Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: UTILITY STORES CORPORATIONthrough Regional Manager Utility Stores Corporations, Islamabad and another VS Respondent: MUHAMMAD ARBAB BHATTI and another
Court Name: National Industrial Relations Commission Judge(s): Raja Fayyaz Ahmed Title:UTILITY STORES CORPORATIONthrough Regional Manager Utility Stores
Corporations, Islamabad and another vs MUHAMMAD ARBAB BHATTI and another Case No.: Appeals Nos.4B(181) and 4B(182) of 2013 Date of Judgment:2014-04-03 Reported As: 2015 PLC 52 Result: Order accordingly Judgment ORDER ' JUSTICE (R) RAJA FAYYAZ AHMED (CHAIRMAN).--- The precise relevant facts of the case are that appellant Mr. Muhammad Arbab Bhatti filed application on 9-2-2009 under subsection (2) of Section 16 of the Payment of Wages Act, 1936 before the Assistant Commissioner/ Authority under the Payment of Wages Act (ICT) Islamabad estimating the value of the claimed amount in a sum of Rs,23,93,294 in addition to 15% profit with effect from 5-12-2008 untill realization. Reliefs claimed in the application are as under:- "(a) Paym ent of his delayed wages as estimated or such greater or less amount as the Authority may find to be due. ' OR (b) refund of the amount illegally deducted. ' The applicant certifies that the statement of facts contained in this application is to the best of his knowledge and belief accurate." 2. The appellant-corporation being the respondent before the Authority under the Payment of Wages Act, 1936 (hereinafter called as the Authority) contested the claim of the applicant on various grounds of law and facts taken in the written-statement filed on 10-6-2009. In the light of the pleadings, both the parties in support of their claims and pleas adduced evidence. Finally after hearing the parties, vide order dated 22-11-2012 for the given reasons, the appellant-corporation was directed to pay the amount of deductions made from the applicant retrospectively being in violation of the rule laid down by the Hon'ble apex Court in this regard and
---
## Page 2
that since the number of the years of service could be not ascertained conclusively therefore, the applicant has not been found entitled for gratuity for the claimed period of 12 years however; he has been found to be entitled to claim the amount of gratuity for 28 years if any; and the other claims in respect of 6 months' salary besides one month notice pay was allowed in his favour with the further direction that the outstanding amount be deposited with the Authority within thirty days for payment to the applicant. The operating part of the order dated 22-11-2012 passed by the Authority is reproduced hereinbelow:--- "After careful perusal of the available record including main applications, issues, affidavits-in- evidence and cross-examination, I am of the view that provident fund claim of the petitioner cannot be entertained by this Authority as it does not fail in the definition of wages. The calculation of gratuity, however, seems contentious. In this regard, Hon'ble Supreme while interpreting the provisions of the Payment of Wages Act (IV of 1936) in 1981 PLC 800 held that "Gratuity calculated on basis of total pay inclusive of allowances and not merely on basic pay". Furthermore, it was held in Zain Packaging Industries Ltd. v. Abdul Rashid 1994 SCM R 2222 "Gratuity should be paid on the basis of "wages" and wages would mean gross wages including fringe benefits which were on permanent basis and were part of basic pay." The available record shows that respondent deducted the amount on account of shortage from the petitioner after conducting a formal inquiry. However, this deduction was made retrospectively, which is against the cannons of justice and in violation of the principles laid down by apex courts in this regard. The respondent is directed to pay such amount recovered from the petitioner in retrospect. Moreover, the record shows three different dates joining of the petitioner i,e, 1968, 1971 and 1980. Firstly, the letter No,1(26)Estab(RM) dated 13-9-1978 shows that petitioner was placed at S.No,11 in the seniority list by the respondent stating his date of joining as 20-10-1968; secondly, EOBI mentions it as 1971; and thirdly, USC produced the appointment letter and joining report indicating the date of appointment as 1980. Similarly, the claim of the petitioner in respect of length of service is self-contradictory as he asserts in his written statement that he put in 41 years of service whereas para 2 of his written arguments claim that he rendered 38 years of service. The respondent has not denied the payment of gratuity on the basis of last salary drawn but the number of years of service could not be ascertained conclusively. Therefore, the petitioner cannot be allowed gratuity for remaining 12 years, however, he may claim the difference in the amount of gratuity calculated for 28 years, if any. The other claims of the petitioner in respect of 6 months salary, one month salary is also allowed. The claim of the outstanding amount is to be deposited to this Authority within 30 days for onward payment to the petitioner." 3. The above-mentioned original order passed by the Authority was questioned by the appellant- corporation by filing appeal under section 17 of the Payment of Wages Act, 1936 (hereinafter called as the Act) before this Commission which came-up for preliminary hearing before this Bench on 26-12-2012. After hearing of the learned Counsel for the appellant-corporation vide order of even date, the appeal along with its accompaniments was directed to be returned to the appellant to avail appropriate remedy as may be admissible to him by law and under the Constitution. 4. The appellant-corporation assailed the above said order of the Commission by filing Writ Petition No,132 of 2013 before the Hon'ble Islamabad High Court, Islamabad whereas; the applicant who did not file appeal against the order before the Commission also questioned the order of the Commission before the Hon'ble Islamabad High Court, Islamabad through Writ Petition No,2 of 2013. A few other petitioners feeling aggrieved of the orders passed by the learned Labour Court in the individual grievance petitions and in a contempt matter also filed Writ Petitions Nos.655 of 2013, No,1046 of 2012 and No,1015 of 2013 challenging various orders of the learned Labour Court before the Hon'ble Islamabad High Court, Islamabad.
