Act, 1936, manifested that no appeal under S.17 of the Act shall lie unless the memorandum of appeal is accompanied by a certificate of the Authority to the effect that the petitioner has deposited with the Authority, the amount payable under the direction appealed against---In the petitions, admittedly the petitioner neither deposited the amount payable as directed by the Authority nor appended with the appeals the required certificates---Thus, the Appellate Court had lawfully dismissed the appeals filed by the petitioners---Admittedly the Punjab Payment of Wages (Amendment) Act, 2014, was notified on 19.03.2014 and in said Amendment Act, the original proviso to S. 17(1)(a) of the Act, 1936 remained the same, therefore, not only before 19.03.2014, the condition prescribed in the proviso to S.17(1)(a) of the Act, 1936 was applicable by virtue of Art. 270-AA (6) of the Constitution but even after the amendment through the Amendment Act, the same was applicable---Article 270AA(8) of the Constitution prescribed 13.06.2011 as the date to complete the process of devolution but it was not the cutoff date for validity of all law in respect of matters enumerated in the concurrent legislative list of the Constitution, which were to be governed under Art. 270AA(6) of the Constitution and shall continue to remain in force until altered, repealed or amended by competent authority---Therefore, mere fact that process of devolution was to be completed by 30.06.2011 under Art. 270-AA(8) of the Constitution, would not invalidate the Act, 1936 already in force, in view of Art. 270-AA (5) of the Constitution---Once the petitioner failed to file the appeal or deposit the amount due as required under proviso to S.17(1)(a) of the Act, 1936 and its appeals were lawfully dismissed for that reason, then those questions could not be agitated and examined in constitutional petitions---Petitions, being meritless, were accordingly dismissed.

Messrs Chenab Cement Product (Pvt.) Ltd. and others v. Banking Tribunal Lahore and others PLD 1996 Lah. 672 ref.

Mughal Surgical (Pvt.) Ltd. and others v. Presiding Officer, Punjab Labour Court No.7 and others 2006 SCMR 590; Tehsil Nazim, TMA, Okara v. Abbas Ali and 2 others 2010 SCMR 1437 = 2010 PLC 259; Syed Match Company Limited through Managing Director v. Authority Under Payment of Wages Act and others 2003 SCMR 1493; Haji Sheikh Noor Din & Sons through Managing Director and others v. Muhammad Fayyaz and 02 others 2006 PLC 623; Liaqat Hussain and others v. Federation of Pakistan through Secretary, Planning and Development Division Islamabad and others PLD 2012 SC 224; Salim Javed Baig and others v. Federal Ombudsman and others PLD 2016 Lah. 433; Lawyers Foundation for Justice through Chairman v. Federation of Pakistan and others PLD 2019 Lah. 43 and Ibrahim Abdullah/Abdullah & Sons through Managing Director v. Abdul Latif and 24 others 2018 PLC 20 rel.

Bilal Amin for Petitioner.

Syed Asif Raza Gillani (for private respondents in this as well as in all connected petitions).

Aziz ur Rehman Khan, Assistant Advocate General Punjab.

Mehr Zameer Hussain Sandhal, Deputy Attorney General for Pakistan.

2024 P L C 265

[Lahore High Court]

Before Shujaat Ali Khan, J

RIAZ HUSSAIN

Versus

CHAIRMAN, PUNJAB LABOUR APPELLATE TRIBUNAL, LAHORE and others

Writ Petitions Nos.18156 of 2017, 249546 of 2018 and 25477 of 2020, decided on 6th December, 2022.

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

----Sched. S.O. 15---Misconduct---Absence from duty without leave---Scope---Allegation of absence from duty against employee falls within the definition of misconduct---Such charge cannot be decided without following procedure provided under Standing Order 15 of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968.

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

----Sched., S.O.15---Constitution of Pakistan, Art. 199---Misconduct---Punishment, non-implementing of---Principle---In constitutional petition challenging vires of judgments passed by Labour Court as well as Punjab Labour Appellate Tribunal, if no injunctive order is issued by High Court, there is no justification for employer to avoid implementation of such decision---Labour Court as well as Punjab Labour Appellate Tribunal cannot refuse execution of judgment of Labour Court merely on account of pendency of constitutional petition before High Court.

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

----Sched., S.O.15---Constitution of Pakistan, Art. 199---Misconduct---Re-instatement in service---Back benefits---Entitlement---Attaining age of superannuation---Petitioner / employee was dismissed from service and Labour Court reinstated him in service with back benefits---Lower Appellate Court declined back benefits to petitioner / employee, who during pendency of proceedings attained age of superannuation---Effect---During pendency of matter, petitioner / employee had already crossed age of superannuation, therefore, his reinstatement could not be ordered rather he was entitled for pensionary emoluments---If petitioner / employee was involved in any subversive activities, he could be proceeded against Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, but non-adherence to the provisions could not be condoned---It is mandate of the Constitution that everybody should be dealt with in accordance with law and any violation on the part of the delinquent cannot be let unnoticed---High Court in exercise of Constitutional jurisdiction declined to interfere in findings of two fora below regarding reinstatement of petitioner / employee as the same were concurrent in nature which findings were neither perverse nor were result of some misreading or non-reading of material available on record---Petitioner / employee was not gainfully employed elsewhere with effect from his termination of service and such fact was not denied by respondent / employer---Penultimate order was passed by respondent / employer in clear violation of S. 15 of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, against petitioner / employee---Punjab Labour Appellate Tribunal did not give any persuasive reasons while declining back benefits to petitioner / employee---High Court set aside judgment passed by Punjab Labour Appellate Tribunal and restored that of Labour Court---High Court directed Labour Court to ensure implementation of its decision---Constitutional petition was allowed accordingly.

Secretary to Government of the Punjab, School Education Department, Lahore and others v. Syed Zakir Ali 2022 SCMR 951; National Bank of Pakistan and another v. Zahoor Ahmed Mengal 2021 SCMR 144; Allied Bank Limited v. Zulfiqar Ali Shar and others 2021 SCMR 1213; Muhammad Anayet Gondal v. Registrar, Lahore High Court, Lahore 2017 PLC (C.S.) 177; Secretary, Industries, Government of Khyber Pakhtunkhwa, Peshawar and another v. Samar Gul and another 2014 PLC 190; Messrs Allied Precision Engineering Products (Pvt.) Ltd. through Notified Factory Manager and others v. Jhanda Khan Maree and others 2011 PLC 286; Inspector-General of Police, Punjab v. Tariq Mahmood 2015 SCMR 77; Muhammad Sharif and others v. Inspector General of Police, Punjab, Lahore and others 2021 SCMR 962; Dost Muhammad v. Babar Munir 1991 SCMR 415; Ghulam Mohi-ud-Din v. Chief Settlement Commissioner (Pakistan), Lahore PLD 1964 SC 829 and Malik Muhammad Hussain v. District Returning Officer 2008 SCMR 488 ref.

Malik Amir Mukhtar for Petitioner (in 18156 of 2017 and for W.P. No.25477 of 2020) and Respondent No.1. (in W.P. No.249546 of 2018).

Muhammad Irfan Khan Ghazanvi for Respondent No.3 (in W.P. No.25477 of 2020) and for Petitioner (in W.P. No.249546 of 2018).

2024 P L C 292

[Lahore High Court (Multan Bench)]

Before Muhammad Sajid Mehmood Sethi, J

Messrs INSTACLEAR (PVT.) LTD. through Head, Karachi and another

Versus

Malik JUMMA TARIQ and others

Writ Petition No.10143 of 2018, heard on 13th December, 2022.

(a) Constitution of Pakistan---

----Arts. 4 & 25---Equality before law---Service matters---Equal treatment of all similarly placed must be ensured in order to eliminate frustration in society---Employees of any organization are entitled under Art. 4 of the Constitution to equality before law and same relief / treatment has to be given to other similarly placed employees.

Engineer Naraindas and another v. Federation of Pakistan and others 2002 SCMR 82; Tehsil Municipal Administration, Rahimyar Khan and others v. Hanif Masih and others 2008 SCMR 1058; Ejaz Akbar Kasi and others v. Ministry of Information and Broadcasting and others PLD 2011 SC 22 and Quetta Development Authority through Director General v. Abdul Basit and others 2021 SCMR 1313 rel.

