Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: HABIB BANK LTD. Through President and 2 others VS Respondent: AUTHORITY UNDER JUDGMENT
Court Name: Lahore High Court Judge(s): Shujaat Ali Khan Title:HABIB BANK LTD. Through President and 2 others vs AUTHORITY UNDER
JUDGMENT
Reported As: 2016 PLC 61 Result: Petitions allowed Judgment JUDGMENT SHUJAAT ALI KHAN, J.--- Through this single judgment intend to decide this petition as well as those mentioned in Schedule-A, having commonality of law and facts inasmuch as petitions mentioned in Schedule- B have been filed against orders dated 26.04.2011 passed by the Authority under Payment of Wages Act, 1936 (hereinafter to be referred as the Authority), Lahore whereas petitions mentioned in Schedule-C have been moved against orders dated 20.07.2013, passed by the Authority at Lahore. Schedule-D consists of petitions in which the petitioners (hereinafter to be referred as "Bank Authorities") have challenged orders dated 04.08.2012 passed by the Authority at Gujranwala as well as judgments dated 18.05.2013 rendered by the Punjab Labour Court No.7, Gujranwala. In petitions mentioned in Schedule- E the Bank Authorities have called in question the legality of orders dated 12.09.2014 passed by the Authority at Gujranwala. Petitions mentioned in Schedule-F have been filed against orders, dated 30.11.2012, passed by the Authority at Lahore as well as judgment dated 29.11.2014 rendered by Punjab Labour Court No.1, Lahore. Writ Petition No.22964/2015 has been instituted challenging order dated 13.07.2015 passed by the Authority at Lahore. 2. Briefly put, the facts as slept out in these petitions are that the private respondents filed claims before the Authority under section 15 of the Payment of Wages Act, 1936 (hereinafter to be referred as the Act). The claims of the private respondents of Writ Petitions mentioned in Schedules D and F were, accepted by the Authority against which the Bank Authorities preferred appeals before the respective Labour Courts but without any success as the same were dismissed by the Labour
---
## Page 2
Courts through different orders. Being aggrieved of the order of the Authority as well as of the Labour Courts in the said matters the Bank Authorities have filed the petitions under discussion. ' Writ Petition No.22964/2015 and those encapsulated in Schedules B, C and E have arisen out of orders passed on various dates by the Authority whereby the applications filed by the Bank Authorities for rejection of the claim of the private respondents, under Order VII, rule 11, C.P.C., were dismissed. Being dissatisfied with the orders of the Authority, the Bank Authorities have instituted afore-noted petitions. 3. The legal formulations, canvassed by Hafiz Tariq Nasim Advocate, representing the petitioners in petitions mentioned in Schedules B and C, can be summed up in the words that the Authority had no power to deal with the matter regarding ex-gratis grant; that duties of the Authority at various stations are being performed by persons who do not qualify for the post as postulated under section 15 of the Act; that according to the law laid down in the case of Sindh Employees' Social Security Institution and another v. Dawood Cotton Mills Ltd. (PLD 1977 SC 177), ex-gratia grant does not fall within the definition of wages as defined under section 2(vi) of the Act; that prior to taking cognizance of the matter every forum is bound to decide question of its jurisdiction and in case any forum assumes jurisdiction upon a matter, which otherwise does not fall within its jurisdiction, the same is a nullity in the eye of law. Relies on Muslimabad Cooperative Housing Society Ltd. v. Mrs. Siddiqa Faiz and another (PLD 2008 SC 135), Hafiz Muhammad Siddique Anwar v. Faisalabad Development Authority and others (2007 SCMR 1126), Farzand Raza Naqvi and 5 others v. Muhammad Din through L.Rs and others (2004 SCMR 400) and Punjab Employees' Social Security Institution v. Messrs Pakistan Engineering Co. Ltd. (1998 PLC 93). 4. The legal points, formulated by Mr. Imran Aziz Khan, representing the petitioners in W.P. No.22964/2015 as well as petitions mentioned in Schedules D, E and F are to the effect that ex- gratia grant does not fall within the jurisdiction of the Authority as it is not a vested right rather the same is a monetary benefit paid to an employee by the employer out of grace; that section 2(vi) of the Act deals with employees who are in service whereas the private respondents having been retrenched in the year 2006 were not entitled for any emoluments; that it was specifically pleaded before the forum/fora below that not only the claims filed by the private respondents were beyond the jurisdiction of the Authority but also the same were barred by law of limitation, however, the said points have neither been attended to by the Authority nor adverted to by the Presiding Officers of the respective Labour Courts; that private respondents having accepted emoluments pursuant to a