---
## Page 3
5. The Hon'ble Islamabad High Court, Islamabad vide a common order dated 12-7-2013 disposed of these writ petitions in view of the submission of the learned counsel for the parties who conceded to the proposition of law settled by the Hon'ble Supreme Court of Pakistan while deciding Civil Appeal No,1150 of 2012, Civil Appeal No,127 of 2013 and Civil Petitions Nos.1754 and 1755 of 2012 vide order 13-2-2013 and accordingly; they were directed to seek relief from the concerned respective quarters in view of the order of the Hon'ble Supreme Court of Pakistan, above-mentioned. ' With the observations, these writ petitions have been disposed of vide the common order dated 12-7-2013 passed by the Hon'ble Islamabad High Court, Islamabad. The operative part of the order of the Hon'ble Supreme Court of Pakistan has also been reproduced in the said order, which reads as under:--- "The result of it would be that the grievance petitions, which the private respondents have filed now stand revived and will be decided in accordance with law by the forum, which is available now for their determination. The Industrial Relations Commission has been established by the Industrial Relations Act, 2012 for redressal of the individual grievance of the workmen. Consequently, all these grievance petitions are remanded accordingly for deciding the same in accordance with law." 5. The appellant-corporation thereafter filed Appeal No,4B(181) of 2013 against the original order dated 22-11-2012 passed by the Authority before this Commission whereas; applicant Mr. Muhammad Arbab Bhatti also for the first time challenged the aforesaid order of the Authority by filing Appeal No,4B(182) of 2013 before the Commission in respect of the reliefs which were not granted by the learned Authority as claimed by the applicant. Both these appeals have been filed under section 17 of the Act. 7. Before proceeding further in the matter; as to the competency of these appeals, it would be appropriate to look into the judgment passed by the Hon'ble Supreme Court of Pakistan in order to ascertain the proposition of law settled in the judgment of the Hon'ble apex Court conceded to by the learned Counsel for the appellant in these appeals before the Hon'ble High Court in the light whereof the Hon'ble High Court vide order dated 12-7-2013 directed the parties to seek relief from the concerned respective quarters in view of the judgment of the Hon'ble apex Court dated 13-2- 2013. 8. The relevant facts relating to Civil Appeal No,1150 of 2012, Civil Appeal No,127 of 2013 and Civil Petitions Nos.1754 and 1755 of 2012 have been given in the order dated 13-2-2013 passed by the Hon'ble apex Court containing reasons for the short order of even date passed in the said Civil Appeals and Civil Petitions. The short order of the Hon'ble apex Court is reproduced hereinbelow:--- "For the reasons to be recorded later, Civil Appeals Nos.1150 of 2012 and 127 of 2013 are allowed and Civil Petitions Nos.1754 and 1755 of 2012 are converted into appeals and allowed; the cases of respondents are referred to the N.I.R.C. Functioning in Islamabad, for decision expeditiously as early as possible, within a period of three months from the date of receipt of this order. No order as to costs". (i) The precise relevant facts of Civil Appeal No,1150 of 2012 recapitulated from the judgment of the Hon'ble Supreme Court of Pakistan are that the respondents Nos.2 to 18 in the Civil. Appeal were initially appointed in the National Institute of Banking and Finance (NIBAF) and the said respondents were taken over by the State Bank of Pakistan (SBP) upon the dissolution of NIBAF. In view of Memorandum dated 6-1-1997 and order dated 4-3-2013, it was decided that that the employees of NIBAF who are not on secondment from other institutions should be absorbed on regular basis in NIBAF, subsidiary of the Bank. The matter was again discussed by the NIBAF Board, which rejected their cases. This decision of the Board was challenged in the departmental appeal by the aforesaid respondents and later on assailed before the learned Federal Service Tribunal where they succeeded in appeal and they were directed to be reinstated on regular basis but the
---
