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Official Citation: 2024 IHC 174207
Court / Jurisdiction: Islamabad High Court
Parties: Malik Muhammad Akhlaq, OGDCL Islamabad vs Full Bench NIRC etc
Ruling Summary: This decision was rendered by the Islamabad High Court, officially reported as 2024 IHC 174207. In this matter between Malik Muhammad Akhlaq, OGDCL Islamabad and Full Bench NIRC etc, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
COURT: Islamabad High Court (Honourable Mr. Justice Miangul Hassan Aurangzeb) AUTHOR JUDGE: Honourable Mr. Justice Miangul Hassan Aurangzeb DECISION DATE: 31-MAY-2024 CASE NO: Writ Petition-1244-2018 CITATION: 2024 IHC 174207 PARTIES: Malik Muhammad Akhlaq, OGDCL Islamabad VS Full Bench NIRC etc LAW / SECTION: - SUBJECT: N.I.R.C., REMARKS: NIRC Matter, Challenging the order of Full Bench NIRC. ============================================================ JUDGMENT SHEET IN THE ISLAMABAD HIGH COURT, ISLAMABAD JUDICIAL DEPARTMENT
W.P. No.1244 of 2018 Malik Muhammad Akhlaq and another Versus Honourable Full Bench, National Industrial Relations Commission and others
Date of Hearing: 21.05.2024 Petitioner by: Mr. M. Fazil Siddiqui, ASC. Respondent No.3 by: Mr. Mushtaq Hussain Bhatti, Advocate. ________________________________________________________________________ MIANGUL HASSAN AURANGZEB, J :- Through the instant writ petition, the petitio ners impugn order s dated 02.01.2018 passed by the learned Full Bench, National Industrial Relations Commission (“NIRC”), whereby their appeals under Section 58 of the Industrial Relations Act, 2012 ( “IRA”) against the order s dated 27.12.2016 and 21.02.2017 passed by the learned Member, NIRC w ere dismissed on the sole ground that the grievance notice s issued by the m were not in accordance with Section 33 of the IRA. 2. The record shows that appellant No.1, Malik Muhammad Akhlaq, was appointed in the Oil and Gas Development Corporation as Senior Personnel Assistant on 01.12.1988, whereas appellant No.2, Raja Muhammad Saleem was appointed in the said Corporation as Data Unit Attendant on 01.01.1992. After the conversion of the Oil and Gas Development Corporati on into Oil and Gas Development Company Limited ( “OGDCL”), notification dated 15.06.2016 was issued, whereby new pay scales for employees of OGDCL were notified pursuant to the decision taken in the 183 rd meeting dated 05.06.2016 of OGDCL Board of Director s. Aggrieved by the said notification, the petitioners submitted separate appeals dated 16.06.2016 to the Managing Director / Chief Executive Officer of OGDCL. Having not received any response to the said appeals, the petitioners, on 04.07.2016 , filed separate grievance petition s before the NIRC, Islamabad under Section 33 of the IRA. 3. Vide order s dated 27.12.2016 and 21.02.2017 , the learned Member, NIRC dismissed the petitioners’ grievance petition s on the sole ground that the y had not sent grievance no tices to their “employer” in terms of Section 33 of the IRA. In holding so, the learned Member, NIRC placed reliance on the law laid down by the 2 W.P.No.1244/2018
Hon'ble Supreme Court in the case of Khushal Khan Vs. Muslim Commercial Bank Limited (2002 SCMR 943) . The petitioners’ appeals against the said order s dated 27.12.2016 and 21.02.2017 were also dismissed by the learned Full Bench, NIRC vide orders dated 02.01.2018. The said concurrent orders dated 27.12.2016, 21.02.2017 and 02.01.2018 passed by the learned Member an d the learned Full Bench, NIRC have been assailed by the petitioners in the instant writ petition. 4. Learned counsel for the petitioner s, after narrating the facts leading to the filing of the instant petition, submitted that the petitioners’ grievance petitions and appeals had been dismissed on a technical ground; that it is an admitted position that the petitioners had brought their grievance s regarding revision of pay scales to the Managing Director / Chief Executive Officer, OGDCL through letters dated 16.06.2016, which were captioned as “Appeal against impugned order No.AA0102 -06, dated 15 th June, 2016 titled as “HR Reforms and Way Forward” ; that OGDCL cannot deny the fact that the petitioners had voiced their grievances in the said letter s; that the provisions of the IRA do not require a grievance notice to be in any specific form; that all that Section 33(1) of the IRA requires for a worker to bring his grievance to the notice of his employer in writing; that Section 33(1) of the IRA does not require such notice to be sent to the appointing authority; that the Hon'ble Balochistan High Court in the case of MCB Bank Limited VS. Muhammad Imran Bhatti (2015 PLC 82) held inter alia that “merely mentioning of wrong title, i.e. appeal for re -instatement in t he bank service” instead of “grievance notice” does not vitiate the proceedings.”; that in the case of State Life Insurance Corporation of Pakistan Vs. Mirza Kashif Baig (2013 PLC 359), the Punjab Labour Appellate Tribunal held inter alia that an appeal / departmental representation through which a workman brought his grievance to the notice of the employer can be safely treated as a grievance notice; and that this was also the view taken by the Balochistan Labour Appellate Tribunal in the case of Deen Muhammad Vs. Pakistan Telecommunication Company Ltd. ( 2013 PLC 31) and the Sindh Labour Appellate Tribunal in the case of Tariq Mehmood Vs. Allied Bank of Pakistan Ltd. (2013 PLC 199) . Learned 3 W.P.No.1244/2018