settlement arrived at between the Bank Authorities and retrenched employees had no cheeks to move for a fresh claim; that when a matter on the face of it is barred by time, there is no question of recording of evidence rather the same deserves to be dismissed straightaway in view of the law laid down by the apex Court of the country in the case reported as Noor Din and another v. Additional District Judge, Lahore and others (2014 SCMR 513); that uncalled for conduct of the private respondents is manifest from the fact that some of them have filed similar claims at different places and even in some of them they have succeeded to get relief from the Authority; that the package announced for retrenched employees was confined only to regular employees whereas the private respondents being daily wagers were not entitled for the same; that filing of claim by the private respondents after final settlement amounts to approbation and reprobate; that as a result of settlement between the parties the private respondents executed undertakings with the bereavements that they shall withdraw all the cases pending before different fora but despite having received the emoluments under the said settlement they are still hotly pursing their matters; that some of the private respondents moved for regularization of their services before the Labour Court but their Grievance Petition was dismissed, which order having not been set aside by any forum they cannot claim that they were regular employees of the Bank at the time of retrenchment. Relies on Government of Pakistan through Director General, Ministry of Interior,
---
## Page 3
Islamabad and others (2011 SCMR 1), Muhammad Din and others v. Jamal Din and others (2007 SCMR 1091), Pakistan Railways v. Shaukat Ali Hamdani and others (1996 PLC 595), General Manager, Pakistan Railways and another v. Anwar Ahmed Khan and others (1995 SCMR 810), Trustees of the Port of Karachi v. Muhammad Saleem (1994 SCMR 2213), Independent Newspapers Corporation (Pvt.) Ltd. And another v. Chairman, Fourth Wage Board and Implementation Tribunal for Newspaper Employees, Govt. Of Pakistan, Islamabad and 2 others (1993 SCMR 1533), Pir Bakhsh through L.Rs.- v. The Chairman, Allotment Committee and others (PLD 1987 SC 145), Sindh Employees Social Security Institution and another (Supra), Haji All Khan and Company, Abbottabad and 8 others v. Messrs Allied Bank of Pakistan Ltd. Abbottabad (PLD 1975 SC 362), Gouranga Mohan Sikdar v. The Controller of Import and Export and 2 others (PLD 1966 SC 357), Nagina Silk Mill, Lyallpur v. The Income Tax Officer, A-Ward Lyallpur etc. (PLD 1963 SC 322), Lt. Col. Nawabzada Muhammad Amir Khan v. The Controller of Estate Duty etc. (PLD 1961 SC 119), Telephone Industries of Pakistan (Pvt.) Ltd. Through Managing Director and another v. Commissioner Workmens' Compensation, Hazara Division at Haripur and another (2012 PLC 155), United Bank Ltd. Through Manager v. Banking Mohtasib Pakistan and another (2006 CLD 1226), 'Vial Hussain v. Zeal Pak Cement Factory through Managing Director (2006 PLC 597), Abdul Latif and 103 others v. General Manager, Pakistan Railways and 2 others (2003 PLC 297), Muhammad Aslam and another v. Commissioner, Workmen's Compensation and another (2000 PLC 268), Messrs HALCROW-ULG, Engineering Consultants, PAT Feeder Canal Rehabilitation and Improvement Project, WAPDA and others v. The "Authority" under the Payment of Wages Act, Quetta and others (1999 PLC 362), Municipal Corporation, Sialkot through the Administrator v. Younis Masih and others (1998 PLC 336), Layllpur Textile Mills Ltd. Through its Manager, Tando Muhammad Khan v. The Authority Under Payment of Wages Act, Directorate of Labour Welfare, Hyderabad and another (1996 PLC 610), M/s Chenab Cement Product (Pvt.) Ltd. And others v. Banking Tribunal, Lahore and others (PLD 1996 Lahore 672), M/s Hafiz Textile Mills Ltd. v. Commissioner for Workmen's Compensation and Authority under Payment of Wages Act, West Division, Amil Colony, Karachi and 9 others (PLD 1993 Karachi 709), Ziarat Gul v. Qadar Gul and 7 others (PLD .1989 Peshawar 14), Abdul Hakim Warsi v. Chief Executive, Independent Newspapers Corporation Ltd. And 3 others (1986 PLC 760 Quetta), Pakistan through Chairman, Pakistan Railway Board, Lahore v. Maqsood Ali and 82 others (1981 PLC 307), Shaukat Ali and others v. Islamic Republic of Pakistan through the General Manager, North Western Railway, Lahore (PLD 1960 (W.P.) Lahore 144), Mir Liaq Ali and others v. Syed Muhammad Jafari (PLD 1959 (W.P.) Karachi 704), Chairman Pakistan Railway v. Punjab Labour Appellate Tribunal etc. (2001 PLC 618), Saddar-ud-Din v. Division Superintendent, Pakistan Railways (1989 PLC 508), Ch. Ghulam Muhammad v. WAPDA etc. (1984 PLC 363) and Muhammad Ikram v. Mis S. Muhammad Din and Sons Ltd. Lahore (1970 PLC 15). 