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Petitioner: Messrs PEARL CONTINENTAL HOTEL, KARACHI VS Respondent: S. ZAMIRUL HAQUE
Court Name: Sindh High Court Judge(s): Shahid Anwar Bajwa Title: Messrs PEARL CONTINENTAL HOTEL, KARACHI vs S. ZAMIRUL HAQUE Case No.: L.R.A. No,50 of 2003 Date of Judgment:2010-03-03 Reported As: 2010 PLC 276 Result: Order accordingly
JUDGMENT
JUDGMENT ' SHAHID ANWAR BAJWA, J.--- Respondent was employed by the petitioner/hotel in 1981 as kitchen Controller and was in 1991 redesignated as Food and Beverage Coordinator. On 16-3-1992 on the pretext of reorganization his employement was terminated. Such termination was challenged before the Sindh Labour Court No,V at Karachi in a Grievance Petition under Section 25-A of the Industrial Relations Ordinance, 1969. Grievance Petition was dismissed by the Labour Court. Being aggrieved by decision of the Labour Court appeal was preferred before the Sindh Labour Appellate Tribunal and the Tribunal vide its judgment dated 12-9-1995 ordered for reinstatement of present respondent in service with full back-benefit. Employer/hotel filed Constitution Petition No,D-1968 of 1995. However, this Court dismissed the petition, and maintained order or Labour Appellate Tribunal and in C.P.L.A. No,478 of 1998 leave was refused by the Supreme Court. Thus order passed by the Labour Appellate Tribunal attained finality. After order was passed by the Labour Appellate Tribunal on 12-9-1995, employer/hotel issued a letter to the present respondent by which he was informed that he had been granted special and was told that he was not required to attend duty but he would be paid wages. 2. According to respondent since entire back-benefits were not paid to him, he filed application under section 51 of the Industrial Relations Ordinance, 1969 for payment of back-benefits to him in terms of order of Sindh Labour Appellate Tribunal. That application was allowed by the Sindh Labour Court No,V in all respect except conveyance allowance. Being aggrieved by the order of Labour Court revision application under section 38(3-a) of the Industrial Relations Ordinance, 1969 was filed by the employer/hotel before the Sindh Labour Appellate Tribunal on March 19, 2001. The Industrial Relations Ordinance was promulgated on 26-10-2002. This Ordinance repealed the
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Ordinance of 1969 and abolished Labour Appellate Tribunals. Consequently, this fresh revision application was filed by the employer/hotel in this Court on 28-10-2003. Initially, this revision application was adjourned from time to time. There was another revision application being Revision Application No,49 of 2003 pending in this Court in which advocate appearing for the employer/hotel was the same. On 30-8-2004 since both the matters came up together order sheet was recorded in Labour Revision Application No,49 of 2003 and in the order sheet of this revision application it was merely recorded: "Same order as in LRA No,49 of 2003. " In LRA No,49 of 2003 adjournment was granted. This position continued on the next two dates. Thereafter on 3-6-2005 LRA No,49 of 2003 was withdrawn. In diary sheet of present matter it was recorded: "same order as in LRA No,49 of 2003." Thereafter on 28-8-2008 a C.M.A. Was filed stating that order sheet has been wrongly recorded on account of a bona fide mistake by counsel for the applicant. Notice was issued. On 10-11-2008 C.M.A. Was allowed and order dated 3-6-2005 was recalled. 3 Learned counsel for the applicant made the following submissions:--- (i) This Labour Revision Application was filed in 2003 under the provision of the Industrial Relations Ordinance, 2002. Industrial Relations Ordinance, 2002 was repealed on December 6, 2008 by the Industrial Relations Act, 2008 and said Act provides for transfer of all matters under Industrial Relations Ordinance, 2002 pending in this Court to the Sindh Labour Appellate Tribunal. Sindh Labour Appellate Tribunal was constituted in October, 2009. Therefore, this Court has ceased to have jurisdiction and this labour revision application is to be transferred to the Sindh Labour Appellate Tribunal. (ii) Labour Court had dismissed grievance petition of present respondent. In appeal Labour Appellate Tribunal had accepted appeal and ordered for reinstatement. Therefore, order to be implemented under section 62 of the Industrial Relations Ordinance, 2002 was order of the Labour Appellate Tribunal. Labour Court had power to order for payment under its own decision and under a decision of the High Court and had no power to order for payment under a decision of the Labour Appellate Tribunal. (iii) Since it was decision of Labour Appellate Tribunal it is for the Tribunal to determine the amount and not for the Labour Court. (iv) Application before the Labour Court was filed not for money due but for difference of back- benefits. In this regard learned counsel referred to Para 4 of the affidavit-in-evidence of present respondent and submitted that back-benefits were deposited in this Court and present respondent received those back-benefits without any objection. Therefore he is estopped from claiming any further financial back-benefits. (v) Labour Court did not have jurisdiction under section 62 of the Industrial Relation Ordinance, 2002 and jurisdiction is either with the Authority under the Payment of Wages Act or the Authority under the Shops and Establishments Ordinance, 1969. (vi) None of the back-benefits claimed were admissible to the present respondent. In support of his contention learned counsel relied upon Syed Arif Raza Rizvi v. Messrs Pakistan International Airlines through Chairman /M.D. Karachi, PLD 2001 Supreme Court 182 and Messrs Tobacco International Ltd., Karachi v. Chairman, Sindh Labour Appellate Tribunal, Karachi and 2 others, 1993 PLC 87. (vii) Meal allowance is never in shape of money. Employees performing duty in the hotel are entitled to take meals in hotel and no employee is entitled to take money in place of meal. (viii) Leave encashment is a terminal benefit and is not payable as a back-benefits. 