## Page 4
order was assailed before the Hon'ble apex Court and during pendency of the matter before the Hon'ble Supreme Court of Pakistan, section 2-A of the Service Tribunals Act, 1973 was declared ultra vires and in consequence the judgment of learned Federal Service Tribunal abated. The said respondents thereafter approached to the learned Labour Court for redressal of their grievances. After hearing the parties, the learned Labour Court vide judgment dated 11-1-2011 allowed the grievance petitions of the respondents and ordered for their re-instatement in service with back- benefits. Appellant before the Hon'ble apex Court filed appeal against the order of the learned Labour Court before the Hon'ble Islamabad High Court, Islamabad acting as Labour Appellate Tribunal, stated to be pending till the order was passed by the Hon'ble Supreme Court of Pakistan. As the appellants before the Hon'ble Supreme Court of Pakistan did not comply with the judgment of the learned Labour Court; the respondents Nos.2 to 16 in the appeal before the Hon'ble apex Court filed contempt proceedings in which the learned Labour Court vide order dated 27-5-2011 directed for submission of implementation report and a penalty of Rs,20,000 was also imposed for not implementing its decision. This order of the learned Labour Court was challenged in Writ Petition No,1961 of 2011 by the appellants which was dismissed vide judgment dated 25-7-2012 by the Hon'ble Islamabad High Court, Islamabad impugned in Civil Appeal No,1150 of 2012 before the Hon'ble Supreme Court of Pakistan. (ii) The precise relevant facts of the case in Civil Appeal No,127 of 2013 recorded in the order of the Hon'ble apex Court are to the effect that the 'respondents Nos.2 and 3 in the said appeal were the employees of appellant-Bank (UBL) and their services were terminated. After service of grievance notice to employer, they filed grievance petitions in the learned Labour Court, Islamabad. After hearing the parties vide judgment dated 26-6-2010, the impugned termination order was set aside and appellant/ respondent was directed to reinstate them with all back benefits while the appear preferred against the judgment of learned Labour Court was dismissed by the Hon'ble Islamabad High Court, Islamabad acting as the learned Labour Appellate Tribunal vide judgment dated 15-6- 2011 against which Writ Petition No,2186 of 2011 was also dismissed by the Hon'ble Islamabad High Court, Islamabad, impugned in appeal before the Hon'ble apex Court. (iii) In the context of Civil Petitions Nos.1754 and 1755 of 2012 mentioned in the order of the Hon'ble Apex Court, the brief facts are that the private-respondents were removed from service by the petitioners and they filed two grievance petitions before the learned Labour Court, Islamabad. Eventually, vide separate judgments dated 24-3-2011 both the respondents were directed to be reinstated in service as permanent employees with full back benefits. Both these judgments of the learned Labour Court were challenged through separate appeals before the Hon'ble Islamabad High Court, Islamabad acting as the Labour Appellate Tribunal and on promulgation of IRO, 2011 these appeals were returned for presentation before the appropriate forum. Thereafter appeals were filed before the Full Bench of the NIRC and in the meanwhile (the private-respondents before the Hon'ble Supreme Court of Pakistan) filed contempt petition before the learned Labour Court about non-implementation of the judgment of the learned Labour Court dated 24-3-2011.Against the contempt proceeding Writ Petitions Nos.2517 and 2518 were filed before Hon'ble Islamabad High Court but were dismissed vide judgment dated 13-11-2012 passed by the Hon'ble Islamabad High Court, Islamabad and were assailed in Civil Petitions before the Hon'ble Supreme Court of Pakistan. 9. Para-7 of the order of the Hon'ble Supreme Court for convenience and reference is reproduced hereinbelow in extenso:--- "In the case of Air League of PIAC Employees (supra) this Court has held that the Industrial Relations Act, 2012 stood repealed on the expiry of period mentioned in section 87(3) of the Act and the consequence of such repeal will render the judgment of the Court coram non-judice. The Act stood repealed on 30-4-2010 and after that there was no legislation in the field of labour dispensation until 18-7-2011, when the Industrial Relations Ordinance, 2011 was promulgated. The
---