counsel for the petitioners prayed for the writ petition to be allo wed and for the concurrent orders passed by the learned Member and the learned Full Bench, NIRC to be set-aside. 5. On the other hand, learned counsel for OGDCL submitted that Section 33(1) of the IRA is framed in the absolute term incapable of explanation on any other hypothesis than that the service of grievance notice on the employer within the prescribed time is an essential pre-requisite for the filing of a grievance petition before the NIRC; that the requirement to serve a grievance notice on the employer is mandatory and a sine qua non for the filing of a grievance petition; that the concept of a departmental appeal is not a substitute to a grievance notice; and that in the case at hand, the petitioners had submitted “appeals” which cannot be equated with a grievance notice . Learned counsel for OGDCL prayed for the writ petition to be dismissed. 6. I have heard the contentions of the learned counsel for the contesting parties and have perused the record with their able assistance. The facts le ading to the filing of the instant petition have been set out in sufficient detail in paragraphs 2 and 3 above and need not be recapitulated. 7. Learned counsel for OGDCL did not deny the fact that the petitioners had voiced their grievances with respec t to notification No.AA0102-06, dated 15.06.2016 through letters dated 16.06.2016. OGDCL’s grouse with the said letters is that they are captioned as “appeals.” OGDCL has filed the detailed written comments to the instant petition. In the said written comm ents, it has not been pleaded that the said letters dated 16.06.2016 were not addressed by the petitioners to their “employer.” OGDCL’s objection to the maintainability of the grievance petition s was on the sole ground that the petitioners’ “appeals” could not be treated as grievance notices under Section 33(1) of the IRA prevailed with the learned Member, and the learned Full Bench, NIRC and consequently, the ir grievance petitions and appeals were dismissed on the said ground. In dismissing the petitioners’ said petitions / appeals, the learned Member and the learned Full Bench, NIRC have placed reliance on 4 W.P.No.1244/2018
the law laid down by the Hon'ble Supreme Court in the case of Khushal Khan Vs. Muslim Commercial Bank Limited (supra). 8. In the case of Khushal K han Vs. Muslim Commercial Bank Limited ( supra), disciplinary proceedings had been initiated against Khushal Khan which culminated in an order for the termination of his services. His departmental appeal was unsuccessful. After the dismissal of his departme ntal appeal, he filed a grievance petition under Section 25 -A of the Industrial Relations Ordinance, 1969 ( “the 1969 Ordinance” ) before the Labour Court. The said petition was also dismissed. The appeal filed by him before the Labour Appellate Tribunal was also dismissed. Khushal Khan had been non -suited on the ground that a grievance notice was not served by him on his employer as required under Section 25 -A of the 1969 Ordinance. Furthermore, the Labour Appellate Tribunal observed that even if for the sake of argument, it is presumed that the appeal filed by him can be treated as a grievance notice, the same had not been submitted within the statutory period required by law. A writ petition filed by Khushal Khan against the said order was dismissed by the Hon'ble Peshawar High Court. Khushal Khan preferred a civil petition for leave to appeal before the Hon'ble Supreme Court against the judgment of the Hon'ble Peshawar High Court. In the proceedings before the Hon'ble Peshawar High Court, learned counsel f or Muslim Commercial Bank Limited placed reliance on the law laid down by the Hon'ble Peshawar High Court i n the case of Zar Khan Vs. Senior Vice-President, Muslim Commercial Bank Ltd., (1984 PLC 89 ), wherein it was held as follows:-