4. Ch. Muhammad Latif Saghar learned counsel for the respondent referred to affidavit-in- evidence of present respondent. He specifically referred to para 6 of the affidavit wherein it was stated that all legal entitlements of present respondent have not been included in amount deposited by hotel in this Court and that the present respondent had made several requests/ representation to the hotel by inviting attention to such short payment. He also referred to Para 9 of
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the affidavit and stated that benefits claimed were part and parcel of terms and conditions of employment/agreement and the same by passage of time have also become custom and usage being long practice which practice is duly protected under norms of natural justice and therefore the respondent was entitled to the same. Similarly, in Para 10 of the affidavit, the learned counsel submitted, statement on respect of other benefits was made. Learned counsel also referred to cross-examination of present respondent where it was established that at the time of termination of employment of present respondent he was getting night duty allowance and lunch and dinner facility while performing duty. It was admitted that there was a collective bargaining agent in the hotel and there were many settlements signed between the collective bargaining agent and the hotel. ' He also referred to admission regarding food facility. He produced Memorandum of Settlement as Exh.A.W.1/1 and in this connection Para 16 of the settlement was referred to. He also referred to cross-examination and to Exh.M/9 letter dated 15-4-1999 issued by the Administration by which practice of meal facility was stopped. Learned counsel also referred to cross-examination of witness of hotel. Witness admitted with reference of Exh.F. And stated that house allowance, conveyance allowance and night allowances were mentioned in the appointment letter. He also admitted that from time to time respondent was assigned night duty. It was admitted that no allowance i.e, allowance, conveyance allowance and attendance allowance were included in back-benefits. It was admitted that these allowances are admissible during employment in the hotel. One medical facility it was stated that it was paid on reimbursement basis. It was admitted that attendance allowance is paid to an employee when he works for complete month and in case of more than one absence in a month this allowance is not paid. It was admitted in the cross- examination that present respondent was treated as workman after judgment of this Court. On the question that since Labour Court has denied payment of conveyance allowance and finding in this respect has not been challenged by the present respondent in any proceedings, learned counsel referred to judgment of this Court passed in Munawwar A. Malik and another v. Abdul Salam, 2006 PLC 122 to contend that even if a judgment or order of the Labour Court is not challenged by a party, after receiving information, if revisional courts finds an irregularity, expediency and ext nguishing of right does not take place. 5. While replying to objections in respect of maintainability of this petition, learned counsel for present respondent relied upon Sindh Road Transport Corporation, Hyderabad v. Saleemuddin, NLR 1981 TD 253 and Messrs Utility Stores Corporation of Pakistan Ltd. v. Sindh Labour Appellate Tribunal and 2 others, 1990 PLC 268. In respect of maintainability of this application before, or transferability of this application to, Sindh Labour Appellate Tribunal learned counsel submitted that Tribunal is not properly functioning, as no office has been provided to the Tribunal and all the matters in this Court have not yet been transferred to the Tribunal. Therefore all practical purposes the Tribunal is not yet functional. 6. As stated above this Labour Revision Application was dismissed as withdrawn on 3-6-2005 on the basis of same order as in L.R.A. No,49 of 2003. C.M.A. No,2684 of 2008 was filed by the employer/hotel on 20-8-2008. It was stated in that application that since two matters i.e, this Labour Revision Application and L.R.A No,49 of 2003 were being listed together, under a bona fide mistake it was dismissed as withdrawn. Consequently, it was prayed that order dated 3-6-2005 be recalled and this labour revision application be restored to its original number and position. On this application notice was issued on 28-8-2008. Eventually, on 10-11-2008 this C.M.A. Was allowed and order dated 3-6-2005 was recalled. 7. Ch. Muhammad Latif Saghar filed C.M.A. No,112 of 2009 for recalling order dated 10-11-2008. In this application it was submitted that on 10-11-2008 the present respondent had filed counter affidavit and he was present in the Court. Applicant's counsel also remained in Court till 10.30 a.m.
