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Petitioner: PEARL CONTINENTAL HOTEL, KARACHI VS Respondent: MUHAMMAD YASIN
Court Name: Sindh High Court Judge(s): Rehmat Hussain Jaffery Title: PEARL CONTINENTAL HOTEL, KARACHI vs MUHAMMAD YASIN Case No.: Labour Revision Application No,27 of 2005 Date of Judgment:2005-09-30 Reported As: 2006 PLC 269 Result: Order accordingly
JUDGMENT
JUDGMENT ' REHMAT HUSSAIN JAFFERI, J---This judgment will dispose of the above revisions applications as common questions of facts and law are involved. 2. The present revisions applications have been filed with a request to examine the correctness, legality and propriety of order dated 29-4-2005 passed by the Labour Court No,V Karachi by which the learned Presiding Officer held that the grievances petitions filed by the respondents were within time as they were in continuation of earlier grievances petitions filed by them. 3. Brief facts of the case are that the respondents who are 97 in numbers were serving as security guards with the applicants. On 11-3-2002, the applicants terminated their services on the ground of overall reorganization to improve the effectiveness of the security operations. Consequently, each respondent was served with a separate termination letter. All the respondents individually sent their grievances notices to the applicants, which were received by them. The applicants replied the said notices therefore the respondents in bunches filed joint grievances petitions under section 25- A of the repealed Industrial Relations Ordinance, [IRO] 1969 before the Labour Court No,V Karachi, after service of notices upon the applicants they appeared before the Labour Court and filed legal objections, one of them was about maintainability of the grievance petitions on the ground that joint applications of several workers could not be filed. The legal objections were considered by the Labour Court and decided them against the applicants except the maintainability of the grievance petitions under which it was held that the joint grievances petitions were not maintainable. Therefore, all the grievances petitions were dismissed by order dated 6-5-2003. However the respondents were allowed to file separate applications if they wanted to do so and the question of limitation was ordered to be considered after the filing the applications. The order of the Labour
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Court was not challenged before the appellate forum. The respondents filed separate applications before the Labour Court. The applicants filed objections again challenging the maintainability of the applications on the ground that they were time-barred. After hearing the parties counsel, the Labour Court decided the said point against the applicants under the impugned order by observing that the separate applications were filed in continuation of earlier applications which were filed within time. 4. I have heard the parties Advocates, perused the record of this case, relevant provisions of law and case-law cited at the bar. The learned Advocate for the applicants has argued that earlier joint applications, though they were in time were not maintainable under section 25-A, I.R.O., 1969 because it speaks of individual grievances; that there was no joint cause of action between the respondents; that the order dated 6-5-2003 passed by the Labour Court dismissing the applications of the respondents attained finality as the same was not challenged before any forum; that the separate applications filed by the respondents were not in continuation of earlier applications; that the said applications were filed beyond the period of limitation therefore the said applications are time-barred; that there was no industrial dispute between the parties as the dispute if any could have been raised by the collective bargaining agent [CBA] as provided under section 43 of I.R.O., 1969 therefore the applications themselves are not maintainable. He has relied upon several authorities of superior Courts in support of his contentions. 5. Conversely the learned Advocate for the respondents has argued that the earlier joint applications were maintainable as it is permissible under section 25-A (10), I.R.O. 1969 therefore they were illegally dismissed; that in order to avoid any delay in the proceedings the respondents filed separate applications as per order of the Labour Court therefore the subsequent applications were filed in continuation of earlier applications as such the applications are within time; that the respondents were pursuing the matter diligently in the forum therefore even if the applications are held to be time-barred then the same may be condoned; that a beneficial statute is to be interpreted in favour of the workers; that the dispute between the parties is industrial dispute; and that the matter was not referred to CBA therefore the CBA cannot file the applications. In support of his contentions, he has relied upon several authorities of the superior Courts. 6. From the arguments of the learned Advocates it is apparent that the original order of the Labour Court dated 6-5-2003 by which the joint applications were dismissed has also been attacked therefore the correctness, legality and propriety of the said order is required to be examined. The parties Advocates also agreed that the Courts should also examine the said order, to do complete justice in the matter because the second order is depending upon the first order dated 6-5-2003. They have elaborately argued that said point while making their submissions. Under the circumstances, this Court will examine both the orders of Labour Court. 