5. Mr. Khurram Raza Khan Bhidwal, Advocate representing private respondents in some of the petitions, submits that the Bank Authorities, earlier in the year 2010, filed an application, under Order VII rule 11, C.P.C., for, rejection of claim of the private respondents, however, later on the Bank Authorities consented that the fate of the said application be decided along with the main case thus they were debarred to file the subsequent applications for the self-same relief as the same were not proceed able in view of the principle of res-subjunctive. To fortify his contention, learned counsel has referred to order, dated 03.08.2010, passed by the Authority in the case titled as Muhammad ljaz V. RCE HBL Ltd. Further submits that the private respondents have filed claims pursuant to the judgment passed by apex Court of the country reported as Imtiaz Ali and another v. Habib Bank Ltd. (2011 SCMR 259) thus it is not a case of ex-gratis grant simplicity; that many persons, whose names were not included in the list presented before the august Supreme Court of Pakistan, during the course of hearing of aforesaid Human Rights case, have been granted ex- gratia grant; that a perusal of section 2(vi) of the Act shows that wages include any amount due;
---
## Page 4
that in view of the law laid down in the case reported as Syed Match Co. Ltd. Through Managing Director v. Authority Under Payment of Wages Act and others (2003 SCMR 1493) point of limitation, being mixed question of law and facts, cannot be decided without recording of evidence, hence, no illegality has been committed by the Authority while turning down request of the Bank Authorities for rejection of claims filed by the private respondents; that in some of the petitions the Bank Authorities have directly assailed order of the Authority in Constitutional petitions which are not maintainable for the reason that against an order of the Authority, remedy of appeal has been provided under section 17 of the Act; that as per Syed Match Co. Ltd. Through Managing Director (Supra) when alternate remedy is available Constitutional petition before this Court is barred; that if the petitions filed by the Bank Authorities directly before this Court challenging order of the Authority, are entertained there would be a flood gate as everybody would try to bypass the statutory remedy of appeal provided under section 17 ibid and that the applications submitted by the Bank Authorities under Order VII, rule 11, C.P.C. Were not accompanied by requisite affidavits. Relies on Govt. Of Punjab through Secretary Education, Civil Secretariat, Lahore and others v. Sameena Parveen and others (2009 SCMR 1). 6. Mian Muhammad Zulqarnain, Advocate representing the private respondents in number of petitions, while toeing the line of Mr. Khurram Raza Khan Bhidwal, Advocate submits that labour laws ensures protection of minimum wages of a workman and the same being beneficial legislation should be broadly construed; that not only the remedy of appeal, provided under section 17 ibid has been bypassed by the Bank Authorities but also they have not availed remedy of revision before the Punjab Labour Appellate Tribunal against orders of the Labour Courts; hence these petitions are not maintainable; that as a matter of fact the Bank Authorities just to avoid deposit of rectal amount, as mandated under section 17 ibid, have chosen to invoke the Constitutional jurisdiction of this Court; that while deciding applications filed under Order VII rule 11, C.P.C. The Authority had to look into the contents of the claim filed by the private respondents alone, no illegality has been committed by the Authority while turning down request of the Bank Authorities in that regard and that the judgment of apex Court of the country, referred to by Mr. Khurram Raza Khan Bhidwal, Advocate, being a verdict in rem was applicable to all the retrenched employees irrespective of their status. Relies on Kashif Zafar v. Postmaster General and others (2013 SCMR 726), Mehar Muhammad Nawaz v. Managing Director, Small Business Finance Corporation and 2 others (2009 SCMR 187), Mughal Surgical (Pvt.) Ltd. And others v. Presiding Officer, Punjab Labour Court No.7 and others (2005 PLC 364), Syed Match Co. Ltd. Through Managing Director (Supra), Abdul Samad and others v. Federation of Pakistan and others (2002 SCMR 71), lzhar Ahmed Khan and another v. Punjab Labour Appellate Tribunal, Lahore and others (2000 PLC 199), Muhammad Woe v. Ministry of Education through Secretary Education, Govt. Of Pakistan, Islamabad and others (2013 PLC (C.S.) 545), M/s Duty Free Shops Ltd. v. Irshad Butt and another (2013 PLC 313), M/s Lone China (Pvt.) Ltd. Gujranwila v. Presiding Officer, Punjab Labour Court No. 7, Gujranwala and 2 others (2011 PLC 37), Muhammad Riaz v. Pakistan Railways and others (2011 PLC 214), Muslim Commercial Bank Ltd. Through Attorney v. Ghulam Haider and others (2005 PLC 320), Saadi Cement Ltd. Through Chairman and another v. Fazal-e-Qadir and another (2002 PLC 253), Town Committee, Chowinda V. Arrora Mash and others (2000 PLC 181) and Punjab Employees' Social Security Institution v. M/s Pakistan Engineering Co. Ltd. (1998 PLC 93). 7. Sardar Muhammad Iqbal Athar Khan Khitran, Advocate representing private respondents in some of the petitions, in addition to adopting the arguments advanced by M/s Khurram Raza Khan Bhidwal and Mian Muhammad Zulqarnain, Advocates, argues that it was publicly announced that every retrenched employee would receive more than Rs. 10,00,000/- but afterwards the Bank Authorities did not fulfill their commitment; that on expiry of nine months a workman becomes permanent on account of operation of law and there is no question of issuance of formal order by