“5. Insofar as the ot her point of the learned counsel for the petitioner is concerned, it may be stated that no doubt no special form of a grievance notice is specified in section 25 -A of the Industrial Relations Ordinance and there are reported cases of Superior Courts whereb y a Mercy petition or an appeal to the higher authorities was treated as a grievance notice but there are also reported judgments of Superior Courts wherein it has been held that an appeal or a Mercy petition to the higher authorities or the authority abov e the employer could not be treated a grievance notice. In the case, reported in 1981 PLC 605 it has been held that no particular form or procedure of a grievance notice has been provided by section 25 -A for its compliance and that petition, appeal or application submitted within time can be regarded compliance of grievance procedure and Mercy petition submitted after departmental appeal could be regarded as sufficient 5 W.P.No.1244/2018
compliance of section 25 -A. In the case of Muhammad Ozair Qureshi v. Chairman, National C onstruction Company Limited, Karachi and others (1982 PLC 17) it was held that first appeal to Chairman could be treated as a grievance notice as no specific form is prescribed to bring grievance to notice of employer. On the contrary, in the case reported in 1982 PLC 389 it was held that departmental appeal to Appellate Authority could not be treated as grievance notice and in the case reported in 1982 PLC 920 it was held that grievance notice is to be served upon employer and not upon final Appellate Auth ority and that representation to President of Bank could not be treated as a grievance notice. It shall thus be seen that although, no specific form of a grievance notice is provided in section 25 -A of the Ordinance, however, it is clear that the notice is to be served upon the employer and not on any higher or Appellate Authority . Moreover, a Mercy petition, an appeal, or a petition to the Labour Court, cannot be treated as grievance notice. We are inclined to agree with the latter two reported cases, beca use having anxiously applied our minds to the provisions of section 25 -A and the reported cases, we are of the considered opinion that a grievance notice is a document independent of a Mercy petition or an appeal to the Appellate Authority and it has to be served upon the appointing authority and not to an authority higher than the appointing authority. We would, therefore, not accept this contention either.” (Emphasis added)
9. The Hon'ble Supreme Court declined to grant leave to appeal to Khushal Khan and held that no grievance notice as required under Section 25 -A of the 1969 Ordinance had been served by him on his employer. It was also held that an appellate authority is always considered to be distinct and a different entity from the original authority competent to make an appointment. In the said case, the Regional Manager of Muslim Commercial Bank Limited, who had issued Khushal Khan’s appointment letter , was held to be his appointing authority and not the President of the Bank before whom the departmental appeal had been filed. 10. The ratio that can be gathered from the judgment in the case of Khushal Khan Vs. Muslim Commercial Bank Limited (supra) is that a departmental appeal is not a substitute to a grievance notice and that a grievance notice is to be addressed to the “employer” who is to be an aggrieved workman’s appointing authority. 11. Section 25 -A(1) of the 1969 Ordinance is in pari materia to Section 33(1) of the IRA, which for ease of reference is reproduced herein below:- 6 W.P.No.1244/2018
"33. Redres s 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 time being in force to the notice of his employer in writing, either himself or t hrough his shop steward or collective bargaining agent within ninety days of the day on which the cause of such grievance arises."
12. Section 33(1) of the IRA mandates that the grievance notice has to be given to the employer within a period of ninety da ys from the day on which the cause for the grievance arises. Although, Section 33(1) of the IRA, 2012 does not prescribe the fo rm in which the grievance notice is to be issued but the law mandates that it must be addressed to the “employer” and none other. I also cannot bring myself to agree with the contention of the learned counsel for the petitioners that their “appeals” to the Managing Director / Chief Executive Officer , OGDCL should have been treated as grievance notices to their employer. 13. The le arned Member and the learned Full Bench, NIRC in dismissing the petitioners’ grievance petitions and appeals , respectively have done so by placing reliance on the law laid down by the Hon'ble Supreme Court in the case of Khushal Khan Vs. Muslim Commercial Bank Limited (supra). This Court , in terms of Article 189 of the Constitution, is also bound to follow the law laid down by the Hon'ble Supreme Court. 14. Since the petitioners’ “appeals” to the Managing Director / Chief Executive Officer, OGDCL could n ot be treated as grievance notices to the petitioners’ employer, I have no reason to interfere with the concurrent orders passed by the learned Member and the learned Full Bench, NIRC. Consequently, the instant writ petition is dismissed with no order as to costs.
(MIANGUL HASSAN AURANGZEB) JUDGE
ANNOUNCED IN AN OPEN COURT ON 31.05.2024.
(JUDGE) Sanaullah *