7. It is pertinent to point out that this Court has been given suo motu powers under revisional jurisdiction. In exercise of such powers no time limit has been fixed therefore, it can be exercised at any time and the limitation will not come in the way of the Court to examine the proceedings or orders passed by the Labour Court provided it fosters the cause of action and the dictates of justice so demands. Secondly, the order should not be passed to the detrimental of any party without issuing notice or hearing the said party. Reference is invited to Govt. Of N.-W.F.P. v. Abdul Malik, 1994 SCM R 833. 8. Both the Advocates have agreed that the I.R.O., 1969 was a beneficial statute therefore; it is to be interpreted liberally in favour of its subjects. The Honourable Supreme Court of Pakistan in the case of Pakistan Engineering Co. Ltd. v. Faisal Baig, 1992 SCM R 2166 has examined the said question with reference to above law and at page 2168 it has been observed as under:-- "The basic and first principle to be kept in view in construing a beneficial legislation is to interpret its provision to advance its purpose rather than thwart or subvert it by spacious sophistry. The idea
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behind the legislation was to safeguard the rights and interest of workmen." 9. Keeping in view the above principle of law, I have examined the various provisions of I.R.O. 1969. The learned Advocate for the applicants has emphasized that there was no individual dispute, which can be agitated individually, and that an industrial dispute cannot by raised by individual worker except by the CBA as provided under section 43, as such, the dispute raised by individual worker cannot be termed as the industrial dispute. Thus, it is to be seen as to what industrial disputes is, who can raise such dispute, whether individually or jointly, which will ultimately affect the jurisdiction to the Labour Court. In order to arrive at the proper conclusion let us start with the jurisdiction of the Labour Court. The said jurisdiction has been provided under section 35(5) of I.R.O., 1969 which reads as under:-- "(5) A Labour Court shall--- (a) adjudicate and determine an industrial dispute which has been referred to or brought before it under this Ordinance; (b) inquire into and adjudicate any matter relating to the implementation or violation of the settlement, which is referred to it by the Provincial Government; (c) try offences under this Ordinance and such other offences under any other law as the Provincial Government may, by notification in the official Gazette, spcify in this behalf; and (d) exercise and perform such other powers and functions as are or may be conferred upon or assigned to it by or under this Ordinance or any other law." 10. From the bare reading of the above provisions of law, it clear that apart from criminal and other jurisdiction the abour Court is required to adjudicate and determine an industrial dispute, which has been referred to or brought before it under the Ordinance. 11. Industrial dispute has been defined under section 2 [xiii], I.R.O., 1969 that reads as under:-- "(xiii) "industrial dispute" means any dispute or difference between employers and employers or between employers and workmen or between workmen and workmen which is connected with the employment or non-employment or the terms of employment or the conditions of work of any person, and is not in respect of the enforcement of any right guaranteed or secured to him by under any law, other than this Ordinance, or any award or settlement for the time being in force;" 12. From the above provision of law, it is clear that an industrial dispute can arise. (i) between employers and employers, (ii) between employers and workmen and (iii) between workmen and workmen. Secondly, the dispute or difference shall be connected with the employment or non- employment or the terms of employment or the conditions of work of any person. However, such dispute or difference shall not be in respect of enforcement of any right guaranteed or secured to worker by or under any law, other than the Ordinance, or any award or settlement for the time being in force. 13. It will be noticed that all the terms and conditions of the employment of the workman including the disciplinary matters comprising removal, dismissal, termination from employment of such workman are included in the definition of industrial dispute. The Hon. Supreme Court of Pakistan in 1991 SCM R 2027 and 1990 SCM R 790 while discussing the jurisdiction of High Court in respect of terms and conditions of service of persons who are in the service of Pakistan observed that if controversy in petition relates to terms and conditions of persons who are or have been in service of Pakistan, or if it relates to disciplinary matters of such persons. Petition would be barred by Article 212 of the Constitution. The words "employment" and "service" have been defined in the American Heritage Talking Dictionary in the following manner:-- "Employment. In relation to an activity pursued to gain one's livelihood; occupation, business, calling, employment, job, line, walk of life profession, pursuit, racket, work, career." "Service. In relation to state being employed: employment, engagement, work, job, business, service, profession, tenure."