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

----Ss.2(xxxiii), 3 & 88---Constitution of Pakistan, Art.199---Constitutional petition---Worker and workman---Security Guards, Fire Fighters and Supervisors---Scope---Regularization of service---Respondent / employees were holding posts of Security Guards, Fire Fighters and Supervisors who were not regularized in service by petitioners / employers---Both the fora of National Industrial Relation Commission allowed grievance petitions of respondents / employees and directed petitioners /employers to regularize their services---Plea raised by petitioners / employers was that provisions of Labour Laws were not applicable to respondents / employees---Validity---Employees holding posts of Security Guard, Fire Fighter and Supervisor are governed by Industrial Relations Act, 2012---Such workers / workmen can agitate their grievances under Industrial Relations Act, 2012---Regularization of respondents / employees holding posts of Supervisor, Security Guard and Fire Fighter would take effect from the date of promulgation of Industrial Relations Act, 2012, but for their pensionary and other long term benefits, they would be entitled from the date when they joined service---High Court declined to interfere in concurrent decisions passed by two fora below which were based upon correct appreciation of evidence available on record---Both the fora had rightly applied relevant provisions of law---In order to invoke Constitutional jurisdiction of High Court, which was discretionary and equitable in nature, the petitioners / employers were obliged to show any jurisdictional defect, legal infirmity or irregularity in both the decisions but remained unable to pinpoint any such defects in the decisions---Constitutional petition was dismissed, in circumstances.

Messrs State Oil Company Limited v. Bakht Siddique and others 2018 SCMR 1181; Pir Imran Sajid and others v. Managing Director / General Manager Telephone Industries of Pakistan and others PLJ 2015 SC 933; Mian Munir Ahmad v. The State 1985 SCMR 257; Farid Ahmad v. Pakistan Burmah-Shell Ltd. and others 1987 SCMR 1463; Muhammad Sadiq v. Punjab Labour Court No.1, Lahore and another PLD 1988 SC 633; Sahibzada K.A.K. Afridi v. Pakistan International Airlines Corporation and another 1992 SCMR 1379; Pak Arab Refinery Limited v. Muhammad Rashid 1999 SCMR 373; Ikram Bari and 524 others v. National Bank of Pakistan through President and another 2005 SCMR 100; Messrs Dawood Cotton Mills Ltd. v. Sindh Labour Appellate Tribunal and others 2006 SCMR 630; Chairman, State Life Insurance Corporation and others v. Humayun Irfan and 2 others 2010 SCMR 1495; Ch. Ali Hassan v. Province of the Punjab and others 2011 SCMR 1160; Pakistan Telecommunication Co. Ltd. through Chairman v. Iqbal Nasir and others PLD 2011 SC 132; Mehmood Hussain and another v. Presiding Officer, Punjab Labour Court and others 2012 SCMR 1539; Fauji Fertilizer Company Ltd. through Factory Manager v. National Industrial Relations Commission through Chairman and others 2013 SCMR 1253; Shahid Perwaiz v. Messrs Galaxo Klin Pakistan Ltd. and others 2016 SCMR 30; Wasal Khan and others v. Dr. Niaz Ali Khan 2016 SCMR 40; M.C.B. Bank Limited, Karachi v. Abdul Waheed Abro and others 2016 SCMR 108; Muhammad Yaqoob v. Mst. Sardaran Bibi and others PLD 2020 SC 338; Government of Pakistan, Revenue Division, Federal Board of Revenue through Chairman, Islamabad and another v. Nawaz Ali Sheikh 2020 SCMR 656; Messrs Textile Corporation of Pakistan Ltd., Hyderabad v. Shaukat Ali and 9 others 1970 PLC 386; The Area Manager, Merck Sharp and Dohme of Pakistan Ltd. Dacca and another v. The Chairman, First Labour Court, East Pakistan, Dacca and another 1971 PLC 406; Workers v. The Management, Sultan Textile Mills Ltd., Sargodha through the Managing Director and another 1973 PLC 175; Riazul Hassan v. Hidayat Ullah PLD 1975 Lah. 841; Haji Wali Muhammad and 129 others v. Power-Looms Workers' Union and 4 others 1976 PLC 834; Taj Din and 44 others v. Punjab Labour Court No.3, Lyallpur and another PLD 1976 Lah. 1169; Souvenir Tobacco Co. Ltd. v. Najammuddin and others PLD 1977 Kar. 250; B.S. Magnetic (Private) Limited, Karachi v. Sindh Labour Court No.5 and 2 others 1997 PLC 556; Nasir Jamal and 23 others v. PAK Suzuki Motor Company Limited and 3 others 2000 PLC 52; Messrs Hinopak Motors Limited v. Chairman, Sindh Labour Appellate Tribunal and others 2000 PLC 89; Seagull Exports (Pvt.) Ltd. v. Sindh Labour Appellate Tribunal and others 2002 PLC 212; M/s. Dawood Cotton Mills Limited v. Sindh Labour Appellate Tribunal and others SBLR 2004 Sindh 614; Fauji Fertilizer Company Ltd. v. Sindh Labour Appellate Tribunal and others SBLR 2005 Sindh 1121; Abdul Qadir Khan and 12 others v. Managing Director, Millat Tractors Private Limited and another 2005 PLC 438; Muhammad Saleem Nagani v. M.C.B. Ltd. and others 2006 PLC 304; Fauji Sugar Mills through General Manager v. Mehmood Ahmed 2006 PLC 630; Glaxo Smith Kline Pakistan Limited through Group Industrial Relations Manager / Notified Factory Manager v. Sindh Labour Appellate Tribunal Sindh and 2 others 2013 PLC 183; Muhammad Hashim and 30 others v. General Manager, Human Resources, Sui Southern Gas Co. Ltd. and 3 others 2015 PLC (C.S.) 195; M.S. Ghani Gases Limited v. Federation of Pakistan and 2 others PLD 2016 Lah. 207; Dharangadhra Chemical Works Ltd. v. State of Saurashtra and others AIR 1957 SC 264; Hussainbhai v. The Alath Factory Tezhilali Union and others AIR 1978 SC 1410 and Steel Authority of India Ltd. v. National Union Water Front Workers AIR 2001 SC 3527 distinguished.

Executive Engineer, Central Civil Division, Pak. P.W.D. Quetta v. Abdul Aziz and others PLD 1996 SC 610; Punjab Seed Corporation and 2 others v. Punjab Labour Appellate Tribunal and 2 others 1996 SCMR 1947; Capital Development Authority through Chairman and another v. Mrs. Shaheen Farooq and another 2007 SCMR 1328; Secretary (Schools), Government of Punjab, Education Department and others v. Yasmeen Bano 2010 SCMR 739; Rizwan Javed and others v. Secretary Agriculture Livestock and others 2016 SCMR 1443; Pakistan Railways through Chairman, Islamabad and another v. Sajid Hussain and others 2020 SCMR 1664; Syed Saqlain v. Pakistan Telecommunication Company Limited through Chairman and 2 others 2008 PLC (C.S.) 193; Administrator, Town Committee, WARBURTON and another v. Muhammad Aslam 2010 PLC 430; Messrs Allied Precision Engineering Products (Pvt.) Ltd. through Notified Factory Manager and others v. Jhanda Khan Maree and others 2011 PLC 286; Tehsil Municipal Administration through Administrator and others v. Abdul Sattar and others 2016 PLC 424; Pakistan Telecommunication Company Limited through Manager and 2 others v. Iftikhar Ahmad Khan and 2 others 2016 PLC 428; Pakistan Telecommunication Company Limited (PTCL) through General Manager and 2 others v. Azeem Kibria Bhatti and 2 others 2016 PLC 491; Punjab Seed Corporation and 2 others v. Punjab Labour Appellate Tribunal and 2 others 1995 PLC 539; Board of Intermediate and Secondary Education, Faisalabad through Chairman and others v. Tanveer Sajid and others 2018 SCMR 1405; Abdul Ghafoor and others v. The President National Bank of Pakistan and others 2018 SCMR 157; Managing Director, Sui Southern Gas Company Ltd., Karachi v. Ghulam Abbas and others PLD 2003 SC 724; Tehsil Municipal Administration v. Muhammad Amir 2009 PLC 273; Province of Punjab through Secretary Communication and Works Department and others v. Ahmad Hussain 2013 SCMR 1547; Board of Intermediate and Secondary Education, DG Khan and another v. Muhammad Altaf and others 2018 SCMR 325; Punjab Seed Corporation through Managing Director and another v. Labour Court No.9, Multan through Presiding Officer and 2 others 2015 PLC 232 and President, Zarai Taraqiati Bank Limited, Head Office, Islamabad v. Kishwar Khan and others 2022 SCMR 1598 ref.

Shell Pakistan Limited v. Registrar Trade Unions and others 2020 PLC 57 and Mudasir Nazar and 35 others v. Bank of Khyber through M.D. Peshawar and 3 others 2022 PLC (C.S.) 668 rel.

(c) Interpretation of statutes---

----Retrospective effect---Remedial statutes---Principle---Statutes remedial in nature can operate with retrospective effect and are applicable to proceedings pending at the time when an Act comes into force---Remedial legislation does not apply to cases which have been finally determined or proceedings which have attained finality.

