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Petitioner: ALI MURAD VS Respondent: NATIONAL BANK OF PAKISTAN
Court Name: Sindh High Court Judge(s): Sajjad Ali Shah, Shahid Anwar Bajwa Title: ALI MURAD vs NATIONAL BANK OF PAKISTAN Case No.: Constitutional Petition No,D-104 of 2007 Date of Judgment:2010-10-11 Reported As: 2012 PLC 347 Result: Order accordingly
JUDGMENT
JUDGMENT ' SHAHID ANWAR BAJWA, J.--- With the consent of the learned counsel this constitutional petition was finally heard and is decided at Katcha Peshi stage. The petitioner was an employee of the respondent-Bank which is a statutory organization having statutory rules of service. Petitioner was issued a charge-sheet on 2-9-1997. The charge-sheet was followed by inquiry and ultimately vide order dated 28-1-1999 the petitioner was dismissed from service. Being aggrieved by the dismissal from service the petitioner approached the Federal Service Tribunal with Service Appeal No, 751-K of 1999. This appeal remained pending all along and upon pronouncement by the Supreme Court in the case of Muhammad Mubeen-us-Salam and another v. Federation of Pakistan and others (PLD 2006 SC 602) the petitioner was informed by the Assistant Registrar of the Federal Service Tribunal that his appeal had abated. After such abatement the petitioner on 18-9-2006 filed a grievance petition under section 46 of the Industrial Relations Ordinance, 2002 before the Sindh Labour Court No,V. The learned Labour Court vide order dated 19-8-2008 held that no judicial order had been passed by the Service Tribunal and therefore it appeared to the Labour Court that appeal of the petitioner, in view of judgment of the Supreme Court in Raja Riaz's case, 2008 SCM R 402 was still pending. 2. Learned Counsel for the petitioner relying upon Abdul Razak v. Messrs Ihsan Sons Limited and 2 others 1992 SCM R 505 contended that Standing Order Ordinance is not applicable to the petitioner's establishment and therefore Labour Court had no jurisdiction and therefore only remedy available for him was to approach this Court. Learned counsel further submitted that no inquiry was held and action taken against him was in violation of rules of the Bank and the law. When confronted with the record of the Labour Court learned counsel submitted that the
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respondent Bank had not produced any inquiry proceedings before Federal Service Tribunal. He however submitted that the inquiry held against him was held ex parte and proceedings of inquiry are not signed by the Inquiry Officer. He submitted that even the inquiry proceedings were not produced in the Labour Court with reply statement but were subsequently filed through an application. Learned counsel further submitted that personal hearing was not granted to the petitioner and report of inquiry was not supplied to him. In this regard learned counsel relied upon Vice-President (Admn.), National Bank of Pakistan and others v. Basharat Ali and others 1996 SCM R 201. Lastly learned counsel submitted that dismissal order is not a speaking order. 3. Mr. Ch. M. Ashraf Khan, learned counsel for the respondent Bank relied upon National Bank of Pakistan and another v. Punjab Labour Appellate Tribunal and 2 others 1993 SCM R 105 to contend that Labour Court has jurisdiction to adjudicate upon, grievance of the petitioner. Learned counsel submitted that in section 25-A of the I. R.O, 1969, nature of grievances which workman can bring before the Labour Court is specified and these are grievances arising out of "rights guaranteed, or secured by or under any law, any award or settlement". Learned counsel submitted that Rules of National Bank of Pakistan, 1973 being statutory rules come within the ambit of "any law". ' We have considered the submissions made by the learned counsel and have also gone through the record. 5. Core issue is whether the Labour Court has jurisdiction to adjudicate upon grievance of the petitioner or not. The backdrop of this issue is that National Bank of Pakistan is a statutory Organization and it has statutory rules of service. Chaudhry Muhammad Ashraf Khan, learned counsel for the respondent relied upon National Bank of Pakistan's case (Supra). This is a judgment by a two Member Bench of Hon'ble Supreme Court. Firstly it was held as under:- "The first proviso to subsection (4) of section 1 of the Standing Orders Ordinance exclude the applicability of the said Ordinance to industrial and commercial establishments carried on by or under the authority of the Federal or any Provincial Government, where statutory rules of service, conduct or discipline are applicable to the workmen employed therein. All the banks after their nationalization under the banks Nationalization Act, 1974, have been held by various Courts as being carried on by or under the authority of the Federal Government. In this connection Syed Irshad v. Habib Bank 1979 PLC 543, Vice-President, National Bank of Pakistan v. Punjab Labour Appellate Tribunal (supra) and National Bank of