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14. From the above definitions of "employment" and "service" it is clear that both the words have similar meaning as such the rule laid down by the Honourable Supreme Court of Pakistan in the above mentioned authorities can be applicable in respect of giving definition to the terms and conditions of employment of any workman. 15. A perusal of I.R.O., 1969 reveals that in other provisions the definition of "industrial dispute" has been extended such as section 25-A and 43 of I.R.O. 1969. Section 43 reads as under:- "(43) The raising of industrial disputes.---No industrial dispute shall be deemed to exist unless it has been raised in the prescribed manner by a collective bargaining agent or an employer." 16. It will be noticed that in the definition of "industrial dispute" under section 2(xiii) the collective bargaining agent does not find place in it. As such, the said definition does not apply to the dispute or difference between collective bargaining agent and the employer. However, because of deeming provision of section 43 the dispute between collective bargaining agent and employer has been included within the definition of "industrial dispute" provided the dispute has been raised in the prescribed manner, i,e, by negotiation (S.26), conciliation (S.30), arbitration (S.31) and adjudication by Labour Court (S.35) etc. 17. Section 25-A I.R.O., 1969 reads as under:-- (25-A) Redress of individual grievances:--(1) A worker may bring his grievance in respect of any right guaranteed or secured to him by or under any law or any award or settlement for the one year or with fine which may extend to one thousands rupees or with both. (9) No person shall be prosecuted under subsection [8] except on the complaint in writing:-- (a) by the workman if the order or decision in his favour is not implemented within the period specified therein; or (b) by the Labour Court or Tribunal, if an order or decision therefore is not complied with. (10) For the purposes of this section, workers having common grievance arising out of a common cause of action may make a joint application to the Labour Court. [Underlying is mine to give emphasis]. 18. A perusal of above provisions of law would reveal that the said provisions are substantive and procedural in nature in respect of redress of grievance of worker concerning any of his right guaranteed or secured to him by or under any law or any award or settlement for the time being in force. It will be noticed that industrial dispute as defined under section 2(xiii) does not include enforcement of any right guaranteed or secured to worker by or under any law, other than I.R.O., 1969. Nevertheless, under this section a worker can bring his grievance in respect of any right guaranteed or secured to him by or under any law or award or settlement for the time being in force. Subsection (1) further deals with giving notice to the employer, which shall be in writing. The said notice should be given, firstly by the worker himself, secondly through his shop steward or collective bargaining agent. The said notice shall be given to the employer within three months from the day when cause of such grievance arises. Subsection (2) fixes the time of 15 days for the reply by the employer if the worker himself serves the notice. Subsection (3) fixes the time of 7 days for reply by the employer if the notice is served through shop Steward or collective bargaining agent. Subsection (4) deals with the procedure where the employer fails to communicate his decision as specified above or the worker is dissatisfied with the decision then in case the worker himself or in case the shops steward or collective bargaining agent served the notice, they can take the matter to the Labour Court as the case may be. Once the said matter is taken to the Labour Court then the Labour Court is required to give a decision within seven days as if such matter was an industrial dispute. It is pertinent to point out that if the above mentioned grievance was not treated as industrial dispute then the Labour Court would to having no jurisdiction to decide the same as under section 35(5)(a) the Labour Court can decide only industrial dispute
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which has been defined under section 2(siii) of I.R.O., 1969. Thus, the grievance mentioned in the above section has been included in the definition of industrial dispute, which was not included in it; as such, the definition of "industrial dispute" has been extended to the above extent. Subsection (4) has been made conditional by which the matter is to be taken to the Labour Court within the period of two months from the date of the communication of the employer or from the date of expiry of the period mentioned in subsections (2) and (3) as the case may be under subsection (5) the Labour Court has been given power to examine all the facts of the case and for that purpose wide powers have been given to pass any order as may be just and proper in the circumstances of the case. Subsections (6) and (7) have been omitted. Subsection (8) deals with the disobedience of the decisions given either by Labour Court or Labour Appellate Tribunal in an appeal under subsections (4) and (5). The defaulters are required to be punished with imprisonment for a term, which may extend to one year or with fine, which may extend to one thousand rupees or with both. Subsection (9) deals with filing of complaint in respect of offence punishable under section (8) through specified persons. Under this section, a workman can file the complaint to implement the said decision or the Labour Court or the Labour Appellate Tribunal can file the complaint. The Labour Court has no jurisdiction to punish the offender without the complaint of worker or the Labour Court or Labour Appellate Tribunal. Under subsection (10) it has been authorized that a joint application can be made to the Labour Court under section 25-A if several workers have common grievance arising out of a common cause of action. 19. It will be noticed that under Standing Order 12(3) attached to the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (hereinafter referred to as Standing Orders) if the services of workman as defined under the said Ordinance are terminated or he is removed, retrenched or discharged or dismissed from the service then he can also take the matter to the Labour Court under section 25-A of I.R.O., 1969 for redress of his grievance. The said Standing Orders reads as under:-- "12(3). The services of the workmen shall not be terminated, nor shall workmen 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 the services or removal, retrenchment, discharged or dismissal, he may take action in accordance with the provisions of section 25-A of the Industrial Relations Ordinance, 1969 (XXIII of 1969), and thereupon the provisions of the said section shall apply as they apply to the redress of an individual grievance." 