Commissioner of Sales Tax (West), Karachi v. Messrs Kruddsons Ltd. PLD 1974 SC 180; Syed Wajid Ali and 4 others v. Globe Automobiles Ltd. and another 1993 SCMR 819; The Collector of Sales Tax and Central Excise, LTU, Karachi v. Messrs Pak Suzuki Co. Ltd., Karachi 2016 PTD 867; Dawood Cotton Mills v. Commissioner of Income Tax 2000 PTD 285; Reckitt and Colman of Pakistan Limited, Karachi and others v. The Commissioner, Sindh Employees' Social Security Institution, Awan-e-Mehnatkash, Gulshan-e-Iqbal, Karachi and others 2001 PLC 245; Commissioner of Income Tax v. J.D. Sugar Mills Ltd. 2009 PTD 481 and Commissioner Inland Revenue v. Muhammad Aslam 2019 PTD 381 ref.

Muhammad Amir Malik and Bilal Amin for Petitioners.

Shahid Anwar Bajwa and Rana M. Nafees, Advocates (PARCO).

Muhammad Akhtar Anjum and Muhammad Umair Baloch for Respondent.

2024 P L C 245

[Peshawar High Court]

Before Ijaz Anwar, J

MUHAMMAD HAROON

Versus

AMIN HOTEL and another

Labour Revision No.04-P of 2018, decided on 16th January, 2023.

(a) Khyber Pakhtunkhwa Payment of Wages Act (IX of 2013)---

----S.1(3)(a) & Preamble---Wages Court---Jurisdiction---Jurisdiction of the Wages Court within the meaning of Khyber Pakhtunkhwa Payment of Wages Act, 2013, is very exhaustive and deals with delayed or deducted wages---Jurisdiction of the Wages Court has not been restricted to the workmen only, rather its application extends to "persons employed in factories, industrial and commercial establishments and thus the words "person" used in the Khyber Pakhtunkhwa Payment of Wages Act, 2013, also includes a non-workman.

(b) Khyber Pakhtunkhwa Industrial and Commercial Employment (Standing Orders) Act (XI of 2013)---

----S.2(n) & Preamble---Application of Khyber Pakhtunkhwa Industrial and Commercial Employment (Standing Orders) Act, 2013 ('the Standing Order Act, 2013') has been restricted to the workers employed, directly or through any other person or in any industrial or commercial establishment---Thus, in order to avail the benefits provided under the Standing Orders Act, 2013, such, person must also prove himself to be a worker in accordance with subsection (n) of the S.2 of the Standing Orders Act, 2013---For other benefits i.e. arrears of salaries etc., a non-workman can also approach the Wages Court, however, to avail the benefits flowing from the Standing Order Act, 2013, such claimant/person must prove himself to be a worker as provided in the Standing Orders Act, 2013.

(c) Khyber Pakhtunkhwa Industrial and Commercial Employment (Standing Orders) Act (XI of 2013)---

----S. 2(n)---Worker---Scope---Terminal dues---Entitlement of Finance Manager in Hotel---Claim, filed by the petitioner (who was engaged as a Finance Manager in hotel) for recovery of his terminal dues was partially allowed, however, the Labour Court accepted the appeal of the respondents /Hotel on the ground that the deceased petitioner failed to prove himself to be a workman in accordance with law---Petitioner filed revision to assail the judgment passed by the Labour Court---Held, that, petitioner initially, while submitting his claim petition, never alleged himself to be a workman nor referred to any of his manual or clerical duties; similarly, when he appeared as a witness, he admitted in cross-examination to having been posted as Finance Manager---Record revealed that, in view of said scanty evidence of the petitioner, the Wages Court further allowed him an opportunity to submit his additional evidence of his status as a workman, but he failed to prove himself to be a worker, and record clearly suggested that he was heading the Accounts Section---A person claiming certain rights flowing from the Standing Order Act, 2013, has to prove himself to be a workman within the provision of the Standing Order Act, 2013, but the evidence produced by the petitioner was scanty and he failed to dispel the impression of his high sounding post of Finance Manager to be a non-workman---Initial burden to prove a person to be a workman is on the person, who alleges himself to be a workman and such burden will be shifted to the respondents only when such person proves himself to be a workman---In the present case, despite the Wages Court providing the petitioner sufficient opportunity, he had miserably failed to demonstrate that he was a workman within the meaning of law---Thus, the petitioner failed to prove himself to be a workman within the meaning of Standing Order Act, 2013, as such, it had no application to his case---Labour Court had rightly appreciated the questions of fact as well as of law and had rendered a proper and elaborate judgment, which required no interference in revisional jurisdiction of the High Court---Revision petition was dismissed, in circumstances.

Bilal Ahmad Kakaizai for Petitioner.

Yasir Saleem for Respondent.

2024 P L C 46

[Balochistan High Court]

Before Jamal Khan Mandokhail, CJ and Abdul Hameed Baloch, J

ASMATULLAH

Versus

ALL PAKISTAN WAPDA HYDRO WORKERS UNION, BALOCHISTAN (CBA) WAPDA HOUSE LAHORE, through General Secretary and others

C.P. No.738 of 2020, decided on 31st August, 2020.

Industrial Relations Act (X of 2012)---

----Ss. 31 & 58---Civil Procedure Code (V of 1908), O.VII, R.11---Constitution of Pakistan, Art. 199---Constitutional petition---Alternate efficacious remedy---Workers Association, internal affairs of---Petitioner assailed notification of election schedule before National Industrial Relations Commission which petition was rejected---Plea raised by petitioner was that alternate remedy under relevant law was lengthy, therefore, Constitutional jurisdiction of High Court was invoked for early disposal of the matter---Validity---When statute provided alternate remedy by way of appeal / revision, Constitutional petition was not maintainable---High Court declined plea of petitioner as it was not choice of any party to invoke Constitutional jurisdiction as an alternate remedy---Petitioner had remedy to file appeal against the order passed by National Industrial Relations Commission---Constitutional petition was dismissed, in circumstances.

Mst. Kaniz Fatima v. Muhammad Salim 2001 SCMR 1493 and Mir Zaman v. Mst. Sheda 2000 SCMR 1699 rel.

Shahid Javed for Petitioner.

2024 P L C 125

[Balochistan High Court]

Before Muhammad Ejaz Swati and Abdullah Baloch, JJ

Syed ZAHOOR SHAH

Versus

CHIEF EXECUTIVE OFFICER and 2 others

C.P. No.1685 of 2021, decided on 20th June, 2022.

Industrial Relations Act (X of 2012)---

----S. 33---Grievance petition---Passing of judgment by the National Industrial Relations Commission without requiring evidence---Petitioner /employee invoked constitutional petition against the judgment passed by the Single Bench National Industrial Relations Commission ('NIRC'), contenting that NIRC had wrongly passed judgment against him without framing issues and adducing evidence---Validity---Record revealed that an undated text message (SMS) was issued by the respondent (General Manager) to the petitioner (employee), wherein he was directed to submit his resignation---Consequently , the petitioner on receipt of said text message issued Grievance Notice to the respondents (Employer) through e-mail and requested for withdrawal of said notice (text message)---However, thereafter the respondents kept silent until the petitioner preferred a Grievance Petition under S. 33 of the Industrial Relations Act, 2012, before the NIRC, which was contested by the respondents (employer), but unfortunately the Single Bench NIRC, without adverting to the merits of the case, dismissed the Grievance Petition of the petitioner in a summarily manner without providing opportunity to the petitioner to prove his case by leading evidence---Even otherwise, the Single Bench NIRC had failed to frame issues out of the pleadings of the parties and to record evidence---Thus, in absence of any evidence, various aspects/questions of case (issuance of Show-Cause Notice / Termination Letter/Grievance Notice or other wise, etc.) could not be ascertained---Answers of such questions were missing in the impugned judgment of the Single Bench NIRC, which resulted in miscarriage of justice with the petitioner/employee and he was condemned unheard---High Court while setting aside the impugned judgment remanded the matter to the Single Bench, National Industrial Relations Commission, with directions for a decision afresh after providing fair opportunity to the parties to lead evidence in support of their contentions---Constitution petition, filed by the employee, was allowed, in circumstances.

Muhammad Ewaz Zehri, Mujahid Hussain Qaisarani and Miss Farzana Khilji for Petitioner.

Zameer Ahmed Bhutto for Respondents.

2024 P L C 37

[Supreme Court of Pakistan]

Present: Yahya Afridi, Sayyed Mazahar Ali Akbar Naqvi and Muhammad Ali Mazhar, JJ

AMAN ULLAH

Versus

UNITED BANK LIMITED through President and others

Civil Petition No. 6117 of 2021, decided on 2nd October, 2023.