## Page 5
judgments of the Labour Court dated 26-6-2010, 11-1-2011 and 24-3-2011 were passed during the period when the Act of 2008 stood repealed and there was no legislation in the field. In the light of the law laid down in the case of Air League of PIAC Employees by this Court, the judgments of the Labour Court will be coram non-judice. The result of it would be that the order of the Labour Court dated 27-5-2011, on the application for Contempt filed by the respondents in Civil Appeal No,1150 of 2012 will also be without jurisdiction and that the judgment of the Labour Court being coram non- judice was not capable of being implemented. Thus Writ Petition No,1961 of 2011 filed by the appellant in C.A. No,1150 of 2012 is set aside. The judgment of the Labour Court dated 26-6-2010 in C.A. No,127 of 2013 was maintained upto the High Court, where Writ Petition No,2186 of 2011 of the appellant was dismissed. In the face of the findings that the said judgment of the Labour Court was coram non judice. The said Writ Petition No,2186 of 2011 is allowed and the impugned judgment dated 28-9-2012 is set aside. The two judgments dated 24-3-2011 of the Labour Court in Civil Petitions Nos.1754 and 1755 being coram non-judice, the filing of Contempt proceedings for its implementation is also without jurisdiction as the judgments of the Labour Court are not capable of being implemented, thus Writ Petitions Nos.2517 and 2518 of 2012 stands allowed. "The result of it would be that the grievance petitions, which the private respondents have filed now stand revived and will be decided in accordance with law by the forum, which is available now for their determination. The Industrial Relations Commission has been established by the Industrial Relations Act, 2012 for redressal of the individual grievance of the workmen. Consequently, all these grievance petitions are remanded accordingly for deciding the same in accordance with law." 10. The learned counsel for the appellants in both these appeals have been heard. Chaudhry Sagheer Ahmed, the learned counsel for the Utility Stores Corporation (USC) contended that prior to the 18th Constitutional Amendment the power relating to cases of 'unfair labour practice' was only invested in the Commission while a case pertaining to 'individual grievance' was to be instituted before the Labour Court having jurisdiction in the matter however; later, on the promulgation of Industrial Relations Act, 2012 (X of 2012) exclusive jurisdiction has been conferred upon the Commission in respect of cases of 'individual grievances', 'unfair labour practice' and other allied matters in relation to any establishment or industry in the Islamabad Capital Territory (ICT) and an establishment trans-provincial in nature carrying on business in more than one province which employ workmen directly or through a contractor for the purpose of carrying on any business or industry including all of its departments and branches i,e, any office, firm, factory, society, undertaking, company, shop or enterprise inclusive of a case of 'unfair labour practice' on the part of the employers or workmen hence; on the analogy of the judgment of the Hon'ble Supreme Court of Pakistan, the instant appeal in the light of the order of the Hon'ble Islamabad High Court, Islamabad dated 12-7-2013 passed in Writ Petitions Nos.655 of 2013, 1046 of 2012, 1015 of 2013, 2 of 2013 and 132 of 2013, has competently been filed under section 17 of the Payment of Wages Act, 1936 before the Commission. 11. Khawaja Muhammad Arif, the learned counsel for the appellant who invoked the jurisdiction of the Authority by submitting application for the recovery of delayed wages contended in continuation of the contention raised by the learned counsel for the Corporation has placed reliance on the reported judgment of the Single Bench of the Hon'ble Lahore High Court in the case of General Steel Tools Company, Gujranwala v. Presiding Officer Punjab Labour Court No,2, Lahore and 2 others (1976 PLC 528 - Lahore) and argued that since the consequential amendment in section 17 of Payment of Wages Act, 1936 by substituting the word 'Labour Court' for the word 'Commission' has been omitted to be made by the legislature therefore, this Commission is competent to give effect to the true and patent intent of law-maker by supplying omission therefore, the appellate jurisdiction of the Commission against the order of the Authority has been competently invoked.