Pakistan v. Nizamuddin Mehr (supra) may be referred." ' Thereafter it was held as under:--- "13. But even if I were to accept that by the Second Wage Commission Award, the appellant-Bank's old 1973 Service Rules revived as statutory rules, the respondent could have moved the Labour Court under section 25-A of the Ordinance in respect of the right guaranteed or secured to him by the said rules. Section 25-A (1) permits a grievance petition to be filed by a workman in respect of any right guaranteed or secured to him by or under any law or any award or settlement for the time being in force. In Trustees of the Port of Karachi v. Abdul Ghani 1983 SCM R 769, this Court treated the violation of statutory rules of the Karachi Port Trust as giving to the workmen remedy in respect of a right guaranteed "by or under any law", as stated in section 25-A(1) of the Ordinance, In Iftikhar Ahmed v. President, National Bank of Pakistan ,(supra), this Court treated the Wage Commission Award also as falling in the scope of the words "any award" as given in section 25-A(1) of the Ordinance, thus entitling employees of all the banks governed by Wage Commission Awards to seek redress of their grievances from the Labour Courts under the said section. In these circunistances, there can be no escape from the conclusion that the respondent's grievance petition was maintainable before the Labour Court and the objection of the appellant- Bank is therefore not well founded.
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14. As regards the contention that the respondent could not have approached the Labour Court direct, but should have moved a departmental appeal under the 1973 Service Rules, this Court in Trustees of Port of Karachi v. Abdul Ghani (1983 SCM R 769) was faced with the same contention, as in this case, and held that notwithstanding the statutory service rules, even if it did provide a remedy, yet the provisions of the Industrial Relations Ordinance would overreach the scope of the statutory rules and govern employer-workman relationship. This objection therefore has no force and is rejected." 6. Definition of workman is given in section 2(xxviii) of the I.R.O. 1969 and the definition is in the following words:--- (xxviii) "worker" and "workman" means any person not falling within the definition of employer (including employment as a supervisor or as an apprentice in an establishment or industry for hire or reward either directly or through a contractor whether the terms of employment be express or implied, and for the purpose of any proceedings under this Ordinance in relation to an industrial dispute includes a person who has been dismissed, discharged, retrenched, laid-off or otherwise removed from employment in connection with or as a consequence of that dispute or whose dismissal, discharge, retrenchment, lay-off or removal has led to that dispute but does not include any person--- (a) who is employed mainly in a managerial or administrative capacity, or Who, being employed in a supervisory capacity draws wages exceeding rupees eight hundred per mensem or performs, either because of the nature of duties attached to the office or by reasons of the powers vested in him, functions mainly of managerial nature." 7. This definition has been considered by the Supreme Court in a number of cases. One of the landmark cases in this regard is Trustees of the Port of Karachi v. Muhammad Saleem, 1994 SCM R 2213. It was laid down by the Supreme Court as under:- "22. Turning to the facts of this case, the parties was agreed that the respondent was, while he was still in the employment of the appellant, a worker for the purposes of section 25-A read with clause (xxviii) of section 2 of the Ordinance. There is also no question that the right conferred by section 25-A is not a common law right; it is a statutory right expressly conferred by section 25-A of the Ordinance. As in the case of any other statutory right, so here, in order to avail himself of that right, a person must fulfil the necessary conditions precedent to the exercise of that right. One such condition here is that the person who claims that right must be a worker. By clause (xxviii) of section 2 of the Ordinance a worker is a person--- (a) who does not fall within the definition of employer; (b) who is employed in an establishment or industry for hire or reward either directly or through a contractor whether the terms of employment be express or implied, and includes for the purpose of any proceedings under the Ordinance in relation to industrial dispute a person who has been dismissed, discharged, retrenched, laid-off or otherwise removed from employment in connection with or as a consequence of that dispute or whose dismissal, discharge, retrenchment, lay-off, or removal has led to that dispute. Thus a person who has been dismissed discharged, retrenched, laid-off or otherwise removed from employment is not a worker unless his dismissal discharge etc. Had connection with or was in consequence of an industrial dispute or whose dismissal, discharge, etc. Had led to such a dispute. The words "for the purpose of any proceeding under this Ordinance" show also that the definition of the expression "worker" as contained in clause (xxviii) of section 2 of the Ordinance applied also to the proceedings under section 25-A of the Ordinance. 23. Here, it was not the case of the respondent before the Labour Court, before Labour Appellate Tribunal, before the High Court or before this Court that his dismissal, discharge etc. Was in any way related to an industrial dispute. This was, therefore, a case of an individual dispute unrelated to an industrial dispute. We hold, therefore, that the respondent was not a worker for the purposes