---
## Page 5
the competent authority; that if the respondents were daily wagers there was no necessity for the Bank Authorities to issue retrenchment letters at their respective places of posting; that though it has been mandated under section 15 ibid that a person should be appointed as Authority having qualification/experience of judicial officer but different officers from the Labour Department have been appointed as Authority under the Act since its promulgation in the year 1936, thus, no exception can be taken against appointment of different officers from Labour department as Authority; that undertaking relied upon by the Bank Authorities being silent about the number of the case and the forum, same cannot be used against the respondents; that vested rights of the citizens cannot be allowed to be taken away by way of illegal contracts; that no illegality has been pointed out by the learned counsel representing the Bank Authorities on the part of fora below, thus, no exception can be taken to the impugned verdicts and that the order of the Authority having been upheld by the Labour Courts, the question regarding jurisdiction of the Authority has beceme immaterial. 8. In rebuttal, Hafiz Tariq Nasim, Advocate argues that stance of the respondents that they have not claimed anything on the basis of ingratiate grant stands negated from the contents of the Grievance Notice, available at Page No.7 of this petition; that the said fact has also been incorporated by the Bank Authorities in their applications filed under Order VII, rule 11, C.P.C.; that as case of specific class of retrenched employees was taken up by the august Supreme Court of Pakistan, the said judgment being in persona cannot be stretched unnecessarily for the benefit the private respondents and that the plea of Sardar Muhammad Iqbal Athar khan Khitran, Advocate regarding appointment of different officers from Labour Department as Authority since 1936 cannot be blessed with stamp of authenticity for the reason that when law requires a particular act to be done through a specific way the same should not be deviated. 9. While exercising his right of rebuttal, Mr. Imran Aziz Khan Advocate submits that since there were two categories of employees viz. Regular and daily wagers, there was no question of discrimination as alleged by learned counsel for the respondents; that the question of jurisdiction should be decided by the forum concerned irrespective of the fact whether the same is agitated before it or not; that the issue of limitation having not been discussed either by the Authority or the Punjab Labour Court, their verdicts cannot be allowed to hold the field even for a moment; that after execution of undertaking the respondents could not claim anything as the same amounts to blow hot and cold in the same breath; that the Bank being trans-provincial establishment is not covered under Industrial Relations Ordinance, 1969, rather any matter arising out of terms and conditions of its employees is to be decided under the provisions of Industrial Relations Act, 2012 (IRA, 2012), thus, the plea of the respondents that the remedy of revision has not been availed by the Bank Authorities prior to approaching this Court has no substance at all; that misuse of powers by the Authority is manifest from the fact that the respondents in W.P. No.22964/2015 succeeded to file claim before the Authority despite the fact that Writ Petition of the Bank Authorities against the same amount was admitted by this Court; that unscrupulous litigants should not be left unbridled to burden the public institutions with unnecessary litigation and that the Authority working in North Zone Lahore has already declared that it has no jurisdiction to hear a claim relating to ex-gratia grant. 10. I have heard learned counsel for the parties at considerable length and have also gone through the documents annexed with these petitions in addition to the case-law cited at the bar. 11. Firstly taking up the plea of learned counsel representing private respondents that the respondents are entitled for emoluments including ex-gratia grant on the strength of judgment of the apex Court of the country reported as Imtiaz All and another (Supra) I am of the view that to appreciate the said contention a perusal of the referred judgment is of paramount consideration; hence relevant portion thereof is reproduced herein below:-
---