(Against the Order dated 23.09.2021 passed by the Peshawar High Court, Peshawar in W.P. No.503-P of 2021)

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

----Ss. 2(xxxiii) & 33---Workman---Scope---Manager of a private Bank---Whether a workman for purposes of Industrial Relations Act, 2012---Held, that record reflected that the petitioner was posted as Manager of a private bank's branch and also had the power of attorney of the Bank and two other persons, namely the Operation Manager, and the Chief Teller, both were performing their duties under the petitioner's supervision---Petitioner admitted that his functions included managing, coaching and monitoring of staff; it was also his job to physically verify and check vouchers and cash at the time of closing of the Branch every day---During further cross-examination, the petitioner admitted that in light of the powers granted to him in the power of attorney, he used to supervise, cancel and pass instruments during the course of his daily work---Wide ranging and comprehensive powers conferred upon the petitioner were of such nature and responsibility that could only be granted to a person having the status of manager, officer or the person having the category of supervisory duties---All courts below after proper appreciation of facts rightly held that the petitioner was not 'workman', hence he could not maintain a grievance petition in the NIRC---Petition for leave to appeal was dismissed and leave was refused.

21st Century Dictionary (page 833); Words and Phrases, (Permanent Edition 26 at Pages 366 and 369); Hodges v. Bankers Surety Co., 152 Ill.App. 372; Gillis v. Great Atlantic and Pacific Tea Co., 27 S.E.2d 283, 285, 223 N.C. 470, 150 A.L.R. 1330; Manning v. Lamb, D.C.Mun.App., 89 A.2d 882, 884 and Black's Law Dictionary, (Tenth Edition), Page 1104 ref.

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

----S. 2(xxxiii)---Workman---Scope---Mere nomenclature of an assigned post is not relevant in determining the status of an employee and assessing whether he is performing the duties of a worker or workman, or a manager, officer or supervisor---Rather the paramount and predominant consideration is the nature of the job, and if any employee claims that he was performing the duties of a worker/workman, the burden lies on him to discharge if he claims contrary to the job description assigned to him separately or by means of appointment letter or subsequently made any change in the job description through up-gradation or promotion which detached or estranged the status of employee from workman to managerial or supervisory post---Litmus test is the nature of job actually being performed rather than the nomenclature of the job simpliciter.

Abdul Razzaq v. Messrs Ihsan Sons Limited and 2 others 1992 PLC 424; National Bank of Pakistan v. Punjab Labour Court No. 5, Faisalabad and 2 others 1993 SCMR 672; National Bank of Pakistan and another v. Anwar Shah and others 2015 SCMR 434; Habib Bank Limited (HBL) v. Gulzar Khan 2019 SCMR 946 and Muslim Commercial Bank Limited (MCB) and others v. Muhammad Shahid Mumtaz and another 2011 SCMR 1475 ref.

Qazi Jawad Ehsan Ullah, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner.

Nemo for Respondents.

2024 P L C 50

[Supreme Court of Pakistan]

Present: Yahya Afridi and Muhammad Ali Mazhar, JJ

UNITED BANK LIMITED (UBL) through its President and others

Versus

JAMIL AHMED and others

Civil Petition No.2997 of 2021, decided on 6th October, 2023.

(Against the Judgment dated 24.03.2021 passed by the Islamabad High Court, Islamabad in W.P. No.3312 of 2020)

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

----S. 2(xxxiii)---'Worker' and 'workman'---Proof and burden of proof---In order to adjudicate whether a person is performing his duties as a 'workman' or 'worker', or Manager, Officer and/or duties of supervisory nature, the pith and substance of the adjudication predominantly depends on the nature of duties and not on the basis of the nomenclature of the post---In order to thrash out this controversy, the appropriate appraisal for assistance can be made by dint of oral and documentary evidence produced by the parties in the court of first instance---In case the employee asserts that he was performing duties as workman and such contentions are opposed by the management, then in such eventuality the burden of proof lies upon the employee to substantiate that he was in fact performing the duties of a 'workman' and the mere nomenclature of the post does not affect his status of employment as worker or workman.

(b) Administration of justice---

----Appeal, right of---Scope---Right of appeal is a right of entering into a superior court and invoking its aid and interposition to redress the error of the forum below---It is essentially a continuation of the original proceedings as a vested right of the litigant to avail the remedy of an appeal provided for appraisal and testing the soundness of the decisions and proceedings of the courts below---Right of appeal is not a mere matter of procedure but is a substantive right.

(c) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of the High Court---Scope---Concurrent findings of fact by fora below---If the concurrent findings recorded by the lower fora are found to be in violation of law or based on flagrant and obvious defect floating on the surface of record, then it cannot be treated as being so sacrosanct or sanctified that it cannot be reversed by the High Court in the Constitutional jurisdiction vested in it by Article 199 of the Constitution---As a corrective measure in order to satisfy and reassure whether the impugned decision is within the law or not and if it suffers from jurisdictional defect, the High Court without being impressed or influenced by the fact that the matter reached it under Constitutional jurisdiction in pursuit of the concurrent findings recorded below, can cure and rectify the defect.

Umer Abdullah, Advocate Supreme Court for Petitioners.

Faridullah, Advocate Supreme Court for Respondents.

2024 P L C 60

[Supreme Court of Pakistan]

Present: Sardar Tariq Masood, Amin-ud-Din Khan and Syed Hasan Azhar Rizvi, JJ

MUSLIM COMMERCIAL BANK LIMITED

Versus

MUHAMMAD ANWAR MANDOKHEL and others

Civil Appeal No. 377 of 2014, decided on 17th October, 2023.

(Against the judgment dated 19.12.2013 of the High Court of Balochistan, Quetta passed in C.P. No. 139 of 2012)

(a) Jurisdiction---

----Question of jurisdiction of the court or a judicial forum assumes paramount importance as the foremost and pivotal consideration---It defines which court is competent to handle a case, where it should be heard, and what types of cases it can address---Such determination is the cornerstone of a fair legal process, ensuring that cases proceed efficiently, prevent delays, and maintain clarity.

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

----Ss. 2(xxxii), 53 & 54 --- Balochistan Industrial Relations Act (XIV of 2010), Ss. 52(4) & 55(3) [since repealed]---Constitution of Pakistan, Art. 141---Trans-provincial establishment---Industrial dispute related to trans-provincial employer---Provincial Labour Court, jurisdiction of---It is not the nature of the dispute, particularly, unfair labour practice, which confers jurisdiction on one or the other forum but it is the status of the employer or the group of employers, which would determine the jurisdiction of the Provincial Labour Court and that of the National Industrial Relations Commission ("NIRC")---Once it is established through any means that the employer or group of employers has an establishment, group of establishments, industry, having its branches in more than one Provinces, then the jurisdiction of the NIRC would be exclusive in nature and of overriding and superimposing effects over the Provincial Labour Court for resolving industrial disputes, including unfair labor practices, etc., related to such employers with establishments, branches, or industrial units in multiple provinces---Therefore, in such like cases recourse has to be made by the aggrieved party to the NIRC and not to the Provincial Labour Court---Furthermore Article 141 of the Constitution makes it abundantly clear that the Parliament has extra-territorial authority to legislate, but the Provincial Legislature has no legislative competence to legislate a law regulating the establishments and industries functioning at the trans-provincial level---Balochistan Industrial Relations Act, 2010 does invest the Provincial Labour Court with the authority to adjudicate upon the matters relating to the trans-provincial establishments, and even if it provides so, it cannot sustain under the law.

Pakistan Telecommunication Company v. Member NIRC 2014 SCMR 535 and Muhammad Shabbir v. Quaid-e-Azam University 2022 SCMR 487 ref.

(c) Interpretation of statutes---

----Special law and general law---Precedence---In the absence of a special law, the ordinary/general laws come forward to fill in the vacuum.

Air League of PIAC Employees through President versus Federation of Pakistan Ministry of Labour and Manpower Division Islamabad and others 2011 SCMR 1254 ref.

(d) Interpretation of statutes---

----Procedural law---Retrospective effect---Procedural law has retrospective effect unless the contrary is provided expressly or impliedly.

Sui Southern Gas Company Limited v. Federation of Pakistan and others 2018 SCMR 802 ref.

Shahid Anwar Bajwa, Advocate Supreme Court and M. Sharif Janjua, Advocate-on-Record for Appellant.

Abdul Hafeez Amjad, Advocate Supreme Court and Sheikh Mehmood Ahmed, Advocate-on-Record for Respondent No. 1.

2024 P L C 74

[Supreme Court of Pakistan]

Present: Syed Mansoor Ali Shah, Sayyed Mazahar Ali Akbar Naqvi

and Irfan Saadat Khan, JJ

Mst. SHAHIDA SIDDIQA through President and others

Versus

ALLIED BANK LIMITED through President and others

Civil Appeals Nos. 836-L and 837-L of 2013, decided on 14th November, 2023.