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of section 25-A read with clause (xxviii) of section 2 of the Ordinance. It must follow inevitably that he was not entitled to the remedy provided by section 25-A of the Ordinance and that the Labour Court and the Appellate Labour Tribunal were, therefore, right in their view that remedy was not available to him." (Underlining added). 8. This judgment has been consistently followed. Some of such cases are:--- ' HIGH COURTS (1) Superintendent (HQ) Irrigation Lahore Zone v. Punjab Labour Appellate Tribunal and another 1987 PLC 180. (2) Vice-President National Bank of Pakistan, Gujranwala Zone and another v. Punjab Labour Appellate Tribunal and 7 others, 1985 PLC 1053. (3) Pakistan Railways v. Junior Labour Court No,V and others 1979 PLC 320. (4) Afzal Hussain v Zeal Pak Cement Factory 2006 PLC 597 (5) National Bank of Pakistan v. Sindh Labour Appellate Tribunal, Karachi and another 1994 PLC 301. (6) Messrs Coca Cola Beverage Pakistan Ltd. v. Registrar Trade Unions Sindh and 3 others, 2010 PLC 48. (7) Zohaib Shaukat and others v. Labour Department and others 2010 PLC 265. SUPREME COURT (8) Mustehkum Cement Ltd. Through Managing Director v. Abdul Rashid and others 1998 PLC 172. (9) Muhammad Nawaz Bhatti v. President Muslim Commercial Bank Ltd. Karachi and others 2008 PLC 355. (10) Board of Governors Aitcheson College Lahore v. Punjab Labour Appellate Tribunal and others 2001 PLC 589. 9. Ratio of the above cases is that a person who was workman when employed ceases to be a workman when he is removed from employment except in two categories specified in the definition quoted above. These categories relate to where either the termination is in consequence of an industrial dispute or where the termination etc. Has led to an industrial dispute. We may hasten to add that this is only in respect of definition of workman as given in section 2(xxviii) of the Industrial Relations Ordinance, 1969. 10. This leads to the second aspect. If a person is not a workman (as defined in I.R.O.) after his employment has come to an end then how can he maintain a grievance petition under section 25-A of the I. R.O, 1969 Answer to this question lies in Standing Order 12(3) of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. The said Standing Order is in the following words:- "12(3) The services of a workman shall not be terminated, nor shall a workman be removed, retrenched, discharged or dismissed from service, except by an order in writing which shall explicitly state the reason for the action taken. In case a workman is aggrieved by the termination of his services or removal, retrenchment, discharge or dismissal, he may take action in accordance with the provisions of section 25-A of the Industrial Relations Ordinance, 1969 (XXVII of 1969) and thereupon the provisions of the said section shall apply as they apply to the redress of an individual grievance." 11. Precisely this question was considered by a Single Bench of this Court in Trustees of the Port of Karachi v. Muhammad Saleem and another 1987 PLC 846 and the following observation was recorded:--- "The legislative intent, in my opinion, is clearly indicated by the various changes which were introduced in the (I.R.O.) and the Standing Orders Ordinance from time to time. When section 25-A was introduced in the Ordinance in place of Standing Order 18, the intention clearly was that only such persons could seek redress under that section who fall within definition of "worker" or "workman" in the Ordinance. However, a plain reading of the definition indicates that the same