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Thereafter his counsel felt unwell and went to High Court Clinic from where he was taken to NICVD where he expired. The present respondent further stated that he was present in Court and after tea break when the matter was called he requested the Court to keep it aside because he wanted to locate his counsel as at that time he was unaware that his counsel had been taken to the NICVD. However, merely on the basis of record the Bench allowed C.M.A. No,2684 of 2008 and restored this labour revision application. Consequently, C.M.A. No,112 of 2009 was filed with a prayer that order dated 10-11-2008 be recalled this labour revision application be dismissed. Mr. Saghar submitted that with dismissal of labour revision application present respondent acquired valuable rights. He submitted that there is no mention in the order dated 10-11-2008 that rejoinder had been filed by the present respondent. 8. In reply on behalf of employer/hotel it was submitted that reason the hotel remained silent for three years was that the hotel or its counsel were not aware of their mistake and so was the present respondent as the respondent never approached his employer for the benefits which had been allowed by the labour Court vide impugned order. It was only when respondent approached hotel that it was realized that order dated 3-6-2005 had been passed on the basis of mistake by the counsel for employer/hotel. 9. I have considered submission made by the counsel and have also gone through the record. 10. I may first deal with C.M.A. No,112 of 2009 filed by Mr. Saghar. In respect of this C.M.A. Mr. Saghar relied upon Mst. Hajran Bibi and others v. Abdul Ghani 2002 SCM R 1405. It was a matter arising out of Civil Procedure Code. Revision Application was dismissed on 11-11-2006 for non-prosecution and petitioner moved an application on 12-7-1999 for restoration of the same. Such application was accompanied by an application for condonation of delay. High Court dismissed application for restoration. Supreme Court concurred with High Court's observation that revision application was dismissed for non-prosecution and application for restoration was filed after two years and eight months. It was further observed that petitioners singularly failed to explain delay of each day which they were obliged to do. 11. In the present case was not dismissed for non-prosecution on 3-6-2005 but it was due to a mistake because two revision applications were listed together one was withdrawn and by mistake and in the other order of withdrawal on the basis of same order. No doubt order of 10-11-2008 created right in favour of present respondent. Why did not the present respondent claim his right for a period of three years after order dated 3-6-2005. It appears that present respondent was equally in ignorance of order dated 3-6-2005. Case of Mst. Hajran Bibi (supra) is clearly distinguishable. In that case application was dismissed for non-prosecution. Present case is not a case of dismissal for non-prosecution. It is a case of mistake. Both the hotel and the present respondent were oblivious of this mistake: hotel took no steps to get it corrected and the respondent took no steps to claim rights under the order. Therefore, I do not think C.M.A. No,112 of 2009 has any merits. The same is consequently dismissed. 12. Moreover, it is now a well-established principle of jurisprudence in Pakistan that litigation be decided on the basis of merits of each case rather than parities being knocked down by scepters of technicalities which scepters though may seem very attractive to one party but always look very hideous to the opposite parties. The Court has to fashion a path of justice, of course in accordance with the law. 13. It was submitted by Mr. Humanyun that in terms of provisions contained in section 86 of the Industrial Relations Act 2008 all appeals and applications of any sort pending in any High Courts stood transferred to the Labour Appellate Tribunal with effect from the date of commencement of the Act of 2008. He therefore contended that this High Court had no jurisdiction to continue hearing of this revision application.