(Against the judgment dated 16.1.2013 passed by Lahore High Court, Lahore in W.Ps. Nos. 25273 and 23756 of 2011)

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

----S. 47(3)---Employee of a private bank---Allegation of negligence and carelessness in performing duties---Demotion to a lower grade with entitlement to all back benefits---Respondent Bank imposed a major penalty on the appellant (employee) and dismissed her from service---Labour Court reinstated her in the Bank's service albeit with a lower Grade, and declined to award her any back benefits---Appellate Tribunal, upheld the order of the Labour Court---However, the High Court modified the penalty to compulsory retirement---Validity---Main allegation against the appellant was that she had been negligent in performing her duties by disclosing a secret code to her former Bank Manager, who defrauded the Bank and misappropriated hefty amounts---Impugned Judgment of the High Court appeared to be self-contradictory as the High Court had first observed that the appellant had an unblemished past career, spanning over 28 years, and that her dismissal from service would be a harsh punishment; and yet, the High Court found it appropriate to then observe that the appellant be compulsory retired from service---Such observations of the High Court in fact defeat the ends of justice rather than fostering the same, as awarding compulsory retirement would be equivalent to meting out harsh treatment to her---Given the fact that the Labour Court and the Appellate Tribunal found the appellant negligent of not properly keeping the secret code but did not see any merit in the allegations of embezzlement, the imposition of a major penalty of compulsory retirement from service would definitely be harsh---Appeal was partly allowed, impugned judgment of the High Court was set-aside, and judgments of the Labour Court and Appellate Tribunal were upheld to the extent of the demotion to a lower grade; with the modification that the appellant will be entitled to all back benefits as available to a Grade-III Officer, from the date of her dismissal to the date of her retirement, and she will also be entitled to all the pensionary benefits as available to the said Grade Officer.

Saifullah v. Divisional Superintendent, Postal Services 2016 SCMR 1430 and Auditor-General of Pakistan v. Muhammad Ali 2006 SCMR 63 ref.

(b) Master servant---

----Penalty imposed on employee---Proportionality---Penalty should be proportionate to the guilt---Modern notion of proportionality requires that the punishment ought to reflect the degree of moral culpability associated with the offence for which it is imposed.

Divisional Superintendent, Postal Services v. Nadeem Raza 2023 SCMR 803 ref.

Appellants in Person (in C.A. No. 836-L of 2013).

Farooq Zaman Qureshi, Advocate Supreme Court (through video link from Lahore) for Appellants (in C.A. No. 837-L of 2013).

Farooq Zaman Qureshi, Advocate Supreme Court (through video link from Lahore) for Respondents (in C.A. No. 836-L of 2013).

Respondents in person (in C.A. No. 837-L of 2013).

2024 P L C 91

[Supreme Court of Pakistan]

Present: Ijaz ul Ahsan, Ayesha A. Malik and Syed Hasan Azhar Rizvi, JJ

MUSLIM COMMERCIAL BANK LIMITED

Versus

RIZWAN ALI KHAN and others

Civil Petition No. 4980 of 2021, decided on 10th November, 2023.

(Against judgment dated 06.08.2021 passed by the Islamabad High Court, Islamabad in W.P. No. 776 of 2021)

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

----S. 2(xxxiii)---'Worker' and 'workman', status of---Burden of proof---Factors and evidentiary requirements to be considered by Courts while determining whether an employee is a workman stated.

Evidence must be produced to establish the nature of work and functions of the aggrieved claimant, particularly to show that the work is manual or clerical and not managerial or supervisory. The court has to give due consideration to the cumulative effect of the evidence in the context of the nature of work that the workman claims he was doing so as to determine if he is a workman and not rely on piecemeal evidence. For a claimant to be categorized as a workman, his designation alone is not relevant and cannot be considered conclusive evidence of his work status rather, it is the pith and substance of his duties and functions which must be manual or clerical. When understanding further the definition of 'worker' and 'workman,' mere reliance on the fact that it is routine work does not make one's functions and duties clerical or manual and is not sufficient to establish the workman status. Manual and clerical work involves physical exertion as opposed to mental or intellectual exertion. Furthermore, even routine work can involve the exercise of initiative, imagination, direction and supervision while maintaining registers, submission of reports, preparing of vouchers and statements and such jobs cannot be termed as being that of a workman simply because they are routine work.

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

The judicial consensus of the Court with respect to the determination of the work status is clear such that the court must analyze the nature of the actual duties and functions of the employee to ascertain whether he falls within the ambit of the definition of worker or workman for which collective evidence must be examined to ascertain whether the duties were supervisory or managerial or whether they are manual or clerical. Therefore, in determining the work status, the overall nature of duties assigned to that person along with the functions of the job and the manner in which he performs his duties must be brought onto evidence and must be duly considered.

Abdul Razzaq v. Messrs Ihsan Sons Limited and 2 others 1992 SCMR 505 ref.

To determine whether a person is a workman is a finding of fact, routed in evidence and the person who approaches the court on the basis of an averment that he is a workman carries the initial burden of proof to establish that he is a workman. To emphasize, when dealing with the question of burden of proof in establishing the status of the workman, such burden lies on the person claiming to be a workman. It is the bounden duty of a person who approaches the Labour Court to demonstrate through evidence the nature of duties and functions, and to show that he is not working in any managerial or administrative capacity and that he is not an employer. In the absence of such evidence, a grievance petition would not be maintainable before the Labour Court for lack of jurisdiction. Moreover, this burden of proof is to be discharged by the claimant through documentary and oral evidence supporting his claim that the nature of his work is, in fact, manual or clerical. This requires the production of evidence, documentary or oral, which shows the nature of duties and the functions of the claimant pursuant to his claim that he is a workman. Even if there does not exist the power to hire or fire any person, the nature of the job as performed by the person must be evident from the holistic view of the record produced and it has to be determined through overall record whether he was employed as a workman doing manual and clerical work and whether he was discharging his functions in a managerial and supervisory role. Accordingly, it's vital for the court to consider all the evidence and to ascertain the duties and functions of the person claiming to be a workman and to ensure that the workman has discharged his burden with the required evidence.

National Bank of Pakistan v. Punjab Labour Court 5, Faisalabad and 2 others 1993 SCMR 672; National Bank of Pakistan v. Anwar Shah and others 2015 SCMR 434; Shahi Bottlers (Pvt.) Ltd. v. Punjab Labour Appellate Tribunal, Lahore and others 1993 SCMR 1370 and Dilshad Khan Lodhi v. Allied Bank of Pakistan and others 2008 SCMR 1530 ref.

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

----S. 2(xxxiii)--- Bank employee---Whether a 'worker' and 'workman'---Duties such as issuing cheque books, checking ledgers and preparing statements of accounts are not merely manual or clerical tasks, and do not fall within the works of a workman as they involve the exercise of discretion and decision-making---Where bank employees are involved, duties and functions are documented as is (their) daily work, which should be brought before the court in evidence.

Ganga R. Madhani v. Standard Bank Ltd. and others 1985 SCMR 1511 ref.

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

----S. 2(xxxiii)--- Bank employee executing duties of a branch manager---Not a workman---Evidence produced by the petitioner-Bank showed that the respondent-employee was not a workman; that the respondent was appointed as a bank manager at one of the branches of the petitioner-Bank---Performance evaluation report of the respondent for the relevant period showed that he was working as OG-II/bank officer and his work included supervision and guidance; he was being assessed on the basis of management skills and not on the basis of clerical skills---Respondent was involved in financial management, people management, processes and controls, customer focus and operational efficiency---List of duties assigned to the respondent showed his control of internal working, development of branch deposit, advances, marketing, KB accounts opening etc.---Simply placing reliance on the respondent not being able to hire or fire or not having a power of attorney was not sufficient evidence for the purposes of determining the status of a workman---Respondent did not establish the nature of his work or his duties and his emphasis remained on what he did not have the authority to do---Labour Court and NIRC failed to analyse the evidence before them and ignored the established principles on how to establish workman status and the High Court, thereafter, affirmed those orders without considering the law and the evidence in the case---Petition was converted into an appeal and allowed, and the impugned judgments were set aside.

Muhammad Shoaib Rashid, Advocate Supreme Court (via video link, Lahore) for Petitioner.

Zubair Hussain, Advocate Supreme Court for Respondent No. 1.

2024 P L C 104

[Supreme Court of Pakistan]

Present: Sardar Tariq Masood, Amin-ud-Din Khan and Syed Hasan Azhar Rizvi, JJ

CHIEF EXECUTIVE OFFICER NPGCL, GENCO-III, TPS MUZAFARGARRAH

Versus

KHALID UMAR TARIQ IMRAN and others

Civil Petition No. 1787-L of 2022, decided on 16th January, 2024.