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includes within its ambit only such persons who are employed in an industry for hire or reward, barring of course those who for the purpose of any proceedings under the Ordinance in relation to an industrial dispute have been dismissed, discharged, retrenched laid off or otherwise removed from employment in connection with or in consequence of such dispute or whose dismissal, discharge, retrenchment or lay off or removal has led to the dispute. No doubt subsection (4) of section 25-A provides that when an application under that section is brought before a Labour Court the same shall be disposed of as if it were an industrial dispute, but reference to industrial dispute therein only relates to powers and procedure of the Labour Court and the same neither enlarges definition of 'worker in the Ordinance nor does it convert such an application into an industrial dispute.... Only such persons can seek remedy under Standing Order 12(3) who are workmen according to the definition of the term given in the Standing Order Ordinance.Definition of 'worker' in the Ordinance is indicative of the fact as the same also shows awareness on the part of the Legislature that the definition was not attracted to person whose services had been terminated by the employer and appears to be for the same reason that such persons were expressly included in the definition of the worker for the purpose of industrial dispute." 12. In Mustehkum Cement Ltd. Through Managing Director v. Abdul Rashid and others 1998 PLC 172 the Supreme Court up-held the same conclusion by observing as under:--- "9. The definition of the terms "worker" or "workman", as contained in the Ordinance, indicates that persons falling within the definition of "employer, persons mainly employed in managerial or administrative capacity or persons employed in supervisory capacity and drawing wages exceeding rupees eight hundred per mensem or persons performing functions mainly of managerial nature have been excluded from the said. Definition. It is also pertinent to note that persons who have been dismissed, discharge, retrenched, laid-off or otherwise removed from employment have been included in the said definition, but only in case such dismissal, discharge, removal etc. In connection with or in a consequence of an industrial dispute. However, persons who have been dismissed, discharged or removed from service otherwise than in connection with or in consequence of an industrial dispute are not included in the said definition. Therefore, although a person, who has been dismissed, discharge, etc. In connection with or in consequence of an industrial dispute can seek redress of his individual grievance in respect of a right guaranteed to him, as provided in section 25-A of the Ordinance, but such right would not be available to a person who has been dismissed, discharged, or removed from service otherwise than in connection with or as a consequence of an industrial dispute. Reference in this regard may, however, be made to Standing Order 12(3) in the Standing Orders Ordinance, which provides as under:- "12(3) The services of a workman shall not be terminated, nor shall a workman be removed, retrenched, discharged or dismissed from service, except by an order in writing which shall explicitly state the reason for the action taken. In case a workman is aggrieved by the termination of his services or removal, retrenchment, discharge or dismissal, he may take action in accordance with the provisions of section 25-A of the Industrial Relations Ordinance, 1969 (XXVII of 1969) and thereupon the provisions of the said section shall apply as they apply to the redress of an individual grievance." 9-A. The provisions of Standing Order 12(3), therefore, indicate that it allows right to a workman who is aggrieved by termination of his services or removal, retrenchment, discharge or dismissal to seek redress in accordance with the provisions of section 25-A of the Ordinance. The words "and thereupon the provisions of the said section shall apply as they apply to the redress of an individual grievance" clearly indicate that for the purpose of redressal of such grievance the procedural provisions of section 25-A have been extended to Standing Order 12(3) and the said provisions shall apply in the same manner as they would apply in case of an individual grievance
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referred to in the said section. It, therefore, clearly follows that right to seek redress has been made available to such workman, not through the force of section 25-A of the Ordinance but by extending the said provisions to Standing Order 12(3)". (Emphasis added). 13. Thus it appears that a dismissed etc. Worker approaches Labour Court not by virtue of any provision contained in the IRO (because he has ceased to be a worker under IRO) but by virtue of Standing Order 12(3). Definition under the Standing Orders Ordinance is materially and vestly different and it talks of "person employed" and not one "who is employed". Even otherwise if a workman who has ceased to be an employee could have approached the Labour Court under section 25-A of the Industrial Relations Ordinance, there was no need of adding words "in case a workman is aggrieved by the termination of his services or removal, retrenchment, discharge or dismissal, he may take action in accordance with the provisions of section 25-A of the Industrial Relations Ordinance, 1969 and there upon the provisions of the said section shall apply as they apply to the redress of an individual grievance". It may be pointed out that the grievances that can be taken to the Labour Court under section 25-A are grievances under "any law, any award or settlement". Any