## Page 6
"This Human Right Case initiated on the application of Imtiaz Ali and Sabit Khan, former employees of the Habib Bank Limited, (hereinafter referred to as "Bank") pertains to the retrenchment of 2343 employees of the Bank, made pursuant to a Retrenchment Scheme for "all Manual/Non-Clerical Employees" of the Bank, dated 13-2-2006 The Bank eventually agreed to pay an additional sum of Rs.820,050 million as ex-gratia payment to the 2343 employees retrenched under the Bank's Order dated 10-3-2006 at the rate of Rs. 350,000 per retrenched employee." (emphasis provided) A cursory glance over the afore-quoted portion of the judgment of august Supreme Court of Pakistan renders it crystal clear that the same was confined only to 2343 retrenched employees of the Bank serving against manual/non-clerical posts, thus, the same cannot unnecessarily be stretched to the private respondents. Further, as no question of law was decided by the apex Court of the country in the afore-referred judgment, the same cannot be used for the benefit of the respondents on the ground that a verdict of the apex court of the country deciding a question of law applies to all and sundry irrespective of the fact that a person was party to it or not. 12. There are three categories of petitions viz, in one set of petitions (Schedule-C) the Bank Authorities have challenged the orders of the Authority whereby it refused to decide the application of the Bank Authorities challenging its jurisdiction to entertain claims of the private respondents. In second set of petitions (Schedules B, E and W.P. No.22964/2015) the Bank Authorities have assailed the orders of the Authority whereby either the applications filed by the Bank Authorities for rejection of claims of the private respondents have been dismissed with the observation that the question of jurisdiction would be decided according to the issues framed or while dismissing the applications filed by the Bank Authorities, under Order VII, rule 11, C.P.C., for rejection of claim of the private respondents ordered for deposit of the rectal amount. The third category of petitions (Schedules D and F) has arisen out of the judgment of the Labour Courts whereby the orders of the Authority towards acceptance of the claims of the private respondents were upheld. 13. Firstly, taking up the petitions figured in Schedule-C, I have noted that though an application was moved by the Bank Authorities for rejection of the claim of the private respondents but instead of deciding the same the Authority kept it pending with the observation that the same was moved at belated stage. I am constrained to hold that it has been decided by the apex Court of the country in number of cases that prior to decision of the main us the miscellaneous applications should be decided first. Reference in this regard can safely be made to the cases reported as Muhammad Umer v. Muhammad Qasim and another (1991 SCMR 1232) and Amina Begum and others v. Mehar Ghulam Dastard (PLD 1978 SC 220). According to Article 189 of the Constitution of Islamic Republic of Pakistan, 1973, a decision of the apex Court of the country deciding a question of law is binding on all organs of State and the Authority is no exception. Since the orders passed by the Authority offend against the clear cut law declared by the august Supreme Court of Pakistan they deserve to be sacked irrespective of any objection regarding maintainability of these petitions by the private respondents. 14. Now coming to second category of petitions (Schedules B, E and W.P. No.22964/2015), I am of the view that the same can be sub categorized in two categories viz. In Writ Petitions mentioned in Schedule-B, Bank Authorities have challenged orders of the Authority dismissing their applications filed under Order VII, rule 11, C.P.C. On the ground that since issue regarding jurisdiction of the Authority was already there those were not maintainable. In second category of cases (Writ Petition No.22964/2015 and those mentioned in Schedule-E) the Bank Authorities have called in question the vires of orders of the Authority whereby while dismissing the applications filed by the Bank Authorities under Order VII, rule 11, C.P.C. They have been directed to deposit the decretal amount. The crucial objection raised by the private respondents against these petitions is that
---
## Page 7
these are not maintainable as the Bank Authorities have alternate remedy of appeal under section 17 ibid against the orders impugned in these petitions. In this regard, I am of the view that in ordinary course when an alternate remedy is available to a person he cannot approach this Court through a petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, however, at the same time this Court is fully competent to take care of any order passed by a forum below especially in respect of its jurisdiction as held in the case of M/s Akhtar Textile Industries Ltd. v. Sindh Labour Appellate Tribunal and 4 others (2014 PLC 319)…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.