(Against the order dated 26.04.2022 of the Lahore High Court

Lahore passed in W.P. No.77743 of 2019)

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

----Ss. 58 & 85---Civil Procedure Code (V of 1908), O. IX, R. 13---Limitation Act (IX of 1908), S. 5---Ex-parte judgment---Deliberately abstaining from joining proceedings---Dismissal order was challenged by the respondent (employee) before the Labour Court, which was subsequently transferred to the National Industrial Relations Commission ("NIRC")---Petitioner (department) failed to appear before the NIRC---Resultantly ex-parte judgment was passed in favour of respondent (employee)---Application was filed by petitioner under Order IX, Rule 13, C.P.C., accompanied by an application for condonation of delay, to set aside the said ex-parte judgment, however both said applications were dismissed by the Member NIRC, the Full Bench of NIRC, and by the High Court---Validity---Section 58 of the Industrial Relations Act, 2012 ("IRA"), stipulates that any person aggrieved by a 'decision given' by any Bench of the NIRC may, within thirty days of such decision, prefer an appeal to the NIRC; and, the appeal shall be heard and adjudicated by the Full Bench of the NIRC---Aggrieved person is required to file the said appeal within thirty days of such order---So, the petitioner, if feeling aggrieved by the said ex-parte judgment dated 09.11.2018 of the member NIRC, should have filed an appeal by 09.12.2018---It is a matter of record that the petitioner did not file any appeal, and the prescribed period of limitation for filing the appeal under section 58 of IRA expired; therefore, the said ex-parte judgment is final between the parties on the basis of the principle of res judicata---To justify the delay in filing the application to set aside the ex-parte judgment, the petitioner, in the application for condonation of delay, asserted that he did not receive any notice or information regarding the pendency of the grievance petition filed by the respondent; he claimed to have knowledge about the ex-parte judgment on 10.12.2018 when he received an application from a former employee---However, this stance of the petitioner is self-contradictory as the record indicates that he, initially, appeared and participated in the proceedings before the member NIRC and opposed the grievance petition by filing a contesting written reply---Petitioner deliberately chose to abstain from joining the proceedings and displayed non-cooperation with the NIRC---Therefore, petitioner had no right to request its (NIRC) indulgence and seek the setting aside of the ex-parte decree passed against him---Petitioner chose to file an application to set aside the ex-parte judgment instead of filing an appeal under section 58 of IRA---Having failed in the attempt to set aside the ex-parte judgment, the petitioner cannot subsequently venture into other concurrently or coexisting available remedies, such as the remedy of an appeal under section 58 of IRA against the said ex-parte judgment---Petitioner did not file any application for condonation of delay under section 85 of the IRA read with section 5 of the Limitation Act, 1908 along with his appeal before the Full Bench of NIRC---Had the said application been filed, his appeal could have been decided on its merits rather than solely on the point of limitation---Appeal filed by petitioner was rightly dismissed by the Full Bench of NIRC, and by the High Court---Petition was dismissed and leave was refused.

Pir Bakhsh v. The Chairman, Allotment Committee PLD 1987 SC 145 and Mukhtiar Hussain v. Mst. Shafia Bibi 2023 SCMR 159 ref.

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

----S. 11 & O. II, R. 2---Qanun-e-Shahadat (10 of 1984), Art. 114---Concurrent or co-existent actions or remedies---Choice of aggrieved person---'Doctrine of election'---Scope---When an aggrieved person intends to commence any legal action to enforce any right and or invoke a remedy to set right a wrong or to vindicate an injury, he has to elect and or choose from amongst the actions or remedies available under the law---Choice to initiate and pursue one out of the available concurrent or coexistent actions or remedy from a forum of competent jurisdiction vests with the aggrieved person---Once the choice is exercised and the election is made then the aggrieved person is prohibited from launching another proceeding to seek relief or remedy contrary to what could be claimed and or achieved by adopting other proceeding/action and or remedy, which in legal parlance is recognized as 'doctrine of election'---Giving a choice to select a remedy from among several coexistent and/or concurrent remedies prevents the recourse to multiple or successive redressals of a singular wrong or impugned action---It also provides an opportunity for an aggrieved person to choose a remedy that best suits the given circumstances---Such a rule of prudence has been developed by courts of law to reduce the multiplicity of proceedings---As long as a party does not avail of the remedy before a Court of competent jurisdiction all such remedies remain open to be invoked---Once the election is made then the party generally, cannot be allowed to hop over and shop for one after another coexistent remedies.

Trading Corporation of Pakistan v. Devan Sugar Mills Limited and others PLD 2018 SC 828 ref.

(c) Limitation---

----Principles---Law of limitation provides an element of certainty in the conduct of human affairs---Law of limitation is a law that is designed to impose quietus on legal dissensions and conflicts; it requires that persons must come to Court and take recourse to legal remedies with due diligence---Therefore, the limitation cannot be regarded as a mere technicality---With the expiration of the limitation period, valuable rights accrue to the other party.

Ghulam Rasool and others v. Ahmad Yar and others 2006 SCMR 1458; Collector Sales Tax (East), Karachi v. Customs, Excise and Sales Tax Appellate Tribunal, Karachi and another 2008 SCMR 435 and Messrs SKB-KNK Joint Venture Contractors through Regional Director v. Water and Power Development Authority and others 2022 SCMR 1615 ref.

Mian Muhammad Javaid, Advocate Supreme Court and Abdus Sattar, Director, HR (via video link at Lahore) for Petitioner.

Shuja-ud-Din Hashmi, Advocate Supreme Court for Respondent No. 1.

2024 P L C 130

[Supreme Court of Pakistan]

Present: Yahya Afridi and Ayesha A. Malik, JJ

Messrs PAK TELECOM MOBILE LIMITED

Versus

MUHAMMAD ATIF BILAL and 2 others

Civil Petition No. 34 of 2022, decided on 30th January, 2024.

(Against the judgment dated 17.12.2021 of the Islamabad High Court, Islamabad passed in Writ Petition No. 4481 of 2021).

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

----Ss. 2(xxxiii) & 33---Individual grievance of a worker, who has been terminated, removed, retrenched, discharged, or dismissed from employment in a trans-provincial establishment---Redressal---Competent forum---Appropriate forum of redressal for a workman who is terminated, removed, retrenched, discharged, or dismissed from service in a trans-provincial establishment is NIRC, as provided under Section 33 of the Industrial Relations Act, 2012 (IRA of 2012)---Said provision states that a 'worker' may bring his grievance in respect of any right guaranteed or secured to him by or under any law---Competent forum for the redressal of personal grievance of a 'worker/ workman' of a trans-provincial establishment is NIRC, and the mode and manner of enforcing any right guaranteed or secured to him by or under any law has been provided under section 33 of the IRA of 2012.

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

----Ss. 2(xxxiii) & 33---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(i) & Sched., S.O. 12(3)---Individual grievance of a worker, who has been terminated, removed, retrenched, discharged, or dismissed from employment in a trans-provincial establishment---Redressal---In case a 'workman' is terminated, removed, retrenched, discharged, or dismissed from service in a trans-provincial establishment, he would be required to first prove that he fulfills the conditions precedent of a 'workman' provided under the Industrial Relations Act, 2012 (IRA of 2012), to render his individual grievance maintainable under Section 33 of the IRA of 2012---Once, the grievance petition is held to be filed by the legally competent person, then in order to enforce his rights under Standing Order 12(3) of Schedule to the Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), the aggrieved petitioner would have to prove that he is a 'workman' envisaged under section 2(i) of the said Ordinance.

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

----Ss. 2(xxxiii) & 33---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S. 2(i)---Grievance of an aggrieved worker---Whether a worker---Onus of proof---Regarding the onus of proof, it is trite law that the initial onus is on the person asserting a fact for seeking a relief---In the present case initial onus was upon the aggrieved 'worker' to prove that he was a 'workman' under both statutes i.e. the Industrial Relations Act, 2012 and the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968.

Shahi Bottles (Pvt.) Limited v. Punjab Labour Appellate Tribunal 1993 PLC 587; National Bank of Pakistan v. Punjab Labour Court 1993 PLC 595; Sadiq Ali Khan v. Punjab Labour Appellate Tribunal 1994 PLC 211; Granulars (Pvt.) Limited v. Muhammad Afzal 2002 PLC 1; Muslim Commercial Bank v. Ehtasham ul Hassan 1997 PLC 24 and MCB v. Rizwan Ali 2024 SCMR 360 ref.

Shahid Anwar Bajwa, Advocate Supreme Court and Raheel Zafar, S.M. (L) for Petitioner.

Barrister Ahsan Hameed Dogar, Advocate Supreme Court for Respondent No. 1.

2024 P L C 164

[Supreme Court of Pakistan]

Present: Syed Mansoor Ali Shah, Amin-ud-Din Khan and Jamal Khan Mandokhail, JJ

AMIR SULTAN and 2 others

Versus

ADJUDICATING AUTHORITY-III EOBI, ISLAMABAD and others

C.P. No.3531 of 2021, C.Ps. Nos. 408, 2451, 2452, 2453, 2454, 2455, 2456, 2457, 2468, 2469, 2470, 2471, 2472, 2473 of 2023 and C.P. No. 3495 of 2023, decided on 18th February, 2024.

(Against the judgment of Islamabad High Court, Islamabad dated 27.04.2021 passed in W.P. No. 2502 of 2020 etc.)