---
## Page 6
12. The contentions put forth by the learned counsel in these appeals have been considered in the light of the provisions of section 17 of the Payment of Wages Act, 1936, relevant provisions of IRA, 2012 and the case-law cited by Khawaja Muhammad Aril*, the learned Counsel for the appellant (Mr. Muhammad Arbab. Bhatti). The admitted feature of the matter is that the Hon'ble Islamabad High Court, Islamabad in its order dated 12-7-2013 in view of the fact that the learned Counsel for the parties since conceded to the proposition of law settled by the Hon'ble Supreme Court of Pakistan while deciding Civil Appeal No,1150 of 2012, Civil Appeal No,127 of 2013 and Civil Petitions Nos.1754 and 1755 of 2012; the Hon'ble High Court directed the writ petitioners to seek relief from the concerned quarters therefore, it is obligatory for the appellants to show that they have competently invoked appellate jurisdiction of this Commission in view of the proposition of law settled by the Hon'ble Supreme Court of Pakistan in the above noted Civil Appeals and Civil Petitions. It has first to be ascertained as to what proposition of law has been settled by the Hon'ble Supreme Court of Pakistan in its judgment and secondly; as to whether in view of the settled proposition of law, both these appeals filed under section 17 of the Payment of Wages, Act, 1936 against the order of the Authority can be maintained before the Commission and competently filed. The relevant facts of the case forming part of the order of the Hon'ble Supreme Court of Pakistan have been given in para No,8 supra of this order. In these cases individual grievance petitions were filed at different times before the learned Labour Court which were allowed and in one of the case contempt petition was filed before the learned Labour Court for non-implementation of its judgment. The judgments passed in the individual cases by the learned Labour Court were assailed in appeals before the Hon'ble Islamabad High Court, Islamabad acting as learned Appellate Tribunal and also two writ petitions were filed against the proceeding drawn on contempt petition, dismissed by the Hon'ble High Court eventually gave rise to Civil Appeals and Civil Petitions, decided by the Hon'ble Supreme Court of Pakistan vide above mentioned order. In the judgment dated 2-6-2011 pronounced in the Constitutional Petition No,24 of 2011 in the case of Air League of PIAC Employees it has been held that on the expiry of the period mentioned in section 87(d); the IRA, 2008 stood repealed which consequently rendered the judgment of the learned Labour Court as corum non-judice as the proceedings were taken and orders were passed by learned Labour Court when IRA, 2008 was not in the field and in the light of law laid down in the case of Air League of PIAC Employees by the Hon'ble apex Court, the judgment of the learned Labour Court has been held to be corum non-judice with the result that the order of the learned Labour Court dated 27-5-2011 in the contempt petition filed by the respondent in the Civil Appeal No,1150 of 2012 has also been held to be without jurisdiction being not capable to be implemented. The Writ Petition No,2186 of 2011 has been allowed and judgment impugned therein dated 28-9- 2012 has been accordingly set aside. The two judgments dated 24-3-2011 of the learned Labour Court being the subject matter of Civil Petitions Nos.1754 and 1755 of 2012 have been converted into appeals and allowed by the Hon'ble apex Court and the grievance petitions which were filed by the private-respondents have been held to have revived, to be decided in accordance with law by the forum which is available now for their determination and all the grievance petitions have been remanded to the Commission for deciding the same in accordance with law, established by the IRA, 2012 for redressal of the individual grievance. 13. In the instant matter, appellant Mr. Muhammad Arbab Bhatti admittedly has not invoked the jurisdiction of the learned Labour Court for the recovery of the delayed wages rather; he filed application for the reliefs claimed therein before the Authority i,e, Assistant Commissioner (ICT) appointed as Authority under the Payment of Wages Act, 1936. The Authority after proceeding with the matter, finally vide order dated 22-11-2012 partly allowed the application of the individual filed against the appellant-corporation. Both the parties have challenged the order of the Authority
---
## Page 7
through the instant appeals under section 17 of the Payment of Wages Act, 1936 in the back drop of the facts mentioned in paras Nos.4, 5 and 6 supra of this order. ' Section 17 of the Act (Payment of Wages Act, 1936) is reproduced hereinbelow for convenience:--- 'Appeal.--- (1) An appeal against the direction made under subsection (3) or subsection (4) of section 15 may be preferred with thirty days of the date on which the direction was made before the Labour Court constituted under the Industrial Relations Ordinance, 1969, (XXIII of 1969) within whose jurisdiction the cause of action to which the appeal relates arose. (a) by the employer or other person responsible for the payment of wages under Section 3, if the total sum directed to be paid by wages and compensation exceeds three hundred rupees: ' Provided that no appeal under this clause shall lie unless the memorandum of appeal is accompanied by a certificate of the authority to the effect that the appellant has deposited with the authority the amount payable under the…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.