law in any case includes the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. Legislature was conscious of the fact that in order to come to Labour Court under section 25-A a person must be in employment at the time when he approaches the Labour Court (the two exceptions relating to industrial dispute notwithstanding) and therefore it added the above quoted words in Standing Order 12(3). It may be instructive to note that Standing Orders Ordinance provides for many other benefits such as bonus (Standing Order 10-C), leave (Standing Order 8), group insurance (Standing Order 10-B), status of workman (Standing Order 1) etc. But nowhere else but in Standing Order 12(3) such a provision has been made. The reason is not far to seek. In all other cases the person is still in employment except in cases falling under Standing Order 12(3) . . 14. One can look from another angle, there are establishments to which the Industrial Relations Ordinance is not applicable but to which the Standing Orders Ordinance is applicable. It is now well settled law that if the Standing Orders Ordinance is applicable even if the I.R.O. Is not applicable a workman in respect of rights guaranteed to him under Standing Order 12(3) if violated can approach the Labour Court. This he can do by virtue of Standing Order 12(3) and not by virtue of any provision contained in the I.R.O. If any authority is needed one may refer to Pakistan Security Printing Corporation v. Sindh Labour Appellate Tribunal and 2 others 1983 PLC 123; Security Paper Ltd. v. Sindh Labour Court No,IV and another, 1981 PLC 898; Mumtaz Ali v. Chairman N.-W.F.P. Labour Appellate Tribunal Peshawar and 2 others 1995 PLC 738; Pak Arab Refinery Ltd. v. Muhammad Rasheed 1999 SCM R 373. 15. This brings us to the next question whether the Industrial and Commercial Employment (Standing Orders) Ordinance is applicable to the workman employed by National Bank of Pakistan. For answer to that question we may also refer to first proviso to subsection (4) of section 1 of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. The proviso is in the following words:--- "Provided that nothing in this Ordinance shall apply to industrial and commercial establishments carried on by or under the authority of the Federal or any Provincial Government, where statutory rules of service, conduct or discipline are applicable to the workmen employed therein." 16. The proviso means that if there is an industrial and commercial establishment "carried on by or under the authority of the Federal or any Provincial Government" and there are statutory rules therein the provisions of the Standing Orders Ordinance would not be applicable to it. In Punjab Small Industries Corporation v. Punjab Labour Appellate Tribunal Lahore and others, 1988 SCM R 1725 when this proviso came up for consideration before the Supreme Court of Pakistan, the Supreme Court noted that in the proviso the word "corporation" is not used and held that when the
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government had set up a corporation then the proviso could not have any applicability. Observations of the Supreme Court are in the following words:--- "Article 18 of the Constitution by its clause (c) envisages the carrying on by the Federal Government or a Provincial Government or by a Corporation controlled by any such Government, of any trade, business, industry or service to the exclusion, complete or partial, of other persons. This Article visualises the carrying on of the business by the Federal Government or a Provincial Government or by a Corporation controlled by any such Government. In the proviso, excluding the operation of the Standing Orders Ordinance, it is prescribed that "Provided that nothing in this Ordinance shall apply to industrial and commercial establishments carried on by or under the authority of the Federal or any Provincial Government where statutory rules of service, conduct or discipline are applicable to the workmen employed therein." The Corporation have been omitted from the proviso and the requirement is of Provincial or Federal Government carrying on business under its authority and the existence of the statutory rules. In the case before us it is the common ground that the Provincial Government has set up a Corporation which is the appellant and which is running the establishment, of which the respondents were employees. It is clear, therefore, that on the words of the proviso the Standing Orders do not become inapplicable and the decision in the case of National Shipping Corporation correctly lays down the law on the subject." (Underlining added). 17. Question in respect of somewhat similar provision of law came up before the Supreme Court of India in Heavy Engineering Mazdoor Union v. State of Bahar and others AIR 1970 SC 82. The facts of this case were that entire share of the respondent-company were contributed by the Government of India and industrial dispute was referred by the Provincial…
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