20. Thus two types of workman can take the grievarice to the Labour Court falling within the definition of 12(3) of Standing Orders and under Section 25-A of I.R.O. 1969. Under Section 2 (xiii of) I.R.O., 1969 industrial dispute between the workman and the employer or other persons mentioned therein can be taken to the Labour Court. The definition of "workmen" and "employers" as given in Section 2 (viii) and (xxviii) are quite different from the definitions of "employer" and "workman" as defined under the Standing Orders. The said definitions are as under:-- Definitions under I.R.O., 1969 (viii) "employer", in relation to an establishment, means any person or body of persons, whether incorporated or not, who or which employs workmen in the establishment under a contract of employment and includes--- (a) and heir, successor or assigned, as the case may be, of such person or body of as aforesaid; (b) any person responsible for the management, supervision and control of the establishment; (c) in relation to an establishment run by or under the authority of any department of the Federal Government or prawn shall govern the authority appointed in this behalf or, where no authority is so appointed, the head of the Department;
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(d) in relation to an establishment run by or on behalf of a local authority, the officer appointed in this of, or, where no officer is so appointed, the Chief Executive Officer of that authority; ' Special provision: for the purposes of distinction from the category of "worker" or "workmen" officers and employees of a Department of the Federal to abundant or prawn shall govern or local authority who belong to the superior, Manager, second real, Director, supervisory or agencies of and who have been notified for this purpose in the official Gazette shall be deemed to fall within the category of "employer"; (e) in relation to any other establishment, the proprietor of such establishment and every Director, Manager, secondly, agent or other officer of person concerned with the management of the affairs thereof; 2(xviii) "worker" and "workman" means any person not falling within the definition of employer who is employed (including employment as a supervisor or as an apprentice) in an establishment of industry for hire or reward either directly or through a contractor with the terms of employment be expressed 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, this chart, it went, let off or otherwise removed from employment in connection with or as a consequence of that dispute or whose dismissal, discharge, retrenchment, thereof or immoral had led to that dispute but does not include any person--- (a) who is employed mainly in managerial or administered capacity; or (b) who, being employed in a supervisory capacity, draws wages exceeding eight hundred rupees per mensem or performs, either because of the nature of duties attached to the office or by reason of the powers vested in him, functions mainly the of the managerial nature." 21. Definitions of "employer" and "workman" as defined under the Standing Orders are as under:-- 2 (c) "employer" means the owner of an industrial or commercial establishment to which this Ordinance for the time being applies and includes--- (i) in the factory any person named under clause [E] of subsection (1) of Section 9 of the Factories Act, 1937 (XXV of 1934), as manager of the factory; (ii) in any industrial establishment under the control of any department of the Federal or any Provincial Government, the authority appointed by such Government in this behalf, or where no such authority is so appointed, the head of the Department; ' In any other industrial of commercial establishment, any person responsible to the owner of the supervision and control of such establishment; (i) "workman" means any person employed in any industrial or commercial establishment to do any skilled or unskilled, manual or clerical work for hire or reward." 22. Such difference has been elaborately explained by the Hon. Supreme Court of Pakistan in the case of Abdul Razzaq v. Ihsan Sons Ltd. 1992 PLC 424. Therefore, no further discussion is required to explain the different definitions of "employer" and "workman" in both the Ordinances. 23. As there are different definitions given to the "employer" and workman" in both the Ordinances therefore if a worker within the meaning of "worker" as defined in the Standing Orders, has grievance within the meaning of Standing Order 12[3] against the "employer" as defined under the said Standing Orders then he can take such grievance to the Labour Court as provided under section 25-A of I.R.O., 1969 as an industrial dispute. The grievance as provided under section 25-A can also be raised by "worker" against the employer as defined under the I.R.O., 1969 as an extended meaning of industrial dispute. For that, he has to follow the procedure as laid down thereunder. He can also take grievance falling within the definition of "industrial dispute" as defined under section 2 (xiii) I.R.O. 1969 against the employer. 24. In the present case the applicants are coming within the definition of commercial establishment being hotel as defined under section 2[b] of the Standing Orders. It reads as under:-
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"2(b) "commercial establishment" means an establishment in which the business of advertising, commission or 14(sic) is conducted, or which is a commercial agency, and includes the political department of a factory or of any industrial or commercial undertaking, the office establishment of a person who for the purpose of fulfilling a contract with the owner of any commercial establishment or industrial establishment, employs workmen, a unit of a joint stock company, a broker's office or the stock exchange, a pillar, a hotel, a restaurant or and eating house, a cinema or cheddar, and such other establishment or close thereof, as Government may, by notification in the official Gazette declare to be a commercial establishment for the purposes of this Ordinance;" 25. The respondents were security guards employed by the applicants as such they are coming within the definition of "workman" as mentioned under the Standing Orders. The services of respondents have been terminated through written order by showing the ground of their termination as overall re-organization to improve the effectiveness of the security operations. Thus, the case of the respondents falls within the Standing Order 12(3) therefore the same can be decided by the Labour Court as "industrial dispute" within the meaning of section 25-A of I.R.O., 1969. 26. Now I will take up the question of joint applications filed by several respondents. The learned Advocate for the applicants has emphasized that heading of section 25-A, I.R.O. 1969, is in respect of redress of individual grievance; that the wordings of the section are in singular form therefore the grievance…
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