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

----S. 22 & Preamble---Employees' Old-Age Benefits Act, 1976---Liberal interpretation---Employees' Old-Age Benefits Act, 1976 is a beneficial statute intended to provide security and old-age benefits to employees of industrial, commercial or other organizations covered by it and, therefore, its provisions have to be construed liberally in order to advance its objective.

Don Basco High School v. The Assistant Director EOBI, PLD 1989 SC 128 and Lahore Race Club v. Deputy Director EOBI, 1998 SCMR 1571 ref.

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

----S. 22(2)---Old age pension---Exception under Section 22(2) of the Employees' Old-Age Benefits Act, 1976 ("the EOB Act, 1976)---Applicability---Stage when the exception under Section 22(2) of the EOB Act, 1976 becomes applicable---To avail the exception under Section 22(2) of he EOB Act, 1976, the insured person must satisfy that he was in employment in the industry or establishment on the first day of July 1976 or on the day the Act became applicable to such an industry or establishment and was of the age mentioned in Section 22(2)(i) and (ii) of the Act.

Section 22(1) of the Employees' Old-Age Benefits Act, 1976 ("the Act") provides that an insured person is entitled to monthly old-age pension if (i) he is over sixty years of age, or over fifty-five years of age in the case of a woman, and (ii) the contribution in respect of such insured person was paid by the employer for not less than fifteen years. It is only when both these conditions are fulfilled that an insured person is entitled to monthly old-age pension under the said provision. An exception is provided under Section 22(2) of the Act whereby the number of years of contribution paid by the employer on behalf of the insured person is reduced to seven and five years, respectively instead of fifteen years under section 22(2) if on the first day of July, 1976 or on any day thereafter on which the Act becomes applicable to an industry or establishment; (i) the insured person is over forty years of age, or over thirty-five years of age in the case of a woman or (ii) the insured person is over forty-five years of age, or over forty years in the case of a woman.

The first cut-off date i.e., first day of July 1976 is the date when the Act was implemented. As per section 9 of the Act, the first contribution was paid by the employer on the said date. The second cut-off date is when the Act becomes applicable to an industry or establishment. Section 1(4) of the Act provides three different modes through which the Act becomes applicable to an industry or establishment. It is at these two points in time when the age of the insured person in terms of Section 22(2)(i) and (ii) becomes relevant for invoking the exception of reduced years of contribution under the said provision. The age of the insured person alone is not the determining factor for the case to fall within the exception under Section 22(2) but it is also that the age must be so at the relevant cut-off dates mentioned above. As such, an insured person cannot avail the exception under Section 22(2) if he was employed after the cut-off date, i.e., first day of July 1976 or after the date when the Act became applicable to the industry or establishment under Section1(4) of the Act. Therefore, to avail the exception under Section 22(2) of the Act, the insured person must satisfy that he was in employment in the industry or establishment on the first day of July 1976 or on the day the Act became applicable to such an industry or establishment and was of the age mentioned in Section 22(2)(i) and (ii) of the Act.

For the Petitioner(s):

Haroon Irshad Janjua, Advocate Supreme Court.

Ch. Akhtar Ali (in C.P. No. 3531 of 2023).

Muhammad Tariq, Advocate Supreme Court (in C.P. No. 3495 of 2023).

Muhammad Umer Riaz, Advocate Supreme Court.

Khurram M. Qureshi, Advocate Supreme Court

Barrister Abu Bakar along with Muhammad Amin, Deputy Director General, EOBI and Abdul Ahad, Director (Law) EOBI.

Ghulam Muhammad, Director (Operations), EOBI (in C.P. No. 408 of 2023, C.P's Nos. 2451-2458 of 2023 and C.P's Nos. 2469-2473 of 2023).

For the Respondent(s):

Mukhar Ahmed Maneri, Advocate Supreme Court (in C.P. No. 3531 of 2023 and C.P. No. 3495 of 2023).

Raja Muhammad Rafiq Janjua, Advocate High Court along with Private Respondents (in C.Ps. Nos. 408, 2451-2458 and 2469-2473 of 2023).

2024 P L C 183

[Supreme Court of Pakistan]

Present: Munib Akhtar, Shahid Waheed and Irfan Saadat Khan, JJ

COMMISSIONER INLAND REVENUE

Versus

Messrs RIAZ BOTTLERS (PVT.) LTD. (Now Lotte Akhtar Beverages (Pvt.) Ltd.)

Civil Petition No.3200-L of 2019, decided on 19th February, 2024.

(Against the Order dated 12.9.2019 passed by the Lahore High Court, Lahore in P.T.R. No. 142 of 2009).

(a) Companies Profits (Workers' Participation) Act (XII of 1968)---

----Ss. 2(c) & 9---Income Tax Ordinance (XXXI of 1979) [since repealed], S. 25(c)---Workers Profit Participation Fund (WPPF)---Amount transferred by a company to the WPPF---Not liable to tax under section 25(c) of the Income Tax Ordinance, 1979---Transferred amount to the WPPF could not be termed as arising out of a trade/trading rather the same is a statutory liability---Such amount was granted an exemption because a statute, in the present case, Companies Profits (Workers' Participation) Act, 1968, allowed for it---Hence, the amount transferred to the WPPFis nothing but a statutory liability and thus did not attract the provisions of section 25(c) of the Income Tax Ordinance, 1979---Petition was dismissed and leave to appeal was refused.

(b) Interpretation of statutes---

----Special law and general law---Preference---According to the principle of harmonious interpretation, special law would take precedence over the general law.

Gulistan Textile Mills Ltd. v. Soneri Bank 2018 CLD 203 ref.

Mian Yusuf Umar, Advocate Supreme Court for Petitioner

(via Video link, Lhr.)

Ali Sibtain Fazli, Sr. Advocate Supreme Court for Respondent

(via Video link, Lhr.)

2024 P L C 226

[Supreme Court of Pakistan]

Present: Muhammad Ali Mazhar and Irfan Saadat Khan, JJ

IFFCO PAKISTAN (PRIVATE) LIMITED

Versus

GHULAM MURTAZA and others

Civil Petitions Nos. 525-K to 541-K of 2023, decided on 4th April, 2024.

(Against the order dated 14.02.2023 passed by the High Court of Sindh Karachi in Const. Petitions Nos. D-7068, 7069, 7070 to 7084 of 2021).

Industrial Relations Act (X of 2012)---

----S. 2(xxxiii)---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O. 2(i)---Worker/workman---Scope---Workers employed through an independent contractor---Yardstick to decide the controversy between a direct employee of a company and an employee employed through an independent contractor rests on the extent of control and supervision on human resource, ongoing control of independent contractor, if any, financial risks and obligations, as well as the provision of plant, machinery, and premises, and finally supply of raw material and allied set-up---There is no bar to contract out the whole job or parts of it to an outsource contractor, including human resource within its own premises or through toll manufacturing agreements, but what is crucial is that the outsourcing should not be used as a weapon of circumvention of labour laws or to deprive the workers of legitimate rights envisaged under the labour laws by means of sham agreements---In the case in hand, it was established that the respondent-employees were under the direct supervision and control of petitioner-company and were working within its premises and involved directly or indirectly in the manufacturing process and were also performing their duties for the past many years---Respondent-employees, during evidence, produced various attendance and RPL requisition sheets issued by petitioner-company to prove the direct relationship of employment with petitioner and that the employees were performing duties in its establishment on regular basis against jobs of permanent nature where the entire raw material was provided by the petitioner's management and they were also controlled and supervised by the said management---No such document produced by the employees before the NIRC was rebutted by the management of petitioner---Respondents were being paid from the account of the petitioner-company---It was also significant that the alleged contractors who provided labour/employees to the petitioner never came forward to rescue the petitioner---Fora below had rightly held the respondents to be employees/workmen of petitioner-company---Petitions were dismissed and leave to appeal was refused.

Fauji Fertilizer Company Ltd. v. National Industrial Relations Commission and others 2013 SCMR 1253 = 2014 PLC 10; Abdul Ghafoor and others v. The President National Bank of Pakistan and others 2018 SCMR 157; Messrs State Oil Company Limited v. Bakht Siddique and others 2018 SCMR 1181; Messrs Sui Southern Gas Company Limited v. Registrar of Trade Unions and others 2020 PLC 153 and Nilgiri Coop. Mkt. Society Ltd. v. State of T.N. (AIR 2004 SC 1639) = (2004) 3 SCC 514 ref.

Muhammad Ali, Advocate Supreme Court and Dr. Raana Khan, Advocate-on-Record for Petitioner.

Ghulam Murtaza and M. Ishtiaque in person for Respondents Nos. 1 to 9.

Nemo for other Respondents.

2024 P L C 278

[Supreme Court of Pakistan]

Present: Muhammad Ali Mazhar, Syed Hasan Azhar Rizvi and Irfan Saadat Khan, JJ

SAKHIB ZAR

Versus

Messrs K-ELECTRIC LIMITED and others

Civil Petition No. 307-K of 2023, decided on 10th June, 2024.