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14. That Act of 2008, after having been passed by both Houses of Ma Majlis-e-Shoora (Parliament) received assent of President on 6-12-2008. Notification by the Ministry of Law and Parliamentary Affairs was issued on 14-12-2008 and the Act of 2008 was printed in Gazette of Pakistan on 15-12- 2008. In terms of Article 75 of the Constitution, a Bill having been passed by the two Houses of Majlis-e-Shoora (Parliament), the moments it received ascent of the President, under Article 75(3) of the Constitution it become law and is to be called as an Act of Majlis-eShoora (Parliament). It does need, constitutionally and legally speaking notification by the concerned Ministry or publication in the official gazette to become effective and operative. Notification and publication are administrative acts and administrative lethargy cannot be allowed to defeat provision of Article 75(3) of the Constitution or legislative step taken by the Legislature (which in United kingdom is referred to as "Queen in Parliament" and which in Pakistan is passage by two Houses (except for Money Bills which requires passage by National Assembly alone) and assent by President). Therefore the Industrial Relations Act, 2008 came into operation with first crack of down on December 6, 2008. 15. Section 86 of the Industrial Relations Act, 2008 provides as under:- ' Section 86: Transfer of pending proceedings.-- - All appeals and applications of any kind pending in any High Court immediately before the commencement of this Act shall stand transferred to the Labour Appellate Tribunals from the date of commencement of this Act and it shall not be necessary for the Labour Appellate Tribunal to recall any witness or record any evidence that may have been recorded. 16. No doubt it is provided that with commencement of the Act of 2006 are appeals and applications of any kind pending in High Court were to stand transferred to the Labour Appellate Tribunal, but there are four reasons for which this revision application can be treated as a constitutional petition and decided accordingly. Firstly the Tribunal in Sindh though established in October, 2009 has not yet been fully functional because it has not yet been provided staff and requisite facilities for dealing with extensive array of labour matters. Secondly, at the request of the Tribunal files in the High Court have not yet been transferred to the Tribunal. Thirdly there are as noticed in Royal Textiles through Proprietor/Employer v. Sindh Labour Court No,3, Karachi and 3 others, PLD 2010 Kar. 27 there are almost 2000 such matters pending in this Court which are covered by above quoted section 86 and therefore it will take years before this matter is taken up. Persian couplet:- {{URDU TEXT}} ' (Till antidote comes from Iraq, person bitten by snake would pass away) quoted by Mr. Justice Manzoor Qadir in Mehboob Ali Malik v. The Province of West Pakistan and another, PLD 1963 Lah. 529 describes such like situation in two lines and more effectively than tomes of legal sophistication possibly can. Fourthly Act of 2008 has sword of Damocles hanging on its head: section 87(2) provides that the Act shall in any case stand repealed on April 30, 2010, if not repealed earlier. For all these reasons, objection of Mr. Humayun that the matter should go to Labour Appellate Tribunal and therefore cannot be decided even as a constitutional petition by this Court is overruled. 17. Next objection of Mr. Humayun was that Labour Court had dismissed grievance petition of present respondent. In appeal Labour Appellate Tribunal had accepted appeal and ordered for reinstatement. Therefore, order to be implemented under section 62 of the Industrial Relations Ordinance, 2002 was order of the labour Appellate Tribunal. Labour Court had power to order for payment under own decision and under a decision of the High Court and had no power to order for payment under a decision of the Labour Appellate Tribunal. Precisely speaking his objection was that since it was decision of Labour Appellate Tribunal it is for the Tribunal to determine the amount and not for the Labour Court. At this stage provisions of law may be referred to.