(Against the judgment dated 22.11.22 passed by High Court of Sindh at Karachi, in C.P. No. D-255 of 2022).

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

----S.O. 15---Punishments---Quantum---Scope---As soon as act of misconduct is established and employee is found guilty after due process of law, it is the prerogative of employer to decide quantum of punishment, out of various penalties provided in law.

(b) Administration of justice---

----Arbitrary relief---Court, jurisdiction of---Scope---No Court has any jurisdiction to grant arbitrary relief without support of any power granted by the Constitution or law.

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

----Ss. 48 & 58---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O. 15---Constitution of Pakistan, Art. 185(3)---Termination from service---Ten days' absence without leave---Misconduct---Awarding of punishment---Object, purpose and scope---Petitioner/workman was terminated from service for being absent from duty without leave for a period of more than ten days---Trial forum did not consider absence for such period as misconduct therefore, reinstated the petitioner/workman in service---Lower Appellate Forum set aside order of reinstatement and High Court maintained that order---Validity---National Industrial Relation Commission (Trial forum) in its original order overturned the law and ordered reinstatement but it did not keep in mind doctrine of proportionality and reasonableness and modified act of misconduct from 10 days' absence to 15 days' absence---Full Bench of National Industrial Relation Commission (Lower Appellate Forum) rightly set aside such order in appeal which was affirmed by High Court---Addressing of misconduct aids, keeps an eye on and protects wellbeing of the organization and its employees in order to make sure that the workplace is in a trouble free environment---It is prerogative and inherent right of employer to trigger disciplinary proceedings in accordance with law to address misconduct, if committed by any employee but course of action for encountering any act of misconduct should stick to the principle of natural justice and the set of guidelines provided to ensure due process of law---Wrong handling of misconduct cases results in bad impact on industrial relations and also adversely affects trust level between management and workers---It is also essential for employer to maintain transparency, uniformity and egalitarianism, which insinuates compliance of all legal requirements with equal treatment to employees without any discrimination or favoritism---Supreme Court declined to interfere in order passed by High Court and Lower Appellate Forum---Petition for leave to appeal was dismissed and leave was refused.

Muhammad Iqbal Chaudhary, Advocate-on-Record/Advocate Supreme Court for Petitioner.

Nemo for Respondents

2024 P L C 314

[Supreme Court of Pakistan]

Present: Muhammad Ali Mazhar and Shahid Bilal Hassan, JJ

TOWN ADMINISTRATION and another

Versus

MOHAMMAD KHALID and others

Civil Petitions Nos. 2697-L and 2698-L of 2016, decided on 28th June, 2024.

(Appeal against the order dated 23.06.2016 passed by the Lahore High Court, Lahore in W.Ps. Nos. 21263 and 21265 of 2016).

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

----Sched., S.Os. 1(b), 1(e) & 12---Employees employed for a continuous period exceeding nine months---Dismissal from service without notice through verbal orders---Legality---Standing Order 12 of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 ('Ordinance 1968') commands that the services of a workman can neither be terminated, nor a workman can be removed, retrenched, discharged or dismissed from service, except by an order in writing which shall explicitly state the reason for the action taken---There is no provision under the Labour Laws or the Service Laws permitting the employer to terminate the services verbally without a written order containing the explicit reasons or cause of termination, even in the case of termination simpliciter---Termination of service by a verbal order is alien to the labour and service laws of the country and also against the principle of good governance---Verbal termination order is also otherwise against the principles of natural justice---Record of the present case reflected that both the respondent employees were performing their duties continuously and the length of their service, notwithstanding the fact that the petitioner (employee department) was calling it temporary or on daily wages basis, exceed much more than the provided nine months' period and both were performing their job against a post of permanent nature---In fact, no plea was taken that the services were terminated due to the completion of a task or temporary project, or due to the abolition of such a post or work, or that both positions became surplus because their assigned job no longer existed in the department to carry on in the future---To continue such arrangement for such a long time was nothing but a circumvention of labour laws and misuse of the category of temporary workman defined in the Standing Order 1 of the Ordinance 1968, wherein the employer was only permitted to engage workmen for the work which was of an essentially temporary nature likely to be finished within a period not exceeding nine months; but in the present case it was proved beyond any shadow of doubt that the respondent employees performed their duties much beyond the period of nine months against permanent posts---Hence, respondents were unlawfully terminated under the garb of so-called daily wages engagement, and they were rightly reinstated as regular employees with back benefits by the Labour Court---Petitions were dismissed and leave was refused.

Chairman Agriculture Policy Institute Ministry of National Food Security and Research, Government of Pakistan v. Zulqarnain Ali 2022 SCMR 636; Muhammad Yaqoob v. The Punjab Labour Court Nos. 1 and 5 and others 1990 SCMR 1539; Executive Engineer, Central Civil Division Pak. P.W.D. Quetta v. Abdul Aziz and others PLD 1996 SC 610 and Government of Punjab and others v. Puniab Appellate Tribunal Lahore and others 2002 SCMR 878 ref.

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

----Ss. 3 & 5---Cases involving Government departments, autonomous bodies and private sector/organizations---Limitation---Condonation of delay---Principle---While considering the grounds for condonation of delay, whether rational or irrational, no extraordinary clemency or compassion and/or preferential treatment may be accorded to Government departments, autonomous bodies or private sector / organizations, rather their cases should be dealt with uniformly and in the same manner as cases of ordinary litigants and citizens.

Regional Police Officer, Dera Ghazi Khan Region v. Riaz Hussain Bukhari 2024 SCMR 1021 ref.

Muhammad Amjad Pervaiz, Advocate Supreme Court for Petitioners.

Syed Kamil Pervaiz, Advocate Supreme Court for Respondent No.1 (in both Petitions).

2024 P L C 338

[Supreme Court of Pakistan]

Present: Muhammad Ali Mazhar and Syed Hasan Azhar Rizvi, JJ

WAQAR AHMED and others

Versus

The FEDERATION OF PAKISTAN through Cabinet Secretariat, Establishment Division, Islamabad and others

Civil Petitions Nos. 278-K and 279-K of 2022, decided on 2nd August, 2024.

(Against the judgment dated 03.12.2021 passed by High Court of Sindh, Karachi in C.Ps. Nos. D-3081 and D-4120 of 2019).

(a) Constitution of Pakistan---

----Art. 199---Employment---Regularization in service---Constitutional jurisdiction of the High Court---Scope---Claim of regularization of service must be recognized through some law and/or policy across the board with certain parameters and procedure in any organizational and administrative structure for its enforcement---For regularization of service of contractual employees, writ only lies if it is permissible under some law and policy decision across the board, provided that the said organization is amenable to the writ jurisdiction of the High Court under Article 199 of the Constitution.

Faraz Ahmed v. Federation of Pakistan through Secretary, Ministry of Communications, Government of Pakistan 2022 SCMR 1680 ref.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of the High Court---Scope---Extraordinary jurisdiction under Article 199 of the Constitution is used to dispense expeditious remedy in cases where the illegality or impropriety of an impugned action can be established without any exhaustive inquisition or recording of evidence, but if some convoluted or disputed question of facts are involved, the adjudication of which can only be determined by the Courts of plenary jurisdiction after recording evidence of the parties, then the High Court cannot embark on such factual controversy.

(c) Constitution of Pakistan---

----Art. 199---Employees engaged through a contractor---Regularization in service sought---Disputed questions of fact---Constitutional petition---Maintainability---In the present case certain fundamental issues were congregated which needed to be established and resolved; that is to say, whether the petitioners (employees) were actually employed by the contractor and, despite this engagement, whether they could claim regularization or permanency in their jobs as employees of Karachi Port Trust (KPT); and whether the outsourcing arrangement between KPT and the contractor was genuine or was based on a sham-arrangement to circumvent the obligations and benefits arising from labour laws; and finally, whether the petitioners, by serving several years against permanent posts, without any gaps, had attained the status of permanent workers by virtue of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968---All these crucial disputed questions or factual controversies could not be decided by the High Court in the writ jurisdiction---Petitions for leave to appeal were disposed of.

(d) Constitution of Pakistan---

----Art. 199---Employment---Constitutional petition filed by employee of an organization having no statutory rules of service---Maintainability---Writ does not lie under Article 199 of the Constitution against an organization having no statutory rules of service.

Malik Naeem Iqbal, Advocate Supreme Court and M. Iqbal Chaudhary, Advocate-on-Record for Petitioners.

Khaliq Ahmed, D.A.G. for the Federation.

Ahmed Pervaiz, Advocate Supreme Court, Syed Imtiaz Shah, Legal Head (KPT) and Khalid Mahmood Siddiqui, Advocate Supreme Court for Respondent No.3.

M. Saleem Thapadewala, Advocate Supreme Court for Respondent No.4 (Acquatech).