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' Section 70 of Industrial Relations Act, 2008: Recovery of money due from an employer under a settlement or award--- (1) Any money due from an employer under a settlement, or under an award or decision of the Arbitrator, Labour Court or Tribunal may be recovered as arrears of land revenue or as a public demand if upon an application or the person entitled to the money, the Labour Court, so directs. (2) Where any workman is entitled to receive from the employer any benefit, under a settlement or under an award or decision of the Arbitrator, Labour Court or Tribunal, which is capable of being computed in terms of money, the amount at which such benefit shall be computed may, subject to the rules made under this Ordinance, be determined and recovered as provided for in subsection (1) paid to the workman concerned within a specified date. ' Section 51 of the Industrial Relations Ordinance, 1969: Recovery of money due from an employer under a settlement or award.-- (1) Any money due from an employer under a settlement, or under an award or decision of the Arbitrator, Labour Court or Tribunal may be recovered as arrears of land revenue or as a public demand if upon an application of the person entitled to the money, the Labour Court, so directs. (2) Where any workman is entitled to receive from the employer any benefit, under a settlement or under an award or decision of the Arbitrator, Labour Court or Tribunal, which is capable of being computed in terms of money, the amount at which such benefit shall be computed may, subject to the rules made under this Ordinance, be determined and recovered as provided for a subsection (1) and paid to the workman concerned within a specified date. Section 62 of the Industrial Relations Ordinance, 2002: Recovery of money due from an employer under an award or settlement.--- (1) Any money due from an employer under an award, settlement or decision of the arbitrator, Labour Court or High Court may be recovered as arrears of land revenue or as a public demand if, upon an application of the person entitled to the money, the Labour Court so directs. (2)) Where any workman is entitled to receive from the employer any benefit, under an award, settlement or decision of the arbitrator, the Labour Court or High Court, which is capable of being computed in terms of money, the amount at which such benefit shall be computed may, subject to the rules made under this Ordinance, be determined and recovered as provided for in subsection (1) and paid to the workman concerned by a specified date. ' In support of his contention Mr. Humayun relied upon Messrs. Tobacco International Ltd., Karachi v. Chairman, Sindh Labour Appellate Tribunal, 1993 PLC 87. In this case in application under section 51 of the Industrial Relations Ordinance, 1969 employee had claimed payment of gratuity under a settlement. The High Court held that a fundamental question touching upon the maintainability of application under section 51 cannot be adjudicated upon and decided by Labour Court in view of limited nature of powers vesting in it under section 70. The High Court further held that subsection (2) of section 51 "only enables the Labour Court to determine the amount of money due if the same is capable of being computed in terms of money, but the said subsection nowhere empowers the Labour Court to adjudicate upon any claim between an employer and a workman or determine questions raising issues of fundamental nature ... In regard to maintainability of the application itself. Such question could not be decided by the Labour Court by virtue of limited nature of the powers vesting in it under section 51". In rebuttal Chaudhry Saghar relied upon Utility Stores Corporation of Pakistan Ltd. v. Sindh Labour Appellate Tribunal and 2 others, 1990 PLC 268. Facts of this matter were that grievance petitions under section 25-A were dismissed by the Labour Court . Appeals were allowed by the Labour Appellate Tribunal. The Tribunal did not say a word about back-benefits. For payment of back-benefits, application under section 51 of the Industrial Relations Ordinance, 1969. It was contended that Labour Court had no power or jurisdiction to allow back-benefits under section 51. The High Court held as under--
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"In the first place, section 51 of the Industrial Relations Ordinance, 1969, is broad enough to include a power, vesting in a Labour Court, to direct the recovery of all moneys due from an employer under a settlement or under an award or decision of the Arbitrator, Labour Court or Tribunal. Clearly, money due on orders passed by a Labour Court or Tribunal is recoverable and in the instant case such money became due on grant of the grievance petition under section 25-A of the Industrial Relations Ordinance. It matters little that such grant came about at the appellate level of the Tribunal, for the Tribunal had come to exercise the same powers as the Labour Court in exercise of the former's appellate jurisdiction. If this were not enough, an "Award", as defined in section 2(ii) of the I.R.O., means the determination by a Labour Court, Arbitrator or Appellate Tribunal of any industrial dispute or any matter relating thereto. On either of such premises, back-benefits were recoverable as claimed by the employee respondents and there was no lack of jurisdiction. 17. A bare perusal of these sections indicates that the sections are pari materia with each other. Under section 62 of the Ordinance of 2002 money due an employer under an award, settlement or decision of the arbitrator, Labour Court or High Court may be recovered as arrears of land revenue or as a public demand upon an application of the person entitled to the money. Thus there must be a clear entitlement. A disputed entitlement cannot be…
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